Fri 10 May 2024

Tesco Stores Limited v. Perth and Kinross Council

Application for Judicial review of decision to support Aldi Stores Limited proposal.


In 26 April 2024 Lord Richardson set aside the decision by Perth and Kinross Council to grant planning permission for a new Aldi store at Pitleavis, Perth. The challenge was the first exploring the proper meaning and application of the retail policy 28 in National Planning Framework 4, the new policy guidance adopted by the Scottish Government on 13 February 2023 and now forming part of the Development Plan against which all applications require to be assessed. 

The Background

Aldi currently operate a store extending to 1,173 sqm gross at Glasgow Road, Perth. This was considered to be too small but the floorspace could not be extended due to physical and operational constraints. Aldi's solution was to propose the closure of their existing store and relocate to an out of centre site at Pitleavis capable of accommodating a larger store of some 1884 sqm gross and 100 parking spaces. The Retail Assessment lodged in support of the application showed a 7 minute drive time which extended the store's catchment to the entire southern half of the City of Perth. The retail impact assessment prepared to support the application identified the uplift in turnover arising only from the additional floorspace to be created, assuming the closure of the existing Glasgow Road store would be secured by means of s75 Agreement. The impact was considered to be acceptable on this approach. However, would relocation to the new out of centre site be in accordance with the policy direction now contained in NPF4? 

The relevance of Policy 28 of NPF4 

NPF4 has been heralded as placing greater emphasis on the importance of protecting town and other allocated centres. Reflecting this focus, Policy 28(a) essentially provides support for retail developments in existing city, town and local centres, and in edge-of-centres and commercial centres allocated for retail development in Local Development Plans. Policy 28(a)(iii) specifically provides that retail proposals will not be supported in out of centre locations unless one or both of the two exceptions set out in Policy 28 (c) and (d) apply. Policy 28(c), in particular, provides that proposals for new small scale neighbourhood retail development will be supported where the proposed development "(i) contributes to local living, including where relevant 20 minute neighbourhoods and/or (ii) can be demonstrated to contribute to the health and wellbeing of the local community".

In assessing the application with reference to Policy 28, the planning authority concluded that that proposal was in accordance with policy 28(a) in that it would be justified by reference to the exception provided for by in 28(c) - it followed that, on their interpretation of paragraph (c), the proposal could properly be described as a small-scale neighbourhood development. Having satisfied this pre-condition, the other criteria in paragraph (c) were then be considered and were found to have been met. Assessed in this way, the proposal was supported by Policy 28 of NPF4. 

The Decision

The essence of the court's decision is that there is no way that the Aldi proposal could be described as small-scale neighbourhood development. It was neither small scale nor did it serve only the local neighbourhood.  Accordingly, it did not fit into the exception provided for in sub para (c) of Policy 28. In treating it as doing so, the planning authority erred in its' application of Policy 28. This was not a proposal which could be assessed and supported by reference to the exception to the town centre first principle reiterated in Policy 28.

As part of the court's rejection of the Council's approach, it did not accept that it was open to the applicants and the planning authority to assess only the "new" floorspace to be provided. The proposal to be tested against Policy 28 was the for the whole area of 1884sq m, not simply the uplift of 711 sq as the Aldi team had argued. Policy 28 applies to all retail proposals, not simply the new area to be developed. Assessing only the additional or "new" floor area misconstrued and hence led to a misapplication of Policy 28.

The Consequence

In the usual way, the consequence of the challenge being successful is that the decision taken by the planning authority on 31 May 2023 was quashed or set aside. In effect, the clock is wound back to the point in time immediately before the decision was taken and the application requires to be re-determined. Before doing so, the planning authority can be expected to prepare a fresh report taking into account the error identified by the court, any change in the policy position and material considerations generally since the first decision was taken. It remains to be seen whether the planning authority will continue to support the proposal and, if so, on what basis.

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