Tesco Stores Limited, R (on the application of) v Stockport Metropolitan Borough Council

In applying the sequential test for out-of-centre retail development, “suitable” and “available” sites must be assessed by reference to the broad type, approximate size and range of goods proposed, with reasonable flexibility. The identity or preferences of a particular retailer are generally irrelevant. However, a site already committed to another operator may be unavailable where, as a matter of commercial reality, it is not open to any other operator and is not expected to become available within a reasonable period. The assessment is a matter of planning judgment. A difference between the catchment used for retail impact assessment and that used for the sequential test is not necessarily irrational, because the exercises address different questions. A breach of the statutory background-paper disclosure duty does not automatically invalidate permission; the court must assess substantial compliance and material prejudice.

Tesco challenged Stockport Metropolitan Borough Council’s decision to grant Lidl planning permission for an out-of-centre food store. It argued that the officer’s report misinterpreted “availability” under the sequential test, failed to consider an alternative Aldi site, and breached the statutory duty to make relevant background papers available for inspection.

The Council and Lidl argued that two sequentially preferable sites were commercially committed to other operators, that the Aldi site fell outside the agreed catchment for the sequential assessment, and that any disclosure breach caused no material prejudice. The central issues were the proper meaning of availability, the scope of the sites requiring consideration, and the legal effect of the undisclosed retail advice.

1. Claim dismissed. The court rejected all three grounds of challenge.
2. The availability of sequentially preferable sites fell to be assessed at the date of the planning committee meeting. Paragraph 87 of the National Planning Policy Framework requires consideration of whether suitable sites are available, or expected to become available within a reasonable period. The relevant assessment concerns the broad type, approximate size and range of goods proposed, with reasonable flexibility, rather than the commercial identity of the applicant.
3. The observations in paragraph 42 of Aldergate Properties Ltd v Mansfield DC were treated as a restatement of the earlier findings and not as part of that decision’s ratio. Properly understood, they did not prevent a planning authority from finding that a site already committed to another operator was unavailable to any other operator. The Council’s conclusions concerning Unit 4B and Water Street were rational planning judgments because both sites were effectively off the market.
4. The New Bridge Lane site was outside the agreed five-minute drive-time catchment for the sequential assessment. The choice and application of the catchment were matters of planning judgment. The sequential test and retail impact assessment serve different purposes: the former asks whether a site is in or on the edge of a centre, whereas the latter involves more nuanced predictions about shopping behaviour and trade diversion. The Council was therefore not legally obliged to consider New Bridge Lane in the sequential exercise.
5. The Council breached the duty under section 100D of the Local Government Act 1972 by failing to list and disclose its retail advisers’ reports. The breach did not cause material prejudice or serious disadvantage. The officer’s report and the Interested Party’s supporting assessments disclosed the substance of the relevant analysis, and Tesco could not identify additional representations it would have made. Applying section 31(3C) to (3E) of the Senior Courts Act 1981, it was highly likely that the outcome would not have been substantially different.