British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Standard Commercial Property Securities Ltd & Ors v. Glasgow City Council & Anor [2004] ScotCS 129 (01 June 2004)
URL: http://www.bailii.org/scot/cases/ScotCS/2004/129.html
Cite as: [2004] ScotCS 129
[New search] [Help]
Standard Commercial Property Securities Ltd & Ors v. Glasgow City Council & Anor [2004] ScotCS 129 (01 June 2004)
|
OUTER HOUSE, COURT OF SESSION |
|
|
P1082/03
|
OPINION OF LADY PATON in the petition of (FIRST) STANDARD COMMERCIAL PROPERTY SECURITIES LIMITED AND (SECOND) STANDARD COMMERCIAL PROPERTY DEVELOPMENTS LIMITED Petitioners; against (FIRST) GLASGOW CITY COUNCIL AND (SECOND) ATLAS INVESTMENTS LIMITED for Judicial review of decisions of Glasgow City Council dated 10 April 2003 relating to the use of compulsory purchase powers at Buchanan Street/Bath Street/West Nile Street, Glasgow Respondents:
________________ |
Petitioners: Currie, Q.C., J. Mure, Advocate; Semple Fraser W.S.
First Respondents: Sir Crispin Agnew, Q.C., Cowie, Advocate; Gill Lindsay, Acting Council Solicitor
Second Respondents: Hodge, Q.C., Borland, Advocate; Russel and Aitken
1 June 2004
Compulsory purchase for redevelopment
[1] There is a prime site in the centre of Glasgow at Buchanan Street/Bath Street/West Nile Street. It is badly in need of redevelopment. As one developer put it:"The site is an eyesore that clearly requires urgent and comprehensive remediation."
Glasgow City Council agree. They wish to see the site redeveloped. But they face various difficulties. One is the multiplicity of owners and tenants, each with different views and interests. It has proved impossible to co-ordinate them. Accordingly one matter which is not in dispute in the present case is the need for the City Council to acquire the site by compulsory purchase to enable redevelopment to take place.
Relevant statutory provisions
[2] The City Council are empowered by section 189(1) of the Town and Country Planning (Scotland) Act 1997 to carry out a compulsory purchase of land which -"... (a) is suitable for and is required in order to secure the carrying out of development, redevelopment, or improvement;
(b) is required for a purpose which it is necessary to achieve in the interests of the proper planning of an area in which the land is situated ..."
"(1) Where a planning authority -
(a) has acquired or appropriated any land for planning purposes, and
(b) holds that land for the purposes for which it was so acquired or appropriated,
the authority may dispose of the land to such person, in such manner and subject to such condition as may appear to them to be expedient for the purposes mentioned in subsection (2).
(2) Those purposes are to secure -
(a) the best use of that or other land and any buildings or works which have been, or are to be, erected, constructed or carried out on it, whether by themselves or by any other person, or
(b) the erection, construction or carrying out on it of any buildings or works appearing to them to be needed for the proper planning of their area.
(3) Subject to the provisions of subsection (7) [relating to persons living or carrying on business on the land], any land disposed of under this section shall not be disposed of otherwise than at the best price or on the best terms that can reasonably be obtained ..."
Financing compulsory purchase: back-to-back agreements
[7] Despite having the power to effect a compulsory acquisition, the City Council do not have the funds. If the Council were to spend funds on a compulsory purchase of the site, including claims for compensation, disturbance, expenses, and severance payments, and if no developer then showed an interest in the site, the Council would risk losing sums which they could ill afford. [8] The Council's solution to financing was to try to obtain the commitment of a private developer (or developers) at a stage prior to the compulsory purchase of the site. The Council accordingly sought to identify a suitable developer or developers who would enter into a contractual commitment with them in the form of a back-to-back agreement. In that agreement, the Council would undertake to dispose of the land compulsorily acquired to the developer(s) for the purpose of the development, and the developer(s) would undertake to indemnify the Council of all costs arising as a result of the compulsory purchase.Procedure for selection of developer(s)
[9] At an early stage in the history of the Buchanan Street/Bath Street/West Nile Street site, a challenge was made to the use of back-to-back agreements in anticipation of compulsory purchase. Lord Nimmo-Smith ruled on the matter on 15 August 2000, reported as Standard Commercial Property Securities Limited v Glasgow City Council, 2001 S.C. 177. In particular, he observed:"[42] ... Section 189(4) makes it clear that the power under subsection (1) [compulsory acquisition for planning purposes] may be exercised even where the local authority propose that another person is to undertake the activity or achieve the purpose; ... Subsection (4) does not expressly authorise a local authority to enter into an agreement, such as a back-to-back agreement, with the other person. In my opinion authority to do this must be sought elsewhere, and is to be found in section 191. There is an obvious correlation between sections 189 and 191 by virtue of the definition in section 201 of the expression "planning purposes" in the latter by reference to the former. It does not appear to me to be a sound objection to reliance on section 191 that subsection (1) only authorises disposal of land which has both been acquired (or appropriated) and is held by the local authority. No doubt this would apply to land which has been held for some time but is found not to be required for the purpose for which it was originally acquired and is thus available for disposal as being surplus to requirements. But land may properly be described as being held by a local authority as soon as it is vested in them by virtue of a general vesting declaration following upon procedure for compulsory acquisition, and in my opinion section 191 applies as soon as the land has vested in the local authority. In considering whether to dispose of the land, however, the local authority would have to consider what manner of disposal, and what conditions to which it should be made subject, may be expedient for the purposes mentioned in subsection (2), which include the best use of the land and the erection on it of buildings appearing to them to be needed for the proper planning of their area. Section 191(3) does not prohibit such a disposal otherwise than at the best price that can reasonably be obtained. The expression in that subsection is "otherwise than at the best price or on the best terms that can reasonably be obtained" (my emphasis). It would therefore be for the local authority to consider not only the price (as related inter alia to the amount of compensation payable under the compulsory purchase procedure) but also the terms offered by any person to whom the disposal might be made. These terms would include those which would be most conducive to achievement of the purposes set out in subsection (2), and would thus include matters such as the likely ability of the person, on the basis, for instance, of past experience and financial soundness, to carry the development through to completion. Moreover, subsection (3) is subject to the provisions of subsection (7), so that consideration might require to be given to the interests of those who were carrying on business on the land and desired to continue to do so.
[43] Read together, sections 189 and 191 appear to me to provide a statutory framework within which a local authority may decide to acquire land compulsorily and to sell it to a developer under a back-to-back agreement, provided that proper account is taken of all the considerations I have mentioned, particularly the planning purposes in section 189(1). I thus reject the submission for Standard (which was in any event, as I understood it, departed from) that a decision to enter into a back-to-back agreement cannot competently be made at the same time as a decision compulsorily to acquire the land in question. I also reject the submission for the Council that the authority for the entering into a back-to-back agreement is to be found in section 189(4) and that section 191 has no application for this purpose. I accept the submission for Atlas as to the provisions of sections 189 and 191 which give rise to the exercise of a discretion. I prefer, however, to express this as a single, composite discretion rather than one to be exercised in stages, as I understood counsel for Atlas to submit. The over-riding consideration for the local authority, as it appears to me, is whether acquisition of the land by them and its development by the developer with which a back-to-back agreement is to be entered into are reasonably necessary for planning purposes ..."
City Council's Framework
[11] As a direct consequence of Lord Nimmo-Smith's judgement, the Council's Development and Regeneration Services Committee approved a protocol dated 12 October 2000, entitled "Framework for the use of compulsory purchase powers and back-to-back agreements with developer(s) under the Town and Country Planning (Scotland) Act 1997". A copy of the Framework is lodged as number 6/3 of process. [12] An introduction at the beginning of the Framework expressly refers to and summarises sections 189 and 191 of the Town and Country Planning (Scotland) Act 1997. A second passage entitled "Process" provides for consideration by the Council of the question whether acquisition of land by use of compulsory purchase powers is reasonably necessary for planning purposes; for the preparation of a report seeking authority to investigate the need for compulsory purchase powers; and for notices to be issued to all owners and occupiers, and to developers who had expressed an interest, inviting the submission of proposals for redevelopment and/or any desire to remain and carry on their business within the site. [13] Paragraph 2.3. of the Framework provides:"Phase 3 - Evaluation
2.3.1 In determining which proposal(s), if any, should be supported by the Council, officers will evaluate all submissions against the following criteria:-
2.3.1.1 Design proposals (to include where practicable the relocation of existing businesses wishing to obtain accommodation within the site).
2.3.1.2 Ownership and/or attempts to acquire the site on a voluntary basis.
2.3.1.3 Experience of development and financial soundness.
2.3.1.4 Timescale for commencement/completion of development."
Application of the Framework in the present case
[15] By letter dated 16 December 2002, with appendices, the Council's chief solicitor invited various owners, occupiers and developers to submit development proposals for the Buchanan Street/Bath Street/West Nile Street site. [16] The first and second petitioners ("Standard") are wholly owned subsidiaries of Mitchell & Butler plc. The first petitioners were, both in December 2002 and at the time of the first hearing in February 2004, owner-occupiers of part of the site, namely the whole of phase A, and parts of phases B and C. The second petitioners are property developers seeking to develop the site, or part of it. [17] The second respondents ("Atlas") were, both in December 2002 and at the time of the first hearing, owner-occupiers of other parts of the site (parts of phases B and C; and all of phases D to H). Atlas are interested in developing the site. [18] Accordingly in December 2002, both Standard and Atlas qua interested developers and owner-occupiers, received a copy of the Council's letter dated 16 December 2002 with appendices, inviting them to submit development proposals for the site. [19] The letter described the investigative process being undertaken; explained that the process would follow phases 2 to 4 of the Framework; invited the recipients to submit "proposals for the redevelopment of the site and/or any desire to remain and carry on business within the site"; and advised that a public notice relating to compulsory purchase would be published in a newspaper, and that all relevant documents were available for inspection at reception at Development and Regeneration Services. [20] The letter also stated:"EVALUATION CRITERIA
In determining which proposals, if any, should be supported, a panel of Council officers will evaluate all submissions against the following criteria.
1. Financial soundness.
2. Experience of development.
3. Design proposals.
4. Ownership.
5. Timescale for commencement/completion of development.
Criteria 2-5 will be weighted as follows:-
Experience 15%
Design 40%
Ownership 20%
Timescale 25%
Each [criterion] will be broken down into sub-headings. These are set out in the evaluation assessment record attached hereto and marked Appendix 4."
"...The Council requires to be satisfied that the applicant has sufficient financial backing for their proposed development. Essential to this will be the applicant's commitment to enter an agreement with the Council whereby the applicant will indemnify the Council against all costs incurred by the Council in pursuing any CPO to assemble the site. The Council's style agreement is attached marked Appendix 5."
"The site is one of the most prominent within Glasgow City Centre, in terms of both significance and location ... Notwithstanding the desire to see an appropriate addition to the existing quality retail provision, suitable complementary uses that would be acceptable include residential, hotel, cultural, office and leisure ... The principle of the re-introduction of residential use at this location is one which the Council supports ..."
"The predominant character of Buchanan Street is made up of fairly small feus and a variety of building heights ... The introduction ... of another large monolithic block on the proposed site will not be favourably viewed, as this can only further erode the character that makes Buchanan Street what it is. The elevational treatment to Buchanan Street should be "broken down", to respect the established vertical emphasis (the prevailing feu pattern of the street) but not in a repetitive way to reflect the character of the street ..."
Proposals and presentations by Standard and Atlas
[27] Both Standard and Atlas lodged proposals. [28] Standard and a company named Lujo Properties Limited lodged a joint submission in respect of phases A to C of the site. Further, Standard and a company named Hermes Property Asset Management Limited lodged a joint submission in respect of the entire site (phases A to H). [29] Atlas lodged a submission in respect of the entire site (phases A to H), with an express acceptance that the Council might wish to allow Standard to develop phase A while Atlas developed phases B to H. [30] Both Standard and Atlas were invited to make formal presentations of their proposals to a panel of Council officers. Atlas made their presentation on 25 February 2003. Standard made theirs on 3 March 2003.The Council's evaluation and report dated 4 April 2003
[31] Council officers duly carried out the evaluation procedure outlined in the Framework. [32] By a report dated 4 April 2003, the Director of Development and Regeneration Services advised the Development and Regeneration Services Committee of the outcome of the investigation into the use of compulsory purchase powers for the redevelopment of the site. [33] In a section headed "3. Evaluation", the director described the evaluation process. In a section headed "4. Assessment", he noted that the applicants had sufficient funding and had confirmed their commitment to entering into the back-to-back agreement. He noted that the applicants had undertaken substantial development projects in the past, and had a satisfactory level of experience, adding: "However, in view of the scale of the proposed development at Buchanan Street, the scoring reflects the additional experience of one applicant [Atlas] in undertaking development of the scale envisaged". Counsel for Standard observed in the course of the debate that the latter observation appeared to pre-judge the issue, and to assume that one developer would be undertaking the whole development. That was circular reasoning which could be criticised. [34] In relation to design proposals, the highest score had been achieved by Atlas, followed by Standard/Hermes, then Standard/Lujo. The director commented:"The evaluation assessment record reveals that the technical evaluation team consistently marked Atlas in a narrow range of between average (4-5) to good (6-8). The scoring of both [Standard/Hermes and Standard/Lujo] ranged from poor (1-2), average (4-5) to good (6-8). The absence of detail on proposals for the public realm (E11) and lighting (E12) undermined the good scoring achieved by [Standard/Hermes and Standard/Lujo] in respect of public art (E9) and car-free parking (E13). Atlas scored well for land use (E1) and materials (E8), and to a lesser extent servicing (E12). 4.6 In all three submissions, however, there was little or no urban design and townscape analysis provided (E3), and the provision of sight lines and views (E5) and design proposals for scale, massing and elevational form (E4) fell short of the aspirations set out in the development brief. 4.7 Whilst all submissions were considered to be bases for acceptable schemes, they all would require to undertake development, design and technical modifications before the necessary consents could be obtained."
Atlas: 70.51
Standard/Lujo (Phases A-C): 60.67
Standard/Hermes (Phases A-H): 47.15;
The report concluded in paragraph 5.3:
"On this basis, [Atlas] can be recommended as preferred developer for the redevelopment of the site."
Further steps required of Atlas prior to compulsory purchase
[38] In paragraph 5.4 of the report dated 4 April 2003, it was noted that, prior to any compulsory purchase being progressed, Atlas would be required to enter into a back-to-back agreement with the Council whereby they would fully indemnify the Council against all costs in promoting any compulsory purchase. Atlas would also be required to obtain planning permission, conservation area consent, and listed building consent, prior to any compulsory purchase procedure being commenced. In so doing, they would have to address certain development, design, and technical defects identified in the evaluation process and the statutory consultation process. In particular, seven requirements were set out, one being the removal of a large residential tower block from the proposed development. [39] In a further paragraph (also numbered 5.4, per incuriam), it was noted that, regardless of the outcome of the compulsory purchase, Standard intended to develop the corner site known as Phase A. In paragraph 5.5, the report advised that "[it] remains to be determined whether the development of Phase A should be implemented in isolation. Until this issue is resolved, it is necessary to incorporate this corner site into the comprehensive development scheme."Decisions by the Council on 10 April 2003
[40] The report dated 4 April 2003 was considered by the Development and Regeneration Services Committee at their meeting on 10 April 2003. The minutes of the meeting noted inter alia:"... (4) whilst all submissions were considered to be bases for acceptable schemes, they all required to undertake development, design and technical modifications before the necessary consents could be obtained; and
(5) having considered all the submissions received and representations made by third party ownership interests, it was agreed that there was still a requirement for the Council to make use of its CPO powers to facilitate the redevelopment of the site.
After consideration, the committee
(a) agreed to the selection of [Atlas] as preferred developer for the site;
(b) instructed the Director of Development and Regeneration Services to enter into
(i) a back-to-back agreement with [Atlas] for the use of CPO powers to achieve the redevelopment of the site; and
(ii) discussions with [Standard and Atlas] in respect of the feasibility of the development at 221 Buchanan Street/3-7 Bath Street [Phase A] being implemented in isolation; and
(c) noted
(i) progress under phases 2-4 of the framework procedure for the use of CPO powers; and
(ii) that the director would report back on the conclusion of the framework procedure."
Subsequent events, and Standard's petition for judicial review
[41] Standard were not content with the Council's decisions of 10 April 2003. On 6 June 2003, they attended a meeting with Council officers to discuss the evaluation procedure and the Council's decision. By letter dated 25 June 2003, Standard complained to the Council, expressing dissatisfaction with the selection process, and asking the Council to reconsider the decision taken. In particular, Standard complained that what had been assessed was "the quality of the submissions made, not the quality of the competing proposals the submissions described". Hence the competing proposals had been assessed on the wrong basis. Matters such as "public realm" and "lighting" had been addressed during the verbal presentation to Council officers on 3 March 2003; yet because there was no reference to either matter in the written submissions lodged by the closing date (14 February 2003) Standard had received zero scores. As Standard's letter pointed out:"The only basis upon which zero scores could be awarded is to reflect the apparent absence of the necessary information within the submissions made. That betrays a fundamental misunderstanding of the purpose of the exercise and calls entirely into question the reliability of the other scores awarded ..."
"(a) declarator that [the Council's] decisions of 10 April 2003 to agree to the selection of [Atlas] as preferred developer for the CPO site, and to instruct [the Council's] Director of Development and Regeneration Services to enter into a back-to-back agreement with [Atlas] for the use of compulsory purchase powers to achieve the redevelopment of the CPO site are ultra vires et separatim unreasonable;
(b) suspension of [the Council's] said decisions of 10 April 2003, and suspension ad interim;
(c) reduction of [the Council's] said decisions of 10 April 2003 ..."
Submissions on behalf of Standard
[48] Mr Currie, Q.C., for Standard, made the following submissions: [49] Firstly, at the time the Council made their decision, they could not reasonably conclude that the proposed back-to-back agreement would produce a disposal which was at the best price or on the best terms that could reasonably be obtained. The Council disabled themselves by virtue of that decision from having proper regard to the requirements of section 191, and the decision was unreasonable in administrative terms, and unlawful. There was no indication, anywhere, that the Council had regard to section 191, or if the Council did have regard to that section, that they had any proper regard to the requirements of subsections (2) and (3). [50] In deciding to whom, in what manner, and subject to what conditions any sale was to be effected, the Council had to have regard to the purposes in subsection (2), namely "best use of ... land and any buildings ... to be ... constructed ... on it", or "the ... construction ... of any buildings ... needed for the proper planning of their area". The Council also had to have regard to the requirement of "best price or ... best terms" in compliance with subsection (3). But there was no indication that the Council had any regard to section 191. By the time the compulsory purchase of the land was secured, the Council would not be in a position to re-visit these issues, because they had bound themselves to re-sell the land to Atlas for the consideration set out in the draft back-to-back agreement. Yet it was open to the Council to find a number of developers and to sell the land to those developers. For in the Council's minutes recording the decision of 10 April 2003, the Council had noted that "all submissions were considered to be bases for acceptable schemes". Accordingly the Council could dispose of the land to a number of developers, while still having regard to subsection (3). [51] Standard were not re-arguing the contention presented to Lord Nimmo-Smith in Standard Commercial Property Securities Limited v Glasgow City Council, 2001 S.C. 177 (namely, that it was never lawful to enter into a back-to-back agreement at the same time as the promotion of a compulsory purchase order). Standard recognised that, in certain circumstances, such an approach might be acceptable and lawful. For example, in a situation where only one developer wished to develop the site, and one or two proprietors were holding the developer to ransom for the value of their properties, if the Council reached the best agreement available by means of a back-to-back agreement, that would be unobjectionable. But in the present case, Standard/Lujo had presented a scheme covering phases A to C, which was regarded as acceptable in principle. Furthermore, following upon the Council's decision of 10 April 2003, Standard/Lujo submitted a planning application for phases A to C (while Atlas had presented a planning application for phases B to H). In these circumstances, it was submitted that the Council could not, at the time they took the decision, be in a position to determine whether they would get the best price or best terms by entering into a back-to-back agreement with Atlas. The Council did not seem to have addressed section 191(3) at all. In paragraph 27 of the Council's minutes, five factual points were noted. None gave a hint that when instructing the director to enter into a back-to-back agreement, the committee had regard to section 191(3). [52] Standard's contention was that the Council should purchase the land, address what planning consents were available, invite offers for the subjects, and then make an over-all judgement on financial and planning grounds. It might be said against Standard that such an approach would amount to a counsel of perfection in an ideal world. But that criticism would not answer the fundamental point that section 191 had not been addressed in a situation where all proposals were acceptable in planning terms. The Council's decision of 10 April 2003, which effectively excluded all developers other than Atlas, had been taken against a background where all submissions were considered acceptable; no necessary planning applications had been progressed; and no consideration was apparently given to the requirements of section 191. Moreover, the Council's enquiry appeared to be directed to the selection of a preferred developer, rather than a preferred development. Furthermore, nowhere in the report of 4 April 2003, or in the Framework, was there any suggestion or discussion of the possibility that the whole site might be disposed of to a single developer. The appropriateness of such a step was a different question from the question whether a particular developer had achieved the highest score. There was no evidence that the director or the committee had applied their minds to the requirements of section 191(3) - "best price or on the best terms that can reasonably be obtained". [53] Standard's second submission focused more on planning considerations, and in particular on section 191(1) and (2)(b). Counsel submitted that, at the time the decision on 10 April 2003 was made, the Council could not reasonably conclude that it was appropriate to dispose of the subjects to a single developer for a single comprehensive development. Two principles were involved. First, all the submissions for the development of the subjects were acceptable. Secondly, none of the acceptable developments had planning consent. [54] Counsel submitted that the director had not drawn the committee's attention to the relative merits of what each developer planned for phases A to C. In planning, or architectural, terms, the desired goal was to respect the existing feus, and to avoid one monolithic building (such as the Buchanan Galleries). Having chosen Atlas apparently to develop the whole site, the Council had subsequently, in August 2003, decided to exclude phase A from the compulsory purchase, and had advised Atlas to adjust their scheme accordingly. While accepting that the exclusion of phase A had been foreshadowed to some extent in the Council's decision of 10 April 2003, counsel contended that the exclusion of phase A in August 2003 demonstrated clearly that there was no planning need for the site to be developed as a single development by a single developer. If phase A could be excluded at that stage, phases A to C could equally well be excluded once the inevitable planning process had been gone through, and the requirements of section 191 had been properly addressed. In deciding in August 2003 to exclude phase A, the Council must have adopted criteria different from those it had adopted in the evaluation procedure. Their decision in August 2003 also demonstrated that it was quite feasible for different developers to develop different parts of the site, subject to an overall requirement that they should confer with each other, and produce developments consistent with each other. The August 2003 decision thus destroyed any suggestion that it was necessary for planning reasons to have a single comprehensive development of the whole site. The director had not considered, or drawn the committee's attention to, the merits of phases A to C being developed by Standard, and phases D to H being developed by Atlas. Accordingly counsel submitted that the committee could never be in a position to make a proper decision until the planning process was complete. Counsel adopted the submission made for the Council in an earlier unreported decision arising from the same site, Atlas Investments Limited, petitioners, April 10, 2001, Lord Hamilton, paragraph [9], namely that the planning process relating to a party's application for consent in respect of the site was essentially preliminary to any process involving the use of compulsory purchase powers and back-to-back arrangements. [55] In a third submission, counsel for Standard contended that in making their decision, the Council failed to take into account a material consideration, namely what was likely to be the outcome of the inevitable planning process which would require to be submitted by the competing developers for their schemes. None of the developers had planning permission. In failing to take account of that material consideration, the Council had fallen into error. It was clear that Atlas had carried out a "complete re-think" of their scheme between making their submission for selection as preferred developer (February 2003) and making their application for planning consent (October 2003). Accordingly as at 10 April 2003, the Council were not in a position to decide which scheme most clearly matched the development brief. They would not be in such a position until the planning process was completed. [56] In conclusion, counsel contended that all three submissions for Standard should be sustained: but it was sufficient if one submission succeeded. Counsel invited the court to grant declarator and reduction in terms of paragraph 3(a) and (c) of the petition. In the circumstances, it was not necessary for the court to grant suspension in terms of paragraph 3(b).Submissions on behalf of the Council
[57] Sir Crispin Agnew, Q.C., invited the court to sustain the Council's third plea-in-law, and to refuse the prayer of the petition. Alternatively he invited the court to sustain the Council's first plea-in-law, and to dismiss the petition as irrelevant. [58] Reference was made to a further plea-in-law, which was in the following terms:"5. In the circumstances condescended upon, as the petitioners did not object to the evaluation procedures set out in said letter of 16 December 2002 and having taken part in the procedures without objection, they are now barred from challenging the basis of the procedures."
Counsel pointed out that Standard had not objected to the submission and evaluation procedures; they had participated fully; they had made a formal presentation; once the results were announced, they had asked for a meeting and for an explanation as to why they had been "marked down". They were barred from challenging the procedures. The plea was a variation of mora, taciturnity and acquiescence.
[59] The Council had, for many years, been seeking to have the site developed. The options had been to leave everyone to reach an agreement, or alternatively to instigate compulsory purchase procedure. Everyone now agreed that it was necessary to have a compulsory purchase order. However it was not open to the Council to carry out a compulsory purchase and then to put the site on the market: the Council did not have sufficient funds. The only way in which the Council could achieve the desired goal was to ensure that someone would pay for the compulsory acquisition of the site, or alternatively that someone would, at a time prior to the compulsory purchase, undertake to meet the Council's costs. For if the Council were to spend the considerable sums of money required for the site, and if the property market collapsed (or if no developer was interested in the site), the Council would risk losing funds which they could not afford to lose. Hence the need for a back-to-back agreement with a developer or developers. The Council had to find someone willing to enter into a back-to-back agreement in order to achieve the objectives of section 189, but they had to do so before initiating the compulsory purchase powers in terms of section 189. [60] In selecting the person or persons with whom to enter into the back-to-back agreement, the Council had to have regard to the requirements of section 191. The operation of sections 189 and 191 permitted a local authority such as the Council to enter into a back-to-back agreement with a developer or developers once it had been established that it was necessary to have a compulsory purchase order: Standard Commercial Property Securities Limited v Glasgow City Council, cit. sup. Section 191(2) was the dominant subsection. The crucial issues were the "best use" of the land and any buildings or works erected or to be erected thereon, whether by the Council or by another person; or the erection, construction, or carrying out on the land of any buildings or works appearing to the Council to be needed for the proper planning of their area. [61] In the present case, it was not disputed that compulsory purchase of the site was required. The Council had then proceeded to seek to secure the "best use" of the land. They had produced an evaluation process in order to ascertain the best use of the land in terms of section 191(3) and (7). In relation to "best price", the consideration in a back-to-back agreement was in effect that the developer would pay any compensation due to the landowner from whom the land was being compulsorily acquired. The price on compulsory purchase was the land's market value. If any bidding war developed, one would eventually end up with the market value. The Lands Tribunal, in determining compensation for a compulsory purchase, was obliged to ascertain the market value. The difficulty in the present case was that the Council was trying to achieve the best price for the land without having acquired it. The back-to-back agreement made appropriate provision, and in the result the "best price" would be the open market value and any interest accruing. Accordingly the Council proceeded with the evaluation process in order to assess the best use of the land, and also to impose any conditions desired, such as a condition that Atlas would not include a residential tower block in the development. [62] The Council were therefore endeavouring to achieve something which they could not otherwise achieve. The Council were offering a level playing-field to developers who would relieve the Council of the compensation and costs. So the real issue focused on the proposals for development. It was in a sense the start of the planning process. It was not the practice in such circumstances to ask developers to obtain full planning permission. Developers were usually reluctant to incur the expenditure of the planning fee and architects' and other fees unless they had been chosen as the preferred developer (or one of the preferred developers). The evaluation process gave an indication of how planning and other requirements would be met, and an indication of how the proposal would be developed into a planning application. Paragraph 5.4 of the director's report dated 4 April 2003 made clear that any back-to-back agreement could not be operated unless detailed planning consents were obtained. Accordingly the selection of Atlas as preferred developer was conditional upon their obtaining planning consent. [63] Reverting to the question of the "best price", counsel confirmed that the Council would be unable to entertain any offer to pay a sum over and above the market value of the site as fixed by the Lands Tribunal. The consideration provided for in the back-to-back agreement was in effect a total reimbursement of the costs and expenses incurred by the Council in the compulsory purchase procedure, including compensation, the expenses of the Lands Tribunal, claims for disturbance, severance payments on termination of businesses, and so on. The principles for valuation on compulsory purchase were well summarised in the article on Compulsory Acquisition by G.F.G. Welsh, J. Rowan-Robinson, and E. Young in volume 5 of the Stair Encyclopaedia, at paragraphs 133-134, 160, and 169. [64] Counsel also confirmed that in practice, a developer expected to have a degree of commitment from the Council before undertaking all the work preparatory to commencing a site development. Thus the initial step was often the selection of a preferred developer or developers. There followed all the statutory procedures, including application for planning consent. If these procedures did not reach a satisfactory conclusion, the development by the preferred developer could not proceed. [65] The submissions made on behalf of the Council in the case of Atlas Investments Limited, petitioners, cit. sup. had to be read in context. In that case, Atlas was offering to develop the whole site, and had been granted planning permission for the whole site. Atlas's criticism at that point was that the Council appeared to have left that fact out of account when Standard (then named "Bass") sought planning permission from the Council with a view to developing phase A. Counsel confirmed that it had not been (and was not now) his contention that it was essential for a developer to have planning permission prior to the Council's evaluation and selection procedure. All that was required was that the evaluation and selection procedure should be fair, and should take place on a level playing-field. There was nothing in sections 189 and 191 stating that planning permission was an essential prerequisite of the statutory procedures set out therein. [66] Counsel's principal proposition was that, in a judicial review, one could not challenge the merits of judgements made by the Council unless they were illegal in the sense defined in Wordie Property Company Ltd. v Secretary of State for Scotland, 1985 S.L.T. 345 - for example, if the Council had acted ultra vires of the statute, or had left out of account something which should have been taken into account, or had taken into account something which should have been left out of account. In the present case, the Council had to exercise their judgement in order to obtain section 191(2) purposes (best use of land, or erection of buildings needed for the proper planning of their area) at the best price or on the best terms that could reasonably be obtained: section 191(3). Standard's petition for judicial review in effect attempted to challenge the judgement made by the Council, and complained that the site could have been developed using Standard as the developer for part of the site, and Atlas as the developer for another part. [67] Obviously, it was open to the Council to select one or more developers for the site. The Council had advertised the proposed compulsory purchase for redevelopment, and had issued the letter dated 16 December 2002 (with appendices) to owners, occupiers and developers, inviting proposals. Thereafter the Council had gone through an open evaluation procedure and made a judgement. In Standard Commercial Property Securities Ltd. v Glasgow City Council, cit. sup., Lord Nimmo-Smith referred to the ultimate decision of the Council as "the exercise of a [single, composite] discretion". Whether the decision was a judgement or the exercise of a discretion, it could be challenged only on the basis of the well-known Wednesbury rules. The Framework was not part of the statutory scheme, but was a means of satisfying the statutory provisions. The Framework procedure had been complied with. [68] Counsel further submitted that even if the Framework procedure had not been fully complied with, Standard had acquiesced in the proceedings without complaint, and could not now complain. In particular, Standard were barred from demanding that everything should be brought to a halt until all parties obtained planning permission. Reference was made to WWF-UK Ltd. and anor. v Secretary of State for Scotland [1999] Env.L.R. 632, at pages 684-686. If Standard maintained that the preferred developer(s) should not be selected until they had planning permission - because that was an important and relevant factor to take into account - then Standard ought to have raised that issue at the beginning of the whole process, cf. dicta in Singh v Secretary of State for the Home Department, 2000 S.L.T. 533, paragraph [11] at page 537; Caswell v Dairy Produce Quota Tribunal for England and Wales [1990] 2 AC 738, dicta of Lord Goff at pages 749E to 750; Thomas v University of Bradford No.2 [1992] 1 All E.R. 964, pages 965E and 979F (where a complainant who had acquiesced in a procedure was held to have waived her right to insist on the correct procedure). It was in everyone's interest that the development should commence. Standard could not now challenge the procedure adopted, even if it was an irregular procedure. [69] In any event, in practical terms, the procedure would become almost unmanageable if several developers had to present not only their submissions, but also full planning permission, and consents from Historic Scotland, traffic management, environmental assessment, sewage, and the railway. The proposals lodged under the Framework procedure gave a fairly detailed concept which, once accepted by Council officers, could be developed into detailed plans with co-ordinated consents. Having received these fairly detailed ideas from interested parties, the Council evaluated them in the broad exercise of their discretion. Unless it could be said that the Council's discretion had been exercised so unreasonably that no council could have reached the decision reached in this case, then the decision could not be challenged. [70] The Framework document referred clearly to both sections 189 and 191, and then outlined the procedure to be followed. The evaluation process might produce one developer, or several. Paragraph 27(b)(ii) of the minutes of the meeting of 10 April 2003 expressly envisaged the feasibility of more than one developer carrying out the development, and liaising with each other. Clause 2.4.1.1 of the Framework made it clear that the compulsory purchase would not be initiated until planning consent was in place. If the preferred developer or developers did not manage to achieve planning permission, then the procedure reverted to the starting point. Standard had not responded to the Council's letter of 16 December 2002 by suggesting an amendment to procedures. It was clear that it was parties' proposals, not planning consents, which were to be evaluated. On a fair reading of the Framework procedure, it was wholly compatible with sections 189 and 191, and consistent with the observations in Standard Commercial Property Securities Ltd. v Glasgow City Council, cit. sup. It gave all interested parties a clear and fair statement of what they were being asked to do. [71] There was a dispute over the precise extent of ownership of certain phases in the site. But Standard's proposals had been evaluated on the basis of the ownership they claimed, so that there had been no prejudice to them. At the formal presentation on 3 March 2003, Standard had not suggested that the whole process should be delayed until interested parties had obtained planning permission. The quality of Standard's submissions had in some respects not been as good as Atlas's submissions. There was no merit in Standard's argument that the Council should nevertheless have looked beyond the written submissions, and should have taken account of what Standard verbally offered to provide at the formal presentation on 3 March 2003, especially when the lack of detailed submissions would affect the timescale. The markings reflected judgements which the Council were entitled to make on the proposals submitted, and the information available. [72] The Council had been presented with only three schemes: phases A to C, and two comprehensive schemes. If someone had proposed a scheme involving phases D to H, it might have proved possible to evaluate that scheme against the three other schemes. But in fact no-one offered such a scheme. In the circumstances, it was fair and reasonable for the Council to select Atlas with their offer of a comprehensive scheme, and the highest score in the evaluation exercise. If the Council had accepted Standard's proposal for phases A to C, wishing someone else to develop phases D to H, then a submission or submissions relating to phases D to H would have been required. [73] The Council's position could be summarised as follows. The Framework and evaluation were compliant with sections 189 and 191. The Council's decision had been a judgement, or the exercise of a discretion, and was not open to challenge. Even if there had been some procedural irregularity in the operation of the scheme, the Council's fifth plea-in-law should be sustained, and Standard should not be allowed to complain at this stage, having permitted the proceedings to go ahead without complaint, and there being a public interest in the final resolution of the matter. [74] In response therefore to Standard's first argument, counsel reiterated that it was in the course of considering how to achieve the "best use" of the land that questions of best price and best terms were to be considered. It was clear from the Framework document that the Council had section 191 in mind. The Council was setting out to achieve the best use of the land. On the basis of the proposals placed before them, they made judgements about the best price and conditions which could reasonably be obtained when achieving the best use of the land. [75] In response to Standard's second argument, it was submitted that the Council had all the material necessary in the proposals lodged for the evaluation process. [76] In response to Standard's third argument, there was no requirement that the interested parties should have planning permission, all as outlined above. The Council had decided to go down the route of an evaluation based on the submissions. They could have chosen a route based on planning permissions, but they did not. It was accepted that any scheme would require planning permission and various other consents. Obviously there had been differences between Atlas's April 2003 scheme and their October 2003 scheme (prepared for their planning application). But if Atlas were unsuccessful in obtaining planning permission, the whole selection procedure had to start again. [77] Counsel renewed his motion that the court should sustain the Council's third plea-in-law and refuse the prayer of the petition; or should sustain the Council's first plea-in-law and dismiss the petition; or if the court considered that the petition might succeed on the merits, it should sustain the Council's fifth plea-in-law, in that Standard were barred from challenging the procedures at this late stage.Submissions on behalf of Atlas
[78] Mr Hodge, Q.C., for Atlas, invited the court to sustain Atlas's third plea-in-law. Alternatively he invited the court to sustain their first plea-in-law. He adopted the submissions presented on behalf of the Council. Atlas did not have a plea directed to personal bar or acquiescence. Nor did Atlas claim to have acted in reliance upon Standard's full participation at every stage of the evaluation procedures without objecting to those procedures. But Atlas did not disagree with the Council's stance on this matter. One could infer consent (or an absence of dissent) from behaviour, which barred any later challenge. Reference was made to William Grant & Sons Ltd. v Glen Catrine Bonded Warehouse, 2001 SC 901. As the Council had acted in the belief that Standard had acquiesced in the evaluation procedures, it was for the Council to take the personal bar point. But it was worth noting that paragraph 4.3 of the report by the director of Development and Regeneration Services dated 4 April 2003 expressly recorded that "The Applicants have also confirmed their commitment to entering a Minute of Agreement with the Council whereby they will indemnify the Council against all costs incurred by the Council in pursuing any CPO to assemble the Site". Furthermore, both Standard and Atlas had been sent the letter dated 16 December 2002, with appendices. The evaluation procedure had been carried out on a fair basis. The points system had been published in advance, giving each interested party notice of the relative importance of different items. Also the parties were told in terms that they would be assessed on the basis of their submissions, which had to be lodged by a closing date. [79] Counsel then presented submissions on behalf of Atlas in four chapters, namely:(1) a brief overview of Standard's case as presented in Mr Currie's submissions;
(2) an overview of Atlas's response;
(3) an examination of the facts, including Atlas's productions;
(4) an expansion of Atlas's submissions.
Expansion of Atlas's submissions:
[91] (i) The Council's alleged failure to comply with section 191: Mr Hodge submitted that "the best price" which the Council could expect in the circumstances was full indemnity in respect of the cost of compulsory purchase. The property would be valued on the basis of hypothetical market value: cf. Stair, Encyclopaedia, Vol.5, paragraph 123. It would be an abuse of the Council's compulsory purchase powers to seek to make a profit on the sale to the developer: cf. Clyde and Edwards, Judicial Review, paragraphs 20.5-20.6. Thus the requirement of "best price" in terms of section 191(3) was fulfilled by the procedure envisaged by the Council. [92] (ii) The Council's alleged failure to consider options available to them: Counsel made four submissions under this heading.(a) The starting-point was a "market failure". Atlas had obtained planning permission to develop the site in March 2000. Standard had obtained planning permission in November 2000. But the absence of co-operation from owners prevented development within a reasonable timescale. One of the Council's aims, therefore, was to have the site developed within a reasonable timescale.
(b) In undertaking an evaluation of developers' submissions, the Council had not undertaken to assess the viability of any combination of units which had not been put forward by the developers for consideration. Developers were invited to come forward with viable proposals and funding. The Council had undertaken to look at those proposals.
(c) The Council had information from Atlas that there required to be a comprehensive (or nearly comprehensive) development of the site in order to render viable the re-development of less viable units near West Nile Street. Atlas's offer had been to develop either the whole site, or phases B to H.
(d) No developer had offered to develop only phases D to H. That offer was simply not before the Council. As the Council were seeking a timeous development, one criterion was the speed with which the developer could move forward to the next phase. The Council were entitled to select Atlas, who were offering to develop the whole site, excluding phase A. It was for the developers to assess what they thought they could viably achieve. No developer had proposed developing phases D to H.
[93] (iii) The Council's alleged error in supporting Atlas's proposals before planning permission had been obtained:Mr Hodge made several submissions under this heading.
[94] Section 189 of the 1997 Act did not require there to be planning permission before a compulsory purchase could be effected. Section 189(2) specifically envisaged that planning permission might not be in force. [95] The land use proposed by Atlas most fully fitted the Council's brief. Atlas scored the highest mark under the "land use" heading of the evaluation. [96] The basic land uses which Atlas proposed had not changed following upon their application for detailed planning consent. What had altered was the external appearance and the elevations. The residential tower block had been removed, as envisaged by the Council when they made their decision on 10 April 2003. [97] The Council had control over the design of the development by means of the planning process. In the report dated 4 April 2003, accepted by the Council on 10 April 2003, the Director of Development and Regeneration Services set out a list of changes which the preferred developer was to make. If the preferred developer's scheme did not satisfy those requirements, the Council would simply recommence attempting to find a suitable developer. [98] The Council knew what changes were required when they decided to proceed with Atlas's proposals. Thereafter Atlas's design team "embarked upon pre-Detailed Planning Application discussions with Glasgow City Council to discuss the shortcomings of the previously submitted scheme and to establish a constructive dialogue as to the forthcoming revisions prior to application": ADF Architecture & Design's letter dated 4 February 2004. [99] The Council were entitled to select a preferred development proposal, and to proceed, rather than to continue to have rival and inconsistent schemes proceeding. Against a backdrop of years of failure to achieve redevelopment (despite planning permission having been granted ) the Council were entitled to seek some degree of finality, even if only a provisional degree. [100] One practical factor which had to be borne in mind was the cost to developers of working up a proposal or scheme on this scale. The cost ran to hundreds of thousands of pounds. [101] If the Council were obliged to keep an open competition until final planning permissions were available to each party (before declaring that one submission was the best land use), there would inevitably be a risk that one developer would produce yet another revised scheme at the last minute, and demand that any decision be delayed until the new scheme had gone through the planning process. [102] Counsel concluded by submitting that, for all these reasons, there had been no irrationality, and no illegality, in the Council's decision to proceed with Atlas's proposals, on a provisional basis, before planning permission was obtained. Counsel renewed the motion that either the first or the third plea-in-law for Atlas should be sustained.Response on behalf of Standard
[103] (i) Acquiescence or personal bar: On the issue of acquiescence or personal bar, Mr Currie referred to Singh v Secretary of State for the Home Department, 2000 S.L.T. 533, paragraphs [8] to [11]. There must have been an excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment of the other party: cf. dicta in Assets Co. Ltd. v Bain's Trs. (1904) 6F. 705. In order to be able to rely on such a plea, Standard would have to be able to say that had they made a complaint about the Framework, the Council would have done something different. But counsel for the Council had not made such a submission, and indeed could not make such a submission. [104] Similarly, in William Grant & Sons Ltd. v Glen Catrine Bonded Warehouse Ltd., 2001 SC 901, there were dicta indicating that acquiescence (like personal bar) requires that a person be able to say "but for that representation of fact, I would have done something different". [105] Counsel made another point in relation acquiescence or personal bar. It was not correct to classify Standard's position at the time of the development brief as being in possession of "a known right" about which they had said nothing. Standard did not know, at the time they were participating, that the Council would choose a single developer to promote a scheme which would necessarily differ from that produced in response to the development brief. Mr Hodge had relied upon the fact that the "land use" had not changed. But "design" was 40% of the evaluation, and computer simulations showed that Atlas's proposals had undergone a radical change between Atlas's Submissions Scheme (February 2003) and Atlas's Planning Scheme (October 2003). It was in that context that senior counsel for Standard had made the submissions he had about planning permission. It was not his submission that in every case it would be unlawful to proceed with the compulsory purchase procedure without planning permission. It was in the particular facts of this case that it was submitted that planning permission was an essential prerequisite of a proper evaluation complying with the terms of section 191 of the 1997 Act. [106] It would therefore be wrong, as a matter of fact, and as a matter of law, to conclude that Standard were personally barred from raising the present judicial review, or that they had acquiesced in the procedure to such an extent that they could not raise the points they were raising in the judicial review. [107] (ii) "Best price": It had been submitted by counsel for the Council that "best price" ipso facto meant reimbursement of the Council's expenditure. That might be so in a particular case. But Standard's point was that, although sections 189 and 191 were cited at the beginning of the Framework, there was no evidence that the Council had taken into account factors relevant to best price or best terms, and had then decided to dispose of the site either at the best price or the best terms available. There was no evidence that the director or the Council committee had directed their minds to these matters. Counsel disagreed with the proposition that it would be unlawful to dispose of the compulsory purchase land at a profit. Section 189 directed the local authority to obtain the best price or the best terms available. If, in the course of a bona fide compulsory purchase, the best price offered was one productive of profit, it would be wrong in law to say that the authority was disabled from selling at a profit. [108] (iii) The Council's answers made no reference to the necessity of entering into a back-to-back agreement: While accepting that, in a judicial review, there was no obligation upon a respondent to lodge answers, it was notable that the Council's answers made no reference to the fact that a back-to-back agreement was essential for the progress of the compulsory purchase. If it was now being suggested that the securing of a back-to-back agreement with a developer was paramount, one would have expected to see such a claim in the answers. In any event, there was nothing inherent in the requirement for a back-to-back agreement which would disable the Council from obtaining the best price or the best terms. [109] (iv) Developers would not have objected to applying for planning permission: Atlas had applied for planning permission for the entire site in 2000. In the same year, Standard had applied for planning permission for phase A. In September and October 2003 both Standard and Atlas made planning applications in relation to the developments they proposed to undertake. There was nothing in the circumstances of the case to suggest that the developers interested in the site would have declined to proceed to a planning application in order to remain contenders for the development. [110] (v) Director's report made no mention of need for a single developer: In his submissions to the court, counsel for Atlas had relied upon some material contained in Atlas's submission to the Council, namely that it was necessary for financial viability to permit a single comprehensive development of the whole site (or the whole site excluding phase A). However that consideration had not been placed before the committee which made the decision on 10 April 2003. There had been no mention of the need to have a single developer, constructing a single development, in order to succeed in having the whole site refurbished. [111] Counsel for Standard again invited the court to grant declarator and reduction in terms of paragraph 3(a) and (c) of the petition.Opinion
The relevant tests
[112] The Council's actions and decisions must be measured against the tests set out in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 and in Wordie Property Company Limited v Secretary of State for Scotland, 1984 S.L.T. 345 at page 347.Standard's underlying criticism
[113] Underlying the three specific arguments presented by senior counsel for Standard was a fundamental, general criticism, namely that there was no evidence that the Council ever directed their minds to the requirements of section 191. Alternatively, it was submitted, if the Council had directed their minds to section 191, there was no evidence that they had any proper regard to the requirements of subsections (2) and (3). [114] That general criticism at times took the form of an argument that the Council had not properly complied with section 191. At other times the criticism took the form of a contention that the Council had failed to comply with the Framework (being the means whereby the Council endeavoured to satisfy the requirements of inter alia section 191). [115] For example, counsel pointed out that the report dated 4 April 2003 appeared to demonstrate that the wrong exercise had been carried out, in that the Council had used the Framework procedure to find a preferred developer rather than to make a decision about proper planning or the best use of the site. [116] Another criticism was directed to the higher mark given to Atlas to reflect their additional experience in large scale developments. Counsel submitted that the Council's reasoning was circular, and pre-judged the whole issue by assuming that the site would require to be developed as a whole, by one developer. [117] A further example of faulty compliance with the Framework (and section 191) was said to be the Council's failure to look beyond Standard's written submissions. It was contended that the Council had not sufficiently taken into account what Standard offered verbally during the formal presentation on 3 March 2003. [118] Another criticism was that nowhere in the report dated 4 April 2003 was there any mention of, or discussion about, the possibility that the whole site might be disposed of to a single developer. It was submitted that the appropriateness of such a step was a different question from ascertaining which developer had achieved the highest score on the evaluation criteria. [119] The import of the general, fundamental argument was that the Council's decisions should be reduced as there was no evidence that the Council had directed their minds to the requirements of section 191; esto they had, there was no evidence that the Council had any proper regard to the requirements of section 191(2)-(3). [120] I do not accept that argument. The introduction to the Framework specifically referred to, and summarised, sections 189 and 191. The whole content of the Framework demonstrated that the procedure laid down was directed to satisfying the requirements of those statutory provisions, and also to complying with Lord Nimmo-Smith's judgement. I am satisfied that the Framework laid down procedures which, if properly followed, would satisfy the requirements of sections 189 and 191. Further, the steps actually taken by the Council during the evaluation procedures complied, in my view, both with the statutory provisions and with the Framework. I consider that the marking of the developers' submissions in accordance with the published evaluation criteria demonstrated a bona fide search, by fair means, for the best use of the land and/or the construction of buildings needed for the proper planning of the area, at the best price or on the best terms that could reasonably be obtained, such that the Council could reasonably conclude that they might dispose of the land to a particular person or persons, in such manner and subject to such condition as appeared to them expedient for securing the best use of the land and/or the construction of buildings needed for the proper planning of their area. [121] That being so, it was in my view unnecessary for the director's report or the minutes of the committee meeting on 10 April 2003 to make findings or recommendations in terms specifically reflecting the wording of sections 189 and 191. The conclusion recorded in the minutes ("On this basis, [Atlas] can be recommended as preferred developer for the redevelopment of the site.") appears to me to be simply an abbreviated or short-hand method of identifying the development which had, after the application of the Framework procedure, satisfied the requirements of sections 189 and 191. [122] In relation to the higher marking of Atlas in respect of their experience in large developments, Standard's criticism is in my view without foundation. Amongst the options open to the Council was the option that the whole site might be developed by one developer. In such circumstances, it cannot be said to be irrational or unreasonable on the part of the Council to give Atlas credit for their additional experience in large developments. [123] In relation to Standard's written submissions and verbal presentation on 3 March 2003, a local authority cannot, in my view, be deemed to be acting unreasonably in the Wednesbury sense where they gave greater weight to the formal, considered, written submissions lodged by the closing date, especially where the lack of written submission in relation to a particular area of the development brief might affect the timescale of the development. [124] As for the alleged lack of comment in the report, and the alleged lack of discussion in the committee meeting, about the appropriateness of a disposal of the whole site to a single developer: one of the options available to the Council was such a disposal (or such a disposal, excluding phase A). The appropriateness of such an option was in my view demonstrated to be under consideration and discussion throughout the evaluation exercise, the compilation of the report by the director, and the deliberations of the committee. [125] I am not therefore persuaded that any of the criticisms noted above meet the criteria set out in authorities such as Wednesbury and Wordie.Standard's three specific arguments
[126] I turn now to the three more specific arguments presented on behalf of Standard. [127] Standard contend firstly that, in the circumstances of this case, particularly bearing in mind that "all submissions were considered to be bases for acceptable schemes", it was unreasonable in the Wednesbury sense for the Council to decide on 10 April 2003 to select a preferred developer on the basis of their development proposals with a view to entering into a back-to-back agreement with that developer, such that the Council would not be free at a later stage (when the compulsory purchase was complete and the land ready to be disposed of in terms of section 191) to consider the merits of competing bids from developers. It was said that, in selecting a preferred developer on 10 April 2003, the Council had made it impossible for themselves to have proper regard to the requirements of section 191. [128] I cannot agree. [129] Section 191(2) refers to the best use of land, or to the erection of buildings needed for the proper planning of the area. Section 191(3) stipulates two qualifications: the "best price", or "the best terms that can reasonably be obtained". In my view, on a proper construction of that subsection, the word "or" is used disjunctively, and accordingly section 191(3) can be satisfied if a local authority such as the Council demonstrate that they achieved "the best terms that can reasonably be obtained ...". I consider the concept of "best terms" to be broader and more flexible than that of "best price". The concept includes price, not as the determinative factor, but simply as one of many factors to be taken into account. It is quite conceivable that, in a particular case, the best terms overall might not necessarily include the best price which could ever be achieved. In circumstances such as those prevailing in the present case, the best terms may well comprise certain terms relating to financing, timing, design, and construction, together with a "price" which amounts to no more than a reimbursement of all the costs and expenses incurred by the local authority in the course of the compulsory purchase. [130] What amounts to the best use of land, or the best terms achievable, must be assessed by the local authority in the particular circumstances of each case. There is nothing in the statute to suggest that it is impossible to achieve the best use and the best terms that can reasonably be obtained in circumstances where the Council select and contract with a preferred developer or developers on the basis of their development proposals (submitted without planning consents) following upon an open, competitive, evaluation procedure, carried out at a stage prior to the completion of the compulsory purchase, such that the Council, so long as bound by the back-to-back agreement, may be unable to entertain other bids once the compulsory purchase is complete and the land is ready to be disposed of to the preferred developer(s) in consideration inter alia for the Council being reimbursed in respect of all costs arising in the course of the compulsory purchase . On the contrary, sections 189 and 191 of the 1997 Act confer in my view a broad discretion upon the Council (in Lord Nimmo-Smith's words, "a single composite discretion") - a discretion which prima facie includes the procedure described above. Accordingly, I consider that it is for Standard to demonstrate that, in the particular circumstances of this case, the Council exercised that broad discretion wrongly in the sense defined in Wednesbury and Wordie. [131] I am not satisfied that Standard have done so. The Buchanan Street/Bath Street/West Nile Street site is an important site, but also a demanding one, requiring a developer or developers with sufficient experience, resources, and determination to carry through and complete a development in keeping with the Council's development brief. The Council do not have the funds for the necessary compulsory purchase. Accordingly they have concluded that the best solution is to select and obtain the commitment (including the financial commitment) of a developer or developers at an early stage, prior to effecting compulsory purchase. [132] In carrying out their selection process, the Council laid down an open, fair, and detailed evaluation procedure, all as set out in the Framework, specifically reflecting the requirements of sections 189 and 191 of the 1997 Act, and the guidance given by Lord Nimmo-Smith in Standard Commercial, cit. sup. The whole procedure was directed to establishing the best use of the land on the best terms. Interested developers were advised what was expected of them and what criteria would be used in evaluating their submissions. Amongst other matters, the Framework and the draft back-to-back agreement stated that the price expected of the developer would be a total indemnification of the Council in respect of all costs incurred as a result of the compulsory purchase, including for example compensation fixed by the Lands Tribunal. It was also made clear that, once a preferred developer or developers had been selected at the early stage, their scheme(s) would have to be adjusted or modified according to the Council's requirements, and the implementation of the back-to-back agreement would be conditional upon the obtaining of detailed planning consent. As planning permission rested in the Council's hands, any preferred developer who failed to co-operate with the Council's requirements would be unlikely to obtain the necessary planning permission. The back-to-back agreement would then be inoperative so far as that developer was concerned. The developer would not be permitted to continue, and a procedure for the selection of another developer would have to begin. [133] Against that background, I cannot accept that it was Wednesbury unreasonable, or unlawful, of the Council, in compliance with their own Framework (directed to establishing the best use of the land, on the best terms) to select at a relatively early stage and prior to compulsory purchase, one single developer offering a comprehensive development of the site (with the option of excluding phase A), and succeeding in achieving the highest overall score on the published evaluation criteria, such that, if all went according to plan, the Council could not later entertain other offers when disposing of the compulsorily acquired land. I do not agree that by their decision on 10 April 2003 the Council disabled themselves from achieving the best terms on the disposal of the land that could reasonably be obtained. On the contrary, factors such as an unavoidable compulsory purchase; the lack of Council funds; and the related need to obtain the early commitment of a developer (or developers) with funds who would timeously carry through and complete a development adjudged to be the best use of the land, result in a range of best terms that could reasonably be achieved which includes, in my view, the early selection of one financially acceptable developer offering indemnification of the Council's costs, together with a comprehensive development scheme (with or without phase A) which achieved the highest overall score on the published evaluation criteria, on condition that the developer adjust the scheme in accordance with the Council's requirements and obtain the necessary planning consent from the Council planning department. [134] I accordingly reject Standard's first argument. [135] Standard's second argument was that the Council could not reasonably conclude at the time of their decision on 10 April 2003 that it was appropriate to dispose of the subjects to a single developer for a single comprehensive development. Put another way, the desired goal was to respect existing feus, and to avoid one monolithic building: yet the director had not considered or drawn the committee's attention to the merits of phases A to C being developed by Standard, and phases D to H being developed by Atlas. [136] I accept that it was open to the Council to select two or more preferred developers who would work together in completing the development of the entire site. However, again applying Wednesbury and Wordie, I cannot agree that it was not open to the Council reasonably to conclude on 10 April 2003 that it was appropriate to dispose of the subjects to one single developer for a single comprehensive development (with or without phase A, depending on feasibility). The Director of Development and Regeneration Services, and the Development and Regeneration Services Committee, were entitled to focus on the options actually before them. Those options were:Standard/Lujo: phases A to C.
Standard/Hermes: phases A to H.
Atlas: phases A to H (with a proviso that the Council might wish to allow Standard to develop A, while Atlas developed B to H).
Acquiescence or personal bar
[142] In the circumstances, it is unnecessary for me to address the question of acquiescence or personal bar. Obiter, it seems to me that there is considerable force in a complaint of mora, taciturnity, and acquiescence where it was clear to all parties at the outset of the evaluation procedure that the competitive comparison of developers' submissions was to be carried out at a stage prior to the obtaining of planning consent, with a view to inviting the preferred developer(s) to enter into a binding back-to-back agreement with the Council such that, if all went according to plan, the Council would not be free at a later stage to consider other developers' proposals. If a party thought that the intended approach was inappropriate for any reason, it is my view that the objection should be made at the outset - even if the Council then decided to make no change in procedures, preferring to continue with the procedures outlined. The objecting party would then have various options: either to refuse to participate; or to participate, but "under protest", reserving the right to have matters reviewed by the courts; or to seek an immediate judicial review of the Council's proposed procedure, including interim interdict as necessary. But for Standard to participate fully in the competitive evaluation procedure without comment, complaint or reservation, in the knowledge that (i) planning consent would not feature; (ii) the preferred developer(s) would be invited to enter into a back-to-back agreement with the Council prior to the carrying out of the compulsory purchase; and (iii) the Council and other developers or interested parties were committing time and resources to the evaluation procedure, would in my view amount to mora, taciturnity and acquiescence such that Standard would be held barred from advancing the first and third of their specific arguments: cf. dicta in WWF-UK Ltd. v Secretary of State for Scotland [1999] Env.L.R. 632, page 685; Singh v Secretary of State for the Home Department, 2000 S.L.T. 533, paragraph [11]; Thomas v University of Bradford No.2 [1992] 1 All E.R. 964, pages 965E and 979F. However any such acquiescence or personal bar would not, in my view, prevent Standard from presenting the second specific argument or the general underlying criticism referred to in paragraphs [113] et seq. above.Conclusion
[143] For the reasons given above, I shall sustain the third plea-in-law for the Council and the third plea-in-law for Atlas, and refuse the petition. Meantime I reserve any question of expenses.