Tesco legal challenge over rival Sainsbury's store fails
A judge rules councillors were entitled to approve a bid to open a new supermarket in Dumfries.
Tesco’s legal bid against rival Sainsbury’s store fails
The new outlet is the first Sainsbury’s supermarket in Dumfries
Tesco has lost a legal challenge to a council’s approval of plans by rival supermarket Sainsbury’s to open a shop on a nearby site.
Earlier this year, Dumfries and Galloway Council (DGC) agreed to remove a condition on a former Homebase store at Cuckoo Bridge in Dumfries that restricted sales to non-food bulky goods only.
Tesco asked for a judicial review, arguing there was no “lawful or rational basis” for concluding that the Sainsbury application complied with the development plan, and that the reasons for the decision were “inadequate”.
But Lord Sandison said the council’s approach had been “well within the bounds of rationality which it required to respect” and dismissed the challenge.
When the retail park was approved more than 25 years ago, the council imposed a condition allowing only non-food bulky goods to be sold there, to protect the vibrancy of the town centre.
Over time, that restriction has been successfully challenged by other outlets seeking to open there.
Sainsbury’s did the same, arguing that it too should be allowed to have the conditions changed so it could move in.
The move drew objections from both Tesco and Morrisons, but DGC approved the alteration and the store opened this summer.
Planning officers said that “taking all the relevant planning considerations into account” the proposals could go ahead.
They said there were no alternative units in the town centre that could have been used, and that the development would not have any significant adverse impact.
Tesco challenged the decision in court, saying the local authority had made an error of law and had failed to assess the application properly against national planning policy.
A judge has now found that the council gave “proper, adequate and intelligible reasons” for its decision.
He said it had been entitled to conclude that the proposals complied with its development plan as a whole.
Tesco said it did not oppose the vast majority of applications by its competitors, and that any objections were based only on material planning considerations.
It added that it would never object on the basis of loss of trade or simply to delay a rival’s planning application.