High Court rules on whether competing retail proposals are material considerations for planning authorities

The case concerned applications by retailers Lidl and Aldi to build supermarkets at Horncastle, East Lindsey.

An assessment for the council had found that two supermarkets would cause damage to the viability of the town centre but one would not ,and so the council in effect faced competitive applications.

East Lindsey originally gave permission for the Aldi store after Lidl had amended its application to reduce the proposed floorspace.

That meant further consultation was required, and so the Lidl proposal was not ready for the relevant planning committee meeting.

East Lindsey treated the Lidl application as withdrawn and deemed there was no clear planning objection to the Aldi scheme considered on its own merits. Lidl then gained permission to bring a judicial review.

Dan Kolinsky KC, sitting as a deputy High Court judge, said in his judgment the two applicants had been competing for one planning permission and case law showed each was a mandatory material consideration in the determination of the other, with a fair and coherent comparison of the rival sites required.

This though had not happened when the council determined the Aldi application before that of Lidl.

Francis Taylor Building chambers, from which Douglas Edwards KC represented Lidl, said: “The effect of the judgment is to confirm that, although cases are fact sensitive, if there are rival and broadly contemporaneous applications for what in practice will be a single planning permission, their competing merits will, in most cases, be obvious material considerations such that a failure by a local planning authority to consider the proposals on a comparative basis will give rise to an error of law.

“In practice, this issue is most likely to arise in retail cases and others where rival schemes are competing to meet the same need and/or for what in practice will be a single planning permission.”

Mark Smulian