R (on the application of Tesco Stores Ltd) v Stockport Metropolitan Borough Council and Lidl Great Britain Ltd [2023] EWHC 3154 (Admin)
Tesco v Stockport 2023 is an important High Court judgment on when a sequentially preferable retail site can cease to be available. The court held that two more central sites could lawfully be treated as unavailable where they had genuinely been committed to other food retailers and were effectively off the market. The Court of Appeal later affirmed that sequential-test conclusion in Tesco v Stockport [2025] EWCA Civ 610.
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- Neutral citation
- [2023] EWHC 3154 (Admin)
- Court
- High Court of Justice, King's Bench Division, Administrative Court
- Judgment date
- 11th December 2023
- Judge
- Karen Ridge, sitting as a Deputy High Court Judge
- Case number
- CO/4855/2022
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What Tesco v Stockport 2023 decided
Stockport granted permission for a 1,900 square metre Lidl food store at Wellington Road North, Heaton Norris. The site was out of centre.
Two more central sites had featured prominently in the sequential assessment. Unit 4B at the Peel Centre was being negotiated with another food operator, while the Water Street site was subject to a planning application for an Aldi store and a legally binding agreement in principle with Aldi.
Tesco argued that both sites still had to be treated as available for the purposes of the sequential test, relying heavily on Aldergate Properties.
Karen Ridge, sitting as a Deputy High Court Judge, rejected the challenge.
Availability is judged at the date of the planning decision
The factual position had changed while Lidl’s application was being considered. Earlier in the process, the council’s retail consultants had regarded the two sites as potential alternatives. By the time the committee decided the Lidl application, both had moved much further towards occupation by other food retailers.
The court held that availability had to be assessed on the facts as they stood when the planning decision was made. A sequential assessment is not frozen on the day the application is submitted.
A site can genuinely be off the market
The judge distinguished between a site being unavailable merely because the particular applicant cannot obtain it and a site being unavailable in commercial reality because it has already been committed to another development or occupier.
Unit 4B was in legal negotiations with a food operator. Water Street was supported by a legally binding arrangement with Aldi.
The council was entitled to conclude that those sites were not simply unavailable to Lidl. They were effectively no longer available for another additional food-store proposal at all.
Why this did not contradict Aldergate
Aldergate concerned a very different problem. Mansfield had excluded town-centre sites because Aldi itself did not want to operate another store near its existing stores. The restriction arose from one retailer’s own commercial preferences.
In Stockport, the two sites were being taken forward for food-store development by other parties. The council’s conclusion did not depend on Lidl’s identity or its willingness to trade from those sites.
The High Court therefore treated the Aldergate observations on availability as highly contextual rather than a rule that a site must continue to be treated as available until a competing store is physically open for trade.
The New Bridge Lane Aldi site was a separate issue
Tesco also argued that an existing Aldi site at New Bridge Lane should have been included in the sequential assessment because Aldi intended to relocate to Water Street.
The council had defined a five-minute drive-time catchment area for the Lidl proposal. The vehicular access to New Bridge Lane lay outside that catchment, and the council’s consultants had not treated it as a sequential alternative.
The court held that the definition and application of the catchment area were matters of planning judgment and that the council had not acted irrationally by excluding New Bridge Lane from the sequential search.
This issue was not part of the later Court of Appeal hearing, where permission to appeal was confined to the meaning of availability.
The council did breach the background-papers duty
Stockport had commissioned external retail advice from Tetra Tech and Alder King. Tesco asked to see that advice before the committee meeting, but the council did not make it available.
The court held that those consultant reports were background papers for the purposes of section 100D of the Local Government Act 1972 and that the council had breached the statutory duty.
That conclusion is useful alongside cases such as Whitewebbs Park, Greenfields and Chidswell, but the result on remedy was different.
The background-papers breach did not lead to quashing
The officer report had summarised the council’s retail consultants’ evolving advice in considerable detail. Tesco also had the applicant’s retail material and already understood the council’s reasoning well enough to make focused objections on the sequential-test issue.
The judge therefore found that the failure to disclose the consultant reports had caused no material prejudice. She was also satisfied that the outcome would highly likely have been no different if the documents had been made available.
The permission was not quashed on that ground.
The Court of Appeal affirmed the key sequential-test ruling
Tesco appealed only the first ground concerning the interpretation of availability. The Court of Appeal dismissed that appeal in 2025.
The appellate court confirmed that availability is an ordinary planning concept requiring judgment on the facts at the date of decision. A site can cease to be available when it has genuinely been committed to another retailer and is no longer a realistic alternative for additional development.
For the current appellate authority, read Tesco v Stockport [2025] EWCA Civ 610.
Read the full 2023 Tesco judgment
The approved High Court judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Related Planning Geek guidance
See our current guide to the Town Centre Sequential Test for main town centre uses.
Tesco v Stockport 2023 Case Law Page Updated: 9th September 2026