Planning permission: Humpty Dumpty and the sequential approach — Tesco v Dundee

It is well established that, when determining planning applications, planning authorities must proceed upon a proper understanding of the development plan. This briefing looks at the key points arising from a recent UK Supreme Court decision on this question and the potential for that decision to drive a coach and horses through the meaning of “suitable” in the context of the sequential approach.

Asda was granted planning permission for an out of town superstore in Dundee. The planning authority, Dundee City Council, decided that whilst granting permission was not in accordance with the development plan, it was justified by other material considerations.

Tesco argued that the Council misunderstood one of the policies in the development plan, and that this impaired the Council’s justification for a departure from the development plan. The policy in question was the sequential test for out-of-town retail developments, and the suspect phrase was, “no suitable site is available”. Whilst Tesco argued the word “suitable” meant “suitable for meeting identified deficiencies in the retail provision in the area”, the Council said it simply meant “suitable for the development proposed by the applicant”…

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