Aldergate Properties Ltd v Mansfield District Council & Anor

Under paragraph 24 of the National Planning Policy Framework, the sequential test concerns sites suitable and available for the broad type of development proposed, judged by approximate size, type and range of goods. It requires flexibility and generally disregards the identity, trading style or competitive preferences of an individual retailer. An operator’s unwillingness to compete with its own nearby stores cannot normally exclude town-centre sites from the search.

A policy’s failure to require a formal impact assessment does not make the underlying impact immaterial. A planning authority must still consider relevant development-plan criteria and material effects on town-centre vitality, viability and planned investment.

Mansfield District Council granted Regal Sherwood Oaks Ltd planning permission for a 1,925 sq m out-of-centre food store intended for Aldi. The Claimant, whose associated company owned a permitted town-centre site, challenged the decision on four grounds.

The challenge concerned the application of the sequential test under paragraph 24 of the National Planning Policy Framework, a personal condition limiting occupation to Aldi, compliance with saved policy R6 and assessment of effects on Mansfield town centre. The central issues were whether Aldi’s existing nearby stores justified excluding town-centre sites and whether the Council had lawfully addressed development-plan and impact considerations.

The claim succeeded and the planning permission was quashed.

1. Sequential test. “Suitable” and “available” generally meant suitable and available for the broad type of development proposed, by approximate size, type and range of goods. The test required flexibility under paragraph 24 of the National Planning Policy Framework. The identity of the applicant or intended operator, and its particular commercial reluctance to compete with nearby stores, could not ordinarily define the search area. Mansfield town-centre sites had therefore been wrongly excluded. Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 did not require a different conclusion. Properly understood, it addressed suitability by reference to the proposed development and flexibility as to format and scale, not the wider effect of an operator’s corporate identity or competitive position.
2. Personal condition. The condition restricting the benefit of the permission to Aldi was not itself unlawful for the purpose for which it was imposed. However, the Planning Practice Guidance warning that personal conditions were rarely appropriate was a material consideration which had not been placed before the committee. The condition was also defectively drafted because it purported to regulate the benefit of the permission rather than occupation.
3. Development plan and impact. Saved policy R6 remained part of the development plan even if parts were out of date or inconsistent with the National Planning Policy Framework. The Council first had to determine whether the proposal accorded with the development plan, and only then decide what weight to give non-compliance. The Council had failed to consider R6 criteria concerning town-centre vitality, viability and future investment. The absence of a formal impact-assessment requirement did not make those matters irrelevant, particularly where the unusual sequential approach excluded the town centre despite an identified qualitative need.
4. Catchment area and delay. The committee’s failure to resolve the Claimant’s precise catchment-area argument did not render the decision unlawful because the precise boundary was immaterial. The challenge was brought within the statutory period running from the grant of permission, and there was no sufficient basis for refusing relief for delay.

The permission was quashed.

First-instance judicial review in the High Court (Administrative Court). The planning permission granted by Mansfield District Council was quashed.