Warners Retail (Moreton) Ltd v Cotswold District Council & Ors [2016] EWCA Civ 606

Warners Retail is a leading Court of Appeal case on the town-centre sequential test. It explains how flexibility should be applied when looking for more central retail sites and, just as importantly, why the sequential test must not be turned back into the old national policy requirement to prove a retail need.

Neutral citation

[2016] EWCA Civ 606

Court

Court of Appeal (Civil Division)

Judgment date

24th June 2016

Judge

Lord Justice Davis, Lord Justice Beatson and Lord Justice Lindblom

Case number

C1/2014/2608

What Warners Retail decided

Cotswold District Council granted outline permission for a food store at Fosseway Farm, about 500 metres from the commercial centre of Moreton-in-Marsh. The site was out of centre.

Warners operated a Budgens store in a sequentially preferable edge-of-centre location. Budgens also had an implemented permission to extend its store. Warners argued that the council had misunderstood the sequential test by failing to ask whether the extended Budgens store could satisfy the retail need which the new food store was intended to meet.

The Court of Appeal dismissed the challenge.

The sequential test is not a disguised retail need test

Earlier national retail policy had contained a formal requirement to demonstrate need for additional retail development. That test had been removed before the NPPF considered in Warners was published.

Lord Justice Lindblom held that references to need and demand in the older practice guidance could not be used to regenerate a national policy test which no longer existed.

The fact that the extended Budgens store might itself capture some expenditure leaking out of Moreton-in-Marsh did not mean that another food store automatically failed the sequential test.

Flexibility is still central to the sequential test

The removal of the formal need test did not make the sequential exercise optional or allow an applicant to design a proposal so rigidly that every more central site could be dismissed.

The court stressed the requirement for flexibility on matters such as format and scale. The applicant in Warners had tested significantly smaller development sites rather than looking only for a site identical to the 2.3 hectare application site.

Whether enough flexibility has been shown is a planning judgment which depends on the facts of the individual proposal and the alternative sites.

An operator’s preferences cannot make the test self-fulfilling

The older practice guidance made clear that more central sites should not simply be rejected because of the self-imposed requirements or preferences of a single operator.

Lord Justice Lindblom said otherwise the sequential approach could become a merely self-fulfilling activity, divorced from the public interest.

At the same time, the developer’s intentions and the development actually proposed are not wholly irrelevant. The test operates in the real world. The task is to apply genuine flexibility without replacing the proposal with a fundamentally different scheme invented by the planning authority.

The Budgens site did not have to be treated as an alternative new store site

The Budgens site was considered. It was sequentially preferable and already had permission for an extension to the existing store.

The council’s retail advice proceeded on the basis that the extension would be built and that Moreton-in-Marsh could accommodate both the extended Budgens and one additional food store of the scale proposed without unacceptable harm to the town centre.

The Court of Appeal held that the council was entitled to conclude there was no available and suitable more central site capable of accommodating the additional food store being proposed, even with appropriate flexibility.

Tesco v Dundee was relevant but not a substitute for the English policy

The officer had referred to the Supreme Court’s Scottish decision in Tesco Stores Ltd v Dundee City Council. Warners argued that this had led the council astray.

The Court of Appeal rejected that challenge but gave an important warning. The Scottish policies considered in Tesco v Dundee were not identical to the English NPPF and guidance. A court or planning authority should not simply read the Supreme Court’s interpretation across as though the policies were the same.

The relevant English policy still had to be interpreted and applied on its own wording.

How Warners fits with Aldergate and Tesco v Stockport

Warners was followed only two weeks later by Aldergate Properties v Mansfield. Aldergate held that an individual retailer’s own commercial wish not to compete with its nearby stores could not be used to exclude an entire town centre from the sequential search.

The later Court of Appeal decision in Tesco v Stockport [2025] EWCA Civ 610 deals with a different question: when a more central site has genuinely been committed to another food retailer and can therefore cease to be available in the ordinary planning sense.

Read together, the cases distinguish a genuine site constraint from a retailer’s self-imposed commercial preference.

The current policy should always be checked

Warners concerned the NPPF and practice guidance in force in 2013 and 2016. Paragraph numbers and supporting guidance have changed since then.

The enduring principles remain valuable, but applications should be assessed against the current policy. Planning Geek explains that separately in our Town Centre Sequential Test guide.

Read the full Warners Retail judgment

The approved Court of Appeal judgment is held in the Planning Geek case law library. Gold Members can open the protected PDF below.

Warners Retail Case Law Page Updated: 9th September 2026