Introduction

The case of Tesco Stores Ltd v Antrim and Newtownabbey Borough Council ([2023] NICA 34) presents a significant development in Northern Ireland's planning law, particularly concerning the assessment of alternative sites during planning permission evaluations. This commentary explores the background, key issues, judicial reasoning, and the broader implications of the Court of Appeal's decision.

Summary of the Judgment

Tesco Stores Ltd, a prominent supermarket chain, appealed the decision to grant planning permission to its rival, Asda Stores Ltd, for establishing a new supermarket and petrol station at the Monkstown Industrial Estate in Newtownabbey. Tesco contended that an alternative site, the Abbey Trading Centre (ATC) at Longwood Road, was available and should have been considered. The Court of Appeal upheld the initial judgment, dismissing Tesco's appeal on the grounds that the Planning Committee had duly considered the availability of the alternative site and acted within its legal discretion.

Analysis

Precedents Cited

The judgment extensively references several key precedents that shape the court’s approach to planning decisions:

• St Modwen Developments Ltd v Secretary of State for Communities and Local Government [2018] PTSR – Highlighted the necessity of considering alternative sites.
• Bloor Holmes East Midlands Ltd v Secretary of State for Communities and Local Government [2017] PTSR 1283 – Reinforced principles around planning permission and material considerations.
• Mansell v Tonbridge and Malling Borough Council and others [2019] PTSR 1452 – Provided insights into judicial approaches to planning judicial reviews.
• Tesco Stores v Dundee City Council [2012] PTSR 983 – Emphasized proper understanding and application of development plans.

These precedents collectively underscore the judiciary's stance on ensuring that planning authorities act within their discretionary powers, adequately consider material factors, and uphold principles of fairness and reasonableness.

Legal Reasoning

The Court of Appeal delved into the interpretation of 'availability of an alternative site' as mandated by the Strategic Planning Policy Statement (SPPS). The court affirmed that availability extends beyond mere market availability, incorporating a common-sense assessment of whether the site can be reasonably expected to be available within a practical timeframe.

Key points in the legal reasoning include:

• Material Considerations: The Planning Committee must base its decisions on all relevant material considerations, including the availability and suitability of alternative sites.
• Judicial Deference: The courts respect the expertise and discretion of local planning authorities, intervening only when there is clear evidence of material misdirection or irrationality.
• Corporate Knowledge: The court recognized the importance of corporate knowledge, particularly regarding the Belfast Rapid Transport (BRT) scheme, in assessing site availability.

Impact

This judgment reinforces the autonomy of local planning authorities in making informed and reasoned decisions based on the material considerations at hand. It also clarifies the scope of 'availability' in planning terms, emphasizing a pragmatic approach over rigid criteria. Future cases will likely reference this judgment when disputes arise over the consideration of alternative sites in planning permissions.

Complex Concepts Simplified

Judicial Review

Definition: A mechanism by which courts oversee the legality of decisions or actions taken by public bodies.

In this case, Tesco sought a judicial review to challenge the legality of the Planning Committee's decision to grant Asda planning permission without adequately considering the alternative ATC site.

Wednesbury Unreasonableness

Definition: A standard of review used by courts to assess if a decision is so unreasonable that no reasonable authority could ever have come to it.

The court concluded that the Planning Committee’s decision did not meet the high threshold of Wednesbury unreasonableness, as it was based on reasonable assessments of available information.

Strategic Planning Policy Statement (SPPS)

Definition: A policy document that guides local authorities in making planning decisions, ensuring consistency and adherence to broader strategic objectives.

The SPPS was pivotal in this case, particularly sections outlining the necessity of considering alternative sites and applying a 'town centres first' approach in planning decisions.

Conclusion

The Court of Appeal's decision in Tesco Stores Ltd v Antrim and Newtownabbey Borough Council [2023] NICA 34 underscores the judiciary’s respect for the discretion of local planning authorities, provided decisions are substantiated by material considerations and a reasonable assessment of available information. By affirming that the Planning Committee adequately considered the availability of the alternative ATC site and operated within the bounds of fairness and reasonableness, the judgment sets a clear precedent for future planning disputes. It emphasizes the necessity of a pragmatic and informed approach to planning decisions, ensuring that economic and infrastructural considerations are balanced effectively.