Tesco Stores Limited, R (on the application of) v Stockport Metropolitan Borough Council & Anor [2025] EWCA Civ 610

[2025] EWCA Civ 610

Case No CA-2023-002588

IN THE COURT OF APPEAL (CIVIL DIVISION)

[2023] EWHC 3154 (Admin)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

PLANNING COURT

Karen Ridge, sitting as a Deputy Judge of the High Court

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Date: 9. 5 . 2025

Before

SIR KEITH LINDBLOM

(Senior President of Tribunals)

LORD JUSTICE BAKER

LORD JUSTICE LEWIS

Between

The KING (on the application of TESCO STORES LIMITED)Appellant

STOCKPORT METROPOLITAN BOROUGH COUNCILFirst Respondent

LIDL GREAT BRITAIN LIMITEDSecond Respondent

Richard Turney KC (instructed by Bryan Cave Leighton Paisner LLP) for Appellant

Martin Carter (instructed by Victoria Alice Bates for Stockport MBC) for the First Respondent

Douglas Edwards KC (instructed by Blake Morgan LLP) for Second Respondent

Hearing Hearing date: 18 February 2025

Approved Judgment

This judgment was handed down remotely at 12:00noon on Friday 9 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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Senior President of Tribunals:

[1]Did a local planning authority misunderstand and misapply the “sequential test” in national and development plan policy for retail development when determining an application for planning permission for a new food store on a site neither in nor on the edge of a town centre? That is the main question in this case.

[2]The appellant, Tesco Stores Ltd., appeals against the order dated 10 January 2024 of Karen Ridge, sitting as a deputy judge of the High Court, by which she dismissed its claim for judicial review of the planning permission granted by the first respondent, Stockport Metropolitan Borough Council, for the “[erection] of a new Lidl food [store] (Class E) with associated car parking and landscaping” on land at 111, Wellington Road North, Heaton Norris, Stockport. The applicant for planning permission was the second respondent, Lidl Great Britain Ltd..

[3]The site of Lidl’s proposed development is outside any designated town centre. Under planning policy for retail development, the proposalwas therefore “out-of-centre” development. The store would be a single-storey retail unit, with a gross floor area of 1,900 square metres and a net sales area of 1,256 square metres. Tesco has two edge-of-centre superstores in Stockport, one at Tiviot Way, which opened in 2004, the other at Burnage Lane, which opened in 2005. Lidl’s application for planning permission was submitted on 6 October 2020.Tesco and others objected.On 17 October 2022 the council’s Heatons and Reddish Area Committee, following the case officer’s recommendation, resolved to approve the proposal. Planning permission was granted on 9 November 2022.

[4]When considering Lidl’s proposal, the council assessed the suitability and availability of several sites said by objectors, including Tesco, to be “sequentially preferable” under the policy for the sequential test in paragraph 87 of the version of the National Planning Policy Framework (“NPPF”) published in July 2021. Two sites in particular were taken into account, both of which could accommodate food stores similar in format and scale to Lidl’s: Unit 4B in the Peel Centre, previously occupied by Next, and a site atWater Street. When Lidl’s proposalcame before the committee, the members knew that the owners of Unit 4B in the Peel Centre were in negotiations with a proposed occupier who intended to open a food store there, andthat the owners of the site at Water Street had entered into a legally binding agreement with Aldi, who intended to occupy that site asa food store. In the officer’s view, and the members’, neither of those sites was to be regarded as “available” for the proposed developmentwithin the meaning of the policy in paragraph 87 of the NPPF. M&S began trading in Unit 4B in June 2023. Planning permission for the Water Street development was resolved to be granted in November 2024.

[5]Although Tesco’s claim was advanced on three grounds, its main thrust was that the council had misunderstood and misapplied NPPF policy for the sequential test. The judge dismissed the claim on all three grounds.

The issue in the appeal

[6]Permission to appeal was granted only on ground 1 in the appellant’s notice, which alleges an “erroneous interpretation of paragraph 87 of the [NPPF]”:

“The Judge erred in her interpretation of paragraph 87 of the NPPF, in finding that a site was not “available” for the purposes of the sequential test if it was “already committedto an occupier”

. On a proper interpretation of the NPPF, a site is “available” for the purposes of paragraph 87 if it is available for the type of development proposed, even if it is controlled by another person. If the Judge had properly interpreted the NPPF, she would have found that the Respondent fell into error in its determination of the planning application and that the permission should be quashed.”

[7]The single issue in the appeal, therefore, is whether the council misunderstood and misapplied the policy in paragraph 87 of the NPPF when concluding that neither of the sites said to be sequentially preferable to the application site was “available”.

The policy in paragraph 87 of the NPPF

[8]So far as is relevant here, paragraphs 86, 87, 88, 90 and 91 of the NPPF stated: “86. Planning policies and decisions should support the role that town centres play at the heart of local communities, by taking a positive approach to their growth, management and adaptation. …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.” 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).

[9]In the version of the NPPF published in December 2024 the policy in paragraph 87 of the July 2021 version is repeated, in paragraph 91.

[10]A similar policy appears in the development plan, in Policy TCG3 of the Stockport Unitary Development Plan (“the UDP”) and Policy CS6 of the Stockport Core Strategy (“the core strategy”).

The Planning Practice Guidance

[11]In paragraph 2b-009-20190722of the relevant section of the Planning Practice Guidance (“PPG”) issued by the Government in July 2019, the sequential test for retail development is described in this way:

“What is the sequential test? The sequential test guides main town centre uses towards town centre locations first, then, if no town centre locations are available, to edge of centre locations, and, if neither town centre locations nor edge of centre locations are available, to out of centre locations (with preference for accessible sites which are well connected to the town centre). It supports the viability and vitality of town centres by placing existing town centres foremost in both plan-making and decision-taking.”

[12]Under the heading “How should the sequential test be used in decision-making?”, paragraph2b-011-20190722 states: “It isfor the applicant to demonstrate compliance with the sequential test … . The application of the test will need to be proportionate and appropriate for the given proposal. … The checklist below sets out the considerations that should be taken into account in determining whether a proposal complies with the sequential test:• with due regard to the requirement to demonstrate flexibility, has the suitability of more central sites to accommodate the proposal been considered? …

• is there scope for flexibility in the format/and or scale of the proposal? 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 individually to accommodate the proposal.

• if there are no suitable sequentially preferable locations, the sequential test is passed. In line with paragraph 86 of the [NPPF], only if suitable sites in town centre or edge of centre locations are not available (or expected to become available within a reasonable period) should out of centre sites be considered. When considering what a reasonable period is for this purpose, the scale and complexity of the proposed scheme and of potentially suitable town or edge of centre sites should be taken into account. …”.

• with due regard to the requirement to demonstrate flexibility, has the suitability of more central sites to accommodate the proposal been considered? …

• if there are no suitable sequentially preferable locations, the sequential test is passed.

Previous consideration of the sequential test by the courts

[13]The courts have on several occasions considered the sequential test for retail development. When looking at the relevant judgments, one must bear in mind that they reflect the court’s conclusions on the meaning of the words in the policy being considered, which can differ from one policy to another.

[14]In Tesco v Dundee City Council

[2012] UKSC 13

;

[2012] PTSR 983

Lord Reed said (in paragraph 21 of his judgment):

“21. A provision in the development plan which requires an assessment of whether a site is “suitable” for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word “suitable”, in the policies in question, means “suitable for the development proposed by the applicant” or “suitable for meeting identified deficiencies in retail provision in the area”, is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed.”

[15]Lord Reed accepted (at paragraph 24) that on a true construction of the policies in question, and subject to one qualification, “suitable” meant “suitable for the development proposed by the applicant”, rather than “suitable for meeting identified deficiencies in retail provision in the area”. As he went on to say (at paragraph 28), the guidance in National Planning Policy Guidance 8, “Town Centres and Retailing” (“NPPG 8”) made it clear that “the application of sequential approach requires flexibility and realism from developers and retailers as well as planning authorities”. It advised that “developers and retailers should have regard to the circumstances of the particular town centre when preparing their proposals, as regards the format, design and scale of the development”. In that case, said Lord Reed (at paragraph 30), it was apparent that a “flexible approach” had been adopted. The interveners “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”. And “[in] accepting that assessment, the respondents exercised their judgment as to how the policy should be applied to the facts: they did not proceed on an erroneous understanding of the policy”.

[16]In Warners Retail (Moreton) Ltd. v Cotswold District Council

[2016] EWCA Civ 606

I said (in paragraph 31) that “flexibility” was called for under guidance on the sequential test issued by the Government in December 2009. 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”.

[17]In Aldergate Properties Ltd. v Mansfield District Council

[2016] EWHC 1670 (Admin)

Ouseley J. considered the concept of “suitability”. The claimant was aggrieved by the local planning authority’s decision to grant planning permission for an out-of-centre food store proposed by Aldi. In its sequential assessment the authority had excluded a sequentially preferable town centre site as unsuitable, because Aldi would not trade from that site in competition with other stores of its own nearby – one already trading, the other with planning permission. When it granted planning permission for the new out-of-centre store, it imposed a condition making the permission personal to Aldi (see paragraphs 4, 11 to 18, 22 and 23 of Ouseley J.’s judgment).

[18]Ouseley J. held that the authority’s approach had been wrong. He said (in paragraphs 35 to 42 of his judgment):

“35. … In my judgment, “suitable” and “available” generally mean “suitable” and “available” for the broad type of development which is proposed in the application by approximate size, type, and range of goods. This incorporates the requirement for flexibility in [paragraph 24 of the] NPPF, and excludes, generally, the identity and personal or corporate attitudes of an individual retailer. The area and sites covered by the sequential test search should not vary from applicant to applicant according to their identity, but from application to application based on their content. Nothing in [Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13], properly understood, holds that the application of the sequential test depends on the individual corporate personality of the applicant or intended operator. … 37. … [Paragraph 24 of the] NPPF … cannot … be interpreted as requiring “suitability” and “availability” simply to be judged from the retailer’s or developer’s perspective, with a degree of flexibility from the retailer, and responsiveness from the authority. 38. … [Still] less can it be interpreted as envisaging that the requirement or preferences of an individual retailer’s trading style, commercial attitudes, site preferences, competitive preferences whether against itself or greater competition should dictate what sites are “suitable” or “available” subject only to a degree of flexibility. … 39. Any alternative approach would reduce the sequential test to one of the individual operator’s preference, with the suitability of centres, sites and their availability varying from applicant to applicant each proposing the same broad type or even identical form of development. … Any other approach would make nonsense of the sequential test to the advantage of an operator well-represented in the area, or one reluctant to compete with certain other retailers, however sensible that reluctance might be commercially. … … 42. … [There] is a further reason why the identity of the applicant, as opposed to the sort of development it proposes, is not generally relevant to the sequential test. The sequential test in 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.”

[19]Later in his judgment (at paragraph 48), Ouseley J. said:

“48. … The true focus of interpretative debate is still the wording of the policy in context … . 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.”

The planning consultants

[20]Lidl’s application for planning permission was accompanied by a retail impact appraisal report prepared by their planning consultants, Rapleys. The council also instructed consultants, Tetra Tech, who prepared a report in February 2021. They advised the council that the sequential test had not been met, because there were two sequentially preferable sites: Unit 4B in the Peel Centre and the land at Water Street. Both were “suitable” for a food store of similar size to Lidl’s proposal. Indeed, Aldi had already proposed the erection of a food store on the Water Street site. In March 2021 Rapleys produced a further appraisal, and in May 2021 an addendum report. In the light of that report Tetra Tech agreed that Unit 4B in the Peel Centre could be discounted because it was going to be occupied by another food retailer. In July 2022 Rapleys submitted a “Retail Impact Update Note”. And Tetra Tech then accepted that the Water Street site could also no longer be considered “available”, as Aldi had now reached a legally binding arrangement, in principle, with the landowner.

[21]Tesco’s planning consultants, MRPP, submitted letters of objection to Lidl’s proposal in July 2021 and October 2022. They said Rapleys had failed to understandthe sequential test, in particular the requirement for flexibility in format and scale. Lidl’s “one size fits all” approach was, they said, “self-serving”. The officer’s report had failed to take into account the judgment of Ouseley J. in Aldergate Properties. The word “available” in the NPPF policy could not mean “available to a particular retailer”. It must mean “available for the type of retail use for which planning permission was sought”. Where a sequentially preferable site was owned by a retailer who would not make it “available” for another retailer, the site was nonetheless “available” for retail use. Applicants could not satisfy the sequential test by “bypassing” such sites and looking instead at out-of-centre sites. The sequential test, said MRPP, sought“to ensure the Government’s policy principle of “town centre first” is achieved”. It was “vitally important that available town centre sites are developed before available edge of centre sites and equally important that available edge of centre sites come forward before available out of centre sites”. Here, the sequential test in paragraph 87 of the NPPF had not been satisfied. The sequentially preferable units had not even been occupied by another retailer. Both Unit 4B in the Peel Centre and the Water Street site were sequentially preferable to the application site, and “available”. There was also conflict, therefore, with Policy TCG3 of the UDP and Policy CS6 of the core strategy.

The planning officer’s report to the committee

[22]In her report to the committee for its meeting on 17 October 2022 the case officer set out the objections on “Retail Policy Grounds”, including those of Tesco, Aldi and Morbaine Ltd., the owners of the Water Street site.

[23]In her planning assessment, under the heading “Policy Principle and Retail Impacts” and the sub-heading “Sequential Approach”, the officer said it was accepted that there were “no sites or units that would be physically capable of accommodating the proposed foodstore (taking into account reasonable flexibility)” either in Houldsworth district centre or in the other three local centres in the catchment area. She listed seven sites in Stockport town centre which had been “assessed under the sequential approach analysis”. These included “Unit 4B Peel Centre” and “Land at Water Street”. She said that “[the] position on sequential assessment has been an evolving one over time since the application was submitted”.

[24]She then considered “[the] up to date position” for each of the sites in the list, and said this about Unit 4B in the Peel Centre and the site at Water Street:

“… Unit 4B, The Peel Centre The owners of the retail park, Peel, have obtained planning permission for the change of use of the unit from non-food retail to flexible class E use … . At the time of writing, it is understood that Next are in the process of closing down the store with store closure expected later in Summer 2022. The applicant’s submission advises that they have been advised by the agent representing the owner, that they are currently in legals with a retail operator to occupy Unit 4b with the “deal” moving forward and set to conclude by the end of August. The applicants note that both parties have instructed solicitors, representing a commitment to moving the deal forward and significant costs will have been incurred by both sides and it is likely that heads of terms for a deal will have been agreed between the two parties in advance of this process. The Council’s retail planning advisor has subsequently discussed Unit 4B with Peel to verify the applicant’s statement. The site owners have confirmed to us that they are in legals with another food operator for the unit. Accordingly, it is agreed that the unit is not available/available within a reasonable period for the proposed development. Land at Water Street Site A planning application has been submitted by the landowners, Morbaine, for a discount foodstore scheme on this site. Aldi has confirmed in a letter dated 25th November that they have “reached a deal in principle with Morbaine for the occupation of the proposed foodstore and has entered into a legally binding agreement to this effect”

. Aldi state that they would relocate from their existing store on Newbridge Lane. Given that an agreement at an advanced stage has been entered into between Morbaine and Aldi, and therefore, if planning permission is granted, Aldi will occupy the store/site, it is concluded that the site can no longer be considered to be available/available within a [reasonable] period for the proposed development.” Unit 4B, The Peel Centre

Land at Water Street Site

[25]These conclusions followed:

“Sequential Approach Conclusions In response to the objections received from Tesco on the 3rd October 2022, the outlined Aldergate Properties Judgment has been reviewed at length and the following comments can be made. 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 alternativesites 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.”

[26]Under the sub-heading “Retail Impact”, the officer said it was “considered that the applicant’s assessment has demonstrated that there is unlikely to be a significant adverse impact on any existing, planned and committed in-centre investment”. And “[in] relation to Unit 4B at the Peel Centre, Great Portwood Street, based on the [applicant’s] discussions with the landowner, that this unit is no longer available, [the] position is agreed that no significant adverse impacts are likely to arise on this investment”.

[27]She went on to consider the question of cumulative impact, and concluded: “… When considered cumulatively with foodstore schemes at Unit 4B, Peel Centre and ‘Land at Water Street’, we remain of the view that there is unlikely to be a significant adverse impact on any existing, planned and committed in-centre investment. … … [The] applicants have completed a cumulative impact assessment taking into account the application site, the site at Water Street and Unit 4B, Peel Centre. … Having carefully reviewed the [applicant’s] cumulative impact assessment, it is considered that the proposed Lidl store when considered alongside the Peel Centre commitment and Aldi application proposals, is unlikely to result in a significant adverse impact on the vitality and viability of the smaller local centres in the catchment area or the district and local centres outside the catchment area. … Accordingly, it is considered that even in the event the Asda store [in Stockport town centre] did close, 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. …”.

[28]Lastly, the officer said that “[overall], having regard to all of the above matters and the robust appraisal of retail policy matters, it is considered that the proposed development is in accordance with the sequential approach and the retail impact policy tests”, and therefore “it is considered that the principle of the development is acceptable and in accordance with relevant development plan policies and the tests of the NPPF”.

The judgment in the court below

[29]In the judge’s view the observations made by Ouseley J. about the concept of “availability” in paragraph 42 of his judgment in Aldergate Properties were “not part of the ratio decidendi of the decision” (paragraph 41).

[30]The words “or expected to become available within a reasonable period” in the NPPF policy were, said the judge, a “key aid to construction”. They “[pointed] to some possibility of any unidentified applicant having the opportunity to secure occupation of a site in a reasonable timeframe” (paragraph 43). If a site was already committedto an occupier, the “commercial reality” was that it was “not available to any other unidentified operator” and, depending on the facts, “there may be no opportunity of it becoming available within a reasonable period” (paragraph 44).

[31]Here, the council had been “at pains to disregard the identity of the applicant”. The officer’s report had been “very careful to observe the principles set out in [Aldergate Properties]”. The officer had considered the two other sites and the evidence produced. 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 obtaining evidence, the council had concluded that the site was not “available” or expected to become “available” within a reasonable period of time. This was “a rational conclusion” (paragraph 45). As for the land at Water Street, a “planning application had been submitted” by the landowners for a food store on the site, and “a deal in principle had been reached with discount foodstore operator Aldi”. Again, the officer had considered the evidence and come to a “planning judgment that the site can no longer be considered to be available or available within a reasonable period”. The conclusion that these two sites were not “available” was “not premised on the fact that [they] were each in the control of another retailer but because they were not commercially available to any operator (other than the contracting party)”. The council had “assessed that both sites were essentially off the market” (paragraph 46). The judge therefore held there was “no misinterpretation of retail policy” in the officer’s report and “no misapplication of that policy in terms of the sequential test” (paragraph 47).

Did the council misunderstand and misapply policy for the sequential approach?

[32]For Tesco, Mr Richard Turney K.C. put forward an argument echoing itsobjection to Lidl’s proposal. The essential issue was “a short point of interpretation”. When a site is “available” for the type of retail development proposed but not to the applicant for planning permission, is it to be regarded as “available” for the purposes of the sequential test in paragraph 87 of the NPPF? A site can be “available”, Mr Turney submitted, even if it is controlled by a person other than the applicant for planning permission. In this case the sequential test had not been met on that basis, because the Unit 4B and Water Street sites were “available”. In concluding to the contrary, the council had misunderstood and misapplied the sequential test policy. Mr Turney relied on the judgment of Ouseley J. in Aldergate Properties, in particular at paragraph 42.

[33]Carefully presented as it was, I cannot accept that argument.

[34]The principles governing the interpretation of planning policies – whether in statements of national planning policy such as the NPPF and the PPG or in development plans – are well known.

[35]The distinction between policy interpretation and policy application is important (see the judgment of Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government

[2017] UKSC 37

; [2017] 1 W.L.R. 1865, at paragraph 26). Interpretation ofpolicy is an activity for judges. Policy-making obviously is not. Nor, of course, is the application of policy in the making of planning decisions. The meaning of the words in a policy produced by the Secretary of State or by a local planning authority is for the court to establish, as a matter of law (see the judgment of Lord Reed in Tesco v Dundee City Council, at paragraphs 18 to 20, and the judgment of Lord Carnwath in Hopkins Homes, at paragraph 23). But the use of the policy in determining applications for planning permission and appeals is for the decision-maker, subject only to review by the court on public law grounds.

[36]Interpreting a planning policy ought not to be a difficult task, but straightforward (see the leading judgment in R. (on the application of Corbett) v Cornwall Council

[2022] EWCA Civ 1069

, at paragraph 19). It should not generallyinvolve the kind of linguistic precision the court wouldbring to the interpretation of a statute or contract. Construing the language in the policy should not require it to be dismantled and reconstructed, or a gloss imposed upon it, or resort to paraphrase. One can expect the purpose of the policy tobe clear from its own provisions, given their ordinary meaning and read in their context. Policies should be stated in plain terms, easy to understand for those affected by decisions made in accordance with them, and capableof being applied with realism and common sense. Mostly they are.

[37]The court should respect the policy-maker’s choice of words in formulating the policy as it stands. As a general rule, the temptation to infer terms the policy-maker has not actually used should be resisted. The court will sometimes be able to conclude that the words of the policy mean exactly what they say, nothing more and nothing less. It should not hesitate to do this if it can.

[38]A more sophisticated approach has obvious risks. By going further than it needs in volunteering views of its own upon the meaningof a policy, the court may find itself drawn, unintentionally, towards the role of policy-maker. If a policy is ambiguous or incomplete, it is for the policy-maker to put that right, either by reformulating the policy when it can or by issuing guidance on its application. That is not a job for judges. Another risk is that the court – again without intending it – may obscure the true meaning of the words the policy-maker has used. This is liable to weaken the policy as a means of improving consistency in planning decisions. Many planning policies – including those in the NPPF– cover a wide range of circumstances. Many are framed in broad terms (see the judgment of Lord Carnwath in Hopkins Homes, at paragraph 24). Many require the exercise of planning judgment in their application. An interpretation tailored too closely to the facts of a particular case may not fit the facts of another (see the judgment of Holgate J., as he then was, in Gladman Developments Ltd. v Secretary of State for Communities and Local Government

[2020] EWHC 518 (Admin)

, at paragraph 99, upheld in this court

[2021] EWCA Civ 104

). The policy itself could then be compromised and its use unduly constrained.

[39]With that self-caution in mind, I think we can state the following conclusions on the interpretation of the policy in paragraph 87 of the NPPF.

[40]First, the purpose of the sequential test for retail development in national planning policy is to steer such development and other “main town centre uses” to town centres, or sites on the edge of town centres, in preference to out-of-centre locations. This is evident in paragraph 86 of the NPPF, whose first sentence relates to both decision-making and plan-making, and emphasises that both “[planning] policies and decisions should support the role that town centres play at the heart of local communities, by taking a positive approach to their growth, management and adaptation”. It is also apparent in the supporting guidance in the PPG.

[41]Secondly, as described in the second sentence of paragraph 87, the sequential test sets a clear order of preference, or priority, for the location of main town centre uses. I say “preference” because the relevant verb is “should”, not “must”. The expression “sequentially preferable”, used several times in argument before us, is therefore appropriate. The first preference in the policy is “in town centres”. The second is “in edge of centre locations”. And the third, stated as a principle, is that “only if suitable sites are not available (or expected to become available within a reasonable period) should out of centre sites be considered”.

[42]Thirdly, the policy in paragraph 87 is in everyday language. None of the terms used is hard to understand. None has required clarification in the text of the policy itself or definition in the “Glossary”. The court is entitled to approach the task of interpretation on the simple basis that the words of the policy mean what they say and require no gloss or paraphrase. “Suitable” and “available” are ordinary English words. They do not take on a different, technical or artificial meaning when used in planning policy or guidance.

[43]Fourthly, paragraph 87 says nothing about the identity of applicants for planning permission, or, for retail development, the identity of retailers. It does not say that a site must be exactly “suitable” in every respect for the developer’s or intended operator’s own chosen format of retailing or intended gross or net floor space, or for their intended car parking and servicing arrangements. It does not say that if the developer or operator happens to own a sequentially preferable site, which it does not want to bring forward for retail development or for some other main town centre use, that site must be ignored. And there is no need for qualifications such asthese to be read into the policy.

[44]Fifthly, the concepts of suitability and availability are intended to apply in a wide variety of circumstances. They are different concepts. A site may be “suitable” but not “available”, or “available” but not “suitable”.But both conceptsrequire the exercise of planning judgment on the facts as they are at the date of the decision.The question of a site’s suitability calls for judgment about the form and scale of development on which to base the application of the sequential test. The policy leaves that judgment to the decision-maker. A site’s availability is also a question of fact and judgment.

[45]Sixthly,the policy refers to sites in or on the edge of town centres not being “available (or expected to become available within a reasonable period)”. This invites a view on the timing of a site’s availability, which may be largely a matter of prediction, on the facts. And the facts may be fluid. They can change between the submission of an application for planning permission and its determination.Sites can become “available” or cease to be so while a proposal is live before a local planning authority or on appeal. Again, the policy is flexible, not prescriptive. It does not, for example, stipulate that a decision-maker can only find a site in or on the edge of a town centre no longer “available” for retail development of a particular kind if such development hasalready been completed upon it and a new store isnow occupied and in use, and must withhold planning permission on an out-of-centre site until that has happened.

[46]And finally, the application of the sequential test in the NPPF does not depend on there being a need for the development proposed. Since December 2009, when Planning Policy Statement 4 replaced Planning Policy Statement 6, a demonstration of need has not been required by national planning policy. But the requirement remains for applicants to demonstrate that their development will not cause “significant adverse impact” either to investment in town centres or to the “vitality and viability” of any town centre – at the time of the decision challenged in this case, in paragraphs 90 and 91 of the NPPF. The policy for the sequential test goes hand in hand with that for the assessment of impact. The aim in both tests is to sustain the health of town centres and to strengthen investment in them.If, for example, the sequential test is met because sites in or on the edge of a town centre are being taken up byretailers intending to operate new stores, the decision-maker might stillconclude that adding another store of a similar type on an out-of-centre site would harm the vitality and viability of the town centre. Or, as in this case, it may find that there is capacity for the additional store to come forward without unacceptable impact.

[47]Was the council’s application of the sequential test consistent with this understanding of the NPPFpolicy? In my view it was. I accept the argument to this effect put forward by Mr Martin Carter for the council and Mr Douglas Edwards K.C. for Lidl.

[48]I agree with Mr Carter in his submission that the crucial question here is not whether the council, when determining the application for planning permission, took into account the identity of the applicant or the intended operator of the food store, but whether it could lawfully conclude that no sequentially preferable site was “available” within the meaning of the policy.

[49]When the decision on Lidl’s proposal eventually came to be made, the case officer, and in turn the committee, carefully considered each of the sites said to be sequentially preferable to the application site. They clearly accepted that both Unit 4B in the Peel Centre and the site at Water Street were going to be occupied by new food stores similar to Lidl’s proposal.There was evidently no planning obstacle to prevent this, nor any problem with landownership, nor any commercial impediment. Unit 4B was the subject of active negotiations – which the officer referred to as “legals”. The site at Water Street was already the subject of a legally binding agreement with Aldi. All of this the members knew. There has been no suggestion that they were unaware of what was happening on those two sites, or were in any way misled. They had the relevant facts.

[50]The time when the availability of any sequentially preferable site had to be established was, as I have said, when the decision on Lidl’s application for planning permission came to be made, not some earlier date – such as the date on which the application was made or whenobjections weresubmitted. Whether and when a site becomes or ceases to be “available”, and why this is so, are questions for the decision-maker to establish on the facts. The policy does not specify some definite event or provide any criteria, let alone a hard and fast rule, for ascertaining these matters. Neither does the PPG. The reference in the policy to sites “expected to become available within a reasonable period” recognises that circumstances evolve. It envisages that matters will be considered as they are at the point of decision, but with a realistic view of what is likely to happen in the future. The policy allows, and in many cases will require, a reasonable exercise of predictive judgment. And such an exercise of judgment can only be attacked on public law grounds.

[51]I agree with the conclusion reached in the court below that, in the circumstances as they were at the time of its decision on Lidl’s application for planning permission, the council could reasonably conclude that the proposal should not be turned away on the basis of any sequentially preferable site being “available”. That was the decisive issue in the application of the sequential test. In accordance with the policy, it required an exercise of judgment on the facts. This was lawfully done. Events had moved on. The two sites on which attention was concentrated at this stage could now properly be seen as committed for retail use. They were not truly alternatives to the application site. As the officer put it, there was “no access to these sites by [Lidl] or any other parties”;they had been “taken up” for retail development “and are not ‘available’”. They were “not available to Lidl [in this case] or in fact to anyone else”.The policy did not require that they had already been occupied and were already operating as food stores, or that this was imminent.It was reasonably open to the officer to advise, and the committee to accept, that neither site was “available” for the additional retail development proposed by Lidl, nor for any other additional development of that kind whoever the applicant for planning permission might be. This conclusion did not depend at all on the identity of the operators who were committed, or likely to become committed, to the new food stores on those sites. Neither site was now “available”, inthe true sense of that word in the NPPF policy, to anyone other than its landowner and, in due course, the retailer who would operate the new store.

[52]A further issue that now arose, therefore, was whether an additional food store of the format and scale proposed by Lidl could be approved on the application site without undue risk of harm to any existing town centre. It was necessary to consider whether, in the officer’s words, “when considered alongside the foodstore proposals/commitments at the Peel Centre and Water Street”, Lidl’s development would bring about any unacceptable “cumulative impact” on the vitality and viability of any town centre or on retail investment in a town centre. The officer’s conclusion was that no harm of that kind would arise. The assessment that led her to that conclusion is not the subject of any criticism in these proceedings, nor could it be.

[53]This was not a case of the sequential test policy being either misinterpreted or misapplied. The council’s understanding of the policy in paragraph 87 of the NPPFwas correct. It reflected the true interpretation of the language used in the policy, given its ordinary meaning and read in its proper context - the approach indicated in Tesco v Dundee City Council. Nor was the application of the policy, on the undisputed facts, flawed by any public law error. As the judge said, the council was “at pains to disregard the identity of the applicant”.The officer was clearly aware that the identity of the operator of the proposed food store was not itself a factor in the application of the policy. She recognised that, were it applied to new retail development, the word “available” in the NPPF policy was not to be read as if it meant “available to a particular retailer”. It simply referred to the site’s availability to be developed for the type of retail use for which planning permission was sought – or as Lord Reed put it in Tesco v Dundee City Council, “for the development proposed by the applicant” – and subject, of course, to flexibility on format and scale. The sequential assessment carried out by the officer did not depend in any way upon the identity of the operator. In undertaking that assessment she explicitly had regard to Ouseley J.’s judgment in Aldergate Properties, and in particular what he had said there on the question “whether the identity of the applicant is relevant to the scope of the sequential testing”. And as she said, “[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”. The outcome of the assessment would have been no different had she not referred at all to Lidl as the applicant for planning permission and intending operator of the new food store.

[54]In my view there is no inconsistency between those conclusions and the essence of what Ouseley J. said about the sequential test in Aldergate Properties. One must read his observations in their own factual context: the local planning authority’s exclusion of a sequentially preferable site because of the commercial interests of a particular retailer. The issue there was whether the identity of the intended occupier of the proposed store should dictate how the sequential test was applied. That was the context of Ouseley J.’s remarks on availability in paragraph 42 of his judgment. And his own reminder about the significance of “context”, in paragraph 48, was apt.

[55]The facts and circumstances here were very different. In this case the sequentially preferable sites under consideration were not treated as unavailable because Lidl, as applicant for planning permission, was in control of them and had insisted that it would not trade from either of them in competition with an existing store of its own. The conclusion of the sequential assessment had nothing to do with Lidl’s identity or with its own commercial preferences. As Mr Edwards submitted, the policy for the sequential test in paragraph 87 of the NPPF, on its correct interpretation in accordance with the principles referred to by Lord Reed in Tesco v Dundee City Council, did not prevent the council, in appropriate circumstances, from considering a site not to be “available” if an occupier was now committing itself for food store development on that site. It was not a misinterpretation or misunderstanding of the NPPF policy, or a misapplication of it in the circumstances here, for the council to find that both of the two sites in question were not “available” in the relevant sense. The policy was in sufficiently broad terms to make that conclusion possible as a lawful application of it. And in the particular circumstances of this case, which can be materially distinguished from those in Aldergate Properties, this was a perfectly reasonable and lawful conclusion for the council to reach as a matter of planning judgment.

[56]In my view, therefore, the judge’s conclusion was correct. There was no error of law.

Conclusion

[57]For the reasons I have given, I would dismiss the appeal.

Lord Justice Jonathan Baker:

[58]I agree.

Lord Justice Lewis:

[59]I also agree.