Development plan — Town and Country Planning (Scotland) Act 1972 section 18A (Town and Country Planning Act 1990 section 54A) — Statutory presumption in favour of development plan — Duty of decision maker under section 18A — Whether building listed building
The respondent
city council refused an application for outline planning permission for the
retail development of a site and for listed building consent to demolish a
former riding school building on the site. Following a public local inquiry
into the appeals by the second appellant developers against those decisions,
the reporter (the inspector) granted outline planning permission and concluded
that listed building consent was not required. The former riding school was not
within the description of listed building in the formal list. The reporter took
into account a recent draft structure plan in reaching his decisions. The
Second Division of the Court of Session held that the reporter had failed
correctly to apply the statutory presumption (in favour of the 1985 structure
plan) in section 18A of 1972 Act and that he was not entitled to find that the
former riding school was not a listed building. The Secretary of State for
Scotland and the developers appealed the decision in relation to the grant of
planning permission, and the developers appealed in relation to the listed
building consent matter.
was allowed; the appeal relating to the need for listed building consent was
refused.
By virtue of
section 18A of the Town and Country Planning (Scotland) Act 1972 (in England
and Wales section 54A of the Town and Country Planning Act 1990), the
development plan is no longer simply one of the material considerations. Its
provisions, provided that they are relevant to the particular application, are
to govern the decision unless there are material considerations which indicate
that in the particular case the provisions of the plan should not be followed.
It can be said that there is now a presumption that the development plan is to
govern the decision on an application for planning permission. Section 18A
(section 54A) has introduced a potential ground on which the decision maker
could be faulted were he to fail to give effect to the recognition of the
priority to be given to the development plan: see p82F. It is undesirable to
devise any universal prescription for the method to be adopted by the decision
maker as to the practical application of section 18A. The reporter did not
misunderstand the effect of section 18A. The reporter was entitled to find a
quantitative deficiency of local shopping facilities in terms of a policy in an
unapproved recent version of the structure plan, in considering the 1985
structure plan. The reporter was not required to quantify the extent of the
deficiency. The reporter’s finding on quantitative deficiency was clear and
certain. The reporter dealt consciously but clearly with the critical issues.
The reporter was entitled to decide that the statutory presumption in favour of
the 1985 structure plan should be overcome by the more recent guidance, in
particular the draft structure plan: see pp87–89. However the reporter was
wrong in deciding that one of the buildings was not a listed building; the only
possible construction of the list was that the relevant building was listed.
to in the opinions
Bolton
Metropolitan District Council v Secretary of
State for the Environment [1995] 1 WLR 1176; (1995) 71 P&CR 309; [1995]
3 PLR 37; [1995] JPL 1043, HL
Hope v Secretary of State for the Environment (1975) 31 P&CR
120; [1976] 2 EGLR 147; [1976] EGD 823; 240 EG 627
Loup v Secretary of State for the Environment (1995) 71 P&CR
175; [1996] JPL 22
Poyser
and Mills’ Arbitration, In re [1964] 2 QB 467;
[1963] 2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills
[1963] EGD 421; (1963) 185 EG 609
Simpson v Edinburgh Corporation 1960 SC 313
Tesco
Stores Ltd v Secretary of State for the
Environment [1995] 1 WLR 759; [1995] 2 All ER 636; (1995) 93 LGR 403;
[1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72, HL
Wordie
Property Co Ltd v Secretary of State for
Scotland 1984 SLT 345
Appeal against
the decision of the Second Division
This was an
appeal by the Secretary of State for Scotland and Revival Properties Ltd
against the decision of the Second Division of the Court of Session, which had
held that the Secretary of State, by his reporter, had erred in allowing an
appeal against the refusal by the City of Edinburgh Council to grant planning
permission to Revival.
Campbell QC and Colin J Tyre (instructed by the Treasury Solicitor) appeared
for the Secretary of State for Scotland.
and PS Hodge QC (instructed by Berwin Leighton, London agents for Brodies WS,
of Edinburgh) appeared for Revival Properties Ltd.
Gale QC and Michael Upton (instructed by Rees & Freres, London agents for
the solicitor to Edinburgh City Council) represented City of Edinburgh District
Council.
following opinions were delivered.
LORD
BROWNE-WILKINSON: My lords, I have had the
advantage of reading in draft the speech to be delivered by my noble and
learned friend, Lord Clyde. For the reasons he gives I would make the order
which he proposes.
LORD MACKAY
OF CLASHFERN: My lords, I have had the advantage
of reading in draft the speech to be delivered by my noble and learned friend,
Lord Clyde. For the reasons he has given I would also make the order which he proposes.
LORD STEYN: My lords, I have had the advantage of reading in draft the speech
to be delivered by my noble and learned friend Lord Clyde. For the reasons he
has given I would also make the order which he proposes.
LORD HOPE OF
CRAIGHEAD: My lords, I have had the advantage of
reading in draft the speech which has been prepared by my noble and learned
friend, Lord Clyde. I agree with it, and for the reasons which he gives I also
would allow the appeal on the planning law issue and dismiss the appeal on the
issue about listed building consent.
I should like,
however, to add a few observations about the meaning and effect of section 18A
of the Town and Country Planning (Scotland) Act 1972, and to say rather more
about the listed building consent issue which has revealed some practical
problems about the way buildings are listed for the purposes of the statute —
as to which I am unable, with respect, to agree with the approach taken by the
learned judges in the Second Division.
Planning
issue
Section 18A of
the Town and Country Planning (Scotland) Act of 1972, which was introduced by
section 58 of the Planning and Compensation Act 1991, creates a presumption in
favour of the development plan. That section has to be read together with
section 26(1) of the Act of 1972. Under the previous law, prior to the
introduction of section 18A into that Act, the presumption was in favour of
development. The development plan, so far as material to the application, was
something to which the planning authority had to have regard, along with other
material considerations. The weight to be attached to it was a matter for the
judgment of the planning authority. That judgment was to be exercised in the
light of all the material considerations for and against the application for
planning permission. It is not in doubt that the purpose of the amendment
introduced by section 18A was to enhance the status, in this exercise of
judgment, of the development plan.
It requires to
be emphasised, however, that the matter is nevertheless still one of judgment,
and that this judgment is to be exercised by the decision maker. The
development plan does not, even with the benefit of section 18A, have absolute
authority. The planning authority are not obliged, to adopt Lord Guest’s words
in Simpson v Edinburgh Corporation 1960 SC 313 at p318,
‘slavishly to adhere to’ it. They are at liberty to depart from the development
plan if material considerations indicate otherwise. No doubt the enhanced
status of the development plan will ensure that in most cases decisions about
the control of development will be taken in accordance with what it has laid
down. But some of its provisions may become outdated as national policies
change, or circumstances may have occurred which show that they are no longer
relevant. In such a case the decision where the balance lies between its
provisions, on the one hand, and other material considerations, on the other,
which favour the
must be satisfied, will continue, as before, to be a matter for the planning
authority.
The
presumption which section 18A lays down is a statutory requirement. It has the
force of law behind it. But it is, in essence, a presumption of fact, and it is
with regard to the facts that the judgment has to be exercised. The primary
responsibility thus lies with the decision maker. The function of the court is,
as before, a limited one. All the court can do is review the decision, as the
only grounds on which it may be challenged in terms of the statute are those
which section 233(1) of the Act lays down. I do not think that it is helpful in
this context, therefore, to regard the presumption in favour of the development
plan as a governing or paramount one. The only questions for the court are
whether the decision maker had regard to the presumption, whether the other
considerations which he regarded as material were relevant considerations to
which he was entitled to have regard, and whether, looked at as a whole, his
decision was irrational. It would be a mistake to think that the effect of
section 18A was to increase the power of the court to intervene in decisions
about planning control. That section, like section 26(1), is addressed
primarily to the decision maker. The function of the court is to see that the
decision maker had regard to the presumption, not to assess whether he gave
enough weight to it where there were other material considerations indicating
that the determination should not be made in accordance with the development
plan.
As for the
circumstances of the present case, I agree that the reporter was entitled in
the light of the material which was before him to give priority to the more
recent planning guidance in preference to the development plan, and that the
reasons which he gave for his decision in the light of that guidance to grant
planning permission were sufficient to explain the conclusions which he had
reached.
Listed
buildings issue
The
appellants’ argument was that the list of buildings of special or historic
interest which the Secretary of State for Scotland has compiled under section
52 of the Town and Country Planning (Scotland) Act 1972 did not include the
former riding school at Redford Barracks and that the reporter was entitled to
make a finding to this effect. Their approach was that the question whether the
building was a listed building was a question of fact which the reporter was
entitled to decide as part of the case which was before him in the appeal
against the refusal of listed building consent. Yet it became clear in the
course of counsel’s argument that the issue which the appellants regard as one
of fact depends upon the proper construction of the entries in the list. So it
seems to me that the underlying question — if it is truly one of construction —
is one of law.
The structure
of the legislation which is contained in sections 52 to 54 of the Act is to
this effect. It is the responsibility of the Secretary of State to compile or
approve of the list. He may take account, in deciding whether or not to include
a building in the list, of the building itself and its setting.
interest of any group of buildings of which it forms part may be taken into
account. So also may be the desirability of preserving any feature of the
building fixed to it or comprised within its curtilage on the ground of its
architectural or historic interest. The building itself must be identified in
the list, but section 52(7) also provides that, for the purposes of the Act,
any object or structure fixed to the building or forming part of the land and
comprised within the curtilage of the building shall be treated as part of it.
Thus it is not necessary to do more than to identify the building — or, in
cases such as the present, the principal buildings — in order to extend the
statutory protection to these additional elements. The details of the procedure
are set out in the Town and Country Planning (Listed Buildings and Buildings in
Conservation Areas) (Scotland) Regulations 1975 (SI 1975 No 2069) as amended by
the Town and Country Planning (Listed Buildings and Buildings in Conservation
Areas) (Scotland) Amendment Regulations 1977 (SI 1977 No 255).
The control
which the Act lays down of works for the demolition of a listed building, or
its alteration or extension in a manner which would affect its character as a
building of special architectural or historic interest, is the prohibition of
any such works which have not been authorised. The question whether works of
alteration or extension should be authorised can be dealt with as part of an
application for planning permission. Section 54(2) provides that, where
planning permission is granted for such works, that permission shall operate as
listed building consent in respect of those works. But in this case what the
appellants wish to do is to demolish the building, so a separate application
for listed building consent under Schedule 10 to the Act of 1972 was required.
Para 7(2) of that Schedule provides that a person appealing against a decision
to refuse consent by the local planning authority may include in his notice as
the ground or one of the grounds of his appeal a claim that the building is not
of special architectural or historic interest and ought to be removed from the
list. But there is no provision in that Schedule or elsewhere in the Act which
enables a person aggrieved to include as one of his grounds of appeal that the
building to which his application for consent relates is not included in the
list as a listed building. The Act assumes, in regard to the statutory
procedures, that the question whether or not a building is a listed building
can be determined simply by inspecting the list which the Secretary of State
has prepared.
The list
itself is not the subject of any prescribed form. The only prescribed form for
which the Act of 1972 provides is that for the form of notice which is to be
served on every owner, lessee and occupier of the building under section 52(5)
stating that the building has been included in, or excluded from, the list as
the case may be. The prescribed form of notice is set out in Schedule 5 to the
1975 Regulations. It is in these terms:
notice is hereby given
that the building known as … situated in the … has been included in the list of
buildings of special architectural or historic interest in that area compiled
by the Secretary of State under section 52 of the Town and Country Planning
(Scotland) Act 1972 on
… 19 …
Dated … 19 …
(Signature of
Authorised Officer).
It can be seen
from this form of notice that the only information which is communicated to the
owner, lessee and occupier to indicate the identity of the listed building is
the name by which the building is known and the place where it is situated. The
effect of section 52(7), as I have said, is to require any object or structure
fixed to that building or forming part of the land and comprised within the
curtilage of the building to be treated as part of the building for the purposes
of the provisions in the Act relating to listed buildings. But the form of
notice does not require a description of the building to be given. The
assumption is that the name of the building will be sufficient to identify what
is in the list.
The list which
is available for public inspection under section 52(6) is a more elaborate
document, and it is this aspect of the matter which appears to have given rise
to some confusion in the present case. It comprises six columns, headed
respectively ‘Map reference’, ‘Name of Building’, ‘Description’, ‘References’,
‘Category’ and ‘Notes’. In the column headed ‘Name of Building’ there appears
this entry:
Redford Barracks
Colinton Road and Colinton Mains Road (original buildings of 1909–15 only).
The column
headed ‘Description’ contains a very detailed description of the premises. It
begins by naming the architect, who is said to have been Harry B Measures,
director of barrack construction, 1909–1915. There then follows a comprehensive
description of the barracks and the various buildings comprised therein,
together with references to various features of architectural or historic
interest. In the middle of this description, which occupies nearly four pages
on the list, there appears this passage:
other
buildings to S with large riding school at extreme SE, all tall single-storey,
simple treatment.
The column
headed ‘References’ contains this entry:
Information
courtesy Buildings of Scotland Research Unit.
My impression
is that the list which I have been attempting to describe was intended to serve
several functions. First, it was intended to identify the listed building. It
did this by stating its name and its location. That was all it needed to do in
order to record the information which had been given in the prescribed notice
to the owner, lessee and occupier. Then it was intended to provide a
description of the building. There is no requirement for this — nor is there
space — in the prescribed form of notice. But a description is a useful thing
to include in the list, as decisions may have to be taken from time to time as
to whether authorisation should be given under section 53(2)(a) of the
Act of 1972 to a proposal to demolish, alter or extend the listed building.
Both the decision maker and the developer will,
Secretary of State that the building should be listed as being of special
architectural or historic interest. Lastly, it was intended to provide a list
of references to the sources of information, if any, which had been used in
compiling the description. On this analysis I would regard the columns headed
‘Description’ and ‘References,’ while informative, as subservient to the column
headed ‘Name of Building’. In my opinion it is the latter column which serves
the statutory function of identifying the listed building in the list which the
Secretary of State is required to keep available for public inspection under
section 52(6) of the Act of 1972. In their printed case Revival state that the
inclusion of the words of limitation in this column reflects a practice of
compiling the list so that the ‘Name of Building’ column is the official entry
which defines the scope of the listing. That observation is consistent with my
understanding of the list.
The Lord
Justice Clerk mentioned in his opinion that counsel for the Secretary of State
had pointed out in the course of the hearing before the Second Division that it
has been the practice for some time now for the list of buildings of special
architectural or historic interest to be set forth in a different form from
that which has been used in this case. A specimen form was produced in the
course of that hearing from which it appeared that the list now contained eight
columns. The first, which was entitled ‘Name of Building and/or Address’, was
headed as being the ‘Statutory List’. The remaining seven columns contained
information under various headings not dissimilar to those used in the present
case, including ‘Description’, ‘Reference’ and ‘Notes’. They were the subject
of a separate heading which read: ‘The information (cols 2–8) has no legal
significance, nor do errors or omissions nullify or otherwise affect statutory
listing’. We were not shown a copy of this form, as the Secretary of State did
not appeal against the decision of the Second Division on this point. But
Revival refer to this passage in the Lord Justice Clerk’s opinion in their
printed case, in order to make the point that the modern form of list has
merely formalised the practice that it is the ‘Name of Building’ column which
defines the scope of the listing. The description which we have been given is
sufficient to indicate that the more modern form is an improvement on the
previous form, as it removes the possibility of a misunderstanding about the
function which the columns headed ‘Description’ and ‘References’ were intended
to serve.
It is plain
from the way in which the learned judges of the Second Division approached this
issue that they regarded all the columns on the list which was before them in
this case as forming part of the statutory listing. For my part — although
counsel for Revival was content to adopt this approach in presenting his
argument — I think that they were in error in taking this view. It does not
seem to me that there is any real difficulty in understanding the functions of
each of the columns, if the list is read in the context of the legislation
which it was designed to serve. But my conclusion that the only column which
sets out the statutory listing is that which is headed ‘Name of Building’ does
not solve all the problems which have arisen in this case.
The listing of
Redford Barracks was in itself sufficient, with the benefit of section 52(7) of
the Act of 1972, to include within the statutory listing all objects or
structures forming part of the land and comprised within the curtilage. Unless
some words of limitation were included every building within the curtilage,
however modest or unimportant, would be the subject of the statutory controls.
It was no doubt for this reason that the words ‘(original buildings 1909–15
only)’ were included in the column headed ‘Name of Building’. But this was not
an entirely satisfactory method of distinguishing between those buildings which
were intended to be included in the statutory listing and those which were not.
The words which were selected were ambiguous. The dates 1909–1915 are the same
as those mentioned in the next column as being those between which Harry B
Measures was the director of barrack construction. But it is not clear whether
they were intended to refer to the period of design of the buildings or the
period of their construction, and if the latter whether the buildings had to be
completed by 1915 in order to qualify or it was sufficient that they were
commenced before or during that year. In this situation I think that it is
permissible to examine the contents of the column headed ‘Description’ in order
to see whether it can help to resolve the ambiguity. Phrases are used in
various parts of the description such as ‘some lesser buildings’ and ‘other
buildings’ which suggest that this was not intended to be a definitive
description of the entire premises comprised within the curtilage. But the fact
that the riding school is mentioned in the description is sufficient, in view
of the ambiguity, to put in issue the question whether that building was
included in the statutory listing.
The reporter
concluded, on the evidence which was before him, that the riding school was one
of the last buildings to be erected, and that this took place after 1915. It
was for this reason that he held that the riding school was not covered by the
statutory listing and that listed building consent was not required for its
demolition. He noted that the view of all the experts who gave evidence at the
inquiry was that, if the riding school was built after 1915, it was not covered
by the barracks listing. It seems to me however that this evidence was
insufficient to resolve the difficulty which had been created by the ambiguity
in the list. That evidence did not address the possibility that the riding
school was part of the original design for which Harry B Measures was
responsible. Unless it could be asserted that this structure had no part to
play in the original design it would not be safe to assume that it was not
included in the statutory listing. I would therefore hold, albeit for different
reasons, that the result at which the Second Division arrived was the right
one, as the reporter had insufficient information before him in the evidence to
entitle him to resolve this issue in favour of the developer.
I should like,
finally, to add this further observation in regard to the ambiguity in the
list. The problem which has arisen in this case suggests that the list, even in
its new form, may require some reconsideration in order to remove such
ambiguities. It is important that words of limitation which are used to exclude
parts of a building from the statutory listing are sufficiently clear to enable
those who are interested to identify what parts
fact that the controls are the subject of criminal sanctions provides an added
reason for seeking greater clarity in the composition of the list than has been
exhibited in this case.
LORD CLYDE: My lords, in 1993 Revival Properties Ltd (Revival) who are the
second appellants in this appeal sought outline planning permission for the
development of a food store, petrol filling station and ancillary works at a
site in Colinton Mains Drive, Edinburgh. They also sought listed building
consent for the demolition of a former riding school building which was on the
site. The City of Edinburgh District Council refused planning permission and
also refused listed building consent. Revival then appealed to the Secretary of
State. A senior reporter was appointed to determine the appeal. He held a
public local inquiry and thereafter issued a decision letter dated March 7
1995. He decided that listed building consent was not required for the
demolition of the former riding school building. On the matter of planning
permission he allowed the appeal and granted outline planning permission subject
to certain conditions. The council then appealed to the Court of Session both
on the matter of the listed building consent and on the matter of planning
permission. After hearing the appeal the Second Division of the Court of
Session by a majority allowed the appeal on both of those matters. The
Secretary of State and Revival have now appealed to this House.
The matter of
listed building consent can conveniently be dealt with at the outset. It has
been seen and treated as a distinct and separate issue from that of the
planning permission. The reporter considered a preliminary question whether
listed building consent was required for the demolition of the former riding
school building. It has not been suggested that he was not entitled to explore
that question and I express no view on the propriety of his doing so. Section
52 of the Town and Country Planning (Scotland) Act 1972 provided for the
compilation of lists of buildings of special architectural or historic
interest. The provisions of that Act have now been superseded by the recent
consolidating statute, the Town and Country Planning (Scotland) Act 1997, but
it will be convenient for the purposes of the present case to refer to the
legislation in force at the time of the appeal processes. In terms of section
52(1) the lists may be compiled by the Secretary of State or by others with his
approval. Section 52(5) provides for notice to be given to the owner, lessee
and occupier of a building of its inclusion in or exclusion from the list. That
notice is to be given in a prescribed form. But there does not appear to have
been any prescribed form for the lists themselves.
There was
produced to the reporter a document relating to the City of Edinburgh District
headed ‘List of Buildings of Architectural or Historic Interest’. The list was
set out in six columns. The first and the last three are not of importance. The
second was headed ‘Name of Building’ and the third was headed ‘Description’. In
the second column there was entered the following:
Redford Barracks
Colinton Road
and
Colinton Mains
Road
(original
buildings of
1909–15
only).
The third
column commenced with the words ‘Harry B Measures, Director of Barrack
Construction, 1909–15. Two large complexes of building on exceptionally
spacious layout … comprising chiefly …’. There then followed descriptions of a
variety of buildings with some architectural detail. Included here, under the
subheading farriers’ shops and riding school were the words ‘other buildings to
S with large riding school at extreme SE …’. The view taken by the reporter was
that in the light of the evidence the building in question had probably been
erected after 1915, that precedence should be given to the entry in the second
column, and that on account of the reference to ‘original buildings of 1909–15
only’ the riding school building was excluded from the list notwithstanding its
specific mention in the third column. Having taken the view that listed
building consent was unnecessary the reporter did not address the question
whether the demolition of a listed building should be permitted.
The judges of
the Second Division unanimously held that the reporter was not entitled to hold
as he had done that the building was not covered by the entry for Redford
Barracks in the list. An appeal against that decision was taken only by
Revival, the second appellants. Counsel for the Secretary of State did not
address the issue. It should be observed that it would have been useful to have
had more evidence about the form used for the compiling of such lists and the
relative significance of the respective columns. Plainly it is desirable to
compile the list with sufficient clarity and precision to avoid the kind of
question which has arisen here. The insertion of a complex of buildings as one
entry in a list may well give rise to problems. Even the provision of section
52(7) of the Act which extends the identification to buildings within the
curtilage of a building may not produce sufficient clarity, particularly in a
case such as the present where the building in question had passed into the
separate ownership and occupation of the local authority and had in some way at
least became separated from the barracks and other buildings still in military
occupation. The argument, however, which was presented in the appeal was
essentially that the matter was one of fact for the reporter, or at least was
not one which could be open to review. But the critical question here is one of
the interpretation of the list and if the reporter has misconstrued it and so
misdirected himself that is undoubtedly a matter on which he may be corrected
on appeal to a court of law.
On the face of
the list there is no evident problem. It was agreed by counsel for Revival that
the whole document with its six columns comprised the ‘List’ and his argument
was presented on that basis. The building in issue is specifically mentioned in
the document and can readily be taken to be entered on the list. The dates in
the second column can be seen to echo the dates in the third column, indicating
that it is the work of
description of the buildings for which he was presumably responsible.
A problem may
be thought to arise when it is found that the riding school was built after
1915. But it also appears that the barracks were not completed until the end of
1916. Ambiguity only arises if the words in the brackets are read, as the
reporter read them, as if they were intended to refer to buildings built during
the specified years. But that is not what is stated and that is not the only
possible construction. Even if there was a conflict between the two parts of
the list it would be proper to find a construction which would make sense of
the whole and that can be readily done by accepting that the period of years to
which the passage in brackets refers is a period not of the completion of the
building but of the processes of planning, conception, design and, at least to
an extent, the realisation of Harry Measures’ work. In that way there is no
difficulty in recognising that the riding school may consistently with the text
in the second column be entered in the third column as a listed building. In my
view, the judges of the Second Division reached the correct view on this matter
and I would refuse the appeal on the matter of the listed building consent.
I turn next to
the appeal on the matter of the planning permission. The first point raised on
behalf of the Secretary of State in opening his appeal concerned the meaning
and effect of section 18A of the Act of 1972. It was stated on his behalf that
this was the principal purpose of his appeal. The section had excited some
controversy and guidance was required. Neither of the other parties however was
concerned to challenge the submission advanced by counsel for the Secretary of
State. The views which I would adopt on this part of the appeal accord with his
submission and at least in the absence of any contradiction seem to me to be
sound.
Ever since the
introduction of a comprehensive system for the control of land development in
Scotland by the Town and Country Planning (Scotland) Act 1947 planning
authorities have been required to prepare a plan which was to serve as a guide
for the development of their respective areas. These plans required to be
submitted to the Secretary of State for his approval. Following on the
reorganisation of local government introduced by the Local Government
(Scotland) Act 1973 planning functions became divided between the regions, who
were required to prepare ‘structure plans’, and the districts, who were
required to prepare ‘local plans’. For the purposes of the present case the
structure plan was the Lothian Regional Structure Plan of 1985 and the local
plan was the South West Edinburgh Local Plan (SWELP). But the old terminology
was also preserved. Section 17 of the Town and Country Planning (Scotland) Act
1972 provided that for the purposes of the planning statutes the development
plan shall be taken to consist of the structure plan approved by the Secretary
of State with any approved alterations and the provisions of the approved local
plan with any adopted or approved alterations. In and after the 1947 Act
provision was made for the recognition of the development plan in relation to
determinations of applications for planning permission. Section 26(1) of the
1972 Act, echoing the language of section 12(1) of the Act of 1947, required a
planning authority in dealing
so far as material to the application, and to any other material
considerations’. The meaning of this formulation in the context of section
12(1) of the Act of 1947 was set out in a decision in the Outer House of the
Court of Session by Lord Guest in Simpson v Edinburgh Corporation,
1960 SC 313. His lordship stated (at pp318–319):
It was argued
for the pursuer that this section required the planning authority to adhere
strictly to the development plan. I do not so read this section. ‘To have
regard to’ does not, in my view, mean ‘slavishly to adhere to’. It requires the
planning authority to consider the development plan, but does not oblige them
to follow it … If Parliament had intended the planning authority to adhere to
the development plan, it would have been simple so to express it … In my
opinion, the meaning of section 12(1) is plain. The planning authority are to
consider all the material considerations, of which the development plan is one.
Section 18A
was introduced into the Act of 1972 by section 58 of the Planning and
Compensation Act 1991. A corresponding provision was introduced into the
English legislation by section 26 of the Act of 1991, in the form of a new
section 54A to the Town and Country Planning Act 1990. The provisions of
section 18A, and of the equivalent section 54A of the English Act, were as
follows:
Status of
development plans
Where, in
making any determination under the planning Acts, regard is to be had to the
development plan, the determination shall be made in accordance with the plan
unless material considerations indicate otherwise.
Section 18A
has introduced a priority to be given to the development plan in the
determination of planning matters. It applies where regard has to be had to the
development plan. So the cases to which section 26(1) of the Act of 1972 apply
are affected. By virtue of section 33(5) of the Act of 1972 section 26(1) is to
apply in relation to an appeal to the Secretary of State. Thus it comes to
apply to the present case.
By virtue of
section 18A the development plan is no longer simply one of the material
considerations. Its provisions, provided that they are relevant to the
particular application, are to govern the decision unless there are material
considerations which indicate that in the particular case the provisions of the
plan should not be followed. If it is thought to be useful to talk of
presumptions in this field, it can be said that there is now a presumption that
the development plan is to govern the decision on an application for planning
permission. It is distinct from what has been referred to in some of the
planning guidance, such as for example in para 15 of PPG 1 of 1988, as a
presumption but what is truly an indication of a policy to be taken into
account in decision making. By virtue of section 18A, if the application
accords with the development plan and there are no material considerations
indicating that it should be refused, permission should be granted. If the
application does not accord with the development plan it will be refused unless
there are material
may be where a particular policy in the plan can be seen to be outdated and
superseded by more recent guidance. Thus the priority given to the development
plan is not a mere mechanical preference for it. There remains a valuable
element of flexibility. If there are material considerations indicating that it
should not be followed then a decision contrary to its provisions can properly
be given.
Moreover the
section has not touched the well established distinction in principle between
those matters which are properly within the jurisdiction of the decision maker
and those matters in which the court can properly intervene. It has introduced
a requirement with which the decision maker must comply, namely the recognition
of the priority to be given to the development plan. It has thus introduced a
potential ground on which the decision maker could be faulted were he to fail
to give effect to that requirement. But beyond that it still leaves the
assessment of the facts and the weighing of the considerations in the hands of
the decision maker. It is for him to assess the relative weight to be given to
all the material considerations. It is for him to decide what weight is to be
given to the development plan, recognising the priority to be given to it. As
Glidewell LJ observed in Loup v Secretary of State for the
Environment (1995) 71 P&CR 175 at p186 ‘What section 54A does not do is
to tell the decision maker what weight to accord either to the development plan
or to other material considerations’. Those matters are left to the decision
maker to determine in the light of the whole material before him both in the
factual circumstances and in any guidance in policy which is relevant to the
particular issues.
Correspondingly
the power of the court to intervene remains in principle the same as ever. That
power is a power to challenge the validity of the decision. The grounds in the
context of planning decisions are contained in section 233 of the Act of 1972,
namely that the action is not within the powers of the Act, or that there has
been a failure to comply with some relevant requirement. The substance of the
former of these grounds is too well established to require repetition here.
Reference may be made to the often quoted formulation by Lord President Emslie
in Wordie Property Co Ltd v Secretary of State for Scotland 1984
SLT 345 at pp347–348. Section 18A has not innovated upon the principle that the
court is concerned only with the legality of the decision making process. As
Lord Hoffmann observed in Tesco Stores Ltd v Secretary of State for
the Environment [1995] 1 WLR 759 at p780.1 ‘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.’
1 [1995] 2 PLR 72.
In the
practical application of section 18A it will obviously be necessary for the
decision maker to consider the development plan, identify any provisions in it
which are relevant to the question before him and make a
fails to have regard to a policy in the development plan which is relevant to
the application or fails properly to interpret it. He will also have to
consider whether the development proposed in the application before him does or
does not accord with the development plan. There may be some points in the plan
which support the proposal but there may be some considerations pointing in the
opposite direction. He will require to assess all of these and then decide
whether in light of the whole plan the proposal does or does not accord with
it. He will also have to identify all the other material considerations which
are relevant to the application and to which he should have regard. He will
then have to note which of them support the application and which of them do
not, and he will have to assess the weight to be given to all of these
considerations. He will have to decide whether there are considerations of such
weight as to indicate that the development plan should not be accorded the
priority which the statute has given to it. And having weighed these
considerations and determined these matters he will require to form his opinion
on the disposal of the application. If he fails to take account of some
material consideration or takes account of some consideration which is irrelevant
to the application his decision will be open to challenge. But the assessment
of the considerations can only be challenged on the ground that it is
irrational or perverse.
Counsel for
the Secretary of State suggested in the course of his submissions that in the
practical application of the section, two distinct stages should be identified.
In the first the decision maker should decide whether the development plan
should or should not be accorded its statutory priority; and in the second, if
he decides that it should not be given that priority it should be put aside and
attention concentrated upon the material factors which remain for
consideration. But, in my view, it is undesirable to devise any universal
prescription for the method to be adopted by the decision maker, provided
always of course that he does not act outwith his powers. Different cases will
invite different methods in the detail of the approach to be taken and it
should be left to the good sense of the decision maker, acting within his powers,
to decide how to go about the task before him in the particular circumstances
of each case. In the particular circumstances of the present case, the ground
on which the reporter decided to make an exception to the development plan was
the existence of more recent policy statements which he considered had
overtaken the policy in the plan. In such a case as that it may well be
appropriate to adopt the two-stage approach suggested by counsel. But even
there that should not be taken to be the only proper course. In many cases it
would be perfectly proper for the decision maker to assemble all the relevant
material including the provisions of the development plan and proceed at once
to the process of assessment, paying of course all due regard to the priority
of the latter, but reaching his decision after a general study of all the
material before him. The precise procedure followed by any decision maker is so
much a matter of personal preference or inclination in light of the nature and
detail of the particular case that
appropriate.
This chapter
in the appeal was presented as a criticism of the approach adopted by the
majority of the judges in the court below. But that criticism comes at the most
to criticism of particular expressions rather than any allegation of error in
principle. Lord McCluskey criticised the description given by the reporter in
para 181 of his decision letter of the effect of the section. His lordship
stated:
But section
18A did not simply ‘enhance the status’ of development plans; it made the
development plan the governing or paramount consideration; and it was to remain
so unless material considerations indicated otherwise.
But while the
expression used by the reporter may have been somewhat imprecise in not
stressing the priority inherent in the enhanced status it does not appear that
the reporter fell into error in any misunderstanding of the effect of the
section. The submission made by counsel for the Secretary of State on the
construction of section 18A was correctly seen by the respondents as not
constituting any serious attack on the decision which they sought to defend.
The judges in the Second Division correctly recognised that it was competent
for the reporter in principle to decide that the more recent material should
overcome the priority given to the development plan. The issue was whether he
was entitled to take that course on the material before him. The reference to
para 181 of the decision letter leads immediately to the substantial dispute in
the appeal regarding the reporter’s treatment of the problem of retail trade
and impact.
In para 181
the reporter begins to set out his conclusions on the chapter of the decision
letter which concerns the issue of retail trade and impact. It should be
observed at the outset that the structure plan of 1985 indicated a prohibition
of developments such as that proposed by Revival except in existing or new
shopping centres, and that SWELP expressed at least a presumption against
out-of-centre shopping development. The reporter however stated:
Dealing first
with the question of policy, I should say that, although there is no dispute
that the statutory development plan consists of the 1985 structure plan and the
SWELP, and although recent legislation enhances the status of development
plans, I believe that in this case it is appropriate to attach greater weight
to other material considerations.
That he was
entitled in principle to decide that the presumption in favour of the
development plan had been overcome by other material considerations was
recognised in the court below. The criticism of the majority of the court was
directed rather at his entitlement to take that course in the circumstances of
this case. The other material considerations to which the reporter looked
consisted of expressions of policy and planning guidance more recent in date
than the structure plan of 1985. He noted that while the SWELP was only adopted
as recently as 1993 it was
The more recent material of which the reporter considered account should be
taken consisted of the National Planning Guidelines 1986, PPG 6 (1993), and the
latest version of the structure plan which had been finalised and sent to the
Secretary of State but had not yet been approved. A view was expressed in the
court below that it was not appropriate to have considered PPG 6 because it
applied to England and Wales and not Scotland. No question was raised in that
regard in the present appeal and I refrain from expressing any view about it.
The new version of the structure plan represented in the view of the reporter
the regional council’s most recent thinking on the subject of retailing and it
was to the policies set out in that document that he applied his mind.
Chapter 7 of
the new structure plan deals with shopping. In para 7.37 it was stated that
free-standing developments, such as large convenience stores, could generate
unacceptable traffic levels and affect residential amenity. The paragraph later
states that:
new stores
can only be justified to provide consumer choice or where there will be
significant local population increase … new developments outside existing or
proposed centres should be permitted only if they meet strict criteria.
The plan then
sets out a policy identified as S17. That policy related to proposals for major
retail developments not in or adjacent to existing or proposed strategic
shopping centres. It is understood that the proposed development at Colinton
Mains Drive is such a proposal. The policy provides that in considering such
proposals ‘District Councils should be satisfied that all of the following
criteria are met…’. There are then set out seven criteria of which only two
need be quoted:
A. Local
shopping facilities are deficient in either quantitative or qualitative terms;
…
C. They would
not, individually or cumulatively, prejudice the vitality and viability of any
strategic shopping centre.
The strategic
shopping centres are listed earlier in the document, but it is unnecessary to
refer to that in detail.
The reporter
was satisfied that all of the seven criteria were met and it was on that basis
that he granted the planning permission. It is with criterion A that the present
dispute is concerned. The reporter dealt with the matter of quantitative
deficiency in para 184 of his letter as follows:
184 The first
matter relates to quantitative or qualitative deficiencies in the area. It
appears that there may be a slight increase in both population and expenditure
per head on convenience goods in the near future in the study area, but the
most obvious indicator of an expenditure surplus is the calculation that
certain stores (notably Safeway at Cameron Toll, Morningside and Hunter’s
Tryst) are performing at levels significantly higher than company averages.
Even allowing for the opening of stores at eg Straiton (which may be in doubt)
and for turnover levels at Colinton Mains
relatively small store, there would appear to be a quantitative case.
In para 185 he
considered the matter of qualitative deficiency and took the view that the
argument for such a deficiency was not strong. The case would accordingly have
to rest on the basis of a quantitative deficiency. Finally, in this part of his
letter he added in para 186:
186. Many
local residents and organisations claim that there is no need for either the
proposed foodstore or the pfs. I accept that there is not a significant
shortage of either, such as might establish a strong presumption in their
favour in the public interest which might outweigh relevant objections,
However, planning approval does not have to be based on a case of need. I have
explained why I consider the policies in the more recent version of the
structure plan are to be preferred, and there remains a general presumption in
favour of development unless demonstrable harm is shown to interests of
acknowledged importance.
The majority
of the judges in the Second Division held that the reporter had erred in this
part of his decision. The Lord Justice Clerk was satisfied that the reporter
was entitled to regard the NPG and the draft structure plan as justifying a
departure from the development plan but considered that the reporter had not
had a proper factual basis for overcoming the presumption in section 18A. In
particular he considered that:
merely to say
that certain stores within the area are trading at exceptionally high levels
does not justify the conclusion that there is a deficiency in local shopping
facilities in the area in question.
He noted that
of the three stores mentioned in para 184 only one, Hunter’s Tryst, was, as the
reporter had recognised in para 185, within the study area. He also noted that
the reporter had accepted in para 186 that there was not a significant shortage
of food stores or petrol filling stations. Lord McCluskey questioned whether
the reporter had properly addressed the problem of quantitative deficiency at
all. ‘If he has then he has not even begun to explain how a quantitative
deficiency coexists with no significant shortage and a failure to make out any
case of need.’ He considered that even if a finding of a quantitative
deficiency was justified the reporter had given no indication as to why that
circumstance should overcome the presumption in favour of the terms of the
development plan. Both the Lord Justice Clerk and Lord McCluskey suggested that
the final words of para 184 lacked the conviction of a positive finding.
In my view, it
is critical to an understanding of the reporter’s decision to have a clear
understanding of the concept of ‘quantitative deficiency’. This is a matter of
the interpretation of the policy S17. It may well be that the point was not
made sufficiently clear in the presentation of the appeal before the Second
Division. Certainly it appears that, as the Lord Justice Clerk records, counsel
were not at one as to what was meant by the reference to quantitative terms and
it was on his own initiative that reference was made to para 7.9 of the draft
structure plan for a clue to its
is determined by trends in consumer expenditure …’. This is far from providing
a definition but it does, as Lord Morison appreciated, point to the fact that
it is consumer expenditure which is being considered as reflected in the
turnover in the available shopping facilities. As I understand it from the
helpful explanations given to us by counsel for the Secretary of State
quantitative deficiency has to do with a comparison between the amount of
shopping facility and the amount of customers. It seeks to express a situation
where there is a shortage of shopping floorspace as compared with the number of
customers in the locality. It is measured by reference to consumer expenditure.
Quantitative deficiency is a concept different from that of need, where what is
meant is the kind of necessity which would, for example, justify the sacrifice
of some amenity for the purpose of the development. There can be a quantitative
deficiency even though there is no ‘need’ for the development in so far as
everyone in the area is able to do their shopping albeit with the delay and
inconvenience of a possibly overcrowded shop or of travelling some distance to
get there. Once the definition is understood there is no discrepancy between
paras 184 and 186 of the decision letter.
The next
question is how a quantitative deficiency should be established. Where the
approach is one of considering consumer expenditure a quantitative deficiency
is most readily established by the discovery that other stores are trading at a
level which is above what would be expected of them, the inference being that
there is room to accommodate a further shopping facility. As Lord Morison
observed: ‘No other way of demonstrating a quantitative deficiency in a
particular area, determined only by consumer expenditure, was suggested to us,
and none occurs to me’. That was the kind of evidence which was led in the
present case and it appears that while there was dispute about the reliability
of the inferences to be drawn from the figures adduced there was no objection
taken to the use of that material in principle as a method of establishing the
alleged deficiency.
It was
suggested that the reporter was not entitled to find some deficiency without
going on to quantify the extent of the deficiency. I see no obligation on him
to do that. The policy S17A does not require the finding of any particular
extent of the deficiency. If the deficiency is too slight to enable the whole
of the proposed new shopping facility to be accommodated then the matter will
be covered by criterion C. If the development is greater than can be absorbed
by the deficiency then the result may well be to cause prejudice to the
vitality and viability of the existing strategic shopping centres. In that
respect criterion C secures the adequacy of the extent of the deficiency
identified for the purpose of criterion A. In the present case the reporter
indeed went further in his assessment of the deficiency than he strictly needed
to go. In the final sentence of para 184 he takes into account not only the
possible further store at Straiton but also higher levels at the development
site at Colinton Mains than were likely to be achieved by the proposed Tesco
store. Even taking these into account he finds that ‘there would appear to be a
such as to enable the proposed store to be wholly accommodated within it and
when account is taken of the hypothesis on which he is proceeding the passage
indicates a very positive finding of a quantitative deficiency. What was
suggested to be only a tentative finding is in reality clear and certain.
It was argued
that the reporter was not entitled to draw the conclusion which he did from the
evidence before him. Counsel for the respondents suggested a variety of reasons
which might account for the expenditure surplus. He also sought to criticise
the quality of the evidence on which the reporter had relied. But it was not
suggested that there was no evidence before the reporter which could entitle
him to discount such other explanations and to hold that there was an
expenditure surplus which pointed to a quantitative deficiency. Whether the
evidence did or did not so point was a matter wholly for him to determine.
Provided that the evidence was there it was for him to assess it and draw his
own conclusions from it. It is no part of the function of a reviewing court to
re-examine the factual conclusions which he drew from the evidence in the
absence of any suggestion that he acted improperly or irrationally. Nor is it
the duty of a reviewing court to engage in a detailed analytic study of the precise
words and phrases which have been used. That kind of exercise is quite
inappropriate to an understanding of a planning decision.
Counsel for
the respondents also sought to argue that the reporter had not given proper or
adequate reasons for his decision. In part this point was related to matters to
which I have already referred, such as a specification of the extent of the
deficiency, the allegedly ‘tentative’ nature of the conclusion on the critical
issue, the finding of the quantitative deficiency in the face of the absence of
need and the link between the expenditure surplus and the quantitative
deficiency. But in any event the pursuit of a full and detailed exposition of
the reporter’s whole process of reasoning is wholly inappropriate. It involves
a misconception of the standard to be expected of a decision letter in a
planning appeal of this kind. As Lord President Emslie observed in Wordie
Property Co Ltd (p348):
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.
It is worth
reiterating the observations made by Lord Lloyd of Berwick in Bolton
Metropolitan District Council v Secretary of State for the Environment
(1995) 71 P&CR 3091 in the context of the requirement on the
Secretary of State to notify the reasons for his decision. His lordship said at
p313:
1 [1995] 3 PLR 37.
There is
nothing in the statutory language which requires him, in stating his reasons,
to deal specifically with every material consideration … He has to have regard
to every material consideration; but he need not mention them all.
As to what
should be mentioned his lordship gave two quotations. In In re Poyser and
Mills’ Arbitration [1964] 2 QB 467 at p478 Megaw J said:
Parliament
provided that reasons shall be given, and in my view that must be read as
meaning that proper, adequate reasons must be given. The reasons that are set
out must be reasons which will not only be intelligible, but which deal with
the substantial points that have been raised.
In Hope
v Secretary of State for the Environment (1975) 31 P&CR 120, at
p123, Phillips J said:
It seems to
me that the decision must be such that it enables the appellant to understand
on what grounds the appeal has been decided and be in sufficient detail to
enable him to know what conclusions the inspector has reached on the principal
important controversial issues.
It is
necessary that an account should be given of the reasoning on the main issues
which were in dispute sufficient to enable the parties and the court to
understand that reasoning. If that degree of explanation was not achieved the
parties might well be prejudiced. But elaboration is not to be looked for and a
detailed consideration of every point which was raised is not to be expected.
In the present case the reporter dealt concisely but clearly with the critical
issues. Nothing more was to be expected of him.
The reporter
satisfied himself as he was entitled to do that there was quantitative
deficiency and that criterion A was met. He then went on to consider the other
criteria. He gave careful consideration to criterion C, including in that an
assessment of the effect of the development on Hunter’s Tryst and at some
length its effect on the shopping centre at Wester Hailes. He was satisfied
that criterion C was met and no challenge is made to that conclusion. His unchallenged
finding on that matter affirms the adequacy of the deficiency which he found
for the purpose of criterion A. He had already decided that the statutory
presumption should be overcome by the more recent expressions of policy and in
particular the draft structure plan. It was the existence of that recent
guidance, not his finding of a quantitative deficiency, which justified the
overcoming of the presumption. It is not in dispute that if the seven criteria
were met the reporter was then entitled to grant planning permission.
For the
foregoing reasons I would refuse the appeal by the appellants Revival
Properties Ltd on the matter of the listed building consent and I would allow
the appeal by both appellants on the matter of the planning permission.
The Secretary
of State should be entitled to his costs from the district council both here
and one-half of his expenses in the court below. Revival Properties Ltd should
be entitled to one-half of their costs from the district council here and
one-half of their expenses in the court below.
Appeal for
grant of planning permission allowed; appeal for listed building consent
refused.
