Scottish High Court of Justiciary Decisons

PETITION OF BLUE CIRCLE INDUSTRIES PLC FOR JUDICIAL REVIEW [2001] ScotHC 104 (20th September, 2001)

[1] In this petition for judicial review the petitioners seek to challenge the validity of a decision taken by a Reporter in the course of an appeal to the Scottish Ministers against a refusal of planning consent, the decision in question being one whereby the Reporter declined to accede to a motion by the petitioners to sist that appeal.

[2] The appeal concerns an application made to the local planning authority by the petitioners on 4 August 2000 for outline planning consent for housing, with ancillary landscaping and road developments, on an area of land owned by them in East Lothian. The local planning authority did not give a decision within the two month period prescribed for the purposes of section 47(2) of the Town and Country Planning (Scotland) Act 1997 - "the Act" - and on 24 October 2000 the petitioners appealed to the Scottish Ministers against that deemed refusal of planning consent. The Scottish Ministers appointed the first respondent as Reporter to determine the appeal. The public local inquiry into the appeal began on 27 March 2001 and continued until 29 March 2001 when it was then adjourned to enable the petitioners to prepare and lodge additional evidence on matters relating to the roads which had been raised during the inquiry. The date fixed for the resumption of the public local inquiry was 15 May 2001. Prior to that date certain correspondence, to which it will be necessary to revert, passed between the appellants, the Inquiry Reporter's Unit in the Scottish Executive and the local planning authority, who were resisting the planning appeal, concerning a sist of the appeal. When the public local inquiry resumed on 15 May 2001 the appellants (the petitioners) moved a motion to sist the appeal, which motion was opposed by the local planning authority and refused by the Reporter. Having refused to sist the appeal the Reporter then proceeded to hear the remaining evidence and closing submissions and to visit the site.

[3] In order to place the motion for sist and the correspondence preceding it in context it is necessary to mention a further chronology respecting the statutory Development Plan. It appears from the productions in this petition and from what was stated at the Bar that the Structure Plan element of the Development Plan in force at the time of the application for outline planning permission and thereafter was the Lothian Structure Plan 1994 which had been approved by the Secretary of State for Scotland in 1997. It included, in the section relating to housing, policy H7 which commences as follows:- "In addition to the effective and potential private sector housing lands supply identified in Housing Land Audit 12 (31 March 1992), land shall be allocated in local plans for the approximate numbers of private owner occupied sector dwellings in the location shown below (all expressed to the nearest 100 dwellings):". Thereafter one finds a table setting forth various locations within Edinburgh and the Lothians and a number of dwellings pertaining to each location. Policy H7 then continues - "District Councils shall aim to identify sites in local plans which should be finalised within 18 months of Structure Plan approval by the Secretary of State".

[4] At the time at which the Structure Plan was drawn up and approved the Local Plan element of the Development Plan - so far as pertinent to the site - was contained in the Dunbar Area Local Plan of August 1983. In 1998 there was issued a new draft local plan, namely the "Finalised East Lothian Local Plan 1998" being the draft plan intended to replace the 1993 Dunbar Area Local Plan and other local plans in East Lothian. In 1999 the petitioners, along with others, lodged objections to the 1998 draft. In accordance with section 15 of the Act a local inquiry was held respecting objections to the draft local plan. Following that inquiry the reporters on that inquiry issued to the local planning authority their report on the objections to the draft local plan, which objections included representations concerning the way in which the local planning authority proposed to interpret and implement Structure Plan Policy H7. Following discussions in various committees of the local authority a decision was taken by the local planning authority on 30 June 2000 to adopt the draft local plan with certain modifications not fully according with the Reporter's recommendations certain of which, including a recommendation concerning the allocation of housing land, the local planning authority rejected. The petitioners were not content with that decision and on 31 August 2000 they lodged further objections to the terms of the proposed modification to the draft local plan. A modified version of the draft local plan was submitted to the Scottish Ministers in October 2000. In December 2000 the Scottish Ministers issued a direction that the draft be not adopted until they had considered it. That direction was subsequently withdrawn by the Scottish Ministers and accordingly on 3 April 2001 the process of formulating the new local plan was completed by a decision of the local planning authority to adopt a final version as the East Lothian Local Plan. Neither the draft local plan nor the final version allocate for housing the site to which the petitioners' application for outline consent relates.

[5] The resolution of the local planning authority of 3 April 2001 to adopt the East Lothian Local Plan was subject to the rights of appeal to the Court of Session provided in section 238 of the Act. An appeal was thereafter taken by four companies. The present petitioners are not included among those appellants but it was stated at the Bar that the third company among those appellants has acquired ownership of the site from the present petitioners. A copy of the appeal under section 238 of the Act - to which I shall refer as "the Local Plan appeal" - has been produced as No.6/7 of process. It was not available to the Reporter on or prior to 15 May 2001. The appeal seeks reduction in its entirety of the chapter of the Local Plan relating to housing (Chapter 5).

[6] By a letter of 10 May 2001 which was faxed to the Inquiry Reporters' Unit within the Scottish Executive, the petitioners' solicitors advised of the lodging of the Local Plan appeal during the preceding week. The letter stated that the appeal challenged the local planning authority's interpretation of the housing policies in the Structure Plan and the implications which that had for the East Lothian Local Plan. They advised that the Local Plan appeal sought the quashing of Chapter 5 in its entirety. The solicitors went on to state - "we consider that this challenge has potential implications for decision making in the context of this particular [planning] appeal and in particular we would submit that it would be inappropriate for the Reporter to determine the appeal until the legal proceedings are completed in relation to this material point".

[7] On the same date an official in the Inquiry Reporters' Unit wrote in these terms:-

By a faxed letter also of 10 May the local planning authority replied to the suggestion of a sist by indicating their clear opposition. They pointed out that no attempt had been made to suspend the Local Plan and suggested that a corollary of the proposition that it would be inappropriate to determine the appeal would be that a planning authority would not be in a position to determine any planning application in which the interpretation of the relevant housing policies of the Structure Plan had a bearing until the determination of the Local Plan appeal in the Court of Session or the House of Lords. The local planning authority further pointed out that even if the Reporter were to take the view that the local planning authority's understanding of Policy H7 were wrong, there were other grounds upon which the application was opposed. On 11 May 2001 the solicitors for the petitioners faxed a response (6/12 of process) to the Inquiry Reporters' Unit stating inter alia that there was no requirement to seek suspension of the plan; that what was in issue was the interpretation of the Structure Plan which was a matter of law; that it would be unreasonable for the Reporter to proceed to determine the appeal and that in practical terms if he did so it was likely that one or other party would appeal his decision on the merits of the planning appeal. By a further fax of the same date (6/13 of process) the local planning authority completed the exchanges with a further reply respecting the question of suspension of the Local Plan and reiterating their opposition to any sist of the planning appeal.

[8] When the public local inquiry reconvened on 15 May 2001 the petitioners presented their motion for a sist which was opposed by the local planning authority. It appears that on the conclusion of the oral argument the Reporter retired for a short time and thereafter issued his decision with a short, oral exposition of his reasons. Although it is not clear whether it has been prepared by the Reporter from his contemporaneous manuscript notes or otherwise, the document, No.7/1 of process, is accepted by the petitioners as being a note of what, substantially, was said by the Reporter at the time. The document, No.7/1 of process, after introductory reference to the fact of written and oral submissions having been made, proceeds in these terms:-

[9] In the course of the submissions put forward by counsel for the petitioners and counsel for the respondent respectively it became apparent that certain legal propositions were not really in dispute.

[10] First, it was accepted that the proper interpretation of the text of a structure plan was a matter of law and accordingly if a reporter in a planning appeal were to adopt an interpretation of the provisions of a structure plan (or another part of the development plan) which the provisions could not properly bear such a reporter would have misdirected himself in law (City of Edinburgh Council v Secretary of State 1998 S.C.(H.L.) 33; City of Edinburgh Council v Scottish Ministers and Cuba Norte Ltd, First Division, 24 May 2001, unreported).

[11] Secondly, it was accepted that the decision whether to grant or refuse a motion for a sist of procedure was a matter for the discretion of the Reporter, who was given a general discretion regarding procedure under Rule 19 of the Town and Country Planning (Inquiries Procedure) (Scotland) Rules.

[12] Thirdly, there was discussion as to the appropriate test whereby a court might interfere with the exercise of discretion in a procedural decision such as that in issue in the present petition. Although the ground of challenge set out in the petition is couched primarily in terms of what is often termed "Wednesbury unreasonableness", in the course of her submissions Miss Wilson, who appeared for the petitioners, came to submit that the touchstone was, rather, procedural unfairness of such a degree as to warrant the Court's interference. In that regard she referred to R v Panel on Take-overs and Mergers ex parte Guinness Plc [1990] 1 Q.B.146 and in particular the passage in the judgment of Lloyd L.J. at 184 which reads as follows:-

Reference was also made to the passage in the judgment of Donaldson M.R. at 178-9 in which his Lordship said:-

[13] As I understood him Mr Creally who appeared for the respondent was content to take the test proposed by Miss Wilson. He further referred to the discussion of the matter in Supperstone & Goudie on Judicial Review pp.8.2-8.4; R v Monopolies & Mergers Commission ex parte Stagecoach Holdings Plc [1996] TLR 452; R v Secretary of State for Wales ex parte Emery [1996] 4 AER 1.

[14] In many cases it may perhaps be a nice question whether there be any significant practical difference between irrationality in the Wednesbury sense and the test of procedural unfairness of such a nature and degree to warrant interference by the Court but in the present case I proceed on counsel for the respondent's acceptance of Miss Wilson's proposition that the latter criterion is the appropriate test.

[15] Against that background a number of criticisms of the Reporter's decision were advanced by counsel for the petitioners in the course of her submissions.

[16] One such criticism proceeded from the letter of 10 May 2001 (No.6/11 of process) from the official within the Inquiry Reporters' Unit the contention being, as I understood it, that in that letter the Reporter had recognised the centrality of the Development Plan to his decision; that in so doing he recognised the need to sist the proceedings before him pending the outcome of the local plan appeal; and it was therefore illogical for him subsequently to take a different view. For his part counsel for the respondent submitted that the gloss which it was thus sought to put on the letter was ill-founded. Properly read the letter from the Inquiry Reporters' Unit sent in reaction to the fax suggesting a sist, and without knowledge of the attitude to be adopted by the local planning authority and the objectors, was simply indicating that if the proposed sist were to be sought the motion should be made before the public local inquiry closed. On this particular point I consider that the submission of counsel for the respondent is to be preferred. I do not consider that the letter - which, being written by an official, may not precisely reflect the ipsissima verba of the Reporter - should be read as indicating that the Reporter had already formed a clear view other than that if an application were to be made for a sist, from a procedural standpoint it should be done before the inquiry was closed. However, even if the Reporter had reached a preliminary or initial view on the desirability of a sist, it was of course open to him to reach a different view on hearing the parties, whose submissions were invited.

[17] Looking more to the substance of matters, counsel for the petitioners stressed that a central issue in the proceedings before the Reporter had been the proper interpretation of the Structure Plan housing policies and in particular Policy H7. She referred to precognitions from two witnesses in the appeal before the Reporter. She said that if the petitioners were correct in their contention respecting the manner in which Policy H7 required to be interpreted and implemented it would have the consequence that the allocations of housing land in the adopted East Lothian Local Plan were insufficient. That issue also arose in the challenge to the validity of the adopted East Lothian Local Plan in the Local Plan appeal. While it was accepted that there were other issues in the planning appeal, by declining to sist the planning appeal the Reporter had deprived himself of the view of the Court of Session on the interpretation of Policy H7 which would emerge from the determination of the Local Plan appeal. The Reporter was consequently ignoring a relevant and material consideration. The case of James Aitken & Sons (Meat Producers) Ltd v City of Edinburgh District Council 1990 S.L.T.241, to which the Reporter's attention had been drawn, was in point. In the reasons given by the Reporter weight had been laid on the difference between the process of challenging the provisions of a Development Plan and appeals against the refusal of planning consent. In doing so, the Reporter had, said counsel, looked at matters as a generality and had failed to give proper recognition to the importance of the issue of the interpretation of the Structure Plan in the particular dispute before him.

[18] In his response to this chapter of the petitioners' argument counsel for the respondent pointed out that interpreting the provisions of the Development Plan is part of the function normally exercised by any planning appeal reporter. A reporter was entitled, and often bound, to decide upon the proper construction of a Development Plan and it was accordingly not necessary for him to await a decision of a court. Further, in the present case the Reporter had correctly distinguished between the nature and scope of the Local Plan appeal and the nature of his task. Even if the challenge to the validity of the Local Plan were successful - a matter which might perhaps only be settled by a decision of the House of Lords - it would not result in the grant of the petitioners' application. It would simply result in a whole chapter of the Local Plan being quashed. The process of formulating the Local Plan would have to be resumed thereafter.

[19] The distinction drawn by the Reporter between, on the one hand, the process of formulating the provisions of a local plan and challenges to its validity and, on the other, the process of granting or refusing individual applications for planning consent is, in my view, basically correct. Indeed I do not think Miss Wilson really suggested otherwise. The essential thrust of her submission was that since the meaning of the Structure Plan provisions, particularly Policy H7, had been the subject of discussion before the Reporter at the public local inquiry and since similar issues would be likely to be ventilated at the hearing of the Local Plan appeal, the Reporter's decision declining to sist the appeal before him had the result of depriving the Reporter of the guidance which it was likely would be provided by the Court of Session respecting the interpretation of the Structure Plan. He ought to have awaited that guidance.

[20] While it may have been open to the Reporter to take the view that he might await the outcome of the Local Plan appeal, I am not persuaded that he was obliged to do so. As I understood her, counsel for the petitioners sought to maintain that by declining to sist the Reporter was effectively ignoring a material consideration and that the position was thus analogous to that in Aitken. I do not find the case of Aitken to be properly analogous to the present case. In Aitken, in purporting to grant, against objection, planning consent for a particular development on a particular site at a time when a similar application for the same site was under appeal to the Secretary of State and was being opposed by the same objectors, the local planning authority was held to have ignored material considerations in the shape of the Secretary of State's actual, but prospective, determination of that particular appeal on its merit. However, as the Reporter observed, the Local Plan appeal will not result in the grant or refusal of consent for the site in issue for him. While one can see that an imminent appellate decision on an application for planning consent for a similar development on the actual site under consideration by a local planning authority may be a relevant and material consideration which the planning authority cannot foretell, general interpretation of the elements of the development plan is, in my opinion, a different matter. Further, to regard the outcome of the present challenge to the validity of the Local Plan as a "material consideration" would mean that pending the ultimate judicial determination of that issue a local planning authority could not safely deal with any application for planning consent for residential development. It is also to be observed that in section 238(2)(a) of the Act the legislation presumes the continuing validity and applications of provisions of a Development Plan unless wholly or partly suspended by interim order of the Court of Session. I therefore take the view that while the existence of the Local Plan appeal was a factor, among others, for consideration by the Reporter, it did not constrain him to sist the proceedings before him in the way submitted by Miss Wilson.

[21] In regard to the other factors considered by the Reporter, counsel for the petitioners was critical of the Reporter's invocation of a public interest in the due processing of planning appeals. Although the Reporter referred to a general expectation by the public that planning appeals would be duly processed and determined, there was no identification of a particular public interest in the present case. Miss Wilson adverted to the fact that it was the applicant for planning permission, and not the public authority in the shape of the local planning authority, which sought the sist; and there was she added only one objector. Allied to this criticism, counsel for the petitioners further referred to the prejudice which she said would be suffered by the petitioners were their planning appeal not sisted. If the Reporter were to decide the appeal adversely to the petitioners, they would be put to the expense of appealing his decision to the Court of Session. Counsel also stated that in view of the terms of section 39 of the Act, the petitioners would be unable to present any fresh application for planning consent for a period of two years. For completeness, I would record that Miss Wilson also referred to R v Kingston-upon-Thames Justices, ex parte Peter Martin [1994] Imm.A.R.172, discussing matters to which regard may be had in considering adjournment of proceedings. It relates to the attendance of parties to a hearing. I do not find it of any great assistance.

[22] In relation to the terms of section 39 of the Act, I would interpose at this point the observation that the power given to a local planning authority to decline to entertain a fresh application within two years of an application having been refused by the Secretary of State is qualified by there having been no significant change in the development plan. However, the hypothesis envisaged whereon a fresh application might be presented involves there being a significant change in the Development Plan in respect that it is to be assumed that the appellants in the Local Plan appeal are successful. It therefore appears to me that this particular aspect of counsel's submissions is not sound.

[23] For his part, as regards the remaining thrust of this branch of Miss Wilson's submissions, Mr Creally submitted that there was a general public interest in the due and regular determination of planning applications and appeals. Reporters appointed to hear and determine appeals were under a duty to do just that. Simply to sist planning appeals pending the outcome of a challenge to the Development Plan (which might involve a substantial period of time before ultimate judicial determination) would be "a recipe for paralysis". It was for the parties seeking a sist to justify it on proper grounds. Counsel further submitted under reference to Keel v Keel 1985 SLT (Sh.Ct) 52 that it was a general principle of civil procedure that matters should be litigated to conclusion without interruption. The same applied, with greater force, in the context of administrative law. The application had been lodged and the appeal had been taken by the petitioners in knowledge of the inherent uncertainty surrounding the terms of the emerging local plan but in knowledge of the interpretation placed by the local planning authority on the Structure Plan housing policies. If that procedural uncertainty continued by reason of the Local Plan appeal, no new factor was thereby introduced. Further, there was no assurance that the issues which might eventually be focused, discussed and decided in the Local Plan appeal in the Court of Session or the House of Lords would be the same as some of those before the Reporter.

[24] In my view there is force in the submissions advanced on behalf of the respondent. Planning applications are of course not simply a private matter between the local planning authority and the applicant. Planning authorities are required to have regard to a wider public interest. In my opinion the Reporter was well entitled to be mindful of there being a public interest in the efficacious administration of the planning system. The petitioners chose to pursue the appeal to the Scottish Ministers in the knowledge of the view taken by the local planning authority of the Structure Plan and the terms proposed by the local planning authority for the Local Plan. Although engaged in challenging the terms in which the local planning authority interpreted the Structure Plan policies in its proposals for the new local plan, the petitioners evidently did not consider final settlement of the terms of the new local plan to be a necessary pre-condition to their applying for planning consent, and thereafter appealing against its refusal. At the public local inquiry the petitioners contended both in evidence and in submission that the local planning authority's interpretation of the Structure Plan was wrong and invited the Reporter to follow the interpretation for which they contended. It is not suggested by the petitioners that the Reporter is barred from accepting that invitation. It is also apparent from the reasons given by the Reporter when refusing the motion for a sist that he likewise does not regard himself as being inhibited from accepting that invitation.

[25] It must also be added that while counsel for the petitioners sought to stress the importance in the planning appeal of the Structure Plan housing policies there are also other issues, as counsel for the petitioners accepted, relating to the merits of the application for planning consent. Thus it appears that there are objections to the proposal from the Roads Authority, Historic Scotland and the Garden History Society. The local planning authority evidently takes the position that even if its interpretation of the Structure Plan policies were wrong, the appeal should be refused on both housing grounds and, independently, on those other grounds. It is thus not possible in these proceedings to say that those other grounds of opposition may not, for aught yet seen, be determinative of the application for planning consent.

[26] In these circumstances I do not consider that grounds have been demonstrated upon which this Court may properly interfere with the Reporter's exercise of his discretion. I do not consider that the refusal of the petitioners' motion to the Reporter constitutes a procedural unfairness or impropriety warranting the interference of the Court; or any material misdirection in law on the part of the Reporter; or indeed that the refusal constituted a decision which was unreasonable in the Wednesbury sense.

[27] The petition is accordingly refused.