Supreme Court case considering an appeal from the Inner House which upheld the planning authority’s decision to grant permission for an Asda Store at a site in Myrekirk Road in Dundee.
Tesco (which owns a store 800m from the proposed site) argued that the planning committee had failed to properly apply the “sequential test” (which involves considering suitable alternative sites for development from the town centre outwards) which was set out in the development plan and planning policy. Tesco also claimed that the planning committee had failed to consider its own policy in respect of the Lochee district. (There was an alternative site in Lochee which the Council had discounted as being too small.)
The Supreme Court refused the appeal. The argument centred on the meaning of the word “suitable” which Tesco contended meant “suitable for meeting identified deficiencies in retail provision in the area”. The Supreme Court found that the Council had been correct to proceed on the basis that the word “suitable” meant “suitable for the development proposed by the applicant” but this was subject to the qualification that flexibility and realism must be shown by developers.
Asda had followed a flexible approach but did not regard the Lochee site as suitable for their needs. In accepting that assessment, the Council had exercised their judgment as to how the policy should be applied to the facts and had not proceeded on an erroneous understanding of the policy.
Lord Reed observed that an error by the planning authority in interpreting its policies would be material only if there was a real possibility that their determination might otherwise have been different and he was not persuaded that there was such a possibility in this case.
With regard to a planning authority’s exercise of discretion, Lord Reed also noted:
“planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”
The full judgement is available from the Supreme Court here.
All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.
