Warners Retail (Moreton) Ltd v Cotswold District Council & Ors

This appeal concerns the interpretation and application of the “sequential test” for proposed retail development in paragraph 24 of the National Planning Policy Framework (“the NPPF”) and the guidance on the suitability of sites for such development in the “Planning for Town Centres – Practice guidance on need, impact and the sequential approach” (“the practice guidance”), issued by the Government in December 2009.

The appeal is against the order of Supperstone J., dated 22 July 2014, by which he dismissed a claim for judicial review brought by the appellant, Warners Retail (Moreton) Ltd. (“Warners”), challenging the outline planning permission granted by the first respondent, Cotswold District Council (“the council”) on 12 December 2013 for the development of a food store on land at Fosseway Farm on Stow Road, Moreton-in-Marsh in Gloucestershire. The applicants for planning permission were the second and third respondents, Minton Health Care Ltd. and Glamar Leisure Ltd. (“Minton”). The fourth respondent, Sainsbury’s Supermarkets Ltd. (“Sainsbury”), had made an application for a similar development on land on the opposite side of Stow Road, which the council refused on 11 September 2013. Warners own a food store, operated by Budgens, at the northern end of the High Street in Moreton-in-Marsh. They objected to both Minton’s and Sainsbury’s proposals.

Permission to appeal was initially refused on the papers by Sullivan L.J. on 7 October 2014, but was subsequently granted by Lewison L.J., after an oral hearing on 27 November 2014.

Lewison L.J. granted permission on only one ground, which relates to the council’s interpretation and application of the “sequential test” for proposed retail development in the NPPF and the practice guidance. The issue for us is whether the relevant policy and guidance were correctly understood and lawfully applied. Supperstone J. concluded that they were.

Minton’s site is about 500 metres from the “commercial centre” of Moreton-in-Marsh as defined in the Cotswold District Local Plan (adopted by the council in 2006). The “commercial centre” is effectively the “town centre” for the purposes of national planning policy and guidance for retail development. Minton’s proposal first came before the council’s Planning Committee at its meeting on 11 September 2013. At that meeting the committee resolved that it be approved. It was brought back to the committee at a meeting on 11 December 2013 so that further objections by Warners and others could be considered. At that meeting the committee resolved that outline planning permission be granted. In its decision notice dated 12 December 2013 the council acknowledged that the development was contrary to Policy 19 of the local plan (which relates to “Development Outside Development Boundaries”), but stated that there were “material considerations … of sufficient merit … to justify the permitting of the development”:

“A large amount of retail expenditure is currently identified as leaking from Moreton-in-Marsh to other retail stores and commercial centres outside the town. The proposed scheme will help to claw back retail expenditure to the town and also reduce the number of vehicle trips undertaken by Moreton-in-Marsh residents to other locations. The proposal will also provide additional employment opportunities for local residents. It has been demonstrated that there are no other sequentially preferable sites available in town centre or edge of centre locations and that the application site is accessible and well connected to the Moreton-in-Marsh town centre. The proposal will not therefore have an adverse impact on the vitality and viability of the town centre. The proposal is therefore considered to have economic benefits for the town as well as reducing vehicle movements thereby reducing carbon emissions. These aspects are considered to carry significant weight and to outweigh the limited landscape and highway impacts. The proposal is therefore considered to accord with the principle of sustainable development set out in the NPPF.”

A number of conditions were imposed. Condition 5 set a number of “floorspace restrictions”, including restrictions on the gross internal floor space – to 2,736 square metres, and on the retail sales area – to 1,742 square metres. There was no restriction on the number of car parking spaces. The application for planning permission had referred to 145, but we were told that a recent submission of reserved matters showed 170.

The Budgens food store in the High Street is about 120 metres from the northern edge of the “commercial centre”. Its gross floor space is 1,458 square metres, its net retail floor space 909 square metres. In February 2013 the council granted planning permission for the extension of the store, which would result in the gross floor space being increased to 2,097 square metres and the net floor space to 1,541 square metres. There are 115 car parking spaces, which will not be added to if the extension is built. Although the extension has not yet been constructed, drainage works have been undertaken to implement the planning permission and keep it alive.

Two policies of the local plan were relevant to Minton’s proposal: Policy 19 and Policy 25 – “Vitality and Viability of Settlements”. Policy 25 says that “[development] that would harm the vitality and viability of the commercial centres will not be permitted”, and that “[proposals] for development outside the commercial centres will be subject to a sequential test and, in the case of retail development, must be supported by evidence”, first, of “need”, secondly, to show the development “will not harm vitality and viability”, and thirdly, to show that it is “accessible by a choice of means of transport”.

The NPPF was published as planning policy for England in March 2012. It superseded much of the then extant national planning policy, including Planning Policy Statement 4 – “Planning for sustainable economic growth”, published in December 2009 (“PPS4”), which had replaced Planning Policy Statement 6 – “Planning for Town Centres”, published in March 2005 (“PPS6”). PPS6 had contained a policy requiring additional retail development outside a town centre to be justified by a demonstration of the need for the development, the two main elements of need being “quantitative need” and “qualitative need” (paragraphs 2.32 to 2.40). This component of national policy was not carried forward into PPS4, or subsequently into the NPPF. But the “sequential approach” was.

In the section headed “Ensuring the vitality of town centres”, paragraph 23 of the NPPF sets out a number of requirements for local planning authorities in preparing local plans. It emphasizes the importance of “needs for retail, leisure, office and other main town centre uses [being] met in full and [not being] compromised by limited site availability”. Paragraph 24 sets out government policy for the “sequential test”. It states:

“Local planning authorities should apply a sequential test to planning applications for main town centre uses that are not in an existing centre and are not in accordance with an up-to-date Local Plan. They should require applications for main town centre uses to be located in town centres, then in edge of centre locations and only if suitable sites are not available should out of centre sites be considered. When considering edge of centre and out of centre proposals, preference should be given to accessible sites that are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale.”

In the “Glossary” in Annex 2 to the NPPF “Town centre” is defined as the “[area] defined on the local authority’s proposal map, including the primary shopping area and areas predominantly occupied by main town centre uses within or adjacent to the primary shopping area …”; “Edge of centre” as “[for] retail purposes, a location that is well connected and up to 300 metres of the primary shopping area …”; “Out of centre” as “[a] location which is not in or on the edge of a centre but not necessarily outside the urban area”; and “Out of town” as “[a] location out of centre that is outside the existing urban area”. By these definitions, it is agreed, the Budgens store is on an “edge of centre” site, and Minton’s site is “out of centre”. Paragraph 26 of the NPPF sets out the Government’s policy for “impact assessment”. It states:

“When assessing applications for retail, leisure and office development outside of town centres, which are not in accordance with an up-to-date Local Plan, local planning authorities should require an impact assessment if the development is over a proportionate, locally set floorspace threshold (if there is no locally set threshold, the default threshold is 2,500 sq m). This should include assessment of:

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the impact of the proposal on existing, committed and planned public and private investment in a centre or centres in the catchment area of the proposal; and

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the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and wider area, up to five years from the time the application is made. For major schemes where the full impact will not be realised in five years, the impact should also be assessed up to ten years from the time the application is made.”

Paragraph 27 states:

“Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors, it should be refused.”

At the time of the council’s decisions on the proposals with which we are concerned, although PPS4 had been replaced by the NPPF, the practice guidance remained extant. It was eventually superseded by the Planning Practice Guidance in March 2014.

In paragraph 6.37 the practice guidance defined relevant terms for the application of the “sequential approach” – namely “Availability”, “Suitability” and “Viability” – in the form of questions. The question of “availability” was “whether sites are available now or are likely to become available for development within a reasonable period of time (determined on the merits of a particular case, having regard to inter alia, the urgency of the need) …”. The question of “suitability” was, “with due regard to the requirements to demonstrate flexibility, whether sites are suitable to accommodate the need or demand which the proposal is intended to meet”. And the question of “viability” – not contentious in this case – was “whether there is a reasonable prospect that development will occur on the site at a particular point in time”.

The concept of a site’s “availability” was further explained in paragraphs 6.38 to 6.41. Paragraph 6.38 said that “[a] site is considered available for development, when … there are no insurmountable legal or ownership problems …”. One of the considerations here was “[the] ownership of the site, and any evidence of whether the owner(s) of the site appear willing to bring forward the site for development in question within a reasonable timescale …”. Paragraph 6.39 said that “[the] issue of availability and the sequential approach have to be considered together with the impact of development occurring in edge or out of centre locations, and the long term consequences for town centres”. Paragraph 6.41 stated:

“When promoting a proposal on a less sequentially preferable site, it will not be appropriate for a developer or retailer to dismiss a more central location on the basis that it is not available to the developer/retailer in question.”

The concept of “suitability” was further explained in paragraphs 6.42 to 6.46. Paragraph 6.42 stated:

“When judging the suitability of a site it is necessary to have a proper understanding of scale and form of development needed, and what aspect(s) of the need are intended to be met by the site(s). It is not necessary to demonstrate that a potential town centre or edge of centre site can accommodate precisely the scale and form of development being proposed, but rather to consider what contribution more central sites are able to make, either individually or collectively, to meeting the same requirements.”

Paragraph 6.44 acknowledged that “[like] other aspects of the sequential approach, the question of the suitability of alternative sites requires a balanced judgment based on the specific circumstances of the case [and] the site in question”. Paragraph 6.45 stated:

“Those promoting less central sites should not discount more central locations as unsuitable unless they are able to clearly demonstrate that a development on the site in question would be unable to satisfactorily meet the need/demand their proposal is intended to serve. They should not reject sites based on self imposed requirements or preferences of a single operator, or without demonstrating a serious attempt to overcome any identified constraints.”

Paragraph 6.46 said that if local planning authorities suggested “alternative, more central sites as being sequentially preferable, they should be satisfied that the alternatives are genuinely likely to be suitable for the scale/form of town centre uses proposed …”.

Among the policies in PPS4 to which those passages of the practice guidance related was policy EC15.1. That policy set out a number of requirements for local planning authorities when “considering sequential assessments”. These included the requirement to “ensure that in considering sites in or on the edge of existing centres, developers and operators have demonstrated flexibility” in terms of “scale”, “format”, “car parking provision” and “the scope for disaggregating specific parts of a retail … development …”.

On 18 June 2013, Warners’ planning consultants, GR Planning Consultancy Ltd., wrote to the council on their behalf, objecting to both Minton’s and Sainsbury’s proposals. Among the points they made in their letter was that neither of the “sequential assessments” carried out for those proposals had considered the Budgens site, “even though it is in the preferred location sequentially”. They said the extension to the Budgens store, if implemented, would “clawback [sic] more ‘main’ food spend”, and “significantly enhance the retention of ‘main’ food spend within Moreton”. But if one of these two proposals were granted planning permission, Budgens would have to respond to the loss of trade “possibly by downsizing or even closing and in those circumstances any extension would clearly be completely unviable”.

In July 2013 the council’s consultants, Peter Brett Associates LLP, produced a report reviewing the “Retail Statement” prepared by GVA Grimley to support Minton’s application for planning permission. In section 3 of the report, “Sequential Assessment”, they said Minton had “demonstrated a suitable level of flexibility …” (paragraph 3.2.2). They said they “would have expected the applicant to have tested the potential to develop a new store adjacent to the existing Budgens”. But they discounted this. They said (in paragraph 3.2.4):

“… [Whilst] this site is sequentially preferable it is not considered to be available as the site has an approval for an extension and therefore there is a clear intention from the existing operator to extend their own store and would not be suitable unless the whole site is made available.”

In section 4, “Impact Assessment”, they pointed out that the permitted extension to the Budgens store was not “afforded protection” by the NPPF or by local plan policy, as the site was outside the “defined town centre boundary” in the local plan. But the council would need to take a view “as to the importance of the Budgens store and its extension to the vitality and viability of Moreton-in-Marsh town centre …” (paragraph 4.3.4).

The correspondence before the committee at its meeting on 11 September 2013 included a letter to the council from Mr Guy Warner, dated 1 September 2013, in which he said that if planning permission for another supermarket were granted Budgens’ development would “not be financially viable …”. The committee also had before it a letter dated 10 September 2013 from Antony Aspbury Associates on behalf of “Moreton Against Sainsbury’s Superstore” (“MASS”), which said that the Budgens store was “in a sequentially preferable … location”, and that it met “the ‘suitability test’ endorsed by [the decision of the Supreme Court in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13] …”. This letter also said that “the extended Warner Budgens store … would … make at least as great a contribution to the ‘claw back’ of weekly shopping spending currently ‘leaking’ to other centres as the proposed superstores …”.

The planning officer’s report to the Planning Committee for its meeting on 11 September 2013 recommended that planning permission be granted for Minton’s proposal.

In the section of the report headed “Planning Policy and Guidance in Relation to Out of Town Centre Retail Development” the officer quoted and explained the policies in paragraphs 24, 26 and 27 of the NPPF. He also referred to the practice guidance, which, he said, “supports a sequential approach to site selection and advises that ‘only if town centre or edge of centre sites are not available will out of centre locations be likely to be appropriate in policy terms, provided that they are well served by alternative means of transport, and are acceptable in all other respects including impact’”. In the light of government policy in paragraph 24 of the NPPF, the “general presumption against such development” in Policy 19 of the local plan was “considered to carry little weight in this instance”. And because the NPPF no longer required applicants to provide “evidence of need when bringing forward applications for new retail development outside town centres”, it said that the “need” criterion in Policy 25 “no longer carries weight when considering this proposal”.

In the section headed “(a) Impact on Vitality and Viability of Moreton-in-Marsh Town Centre”, the officer said that the May 2013 Addendum to the Cotswold Economy Study had shown “only about 62% of convenience goods expenditure was retained in the Stow-on-the-Wold/Moreton-in-Marsh area”. So it was “evident that a significant proportion of convenience [goods] retail expenditure is currently leaking from both the town centre and from the wider town as a whole”.

The report then went on to deal with the sequential approach, in this way:

“In accordance with the requirements set out in the NPPF and [the practice guidance] the applicant has undertaken a sequential assessment of the town to identify whether any suitable sites are available as an alternative to the current application site. A total of 7 town centre, edge of centre and out of centre sites were considered. In accordance with the aforementioned guidance the applicant sought to be flexible in their approach. Their sequential assessment looked at sites that were capable of accommodating a smaller store than that currently proposed. A minimum net retail sales area of 1000 sq metres (1500 sq metres gross) and 80 car parking spaces was used by the applicant as a guide. Such development would require a minimum site area of 0.9 hectares in comparison to the 2.3 hectares covered by the current application site. It is evident that the applicant has considered sites that are noticeably smaller than the current development site. They have therefore not just focused their search on large development sites comparable to the current application site. It is considered that the applicant has demonstrated a suitable level of flexibility when considering alternative sites. The Supreme Court judgment in [Tesco v Dundee City Council] clarifies that suitability has to be read in the context of ‘suitable for the development proposed by the applicant’ rather than ‘suitable for meeting identified deficiencies in retail provision in the area’. This approach has recently been re-iterated in an appeal decision for retail development in Sheffield (APP/J4423/A/13/2189893). In the case of Moreton-in-Marsh the alternative sites that were considered such as on New Road next to the railway station, the former hospital on Hospital Road, land between Fosseway Avenue and Jameson Crescent and at the Fire Service College were either too small, suffering from poor accessibility or located further from the town centre than the application site. Land at Budgens already benefits from planning permission for retail development in the form of an extension to the existing store.

Overall, it is considered that there are no other suitable town centre or edge of centre sites that could accommodate a foodstore of the kind proposed even at a reduced size. In addition, there are no other out of centre sites that are more accessible and better connected to the town centre. In this respect the site is considered to accord with the guidance in Paragraph 24 of the NPPF.”

Minton’s retail impact assessment had indicated that the turnover of the Budgens store could be reduced by about one third, and this, said the officer would be “a sizeable impact”. Though it was “likely that there will be reduction in linked trips between Budgens and Moreton-in-Marsh town centre”, the proposed development had “the potential to offset this loss by encouraging greater numbers of people to shop within the town rather than travelling further afield”. The officer then said this:

“The approved extension for Budgens has been taken into consideration as part of the retail impact assessment. The potential cumulative impact of the extension and the two stores proposed at Fosseway Farm and to the east of Stow Road has been considered by [Peter Brett Associates]. Their assessment is that the town could accommodate one additional foodstore of the size proposed in addition to the approved extension at Budgens without having an adverse impact on the vitality and viability of Moreton-in-Marsh town centre. The granting of permission for both the Fosseway Farm and Sainsbury’s application would be likely to have an unacceptable adverse impact on the vitality and viability of the Moreton-in-Marsh commercial centre and would contravene Paragraph 27 of the NPPF.

… Overall, it is considered that the application site does represent an accessible location that is well connected to the town centre and as such accords with the aspirations of Paragraph 24 of the NPPF.

The impact of the proposal on planned public and private investment in Moreton-in-Marsh commercial centre and centres in the catchment area of the proposal has been considered. No such investment has been identified in these areas. The approved extension of Budgens is noted. However, as the store is located outside a commercial centre it does not benefit from policy protection in the context of bullet point 1 of Paragraph 26 of the NPPF.

… [It] is … noted that here is a high level of retail expenditure currently leaking from the town. It is considered that the introduction of the proposed store would not simply draw trade from Budgens but from further afield. Consequently, it is considered that there is potential for the two stores to co-exist and that the creation of the new jobs would not simply result in a movement of jobs from one side of the town to another. It is considered that the proposal would result in a net employment gain for the town.

The proposal has been brought forward in order to address a leakage of convenience retail expenditure from Moreton-in-Marsh. The siting of a store within another settlement would not address this issue. The current proposal therefore has the potential to reduce vehicle trips out of the town and encourage local residents to spend their money within the environs of the town rather than further afield. The independent retail assessment of the proposal indicates that the development could be undertaken without having an adverse impact on the vitality and viability of the commercial centre of Moreton-in-Marsh or other nearby centres. The proposal is therefore considered to accord with Local Plan Policy 25 and the guidance set out in Paragraphs 23-27 of the NPPF.”

Section 9 of the report, its “Conclusion”, summarized the officer’s advice, including that it had been “demonstrated that there are no other sequentially preferable sites available in town centre or edge of centre locations”.

The minutes of the committee meeting on 11 September 2013 record the discussion of the proposal, in the course of which the officer confirmed that Peter Brett Associates had advised that “… there were no other sequentially suitable sites available”.

The further correspondence before the committee when it met on 11 December 2013 included a further letter to the council from Antony Aspbury Associates, dated 10 December 2013, on behalf of MASS and now also Warners. Antony Aspbury Associates said the extended Budgens store would “just as effectively claw back spending that leaks outside the catchment as the proposed store”. But the impact of the new store proposed by Minton on the turnover of the Budgens store would be “so great as to make the construction of the extension commercially unviable” and “put the continued operation of even the existing store in real jeopardy”. If the Budgens store did close, “the linked trips phenomenon would disappear altogether and an [indispensible] anchor to the Town Centre would be lost entirely”.

In a short further report the officer maintained his recommendation that planning permission be granted. He confirmed his previous advice to the committee on the scope for Minton’s proposed store in addition to the extended Budgens store (in paragraph 13):

“Correspondence received on behalf of Budgens during the course of the application was forwarded to the Council’s retail consultant. The consultant confirmed that the town could accommodate one additional foodstore of the size proposed in addition to the approved extension at Budgens, without having an adverse impact on the vitality and viability of the town centre.”

He also reminded the members of the advice in his previous report that there was “likely to be a loss of linked trips between Budgens and Moreton-in-Marsh town centre”, but that “in the context of the planning balance, this is not considered to be sufficient to outweigh the other benefits arising from the proposed development” (paragraph 15).

After discussing the planning merits of the proposal in the light of the further representations, the committee resolved by a majority of 12 to one that planning permission be granted.

For Warners, Mr Rupert Warren Q.C. submitted that, because of errors in the advice it was given, the committee misdirected itself in its understanding and application of NPPF policy for the sequential test and the corresponding parts of the practice guidance. In particular, Mr Warren submitted, the committee was not invited to address the basic questions arising from paragraphs 6.41, 6.42 and 6.45 of the practice guidance. The site of the Budgens store was clearly sequentially preferable to Minton’s. As for “availability”, the members should have been advised that the Budgens site was not to be excluded from consideration simply because it was not available to Minton (paragraph 6.41 of the practice guidance). On the question of “suitability” they should have been advised to consider what need was “intended to be met” by the food store proposed by Minton, what “contribution” the extended Budgens store could make “to meeting the same requirements” (paragraph 6.42), and whether Minton had shown that the extended Budgens store “would be unable to satisfactorily meet the need/demand their [i.e. Minton’s] proposal [was] intended to serve” (paragraph 6.45). Mr Warren also contended that the committee was misled by the advice it was given on the Supreme Court’s decision in Tesco v Dundee City Council and on the inspector’s decision in the Sheffield appeal. The policies in Scotland considered in Tesco v Dundee City Council were not the same as the policies in England relevant here.

Those submissions were presented to us by Mr Warren as persuasively as they could have been. But I cannot accept them. I do not think the officer’s advice to the members on the sequential test was materially deficient or misleading in any respect, or, therefore, that it rendered the council’s decision to grant planning permission for Minton’s proposal unlawful.

As Mr Meyric Lewis submitted on behalf of the council, one must remember that by the time the decision under challenge in this case was made, the practice guidance, originally promulgated to accompany PPS4, was now supporting a different statement of national planning policy in England – the NPPF – and had to be read in the light of, and consistently with that policy. In his judgment (at paragraph 36) Supperstone J. rightly cautioned against a mechanical application of the practice guidance, echoing the warning in Turner J.’s judgment in Telford and Wrekin Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 1638 (Admin) (at paragraph 20) that a decision-maker is not constrained to interpret the provisions of the practice guidance “in a rigid, mechanistic fashion” (see also the judgment of Sullivan L.J. in the Court of Appeal in that case, [2014] EWCA Civ 507, at paragraphs 31 to 59). The policies for retail development in the NPPF do not require an applicant for planning permission for such development outside a town centre to demonstrate a need for it. The need test in government policy for retail development proposals was withdrawn when PPS4 was published in place of PPS6 in December 2009, and not re-introduced when the NPPF was published in March 2012. The references to “need” in the passages of the practice guidance elaborating the sequential approach – in particular explaining how the suitability of more central sites is to be judged – cannot, therefore, be read as regenerating a test of need. They did not.

Under paragraph 24 of the NPPF both applicants and local planning authorities are expected to “demonstrate flexibility on issues such as format and scale”. What bounds can reasonably be set on an applicant’s preference and intentions as to “format and scale” in any individual case will always, and necessarily, depend on the facts and circumstances of that particular case. The policy in paragraph 24 of the NPPF should not be seen as prescriptive in this respect. It plainly is not.

Flexibility was also called for under the practice guidance, in somewhat more elaborate terms. It is very clear from paragraphs 6.42 and 6.45 that the identification of a relevant “need” or “need/demand” for the purposes of the sequential approach was not intended to be merely a self-serving exercise on the part of the developer himself. As paragraph 6.45 made plain, sites were not to be rejected on the strength of the “self imposed requirements or preferences of a single operator …”. Otherwise, the sequential approach would likely become a merely self-fulfilling activity, divorced from the public interest. It is also clear, however, that the authors of the practice guidance regarded the developer’s own intentions as generally having some bearing on the application of the sequential test. One sees this, for example, in paragraph 6.37 – in the reference to “the need or demand which the proposal is intended to meet”; in paragraph 6.42 – in the concept of “what aspect(s) of the need are intended to be met by the site(s)”, the recognition that a more central site does not have to be able to “accommodate precisely the scale and form of development being proposed”, and the need to consider what contribution such a site might make to “meeting the same requirements”; in paragraph 6.45 – in the reference to the “need/demand [the applicant’s] proposal is intended to serve”; and also in paragraph 6.46 – in the reference to “the scale/form of town centre uses proposed …” (my emphasis).

In this case there can, I think, be no complaint about the legal soundness of the advice given to the council’s Planning Committee on the question of need. The committee was reminded of the absence of a need test in government policy, and advised that the criterion relating to need in Policy 25 of the local plan no longer carried weight. But, as the September 2013 committee report recognized, this was not to say that the need for additional food shopping facilities in Moreton-in-Marsh was now immaterial. And, as the committee was told, there was, in fact, a distinct need to provide additional “convenience goods” shopping facilities in the town. It was a considerable need, and it was pressing. The proportion of expenditure on convenience goods going to food stores elsewhere – about 38% of the total – was not surprisingly described in the September 2013 committee report as “significant”. Existing food stores in Moreton-in-Marsh and Stow-on-the-Wold, including the Budgens store, were managing between them to retain only about three fifths of that spending. This was the need that the food store proposed on the Minton site was intended to deal with.

Nor, in my view, can it be suggested that the council failed to apply the sequential test with appropriate flexibility. No criticism can properly be made of the planning judgment underlying the officer’s advice in the September 2013 committee report that “the applicant has demonstrated a suitable level of flexibility when considering alternative sites”. It seems to me that the committee could reasonably conclude on the material before it – and did – that Minton had not imposed inflexible requirements of their own on the scale and format of the hypothetical store, or on the number of car parking spaces that store would have, in testing the suitability of the sites they considered.

The only site said to have been a sequentially preferable alternative to Minton’s is the site of the Budgens store. It is not suggested that that site could have accommodated an additional food store of the kind assumed by Minton for the purposes of the sequential test, even if the permitted extension to the Budgens store were not built. In essence, Mr Warren’s argument was that the members should have asked themselves, but did not, whether the extended Budgens store could meet the identified need, and, if the answer was that it could, should have found that Minton’s proposal for an additional food store must fail the sequential test because there was no need for it.

In my view that argument is untenable. It does not reflect the national planning policy and guidance bearing upon the council’s decision on the Minton proposal. In effect, it seeks to restore to national planning policy for retail development a test of need that has not been there since PPS4 replaced PPS6 in December 2009. That, of course, is not possible. Minton’s proposal did not have to be justified by a demonstration of need. As Mr Warren accepted, if the permitted extension to the Budgens store had in fact been built by the time the Minton’s application came before the committee, national policy and guidance would not have supported a decision to reject the Minton proposal on the ground that there was no need for it. If there were no available and suitable sequentially preferable site, and if no objection arose on the ground of unacceptable impact on the town centre or any other relevant planning ground, planning permission could properly have been granted.

It seems implicit in Mr Warren’s submissions that the ability of the Minton proposal to pass the sequential test depended, and still does, on a commercial decision made by Budgens – whether to extend its store or not. Logically, on Mr Warren’s argument, if Budgens decided not to build the extension – or put off building it – they would have a valid objection to any competitive proposal on a site such as Minton’s on the grounds that that other proposal failed the sequential test. They would gain protection for their store that planning policy does not give it. This might, of course, be a commercially attractive position for Budgens, but it would leave the need for additional food shopping facilities in Moreton-in-Marsh unmet. I find it hard to reconcile that scenario with government policy in the NPPF, which speaks in paragraph 23 of the importance of the need for retail development being “met in full”. It is also hard to reconcile with what the practice guidance says about the sequential approach, which was also based on the principle of such needs having to be met.

As Mr Lewis submitted, the premise in Mr Warren’s argument – that there was scope in Moreton-in-Marsh for only one food store of the format and scale proposed by Minton – is mistaken. The officer’s analysis was based on the assumption that the Budgens store would continue to trade, that the permitted extension would be constructed and that the extended store would be viable. The assumption that the extension to the Budgens store would be built was not a guess. It was a matter of planning judgment, made in the light of the assessment carried out for the council by its consultants, Peter Brett Associates, and the objections to which I have referred. In the September 2013 report the officer referred to the fact that the site of the Budgens store “already benefits from planning permission for retail development in the form of an extension to the existing store”, without doubting that Budgens would go ahead with that development. His consideration of the likely impact of Minton’s proposed food store on the vitality and viability of the town centre adopted Peter Brett Associates’ advice that “the town could accommodate one additional foodstore of the size proposed in addition to the approved extension at Budgens without having an adverse impact on the vitality and viability of Moreton-in-Marsh town centre” (my emphasis). And he accepted the “potential for the two stores to co-exist”. In the December 2013 report, having considered the further correspondence from objectors, the officer repeated this advice, again with the support of Peter Brett Associates.

On a fair reading of the two committee reports as a whole, the sequential test was, in my view, properly understood and lawfully applied, in accordance with government policy in paragraph 24 of the NPPF and the relevant parts of the practice guidance dealing with the three considerations of “availability”, “suitability” and “viability”. The officer did not have to spell out what is said about “availability” and “suitability” in paragraphs 6.37 to 6.46 of the practice guidance. The guidance in those paragraphs clearly informed the advice he gave.

The officer did not fall into the error of disregarding the site of the Budgens store because it was not available to Minton. In the September 2013 report he took that site into account, reminding the committee that planning permission had been granted for the extension of the existing store. As Peter Brett Associates had said in their July 2013 report (at paragraph 3.2.4), the site of the Budgens store was “not considered to be available as the site has an approval for an extension and … there is a clear intention from the existing operator to extend their own store and [it] would not be suitable unless the whole site is made available”. All of this was true. The officer plainly had it mind when he advised the committee that there were “no suitable town centre or edge of centre sites that could accommodate a foodstore of the kind proposed even at a reduced size”. This advice was clear, and quite unequivocal. So was the officer’s conclusion that the Minton proposal complied with the policy in paragraph 24 of the NPPF. As an exercise of planning judgment, his conclusions on the sequential test are, I believe, unassailable (see the first instance judgment in R. (on the application of CBRE Lionbrook (General Partners) Ltd.) v Rugby Borough Council [2014] EWHC 646 (Admin), at paragraph 164).

The court will usually be cautious about evidence clarifying advice given by a planning officer to a committee, on which the committee relied in making the challenged decision. In this case, however, I think the evidence of the council’s Senior Planning Officer, Mr Martin Perks, who was responsible for preparing the two reports to the Planning Committee, provides a fair summary of the advice the members were given on the sequential test. In his witness statement of 22 April 2014 Mr Perks says this (in paragraph 6):

“… The Retail Impact Assessment (RIA) [submitted with the application for planning permission] indicated that the town could accommodate a further foodstore of the size proposed in addition to the extant Budgens scheme without having an adverse impact on the vitality and viability of Moreton-in-Marsh commercial centre. The RIA was independently assessed. The Budgens site was not available for further development over and above their approved scheme. Consequently, it could not accommodate the proposed Minton development. There was therefore a need to look further afield. The applicant showed flexibility in their retail model when considering alternative sites. The Fosseway Farm site was the closest to the commercial centre. The claimant appears to be coming from a standpoint where there is only a requirement for one foodstore in the town ([i.e] the extended Budgens). However, the independently assessed RIA clearly shows that the town can accommodate a further store.”

I come finally to Mr Warren’s submission that the officer was wrong to rely on the interpretation of policies for the sequential approach in Scotland stated by the Supreme Court in its decision in Tesco v Dundee City Council. I cannot accept this submission. In my view, the policies considered by the Supreme Court in Tesco v Dundee City Council were sufficiently similar to the policy and guidance in play in this case to justify the advice the officer gave.

The two development plan policies with which the Supreme Court was concerned in Tesco v Dundee City Council were a structure plan policy (Retailing Policy 4 of the Dundee and Angus Structure Plan) and a local plan policy (Policy 45 of the Dundee Local Plan). Both of those policies contained what might be described as the traditional and familiar sequential approach to proposals for new retail development. The relevant text in both the structure plan and the local plan referred to National Planning Policy Guidance 8 – “Town Centres and Retailing”, as revised in 1998 (“NPPG8”), paragraphs 13 and 14 of which, under the heading “Sequential Approach”, stated:

“13.

In support of town centres as the first choice, the Government recognises that the application of the sequential approach requires flexibility and realism from developers and retailers as well as planning authorities. In preparing their proposals developers and retailers should have regard to the format, design, scale of the development, and the amount of car parking in relation to the circumstances of the particular town centre. …

14.

Planning authorities should also be responsive to the needs of retailers and other town centre businesses. In consultation with the private sector, they should assist in identifying sites in the town centre which could be suitable and viable, for example, in terms of size and siting for the proposed use, and are likely to become available in a reasonable time … .”

In his judgment, with which Lord Brown, Lord Kerr and Lord Dyson agreed, Lord Reed, subject to one qualification, favoured the respondents’ interpretation of the word “suitable” in the development plan policies, which was “suitable for the development proposed by the applicant” – in preference to the appellants’ interpretation, which was “suitable for meeting identified deficiencies in retail provision in the area” (paragraph 24). As he went on to explain (in paragraphs 28 and 29) the qualification to this understanding of the policies lay in the requirement for “flexibility and realism” in paragraph 13 of the NPPF. In that case the requirement had been met because “a flexible approach” had been taken by the interveners; they “did not confine their assessment to sites which could accommodate the development in the precise form in which it had been designed, but examined sites which could accommodate a smaller development and a more restricted range of retailing” (paragraph 30). Agreeing with Lord Reed, Lord Hope (in paragraph 38 of his judgment), observed that the “sequential approach criteria” had been “designed for use in the real world in which developers wish to operate, not some artificial world in which they have no interest doing so”.

In the context of the policy for the sequential approach as it was in PPS4 and in the practice guidance, the Supreme Court’s observations on the approach to be taken under the Scottish policies it had to consider in Tesco v Dundee City Council were acknowledged by Hickinbottom J. in R. (on the application of Zurich Assurance Ltd., trading as Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin) (at paragraphs 53 to 64). Having noted those observations Hickinbottom J. found that in the particular circumstances of that case, under the policy regime applicable to it, the local planning authority’s committee was entitled to conclude, on the material before it, that “the applicant had demonstrated flexibility in terms of the sequential approach so far as the possible disaggregation of the Marks & Spencer operation is concerned” (paragraph 62).

I think one must be careful here. The Government’s policy for the sequential approach in paragraph 24 of the NPPF and the practice guidance are not in all respects the same as the NPPG8 and development plan policies construed by the Supreme Court in Tesco v Dundee City Council. They are similar in broad intent, but they are not in identical terms. An obvious similarity, though the language is different, lies in the concept of “flexibility”. The requirement in the final sentence of paragraph 24 of the NPPF for both applicants and local planning authorities to “demonstrate flexibility on issues such as format and scale”, as amplified by the advice in paragraphs 6.42 to 6.46 of the practice guidance, bears some similarity to the requirements for “flexibility and realism” on the part of both developers and retailers and planning authorities in paragraph 13 of NPPG8 and the requirement for planning authorities to be responsive to the needs for retailers in paragraph 14. That much is clear. But one should not simply read across the Supreme Court’s interpretation of the Scottish policies in Tesco v Dundee City Council as if it were the construction of the differently worded policy in paragraph 24 of the NPPF and the corresponding parts of the practice guidance. It is not.

The question we have to consider, however, is not one of comparative policy construction. It is whether the advice the officer gave in the light of the Supreme Court’s decision in Tesco v Dundee City Council was such as to vitiate the council’s decision. I am in no doubt that it was not. As I read what the officer said, he went no further than finding some support in Lord’s Reed’s observations on the concept of “suitability” in the Scottish policies for the advice he was giving on this matter in the context of the policy in paragraph 24 of the NPPF and paragraphs 6.42 to 6.46 of the practice guidance, and having regard to the scale and format of store assumed by Minton when considering alternative sites “noticeably smaller than the current development site”. His own advice – that Minton had “demonstrated a suitable level of flexibility when considering alternative sites” – was firmly based on the policy and guidance he was actually applying, and I do not think it was distorted by what he took from the judgments in Tesco v Dundee City Council. I am satisfied that he proceeded on a true interpretation of the relevant policy and guidance, and applied both policy and guidance reasonably and lawfully to the facts and circumstances of the alternative sites he was considering, including the Budgens site.

The same may also be said of the officer’s reference in the same paragraph of his report to the inspector’s decision on the appeal in Sheffield, in which, he told the committee, the Supreme Court’s “approach [in Tesco v Dundee City Council had] recently been re-iterated”. The question here, once again, is whether the officer’s comment on that decision led the committee astray. I do not think it did. The members were not shown the inspector’s decision letter, but we were. When dealing with the question of “Suitability” in his application of the sequential approach, the inspector referred to the policy in paragraph 24 of the NPPF and to the practice guidance (paragraph 34). He said he had “had regard” to the Supreme Court’s decision in Tesco v Dundee City Council and to the first instance decision in Zurich Assurance Ltd. (paragraph 35). His conclusion was that the suggested alternative site had been shown to be unsuitable for “the development [the retailer] was seeking to progress”, and that “to expect it to operate from such a site would clearly run counter to the principles in the Supreme Court ruling referred to above” (paragraph 53). In the light of the relevant passages in the inspector’s decision letter, I see nothing wrong with what the officer said about it in his report. He relied on that decision only as a recent example of the sequential approach being applied, under the policy and guidance current in England, consistently with what was said by the Supreme Court in Tesco v Dundee City Council. His comment on it was not misleading – let alone “significantly” so (see the judgment of Sullivan L.J. in R. (on the application of Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286, at paragraph 19, citing the familiar passage in the judgment of Judge L.J., as he then was, in R. v Selby District Council, ex p. Oxton Farms [1997] E.G.C.S. 60).

In short, I see no error of law in the council’s decision to grant planning permission for Minton’s proposed development, and in my view therefore the judge was clearly right to reject Warners’ challenge to it.

For the reasons I have given I would dismiss this appeal.

I agree.

I also agree.