The Court of Appeal has rejected a supermarket chain’s appeal against the dismissal of its claim for judicial review of a planning permission granted to a competitor. The Court found that the local council had correctly understood and applied the sequential test contained in Paragraph 87 of the National Planning Policy Framework.
Paragraph 87 states that local authorities should apply a sequential test to planning applications for main town centre uses. These should preferably be located in town centres, then in edge-of-centre locations. Only if suitable sites are not available or expected to become available within a reasonable period should out-of-centre sites be considered.
When considering the competitor’s proposal for an out-of-centre food store, the council had taken into account two sites that were said to be sequentially preferable. However, the owners of one of the sites were in negotiations with a proposed occupier which intended to open a food store there, and the owners of the other had entered into a legally binding agreement with a retailer which intended to occupy it as a food store. In the council’s view, neither site was ‘available’ within the meaning of Paragraph 87. Planning permission for the out-of-centre store was granted.
The supermarket chain brought a claim for judicial review of the planning permission, arguing that the council had misunderstood and misapplied the sequential test. The High Court considered that the words ‘or expected to become available within a reasonable period’ were ‘a key aid to construction’, pointing to the possibility of an applicant having the opportunity to secure occupation of the site within a reasonable timeframe. If a site was already committed to an operator, the commercial reality was that it was not available to any other operator, and there might be no opportunity of it becoming available within a reasonable period. The claim was dismissed.
Appealing that decision to the Court of Appeal, the supermarket chain contended that a site could be ‘available’ for the purposes of Paragraph 87 if it was available for the type of retail development proposed, even if it was not available to the applicant for planning permission.
The Court observed that the purpose of the sequential test was to steer retail development and other main town centre uses to town centres, or sites on the edge of town centres, in preference to out-of-centre locations. The test set a clear order of preference for the location of such uses. ‘Suitable’ and ‘available’ were ordinary English words and did not take on a different meaning when used in planning policy or guidance.
The issue of whether a sequentially preferable site was available required an exercise of judgment on the facts. That had been lawfully done. Both of the alternative sites could properly be seen as committed for retail use. They were not truly alternatives to the application site. Neither site was available to anyone other than its landowner and, in due course, the retailer that would operate the new store. The appeal was dismissed.