The new store and a Toby Carvery Pub was granted planning permission for the site between Angmering and Rustington by Arun District Council’s development control committee in October.
Approval was only given on the chairman’s casting vote and the decision went against the advice of council officers.
They had argued the plans failed to meet the sequential test for convenience retail proposals in out-of-centre locations.
Now Store Property Investments Limited is looking to challenge the council’s decision as ‘legally flawed’.
The company has submitted an application for a judicial review, with Arun filing a response contesting the claim.
A decision on whether the case will proceed to a judicial review and hearing is expected next month.
Arun cabinet members are being asked to set aside up to £150,000 in case the council has to defend a judicial review. They will make a decision on Monday February 11.
M&S secured approval from councillors to build a Simply Food store off the A259 in 2015, but permission was quashed following a judicial review by Store Property, who are landlords of Waitrose in Rustington.
Waitrose left Littlehampton town centre in 2015 – a vacant site also leased by Store Property – which the landlord argues is suitable for M&S.
But M&S has continually dismissed the site, claiming it has ‘significant’ viability issues.
According to a council report, Store Property has launched its legal challenge on the following grounds:
1) Failure to apply properly or at all, national planning policy and guidance in relation to the sequential test and absence of reasons for taking a decision contrary to the development plan;
2) Failure to give reasons for reaching the decision
3) Failure to take into account material planning considerations
4) Absence of proper authority to issue the planning permission
5) Procedural impropriety – failure to provide a fair hearing.
Store Property has been approached for comment.