Sequential test challenge refused permission

Mrs Justice Lieven refused permission to Tesco Stores Limited to claim JR in respect of the decision by Colchester Borough Council to grant planning permission for a store to be operated by Lidl UK GMBH. The principle ground of challenge concerned officers’ consideration of the sequential text on the basis that Lidl’s trading operation, as a deep discounter, was sufficient to differentiate it from Tesco’s own trading operation having regard to Aldergate and the sequential test. The Judge’s primary reasoning was as follows: ‘Ground one asserts that the Defendant erred in law by referencing Lidl’s trading style and that that is the same error as in Ouseley’s J’s decision in Aldergate. However, it is clear in Aldergate that there is a judgment to be made as to whether what is being assessed is the individual retailer’s corporate requirements, or rather whether it is a particular type of development. There is a clear distinction in the retail sector between the deep discounter retailers and the more traditional retail operations. As set out in the AoS this distinction has been recognised by the Competition Commission and the Secretary of State’ Simon Pickles settled Summary Grounds on behalf of Colchester Borough Council. The court’s order can be found here.