Sainsbury’s has lost its dispute with Tesco concerning which of them should develop a large site on
The supermarket giants had asked Elias J to rule on the lawfulness of Wolverhampton Council’s January 2008 decision to approve in principle a compulsory purchase order (CPO) to force Sainsbury’s to sell its 86% share of the
Wolverhampton planners had found that Tesco’s plans to redevelop the nearby dilapidated Royal Hospital site as part of its successful bid, providing 100 homes and new offices for the city’s primary care trust, was “decisive” in their decision to approve the CPO in principle.
Christopher Lockhart-Mummery QC, for Sainsbury’s, had argued that the decision to use CPO powers was unlawful. He argued that the council had no power to acquire land for the purpose of facilitating the development of an unrelated site and it had taken into account immaterial considerations – namely the benefits of securing development of an unrelated site.
Elias J dismissed Sainsbury’s challenge on the “fundamental” point of whether, when determining in whose favour the CPO should be exercised, the council was entitled to have regard to the benefits of the
The judge said: “When deciding which development should receive its support, the council could have regard to all the benefits accruing from the proposed development, including any off-site benefits achieved by way of a section 106 agreement.
“It seems to me that there are really two stages in the process. First, can a CPO lawfully be made in favour of a particular development? That must be determined by focusing solely on the benefits flowing from the development itself and the [
“Second, if the power can lawfully be exercised, but there is more than one potential party in whose favour it could be exercised, to which development should the council lend its support? At that stage, I can see no reason why the council should not have regard to its wider interests.”
Accordingly, Elias J refused to quash the council’s decision.
However, the judge granted Sainsbury’s permission to appeal.
R (on the application of Sainsbury’s Supermarkets Ltd) v
Christopher Lockhart-Mummery QC and David Forsdick (instructed by CMS Cameron McKenna LLP) appeared for the claimant; Neil King QC and Guy Williams (instructed by Wragge & Co, of Birmingham) appeared for the defendant; Christopher Katkowski QC and Scott Lyness (instructed by Ashurst LLP) appeared for the interested party.
