Warners Retail (Moreton) Ltd v Cotswold District Council

Planning officers’ reports must be read fairly and as a whole. They should not be subjected to statutory-style exegesis, particularly where addressed to a knowledgeable planning committee. The interpretation of planning policy is a question of law, while the weight given to material considerations is a matter of planning judgment. In applying the sequential test, site suitability is assessed by reference to the development proposed by the applicant. Practice guidance should be used flexibly and is not to be applied mechanistically. A planning committee may resolve conflicting evidence about retail impact, linked trips and town-centre vitality, provided the material issues are fairly presented and the decision is rationally open to it.

The claimant, which operated an existing Budgens food store, sought judicial review of the defendant local planning authority’s decision to grant permission for a new food store at the Minton site in Moreton-in-Marsh. Permission to apply for judicial review was granted by Lewis J on 14 March 2014.

The claimant pursued two grounds: that the sequential test had been wrongly interpreted or applied, particularly in relation to the availability and suitability of the Budgens site; and that the authority had failed properly to assess effects on town-centre vitality and viability, including the Budgens extension, linked trips and the possible closure of the existing store.

1. Application dismissed. The claimant failed to establish that the authority had unlawfully applied the sequential test or had adopted an erroneous approach to town-centre vitality and viability.
2. The authority had taken the Budgens site into account. It was entitled to conclude, on the conflicting evidence, that the town could accommodate the proposed Minton store in addition to the approved Budgens extension. The claimant had not established that the Budgens site was a suitable alternative for the Minton proposal.
3. The reference to Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 was not erroneous. The relevant concept of suitability concerns suitability for the development proposed by the applicant, rather than suitability for meeting identified deficiencies in retail provision. That approach was applicable in England.
4. The Practice Guidance was not to be interpreted rigidly or mechanically. Its references to need had to be read in the light of the later national policy framework, which no longer imposed a freestanding requirement to demonstrate need.
5. The reports fairly drew the committee’s attention to the likely adverse financial effect on Budgens, the approved extension and linked trips. The committee was entitled to weigh that evidence against the possibility of retaining expenditure within the town, the post office’s continuing attraction and the employment benefits of the proposed store. The court had no basis to interfere with that planning judgment.

First-instance judicial review proceedings. Permission to apply was granted by Lewis J on 14 March 2014. The application was dismissed by the High Court (Administrative Court).