Supermarket chain successfully petitions for reduction of planning decision allowing rival to build bigger Perth store

About this case:

• Citation:
  [2024] CSOH 46
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Richardson

Perth and Kinross Council granted the application by Aldi Stores Ltd on 31 May 2023 for an 1,800 square metre supermarket intended to replace a smaller store in the city. The petitioner argued that such a development in the area proposed was not supported by the national planning framework and the respondent had failed to consider the size of the development appropriately.

The petition was heard by Lord Richardson. J Findlay KC and Garrity, advocate, appeared for the petitioner and Armstrong KC for the respondent.

Small scale development

On 16 February 2021, Aldi applied to build a new store at land west of Pitheavlis, intended to replace its existing store on Glasgow Road which could not be further extended as a result of physical and operational constraints. In its application, Aldi submitted that the proposed development would improve shopping provision for Perth and would help to meet qualitative and quantitative deficiencies in the catchment area. The petitioner objected to the application in December 2021.

The area in which Aldi sought to build a new store was not allocated for retail use per the current Local Development Plan. The accompanying retail impact assessment concluded that the impact on the city centre would be, essentially, very small but also recognised that the proposed development would impact on pre-existing stores within the catchment area operated by the petitioner along with other major retailers.

Following the issue of National Planning Framework 4 in 2023, a supplementary Report of Handling was issued in respect of the application. Counsel for the petitioner submitted that the respondent had erred in failing to address in this report the issue of whether the proposed development was a “small scale neighbourhood retail development”, as would be necessary to allow the application to be supported by NPF4. Looked at objectively, there was no way in which to use this classification for a development of this size.

For the respondent it was submitted that there was nothing in the policy which prohibited an out of centre development from relocating to another out of centre location. The respondent had exercised planning judgment in determining that the small addition to the size of the relocated development was the “new small scale neighbourhood retail development”.

Looked at objectively

In his decision, Lord Richardson observed: “The critical wording, for present purposes, is as follows: ‘Proposals for new small scale neighbourhood retail development will be supported where the proposed development: …’ I see no reason not to understand these words as they are stated. In order for a proposed retail development to be supported, it requires to be both small scale and a neighbourhood development.”

He continued: “The respondent argues that the wording of [that] paragraph is capable of being interpreted as encompassing a small scale addition to a pre-existing retail development. I disagree.”

Explaining the reasons for his disagreement, Lord Richardson said: “The respondent’s argument effectively disregards the word ‘neighbourhood’. That word importantly qualifies the nature of the retail developments which fall within the scope of the paragraph. When the word ‘neighbourhood’ is included, I consider that it becomes difficult, if not impossible, to interpret the phrase as encompassing only the net increase in retail development, as contended for by the respondent.”

He concluded: “I agree with the petitioner that, looked at objectively, there is no way in which a proposal for an 1800 square metre development, with 100 car parking spaces, having a catchment area of half of the city could be said to be a ‘small scale neighbourhood retail development’.”

The decision of the respondent was therefore reduced.