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

The Claimant (Tesco Stores) challenges the decision of Stockport Metropolitan

Permission was granted by Lang J. for the claim to proceed on all grounds in anorder dated 28th February 2023. The Defendant and Interested Party both resistthe claim in its entirety.

On 18 April 2023 a second witness statement of Timothy Smith was filed bythe Claimant. The statement contains a more detailed plan of the catchment areaoverlaid with the land registry title plan to the New Bridge Lane site. On the 12May 2023 the Interested Party filed a witness statement from Jonathan Harperin response to that statement. An accompanying application was submitted forleave to rely on the witness statement and exhibits. There are no objections toeither of the statements and I therefore admitted them into evidence.

The Interested Party owns land on the corner of Wellington Road North andSparthfield Road in Heaton Norris, Stockport. The planning permission relatesto the creation of a single-storey retail unit comprising 1,900 square metresgross internal area, with a net sales area of 1,256 square metres. The vehicularaccess to the site would be from Sparthfield Road, along the northern boundaryof the site. The site lies outside any designated town centre and therefore theproposal was for an out of centre retail use.

The Defendant is the local planning authority. The development plan for thearea includes policies set out in the Stockport Unitary Development PlanReview adopted 31st May 2006 which have been saved¹ and policies set out inthe Stockport Local Development Framework Core Strategy Development PlanDocument adopted 17th March 2011.

Policy CS5 which set out Stockport’s hierarchy of service centres and set animpact threshold for all A1 uses exceeding 200 square metres net of floorspacein out of centre locations.

Relevant development plan policies are in accordance with the NationalPlanning Policy Framework (NPPF) and the proposals were considered in lightof the sequential test. The NPPF says that:

“87.

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.

88.

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….

90.

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).

91.

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.”

For the purposes of applying the sequential test, a number of sites were

Both the Interested Party’s and the Defendant’s retail consultants addressed thesequential test in setting out their position on the application. The Claimant,together with other objectors, also made representations on this issue.

Rapleys were the retail consultants instructed on behalf of the Interested Party.In its first appraisal Rapleys argued that policy CS5 was out of date because itreferred to Use Class A1 set out within the Town and Country Planning (UseClasses) Order 1987 which had been superseded. On this basis, they arguedthat there were no locally set threshold for impact assessments and the proposalwas under the threshold of 2,500square metres set out in the NPPF whichtriggered the need for an impact assessment. Whilst they argued that no retailimpact assessment was necessary, they said that an assessment had been

The Advice of the Defendant’s Retail Consultants: The Council instructedexternal consultants (Tetra Tech) to review the retail appraisal and to provideadvice. The first Tetra Tech appraisal was dated February 2021 and it concludedthat the Rapley’s PRS had not demonstrated compliance with the sequentialapproach to site selection. Further information was required in relation to thelevel of flexibility of format adopted and further information was needed inrelation to other sequentially preferable sites, these included Unit 4B and WaterStreet.

Rapleys then provided further information via a March 2021 Retail PlanningAppraisal. That was considered by Tetra Tech who advised that compliancewith the sequential test had not been demonstrated due to a change incircumstances in relation to the Water Street site. Further information wasrequired in relation to the impact tests submitted.

In May 2021 Rapleys produced a Retail Addendum Report and a letter dated 3June 2012 on behalf of the Interested Party. Tetra Tech, on behalf of theDefendant, agreed that the evidence supported discounting the Unit 4B on thebasis that it was not available/available within a reasonable period. Theyconcluded that the Water Street site could be available because it appeared thatsuch a scheme was being progressed on it.

The final appraisal from the Defendant’s retail advisors came in August 2022.Further information had been submitted by Rapleys in the form of a RetailImpact Update Note of July 2022 and an email dated 8 July 2022. Tetra Techadvised that it was accepted that Unit 4B was not available being the site ownerwas ‘in legals’ with another food operator. They further accepted that WaterStreet was not available because Aldi had reached a legally binding deal inprinciple with the landowner of that site.

In terms of retail impact the Tetra Tech report concluded that:

“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.”

Because Aldi had entered into an agreement to occupy the Water Street site ifpermission was granted for its discount foodstore, the Defendant’s retailconsultant advised that Water Street “can no longer be considered to beavailable/available within a reason[able] period for the proposed development”.It was noted that Aldi had stated that “they would relocate from their existingstore on New Bridge Lane”.

The Officer’s Report (OR): was produced, with a recommendation for approval.After setting out relevant national and local policy imperatives, the OR went onto set out the objections received on behalf of various retail operators. Theobjections received from the Claimant were summarised as follows:

“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:

1.

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.

2.

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.

The OR then goes on to consider the sequential test in the following terms:

“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 OR therefore confirmed that the judgment of Ouseley J. in AldergateProperties Limtied and Mansfield DC [2016] EWHC 1670 (Admin) had beenconsidered at length but the situation in the current proposal was not comparableand it has been concluded that the Water Street site and Unit 4B were notavailable. The report went on to consider retail impact in terms of tradediversion from town centre uses to the proposed discount store. It wasconcluded that the proposal was unlikely to result in a significant adverse impacton the vitality and viability of the Stockport Town Centre or any other definedcentre. The proposal was considered acceptable in terms of all other planningissues, subject to the imposition of conditions. The report went on torecommend that planning permission be granted.

At the planning committee meeting on 17 October 2022 committee membersresolved to grant permission and the planning permission was duly granted on9 November 2022.

In the main, the relevant law in relation to this case is uncontroversial. Thepower to grant planning permission is created by Section 70 of the Town &Country Planning Act 1990. Section 38 (6) of the Planning & CompulsoryPurchase Act 2004 requires that decisions about planning permission should betaken in accordance with the development plan unless material considerationsindicate otherwise. The National Planning Policy Framework is an obviousmaterial consideration in this respect, representing, as it does, nationalgovernment policy. It is now well settled that the meaning of planning policy isa matter of law (see Tesco Stores Ltd v Dundee City Council [2012] UKSC 13).

Alleged errors in officer reports on planning applications are assessed havingregard to whether members were materially misled on material matters. In R(Mansell) v Tonbridge BC [2019] P.T.S.R. 1452 Lindblom LJ summarised theprinciples as follows:

“41.

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.”

Lindblom LJ. went on to stress:

“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.”

And..

“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.”

It is well-established that the interpretation of policy is a question of law. AsLord Reed JSC said in Tesco Stores Ltd v Dundee City Council [2012] PTSR983:

“18.

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.”

Thus, a failure to correctly interpret a policy will render a decision open tochallenge, per Lord Keith of Kinkel in City of Edinburgh Council v Secretaryof State for Scotland [1997] 1 WLR 1447.

When applying the sequential test, national policy requires the applicant todemonstrate flexibility in the application of the test. The judgment of Ouseley
J. in Aldergate Properties Ltd v Mansfield DC [2016] EWHC 1670 (Admin) hasfeatured prominently in this case in arguments between Mr Turney for theClaimant and Mr Carter and Mr Edwards for the Defendant and Interested Party.

The Aldergate case was concerned with the application of the sequential testand in particular, the requirements of suitability and availability in relation tosequentially preferrable sites. The claim related to the interpretation of

In Aldergate the Council had determined that the sequential test was met on thebasis that town centre sites had been excluded from consideration (or deemedunsuitable) because Aldi would not locate there in view of the nearby locationof other existing or permitted Aldi stores. It was relevant to note that theCouncil had in fact also imposed a condition personal to Aldi to reflect the basison which it decided the test was met. The verbal report to committee hadconfirmed that “the permission shall enure for the benefit of Aldi and no otherretailer on the basis that the recommendation is based on the application andtaking into account the specific commercial considerations of the potentialoperator”.

Mr Justice Ouseley referred to the Supreme Court decision in the Tesco Storesand Dundee case. That case also had revolved around interpretation of the word‘suitable’ in the sequential test. In Aldergate, Mr Justice Ouseley said:

“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.”

In Aldergate the claimant had submitted that the Council was wrong to ignoretown centre sites on the basis that the applicant was not prepared to competewith its own stores. Counsel for the district council had contended that theCouncil had been right to focus on the commercial requirements of the proposedoperator. It was this dispute which was to be resolved and it was resolved asfollows:

“35.

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

36.

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.

37.

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.

38.

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.

39.

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.”.

Ouseley J. went on to say:

“42.

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”

I shall return to this judgment in my analysis.

Finally, in relation to ground 3, section 100D Local Government Act 1972

In R (Joicey) v Northumberland CC [2014] EWHC 3657 (Admin) and in R (HaleBank PC) v Halton BC [2019] EWHC 2677 (Admin), decisions to grant planningpermission were quashed because of a failure by the local planning authority topublish background papers in accordance with s 100D. In Hale Bank, thechallenge related to the failure to make available for inspection a report from an

In R (Save Warsash and the Western Wards) v Fareham Borough Council[2021] EWHC 1435 (Admin), a decision to grant planning permission wasquashed for a failure to make background papers available. Jay J, relying onJoicey, noted that “this court sets a very high standard in determining… thatstatutory breaches would have made no difference” [37].

More recently, in R (Worcestershire Acute Hospitals NHS Trust) v MalvernHills DC and others [2023] EWHC 1995 (Admin) Holgate J. confirmed thatthere are two aspects to be considered: firstly, whether there has been substantialcompliance with the legislation and secondly, whether the claimant has sufferedsubstantial prejudice from any non-compliance. He emphasised that these testsare fact sensitive and went on to say:

“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”

On behalf of the Claimant, Mr Turney contends that the OR materiallymisdirected members on the meaning of ‘available’ for the purposes ofapplication of the sequential test. The misdirection, it is alleged, led to thefinding that Unit 4B and the Water Street sites were not available and the flawedconclusion that the sequential test had been met. This contention relies onparagraph 42 in the Aldgate judgment.

Firstly, I accept Mr Carter’s proposition that the question as to whethersequentially preferable sites were available within the meaning of paragraph 87fell to be determined at the date of the committee meeting. That has to be rightin the context of a changing background factual situation in relation to the sitesunder consideration.

In the Aldergate case the Council had determined a 5-minute drive catchmentarea in relation to the impact assessment. Part of the catchment fell within theMansfield town centre but this town centre was excluded from the sequentialtest because the Council accepted that Aldi would not develop a store in thetown centre so as to compete with existing town centre Aldi stores.Consequently all Mansfield town centre sites were excluded from considerationin the sequential test. This decision was based on the ‘suitability’ of town centresites rather than their availability.

The Aldergate judgment turned on whether the question of suitability (andavailability) should be assessed having regard to the commercial identity andimperatives of an individual applicant. The conclusion was that the identity ofapplicants was not generally relevant. Paragraph 42 in my view is restating theprior findings that the suitability of a site cannot be assessed having regard toone particular applicant and similarly, the availability of a site cannot beassessed having regard to one particular retailer. For these reasons I furtheraccept that Mr Carter is correct when he says that the observations in paragraph42 are not part of the ratio decidendi of the decision

Mr Edwards further emphasises the importance of context in the interpretationof planning policy as recognised by Ouseley J. when he explained that:

“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.”

To go back to the words in the policy… “Main town centre uses should belocated in town centres, then in edge of centre locations; and only if suitablesites are not available (or expected to become available within a reasonableperiod) should out of centre sites be considered”. The words in brackets are akey aid to construction in my view. The words ‘or expected to become availablewithin a reasonable period’, when given their natural and ordinary meaning,point to some possibility of any unidentified applicant having the opportunityto secure occupation of a site in a reasonable timeframe.

If a site is already committed to an occupier, then the commercial reality is thatit is not available to any other unidentified operator and, dependant on the factsof the case, there may be no opportunity of it becoming available within areasonable period.

In this case the Council was at pains to disregard the identity of the applicant.The OR is very careful to observe the principles set out in the Aldergatejudgment. Consideration was given to the two other sites and the evidenceproduced. Unit 4B was owned by Peel and they were in legal negotiations with
a retail operator with a deal set to conclude by August. After obtainingevidence, the Council concluded that the site was not available or expected tobecome available within a reasonable period of time. That is a rationalconclusion.

In relation to land at Water Street, a planning application had been submitted bythe landowners for a foodstore on the site and a deal in principle had beenreached with discount foodstore operator Aldi. Again, the OR considers theevidence and comes to a planning judgment that the site can no longer beconsidered to be available or available within a reasonable period. Theconclusion that these two sites were not available is not premised on the factthat the sites were each in the control of another retailer but because they werenot commercially available to any operator (other then the contracting party).The Council had assessed that both sites were essentially off the market.

For all of the above reasons I conclude that this ground does not succeed. Therewas no misinterpretation of retail policy in the OR and no misapplication of thatpolicy in terms of the sequential test.

The Claimants contend that the OR materially misdirected members in respectof the sequential test by failing to consider the possibility of the proposal beingaccommodated at the Aldi Site in New Bridge Lane. The Claimants say thatthis site is in an edge of centre location and is therefore sequentially preferable.The OR records that Aldi had committed to relocating to the Water Street siteif it obtained planning permission for that site. Even if the conclusion that theWater Street site was not available was a lawful one, Mr Turney submits that itmust follow that the New Bridge Lane site was available for Lidl because Aldiwould not occupy both sites.

On behalf of Lidl, planning consultants, Rapleys, had prepared a Planning andRetail Statement (PRS) dated September 2020. As part of its consideration ofthe sequential test, the RPS identifies a catchment area based on the nature ofthe retail use proposed. It was explained that Lidl discount stores serve arelatively compact catchment area as they provide a neighbourhood shoppingfacility. Consequently a 0-5 minute drive time was identified for the catchmentarea and a catchment plan provided for reference. During pre-applicationdiscussions the Council had requested a 10-minute drive time catchment also beconsidered as a comparator. Both catchments were included in the RPS alongwith population data.

The rationale for adopting a catchment area based on a 5-minute drive time wasexplained. This was decided on the basis that it was unreasonable to expect the

The New Bridge Lane site was not included in the sequential test considerationsbecause it was determined that it lay outside the agreed catchment area. In theirReply the Claimants suggest that the contention that the site was not a materialconsideration because it fell outside Lidl’s preferred catchment is an ex postfacto attempt to justify ignoring an obvious material consideration. I do notaccept that characterisation of the evidence and pleadings as they have emergedin this case for the reasons which follow.

Firstly, the determination of an appropriate catchment area was properlydecided as a matter of planning judgment. The catchment area is delineated onthe catchment plan at appendix 4 of the Rapley’s report. The application of theboundaries of that catchment area to the area surrounding the proposed site isseen in the appendix 5 plan entitled catchment plan with competing retailfacilities. It depicts the New Bridge Lane site as a blue dot which sits on theredline boundary of the 5-minute drive time. As a result of this the New BridgeLane site was considered to be outside the catchment area and was notconsidered as part of the test.

The plan produced by Mr Smith on behalf of the Claimant is helpful. It depictspart of the site within the catchment area but the Newbridge Lane vehicularaccess is outside the catchment area. Mr Turney makes the point that thereshould be flexibility when considering sequential sites. In this case, irrespectiveof whether the Newbridge Lane site was reconfigured, it is likely that thevehicular access would remain from Newbridge Lane itself which lies outsidethe centre.

The evidence which has been produced in the form of the statement of MrHarper contains an explanation as to the basis on which the catchment area wasapplied. I do not consider this to be ex post facto justification. The evidence
has arisen because the Claimants criticise the exclusion of the New Bridge Lanesite from the catchment area. No doubt if this criticism had been made prior tothe matter going to committee, the OR would have dealt with the reasons for theexclusion. The evidence merely illustrates the reasons why it was excluded andthe exercise of planning judgment which took place. I am satisfied that theexercise of that judgment was reasonable.

Mr Turney contends that it is illogical for the Defendant and Lidl to considerthe existing Aldi at Newbridge Lane to be within the 5-minute catchment of the

The Rapley’s RPS at paragraph 7.58 explains that because of the distribution ofexisting convenience stores and the local road network, it was anticipated that alarge proportion of the proposed store’s turnover would be drawn from anumber of stores which included the existing Aldi at Newbridge Lane. Thereport goes on to say “as these facilities are either dominant stores in theborough; are located within relatively close proximity to the site; or offer asimilar range of goods”. It is evident that they were included for a number ofreasons. Paragraph 7.70 states “the nearest comparable discount retailers are
the Aldi on Newbridge Lane (edge of centre store)….”

Figure 3.1 of the Tetra Tech appraisal of February 2021 summarises thebenchmark turnovers and trade draw from table 6 from the Rapleys’ RPS. TheTetra Tech table categorises Newbridge Lane as being within the catchment area(albeit outside the town centre). Rapleys’ table 6 had placed the NewbridgeLane site in the table under the heading ‘Edge/Out of Centre Locations’. It is
of note that the Tetra Tech consultant, who had advised throughout, did notsuggest that the Newbridge Lane site should be included in the sequentialassessment exercise.

The Defendant’s planning consultant³, in his final appraisal at paragraph 3.27referred to the two Aldi stores (which presumably included Newbridge Lane)as being within the catchment area. Mr Turney’s point is that it is irrational toinclude the site as an out of centre site for the for the purposes of the impact testbut to exclude the site for the purposes of the sequential test.

The exercises to be undertaken in relation to the sequential test and a retailimpact assessment are entirely different. In the sequential test the question iswhether a site is either inside or on the edge of a town centre OR whether it isout of centre. In simple terms: is a site in centre or out of centre. The test is abinary one leading to a yes or no answer. In the application of the retail impactassessment, planning judgments are made as to how shoppers are likely to adjusttheir shopping habits on the advent of a new store. More nuanced judgmentsare made having regard to a variety of factors and how the catchment wouldoperate.

I have concluded that the definition of the catchment area was appropriate. Theapplication of the catchment area definition to the stores shown on the plan atappendix 5 was a matter of planning judgment. Notwithstanding the apparentinconsistency in categorisation of the Newbridge Lane site, I accept that on theevidence at the date of committee meeting, it was entirely reasonable of theCouncil to conclude that the Newbridge Lane site was out of centre for thepurposes of the sequential assessment. The committee members had the benefitof advice from Rapleys, and from Tetra Tech, as well its own officers, none ofwhom advised that Newbridge Lane should be considered in the sequential test.I therefore do not consider that Newbridge Lane was a site that the Defendantwas legally obliged to have regard to in the application of the sequential testwhen the evidence is looked at in totality. For all of these reasons ground 2does not succeed.

The third ground contends that the Defendant acted in breach of s100D by

The Council did not comply with the statutory requirement to list backgrounddocuments relied on in the OR and refused to make those documents availablefor inspection. The Defendant does not argue that there was substantialcompliance with the duty but seeks to argue that the Claimant has not beenmaterially prejudiced by the failure.

In the Worcestershire case Holgate J. made it clear that the legal effect of abreach will depend upon the circumstances of the case and that cases are likelyto fall within a spectrum including failing to comply with statutory requirementstimeously, failure to identify the existence of a background paper or refusal tomake a background paper available at all.

The OR runs to some 69 pages and the Claimants’ objections are extensivelyquoted. In the planning policy (retail) section the OR makes clear reference tothe Rapleys’ retail impact assessments having been assessed by an independentprofessional. The OR summarises the key conclusions of the February 2021appraisal quite fully, explaining why the evidence submitted by Rapleys had notdemonstrated that the sequential test had been satisfied. The May 2021 wassummarised with an explanation that the Interested Party had still notdemonstrated the sequential test had been passed and goes on to explain therequirements for updating information about the availability of the Water Streetsite.

The OR then summarises the third appraisal of June 2021 when it was explainedthat the Defendant’s consultant had accepted that Water Street had been shownto be unavailable and detailed the evidence relied upon. The fourth and finalappraisal was summarised and that sets out the conclusion that the sequentialtest had been satisfied because Water Street and Unit 4B were accepted to beunavailable.

It is important to note that the appraisals by the Defendant’s consultants werecritiques and analyses of the retail impact assessments submitted by theInterested Party. Those original supporting assessments and additionalevidence were available to all third parties interested in the planning application.The Defendant’s reports from Tetra Tech and Alder King were commentarieson the adequacy of those assessments. The OR clearly explains the basis onwhich the sequential test was eventually satisfied. The Interested Party’sevidence underpinning the final conclusions of the Defendant’s consultants isset out in the Conclusions section of the OR⁴.

It is clear therefore that the Claimant had access to a full suite of assessmentsproduced for the Interested Party and the OR summary of the advice of theDefendant’s own retail advisor. The objections submitted on behalf of theClaimant contain a full exposition of its contentions in relation to theappropriate application of the sequential test. The Claimant’s second objectionletter makes specific reference to the question of availability of sequentiallypreferable sites, identified by the Claimant as Unit 4B and Water Street.

The breach of the duty by the Defendant has not in my view caused materialprejudice or serious disadvantage to the Claimant in this case. Prior to the dateof the committee decision, the Claimant had a full grasp of the basis on whichthe Defendant had accepted that the sequential test had been passed. This isclearly different to the situation in the Hale Bank case where Lieven J. had foundthat it was the fact that the advice in relation to the sequential test was ‘so sparse’which was important.

On the particular facts of this case, I do not accept that, if the reports had beenavailable, the Claimant would have made any representations which would havebeen materially different to those already made. The Claimant contends that itwould have made additional representations on the flexibility to be shown inapproaching the sequential test had the reports been available. However, theClaimant did make representations on the flexibility to be adopted in itsobjection. Having now seen the missing reports, the Claimant has not putforward any suggestions as to new points which would have arisen as a directresult of information in the undisclosed material. Each of the first two groundsof claim in this case relate to matters which were evident on the face of the ORand on the Interested Party’s supporting documents.

In relation to the application of section 31(3C) to (3E) of the Senior Courts Act1981, even if the statutory duty had been complied with, I am satisfied, for theabove reasons, that it would have been highly likely that the outcome in termsof the grant of planning permission would not have been substantially different.Even if I apply the high threshold in Warsash, I am satisfied that in this case,that the breach of the statutory duty has made no difference.

The claim on ground 3 also fails.