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Carlton Clubs Plc Foir Petition for Judicial Review [2004] ScotCS 30 (10 February 2004)

OUTER HOUSE, COURT OF SESSION

P1380/03

OPINION OF LORD WHEATLEY

in Petition of

CARLTON CLUBS PLC

Petitioner;

for

Judicial Review of a resolution by The Highland Council of 1^st September 2003 to approve the grant of outline planning permission for a new bingo hall, associated facilities and car parking, at Inshes Retail and Leisure Park in Inverness

________________

Petitioner: Wilson; Dundas & Wilson, C.S.

Respondent: Mrs. Wolffe; Biggart Baillie

10 February 2004

[1] The petitioner is the heritable proprietor of a site at Beechwood Business Park, Inverness, for which outline planning permission for a bingo hall, associated facilities and car parking was granted on appeal by the Reporter appointed by the Scottish Ministers on 9 July 2003. This appeal had been taken by the petitioner following an initial refusal to grant planning permission by The Highland Council, which is the only respondent to appear in this Judicial Review.

[2] One of the principal determining issues of the petitioner's appeal was concerned with the level of car parking provision necessary to support the proposed development. In particular, in considering the appeal, the Reporter was concerned with an examination of two different methods of calculating the provision of car parking to a development of the kind proposed by the petitioner. Historically, the respondent had applied a minimum parking requirement policy to such developments, which was based on an estimate of the numbers of car parking spaces that the developers thought they would need to support the development. Once that estimate was satisfactorily reached, the respondent would grant planning permission subject to the provision of a minimum number of car parking spaces in terms of the developer's estimate. This approach was therefore led by the perceived demand for car parking arising out of the development.

[3] In March 2003, shortly before the Reporter appointed by the Scottish Ministers began the planning inquiry into the petitioner's application, the Scottish Executive published a document entitled Scottish Planning Policies Guidelines No.17 (hereafter "SPP17") on Transport and Planning Maximum Parking Standards. In terms of the introduction to SPPG17, the statements of the Scottish Executive policy contained therein, (which are also found in circulars published by the Scottish Executive), may be material considerations to be taken into account in the preparation of development plans and the existence of development control functions exercised by local authorities.

[4] SPP17 was specifically intended to issue further guidance on maximum parking standards as initially provided by National Planning Policy Guidelines 17 (hereafter "NPPG17"). The fundamental principle behind SPP17 was a desire to see more sustainable modes of travel associated with developments. In general terms, these methods are designed to limit the use of private cars wishing to visit such developments. NPPG17 therefore provided detailed methods for working out the maximum car parking space appropriate to developments, including such as that proposed by the petitioner.

[5] In SPP17 there is included (in Article 19) the Town and Country Planning (Notification of Applications) (Scotland) Amendment Direction 2003. It is this Direction which provides details of the application of the national maximum parking standards, by reference to the nature of the development and the amount of floor space. It is agreed in the present case that while the recommendation and proposals contained in the main body of SPP17 are guidelines which are designed to assist planning authorities in the preparation of their development plans and in the exercise of their functions of development control, the Direction itself has the force of law, and is an exercise of the power of the Scottish Ministers in terms of the relevant planning legislation. Accordingly, there are only two methods by which a planning authority can avoid applying the parking standards imposed by the Direction. The first is by making provision for alternative standards in terms of the local development plan, which requires to be approved by Scottish Ministers. The second method is by indicating that they are minded to grant an application in terms which are at variance with the Direction, where again the application must be submitted to the Scottish Ministers for their approval.

[6] In the course of the decision letter of 9 July 2003, the Reporter appointed by the Scottish Ministers noted that the respondent had originally refused the petitioner's planning application for inter alia the following reason (page 2 para.5):

"3. The applicants have failed to provide sufficient justification to demonstrate that the level of car parking proposed to be provided within the site is adequate to meet the requirements of patrons and staff and have, as a result, been unable to allay concerns that the proposed development will result in the unauthorised use of other car parks and adjacent residential streets, thereby exacerbating existing parking problems, all to the detriment of the local road network and to amenity."

[7] In dealing with the issue of car parking, the Reporter (at para.37 et. seq. of her decision letter) noted that SSP17 had been issued immediately prior to the start of the concluded inquiry. In respect of the petitioner's proposed application, the Reporter noted that the maximum parking standard in terms of those guidelines and the Direction would be 106 spaces, and that the forecast for unrestrained parking based on the anticipated demand for spaces in terms of the policy previously adopted by the respondent would be at least 281 spaces. In both exercises, 12 disabled parking places would also be provided.

[8] The Reporter further noted that the petitioner would require to introduce a package of provisions in a Green Transport Plan at the detailed application stage including special bingo bus services, and various other measures designed to reduce the traffic generated by persons wishing to use the bingo hall. The Reporter also acknowledged that on-street parking in the vicinity could become an issue and that the council might have to impose restrictions in nearby streets in order to deal with this. While there were other matters which affected the outcome of her decision, it is clear that in this respect the Reporter has applied the principle and spirit of SPP17 in considering the appropriate level of car parking spaces which should be provided by the petitioner to support the proposed development. In particular, it is clear from the report that the petitioner's application would only be in accordance with SPP17 if 106 car parking spaces were provided with the proposed development. The Reporter then went on to conclude that the proposed development was in accordance with the development plan and that the petitioner's planning application should be granted.

[9] By a separate planning application dated 15 October 2002 Teesmartin Inshes Limited ("Teesmartin") sought outline planning permission for a bingo hall with ancillary bar and diner and related car parking and access at Inshes Retail Park, Inverness. The size of the bingo hall proposed in the Teesmartin application, the number of visitors it was designed to accommodate, and the various ancillary facilities, were virtually identical to that proposed by the petitioner in its application. In addition, the two developments are within the same retail park. Teesmartin proposed only 36 car parking spaces in their application. The petitioner objected to the Teesmartin application by letters dated 10 July and 19 August 2003. In terms of their letter of objection of 19 August 2003, the petitioner's agents drew attention specifically to the issue of car parking.

[10] The respondent's Director of Planning and development provided a report to the respondent's Planning Application Committee dated 20 August 2003 dealing with Teesmartin's planning application. Reference was made in terms, in the course of that report, to SPP17 and to the fact that any strategic argument for varying the guidelines contained therein should be made through the respondent's development plan (which requires to be submitted to and approved by the Scottish Ministers) or alternatively, in the event that the parking provisions in association with the development exceeded the thresholds contained in the guidelines, that any minded to grant decision by the respondent in respect of Teesmartin's application required to be notified to the Scottish Ministers.

[11] The respondent's Director of Planning then produced a further report to the respondent's Planning Application Committee dated 1 September 2003, in response to the petitioner's letter of objection of 29 August 2003. In respect of the issue of car parking, the Director made it clear that in assessing the proposed development, the respondent's officials had applied the council's approved standards, which allowed for the minimum amount of car parking space indicated as appropriate by the development, as opposed to the maximum standards contained in SPP17. Paradoxically, the amount of spaces available under the maximum policy described in SPP17 is significantly less than the minimum available under the respondent's policy. The Director's analysis suggested that while the car park associated with the retail and leisure park as a whole had sufficient capacity to accommodate the proposed development at the present time, this could change in the future. In these circumstances the Director noted that the applicants had accepted measures proposed to them by council officials, and referred to in his earlier report, namely that Teesmartin would provide a subsidy for bus services to the retail park for a period of four years, replacement of a footway network, and cycle racks and facilities for visitors and staff. The Director further noted that these arrangements would be included in a section 75 agreement which would in normal course require to be completed before planning permission was granted. It was also noted that the entire car parking area for the retail park would be available for the bingo hall development.

[12] At the meeting of the respondent's Planning Applications Committee on 1 September 2003, the respondent considered the Teesmartin planning application. The Committee approved the Teesmartin application subject to the prior conclusion of an appropriate agreement between the planning authority and the developers with respect to the provision of a lump sum contribution of £140,000 to the council to fund improved bus services to the retail and leisure park and to guarantee that the entire car parking area at the retail and leisure park would be available on an unrestricted basis for customers of the bingo hall and for all other occupiers of the park. This grant of planning permission, together with the conditions generally imposed by the Committee, were in accordance with the recommendations of the Director of Planning in his supplementary report dated 1 September 2003. In terms of that report, the Director had noted (at para.7.2) that in terms of the national maximum parking standards, applications for certain categories of development which exceeded a specified size required to be notified to Scottish Ministers where the planning authority is minded to grant consent and that the amount of car parking proposed exceeded the defined maximum standard. The Director went on, however, to indicate that the new car parking proposed for this development included a maximum of 51 spaces, when considered with a reconfigured adjoining car park, or 36 spaces shown indicatively within the application site. In both cases, the Director claimed, the level of new car parking fell below the national maximum parking standard, which was equivalent to 106 spaces. The Director then concluded that notification was not required in this instance.

[13] It is therefore quite clear that the respondent did not apply the maximum parking standard guidelines contained in SSP17 to their consideration of this application. The only reason which they give for not applying the maximum standards provided for in the guidelines was that the application itself requested that 36 parking places only be provided, and that provision was clearly within the SSP17 guidelines. In Answer 5 to the Petition, the respondent also indicates that in dealing with such applications in the future, they will continue to apply their own guidelines.

[14] In these circumstances the petitioner now seeks declarator that the decision of the respondent dated 1 September 2003 to approve the grant of outline planning permission following the application by Teesmartin, subject to certain conditions and the conclusions of the section 75 agreement, was ultra vires of the respondent and was therefore void and of no effect. The petitioner further seeks reduction of the decision and of the associated planning permission granted by the decision. The grounds specified in the pleadings by the respondent for seeking these remedies are, firstly, that the decision was ultra vires of the respondent in that there were serious procedural irregularities in the determination of the said planning application by Teesmartin to the substantial prejudice of the petitioner, that the respondent failed to take into account a material consideration by ignoring the terms of the appeal decision dated 9 July 2003 in respect of the petitioner's planning application which was appealed to the Scottish Ministers, and that the respondent acted in a manner which was unfair and prejudicial to the interests of the petitioner in determining the application.

[15] In these circumstances the petitioner claims to have suffered serious prejudice. In respect of its own application for planning permission, the Reporter, acting on behalf of the Scottish Ministers, applied the minimum parking standards contained in SPP17 to the grant of planning permission. However, the petitioner submits that the respondent has plainly failed to apply those same standards to the grant of Teesmartin's planning application. The direct consequence of this is that unrestricted parking will be available for patrons of Teesmartin's bingo hall, while those wishing to frequent the petitioner's hall will be subjected to a restricted parking availability. In these circumstances, the petitioner will be placed at a material commercial disadvantage. Further, the petitioner maintains that the respondent failed to take into account the decision by the Reporter in the petitioner's planning application, which was an inquiry into a proposed development which was not only adjacent to the petitioner's proposal, but which was in all material respects identical. The respondent on the other hand maintains that they did have appropriate regard to the guidelines and direction contained in SSP17, because, in particular they considered the Teesmartin application on its merits, and in that regard it was noted that the applicants had only requested 36 (or possibly 51) parking sites to support their development proposal. In these circumstances, the respondent claims that the application fell within the guidelines contained in SSP17, and that they were therefore fully justified in thereafter granting unrestricted parking in other parts of the retail park car park to support the development.

[16] It was agreed that the issue in this case turned on the proper interpretation to be placed on SSP17. Article 19 provides details of the nature of the developments to which the new maximum car parking standards are to apply and the amount of parking to be allowed for the space which the development is to cover. What exceeds the maximum car parking standards is described in Article 19 in the following terms:

"Development falling within the category set out in the table below, where the amount of car parking proposed is in excess of the maximum standard contained in the table, and for which a planning authority is minded to grant consent."

It would appear from the respondent's submissions that it is of the opinion that in applying the maximum car parking standards, as described in the Direction, they only have a responsibility to consider what is "proposed"; and if the proposal exceeds the maximum standard contained in the table, and they are minded otherwise to grant the consent, then and only then do they have to observe the consequences which apply where such an excess is contemplated. Those consequences are (apart from a strategic departure from the standards in the Development Plan which must be approved by Scottish Ministers) that a reference must be made to Scottish Ministers in respect of any minded to grant consent following a planning application such as the present. It therefore follows from the respondent's line of argument that, so long as the applicants confine themselves to a request for parking which is within the maximum car parking standards contemplated by the Direction, then it is entirely possible to grant permission for as many car parking spaces as is considered desirable, and in particular the respondent is wholly free to impose the minimum car parking requirements in line with its former policy.

[17] The respondent's position in this matter is clearly wrong. The whole purpose of SSP17 is to provide guidance and a direction in respect of maximum parking standards in orders to restrict car parking for new developments for the explicit purpose of promoting alternative and sustainable methods of transport. In this context, what an applicant seeks for in the course of his planning application is completely irrelevant to what the planning authority in the event decides should be provided in the way of car parking spaces. The application of maximum parking standards can only be relevant to whatever permission, is in fact granted and can have no relevance of any kind to what is contained in the application. To hold otherwise would simply allow any applicant to get round the guidelines and the Direction in the SSP17 by restricting the request for car parking spaces to below the maximum parking standards, in the confident expectation that the local authority will then be free to apply its own standards to the proposed developments in substitution for the national standards. Such a situation would be wholly untenable and to apply the respondent's reasoning would make a nonsense of the system of guidelines and directions. The only way in which SSP17 can be realistically or properly applied is to the nature and content of the planning permission which is granted.

[18] Nor does it assist the respondent's case that the Reporter had regard to the availability of some measure of overspill parking in the petitioner's application. All that the Reporter was doing in taking note of the position was to indicate that the availability of additional on-street park could negate the spirit and intention of the maximum parking standards, and then to suggest that the local authority may require to take measures in order to avoid the consequences of that. In the present case, the respondent has specifically required as a condition of the grant of planning application that the applicants should allow unrestricted car parking throughout the remainder of the retail park car park which serves a number of other interests. In these circumstances, I find it difficult to understand how the respondent can argue that the car parking provision for the site which should be considered for the purposes of SSP17 and the Direction should be restricted to the small number of parking places adjacent to the bingo hall. It would seem to follow that had the additional unrestricted parking in the rest of the retail car park not been available, then planning permission would have been refused. In these circumstances, the attitude to the question of additional or overspill parking is merely an illustration of the unsoundness of the respondent's approach. It is quite plain that in ignoring the provisions of SSP17 the respondent acted beyond its proper powers.

[19] That the failure to observe the provisions and Direction of SSP17 is a material consideration in terms of any planning application can not be a matter of doubt. It is clear from the examination of NPPG17 that all such matters amount to material considerations. I do not understand that it was seriously suggested by the respondent here that this is not the case.

[20] Equally, I am satisfied that the failure to observe the provisions of SSP17 in the Teesmartin application must be regarded as a matter of material prejudice to the petitioner. The whole point of SSP17 is an attempt to constrain the uncontrolled and unrestricted availability of car parking spaces and thus discourage the use of cars as a method of transport to and from the bingo halls. It is implicit in this purpose that unless such constraints are in place then an inappropriate and excessive use of car travel will be made in respect of any particular development. SSP17 provides a clear indication that the Scottish Executive consider as a matter of national policy that this should not be so, and this in turn reflects the obvious fact that without such restraint, unrestricted access will be available to patrons of the Teesmartin bingo hall. It is clearly a matter of considerable significance, against that background, that one bingo hall should have unrestrained and unrestricted car parking access, while another nearby should be restricted to a particular number of car parking spaces within the national standards. In these circumstances, I have no difficulty in concluding that the petitioner is entitled to intimate their interest in the matter and to make their present claim.

[21] In conclusion it is clear that the respondent has acted ultra vires in failing to apply the provisions and direction of SSP17 to its grant of planning permission in respect of the Teesmartin application. It also acted improperly in failing to take into account the decision of the Reporter, acting on behalf of the Scottish Ministers, in the petitioner's application. In view of this serious irregularity of procedure, I am also satisfied that the petitioner has suffered prejudice as a result of the material considerations arising out of the respondent's failure. In these circumstances I propose to sustain the pleas-in-law for the petitioner and to grant the prayer of the present petition.