Scottish Court of Session Decisions

[1] The petitioners ("Atlas") are property developers who have prepared proposals for the comprehensive redevelopment for retail and other purposes of land in Glasgow situated to the west of Buchanan Street at and south of its junction with Bath Street ("the overall site"). The overall site is at present largely built on, the various subjects comprised within it being owned by a number of separate interests. By August 1999 Atlas had acquired about 63% of the subjects in the overall site; its percentage ownership has since increased. Among the overall site properties not owned by Atlas are subjects at or close to the junction of Buchanan Street and Bath Street, having the postal addresses 221 Buchanan Street and 3-7 Bath Street. These subjects ("the Bass site"), other than those on the ground floor at 5 Bath Street, were as at 1999 owned by Bass plc or its subsidiary Standard Commercial Property Securities Limited ("Standard"). These companies, whose interests are for present purposes the same, I shall refer to collectively as "Bass". A number of other persons own properties, in some cases quite small properties, within the overall site.

[2] The overall site itself lies within what has been identified by the local planning authority, Glasgow City Council, as the Principal Retail Area of the City. By 1999 Atlas, having succeeded in purchasing the majority of the properties within the overall site, was experiencing difficulties in acquiring the remainder at a commercially acceptable cost. In these circumstances an officer of the Council prepared and placed before its Development and Regeneration Services Committee ("the Regeneration Committee") a proposal that the Committee authorise the principle of promoting a Compulsory Purchase Order under section 189 of the Town and County Planning (Scotland) Act 1997 over the overall site and authorise the Director of Protective Services to conclude an agreement with Atlas allowing the promotion of the Compulsory Purchase Order to progress. The report envisaged that a number of conditions would require to be met before the proposal, if authorised, was carried through. These included that a detailed planning consent be in place before the Order was confirmed and that under the envisaged agreement Atlas would meet all the Council's costs, including those of compensation for properties compulsorily acquired. On 26 August 1999 the Regeneration Committee approved the proposal. On 8 October 1999 Atlas submitted to the Council an application for planning permission for commercial development of the overall site (together with an adjacent office block in West Nile Street already owned by it). That application was ultimately granted, subject to conditions, on 4 April 2000.

[3] Meantime on 19 and 20 October 1999 the Council and Atlas entered into a Minute of Agreement under which the Council undertook to submit a relative Compulsory Purchase Order to the Secretary of State and, subject to various conditions, to convey to Atlas the properties compulsorily acquired pursuant to that Order. In February 2000 Standard presented to the Court of Session a petition by which it sought judicial review of the Regeneration Committee's decision of 26 August 1999, with orders for declarator that that decision and the Minute of Agreement were each ultra vires, and for reduction of both. After a first hearing, at which Standard, the Council and Atlas were all represented, the Lord Ordinary (Lord Nimmo Smith) on 15 August 2000 pronounced an interlocutor granting to Standard the orders sought by it. The substance of the court's decision was that in exercising its statutory powers relative to compulsory acquisition of property, the Council had not had before it and had failed to take into account, the material consideration that Bass had its own proposals for redevelopment of the overall site (or in any event of the Bass site) and that Bass had discussed those proposals with officials of the Council. The court also held that the Council had failed to take into account that the appropriate statutory basis for any back-to-date agreement with Atlas lay in section 191 of the 1997 Act. That interlocutor was not reclaimed against.

[4] On 12 September 2000 a legal officer of the Council completed a report to the Regeneration Committee on the court's decision in respect of Standard's application for judicial review. Having set out the relative history and summarised the judge's reasons and the court's decision, she described the effect of the decision as follows:

She then recommended that the Committee be asked to note the terms of her report and instruct the Directors -

The Committee on 14 September 2000, having considered the report, instructed the Directors as recommended. Thereafter a framework for the use by the Council of compulsory purchase powers and back-to-back agreements with developers under the 1997 Act was prepared by officials. It was in general terms and not specifically related to any proposals for the overall site. That framework was approved by the Regeneration Committee on 26 October 2000.

[5] Meantime applications had been submitted to the Council by Standard for planning permission and conservation area consent for redevelopment of the Bass site by the demolition of the buildings there and the erection in their place of a retail store. These subjects, which were by this stage wholly owned by Bass, comprised the north-east corner of the overall site. These applications came before the Council's Protective Services (Development Applications) Sub-Committee ("the Development Sub-Committee") on 31 October 2000 when they were granted subject to conditions.

[6] In this petition for judicial review Atlas seeks reduction of that planning permission and that conservation area consent and certain other related remedies. The primary ground of challenge, as presented in argument, was that, in considering and determining Standard's applications, the Development Sub-Committee (the membership of which was at least to some extent different from that of the Regeneration Committee) had not been presented with an accurate or sufficiently comprehensive description of the Council's position in relation to comprehensive redevelopment of the overall site or of the fact that Atlas continued to be in a position to participate in redevelopment of it by way of a back-to-back agreement. There had thus been a failure to take into account a relevant and material consideration which vitiated the Sub-Committee's decisions (Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345, per Lord President Emslie at pps. 347-8). If account had been taken of those matters, the Sub-Committee's decisions were irrational and unreasonable and on that alternative ground ought to be reduced.

[7] In developing those contentions Mr Martin for Atlas submitted that the Development Sub-Committee had fallen into error of a similar kind to that which had vitiated the Regeneration Committee's decision of 26 August 1999. There had in this instance been a failure to take into account the interests of Atlas in the redevelopment of the overall site in terms of its planning consent. Although the report presented to the Development Sub-Committee drew its attention to the fact that the buildings to which Standard's application related were within the area for which Atlas already had planning permission, it failed adequately to address the relationship between the two proposals. It mentioned the agreement between the Council and Atlas but then narrated that it had been set aside by the Court of Session without drawing to the Sub-Committee's attention that Atlas was still actively pursuing its proposal and that the Council had very recently approved a framework for the use of compulsory purchase powers and back-to-back agreements. The proper implications from the circumstances were that the Council continued to support Atlas's proposal and had identified that the use of compulsory purchase powers might still be needed in that regard. If Standard's applications were granted and implemented, the overall scheme might be adversely affected. The report did not attempt to address how the two could be reconciled.

[8] Mr Martin further submitted that the Development Sub-Committee's decision was vitiated by reason of its failure to address the consequences for Atlas's proposal of the servicing arrangements which formed part of Standard's proposal. Those arrangements involved rear servicing over a courtyard in the common ownership of different subjects, the majority of the relative properties being owned by Atlas. That courtyard was also within the land encompassed in Atlas's proposal for overall redevelopment. The inter-relationship between the two proposals had again not been addressed.

[9] Sir Crispin Agnew for the Council moved that the petition be dismissed. Atlas's contentions, he submitted, involved a confusion between two separate processes - (1) the planning process concerned with Standard's application for consent in respect of the Bass site and (2) any process involving use of compulsory purchase powers and back-to-back arrangements which might be necessary to effect satisfactory redevelopment of the area as a whole. The first was, he argued, essentially preliminary to the second. The Council could not properly address the second without having regard to Standard's proposal, including whether or not it was acceptable in planning terms. The earlier grant of planning permission had been in the context of the Council having decided in principle to promote a Compulsory Purchase Order and Atlas having undertaken to develop the whole site once acquired. At that stage Atlas had been effectively the only developer in the frame. Following the court's decision the Council had had to reconsider its position in relation to any Compulsory Purchase Order procedure, including dealing with Standard's proposal. While there might be some impingement of one process upon the other, such impingement was not necessarily to a material extent. Reference was made to Asda Stores Ltd v Secretary of State for Scotland 1999 S.L.T. 503, especially per Lord Coulsfield at pps.508K-L and 509L-510A and Lord Caplan at p.512B-C. It was erroneous to infer that what the Regeneration Committee had done in September and October 2000 was to the effect that the Council was intent on continuing down the route it had previously taken. It was simply, having considered the court's decision, putting in place a framework for use if circumstances justified it. It would be equally consistent with the Council's planning objectives that redevelopment be carried out by more than one as by one developer. When the report before the Development Sub-Committee had been prepared (on 24 October) and considered by the Sub-Committee (on 31 October) no decision had yet been taken by the Council in relation to the use in respect of the overall site of compulsory purchase powers under the new framework. Against that background what had been said in the report to the Sub-Committee about the Atlas position was more than sufficient for the purposes of its consideration of Standard's applications. Even if the Council had made a decision that a Compulsory Purchase Order might be required, it was still open to it to consider and to grant Standard's applications. It was evident to the Sub-Committee from the terms of the report before it that Atlas's proposal (for redevelopment of the whole of the overall site) and Standard's proposal (for redevelopment of the Bass site) could not both be implemented but that did not prevent in this context planning permission being given for both if they were both justified in planning terms. Which eventually went ahead would then depend on proprietorship issues. The Regeneration Committee would be in a better position to consider what action (if any) it should take once it knew what the Development Sub-Committee had decided in planning terms. The Development Sub-Committee, having competent applications before it, had properly determined them having regard to all considerations material for the exercise of its functions. Planning applications had to be considered on their individual merits. Determinations should not be unjustifiably delayed (Lafarge Redland Aggregates Ltd v The Scottish Ministers 2000 S.L.T. 1361, per Lord Hardie at pps.1365 and 1367). As to Atlas's submission relative to servicing, the same arguments applied. A relative objection in respect of the servicing arrangements had been referred to in the report. If in the end Atlas's proposal for redevelopment of the whole area went ahead, the area of ground to the rear would be encompassed within it; if redev

[10] Mr Currie, who appeared for Standard, also moved that the petition be dismissed. He adopted Sir Crispin's submissions. He further submitted that Atlas's contentions assumed that any comprehensive redevelopment of the area would (1) be a development undertaken by Atlas alone, (2) be carried out with the assistance of compulsory purchase powers and (3) be of the site as defined by Atlas's existing planning permission. These assumptions were ill-founded. Atlas's contentions also proceeded upon a legal error as to the relationship between the planning process and the exercise by a local authority of its power under section 189 of the 1997 Act. It was fundamental to the latter power that the land was required for a purpose which it was necessary to achieve in the interests of proper planning of the relative area. A decision on planning issues was accordingly a necessary precursor to any exercise of the power of compulsory acquisition. Competing planning consents might be granted and issues of ownership or the market determine which proceeded to implementation. It was only if there was a deadlock that compulsory acquisition could be justified. Any exercise of compulsory purchase powers was not for the Development Sub-Committee to consider, though it could properly on planning grounds take steps to avoid demolition of existing buildings in the absence of a firm intention to redevelop the site (as it had by Condition 13 to Standard's planning permission). Standard wished to implement the permission and consent which had been obtained, though even such implementation would not preclude the Council from exercising its section 189 power if the circumstances justified it. There was no substance in the suggestion that the Development Sub-Committee was unaware of what had been or was happening more generally. The representations made and the officials' comments thereon (all as set out in the report) made it plain that the Atlas proposal was still live. Atlas's contention that the Sub-Committee's decision was irrational or unreasonable depended on a false interpretation of what the Council had done following the issue of Lord Nimmo Smith's Opinion. What it had done, consistently with that Opinion, was to keep an open mind as to the circumstances in which and over what land compulsory purchase powers might fall to be exercised. No decision on that matter could properly be taken until Bass's interests had been addressed. Moreover, the mere grant of planning permission would not result in the Council losing control of matters. The permission was subject to Condition 13 and in any event the grant of the permission did not foreclose compulsory acquisition. Atlas's contention in relation to the servicing arrangements was merely a particularisation of its other contentions. There was no substance in it. Even if some problem of rear servicing arose, the Bass premises could obtain servicing from the fronts of the proposed building.

[11] In response Mr Martin submitted that Asda Stores Ltd v Secretary of State for Scotland was readily distinguishable. Reference was also made to Lakin Ltd v Secretary of State for Scotland 1988 S.L.T. 780. In the present case there was an inter-relationship in terms both of planning and of physical subjects between the Bass and the Atlas proposals. That ought to have been explored in the report put before the Sub-Committee. The circumstances in Lafarge Redland Aggregates Ltd v The Scottish Ministers were quite different from the present situation where the Sub-Committee did not require to take an immediate decision on the applications; a deemed refusal might result but this would still leave Standard with its right then to appeal to the Scottish Ministers. Its position in relation to any compulsory acquisition procedure in the meantime would be protected by the right to make an application for a certificate of alternative development (Land Compensation (Scotland) Act 1963 section 25). As to Sir Crispin's subsidiary ground of challenge, Atlas had not in fact been aware in advance of the terms of the report to be placed before the Sub-Committee. In any event, no basis had been laid as to how procedurally Atlas could have attempted to make representations about the content of that report. As to the matter of rear servicing, while this was an aspect of Atlas's more general complaint, it was important because it would affect not only the redevelopment of the site as a whole but also any redevelopment of the balance of the site under exclusion of the Bass properties. As to Atlas's more general complaint, while the existence of Atlas's planning permission had been referred to in the report, the relationship between Standard's applications and the still current position of Atlas's proposals had not been addressed or explained - in particular that the latter involved an existing planning permission followed by a decision by the Council that comprehensive redevelopment should be achieved in accordance with that permission and any compulsory acquisition needed to secure its implementation. The report had made no reference to the outcome of the Redevelopment Committee's decision of 26 October. It might have been different if implement of the planning permission granted to Standard had been made conditional on a decision being reached on comprehensive redevelopment of the overall site. But Condition 13 had not gone that far. The planning and compulsory purchase procedures were not separate. The requirements of section 189 of the 1997 Act where predicated on planning grounds. That section envisaged actual or prospective planning permission. It was incorrect that determination of Standard's application for planning permission was a precursor to a decision on compulsory purchase. From the terms of the report placed before it the members of the Sub-Committee may well have inferred that the Atlas's proposal was no longer in the picture. Whatever the fate of any different (more restricted) proposal by Atlas, its present proposal (supported as it was by the Council) would, if Standard's proposal went ahead, be incapable of implementation.

[12] No party to these proceedings sought an opportunity to lead oral testimony in relation to any matter arising in them. Each was content that the issues be determined on the basis of the documents placed before the court. The first issue to be determined, in my view, is the Council's position as at 31 October 2000 in relation to the use of compulsory purchase powers in respect of the overall site. It is clear that for some time prior to August 2000 the Council had been in favour of the proposals advanced by Atlas. It had in August 1999 approved the principle of promoting a Compulsory Purchase Order over the overall site and in October 1999 had entered into an agreement with Atlas in furtherance of such a scheme. Its decision and the agreement were, however, set aside by the court on the ground of failure to take into account relevant considerations. The implications of the court's decision went further than Atlas's scheme for the overall site. It identified a weakness in the Council's procedures which require to be addressed in relation to any proposal to exercise compulsory purchase powers in association with a back-to-back agreement for disposal of the land so acquired. For that purpose a framework required to be devised. The instruction of officials to prepare such a framework was given by the Regeneration Committee on 14 September 2000 and the prepared framework approved by it on 26 October. The general terms in which the framework is expressed clearly indicate a wider application than to any proposal for the overall site alone. The report before the Redevelopment Committee on 14 September had concluded that compulsory purchase powers "could still be needed to secure the redevelopment of the site" and the Committee had also authorised officials to report further on the redevelopment of that site. But by 31 October that aspect of the Reconstruction Committee's instructions had, so far as appears, not been implemented and no decision had yet been taken by it as to its attitude towards Atlas's proposals as matters stood at that time. The Council had not abandoned the possibility of promoting of new a scheme of the kind favoured by Atlas. Nor had it decided to press on with such a scheme. It had as yet not reconsidered such a scheme having regard to the considerations which the court had held that it had previously left out of account. Those considerations would also require to be addressed in the light of the circumstances existing at the time when the matter was re-addressed. In these circumstances it is not possible to infer from the documentary material that as at 31 October the Council was committed to Atlas's scheme or indeed to any scheme for redevelopment of the overall site which involved the use of compulsory powers.

[13] The applications before the Development Sub-Committee were for planning permission and for conservation area consent. In dealing with these applications the Sub-Committee was required by section 37(2) of the Town and Country Planning (Scotland) Act 1997 (as read with section 64 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997) to "have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations" (special attention being paid to the desirability of preserving or enhancing the character or appearance of the area). Standard's applications were consistent with the development plan and no particular issue arises about the appearance or character of the area. The critical issue is whether the Sub-Committee failed to have due regard to a material consideration, the alleged failure being that the report before it did not accurately or with sufficient comprehensiveness describe the Council's current position in relation to the overall site and Atlas's continued willingness to participate in its comprehensive redevelopment. It is not suggested that the Sub-Committee was left in complete ignorance of the history relative to Atlas's proposals. The report expressly drew its attention to the fact that planning permission and conservation area consent had earlier been granted to Atlas for the demolition and redevelopment of the overall site, including the buildings which were the subject of the applications before it. It also asked the Sub-Committee to note for information purposes that the Regeneration Committee's decision of 26 August 1999 and the subsequent agreement with Atlas had been set aside by the court. Furthermore, the Sub-Committee had before it in the report a summary of representations which had been made against Standard's applications (some apparently made by or on behalf of Atlas) with the Council's officials' comments on those representations. One of those representations (as summarised) was that "the proposed development in design terms would be inconsistent and prejudicial to the wider development of the property" on which the officials commented -

Another representation (as summarised) was that -

On that representation the officials commented -

[14] It thus appears that the Sub-Committee was alerted to the fact that Atlas already had planning permission for redevelopment of an area which encompassed the subjects of Standard's applications and that a representation had been made, albeit under reference to design considerations, that Standard's application should not be considered in isolation from the comprehensive redevelopment of the larger site proposed by Atlas. It must accordingly have been clear to the Sub-Committee that Atlas, notwithstanding the outcome of the court proceedings, remained interested in pursuing its proposal for comprehensive redevelopment of the overall site. The report made no express reference to the Council's position following the court's decision but, in circumstances where the Council had not as yet reconsidered the specific Atlas proposals in light of that decision, it would have been inappropriate, in my view, for it to do so. The report took cognisance of the fact that there was an existing planning permission in terms of Atlas's proposals, the officials' comments being that this was "not considered to be sufficiently material to warrant a refusal of permission given that an assessment against the Development Plan and consultations reveals no planning justification to refuse this application." No doubt the Sub-Committee had regard to that comment which, fairly read, imported that the prior permission might be regarded as a material consideration albeit not one of sufficient weight to justify refusal.

[15] There being as at the date of the Sub-Committee's deliberation no extant determination by the Council to proceed with comprehensive redevelopment involving the use of compulsory purchase powers, it is unnecessary to decide whether, had there been such, the report would have been deficient in a material respect had it failed to refer to it. Speaking generally, I do not consider that a procedure designed to secure comprehensive redevelopment of an area (with the use of the powers conferred by sections 189 and 191 of the 1997 Act) and an inconsistent planning application for particular subjects within that area are necessarily so separate that one might not potentially so impinge on the other as to constitute a material consideration when either fell to be determined. But in the circumstances of this case I find it unnecessary to explore that matter further. The references made in the report to the Sub-Committee, in my view, accurately and with sufficient comprehensiveness drew to its attention the current state of affairs relative to Atlas's proposals and the Council's position in respect of them. In these circumstances Atlas's primary contention, in my opinion, fails. Similarly, it cannot properly be affirmed that the grant of planning permission was irrational or unreasonable.

[16] As to the subsidiary contention, that is in essence merely a particularisation of Atlas's general complaint. The particular matter of servicing had been the subject of a representation, summarised in the report as "the proposed servicing access and emergency egress arrangements would infringe the title to the ground of the rear car park". The officials had later in the report commented on the legal and planning aspects of that representation. The Sub-Committee was entitled to take the view that any legal difficulties in Standard securing rear servicing as proposed were not in the circumstances an adequate ground for refusing permission. It was aware of the scope of Atlas's prior permission but was not in the circumstances bound to give weight to the fact that realisation of that permission to its full extent might be affected by possible conflicting activity in the rear courtyard.

[17] I find it unnecessary to express any views on the other matters raised. I shall for the reasons given above sustain the Council's first plea-in-law and dismiss the petition. I shall also grant Standard's motion for dismissal.