Introduction

The case of Asda Stores Ltd, R (On the Application Of) v. Leeds City Council & Anor ([2021] EWCA Civ 32) presents a pivotal moment in the interpretation of the National Planning Policy Framework (NPPF), particularly concerning the application of policy paragraph 90. This comprehensive commentary delves into the intricacies of the case, exploring the background, key issues, judicial reasoning, and the broader implications for future planning decisions in England and Wales.

Summary of the Judgment

Asda Stores Ltd challenged the decision by Leeds City Council to grant planning permission for a large mixed-use retail development adjacent to its existing store. Central to Asda's appeal was the assertion that the council had misinterpreted and misapplied paragraph 90 of the NPPF, which advises that planning applications likely to have a significant adverse impact on town centre vitality and viability "should be refused."

The Court of Appeal, presided over by Lieven J., dismissed Asda's appeal. The judgment affirmed that while paragraph 90 of the NPPF provides guidance, it does not impose an absolute presumption against granting planning permission. Instead, it serves as a material consideration that must be balanced against other factors, such as economic benefits and job creation. The council's decision was deemed lawful, as it appropriately weighed these competing considerations.

Analysis

Precedents Cited

The judgment extensively referenced previous cases to contextualize the interpretation of planning policies:

• Zurich Assurance Ltd. v North Lincolnshire Council [2012] EWHC 3708 (Admin) - Highlighted the approach to balancing material considerations when policies suggest refusal.
• Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13 - Emphasized that planning policies should be interpreted in their context without imposing rigid interpretations.
• Barwood Strategic Land II LLP v East Staffordshire Borough Council [2017] EWCA Civ 893 - Confirmed the necessity of a balanced and practical approach in applying national planning policies.
• Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 WLR 1865 - Reinforced the principles governing the interpretation and application of national planning policies.

Legal Reasoning

The crux of Asda's argument was that paragraph 90 of the NPPF implicitly created a "presumption" against granting planning permission for developments adversely affecting town centres. Asda contended that this presumption should tilt the balance decisively towards refusal unless overwhelmingly countered by other factors.

Lieven J. rejected this interpretation, emphasizing the importance of a holistic reading of the NPPF. She clarified that while paragraph 90 provides significant guidance, it does not dictate an absolute outcome. Instead, it introduces a critical material consideration that must be balanced against other relevant factors, such as economic growth and job creation.

The judgment underscored that decision-makers possess the discretion to weigh various material considerations, provided they do so lawfully and transparently. The court found that Leeds City Council had appropriately exercised this discretion, balancing the adverse impacts on the town centre with the economic and employment benefits of the proposed development.

Impact

This judgment has substantial implications for future planning decisions:

• Clarification of Policy Guidance: Reinforces that policies like paragraph 90 of the NPPF serve as critical considerations rather than absolute mandates, allowing for nuanced decision-making.
• Discretion of Local Authorities: Empowers local planning authorities to balance adverse impacts with economic benefits without being legally bound to refuse applications solely based on policy recommendations.
• Judicial Deference: Courts will continue to defer to the expertise and judgment of local authorities in balancing material considerations, as long as the policy is correctly understood and applied.
• Encouragement of Economic Development: Provides leeway for developments that offer significant economic advantages, even in areas where there might be some adverse impacts on local town centres.

Overall, the decision promotes a balanced approach to planning, ensuring that economic growth and development are not unduly hampered by policy guidelines, provided that adverse impacts are thoughtfully mitigated.

Complex Concepts Simplified

National Planning Policy Framework (NPPF)

The NPPF is a key document guiding planning decisions in England and Wales. It outlines national policies that local planning authorities must consider when granting or refusing planning permission.

Paragraph 90 of the NPPF

This paragraph deals with retail and leisure developments outside town centres. It suggests that such developments should be refused if they are likely to have a significant adverse impact on the vitality and viability of the town centre. However, it does not make refusal mandatory; instead, it presents a significant consideration that must be weighed against other factors.

Material Considerations

These are factors that must be taken into account when deciding planning applications. They include national policies like the NPPF, local development plans, and other relevant factors such as economic benefits or environmental impacts.

Balancing Exercise

When multiple material considerations are at play, decision-makers must balance them to reach a conclusion. No single factor automatically determines the decision; instead, the relative importance and impact of each consideration are assessed.

Presumption vs. Material Consideration

A presumption suggests a default position unless convincingly countered by other evidence. In contrast, material consideration implies that while an issue is significant, it can be outweighed by other relevant factors. The judgment clarifies that paragraph 90 should be treated as a material consideration, not as an absolute presumption.

Conclusion

The Court of Appeal's decision in Asda Stores Ltd v Leeds City Council reaffirms the flexible and balanced approach advocated by the NPPF. It underscores that while national policies provide essential guidance, they do not rigidly dictate outcomes. Local planning authorities retain the discretion to weigh various material considerations, ensuring that development decisions are contextually appropriate and beneficial.

This judgment serves as a critical reference point for future planning disputes, emphasizing the necessity for courts to respect the expertise of local authorities and the importance of a comprehensive balancing act in complex planning decisions. Developers, local councils, and legal practitioners alike must heed this ruling to navigate the intricate landscape of planning law effectively.