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Cite as: [2003] ScotCS 277
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John Dickie Homes Ltd v. Decision of Glasgow City Council [2003] ScotCS 277 (31 October 2003)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Marnoch Lord Hamilton Lord Cameron of Lochbroom
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XA111/03 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL under Section 238 of the Town and Country Planning (Scotland) Act 1997 by JOHN DICKIE HOMES LIMITED Appellant; against A decision of Glasgow City Council by resolution dated 1 August 2003 to adopt the Glasgow City Plan _______ |
Act: Wilson; Maclay Murray & Spens
Alt: Moynihan, Q.C., Armstrong; E. Bain, Solicitor for Edinburgh Council (for First Respondent, Glasgow City Council)
31 October 2003
[1] This is a motion for interim suspension of the operation of parts of an approved Local Plan in terms of section 238(2)(a) of the Town and Country Planning (Scotland) Act 1997. In its original form, the motion was for suspension simpliciter of all parts of the Plan relative to the programme for "greenfield" releases for housing purposes for the period up to 2006 but, in the course of the hearing, there were canvassed possible modifications to that motion. One such modification was that any suspension should apply to the parts of the Plan in question only to the extent that they affected a site at Deaconsbank, Glasgow, insofar as the inclusion of that site and the exclusion of the Appellant's site at Carmunnock, Glasgow were contrary to the recommendations of a Reporter in a public local inquiry held prior to the adoption of the Plan by the Respondents.
[2] For the purpose of disposal of the motion - and for that purpose only - Mr Moynihan, Q.C., for the Respondents, was content that we should view the merits of the Appeal at their highest for the Appellant to the extent of assuming, not only that the Respondents had acted outwith the powers of the 1997 Act within the meaning of section 238, but that this had resulted in the improper exclusion of the Carmunnock site which would otherwise have appeared in the Plan as an approved "greenfield" release. There is no doubt that the making of this concession shortened what was, even so, a lengthy hearing in the Single Bills and, in fairness to Mr Moynihan, it must be emphasised that the concession was made essentially for that purpose and should not be confused with a concession in fact or in law. It was, no more and no less, a concession for purposes of the argument on interim suspension. And, so far as that argument was concerned, the contention advanced on behalf of the Respondents was that even taking the Appellant's complaint at its highest the remedies provided by section 238, whether in the form of an eventual quashing or, more immediately, interim suspension, were simply not habile or, in any event, appropriate to deal with it. In particular, bearing in mind that the Carmunnock site could accommodate only 35 houses, it would be unreasonable and disproportionate to quash, or suspend, all the parts of the Plan dealing with all the "greenfield" release sites (nine in all, covering some 1,600 houses). Such a suspension would immediately lead to a proliferation in the number of planning appeals and added complexities in the planning process generally. In any event, it would be illogical to suspend operation of the Plan in any way if the true nature of the Appellant's complaint was that the Carmunnock site should have been approved in addition to the nine existing ones. As regards the various restricted forms of the motion, no proper rationale had been advanced by the Appellant for any of them.[3] Miss Wilson, for the Appellant, rightly emphasised that the concession made by the Respondents carried with it the inescapable presumption, for purposes of the present motion, that her clients had suffered considerable prejudice by reason of their site having been denied improperly "greenfield" release status. That prejudice was all the more immediate bearing in mind that a planning appeal relative to the Carmunnock site was scheduled to commence in some six weeks time on 24 November 2003. Interim suspension of the parts of the Plan in question would still leave available as planning materials the final draft and the Reporter's recommendations on it.
[4] While we fully recognise the force of Miss Wilson's submissions, we are in the end persuaded by the arguments advanced on behalf of the Respondents.. In the first place, Miss Wilson informed us that the Appellant, for its part, could see nothing wrong with Carmunnock, which has certain special features, being approved as an additional tenth site for purposes of the "greenfield" release programme and it may very well be that this turns out to be the main thrust of the Appellant's contentions. In that connection, it seems from a perusal of paras. 4.26 to 4.31 of the Plan that the nine approved "greenfield" release sites do not of themselves exhaust the Joint Structure Plan requirements and it is stated that a Comprehensive Planning Study process will identify additional sites to meet those requirements "for the period up to, and beyond, 2006". Castlemilk/Carmunnock is among the areas there mentioned for consideration. In the second place, while we agree with Miss Wilson that in the event of suspension being granted there would still be a framework of planning documents to fall back on, we are quite satisfied that an interim suspension of the provisions and policies affecting all the "greenfield" release sites would lead to a disproportionate upheaval in the planning process. And, lastly, and in any event, having considered the terms of the Report by the Director of Development and Regeneration Services (Production No.4) - which apparently led to the adoption of the Local Plan in its present form - we are not satisfied that the inclusion of the Deaconsbank site or, indeed, that and other neighbouring sites, can clearly be seen as the counterpart of the exclusion of the Appellant's site. In the absence of such a relationship it must at least be doubtful whether it is proper to suspend the operation of the Plan in relation to any or all of those sites. There is, moreover, a public interest consideration against suspending the "greenfield" release status of Deaconsbank, namely the prospect, identified in the Report, of a country park being delivered in the event of the development of Deaconsbank in association with the nearby Parkhouse site.
In all the foregoing circumstances, notwithstanding the concession made by Mr Moynihan, we have formed the view that in this case the balance of convenience is against granting the motion in any of its forms. It will accordingly be refused.
[5] All that said, we wish to make it clear that in the course of the hearing of this motion it was accepted on both sides of the Bar that at the forthcoming planning appeal regarding the Appellant's site at Carmunnock the existence of the present appeal, and the background to it, could properly be regarded as, at least, relevant considerations in deciding whether justification is shown for departing from the Development Plan (which includes, of course, the Local Plan) in its present form.