Tesco has failed in a Scottish court claim that a council was wrong to lift a condition preventing construction of a rival Sainsbury’s before road improvement works are carried out.
Perth and Kinross council agreed to a removal of the condition in an agreement between itself and Sainsbury’s, under section 75 of the Town and Country Planning (Scotland) Act 1997, ancillary to the grant of permission for a large store in Perth immediately south and west of the junction between the A9 and the A85.
The condition had prevented trading at the new superstore until the council had let the contract for road improvements at the A9/A85 junction, which were regarded as necessary to prevent any net detriment to the local road network as a result of trading from the new superstore.
Tesco, which is concerned about the impact on its own store close to the junction, claimed that the decision raises the prospect of the new superstore being open for business long before completion of the road improvement works needed to mitigate the increased traffic congestion.
Tesco claimed that the council had failed properly to interpret its own development plan, failed to address the material issue of whether the condition was still necessary, failed to give adequate or intelligible reasons for its decision, and reached a conclusion which no reasonable authority would come to.
However, dismissing its challenge, Lord Glennie at the Court of Session said: “The committee had regard to the relevant policy in the development plan. They did not suggest that this was a case where other material considerations either required or allowed them to depart from that policy. They saw no need to do so. They considered that the proposal to delete clause 6 was consistent with the development plan despite there being a longer gap than previously contemplated between the commencement of trading and the opening of the new road junction. That is a matter for their judgement.”
Rejecting the reasons for the challenge, he said that it was clear the the council’s view was that de‑coupling of the date for commencement of trading from the date on which the road construction contract was let “only had the effect of extending the period during which there would be exacerbated traffic congestion resulting from the opening of the superstore before the junction improvement works were complete”.
He said that their finding that this was acceptable did not involve any departure from that policy, adding: “I see no basis for saying that that was irrational or perverse. It is not for this court to say whether every committee faced with the same application would have come to the same decision. It is sufficient that the decision cannot be said to be one that no reasonable committee could have reached.”
Planning permission was granted for the superstore in May 2012 and, in addition to the condition subsequently removed, the s75 agreement required Sainsbury’s to pay a traffic mitigation sum of more than £2m ahead of construction.
Lord Glennie said that if Sainsbury’s was allowed to commence construction of the new supermarket, that would trigger its obligation to pay the traffic mitigation sum, thus contributing to the proposed junction improvements and enabling progress to be made on those improvements.
He added: “The new junction was regarded as a long-term and significant improvement both for the immediate area (particularly given the proposed new development) and for Perth as a whole.”
He said that, at the time the decision was taken, it was thought unlikely that the road construction contract would be let until December 2015, while Sainsbury’s hoped to open in spring of next year.
The estimate was a 27-month period of exacerbated traffic congestion between the commencement of trading at the store and the completion of the junction improvement works.
Tesco Stores Ltd v Perth and Kinross Council Outer House, Court of Session (Lord Glennie) 23 October 2014
Petitioner: Currie QC, Burnet; Morton Fraser
Respondent: Findlay QC; DWF LLP
Interested Party (Sainsbury’s): Armstrong QC; Shepherd and Wedderburn
