Tesco’s unsuccessful challenge to the Aberdeen Local Development Plan shows the tightrope that planning authorities frequently have to walk.
The circumstances are not unusual: two potential sites for a new foodstore (Woodend – Tesco; Summerhill – Morrisons), and difficulty choosing between the sites.
The LDP allocated both sites as opportunities for residential development. That might seem odd. However, as the reporter noted, this allocation would not preclude retail use at either site, but conversely to identify one or other of the sites as the preferred location for the superstore would prejudge the outcome of what appeared to be a fluid situation and could result in superstores on both sites.
Tesco claimed the planning authority acted outwith its powers when adopting the LDP. By that time, the authority were aware that Tesco’s development was proceeding. The designation of the Summerhill site for residential development allowed consideration of retail development in competition with the existing consent at Woodend. Adoption of the plan could be seen to have the inevitable, or at least highly likely, consequence that two superstores would be created.
The judge gave Tesco’s case short shrift. The statutory provisions gave the planning authority no scope to modify the LDP, because the reporter had not recommended any modification in relation to either site. The judge also noted that the reporter had not recommended there should only be one superstore in west Aberdeen.
This did not mean any material change in circumstances would be ignored. As the judge noted, when it came to deciding a planning application, a departure could be made from the LDP policies. Indeed, Tesco had objected to the planning application for the Summerhill site, which the planning authority resolved to approve in April 2012 subject to conclusion of a legal agreement.
The judge was also not persuaded that the evidence showed Tesco’s development would be proceeding. At the time of adoption of the LDP, very little had actually occurred by way of construction on the ground. In the judge’s view, the planning authority would have been entitled to conclude that the reporter’s description of the development as uncertain and fluid remained current.
This decision highlights the importance of objecting to the proposed LDP and persuading the reporter to make a modification. If the reporter refuses to make a modification, there is no second bite at the cherry, except at the planning application stage.
On October 16, 2012