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Council defeats Court of Appeal challenge over interpretation of paragraph 90 of National Planning Policy Framework on town centre vitality

Leeds City Council did not err when it gave planning permission for a large mixed-use retail-led development next to an Asda store, the Court of Appeal has found.

Asda Stores argued that Leeds misinterpreted and misapplied the Government's policy for retail development in paragraph 90 of the National Planning Policy Framework.

But in Asda Stores Ltd, R (On the Application Of) v Leeds City Council & Anor [2021] EWCA Civ 32 Sir Keith Lindblom, Senior President Of Tribunals, found that the appeal failed on the facts.

Commercial Development Projects gained permission for the project on a six hectares site on Middleton Ring Road adjacent to an Asda store.

The site is an ‘edge of centre’ one lying some 80 metres from the nearest point of the Middleton district centre as defined in the Leeds Core Strategy,

Sir Keith said: “The main contention in Asda's challenge is that the city council misinterpreted and misapplied the policy in paragraph 90 of the NPPF by failing to recognise that it contains a presumption against development that would have a 'significant adverse effect’ on the 'vitality and viability’ of a town centre.”

He noted that Lieven J had rejected that argument in the High Court and found that s90 did not tell decision makers that they should put more weight on one factor rather than another.

Sir Keith said: “Even if the policy in paragraph 90 is rightly regarded as containing a ‘presumption', the ‘presumption' is one that can be overcome by countervailing factors, which are not specified or limited by the policy itself – but might include, for example, planning benefits such as the creation of jobs in an area where unemployment is high and an uplift to the local economy by the development proposed.”

Giving appropriate weight to these factors was a matter of planning judgment for the decision maker.

It was, he said, “plain from the officer's reports and the minutes of the meetings at which the panel considered the application that the members made their decision conscious of the terms of paragraph 90 and aware that the decision was contrary to national planning policy in that paragraph.

“Indeed, this conflict with the paragraph 90 policy was at the heart of the panel's discussion of the planning merits. That the officer's reports, and the minutes, do not refer to paragraph 90 as containing a ‘presumption’ is of no real consequence.

“We must consider whether the policy played its proper part in the panel's decision-making – whether it was both correctly understood and lawfully applied. In my view, it was.”

He also rejected Asda’a argument that the reasons for the panel's decision “are somehow obscure”, concluding “they are…quite clear from the relevant minutes”.

Lord Justice Coulson and Lord Justice Males agreed.

Mark Smulian