Two planning applications — First subject to appeal and reporter’s decision awaited — Second granted unconditionally by local planning authority before decision on first known — Reporter grants permission subject to a condition — Whether authority acted unreasonably — Whether authority should have delayed decision until reporter’s decision known — Whether reporter’s decision a material consideration
The
petitioners are the owners of the Royal George Hotel, 2 Tay Street, Perth; the
first respondents, Perth and Kinross District Council, are the owners of the
adjoining building, 6 Tay Street, in respect of which the second respondents,
Flicks (Scotland) Ltd, have an interest. The second respondents made five
applications for planning permission for change of use of 6 Tay Street to a nightclub
and discotheque between 1987 and 1989. The first three applications were
refused by the council in 1988 and the second respondents appealed the refusal
of the second application. The Secretary of State for Scotland appointed a
reporter who, following a public inquiry, granted planning permission on June
29 1989 for change of use. That decision was presently being appealed by the
petitioners to the Court of Session. On May 17 1989 the council granted
permission subject to conditions in respect of the fifth application, that
application being in the same terms as the second. The petitioners contended
that the council acted unreasonably in granting the fifth application and that
there had been procedural impropriety. The issue of
before the reporter and the council were therefore unable to take into account
a material consideration, namely the reporter’s decision. By the reporter’s
decision permission had been granted on the second application subject to a
condition that the building should be used as a nightclub and discotheque on no
more than five nights in any week; no such condition had been imposed by the
council in relation to the permission they had granted.
The purported
grant of planning permission dated May 17 1989 was ultra vires and of no
effect. The action of the council was so unreasonable that no reasonable
planning authority could have so acted. The appeal to the Secretary of State,
in relation to the second application, had reached such an advanced stage that
it was unreasonable for the council to grant the fifth application at the time
they did, particularly as the grant rendered abortive the proceedings at the
inquiry and the planning permission granted by the Secretary of State. Once the
public inquiry had been held, the outcome of the appeal became a material
consideration to which the council had to have regard: see pp 34-35. If the
council considered that they had to decide the fifth application within the
two-month statutory period, they could have extended the time by consent or
refused the application as premature: see p 36.
to in the opinion
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA
Bovis
Homes (Scotland) Ltd v Inverclyde District
Council 1982 SLT 473; [1983] JPL 171
James
Aitken & Sons (Meat Producers) Ltd v City of
Edinburgh District Council [1990] 1 PLR 14
Petition for
judicial review
This was a
petition for judicial review of a decision by Perth and Kinross District
Council to grant planning permission to the second respondents.
QC (instructed by Lindsays WS) appeared for the petitioners, Trusthouse Forte
(UK) Ltd.
(instructed by W & J Burness WS) appeared for the first respondents, Perth
and Kinross District Council.
Bonomy (instructed by Allan McDougall & Co SSC) appeared for the second
respondents, Flicks (Scotland) Ltd.
following opinion was delivered.
LORD
KIRKWOOD: The petitioners, Trusthouse Forte (UK)
Ltd, seek judicial review of a decision by Perth and Kinross District Council,
as local planning authority, dated May 17 1989 granting planning permission to
Flicks (Scotland) Ltd for change of use of a building at 6 Tay Street, Perth,
from stores to a nightclub and discotheque.
The
petitioners are the owners of the Royal George Hotel, 2 Tay Street, Perth,
which is adjacent to the building at 6 Tay Street, Perth. That building
(hereinafter referred to as ‘the appeal subjects’) was formerly a church but
has been used for storage. It is owned by the district council, but I was
informed that, prior to the first application for planning permission
hereinafter referred to, the district council had entered into missives in
terms of which they agreed to sell the subjects to Flicks (Scotland) Ltd
subject to planning permission being granted for change of use to a nightclub
and discotheque. Flicks (Scotland) Ltd, the second respondents (or an associated
company), have made a total of five applications for planning permission for
change of use of the appeal subjects to nightclub and discotheque. The first
application was made in 1987, the second and third applications were made in
1988 and the fourth and fifth applications were made in 1989. All five
applications were in substantially the same terms. The first three applications
for planning permission were refused by the district council in February, March
and July 1988.
The refusal of
the second application was appealed to the Secretary of State for Scotland, who
appointed a reporter, Mr Gordon, to determine the appeal. A public local
inquiry was held at Perth on May 3 and 4 1989 and the petitioners, the district
council and the second respondents, were all represented at the inquiry. On
June 29 1989 the reporter issued his decision letter in terms of which he
granted planning permission for change of use from stores and offices to
nightclub and discotheque subject to certain conditions which are set out in
his decision letter. That decision is presently the subject of an appeal by the
petitioners to the Court of Session. In the meantime, a fourth application for
planning permission was made early in 1989. On March 1 1989 the district
council resolved to grant that application, but a formal planning consent was
never issued as the petitioners presented an application to the Court of
Session for judicial review on the basis that there had been a failure properly
to advertise the application and the district council gave an undertaking to
the court not to issue the formal grant of planning permission pending the
resolution of the dispute between the parties.
A fifth
application for planning permission for change of use was lodged on April 18
1989 and on May 17 1989 the district council granted that application subject
to certain conditions. I was also informed that in July 1988 Dreadnought Inns
(Blairgowrie) Ltd was granted planning permission for change of use of the
appeal subjects to a music and arts centre and in September 1988 Whatlings
Developments plc were granted planning permission for residential use.
When the
district council granted the fifth application for planning permission for
change of use on May 17 1989, the second application (which was in identical
terms and had been refused by the district council) was under appeal to the
Secretary of State, a public inquiry had been held and the decision letter was
awaited.
Counsel for
the petitioners did not argue that it has been incompetent for the district
council to determine the fifth application, but he submitted that in the
circumstances the district council had acted unreasonably in granting that
application and that there had been procedural impropriety. Counsel founded
particularly on the fact that the issue of whether planning permission for
change of use of the appeal subjects should be granted was already before the
Secretary of State’s reporter and a public inquiry had been held. By deciding
to grant the fifth application when they did, the district council had been
unable to take into account a material consideration, namely the decision
reached by the Secretary of State’s reporter on an identical application.
While the
Secretary of State’s reporter had subsequently granted planning permission for
change of use, he had done so subject to, inter alia, a condition that
the building should be used as a nightclub and discotheque on no more than five
nights in any week, but no such condition had been imposed by the district
council. By granting the fifth application the district council had, in effect,
rendered nugatory the decision made by the Secretary of State’s reporter. As
the same issue of principle, namely whether planning permission should be
granted for change of use of the appeal subjects to a nightclub and
discotheque, was already before the Secretary of State’s reporter, and the
reporter’s decision would clearly be a material consideration so far as the
district council’s determination of the fifth application was concerned, the
district council should have delayed reaching a decision on the fifth
application until the reporter had issued his decision letter.
While the
district council were obliged to issue a decision within two months, they could
have asked the applicants to agree to a decision on the fifth application being
deferred until the decision of the Secretary of State’s reporter had been
issued. If such agreement had not been forthcoming, the district council could
nevertheless have delayed reaching a decision until the reporter’s decision
letter had been issued, leaving it to the applicants, if so advised, to deem a
refusal and appeal to the Secretary of State.
Alternatively,
the district council could simply have refused the fifth application. Further,
the fact that the district council had contracted to sell the appeal subjects,
subject to planning consent for change of use being granted, made it all the
more important for the district council to be seen to be acting reasonably.
By granting
the fifth application when an identical earlier application was before the
Secretary of State, a public inquiry had been held and a decision was awaited,
the district council had acted unreasonably and there had been procedural
impropriety: see Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223. Counsel founded strongly on the opinion of
Lord Dervaird in James Aitken & Sons (Meat Producers) Ltd v City
of Edinburgh District Council (unreported, June 12 1989)*. In that case an
application for planning permission for housing development, made in June 1987,
had not been determined by the planning authority within the two-month period
prescribed and the applicants exercised their right to appeal to the Secretary
of State. The petitioners had objected to the application. The appeal proceeded
by way of written submissions and a site inspection was held on about May 24
1988. On September 29 1988 the reporter issued his decision dismissing the
appeal. In the meantime what was described as a duplicate application had been
made by the applicants in December 1987. Following discussions between the
applicants and the local authority an amended plan was lodged in respect of the
second application and it was granted by the local planning authority on
September 19 1988, just 10 days before the reporter issued his decision on the
earlier application. In that case Lord Dervaird held that it was plainly
unreasonable for the local planning authority to come to a view on the issue of
principle raised by the applications before they could have the benefit of the
views of the Secretary of State on that same issue. Counsel submitted that the
case of Aitken was very similar on its facts to the present case and
should be followed. In the circumstances the purported grant of planning
permission of May 17 1989 was ultra vires and of no effect.
*Editor’s
note: Reported at [1990] 1 PLR 14.
Counsel for
the first respondents, the district council, referred to para 10(5) of the Town
and Country Planning (General Development) (Scotland) Order 1981 (SI 1981 no
830) which provides that where a valid application for planning permission has
been received, the period within which the authority ‘shall give notice to an applicant
of their decision or determination’ shall be two months, commencing on the date
of receipt of the application, or such extended period as may be agreed upon in
writing between the applicant and the planning authority. Further, the planning
legislation permitted applicants to lodge more than one application for
planning permission for the same development. The fifth application for
planning permission for change of use had been received on April 18 1989 and
accordingly the district council were under a statutory duty to determine that
application within two months. They had no power at their own hand to delay
their decision beyond the expiry of the two-month period. As the reporter’s
decision letter was not issued until
the fifth application within two months, as they were obliged to do, they could
not take into account the views of the reporter. However, the district council
were obliged to take into account only the information which was available to
them at the time when they reached their decision on an application.
The district
council did not accept that the outcome of the appeal to the Secretary of
State, and the reasons given by the reporter for his decision, were material
considerations which the district council had to take into account in
determining the fifth application. The district council had properly considered
the fifth application in the light of all the information available at the
time. In particular, they considered the objections advanced by, inter alia,
the petitioners. While the district council had refused the first three
applications, there had since then been a change of attitude on the part of the
council. In particular, the composition of the district council had changed and
they had before them a report dated March 1 1989 by the director of planning
and industry relating to planning applications for licensed premises in Perth.
The committee had also had before them the report by the director of planning
dated March 1 1989 dealing with the proposed change of use. The district
council had reached their decision within the statutory time-limit on the basis
of the information properly available to them at the time. The district council
had no power to defer a decision until such time as the reporter’s decision
letter relating to the second application was issued. In any event, the
reporter’s decision had been appealed by the petitioners to the Court of
Session and it could not be said that the district council would have been
under an obligation to defer their decision on the fifth application until the
decision of the Court of Session was known. If a local planning authority do
not issue a decision on a planning application within two months, they continue
to be under an obligation to issue a decision and it is open to the applicant
to go to court at any time thereafter (provided that he has not deemed a
refusal and appealed to the Secretary of State) to seek to enforce the planning
authority’s duty to issue a decision: see Bovis Homes (Scotland) Ltd v Inverclyde
District Council 1982 SLT 473.
In this case,
submitted the first respondents, the district council could not be criticised
for reaching their decision within the statutory two-month period on the basis
of the information then before them. The decision of Lord Dervaird in the Aitken
case could readily be distinguished. In that case the local authority had
conceded that the fact that the first application was before the Secretary of
State on appeal (and therefore the outcome of the appeal) was a material factor
in their consideration of the second application. No such concession was made
by the district council in this case.
Further, in
the Aitken case the planning authority’s decision had not been issued
within the statutory time-limit but was issued some nine months later (and just
before the Secretary of State’s decision letter became available). Further, in
the present case the Secretary of State’s reporter and the district council had
both decided that the application for change of use should be granted subject
to conditions. Counsel accepted that the district council had, prior to the
first application for planning permission, entered into missives to sell the
appeal subjects subject to the grant of planning permission for change of use,
but the petitioners did not aver that the decision complained of was actuated
by any improper motive or had been reached in bad faith. In this connection it
was noteworthy that the first three applications had all been refused. In the
circumstances there were no relevant averments to support the petitioners’
contention that the district council had acted unreasonably or that there was
any procedural impropriety. The district council had not taken
to consider any matter which they should have considered. In these
circumstances the petitioners submit that the petition should be dismissed.
Counsel for
the second respondents submitted that there had been no procedural impropriety
as the district council, before they reached their decision on the fifth
application, had considered the objections which the petitioners, and the other
objectors, had put forward.
So far as the
petitioners’ averment relating to the missives which the district council had
entered into was concerned, this was simply a prejudicial averment and there
was no suggestion that the district council, in reaching their decision, had
been actuated by bad faith. The critical question was whether the district
council had acted unreasonably in granting the fifth application without
waiting for the decision letter to be issued by the reporter on the appeal
relating to the second application. There was no important matter of principle
involved. The only question was whether the proposed change of use of these
particular subjects should be permitted. The district council were under an
obligation to issue their decision on the fifth application within two months
and multiple applications for the same development are permitted by the
planning legislation.
In this
connection counsel for the first respondents referred to the Town and Country
Planning (Fees for Applications and Deemed Applications) (Scotland) Regulations
1983 (SI 1983 no 1697). The ‘material considerations’ referred to in section
26(1) of the Town and Country Planning (Scotland) Act 1972 had to be factors
which existed and were known at the time the application was being considered.
The outcome of an appeal in relation to another application, even though the
applications were identical, was not a material consideration which the
planning authority were required to take into account. The district council had
no power, of their own volition, to delay their determination to await the decision
of the reporter. The case of Aitken fell to be distinguished on its
facts, particularly in light of the concession made by the planning authority
in that case.
An appeal to
the Secretary of State involves a rehearing, but the local planning authority
are not bound by any decision subsequently reached by the Secretary of State.
In this case the district council, having refused the first three applications,
had decided to grant the fourth and fifth applications but the alteration in
their attitude towards the proposed change of use had, in the circumstances,
been fully justified. The conditions which the reporter subsequently attached
to his grant of planning permission were of no material significance and there
were no relevant averments of any real prejudice to the petitioners resulting
from the district council’s alleged failure to delay their decision until the
reporter had issued his decision letter. In the circumstances there were no
relevant averments which would justify the intervention of the court and the
petition should be dismissed.
It is, in my
view, clear that the planning legislation permits a prospective developer to
lodge duplicate applications for planning permission. Indeed, counsel were
agreed that it is not uncommon for an applicant to lodge two identical
applications and, if no decision has been issued by the end of the two-month
period, to deem a refusal in the case of one of the applications and appeal to
the Secretary of State while still hoping to persuade the planning authority to
grant the other application.
On behalf of
the petitioners it was conceded that it was competent for the district council
to determine the fifth application even though the second application was
currently under appeal to the Secretary of State, and I consider that that
concession could not reasonably have been withheld,
Country Planning (General Development) (Scotland) Order 1981, which provides
that the planning authority ‘shall give notice’ to an applicant of their
decision within a period of two months or such extended period as may be agreed
upon in writing between the applicant and the planning authority. The question
which arises in this case is whether the district council acted unreasonably
(in the Wednesbury sense) in granting the fifth application for change
of use when an earlier identical application which had been refused was under
appeal to the Secretary of State and a public inquiry had been held.
A decision by
a planning authority to grant an application for planning permission would not
be rendered unreasonable by reason only of the fact that the applicant had
lodged another identical application, had deemed a refusal and appealed to the
Secretary of State. In considering whether a planning authority have acted
unreasonably regard must, of course, be had to the particular circumstances of
each individual case. In this case the district council had refused the second
application for change of use of the appeal subjects. That refusal of planning
permission was appealed to the Secretary of State and a public inquiry was held
on May 3 and 4 1989. On April 18 1989 the fifth application had been lodged.
The applicants did not at any stage seek to withdraw the second application or
abandon the appeal to the Secretary of State.
At the public
inquiry the applicants (the second respondents), the district council, the
petitioners and the other objectors were all represented. The applicants gave
evidence that it was intended that the nightclub and discotheque would operate
regularly on five nights a week (Wednesday to Sunday). The district council
informed the reporter that, despite their initial decision on the proposal, the
present view of the district council was that the appeal should be sustained.
The district council also stated that had a decision notice on the fourth
application been issued, it would not have contained any conditions.
Approximately two weeks after the public inquiry had been held, the district
council decided to grant the fifth application. They granted that planning
permission in spite of the fact that the same issue was before the Secretary of
State’s reporter and had been the subject of a two-day public inquiry at which
the interested parties, including the district council and the various
objectors, had been represented and had had the opportunity of making their
submissions to the reporter.
The district
council granted the application without imposing any condition relating to the
number of nights on which the premises could be open. The planning permission
granted by the Secretary of State’s reporter on June 29 1989 contained a
condition that the building should be used as a nightclub and discotheque on no
more than five nights in any week. Thus, there are now two planning permissions
for change of use of the appeal subjects granted within six weeks of each
other, on the basis of virtually identical applications, but containing
materially different conditions. In the particular circumstances of this case I
have reached the conclusion that the appeal to the Secretary of State in
relation to the second application had reached such an advanced stage that it
was unreasonable for the district council to grant the fifth application at the
time they did, particularly as that grant of planning permission effectively
rendered abortive the proceedings which had taken place at the two-day public
inquiry and the planning permission granted by the Secretary of State’s
reporter.
I am
reinforced in the conclusion which I have reached by the views expressed by
Lord Dervaird in the Aitken case. It seems to me that once the public
inquiry had been held, all the interested parties had had an opportunity
of making submissions to the Secretary of State’s reporter and the reporter’s decision
letter was awaited, the outcome of the appeal had become a material
consideration to which the district council had to have regard when they
considered the fifth application.
For the
district council it was contended that they were legally obliged to issue their
decision on the fifth application within two months and that they were
therefore clearly unable to have regard to the reporter’s decision letter,
which was not issued until after the expiry of the two-month period. The
district council could, of course, have sought the agreement of the applicants
to an extension of the two-month period. If, however, the district council
decided to determine the application within the statutory two-month period,
they could simply have refused it as premature. While reference was made in the
course of the argument to the fact that the district council had entered into
missives to sell the appeal subjects to the second respondents subject to
planning permission for change of use, the district council had previously
refused three applications for planning permission and counsel for the
petitioners very fairly said that he could not argue that the fact that these
missives had been entered into had resulted in the district council’s decision
on the fifth application having been actuated by any improper motive.
However, as I
am of the opinion that the action of the district council in granting the fifth
application when they did was so unreasonable that no reasonable planning
authority could have so acted, I shall grant declarator that the purported
grant of planning permission dated May 17 1989 is ultra vires and of no
effect and I shall also grant decree of suspension as sought.
Declarator
and decree of suspension granted.
