Tesco Stores Ltd v Dundee City Council [2012] UKSC 13
The point in plain English: What a development-plan policy means is a question of law. How that correctly understood policy applies to the facts is normally a matter of planning judgment.
What happened
Tesco challenged Dundee City Council’s decision to grant permission for an out-of-centre Asda store. The dispute centred on a development-plan policy requiring there to be no suitable site available in a sequentially preferable town-centre or edge-of-centre location.
Tesco argued that the council had misunderstood what a suitable alternative site meant.
What the Supreme Court decided
The Supreme Court dismissed the appeal. Lord Reed explained that development-plan policies must be interpreted objectively in their proper context. A planning authority cannot simply make a policy mean whatever it wants it to mean.
However, many policies use language that requires evaluative judgment in application. The court determines the meaning of the policy; the planning authority then applies that meaning to the facts, subject to ordinary public-law review.
On the sequential test, suitability was directed to the proposed development, but the developer was still expected to show flexibility and realism in considering alternative formats, scale and locations.
Why Tesco v Dundee matters
Although this was a Scottish case under Scottish planning legislation and historic retail policy, its distinction between interpreting policy and applying planning judgment has been highly influential throughout UK planning law.
For the current English policy position, see Planning Geek’s dedicated guide to the town-centre sequential test.
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