A retail company appealed against the refusal ( EWHC 2504 (Admin)) of its application for judicial review of the first respondent local authority’s grant of outline planning permission to the second and third respondents for a food store.
The proposed development site was situated about 500m from the town centre. The appellant’s food store was approximately 120m from the edge of the town centre. Planning permission had been granted for the extension of its store. It objected to the permission granted to the second and third respondents. The local authority’s planning committee acknowledged that the further development was contrary to the local plan, but considered that there were material considerations justifying the development. The local plan stated that proposals for development outside the town centre would be subject to a sequential test, and that retail development had to be supported by evidence of “need” and evidence that it would not harm the “vitality and viability” of the town centre. The National Planning Policy Framework superseded much of the national planning policy in force, which had included a policy requiring the need for additional retail development outside a town centre to be justified. Paragraph 24 of the NPPF set out government policy for the sequential test to be applied to planning applications for town centres and edge of centre or out of centre proposals. Practice guidance had been issued by the Government on the suitability of sites for such development, the “Planning for Town Centres – Practice guidance on need, impact and the sequential approach”.
The appellant submitted that because of errors in advice given by the planning officer, the committee had misdirected itself regarding the sequential test and the corresponding parts of the practice guidance. It further submitted that the committee had been misled by the advice it was given on the decision in Tesco Stores Ltd v Dundee City Council  UKSC 13,  P.T.S.R. 983.
HELD: (1) The officer’s advice to the planning committee on the sequential test was not materially deficient or misleading, and had not rendered the decision unlawful. The judge below had rightly cautioned against a mechanical application of the practice guidance, echoing the warning given in Telford and Wrekin Council v Secretary of State for Communities and Local Government  EWHC 1638 (Admin) that a decision-maker was not constrained to interpret the provisions of the guidance “in a rigid, mechanistic fashion”, Telford applied. The policies for retail development in the NPPF did not require an applicant for planning permission for such development outside a town centre to demonstrate a need for it. The need test in government policy for retail development proposals had been withdrawn and was not re-introduced in the NPPF. Under para.24 of the NPPF, applicants and local planning authorities were expected to “demonstrate flexibility on issues such as format and scale”. What bounds could reasonably be set on an applicant’s preference and intentions as to “format and scale” would always, and necessarily, depend on the facts and circumstances of the particular case. The policy in para.24 should not be seen as prescriptive in that respect. It plainly was not. Flexibility was also called for under the practice guidance, in somewhat more elaborate terms. In the instant case there could be no complaint about the legal advice given to the planning committee on the question of need. The committee had been reminded of the absence of a need test in government policy, and had been advised that the criterion relating to need in the local plan no longer carried weight. That was not to say that the need for additional food shopping facilities in the town was immaterial; there was a distinct and pressing need. Nor could it be suggested that the local authority had failed to apply the sequential test with appropriate flexibility. The premise in the appellant’s argument, that there was scope in the town for only one food store of the format and scale proposed by the second respondent, was mistaken. On a fair reading of the committee reports, the sequential test had been properly understood and lawfully applied, in accordance with the NPPF and the relevant parts of the practice guidance dealing with the considerations of “availability”, “suitability” and “viability”. The officer had not disregarded the site of the appellant’s store; he had reminded the committee that planning permission had been granted for an extension of the existing store. His conclusions on the sequential test were unassailable, R. (on the application of CBRE Lionbrook (General Partners) Ltd) v Rugby BC  EWHC 646 (Admin),  Env. L.R. D3 considered (see paras 28-40 of judgment).
(2) The policies considered in Tesco Stores were sufficiently similar to the policy and guidance in play in the instant case to justify the advice given by the planning officer, Tesco Stores considered. The policy for the sequential approach in para.24 of the NPPF and the practice guidance was not in all respects the same as the development plan policies construed in Tesco Stores. However, the question was not one of comparative policy construction, but whether the advice was such as to vitiate the local authority’s decision. It was not. The officer’s advice was firmly based on the policy and guidance he was applying. He proceeded on a true interpretation of the relevant policy and guidance, applying them reasonably and lawfully to the facts and circumstances of the alternative sites he was considering (paras 41-47).