16/12/21 – Planning Permission Granted for Daventry Retail Park

Planning permission has been granted for an extension to an existing retail park within the rural countryside of Daventry.

Aitchison Raffety is pleased to have supported Heart of the Shires Limited in attaining planning permission for the change of the use of agricultural land to retail, and the construction of three new retail buildings including a garden centre. The application site is located in the open countryside to the north of the village of Weedon in Daventry and lies immediately adjacent to the A5 which runs alongside the site.

The proposal diversifies the existing retail complex, effectively doubling the size of the existing enterprise. The garden centre will create an additional floor space of 595 sqm and the new retail units a further 644 sqm of floor space.

Aitchison Raffety’s initial instruction was to prepare a Sequential Impact Assessment to support the proposal. This was resisted by the Councils planning policy team who held concerns that the development would have a negative impact on the retail units within Daventry Town Centre. A further Retail Impact Assessment report was still not deemed sufficient to satisfy the policy section of the Authority, and so a subsequent Addendum report was provided arguing that it would be unreasonable to expect the existing retailers to disaggregate themselves from their current premises into the Town Centre; particularly when there was policy support for rural businesses within the Development Plan. Aitchison Raffety supported this position having cited a number of pieces of case law, their relevance summarised as set out below:

Tesco v Dundee City Council [2012] UKSC13

In this decision, the Supreme Court tells us what ‘suitable’ means within the context of the sequential approach. It establishes two points:

  1. that if a site is not suitable for the commercial interests of the developer in question, then it is not a suitable site for the purposes of the sequential approach; and
  2. that in terms of the size of the alternative site, provided that the applicant has demonstrated flexibility with regards to format and scale, the question is whether the alternative site is suitable for the proposed development, not whether the proposed development could be altered or reduced so that it can be made to fit the alternative site.

There is nothing in the Dundee case to support the argument that flexibility applies to the retailer’s judgement of its commercial requirements. This is reflected in paragraph 30 of the case, but also in 38 where Lord Hope states the sequential test criteria “are designed for use in the real world in which developers wish to operate, not some artificial world in which they have no interest in doing so”.

Zurich Assurance v North Lincolnshire Council [2012] EWHC 3708

In this North Lincolnshire case, the judge picked up on the concept of the ‘real world’ where in paragraph 61 he said “it is also important to mark that developers …work in the real world. Marks and Spencer had assessed the only available town centre alternative to the Site, and had 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”.

The judge went on to explain (in paragraph 62) that the decision-maker was ‘bound’ to take this, and that the retailer would not go to the sequentially preferable site if the application was refused.

Warners Retail (Moreton) Ltd v Cotswold DC [2014] EWHC 2504

More recently the Tesco Dundee expression of the Sequential Test was applied by the High Court as per the National Planning Policy Framework, where the Judge in paragraph 35 drew on a decision of the Secretary of State in Rushden Lakes to support this finding [34] that such differences as there are between the NPPF and the Scottish policy statement are “not …material”.

Upon the Council’s request, and despite having paid the relevant application fee, the applicant chose to pay for an independent review. Whilst that review expressed some concerns, the Council accepted that the independent reviewer had not taken into account the Addendum provided and had since left the company as well. The Council also accepted that the proposal would not have a detrimental impact on the Town Centre given the niche market of the business model and that the garden centre was not a town centre use; being a use expected to be located within the rural area.

Planning permission was granted by members of the committee, and approval was issued on 5 November 2021.

Should you wish to discuss any sequential assessment matters you may face, please contact Andrew Gray, Associate Director, on 01604 880163 or by email andrew.gray@argroup.co.uk.