Tain, with a population of 4000, might not seem an obvious place for Asda and Tesco to fight over, but the recent decision of the Court of Session tells the long tale of their jousting.
The decision scrutinises the behaviour of the councillors in deciding to grant Asda consent: Tesco alleged that certain councillors voted in favour of the Asda application simply because of a desire to stop or undermine the Tesco development.
These sorts of allegations are always difficult to prove because actions and words are open to different interpretations. In this case the judge agreed that the evidence showed that three councillors were strongly against the Tesco proposal. He noted the “formidable planning case” for the Asda proposal, and said there was no clear evidence that those councillors ignored the planning issues concerning the Asda proposal, and entered the meeting with a fixed and closed mind based upon an overwhelming desire to stop Tesco.
Part of Tesco’s case was that one of the councillors commented about there being too many Tescos and not enough Asdas in the Highlands. Slam dunk for Tesco? Not according to the judge, who preferred to focus on the overall context. As there was a sensible and sound basis to reach the decision, the judge considered it would be wholly unreal and disproportionate to strike down the decision because of the “stray” remark. Tesco might feel it charitable to describe the remark as “stray”?
This shows how difficult it is to challenge decisions on the basis of what councillors did or said.
Tesco also lost their argument that the Council misapplied the sequential test, highlighting the general reluctance of the Court of Session to interfere with the judgment and discretion of the planning authority.
On February 4, 2011