An interesting decision was issued by Lord Malcolm earlier this week, involving planning permission for supermarket developments in Tain in Ross-shire.

Tesco sought a judicial review of the Highland Council’s decision to grant planning permission to Asda for the development of a supermarket. Tesco accused the Council of failing to apply relevant retail policies and alleged that “certain councillors voted in favour of the Asda application simply because of a desire to stop or undermine the Tesco development”.

So why did Tesco believe that councillors favoured Asda? Well, Tesco had applied previously for permission to develop a supermarket at a separate location within Tain. In April 2009 this application was refused, with certain councillors vehemently opposed to the application. Tesco appealed and won; the reporters appointed by the Scottish Ministers to hear the appeal mentioned the Council’s “unreasonable behaviour”.

When planning permission for Asda’s proposed development was considered, some of the councillors who had opposed Tesco’s application supported Asda’s application. Indeed, one councillor commented that there were “too many Tescos in the Highlands”. Asda’s application was granted, leading to Tesco raising the court action. Tesco maintained the Council had a “pre-determination to do all that they could to thwart the Tesco store”.

Lord Malcolm considered the evidence and found that the Council was entitled to make the decision it made in relation to Asda’s application (which, it must be remembered, was in respect of a different area of land). Lord Malcolm commented that case law “counsels considerable caution before being ready to quash such decisions on the basis of apparent bias or the like”. Although the remark that there were “too many Tescos in the Highlands” may have been irrelevant and prejudicial, Lord Malcolm felt it would be “wholly unreal and disproportionate” to strike down the decision on this basis, when there was a sensible and sound basis upon which the decision had been made.

So the Highland Council does not, according to the Court of Session, favour Asda over Tesco.