Lord Sandison refused the petition and found Tesco liable for the council’s and Sainsbury’s expenses.

The retail park was permitted in 2000 with a condition limiting its units mainly to bulky goods (DIY, furniture, carpets, electrical and garden items), intended to protect more sequentially preferable locations. In 2025, Sainsbury’s applied under section 42 of the 1997 Act to remove that restriction for Unit 1 so it could operate as a supermarket. The council granted the application in February 2026.

Tesco argued that the council wrongly focused on NPF4 Policy 27 and local plan Policy ED6 rather than assessing the proposal under NPF4 Policy 28, the national retail policy. It argued that the policies were incompatible, that the later NPF4 should prevail under section 24(3), and that the council’s conclusion and reasons were therefore flawed.

The court found:

• A section 42 application is narrow: it concerns only the conditions attached to an existing retail permission, not a new development. It was natural for the council to apply the policies most relevant to protecting sequentially preferable locations.
• Policy 28 and Policy ED6 are not incompatible. Both reflect the same “town centre first” principle, and the local plan treats Cuckoo Bridge as capable of suitable retail development if ED6’s sequential tests are met.
• The officers’ report correctly identified Policy 28 but could focus on the more detailed Policies 27 and ED6. The weight given to each was a matter of planning judgment, so the conclusion that the proposal accorded with the development plan could not effectively be challenged.
• The council’s reasons, as set out in the officers’ report, were adequate. Tesco’s complaint was really about the substance of the decision, not how it was explained.

A full case report has been published in our sister publication Scottish Legal News.