Tesco Stores Ltd, R (On the Application Of) v Lidl Great Britain Ltd

Factual and Procedural Background

The appellant, Company A, appealed against an order of a deputy judge of the High Court dismissing its judicial review claim challenging planning permission granted by the local planning authority, Company B, for the erection of a new food store by Company C on a site outside any designated town centre. The site was classified as "out-of-centre" under retail development policy. Company A operates two edge-of-centre superstores nearby and objected to the proposal, along with others. The local planning authority's committee resolved to approve the proposal following the case officer's recommendation, and planning permission was granted.

The local planning authority assessed the suitability and availability of several sequentially preferable sites, including two key sites: one in a retail centre previously occupied by another retailer and another at a different location subject to a legally binding agreement with a discount foodstore operator. Both sites were considered not "available" for the proposed development under the sequential test in national planning policy. Company A's claim was advanced on three grounds, primarily alleging misinterpretation and misapplication of the sequential test policy, but the claim was dismissed on all grounds.

Legal Issues Presented

1. Whether the local planning authority misunderstood and misapplied the sequential test in national and development plan policy for retail development when determining the planning application for a new food store on an out-of-centre site.
2. Specifically, whether a site already committed to an occupier can be regarded as "available" for the purposes of the sequential test in paragraph 87 of the National Planning Policy Framework (NPPF).

Arguments of the Parties

Appellant's Arguments

• The local planning authority erred in interpreting paragraph 87 of the NPPF by concluding that a site was not "available" if it was already committed to an occupier.
• On a proper interpretation, a site is "available" if it is available for the type of development proposed, regardless of control by another person.
• The sequential test was not met because sequentially preferable sites were "available" despite being controlled by other retailers.
• Relied on a prior judgment that the identity of the retailer controlling a site should not affect the availability assessment under the sequential test.

Respondents' Arguments

• The local planning authority's conclusion that the sites were not "available" was rational and based on commercial reality, as the sites were committed to other retailers and not accessible to any other operator.
• The policy does not require that sites be available to a particular applicant but that they be available generally for the type of retail use proposed.
• The sequential test must be applied with planning judgment considering the facts at the time of decision, including whether sites are expected to become available within a reasonable period.
• The council properly disregarded the identity of the applicant in its assessment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tesco v Dundee City Council [2012] UKSC 13	Interpretation of "suitable" in sequential test policy; suitability relates to the development proposed, not meeting identified deficiencies; flexibility and realism are required.	The court applied the principle that "suitable" means suitable for the development proposed by the applicant, and the sequential test requires flexibility in format and scale.
Warners Retail (Moreton) Ltd. v Cotswold District Council [2016] EWCA Civ 606	Sequential test requires flexibility; sites should not be rejected based on self-imposed operator preferences.	The court acknowledged that inflexibility by a single operator would undermine the public interest in the sequential test.
Aldergate Properties Ltd. v Mansfield District Council [2016] EWHC 1670 (Admin)	Interpretation of "available" and "suitable" in sequential test; availability and suitability relate to the broad type of development, not the identity or preferences of the retailer.	The court held that availability should not be judged from the retailer's perspective; sites controlled by other retailers may still be available for the type of development proposed.
Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] UKSC 37	Distinction between policy interpretation (judicial role) and policy application or making (planning authority role).	The court emphasized that interpretation of planning policy is for judges but application is for decision-makers, subject to public law review.
R. (on the application of Corbett) v Cornwall Council [2022] EWCA Civ 1069	Interpretation of planning policy should be straightforward and based on ordinary meaning in context.	The court applied this principle to interpret the sequential test policy plainly and without imposing glosses.
Gladman Developments Ltd. v Secretary of State for Communities and Local Government [2020] EWHC 518 (Admin); [2021] EWCA Civ 104	Caution against overly fact-specific interpretations that constrain policy application.	The court recognized the need for broad, flexible application of planning policies like the sequential test.

Court's Reasoning and Analysis

The court began by emphasizing the importance of interpreting the sequential test policy in paragraph 87 of the NPPF according to its ordinary language and context, without imposing unwarranted glosses. The purpose of the sequential test is to prioritize town centre and edge-of-centre locations over out-of-centre sites for main town centre uses, with a clear order of preference. The terms "suitable" and "available" are ordinary English words requiring planning judgment applied to the facts at the time of decision.

The court acknowledged prior case law establishing that suitability relates to the proposed development, not the identity of the applicant or retailer, and that flexibility in format and scale is required. Regarding availability, the court agreed with the local planning authority's approach that a site already committed to an occupier and not accessible to other operators is not "available" for the purposes of the sequential test. This interpretation was consistent with the policy wording, which includes consideration of sites "expected to become available within a reasonable period".

The court found that the local planning authority properly exercised planning judgment based on evidence that the sequentially preferable sites were under legal commitments to other retailers, making them unavailable to any other party. The identity of the applicant or operator was irrelevant to this conclusion. The council's decision was rational, lawful, and consistent with the principles established in the cited precedents, including the judgment in Aldergate Properties, when read in its factual context.

The court further noted that the local planning authority had assessed the cumulative retail impact of the proposed development alongside the committed developments on the sequentially preferable sites and found no significant adverse impact on town centre vitality or investment, a conclusion not challenged in this appeal.

Holding and Implications

The court DISMISSED the appeal.

The court held that the local planning authority did not misunderstand or misapply the sequential test policy in paragraph 87 of the NPPF by concluding that sequentially preferable sites were not "available" due to their commitments to other retailers. The decision reflects a lawful and rational exercise of planning judgment based on the facts at the time of decision. The ruling confirms that availability under the sequential test refers to a site's general availability for the proposed type of retail development, not availability to a particular applicant or retailer. No new precedent was established; rather, the decision applied existing principles to the facts of this case. The direct effect is that the planning permission granted by the local planning authority stands, allowing the proposed out-of-centre food store development to proceed.