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At what point does a site cease to be “available” for the purposes of the sequential test? This was the question considered in a recent case, writes Katie Scuoler.

In R (oao) Tesco Stores Limited v Stockport Metropolitan Borough Council [2023] EWHC 3154 (Admin) Tesco challenged the grant of planning permission for the erection of an out of centre Lidl food store in Heaton Norris, Stockport arguing that the officer’s report materially misdirected members on the meaning of “available” for the purposes of the sequential test.

The NPPF requires that main town centre uses should be located in town centres, then in edge of centres locations and then only if suitable sites are not available (or expected to become available within a reasonable period) should out of centre sites be considered. 

The Lidl application was for out of centre retail use. For sequential test purposes, a number of sites were considered to be suitable for the proposed retail use, and sequentially preferable. These included land at Water Street, which was the subject of a planning application for a discount foodstore, and the vacant Unit 4B.

The officer’s report concluded that neither site was available or expected to become available within a reasonable period. This was because the owners of Unit 4B were at an advanced stage of legal negotiations with another food operator, and Aldi had entered into a legally binding agreement in regard to the Water Street site which provided for Aldi to occupy the store if planning permission was granted. The officer’s report concluded that as these sites had been taken up by other operators, they were not available to Lidl or in fact to anyone else and were therefore not available.

Tesco’s argument relied on paragraph 42 of Aldergate Properties Ltd v Mansfield District Council. In Aldergate Ouseley J held that “suitable” and “available” generally mean “suitable” and “available” for the broad type of development proposed in terms of size, type and range of goods. The identity of an applicant or proposed occupier was generally not relevant. Paragraph 42, which was specifically relied on by Tesco, noted that if a town centre site is owned and used by a retailer who it is not going to make it available to another retailer, then it is plainly available for retailing though only to one retailer. The judgment noted that “available” cannot mean available to a particular retailer but must mean available for the type of retail use for which permission is sought.

In this case Ms Ridge (sitting as a Deputy High Court Judge) held that paragraph 42 of the Aldergate judgement was simply a restating of the finding that the suitability and availability of a site cannot be assessed having regard to one particular retailer. In Ms Ridge’s judgment the words “or expected to become available within a reasonable period” when given their natural and ordinary meaning point to some possibility of an unidentified applicant having the opportunity to secure occupation of a site in a reasonable timeframe. Having obtained evidence, the Council had assessed that both sites were essentially off the market and not commercially available to any operator other than those already under contract. 

Here the sites were held not to be available by virtue of being essentially off the market. In the 2021 appeal decisions in relation to land off Mansfield Road/Eastfield Side the Inspector held that whether a site is being actively marketed is not a prerequisite to it being available through other channels. In that case the landowner, Asda, had made clear the land was available and offers were invited, which would be taken to board level for approval. Similarly, in the 2016 appeal decision in relation to Honiton Road, Exeter the Secretary of State endorsed the Inspector’s view that although a site was not on the market to developers, it was nonetheless available as the new retail floorspace would be marketed to traders who would occupy it regardless of who developed or owned the scheme. 

Whether or not a site is on the market is not itself determinative of whether a site is available. What emerges is a question about the commercial reality – if a site is already committed to an occupier, then the commercial reality is that it is not available to any other unidentified operator. To answer that question planning authorities (as Stockport MBC did in this case) will need to take steps to verify the information provided to them about the weeds of any purported commercial negotiations.

Katie Scuoler is a Senior Associate at Dentons. This article first appeared on the firm’s UK Planning Law Blog.