Application to quash decision of reporter — Application by regional council — Competency of appeal — Whether regional council ‘any person aggrieved’ — Whether regional council may challenge decision where planning application determined by district council — Whether reporter considered national planning guidelines
By a
determination of May 17 1988 a reporter appointed by the Secretary of State for
Scotland sustained an appeal by B & Q (Retail) Ltd from a decision of
Hamilton District Council and granted outline planning permission for the
erection of a non-food retail warehouse with garden centre and car parking at
Whistleberry Road, Blantyre. Strathclyde Regional Council applied under section
233 of the Town and Country Planning (Scotland) Act 1972 to have the
determination remitted on the grounds that the reporter had failed to recognise
that accepted policy was that existing urban shopping centres should be
sustained and improved, and more investment directed to them, and that he had
failed to take into account properly the national planning guidelines.
The Secretary
of State and the second respondents had raised pleas-in-law contending that the
application was incompetent as the applicants were not ‘the authority directly
concerned’ and were not ‘a person aggrieved’ within the meaning of section 233
of the 1972 Act.
dismissed.
1. The
expression ‘if any person is aggrieved’ is apt to include persons who had been
given notice of the inquiry and who had, as in the case of the present applicants,
submitted observations to the inquiry and who would have been entitled to
appear at the inquiry: see p 15. However, the applicant regional council were
not ‘the authority directly concerned’; only the Hamilton District Council was
the authority concerned and the language of the statute is such that there is
no room for more than one ‘authority directly concerned’ which, as section
233(7) provides, is the planning authority: see p 15H.
2. The
approach of the reporter was entirely satisfactory. He realised that the
proposed development was contrary to the approved structure plan, but he had
had regard to the terms of a modification to the plan to the effect that major
retail developments were acceptable in locations both within and adjoining existing
shopping centres and to the national planning guidelines 1986: see pp 17F-18.
to in the opinion
Attorney-General
of the Gambia v N’Jie [1961] AC 617; [1961]
2 WLR 845; [1961] 2 All ER 504, PC
Bizony v Secretary of State for the Environment (1976) 239 EG 281,
[1976] 2 EGLR 128; [1976] JPL 306
Buxton v Minister of Housing and Local Government [1961] 1 QB 278;
[1960] 3 WLR 866; [1960] 3 All ER 408; (1960) 59 LGR 45; 12 P&CR 77
R v London Quarter Sessions, ex parte Westminster Corporation
[1951] 2 KB 508; [1951] 1 All ER 1032; (1951) 49 LGR 267, DC
Sidebotham,
ex parte (1880) 14 Ch D 458
Strathclyde
Regional Council v Secretary of State for
Scotland [1989] 2 PLR 111
Turner v Secretary of State for the Environment (1973) 72 LGR 380;
28 P&CR 123; [1973] EGD 1094; 228 EG 335
Wordie
Property Co Ltd v Secretary of State for
Scotland 1984 SLT 345
Application
under section 233 of the Town and Country Planning (Scotland) Act 1972
This was an
application by Strathclyde Regional Council under section 233 of the Town and
Country Planning (Scotland) Act 1972 to challenge a decision of the Secretary
of State for Scotland, by his reporter, who had allowed an appeal against a
decision of Hamilton District Council and had granted an outline planning
permission.
Hamilton QC (instructed by Simpson & Marwick WS) appeared for the applicant
regional council.
(instructed by R Brodie) appeared for the first respondent, the Secretary of
State for Scotland.
Mackay QC and Mark Fitzpatrick (instructed by Drummond & Co WS) appeared
for the second respondents, London & Midland Developments Ltd and McLeod
& Miller (Engineering) Ltd.
following opinion was delivered.
LORD
JUSTICE CLERK (LORD ROSS): This is an appeal under
section 233 of the Town and Country Planning (Scotland) Act 1972 at the
instance of Strathclyde Regional Council (hereinafter referred to as ‘the
appellants’) against a determination by a person appointed by the Secretary of
State for Scotland (hereinafter referred to as ‘the Secretary of State’) for
the purpose of an appeal by B & Q (Retail) Ltd and others in respect of
Whistleberry Road, Blantyre. The determination was dated May 17 1988. The
determination was in the following terms:
Accordingly,
in exercise of the authority delegated to me, I hereby sustain the appeal and
grant outline planning permission for the erection of a non-food retail
warehouse with garden centre and car parking at Whistleberry Road, Blantyre, in
accordance with planning application No. HN-87-0102, dated 23rd February 1987,
subject to the following conditions.
(there then
followed detailed conditions).
In opening the
appeal, Mr Hamilton, for the appellants, explained that the Secretary of State
had appointed a reporter to determine the appeal by three companies, two of
which are London & Midland Developments Ltd and McLeod & Miller
(Engineering) Ltd who appear in this appeal as second respondents. The appeal
was against the refusal of planning permission by Hamilton District Council for
the erection of a non-food retail warehouse with garden centre and car parking
at Whistleberry Road, Blantyre. The application for planning permission had
been dealt with by Hamilton District Council as district planning authority.
The appellants are the regional planning authority for the relevant area.
Mr Hamilton
explained that the appellants’ contention was that in respect of certain
matters which affected their interests the determination was not within the
powers of the Town and Country Planning (Scotland) Act 1972 and that there had
been a failure to comply with certain requirements of that Act in relation to
this appeal. He accordingly maintained that this court should
submitted that the reporter had been wrong in considering that one of the
issues to be determined was whether the proposed development would be liable to
seriously damage the vitality and viability of existing shopping centres in the
area. He maintained that the reporter had failed to recognise that accepted
policy was that existing urban shopping centres should be sustained and
improved, and more investment directed to them. His complaint was that the
reporter had failed to take account properly of the national planning
guidelines.
Before
considering the merits of the appeal, however, Mr Hamilton recognised that both
the Secretary of State and the second respondents had by way of amendment added
pleas-in-law directed to the competency of the appeal. In terms of these
pleas-in-law it was contended that the appeal was incompetent in respect that
the appellants were not ‘the authority directly concerned’ and were not ‘a
person aggrieved’ within the meaning of section 233 of the Act of 1972. At the
hearing before this court the Secretary of State sought to support the plea to
competency, but Mr Mackay, on behalf of the second respondents, explained that
his clients wished to have the merits of the appeal dealt with and that
accordingly they presented no separate argument on competency and did not adopt
the Secretary of State’s submissions on competency. However, since the
Secretary of State has raised the issue of competency, it is necessary for this
court to determine that issue before any question of the merits arises.
In order to
understand the challenge made on the grounds of competency, it is necessary to
examine the relevant statutory provisions. The appeal is taken under section
233 of the Act of 1972. Section 233 provides as follows:
233.–(1) If any person —
. . .
(b) is aggrieved by
any action on the part of the Secretary of State to which this section applies
and desires to question the validity of that action, on the grounds that the
action is not within the powers of this Act, or that any of the relevant
requirements have not been complied with in relation to that action,
he may, within
six weeks from the date on which the order is confirmed or the action is taken,
as the case may be, make an application to the Court of Session under this
section.
(2) Without prejudice to subsection (1) of this
section, if the authority directly concerned with any order to which this
section applies, or with any action on the part of the Secretary of State to
which this section applies, desire to question the validity of that order or
action on any of the grounds mentioned in subsection (1) of this section, the
authority may, within six weeks from the date on which the order is confirmed
or the action is taken, as the case may be, make an application to the Court of
Session under this section.
(3) This section applies to any such order as is
mentioned in subsection (2) of section 231 of this Act (other than an order
under section 203(1)(a) of this Act) and to any such action on the part
of the Secretary of State as is mentioned in subsection (3) of the said section
231.
. . .
(7) In this section . . . any reference to the
authority directly concerned with any order or action to which this section
applies is a reference to the local planning authority . . .
It is plain
from the terms of section 231(3)(b) that a decision of the Secretary of
State on an appeal such as the present appeal falls within the class of actions
of the Secretary of State to which section 233 applies. Mr Hamilton also
reminded us of the background relating to the functions of planning
authorities. Prior to the reorganisation of local government, there was only
one tier of planning authority below the Secretary of State, namely, the local
planning authority. Following upon the reorganisation of local government in
1973, planning functions were divided between different authorities. The Local
Government (Scotland) Act 1973 provided for regional planning authorities and
district planning authorities. These authorities are provided for by section
172 of the Act of 1973 and their functions are described in Schedule 22 to the
1973 Act. It is clear from the terms of Part I of Schedule 22 that among the
functions of a regional planning authority are survey and structure plans.
Among the functions of a district planning authority is planning permission.
Accordingly, an application for planning permission goes to the district
planning authority in the first instance, although a regional planning
authority has power under section 179 of the 1973 Act to call in certain
applications.
Mr Hamilton
also reminded us that in terms of section 180 of the Act of 1973, as originally
enacted, express provision was made, where an application had not been called
in, for the regional planning authority to be entitled to take part in appeal
proceedings against decisions of a district planning authority. Section 180
provides as follows:
180.–Where an appeal is made to the Secretary of State under section 33
of the Act of 1972 (appeals against planning decisions) the applicant shall, at
the same time as he serves notice under subsection (2) of that section, serve a
copy of the notice on the regional planning authority concerned, and that
authority may take part in the appeal proceedings whether by way of written
submissions, or participating in any enquiry, or otherwise.
Mr Hamilton
reminded us that this matter had been taken further by regulations made by the
Secretary of State under powers conferred upon him by the planning Acts. The
Town and Country Planning (General Development) (Scotland) Amendment Order 1976
(SI 1976 no 693) amends the Town and Country Planning (General Development)
(Scotland) Order 1975 (SI 1975 no 679). In terms of the 1976 order a new
article 14 in the 1975 order is substituted. Article 14(3) and (4) make it
plain that a regional planning authority are entitled to take part in appeal
proceedings where there is an appeal against a decision of a planning authority
refusing planning permission or granting permission subject to conditions. In article
14(3), as amended, there is express reference to section 180 of the 1973 Act.
However, in terms of section 5(8) of the Town and Country Planning (Scotland)
Act 1977, section 180 of the 1973 Act is repealed. It appears, however, that no
steps were taken to amend the 1975 or 1976 orders, and we were informed that
the practice described in article 14(3) and (4) continues. We were reminded
that the Town and Country Planning (General Development) (Scotland) Order 1975
and the Town and Country Planning (General Development) (Scotland) Amendment
Order 1976 were revoked by the Town and Country Planning (General Development)
(Scotland) Order 1981 (SI 1981 no 830). However, article 16(5) and (6) contain
provisions similar to article 14(3) and (4) of the 1975 order.
Having regard
to these provisions in the regulations, Mr Hamilton submitted that it was plain
that a regional planning authority might become involved in an appeal in
relation to a decision reached by a district planning authority and that it was
plain that in such circumstances a regional planning authority could take part
in appeal proceedings. Mr Hamilton also drew attention to the provisions of the
Town and Country Planning Appeals (Determination by Appointed Person)
(Inquiries Procedure) (Scotland) Rules 1980 (SI 1980 no 1677). Under reference
to rules 4, 7, 8 and 10, Mr Hamilton pointed out that these rules clearly
provided for representations being made
authorities or development corporations. He also submitted under reference to
rule 11(9) and rule 14(1) that the rules also envisaged representations at an
inquiry being made by other persons.
In the light
of the statutory provisions and the rules to which I have referred, Mr Hamilton
maintained that the words ‘if any person is aggrieved’ in section 233 must
include a person such as the regional planning authority which has made
representations to the reporter who has determined the appeal. He recognised
that where an authority have been charged with adjudicating upon an application
and have refused the application, and there has been an appeal which is
sustained, there was a lot to be said for the view that the authority could not
be regarded as a person aggrieved merely because their decision has been
reversed (R v London Quarter Sessions, ex parte Westminster
Corporation [1951] 2 KB 508). He submitted, however, that it was different
where, as here, the regional planning authority had not made the decision which
had been reversed on appeal but had made representations to the reporter who
made the determination on the appeal. He submitted that the appellants were a
person. In terms of Schedule 1 to the Interpretation Act 1978 ‘person’ includes
inter alia a body corporate, and in terms of section 2(2) of the Local
Government (Scotland) Act 1973 a regional council such as the appellants are a
body corporate. Mr Hamilton further submitted that the appellants were
aggrieved by the determination of the reporter. He stated that in view of the
nature of the planning functions vested in the appellants, and having regard to
the fact that they had participated in the appeal proceedings, there were ample
grounds for holding that they qualified as persons aggrieved by the
determination on the ground that the reporter had failed properly to deal with
contentions which they had made regarding their structure plan and the
commercial policies therein.
Mr Hamilton
then proceeded to consider a number of authorities where the courts in England
had been required to determine what was meant by ‘a person aggrieved’. In ex
parte Sidebotham (1880) 14 Ch D 458 at p 465 James LJ stated:
A ‘person
aggrieved’ must be a man who has suffered a legal grievance, a man against whom
a decision has been pronounced which has wrongfully deprived him of something,
or wrongfully refused him something, or wrongfully affected his title to
something.
In Attorney-General
of the Gambia v N’Jie [1961] AC 617 at p 634, Lord Denning MR
pointed out that the foregoing definition of James LJ was not to be regarded as
exhaustive. He added:
The words
‘person aggrieved’ are of wide import and should not be subjected to a
restrictive interpretation. They do not include, of course, a mere busybody who
is interfering in things which do not concern him: but they do include a person
who has a genuine grievance because an order has been made which prejudicially
affects his interests.
The next case
which Mr Hamilton examined was Buxton v Minister of Housing and Local
Government [1961] 1 QB 278. Salmon J (as he then was) at p 283 stated:
If I could
approach this problem free from authority, without regard to the scheme of the
Town and Country Planning legislation and its historical background, the
arguments in favour of the applicants on the preliminary point would be most
persuasive, if not compelling, for in the widest sense of the word the
applicants are undoubtedly aggrieved. In my judgment, however, I am compelled
to restrict the meaning of the words ‘person aggrieved’ to a person with a
legal grievance.
At p 286 he
added:
I think that
the guiding principle is that laid down by James LJ in In re Sidebotham
to which I have already referred, and which, so far as I know, has never been
challenged: the words ‘person aggrieved’ in a statute connote some person with
a legal grievance.
Mr Hamilton,
however, pointed out that there had been significant changes in legislation
since 1961. In this context he founded particularly upon the Town and Country
Planning Appeals (Determination by Appointed Person) (Inquiries Procedure)
(Scotland) Rules 1980 to which I have already referred. In Turner v Secretary
of State for the Environment (1973) 28 P&CR 123, Ackner J (as he then
was) regarded it as significant that the person claiming to be a person
aggrieved had been given a statutory right to have his representations
considered by the Secretary of State. Mr Hamilton maintained that similar
principles applied to the present case. Here the appellants were a statutory
body, they had been entitled to notice, they had been entitled to make
observations, and they had been entitled to take part in the proceedings.
Accordingly, he submitted that even though they had not participated in the
inquiry none the less since they were entitled to have their observations
considered they could qualify to be a person aggrieved.
Mr Hamilton
next referred to Bizony v Secretary of State for the Environment
[1976] JPL 306. In that case there was no public inquiry but it was agreed that
the matter should be decided on the basis of written representation. For the
purposes of the proceedings, Bridge J (as he then was) was prepared to assume
that the appellant was a person aggrieved, but he stated that this was a
difficult question of law and that if it had been necessary to come to a
decision, he would have wanted to hear further argument upon the matter.
Mr Hamilton
next referred to Strathclyde Regional Council v Secretary of State
for Scotland (April 5 1989)*. That was an appeal under section 232 of the
Act of 1972, and the issue was whether Strathclyde Regional Council as regional
planning authority were entitled to appeal against a decision of the Secretary
of State approving, subject to modifications, proposals for alterations to
their own structure plan. Section 232(1) of the Act of 1972 confers a right to
appeal to the Court of Session upon:
any person
aggrieved by a structure plan or local plan or by any alteration, repeal or
replacement of any such plan.
*Editor’s
note: Reported at [1989] 2 PLR 111.
In the opinion
of the court, the view is expressed that the expression ‘any person aggrieved’
in section 232 does not embrace a planning authority such as the appellants. It
was stated:
In our
opinion, if Parliament had intended to confer upon a planning authority the
right to apply to the Court of Session under section 232, Parliament would have
made specific provision to the effect.
It was pointed
out that the language used in section 232(1) fell to be contrasted with the
language used in sections 233 and 234. It was also stated:
In our
opinion, since Parliament has expressly provided in sections 233 and 234 for an
authority or a planning authority having the right to apply to the Court of
Session, it is a reasonable inference that Parliament did not intend to confer
any such right upon a planning authority so far as proceedings under section
232 are concerned.
Mr Hamilton
stated that he did not concede that that case had been correctly
that it involved a different section of the statute and a different type of
procedure; in particular, there was no question of any hearing taking place or
representations being made as had been done in the present case. He also
pointed out that sections 232 and 233 have different legislative histories.
Section 232 has its origin in section 14 of the Town and Country Planning
(Scotland) Act 1969, whereas section 233 has its origin in section 31 of the
Town and Country Planning (Scotland) Act 1959.
In the
circumstances he contended that the appellants were persons aggrieved within
the meaning of section 233 of the Act of 1972 and that, accordingly, they were
entitled to bring this application before the court. He also submitted that
they were also ‘the authority directly concerned’ within the terms of section
233(2) of the 1972 Act. He recognised that Hamilton District Council would
clearly be an authority directly concerned with the determination of the
Secretary of State upon this matter, but he contended that since the Secretary
of State’s determination impinged upon the appellants’ planning functions, they
also could be regarded as ‘the authority directly concerned’. He drew attention
to section 6 of the Interpretation Act 1978, which provided inter alia
‘unless the contrary intention appears’ that words in the singular include the
plural. Section 233(7) provided that any reference to the authority directly
concerned with any order or action to which the section applied was a reference
to the planning authority, and he contended that the context required the
inclusion of the regional planning authority within the description of ‘the
planning authority’ in section 233. Mr Hamilton very frankly stated that this
argument was not as strong as the argument to the effect that the appellants
were parties aggrieved.
Mr McNeill,
for the Secretary of State, submitted that the pleas to competency on behalf of
the Secretary of State should be upheld. So far as section 233(2) was
concerned, he submitted that ‘the authority directly concerned’ was the
planning authority (section 233(7)). He stressed that Parliament in section
233(7) had not referred to ‘any planning authority’ or ‘planning authorities’
but to ‘the planning authority’. Although the singular might include the plural
by virtue of the Interpretation Act 1978, he reminded us that that was only so
‘unless the contrary intention appears’. He submitted that the contrary
intention clearly appeared from the words used in the Act of 1972. He reminded
us also of the provisions of section 172 of the 1973 Act and pointed out that
it is the district planning authority which is the planning authority directly
concerned with planning permission where the regional planning authority have
chosen not to call in the application.
So far as
section 233(1) was concerned, he founded upon the decision in Strathclyde
Regional Council v Secretary of State for Scotland (April 5 1989).
He pointed out that the same words are used in sections 232 and 233, that these
two sections occur in the same part of the Act (Part XII), and that they are
neighbouring sections and clearly dealing with broadly similar situations. He
maintained that the case of Bizony v Secretary of State for the
Environment added nothing on the matter, and he contended that Attorney-General
v N’Jie turned upon the special position of the Attorney-General as the
guardian of the public interest. Mr McNeill also submitted that the
determination of the Secretary of State’s reporter did not affect the structure
plan. What the reporter required to do was to have regard to the structure plan
and then to weigh the matter up. Nothing in his decision letter changed the structure
plan. Accordingly, he submitted that the appellants as regional planning
authority had no interest to make the present application. He adopted the
reasoning expressed in the opinion of the court of April 5 1989.
I have come to
the conclusion that the appellants are entitled to make this appeal and that
the pleas to competency fall to be repelled. I accept that section 232 and
section 233 are neighbouring sections, but in my opinion it is quite
intelligible that ‘person aggrieved’ may mean different things in these two
adjoining sections. I remain of the opinion expressed in the opinion of the
court of April 5 1989 that the regional planning authority were not persons
aggrieved within the meaning of section 232(1). Apart from anything else, as
the structure plan contained a statement of the regional planning authority’s
policy and general proposals, I am satisfied that the regional planning
authority could never qualify to be a person aggrieved by their own statement
of policy and general proposals. That consideration, however, does not apply to
section 233.
I appreciate
that some of the reasoning in the opinion of April 5 1989 might be thought to
be equally applicable to the present case. However, although I remain of the
opinion that if Parliament had intended to confer upon a planning authority the
right to apply to the Court of Session under section 232, Parliament would have
made specific provision to that effect, it does not follow that the same
reasoning applies in relation to section 233. In the opinion of the court of
April 5 1989, the court was not concerned with a situation where there had been
a public local inquiry and a subsequent decision by a reporter appointed by the
Secretary of State. There was thus no question of the party seeking to show
that he was a person aggrieved because he was a party who had made
representations to a public local inquiry and who was entitled to appear and be
heard there. That being so, it was legitimate for the court when seeking to
ascertain whether Parliament had intended to confer upon a planning authority
the right to apply to the Court of Session under section 232 to look primarily
at the provisions of the statute.
On the other
hand, where, as here, there had been a public local inquiry to which the
appellants had made observations and at which they were entitled to appear, it
is legitimate for the court when seeking to ascertain the intention of
Parliament not only to have regard to the neighbouring sections in the Act of
1972 but also to have regard to the fact that various parties had appeared at
the local inquiry and that others had made observations thereto. This was a
circumstance which was not present in the previous appeal. In my opinion, the
expression ‘if any person is aggrieved’ is apt to include persons who had been
given notice of the inquiry and who had submitted observations to the inquiry
and who would have been entitled to appear at the inquiry: see Turner v Secretary
of State for the Environment per Ackner J at p 139:
Such persons
have, in my judgment, impliedly the right that the Secretary of State in
considering those representations shall act within the powers conferred on him
by the statute and shall comply with the relevant requirements of the statute .
. .
In any ordinary
sense of the word ‘aggrieved’, persons in that situation would be included.
This element was not present in the previous case, and in my opinion is a sound
reason for distinguishing the decision in the previous case. Accordingly, I am
satisfied that Mr Hamilton was well-founded in his contention that the
appellants were persons aggrieved for the purposes of this appeal.
On the other
hand, I am satisfied that they were not ‘the authority directly concerned’. I
agree with Mr McNeill that it was Hamilton District Council which alone was the
authority directly concerned and that the language of the statute is such that
there is no room for more than one ‘authority directly concerned’ which, as
section 233(7) provides, is the planning authority.
There remains
for consideration the merits of the appeal. Mr Hamilton
17 1988 was not within the powers of the 1972 Act and that in relation to that
determination there had been a failure to comply with rule 14(1) of the Town
and Country Planning (Determination by Appointed Person) (Inquiries Procedure)
(Scotland) Rules 1980. So far as the latter ground of challenge is concerned,
rule 14(1) provides:
Unless the
Secretary of State has, under paragraph 3 or 6 of Schedule 7 to the Act,
directed that the appeal shall be determined by the Secretary of State, or, as
the case may be, not be begun or proceeded with, the appointed person shall
notify his decision and his reasons therefor in writing to the appellant, the
planning authority and all section 26 parties and to any person who having
appeared or been represented at the inquiry has asked to be notified of the
decision.
Mr Hamilton’s
submission was that the reporter had manifestly failed to give adequate reasons
for his decision. He referred to Wordie Property Co Ltd v Secretary
of State for Scotland 1984 SLT 345. At p 348 the Lord President stated
under reference to para 11 of the Town and Country Planning (Inquiries
Procedure) (Scotland) Rules 1964 (which uses language similar to rule 14(1)):
So far as
para 11(1) is concerned all that requires to be said is that in order to comply
with the statutory duty imposed upon him the Secretary of State must give
proper and adequate reasons for his decision which deal with the substantial
questions in issue in an intelligible way. The decision must, in short, leave
the informed reader and the court in no real and substantial doubt as to what
the reasons for it were and what were the material considerations which were
taken into account in reaching it.
Subsequently,
the Lord President added:
I have only
to add that in appeals such as these reasons which fail to pass the tests which
I have just discussed will demonstrate a failure to comply with statutory
requirements which cannot have been other than prejudicial to the appellant.
Mr Hamilton
explained that his ultra vires argument was merely another aspect of the
same point. He also submitted that the reporter had arrived at his
determination by relying upon inter alia the national planning
guidelines 1986 (see para 44 of the decision letter).
Mr Hamilton
referred particularly to para 6 of the national planning guidelines. That
paragraph is in the following terms:
These changes
do not mean that the policies underlying the 1978 Guidelines need to be
abandoned. City and town centres retain many natural advantages as shopping
locations and shops make a major contribution to their character. Many have
been the subject of major public and private investment. Wherever opportunities
exist planning authorities should support the provision of sites for major new
retail development in or adjacent to existing centres. At the same time
policies which restrict all new development to existing centres could, in current
circumstances, prevent many towns and cities enjoying the benefits of major new
investment in shopping and deprive consumers of the choice and convenience
which the new forms of shopping provide. Retailing policies should now be
tailored to the circumstances of particular areas rather than being based on
overall prohibition of off-centre development as set out in the 1978
Guidelines.
Mr Hamilton’s
principal criticism of the reporter’s determination was that he had failed to
take into account what is referred to in the fourth sentence of the foregoing
paragraph, in other words, he had failed to take into account the
properly be regarded as in or adjacent to the existing centre, namely, Hamilton
Town Centre. Mr Hamilton contended that in the first paragraph of the
appellants’ grounds of appeal, subparas (a), (b), (c) and (d) all identified
stages at which the reporter had gone wrong and that these all related to the
opportunity of development taking place at Strathclyde Park. It was for these
reasons that Mr Hamilton submitted that the court should set aside the
determination by virtue of the provisions of section 232 of the Act of 1972.
Mr McNeill for
the Secretary of State, on the other hand, submitted that Mr Hamilton’s
approach was misconceived. He contended that it was plain that the reporter had
approached the matter logically and had had regard to all matters which it was
necessary for him to consider. He had been scrupulously fair to those who were
promoting the idea of development in Strathclyde Park and there was no ground
for concluding that the determination was not within the powers of the Act nor
that there had been any failure to comply with rule 14.
In my opinion,
the challenge which Mr Hamilton sought to mount against the determination of
the reporter is not soundly based. The approach of the reporter appears to me
to be entirely satisfactory. He realised that the proposed development was
contrary to the approved structure plan (para 37). He also had regard to the
terms of the modifications to policy COM2 in the Strathclyde Structure Plan:
Update (1986) to the effect that major retail developments were acceptable in
locations both within and adjoining existing shopping centres. The reporter
also had regard to the national planning guidelines 1986.
In his
decision letter the reporter rehearses the arguments presented to him, the
material factors to which he had regard, and he also expresses his conclusions.
His conclusions include para 38, which is in the following terms:
38 In my judgment, the determining issues in
this appeal are firstly, whether there is a need for the site to be retained
for industrial use, secondly, whether the proposed development would be liable
to seriously damage the vitality and viability of existing shopping centres in
the area, and thirdly, whether it would have any serious effect on the proposed
Strathclyde Park development.
I agree with
Mr McNeill that the order in which the reporter expresses these issues is not
important; what is important is that he did consider each of these issues. It
was entirely correct for him to consider whether there was a need for the site
to be retained for industrial use because para 7h of the national planning
guidelines states inter alia:
In a region
where there is a limited choice of prime industrial sites these should be
avoided.
In my opinion,
it was entirely logical and proper for the reporter to consider whether there
was a need for the site to be retained as industrial land. Likewise it was
entirely logical and proper for him to consider whether the proposed
development would be liable to seriously damage the vitality and viability of
existing shopping centres in the area. This consideration is dealt with in para
7(a), (c) and (d). In para 7(d) it is stated inter alia:
It is,
however, necessary to take account of the likely long-term effects of new
off-centre development on the vitality and viability of existing centres and a
judgment has to be made in the light of the prospects for each individual
centre.
It was also
logical and entirely proper for the reporter to have regard to whether the
proposed development would have any serious effect on the
consider that in the context of what was being suggested for Strathclyde Park
and what was stated in the guidelines and in particular in para 6 thereof.
However, para 6 must be read as a whole, and, in my opinion, Mr Hamilton was not
well founded when he suggested that some special priority should be given to
the fourth sentence of para 6. I read that sentence as containing a general
statement as to what planning authorities should do:
Wherever
opportunities exist planning authorities should support the provision of sites
for major new retail development in or adjacent to existing centres.
It is,
however, important to recognise that that statement is immediately qualified by
the succeeding sentence:
At the same
time policies which restrict all new development to existing centres could, in
current circumstances, prevent many towns and cities enjoying the benefits of
major new investment in shopping and deprive consumers of the choice and
convenience which the new forms of shopping provide.
The final
sentence of the paragraph emphasises that retailing policies must now be
tailored to the circumstances of particular areas.
In my opinion,
there is no substance in Mr Hamilton’s contention that the reporter had failed
to take into account any material consideration. Perusal of the decision letter
has persuaded me that the reporter did have regard to all material
considerations. He was aware of what was being suggested for Strathclyde Park
but he correctly recognised that it was not part of his remit in dealing with
the present appeal to assess the advantages and disadvantages of the proposals
for Strathclyde Park. The reporter correctly recognised that each planning
application has to be assessed on its individual merits. His conclusion was that
the proposed development of one DIY warehouse at Whistleberry Road would have,
at most, a marginal effect on the prospects for implementing a much larger,
mixed development at Strathclyde Park. There is no question of the reporter
having disregarded Strathclyde Park or treated the proposals for it as
irrelevant.
In all the
circumstances I am satisfied that Mr Hamilton has failed to make out successful
grounds of challenge in this case. In particular I am satisfied that the
determination of the reporter was within the powers of the 1972 Act and that he
gave adequate reasons for his decision and accordingly complied with the
provisions of rule 14(1) of the Town and Country Planning (Determination by
Appointed Person) (Inquiries Procedure) (Scotland) Rules 1980. I would
accordingly move your lordships to refuse this appeal.
Application
dismissed.
