Inner House case in which Tesco sought to challenge a decision by Perth and Kinross Council to agree to the removal of a condition contained in a section 75 agreement made with Sainsbury’s.
The s75 agreement was ancillary to a grant of planning permission allowing Sainsbury’s to construct a large store on a site in Perth to the southwest of the junction between the A9 and A85. There was known to be traffic congestion in the vicinity of the proposed development and Sainsbury’s had put forward a number of proposed road traffic “mitigations” in order to ensure that the new superstore would cause “no net detriment” to the road network. In terms of clause 5 of the s75 Agreement, Sainsbury’s agreed to pay a traffic mitigation sum before it commenced work on the development. Clause 6 of the Agreement contained a trading restriction to the effect that the new superstore should not open for trading until such time as the Council had let the contract for the construction of the road improvement works.
There was some slippage from the original timetable for the carrying out of the road improvement works which meant that it would not be possible for the Council to let the contract for the construction of the works when originally envisaged. This led to the possibility that Sainsbury’s would end up in the position of having completed the development but be unable to open for trading because of a delay in the letting of the road construction contact.
As a result, Sainsbury’s applied to, and obtained from the Council, a modification of the s75 agreement deleting clause 6 of the agreement.
Tesco (the owner of a nearby store) argued that, in allowing the modification, the Council had:
- failed properly to interpret its own development plan;
- failed to address a material issue, namely whether clause 6 was still necessary and/or still served a useful purpose;
- failed to give adequate or intelligible reasons for its decision and/or had no factual basis for key parts of its decision; and/or
- reached a decision that no reasonable planning authority could have reached.
The Inner House rejected all of those arguments and refused Tesco’s petition.
The full judgement is available from Scottish Courts here.
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