OUTER HOUSE, COURT OF SESSION
 CSOH 165
OPINION OF LORD GLENNIE
to the Court of
Session under the Town and Country Planning (
(FIRST) THE SCOTTISH MINISTERS and (SECOND) NORTH AYRSHIRE COUNCIL
A decision of the Scottish Ministers
Appellants: J. D. Campbell, Q.C.; Morisons
Respondents: Ms Crawford; Scottish Executive
18 October 2006
 This is an appeal by Lidl UK GmbH ("Lidl") from a decision of
the Scottish Ministers by their Reporter dated 9 March 2006, following a public
enquiry, to refuse planning permission for a Class 1 Retail Unit and associated
access, parking and landscaping at
 Before dealing with the substance of the appeal it is right to record a number of incidental matters. The Council refused Lidl's application for permission on three grounds. The Reporter decided that two of those grounds - to do with amenity and access arrangements - could not be supported. There is no challenge to this part of the decision and I therefore do not need to consider those grounds. Further, it was agreed before the Reporter, and before me, that certain of the policies relied upon by the Council in refusing permission now carried no weight, since they had been superseded by the North Ayrshire Local Plan ("the Local Plan") adopted, after the Council's refusal of permission, in November 2005. I therefore do not need to consider those policies. It was common ground that the application had to be determined in accordance with the Development Plan, that is to say the Structure Plan and the newly adopted Local Plan. It was agreed that nothing turned on the detailed terms of the Structure Plan. Finally, although the Council had held that the proposed development would be contrary to policies TC5 and A1 of the Local Plan, and the Reporter had also expressed his views on both policies, it was agreed that I need be concerned only with policy TC5. This was because Mr. Campbell QC, for Lidl, did not suggest that if he failed on policy TC5 he could in some way be saved by policy A1; and Ms. Crawford, who appeared for the Scottish Ministers, did not suggest that policy A1 provided an additional barrier to Lidl's application if Lidl succeeded on TC5.
The legal test in considering the appeal
 In moving the appeal on behalf of Lidl, Mr. Campbell QC argued that the decision of the Reporter was ultra vires. It was agreed by both counsel that that was the correct test in terms of s.239 of the Act. It was also agreed that the test would be satisfied if the Reporter's decision reflected a material error of law or was irrational or unreasonable in the Wednesbury sense: Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345. Ms. Crawford reminded me, under reference to cases such as City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, Cooper v Secretary of State for the Environment and Harlow District Council (1996) 71 P & CR 529 and Moray Council v Scottish Ministers (IH unreported, 14 July 2006) that the court should be slow to intervene in the decision made by the Reporter. I accept this. Not only is the assessment of the facts to be left to the decision maker but so also it is for him to judge the weight to be given in a particular case to the considerations set out in the policy documents to which he is required to have regard. His task is to apply the planning guidance in the relevant policies to the facts as found by him. That involves the exercise of his planning judgment. In most cases, the question whether something falls one side or another of the line is a question of fact and degree peculiarly within his province. The Reporter is not required to set out every matter which he considers relevant to his decision, nor address every argument. The court will not indulge in a meticulous scrutiny of the decision letter but will look at it in a constructive and benevolent manner to see what he has decided, what were his reasons and what material was relied upon by him to come to his decisions. It will intervene only if the Reporter has given a word, an expression or a policy a meaning which it cannot possibly bear or has come to a conclusion which is unreasonable in the Wednesbury sense. The court is not concerned simply to substitute its own judgment for that of the Reporter.
The outline facts
 The facts relevant to this appeal are relatively
straightforward. Lidl have for some time
traded in the town centre at
Local Plan Policy TC5
"... Proposals for new retail ... developments ... outwith the town centre boundaries identified on the Local Plan Map shall not accord with the Local Plan, unless they can satisfy the following criteria:
(a) that no suitable sites are available, or can reasonably be made available, in or on the edge of existing town centres; and
(b) that the development would not adversely affect, either on its own or in association with other built or approved developments, the vitality and viability of the town centre; and
(c) that the development would tackle deficiencies in qualitative or quantitative terms which cannot be met in or at the edge of the town centre; or
(d) that the development comprises local shops permitted in terms of policy TC6; and
(e) that the development is well located in relation to access by public transport, cycle routes and on foot."
It will be noted that paras. (c) and (d) are alternatives. The remainder are cumulative. A proposal for a retail development outwith the town centre has to satisfy paras. (a), (b) and (e), and either (c) or (d). The Reporter decided that paras. (b) and (e) were satisfied but that (a), (c) and (d) were not. His decision that paras. (a), (c) and (d) were not satisfied is challenged by Lidl and it is to a consideration of this that I now turn.
TC5 para. (a)
 This paragraph of policy TC5 involves the sequential test, in terms of which town centre sites require to be considered before edge of centre or out of town sites: c.f. also NPPG8 paragraph 12. The material before the Reporter relevant to this paragraph, as summarised in the decision letter, was as follows. Lidl described having undertaken an exhaustive site selection process. They listed sites which had been considered as part of the sequential approach and concluded that there were no suitable town centre sites. The Council submitted that that process had not been sufficiently robust.
"As regards the first criterion relating to the sequential test, I consider that [Lidl] has satisfied the requirement for a search of potential sites within and on the edge of the town centre and has demonstrated that none exist which would accommodate the proposed development. While the council has challenged that search and cast doubts on its exhaustiveness, it has provided insufficient evidence to convince me that a more suitable alternative location exists and is available which could still accommodate the proposal. In that respect therefore, I am satisfied that no other site exists within or on the edge of the town centre to meet the requirements of the proposed development, other than [Lidl's] present site at Riverway Retail Park, an edge-of-centre site." [emphasis added]
The Reporter has, it seems, found in favour of Lidl and against the Council on the disputed issue between them of what alternative sites were available in the town centre; but has nonetheless found against Lidl on the footing that Lidl's own existing site should be taken into account and can accommodate the proposal.
 I was told by Mr. Campbell, and this is borne out by the Reporter's narration of the submissions for each party in the decision letter, that the Council never suggested at the Inquiry that Lidl's existing site could accommodate the proposal. It was the Reporter's own point, not foreshadowed by any questioning or comment by him at the Inquiry.
 For a Reporter to take a point of this kind and, in effect, decide the appeal on it, without giving the parties an opportunity of being heard, amounts in my opinion to a clear case of breach of natural justice. It is, of course, open to a Reporter to carry out unaccompanied site visits and to use his experience to assess this and other evidence: see e.g. Winchester City Council v Secretary of State for the Environment (1979) P & CR 1, Fairmount Investments Ltd v Secretary of State for the Environment  1 WLR 1255 at 1265F-H. In this respect, his position is not the same as that of a judge. But, as Lord Russell of Killowen said in Fairmount at 1265H, everything depends on the circumstances of the individual case. Parties are entitled to a fair crack of the whip. The decision of the Reporter on this point, which, if correct, was fatal to Lidl's appeal, was entirely unheralded. It was a matter on which Lidl would clearly have had a lot to say had they realised it was a live issue. They would have wished to emphasise the reasons why the existing site was not suitable for, or could not accommodate or meet the requirements of, the proposed development. Standing the submissions that they made, the Council might not have disputed Lidl's position on this point. The point was potentially so fundamental to the success or failure of Lidl's appeal against the Council's refusal of planning permission that the Reporter ought to have raised it with the parties. It was agreed by counsel before me that procedural unfairness of this sort could render the Reporter's decision ultra vires. If the outcome of this appeal had turned on it, I would have had no hesitation in quashing the decision on this ground.
 In coming to this view, I should make it clear that I do not accept Mr. Campbell's primary submission for Lidl that it was "absurd" and wrong in principle for the decision maker to have regard to the developer's existing premises when undertaking the sequential approach to site selection. I do not see why the existing site should not be relevant in principle. Lidl can be in no better a position than a third party developer who, in considering site options, would be expected to take the soon to be vacated Lidl site in the town centre into account. Mr. Campbell suggested that if a developer's existing site was to be taken into account as an available suitable site for the purpose of para. (a), that would, in effect, stymie attempts by retailers to re-locate to an out of centre site. I think this puts it too high. If the proposed new development is of a size and layout capable of being accommodated within the existing site, I see no reason why the existing site should not be taken into account as a possible available suitable site for the proposed development. But in practice that will, I suspect, seldom be the case. In the application with which this appeal is concerned it is not.
 In the course of argument, Mr. Campbell's submission shifted somewhat. He submitted that on the facts found by the Reporter, which were indisputable and undisputed before him, a decision that the existing site was suitable for the new development was irrational. I agree with that submission. It is clear from a number of paragraphs of the decision letter, for example paras. 4.9, 4.19 and 5.9, that the proposed development covers a significantly greater floor area than is available at the existing site. That was not in dispute. Clearly therefore, as a matter of fact, the existing site cannot accommodate the proposed development. Ms. Crawford accepted that a site would be "suitable" in terms of para. (a) of the policy only if it was suitable for, or could accommodate, the development as proposed by the developer. She agreed that there was no question of the person deciding the planning application (or appeal), the decision maker, being entitled to say "you do not need the whole of what you are proposing" or "if you cut out part of the proposed development, it could be made to fit a particular site". On this basis, I am unable to see how, consistently with a correct legal interpretation of what is meant by "suitable sites" as used in para. (a), the Reporter could have concluded that the existing site was suitable for, or could accommodate, the proposed new development. The proposed new development is simply too big for the existing site.
 Given that this fact was not in dispute between the parties to the Inquiry, and appears to have been accepted by the Reporter (see paragraph 5.9 of the decision letter), I can only assume that the Reporter failed to apply the correct legal test to which I have referred. I find some support for this view in paras. 5.7 and 5.9 of the decision letter. In those paragraphs the Reporter seems to question Lidl's "need" to re-locate, and suggests that some, though not all, of the aims sought to be achieved by the move - such as compliance with the Disability Discrimination legislation - could be achieved if Lidl remained at the existing site. Properly read, and even without the kind of meticulous analysis which one is abjured to avoid in this type of case, the Reporter appears there to be indicating that although Lidl will not get everything they want from the proposed development if they remain at the existing location, they will get much or most of it and should be content with that. If that was his approach, he erred in law. The question is whether the alternative town centre site, in this case the existing Lidl site, is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit into the alternative site. If that was not his approach, it is impossible to see how he could have arrived at this part of his decision by any coherent reasoning, since on the undisputed facts the existing Lidl site has a smaller floor area than is required for the proposed development. On either approach, I am satisfied that this part of his decision is wrong in law and can properly be categorised as irrational and ultra vires.
TC5 paras. (c) and (d)
 I turn next to consider the challenge to the Reporter's decision that the proposed development did not satisfy either para .(c) or para. (d) of policy TC5. As has been noted, these are alternatives. Lidl have to satisfy one of these
"... while the
increased new floorspace and layout would benefit customers, I note that the
proposal would involve a relocation of an existing discount food store within a
similar catchment, albeit it would be closer to the southern part of
Mr. Campbell sought to challenge the finding that the relocation would be to a similar catchment area. However, that is a finding of fact by the Reporter with which I could not interfere even if I disagreed with it. The last sentence of that paragraph, dealing with quantitative deficiency, was not challenged.
 On a fair reading of that paragraph, in the context of the
decision letter as a whole, it seems to me that the Reporter is regarding the increased
new floorspace and layout as tackling a qualitative deficiency, albeit within
the same catchment area as the existing premises. He does not in terms use the expression
"tackling a qualitative deficiency", but his acknowledgement of the "qualitative
benefits" of the increased floorspace and layout, read in the context of this
paragraph of the policy, must I think be a reference to this. Qualitative deficiency does not import the
concept of need:
 On what basis, therefore, can his decision that para. (c) was not satisfied be supported? Ms. Crawford urged me to take account of the fact that the Reporter had carried out a site inspection. He had, she submitted, the material on the basis of which to make a decision. If I could have thought of any facts or value judgments which might, although unexpressed, have informed the Reporter's decision, I would have hesitated before interfering with his decision on this point. But I cannot. I do not think that the Reporter could have thought that the increase in floor space was de minimis - he could easily have said so if that had been his thinking, and such a thought process does not fit easily into his findings that the increased floorspace and layout would benefit customers.
 Accordingly, I consider that his conclusion that para. (c) was not satisfied is inconsistent with his findings of fact in that paragraph of the decision letter and cannot be supported. It follows that this part of the decision is also unreasonable in the Wednesbury sense and ultra vires.
"I am satisfied that the proposal would fulfil a role as a local shop for some of its immediate catchment, I do not consider that it would fulfil that role in its entirety. I am satisfied that the greater role of the proposed store would be to meet the needs of a much wider catchment, as it does at present, with associated additional traffic. I consider therefore that the proposal would not solely fulfil the local shop role envisaged by Policy TC6 and would therefore not comprise a local shop in terms of this fourth criterion."
His reference to policy TC6 is to a policy headed "Local Shops" which provides, so far as relevant, as follows:
"Proposals for the development of local shops outwith town centres, including shops attached to petrol filling stations, hot food shops, cafes and betting offices shall not accord with the Plan unless they can be justified against the following criteria ..."
I need not set out the criteria since it is accepted by Ms. Crawford that, because of his decision that this was not a local shop, the Reporter did not go on to deal with them. She further accepts that if he was wrong about it not being a shop, assuming that error to be material to the outcome of the appeal, the decision would have to be quashed because in those circumstances he would have failed to deal with all aspects of the policy.
 I was initially attracted by the submission that a retail outlet supplying local needs does not cease to be a local shop simply because it also does other things. Policy TC6 recognises that a shop which forms part of a petrol station may still be a local shop within the terms of the policy. However, I was persuaded by Ms. Crawford that this was the wrong approach. The emphasis of policy TC6 is not on defining what is or is not a local shop, but on the insistence that the local shop must still meet the relevant criteria even if it is a caf้ or betting office or attached to a petrol station. It still must be capable of being characterised in itself as a local shop. Such a characterisation involves a value judgement by the decision maker, in this case the Reporter. He has clearly formed the view that the proposed development, and indeed the existing Lidl shop, is as much (or more) a cash and carry outlet meeting the needs of a wider catchment area as it is a shop meeting local needs. On this basis I consider that I cannot interfere with his assessment that the proposed development is not a local shop within the meaning of the policy.
Conclusion on compliance with policy TC5
 It follows from the above that I differ from the Reporter in respect of paras. (a) and (c) of policy TC5. In my judgment, therefore, the proposed development complies with that policy. It follows that the appeal should be allowed and the decision of the Reporter quashed.
 In the decision letter the Reporter deals at some length with NPPG8, a document which forms part of the National Planning Policy Guidance. He did so on the basis of his finding that the proposed development was not consistent with the development plan. Paragraph 45 of NPPG8 only requires consideration in such circumstances. It allows a developer to demonstrate why an exception to policy should be made. Since I have found, contrary to the decision of the Reporter, that the proposed development does comply with policy TC5, it is not necessary for me to consider the Reporter's conclusions on NPPG8. Suffice it to say that the sub-paragraphs of paragraph 45 of NPPG8 which the Reporter found not to be satisfied follow very closely the paragraphs of policy TC5. His decision in respect of that paragraph of NPPG8 is entirely consistent with his decision on TC5. Having come to a different decision on TC5, I would have differed from him also on some, though not necessarily all, of his conclusions on NPPG8. But I say no more about that.
 The Petition also raises an issue in respect of the Reporter's
decision on expenses. There is a
question whether that decision, set out in a letter dated