Refusal citing the absence of a retail sequential test

A refusal for failing to carry out a retail sequential test is one of the more curable reasons you can be given, because the missing document can be prepared and submitted with the appeal. What cannot be cured is a test that was done and failed, so the first job is to work out which of those two you are actually dealing with.

The retail sequential test is a different animal from the flood risk sequential test, despite the shared name. This one applies to main town centre uses proposed outside a centre, and it asks whether a sequentially preferable site is available and suitable for the development proposed.

When the test applies at all

National policy requires a sequential test for applications for main town centre uses that are neither in an existing centre nor in accordance with an up-to-date development plan. Two exemptions sit inside that sentence and both are worth checking before you accept the refusal reason.

If the site is within a defined centre, the test does not apply. If the proposal accords with an up-to-date plan, by sitting on an allocation for that use, the test does not apply either. Officers sometimes apply the test to a site that falls within one of those exemptions, and a decision notice that does so is worth challenging on its own terms.

Main town centre uses are widely drawn. Retail development, leisure and entertainment including cinemas, restaurants, drive-through restaurants, bars, pubs, nightclubs, casinos, health and fitness centres and bingo halls, offices, and arts, culture and tourism uses including theatres, museums, galleries, concert halls, hotels and conference facilities. A gym in a trading estate unit is a main town centre use. So is a drive-through coffee unit on a retail park fringe.

The thresholds that bring an impact assessment with it

Two separate requirements get confused. The sequential test has no floorspace threshold and applies at any scale. The impact assessment has a threshold, set locally where the plan sets one and otherwise at 2,500 m2 of gross floorspace for retail and leisure development outside town centres that is not in accordance with an up-to-date plan.

Many adopted plans set a lower local threshold, sometimes substantially lower, so check the plan rather than relying on the national default. Where the threshold is met, the assessment addresses the impact on existing, committed and planned investment in centres in the catchment, and the impact on town centre vitality and viability, both over a stated period.

The documents are separate. A Sequential Test (Retail) answers the site selection question and a Retail Impact Assessment answers the trading effect question, and submitting one does not satisfy a refusal reason about the other.

Defining the area of search and the centres in it

Work from the development plan's own hierarchy. The plan defines the centres, their boundaries and, for retail, the primary shopping areas within them, and the sequential approach runs through that hierarchy in order rather than across a radius drawn on a map.

Edge of centre has a definition worth memorising. For retail proposals it means a location well connected to and within easy walking distance of the primary shopping area, and for all other main town centre uses a location within 300 metres of a town centre boundary. The 300 metre figure attaches to the second category. Applying it to retail instead of the primary shopping area test is a frequent error in submitted tests.

Set out the catchment the proposal will serve, then list the centres in the hierarchy that fall within it, then assess sites in each. Where the authority disagrees with your catchment, the rest of the test is undermined, so put the catchment reasoning in writing early and ask the case officer to comment.

Availability, suitability and the Dundee question

The two words that decide most of these cases are suitable and available. Tesco Stores Ltd v Dundee City Council, decided by the Supreme Court in 2012, established that suitability is assessed against the development proposed rather than against some notional alternative development, and that reading has shaped the test ever since.

So a 2,000 m2 food store proposal is not defeated by the existence of a 600 m2 town centre vacancy, because that unit is not suitable for the development proposed. It is defeated by a town centre site that could take the proposal with reasonable adjustment.

Availability needs dated evidence site by site. Ownership, whether the site is marketed, whether there is an extant permission, whether assembly is required and whether the owner will sell or let within a reasonable period. A statement that a site is unavailable because the owner has not responded to a single letter will not survive cross-examination or a careful written representations case.

Flexibility and disaggregation

Policy expects applicants to demonstrate flexibility on format and scale. That is not the same as a requirement to split the proposal across several sites.

The distinction has been litigated repeatedly, and the practical position is that an applicant should show they have considered a reduced or differently configured scheme, while a council cannot require the operator to break a single coherent proposal into fragments that would not function. Make the flexibility case explicitly. State what was tested, by how much the floorspace or layout was varied, and why each variant was or was not capable of fitting a sequentially preferable site.

Where part of the proposal could stand alone, say so and deal with it. An ancillary element that a town centre site could accommodate is the kind of detail that turns an inspector against an otherwise solid test.

What satisfies an inspector

Six features recur in tests that survive appeal.

1. A stated catchment with reasons, and a site list drawn from the plan's centre hierarchy within it.
2. A site schedule with a plan, giving area, ownership, planning status and current use for each candidate.
3. Dated evidence for each availability and suitability conclusion, attached as appendices rather than summarised.
4. An explicit flexibility section setting out the variants tested.
5. Reasons that would also exclude the application site if they applied to it, removed. A ground that disqualifies every alternative but not your own site reads as special pleading.
6. A short conclusion that states the test is passed and why, rather than inviting the reader to infer it.

Previous appeal decisions on comparable proposals are indicative of how inspectors have approached the question and are not binding, and the care needed in using appeal decisions in a planning application applies here as much as anywhere. Where an objector with an interest in a competing centre is involved, expect their evidence to be thorough, and the mechanics of third party involvement in someone else's appeal are worth understanding before you lodge.

Where the test cannot be passed

Sometimes it cannot, and recognising that early saves the appeal fee. If a town centre site is available and suitable for the development proposed, the test fails, and no amount of drafting changes that.

Four routes remain. Reduce the scale so the proposal fits the sequentially preferable site and build there instead. Change the format, which for some operators is a real option and for others is not. Seek an allocation through the local plan or a neighbourhood plan, which is slow but removes the test entirely. Or apply for a temporary permission where the use really is short term, which some authorities will consider on the basis that the trading impact is time limited.

And be honest in the Planning Statement about which of those you are doing. An inspector who can see the test has failed will respect a case that argues other material considerations outweigh the conflict far more than one that pretends the conflict is not there. This is general guidance, not legal advice, so check the position with your local planning authority or a qualified professional before relying on it.

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