Warners Retail (Moreton) Ltd v Cotswold District Council & Ors

Factual and Procedural Background

This appeal concerns the interpretation and application of the "sequential test" for proposed retail development as set out in paragraph 24 of the National Planning Policy Framework ("the NPPF") and the associated "Planning for Town Centres Practice guidance on need, impact and the sequential approach" ("the practice guidance"). The appellant, Warners Retail Ltd. ("Warners"), challenged the outline planning permission granted by the local planning authority, Cotswold District Council ("the council"), on 12 December 2013 for a food store development by Minton Health Care Ltd. and Glamar Leisure Ltd. ("Minton") at Fosseway Farm, Moreton-in-Marsh. Warners also objected to a similar proposal by a fourth party, which was refused by the council. Warners own a food store operated by Budgens located near the town centre. The claim for judicial review was dismissed by the High Court judge, Supperstone J., on 22 July 2014. Permission to appeal was initially refused but subsequently granted following an oral hearing.

Legal Issues Presented

1. Whether the council correctly interpreted and lawfully applied the "sequential test" for retail development as set out in paragraph 24 of the NPPF and the practice guidance.

Arguments of the Parties

Appellant's Arguments

• The council misdirected itself in its understanding and application of the sequential test policy, failing to address key questions from the practice guidance regarding availability and suitability of alternative sites.
• The Budgens store site was sequentially preferable and should not have been excluded simply because it was not available to the applicant.
• The committee was misled by advice regarding the Supreme Court decision in Tesco Stores Ltd. v Dundee City Council and a related appeal decision in Sheffield, as the Scottish policies considered in Tesco were not the same as the English policies applicable here.
• The planning committee should have considered whether the extended Budgens store could meet the identified need, and if so, found Minton’s proposal failed the sequential test due to lack of need.

Respondent's Arguments

• The officer’s advice to the committee was not materially deficient or misleading, and the council’s decision was lawful.
• The practice guidance must be read consistently with the NPPF, which does not require a demonstration of need for retail development outside town centres.
• The council applied the sequential test with appropriate flexibility, considering availability, suitability, and viability of alternative sites, including the Budgens site.
• The Budgens site was not available for further development beyond the approved extension, and the town could accommodate both the extended Budgens store and Minton’s proposed store without adverse impact.
• The Supreme Court’s decision in Tesco v Dundee City Council was sufficiently similar to the policy and guidance in this case to justify the advice given.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the council’s application of the sequential test under paragraph 24 of the NPPF and the practice guidance, focusing on the three key considerations of availability, suitability, and viability of alternative sites. The court found that the officer’s advice to the planning committee was consistent with the NPPF policy, which does not require a demonstration of need for retail development outside town centres. The officer properly considered the Budgens site, acknowledging its planning permission for extension and its unavailability for further development beyond that. The officer also correctly advised that Minton had demonstrated sufficient flexibility regarding scale, format, and parking in assessing alternative sites.

The court rejected the appellant’s argument that the sequential test required the committee to consider whether the extended Budgens store could meet the identified need and thereby preclude Minton’s proposal. This was inconsistent with current national policy, which removed the need test previously required under earlier policy frameworks. The court accepted that the town could accommodate both the extended Budgens store and Minton’s proposed store without adverse impact on the vitality and viability of the town centre, based on the independent retail impact assessment.

Regarding the appellant’s contention that the Supreme Court’s decision in Tesco v Dundee City Council was inapplicable due to differences in policy regimes, the court held that the policies were sufficiently similar to justify the officer’s reliance on that case. The court further found that the officer’s reference to a recent appeal decision in Sheffield applying the sequential approach in line with the Supreme Court’s reasoning was appropriate and not misleading.

Overall, the court concluded that the council’s decision was a lawful exercise of planning judgment, consistent with the relevant national policy and guidance, and that the officer’s advice was sound and not materially misleading.

Holding and Implications

DISMISSED

The court dismissed the appeal, upholding the council’s grant of planning permission for Minton’s proposed retail development. The decision confirms that under the NPPF, the sequential test does not require a demonstration of need for out-of-centre retail proposals and that planning authorities may lawfully grant permission where no suitable and available sequentially preferable sites exist, even if an extension to an existing store is planned but not yet built. The ruling affirms the proper application of the sequential test with flexibility as required by the NPPF and practice guidance, and clarifies that reliance on the Supreme Court’s interpretation of similar Scottish policies is appropriate in the English context. No new precedent was established beyond the direct effect of upholding the council’s planning decision in this case.