Petition of Tesco Stores Limited for Judicial Review of a decision by Dundee City Council dated 18 January 2010  

In this case, Tesco sought judicial review of Dundee City Council’s decision to grant planning permission to Asda and MacDonald Estates for a food store situated nearby one of their own stores.

The disputed planning permission was granted in respect of a site on Myrekirk Road in Dundee. Tesco argued that the Council had failed to properly apply the “sequential test” which is relevant to out of centre sites and also that they failed to have regard to the Lochee Physical Regeneration Framework which should have been material consideration when considering Asda’s application.

The sequential test involves considering suitable alternative sites for development from the town centre outwards. Tesco argued that, if it had been followed correctly, it would have led to a smaller site on Methven Road (on which Tesco had previously operated a store) being considered.

However, while agreeing that the development plan had not been complied with, the planning authority and Asda argued that there were exceptional circumstances justifying the grant of permission and, as such, the decision was purely a planning decision. Consequently, the court could not interfere with the planning authority’s ruling unless the decision satisfied the Wednesbury test (i.e. that the decision was so unreasonable that no reasonable authority acting reasonably could have come to it). Also, with regard to the argument that the planning authority had not considered the Physical Regeneration Framework, they argued that the Asda application fell outwith the Lochee area and the framework was not therefore a material consideration.

Lord Brailsford preferred the arguments put forward by the planning authority. The sequential test is a statement of policy and not a rule of law. As such, it was a matter for the planning judgement of the planning authority as to how it decided to apply the test. That being the case, a challenge to an application of the test is only available where there has been Wednesbury unreasonableness.

Lord Brailsford came to only a “tentative” view that the Lochee Physical Regeneration Framework was a material consideration solely within the Lochee area. However, he found that, in any event, the framework had in fact been considered by the planning committee. Tesco’s petition for Judicial Review was therefore dismissed.

Scottish Courts, 15 September 2010