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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Land Securities Group Plc, Re Judicial Review Of A Decision [2005] ScotCS CSOH_116 (19 August 2005)
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Cite as: [2005] CSOH 116, [2005] ScotCS CSOH_116
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Land Securities Group Plc, Re Judicial Review Of A Decision [2005] ScotCS CSOH_116 (19 August 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 116 |
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P987/05
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OPINION OF LORD HODGE in the petition of LAND SECURITIES GROUP PLC Petitioners; for Judicial Review of a decision of North Lanarkshire Council taken on 11 May 2005 to issue outline planning permission for a mixed use development at Ravenscraig which was granted on 10 April 2003
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Petitioners: Currie, QC, Smith; Semple Fraser
Respondents: Davidson, QC, Wolffe; Campbell Smith, WS
19 August 2005
[1] In this judicial review the Petitioners, which have invested in retail development in East Kilbride town centre, challenge the validity of a decision of North Lanarkshire Council ("the Respondents") taken on 11 May 2005 to issue outline planning permission for a mixed use development at the former steelworks site at Ravenscraig. The Petitioners seek a declarator that the decision is ultra vires and reduction of the decision.Background
[2] Ravenscraig Limited submitted a planning application on 28 June 2001 seeking outline planning permission for a mixed use development comprising up to 3,500 new dwellings, primary schools, up to 216,000 square metres of business, industrial, storage and distribution uses, and a town centre with up to 57,600 square metres of Class 1 retail floor space together with offices, leisure and hotel facilities, parkland areas, new roads, bus facilities and a new rail station. The Petitioners objected to the proposal, arguing that the retail element of the proposal was contrary to National Planning Policy Guideline 8: Town Centres and Retailing - revised 1998 ("NPPG 8") and the Glasgow and Clyde Valley Structure Plan 2000 ("the GCVSP"). [3] On 10 April 2003 the Respondents' Planning and Environment Committee resolved to grant planning permission to Ravenscraig Limited subject to, among other things, the approval by the Scottish Ministers of the proposed First Alteration to the GCVSP ("the First Alteration") which the Structure Plan Joint Committee had agreed on 26 March 2003. The proposed First Alteration sought to amend the GCVSP to support the development of a new town centre at Ravenscraig, including additional retail floor space. The Director of Planning and Environment, in his report on the application for the 10 April 2003 meeting, recognised that the retail element of the proposal was contrary to the (unaltered) GCVSP and NPPG 8 and that the approval by the Scottish Ministers of the First Alteration was necessary before permission could be granted. [4] The proposed First Alteration made changes to the GCVSP to facilitate the grant of planning permission for the provision of 30,000 square metres of comparison goods retail floor space at Ravenscraig by designating the derelict site as a town centre in the GCVSP. The Petitioners submitted objections to the Scottish Ministers in relation to those changes. By letter dated 24 November 2003 the Scottish Ministers approved the First Alteration and on 26 November 2003 decided not to call in the planning application. [5] The Petitioners appealed to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997 against the decision of the Scottish Ministers to approve the First Alteration of the GCVSP. In that appeal the Petitioners argued that the Scottish Ministers had acted unreasonably in reaching the decision, that the decision was illogical and perverse and that the Scottish Ministers had failed to have proper regard to the terms of NPPG 8. [6] On 3 March 2004 the Respondents resolved to issue the planning permission while the Petitioners' statutory appeal was pending before the Inner House of the Court of Session. In response, the Petitioners and The Standard Life Assurance Company, which had invested in Hamilton town centre and had also objected to the Ravenscraig planning application, raised proceedings for judicial review of the decision. On 29 July 2004, the Lord Ordinary, Lord Carloway, declared the Respondents' decision to issue the planning permission ultra vires, reduced the decision and interdicted the Respondents from issuing the planning permission in pursuance of the 3 March 2004 decision. As Lord Carloway's reasoning appears to have informed the subsequent actions of the Respondents, I discuss that reasoning more fully in paragraphs 9 and 10 below. [7] An Extra Division of the Inner House of the Court of Session heard the Petitioners' statutory appeal, to which I referred in paragraph 5 above, and on 30 March 2005 issued their unanimous decision refusing the appeal. After taking advice of both solicitors and counsel the Petitioners decided to appeal to the House of Lords. The Petitioners' solicitors informed the Respondents' Head of Legal Services, Mr Kilgour, that they were pursuing the appeal to the House of Lords. Mr Kilgour informed the Petitioners' solicitors that the Respondents' Planning Department had prepared a report for a meeting of the Planning and Environment Committee on 11 May 2005, which recommended the Respondents to issue the outline planning permission for the Ravenscraig development. In that report, the final version of which was dated 5 May 2005, the Director of Administration recorded that Mr Kilgour had consulted Mr Malcolm Thomson QC to examine the Inner House's judgments and stated that the legal advice to the committee was that the Petitioners had no reasonable prospects of success if they were to appeal to the House of Lords. By letter dated 9 May 2005 the Petitioners' solicitors challenged the legal advice which was recorded in the report, stating that the Petitioners had obtained the advice of senior counsel and arguing that the House of Lords appeal had a reasonable prospect of succeeding. [8] At the Planning and Environment Committee meeting on 11 May 2005 the committee considered the report by the Director of Administration dated 5 May 2005 which among other things advised the committee of the factual background to the application, the alteration of the GCVSP and the decision of the Inner House. The report advised the committee that the existence of the Petitioners' rights of appeal to the House of Lords and the prospects of success of that appeal were a material planning consideration which required to be taken into account in reaching a decision on the issue of the planning permission. The report also contained the legal advice summarised in paragraph 7 above. Mr Kilgour also informed the committee of the letter from the Petitioners' solicitors referred to in paragraph 7 above and advised that the Petitioners were likely to apply for judicial review of a decision to issue the planning permission. The committee in deciding to issue the planning permission noted and accepted the legal advice that the appeal to the House of Lords would have no reasonable prospects of success. It is this decision that the Petitioners now challenge.Lord Carloway's decision
[9] In granting the remedies sought by The Standard Life Assurance Company and the Petitioners in the judicial review referred to in paragraph 6 above, Lord Carloway considered submissions by parties in relation to the relevance of the outcome of a pending appeal to a decision whether to grant planning permission where the appeal either related to a duplicate or substantially similar planning application or dealt with an issue, such as the alteration of the GCVSP, which was an essential precondition to the grant of planning permission. The Petitioners in that judicial review submitted that the Respondents were bound to await the outcome of the statutory appeals against the decision of the Scottish Ministers to alter the GCVSP before issuing the planning permission, in the absence of legal advice that the appeals had no prospects of success. The Respondents submitted that a planning authority was not barred from taking a decision merely because the outcome of an incomplete legal process might have a material bearing on that decision. It depended on the whole circumstances of the case. In this matter counsel for the parties referred Lord Carloway to James Aitken & Sons (Meat Producers) v City of Edinburgh District Council 1990 SLT 241, Trusthouse Forte (UK) Ltd v Perth and Kinross District Council 1990 SLT 737 and Bett Properties Ltd v The Scottish Ministers 2001 SC 238. [10] Lord Carloway held that the decision of the Scottish Ministers to alter the GCVSP was of critical importance to the Respondents' decision to issue planning permission to the Ravenscraig development. In my respectful opinion this is undoubtedly the case and the Respondents did not seek to argue otherwise in the present application. He also held, and this also the Respondents did not dispute in the present application, that the existence of the statutory appeals was a material consideration to be taken into account in deciding whether to issue the planning permission. The issue, he stated, was whether, in deciding an application without waiting for an appellate or other judicial determination, the outcome of which might materially affect the decision, the planning authority had acted in an unreasonable manner. Because the alteration of the GCVSP was the crucial element in any decision on the planning application, he held (in paragraph [22] of his opinion) that"[t]he 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."
The Respondents have picked up Lord Carloway's words in this passage and have sought to apply them in relation to the appeal to the House of Lords in the report dated 5 May 2005 and in reaching the decision which is impugned in this judicial review.
A preliminary dispute
[11] At the outset of the hearing an issue arose as to whether the legal advice which the Respondents' Director of Administration recorded in his report of 5 May 2005 was advice received from Mr Malcolm Thomson QC or from Mr Kilgour. I was shown an affidavit by Mr Kenneth Carruthers, who is an experienced planning lawyer acting for the Petitioners, in which he narrated an informal discussion which he had had with Mr Kilgour from which he inferred that the legal advice was that of Mr Kilgour and not senior counsel. As a result Mr Davidson QC lodged affidavits by Mr Thomson QC and Mr Kilgour and also informal manuscript notes of a consultation held on 7 April 2005. From those documents it appears that Mr Thomson did not state his view on the prospects of success of the House of Lords appeal at the consultation but that, by agreement with Mr Kilgour, he reviewed the draft report which became the report dated 5 May 2005 and agreed with the legal advice which it contained. Mr Thomson also stated in his affidavit that he had been sent a copy of the Petitioners' solicitors' letter dated 6 May 2005 and that he had advised that its contents had not persuaded him to change his opinion.Submissions
[12] Mr Currie QC for the Petitioners explained that the principal issue which the Petitioners sought to argue in the House of Lords was that, because the proposed town centre at Ravenscraig did not yet exist in any form, the current planning policy of the Scottish Ministers which is articulated in NPPG 8 and which seeks to protect the vitality and viability of existing town centres from competition from new retail developments located outside those centres could not apply to protect the proposed Ravenscraig development. It was thus perverse of the Scottish Ministers to include Ravenscraig in Schedule 1(a) of the GCVSP which was a schedule listing the existing town centres which structure plan and local plan policies were to protect. He submitted, first, that in this case the outcome of the appeal to the House of Lords was a material consideration in any decision to issue planning permission for the Ravenscraig development, unless the Respondents could properly be satisfied that the appeal was a mere device to delay the development. He submitted that Lord Dervaird was correct in holding in James Aitken (above) that the outcome of the appeal was the material consideration. In so far as Lord Kirkwood decided otherwise in Trusthouse Forte (above) by having regard to the timing of the appeal, he proceeded on an erroneous concession by the petitioners in that case and Lord Dervaird's view should be preferred. Mr Currie also referred to Lord MacLean's opinion in Henderson v Argyll and Bute Council 1998 SLT 1224, which concerned two materially different planning applications, thus the point did not arise. The present case was different from all the cases which dealt with duplicate applications and planning appeals because there was a formal legal connection between the House of Lords' decision on the alteration of the GCVSP and the decision to grant planning permission. That made the outcome of the House of Lords appeal a material consideration. Only if the Respondents were able to be satisfied that the appeal was an abuse of process could they properly grant the planning permission without awaiting the outcome of the appeal. [13] If that were not correct, he submitted, secondly, as a fall-back that Lord Carloway's approach, which followed that of Lord MacFadyen in Bett Properties (above), was correct and that the Respondents' decision was vitiated by an erroneous understanding that the Petitioners' appeal to the House of Lords had no reasonable prospects of success. He referred to various passages in NPPG 8, the GCVSP and the First Alteration in support of his contentions that the whole thrust of government policy and structure plan policy was to protect existing town centres and that it was perverse and unreasonable for the Scottish Ministers to insert a non-existent town centre into Schedule 1(a) of the GCVSP. The Petitioners thus had good arguments to present to the House of Lords on the proper interpretation of those documents. He cited Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, City of Edinburgh District Council v Secretary of State for Scotland 1998 SC (HL) 33 on the scope of judicial review and City of Edinburgh Council v The Scottish Ministers 2001 SC 957 in relation to the interpretation of policy documents. The Respondents' decision was invalidated because they proceeded on a material error of law in acting on incorrect legal advice. As to the meaning of the phrase "no reasonable prospects of success", he submitted that in the context of a House of Lords appeal the phrase meant that no responsible counsel or solicitor advocate would sign the petition of appeal; one had to exclude any realistic possibility of the appeal succeeding. He referred me to Butt v City of Bradford MDC [2003] WL 23571029 and De Sol v France (2002) 35 EHRR 38. In summary, as the Petitioners were raising a serious issue for determination by the House of Lords and had perfectly respectable arguments to submit, the Respondents' decision was unreasonable. Separately, the decision was vitiated by an error of law, namely that the Petitioners' appeal had no reasonable prospects of success. [14] Thirdly and finally, he submitted that the Respondents' decision was vitiated by their misapprehension that senior counsel had advised that the appeal had no reasonable prospects of success. [15] Mr Davidson for the Respondents did not address me on the correct interpretation of NPPG 8 and the GCVSP but confined his submissions to a brief response to each of the Petitioners' three arguments. On the first, that the outcome of the appeal was a material consideration, he submitted that in James Aitken (above) Lord Dervaird was dealing with a particular set of facts where the planning authority asserted that they had had regard to the appeal, rather than enunciating a general proposition. Neither Trusthouse Forte (above) nor Pickering v Kyle & Carrick DC unreported, 20 December 1990 (Lord Penrose) supported Lord Dervaird's approach as a general proposition. The correct test was that articulated by Lord MacFadyen in Bett Properties (above) (in paragraph 33), namely whether the planning authority acted reasonably in all the circumstances of the case. In relation to the Petitioners' second submission, he examined the report of 5 May 2005 and submitted that the Respondents had taken account of the relevant circumstances, including the House of Lords appeal and the legal advice given to them on the prospects of that appeal succeeding. The Respondents had the unanimous opinions of the Inner House and their own legal advice on the prospects of success of the appeal to the House of Lords. They also knew that their legal advisers had considered the representations of the Petitioners' solicitors in their letter of 9 May 2005 and that those representations had not caused their advisers to change their opinions. In the circumstances the Respondents had acted reasonably. He submitted that there was no authoritative guidance on the meaning of the phrase "no reasonable prospects of success" in this context. The concept of "a reasonable prospect of success" was not addressing a risk/reward ratio but was an assessment of the chance of success of a legal argument or of establishing certain facts in evidence. A case could be capable of statement and properly stated but still have no reasonable prospects of success. [16] In relation to the argument that the legal advice which the Respondents received was erroneous and amounted to a material misdirection in law, he submitted that for the Petitioners to succeed in the House of Lords they had to surmount one of two hurdles. First, they would have to show that the interpretation which the Scottish Ministers placed on NPPG 8 and the GCVSP was unreasonable or perverse. If the words of a policy document were capable of more than one meaning and a decision maker in interpreting those words gave them a meaning which the words were capable of bearing, there would be no error of law: City of Edinburgh Council v The Scottish Ministers (above), Lord Kirkwood at paragraph 13. Secondly and alternatively, the Petitioners could argue that that approach to interpretation was incorrect and seek to develop the law by submitting that the courts should determine the exclusively correct meaning of a policy document and hold that any other interpretation amounted to an error of law. This would involve persuading the House of Lords to make new law. [17] On the third argument, Mr Davidson submitted that having regard to Mr Thomson QC's and Mr Kilgour's affidavits, the Respondents were under no misapprehension as to senior counsel's opinion as Mr Thomson was of the view that the appeal had no reasonable prospects of success.Discussion
[18] It was not disputed that the validity of the First Alteration of the GCVSP is fundamental to the validity of the planning permission which the Respondents have decided to issue. At the time of the decision to issue the planning permission the Alteration was valid, as an appeal under section 238 of the 1997 Act does not suspend the decision against which the appeal is made. But if the House of Lords were to decide that the decision of the Scottish Ministers to alter the GCVSP was a nullity, the decision to issue the planning permission would be open to challenge as having been based on a material error of law which went to the root of the question for determination. It may be possible that the Respondents could nevertheless defend the decision to issue the planning permission on the basis that the development passed the sequential test, as the Respondents' Director of Administration recorded in paragraph 4.2 of the report of 5 May 2005. But as I have not been addressed on that point I proceed on the basis that absent a valid Alteration, the decision to issue could not stand. [19] The central questions therefore are (i) whether the Respondents required as a matter of law to await the outcome of the House of Lords appeal before issuing the planning permission and (ii) if not, whether the Respondents acted unreasonably or upon a material error of law in making the decision. Having regard to the affidavits by Mr Thomson and Mr Kilgour, I am satisfied that the Petitioners' third ground of challenge is unsound as senior counsel was of the view that the appeal had no reasonable prospects of success (see paragraph 11 above). I therefore say no more about that ground. [20] I do not consider that there is any general rule that a planning authority must in all circumstances await the final outcome of an appeal or legal challenge which impacts materially on the decision which it has to make. Such a rule would introduce rigidity and long delays into the administration of land use planning. As many planning decisions have significant financial consequences for landowners and parties who have invested or propose to invest in the development of land, it is not surprising that such persons quite properly mount legal challenges to decisions by planning authorities which adversely affect their interests. If development had to await the decision of the final court to which a challenger could have recourse, it would be possible for a party with an adverse interest and a stateable challenge to delay for many years a development which was in the public interest. [21] I am not required by the authorities to hold that there is any such general rule. In James Aitken & Sons (above), Lord Dervaird founded on the concession by the planning authority that it had regard as a material consideration to the fact that the issue of the principle of development of the site in question was before the Secretary of State for his consideration, holding that the appeal to the Secretary of State could be a material consideration only if the outcome was material to the Council's deliberations. Accordingly he held that the Council had acted unreasonably in determining the second planning application in the knowledge that a material matter was not yet available for their consideration. However Lord Dervaird also held that it was not incompetent for the local planning authority to determine a second application which dealt with the same issue as was before the Secretary of State on appeal. As the local planning authority would in most circumstances have been aware of the appeal when determining the second application, it appears to me that it was the local planning authority's concession which gave rise to the outcome in that case. In any event, Lord Dervaird's reasoning does not in my opinion support the existence of a general rule that the outcome of an such an appeal is a relevant consideration for the planning authority so that the decision to grant planning permission must await the determination of the appeal. [22] If I am wrong in this regard then I would respectfully decline to follow James Aitken & Sons. Lord MacLean's decision in Henderson turned on his finding that the two applications were materially different. The other cases, Trusthouse Forte, Pickering, and Bett Properties, do not support the existence of such a general rule. In each of these cases, the court looked at circumstances beyond the mere existence of an appeal in assessing whether the decision of the local planning authority to grant planning permission was reasonable. I agree with Lord MacFadyen and Lord Carloway that the issue is one of the reasonableness of the planning authority's decision in all the circumstances of the particular case and that those circumstances include but are not confined to the existence of the appeal or legal challenge and the possible outcomes of the appeal or judicial process. It seems to me that (i) the stage reached in the other process, (ii) the timescale for the determination of the process, (iii) the centrality or otherwise of the issue to be determined in that process to the decision whether or not to issue the planning permission under consideration, (iv) the assessment of the prospects of success of the challenge in that process and (v) the consequences of the determination in that process for the validity of the planning permission are all relevant considerations. I therefore reject the Petitioners' first submission. [23] I turn to the Petitioners' second submission, namely that the Respondents acted unreasonably and separately under a material error of law in deciding to issue the planning permission on the basis that the House of Lords appeal had no reasonable prospects of success. It appears to me that, having regard to the centrality of the validity of the First Alteration to the decision whether to issue the planning permission, the Respondents had to satisfy themselves on competent legal advice that the appeal did not have good prospects of success. Otherwise the Respondents would be issuing a permission which would probably be nullified in a subsequent judicial review and would result in the developers, the Respondents and perhaps others having incurred wasted expenditure. The developers would be aware of the appeal and the risk that they would be prevented from developing the site if the appeal succeeded. The Respondents also would be aware of that risk and the prospect of wasted public expenditure. In those circumstances I consider that the Respondents would have acted unreasonably in the Wednesbury sense if they had issued the permission in the knowledge that the appeal was more likely than not to succeed. [24] The Respondents relied on Lord Carloway's formulation and treated the relevant test as being whether they were satisfied that the appeals had no reasonable prospects of success. This phrase is of course not a statutory formula in this context nor is it a precise formula. Litigation is uncertain and counsel often give opinions on whether a case has reasonable prospects of success without defining the meaning of the phrase. I agree with Mr Davidson that the concept does not involve a risk/benefit assessment but (in the context of an appeal) is rather an assessment of the prospects of a legal argument being upheld by the court. Beyond that I am not aware that there is any consensus among court practitioners as to the precise meaning of "reasonable prospects of success" and the related phrase, "no reasonable prospects of success". [25] I derive only limited assistance from the cases cited to me. Butt v City of Bradford MDC (above) was a decision of the Employment Appeals Tribunal against a decision of an Employment Tribunal to strike out a case on the basis that it was misconceived. In terms of the relevant statutory regulations "misconceived" includes having no reasonable prospect of success. In that context the EAT equated "no reasonable prospects of success" with the conclusion that a case was "bound to fail". De Sol v France (above) is a decision of the European Court of Human Rights on a complaint under Article 6(1) of the Convention concerning a refusal of legal aid to allow the complainer to pursue her appeal to the Cour de Cassation. The relevant French law provided that an applicant must be refused legal aid if no arguable ground of appeal could be made out. The European Court held that the refusal of legal aid did not infringe the applicant's Article 6(1) rights as the law met a legitimate concern that public money should be made available only to applicants for legal aid whose appeals to the Cour de Cassation had "reasonable prospects of success". It did not however seek to define that phrase. [26] While a case which is bound to fail or an appeal where no arguable ground of appeal can be made out are processes where the claimant or appellant has no reasonable prospects of success, it does not follow that the concept when used by counsel in advising clients is confined to such hopeless causes. Assessing the prospects of success in litigation is an art and because of the uncertainties of litigation the assessment is usually imprecise. Lawyers may have different views as to the meaning of the phrase "reasonable prospects of success". I interpret the phrase as meaning that the chances of success are in excess of fifty per cent or at worst are somewhere in a range not far from fifty per cent. In my opinion the phrase "no reasonable prospects of success" has a stronger meaning than merely that the prospects are not reasonable in the sense which I have described. To me it means that there is a considerably lower chance of success ranging from an assessment that a case is bound to fail to a one in four or, at most, a one in three chance of success. [27] There may be cases where a decision to grant a planning permission would have such irreversible consequences that it would not be reasonable for a planning authority to issue the planning permission in the face of an appeal even when satisfied that the appeal had no reasonable prospects of success in the sense in which I have used the phrase. I do not think that this is such a case. [28] Against that background I am not persuaded that the Respondents acted unreasonably in accepting the legal advice from senior counsel that the House of Lords appeal had no reasonable prospects of success. I do not doubt that the appeal may properly be stated and that the Petitioners may advance cogent arguments that the thrust of government policy in NPPG 8 is to protect existing town centres in contrast to for example government policy until the 1970s which favoured new towns and policy in the 1980s which favoured new forms of retail provision. I also accept that responsible counsel may properly present a petition of appeal and argue that the policy guidance in NPPG 8 militates against the creation of a completely new town centre where one did not exist before. It is also possible to detect some awkwardness in the application of structure plan policies when one inserts into Schedule 1(a) of the GCVSP a town centre which does not yet exist. But I do not know the grounds upon which the Petitioners may choose to advance their appeal. Nor do I know the Respondents' answer to those grounds. I note the authorities which were cited to the Inner House in the section 238 appeal (and which were provided to me) which support the view that the courts should not simply apply their own interpretation of policy documents, such as NPPGs, so as to reduce the decision of a decision maker who has adopted a different interpretation. Rather the courts should first determine whether the words of the policy document are capable of bearing a meaning, and only interfere with the decision if the decision maker's interpretation is one which the words cannot bear and is therefore perverse or wrong in law. See Freeport Leisure v West Lothian Council 1998 SC 215 (Second Division), R v Secretary of State for the Environment, Transport and the Regions, ex parte Tesco Stores Ltd [2000] JPL 686 (Keene J). See also the decision of the First Division in City of Edinburgh Council v The Scottish Ministers (above), (Lord Kirkwood at paragraph 13). While it is open to the House of Lords to disapprove of the line of authority which gives decision makers a margin of appreciation in the interpretation of policy documents, the Petitioners have not committed themselves to argue that the House of Lords should do so. [29] In these circumstances, a responsible senior counsel who has considerable experience in planning law has advised the Respondents that in his opinion the House of Lords appeal has no reasonable prospects of success. In so doing he has exercised his judgement in what is an imprecise art. A court exercising supervisory jurisdiction will rarely be in a position to conclude that such a judgement amounts to a material error of law. I do not reach that conclusion on the information before me. [30] The Petitioners' challenges to the decision fail. I therefore repel the first and second pleas in law for the Petitioners and dismiss the petition.