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Cite as: [2001] ScotCS 180

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Coulsfield

Lord Marnoch

Lord Caplan

XA35/99

OPINION OF THE COURT

delivered by LORD COULSFIELD

APPEAL

under the Town and Country Planning (Scotland ) Act 1997, Section 239

CALA MANAGEMENT LIMITED

Appellants;

against

THE SCOTTISH MINISTERS and ABERDEEN CITY COUNCIL

Respondents:

_______

Act: Menzies, Q.C.; Ledingham Chalmers

Alt: Ferguson, Q.C.; R. Henderson (for Scottish Ministers): Wilson; Bennett & Robertson (for Second Respondents)

5 July 2001

[1] On 19 May 1998 the appellants applied for planning permission for residential development on a site in the Summerhill district of Aberdeen. The site presently consists of the playing fields of St. Margaret's School for Girls, extending to approximately 2.7 hectares, and includes a vacant groundsman's house. The site is surrounded by residential development and lined on two sides by belts of mature trees. The surrounding area is predominantly residential. The planning application, as ultimately amended, proposed the construction of 37 houses, retaining a tree belt along the western boundary of the site and providing a strip of public open space varying in width from 10 to 15 metres between the houses and the surviving tree belt. Planning permission was refused by the second respondents on 2 December 1998. The appellants appealed to the Secretary of State who appointed Mr. David A. Russell, an inquiry reporter, to determine the appeal. Mr. Russell held a public inquiry between 24 and 27 August 1999 and by a decision dated 15 November 1999 dismissed the appeal.

[2] It is convenient at the outset to set out the determining issues in the appeal, as the reporter saw them. In paragraph 104 of his report he said:

"On the basis of the evidence at the inquiry, the written representations and the site inspection, I consider that the determining issues in this appeal are:

(1) Whether the appeal proposal would conform with the structure plan's definition of brownfield development and, therefore, its release for housing would accord in principle with Housing Policy 6 of the structure plan.

(2) If so, whether refusing planning permission would still be justified by the provisions of:

(a) Policy 0R1 of the adopted local plan;

(b) National Planning Policy Guideline 11 'Sport, Physical Recreation and

Open Space';

(d) National Planning Policy Guideline 3 'Land for Housing'".

[3] The reporter further referred to matters of detail concerning the proposed development, which are not relevant to this appeal.

[4] As is evident from that paragraph, policies set out in the development plan and in national planning guidelines were critical to the decision on the appeal. As a result, it is necessary to set out, at some length, what the relevant documents said. The position in regard to planning policies affecting the city of Aberdeen is complicated by the fact that, at present, the development plan consists of the Grampian Structure Plan, approved by the Secretary of State in 1997 and the Aberdeen City District Wide Local Plan adopted in 1991. However, since 1991 national planning policy guidelines have been issued in relation both to land for housing and to sport, physical recreation and open space. There is also what is described as a final draft of a new Aberdeen City Local Plan approved by the council and placed on deposit for objection, although not published by the time of the inquiry. These documents do not form part of the development plan but do fall to be regarded as material considerations to which the planning authority and the reporter are obliged to pay attention.

[5] In his report the reporter sets out in detail the policy provisions relevant to both the questions quoted from paragraph 104 above. However, since he answered the first question in favour of the appellants, it is only necessary to refer briefly to the policy provisions concerned with development on brownfield sites. Essentially what the structure plan provided, in Housing Policy 6, was that an overall shortfall in the supply of housing land should be met in certain ways in areas outwith Aberdeen city and that, so far as Aberdeen city was concerned, it should be met by brownfield development. For this purpose, brownfield development was defined, in the glossary to the structure plan, as "development within existing urban areas, including redevelopment sites, in-fill sites and conversions." The planning authority took the view that the appeal site did not fall within that definition of brownfield sites. The reporter, however, decided that it did and that decision has not been challenged in the appeal. Consequently, the policy statements which require to be set out are those relevant to the second question identified by the reporter.

[6] The only provision in the structure plan which requires to be quoted in detail is Housing Policy 2 which is entitled "Housing Design and Siting" and states:

"New housing developments shall respect all relevant structure plan policies. They shall be sensitively sited and designed to safeguard the urban and rural environments, paying particular attention to:

(a) significant landscape or nature conservation areas;

(b) the landscape setting of settlements;

(d) the availability of infrastructure; and

(e) the risk of flooding.

Local plans shall set out detailed guidelines relating to new housing development."

[7] There are other structure plan policies which refer to the protection of the environment and of amenity and to the encouragement of sport and recreation but it is not necessary to quote them.

[8] In the 1991 local plan, the appeal site is classified as "Recreation" with a reference to policy OR1. That policy is entitled "Open space and recreational uses" and provides:

"In these areas there is a presumption in favour of retaining the existing open space or recreational use. No development will be permitted unless there are particular circumstances directly related to the recreational use and providing also that there is no detriment to the amenity of adjoining areas."

[9] The 1991 plan also contains reference to the protection and conservation of trees.

[10] The 1999 draft local plan also contains provisions in relation to sport, recreation and the protection of trees. The policies which are particularly important are Sport and Recreation Policies 3 and 5. Sport and Recreation Policy 3, headed "Retention of Open Space", states:

"Permission will not be granted to use or redevelop any playing fields, sports pitches or all other areas of open space for any use other than recreational sport unless an equivalent and equally convenient area for public access is laid out and made available in the locality by the applicant for open space purposes. In all cases, development will only be acceptable provided that:

(1) there is no significant loss to the landscape character and amenity of the site and adjoining areas, and

(2) access links are either maintained or enhanced, and

(3) the site is of no significant wildlife value, and

(4) there is no loss of established or mature trees."

Sport and Recreation Policy 5 deals with the provision of public open space in new residential developments and states:

"The city council will require the provision of 2.8 hectares per one thousand people of public open space in new residential development. Provision will be based on the number of bed spaces in any development. This shall be considered a minimum figure and should comprise one or more of the following categories:..."

There follow references to sport pitches, children's play areas and various other types of open space.

[11] National Planning Policy Guideline 3 need only be mentioned briefly. It deals with land for housing and emphasises, in paragraph 33, the importance of retaining open space, whether in the form of parks, open spaces, local nature reserves, allotments or private gardens. Paragraph 87 similarly emphasises the importance of local plans in specifying standards for housing development including the maintenance of valuable urban open space, particularly playing fields. It is, however, worth mentioning that in this document brownfield sites are defined as sites which have previously been developed or used for some purpose which has ceased, such as the re-use of existing building sites by demolition and rebuilding and that it is specifically stated that the term excludes "private and public gardens, sports and recreation grounds, woodlands and amenity open spaces."

[12] National Planning Policy Guideline 11, entitled "Sport, Physical Recreation and Open Space" requires to be considered at greater length. The guideline was issued in 1996. The relevant section begins with paragraph 34 which explains the importance attached by the Government to the retention, where appropriate, and to the creation of recreational and amenity open space, particularly in urban areas. Paragraph 35 makes it clear that the guidance applies to all open space which benefits the public, whether public or private. Paragraphs 36 and 37 deal with the importance of planning for open space. Paragraphs 38 and 39 are in the following terms:

"38. Development proposals affecting open space, especially playing fields, must therefore be considered carefully if they would be likely to adversely affect the community value of the open space. Important issues will include whether there is or would be a surplus or deficiency in open space in the area, the contribution that brownfield, contaminated or derelict land could make either to relocate the proposal or to redress the loss of open space, sports pitches or other facilities, and whether the space is to be replaced with alternative provision giving similar community benefits. The consideration should take into account the leisure or sport and recreation strategy for the area, where one has been drawn up, and the needs of future generations, for once built on open space is almost certainly lost to the community forever. In urban areas, over-intensification (town cramming) can erode open space provision, especially small informal areas, while simultaneously adding to the demand.

39. On the other hand it may be possible to relocate sporting facilities or open space in some cases onto brownfield sites, particularly derelict and contaminated land, where viable residential development would otherwise be unlikely. In such circumstances development of open space may be a more sustainable option than developing a greenfield site. Redevelopment opportunities may thus be allowed which have the potential to result in an overall improvement in local amenity and facility provision, relieve pressure on urban greenfield land, or make full, productive use of an under-used resource..."

[13] Paragraph 40 deals with the desirability of co-operation between developers and planning authorities and paragraph 41 with questions of vandalism and maintenance. Particular reference is made to playing fields and sports pitches in paragraphs 44 to 50. Paragraph 44 states that all playing fields and sport pitches, whether owned by public or private organisations, are potentially significant for their sporting value and for their value to the local community and the environment, unless proved by survey or strategic studies to be seriously lacking in quality or surplus to requirements. Paragraphs 45 and 46 stress the importance of preserving school playing fields and the necessity of consultation with the Scottish Sports Council and paragraph 47 provides:

"47. There should be a presumption against redevelopment of playing fields or sports pitches, public or private. Development plan policies should indicate criteria by which redevelopment could be exceptionally allowed (see paragraph 39), such as to replace facilities with all-weather surfaces, or in more central locations, or to allow an important development on the site. Such exceptions should be based on strategic considerations (see paragraph 92), and should follow examination of all possible alternatives. This is particularly necessary before an open space of significant local amenity value is removed. In these circumstances the replacement area should be within or adjacent to the same community, not in distant suburbs or urban fringe."

[14] The document proceeds to stress the importance of preventing piecemeal loss of such land and to set out in summary the relevant planning considerations.

[15] The circumstances which led to the planning application, as presented by the appellants to the reporter, were that the playing fields, which belong to St. Margaret's School and are in private ownership, were also used by members of the public on a casual and informal basis, since there was no physical barrier to entry. Some time ago, the school decided to provide improved sports facilities and, with a view to funding that development, obtained, in 1993, planning permission to build 14 houses on the northern end of the site. Later the school took the view that that limited development could not fund the proposals which they wished to carry out to improve the sports facilities and further would leave too small a site for accommodation of improved facilities. Having regard to what had happened in the way of development on adjacent land, formerly the playing fields of Albyn School, St. Margaret's School entered into negotiations with the appellants. An alternative site for the sports facilities was identified at Craigton Road, on the western edge of the built up area of the city. The Craigton site road remains under the control of the appellants. Planning applications were presented in relation both to the appeal site and to the Craigton Road site and, after some adjustment, planning permission was granted in relation to the sports field proposals for the Craigton Road site. Both the appellants and the school regard the two proposals as linked and they have offered to agree to any appropriate planning conditions to make that clear.

[16] The reporter heard evidence from witnesses on behalf of the appellants and the second respondents. There were also a total of 120 letters of objection, mostly from local residents. About 20 objectors attended at the inquiry and submissions were made on their behalf by one of their number.

[17] Having considered the evidence the reporter, in dealing with the second determining issue, begins by referring to policy OR1 and observes that while it does not form a blanket prohibition stopping any development of the site, it does set a presumption in favour of retaining the existing open space and recreational use. He refers to the link between the proposals for the appeal site and those for Craigton Road but observes that the wording of policy OR1 refers to circumstances directly related to the recreational use of the appeal site itself, of which the bulk would be developed for housing, if the proposals were approved, leaving less than 25%, including remaining areas of the tree belts, which would be made available as public open space. The reporter finds that the effects of the proposed development would essentially be to extinguish the present recreational use of the playing fields. The reporter then states:

"110. With regard to the effects of the proposed development on the amenity of adjoining areas, I accept that there are elements within the appeal site which are visually unattractive, in particular the vacant cottage at the north east corner, the disused and overgrown all weather court and, to a lesser extent, the dilapidated pavilion. However, taken as a whole, I am satisfied that the sports field, due to its large size, level surface and excellent condition, represents an important recreational resource and a significant amenity in its own right, which is complimented by the tennis courts to the east."

[18] The reporter proceeds to comment on the amenity value of the tree belts, both in themselves and in relation to the playing fields. He refers to other open space in the general area but says that he is satisfied that there is no location in Summerhill which offers the scale and quality of recreational opportunity, or such a significant contribution to the townscape and amenity of the predominantly residential area, as is found at the appeal site. He refers to the fact that the playing fields are at present privately owned but observes that they nonetheless constitute a type of green lung which can be an important element within any residential area and he proceeds to state, at the end of paragraph 116,

"I also accept that it makes a very positive contribution to the urban environment, and I am satisfied that its use for the development of housing would represent a form of town cramming."

[19] On this part of the decision, the reporter expresses his conclusions as follows:

"118. I therefore conclude that the appeal proposal would not accord with policy OR1 of the adopted local plan, for two reasons. Firstly, I find that there are no particular circumstances related to the recreational use of the appeal site which would justify setting aside the presumption in favour of retaining the existing use; and secondly, that significant detriment would be caused to the amenity of adjoining areas by the proposed development of these playing fields for housing."

[20] The reporter then refers to NPPG 11 and continues, in paragraph 119:

"In this case I find that the proposed development fails to meet any of these criteria for the following reasons:

the appeal proposal does not seek to achieve the retention or the enhancement of the sports facilities by redeveloping only a part of the site; and it would adversely affect both its sporting potential and its amenity value.
for the reasons outlined above the proposed development would lead to a significant loss of amenity, and although it could secure the provision of improved facilities for the school at the Craigton Road site, I do not consider that those facilities would be of equal community benefit or accessibility. This is due both to the urban fringe location of the Craigton Road site, and the absence of any firm commitment by the school either to the principle or to the extent of public access to the new facilities.
I have found above that there is no other location in Summerhill which offers the same scale and quality of recreational opportunity as the appeal site, and I am satisfied that there is no evidence of a clear long-term excess of pitches, playing fields and public open space in the wider area which would justify the release of the site for housing. I note in this regard that the council's 1991 audit of open space did not assess the provision of playing fields."

[21] With regard to the draft local plan, the reporter observes that it continues the presumption in favour of retaining the open space and recreational use of the appeal site as established in the adopted local plan, both by re-designating it for open space and in explicitly applying to it the terms of Sport and Recreation Policy 3. The reporter considers the exceptions to that general presumption and holds that the proposals would not meet any of the exceptions, particularly because the alternative sports facility proposed for Craigton Road would be in a different locality and the incorporation of public open space within the appeal site would not represent an equivalent area for public access available for open space purposes. He continues by holding that both the adopted and draft local plans are consistent with NPPG 3 and expresses his final conclusions as follows:

"124. Drawing together the matters set out in the first two determining issues, I conclude that, although in principle the release of this site would be sanctioned by Housing Policy 6 of the structure plan, as it would constitute brown field development which would assist in making good the current deficit in the housing land supply, its development for housing would not accord with the terms of policy OR1 of the adopted local plan or, thereby, of Housing Policy 2 of the structure plan.

125. I therefore conclude, overall, that approval of the proposed development would not accord with the relevant provisions of the development plan. That conclusion is reinforced by my findings that approval of the appeal proposal would not be justified by the key provisions of both national planning policy guidelines Nos. 3 and 11, or of the final draft local plan, each of which are important material considerations in this appeal. Accordingly I consider that refusing planning permission would be justified in this case."

[22] In their written case, the appellants put forward six grounds of appeal. Five of these related in one way or another to the reporter's reasoning and conclusions. The remaining ground, stated as ground No. 1, arises from a refusal by the reporter to allow the appellants to lodge a report dated 20 August 1999 by a Mr. John Souter and to allow them to lead Mr. Souter as a witness to speak to its terms. The reporter has not been asked directly to comment on this ground of appeal and so we do not have a statement of his reasons for the decision which he took. We do, however, have, from the agreement of the parties to this appeal, a reasonably clear picture of what occurred. The proceedings at the inquiry were subject, of course, to the Town and Country Planning Appeals (Determination by Appointed Person)(Inquiries Procedure) (Scotland) Rules 1997. The rules provide for the provision of some preliminary information and for notification of the identity of the person appointed to determine the appeal. Rule 6 provides, by sub-rule (1), that the appointed person may hold a pre-inquiry meeting if he thinks it desirable. Rules 7 and 8 provide for the service of statements of case by the planning authority and the appellant respectively and Rule 9 provides for service of statements by other persons. Rule 11 provides inter alia:

"(1) A person entitled to appear at an inquiry who proposes to give, or to call another person to give, evidence at the inquiry by reference to a precognition shall send a copy of the precognition to the appointed person together with, subject to paragraph (2) of this Rule, a written summary."

[23] Subparagraphs (2) and (3) provide that a written summary is not necessary in relation to a precognition of less than 2,000 words and subparagraph (3) provides that the precognition and any summary are to be sent to the appointed person not later than two weeks before the date fixed for the holding of the inquiry or by such other date as the appointed person may specify. Further rules provide for notification of the date of the inquiry and other relevant matters. Rule 12(4) provides:

"Where any party intends to rely on or put in evidence any documents, that party shall, by the date four weeks before the day fixed for the holding of the inquiry, provide copies of those documents (or the relevant parts of those documents to the planning authority and the Secretary of State..."

[24] In the present case, a pre-inquiry meeting was held on 7 June 1999. At that meeting the reporter appointed the appellants and the second respondents to lodge their cases by 22 June 1999 and the local resident objectors to lodge their case by 6 July 1999. He further appointed all parties to exchange documents by 27 July 1999 and to exchange precognitions by 10 August 1999. The inquiry was to open on 24 August 1999. These time limits were agreed by the appellants as well as the other parties.

[25] In their grounds of appeal, the appellants describe Mr. Souter's report as an expert assessment of the suitability of the appeal site for continued use for the recreational and playing field requirements of the school together with an assessment of the suitability of the site at Craigton Road. They say that these assessments were of central importance to the inquiry and addressed one of the determining issues for the reporter and they further say, under reference to certain paragraphs of their statement of case, that they had given notice that this formed part of their case and that they intended to lead a witness to speak to a comparison of the existing facilities and proposed facilities. They also say that they had indicated their intention to lead such evidence at the pre-inquiry meeting. The second respondents opposed the motion before the reporter on the ground of prejudice as they would have had insufficient time to prepare and lead evidence in response. They say that the statement of case did not give notice that the appellants intended to lead technical evidence in respect of this issue or any detail as to that evidence. On behalf of the first respondents, it is stated that the appellants offered no explanation for the late production of Mr. Souter's report, that the appellants' statement of case did not give notice of an intention to lead technical evidence or the detail of that evidence and that the second respondents had no expert witness to counter such technical evidence or time to prepare to lead such evidence. The appellants offered to agree to an adjournment of the inquiry, and to bear any costs resulting from it, but despite this the reporter refused to allow the report to be lodged or the witness to be led.

[26] Mr. Souter's report was made a production in the appeal and we were able to see it. We observe in passing that it is not clear whether the reporter himself did read the full terms of the report, but we were told that he had taken time to consider the appellants' motion and the objections to it. The report is dated 20 August 1999 and refers to a visit and detailed discussion with the appellants on 19 August 1999. The report lists sports activities required by the school as hockey, tennis, athletics, high jump, long jump, discus, shot-put and netball with the addition of golf practice nets, jogging and exercise track and a general play area/lacrosse pitch. Mr. Souter sets out the area of the appeal site and inter alia observes, under reference to a drawing, that while a 300 metre running track could be installed, one at 400 metres could not. The report adds: "Equally the slope in situ makes it difficult when running 'up the hill'".

[27] In reference to the appeal site, Mr. Souter observes that there is a minimal fall across the site and that while there is an electric pylon situated in it, it would not cause any problems relating to playing facilities. Later in his report, Mr. Souter observes that because of the slope and the TPO the area would require to be re-graded before it was acceptable for hockey or athletics and repeats the observation that a 400 metre track could not be fitted in. He also refers to the fact that householders might object if floodlighting were installed for an artificial hockey pitch and finally that it would be almost impossible to fit in requirements for tennis, netball and other minor activities. On the other hand, he concludes that all requirements can be fitted in at Craigton Road. The report concludes with a summary, which reads:

"The existing site at Rosewell has insufficient area to encompass the facility requirements of the physical education departments, whereas the proposed site at Craigton can accommodate them as demonstrated."

[28] To complete the background to the argument on this issue we should mention the paragraphs in the appellants' statement of case which they maintain gave notice of their intention to lead evidence along the lines of Mr. Souter's report. Paragraph 3.5 states, broadly speaking, that development of the appeal site would be consistent with policy guidance and government thinking and, in particular:

"3.5.2 It will facilitate the creation of improved recreational facilities for St. Margaret's School."

The appellants also referred to paragraph 5.2.5 in which they gave notice of their intention to lead evidence on

"a comparison of the existing playing field facilities against the proposed replacement facilities."

[29] Before considering the merits of this first ground of appeal, it is necessary to deal with a point of competency raised by the first respondents. The statutory basis of this appeal is found in sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997. Section 237(1) provides, so far as material

"Except as provided by this part, the validity of...

(f) any such action on the part of the Secretary of State as is mentioned in

subsection (3)

shall not be questioned in any legal proceedings whatsoever."

[30] The actions listed in subsection (3) include "(b) any decision on an appeal under section 47."

[31] The appeal for the Secretary of State in this case was an appeal under section 47. Section 239(1) provides, so far as material:

"If any person...

(b) is aggrieved by any action on the part of the Secretary of State to

which this section applies and wishes to question the validity of that action on the grounds -

(i) that the action is not within the powers of the Act, or

(ii) that any of the relevant requirements have not been complied

with in relation to that action

he may make an application to the Court of Session under this section."

[32] The first respondents maintained that the words "any decision on an appeal" had a restricted meaning and did not include, for example, a decision of a procedural character such as to refuse an adjournment or refuse to admit a witness or a document. In support of that submission, they referred to Co-operative Retail Services v. The Secretary of State for the Environment 1980 1 W.L.R. 271, in which it was held that a decision by the Secretary of State to refuse to adjourn an inquiry was not a decision on the appeal and therefore that an appeal to the court under the statutory provisions corresponding to sections 237 and 239 was not competent. Brandon L.J. (as he then was), at page 277 in particular observed that the expression was limited to a decision or order or final result arrived at. The Co-operative Retail Services case was one in which arrangements had been made for an extensive inquiry to commence on a given day but efforts had been made by certain of the parties to persuade the Secretary of State to postpone the start of the inquiry. The application before the court was an application to have it held that the Secretary of State had acted unreasonably or contrary to law in refusing to postpone the start of the inquiry. The inquiry itself was due to open on the day following that on which the application was heard. On behalf of the appellants in the present case, it was submitted that the decision in Co-operative Retail Services was restricted to cases in which the application was made to the court before the inquiry had reached a decision. It had no application to a case in which it was maintained, as part of a challenge to the decision of an inquiry, that the procedure had been vitiated by a procedural decision such as a refusal to adjourn or a refusal to admit evidence.

[33] In our view, the appellants' contention is correct. In the present case, we are dealing with an appeal against a final decision made by a person appointed by the Secretary of State to determine the appellants' planning appeal. There is no question of an application being made to the court in relation to an interim decision of the reporter or Secretary of State, or during the currency of the appeal process before the reporter. Such an application might raise different considerations. There is nothing in the decision in Co-operative Retail Services, in our view, which prevents a procedural decision being founded on, in an appeal against the final decision, as a reason for holding that the inquiry procedure was flawed in such a way as to vitiate the decision. We might add that the first respondents did not dispute that the point taken by the appellants in their first ground of appeal could have been raised by judicial review and it seems to us to be pointless to read the legislation in a sense which might require two sets of proceedings to be brought before the court in order to raise all the legal grounds of challenge to a decision, rather than deciding all appropriate questions in one set of proceedings.

[34] The parties were also at variance as to the proper approach to be taken by the court to the determination of the issue raised by the appellants' first ground of appeal, assuming it to be competent. For the appellants, it was submitted that, accepting that the reporter had a discretion to determine questions of the admission of evidence late or the allowance of an adjournment, any such question required to be decided in the first instance by the application of principles of fairness, against the background of the relevant procedural rules. The appellants also maintained, however, that even if that question were answered adversely to them, they could nevertheless maintain, as a separate issue, that the decision to determine the appeal without the benefit of the excluded evidence was unreasonable, in the sense explained in Associated Provincial Picture Houses Limited v. Wednesbury Corporation 1948 1 K.B. 233 and that the inquiry decision was vitiated on that ground. The respondents submitted that any question of unreasonableness in relation to proceeding to determine the issues in the inquiry without the benefit of particular evidence was simply an aspect of the question whether the person conducting the inquiry had or had not acted unfairly or contrary to natural justice in refusing to admit the evidence. In this part of the argument, reference was made to R. v. Panel on Take-Overs and Mergers ex parte Guinness plc 1990 1 Q.B. 146, Save Britain's Heritage v. Number One Poultry Limited 1991 1 W.L.R. 153 and R. v. The Home Secretary ex parte Doody 1994 1 AC 531 as well as to the statements of general principle contained in the Wednesbury case supra, Wordie Property Company Limited v. Secretary of State for Scotland 1984 S.L.T. 345 and City of Edinburgh Council v. Secretary of State for Scotland 1998 SC (HL) 33.

[35] Of these authorities, it seems to us that the most helpful in relation to this question is ex parte Guinness plc supra, although the decision was concerned with a Tribunal and a procedure of a very different character from those in the present case. The take-over panel is a panel of a very special character, as is explained in the decision, and is one whose procedure is very much a matter to be determined by the panel itself, without the benefit of defined statutory rules. The court decision was concerned with the refusal of an adjournment before a hearing in a situation in which Guinness plc had requested an opportunity to consider and respond to new material presented to the panel shortly before a hearing. The first relevant passage in the opinions given in the Court of Appeal is in the opinion of Lord Donaldson of Leamington M.R. at page 159. His Lordship said:

"The court's jurisdiction and limitations on its exercise are established in R. v. Panel on Take-Overs and Mergers ex parte Datafin plc 1987 Q.B. 815. However the present appeal calls for a further review and, in particular, consideration of whether the separate grounds for granting relief: illegality, irrationality, procedural impropriety and, possibly, proportionality, are appropriate in all situations. Illegality would certainly apply if the panel acted in breach of the general law, but it is more difficult to apply in the context of an alleged misinterpretation of its own rules by a body which under the scheme is both legislator and interpreter. Irrationality, at least in the sense of failing to take account of relevant factors or taking account of irrelevant factors, is a difficult concept in the context of a body which is itself charged with the duty of making a judgment on what is and what is not relevant, although clearly a theoretical scenario could be constructed in which the panel acted on the basis of considerations which on any view must have been irrelevant or ignored something which on any view must have been relevant. And similar problems arise with procedural impropriety in the narrow sense of failing to follow accepted procedures, given the nature of the panel and of its functions and the lack of any statutory or other guidance as to its procedures which are intended to be of its own devising. Similarly, in the broad sense of breach of the rules of natural justice, what is or is not fair may depend on underlying value judgments by the panel as to the time scale which is appropriate for decision, the consequences of delay and matters of that kind. Approaching the problem on the basis of separate grounds for relief may at once bring several interlocking and mutually inconsistent considerations into play - were the underlying judgments tainted by illegality or irrationality? If not, accepting those judgments, was the action unfair? If the underlying judgments were so tainted, was the action unfair on the basis of judgments which might reasonably have been made? The permutations, if not endless, are considerable and confusing.

It may be that the true view is that in the context of a body whose constitution functions and powers are sui generis, the court should review the panel's acts and omissions more in the round than might otherwise be the case and, whilst basing its decision on familiar concepts, should eschew any formal categorisations."

[36] Lord Donaldson proceeded to refer to Council of Civil Service Unions v. Minister for the Civil Service 1985 AC 374 and concluded that the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take. Later in his judgment, dealing with the particular question of the adjournment, Lord Donaldson said:

"As I have already indicated, I think that, at least in the circumstances of this appeal, it is more appropriate to consider whether something has gone wrong of a nature and degree which require the intervention of the court, rather than to approach the matter on the basis of separate heads of Wednesbury unreasonableness and unfairness or breach of the rules of natural justice...In passing I would, however, accept that whether the rules of natural justice have been transgressed is not to be determined by a Wednesbury test: 'Could any reasonable Tribunal be so unfair?' On the other hand, fairness must depend in part on the Tribunal's view of the general situation and a Wednesbury approach to that view may well be justified. If the Tribunal's view should be accepted, then fairness or unfairness falls to be judged on the basis of that view rather than the court's view of the general situation."

[37] At page 184, Lloyd L.J. said:

"Mr. Buckley [counsel for the panel] argued that the correct test is Wednesbury unreasonableness, because there could, he said, be no criticism of the way in which the panel reached its decision on 25 August. It is the substance of that decision, viz., the decision not to adjourn the hearing fixed for 2 September, which is in issue. I cannot accept that argument. It confuses substance and procedure. If a Tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, seldom withheld, quash the resulting decision by applying the rules of natural justice. The test cannot be different just because the Tribunal decides to adopt a procedure which is unfair. Of course the court will give great weight to the Tribunal's own view of what is fair, and will not lightly decide that a Tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a Tribunal as the panels. But in the last resort the court is the arbiter of what is fair. I would therefore agree with Mr. Oliver [counsel for Guinness plc] that the decision to hold the hearing on 2 September is not to be tested by whether it was one which no reasonable tribunal could have reached."

[38] Woolf L.J. agreed with Lord Donaldson in the general approach to the activities of the panel and said:

"Nowadays it is more common to test decisions of the sort reached by the panel in this case by a standard of what is called 'fairness'. I venture to suggest that in the present circumstances in answering the question which Lord Donaldson of Leamington M.R. has posed it is more appropriate to use the term which has fallen from favour of 'natural justice'. In particular in considering whether something has gone wrong the court is concerned as to whether what has happened has resulted in real injustice. If it has, then the court has to intervene, since the panel is not entitled to confer on itself the power to inflict justice on those who operate in the market which it supervises."

[39] In the light of the opinions expressed in that case, we have no difficulty in concluding that the primary approach to any case such as the present must be to apply the principles of natural justice, and to ask whether the actions of the reporter have unfairly deprived the appellants of a proper opportunity to present their case. In considering that question in the context of the present case, where there is a fairly elaborate background of statutory rules of procedure, it is, we think, important to appreciate that the procedural rules are designed to give all parties a fair opportunity to present their case and to allow for the expeditious dispatch of business. Equally, the importance of the evidence which has been rejected is a factor to bear in mind. If the matter is approached in that way, we think it most unlikely that there will ever be room to ask, as a second and separate question, whether the reporter or Tribunal acted in a wholly unreasonable way, in the Wednesbury sense, in refusing to accept evidence. It is not necessary for us to decide, in the present case, that it can never be possible to raise a separate question of unreasonableness but in our view in the present case the decisive issue is fairness.

[40] The submission for the appellants was that the information contained in Mr. Souter's report was information which would have been of overriding importance to the inquiry. It was further submitted that any prejudice to any other party could have been overcome by allowing an adjournment, at the appellants' expense. The appellants had, they contended, given notice that the issue dealt with in the report would be raised at the inquiry, although they accepted that the indications given in their statement of case were not specific. The respondents submitted that the material was not of overriding importance, that it would have been prejudicial to continue the inquiry to a later date and that no explanation had ever been given, either at the inquiry or in the appeal, for the lateness of the submission of the report.

[41] In our view, the respondents' submissions are to be preferred. What the report does is to draw attention to certain deficiencies in the existing playing fields from the point of view of the provision of modern facilities and to explain the superiority of the proposed Craigton playing fields. That information, however, might be regarded as doing little more than supporting the proposition which was already before the reporter that the new playing fields were preferable from the point of view of the school. It has very little bearing on the real determining issues in the inquiry, namely the issues of policy related to the loss of the existing playing fields as an open space. It was suggested on behalf of the appellants that the reporter had found that the existing playing fields were in excellent condition and that he could not have done so in the light of Mr. Souter's report. Again we do not agree with that submission. By saying that the playing fields were in excellent condition, the reporter was not, in our view, seeking to comment on their adequacy for modern sporting requirements but merely to reflect their existing state.

[42] In any event, even if the information contained in the report had been substantially more important than it appears to be on our reading of it, we do not think that it could have been said that the reporter was wrong to take the action which he did. The appellants had, albeit without any real specification, indicated that a comparison of the existing and proposed playing fields might be made in their case. They had attended the pre-inquiry meeting and were well aware of the time limits proposed. The procedural rules gave ample opportunity for the preparation and submission of reports and had the appellants anticipated difficulty in presenting evidence they could easily have made that clear at the pre-inquiry meeting. They could have made an approach to the reporter and the other parties before the day on which the inquiry was due to start. They did not do so, but presented Mr. Souter's reports on the first day of the inquiry. They have never, then or since, explained why the report was not presented at the time fixed at the pre-inquiry meeting. There was some discussion as to whether the report fell to be regarded as a "document" or a "precognition" for the purpose of the rules: on the whole, the latter seems the better description, but on any view the rules, as normally applied in practice in such enquiries, required that it should be presented at least two weeks before the inquiry. As we have observed, the rules exist to facilitate the fair and expeditious dispatch of business. Looking to the whole circumstances, we have no doubt that the reporter was entitled to exercise his powers in the manner which he did, and it cannot be said that he acted unfairly or contrary to natural justice.

[43] The remaining grounds of appeal can be dealt with rather more briefly. They all relate to the interpretation and application of planing policies and to the adequacy of the reasons given for the views taken by the reporter on the various policy questions. To some extent the separate grounds of appeal overlap. Ground 2 is that the reporter erred in law in not attaching weight to Sport and Recreation Policy 5 in the final draft local plan and to the fact that the appeal proposal complies with that policy. Ground 3 is that he erred in law in his treatment of NPPG 11 and further that he failed to explain why he did not rely on paragraph 39, which is said to support the appeal proposal, and why he treated paragraph 47 as the key paragraph. Ground 4 is that the reporter erred in law in having regard to any element of public use of the appeal site for sports purposes, considering that the site is privately owned and the public have no formal right of use over it. It is suggested, therefore, that the reporter erred in the conclusions which he reached in paragraph 115. Ground 5 is that the reporter failed to have regard to the views of the Scottish Sports Council which were in favour of the proposal, the Council being a statutory consultee, and that he did not explain why he did not give weight to those views. Finally, ground 6 is that the reporter erred in law in his treatment of Housing Policy 2 of the structure plan in that, at paragraph 124 of the decision letter, he stated that the appeal proposal would not accord with the terms of Policy OR1 of the adopted local plan and "thereby" Housing Policy 2 of the structure plan. The use of the word thereby, it was submitted, indicated that the reporter was wrongly proceeding on the basis that failure to comply with the outdated policy OR1 inferred that the proposal did not comply with the Housing Policy 2.

[44] It is clearly established that the interpretation and application of planning policies are matters of planning expertise and that it is for the reporter in a case such as this to interpret the policies and reach his own conclusion. Evidence was led on behalf of the appellants at the inquiry which sought to persuade the reporter to take particular views of the standing and proper application of certain policies. In particular, evidence was led with a view to persuading the reporter that Policy OR1, which is contained in the approved local plan but which, as has been seen earlier in this opinion, dates back some time and precedes a number of policy changes and new policy guidelines, should not be applied according to its terms. Of course the reporter would have erred if he had failed to consider that line of argument. Clearly, however, he did consider it and paid attention to all the planning changes which have supervened since the local plan was approved. Policy OR1, as part of the approved local plan, remains part of the development plan and is therefore something which the reporter was bound to take into account. In that respect, therefore, we do not think that it can be said that the reporter erred in law in any way. Moreover, it seems to us that the reporter was fully entitled to interpret Policy OR1 consistently with Housing Policy 2, or, rather, to interpret the two together and to draw the conclusion that there was in both a presumption against development of the appeal site. It may be true that the use of the word "thereby" in paragraph 124 by itself might suggest that the reporter had gone straight from the conclusion that there was a breach of Policy OR1 to the conclusion that there was therefore a breach of Housing Policy 2. However, reading the report as a whole, the material passages of which have been quoted above, we do not think that criticism is justified. Further, in our view, fairly read the reporter has adequately explained the reasons for his decision.

[45] As regards ground 2, the suggestion was that Policy 3 related to public open space and that the reporter had misdirected himself in relying on it, while not giving weight to the fact that the proposal complied with Policy 5. While, however, it may be arguable that the first part of Policy 3 is referable only to public open space, the subsequent reference to the landscape value and amenity of the adjoining area is clearly of relevance to a proposal of this kind. It was not in any way suggested in this case that there was any requirement that the developer should provide "equivalent" public open space and, in our view, it has not been shown that the reporter erred in relying on Policy 3 to the limited extent to which he did rely upon it. As regards Policy 5, it would of course be the case that a development as proposed on the appeal site would meet the requirement for the provision of public open space within the development. However, Policy 5 is only a statement of what is required if development of a relevant area is to be permitted at all. It does not really touch on the question whether such development should in principle be permitted in the first place.

[46] The remaining matters raised in the grounds of appeal are really subsidiary, in our view. As regards NPPG 11, it was for the reporter to interpret and to balance the statements in the different paragraphs and in our view he has not been shown to have erred in concentrating on paragraph 47 of the Guidelines. Paragraph 39 only speaks in very general terms of options which may be permitted if appropriate and their advantages. Paragraph 47 concentrates quite specifically on playing fields and sports pitches and lays down that they should not be redeveloped except under stringent conditions. Again we think the reporter's letter quite adequately sets out the nature of his decision and the reasons for it. The fact that there was no right of public use of the area was fully appreciated by the reporter and taken into account by him and his reasons for taking the view which he did in relation to that matter are clear. As regards the letter from the Scottish Sports Council, it is true that that letter does support the proposal on the basis that improved sporting facilities would result from it. It is also true that the reporter has not specifically explained what his view is about that letter. Again, however, the fact that there would be improved sporting facilities was clearly one of the factors which the reporter had before him but, for reasons which in our view are adequately explained, he decided that the requirements of preservation of the open space had priority. So long as the reasons adequately explain the decision, it is not necessary that they should deal with every particular contention or element of the evidence. In this case, in our opinion, the reporter's decision letter does adequately explain his decision.

[47] In all the circumstances, in our view, no sufficient reason has been stated for holding that the reporter in this case acted unfairly or unreasonably or misinterpreted policy or otherwise erred in law. This appeal, accordingly, falls to be refused.