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AHMAD, APPEAL BY MR AND MRS ATLAF AHMAD AGAINST A DECISION OF GLASGOW CITY COUNCIL PLANNING LOCAL REVIEW COMMITTEE [2019] ScotCS CSIH_44 (13 August 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_44.html
Cite as:
[2019] ScotCS CSIH_44,
[2019] CSIH 44,
2019 GWD 28-453
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2019] CSIH 44
XA106/18
Lord Brodie
Lord Drummond Young
Lord Malcolm
OPINION OF THE COURT
delivered by LORD BRODIE
in the appeal under sections 237 and 239 of the Town and Country Planning
(Scotland) Act 1997
by
MR AND MRS ALTAF AHMAD
Appellants
against
a decision of Glasgow City Council Planning Local Review Committee
dated 17 October 2018 and communicated to the appellants
on 18 October 2018
Appellants: Party
Respondent: Burnet; Morton Fraser LLP
13 August 2019
Introduction
[1] This is an appeal, brought in terms of chapter 41 of the Rules of the Court of Session,
under sections 237(3A) and 239 of the Town and Country Planning (Scotland) Act 1997
against a decision of the Glasgow City Council Planning Local Review Committee, dated
17 October 2018 and communicated to the appellants on 18 October 2018, refusing an
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application for change of the use class of a workshop at 423 Gallowgate, Glasgow to hotel
and guesthouse (Class 7) and for associated alterations, including the downtaking of parts of
existing buildings. The appellants are party litigants. The respondent to the appeal is
Glasgow City Council.
[2] Section 239(1) of the 1997 Act provides that a person aggrieved by any action to
which the section applies, and who wishes to question the validity of that action on the
grounds that it is not within the powers of the Act, or that any relevant requirement has not
been complied with, may make an application to the Court of Session. The Court of Session,
if satisfied that the action is outwith the powers of the Act, or that the applicant’s interests
have been substantially prejudiced by any failure to comply with relevant requirements,
may quash the relevant action. In terms of section 237(3A) a relevant action includes any
decision or determination in a review conducted by a local planning authority by virtue of
section 43A(8) of the 1997 Act, as amended. However, at the outset, it is important to have
regard to the limitations on the extent of the jurisdiction conferred on the court by
section 239. The planning merits of a proposal giving rise to an appeal are not for the court.
These are matters for the planning authority and those to whom its powers are delegated.
The court has no such power. Its concern is with legal validity and procedural regularity,
not planning judgment: Carroll v Scottish Borders Council 2016 SC 377 Lord Menzies at
para [54].
The proposed development
[3] The development site comprises vacant outbuildings and a yard to the rear of
single-storey commercial premises fronting the north side of the Gallowgate, Glasgow. The
commercial premises originally formed the ground floor of a traditional tenement building,
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the other storeys of which have been taken down. Access to the development site is
available through a pend onto the Gallowgate which is currently controlled by a roller
shutter door. The commercial premises on either side of the pend include a public house to
the east and vacant shop and café buildings to the west. There are recently built flats along
the western boundary of the development site and in close proximity to the eastern
boundary. The northern boundary backs onto a car parking area associated with the
residential flats.
[4] On the site there is a two storey L-shaped building. Together with the other
outbuildings it was formally used as an engineering workshop. It has been vacant for a
number of years.
[5] The appellants’ application sought permission to demolish some of the existing
outbuildings and to convert both floors of the L-shaped building to create a number of small
format, single aspect en-suite bedrooms, eight on the ground floor and nine on the first floor.
Other proposed facilities within the building were two reception areas on the ground floor,
one with a small dedicated snack and catering area, and a communal lounge on the first
floor. The only changes proposed on the pend elevation to the Gallowgate was the removal
of the existing roller shutter and its replacement with a security door.
[6] The application proposed that new window and door openings should be formed in
the L-shaped building with all existing windows being replaced. Some of the new window
openings would face west with lines of sight towards the existing residential flats on the
western boundary of the development site.
[7] The application form accompanying the appellants’ application for planning
permission described their proposals as: “alterations to vacant engineering workshop to
form hotel and guesthouse (17 bedrooms). Change of use and various downtakings and
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additions.” Based on that description and the format of the proposed development, the
appellants’ proposals would fall within Class 7, as specified in the Town and Country
Planning Use Classes (Scotland) Order 1997, 1997 No 3061 (S 195). Use of the term
“guesthouse” would imply that the proposals were for tourist accommodation.
Accordingly, the supplementary guidance (SG10) in relation to short stay and tourist
accommodation supporting policy CDP10: Meeting Housing Needs, of the Glasgow City
Council Local Development Plan, was of relevance to the appellants’ application.
Procedural history
[8] The decision under appeal is one made by the planning authority on review of a
refusal of permission by an appointed person exercising delegated powers as is provided
for by sections 43A and 43B of the 1997 Act, as amended (a procedure discussed by
Lord Menzies in Carroll v Scottish Borders Council). Further provision for schemes of
delegation is made in the Town and Country Planning (Schemes of Delegation and Local
Review Procedure) (Scotland) Regulations 2013 (“the 2013 Regulations”). In terms of
section 43A of the 1997 Act planning authorities are required to prepare schemes of
delegation whereby the power under section 37 of the Act to determine applications for
permission for local developments is delegated to an appointed person, subject to review
by the planning authority. In terms of regulation 7 of the 2013 Regulations such a review is
to be conducted by a committee of the planning authority comprising at least three
members of the authority (to be known as the “local review body”). The respondent
designates its local review body as the Local Review Committee (“the LRC”).
[9] The appellants’ application was considered by an appointed person in terms of the
respondent’s scheme of delegation under section 43A of the 1997 Act. One of the
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respondent’s planning officers prepared a Report of Handling for the application. On
27 June 2017 the respondent’s Executive Director for Development and Regeneration
Services issued a decision notice refusing the application and providing six reasons for
doing so. The appellants sought a review of the refusal of planning permission in terms of
section 43A(8) of the 1997 Act. The review was undertaken by the respondent’s LRC. The
LRC decided that, in accordance with regulation 12 of the 2013 Regulations, it should
proceed to determine the review of the application without the need for any further
procedure. The LRC was provided with documents and a presentation in relation to the
application which was considered at a meeting of the LRC on 26 June 2018. On 17 October
2018 the LRC issued its decision notice refusing the application. The introduction to the
decision explained that the LRC was satisfied that it had enough information to determine
the review without further procedure. The decision notice included a description of the
appellants’ proposals at section 2. In sections 3 and 4 it identified the relevant policies of
the Local Development Plan and the relevant material considerations which were
considered. Section 5 explained the LRC’s assessment of the proposal against the relevant
planning policies and the material considerations. In section 6 the LRC gave its reasons for
its decision to refuse the application. These are identical to the reasons given by the
appointed person and are as follows:
“01 The proposal was not considered to be in accordance with the Development
Plan and there were no material considerations which outweighed the
proposal’s variance with the Development Plan.
02 The proposed development, by reason of the characteristics of the intended
use including the high turnover of occupants, the high level of on-site
servicing requirements to facilitate the use and the resultant opportunities for
noise and disturbance in close proximity to established residential properties,
would have an adverse impact on the character and amenity of the area. The
proposals would therefore be contrary to Policy SG10: Meeting Housing
Needs of the Glasgow City Development Plan 2017.
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03 The proposed development, by reason of the configuration of the site and the
introduction of hotel/guesthouse use, would result in the overlooking of
established residential properties, to the detriment of the residential amenity.
The proposals would therefore be contrary to policy SG10: Meeting Housing
Needs of the Glasgow City Development Plan 2017.
04 By reason of the absence of an operational management plan setting out the
maintenance, services delivery, waste disposal, laundry and on-site
management arrangements, the applicant has failed to demonstrate that
proposals can operate without adversely impacting on pedestrian and
vehicular safety of surrounding residents, businesses and road users. The
proposals would therefore be contrary to policy SG10: Meeting Housing
Needs of the Glasgow City Development Plan 2017.
05 The proposed development, by reason of the absence of the on-site amenity
provision, would result in substandard levels of amenity for intended
short-stay occupants.
06 The proposed development, by reason of the absence of detailed drainage
measures to ensure satisfactory sustainable management and safe disposal of
surface water, would be contrary to policy SG8: Water Environment of the
Glasgow City Development Plan 2017.”
Grounds of appeal
[10] The appellants’ grounds of appeal are set out in paras [2] to [11] in the following
terms:
“[2] Glasgow City Council Local Review Committee (LRC called after) held a
meeting on 26th June 2018 exactly after one year from the date of refusal
(27th June 2017) by Glasgow city council Planning Department. LRC decision
was made on only the informations / photos provided by the Planning officer
and did not made any site/surrounding area visit which was necessary to get
the right sense of change of use application and could have answered all the
objections raised by Planning Officer.
[3] Planning Officer should have referred our review application to Scottish
Executive instead of LRC. As LRC is made by most of the same councillors
who already objected on our application. So, their decision cannot be on facts
and good chances of injustice are present in their decision of refusal.
[4] According to Local Review Bodies Advice and Guidance forum it is strongly
recommended that a site visit by the LRC under Regulation 16 will help to
reach the fair and unbiased decision. And will be helpful in provision of
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justice to application. But unfortunately, neither site visit was done, nor we
were given a chance of representation.
[5] Glasgow City Council and LRC failed to understand the requirements/details
of planning application and building warrant application. LRC also looked
for information which were not required for change of use application but
were required in building warrant stage. As a picture has been proved better
than one thousand words a site visit (live picture) would have answered all
the objections raised by case planning officer.
[6] LRC mentioned two relevant policies in their refusal decision. First
CDP8/SG8 Water Environment and SG10 Meeting Housing Needs.
Amazingly LRC tried to apply the SG8 policy on our change of use proposal
when this policy applies to new developments only. Under this policy LRC
mentioned safe disposal of surface water drainage but unfortunately, they
forget that our proposal was not introducing or adding any new surface
water. Our site is already connected to a public sewer line. This site
historically was a tenement building and had 18 flats so all the sewer and
drainage lines running from this building should be more than enough for
18 single/double use rooms? Few pages of that policy SG8 are attached here
with our appeal. We have highlighted as well as circled the important words
and relevant paragraphs. So, our proposal is not contrary to Policy SG8.
[7] The second reason of refusal was SG10 Policy. According to LRC there are
residential properties in close proximity to our proposal and these would be
overlooked by the proposed hotel/guest house. We are unable to understand
how it would be possible when our proposed building is detached and
surrounded by a boundary all around it. The concerned flat blocks are
opposite to each other and all windows are at the same levels and the distance
is lot less than what it would be from ours. So this overlooking objection is
baseless and should not be considered valid reason of objection. To clarify
this some site photos are attached here with, as well as an email from a
well-established professional planning company. Please read their remarks
regarding overlooking. This company visited my site and then commented
on refusal reasons.
[8] The LRC said the concerns had been raised through representations that
proposed use will result in an increase noise from guests arriving and leaving.
At present this building is/was used as workshop and LRC failed to prove
how a guest house will increase the noise level than a workshop. LRC also
failed to produce noise concerns from representation to applicant? All
objections were made that our proposal was, like the nearby Bellgrove Hotel.
All objection letters are attached here with too.
[9] Then LRC objected on lack of information on our management plan. All
details required by policy SG10 were provided. We believe initially these
details would be sufficient and more details could have been provided in case
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of any further queries by the planning officer. So, this is also a non-valid
reason for refusal. Copy of those details is attached here.
[10] Lastly LRC noted provision of on-site amenities including every facility
required by Hotel Quality Assurance Guide including provision of kitchen on
site but still refused on meals provision. They LRC failed to recognise the
difference of self-catering and meals providing accommodations. There are
dozens of hotels in the Scotland which provide only packed breakfast and
have no option of any cooked meals. For example, most of Travel Lodge
hotels do not offer any meals and they accommodate lot more than our
proposed number of guests?
[11] We have attached the relevant section of SG-10 policy and are really surprised
how our proposal is not to be in accord with SG-10? Our site and application
fill full all the requirements stated in section 4 of the SG10 policy. Which
clearly says Tourist accommodation bring positive economic benefits to the
city by providing a base for the hundred tourists that visit Glasgow every
year. This building is lying empty from last 10 years and slowly deteriorating
and causing bad impact on surrounding area. Planning officer and LRC failed
to understand the importance and neediness of this building to bring back in
life and save this building to become a derelict. On one side Scottish
Government awarder £3M to refurbish derelict sites in Glasgow and on other
side Glasgow City Council Planning Officers not working in line with the
Sottish Govt and refusing planning applications on baseless objections and
added another number to derelict site list. Lastly we humbly request to the
honourable court to read all the objections and our response in the light of all
the proofs and pictures provided for this site.”
[11] In addition to the numbered grounds, the following points were raised by the
appellants in their grounds of appeal:
“The question(s) of law for the opinion of the court are:
LRC took one year to decide our appeal and kept us in wait, frustrated
and in mental torture? This much time is against the Human Rights?
Glasgow City Council Planning Department should have forwarded our
appeal to Scottish Executive not the same people who objected on our
planning application at the first place.
LRC should have visited our site and we should have been given a chance
of representation? LRC did not consider, even investigated our review
appeal statement so their decision does not meet the justice criteria?
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LRC decided our appeal based on two (2) relevant policies SG8 and SG10.
The first policy SG8 does not apply to our change of use application as this
policy itself says, it only applies to new developments only.
LRC decision is straightaway invalid?
The second policy SG10 encourages Tourist accommodation and laid the
key criteria in its section 4.5 and out site meets all the key criteria as
following.
Bellgrove train station is few minutes’ walk from our site where train
arrives to and from Glasgow city centre every 10 minutes. Bus stops right
across the road from where 6 different routes buses come and go to city
centre.
Site has Laundry and two public houses just outside the building and
super market Morrisons situated in next block.
Detached building with surrounding walls all around so no adverse
impact on the character and amenity of the area.
Plenty of parking spaces around this building and three main roads run
around our building Gallowgate A89 South of the building, Duke street at the
north side and Bellgrove Steert East of the building so no Adverse impact on
traffic congestion and parking. More over our site is not situates in the
conservation areas of Crosshill; Dennistoun; Glasgow West; Park;
St Vincent Crescent and Strathbungo where this kind of developments are
discouraged according to section 4A of policy SG10?
Lastly, this building lying empty from last 10 years, becoming a derelict
and Council must do something to bring life in this building next to the city
centre?
Glasgow City Council stopping us to bring a positive impact on this
rundown area and creating new jobs for the Locals?”
Submissions for the Parties
Appellants
[12] At the hearing on the Summar Roll, oral submissions were presented on behalf of
the appellants by Mr Ahmad. At the outset of his submissions, he indicated that English is
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not his first language. His presentation was nevertheless clear and, subject to some
elaboration, in line with the grounds of appeal.
[13] He argued that the appellants’ application had been determined according to
political and local pressure.
[14] Mr Ahmad submitted that the respondent planning authority had skipped a step in
the required procedure. The appellants’ application ought to have been forwarded to the
Scottish Ministers to determine the application on the “ground realities”. Instead, the
appellants had been forced to present an appeal to this court on a point of law only. The
planning officer had delayed in reaching a decision, and then the LRC had taken over a
year to determine the review. That had prevented the appellants from presenting their
case to the Scottish Ministers, and left them searching for a “flaw in the law”.
[15] The appellants had not been given the opportunity to meet with a duty planning
officer from Glasgow City Council following upon the initial rejection of their application.
They had a right to such a meeting. The respondent’s own website stated that persons in
the position of the appellants have such a right, with the purpose of the meeting being to
discuss the options available going forward. The respondent’s duty planning officer had
refused to meet with the appellants, citing the appeal period as the reason for the refusal.
The duty planning officer deviated from the respondent’s own rules and guidance and the
appellants had to wait a year for a decision. This was said to be against the appellants’
human rights.
[16] Turning to the application itself, Mr Ahmad argued that there had been a lot of
political pressure applied to the planning officer who dealt with the application. The
appellants had requested meetings with local people and their MSPs in relation to the site,
which had been lying empty for 10 or 12 years. It was becoming derelict. The Scottish
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Government is paying out millions of pounds to remedy derelict sites all across the
country, yet the respondent wishes to produce another derelict building in the middle of
the city. The respondent was clearly acting contrary to Scottish Government policy.
[17] The application had been rejected on the basis of two main policies: SG8 and SG10.
SG10 deals with the sorts of buildings that will attract a positive outcome for tourist
accommodation. The appellants’ application fulfilled all of the requirements of SG10: the
site has a boundary wall all around it; the building is detached; and there are two bus
stops right at the door and ample car parking. Further, the building is already there. The
application was only for a change of use; it was not a “new dwelling”. The proposal
would not put pressure on existing amenities. The hotel/guest house would have only
18 rooms and with an anticipated occupancy level of around fifty percent it was unlikely
that eight or nine guests would cause problems for local facilities.
[18] SG8 applies to “new developments” of five or more new dwellings. The appellants’
application did not fall into this category. The appellants’ proposal would in no way alter
the surface water arrangements at the site. The building was originally a residential
tenement. In any event, the application involved an element of demolition. Demolition
would reduce, not increase, the surface water at the site. The planning officer had been
wrong to apply SG8 to the application. Even if it were not the main reason for the refusal
of the application, it demonstrated that the decision reached was not one hundred percent
correct.
[19] The appellants had contacted local people and their MSPs and found that the locals
had been misled. They had been told that the appellants were creating a hostel for
homeless people, similar to the nearby Bellgrove Hotel. That objection was said to have
originated from Molendinar Park Housing Association. Molendinar had wanted to
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purchase the site at the same time as the appellants but for a price below market value.
The appellants had been successful in acquiring the site and now Molendinar were trying
to create problems for them. There was no evidence that the appellants were creating
another Bellgrove Hotel. The respondent had the power to shut down any accommodation
which was found to be substandard. The respondent has taken no such action in relation
to Bellgrove Hotel; instead the appellants were suffering as a result of the negative impact
of that property on the area. The appellants had confirmed that the respondent could
come to the hotel at any time, without notice, to review the guest list and could do so as
often as was thought necessary. The appellants have offered two or three short term lets at
other locations in Glasgow for around 4 or 5 years now. Website links and reviews from
previous guests had been provided to the respondent.
[20] The LRC ought to have visited the site; if it had done so, a different decision would
have been reached. The respondent may argue that its LRC was not bound to do so, but it
was necessary here because of the unique structure of the site. The application could not
be understood without visiting the site. The LRC had objected to the application on the
ground of “overlooking” but had the LRC visited the site it would have been obvious that
no such problem existed. The windows on the gable wall facing onto the street were to be
blocked up. There would therefore be no windows or doors with even an oblique view of
the Molendinar building. There is housing to the west side of the building (comprising
two blocks which face one another) but the distance between the windows on the
appellants’ building and the windows of the housing blocks is 22 metres. The distance
between the windows on the two housing blocks themselves is only 11 metres and the
minimum allowable distance is 9 metres. A site visit would have eliminated any concerns.
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[21] As regards the LRC’s objection on the grounds of the level of amenity offered by
the proposed hotel, the appellants submitted that most guests would be individuals from
Eastern Europe who had come to explore Glasgow. Ninety-nine percent of guests would
arrive at 10 o’clock at night, go straight to bed and be on the road again in the morning.
The proposed guest house would have a television in every room, a DVD player and WIFI.
There was to be an open plan sitting room with computers and tea and coffee machines
and the next phase of the development would see the installation of a gym. The appellants
had looked into the facilities offered by many other three star hotels in Glasgow and could
not say that any had those facilities on site. Larger hotel chains did not face these kinds of
restrictions, even though they offered less in the way of amenity.
[22] Finally, the respondent was wrong to suggest that there was only one stage to
planning permission. Every planning application has two stages: the application is made
and thereafter the Council ask for more information to allow a building warrant to be
obtained. Both stages are dealt with by the planning department. The respondent’s own
guidelines stated that the appellants had a right to sit down with the planning officer prior
to seeking a review. The appellants had been refused that right by the duty planning
officer. That would have saved time and money.
Respondent
[23] Counsel for the respondent moved the court to refuse the appeal, adopting the
arguments set out in the respondent’s note of argument and the points raised in the
answers to the grounds of appeal.
[24] Counsel submitted that as this appeal had been brought under section 239 of the
1997 Act, the appellants had to show that the decision of the LRC was either not within its
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powers, as set out in the Act, or that one of the requirements in either the Act, or any of the
relevant regulations made thereunder, had not been complied with. The appellants’
grounds of appeal did not conform to those requirements; they were not restricted to
matters of law.
[25] With reference to the appellants’ argument that the appeal should have been
referred to the Scottish Executive, and the aligned point regarding delay, counsel referred
to the 1997 Act, and to the 2013 Regulations. In terms of the legislation, and in particular
section 43A of the 1997 Act, each planning authority had to set out a scheme of delegation
and procedure for deciding local planning applications. The appellants’ application fell to
be dealt with according to such a scheme. No procedural step was skipped.
[26] In terms of the legislative framework, section 43A(1) requires each planning
authority to prepare a scheme for delegation. Subsection (2) confirms that the decision of
any person appointed to determine applications under subsection (1) is to be treated as
that of the planning authority. Subsection (8)(a) sets out that where an appointed person
refuses an application, then an applicant may seek a review of that decision. That is what
happened in the appellants’ case. In terms of subsection (8)(c), an applicant may also seek
a review where the appointed person has not reached a decision within a prescribed
period. That period is prescribed in regulation 8 of the 2013 Regulations, and is currently
2 months. That was not, however, the basis upon which the appellants sought a review in
the present case.
[27] The only route to the Scottish Ministers for applicants such as the appellants is
located within the provisions related to deemed refusals. Those provisions allow for an
application, which would normally fall to be dealt with under the scheme of delegation, to
be presented to the Scottish Ministers where: (i) the appointed person fails to make a
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decision within the prescribed period of 2 months; (ii) the applicant seeks a review on the
basis that the appointed person has so failed; and (iii) the local review body fails to
determine the review within a period of 3 months. That is not what happened in this case.
There is no general time limit on a review by a local review body. The policy reason for
the difference might be that in the ordinary case the applicant has already had a decision in
respect of the merits of his application, at least in the first instance. In the case of a deemed
refusal, there has been no such determination. It is the double failure on the part of the
local authority which opens up the pathway to the Scottish Ministers. There is, however,
no provision in the 1997 Act which allows for an appeal to be made to the Scottish
Ministers in the circumstances which prevailed in this case.
[28] As was partly explained in Carroll v Scottish Borders Council, the purpose of the
introduction of schemes of delegation was to streamline the planning system by sending
appeals for local developments to local review bodies and removing the right of appeal to
the Scottish Ministers. The procedure is intended to be “front loaded” and a party to the
proceedings under the new scheme is expected to lodge all the materials upon which they
intend to rely at an early stage of the procedure, before the appointed person makes his
decision. The local review body will normally be expected to conduct a review on the basis
of the material before the appointed person. Generally, a party will not be able to
introduce and rely upon material not before the appointed person, subject to certain
exceptions.
[29] In relation to the site visit, regulation 12 of the 2013 Regulations answers the
appellants’ complaint. In terms of regulation 12, where the local review body considers
there is sufficient information before it to determine the review without further procedure,
it is entitled to so determine the review. The appellants appeared to accept that as a matter
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of generality. The local review body must have regard to the “review documents” as
defined in the 2013 Regulations and determine the review according to the Development
Plan unless other material considerations indicate otherwise. Whether the review
documents provide sufficient information for the local review body to determine the
review is a matter of planning judgement for the local review body (Carroll, supra at
paragraph 54, Johnston v Scottish Ministers [2016] CSIH 20 at paragraph 12 and Simson v
Aberdeenshire Council 2007 SC 366 at paragraph 23). Whilst the appellants may claim that
the site was in some way unique, they had not demonstrated that the decision of the LRC
to the effect that they had sufficient information to decide not to undertake a site visit was
wholly irrational or Wednesbury unreasonable, which is the standard required.
[30] In relation to SG8, it was important that the application was not merely an
application for a change of use; it also involved associated alterations to the building and
an element of demolition. Although not altering the entire building, there was an element
of physical change proposed. The changes were not simply internal. The word
development is being used in the policy to describe more than just ”new developments”.
The reference in the decision notice is to paragraph 9.4 of SG8. The wording in
paragraph 9.4 is mirrored in the final paragraph of section 5 of the decision notice.
Section 9 refers to Scottish Water. This particular building had lain dormant, or at least
had not been in full operational use, for 10 years. Changing a building from industrial use
to a hotel or some other form of residential use could clearly involve matters with which
parts of section 9 are concerned, such as foul drainage and public water connections.
However, even if the LRC had been wrong to regard SG8 as relevant to its decision, that
made no difference to the outcome of the review. This was clearly a subsidiary reason for
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the refusal. The LRC would have found in any event that the proposal failed to comply
with the Development Plan for the other reasons stated in the decision notice.
[31] The information referred to by the appellants in relation to window distances was,
counsel submitted, likely taken from guidelines issued by other planning authorities on the
issue of overlooking. Such guidelines are not required by statute, nor are planning
authorities required to follow them. They are simply guidelines, and a decision maker has
to make the decision using his or her planning judgement. Any guidance issued by
another local authority would not apply in Glasgow; the issue was a matter for the
planning judgement of the LRC.
[32] The remainder of the appellants’ submissions also went to the planning merits of
the application and accordingly were irrelevant to the question before this court.
Decision
The court’s jurisdiction
[33] It is evident that the appellants feel frustrated at the refusal of what they consider to
be a worthwhile proposal. However, we reiterate the point made at the beginning of this
opinion: it is for the local planning authority to determine the merits of applications made
in respect of their areas. Should they make an error as to the extent of their legal powers or
should they fail to comply with a procedural requirement that has adverse consequences
for an applicant, then this court may be applied to in order to provide a remedy. But if
they make no such errors this court cannot interfere with their decisions; matters of
planning judgment are for planning authorities, not for the court. The principle was
authoritatively stated by Lord Hoffmann in his speech in Tesco Stores v Environment
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Secretary [1995] 1 WLR 759 at 780. The passage is familiar and frequently cited in the
context of appeals such as this one. It may nevertheless be useful to repeat it:
“The law has always made a clear distinction between the question of whether
something is a material consideration and the weight which it should be given. The
former is a question of law and the latter is a question of planning judgment, which
is entirely a matter for the planning authority. Provided that the planning
authority has regard to all material considerations, it is at liberty (provided that it
does not lapse into Wednesbury irrationality) to give them whatever weight the
planning authority thinks fit or no weight at all. The fact that the law regards
something as a material consideration therefore involves no view about the part, if
any, which it should play in the decision-making process.
This distinction between whether something is a material consideration and the
weight which it should be given is only one aspect of a fundamental principle of
British planning law, namely that the courts are concerned only with the legality of
the decision-making process and not with the merits of the decision. If there is one
principle of planning law more firmly settled than any other, it is that matters of
planning judgment are within the exclusive province of the local planning
authority or the Secretary of State.”
[34] With Lord Hoffmann’s statement of principle in mind we turn to consider the
points made in the appellants’ grounds of appeal in the order that we have summarised
them.
Procedural error (grounds 2, 4 and 5)
[35] At paragraph 2 of their grounds of appeal the appellants complain that the LRC, as
a local review body acting in terms of the 2013 Regulations, made its decision on the
review documents and did not carry out a site inspection “which was necessary to get the
right sense of change of use application and could have answered all the objections raised
by Planning Officer”. The complaint that there was no site inspection is repeated at
paragraph 4 where the appellants add: “nor were we given a chance of representation”.
[36] The context in which the appellants advance these criticisms of the procedure
adopted by the LRC is that the LRC was conducting a review of a decision made on the
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basis of information compiled by a planning officer and summarised in the Report on
Handling dated 20 June 2017. As the appellants were advised in the notice of refusal of
their application, that Report was available for inspection on-line. The notice advised them
to view it. The notice included this further information which was applicable in the event
that the appellants proposed to require a review (as they were entitled to do in terms of
section 43A(8) of the 1997 Act and regulation 8 of the 2013 Regulations):
“The notice of review must include a statement setting out your reasons for
requiring the Planning Local Review Committee to review this case. You must
state by what procedure (written representations, hearing session(s), inspection of
application site) or combination of procedures you wish the review to be
conducted. However, please note that the Planning Local Review Committee will
decide on the review procedure to be followed.”
The appellants wrote to the LRC on 18 September 2017 providing a response to each of the
grounds upon which the appointed person had refused their application. They were critical
of the planning officer, indicating that he refused to discuss any matter regarding the
application. They also stated that many of the planning officer’s points would have been
clarified if he had carried out a site inspection. However, the appellants did not propose
that the LRC carry out a site inspection, nor did they make any other proposals as to how
they wished the review to be conducted.
[37] Critically, as far as the appellants’ complaints in relation to the procedure followed
by the LRC are concerned, is that, as the 2013 Regulations make clear, it is for the local
review body to determine its own procedure: regulations 12 to 15. Determining the
appropriate procedure in a particular case is a matter of planning judgement, for the local
review body to exercise: Carroll at para [55]. It may at any time make an unaccompanied
or accompanied site inspection, but it need not do so: regulation 16, and cf Johnston v
Scottish Ministers at para [12]. At paragraph 4 of the appellants’ grounds of appeal it is
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asserted “An inspection is strongly recommended by the Local Review Body Forum”. The
appellants have lodged what appears to be an excerpt from a guidance document issued
by the Local Review Body Forum. We do not read the excerpt as including any such
recommendation. However, informal guidance of this sort is no more than guidance; a
local review body exercising the relevant statutory powers has no obligation to follow it.
[38] A local review body must have regard to the review documents, which will include
the material provided in support of the planning application and the Report on Handling
but, as with matters of procedure, it is for the local review body, exercising their planning
judgement, to determine whether the review documents provide sufficient information to
enable them to determine the review: regulation 12, Carroll at para [55] (4), also Simson v
Aberdeen Council at para [23].
[39] Accordingly, we do not find the respondent to have acted in excess of its powers or
to have failed to comply with relevant requirements. We do not see the procedure which
was adopted to have been unfair. We cannot therefore uphold grounds [2] [4] or [5].
Unfairness: referral to Scottish Executive (ground [3])
[40] A difficulty with the appellants’ contention that the respondent should have
referred their review application to Scottish Ministers is that there was no power to do so;
rather the respondent was obliged by the terms of section 43A(8) of the 1997 Act and the
2013 Regulations to proceed as it did. In its note of argument the respondent states that
none of the councillors who composed the LRC on 26 June 2018 and neither of the officials
had objected to the appellants’ application. The appellants do not suggest otherwise. We
cannot uphold this ground of appeal.
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Error as to relevance of SG8 (ground [6])
[41] As counsel submitted, the appellants’ application was not simply for change of use;
it involved some demolition and reconstruction of the buildings on the development site.
The impact of that work on mechanisms of the drainage of surface water and the capacity
of existing drains to contain surface water are matters of fact. In the circumstances it was
open to the LRC to construe the Local Development Plan as requiring the appellants to
comply with paragraph 9.4 of SG8 by providing evidence of consultation and approval in
principle from Scottish Water for the surface water discharge prior to the determination of
the application. However, even if the LRC were wrong in regarding SG8 as relevant, their
error was not material; the appellants’ failure to comply with the requirements of SG8 was
not critical to the decision to refuse the application. We do not uphold this ground of
appeal.
Error as to adverse effects and potential benefits in applying SG10 (grounds [7] to [11])
[42] Counsel for the respondent submitted that grounds [7] to [11] of the appellants’
grounds of appeal are all, in essence, complaints about the respondent’s conclusions in
relation to the planning merits of the application. We agree. The appellants say that the
LRC attached too much weight to the (perhaps limited) intrusion on the privacy of the
neighbouring flats, the potential for noise and disturbance and the limited provision for
cooked meals which were associated with the proposal, while attaching too little weight to
the benefits which the proposal offered. From the planning perspective that may or may
not be correct but, as was explained by Lord Hoffmann in Tesco Stores Limited, matters of
planning judgement are for planning authorities to make and not the courts. Again,
determining the adequacy of the appellants’ management plan was a matter of planning
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judgement. We cannot uphold any of these grounds of appeal. We would add this. The
appellants’ note of argument refers to alleged bias, “local and political pressure”, and
general injustice in respect of the decision. However, on the information before the court
there is no good or sufficient reason to conclude that the procedure was tainted by bias or
impropriety on the part of the members of the LRC or anyone else.
[43] The appeal must accordingly be refused. We reserve all questions of expenses.