R (on the application of Tesco Stores Ltd) v Stockport Metropolitan Borough Council and Lidl Great Britain Ltd [2025] EWCA Civ 610
Tesco v Stockport 2025 is the current Court of Appeal authority on what it means for a more central site to be available under the town-centre sequential test. The court confirmed that availability is assessed in the real world at the date of the planning decision. A site can cease to be available before a competing store has actually opened where it has genuinely been committed to another operator and is no longer a realistic alternative for further development.
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- Neutral citation
- [2025] EWCA Civ 610
- Court
- Court of Appeal (Civil Division)
- Judgment date
- 9th May 2025
- Judge
- Sir Keith Lindblom, Lord Justice Baker and Lord Justice Lewis
- Case number
- CA-2023-002588
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What Tesco v Stockport 2025 decided
The case arose from Stockport’s permission for a Lidl food store at Wellington Road North, Heaton Norris. The application site was out of centre.
Two sequentially preferable sites were central to the dispute. Unit 4B at the Peel Centre was in advanced negotiations with another food retailer. The Water Street site was subject to a legally binding arrangement in principle with Aldi for a new food store.
Tesco argued that both sites remained available for the purposes of the sequential test because they were physically capable of retail development and had not yet been occupied by the other retailers.
The Court of Appeal dismissed Tesco’s appeal and upheld the High Court’s decision.
Available is an ordinary English word
Sir Keith Lindblom stressed that planning policy should normally be read straightforwardly rather than reconstructed through elaborate legal glosses.
The words suitable and available in the sequential-test policy are ordinary English words. They are different concepts and both require planning judgment on the facts of the particular case.
A site may be suitable but unavailable, or available but unsuitable. National policy does not prescribe one event which must always occur before a site changes from one state to the other.
Availability is assessed when the planning decision is made
The factual position can change while a planning application is being considered. A site which was a realistic alternative when an application was submitted may be committed to another scheme months later.
The court held that availability must be considered on the facts as they stand at the date of decision, with a realistic view of what is expected to happen within a reasonable period.
The sequential assessment is therefore a live exercise rather than a historic snapshot fixed on the application date.
A committed site can cease to be available before it is occupied
Tesco’s argument effectively required a more central site to remain available until the competing retail development had been completed and the new operator had begun trading.
The Court of Appeal rejected that approach. National policy did not impose such a rigid threshold.
Where the evidence shows that a site has been genuinely taken up for another food-store development, the planning authority can conclude that it is no longer a realistic alternative for a further proposal. Unit 4B and Water Street had both reached that position by the time Stockport decided Lidl’s application.
The identity of the retailer was still irrelevant
This is the point that reconciles Tesco v Stockport with Aldergate Properties.
Stockport did not say that the sites were unavailable because Lidl personally could not obtain them or because Lidl preferred not to trade there. The sites had been committed to other food-store schemes and were effectively unavailable to any additional operator.
The Court of Appeal expressly confirmed that the result did not depend on the identity of Lidl, Aldi or any other retailer. Had the applicant been somebody else proposing the same broad type of development, the availability conclusion could have been the same.
Aldergate remains important
Aldergate had involved Mansfield excluding a town centre because Aldi did not want to operate another store near its own existing outlets. That was a self-imposed corporate and competitive preference.
The Court of Appeal said the circumstances in Stockport were materially different. A planning authority cannot manipulate the sequential exercise around one operator’s preferences, but it can recognise the factual reality that another retail scheme has genuinely taken up a site.
There is therefore no inconsistency between the two authorities.
Suitability, availability and flexibility are separate parts of the exercise
The judgment also reinforces the need not to collapse different parts of the sequential test into one question.
Suitability calls for judgment about the form and scale of development against which alternative sites are tested, with the flexibility required by policy. Availability asks whether those sites are genuinely capable of being brought forward within the relevant period.
The fact that a site is physically suitable does not mean it is necessarily available.
The sequential test does not depend on proving retail need
The Court of Appeal reiterated that national planning policy has not required applicants to demonstrate retail need since 2009.
The sequential test and the separate retail impact test instead work together to support the health of town centres. Passing the sequential test does not guarantee permission. The authority must still consider whether the proposal would cause unacceptable harm to town-centre investment or vitality and viability where the relevant impact policy applies.
In Stockport the officer had considered the cumulative effect of the Lidl proposal alongside the new stores expected at Peel Centre and Water Street and concluded that significant adverse impact would not arise.
Warners, Aldergate and Tesco v Stockport form a useful sequence
Warners Retail explains flexibility and why the sequential test should not be turned into a need test.
Aldergate prevents the exercise being distorted by an individual retailer’s commercial preferences.
Tesco v Stockport 2025 confirms that a genuine factual commitment of a site to another development can nevertheless make it unavailable. The distinction is between a self-imposed operator preference and a real site availability constraint.
Read the full Tesco v Stockport Court of Appeal judgment
The approved Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.
Related Planning Geek guidance
For the current policy and practical steps, see our Town Centre Sequential Test guide. The High Court stage of this same dispute is explained separately in Tesco v Stockport [2023] EWHC 3154 (Admin).
Tesco v Stockport 2025 Case Law Page Updated: 9th September 2026