Tesco Stores Ltd v Dundee City Council: SC 21 Mar 2012

The company challenged the grant of planning permission for a competitor to open a new supermarket within 800 metres of its own, saying that the Council had failed to apply its own planning policies, which required preference of suitable sites not out of town. The parties disputed whether ‘suitable’ meant suitable to the needs for retail provision for the area, or for the development proposed, as was found by the court at first instance.
Held: The company’s appeal failed. The interpretation must be logically prior to the planning judgement under examination. The respondents were correct to go ahead on the basis that it meant ‘suitable to the development proposed by the applicant’. This represented the natural reading of the words, whereas that of the appellant would conflate that policy with a later consideration within the policy, and the policy was developed to reflect national policies which focussed on the availability of sites which might accommodate the proposed development.
Lord Reed said: ‘The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality . . On the contrary, these considerations suggest that in principle, in this area of public administration . . policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context . . It is of course true, as counsel for the respondents submitted, that a planning authority might misconstrue part of a policy but nevertheless reach the same conclusion, on the question whether the proposal was in accordance with the policy, as it would have reached if it had construed the policy correctly. That is not, however, a complete answer to a challenge to the planning authority’s decision. An error in relation to one part of a policy might affect the overall conclusion as to whether a proposal was in accordance with the development plan even if the question whether the proposal was in conformity with the policy would have been answered in the same way.’

Lord Hope, Deputy President, Lord Brown, Lord Kerr, Lord Dyson, Lord Reed
[2012] UKSC 13, UKSC 2011/0079, [2012] PTSR 983, [2012] 13 EG 91, 2012 GWD 12-235, [2012] 2 P and CR 9, [2012] JPL 1078, 2012 SLT 739, [2012] 13 EG 91
Bailii, SC Summary, SC, Bailii Summary
Town and Country Planning (Scotland) Act 1997 25 37(2)
Appeal fromTesco Stores Ltd v Dundee City Council SCS 11-Feb-2011
The petitioner sought to challenge grant of an outline planning permission for a superstore. . .
CitedEC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .
CitedHorsham District Council v The Secretary of State for the Environment CA 1991
The council had refused planning permission for a petrol station and restaurant nearby an area of outstanding natural beauty, designated as a strategic gap in the county structure plan. The inspector had allowed the appeal, finding that the . .
CitedRaissi, Regina (on the Application of) v Secretary of State for the Home Department CA 14-Feb-2008
The claimant appealed against refusal of his request for judicial review of the defendant’s decision not to award him damages after his wrongful arrest and detention after he was wrongly suspected of involvement in terrorism. He had been discharged . .
CitedNorthavon District Council v Secretary of State for the Environment, Trustees of the Congregation of Jehovah’s Witnesses QBD 1993
The trustees sought permission to erect a religious meeting place on Green Belt Land, which was refused. They said the council had failed to treat it as an ‘institution standing in extensive grounds’ within PPG2 (1988). The inspector said there had . .
CitedTesco Stores Ltd v Secretary of State for the Environment and Others HL 11-May-1995
Three companies had applied for permission to build retail food superstores in Witney. The Inspector had recommended Tesco’s proposal, but the respondent rejected it. Tesco’s had offered to provide by way of a section 106 agreement full funding for . .
CitedHeath and Hampstead Society, Regina (on the Application of) v Camden Admn 3-Apr-2007
The claimant sought the quashing of a planning permission for the demolition of property adjacent to Hampstead Heath pond.
Held: The planning authority’s decision that the replacement dwelling was not ‘materially larger’ than its predecessor, . .
CitedRegina v Derbyshire County Council ex parte Woods CA 7-Feb-1997
The claimant renewed his application for leave to appeal against rejection of his challenge to the grant of planning permission for a substantial redevelopment of land near his home.
Held: Brooke LJ considered the interpretation of planning . .
CitedCity of Edinburgh Council v Decision of Scottish Ministers and Co SCS 24-May-2001
The reporter’s decision that a licensed restaurant constituted ‘similar licensed premises’ to a public house, within the meaning of a policy, was vitiated by her misunderstanding of the policy: the context was one in which a distinction was drawn . .
CitedRegina v Teesside Development Corporation ex parte William Morrison Supermarkets Plc and ex parte Redcar and Cleveland Borough Council Admn 16-May-1997
To refuse an out-of-centre planning consent on the ground that an admittedly smaller site is available within the town centre may be to take an entirely inappropriate business decision on behalf of the developer. . .
CitedLidl UK Gmbh v The Scottish Ministers and Another SCS 18-Oct-2006
The appellants challenged a decision of the responders to refuse planning permission for a retail unit to be developed on a site outside the Irvine town centre. The relevant provision in the local plan required the sequential approach to be adopted . .
ApprovedCity of Edinburgh Council v Secretary of State for Scotland and Another; Same v Same (Conjoined Appeals) HL 31-Oct-1997
The Listed buildings registers are to be read consistently; the trading level is a material consideration in listed buildings consent applications. The weight to be given to a material consideration once identified was a matter of judgment for the . .

Cited by:
CitedEstates and Agency Properties Ltd, Regina (on The Application of) v Barking and Dagenham and Another Admn 21-Dec-2012
The claimant sought judicial review of the decision of the respondent to grant planning permission to Tescos to extend their supermarket.
Held: Review was refused. The application succeeded on one of the four grounds claimed, but that defect . .
CitedCherkley Campaign Ltd, Regina (on The Application of) v Longshot Cherkley Court Ltd Admn 22-Aug-2013
The campaign company sought judicial review of a decision by the respondent granting permission to develop nearby land as a golf course.
Held: The application succeeded. The Secretary of State in preserving the effect of certain policies had . .
CitedCastletown Estates Ltd and Another v Welsh Ministers Admn 1-Nov-2013
The claimants challnged the decision of the respondents to refuse permission for the development of former industrial land for residential puroposes. The permission had been refused on the basis of flood maps which the claimants said were . .
CitedWind Prospect Developments Ltd v Secretary of State for Communities and Local Government and Another Admn 5-Dec-2014
The claimant appealed against refusal of permission to erect a six turbine wind farm. The inspector had recommended the plan, but the defendant had decided against it.
Held: The claim failed. The planning inspector’s report is the . .
CitedSuffolk Coastal District Council v Hopkins Homes Ltd and Another SC 10-May-2017
The Court was asked as to the proper interpretation of paragraph 49 of the National Planning Policy Framework: ‘Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.452189