Tesco Stores Limited, R (on the application of) v Stockport Metropolitan Borough Council

Borough Council, the Defendant, made on 9 November 2022, to grant planningpermission to the Interested Party (Lidl) for the erection of a Lidl food store onland at 111 Wellington Road North, Heaton Norris, Stockport SK4 2QH.

Local planning authorities should apply a sequential test to planning applications for main town centre uses which are neither in an existing centre nor in accordance with an up-to-date plan. Main town centre uses should be located in town centres, then in edge of centre locations; and only if suitable sites are not available (or expected to become available within a reasonable period) should out of centre sites be considered.

When considering edge of centre and out of centre proposals, preference should be given to accessible sites which are well connected to the town centre. Applicants and local planning authorities should demonstrate flexibility on issues such as format and scale, so that opportunities to utilise suitable town centre or edge of centre sites are fully explored….

When assessing applications for retail and leisure development outside town centres, which are not in accordance with an up-to-date 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 2,500m2 of gross floorspace). This should include assessment of: a) 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 b) the impact of the proposal on town centre vitality and viability, including local consumer choice and trade in the town centre and the wider retail catchment (as applicable to the scale and nature of the scheme).

Where an application fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the considerations in paragraph 90, it should be refused.”

considered to be suitable for the proposed retail use, and sequentially preferable.First, Land at Water Street was a site which was proposed for a foodstore byAldi and was the subject of a planning application. Secondly, there was a vacantunit (Unit 4B) in the Peel Centre which had been identified as being suitable fora similarly sized foodstore.

prepared to “provide the Council with comfort that the proposal will not giverise to any significant adverse impacts on designated retail centres”.

“Having carefully reviewed Rapleys assessment and cumulative

impact, even in the event the Asda store did close, we consider that, on balance, the proposed Lidl store, when considered alongside the foodstore proposals/commitments at the Peel Centre and Water Street, is unlikely to result in a significant adverse impact on the vitality and viability of Stockport Town Centre. In coming to this conclusion, we have had regard to, inter alia: the wider role of the town centre, its vitality and viability, recent and on-going significant investment, and the likelihood of the Asda store site being redeveloped and not lying vacant for a long period of time.”

“Objections on behalf of Tesco on Retail Policy Grounds (July
21)

Our client makes representations of objection to the above application. Our clients trade from an edge-of-centre Extra format superstore on Tiviot Way. This first opened for trade in 2004. The positive retailing function of this store has since been consistently recognised by the Council including through its Local Plan. Our clients also trade from an edge-of-centre store at Burnage Lane which opened in 2005. This store provides a main and local food shopping destination for local residents and underpins the vitality and viability of the adjacent local centre. Our client has invested significantly in creating these important facilities and continues to invest today.

Our client’s objections to the planning application focus on the following considerations:

The misinterpretation of the sequential test particularly with regard to the flexibility to be applied to matters relating to format and scale in the assessment of other opportunities.

The proposed trading concept is acknowledged to lead to additional trips and travel, the effects of which have not been assessed but are likely to result in an unsustainable form of development.

The application has failed to interpret the sequential test correctly. The extent of benefit that can arise from delivering development that can enhance the vitality, viability and health of a town centre has a relationship with the extent to which flexibility has been applied to the scale and format of the operator’s development. Thus, greater flexibility should be applied where achievement of the test’s planning policy objective can be secured. The applicant’s ‘one size fits all’ approach to the application of specific formats is self-serving in the rejection of otherwise suitable sites that could secure positive outcomes for the town centre.

The applicant’s proposed trading concept relies on customers using other shops and stores to complete their food shopping activity. Since the majority of trips are assessed as being diverted from full range stores (see Table 6B at Appendix 3 of the May 2021 Addendum Retail Statement) there will likely be markedincreases in the overall number of trips, travel and mileageundertaken for shopping. These effects have not been assessedin the application’s Transport Assessment. They are likely tolead to an unsustainable form of development.

For these reasons, the application should be refused.

Further Objections on behalf of Tesco on Retail Policy Grounds(October 22)

We have particular concerns as to the content of the Officer’sReport in terms of the application of the sequential test.

The sequential test is set out at paragraph 87 of the NPPF whichrequires that “Main town centre uses should be located in towncentres, then in edge of centre locations; and only if suitable sitesare not available (or expected to become available within areasonable period) should out of centre sites be considered.”

Of particular relevance in the determination of this application isthe matter of availability and the intended occupier of twosequentially preferable sites, Unit 4B in the Peel Centre and theWater Street site. The Council’s independent retail advisor,Alder King, considered that both of these sites were not availablebecause on the former, “Peel have confirmed to us that they arein legals with another food operator for the unit” and on the latterthat “a legally binding agreement has been entered into betweenMorbaine and Aldi, and therefore, if planning permission isgranted, Aldi will occupy the store/site”. These statements arethen affirmed within the Analysis section of the Officer’s Report.

The Judgment in Aldergate Properties Ltd v Mansfield DistrictCouncil considered whether the identity of a retailer was aconsideration in relation to ‘availability’. Paragraph 42 of theJudgment confirms that “A town centre site may be owned by aretailer already, to use itself for retailing, who is not going tomake it available to another retailer. It is plainly available forretailing, though only to one retailer. That does not mean thatanother retailer can thus satisfy the sequential test and so gostraight to sites outside the town centre. "Available" cannot meanavailable to a particular retailer but must mean available for thetype of retail use for which permission is sought.”

The conclusions therefore made by both Alder King and Officersfail to take into account the position set out in the leadingAldergate Judgment. Neither the Peel Centre nor the WaterStreet site should be considered to be unavailable because thereis an intention that they are to be occupied by a particular retailer.Aldergate is quite clear that, in this situation and for the purposesof the sequential test, these units are available - “Availablecannot mean available to a particular retailer but must mean available for the type of retail use for which permission is sought.”

This must be the case bearing in mind the intention of the sequential test is to secure retail (and other main town centre uses) in town centres, then on edge of centre site and only then in out of centre locations. The most sequentially preferable site must be developed first. In order to therefore satisfy this policy requirement, availability should be considered only in relation to whether it is available for the type of retail use sought (as set out in Aldergate). As such both the Peel Centre (due to the change of use permission) and the Water Street site are available and are sequentially preferable to the Lidl application site.

The sequential test has therefore been failed. That conflicts with saved UDP Policy TCG3 and permission should be refused. Indeed, paragraph 91 of the NPPF explains that this should be the case.

In these circumstances, could you confirm the appropriateness of the recommendation in your Report being amended to reflect this important breach of policy.

However, if officers are unwilling to take such a step, we read the relevant terms of decision making delegated to the Area Committee as not allowing them to grant or resolve to grant permission for applications that are departures from the development plan. The matter would therefore need to be reported to the Planning and Highways Regulation Committee.

“Sequential Approach

The applicants define the catchment area for the proposed discount store as commensurate with a 5 minute drive-time. The reasoning for this approach is agreed and it is considered that the catchment appears broadly reasonable and consistent with catchment areas often adopted for deep discounters in larger town/cities. This catchment includes the following centres: Stockport Town Centre; Reddish Houldsworth Square District Centre; Heaton Chapel Local Centre; Shaw Road/ Heaton Moor Road Local Centre; and Moor Top (Heaton Moor) Local Centre

Having reviewed the submission and findings of the Planning and Retail Statement, it is accepted that there are no sites or units that would be physically capable of accommodating the proposed foodstore (taking into account reasonable flexibility) in Houldsworth District Centre or the other 3 local centres. In relation to the Town Centre, the following sites have been

assessed under the sequential approach analysis… Officers agreewith this list and are aware of no other sites which requireassessment under the sequential test. The position on sequentialassessment has been an evolving one over time since theapplication was submitted. The up to date position as regards toeach of the sites above will now be considered below: …

Unit 4B, The Peel Centre

The owners of the retail park, Peel, have obtained planningpermission for the change of use of the unit from non-food retailto flexible class E use (LPA ref: DC/081762). At the time ofwriting, it is understood that Next are in the process of closingdown the store with store closure expected later in Summer 2022.The applicant's submission advises that they have been advisedby the agent representing the owner, that they are currently inlegals with a retail operator to occupy Unit 4b with the "deal"moving forward and set to conclude by the end of August. Theapplicants note that both parties have instructed solicitors,representing a commitment to moving the deal forward andsignificant costs will have been incurred by both sides and it islikely that heads of terms for a deal will have been agreedbetween the two parties in advance of this process. The Council'sretail planning advisor has subsequently discussed Unit 4B withPeel to verify the applicant's statement. The site owners haveconfirmed to us that they are in legals with another food operatorfor the unit. Accordingly, it is agreed that the unit is notavailable/available within a reasonable period for the proposeddevelopment.

Land at Water Street Site

A planning application has been submitted by the landowners,Morbaine, for a discount foodstore scheme on this site. Aldi hasconfirmed in a letter dated 25th November that they have"reached a deal in principle with Morbaine for the occupation ofthe proposed foodstore and has entered into a legally bindingagreement to this effect". Aldi state that they would relocatefrom their existing store on Newbridge Lane. Given that anagreement at an advanced stage has been entered into betweenMorbaine and Aldi, and therefore, if planning permission isgranted, Aldi will occupy the store/site, it is concluded that thesite can no longer be considered to be available/available withina reason period for the proposed development.

Sequential Approach Conclusions

In response to the objections received from Tesco on the 3rdOctober 2022, the outlined Aldergate Properties Judgment hasbeen reviewed at length and the following comments can bemade. As discussed above, it has been concluded following the

receipt of appropriate evidence that neither the Water Street site or Unit 4b at the Peel Centre are available for the retail development proposed under this application. This is because these sites have been committed to other retailers and therefore, there is no access to these sites by the applicant or any other parties. It is considered therefore, that this position is not comparable to the situation in paragraph 42 of the Aldergate judgment where a site was available to be taken up, albeit by one retailer. The alternative sites in this application have been taken up and are not 'available'. What is considered to be very important in this case is that the issue here is availability, not use. The Aldergate judgment clearly states that the identity of the applicant is not relevant to the scope of the sequential test and the issue is whether other, sequentially preferable, sites are available for the type of retail use proposed. In this case, as Unit 4B and Water Street have been taken up by other operators, then they are not "available for the type of retail use for which permission is sought." They are not available to Lidl in this case or in fact to anyone else.

Therefore, it is considered that the Council would be entitled to conclude that the sequential test has been passed, that policy TCG3 has not thereby been breached and that the proposals are not departures from the Development Plan. The main issue in the Aldergate case was whether the identity of the applicant is relevant to the scope of the sequential testing. It is concluded that nothing in this application turns on the identity of the applicant and the sequential testing has not been affected by their identity. On the basis of all the above information, officers remain satisfied that the applicant has demonstrated that the proposed development is in accordance with the sequential approach retail policy test. Therefore, for these reasons, it can be concluded that the proposals do not constitute a departure from the development plan as the necessary tests have been met.”

The Planning Court—and this court too—must always be vigilant against excessive legalism infecting the planning system. A planning decision is not akin to an adjudication made by a court: see para 50 of my judgment in the East Staffordshire case. The courts must keep in mind that the function of planning decision-making has been assigned by Parliament, not to judges, but—at local level—to elected councillors with the benefit of advice given to them by planning officers, most of whom are professional planners, and—on appeal—to the Secretary of State and his inspectors. They should remember too that the making of planning policy is not an end in itself, but a means to achieving reasonably predictable decision-making, consistent with the aims of the policy-maker. Though the interpretation of planning policy is, ultimately, a matter for the court, planning policies do not normally require intricate discussion of their meaning.”

“One thing, however, is certain, and ought to be stressed.

Planning officers and inspectors are entitled to expect that both national and local planning policy is as simply and clearly stated as it can be, and also—however well or badly a policy is expressed—that the court's interpretation of it will be straightforward, without undue or elaborate exposition. Equally, they are entitled to expect—in every case—good sense and fairness in the court's review of a planning decision, not the hypercritical approach the court is often urged to adopt.”

“Where the line is drawn between an officer's advice that issignificantly or seriously misleading—misleading in a material

way—and advice that is misleading but not significantly so will always depend on the context and circumstances in which the advice was given, and on the possible consequences of it. There will be cases in which a planning officer has inadvertently led a committee astray by making some significant error of fact (see, for example R (Loader) v Rother District Council [2017] JPL 25 ), or has plainly misdirected the members as to the meaning of a relevant policy: see, for example, R (Watermead Parish Council) v Aylesbury Vale District Council [2018] PTSR 43 . There will be others where the officer has simply failed to deal with a matter on which the committee ought to receive explicit advice if the local planning authority is to be seen to have performed its decision-making duties in accordance with the law: see, for example, R (Williams) v Powys County Council [2018] 1 WLR 439 . But unless there is some distinct and material defect in the officer's advice, the court will not interfere.”

The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others … policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.”

‘suitability’ in the application of the test. This was because, the claimant inAldergate was aggrieved, in part, by the council’s decision to grant planningpermission to a competitor (Aldi) for an out of centre retail proposal on thegrounds that the sequential test has been passed.

“Before turning to the submissions, I need to set out parts of the decision of the Supreme Court in Tesco Store Limited v Dundee City Council [2012] UKSC 13, [2012] 2 P&CR 9, because the District Council’s understanding of it was critical to its approach. Tesco challenged the grant of planning permission for a supermarket on a large industrial estate out of centre. The City Council had had to consider whether such a store met criteria in the Development Plan, the first of which was that “no suitable site is available in the first instance within and thereafter on the edge of city, town or district centres”. The City Council had interpreted “suitable” as meaning “suitable for the development proposed by the applicant”. Tesco contended that it meant “suitable for meeting the identified deficiencies in retail provision in the area”. The question of what “suitable” meant was a question for the Court, although its application was a matter of planning judgment. In addition to the Development Plan itself, the Plan incorporated Scottish Planning Policy Guidance, which was replaced in generally similar terms by other Scottish planning policy statements. Although the policy documents at issue in that case have some similarities in wording and certainly in purpose to that in the NPPF, the Court was not considering English planning policy documents.”

I have no doubt but that Mr Kolinsky’s [counsel for theclaimant] essential argument is correct, for a variety of reasons.In my judgment, “suitable” and “available” generally mean“suitable” and “available” for the broad type of developmentwhich is proposed in the application by approximate size, type,and range of goods. This incorporates the requirement forflexibility in [24] NPPF, and excludes, generally, the identity andpersonal or corporate attitudes of an individual retailer. The areaand sites covered by the sequential test search should not varyfrom applicant to applicant according to their identity, but fromapplication to application based on their content. Nothing inTesco v Dundee City Council, properly understood, holds thatthe application of the sequential test depends on the individualcorporate personality of the applicant or intended operator

I shall approach this first by construing the NPPF, withoutconsidering Tesco v Dundee City Council because the languageof the Scottish policies is to some extent different, and it did notconsider the language of the English policies relevant to thiscase. First, although the language of “suitable” and “available”features in both the plan-making policy in [23] NPPF and in thedevelopment control policy in [24] NPPF, it is inevitable thattheir focus will be different at the two stages. But there is asensible relationship between them; they are not to be readsimply in isolation from each other. The plan-making policiesplainly do focus on allocating sites to meet retail needs, as a towncentre use; but policies and site allocations have to be sound andtheir effectiveness depends on their commercial realism. Thatapproach properly involves planning for development to go tocommercially realistic allocated sites where a particular type ofdevelopment is seen as publicly beneficial, and discouragement,to the point of refusal, for such development elsewhere. Thedevelopment control policy in [24] NPPF deals with applicationsfor town centres uses out of centre where there is no up to dateDevelopment Plan embodying the policies of [23] NPPF. But thedevelopment control policy aims to achieve as much of what anup to date plan would achieve as possible. It is not intended thatthe absence of an up to date plan creates a rather different worldin which retailers could enjoy a much greater degree oftemporary freedom based on their individual commercialinterests.

Second, and related, NPPF [24] positively “requires” retailinvestment in the first place to locate in town centres rather thanelsewhere. Its thrust is rather more emphatic than policies whichadvise developers and retailers to have regard to thecircumstances of town centres, as in Tesco v Dundee [28]. It isthe purpose of the planning system to control development, thatis to permit, prevent, encourage, inhibit or limit and condition it,so that the individual private or commercial interest and the

broader public interest meet in reconciliation however uneasily.NPPF [24] cannot therefore be interpreted as requiring“suitability” and “availability” simply to be judged from theretailer’s or developer’s perspective, with a degree of flexibilityfrom the retailer, and responsiveness from the authority.

Third, and of critical importance here, still less can it beinterpreted as envisaging that the requirement or preferences ofan individual retailer’s trading style, commercial attitudes, sitepreferences, competitive preferences whether against itself orgreater competition should dictate what sites are “suitable” or“available” subject only to a degree of flexibility. NPPF [23] and[24] are simply not couched in terms of an individual retailer’scorporate requirements or limitations. That would be theantithesis of planning for land uses and here, its default policies.It would take very clear language for such an odd result to beachieved.

Any alternative approach would reduce the sequential test toone of the individual operator’s preference, with the suitabilityof centres, sites and their availability varying from applicant toapplicant each proposing the same broad type or even identicalform of development. This case illustrates just why on the properinterpretation of NPPF [24], the identity of the applicant orproposed occupier is generally irrelevant. Even if the applicanthad been Aldi, or if the application had been for a store to beoccupied by Aldi, with an occupancy condition envisaged fromthe outset, the town centre would have been wrongly excludedfrom the search area on the basis of Aldi’s particular corporate,commercial position or style. Any other approach would makenonsense of the sequential test to the advantage of an operatorwell-represented in the area, or one reluctant to compete withcertain other retailers, however sensible that reluctance might becommercially. The applicant may not be a retailer; it may or maynot have an operator identified, or one may be signed up orinterested but the identity of which it is not yet willing todisclose. It would have to go through the full sequential test, andthen obtain its retailer; but were the application made withretailer in tow, the test would be different. And were a retailerlater signed up, it could require a different sequential test for thesame application or a repeated application for the samedevelopment at the same site. That is not the intention of NPPF[24] or any sensible application of the sequential test.”.

Fourth, there is a further reason why the identity of theapplicant, as opposed to the sort of development it proposes, isnot generally relevant to the sequential test. The sequential testin the NPPF is not just one of suitability; it covers availability:

“only if suitable sites are not available, should out of centre sites be considered.” A town centre site may be owned by a retailer already, to use itself for retailing, who is not going to make it available to another retailer. It is plainly available for retailing, though only to one retailer. That does not mean that another retailer can thus satisfy the sequential test and so go straight to sites outside the town centre. “Available” cannot mean available to a particular retailer but must mean available for the type of retail use for which permission is sought”

provides:

advisor to the local planning authority on compliance with a sequential test.Lieven J held:

“Plainly, it is unnecessary for a request to see a document to have been made for a breach of s.100D(1)(b) to have occurred. On the other hand, when it comes to material prejudice, a person who was aware of a reference in a committee report to a background paper but who has never shown or had any interest in inspecting the document is unlikely to get very far in a claim for judicial review”

“The true focus of interpretative debate is still the wording of the policy in context, and here of the English policies. Policy interpretations arising from litigation may be context and argument specific, and not intended as substitutes for the text at issue for all cases and contexts. The good sense of the planning consequences of any given interpretation may be a guide to its correctness.”

proposed store to attract some 145,000 residents² given the location of similarcompeting facilities, and some larger facilities, within the catchment area. Theassessment as to an appropriate catchment area is a matter of planning judgment.In this case the Council accepted the rationale put forward by Rapleys, andfurther accepted that a catchment based on a 5-minute drive time was the mostappropriate for the sequential test. The OR explained that the suggestedcatchment area was broadly consistent with the catchment areas often adoptedfor deep discounters in larger towns and that it had been agreed by the Council’sown retail consultants. The conclusion on catchment area is completely rationaland supported by reasoning.

site when assessing retail impact but to treat it as outside the same catchmentwhen applying the sequential test.

failing to make available for inspection the expert advice it received on retailplanning matters from its own consultant. On the 1 July 2021 the Claimant’splanning agents wrote to the Defendant requesting the retail advice from TetraTech and Alder King. The Defendant refused to disclose the documents prior
to the committee meeting. Those reports are clearly background papers withinthe meaning of s100D(5).