Just over 2 years since the grant of planning permission, Tesco’s legal challenge to Asda and MacDonald Estate’s proposed superstore at the former NCR site is at an end. The Supreme Court (the new name for the House of Lords) has upheld Dundee Council’s decision, as had the Outer House and Inner House of the Court of Session. It’s a success story for Brodies, who represented Asda and MacDonald Estates.
The issue is evaluating alternative sites, as part of the sequential approach. The Supreme Court held that the question is whether an alternative site is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site.
What about the requirement for “flexibility and realism”? Provided the developer has had regard to the circumstances of the particular town centre, given consideration to the scope for accommodating the development in a different form, and thoroughly assessed sequentially preferable locations, the question is still whether any alternative site is suitable for the development which is being proposed.
If that sounds awkward, don’t blame the judges – they’re interpreting what the policy says.
The Supreme Court also clarified that:
- Development plan policies should be interpreted objectively in accordance with the language used, read in its proper context
- But the policies cannot be construed as if they were statutory or contractual provisions
- If the decision-maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law
- Some policies are framed in language whose application to a given set of facts requires the exercise of judgment, which can only be challenged on the ground that it is irrational or perverse
And “planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean”.
On March 21, 2012