Scottish Court of Session Decisions

Petitioner: M McKay; Shepherd & Wedderburn

Respondent: D Armstrong, Q.C.; Balfour + Manson LLP

16 December 2009

[1] The Petitioner, who is the heritable proprietor of property in St Andrews, seeks declarator that a decision of Fife Council (hereinafter referred to as "the Respondents") dated 1 May 2008 is unreasonable et separatim unlawful and reduction of that decision. The decision challenged was the granting to the Respondents of full planning permission for the installation of twenty eight parking meters at various locations at South Street, Queens Gardens, Bell Street, St Mary's Place, Market Street, Greyfriars Garden and North Street, all St Andrews.

[2] The background to this matter, which is not in dispute, is that from about the early 1990s the Respondents operated a voucher parking permit system in the town centre of St Andrews. That system operated by people who wished to park their cars in the controlled areas within the town centre purchasing parking vouchers from shops and other outlets in the town and displaying these vouchers in their car windows when they parked. In or around 2006 the Respondents decided to replace the voucher system with a pay and display ticket system. This system involved the erection on streets of ticket dispensing machines. A motorist wishing to park in a controlled area would buy a ticket at a machine and place that ticket inside the windscreen of the car. An application for Full Planning Permission (reference 06/04105/ENID) for the installation of 38 parking meters in St Andrews town centre was presented in 2006 in conjunction with this scheme. This application was subsequently withdrawn on 15 August 2007. Thereafter on 25 September 2007 the Respondents submitted a planning application (reference 07/03192/EFULL) for the installation of 28 parking meters in the town centre. A report relative to this planning application was prepared by the Lead Officer Planner of the Respondents planning department (hereinafter referred to as "the Planning Report"). The Planning Report was discussed at a meeting of the Respondents East Area Development Committee on 30 April 2008. That committee decided by a majority to grant the application. The Committee further decided by a majority not to refer the application to the Scottish Ministers. Thereafter on 1 May 2008 the Respondents granted planning permission for the development. In implementation of that decision the Respondents on 15 July 2008 made the "Fife Council (Central Area, St Andrews) (Metered On-Street and Off-Street Parking Places) Order 2008". The effect of the order was to replace the voucher controlled parking scheme with a pay and display ticket machine service. That scheme came into operation on 1 September 2008.

[3] It was common ground between the parties that the area of St Andrews where the new parking meter scheme operates is designated as a "Conservation Area" and that numerous buildings within the town centre are listed buildings. The relevant statutory background to this application was not in dispute, and is to be found in sections 59, 64 and 65 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (hereinafter referred to as "the 1997 Act"). Section 59(1) of the 1997 Act provides:

"In considering whether to grant planning permission for development which affects a listed building or its setting, a planning authority or the Secretary of State, as the case may be, shall have special regard to the desirability of preserving the building or setting or any features of special architectural or historic interest which it possesses."

Section 64(1) of the 1997 Act provides:

"In the exercise, with respect to any buildings or other land in the conservation area, of any powers under any of the provisions in subsection (2) special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."

Section 65(1) of the act provides

"This section applies where an application for planning permission for any development of land is made to a planning authority and the development would, in the opinion of the authority affect the character or appearance of a conservation area."

Subsection 4 of the same section provides

"In determining any application for planning permission to which this section applies, the planning authority shall take into account any representations relating to the application which are received by them before the periods in subsection (3) have elapsed."

[4] Against that statutory background four arguments were advanced by the Petitioners. Firstly it was contended that there had been a failure in the Planning Report to bring the relevant statutory duties under the 1997 Act to the attention of the committee. In furtherance of that argument it was submitted that the correct approach to be taken to interpretation of section 64(1) of the said act of 1997 was that advanced by Lord Osborne in Campbell v City of Edinburgh Council 1999 SLT 1009.

My attention was in particular drawn to passages in the opinion of Lord Osborne at page 1019 of the report where his Lordship considered the statutory provision. He noted that the provisions of section 64(1) of the 1997 Act followed closely the wording of section 277(8) of the Town and Country Planning Act 1971, the equivalent English provision, and that that provision had been the subject of consideration in South Lakeland District Council v Secretary of State for the Environment [1992] 2 A C 141. Lord Osborne quoted with approval from the speech of Lord Bridge in the House of Lords in that latter case to the following effect:

"There is no dispute that the intention of section 277(8) is that planning decisions in respect of development proposed to be carried out in a conservation area must give a high priority to the objective of preserving or enhancing the character or appearance of the area. If any proposed development would conflict with that objective, there will be a strong presumption against the grant of planning permission, though, no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest."

In a later passage on the same page Lord Osborne also approved another passage in the South Lakeland District Council case where Lord Bridge expressly approved the reasoning of Mann L J in the Court of Appeal as follows:

"In my judgment character or appearance can be said to be preserved where they are not harmed"

On the basis of this authority it was submitted in the present case that advice encompassing the gravamen of the above quoted passages should have been contained in the Planning Report. It was submitted that this had not been done and counsel for the Petitioner took me through the report in some detail, explaining why this was the case. The subsequent decision was accordingly tainted by a failure to give the correct advice in relation to interpretation of the relevant statutory provisions. It followed, on the argument advanced, that the decision complained of was ultra vires.

[5] The second argument advanced was that the Planning Report was defective in a material respect in that it failed to fully and accurately reflect the position of Historic Scotland, who were consultees in relation to the application, and Architectural Heritage Society of Scotland, who had submitted representations in relation to the preceding planning application.

[6] The third submission was that in light of the advice of Historic Scotland and the objections received no reasonable planning authority having regard to its statutory duty to protect or enhance conservation areas would have failed to reconsider the suitability of pay and display meters against available alternatives. In these circumstances a material consideration had been left out of consideration by the relevant committee. That committee's decision was accordingly vitiated.

[7] The fourth submission was that no planning authority acting reasonably and having had the benefit of the advice available to this committee would have failed to follow practice for notification of the application to the Scottish Ministers.

[8] In response to these submissions counsel for the respondents drew my attention to the need to adopt a holistic approach and to consider the Planning Report in its whole terms. It was also submitted that the context of the report required to be given consideration. In this regard my attention was drawn to another passage in the speech of Lord Osborne in Campbell (supra) at page 1019 where his Lordship stated:

"During the course of the argument before me there was much analysis and discussion of the report by the Director of Planning dated 20 August 1997. At times during the course of the argument I got the impression that it was indeed being treated by counsel as they would have analysed a conveyancing document. There was close analysis of certain passages of the wording chosen in the report. I am not convinced that that is the proper approach to a document such as this in the context of this case. It appears to me that I ought to read the document fairly and as a whole, with a view to discovering whether it provided sufficient and correct advice in relation to the law which had to be applied to the sub-committee considering the application. In that connection I think it right to bear in mind that the sub-committee was composed of elected members of the respondents, who may reasonably be presumed to have some knowledge of planning principles."

It was submitted that approached in the manner favoured by Lord Osborne the critical question in the present case was whether or not the sub-committee had reached its decision in a manner which was consistent with the test set forth in section 64 of the 1997 Act. The whole report required to be considered to see whether or not on a fair reading that test had been met. It was further pointed out that there was no requirement for a report such as the Planning Report to make express mention of the relevant statutory provisions. What had to be done was to consider the decision as a whole and determine whether the conclusion was consistent with appreciation and compliance with the relevant statutory provisions. In support of that submission my attention was drawn to London Borough of Newham v Secretary of State for the Environment [1995] 70 P CR 288 at 292. In the passage to which my attention was drawn Mr Malcolm Spence Q.C., sitting as a Deputy Judge of the Queen's Bench Division of the English High Court quoted with approval the following views of another Deputy Judge:

"... it was not necessary for the Inspector to have to refer expressly to section 54A. ...What is required is to look at the decision letter as a whole and to see if the Inspector has reached his conclusion in a manner which is consistent with the provisions of section 54A."

That reasoning was said to be equally applicable to consideration of the Planning Report in the present case. Approached in this way it was submitted that the Planning Report was consistent with the applicable statutory provisions and had given accurate advice to the sub-committee which fulfilled its statutory obligation.

[9] Insofar as the second argument advanced by the Petitioner was concerned, that is that the Planning Report was defective in a material respect because of a failure to accurately reflect of the position of Historic Scotland and the Architectural Heritage Society of Scotland, it was submitted by the Respondents that the test the Petitioners required to meet if their argument was to have any merit was a high one. My attention was drawn to the opinion of Judge L J in R v Selby District Council Ex parte Oxton Farms (unreported, reference Q B C O F 95/0553/D). That case was a decision of the English Court of Appeal. In relation to the contents of a report by a planning officer to committee Judge L J stated:

"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury. From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

On the basis of this authority counsel for the Respondents submitted that before the Petitioner's argument could get off the ground she would require to show that the Planning Report significantly misled the sub-committee. On consideration, and fair reading, of the report it could not, he submitted, be said that there was any question of the committee being significantly mislead. It could not, be submitted, he said that the very high test set forth by Judge L J had not been met.

[10] The Respondents further submitted that the third argument advanced by the Petitioner, failure to consider alternatives, was misplaced. It was submitted that the argument of the petitioner to the effect that the sub-committee required, in order to satisfy the statutory obligation incumbent upon it to consider alternatives, proceeded on the basis that the proposal in the application was detrimental to the conservation area and therefore the public interest. Here that consideration did not apply. On the basis of the Planning Report, which was characterised as careful and thorough, there was no adverse effect on the conservation area. It followed that there was no requirement or need for the sub-committee to look for alternatives.

[11] So far as the fourth argument, failure to report the application to the Scottish Ministers was concerned the Respondents submitted that again there was a high test for the Petitioners to meet if the argument was to succeed. In that regard my attention was drawn to Jermon Ltd v West Dunbartonshire Council [2008] CSOH 76 and in particular a passage at paragraph 36 in the opinion of Lord Clarke in that case. In that paragraph it was pointed out that where a planning proposal involved a departure from the relevant development plan then there would be a very good reason for reference of the application to the Scottish Ministers. As Lord Clarke expressed it:

"Moreover, and in any event, if as seems at times to be accepted in the affidavit referred to, the proposal did, contrary to what was submitted on behalf of both the Respondents and the interested party before me, involve a departure from the development plan (though not "significant") then it fell to be referred to the Scottish Ministers being a class 13 proposal in terms of the 2007 direction. That it has not been so referred as contrary to law. The social and political reasons for requiring a referral of planning applications in the class of category 13 to the Scottish Ministers are obvious. The need to avoid any appearance of conflict of interest on the part of authorities, like the Respondents, in dealing with such applications means, in my judgment, that these provisions should be followed with some care. They are not to be regarded as technical matters. In the present case, the sensitivity of the matter was, in my view, all the greater because the Respondents had themselves previously imposed the condition as being necessary to support the vitality and viability of the Town Centre and this was the basis upon which the Scottish Ministers had previously considered the matter. There was, in that situation, a very good reason why it was appropriate for the Scottish Ministers to be asked to consider the matter of the proposed change of position in that respect."

In the present case the Respondents pointed out that there was no departure from the relevant development plan. Moreover it was appropriate in relation to this argument to look at the overall context of the application. It was drawn to my attention that the population of St Andrews was 13,500. From that population only nine objections to the application had been received. Eight of these objections were from members of the public. There was an objection from a community group but no indication that that group had canvassed local opinion before expressing its view. Against that background it could not be said that there was an overwhelming need or obligation on the part of the Respondents to refer this application to the Scottish Ministers.

[12] In relation to the competing arguments submitted in this case it is, in my view, clear that the issue of whether or not there is any merit in the petitioner's complaints turns on the terms of the Planning Report. Put simply the Planning Report requires to be considered to determine, firstly, whether its contents and the advice it tendered to the relevant committee complied with the applicable statutory provisions governing the application with which the Report was concerned. Secondly, it requires to be determined whether the Planning Report failed to have regard to any material matter, as was argued by the petitioner, or took into account irrelevant considerations in reaching the conclusion it did to recommend approval of the parking meter scheme.

[13] When considering the Report, I am satisfied that the approach to such reports advocated by Lord Osborne in Campbell v City of Edinburgh Council (supra) and the House of Lords in South Lakeland District Council v Secretary of State for the Environment (supra) is correct. That approach, in my view, is not to submit a report of this nature to a detailed textual analysis as if it were a statute or conveyancing deed but rather to view it in its overall context as a report to a committee generally versed in planning issues and having a considerable degree of local knowledge in relation to the generality of the issues raised in the Report. One further factor which I consider has to be taken into account is the position of the lead Planning Officer responsible for the preparation of the account. The official in question in the instant case submitted in support of the respondents' position in this petition an affidavit dated 18 November 2008. In this affidavit the officer detailed the procedure he went through in his evaluation of the relevant planning application and the factors he took into account before he prepared his said report. He also detailed his knowledge and understanding of the relevant and applicable planning policies and what I might term the overall planning background or context against which he required to prepare his report and against which the committee would require to consider the application. This affidavit was presented to me as part of the bundle of documents for my consideration at the hearing. Reference was made to it by counsel for the respondents at the hearing and I was invited to have regard to its terms. No objection was taken to this by counsel for the petitioner and, further, no challenge was made to the terms of the affidavit. I therefore proceeded on the basis that the affidavit represented an accurate account of the matters considered by the officer in preparation of the report. I consider the affidavit to be a helpful document and one which gives the Court considerable assistance in reaching its decision. On the basis of this affidavit it is clear that the Reporting Officer had in mind the relevant planning background when he prepared his report. It is also clear that very much in the forefront of his mind was the effect that the proposed application would have on the "street scene" and on the listed buildings in St Andrews.

[14] In relation to the Report itself it is correct to point out that there is no express mention of the applicable statutory provisions. I am not persuaded that that factor is, as was submitted by the petitioner in that argument, a fatal defect in the Report. I agree with the approach in London Borough of Newham v Secretary of State for the Environment (supra) where it was stated that one requires to look at the overall context of the Report to determine whether or not the applicable tests were being applied rather than merely rely on the presence or absence of a reference to specific statutory provisions. Viewed in this manner I am satisfied that the applicable statutory tests were properly and relevantly brought to the attention of the committee.

[15] Turning to the petitioner's second argument, the alleged failure to fully and accurately reflect the views of Historic Scotland and the Architectural Heritage Society of Scotland, I am again not satisfied that this ground is well founded. Historic Scotland were consulted by the respondents in relation to both this application and its predecessor. Initially Historic Scotland expressed concerns regarding the design and positioning of the proposed meters. There followed a dialogue between the respondents and Historic Scotland which culminated on 28 March 2008 when that body acknowledged that modifications to the proposal made by the respondents had gone some way to allay their concerns. At that stage Historic Scotland were apparently content to let the respondents made a decision on the basis that the current design and positioning of the meters appeared to be the least intrusive solution. The correspondence between Historic Scotland and the respondents whilst not appended to the Planning Report was available to the members of the Planning Committee who considered the report. So far as the objection by the Architectural Heritage Society of Scotland is concerned it was made available to members of the planning committee and its contents were summarised in the Planning Report. When that background is considered I am satisfied that the Planning Report cannot be regarded as inaccurate or misleading in relation to the objections of these two bodies. So far as the terms of the Report are concerned I am of the view that it fairly sets forth all relevant issues and in doing so does not take into account any irrelevant consideration. In these circumstances I am satisfied that the lead Planning Officer gave appropriate and proper guidance to the committee when they considered this matter and determined the application. It follows that I do not consider that the petitioner is justified in the complaints against this Report advanced in the petition in relation to Historic Scotland and the Architectural Historical Society of Scotland.

[15] The final and subsidiary argument advanced on behalf of the petitioner was that the matter should have been referred to the Scottish Ministers. Referral to the Scottish Ministers was considered in the Planning Report. It is clear from the terms of the report that the applicable policy in relation to referrals to the Scottish Ministers was brought to the attention of the committee. It is, further, plain that advice that referral was neither appropriate nor necessary in this case was tendered. Having regard to the terms of that paragraph I am satisfied that the advice tendered was appropriate. In these circumstances the subsidiary argument for the petitioner also falls to be dismissed.

[16] It follows from all the foregoing that I do not consider any of the arguments advanced in support of the petitioner to be well founded. In these circumstances the prayer of the petition will be refused.