Petition of Tesco Stores Limited for Judicial Review
| Jurisdiction | Scotland |
| Court | Court of Session |
| Judge | Lord Sandison |
| Judgment Date | 02 October 2026 |
| Neutral Citation | [2026] CSOH 95 |
| Date | 02 October 2026 |
| Published date | 02 October 2026 |
| Docket Number | P535/26 |
OUTER HOUSE, COURT OF SESSION
[2026] CSOH 95
P535/26
OPINION OF LORD SANDISON
in the Petition of
TESCO STORES LIMITED
Petitioner
for Judicial Review of a decision of
DUMFRIES AND GALLOWAY COUNCIL
Respondent
SAINSBURY’S SUPERMARKETS LIMITED
Interested Party
Petitioner: Crawford KC; DWF LLP
Respondent: Armstrong KC; Harper Macleod LLP
Interested Party: Mure KC; TLT LLP
2 October 2026
Introduction
[1] By this petition for judicial review, Tesco Stores Limited challenges a decision
of Dumfries and Galloway Council to grant planning permission, consequent upon an
application by Sainsbury’s Supermarkets Limited in terms of section 42 of the Town and
Country Planning (Scotland) Act 1997, to allow a unit at Cuckoo Bridge Retail Park,
2
Dumfries, to be used as a retail supermarket selling primarily convenience goods rather
than merely for the previous approved use of the sale of bulky goods.
Background
[2] Cuckoo Bridge Retail Park is an out of centre location, for which planning permission
was granted in 2000. The permission was for Class 1 retail (now Class 1a) and permitted the
erection of seven non-food retail units and a garden centre. Condition 9 of the planning
permission restricted the use and goods which could be sold, stating:
“The primary use of each of the retail units shall be the sale of bulky goods
(e.g., DIY, hardware, furniture, carpets, electrical and gardening goods) and not
the sale of clothing, footwear, toys, sports goods/sportswear, pets/pet products,
books, or newspapers/magazines. The net retail floorspace of any electrical unit
shall not exceed 910 sqm and no more than one such unit should be permitted
within the development.”
[3] In 2015, Condition 9 was varied in respect of the unit in question. It became
Condition 1 and provided:
“The primary use of Unit 1 (the retail unit subject to this permission) shall be for the
sale of bulky goods e.g. DIY, hardware, furniture, carpets, electrical and gardening
goods, and not the sale of clothing, footwear, toys, sports goods/sportswear,
pets/pet products, books or newspapers/magazines. The sale of electrical goods
shall only take place as part of a wider bulky goods offer from this Unit and it shall
not be operated solely for electrical retailing. Notwithstanding the above, the sale
and display of any Class 1 non-food goods will be permitted from up to 185 square
metres of the existing Unit 1 (the retail unit subject to this permission) sales area
only if occupied by a Catalogue Showroom Retailer. For the avoidance of doubt,
a Catalogue Showroom Retailer is defined as a retailer selling a wide selection of
non-food goods selected by the visiting public from a catalogue or digital browser
and supplied to them fully packaged. Reason: In order to define the terms of this
permission and to ensure that the sale of non-bulky goods is limited so as not to
have an adverse impact on the vitality and viability of more sequentially preferable
locations.”
[4] In 2025 Sainsbury's applied to vary Condition 1 to permit the use of the unit as a
supermarket.
3
Relevant statutory provisions
[5] The Town and Country Planning (Scotland) Act 1997 contains the following
provisions:
“24 Meaning of ‘development plan’
(1) For the purposes of this Act, any other enactment relating to town and country
planning and the Land Compensation (Scotland) Act 1963, the development
plan for an area is to be taken as consisting of the provisions of—
(a) the National Planning Framework,
(b) any strategic development plan for the time being applicable to the area,
together with—
(i) the Scottish Ministers' notice of approval of that plan, and
(ii) any supplementary guidance issued in connection with that plan, and
(c) any local development plan for the time being applicable to the area.
…
(3) In the event of any incompatibility between a provision of the National
Planning Framework and a provision of a local development plan, whichever
of them is the later in date is to prevail.
…
25 Status of development plan
(1) Where, in making any determination under the planning Acts, regard is
to be had to the development plan, the determination is, unless material
considerations indicate otherwise, to be made in accordance with that plan.
…
37 Determination of applications: general considerations.
…
(2) In dealing with [an application made to a planning authority for planning
permission] … the authority shall have regard to the provisions of the
development plan, so far as material to the application, and to any other
material considerations.
(2A) The notice of the planning authority's decision on an application must include
a statement as to whether the authority consider that the application is for a
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
