Tesco planning challenge fails as Court backs Dumfries Sainsbury’s approval

The Tesco planning challenge to Dumfries and Galloway Council’s approval for a Sainsbury’s supermarket has failed, leaving permission for the former Homebase unit at Cuckoo Bridge Retail Park intact.

Lord Sandison refused Tesco’s judicial review in the Outer House of the Court of Session on 2nd October 2026. The supermarket proposal concerned an existing retail building and a section 42 application to replace a condition restricting the goods sold there.

The judgment matters to Scottish retail planning because it rejects an alleged conflict between National Planning Framework 4’s retail policy and the local sequential-test policy. It also shows why a disagreement over policy weight and planning merits does not, by itself, establish an unlawful decision.

From bulky goods unit to supermarket

Cuckoo Bridge’s original permission, granted in 2000, authorised seven non-food retail units and a garden centre. A condition principally limited the units to bulky goods, including DIY products, furniture, carpets and gardening goods, to protect Dumfries town centre.

A separate permission granted in 2015 allowed limited catalogue-showroom retailing in Unit 1 but retained the main bulky-goods restriction. Sainsbury’s application, reference 25/0370/S42, sought permission to operate the former Homebase premises as a supermarket selling primarily convenience goods.

The proposed replacement condition controlled both the use and the sales area. It allowed food or non-food retail within Scotland’s Class 1A, with a maximum net sales area of 3,131 square metres. Comparison-goods sales were limited to 653 square metres, including up to 35 square metres for a catalogue showroom.

This was therefore a dispute about releasing and replacing a restriction on an established retail use. It was not an application to erect a new supermarket on an undeveloped site.

NPF4 and the town-centre-first assessment

The Tesco planning challenge turned on Scotland’s development plan. National Planning Framework 4, or NPF4, forms part of that plan alongside the applicable local development plan. Here, that local plan was Dumfries and Galloway LDP2.

NPF4 Policy 27 addresses city, town, local and commercial centres. Policy 28 addresses retail. Both embody the town centre first principle, while LDP2 Policy ED6 sets out a sequential approach and expressly applies to applications to vary restrictions such as bulky-goods conditions.

The distinction between geographical location and plan designation proved important. Cuckoo Bridge lies outside the town centre, but LDP2 identifies it as a commercial centre. Lord Sandison placed it in the third tier of ED6’s hierarchy, after town-centre and edge-of-centre locations.

The council examined the sequential assessment and retail impact evidence with input from an independent specialist. Vacant town-centre units were found unsuitable for a supermarket of this nature and scale. Brooms Road car park was also considered, with its continuing use, multiple ownership and contamination among the reasons for discounting it.

Officers accepted that there was no quantitative need for additional retail floorspace. They nevertheless identified a qualitative benefit through greater choice and competition. The retail impact assessment was accepted as robust and did not identify a significantly adverse effect on town-centre vitality and viability.

Those findings supported the council’s conclusion that the proposal accorded with the development plan. They were planning judgments made by the authority, rather than fresh retail assessments undertaken by the court.

What the Tesco planning challenge alleged

Tesco argued that the council had no lawful or rational basis for finding development-plan compliance. Its central contention was that NPF4 Policy 28 governed the retail proposal and had not been properly applied.

On Tesco’s reading, the older local sequential policy was incompatible with Policy 28. Section 24(3) of the Town and Country Planning (Scotland) Act 1997 provides that, where national-framework and local-plan provisions are incompatible, the later provision prevails.

Tesco also criticised reliance on NPF4 Policy 27 and LDP2 Policy ED6. Alternatively, it argued that the council had failed to explain the weight given to compliance, or non-compliance, with Policy 28 before finding overall accordance with the plan.

The reasons challenge was separate but related: Tesco said the decision and supporting report did not adequately explain how the relevant policies justified permission. The court rejected both strands of the Tesco planning challenge.

Court backs the council’s planning judgment

Lord Sandison found no incompatibility between NPF4 Policy 28 and LDP2 Policy ED6. He read Policy 28’s detailed wording in the context of its stated intent and outcomes, which prioritise sustainable retail locations and healthy centres.

At paragraph 62, he assumed without deciding that the application concerned “new” retail. He expressly left that question open because it was unnecessary to resolve it. The judgment should not be presented as a definitive ruling that this kind of section 42 proposal either is, or is not, new retail.

On that assumption, ED6 recognised that the commercial centre could accommodate retail development where its sequential and other requirements were satisfied. The court found those requirements consistent with Policy 28’s intent and outcomes.

Policy 28 had been identified as relevant. The court also accepted that Policy 27 and ED6 provided more detailed expressions of the town centre first principle for assessing effects on Dumfries town centre.

Once the policies had been correctly identified and construed, their weight was for the council. At paragraph 63, Lord Sandison described its approach as “well within the bounds of rationality which it required to respect”.

The reasons challenge also failed. The court read the authority’s reasoning through the officers’ report and found that it sufficiently addressed the principal issues. Tesco’s objection was, in substance, to the reasons that had persuaded the council, rather than a failure to express those reasons adequately.

The petition was refused. Tesco was found liable to the council and Sainsbury’s for the expenses of the proceedings.

Why the section 42 route mattered

The Tesco planning challenge concerned section 42 of the Scottish 1997 Act. This is the route for seeking permission to develop without complying with conditions attached to an earlier permission. A grant creates a new and separate permission; it does not rewrite the original permission.

Section 42(2) limits the authority’s consideration to the conditions under which permission should be granted. Lord Sandison emphasised that the established retail use was continuing, with the requested change concerning the restriction on goods sold.

The development plan still supplied the decision-making framework. However, the question within that framework was narrower than whether entirely new retail development should be permitted in principle.

The original condition’s purpose therefore mattered. Because it protected more sequentially preferable locations, policies addressing effects on their vitality and viability were particularly relevant to deciding whether the restriction should continue or be replaced.

Planning Geek analysis

For us, the practical lesson is to read the permission, the condition’s purpose and the site’s development-plan designation together. Calling a site out of centre geographically does not answer every policy question where the local plan recognises it as a commercial centre.

The Tesco planning challenge is not a general exemption from NPF4 Policy 28 or the town centre first principle. The court considered a specific permission, an existing retail use, an expressly relevant local policy and a supported assessment of alternatives and impact.

For applicants, the quality of the sequential assessment and retail evidence remains central. For objectors, a legal challenge needs an identifiable error in policy interpretation, rationality or procedure. Simply preferring different weight or a different outcome is insufficient.

Our judicial review guide explains the distinction between legality and planning merits. Our town centre sequential test guide provides wider context, but this judgment applies the Scottish statutory and policy framework, not England’s NPPF.

Read the judgment

The complete judgment is held locally for the existing Planning Geek Case Law entry, Tesco Stores Limited v Dumfries and Galloway Council [2026] CSOH 95, case P535/26. You can read our public Case Law summary and access the complete judgment as a Gold member.

The key judicial reasoning is at paragraphs 56 to 64, with disposal at paragraph 65. The council committee report records the assessment behind application 25/0370/S42.