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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 165
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XA61/06
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OPINION OF LORD GLENNIE
in
APPEAL
to the Court of
Session under the Town and Country Planning (Scotland)
Act 1997
by
LIDL UK
GmbH ("Lidl")
Appellants;
against
(FIRST) THE
SCOTTISH MINISTERS and (SECOND) NORTH AYRSHIRE COUNCIL
Respondents:
against
A decision of the
Scottish Ministers
ญญญญญญญญญญญญญญญญญ________________
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Appellants: J. D. Campbell, Q.C.; Morisons
Respondents: Ms Crawford; Scottish Executive
18 October 2006
Introduction
[1] 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 Lamont Drive,
Irvine, North Ayrshire. The appeal is brought under section 239
of the Town & Country Planning (Scotland)
Act 1997 ("the Act"). Both Lidl and the
Scottish Ministers appeared before me by counsel. The North Ayrshire Council ("the Council"),
whose decision to refuse planning permission in May 2005 prompted Lidl to
appeal to the Scottish Ministers, have not been represented on this appeal.
[2] 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superseded by the North Ayrshire Local Plan ("the Local Plan") adopted, after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.
[3] Accordingly, the argument before me centred on the Reporter's
decision that the proposed development contravened policy TC5 of the Local
Plan.
The legal test in considering the appeal
[4] 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
[5] The facts relevant to this appeal are relatively
straightforward. Lidl have for some time
traded in the town centre at Irvine,
at Riverway Retail
Park. For various reasons, partly commercial and
partly aspirational, they wish to move to a larger site. The commercial reasons do not require
amplification. The aspirational reasons
include the fact that that they wish to comply with the current Disability Discrimination
legislation by providing ramps, lower in-store merchandise heights, etc., and
that this requires an increased floor area.
There is a slight oddity in this connection in that the decision letter
records a submission on behalf of Lidl that that legislation only applied to
new premises, a submission which Mr. Campbell says he believes he did not make
and one which both counsel before me agree to be incorrect as a matter of
law. Nonetheless, since it is agreed
that the Reporter's summary of Lidl's submission is properly to be categorised
as a finding of fact by him, Mr. Campbell accepts that he cannot challenge
it and therefore cannot now put the case on the footing that Lidl require
to comply with the legislation - he can only put it on the aspirational basis
to which I have referred. In any event,
for a combination of reasons, Lidl wish to move to a larger site. They say that they have investigated the
possibility of finding a suitable site in the town centre but there are none to
be had. They have identified the edge of
centre site at Lamont Drive
to which their planning application relates.
Local Plan Policy TC5
[6] Being a site outwith the town centre, policy TC5 of the Local
Plan applies. That policy is headed
"Edge of Centre/ Out of Centre Development" and provides, so far as material,
as follows:
"... 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)
[7] 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.
[8] The Reporter's conclusions are set out in paragraph 5.6 of
the decision letter in these terms:
"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.
[9] 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.
[10] 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 [1976] 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.
[11] In the event, however, such a course is not necessary because I
consider that the Reporter's decision on para.(a) of policy TC5 is clearly
wrong in law.
[12] 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.
[13] 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.
[14] 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)
[15] 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
para. (c)
[16] The Reporter dealt with para. (c) in paragraph 5.9 of the
decision letter in the following terms:
"... 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 Fullerton. Overall, while I acknowledge that there would
be some qualitative benefits, I do not consider that the major portion of such
benefits could not be provided within [Lidl's] existing premises. Also, as Government guidance does not
distinguish discount food stores from most other forms of retailing in land use
terms, I do not consider that there would be any justifiable quantitative
deficiency met from the proposed relocation."
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.
[17] 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: c.f. City of Edinburgh Council per Lord Clyde at p.48B-D in a
passage dealing with quantitative deficiency.
I am not sure that the qualification about catchment area adds anything
of relevance to the assessment the Reporter has to make. The question in para. (c) does not require a
comparison between the catchment area of the existing premises and that of the
proposed new site; rather it focuses on any qualitative deficiency that the
proposed development would tackle, whether or not in the same catchment
area. He finds that a major portion of
the qualitative benefits could be provided in the town centre, in Lidl's
existing premises. By obvious
implication, he accepts that some of the qualitative benefits, presumably a
minor portion, could not be provided in the town centre. Obviously, as has already been discussed, the
whole of the increased new floor space could not be provided there; nor, in
consequence, could the whole of the improvements to meet the problems of
disability which go together with the increased floor space. Reading that paragraph as a whole, therefore,
it seems to me that the Reporter finds as a fact that the development would
tackle deficiencies in qualitative terms which could not be met in the town
centre. On this basis, one would have
thought that he should have held that para. (c) was satisfied.
[18] 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.
[19] 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.
Para. (d)
[20] In light of my decision in relation to para. (c) of policy TC5,
it is not strictly necessary for me to reach a conclusion on para. (d). But, in case the matter goes further, I
should do so.
[21] In paragraph 5.10 of the decision letter, the Reporter deals
with the matter in this way:
"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.
[22] 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
[23] 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.
NPPG8
[24] 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.
Disposal
[25] 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 15 March 2006, is properly the subject of this
appeal. I did not hear full argument on
this point. In addition, Ms. Crawford
reserved for argument a question of expenses.
In those circumstances, rather than pronounce an interlocutor at this
stage giving effect to my decision, I shall put the matter out By Order. If counsel are able to agree how these and
any other remaining matters should be disposed of, and notify my clerk, I will
be content to sign an interlocutor in an agreed form without the need for
further appearance before me.
