Warners Retail (Moreton) Ltd v Cotswold District Council & Ors

The sequential test for out-of-centre retail development does not recreate a separate requirement to demonstrate retail need. The references to need in the practice guidance must be read consistently with national policy, which had withdrawn that test.

Under paragraph 24 of the National Planning Policy Framework, applicants and planning authorities must show flexibility on format and scale. A more central site must be genuinely assessed, but it need not accommodate the proposal precisely and cannot be preferred solely because an existing operator might extend its store. The assessment remains one of planning judgment on availability, suitability and viability. Decisions on differently worded Scottish policy may assist by analogy, but do not determine the meaning of English national policy.

The council granted outline permission for an out-of-centre food store at Fosseway Farm, Moreton-in-Marsh. Warners, the owner of the edge-of-centre Budgens store, had planning permission to extend that store and objected to the competing development.

Warners sought judicial review, contending that the council had misunderstood the sequential test in paragraph 24 of the National Planning Policy Framework and the practice guidance. It said that the extended Budgens store was a sequentially preferable alternative capable of meeting the town’s retail requirements. Supperstone J dismissed the claim: [2014] EWHC 2504 (Admin).

The appeal concerned whether the officer’s advice had lawfully addressed the availability and suitability of the Budgens site, the effect of flexibility in the sequential test, and the relevance of Tesco Stores Ltd v Dundee City Council.

1. Appeal dismissed. The judge was right to reject the judicial-review challenge. The officer’s advice did not materially misdirect or mislead the Planning Committee, and the council made no error of law in granting permission.
2. National policy no longer required an applicant for retail development outside a town centre to demonstrate need. That requirement had been removed when PPS4 replaced PPS6 and was not restored by the National Planning Policy Framework. The practice guidance’s references to need therefore could not regenerate a need test.
3. The sequential test required flexibility on format and scale. The practice guidance required a balanced assessment, not a self-serving adoption of a developer’s preferences. It nevertheless permitted account to be taken of the development which the applicant genuinely intended to bring forward. A more central site did not have to accommodate precisely the proposed development, but the decision-maker had to assess what contribution it could make to the same requirements.
4. The committee lawfully considered the Budgens site. It did not exclude it merely because it was unavailable to Minton. The approved extension meant that the site could not accommodate the additional food store being assessed, even at reduced size. The council was entitled, as a matter of planning judgment, to conclude that no available and suitable sequentially preferable site existed. Warners’ argument would instead give a prospective competitor protection which planning policy did not provide and would reintroduce the abolished need test.
5. Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 concerned similarly intended but differently worded Scottish policy. Its discussion of suitability and flexibility could support the officer’s analysis, but it was not a construction of paragraph 24 of the National Planning Policy Framework. The officer had independently applied the relevant English policy and guidance lawfully.
6. The council could reasonably rely on its retail evidence that the extended Budgens store and one additional store could coexist without unacceptable harm to town-centre vitality and viability. The officer’s reference to the Sheffield inspector’s decision was not significantly misleading.

1. Court of Appeal (Civil Division): dismissed Warners’ appeal and upheld the grant of planning permission.
2. High Court, Planning Court: Supperstone J dismissed Warners’ judicial-review claim challenging the permission: [2014] EWHC 2504 (Admin).