About this case:

• Citation:
  [2023] NICA 34
• Judgment:
  External link
• Court:
  NI Court of Appeal
• Judge:
  Mrs Justice Keegan

The court found that the decision reached was a valid and informed one and, although it went against Tesco’s favour, it was neither unreasonable nor an example of a planning committee being misled by evidence.

Background

This was an appeal from a decision by Mr Justice David Scoffield in October 2022, where he dismissed Tesco’s judicial review. Tesco Stores objected to the grant of planning permission by Asda, for a new store and petrol station at the Monkstown Industrial Estate in Newtownabbey.

The Abbey Trading Centre (ATC) was identified as a potential alternative site for this planning proposal. Asda’s position was that the ATC site would not be able to accommodate their proposal.

This appeal questioned whether the judge was right in his assessment of how the planning committee dealt with the issue of availability of an alternative site before granting planning permission for the site in question.

The planning decision

In August 2020, the planning application was to be considered by the planning committee of Antrim and Newtownabbey Borough Council. Ultimately, the planning permission was formally granted.

The case made by the appellant was that the alternative site, ATC, was available, and so the appeal concerned whether the planning committee considered the issue of the availability of an alternative site.

The appellant argued that the planning committee was “deprived of the opportunity to make a properly informed decision as to whether to grant planning permission, refuse permission or defer the decision or require further enquiries to be made”.

In this way, they argued that material considerations were overlooked, and that the committee was misled and misdirected by incomplete or inaccurate information about the availability of the site.

Policy

The Strategic Planning Policy Statement requires a “town centres first” approach to this type of development. It states: “Where it is established that an alternative sequentially preferable site exists within a proposal’s whole catchment, an application which proposes development on a less sequentially preferred site should be refused.”

Further, applicants are expected to identify and fully demonstrate why alternative sites are not suitable, available, and viable.

However, balancing this, the court noted the statement of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, noting the well-settled principle that matters of planning judgment are exclusively matters within the province of the local planning authority:

Justice Scoffield’s decision

In analysing what an ‘available alternative site’ means, the judge made two central points:

1. if a site is being marketed for sale, it is prima facie available to the planning applicant; and
2. if a site is not being marketed for sale, that is some indication that it is not presently available, and perhaps an indication that it may not be available at all, but it is by no means determinative of the question of availability.

The judge decided that the planning committee had not been misled; that there was no material error of fact; that there was no failure to make sufficient enquiry; and, ultimately, that the decision could not be impugned on Wednesbury grounds.

He believed that the planning committee members were aware of the Tesco contention that the ATC site was suitable, available and viable, but that it was a matter for them to consider whether to investigate into this issue further.

The council’s assessment that the site was not available was ultimately demonstrated to be entirely correct, as the owner was uncertain about its future use, and at the time of the council’s decision there was no indication of when the ATC site might become available for sale again, if ever.

Further, the policy provided no guidance on the meaning of the concept of availability, but using a common-sense approach it must involve availability within a reasonable time.

The judge was also critical that Tesco, an objector, made extremely late interventions both times. First, the planning committee received a letter of objection on Tesco’s behalf a day before the meeting, and in a later meeting they only received the objection on the day.

The court found this “unsettling” and noted that it may have been “specifically designed as a spoiling tactic”. Either way, it did not serve the interests of good administration, as the committee members had to read and consider this information on such short notice.

Consideration

The Court of Appeal noted that the burden was on the planning applicant to prove that there was no alternative site for a development. Clearly, significant time, effort and expense was applied to try to convince the planning committee that the alternative site was viable and suitable.

The decision in fact turned on availability of the site rather than viability and suitability. In assessing the meaning of ‘availability’ the court could not improve on Mr Justice Scoffield’s analysis.

The real question, therefore, was whether the evidence before the planning committee was sufficient to allow them to make an informed decision. Agreeing with the trial judge, the court found that it would have been better if the assessment claiming the site was unavailable had been explained to the committee, but this failure did not amount to misleading the committee.

The court was ultimately convinced as to the legality and overall fairness of the process adopted. The planning committee had the benefit of extremely comprehensive planning reports and the attendance of numerous witnesses including senior counsel.

The court found that the committee was not “misled”. Having had the benefit of a substantial objection from Tesco, and being presented with detailed planning officers’ reports, the committee was entitled to reach its own view. That decision was an informed one, with objections fully considered, decided on a vote of seven in favour and two against.

Conclusion

Ultimately, this was a case where a valid planning judgment was made. As such, the court did not find merit in any of the challenges raised by the appellant and dismissed the appeal.