Tesco legal challenge over rival Sainsbury's store fails

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.

Dumfries and Galloway Council (DGC) agreed earlier this year to lift a condition on a former Homebase store at Cuckoo Bridge in Dumfries limiting sales to only non-food bulky goods.

Tesco sought a judicial review and argued that there was no "lawful or rational basis" to conclude that the Sainsbury application accorded with the development plan and reasons for the decision were "inadequate".

However, Lord Sandison ruled the council's approach had been "well within the bounds of rationality which it required to respect" and rejected the legal challenge.

When the retail park was approved more than 25 years ago, the council attached a condition that only non-food bulky goods could be sold there in order to protect the vibrancy of the town centre.

As the years passed the restriction has been successfully challenged by other outlets in order to open there.

Sainsbury's followed suit and argued that it too should be allowed to have the conditions modified in order to be able to move in.

It provoked objections from both Tesco and Morrisons but DGC approved the change and the store opened this summer.

Planning officers concluded that "taking all the relevant planning considerations into account" the proposals could proceed.

They said there were no alternative units in the town centre which could have been used and it would not have any significant adverse impact.

Tesco challenged that decision through the courts claiming the local authority had made an error in law and failed to evaluate the application properly against national planning policy.

A judge has now ruled the council provided "proper, adequate and intelligible reasons" for its decision.

He said it had been entitled to conclude the proposals were in compliance with its development plan as a whole.

Tesco said it did not object to the vast majority of applications by its competitors and any objections were based only on material planning considerations.

It added it would never object on the basis of loss of trade or simply to delay a rival's planning application.

Sainsbury's said it was pleased the legal challenge had been dismissed.

"This outcome demonstrates the robust approach that DGC took in determining the application," said a spokesperson.