Outer House rejects Tesco challenge to Sainsbury’s supermarket planning permission at Dumfries retail park

About this case:

• Citation:
  [2026] CSOH 95
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Sandison

The dispute concerned Unit 1 at Cuckoo Bridge Retail Park, a commercial centre outside Dumfries town centre. Planning permission for the park was originally granted in 2000 for seven non-food retail units and a garden centre. A condition restricted the units principally to the sale of bulky goods such as DIY products, furniture, carpets and electrical and gardening goods. When the condition relating to Unit 1 was varied in 2015, the restriction remained substantially in place, with its stated purpose being to prevent adverse effects on the vitality and viability of more sequentially preferable locations.

In 2025 Sainsbury’s applied under section 42 of the Town and Country Planning (Scotland) Act 1997 to remove that restriction and allow the unit to operate as a supermarket selling primarily convenience goods.

The petition was heard by Lord Sandison, with Crawford KC, instructed by DWF LLP, appearing for Tesco; Armstrong KC, instructed by Harper Macleod LLP, for Dumfries and Galloway Council; and Mure KC, instructed by TLT LLP, for Sainsbury’s.

‘Town centre first’ policies

The relevant development plan consisted of the Dumfries and Galloway Local Development Plan 2, adopted in 2019, and the later National Planning Framework 4. LDP2 identified Cuckoo Bridge as a commercial centre for bulky goods. Its Policy ED6 required proposals generating significant numbers of people, including retail developments, to follow a sequential approach prioritising town centre and edge-of-centre sites before other commercial centres and out-of-centre locations.

It expressly provided that applications to vary existing restrictions such as those limiting the sale of bulky goods would be assessed under that policy. NPF4 also embodied a “town centre first” approach. Policy 27 concerned city, town, local and commercial centres, while Policy 28 dealt specifically with retail development.

Under Policy 28, new retail proposals were to be supported in existing centres or in commercial centres allocated as suitable for new retail development in the local development plan, while generally not being supported in out-of-centre locations. 

The council’s Planning Applications Committee granted Sainsbury’s application in February 2026. Its decision stated that the proposal accorded with the development plan and that there were no material considerations sufficient to justify a different outcome. The officers’ report concluded that no suitable sequentially preferable locations were available in or adjoining Dumfries town centre and that the proposed supermarket would not have a significantly adverse impact on the town centre’s vitality and viability. 

Tesco alleged policy error

Tesco argued that the council had misdirected itself as to the proper planning policy framework. Its position was that NPF4 Policy 28 was the relevant national policy governing retail development and that the officers’ report had listed it without carrying out any assessment under it. Instead, the council had concentrated on NPF4 Policy 27 and LDP2 Policy ED6 when conducting its sequential and retail-impact assessment.

Tesco submitted that, insofar as ED6 allowed retail development in locations which Policy 28 would not, the two policies were incompatible. Because NPF4 was later in date, Policy 28 prevailed under section 24(3) of the 1997 Act. It therefore maintained that the council had both failed to take account of a relevant policy and relied upon policies which were irrelevant to the proposal.

Separately, Tesco argued that the conclusion that the development accorded with the development plan was irrational and that the decision failed to explain adequately why permission had been granted. The council and Sainsbury’s maintained that the challenge amounted to disagreement with the exercise of planning judgment. They argued that Policy 28 had been identified and considered, but that Policies 27 and ED6 provided the more detailed framework relevant to the particular section 42 application and the original purpose of the restriction, namely protection of Dumfries town centre.

Narrow section 42 application

Lord Sandison emphasised the particular nature of an application under section 42. The application did not concern permission for an entirely new retail development. Unit 1 already had an established retail use; the question for the council was whether that use should continue subject to the bulky-goods restriction, whether a different restriction should apply, or whether the retail permission should become unconditional as to the type of goods sold.

He said that section 42 required the planning authority to consider “only the question of the conditions subject to which planning permission should be granted”. While the development plan remained the framework within which that decision had to be made, the issue before the council was therefore a relatively narrow one. Lord Sandison considered it “natural and appropriate” in those circumstances for the authority to identify and apply the policies most relevant to avoiding adverse impacts on more sequentially preferable locations. 

Policies not incompatible

The court rejected Tesco’s central argument that NPF4 Policy 28 conflicted with LDP2 Policy ED6.

Lord Sandison noted that ED6 specifically addressed applications to vary restrictions such as those limiting bulky-goods sales. Cuckoo Bridge was identified in LDP2 as a commercial centre and occupied the third tier of the sequential hierarchy behind town centre and edge-of-centre locations. The Sainsbury’s proposal therefore required the applicant to demonstrate why preferable sites had been discounted, that there would be no significant adverse effect on established centres, that it addressed an identified deficiency, was appropriately scaled and was accessible by a range of transport modes. 

Lord Sandison described the assessment carried out by Sainsbury’s and the council’s officers against those criteria as “thorough and robust”. Both Policy 28 and Policy 27 of NPF4 reflected the same town-centre-first principle as ED6, and the judge found no inconsistency between their underlying intentions or desired outcomes. Even assuming that Sainsbury’s proposal amounted to “new” retail for the purposes of Policy 28, Lord Sandison held that LDP2 treated Cuckoo Bridge as capable of being suitable for such development where the sequential requirements of ED6 were satisfied. He said: “Put in the language of section 24(3) of the 1997 Act, there is no incompatibility between NPF4 Policy 28 and LDP2 Policy ED6.” 

Matter of planning judgment

The court further held that the officers’ report had correctly identified Policy 28 as relevant. However, because Policy 28 expressed the town-centre-first principle at a relatively high level, the council was entitled to focus on the more detailed expressions of that principle found in Policy 27 and ED6 when assessing the potential effect of the supermarket on Dumfries town centre.

Lord Sandison said Tesco’s criticisms that those policies were irrelevant and Policy 28 had been ignored were “not valid”. Once the relevant policies had been properly identified and construed, the weight to be attached to them was a matter for the council’s planning judgment. The conclusion that the Sainsbury’s proposal accorded with the development plan was therefore “not capable of being effectively challenged in law”.

The judge also rejected Tesco’s challenge to the adequacy of the council’s reasons. The reasoning in the officers’ report could properly be treated as the reasoning adopted by the council, and it addressed the principal issues in sufficient detail. Lord Sandison considered Tesco’s complaint to be, in reality, directed at the substance of the council’s reasoning rather than any failure adequately to express it.

He concluded: “Once it is appreciated that the respondent was entitled to view the application in the light it did, the reasons it gave can be seen to be entirely adequate.” The petition was accordingly refused, with Tesco found liable to Dumfries and Galloway Council and Sainsbury’s for the expenses of the proceedings.