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Bell & Anor v. East Renfrewshire Council & Anor [2005] ScotCS CSOH_159 (22 November 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 159

OPINION OF R F MACDONALD QC

(Sitting as a Temporary Judge)

in the application to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997

ASHLEY BELL

Applicant

against

EAST RENFREWSHIRE COUNCIL

First Respondent

and

GEORGE WIMPY UK LIMITED

Second Respondent

and

CARVILL (SCOTLAND) LIMITED

Third Respondent

________________

Applicant: Sir Crispin Agnew of Lochnaw QC; Morton Fraser

First Respondent: D Armstrong; Shepherd & Wedderburn

Second and Third Respondents: Abercrombie QC, A L Stewart; Aitken Nairn

22 November 2005

Introduction
[1] This is an application by Ashley Bell to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) which has been remitted under Rule of Court 41.44 by the Inner House to the Outer House for a hearing. The applicant seeks the quashing of Policy T7, which relates to the development of a motorway service area (MSA) at or near the junction of the M77/GSO, in the local plan adopted by the first respondents, East Renfrewshire Council (ERC), on 19 November 2003. As there were different versions of policy T7 at different times it is necessary to distinguish between them. Although they are all referred to in the various documents as policy T7, I shall, in order to distinguish between them, refer to them respectively as policies T7/1, T7/2 and T7/3.

[2] Policy T7/1 appears in the finalised local plan dated 1 March 2001 (no 6/2/1 of process). Its terms are as follows:

Justification: This proposal is consistent with the Structure Plan and NPPG 9. Commercial interest has been shown in this general area but the Council will have to be convinced that the optimum location is arrived at which balances economic benefit with protecting the environment. The terms of Policy Strat2 will be applied in assessing proposals or options. Until such time as a MSA is developed, the terms of policy E2 will continue to be applied."

[3] Policy T7/2 (no 5/5 of process) was adopted following upon the decision of the Scottish Ministers to remove the opportunity for an MSA at the M77/GSO junction from the Glasgow and Clyde Valley Joint Structure Plan (the structure plan). It is in the following terms:

"The Council will support in principle the development of a Motorway Service Area (MSA) at or near the junction of the M77/GSO, as shown on the Proposals Map, provided that environmental and access requirements can be met. To ensure compliance with NPPG 9, the Scottish Executive as the Trunks Road Authority will be consulted on proposals for this facility.

Justification: The Council considers that there is an opportunity for a MSA at the junction of the M77/GSO. This policy acknowledges that the Scottish Executive as the Trunk Roads Authority requires to be consulted on this type of development. Outline planning permission has been granted for an MSA at Kingswell, East Ayrshire and the Council acknowledges that if this proposal receives all the necessary final approvals and is implemented, the development of a MSA at the M77/GSO junction will require particular justification in accordance with NPPG 9. Commercial interest has been shown in this general area but the Council will have to be convinced that the optimum location is arrived at which balances economic benefit with protecting the environment. The terms of Policy Strat2 will be applied in assessing proposals or options. Until such time as a MSA is developed, the terms of Policy E2 will continue to be applied."

[4] Policy T7/3 appeared in the adopted local plan (no 6/2/10 of process) following upon a recommendation by a reporter at a local inquiry who had considered the terms of policy T7/2. The terms of policy T7/3 are as follows:

"The Council will investigate the suitability of locating a Motorway Service Area (MSA) at or near the junction of the M77/GSO, as shown on the Proposals Map, as a possible alternative to the proposed MSA at Kingswell, East Ayrshire provided that environmental and access requirements can be met.

Justification: The Council considers that there is an opportunity for a MSA at the junction of the M77/GSO and that this location may be a preferable alternative to the proposed MSA at Kingswell. Outline planning permission has been granted for an MSA at Kingswell, East Ayrshire and the Council acknowledges the requirements of NPPG 9 that a new MSA, whether accessed directly from the motorway or via an Interchange, should not be less than 24 kilometres from the nearest existing MSA (or approved proposal for a new MSA).

This Policy acknowledges that the Scottish Executive as the Trunk Roads Authority requires to be consulted on this type of development. Commercial interest has been shown in this general area but the Council will have to be convinced that the optimum location is arrived at which balances economic benefit with protecting the environment. The terms of Policy Strat2 will be applied in assessing proposals or options. Until such time as a MSA is developed, the terms of Policy E2 will continue to be applied."

[5] The applicant is the owner of land at Kingswell, Ayrshire which has been granted outline planning permission for an MSA on the M77 extension, and which is less than 24 kilometres from the M77/GSO interchange. He maintains that policy T7/3 is contrary to the structure plan and National Planning Policy Guideline 9 (NPPG 9), which deals with the provision of roadside facilities and other trunk roads in Scotland, and that it is irrational in that inadequate reasons have been given by ERC for not following the recommendation of the reporter.

[6] Paragraph 8.27 of the structure plan states:

"Opportunities for motorway service areas exist at the locations listed in schedule 4(vi). In realising these opportunities, regard should be had to the guidance in NPPG 9, existing planning permissions, emerging road proposals, the impact of new facilities on the free and safe flow of traffic on the motorway, the need to safeguard the strategic locations identified in Schedules 5(b) and (d), and the important environmental considerations such as the Green Belt and the natural and built heritage".

The M77/GSO interchange did not feature among the locations listed in schedule 4(vi) as opportunities for motorway service areas, it having been removed by the Scottish Ministers.

[7] Paragraph 13 of NPPG 9, so far as relevant, states:

"The Secretary of State will rely on the planning authorities to formulate policies to permit and promote suitable developments in appropriate locations and on the private sector to lease and acquire sites. Following wide consultation it is now Government policy:

(a) to promote more MSAs while leaving it to the local authorities, public bodies and the private sector to identify opportunities, and to the private sector to acquire sites and seek consent from planning authorities;

(b) to require, in the interests of the free flow of motorway traffic and general road safety, that a new MSA, whether accessed directly from the motorway or via an interchange, should not be less than 24 kilometres from the nearest existing MSA (or approved proposal for a new MSA).

Issues of market demand and of planning and environmental policy will influence the practicable spacing in each case and particular justification will be required for any proposal with spacing below 24 kilometres."

Paragraph 17, so far as relevant, states:

"In general it would not be appropriate for service areas accessible to traffic in the same direction to be closer than 24 kilometres to each other and larger intervals may often be appropriate. However frequent (sic) queuing of vehicles on the approaches to existing service areas which cannot be expanded to cope with demand may justify a new service area closer than 24 kilometres to existing ones."

Paragraph 30 states:

"Structure Plan authorities should use these Policy Guidelines and the outcome of their discussions with developers, neighbouring authorities and National Roads Directorate to set out in alterations to their plans strategic policies for lengths of motorway and other trunk road (sic). These should

(a) indicate where on the motorway and other trunk road network there are opportunities for service areas;

(b) indicate which lengths of the trunk road network are constrained by environmental and other considerations;

(d) set out their strategies for enhancing and promoting the facilities in wayside and bypassed settlements to contributing to meeting the needs of travellers."

The first sentence of paragraph 31 states:

"Local plans should implement the structure plan strategy by identifying opportunities for joint public/private sector initiatives and specific sites within the general strategic locations to meet the detailed Policy Guidelines in this document."

The relevant statutory provisions
[8] Certain statutory provisions are relevant to the determination of this application. The provision governing the application is section 238 of the 1997 Act, which, so far as relevant, provides:

"(1) If any person aggrieved by a structure plan or a local plan or by any alteration, repeal or replacement of any such plan desires to question the validity of the plan, or as the case may be, the alteration, repeal or replacement, on the ground -

(a) that it is not within the powers conferred by Part II, or

(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan or, as the case may be, its alteration, repeal or replacement,

he may make an application to the Court of Session under this section.

(2) On any application under this section the Court of Session - .....

(b) if satisfied that the plan, or, as the case may be, the alteration, repeal or replacement is wholly or to any extent outwith 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 or of any regulations made under it, may wholly or in part quash the plan, or, as the case may be, the alteration, repeal or replacement either generally or in so far as it affects any property of the applicant."

Section 11 of the 1997 Act deals with the preparation of local plans. Section 11(5) provides:

"In formulating their proposals in a local plan the planning authority -

(a) shall have regard to any information and any other considerations which appear to them to be relevant and which may be prescribed, and

(b) shall secure that the local plan conforms generally to the structure plan, as it stands for the time being, whether or not it has been approved by the Scottish Ministers".

Section 17(3) of the 1997 Act, which deals with adoption of proposals, provides:

"Where the Scottish Ministers have, under section 10, approved a structure plan for any area the planning authority shall not adopt any plan or proposals which do not conform to that structure plan".

[9] Regulation 35 of the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 (SI 1983 No 1950) deals with the report of a local inquiry or other hearing into objections to a local plan. Regulation 35(1) provides:

"Where, for the purpose of considering objections duly made to a local plan, a local inquiry or other hearing has been held, the planning authority who prepared the plan shall, as part of the consideration of the objections, consider the report of the person appointed to hold the inquiry or hearing and decide whether or not to take any action as respects the plan in the light of the report and each recommendation, if any, contained therein; and the authority shall prepare a statement of their decisions, giving reasons therefor."

Submission for the applicant
[10] Sir Crispin Agnew of Lochnaw for the applicant prefaced his submission by mentioning two general points. The first was that what had happened since the adoption of the local plan by ERC was irrelevant. The second was that the conditional planning permission in favour of the second and third respondents was subject to a pending judicial review at the instance of Kingswell Developments Limited.

[11] Sir Crispin then stated that the applicant had outline planning permission for an MSA on the proposed M77 at Kingswell in East Ayrshire, about 8 kilometres from the M77/GSO interchange. The structure plan originally had an opportunity for an MSA at that junction, but it was taken out of the final structure plan. The finalised local plan had been the subject of an inquiry, but because of the change to the structure plan, it was modified before the inquiry by acceptance that the opportunity for an MSA at the M77/GSO interchange was no longer consistent with the structure plan (policy T7/2). In a report dated 6 June 2002 (no 5/6 of process) to ERC the Director of Environment stated at paragraph 3 that the main issue for the council concerned the proposal in the finalised local plan for an MSA at the M77/GSO junction as the decision of the Scottish Ministers in approving the structure plan to delete reference to an MSA at the M77/GSO junction meant that that the council needed to consider its response to this. He advised that the council could either seek to delete all reference in the local plan to an MSA development opportunity or put forward to the inquiry reporter proposals to change policy T7/1. At paragraphs 5, 6 and 7 he stated as follows:

"5. The most important change is that modification 19 no longer identifies an opportunity for a Motorway Service Area (MSA) on the M77. The Ministers' reason for this is 'to reflect the guidance contained in NPPG 9'. This guidance seeks to restrict new MSA's (sic) within 24 kilometres (15 miles) from an existing or approved MSA. In this respect the Ministers' (sic) appear to have taken into account that outline planning permission has now been granted for an MSA at Kingswell, East Ayrshire.

6. The Finalised East Renfrewshire Local Plan, Policy T7, supports the development of a MSA in the vicinity of the junction of the M77/GSO. The justification for Policy T7 cites the previous Structure Plan as support for this development. This is no longer the case, and the Local Plan requires to be modified to reflect this changed position. Nevertheless, I would continue to support the construction of an MSA at the M77/GSO junction and the Council is currently in receipt of two outline planning applications for such a proposal. One of these applications is awaiting formal registration pending the receipt of further information. Both applicants have recently confirmed their intention to proceed with their applications following the Ministers' decision. Although outline planning permission has been granted by East Ayrshire Council for a MSA at Kingswell, all the other approvals required for this development are not in place and indeed, (sic) the final approvals of the Scottish Executive as the Trunk Roads Authority have not been given. Consequently, it is considered that the opportunity for an MSA at the M77/GSO junction remains and that the final decision on the optimum location for this facility continues to lie within the control of the Scottish Executive.

7. In these circumstances it would be premature to abolish Policy T7 in its entirety and it is therefore considered that the policy should be realigned to reflect the changed circumstances that the Structure Plan now presents. Appendix 1 shows the proposed changes to this Policy."

At paragraph 12(ii) the Director recommended that the Executive of the council should "approve the proposed modification to Policy T7 and the accompanying justification, to be commended to the Reporter at the PLI".

[12] Sir Crispin then turned to consider certain parts of the structure plan. The last paragraph of the introduction stated that it became operative on 1 May 2002 and that the modifications to it by Scottish Ministers, in light of representations and objections that they received, had been incorporated into the reprint of the plan. Paragraph 7.22, dealing with the designation of the Green Belt (within which the M77/GSO junction lay) stated the objectives of the Green Belt. Strategic Policy 4, incorporating Schedule 4(vi), set out opportunities for MSAs, but these did not include the M77/GSO junction. If a site was not included within those opportunities, it meant that it was not an appropriate site for an MSA: the only appropriate sites for MSAs were those specified in Schedule 4(vi). An application for an MSA at another site would be contrary to the structure plan, although that did not mean that it could not be granted. This point lay at the heart of the first point taken in the application. Development proposals in areas not identified in the structure plan were not in accordance with the structure plan. Reference was made to paragraphs 14.2 - 14.4 of the structure plan. Nothing in NPPG 9 suggested that where the structure plan identified a specific strategic location the local plan could identify other opportunities within it. In summary, what had happened here was that ERC had issued a local plan, the finalised structure plan had then taken out the opportunity at the M77/GSO junction and ERC had then modified policy T7/1 to go to the local inquiry as policy T7/2.

[13] The reporter's recommendations on Policy T7/2 were contained in no 5/4 of process. ERC had submitted to the reporter (at paragraph 81.19) that it was clear that the terms of the structure plan did not preclude the identification of a potential opportunity for an MSA on the M77 south of Glasgow, but that was wrong because the identification of certain opportunities in the structure plan precluded the identification of any other opportunities. The reporter summarised his recommendations at paragraphs 81.46 - 81.48 as follows:

"81.46 Policy T7 and the reference to this on the proposals map should be deleted from the local plan.

81.47 In the event that the council decides to retain policy T7, it should be further modified with text in similar terms to the following:

'The council will investigate the suitability of locating a MSA at or near the junction of the M77/GSO, as shown on the proposals map, as a possible alternative to the proposed MSA at Kingswell, East Ayrshire provided that .....'.

In addition the reasoned justification should be revised to clarify that the investigation would be in respect of an alternative to, rather than an addition to, the proposed MSA at Kingswell, in (sic) East Ayrshire.

81.48 No proposal for a specific site for a MSA should be included within the local plan or shown on the proposals map."

The reporter was there saying that policy T7/2 did not conform to the structure plan and that was why it should be taken out. The evidence of the suitability of an MSA at the junction did not outweigh his recommendation.

[14] ERC responded to the reporter's recommendation in their Statement of Responses and Decisions on Reporter's Recommendations (no 5/3 of process). So far as recommendation 116 contained in paragraph 81.46 was concerned they stated:

"The Council is in receipt of two applications for planning permission for a MSA at the junction of the M77/GSO. It considers that this junction continues to offer a potential alternative location to the site at Kingswell in East Ayrshire that has outline planning permission for a MSA."

So far as recommendations 117 and 118, contained in paragraphs 81.46 and 81.47, are concerned, they responded as follows:

"Recommendations 117 and 118 would allow the Council to retain Policy T7 with minor modifications that reflect its position and it therefore rejects Recommendation 116 and accepts Recommendations 117 and 118."

[15] The justification, Sir Crispin submitted, should have provided reasons for not following the reporter's primary recommendation to delete policy T7/2. ERC's response had essentially ignored the reporter's recommendation that policy T7/2 should be deleted as it was inconsistent with the structure plan. In their modification of policy T7/1 ERC had deleted the sentence "This proposal is consistent with the Structure Plan and NPPG 9". There was no explanation for departing from the reporter's recommendation. One saw throughout the papers a complete disregard of the reporter's recommendation. ERC sought to justify only the alternative course recommended by the reporter and gave no justification for not adopting the primary course recommended by him. What they had to justify was why they were including a policy T7 at all. Their response to recommendation 116, that policy T7/2 should be deleted, did not deal with the point at all. They ought to have considered the reporter's recommendation that policy T7/2 was not conform to the structure plan. The suitability of the location did not provide an answer. They had totally side-stepped the problem arising from the terms of the structure plan. Sir Crispin adopted as part of his submission the objection by the applicant to the modifications (no 6/2/8 of process). If policy T7/3 was not in conformity with the structure plan then the council were not entitled to adopt it in the local plan. All that the council had done was to adopt the reporter's alternative recommendation and seek to justify that. In their Statement of Responses and Decisions on Objections to New Proposed Modifications (no 6/1/4 of process) the council had again totally dodged the issue. What they said did not add to their Statement of Responses to the reporter's recommendations in no. 5/3 of process. They added: "The Council is entitled to come to the view that it has and to implement the latter Recommendations of the Reporter". Following a referral to the Scottish Ministers because it was not in accordance with the structure plan and a decision by the Scottish Ministers not to issue a direction (no 6/1/3 of process), the local plan was adopted by ERC on 19 November 2003 (no 6/2/10 of process).

[16] On 8 June 2004 the second and third respondents obtained conditional planning permission from ERC for the development of an MSA at the M77/GSO junction (no 6/2/14 of process). This was referred to the Scottish Ministers as it was inconsistent with the structure plan (no 5/11 of process). On 18 March 2005 the applicant obtained approval of reserved matters (no 5/9 of process).

[17] Sir Crispin then turned to consider the grounds of the application and the relevant statutory provisions set out above. He submitted that section 17(3) of the 1997 Act required that a local plan conform to a structure plan. In this case Strategic Policy 4 of the structure plan identified the lengths of road suitable for opportunities for MSAs. ERC was one of the councils which had participated in the preparation of the structure plan. The whole purpose of having a structure plan was so that planning authorities could get together to decide what land should be designated for what purpose. The local plan then set about identifying sites with greater particularity, but not those identified in the structure plan. The same approach applied to NPPG 9, paragraphs 29 and 30. The principle of statutory interpretation expressio unius est exclusio alterius applied. The opportunities identified in Schedule 4(vi) of the structure plan were definitive and exclusive. Policy T7/3 of the local plan in this case breached section 17(3) of the 1997 Act, irrespective of the position at Kingswell. Reference was made to University of Leeds v Leeds City Council [2002] EWHC 738 (Admin) per Richards J at paragraph 26 and R v Derbyshire County Council ex parte Woods [1998] Env LR 277 where Brooke LJ stated at p 290:

"If there is a dispute about the meaning of words contained in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment [1992] 1 PLR 81, per Nolan LJ at p 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law."

Here there was no mention in the structure plan of further opportunities. Nothing was left to the local plans as it was all in the structure plan, which should be read in relation to NPPG 9, from which it arose. The construction proposed by the applicant was also consistent with the deletion of an MSA at the M77/GSO junction which had been made from the structure plan.