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Cite as: [2004] ScotCS 187
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The Standard Life Assurance Company & Anor v North Lanarkshire Council [2004] ScotCS 187 (29 July 2004)
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD CARLOWAY in the Petition of THE STANDARD LIFE ASSURANCE COMPANY and another, Petitioners against NORTH LANARKSHIRE COUNCIL Respondents ________________ |
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Petitioners: Currie QC, Wilson; Semple Fraser, WS
Respondents: Davidson QC; Campbell Smith, WS
29 July 2004
1. Planning Background
- GENERAL
(b) LEGISLATION
The Town and Country Planning (Scotland) Act 1997 (c 8) provides:
"37(1). In dealing with...an application [for planning permission] the [planning] authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.
25. Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.
238 (1) If any person aggrieved by a structure plan or a local plan or by any alteration...of any such plan desires to question the validity of the plan or... the alteration...on the ground -
(a) that it is not within the powers conferred by Part II [of the Act], or
(b) that any requirement of that Part...has not been complied with in relation to the approval or adoption of the plan, or...the alteration...
he may make an application to the Court of Session under this section.
(2) On any application under this section the Court of Session -
(a) may by interim order wholly or in part suspend the operation of the plan or, as the case may be, the alteration...either generally or in so far as it affects any property of the applicant until the final determination of the proceedings;
(b) if satisfied that the plan...or alteration...is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part...it may wholly or in part quash the plan...or alteration...either generally or in so far as it affects any property of the applicant.
(3) An application under this section must be made within 6 weeks..."
(c) NATIONAL GUIDELINES
[3] National Planning Policy Guideline 8: Town Centres and Retailing (revised 1998) sets out the Scottish Government's policies for town centres and retail developments. Local planning authorities are expected to take the policies into account in preparing development plans and in undertaking their development control responsibilities. The policies include:"44. ...Where Planning Authorities consider there to be a requirement for further new developments...development-plan policies and proposals should indicate the location, scale of additional floorspace and type of development appropriate. Such policies or proposals should be consistent with the general policies in this NPPG, including the particular considerations set out in paragraph 45 below. Accordingly, applications for further new...major retail and commercial leisure developments, should initially be assessed as to whether they are consistent with the development plan.
45. Where a proposed development is not consistent with the development plan, it is for the developer to demonstrate why an exception to policy should be made. Such proposals should be rigorously assessed by the planning authority against the policies set out in this NPPG and should be refused if all the following considerations cannot be met. The proposed development should -
(a) satisfy the sequential approach;
(b) not affect adversely...the development plan strategy in support of the town centre...".
The sequential approach is set out in paragraphs 12 to 16 and involves planning authorities selecting town centre sites as a priority for "new retail, commercial leisure developments and other key town centre uses". Only if these cannot be found, should development be permitted on an edge-of-centre site and, only once all these are exhausted, should out-of-centre locations be selected.
(d) THE STRUCTURE PLAN
[4] The Glasgow and the Clyde Valley Joint Structure Plan 2000 [No 6/7 of Process] became operative on 1 May 2002, before the application was determined. It makes specific reference to the application (see paragraph 11.59 of the Plan infra). The Plan states:"5. STRATEGIC VISION
...
5.2 The management of social, economic and environmental change should be complementary, ensuring that:
The long term viability and vitality of existing settlements is supported and not undermined by new developments...
5.4 The communities in the Structure Plan area have characteristics which can be generally summarised as follows:
Main Towns: The towns of the Structure Plan area have strong identities and distinct urban centres...The main towns tend to be the focus of development pressure and associated traffic but have significant rates of unemployment and additionally, both a need for, and a potential for urban renewal...
5.5 The Structure Plan policies therefore seek to Strengthen Communities by:
...
Reinforcing town centres as the preferred locations for retail, leisure, community, business and other appropriate functions;
Supporting town centres...
7. STRATEGIC DEVELOPMENT PRIORITIES...
TOWN CENTRES
7.3 Town Centres offer a range, quality and convenience of services and activities that are attractive not only to the local population and visitors but also to investors. Despite pressures for out of town development, town centres have many inherent advantages for shopping, leisure and employment. They have a capacity to accommodate new forms of business and retailing, and to contribute to the overall economic competitiveness of the area...
7.4 National Planning Policy Guideline 8 recognises that sustaining the existing framework of Town Centres is fundamental to the success of a sustainable urban development strategy.
7.8 Consideration is being given to a proposal for a new town centre in North Lanarkshire as a component of the regeneration proposals for the former Ravenscraig Steel Works site. This proposal has been promoted on the basis that it will be linked to a planned restructuring of the existing centres of Wishaw and Motherwell. The technical evaluation of the concept has still to be completed and the need for additional retail floorspace in the Lanarkshire area is dealt with in Section 11."
Strategic Policy 1 of the Plan provides:
"Priority shall be given to investment in the following locations...in order to maximise the scale of urban renewal...
(a) Town Centres..."
Schedule 1(a) highlights four areas, including "Motherwell/Wishaw" as "Town Centre Renewal Priorities" and a much larger number of areas, including East Kilbride, Hamilton, Motherwell and Wishaw as "Town Centres to be Safeguarded through Structure and Local Plans".
The plan continues:
"11 QUALITY OF LIFE AND HEALTH OF LOCAL COMMUNITIES
TOWN CENTRE AND RETAILING DEVELOPMENTS
Strategic Context
11.36 The network of town centres (Schedule 1(a)) in the Structure Plan area performs vital social and economic functions for the population. The town centres are the focus of a range of commercial and community activities...As a network they offer the wide range of goods and services which is vital to serve the needs of the regional economy and the community. The vitality and viability of the network of town centres is therefore essential to the economic success of the area and the well being of its people...
11.38 ...the principle that town centres should be preferred locations for new developments, in preference to out of centre locations, is central...
11.40 The policy framework for town centre uses reflects the Plan's emphasis on protecting and enhancing town centres. The general principles are that proposals for new developments should:
Accord with the strategic objectives of the Plan
Support the renewal and improvement of the existing town centres as the most appropriate locations for retailing and other town centre uses
Be located in town centres...
Not have an adverse impact...on the vitality and viability of existing Town Centres...
The above principles reflect and reinforce the guidance contained in NPPG 8...
Policy Approach
11.54 The policy approach for Town Centre Uses is as follows:
The network of town centres identified in Schedule 1(a)...will be protected, managed and enhanced as the preferred locations for new retail, commercial leisure and other town centre uses through Strategic Policies 1...
A sequential approach will be adopted when selecting sites for retail and other town centre uses as set out in Schedule 6(c)(ii)
...
11.56 Apart from a sequential approach to site selection, significant retail proposals require rigorous assessment, for example, in terms of impacts on town centres. The requirements for such assessments are set out in Schedule 6(c)(i). For the purposes of this Plan, significant retail developments are defined as convenience floorspace of over 1000 sq. metres gross, and comparison floorspace over 2000 sq. metres gross..."
Schedule 6 provides:
"(c)(i)
Assessment of Significant Retail Development Proposals
All significant proposals for retail development must accord with the strategic objectives of this Plan and will be assessed against the following criteria:...
Impact...on the town Centres listed in Schedule 1(a)...
(c)(ii)
The Sequential Approach to Retailing and other Town Centre Uses
First preference should be for town centre sites, where sites or buildings suitable for conversion are available, followed by edge-of-centre sites, and only then by out-of-centre sites..."
Returning again to the Plan, it continues:
"Out of Centre retailing Locations
...
11.58 Ravenscraig, North Lanarkshire: Consideration is being given to retailing and town centre uses as part of the Flagship Initiative, in addition to industry, business, housing, leisure and environmental improvement, [para 7.32]. There is capacity for increased floorspace within the Motherwell and Wishaw retail catchment areas, and a need to consider the quality and distinctiveness of the retail facilities. The availability of the Ravenscraig site provides an opportunity for redevelopment of a scale and character that should stimulate regeneration throughout a wider area.
11.59 A proposal has been promoted for the development of a new concept in leisure and retailing combined with other town centre functions, and incorporating 58,000 sq. m. of comparison retail floorspace, as well as major leisure facilities, with the aim of creating a substantially more attractive retail facility than is currently available. This would be linked to the existing centres of Motherwell and Wishaw where measures would be required to manage the impacts of a retail centre at Ravenscraig. The relationship to the potential redevelopment and extension of Motherwell Town Centre, which is likely to accord with policy, would also need to be evaluated. The Ravenscraig proposal requires an evaluation of its marketability, retail, environmental and transport impact assessments.
11.60 When North Lanarkshire, in consultation with the Structure Plan Joint Committee, has considered the full implications of the retail potential of Ravenscraig, it may be appropriate to expedite resolution of the strategic planning issues involved by an Alteration to the Structure Plan"
Thus the Structure Plan, whilst emphasising the need to protect existing Town Centres, including the petitioners' concerns in Hamilton and East Kilbride, envisaged that an alteration might be needed to the Plan to incorporate a new development at Ravenscraig. This is what occurred.
(e) THE ALTERATION TO THE PLAN
[5] The Structure Plan Joint Committee, which includes the respondents, promulgated a proposed alteration to the Plan. Their statement of Publicity and Consultation [No. 6/8b] contained the following:"1.0 INTRODUCTION
1.1 ...The Joint Committee...has decided to prepare and submit to Ministers, an Alteration to [the] Approved Plan relating to the future development of Ravenscraig in North Lanarkshire.
1.2 This Statement...sets out the steps that the Joint Committee...have undertaken..."
In Appendix 1, certain representations from interested parties and the responses thereto included the following:
"REPRESENTATION NUMBER: 47
From: Standard Life
Representation: Concerned about retail impact of Ravenscraig on Hamilton
Response: There is no firm development proposal and the retail role and function of Ravenscraig will need to be assessed by the Joint Committee when proposals are brought forward. At present any major development proposal for retailing at Ravenscraig would have to be treated as a significant departure from the Structure Plan."
A similar representation (number 35) from the second petitioners met with an identical response. The precise terms of the proposed Alteration are set out in an Addendum to the Joint Committee's Supplementary Written Statement [No 6/8(a)]. These start with the addition of a further sub-clause to paragraph 5.5 (supra) stating "creating a new Town Centre at Ravenscraig" and adding "Ravenscraig" to the list of Town Centres to be safeguarded in Schedule 1(a). Paragraph 7.8 (supra) is replaced with one stating that consideration had been given to the Ravenscraig proposal and that it would help meet deficiencies in retail provision and Town Centre facilities as well as the regeneration of the area. Similarly, paragraphs 11.58 to 11.60 (supra) are also replaced. As changed these include the following:
"11.58 ...The availability of the Ravenscraig site provides an opportunity for redevelopment of a scale and character that should stimulate regeneration throughout a wider area...
11.59 A planning application has been promoted for the development of a new concept in leisure and retailing combined with other Town Centre functions, and incorporating 58,000 sq. m. gross of comparison retail floorspace...This would be linked to the existing centres of Motherwell and Wishaw where measures would be required to manage the impacts of a retail centre at Ravenscraig. The relationship to the potential development and extension of Motherwell Town Centre, which is likely to accord with policy, would also need to be evaluated. There would also require to be evaluation of the levels of impact on other centres, in particular, Easterhouse and Parkhead Town Centres in Glasgow and Hamilton...In this context...the outstanding objections to this proposal require to be addressed in relation to and are not prejudiced by the recognition of a strategic need for a Town Centre at Ravenscraig...
11.60 The Structure Plan will support the creation of a new Town Centre at Ravenscraig to include retail floorspace and a range of other community facilities and services. Retail provision of up to 6,500 sq. m. net to serve the new community would accord with the Plan. However, in terms of the overall scale of the centre comparison floorspace to serve a wider subregion...of about 30,000 sq. m. net would be acceptable...The evaluation of any planning proposal over 6,500 sq. m. shall take into account the requirements set out in paragraph 19 of the Supplementary Written Statement [Ravenscraig - Strategic Planning Role] including complementary action for Motherwell and Wishaw Town Centres....There should be continuing priority given by stakeholders in support of other Lanarkshire Town Centres, in particular Hamilton, in the light of any Ravenscraig proposal..."
Paragraph 19 stated:
"[E] A total scale comparison retail floorspace of around 30,000 sq. m. net required to create a new subregional Town Centre, plus any local convenience floorspace, would be acceptable subject to it:
i. having regard to the criteria in...Schedule 6(c)(i);
ii. being part of a programme for the support of the Lanarkshire Town Centres..."
Finally, an alteration to Schedule 6(c) involves a new paragraph (iv) confirming the content of the new paragraph 11.60 (supra). The Alteration was agreed by the Joint Committee on 26 March 2003 and forwarded to the Scottish Ministers for approval on 25 April 2003.
(f) THE PLANNING APPLICATION - PART ONE
[6] On 10 April 2003, before any approval of the proposed Alteration had taken place, a special meeting of the respondents' Planning and Environment Committee was held to consider the Ravenscraig planning application [see Minutes No 6/1(a)]. The applicants and the petitioners were both represented at the meeting. Before the Committee was a recommendation from the respondents' Director of Planning [No 6/1(b)], the attached report to which noted the petitioners' objections (paragraphs 6.17 and 7.13-16). It acknowledged that the proposal was contrary to the development plan. The report set out the relevant terms of the Plan and the proposed Alteration. In particular, the report stated:"8.4 It should be noted that the...Joint Committee has agreed to alter the Structure Plan in a number of respects regarding the Ravenscraig site...The proposed alteration has been the subject of a public consultation exercise and the Joint Committee has agreed to submit it to the Scottish Ministers for approval; this will therefore be a material consideration in the determination of this planning application..." (see also paragraphs 9.2 and 3).
However, the report acknowledged again that the proposal, so far as the retail component was concerned, was contrary to the Plan since Ravenscraig was not a named town centre (see paragraph 10.3). The Report dealt specifically with the retail component problem in narrating that a Retail Impact Assessment had been carried out (paragraph 10.10). This Assessment had concluded that:
"the highest impact on turnovers at 2000 (sic) would be experienced by Motherwell town centre, with a potential effect on turnover (comparison goods) of up to 9.7% with impacts of 8.5% and 3.1% for Wishaw and Hamilton respectively. In terms of convenience shopping, the report considered that impacts of 11.4% could occur in respect of Motherwell, with 2.5% for Wishaw and 6% for Bellshill."
The applicants had argued that such figures would not have a significant effect on existing floorspaces. However, having looked at Motherwell and Wishaw specifically, the report concluded:
"10.18 The impact on benchmark turnovers at 2006 for other centres requires to be considered. As a conventional mall, it is estimated that Ravenscraig would have an impact of 13% of Hamilton, 8% on Coatbridge, 17% on Airdrie, 5% on East Kilbride and 2% on Parkhead and Glasgow City Centre. At the minimum level of experiential retailing, the impacts on Coatbridge and Airdrie are reduced to 5% and 12% respectively, while Hamilton decreases to 9%, East Kilbride to 4% while Parkhead remains at 2% and Glasgow City Centre drops to 1%.
...
10.20 The impacts for Hamilton and East Kilbride need to be considered in the context of how trade from the Motherwell area is currently dispersed. With Ravenscraig in the conventional format, it is estimated that it would divert some £25m from Hamilton and £16m from East Kilbride at 2006. It has been estimated, however, that expenditure of £30m per annum "leaked" from the former Motherwell District area to Hamilton, and £13.6m to East Kilbride in 2000. As such, therefore, Ravenscraig's impact would help retain or reclaim this 'lost' expenditure. There would be some loss of vitality for Hamilton, and doubt cast on the prospects for further extensions of that centre, but it is considered that scale and quality of East Kilbride would enable it to cope more successfully with competition from Ravenscraig. The impacts of Ravenscraig in the experiential format on these towns are less for Hamilton and East Kilbride.
...
10.34...
In terms of the approved Structure Plan, therefore, the retail component of the application constitutes a departure from the development plan; however, further consideration, in the light of the proposed Alteration to the Structure Plan, shows that, if the Alteration is approved, the proposal would accord with the Plan.
...
10.37 The assessment of impacts outlined above indicate that the greatest impacts will arise in Motherwell and Wishaw, and that those affecting other centres are less and generally within an acceptable range. The impacts on Motherwell and Wishaw are substantial, and there remains the issue of how the required restructuring of these centres can be achieved...
...
10.39...
It is therefore considered that, if the proposed Alteration to the Structure Plan is approved, the retail element of the application would accord with the terms of the Plan.
...
10.46 Compliance with the terms of paragraph 45 of the NPPG is a fundamental requirement where retail development is contrary to the development plan; the criteria and my comments on how the proposal meets them are noted below:-
a) Satisfy the sequential approach. It is highly unlikely that a site of the scale required for this development could be found within or adjacent to an existing town centre. It is relevant, also, to consider the fact that the proposal involves the creation of a new town centre, and that this would be formally recognised in the Structure Plan if the proposed Alteration is approved. Accordingly, the issue of the sequential approach would be satisfied inasmuch as there would be a fully recognised town centre being developed.
...
10.48...
The proposed Alteration to the Structure Plan, if approved, would also have the effect of giving Ravenscraig a formal 'Town Centre" designation; in those circumstances, therefore, the retail element of the proposal would clearly accord with national policy in relation to the location of major retail developments.
...the considerations listed in paragraph 45 of NPPG 8 can be resolved satisfactorily if the proposed Alteration to the Structure Plan is approved by the Scottish Ministers. It is therefore considered that should the Alteration be approved as part of the Plan, the NPPG's position on Regional Shopping Centres would not apply to this proposal, on the basis that the proposal would itself form a town centre and, in any case, would be satisfactorily assessed against the paragraph 45 criteria
10.49 ...it is concluded that it would be in accordance with the policies and guidance set out in the NPPG, under the terms of the proposed Alteration to the Structure Plan.
...
10.63 In conclusion, therefore, in relation to the Retail component of the application, it constitutes a departure from the approved Structure Plan; there is no quantitative deficiency for retail floorspace of the scale proposed identified in that Plan that would justify approval, without significant considerations suggesting otherwise, and the site is not identified in the relevant Schedule as a Town Centre. There are qualitative benefits to be gained from the proposal, in that there are recognised deficiencies in that respect in the area, and there are other social and economic benefits that such a development would bring; those considerations could be taken into account. However, the proposed Alteration to the Structure Plan is also a material consideration. That not only recognises the Ravenscraig location as a 'Town Centre' in Schedule 1(a), it identifies a need for about 30,000 square metres net of comparison floorspace to create a new sub-regional town centre...As such the proposal would not be a departure from the Structure Plan, if altered as proposed. It must be recognised that the proposed alteration requires to be approved by the Scottish Ministers, but if the Council was minded to grant permission on the basis of that consideration, the issuing of the consent could be delayed until the Scottish Ministers' decision on the Alteration had been made. In the event of the Ministers not approving the Alteration, the application would be reconsidered by the Council."
The Director of Planning's recommendation was then:
"Generally, the principle of redevelopment has been welcomed, but there have been substantial objections submitted in relation to the town centre proposal, and its impact on other centres....It is recognised that there will be significant impacts arising from the proposal, but it is considered that these can be accepted if appropriate measures are taken to promote the restructuring of the existing centres of Motherwell and Wishaw, and if the scale and nature of the Ravenscraig proposals are strictly controlled.
An Alteration to the Structure Plan has been proposed, which would establish formal 'town centre' status for Ravenscraig, and enable about 30,000 square metres (net) of additional retail floorspace to be developed. This would provide a development plan context to enable the application to be considered appropriate, but the approval of the Scottish Ministers for this alteration would be required before the consent could be issued.
The range of issues involved with this proposal has also necessitated the negotiation of a 'section 75' planning agreement, which would cover a range of specific restrictions on the development...
It is considered that, subject to strict controls...and the approval of the Structure Plan Alteration by the Scottish Ministers, outline planning permission should be granted. If the Committee is minded to grant consent, the permission will not be issued until after the Structure Plan Alteration is approved, and the planning agreement executed.
It should be noted that, if the Committee is minded to grant consent, the application will require to be notified to the Scottish Ministers.
Recommendation: GRANT, subject to (i) the recording/registration of an agreement under section 75...(ii) the approval of the Scottish Ministers of the proposed Alteration to the..Structure Plan,...and (iii) [certain conditions]"
The conditions include (conditions 14 to 25) restrictions of the net comparison retail space and the type of retailing involved in order to ensure that the development does not:
"have impacts on other existing town centres above those predicted in the Retail Impact Assessment carried out for the planning authority, and to accord with the...Structure Plan, as altered."
The respondents' Committee decision [No. 6/1(a)] was:
"that in terms of the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 the application be referred to the Scottish Ministers and, subject to:-
(a) no direction in terms of Section 46 of the...Act...being given by the Scottish Ministers;
(b) an agreement in terms of section 75 of the...Act...
(b) (sic) the approval of the Scottish Ministers to the proposed alteration to the Glasgow and Clyde Valley Joint Structure Plan as agreed by the Structure Plan Joint Committee on 26 March 2003
the application be granted in accordance with the Director's recommendations and subject to the conditions contained within the report."
(g) THE SCOTTISH MINISTERS' APPROVAL
[7] By letter dated 24 November 2003 [No. 6/4], the Scottish Ministers intimated their decision to approve the Alteration without modification. In so doing they recorded certain objections, which had been taken to the Alteration, including that of the petitioners that the social and economic impact of the proposal would be detrimental to the existing town centres. They commented:"A new town centre at Ravenscraig is intended to meet deficiencies in existing retail provision in this part of North Lanarkshire. The Alteration acknowledges that there is likely to be an impact on Motherwell and Wishaw town centres. It therefore requires that the creation of a new town centre be linked to the restructuring of Motherwell and Wishaw town centres and be part of a programme for the support of Lanarkshire town centres."
The letter concluded:
"The Alteration shall become operative on 26 November 2003
The foregoing decision is final, subject to the right conferred by Section 238 of the...Act...of any person aggrieved by the Scottish Ministers' decision to apply to the Court of Session within 6 weeks from the date of publication of the first notice of the approval of the Alteration, whereby the Court may quash the decision..."
Both petitioners lodged "appeals" [Nos. 6/5 and 6] under section 238 seeking to question the validity of the Alteration. The basis of these, in general, is that the Alteration contravenes the principles in paragraph 45 of NPPG 8. It is said that it also contravenes the general terms of the Structure Plan, which were formulated in conformity with NPPG 8 and upon which the petitioners relied when making and sustaining their investments in Hamilton and East Kilbride. The protection of existing town centres is part of the strategic policies in NPPG 8 and the Structure Plan. The approval of the Alteration by the Scottish Ministers means that they are contravening, inter alia, these policies. Furthermore, it is said that the Scottish Ministers had insufficient technical information on retail capacity to make a determination in favour of the Alteration and that the decision to designate a non-existent town centre as a town centre requiring protection was unreasonable.
[8] The appeals are due to be considered at an expedited special sitting of a Division commencing 1 September 2004.(h) THE PLANNING APPLICATION - PART TWO
[9] In a report to the respondents' Planning and Environment Committee dated 24 February 2004 [No 6/2(b)], the respondents' Director of Planning brought matters up to date in relation to: the Scottish Ministers' approval of the Alteration; their decision also not "to call in" the Ravenscraig application; and other related matters. In this report, the Director drew the Committee's attention to the fact that the Scottish Ministers' decision had been "appealed" to the Court of Session by the petitioners (paragraph 5.1). The report continued:"5.2 The Appeals...leave the Council with a decision to make on whether contingency (iii) of its April 2003 decision...has been fulfilled. The Appeals must be viewed as a "material planning consideration" and their impact carefully assessed in deciding whether the ... Alteration has been approved and, consequently, the planning permission can be issued. There are a number of factors to be considered.
5.3 Interim Suspension
As part of the appeal process, the appellants would be entitled to apply...for interim suspensions of the Scottish Ministers' decision. Were that application to be granted, the Council would be constrained...from taking the view that the Scottish Ministers' approval was in force. It is significant, therefore, that the appellants have chosen not to make such an application. This leaves the matter open for the Council to consider.
5.4 Prospects of Success
It is a relevant matter to consider the strength of the appellants' case in deciding whether the planning permission should be issued. The first point to be made is that the appellants' grounds of appeal have not immediately persuaded the Scottish Ministers or the...Joint Committee to accept the appellants' case....The legal advice being given to the Committee is that there are good prospects of the Scottish Ministers and the...Joint Committee defending the decisions taken on the...Alteration. Legal advisers to the...Joint Committee consider that they have a substantive and substantial defence to the Appeals.
5.5 No formal Undertaking
After lodging the Appeals, the appellants' solicitor approached the Head of Legal Services requesting that the Council formally undertake not to issue the planning permission until the Appeals had been finally determined by the Courts....the Head of Legal Services refused to give such an undertaking on behalf of the Council. It is significant that the appellants have not taken steps to apply to the Court for interim suspension, which would effectively prevent the Council from issuing the planning permission. It has to be speculated that they do not wish the Court to come to a preliminary view on the merits of their Appeals, which they would require to do during the suspension hearing.
5.6 Early Determination of the Appeal
...the only possibility of the Appeals being heard earlier than 2005 is if the Lord President is prepared to convene an Extra Division...specifically to hear [the] Appeals...no decision has yet been intimated...
5.7 Appeal Against the Council's Decision
It is to be anticipated that if the Council treat the...Alteration as being in force, thereby allowing the planning permission to be issued, the appellants...may well raise an action for judicial review of the Council's decision. As part of that action they may also seek interim interdict, preventing the issue of the permission and/or interim suspension of the operation of the permission. The Council would have to demonstrate to the Court that its decision was reasonable in light of the prevailing circumstances. The argument against the Council would be that if the Council proceeds to issue planning permission, and if the Court quashes the Scottish Ministers' approval of the...Alteration, the planning permission would have been granted contrary to the development plan, which had not been the Council's original intention, and could not thereafter practicably be re-called. It would be argued that the Council had pre-judged the issue of Structure Plan Alteration. The appellants would argue that their commercial interests were irretrievably affected by the decision to grant permission. For the Council to escape any possible risk of legal challenge from the appellants, the advice would be not to proceed to grant planning permission until the legal challenge to the approval of the First Alteration has been resolved. The Council would only be justified in proceeding to issue planning permission if it was satisfied that the appeal was merely a device to prevent, or at least to delay, the present application being granted. The Council should also be aware that if they decide not to issue the planning permission immediately, there is the possibility that the applicants might also raise an action for judicial review of the basis that the Council were unreasonable in not coming to a view that the...Alteration was in force and thereby unreasonable in not issuing the permission.
5.8 Outcome of Another Structure Plan Alteration Process
The Council are also entitled to take into consideration the following proposition. If it transpires that the s 238 Appeal is successful and the procedures for making the ...Alteration are re-run, the Council should consider whether it is likely that the...Alteration will eventually be implemented. The advice to the Council is that it is very likely that it would be implemented in those circumstances.
6. Recommendations
...
6.4 That the Committee consider the factors specified in Section 5 of this Report, noting in particular the advice in paragraph 5.7, namely that they could be justified in proceeding to issue planning permission if they were satisfied that the appeal was merely a device to prevent, or at least delay, the application being granted.
6.5 That the Committee takes the view that contingency (iii) relating to the grant of planning permission narrated in their decision of 10th April 2003...has been fulfilled.
6.6 that the Committee instructs the Director of Planning and Environment to issue the planning permission once the formalities of the execution and registration of the section 75 Agreement have been completed."
At a meeting on 3 March 2004 [No 6/2(a)], the Committee was told that there was a Division convened to hear the appeals on 31 August, although that is now 1 September. The Director's report was considered and both the Director and the Head of Legal Services were consulted. A motion to approve the recommendations detailed in the report was made, as was an amendment to postpone a decision on the application pending the outcome of the Appeals. On a vote being taken the motion was passed and the amendment defeated. The decision minuted included:
"(4) that having considered the factors specified in the report, noting in particular the advice in paragraph 5.7, the Committee agreed to grant planning permission for the development accordingly;
(5) that it be agreed that contingency (3) relating to the grant of planning permission narrated in the decision of 10 April 2003...has been fulfilled, and
(6) that the Director of Planning and Environment issue the planning permission once the formalities of execution and registration of the section 75 Agreement have been completed".
The reference to contingency (iii) or (3) in paragraphs 5.2 and 6.5 of the Director's report and paragraph (5) of the decision of the Committee should be taken as referring to the second contingency (b) of the April 2003 decision, i.e. the Scottish Ministers' approval of the Alteration.
2. Submissions
(a) PETITIONERS
[10] The petitioners first maintained (statements 8 and 9) that the respondents' decision was based on erroneous legal advice and was therefore ultra vires as such and because of its unreasonableness (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, Lord President (Emslie) at 347-348 under reference to Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; Campbell v City of Edinburgh Council 1999 SLT 1009, Lord Osborne at 1119-1020). The Director of Planning had erred in attaching significance to the petitioners' failure to seek interim suspension of the approval of the Alteration and to the content of the answers lodged in the appeal. The correct legal advice was that the outcome of the appeals against the approval of the Alteration was a material consideration since, if the appeals succeeded, the policy basis for the permission would be removed. In these circumstances the respondents were bound to await the outcome of the appeal (James Aitken & Sons (Meat Producers) v City of Edinburgh District Council 1990 SLT 241, Lord Dervaird at 242-3; Trusthouse Forte (UK) v Perth and Kinross District Council 1990 SLT 737, Lord Kirkwood at 741) The Director did not advise the Committee that there were no prospects of success in the appeals. If his advice had been that there were no such prospects, it would have been legitimate for the Committee to conclude that the appeals would fail but that was not the advice. The Director should also not have speculated when proffering advice. Alternatively, if the advice were correct, the Committee had reached the view that the appeal was a mere device to prevent or delay the present application being granted. There was no factual basis for that conclusion. There was no suggestion that the appeals had no prospects of success. [11] Secondly, the petitioners maintained (statement 9) that the respondents had failed to have regard to the content of the Alteration and in particular to the requirement for an evaluation of the levels of impact on other centres including Hamilton (paragraph 11.59 supra) and to the need for support of these centres (paragraph 11.60 supra). The respondents required to be satisfied that a programme of support was or would be in place in terms of paragraph 19[E] of the Alteration (supra). Looking at the original report of the Director of Planning [No 6/1(b) (supra)] there was very little mention of anything beyond Motherwell and Wishaw and no reference to any programme of support for the Lanarkshire town centres. In arriving at the decision, the Committee failed to have regard to, or misinterpreted, paragraph 19[E] and in that respect had failed to have regard to a policy within the Development Plan. That left the decision open to challenge (see City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, Lord Clyde at 44). Indeed, so far as the petitioners were aware there was no programme of support in existence.(b) RESPONDENTS
[12] The respondents moved that the petition should be dismissed as irrelevant.First, in relation to the ultra vires and unreasonableness argument, the decision of
3 March 2004 fell within the range of reasonable decisions open to the respondents. The principles from the authorities quoted by the petitioners were not disputed, but it was important to note that the weight to be attached to a particular consideration was a matter for the planning authority. The Courts were concerned solely with the legality of the decision in terms of planning law (Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, Lord Hoffman at 780). Reasonableness depended upon a consideration of the whole circumstances of the case (Bett Properties v Scottish Ministers 2001 SC 238, Lord MacFadyen at para 33). It is not every case in which the outcome of a legal process involving one particular determination will prevent a planning authority from taking a decision on another planning application. A planning authority was not barred from taking a decision merely because the outcome of such a process might have a material bearing on that decision. If that were the case, the decision making process would be unduly fettered. It depended upon the whole circumstances. Here, the respondents did take into account the prospective outcome of the appeals and, in particular, the advice that there were good prospects of the appeals being successfully resisted. This did not involve a decision that the appeals were taken in bad faith, as a mere delaying tactic with no prospects of success. The advice which was tendered was in relation to the risks involved in making a decision. If the respondents decided one way, there might be a judicial review by the petitioners. If they decided the other way, there could be equivalent action from the applicants. When the Director of Planning was advising the respondents not to grant the application, he was doing so in the context of this being a way in which the risk of a challenge from the petitioners could be avoided. He was not saying that the respondents were bound to avoid that risk. The decision of the respondents was not based on them holding that the appeals were merely a device to prevent, or to delay, the application being granted. The advice given was that there were risks both ways and the respondents were entitled to make a decision one way or the other having taken into account the various material considerations, which they did.
[13] Secondly, paragraph 11.59, as altered, did mention the need for an evaluation of the impact of the Ravenscraig town centre on other centres, notably Hamilton. However, that did not mean that, prior to granting planning permission, the respondents themselves had to carry out such an evaluation. What the respondents had, at the stage of the original decision in March 2003, was as evaluation in the form of the Retail Impact Assessment of the applicants. The report by the Director of Planning specifically evaluated the impact (paras 10.10, 10.18, 10.20 (supra)) and concluded that the impact on centres outwith Motherwell and Wishaw was within an acceptable range (para 10.37 (supra)). There were also sundry conditions attached to the permission addressing the issue of impact. Thus, there had been an evaluation done before the 2003 decision. That decision had not been attacked by the petitioners. Paragraph 11.60 of the Alteration referred to there being a priority for "stakeholders" to support other centres, in particular Hamilton. That did not place an obligation exclusively upon the respondents. The respondents could hardly place a condition on the permission relative to support being given to areas outwith their authority. It was for the various parties involved in the creation of the Alteration to provide support where necessary. [14] Finally, there were certain matters of detail regarding the scope of any interdict which were, at least in part, resolved by the petitioners restricting the nature of the interdict sought.3. Decision
[14] The test to determine whether the decision of a planning or other statutory authority is ultra vires is definitively set out by the Lord President (Emslie) in Wordie Property Co v Secretary of State for Scotland (supra), albeit in the slightly different context of statutory applications to quash. It will be ultra vires if that authority:"has improperly exercised the discretion confided to [it]. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if [it] has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it...is so unreasonable the no reasonable [authority] could have reached it..."
The Lord President's carefully chosen words seldom benefit from re-expression, explanation or qualification.
[16] The first area of attack concerns whether the advice given by the Director of Planning in his report of 24 February 2004 (supra), especially in paragraph 5.7, and which the Committee purported to follow (Minutes of the Meeting of 3 March 2004 (supra) para (4)) was flawed. If it was, the Committee must have proceeded upon an error of law. This is so not because of the application of a test concerning whether there was a "real risk" that the Committee were misled (see Lord Osborne in Campbell v City of Edinburgh Council (supra)). Such a test might, on one view, be seen as different from that set out by the Lord President (Emslie) in Wordie Property Co v Secretary of State for Scotland (supra). It is simply because the Committee purported to follow the advice given, i.e. they based their decision upon it. [17] There is no detectable error of law in the advice given by the Director. Indeed the advice given, in so far as it touches upon the law, appears to be broadly an accurate, if slightly cautious, analysis. In that regard, of course, the report to the Committee should not be scrutinised as if it were a conveyancing document, but read fairly and as a whole (see Lord Osborne (supra) at 1019) in the context in which it was written, namely as planning advice rather than a formal legal opinion, albeit that there were aspects of law involved. The Director's discursive remarks about the petitioners' failure to seek interim suspension are not, in that context, of any particular moment. [18] The Director was bringing the Committee up to date on matters in light of the earlier Committee decision of 10 April 2003 to grant the application subject to the Scottish Ministers' approval of the Alteration. The critical importance to that decision of the approval of the Alteration is made abundantly clear throughout the Director's report to the 2003 meeting (see especially the conclusion at para 10.63 and the preface to the recommendation (supra)). The planning application was otherwise contrary to the development plan and could not be granted unless there were material considerations indicating otherwise (section 25 of the 1997 Act (supra)). The only material consideration focused upon in the 2003 report (see para 8.4 (supra)) was the Alteration which, if approved, would, as a generality, change the application from one which was contrary to the development plan to one supported by it. Not only that, if the Alteration were approved, Ravenscraig would become an existing town centre thus satisfying the NPPG 8 sequential policy (see paras 10.46 -10.49 of the report (supra)). [19] The Director correctly addressed the issue of whether the Alteration stood as approved or not, standing the "appeals" against the approval by the petitioners. An application by an aggrieved person under and in terms of section 238 of the 1997 Act is not an appeal in the proper sense. An appeal normally, albeit not always, has the effect of suspending the original decision pending the determination of the appellate body. However, what section 238 permits, in language perhaps not familiar to the traditional Scots lawyer, is an application "to quash" (i.e. reduce) the matter complained of. As such it is very much like a judicial review. Pending a successful review, the original decision stands and may be acted upon. That this is so is confirmed by the statutory provision permitting the Court to suspend operation of the plan ad interim. Such suspension would be unnecessary if the plan was not otherwise in effect. [20] In a limited sense, the Director's advice that the decision to be made was whether the Alteration had been approved (para 5.2 (supra)) and hence the earlier condition purified, was over cautious in favour of the petitioners. There is no doubt that the Alteration had been approved and stood and stands approved until suspended or ultimately "quashed". However, the Director corrected any perceived imbalance by observing that the existence of the applications to quash must be viewed as a material consideration (also para 5.2 (supra)) to be taken into account when making the further decision on the application to issue the permission in light of the purification. That this must be so is demonstrated by the simple fact that, if the appeals succeed and the Alteration falls, the whole stated basis for the original decision to grant permission would be removed. The permission would be contrary to the development plan and there would be no expressed material considerations stated to justify it in terms of section 25. Furthermore, it would be contrary to NPPG 8 in that the sequential approach would not have been followed and the policy of protecting existing town centres would have been breached. There is no doubt, therefore, that the potential effect of the applications to quash had to be regarded as material. [21] The effect of the dependence of an appeal, or other judicial process, on a planning application will vary according to the circumstances. The line of authorities which includes James Aitken & Sons (Meat Producers) v City of Edinburgh District Council (supra) and Trusthouse Forte (UK) v Perth and Kinross District Council (supra) has been analysed extensively by Lord Macfadyen in Bett Properties v The Scottish Ministers (supra at para 32). That analysis cannot be improved upon in the context in which it proceeds, notably the reasonableness of granting permission in respect of one site where there exists an appeal in respect, at least in part, of the same site. As Lord Macfadyen observed:"James Aitken and Trusthouse Forte proceeded on the basis that the unreasonableness of the planning authority's decision to grant the subsequent application pending the appeal lay in failure to take into account a material consideration, namely the outcome of the appeal....[H]owever, there is a danger of artificiality in analysing the nature of unreasonableness in that way...[It] may in some circumstances be possible to say simply that the planning authority acted unreasonably, having first decided to refuse permission, and then, when the parties concerned were proceeding through the statutory appeal process against that decision, deciding differently on a second application in broadly the same terms. It is not...impossible to figure circumstances in which it might be said not to be unreasonable to grant a duplicate application pending an appeal into the refusal."
In this type of case, the question will often be not whether or not a material consideration has or has not been taken into account, since the existence and possible outcomes of whatever appeal or other judicial process is pending will be known and considered by the relevant authority. Because of this, there is no question of the Court interfering with the authority's determination of the weight to be given to the various considerations taken into account. Rather the issue will be whether, in deciding an application without waiting for an appellate or other judicial determination, the outcome of which might materially effect the decision, the authority has acted in a manner which no reasonable authority could have done. That is a high test and a Court must take considerable care to appreciate that the range of reasonableness can be a wide one in all the circumstances.
[22] The applications to quash relate to the approval of an Alteration to the Structure Plan which has a material bearing upon the planning application. The Alteration does not just change a general policy which might have relevance to the application site. It deals specifically with that site and its classification as a town centre. As such, whether the Alteration stands or falls is a, indeed the, crucial element in any decision upon the application. If, as they did, the respondents determined to proceed to issue the permission in spite of the applications to quash then, in the event of the appeals succeeding, there would be in existence a permission, the determination of which has no basis in the respondents' earlier reasoning to grant it (i.e. the existence of the Alteration). The issue of planning permission in these circumstances is a step which no authority acting reasonably could have taken, at least unless it could be satisfied that the appeals had no reasonable prospects of success. [23] Returning to the scrutiny of the Director's advice, it follows that his advice, in relation to the options open to the respondents, was again sound, if cautious. He focuses on the critical point in identifying the argument against granting the permission. This was that, if the Alteration were quashed, the permission would have been granted contrary to the development plan, which had not been the respondent's original intention. It is true that, when he advised against issuing the permission pending the legal challenge, this was in the context of avoiding all risk of a legal challenge from the petitioners. That should not be seen as advising positively in favour of that course of action, but simply of the potential risks. However, the Director then stated in clear terms that the respondents: "would only be justified in proceeding to issue planning permission if [they were] satisfied that the appeal was merely a device to prevent, or at least delay, the present application being granted." Although it may have been sufficient to advise the respondents that they could proceed if they were satisfied that there were no reasonable prospects of success, the advice is generally sound. The respondents maintain that they did not reach the conclusion that the appeals were merely devices. Two possibilities arise. First, if the respondents are correct in their contention, in deciding to issue the permission, when the legal challenge could cut away the whole basis for that issue, the respondents were acting as no reasonable authority could. That is so given that it was not suggested in submissions that the appeals had no reasonable prospects of success. Secondly, if, as appears to be the case on the face of the Minutes, the respondents did reach the view that the appeals were simply a device, there was no material before them to support such a view and their decision would be ultra vires in the absence of a proper factual basis for it (see the Lord President (supra)). For all of the above reasons, I will grant the remedies sought by the petitioners. [24] In relation to the petitioners' second main argument, it is correct to emphasise that the Structure Plan as altered does point to the need for: (a) an "evaluation" of the levels of impact of the, or indeed any, application for the creation of a town centre at Ravenscraig on "other centres, in particular Hamilton"; and (b) the outstanding objections to be addressed. Paragraph 19[E] goes further and appears to require the existence of a programme of support of "the Lanarkshire Town Centres". However, the material before the respondents in arriving at their 2003 decision included an evaluation of the impact of the proposal on other town centres (see paragraphs 10.18-20). The Director of Planning had concluded that the impact on centres other than Motherwell and Wishaw was within an acceptable range and the respondents were entitled to accept that. Furthermore, there were conditions relative to the extent of the retail trade included as part of the grant. So far as the existence of a programme of support is concerned, this is not something which the respondents could achieve, at least on their own, since it covers areas outwith their ambit. It is difficult to see just how they could approach the permission with the need for such a programme in mind. However, since they had already concluded that the impact on the town centres of concern to the petitioners was within acceptable limits, the existence of this part of the Alteration, and the absence of a formal programme of support throughout Lanarkshire, cannot be seen as a bar to the grant. Finally, it is of note that these matters concerned the 2003 decision rather than that under challenge. They do not seem directly relevant to the vires of the 2004 determination to issue the permission because the condition relative to the Alteration had been purified. The petitioners' argument on this ground fails. [25] I will: (i) sustain the petitioners' first and fourth pleas-in-law, repel their second and third pleas-in-law and the respondents' first to fifth pleas-in-law; (ii) find and declare that the decision of the respondents dated 3 March 2004 to issue planning permission for the Ravenscraig development, subject to the conclusion of a section 75 agreement, is ultra vires, and thus null and of no effect; (iii) reduce the decision of 3 March 2004 to issue that permission; and (iv) interdict the respondents from issuing that permission in pursuance of the decision dated 3 March 2004.