The first claim, relating to two permissions granted in the summer of last year, raised two grounds of challenge: the first ground alleged unfairness in the failure by the Council to upload advice it had received about retail impacts from an external consultant and also internal advice from its policy team; the second ground alleged 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 last year,  initially raised three grounds of challenge: the first ground alleged a failure take account of and assess compliance with a development plan policy and / or inadequate reasons relating to the same;  the second ground alleged 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 the third ground concerned 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. 

As to the remaining grounds, each of those were dismissed by Mr Justice Choudhury as unarguable.  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 was instructed by Alex O’Dwyer of OneSource on behalf of the London Borough of Havering.  Craig Howell Williams QC and Conor Fegan were instructed by Louise Burnett at Freeths LLP on behalf of Aldi Stores Limited.