Paragraph 24 of the NPPF provides for “applications for main town centre uses to be located in town centres, then in edge of centre locations”. Only if “suitable” sites “are not available should out of centre sites be considered”. Paragraph 27 further provides that an application should be refused where it “fails to satisfy the sequential test or is likely to have significant adverse impact on one or more of the above factors”.

In the case of Tesco Stores v Dundee City Council [2012] UKSC 13, the Supreme Court held that the question of suitability was to be interpreted objectively in accordance with the language used, read in its proper context. As such, the Council was correct in interpreting “suitable” to mean “suitable for the development proposed by the applicant”.

In light of this, is the sequential test really capable of ensuring that retail development is focused in town centres? Or, alternatively, can retailers now simply state that the alternative sites are not suitable for the specific features of their proposed developments, including their retail identity or business model?

Hickinbottom J considered the Tesco case in R (on the application of Zurich Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 (Admin). Marks and Spencer, having assessed the only available town centre alternative to the site in question, concluded that a development that was smaller than that proposed, or one with a more restricted range of goods, was neither commercially viable nor suitable for their commercial requirements. It was suggested, therefore, that disaggregation so as to occupy a vacant town centre store was not feasible, primarily because they had previously operated an in-centre store which failed.

Is it, therefore, now necessary for the name and identity of a retailer to form part of the question of suitability in order to reach a sound decision supported by evidence? It has been held previously that the identity of a proposed owner/developer might well be a relevant and material planning consideration (see R (on the application of Horne & Meredith Properties Ltd) v Bridgnorth DC [2005] EWHC 2251 (Admin) in the context of whether a change of ownership of a competing supermarket was a material circumstance that required reconsideration of a planning application). Nevertheless, given that the Zurich decision related to an alleged absence of evidence to support disaggregation properly being excluded, the case does not definitively answer the question.

There is, however, extant guidance on the point. The PPS4 Practice Guide (Planning for Town Centres - Practice Guidance on need, impact and the sequential approach) provides, at paragraph 6.41, that “when promoting a proposal on a less sequentially preferable site, it will not be appropriate for a developer or retailer to dismiss a more central location on the basis that it is not available to the developer/retailer in question”.

Nevertheless, the Practice Guide not only

predates the NPPF but also the Tesco and Zurich decisions which suggest that it is highly relevant to ask whether a geographically preferable site is available to host the specific proposal. Further, the Court in Telford & Wrekin Borough Council v Secretary of State for Communities and Local Government [2013] EWHC 1638 (Admin) also suggested that a decision maker should “use the Practice Guide conscious of the fact that, in some parts of its detail, it is directed towards a differently formulated policy test”. On the other hand, the Practice Guide has not yet been superseded or revoked and, therefore, may still be used to guide application of the content of the NPPF where appropriate.

As such, does flexibility now take centre stage in any sound application of the sequential test? Paragraph 6.32 of the Practice Guide provides that “proposals will need to demonstrate flexibility in terms of scale and format of development proposed; car parking provision and scope for disaggregation”. Nevertheless, suggesting that a developer alters a proposal to fit an available site within a town centre may be to suggest an inappropriate business decision for that developer. Therefore, the NPPF not only requires flexibility and realism from developers and retailers but also from planning authorities. Indeed, paragraph 24 of the NPPF provides that both “applicants and local planning authorities should demonstrate flexibility on issues such as format and scale”. Such flexibility would be a material consideration in determining whether sequentially preferable sites are not available, suitable and viable to accommodate the relevant proposal yet must, surely, be judged on a case-by-case basis because different degrees or types of flexibility may reasonably be expected of different applicants dependent on their circumstances and the characteristics of the town centre in question.

What, then, of impact and need? The emerging NPPF indicates that the “nature of the need that is to be addressed” is an important factor in the consideration of the sequential test. A retailer is, therefore, likely to be expected not only to demonstrate sufficient flexibility but also to provide evidence to support the scale of floor-space proposed, in order to reflect the retail capacity of the area that their proposal will serve.