The 2012 NPPF: A Digest of Decisions

Section 2 – Ensuring the vitality of town centres

NPPF 23-27

Warners Retail (Moreton) Limited v Cotswold District Council [2014] EWHC 2504 (Admin), Supperstone J
Rupert Warren KC and Guy Williams appeared for the Claimant

“the NPPF no longer requires applicants to supply evidence of need when bringing forward applications for new retail development outside town centres.” [21]

NPPF 23

Performance Retail Ltd Partnership v Eastbourne DC [2014] EWHC 102 (Admin), CMG Ockelton
Christopher Boyle KC and Guy Williams appeared for the Claimant
Robert Walton appeared for the Council
Carine Patry appeared for the Secretary of State

Paragraph 23 requires, as [the Inspector] said, a network and hierarchy of centres. That is to say, it requires not merely that there be centres, but that the relationship between them and their relative importance is set out. To suggest that applications for development in any centre are to be considered on the same basis is to ignore the concept of a hierarchy. [37]

NPPF 24

R (Zurich Assurance Ltd t/a Threadneedle Property Investments) v North Lincolnshire Council [2012] EWHC 3708 (Admin), Hickinbottom J
Christopher Katkowski KC and Graeme Keen appeared for the Interested Party

Hickinbottom J approved the approach to suitability adopted in Tesco Stores v Dundee [2012] UKSC 13. At para 61, he cited Lord Reed at paragraph 29 of Tesco Stores, and Lord Hope at paragraph 38 of Tesco Stores:

“29. Provided the applicant has [given consideration to the scope for accommodating the development in a different form and to have thoroughly assessed sequentially preferable locations]… the question remains… whether an alternative site is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site”

“38. [T]he context indicates that the issue of suitability is directed to the developer’s proposals, not some alternative scheme which might be suggested by the planning authority. I do not think that this is in the least surprising, as developments of this kind are generated by the developer’s assessment of the market that he seeks to serve. If they do not meet the sequential approach criteria, bearing in mind the need for flexibility and realism to which Lord Reed refers…, they will be rejected. But these criteria are designed for use in the real world in which developers wish to operate, not some artificial world in which they have no interest doing so.”

Performance Retail Ltd Partnership v Eastbourne DC [2014] EWHC 102 (Admin), CMG Ockelton
Christopher Boyle KC and Guy Williams appeared for the Claimant
Robert Walton appeared for the Council
Carine Patry appeared for the Secretary of State

the NPPF provisions apply to the consideration of applications whether or not paragraph 24 is incorporated in a local plan [39]

R (CBRE Lionbrook (General Partners) Ltd) v Rugby BC [2014] EWHC 646 (Admin)­, Lindblom J
David Elvin KC and Sonal Barot appeared for the Interested Party

“The sequential test, which now appears in paragraph 24 of the NPPF, is not new. It has been an essential part of government policy for retail development for a long time. The sequence is familiar: town centres first, edge of centre sites second, and out of centre sites third. Out of centre sites can be considered only if “suitable sites” in the town centre or on the edge of a centre are “not available”. Suitability and availability are matters of planning judgment. They are not matters on which the court will substitute its own view for that of the decision-maker. The decision-maker’s exercise of judgment upon them will not be vulnerable to challenge except on Wednesbury grounds.” [164]

The appropriate timescale for the sequential test is not dictated by the NPPF, but is a matter for the decision-maker. [171]

Pragmatism is called for in the sequential test. [173]

R (Telford and Wrekin Borough Council) [2014] EWCA Civ 507, Sullivan, Kitchin, Floyd LJJ
Daniel Kolinsky appeared for the Interested Party

“the Inspector was not required to reach definitive conclusions as to Station Road’s availability and suitability if she was not satisfied that it was a sequentially superior site. She was entitled to consider the question of sequential superiority on the basis that Station Road was a potential opportunity. Only if she had come to the conclusion that this potential opportunity was sequentially superior would she have had to reach firm conclusions as to the extent to which that potential was a reality in terms of the availability and suitability of Station Road.” [43]

Warners Retail (Moreton) Ltd v Cotswold DC [2016] EWCA Civ 606, Davis, Beatson and Lindblom LJJ
Rupert Warren KC appeared for the Appellant

“The Government’s policy for the sequential approach in paragraph 24 of the NPPF and the practice guidance are not in all respects the same as the NPPG8 and development plan policies construed by the Supreme Court in Tesco v Dundee City Council. They are similar in broad intent, but they are not in identical terms. An obvious similarity, though the language is different, lies in the concept of “flexibility”. The requirement in the final sentence of paragraph 24 of the NPPF for both applicants and local planning authorities to “demonstrate flexibility on issues such as format and scale”, as amplified by the advice in paragraphs 6.42 to 6.46 of the practice guidance, bears some similarity to the requirements for “flexibility and realism” on the part of both developers and retailers and planning authorities in paragraph 13 of NPPG8 and the requirement for planning authorities to be responsive to the needs for retailers in paragraph 14. That much is clear. But one should not simply read across the Supreme Court’s interpretation of the Scottish policies in Tesco v Dundee City Council as if it were the construction of the differently worded policy in paragraph 24 of the NPPF and the corresponding parts of the practice guidance. It is not.” [45]

Aldergate Properties Ltd v Mansfield District Council [2016] EWHC 1670 (Admin), Ouseley J
Daniel Kolinsky KC appeared for the Claimant

“In my judgment, “suitable” and “available” generally mean “suitable” and “available” for the broad type of development which is proposed in the application by approximate size, type, and range of goods. This incorporates the requirement for flexibility in [24] NPPF, and excludes, generally, the identity and personal or corporate attitudes of an individual retailer. The area and sites covered by the sequential test search should not vary from applicant to applicant according to their identity, but from application to application based on their content. Nothing in Tesco v Dundee City Council, properly understood, holds that the application of the sequential test depends on the individual corporate personality of the applicant or intended operator.” [35]

NPPF 23 and 24 are not to be read in isolation from each other [36].

R (Midcounties Co-operative Limited) v Forest of Dean District Council[2017] EWHC 2056 (Admin), Singh J
James Maurici KC appeared for the Claimant

“the Defendant correctly directed itself as to the relevant test, namely whether a site was suitable for the broad type of development and did not fall into the error of thinking that it was the needs of the particular operator Aldi which had to be accommodated.” [88]

NPPF 26

R (Hughes) v South Lakeland District Council [2014] EWHC 3979 (Admin), HHJ Waksman

“[There is no] policy which says that the LPA should consider the effect of any competition with an existing out of centre store, as opposed to retail facilities within the centre.” [83]

NPPF 26-27

W Morrisons Supermarket Plc v LB Hounslow [2018] EWHC 3426 (Admin), Ouseley J
Reuben Taylor KC appeared for the Interested Party

36. Mr Clay did not contend that the Council ought to have undertaken its own retail impact assessment as a separate legal or policy requirement. In my judgment, there was no requirement in any development plan policy for a retail impact assessment to be undertaken for the purposes of this planning application for a retail store in a defined District Centre. It is on the eastern edge of the Centre but it is plainly within it. He referred to policies in the NPPF. Paragraph 26 did not require a retail impact assessment for a retail development inside town centres, as Mr Clay appeared to accept, although Eversheds Sutherland, solicitors for Morrisons, ES, had repeatedly argued in correspondence that it did apply because the construction phase of the development had the potential temporarily to cause expenditure to take place outside a town centre. ES’s argument was a significant misunderstanding of what paragraph 26 says; had the NPPF intended to impose such a requirement for the construction phase of replacement town centre retail development, it would have said so expressly. To the contrary, it refers to retail impact assessments being necessary when assessing applications for retail development outside of town centres which are not in accordance with an up-to-date Local Plan.

37. Mr Clay relied instead on paragraph 27 which says that “Where an application…is likely to have significant adverse impact on one or more of the above factors, it should be refused.” Those factors taken from paragraph 26 included the impact of the proposal on town centre vitality and viability, “including … trade in the town centre…up to five years from the time the application is made.” Paragraph 27 of the NPPF does not deal with retail impact assessments. It requires refusal where the impact is found to be significantly adverse.

38. I reject Mr Clay’s submission. Paragraph 27 is not relevant. First, paragraph 27 is clearly linked to the outcome of the assessment of a proposal to which paragraph 26 applies, because it aims not at carrying out an assessment, but at the consequences of the assessment required by paragraph 26. It is where the consequences of an assessment required under paragraph 26 are significantly adverse, that a refusal should follow. The sequential test is not relevant here. Second, paragraph 27 is clearly not written in the context of the temporary disruption which the redevelopment of a town centre retail site for retail purposes will create. Paragraph 27 is looking to a time horizon, five years, which is well beyond the construction period of the proposal. Even were paragraph 27 not to be linked to paragraph 26, had the NPPF meant that such a process should be undertaken to cover the period of construction of a replacement town centre retail development, it would have said so.