Borough council defends judicial review brought by Tesco over grant of permission to supermarket rival

Supermarket chain Tesco Stores has lost an attempt to take Reigate and Banstead Borough Council to judicial review over a disputed supermarket site in Horley.

James Strachan KC sitting as a deputy judge of the High Court, refused permission for Tesco’s first ground and rejected the second.

The council granted full planning permission for the demolition of a listed building and redevelopment as a food store for Lidl Great Britain and Greene King Brewing and Retailing. Tesco operates a superstore nearby.

Tesco’s first group of challenge was that the council failed to comply with its statutory duty under section 66 of the Planning (Listed Buildings and Conservation Areas) Act 1990 by a failure to give great weight to the preservation of the setting of a Grade II listed building.

Its second ground was that the council failed to give adequate reasons for finding that the identified harms arising from the development were outweighed by the benefits.

Officers had recommended refusal of Lidl’s application as entailing the complete loss of the listed former Air Balloon pub and having an unsympathetic scale, form and layout near a Grade II listed war memorial.

Despite this, planning committee members granted permission.

Mr Strachan noted officers “repeatedly advised members as to the correct legal approach to adopt in relation to the statutory duty applicable to a listed building, and the great weight to be attached to heritage harm.

“This is important context when considering whether comments made in the subsequent debate itself, and the reasons for the decision, reveal that members fell into legal error despite the advice they had received.”

Tesco said the council’s reasons for granting permission failed to recognise the “considerable importance and weight” attaching to harm to the setting of the war memorial and simply referred to the existence of “less than substantial harm”, rather than noting the particular statutory weight.

It said there was a failure to comply with the National Planning Policy Framework because public social and economic benefits were relied on by the planning committee but these were not articulated.

Nor did it explain how any purported benefits attracted a different weight to that accorded in the officers’ report.

Tesco argued the general tenor of the committee’s discussion was that the listed building issue could be “put to one side", and no particular importance was given to this in the printed reasons.

Mr Strachan found no arguable merit in this ground because Tesco’s case concerned the way councillors made their decision, rather than the officers’ report, and members were correctly advised of the requirements of their statutory duty.

“This is, therefore, a case where members were consistently correctly advised about the approach they should adopt to the statutory duty and harm to heritage assets,” Mr Strachan said.

“In my judgment, that is an important starting point for any fair consideration as to whether the reasons they gave for their decision, or the tenor of the debate, reveal that despite that advice, members either ignored or misunderstood it in the approach they adopted.”

He said Tesco’s case suffered from “a significant conflation of two distinct things”.

Members were correctly advised to give considerable weight to harm caused to the war memorial but it was an evaluative judgment as to the nature and extent of harm.

“If that were not the case, then there would be no way of distinguishing between different degrees of harm that a development might cause along what is often referred to as a spectrum, even within the NPPF policy category of ‘less than substantial harm’ with which the council members were concerned in this case,” Mr Strachan said.

“So, whilst harm to the setting of a listed heritage asset attracts considerable importance and weight, and the balance is tilted in favour of the preservation of its setting, there is still a legitimate evaluative assessment of the nature and extent of that harm.”

The judge said it was “not only legitimate, but arguably a requirement, on a decision maker to consider the nature and extent of the harm themselves as, for example, the development manager identified when giving them oral advice.

“Where members have been correctly (and repeatedly) advised as to the obligation to attach considerable importance and weight to any harm arising to the war memorial, there is nothing objectionable or inconsistent in members then applying their own minds to reach their own judgment as to the extent of harm caused to the setting of the listed war memorial by the development proposed.”

Mr Strachan also rejected Tesco’s argument about the tenor of the debate saying he saw nothing “which supports the contention that members had misunderstood or misapplied the legal advice they had been given”.

Turning to the second ground, which alleged failure to identify what benefits outweighed the harm and alleged failure to give any reasons for departing from the officers' view, he said: “First, when the committee's reasons are read fairly and as a whole with the officers’ report and addendum that inform those reasons, I consider there is no genuine doubt as to why the committee reached the conclusion it did.

“The fair reading of [both]…is that members did consider the proposal to have public benefits of the type that they had summarised…including both economic benefits in the form of jobs, and social benefits in the provision of an improved shopping offer which a significant number of members of the public saw as advantageous.”

The committee was entitled to disagree with officers without having to provide additional reasons and was not legally obliged to set out the benefits again in a resolution, which “strays into a requirement to give reasons for reasons”.

Mr Strachan dismissed Tesco’s objections to the tenor of the debate, which he said simply “demonstrates that members were undertaking the balancing exercise that was required of them, albeit in a context where they had been advised correctly as to the correct approach to adopt to harm to the heritage assets”.

Mark Smulian