Applying the sequential test

Breaking the chain iStock 000005716223XSmall 146x219Clare Hardy reports on a High Court case where it was claimed that a local authority had misunderstood or failed to apply the sequential test when granting a planning permission.

In Scottish Widows plc and others v Cherwell District Council [2013] All ER (D) 221 (Dec) the defendant local authority granted planning permission to a developer for the redevelopment of a site.

The local authority granted permission despite a report from the local authority’s head of public protection and development management which advised that the sequential test was not satisfied and that whilst the development might not have a significant impact on Banbury Town Centre, it would jeopardise investment in two town sites.

The report advised that either of those points would justify refusal of the application. 

The claimants applied for judicial review of the grant of planning permission. They argued that:

  1. On the material before it, the only conclusion that the local authority could have come to on the sequential test was that it had not been met. 
  2. The local authority had misunderstood or failed to apply the sequential test.
  3. On the material available the only conclusion available to the local authority was that there would be significant damage to the vitality and viability of the town centre if the application were to be granted.
  4. The summary reasons provided by the local authority were inadequate.
  5. The authority had acted irrationally in not securing an agreement under section 106 of the Town and Country Planning Act which obliged a retailer to retain its town centre store for a finite period.

The application was dismissed. It was found that on no fair reading of the report could it have been said that the local authority’s head of public protection and development management had considered that there was only one answer to the question of whether the sequential test had been met. 

It had been for the head of public protection and development management to advise upon, but for the local authority to decide, the question. From the material placed before it, the local authority had been entitled to conclude that the developer had demonstrated that the sequential test had been met.

Further, the summary reasons had not been legally wanting and the absence of a legal commitment in a section 106 agreement had not been unlawful.

Clare Hardy is an Associate at Eversheds. She can be contacted on 0845 498 4355 orThis email address is being protected from spambots. You need JavaScript enabled to view it..