The sequential test, currently in paragraph 24 of the Government’s National Planning Policy Framework, has been a major part of government retail development policy for a long time.
The sequence is 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 areas where the court will swap its own view for the view of the decision-maker.
The decision-maker’s judgment will not be challengeable except on “Wednesbury” grounds that no reasonable tribunal properly constituted could have come to that decision.
In the High Court Judicial Review case of CBRE Lionbrook (General Partners) Ltd on the application of) v Hammerson (Rugby) Ltd  the Council was concerned about the loss of retail spending from the Borough of Rugby and the need to retrieve it had made the Council’s application of the sequential test more urgent in this case.
Upholding the Council’s planning decision to grant Hammerson permission for an out of town site the court said the Council had not ignored the possibility that development might eventually come forward on the closer to centre sites, at Evreux Way and North Street, allocated in the Core Strategy.
It knew that CBRE Lionbrook had objected to Hammerson’s proposal on the grounds that the Evreux Way site was suitable and available and could be viably developed. But on its officer’s advice it had been entitled to conclude, as it did, that neither of those two sites was capable of being developed soon enough to be regarded as an “available sequentially preferable” site.
This blog has been posted as a matter of general interest. It does not replace the need to get bespoke legal advice in individual cases.