Tesco Stores V. Highland Council+asda Stores
| Jurisdiction | Scotland |
| Judge | Lord Malcolm |
| Neutral Citation | [2011] CSOH 11 |
| Court | Court of Session |
| Year | 2011 |
| Date | 25 January 2011 |
| Published date | 25 January 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 11 | |
| OPINION OF LORD MALCOLM in the cause TESCO STORES LIMITED Petitioners; For Judicial Review of a decision by the Highland Council dated 20 April 2010 to grant planning permission in principle to Asda Stores Limited for the development of a supermarket and petrol filling station at Knockbreck Road, Tain ________________ |
Petitioners: Martin QC; Ms Munro, advocate; Semple Fraser LLP
First respondent: Smith QC; Biggart Baillie LLP
Second respondent: Thomson QC; Dundas & Wilson CS LLP
25 January 2011
[1] In this application for judicial review the petitioners are Tesco Stores Limited (Tesco). The first respondents are the Highland Council (the Council). The second respondents are Asda Stores Limited (Asda). The petitioners ask the court to quash a decision of the Council dated 20 April 2010 to grant planning permission in principle to Asda for the development of a supermarket and petrol filling station at Knockbreck Road, Tain. Tesco were granted a similar permission in the town centre at Shore Road, Tain on 5 September 2008. Having now obtained a detailed consent they are in the course of implementing that permission. Tesco challenges the out of centre permission to their competitors for two main reasons. Firstly it is said that the decision is vitiated because of a failure to properly interpret and apply the relevant retail policies, and in particular the sequential approach when selecting locations for, amongst others, retail uses. Secondly it is said that certain councillors voted in favour of the Asda application simply because of a desire to stop or undermine the Tesco development. Before considering these matters it is necessary to set out the planning background and history in detail.
The planning background
(a) The first Asda application
[2] On 14 March 2007 the Planning, Development, Europe and Tourism Committee met to consider an application by Asda for a Class 1 retail store permission with associated facilities at Knockbreck Road, Tain. The Council's principal planner advised the committee that although there was strong local support, the application was contrary to the local plan which allocated the land for housing use. A site at Shore Road in the town centre had been retained in the local plan as a site for a new supermarket. (This site is adjacent to that subsequently the subject of the Tesco permission). However the Committee resolved to grant permission, subject to conditions and reference of the application to the Scottish Executive. This was on the basis that material considerations outweighed the suggested reasons for refusal. In due course the Asda application, and another similar foodstore application by Robertson Properties Limited (RPL) at Morangie Road, Tain, were called in by the Scottish Ministers.
(b) The Halcrow retail study
[3] In May 2008 the Council received a retail study for Tain prepared by Halcrow Group Limited (production 6/6). The Council had asked Halcrow to review the decision to grant approvals for both the Asda and a Lidl foodstore at Morangie Road, Tain. (The Lidl opened in late 2007). The review also considered the two subsequent and, at that time, undecided planning applications for foodstores in Tain lodged by RPL and Tesco. A retail capacity assessment was prepared to determine the level of further convenience retail provision which could be supported. Figure 1 in the report sets out the location of proposed and existing foodstores in the town. Of the pending applications, only that lodged by Tesco was located in the town centre. It was adjacent to the Shore Road development plan retained allocation site, which was the subject of a lapsed outline supermarket consent. The Tesco site was the subject of a separate planning approval in outline for housing. It was noted that the local plan site at Shore Road "failed to meet the requirements of modern convenience retailers" as reflected in its inability to attract development despite its allocation for the previous 22 years. Noting additional road infrastructure constraints, the consultants advised that Shore Road should be discounted as a suitable site for a foodstore development. The Lidl and two Co-op stores (one in the town centre) provided the only convenience retailing in the town. It was clear that a need for further provision had been established in the development plan. Additional provision would reduce leakage of expenditure, particularly to Tesco stores at Inverness and Dingwall, and improve the commercial viability and vitality of Tain.
[4] The retail capacity assessment suggested that within a revised 30 minute drive time catchment area there was sufficient expenditure (£20.2 m) to support further convenience floor space. This was sufficient to support "either the Asda or RPL applications in addition to the Tesco application", leaving a final retail balance in the range of £1.4 million to £4.8 million, cf para 4.1.5, figure 3, and table 2. As will become apparent, I consider that this finding is of importance when assessing the issues raised in the current proceedings. In particular it indicates that there is room in Tain for both the Tesco town centre development and another foodstore such as that proposed by Asda. (It can be noted here that subsequently the RPL application was withdrawn). The consultants advised that in the context of the development plan and relevant material considerations the decision to approve the Asda application was "robust and defendable". It was concluded that the Asda site "performs well in the context of the sequential approach", reflecting the view that the town centre allocated site was unsuitable. It appears to me that this study set the planning background or framework for much of what unfolded thereafter.
(c) Tesco's application and the opposition to it
[5] Production 6/4 is a report by the head of planning and building standards in respect of Tesco's outline application for the retail development at Shore Road (2,500 square metres gross floor space). At this time the Asda application had been supported by the Council, but was still to be determined by Scottish Ministers, and the RPL application at Morangie Road had not been determined. The Council had been advised that with the acceptance of off site road improvements and new traffic management proposals there were no transportation reasons for refusal of the Tesco application. It was noted that the local plan allocated an adjacent site for a foodstore, however in recent times this had been "set aside" by both the Council and the owner. Approval subject to conditions was recommended.
[6] On 1 July 2008 the relevant committee of the Council approved the Tesco outline application, with the condition that the Council's, rather than national car parking standards should apply. Voting was six in favour, five against. Those in favour included Councillor Durham, with Councillors Rhind and Torrance in the other camp. At the meeting it was recorded that the RPL application had been withdrawn. It was acknowledged that a lot of work still required to be done before traffic orders were made. Councillor Rhind made it plain that he was against the proposal on traffic management grounds. He did not consider that the site would be used by those without a car. The proposals would not work at this site. He was "suspicious" of the proposal. Councillor Durham noted that the adjacent site had been allocated for food retailing because of a 1986 outline application which had never been implemented. The Council had granted a housing consent on the Tesco site. Asda's application had been granted and called in, then "all of a sudden" Tesco arrived and acquired this site. He asked, does Tesco simply want to stop Asda? According to him that was "the general attitude". He considered that the Halcrow report showed that there was sufficient trade for all the various applicants within a 30 minute drive time. If the application was rejected then there would be an appeal, and an inquiry into both the Asda and Tesco applications. He would support the recommendation in the report to committee, subject to the application of the Council's policy standards.
[7] Councillor Torrance considered that the proposed store was "in completely the wrong place", including with regard to access for local residents. It was very much "backland (town) centre". It would encourage cars and "empty the High Street." He did not accept the Halcrow view. Two new supermarkets in Tain would mean that somebody would fail - "probably the Co-op." Given the build up of traffic the town centre would become "like Hampden Park on a Saturday afternoon." He continued "I just don't like the vast changes that will affect the character of our town." Other councillors spoke strongly in favour of the Tesco application. One said "We should let them all come and see what they can do." Highways officers stressed that it was simply an outline application, but was a complex case subject to "traffic assessments and so-on". Councillor Durham proposed the motion for approval, which was carried by six votes to five.
[8] I have mentioned the comments of the councillors who are the focus of the second ground of challenge to the decision. In the context of that issue it is worth noting that there was a view that the Asda application came first, was supported by the Council, and then the Tesco application was lodged. In addition those speaking against the Tesco application focused on site specific issues concerning the town centre site, some of which remained to be addressed in the context of traffic assessments prior to an application for detailed permission.
(d) The factual basis for the second ground of challenge
[9] The Scottish Ministers were notified of the decision but did not call in the Tesco application. Both the Asda and RPL proposals were withdrawn before the commencement of the public inquiry into those called in...
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