Tesco Stores Limited v Dumfries and Galloway Council [2026] CSOH 95

The point in plain English: the Court of Session upheld a Scottish council’s decision to permit supermarket retailing in an existing unit subject to a bulky-goods restriction. NPF4 Policy 28 did not displace the local sequential policy merely because it was newer. The court found the policies compatible when read in their proper context.

This was a section 42 application concerning the conditions governing an established retail use. The court held that the authority had correctly identified relevant policies and was entitled to exercise its planning judgment over their weight and application.

The judgment concerns Scotland’s development-plan framework. It should not be treated as an interpretation of England’s NPPF or as a general permission to disregard national retail policy.

Neutral citation

[2026] CSOH 95

Court

Court of Session, Outer House

Judgment date

2nd October 2026

Judge

Lord Sandison

Case number

P535/26

Background to the Tesco judicial review

Cuckoo Bridge Retail Park, Dumfries, received permission in 2000 for seven non-food retail units and a garden centre. Condition 9 principally restricted sales to bulky goods and excluded several other categories. Its purpose was to protect Dumfries town centre.

A new permission granted in 2015 for Unit 1 retained that restriction in Condition 1, with limited provision for catalogue-showroom retailing. Sainsbury’s sought permission under section 42 of the Town and Country Planning (Scotland) Act 1997 to allow the unit to operate as a supermarket selling primarily convenience goods.

Dumfries and Galloway Council approved application 25/0370/S42. Tesco, which operated a nearby food superstore, sought judicial review. Sainsbury’s Supermarkets Limited participated as interested party.

The statutory and policy framework

Sections 24 and 25 of the 1997 Act establish the relevant development-plan framework and the priority given to it. NPF4 forms part of the development plan alongside the applicable local development plan. Where a national-framework provision and a local-plan provision are incompatible, the later provision prevails under section 24(3).

The relevant local plan was Dumfries and Galloway LDP2. Policy ED6 requires a sequential assessment and addresses impact on centres, qualitative or quantitative deficiencies, appropriate scale and accessibility. It expressly applies to applications to vary existing restrictions such as bulky-goods conditions.

NPF4 Policy 27 concerns city, town, local and commercial centres. Policy 28 concerns retail. Both promote the town centre first principle and are linked policies. Cuckoo Bridge was identified in LDP2 as a commercial centre outside the town centre.

Section 42 applies to applications to develop without complying with conditions attached to an earlier permission. Under subsection (2), the authority considers the conditions under which permission should be granted. A grant creates a separate permission rather than amending the original permission, which remains extant.

What Tesco argued

Tesco said that the council lacked a lawful or rational basis for finding compliance with the development plan. It argued that NPF4 Policy 28 was the relevant retail policy and that reliance on Policy 27 and ED6 was legally flawed.

Its case included an alleged incompatibility between the newer national policy and the local sequential approach. Alternatively, Tesco argued that the council had not explained how it weighed compliance with Policy 28 before reaching its overall conclusion.

The petitioner also challenged the adequacy of reasons in the decision and supporting report. These arguments are recorded at paragraphs 8 to 20 of the judgment; they must be distinguished from the court’s own conclusions at paragraphs 56 to 65.

Why the section 42 context mattered

At paragraph 56, Lord Sandison emphasised that the application concerned continuation of an existing retail use. The change sought was to the restriction on the goods sold, a condition imposed to avoid adverse effects on more sequentially preferable locations.

The development plan remained the appropriate framework. But the decision within that framework was the narrower question of whether the existing restriction should remain, whether different conditions should apply, or whether the established retail permission should be unrestricted as to goods.

It was consequently appropriate to identify and apply policies most relevant to protecting the vitality and viability of the more preferred locations. Section 42 did not remove development-plan duties or create an automatic entitlement to lift the condition.

NPF4 Policy 28 and LDP2 Policy ED6 were compatible

ED6 was particularly relevant because it expressly addressed changes to bulky-goods restrictions. Lord Sandison identified Cuckoo Bridge as the third tier in its hierarchy, after town-centre and edge-of-centre locations: paragraphs 58 and 59.

The assessment of alternatives and other ED6 requirements was accepted as thorough and robust. The central legal question was whether that was the wrong assessment because Policy 28 took precedence over an incompatible local policy.

At paragraphs 61 and 62, the judge read Policy 28’s detailed provisions in light of its stated intent and outcomes. Those provisions supported sustainable retail locations and healthy centres; they did not conflict with ED6’s objectives.

He assumed, without deciding, that the application was for new retail. Whether it actually was new retail was left open. On the assumption made, ED6 recognised the commercial centre as suitable where its sequential and other requirements were satisfied.

At paragraph 62, Lord Sandison found “no incompatibility” between the policies under section 24(3). The later date of NPF4 alone did not invalidate or displace ED6. The particular relationship between the policies had to be examined.

Policy interpretation, weight and reasons

At paragraph 63, the court held that Policy 28 had been correctly identified as relevant. Policy 27 and ED6 were also relevant and supplied more detailed expressions of the town centre first principle for assessing the proposal’s effects.

With the policies identified and construed without legal error, their weight was a matter of planning judgment for the council, subject to the limits of rationality. Its conclusion that the proposal accorded with the development plan could not successfully be challenged in law on the grounds advanced.

At paragraph 64, the court treated the council’s reasoning as the reasoning in the officers’ report it had adopted. That addressed the principal issues adequately. Tesco was challenging the substantive reasons that persuaded the authority, rather than demonstrating an inadequacy in their expression.

Outcome and limits of the decision

Lord Sandison refused the prayer of the petition at paragraph 65. Tesco was found liable to the council and Sainsbury’s for the expenses of process.

The court did not itself grant permission or undertake a new retail merits assessment. It upheld the legality of the authority’s decision in the circumstances of this application.

This judgment does not establish that all supermarkets in existing retail parks comply with NPF4. Nor does it decide the open question of whether this proposal constituted new retail. Its reasoning depends on the established retail use, the condition’s purpose, the commercial-centre designation and the relevant policies and evidence.

How we would use the judgment

For a Scottish condition application, start with the actual permission and the purpose of the restriction. Read the site designation and relevant national and local policies together before alleging conflict between them.

For applicants, the sequential assessment and retail impact evidence need to withstand scrutiny. For objectors, separate an alleged error of policy interpretation from disagreement with the authority’s weighting of evidence.

Our judicial review guide provides wider public-law context. The town centre sequential test guide explains the broader assessment, but the applicable law and policy must always be checked for the relevant nation.

Read the complete judgment

The complete official judgment is 35 pages, dated 2nd October 2026, with neutral citation [2026] CSOH 95 and case number P535/26. The local source preserves the court’s text without rewriting it. The substantive decision is at paragraphs 56 to 64 and disposal at paragraph 65.

The public summary is available to all readers. The judgment download is reserved for Planning Geek Gold members.

For the story behind the decision, read our news report on the Tesco planning challenge.