Town and country planning – Retail development – Planning policy – Sequential test – First respondent council granting planning permission for retail store on site outside commercial centre of Moreton-in-Marsh – Appellant operating another food store in commercial centre – Whether first respondents misinterpreting sequential test in para 24 of National Planning Policy Framework – Whether erring in failing to have regard to appellant’s site as part of sequential assessment – Appeal dismissed
In December 2013, the first respondent council granted outline planning permission to the second and third respondents for the development of a food store on land in Moreton-in-Marsh, Gloucestershire, subject to conditions restricting floor space. The proposed development site was about 500m from the “commercial centre” of the town as defined in the local plan. The first respondents had earlier refused a planning application by the fourth respondent for a similar development on a nearby site. The appellant owned a food store on the High Street in the town, within the commercial centre. It had planning permission for an extension to that store although the extension had not yet been built. It objected to both of the other proposed developments.
In granting planning permission for the second and third respondents’ proposals, the first respondents considered the sequential test for retail development set out in para 24 of the National Planning Policy Framework (NPPF) and the government guidance thereon in the document “Planning for Town Centres – Practice guidance on need, impact and the sequential approach” issued in December 2009. They found that there were no other sequentially preferable sites available in town-centre or edge-of-centre locations and that the proposed development site was accessible and well-connected to the town centre and would therefore have no adverse impact on its vitality and viability. They noted that the development was contrary to local plan policy on development outside development boundaries but took the view that there were material considerations justifying the grant of planning permission, including the fact that the development would “claw back” retail expenditure by shoppers who were currently shopping outside the town, would consequently reduce vehicle journeys by residents to other locations and would also provide employment opportunities for local residents.
The appellant brought judicial review proceedings to quash the grant of planning permission. It contended that the first respondents had not properly applied the sequential test since they had failed to consider the appellant’s site, even though it was in a preferred location sequentially, and had been misled by the report of their planning officer on the meaning of “availability”, “suitability” and “viability” of sites as defined in the practice guidance. The claim was dismissed in the court below: see [2014] EWHC 2504 (Admin). The appellant appealed.
Held: The appeal was dismissed.
(1) The planning officer’s advice to the first respondents on the sequential test was not materially deficient or misleading in any respect and did not render unlawful the first respondents’ decision to grant planning permission for the second and third respondents’ development. It was relevant that the practice guidance had originally been promulgated to accompany PPS4 whereas, by the time of the decision under challenge, it was supporting a different statement of national planning policy in the NPPF. It therefore had to be read in the light of, and consistently with, that policy and should not be applied mechanically: Telford and Wrekin Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 1638 (Admin); [2013] PLSCS 145 applied. Unlike PPS4, the policies for retail development in the NPPF did not require an applicant for planning permission for retail development outside a town centre to demonstrate a need for it. The references to “need” in the passages of the practice guidance elaborating the sequential approach, and, in particular, those explaining how the suitability of more central sites was to be judged, could not be read as reinstating a test of need.
(2) In the instant case, the first respondents were reminded of the absence of a need test in government policy but, as the planning officer’s report recognised, that did not mean that the need for additional food shopping facilities in Moreton-in-Marsh was now immaterial. The proposed food store was intended to deal with a need for shopping facilities in the town as demonstrated by a large proportion of expenditure on convenience goods was going to food stores elsewhere.
The only site said to be a sequentially preferable alternative to the second and third respondents’ site was the appellant’s store. The appellant’s argument was, in essence, that the first respondents should have asked themselves whether that store, with its permitted extension, could meet the identified need, and, if it could, then the first respondents should have concluded that the second and third respondents’ proposals failed the sequential test. That argument was untenable since it did not reflect the national planning policy and guidance bearing on the first respondents’ decision. In effect, it sought to restore to national planning policy for retail development a test of need that was no longer there. Had the appellant’s extension been built by the date of the first respondents’ decision, national policy and guidance would not have supported a decision to reject the second and third respondents’ 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.
(3) Under para 24 of the NPPF, both applicants and local planning authorities were expected to “demonstrate flexibility on issues such as format and scale”. What bounds could reasonably be set on an applicant’s preference and intentions as to format and scale in any individual case would always, and necessarily, depend on the facts and circumstances of that particular case. The policy in para 24 should not be seen as prescriptive in that respect.
The first respondents had not failed to apply the sequential test with appropriate flexibility. They could reasonably conclude on the material before them that the second and third respondents 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 that they considered for the purposes of the sequential assessment.
(6) The first respondents had properly understood and lawfully applied the sequential test in accordance with government policy in para 24 of the NPPF and the relevant parts of the practice guidance dealing with the three considerations of “availability”, “suitability” and “viability”. The planning officer did not have to spell out what was said about those concepts in the practice guidance. The guidance clearly informed the advice that he gave. In particular, in relation to availability, the planning officer did not fall into the error of disregarding the site of the appellants’ store because it was not available to the second and third respondents. The officer had considered that there were no suitable town-centre or edge-of-centre sites that could accommodate a food store of the kind proposed even at a reduced size. His conclusions on the sequential test were unassailable as a matter of planning judgment.
(8) Further, in giving advice on the sequential test, the planning officer had not erred in placing reliance on the decision of the Supreme Court in the Scottish case of Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; [2012] PLSCS 69. The planning policies considered in that case were sufficiently similar to the policy and guidance in play in the instant case to justify the advice that the officer gave.
Rupert Warren QC (instructed by Shoosmiths LLP) appeared for the appellant; Meyric Lewis (instructed by the legal department of Cotswold District Council) appeared for the first respondent; the second, third and fourth respondents did not appear and were not represented.
Sally Dobson, barrister