Sainsbury’s plans to extend its Kidlington store in Oxfordshire have been reduced to rubble by the Court of Appeal.
Three appeal judges have upheld deputy prime minister John Prescott’s refusal of planning consent for the 14,720 sq ft (1,368m2) extension at the Oxford Road supermarket and have quashed Sainsbury’s High Court victory of July 2004.
Sedley LJ said that although Prescott’s decision letter “should have been better expressed”, his finding that Sainsbury’s had failed to show a quantitative or economic need for the extension was “sustainable”.
Prescott had called in the extension application in late 2003, despite the fact that it had been approved by Cherwell Council and a planning inspector. In his decision letter, he said that the fact that the store was overtrading indicated a qualitative need for an improvement in facilities, but not, by itself, a surplus of local purchasing power over retail provision within the store’s catchment area.
However, High Court judge Collins J overruled that decision in July. He held that, in certain circumstances, the fact that the store was trading at greater than company average could establish both a qualitative and a quantitative need.
In allowing Prescott’s appeal today, Sedley LJ said: “It is not the court’s task to rescue executive government by reading into its decisions something more coherent or less legally vulnerable than, on a fair reading, is there.
“Equally, it is not for the courts to strike down a decision that, while it could and should have been better expressed, is intelligible and free of error.”
He further said that Sainsbury’s would be able to submit a new planning application, taking account of Prescott’s reasons for rejecting the previous application.
Sainsbury’s Supermarkets Ltd v First Secretary of State and another Court of Appeal (Mummery, Sedley and Smith LJJ) 6 May 2005.
Nathalie Lieven (instructed by the Treasury Solicitor) appeared for the appellant; Timothy Corner QC and Lisa Busch (instructed by Denton Wilde Sapte) appeared for the respondent.
References: EGi Legal News 06/05/05
