This blog should perhaps be read with a pinch of salt. We acted for the losing claimant, Sainsbury’s.

Sainsbury’s have a town centre store in South Ruislip that they have permission to redevelop. Asda are promoting an edge of centre store. Asda were refused consent for their store on both impact and sequential test grounds. With minor revisions to the scheme six months later, the Council approved the scheme. Sainsbury’s challenged that approval.

Dove J generously interpreted the Council’s Committee report as reaching a conclusion that Sainsbury’s would proceed, regardless of the Asda development.  In the absence of anything clear in the report on that central point, hisconclusion was a masterpiece of kind inference.  As a consequence the Judge found that there was no adverse impact and that the Sainsbury’s redevelopment site was not sequentially “available”. The small changes to the refused scheme, and marginal revisions to the retail analysis, justified the Council in reaching a different conclusion.  Dove J’s judgment raises four issues of principle.

First, it undermines the sequential test. Paragraphs 24 and 27 of the NPPF are quite clear. They are part of the town centre first policy.  If there are suitable, viable and available sites then out of centre proposals should be refused. The policy is blunt. If there is a sequentially preferable site available for development then it should be given the opportunity to be developed first. It should not be left to build out in competition or following the secondary site.  If the preferred site fails to take advantage of the opportunity then, almost necessarily, it will then remove itself from being sequentially preferable. Dove J’s judgment simply does not respect the policy intention that town centres should be developed first. First should actually mean first.

Secondly, concluding that a site is not sequentially available because it is likely to be built out by a competitor rather misses the point of the sequential test.  If the Sainsbury’s site was available for development (and Dove J decided that the Council thought that was available for development and would be developed) then it must be a sequentially preferable site, even if it is not available to the competing developer.  And should lead to a refusal on the basis of the sequential test – after all, that is the preferred place for development.

Thirdly, the NPPF indicates that where either the sequential test or the impact test is failed then permission “should be refused“. The NPPF uses this diktat rarely. The clear policy intent is that unlike much of the NPPF, where questions of balance and competing interests are rightly highlighted, if either the sequential or impact test fail then the policy presumption is that permission should be refused. The same language is used in relation to a failure to deliver “good design“. Dove J found that the wording “should be refused” is no presumption for refusal, and in effect, gives the key town centre first policy tests no special priority. Clearly, decision-makers must always have the option to take account of the NPPF policy injunctions and decide that other material considerations outweigh them.  That is the essence of decision making.   However, the decision maker should only do so after having properly recognised that in NPPF terms planning permission should be refused. If the town centre first policy is to mean anything it should be that the starting point for a proposal that fails the sequential or impact test is that it should be refused.

Finally, planning decisions are important.  If a scheme is refused and then, with marginal changes, approved only 8 months later that undermines confidence in the planning system.  Planning authorities must always be allowed to change their minds but they should only do so with good and clear reasons.  Since the Courts are the only means of monitoring that when a volte face leads to a permission they should accept the responsibility of testing those reasons.