Douglas Armstrong Q.C. and James Findlay acting on behalf of Dundee City Council successfully resisted Tesco’s appeal to the Supreme Court against Dundee’s decision to grant planning permission for an Asda superstore on part of the old NCR site in close proximity to an existing Tesco’s on the Dundee ring road.  The decision means the Asda store can now be built.  However, the decision is of much wider import. 

·    First, the Supreme Court has clarified the proper approach to interpretation of planning policy – it is a matter of law for the court to determine and not a matter within the discretion of the local planning authority – and emphasised the importance of the decision maker properly understanding the provisions of the development plan.  I.e. there is a correct legal interpretation of a policy and it is not enough that the council’s interpretation is within the range of potential reasonable interpretations. This issue was a matter of some debate and the Court’s clear statement of approach denotes a change in the position that previously prevailed.

·    Secondly, the Supreme Court has provided useful guidance to the application of the sequential approach and the issue of suitability of sites more sequentially preferable to incorporate the development.   The decision in this regard has to be read with care as the Court was concerned primarily with the proper approach to a particular discrete part of Dundee’s Structure Plan.  The issue of suitability of a particular site is to be determined primarily by reference to the actual proposal being promoted, provided it had due regard to the requirements of flexibility.   However, it did not have to deal with the issue of need and the question of whether that need could be met elsewhere.

·    Thirdly, the Supreme Court provided a useful reminder that any legal flaw must be of practical significance.  Even if it had found Dundee City Council had erred in this case it would have refused relief as the outcome would have been the same.  There was no real possibility that the decision would have been different.