Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 88

 

P1048/15

OPINION OF LORD TURNBULL

In the petition

CO-OPERATIVE GROUP LTD

Petitioner;

for

Judicial Review

 

Petitioner:  Findlay, advocate, Dunlop;  Gillespie MacAndrew LLP

Respondent: Armstrong QC, Garrity;  Glasgow City Council Corporate Services

Interested Party: Steele QC, O’Carroll;  DWF LLP

29 June 2016

Introduction
[1]        In this application for judicial review the petitioner seeks to reduce a planning decision taken by Glasgow City Council (“the respondent”) on 31 August 2015 concerning premises at 500 Duntreath Avenue Glasgow.  The decision under challenge granted planning permission on the application of Aldi Stores Ltd (“Aldi”) for the creation of a retail store.  Aldi appeared as the interested party in these proceedings.

[2]        Prior to the decision under challenge being taken the petitioner had lodged a planning application seeking permission in principle for the erection of a retail store on a nearby site at Kinfauns Drive and Drumry East Road, Glasgow, which permission was granted on 31 October 2014.  The intention was that Lidl UK GmbH (“Lidl”) would operate a retail food store from the petitioner’s development.  The Lidl store would be located within Drumchapel town centre.  Lidl and Aldi are commercial competitors.

 

The history of the Aldi application
[3]        The Aldi application was first made on 15 April 2014.  It was supported by a detailed Planning and Retail Statement prepared by Aldi’s agents Messrs GVA James Barr which included a retail impact assessment.  Written objections were tendered by the petitioner on 12 June and the application was determined at a hearing of the respondent’s Planning Applications Committee (“the Committee”) on 2 December 2014.  At that hearing the Committee was presented with a report by the respondent’s Executive Director of Development and Regeneration Services Department (“the report”) which recommended refusal of planning permission, as the development was contrary to the development plan.  Planning permission was nevertheless granted.  The petitioner subsequently sought reduction of that decision by judicial review and, by interlocutor dated 17 June 2015, the court, of consent, granted decree of reduction on the ground that the respondent had failed to provide proper, adequate, and intelligible reasons for the decision.

[4]        The application was in due course re‑submitted, as was an updated retail impact assessment prepared by Messrs GVA James Barr. A further objection, including their own retail impact assessment, was tendered on behalf of the petitioner by their agents Messrs GL Hearn on 8 July 2015.  The second application was determined at the hearing on 31 August 2015, at which time a supplementary report from the Executive Director of Development and Regeneration Services Department (“the supplementary report”) dated 18 August 2015 was made available.  It again recommended refusal of the application on the basis that it was contrary to the development plan.  Despite this, the Committee decided to grant full planning permission subject to conditions.

[5]        In the respondent’s Planning Decision Notice they gave the following reasons for granting consent:

            “The proposal is not in accordance with the development plan.  However, the material considerations of provision of employment, revitalisation of the local economy and the town centre, and provision of a range of affordable convenience shopping were sufficient to outweigh the Development Plan policies.”

 

Grounds upon which reduction was sought
[6]        The petitioner’s first submission was directed towards the adequacy of the report and the supplementary report for consideration by the Committee in determining the second application.  The retail impact assessments submitted on behalf of Aldi and Lidl prior to the respondent’s second decision differed in their conclusions. In short, the assessment relied on by Aldi concluded that there was a “quantitative deficiency” within the Drumchapel catchment area such as would permit both the consented Lidl and proposed Aldi stores to trade alongside each other, whereas the assessment relied upon by the petitioner disagreed with the Aldi report’s conclusions.  It included the following expression of view:

            “Indeed, given the scale of the predicted impacts, we conclude that if the consented Aldi store were to proceed then it is likely that the consented Lidl store would not be implemented as it would be commercially unviable”

 

[7]        The submission for the petitioner was that the supplementary report failed to provide any analysis of the respective assessments, or to give guidance to the Committee as to what weight should be attached to each.  It failed to make any recommendation as to which of the competing opinions should be preferred.  Since retail impact was a significant issue to be taken account of, and since the material considerations identified by the Committee were all matters in respect of which the petitioner’s development would have made a positive contribution towards, it was essential that the report contained adequate guidance.  In addition, the supplementary report failed to provide any assessment of the impact of the proposed development on Drumchapel town centre.  Counsel for the petitioner drew attention to the cases of Dairy Crest Limited v London Borough of Merton [2015] EWHC 2468 (Admin) and R (on the application of Langley Park School for Girls) v Bromley LBC [2010] 1 P. & C. R. 10 as illustrations of the importance of the content of a report to committee in appropriate circumstances.

[8]        The petitioner’s second submission concerned the manner in which the issue of retail impact had been addressed in the decision notice issued by the respondent.  It was submitted that it was not possible to identify from the reasons given what the respondent’s conclusions concerning retail impact, or capacity, were.  It was not possible to determine whether they had preferred one assessment over the other or what reasoning had led them to attaching weight to one view as opposed to the other.  These deficiencies were said to have been of particular importance since the respondent was aware that the issue of retail impact was at the root of the petitioner’s objection and was also aware that it was likely that the Lidl development would not proceed in the event that the Aldi application was granted.  The petitioner was not told why the competing Aldi development was preferred over the proposed Lidl development.  The result was said to be that the respondent had failed to provide any proper or adequate reasons such as would allow an informed reader to understand the reasons for the conclusions reached.

[9]        The petitioner’s third submission concerned what was said to be the failure of the reasons given to address the application of the relevant planning policies.  It was agreed that the applicable policies were the City Plan 2 policies contained within the development plan.  However, it was submitted that the reasons given cast no light on the extent to which the members of the Committee viewed the application as being in conflict with the development plan.  Particular concern was addressed to the manner in which the import of Policy SC3 had been addressed.  This policy applied a sequential approach for retail developments, which the reasons given by the respondent failed to address.  It was submitted that this was of importance since the petitioner’s development was sequentially preferable and the availability of this site was a consideration which did not attract any mention in the reasons given.  If permission was granted upon the premise that the petitioner’s development would not then proceed the sequential test ought to have been applied, or reasons given for departing from it.  Over and above these criticisms it was submitted that the reasons gave no indication of the Committee’s view on the impact which the proposal would have on Drumchapel town centre, whether the Committee members concluded that there was retail capacity for both stores, and if so on what basis, and alternatively why they preferred the proposed Aldi development over the Lidl development.

[10]      The petitioner’s fourth submission addressed the material considerations of provision of employment, revitalisation of the local economy and the town centre, and provision of a range of affordable convenience shopping which were given in the decision notice as the basis for granting the application, despite it being contrary to the development plan policies.

[11]      Provision of employment was given as a consideration without any accompanying assessment of any likely net benefit of employment.  This was of importance given that the Lidl site was unoccupied, whereas the proposal by Aldi was to take over a site presently occupied by a packaging and distribution company trading under the name “Commands”.

[12]      In assessing the consideration of revitalisation of the local economy and the town centre it was important to appreciate that the Lidl proposal was in Drumchapel town centre whereas the proposed Aldi site was in an industrial site outwith the town centre.  It was not possible to determine from the reasons given why a site outwith the town centre was thought capable of revitalising that centre in preference to one within it.  Nor was it possible to understand how a site presently contributing to the economy in an industrial site would be more likely to revitalise the economy and town centre as a retail store.

[13]      In addressing the consideration of provision of a range of affordable convenience shopping it was submitted that no reasoning was given which could explain the conclusion that the proposed Aldi development, within an industrial site, would provide convenience shopping given its location.  The reasons given did not explain why, in the respondent’s view, the need for affordable convenience shopping could not be met by the Lidl development, since it was within the town centre.  These criticisms were all the more powerful, it was said, since the respondents knew that the Lidl development within the town centre was unlikely to proceed if the Aldi proposal was approved.

[14]      Furthermore, it was submitted that whilst the contents of the decision notice could be seen to be inadequate in light of the analysis of each of the individual material considerations specified, a further deficiency was said to be plain.  An informed reader would not be able to understand what weight the respondents had attached to each of the considerations individually.  Nor would he be able to understand whether the material considerations were independently sufficient to outweigh the development plan, or the availability of a sequentially preferable site, or whether one particular consideration was seen as the primary reason for granting planning permission.  In other words, there was no explanation given of why the material considerations were thought to outweigh the planning policy conflict.

 

The respondent’s submissions in support of the decision reached
[15]      The respondent contended that it had arrived at a lawful and legitimate decision in the exercise of its planning function.  The report to the committee contained a history of the application site and an assessment of the proposed development by reference to the relevant planning policies.  All relevant policies were brought to the attention of the committee and the report recommended that planning permission be refused.

[16]      The respondent was entitled to grant planning permission for an application which did not accord with the development plan policies if material considerations outweighed those policies.  It was a matter for the respondent in the exercise of its planning judgement to identify and assess the determining issues and, having identified the material considerations it considered outweighed the development plan policies, the respondent was entitled to exercise its planning judgement and grant the application.

[17]      The reasons given by the respondent were sufficient to leave the informed reader in no real and substantial doubt as to the explanation for its decision.  In particular, it was submitted that the reasons given made it clear that the committee was considering the Aldi proposal as being additional to the Lidl development and was not considering one in preference to the other.  Both the report and the supplementary report to the Committee addressed the question of retail impact and the Committee was aware of Lidl’s claim that it would not proceed if consent for Aldi’s application was granted.  Given the terms of the reasons specified in the decision notice, it was submitted that the only conclusion which could realistically be drawn by an informed reader was that the Committee had concluded that there was sufficient retail demand for both stores.

[18]      The respondent also made submissions directed to the issue of discretion.  It was submitted that the petitioner had suffered no substantial prejudice as a result of the decision taken.  Its own planning permission remained in place.  There was a clear demand for the proposed new store amongst members of the local community and it would provide additional choice, as well as being a positive step towards revitalising Drumchapel town centre.  Furthermore, it was pointed out that the respondent had twice approved the application challenged by the petitioner and was now faced with the prospect of undertaking the process a third time.  The only likely outcome would be the delay of an apparently inevitable planning decision.  In these circumstances it was submitted that even if there was any force in any of the criticisms advanced by the petitioner, the court should refuse to grant the remedy sought.

 

Submissions for the interested party
[19]      On behalf of Aldi the submissions presented by the respondent were adopted and it was emphasised that the attack on the decision mounted by the petitioner was made in the context of commercial rivalry.

[20]      Counsel for the interested party also drew a further development to my attention by way of a Minute of Amendment.  In that Minute, which I allowed to be received without opposition, it was averred that the respondent had agreed to sell a piece of land located within the site over which the petitioner had secured planning permission to the company trading as “Farmfoods”.  It was averred that the land to be sold to Farmfoods had a prominent frontage to the main road at Drumchapel town centre and that the sale of this land had now rendered the Lidl development impossible.  In these circumstances it was averred that the present petition was academic.

 

Discussion
[21]      It was agreed that the following general principles applied in the circumstances of the present case:

i.          Applications for planning permission require to be determined in accordance with the development plan, unless material considerations indicate otherwise – Town and Country Planning (Scotland) Act 1997 section 25(1)(a).

 

ii.         A (planning officers) report to a planning committee requires to be sufficiently clear for the committee to understand the important issues and material considerations and requires to be sufficient for the committee to exercise its planning function – R (on the application of Trashorfield Ltd) v Bristol City Council [2014 EWHC] 757 (and the various authorities quoted at paragraph 13 of that decision).

 

iii.        The application of planning policy requires the exercise of planning judgement and is a matter for the decision maker – Tesco Stores Ltd v Dundee City Council 2012 S.C. (UKSC) 287.

 

iv.        Whether or not material considerations outweigh or justify departure from the development plan is a matter of planning judgement for the decision maker – Edinburgh City Council v Secretary of State for Scotland 1998 SC (HL) 33.

 

v.         The reasons given by a planning committee in its decision notice require to be proper, adequate and intelligible so as to leave the informed reader and the court in no real and substantial doubt as to the reasons for the decision – Wordie Property Co Ltd v Secretary of State for Scotland (1984)SLT 345.

 

vi.        The court is concerned only with the legality of the decision made and not with the merits of the decision or the planning judgement exercised by the decision makers – Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759.

 

The reports to the Committee
[22]      In light of the history of the Aldi application there were a number of documents before the Committee by the time of its final determination.  There was the original Planning and Retail Statement dated April 2014 prepared by Messrs GVA James Barr in support of the application.  There was their updated retail impact assessment report prepared in November 2014 after the Lidl application had been successful.  There was the letter from the petitioner’s agents Messrs GL Hearn dated 8 July 2015, in which the objections to the grant of planning permission were set out and which contained a critique of the GVA James Barr reports.  There was the original report to the Committee prepared in advance of the first decision being taken and there was the supplementary report dated 18 August 2015.

[23]      The original report to the Committee began by identifying the representations received, both in support of the application and in opposition to it.  Amongst other sources, letters of support from local residents, from the Drumchapel Community Council and from the Blairdardie and Old Drumchapel Community Council were noted.  The only noted objections were from the petitioner itself and from Lidl.  Summaries of the grounds of support and objection were then set out.

[24]      The report then provided a description of the site and of the Aldi proposal before moving on to identify the relevant City Plan 2 policies which fell to be considered.  The report correctly noted that section 25 of the Town and Country (Scotland) Planning Act 1997 (“the 1997 Act”) required that the determination of the application was to be made in accordance with the provisions of the development plan, unless material considerations indicated otherwise.  It then identified the two main issues as being:

“(a) whether the proposal accords with the Development Plan;

 

(b) whether any other material considerations, including the matters raised in the consultation responses and letters of representation, have been satisfactorily addressed.”

 

[25]      The report then moved on to summarise the import of each policy which was relevant to the assessment of the application and provided an analysis of whether or not the application was in conformity with each.  It identified that the application site lay within an area designated for Industry and Business and summarised the policy considerations which were engaged as a consequence.  In assessing the application against these policies it noted that the proposal would affect the character of the area by introducing a large retail store into a business park and that the loss of the business and industry site to retail would affect the quality of the land.  The application was therefore assessed as being contrary to Policy IB 5.

[26]      The report identified that the application site lay outwith Drumchapel town centre, although it was described as being close to the edge of the centre.  It noted that Policy SC 1 sought to maximise opportunities for regeneration of town centres in preference to other locations.  It noted that to support this aim Policy SC 3 set out a sequential test, requiring a developer to assess alternative sites within the town centre and assess why they would not be suitable.  In assessing the application against Policy SC 3 attention was drawn to the possible availability of the petitioner’s site and it was noted that the petitioner and Lidl had submitted a development application which had not been considered by that date.  In the absence of a more detailed explanation of the options for that site the report concluded that the sequential test in Policy SC 3 had not been satisfied.

[27]      The report identified that Policy SC 4 required that a proposed development not within a town centre and not consistent with the development plan had to be supported by information to show that there would be no unacceptable individual or cumulative impact on the vitality or viability of the network of centres.  It then summarised the content of the original retail impact assessment prepared on behalf of Aldi.  It drew attention to the assessment in that report of an excess retail expenditure capacity in the area and the opinion expressed in that retail assessment that there would still be an outflow of expenditure from the area even with a new Aldi store.  It noted the observation in the assessment that there was no other discount retailer of this sort in the local area and noted the applicant’s contentions that the proposal would address qualitative deficiencies in the area, improve customer choice and reduce reliance on car borne shopping trips.  In assessing the application against policy SC 4 the report offered no criticism of, or disagreement with, the analysis conducted on behalf of Aldi.  It recognised that there was no other discount retailer in the area and that Drumchapel residents within the catchment area probably did travel to other discount stores.  The report’s conclusion on Policy SC 4 was reserved until later in the report.

[28]      The report noted that Policy SC 8 was designed to protect the vitality and viability of existing town centres and that in terms of this policy edge of centre developments would not be acceptable where they would jeopardise similar town centre operations.  It observed that whilst any impact on existing town centre stores in Drumchapel may be minimal, an edge of centre store could jeopardise the operation of future convenience stores which could locate in the town centre, which would be the preferred location.  The report noted that since there appeared to be a suitable site to accommodate such a proposal within the town centre the application could be considered to be contrary to Policy SC 8.

[29]      Having assessed the application against the relevant policies the report then turned to consider other material considerations.  It acknowledged that a discount store would be welcome in the Drumchapel area but observed that it could be provided within the town centre.  It addressed the objections from the petitioner and noted that these objections were consistent with the relevant policy approaches.  It observed that the proposed development could have an adverse effect on the vitality and viability of the town centre and that there was a preferable potential site supported by Lidl’s indication of intent to develop it.  It also drew attention to Lidl’s stated intention not to develop a town centre site if the Aldi proposal was supported.  No other material considerations were identified.

[30]      In conclusion, the report noted that the proposed development would be contrary to Policy IB 5 which sought to retain the site for industry and business purposes.  It stated that the development of the site would make it less likely that a site would be developed within the town centre for convenience retailing and that for this reason the proposal was contrary to Policy SC 1, Policy SC 4 and Policy SC 8.  It also stated that since a potential site appeared to be available within the town centre the proposal was also contrary to Policy SC 3.  The report recommended that planning permission should be refused and provided suggested reasons in keeping with the content as summarised above.

[31]      The supplementary report to the Committee narrated the developments which had taken place in the intervening period, including that the Lidl application had been granted. It noted that a further retail impact assessment had been received in support of the Aldi application and that the petitioner had intimated its own report commenting on the Aldi assessment.

[32]      The supplementary report provided a summary of the competing contentions as contained within the respective retail impact assessments and drew attention to the different conclusions which each arrived at.  It concluded by stating that the additional information did not alter the original assessment or the previous recommendation.  It advised the Committee that if the application was to be determined contrary to the development plan it would have to be clear what other material circumstances or other benefits were considered to outweigh the City Plan policies.

[33]      A helpful summary of the purpose and necessary content of a report of the sort under consideration can be taken from the case of R (on the application of Trashorfield Ltd) at paragraph 13.  That summary makes it plain that context is important and the relevant context is that a report is directed to a knowledgeable readership, who may be assumed to have local knowledge.  The remaining requirements as drawn from the summary are these.  The report must be sufficiently clear and full to enable the committee members to understand the important issues and the material considerations that bear upon them.  It is not necessary for the report to provide an elaborate citation of the underlying background materials and the court should not impose too high a standard upon such a report.  The assessment of how much and what information should go into a report to enable it to perform its function is itself a matter for the officer exercising his own expert judgement.

[34]      The reports in the present case may be measured against these requirements.  The initial report correctly identified the two main issues for consideration by the Committee in determining the application before it.  It correctly identified the relevant policies and provided a clear and concise analysis of which policies the proposal was in conflict with and why.  It made an easily understood recommendation and offered an intelligent explanation of the underlying thinking in the proposed reasons which it offered.  I accept that counsel for the petitioner was correct to identify that the impact on Drumchapel town centre was a relevant issue which was raised by the application before the Committee.  When addressing the content of the original retail impact assessment the report summarised the reasons given within that assessment for the view, expressed on behalf of Aldi, that there would be minimal impact on Drumchapel town centre.  The report explained that this opinion was based upon the view that there would be an excess retail expenditure capacity in the area even with a new Aldi store.  Having set out an accurate summary of the contentions within that assessment, the report then set out the author’s own analysis in light of the information which had been provided in support of the application.  The report noted that certain of the observations in the retail impact assessment were correct but disagreed with the Aldi assessment of the impact on the Drumchapel town centre in one important respect.  The author of the report expressed the view that the impact of the Aldi proposal was that it could jeopardise the operation of future convenience stores which might locate within the town centre and that it made it less likely that a site within the town centre would be developed for convenience retailing.

[35]      The supplementary report made it plain to the Committee that there were now conflicting retail impact assessments.  It pointed out that the Aldi assessments took account of the grant of planning permission for the Lidl store.  It explained what the Aldi assessment of convenience deficiency within the catchment area was and it repeated the Aldi assessment that, even with both stores trading, approximately 30% of convenience spend would leak to other areas.  The supplementary report drew attention to the impact on Drumchapel town centre as estimated in the updated Aldi assessment, which was, in effect, minimal.  As set against these propositions the supplementary report then set out the essential criticisms of the Aldi retail impact assessments as made by GL Hearn.  The supplementary report noted their assessment was that the proposed Aldi development would cause significant harm to the vitality and viability of Drumchapel town centre.  The supplementary report identified what were said by GL Hearn to be the significant flaws in the assessments prepared on behalf of Aldi.  It narrated that in the view of GL Hearn the Aldi assessments had overstated the catchment area of the proposed store, and thus the available potential expenditure.  The supplementary report set out GL Hearn’s contention that the Aldi assessments had also overstated the turnover of the shops in Drumchapel town centre, and had thus underestimated the impact in this manner.  It then set out the figures given within the GL Hearn assessment for impact on the town centre and explained that on the basis of this level of impact the GL Hearn view was that it was very unlikely that there was enough expenditure for both stores to operate and that if the Aldi store was developed it was unlikely that the Lidl store would be.

[36]      Having drawn these components of the competing retail impact assessments to the attention of the Committee, the author of the supplementary report then explained that the additional information provided did not alter his original assessment or previous recommendation.  This comment can only be interpreted as meaning that he did not accept the premise of the Aldi retail impact assessments and remained of the view that if planning permission was granted for the Aldi development it would be less likely that a site within the town centre would be developed for convenience retailing.

[37]      In my view therefore the two reports, when read together, made it plain to the Committee that there was a contentious issue of impact on Drumchapel town centre as between the applicant and the objector.  The differences of view were appropriately summarised, attention was drawn to the underlying contentions advanced in support of each view and the view of the planning officer was made clear.  He did not support the conclusions reached on behalf of Aldi.  It cannot be said that the reports misled the committee about any material matters and, in my view, the reports in the present case satisfy the requirements as taken from R (on the application of Trashorfield Ltd).  The question of impact on the town centre was highlighted and there was sufficient by way of analysis of the competing retail impact assessments to focus this issue for the Committee members and to permit them to exercise their own planning judgement.  They were given the view of the planning officer but they were not bound by this. The matter having been highlighted and the difference in opinion on retail impact having been set out, the members of the Committee were entitled to come to their own view of what to make of the competing assessments.

[38]      In the case of R (Protectbath.org & Another) v Bath and North East Somerset Council [2015] EWHC 537 (Admin) the court was dealing with a case concerning criticism of the content of a report to the planning Committee.  It observed that, when challenged, such reports are not to be subjected to the same exegesis as may be appropriate for the interpretation of a statute and that what is required is a fair reading of the report as a whole.  With these observations in mind, and for the reasons which I have set out above, in my view, the criticisms of the supplementary report identified by counsel for the petitioner were unwarranted.  Whilst he sought to draw support from the three Midcounties Co-operative Ltd v Forrest of Dean District Council cases, reported at [2013] EWHC 1908 (Admin), [2014] EWHC 3059 (Admin), [2015] EWHC 1251 (Admin) and the cases referred to in paragraph [7] above, it seemed to me that these cases all involved case specific criticisms which had no application to the circumstances before me.

 

Adequacy of reasons
[39]      By virtue of section 43, subsection (1A)(a), of the 1997 Act, the planning decision notice which was issued by the respondents in determining the Aldi application was required to include a statement of:

            “the reasons on which the authority based that decision”

 

[40]      Counsel for the petitioner drew my attention to various English cases dealing with the duty, then applicable, to provide a summary of reasons for the grant of a planning application.  That duty was contained in article 22 of the Town and Country Planning (General Development Procedure) Order 1995 and was expressed as a duty to:

“Include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission”.

 

[41]      This requirement does not echo the duty set out in section 43 of the 1997 Act.  Equally, the English case law included a discussion of the difference between the language of the statutory requirement relating to reasons for the grant of planning permission, as compared to the language of the requirement relating to the reasons for refusal of planning permission, and the impact of that difference.  In the end I did not consider that there was much to be gained from a consideration of the various English cases on this topic.  There was no real dispute between the parties that the principles as explained in Wordie Property Co. Ltd. v Secretary of State for Scotland, Moray Council v Scottish Ministers 2006 SC 691 and Upritchard v Scottish Ministers 2012 SC 172 applied to the content of the decision notice in the present case.

[42]      The test which therefore had to be applied was whether the reasons given were proper, adequate and intelligible and were such as to leave the informed reader and the court in no real and substantial doubt as to the reasons for the decision.  In determining whether this test was met the reasons given required to be read fairly, in good faith and as a whole without an unduly legalistic or critical approach.  They required to be read in a down‑to‑earth manner, not as if the decision notice was a legal instrument, and as if read by a well-informed reader who understood the principal controversial issues in the case.

[43]      In my view there was no need for the reasons given to include an analysis of the extent to which the Aldi application was in conflict with the development plan.  The report contained that analysis and the reasons given require to be read in the context of that report.  Unless the members of the Committee set out that they disagree with the analysis in the report it can be taken that they agree with it.

[44]      In the present case the reasons given began by noting that the application was not in accordance with the development plan.  It is therefore plain to an informed reader that, subject to any disagreement expressed, in the Committee’s view it was not in conformity with the policies specified in the report and not in conformity for the reasons specified in that report.  The extent to which the application was seen to be in conflict with the development plan was therefore obvious.

[45]      It was acknowledged that the Committee was entitled to grant permission for a development which was in conflict with the relevant planning policies if it concluded that material considerations existed such as to warrant an acceptable departure from the development plan.  That decision was one to be made on the facts of the application before the Committee, having due regard to the existence of the presumption in favour of the development plan.  It is not for the court to assess whether sufficient weight was given to the presumption, nor to measure the weight available from relevant material considerations.  These are matters of planning judgement –Edinburgh City Council v Secretary of State for Scotland.  In my view therefore it was not necessary for the reasons to specify what weight had been given to the various planning policies.  Nor was it necessary to specify the weight given to any considerations which were properly seen as material.  I shall return to consider the materiality of the actual considerations identified by the Committee. 

[46]      Much of the criticism directed at the adequacy of the reasons was based upon the existence of the competing retail assessment reports and the contention that, in effect, Lidl and Aldi were competing applicants which the Committee required to decide between.  That was no doubt the way in which Lidl and the petitioner wished the matter to be viewed by the Committee but it was not the position taken by Aldi in presenting their application.  As is noted in the original report to the committee, the first retail impact assessment prepared on behalf of Aldi concluded that there was an excess retail expenditure capacity in the area and that there would continue to be an outflow of expenditure from the area even with a new Aldi store.  The second retail impact assessment which was prepared on their behalf took account of the fact that planning permission had been approved for the Lidl store.  Despite this, it concluded that the level of quantitative deficiency was such that there was clear capacity to accommodate an additional food store over and above the development of the proposed new Lidl store.  The contentions advanced on behalf of Aldi were made plain in the supplementary report to the Committee.

[47]      As set out in paragraphs 34 and 36 above, it is plain, in my view, that the planning officer disagreed with the retail impact assessment provided on behalf of Aldi.  He supported the contention advanced on behalf of Lidl that there would be an unacceptable impact on the town centre as a consequence of the Aldi application being granted.  I agree though with the submission of counsel for the respondent that the reasons given by the Committee demonstrate that they did not accept the planning officer’s conclusion on this point.  The Committee explained in their reasons that the material considerations which went to outweigh the development plan policies included:

“revitalisation of the local economy and the town centre, and provision of a range of affordable convenience shopping”.

 

The original report to the Committee recognised that there was no discount retailer in the area, that there was a lack of fresh food shopping within Drumchapel town centre and that a discount retailer would be attractive to the local community.  In this context the references to revitalisation of the local economy and provision of a range of affordable convenience shopping can, it seems to me, only fairly be interpreted as meaning that the Committee concluded, as vouched by the Aldi retail impact assessments, that there was sufficient capacity for each store.  It must also mean that the Committee therefore rejected the suggestion that the Lidl development might not proceed.  This was the principal controversial issue between the applicant and the objector, the one contending there was room for both, the other contending that there was not.  Since permission was granted on the view that it would result in “a range of affordable convenience shopping” the informed reader would easily understand which side of this debate the Committee favoured. As viewed in this light the criticisms advanced by counsel for the petitioner concerning the manner in which retail impact had been dealt with in the reasons can be seen to have no merit.

[48]      On this analysis there was no need for the Committee to grapple in its reasons with issues such as assessing whether one store should be preferred over the other, the application of the sequential test, or how a development outwith the town centre would revitalise that centre in preference to one within it.  No preference was being expressed.  The view of the Committee was that there would be two such stores developed, one in the town centre and one on the edge of the town centre.  Finally, it should be noted that the reasons given are the last part of the Planning Decision Notice which explained that planning permission was granted subject to conditions.  Condition 8 concerned improvements to the pedestrian access to the town centre.  This must have been the method through which the Aldi development would contribute to the revitalisation of the town centre in the minds of the Committee members.

[49]      The remaining material consideration identified in the reasons given by the Committee was the provision of employment.  It was plain from appendix 4 of the original Planning and Retail Statement prepared on behalf of Aldi that the company which presently owns the premises to be developed intended to use the proceeds of sale to Aldi to further develop their own business.  It was therefore obvious that the proposed Aldi development would contribute to the provision of employment in two ways, by taking on the employees necessary to operate their own store and by permitting the current business to expand, as set out in the GVA James Barr Planning and Retail Statement.

[50]      There was plainly support for the proposed Aldi development within the local community.  The considerations which the Committee took account of in deciding to grant permission contrary to the development plan were all relevant and material considerations.  It was accepted that the weight to be given to relevant material considerations was entirely a matter for the Committee.  In the view of the Committee the weight to be attached to these considerations was sufficient to outweigh the impact of the development plan policies.  That was a matter within their discretion and it was not necessary for them to elaborate on how they went about that balancing exercise.

[51]      Overall, it seems to me to be important to remember what the underlying dispute before the Committee was.  It was not a complicated matter.  Aldi was hoping to open a store near to the site which its competitor Lidl was planning to develop and Lidl was hoping to prevent this from happening.  Lidl’s objections accurately identified that the application was in conflict with aspects of the development plan.  As part of their complaint it was argued that there was insufficient capacity within the area to support both stores and that any pre‑existing qualitative deficiency had been remedied by granting planning permission for the Lidl development.  As I have indicated above, it is my view that the Committee did not accept these contentions.  Whilst I explained above that I did not find much assistance in the English cases dealing with the necessary content of a summary of reasons, I did consider that there was one observation of particular value in the case of R (Telford Trustee No. 1 & another) [2011] EWCA Civ 896.  In dealing with the reasons challenge advanced in that case, Lord Justice Richards, giving the judgement of the court, said this at paragraph 24:

“One must not lose sight of the fact that the statutory requirement is to give a summary of the reasons for the grant of planning permission, not a summary of the reasons for rejecting an objector’s representations (even on a principal issue) or a summary of reasons for reasons.”

 

[52]      With suitable adjustment for the difference in the applicable statutory test, this observation is apposite in the circumstances of the present case.  In my view, counsel for the petitioner was overly critical of the content of the reasons.  The issue for the Committee was in sharp focus, was it going to permit the Aldi development despite it being in conflict with aspects of the development plan.  The only point of any substantial controversy in this consideration was that of impact on Drumchapel town centre, which narrowed down to the question of impact on the proposed Lidl development.  The petitioner was well aware of the principal controversial issue before the Committee.  In this context my view is that the reasons given, though short, were such as to leave the informed reader and the court in no real and substantial doubt as to why the decision was arrived at.

Prejudice
[53]      There were some submissions before me on the issue of prejudice and quite how this issue ought to be viewed. Part of the debate was around whether or not there was an onus on the petitioner to establish prejudice and whether or not the appropriate standard was substantial prejudice.  Reference was made to South Buckinghamshire DC v Porter (No 2) [2004] 1 WLR 1953, Save Britain’s Heritage v No1 Poultry Ltd [1991] 1WLR 153 and R (Champion) v North Norfolk District Council [2015] 1 WLR 3710.  In light of my decision on the merits of the complaints made in the petition no such issue arises for me to determine. I would observe though that I did incline to the view that any prejudice which arose was only in the context of the commercial rivalry between the petitioner and the interested party.  

 

Sale of land to Farmfoods
[54]      The factual position concerning the sale of land by the respondent to Farmfoods as relied upon in the interested party’s Minute of Amendment were insufficiently clear to permit me to take any account of this argument advanced by the interested party.  It was of no moment in any event given the decisions which I have arrived at as explained above.

[55]      For the reasons given I will refuse to grant the order sought. I will repel the pleas in law for the petitioner and I will uphold the first plea in law for both the respondent and the interested party. I will reserve meantime the question of expenses.