Supreme Court rules on the sequential approach
26 March 2012
Tesco Stores Limited v Dundee City Council & Asda Stores Limited & MacDonald Estates Group plc
In January 2010, Dundee City Council granted planning permission for Asda Stores Ltd and MacDonald Estates Group plc to develop a new superstore on the former NCR site in Dundee. Tesco objected to the grant of permission, arguing that the Council had failed to properly interpret the sequential approach, which required to be considered as part of the determination of the application. The sequential approach provided that, as the proposed development was an “out-of-centre” site, it was necessary to establish that no suitable site was available, in the first instance, within, and thereafter on the edge, of any city, town or district centres. Tesco contended that an alternative site was available within a district centre and that it had been wrongly disregarded on the basis that the Council ought to have considered whether the site was “suitable for meeting identified deficiencies in retail provision in the area”, rather than “suitable for the development proposed by the applicant”. The Council had therefore misinterpreted the sequential approach and its decision should be reduced.
The Supreme Court held that policy statements issued in relation to planning, as in relation to other areas of public administration, should be interpreted objectively in accordance with the language used, read as always in its proper context. It is not for a planning authority to determine the meaning of a policy. However, in the circumstances of this case, the Council was correct to proceed on the basis that the word “suitable” meant “suitable for the development proposed by the applicant”, subject to the qualification that flexibility and realism must be shown by developers. In the present case, it was apparent that the developers had adopted a flexible approach. There was therefore no error in the decision-making process.
In any event, an error in interpreting a policy would be material only if there was a real possibility that the determination might have been different but for the failure in interpretation. The Supreme Court considered that, even if there had been an error as Tesco contended, there was no real possibility of that error making a difference to the ultimate decision, standing the strong material considerations which favoured the grant of planning permission.
Kenny McBrearty of Axiom Advocates appeared for the Interveners, Asda Stores Limited & MacDonald Estates Group plc
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