Both Lidl and Aldi had within weeks of one another applied for planning permission for new supermarkets in Horncastle, Lincolnshire. The applications sites for both stores were outside the town centre. The Council was advised by its own consultants that, on a cumulative basis, the retail impact of the two out-of-town supermarkets would risk a significant adverse impact on the vitality and viability of Horncastle town centre, in circumstances where local and national policy seeks to avoid such significant adverse impacts. On a ‘solus’ basis, each store taken on its own would not cause this impact. The situation was therefore expressed by the Judge as being one where “two stores are competing for one planning permission” [96].

Applying the relevant case law, which the Judge analysed in detail, it was found that each rival proposal was a mandatory material consideration in the determination of the other, such that “direct consideration” was required of the merits. Like in the earlier decision in R (Chelmsford Car and Commercial Ltd) v Chelmsford BC [2006] 2 P&CR 12, a fair and coherent comparison of the rival sites was required [102]. This had not taken place here, with the Council proceeding to determine the Aldi application before the Lidl application, and not undertaking any direct comparative exercise of each proposal before the Aldi application as allowed. Aldi’s planning permission was therefore quashed. 

The effect of the judgment is to confirm that, although cases are fact sensitive, if there are rival and broadly contemporaneous applications for what in practice will be a single planning permission, their competing merits will, in most cases, be obvious material considerations such that a failure by a local planning authority to consider the proposals on a comparative basis will give rise to an error of law.

In practice, this issue is most likely to arise in retail cases and others where rival schemes are competing to meet the same need and/or for what in practice will be a single planning permission.

Douglas Edwards KC appeared at the substantive hearing for the successful Claimants, Lidl Great Britain Limited, instructed by Zoe Wright and Amardip Healy of Blake Morgan LLP. Jonathan Welch was also involved, led by Douglas, for the Claimants at permission stage.