Judge refuses Tesco permission to bring judicial review challenges over permissions for new Aldi store

A High Court judge has refused Tesco permission to bring two judicial review claims over grants of planning permission by Havering Council that will facilitate a new Aldi store in Romford.

According to barristers’ chambers Francis Taylor Building, the first claim, relating to two permissions granted in the summer of 2021, raised two grounds of challenge alleging:

1. unfairness in the failure by Havering to upload advice it had received about retail impacts from an external consultant and also internal advice from its policy team;
2. a failure to consider imposing conditions and / or an irrational failure to impose conditions which were referred to in the advice received from the external consultant.

The second claim, relating to two permissions granted late in 2021, initially raised three grounds of challenge alleging:

1. a failure to take account of and assess compliance with a development plan policy and / or inadequate reasons relating to the same;
2. a failure to take account of advice given by the external consultants about the retail data and / or inadequate reasons relating to the same; and
3. a failure to impose a condition restricting the net sales floorspace of the proposed development.

Tesco did not pursue the third ground in the second claim following a unilateral undertaking entered into by Aldi under section 106 of the Town and Country Planning Act 1990. Tesco accepted that the unilateral undertaking entered into by Aldi following service of the second claim had remedied any alleged legal error, FTB said. 

The set said that, as to the remaining grounds, each of those were dismissed by Mr Justice Choudhury as unarguable following a contested oral permission hearing. The judge also indicated that even in the event that he had concluded that the grounds were arguable, he would nevertheless have refused permission anyway under section 31(3D) of the Senior Courts Act 1981.  

Meyric Lewis of Francis Taylor Building was instructed by Alex O’Dwyer of OneSource on behalf of the London Borough of Havering.  Craig Howell Williams QC and Conor Fegan, both also of FTB, were instructed by Louise Burnett at Freeths on behalf of Aldi Stores.

A spokesperson for Havering Council said: “The council is content with this outcome, and pleased that the judge found no basis for the claimant to proceed with their legal challenge.”