Court of Appeal dismisses appeal over application of sequential test in planning dispute between supermarket giants

Sir Keith Lindblom, Senior President of Tribunals, noted in the judgment that Tesco had lost in the High Court and now advanced only one ground, which was that Stockport misapplied the sequential test because the Lidl site was not in any town centre.

The council said it assessed the suitability and availability of several sites said by objectors, including Tesco, to be ‘sequentially preferable’.

But in one case negotiations were in progress between the owner and another food store, while in the other the owner had entered into a legally binding agreement with Aldi.

Officers told the planning committee that neither could be regarded as ‘available’ within the meaning of the policy in the NPPF.

Tesco’s appeal concerned only whether Stockport made an erroneous interpretation of paragraph 87 of the NPPF.

It argued that the NPPF meant a site is ‘available’ for the purposes of paragraph 87 if it is available for the type of development proposed, even if controlled by another person.

Sir Keith noted the policy states councils should apply a sequential test to planning applications for main town centre uses which are neither in an existing centre nor in accordance with an up-to-date plan.

Main town centre uses should be located in town centres, then in edge of centre locations; and only if suitable sites are not available (or expected to become available within a reasonable period) should out of centre sites be considered.

Sir Keith said the distinction between policy interpretation and policy application was important.

“Interpretation of policy is an activity for judges,” he said.”Policy-making obviously is not. Nor, of course, is the application of policy in the making of planning decisions. The meaning of the words in a policy produced by the Secretary of State or by a local planning authority is for the court to establish, as a matter of law…but the use of the policy in determining applications for planning permission and appeals is for the decision-maker, subject only to review by the court on public law grounds.”

He said interpretation of planning policies “should not generally involve the kind of linguistic precision the court would bring to the interpretation of a statute or contract".

This approach meant the purpose of the sequential test for retail development in national planning policy was to steer other ‘main town centre uses’ to town centres, away from out-of-centre locations.

The NPPF though set a clear order of preference, or priority, for the location of main town centre uses, but used the verb ‘should’, not ‘must'.

He said: “The court is entitled to approach the task of interpretation on the simple basis that the words of the policy mean what they say and require no gloss or paraphrase.

“‘Suitable' and ‘available’ are ordinary English words. They do not take on a different, technical or artificial meaning when used in planning policy or guidance.”

He said the concepts of suitability and availability were intended to apply in a wide variety of circumstances and were different.

Both concepts require the exercise of planning judgment “on the facts as they are at the date of the decision,” Sir Keith said.

“The question of a site's suitability calls for judgment about the form and scale of development on which to base the application of the sequential test. The policy leaves that judgment to the decision-maker. A site's availability is also a question of fact and judgment.”

Sir Keith said the crucial question before the Court of Appeal was whether the council could lawfully conclude that no sequentially preferable site was ‘available’ within the meaning of the policy.

He said officers and the committee carefully considered each of the sites said to be sequentially preferable but accepted both were going to be occupied by new food stores similar to Lidl's proposal.

In these circumstances Stockport could “reasonably conclude that the proposal should not be turned away on the basis of any sequentially preferable site being ‘available’”, he said.

Sir Keith concluded: “This was not a case of the sequential test policy being either misinterpreted or misapplied. The council's understanding of the policy in paragraph 87 of the NPPF was correct. It reflected the true interpretation of the language used in the policy, given its ordinary meaning and read in its proper context - the approach indicated in Tesco v Dundee City Council.

“Nor was the application of the policy, on the undisputed facts, flawed by any public law error.”

He dismissed Tesco’s appeal and Lord Justice Baker and Lord Justice Lewis both agreed.

Mark Smulian