Out-of-Town Retail Developments – High Court Clarifies Planning Policy

30th March 2020 by

Planning policy discourages out-of-town retail developments that would harm the vitality and viability of existing town centre shopping areas. The precise extent of that discouragement was the focus of an important High Court ruling.

Contrary to the advice of one of its own planning officers, a local authority granted consent for a retail-led edge-of-town development. The officer had advised that the project would have a significant adverse impact on the town’s central shopping area. Councillors, however, concluded that that objection was outweighed by the economic benefits of the scheme, particularly in creating new jobs.

A supermarket chain which operated a store on an immediately adjoining site mounted a judicial review challenge to that decision. Councillors were alleged to have misunderstood and misapplied Paragraph 90 of the National Planning Policy Framework 2019. That paragraph states in terms that, where out-of-town retail developments are likely to have an adverse impact on the vitality and viability of central shopping areas, planning permission ‘should be refused’.

Ruling on the matter, the Court noted that the confusing wording of Paragraph 90 appeared to set a trap for decision-makers. However, councillors were fully aware of the relevant policy and were entitled to depart from it if there were rational reasons for doing so. The paragraph did not have the force of a legal presumption against out-of-town developments that might harm existing retail centres and there was thus no obligation on councillors to apply a tilted balance against the proposals.

Councillors were well aware, and did not dispute, that the development would have a significant adverse effect on the town centre, but they had given clear and adequate reasons for departing from the officer’s recommendation. The planning permission was upheld.

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