Planning: the sequential test

26 July 2016

For those involved in retail development, a recent Planning Court case serves as a helpful summary and update on the interpretation of the sequential test set out in para 24 of the NPPF.

The case concerned an application for planning permission for a large foodstore on a business park, some 3 ½ miles outside Mansfield town centre. Whilst not named on the application, it was apparent that Aldi was the intended occupier. As it happened, Aldi already had an existing store nearby, and another which had been permitted. The claimant was a town centre developer who objected to the grant of consent. The grounds of challenge included an alleged misinterpretation of how the sequential test should be carried out. The Court agreed that there had been a misinterpretation of that test, and as such a failure to take into account a material consideration, so quashed the consent accordingly.

The sequential test, as many will know, obliges planning authorities to "require applications for main town centre uses to be located in Town Centres, then in edge of centre locations and only in suitable sites are not available should out of centre sites be considered"

In this case, the planning authority had (wrongly) accepted the exclusion of Mansfield town centre from the sequential test on the basis that it would not make commercial sense for Aldi to develop so close to its other stores. The Court held very clearly that the commercial attributes of a particular retailer should not dictate what was "suitable" and "available" in the context of the sequential test – the test was not one of an individual operator's preferences, or of which sites were available to that particular retailer. Rather, reference should be had to the broad type of development which is proposed by the application "by approximate size, type and range of goods" and to what sites are available for that type of retail use.

Whilst a personal condition had been imposed, this was held to have reinforced the error of approach rather than resolving it.  Ouseley J also gave a detailed judgement on the other grounds of challenge, including the interpretation of development plan policies and more on the above personal condition.

Incidentally, having recently run some 'Introduction to Planning' training sessions, for which I spent far too long thinking of how to best explain the purpose of the planning system, I was pleased to read the following nugget in Ouseley J's judgment "It is the purpose of the planning system to control development, that is to permit, prevent, encourage, inhibit or limit and condition it, so that the individual private or commercial interest and the broader public interest meet in reconciliation however uneasily".  I will leave you to decide whether you think that is what the system achieves.

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