Newly returned football league side Bristol Rovers has been dealt a blow in their plans to move to a much bigger new stadium, after a judge today sided with Sainsbury’s in a dispute over the old one.
Proudman J found in favour of the supermarket chain in its claim that it has lawfully terminated its agreement to purchase the club’s existing Memorial Stadium for £30m.
Rovers, which in May won the conference play-off final and secured a return to League Two, had argued that the agreement was still on foot, or had been terminated in breach of contract.
The club had hoped to sell the dilapidated ground in the north of Bristol to fund a new, modern stadium on the Frenchay Campus of the University of the West of England. In 2011, it agreed a deal under which Sainsbury’s would buy the Memorial Stadium site for £30m, lease it back to Bristol Rovers at a peppercorn rent while the construction of the new ground was under way, and then redevelop as a supermarket once the move took place.
However, Proudman J today found that a store planning condition in the agreement – under which Sainsbury’s had to obtain an acceptable store planning permission – was “not satisfied” in time and so Sainsbury’s claim must succeed.
Bristol city council did grant planning permission for the supermarket redevelopment in 2013, but it was subject to a restriction on delivery times which the club ultimately agreed was an onerous condition that effectively deemed the decision a planning refusal for the purposes of the agreement.
Sainsbury’s made an application under section 73 of the Town and Country Planning Act 1990 to vary the condition, but this was refused in January 2014.
Though the judge said that Sainsbury’s “could and should have engaged with local councillors and objectors and kept the club informed of the likely refusal of the s73 application”, there was “no link between such engagement or information and the success of the application” as it was “brought at a politically inexpedient time”.
She found that an acceptable store planning permission could not have been obtained before a termination date in November 2014 because the club had “unequivocally assented to the timing and terms of the s73 application” and planning counsel had advised that an appeal would only have a 55% chance of success, below the 60% threshold in the agreement that would have obliged Sainsbury’s to pursue one.
If ultimately built, Rovers’ planned new stadium would see the club go from a capacity of just under 12,000, only 3,000 of which is seated, to a 21,700 all-seater ground.
Sainsbury’s Supermarkets Ltd v Bristol Rovers (1883) Ltd Chancery (Proudman J) 13 July 2015
Mark Wonnacott QC and Philip Sissons (instructed by Dentons UKMEA LLP) for the claimant
David Matthias QC and George Mackenzie (instructed by Burges Salmon LLP) for the defendant
