Consultants working for Jempson's have raised the prospect of litigation if Aldi’s plan to build a food store in Rye is approved. In a letter sent to Rother District Council dated September 12, Peacock & Smith (P&S) say failure to refuse the planning application could see “any approval being at risk of a legal challenge”.
The letter says the recent Nexus report for RDC found the Aldi proposal “has the potential to provide a significant adverse impact upon the health of the town centre”, with P&S pointing out that paragraph 95 of the National Planning Policy Framework (NPPF) directs refusal where an application “is likely to have a significant adverse impact on one or more of the considerations in Paragraph 94”.
However, Peacock & Smith managing director Chris Creighton said the warning of a legal challenge — possibly involving a judicial review — was not as stark as it sounded, but that “it’s one option available” to his client Jempson's, who would evaluate the planning process and decide what its next steps would be.
The planning position is not clear-cut. Paragraph 94 of the NPPF grants a degree of leeway to planning authorities by stating that any assessment of the impact on “town centre vitality and viability” has to include “local consumer choice and trade in the town centre and the wider retail catchment (as applicable to the scale and nature of the scheme)”.
Given that Jempson's operates the only supermarket of any size in Rye, consumer choice will be a key consideration for Rother District Council’s planning team.
The independent Nexus report concluded that the council may choose to weigh various factors differently and take other considerations into account — such as the need for an improved food store offer, the Rye Neighbourhood Plan and public support for a second supermarket in Rye, as well as a reduction in trips to supermarkets outside Rye.
Rules on bringing a judicial review are very strict and any claim must be submitted within legal time limits. The “presumption in favour of development” so often quoted in planning is more accurately a presumption in favour of the development plan for a locality — unless material planning considerations (MPCs) indicate otherwise.
Rye Neighbourhood Plan’s latest iteration says the “H6” site for the west side of Winchelsea Road where Aldi would be located (along with 16 private homes and retirement accommodation) should be allocated for mixed use development and “Class E” employment, which includes retail and business uses. The plan also advocates strong measures to mitigate flood risk in the era of climate change.
Previous experience suggests that RDC’s planning division will carefully weigh the pros and cons of any development and will fully evaluate MPCs before reaching a decision on the Winchelsea Road development.
In the year to June 30, 2024, Jempson's Supermarkets Ltd reported a net loss of £842,238 on turnover of £35.7 million. The company employed 231 staff in all its businesses with the petrol station in Peasmarsh producing a significant 23% of its overall turnover.
In his strategic report for the year, owner Stephen Jempson conceded that the principal risk to the company “comes from competition from national supermarket chains”.
