“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.”
“Having carefully reviewed Rapleys assessment and cumulative impact, even in the event the Asda store did close, we consider that, on balance, the proposed Lidl store, when considered alongside the foodstore proposals/commitments at the Peel Centre and Water Street, is unlikely to result in a significant adverse impact on the vitality and viability of Stockport Town Centre. In coming to this conclusion, we have had regard to, inter alia: the wider role of the town centre, its vitality and viability, recent and on-going significant investment, and the likelihood of the Asda store site being redeveloped and not lying vacant for a long period of time.”
“Objections on behalf of Tesco on Retail Policy Grounds (July 21) Our client makes representations of objection to the above application. Our clients trade from an edge-of-centre Extra format superstore on Tiviot Way. This first opened for trade in 2004. The positive retailing function of this store has since been consistently recognised by the Council including through its Local Plan. Our clients also trade from an edge-of-centre store at Burnage Lane which opened in 2005. This store provides a main and local food shopping destination for local residents and underpins the vitality and viability of the adjacent local centre. Our client has invested significantly in creating these important facilities and continues to invest today. Our client’s objections to the planning application focus on the following considerations: 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.”
“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.”
“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.”
“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.”
“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.”
“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”
“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.”
“100D.– Inspection of background papers. (1) Subject, in the case of section 100C(1) , to subsection (2) below [a time limit], if and so long as copies of the whole or part of a report for a meeting of a principal council are required by section 100B(1) or 100C(1) above to be open to inspection by members of the public– (a) those copies shall each include a copy of a list, compiled by the proper officer, of the background papers for the report or the part of the report, and (b) at least one copy of each of the documents included in that list shall also be open to inspection at the offices of the council. … (3) Where a copy of any of the background papers for a report is required by subsection (1) above to be open to inspection by members of the public, the copy shall be taken for the purposes of this Part to be so open if arrangements exist for its production to members of the public as soon as is reasonably practicable after the making of a request to inspect the copy. … (5) For the purposes of this section the background papers for a report are those documents relating to the subject matter of the report which— (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works.”
“58. The clear statutory intention behind s.100D(5) of the LGA 1972 is to ensure that documents upon which the OR is based are open to be viewed by members of the public. It is in my view absolutely obvious that the OR is partly based on Ms Atkinson's advice, indeed I fail to see how it could not have been. Ms Atkinson's role was precisely to advise the Council on the issue of compliance with the Plan, and Mr Henry simply relied on that advice when writing the report. The fact that the advice was in part opinion does not remove it from the scope of s.100D(5) , indeed quite the contrary, advice will often be the very thing upon which the OR is based. … 60. Further, proper compliance with s.100D is an important part of maintaining a transparent planning system, in which third parties can be properly informed as to why particular recommendations are being made. The failure to produce the advice from the Council's advisor was an obvious breach of this requirement.”
“Plainly, it is unnecessary for a request to see a document to have been made for a breach of s.100D(1)(b) to have occurred. On the other hand, when it comes to material prejudice, a person who was aware of a reference in a committee report to a background paper but who has never shown or had any interest in inspecting the document is unlikely to get very far in a claim for judicial review”
“The true focus of interpretative debate is still the wording of the policy in context, and here of the English policies. Policy interpretations arising from litigation may be context and argument specific, and not intended as substitutes for the text at issue for all cases and contexts. The good sense of the planning consequences of any given interpretation may be a guide to its correctness.”