In R (Asda Stores) v Leeds City Council (2019) EWHC 3578 (Admin), Lieven J held, considering Zurich Assurance v North Lincolnshire Council (2012) EWHC 3708, that paragraph 90 of the NPPF, which provides that planning permission for out-of-town retail developments “should” be refused where the proposed development was likely to have significant adverse impact on town centre vitality and viability, did not create a presumption in favour of refusing such developments. It was still for the decision-maker to weigh the competing material considerations. Paragraph 90 did not create a presumption in favour of refusal. The NPPF had to be read as a whole, and in a way that made sense of the document as a whole. It was notable that, in relation to sustainable development, the NPPF used the specific term “presumption”, set out a structure by which that presumption was to be applied, indicated the particular circumstances it could be outweighed, and explained how it worked in particular types of case. This created a “tilted balance”, which gave effect to the presumption. By contrast, the word “presumption” was not used in paragraph 90, there was no suggestion of a tilted balance, and there was no attempt to tell decision-makers that they should put more weight on one factor rather than another. Although there were paragraphs in the NPPF which indicated, as a matter of policy, that particular weight should be given to particular matters, paragraph 90 was not one of them. Thus, the retailer’s argument could not be correct on a textual analysis of the NPPF as a whole. Moreover, the approach for which it contended would create a legal minefield for decision-makers, with potentially different presumptions pulling in different directions. That was precisely the type of excessive legalism infecting the planning system which the decision in Mansell v Tonbridge and Malling BC [2017] EWCA Civ 1314 warned Courts to be vigilant against.

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