Tesco set to open tomorrow as court bid fails

No to Mill Road Tesco has failed in its bid to secure an injunction stopping Mill Road Tesco opening tomorrow, clearing the last legal hurdle before Tesco's planned opening tomorrow morning. The action saw an individual campaigner as claimant, the City Council as defendant and Tesco as an interested party.

Whilst there remains an option for campaigners of pursuing a judicial review, some of the observations of the judge could prove problematic for the anti-Tescos campaigners, including:

"In so far as there is alleged to be a breach of planning consent granted or of planning control generally, there is an absence of evidence that the Defendant has acted irrationally of unlawfully. "

"The defendant Council has a wide discretion ... whether to take action in respect of any such breaches or not."

"There appears to be no legal basis for the claim that the installation of air-conditioning plant is development within the meaning of that term in planning law"

and perhaps most damning:
"This application is in reality an attempt to revive the No Mill Road Tesco Campaign under the guise of a Judicial Review claim. It is a misuse of Judicial Review"

I haven't blogged on the East Area committee last week yet - it took some time to calm down, after finding out that the Council's failure to provide a briefing for opposition Councillors resulted in me being excluded from actually making the decision. Under planning rules, Councillors cannot make decisions that they have predetermined, and it appears that this also applies to planning enforcement decisions.

It is unclear what would constitute predetermining the decision - I had certainly made it known that I didn't think large companies should be able to just ignore planning conditions, but without an adequate briefing beforehand I just didn't know if it would be legally safe for me to take part in the decision, so I did't.

I did however speak as a ward member to make it clear that on the main planning condition that Tesco had threatened to breach - delivering from Mill Road, the Council need to take a very robust view.

There are still questions to answer about quite why the Council was so slow in acting on this matter (which ultimately resulted in the last minute Tesco U-turn) - and why repeated requests for a briefing to be held for Councillors were refused. The chair of the committee Cllr Blencowe certainly didn't come out of the situation well - he had a briefing on 6th August, that other members of the committee were effectively excluded from, tried to cancel the meeting with a couple of days to go, and then proceeded to use the meeting to attack the No to Mill Road Tesco campaign members at one point.

Ultimately however, I think the press reports of the meeting were very harsh on the committee - who had at late notice received assurances from Tesco (and agreement to put these into a more legally binding form) that they wouldn't deliver from Mill Road. The committee did all they could reasonably do in the case of the deliveries from Mill Road - authorising officers to take immediate enforcement action if the condition was breached despite the undertakings from Tesco.

There remains the question of whether the changes made to the building to fit air conditioning require planning permission - the Council is looking in to this. Tescos will now be delivering to the rear of the store via Catharine St and Sedgewick Street - which is far from ideal, although doesn't appear to directly contradict any planning conditions or traffic laws, so it will be interesting to see how any problems that arise from this delivery method can be tackled.

No to Mill Road Tesco have secured significant concessions from Tesco on deliveries and blocking the sale of alcohol, as well as keeping them out for nearly two years, but it finally looks like Tesco has conceded enough to enable them to open.