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

The retail sequential test gives priority to town-centre sites, then edge-of-centre sites, before out-of-centre development is considered. Policy interpretation is a question of law, but suitability and availability ordinarily require planning judgment on the facts at the date of decision.

A sequentially preferable site may lawfully be treated as unavailable where it is genuinely committed to retail development and is not available for additional development of the relevant type. That conclusion does not depend on the identity or commercial preferences of the applicant or intended retailer. The policy requires flexibility on format and scale, but does not require a decision-maker to await completion or occupation of a committed development.

Stockport Metropolitan Borough Council granted Lidl planning permission for an out-of-centre food store. Tesco sought judicial review, contending that two sequentially preferable sites, Unit 4B at the Peel Centre and Water Street, remained available under paragraph 87 of the National Planning Policy Framework.

The council had concluded that neither site was available because one was the subject of active legal negotiations with another food retailer and the other was subject to a legally binding agreement with Aldi. The Planning Court dismissed Tesco’s claim: [2023] EWHC 3154 (Admin). Tesco appealed on the sole permitted ground that the judge had wrongly construed availability as excluding sites already committed to an occupier.

The central issue was whether the council had misunderstood or misapplied the sequential test.

Decision

Appeal dismissed. The court unanimously upheld the dismissal of the judicial-review claim.

1. The interpretation of planning policy is for the court, whereas its application in a planning decision is for the decision-maker, subject to public-law review. Planning policies should ordinarily be read in their ordinary language and context, without statutory-style glosses or terms which the policy-maker did not use.

2. Paragraph 87 of the National Planning Policy Framework establishes a sequential preference for town-centre, then edge-of-centre, locations. Suitability and availability are distinct, ordinary-language concepts. Both commonly involve factual and planning judgment, with appropriate flexibility as to the proposed development’s format and scale.

3. Availability must be assessed when the planning decision is made. The reference to sites expected to become available within a reasonable period permits, and may require, a realistic predictive judgment. A decision-maker need not treat a site as available merely because construction or occupation has not yet occurred. A site genuinely taken up for comparable retail development may reasonably be treated as unavailable for an additional proposal.

4. The council had not treated the two preferred sites as unavailable because of Lidl’s identity or commercial preferences. It had evidence that the Peel Centre unit was in active legal negotiations with another food retailer and that Water Street was committed by a legally binding agreement. It was therefore lawfully open to the council to regard both sites as unavailable. Aldergate Properties Ltd. v Mansfield District Council was materially different because it concerned a site excluded through a particular retailer’s commercial interests.

5. The council’s separate assessment found no unacceptable cumulative impact on town-centre investment, vitality or viability. That assessment was unchallenged. There was consequently no error of law in applying the sequential test.

• Court of Appeal (Civil Division) — dismissed Tesco’s appeal and upheld the planning permission: [2025] EWCA Civ 610.
• High Court of Justice, King’s Bench Division, Planning Court — dismissed Tesco’s judicial-review claim against the grant of planning permission: [2023] EWHC 3154 (Admin).