‘Person aggrieved’ — Structure plan — Alterations — Secretary of State approving alterations subject to modifications — Regional council appealing decision — Whether appeal incompetent — Whether regional council a ‘person aggrieved’
In March 1988,
the Secretary of State for Scotland approved, subject to modifications,
proposals for the alteration of a structure plan prepared by Strathclyde
Regional Council. The council appealed the Secretary of State’s decision on the
grounds that he acted ultra vires. On behalf of the Secretary of State
there were two pleas in law: (1) the appeal was incompetent in that the
appellants were not a ‘person aggrieved’ within the meaning of section 232 of
the Town and Country Planning (Scotland) Act 1972; and (2) the crave of the
appeal being incompetent, it should be refused.
Secretary of State was sustained and the appeal was dismissed.
When section
232 of the 1972 Act was enacted, Parliament had not envisaged that a planning
authority would have a right of appeal under that section. Following the
decision in Ealing Corporation v Jones [1959] 1 QB 384,
amendments were made to the legislation to allow local planning authorities to
bring appeals in relation to enforcement notices, but no amendments were made
in relation to appeals under what is now section 232: see p 115A-C.
There were
express rights in sections 233 and 234 of the 1972 Act for an authority to
appeal certain actions and orders of the Secretary of State; it is a reasonable
inference that Parliament did not intend to confer any such right under section
232: see p 115F.
It cannot be
understood how a planning authority could ever qualify to be a ‘person
aggrieved’ in relation to a structure plan, as this is defined as the
authority’s policy and general proposals and they could hardly be aggrieved by
their own statement of policy and general proposals: see pp 116H-117.
to in the opinion
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
Ealing
Corporation v Jones [1959] 1 QB 384; [1959]
2 WLR 194; [1959] 1 All ER 286; (1959) 57 LGR 86; 10 P&CR 100; [1959] EGD
178; 173 EG 179
Greater
London Council v Secretary of State for the
Environment [1985] JPL 868
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
Appeal under
section 232 of the Town and Country Planning (Scotland) Act 1972
This was an
appeal under section 232 of the Town and Country Planning (Scotland) Act 1972
against a decision of the Secretary of State for Scotland to approve, with
modifications, alterations proposed by the appellants, Strathclyde Regional
Council, to their structure plan.
(instructed by Simpson & Marwick WS, of Edinburgh) appeared for the
appellant local planning authority.
Paton (instructed by the Solicitor to the Secretary of State for Scotland)
appeared for the respondent.
following opinion of the court was delivered.
LORD JUSTICE
CLERK (LORD ROSS): This is an appeal under section
232 of the Town and Country Planning (Scotland) Act 1972 at the instance of
Strathclyde Regional Council (hereinafter referred to as ‘the appellants’)
against a decision of the Secretary of State for Scotland approving, subject to
modifications, proposals for alterations to the structure plan for Strathclyde
Region, which decision was communicated to the appellants by letters dated
March 10 and 11 1988.
In terms of
section 5(1) of the Act of 1972, the appellants, as planning authority, are
required to prepare and submit to the Secretary of State for approval a
structure plan for their district. Section 5(3) of the Act of 1972 defines the
structure plan and provides, inter alia, that it shall be a written
statement formulating the planning authority’s policy and general proposals in
respect of the development and other use of the land in the district. Section 7
of the Act of 1972 provides for the approval (in whole or in part and with or
without modification or reservations) or rejection of a structure plan by the
Secretary of State. Section 8 contains provisions dealing with the alteration
of structure plans provides that a planning authority may submit to the
Secretary of State proposals for alterations to the structure plan and provides
inter alia that section 7 shall apply in relation to such proposals as they
apply in relation to a structure plan. We were informed that the appellants
have had a structure plan since 1981 and that it has been subject to at least
two reviews by the Secretary of State.
Mr Brodie for
the appellants drew attention to production no 10 in the appeal, which is an
update of the written statement of the structure plan dated 1986. As the
introduction makes plain, the update written statement deals with a number of
matters including, inter alia, housing. In the summary, the further
proposals in relation to residential development are summarised as follows:
The Council’s
comparison of supply and demand has identified an adequate balance within the
Greater Glasgow/Lanarkshire Housing Market Area over the period 1986-93. Within
the Kyle and Carrick Housing Market Area, there is a small shortfall of one
hundred houses.
Policy RES 13
was added to the Second Review and Alteration to initiate a comprehensive site
search with Kyle and Carrick District Council. The policy has been modified to
take account of the latest shortfall.
The detailed
policies and proposals in this regard are set out in paras 1.52 and 1.53 of the
Update (1986) Written Statement.
Mr Brodie also
drew attention to production no 11 in the appeal, being the appellants’ Structure
Plan Handbook. He explained that although this was not a statutory document
it contained a narrative of all the policies contained in the structure plan as
altered or approved from time to time. He drew particular attention to the
heading ‘Strategy’ and to the following:
STRAT 1. THE
REGIONAL DEVELOPMENT STRATEGY SHALL BE GENERALLY TO ASSIST EMPLOYMENT BY
INCREASING THE ATTRACTION OF THE REGION FOR INVESTMENT, AND IN PARTICULAR TO
REDUCE THE FLOW OF EMPLOYMENT AND POPULATION, FROM
(A) THE CONURBATION BY ACCELERATING THE PROCESS
OF URBAN RENEWAL AND REGENERATION
(B) THE REMOTER RURAL AREAS BY SUSTAINING
EXISTING COMMUNITIES AND UTILISING NATURAL RESOURCES.
Mr Brodie also
drew attention to pp 26 to 39 in the handbook containing the region’s housing
policies. It is unnecessary to set these out in detail, but Mr Brodie made two
points in this connection. He stressed that the proposals in the Update (1986)
Written Statement contained very minor alterations so far as housing policies
were concerned. All they did was to provide for an increase in RES 13 of 100
dwellings. In the handbook RES 13 states as follows:
LAND WITH
CAPACITY TO ALLOW THE DEVELOPMENT OF ELEVEN HUNDRED DWELLINGS BY 1991 WILL BE
FOUND IN KYLE AND CARRICK DISTRICT AS FAR AS POSSIBLE ON BROWNFIELD SITES IN
ACCORDANCE WITH POLICY RES 1.
In the Update
(1986) Written Statement, RES 13 is stated in the following modified form:
LAND WITH
CAPACITY TO ALLOW THE DEVELOPMENT OF TWELVE HUNDRED DWELLINGS BY 1993 WILL BE
FOUND IN KYLE AND CARRICK DISTRICT, AS FAR AS POSSIBLE ON BROWNFIELD SITES IN
ACCORDANCE WITH POLICY RES 1.
The other
point which Mr Brodie made was that in neither the handbook nor the Update
(1986) Written Statement was there any provision directing that private house
building should take place in any particular part of the planning district.
Mr Brodie next
drew attention to the provisions of the letters of March 10 and 11 1988. In the
former it is stated that the Secretary of State has decided to approve the
Strathclyde Structure Plan Update 1986 subject to a number of modifications. So
far as the present appeal is concerned he drew attention to the modifications
annexed to the letter of March 10 1988 which show that paras 1.52 and 1.53 of
the Update (1986) Written Statement are deleted, and in substitution therefor
are paras 1.52 to 1.61. Mr Brodie went through these modifications in detail,
and in particular he drew attention to the fact that the Secretary of State has
made his own assessment of what the supply and demand for owner-occupied
housing is. Table 1.8 shows a shortfall of 2,176. This table shows a local
surplus in Glasgow, but, after mobile demand is taken into account, there is a
mobile shortfall in the area amounting to 2,176. In para 1.61 it is stated, inter
alia:
The shortfall
of 2,200 which the table reveals in the Greater Glasgow/Lanarkshire Area as a
whole should be made good in Glasgow, rather than in the rest of the area, in
view of the Regional Council’s central strategy of regeneration.
Without going
into greater detail, Mr Brodie explained that the appellants’ submission put
shortly was that by allocating all the additional places to Glasgow under this
modification, and by doing this under reference to the appellants’ central
strategy of regeneration, the Secretary of State had misunderstood the
appellants’ policy as stated in STRAT 1. STRAT 1 referred to reducing the flow
of employment and population from ‘the conurbation’; it was clear from the
glossary of terms on p 122 of the handbook that ‘the conurbation’ meant:
The urban
areas of the Districts of Dumbarton, Clydebank, Bearsden and Milngavie,
Glasgow, Strathkelvin, Monklands, Motherwell, Hamilton, East Kilbride,
Eastwood, Renfrew and Inverclyde.
It was also plain
from the glossary of terms that the urban area centred on Glasgow was referred
to as ‘the Inner Conurbation’. The Secretary of State, it was said, had erred
in proceeding on the basis that the appellants’ policy was to reduce the flow
of employment and population from Glasgow instead of the wider conurbation as
defined. Mr Brodie explained that it was in these circumstances that the
appellants had brought this appeal under section 232 of the Act of 1972.
In the appeal
the appellants contend that the Secretary of State acted ultra vires,
that he took into account irrelevant considerations and failed to take into
account relevant considerations, and that the modifications which he made were
so unreasonable that no reasonable Secretary of State could have made them;
they accordingly contended that there was no proper basis to support the
modifications and that they should be quashed. In drawing attention to these
submissions, Mr Brodie referred to Wordie Property Co Ltd v Secretary
of State for Scotland 1984 SLT 345. Before elaborating his submissions on
the merits, however, he recognised that the Secretary of State had stated two
pleas in law to the competency of the procedure. These two pleas in law are in
the following terms:
1. The appeal
being incompetent in that the Appellants are not a person aggrieved within the
meaning of Section 232 of the said Act, it should be dismissed.
2. The crave
of the appeal being incompetent, it should be refused.
Mr Brodie
under reference to the statutory provisions and to certain English authorities
submitted that the appellants were persons aggrieved. Mrs Paton, on the other
hand, on behalf of the Secretary of State submitted that the appellants could
not be regarded as persons aggrieved within the meaning of the section. Read
shortly, section 232(1) provides:
If any person
aggrieved by a structure plan . . . or by any alteration, repeal or replacement
of any such plan desires to question the validity of the plan, alteration,
repeal or replacement on the ground that it is not within the powers conferred
by Part II of this Act or that any requirement of the said Part II or of any
regulations made thereunder has not been complied with in relation to the
approval or adoption of the plan, alteration, repeal or replacement, he may, .
. . make an application to the Court of Session under this section.
In order to
determine the question of competency raised by the Secretary of State’s first
plea in law, it is necessary to consider the provisions of a number of sections
in Part XII of the Act of 1972. Section 231(1)(a) provides:
Except as
provided by the following provisions of this Part of this Act, the validity of
—
(a) a structure plan, a local plan or any
alteration, repeal or replacement of any such plan, whether before or after the
plan, alteration, repeal or replacement has been approved or adopted; . . .
shall not be questioned in any legal proceedings whatsoever.
Counsel were
accordingly agreed that if the appellants were to have the right to challenge
the decision of the Secretary of State contained in the two letters of March 10
and 11 1988, they would require to show that they were persons aggrieved within
the meaning of section 232(1). Mr Brodie recognised that there is no specific
provision in section 232(1) enabling a planning authority to make an
application to the Court of Session under that section, but he maintained that
the words ‘any person aggrieved’ were wide enough to embrace a planning
authority. He stressed that a planning authority had a clear interest to
challenge any decision of the Secretary of State to amend proposals put forward
by them for alteration to the structure plan. He maintained that the appellants
were injuriously affected by the Secretary of State’s decision and that
accordingly they were entitled to bring proceedings under section 232. He
founded upon Ealing Corporation v Jones [1959] 1 QB 384; Buxton
v Minister of Housing and Local Government [1961] 1 QB 278; Turner
v Secretary of State for the Environment (1973) 28 P&CR 123; and Greater
London Council v Secretary of State for the Environment and Harrow
London Borough Council [1985] JPL 868.
Mrs Paton, on
the other hand, submitted that all these cases other than Ealing Corporation
v Jones were of no assistance. She founded upon the Ealing
Corporation case and she also relied upon the terms of sections 231, 232,
233 and 234 of the Act of 1972.
In our
opinion, having regard to the provisions of the various sections contained in
Part XII of the Act of 1972, it is clear that the expression ‘any person
aggrieved’ in section 232 does not embrace a planning authority such as the
appellants. 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. The language
used in section 232(1) falls to be contrasted with the language used in
sections 233 and 234. Section 233(1) confers upon any person aggrieved by any
order to which the section applies a right to make an application to the Court
of Session. However, Parliament has also enacted section 233(2) to deal with
the position of an authority which are directly concerned with any order to
which the section applies. Section 233(2) is in the following terms:
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.
Section 234
deals with appeals to the Court of Session against decisions under section 51.
Section 234(1) provides as follows:
If, in the
case of any decision to which this section applies, the person who made the
application to which the decision relates, or the planning authority, is
dissatisfied with the decision in point of law, that person or the planning
authority (as the case may be) may, according as rules of court may provide,
either appeal against the decision to the Court of Session or require the
Secretary of State to state and sign a case for the opinion of the Court of
Session.
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. If Parliament had intended that a planning authority would
have a right to apply to the Court of Session under section 232, in our opinion
Parliament would have expressly so provided in the same manner as it did in
sections 233 and 234. In the Ealing Corporation case, which related to
the right of a person aggrieved by an enforcement notice to appeal to a court
of summary jurisdiction, Lord Parker CJ stated at p 392:
Finally, I
confess that looking at the statute alone one cannot help feeling that if
Parliament had intended the local planning authority to be able to appeal it
would have said so clearly.
In that case
Donovan J (as he then was) at p 393 stated:
[Counsel for
the respondents says that] Planning authorities have important public duties .
. . and . . . that that . . . tends to support the view that they have a right
of appeal from the magistrates’ decision. I agree that the matter is important,
but when this Act was passed in 1947 there were numerous decisions of the court
available which show that the expression ‘person aggrieved’ is ambiguous . . .
. In those circumstances, one might reasonably think that if Parliament wanted
to confer a right of appeal on the local planning authority because this matter
is so important, it would have used
. in sections 61 and 64 of the Income Tax Act 1952, where the position of the
subject and the public authority in relation to an appeal from an inferior
tribunal is made perfectly clear. I also think there is force in the argument
that almost invariably in this Act the local planning authority is called by
that name, and I think a better view is that Parliament would have done so in
section 23(5) [of the Act of 1947] if it had intended the local planning
authority to have a right of appeal from the magistrates.
In our
judgment these dicta are entirely consistent with the conclusion at which we
have arrived. We have not derived assistance from the other English authorities
to which Mr Brodie referred. They contain dicta regarding the question of who
may be persons aggrieved within the meaning of certain statutes, and discuss
the question of whether it is necessary for such a person to show that some
legal right of his has been infringed, and which indicate that ‘person aggrieved’
should not be subjected to any restricted interpretation. In the present case,
however, where we are dealing with a planning authority, we are of opinion that
these cases are of no real assistance.
In our
opinion, Mrs Paton was well-founded in contending that it was clear that, when
section 232 was enacted, Parliament had not envisaged that a planning authority
would have a right of appeal under that section. The Ealing Corporation
case was decided in 1959. Thereafter Parliament had the opportunity to make the
matter clear if Parliament wished to do so. Mrs Paton pointed out that since
1959 Parliament had changed the position of a local authority in relation to
enforcement notices. Enforcement notices had been the matter raised in the Ealing
Corporation case. So far as the statute was concerned, although there are
separate statutes for England and Scotland, the provisions were the same in
both countries so far as enforcement notices were concerned. Section 31 of the
Town and Country Planning (Scotland) Act 1959 contains provisions dealing with
proceedings for challenging the validity of certain orders and decisions.
Section 31(2) confers upon an authority directly concerned with any order to
which the section applies the right to apply to the Court of Session under that
section. Section 31(3) lists the orders to which the section applies and
section 34 lists various decisions of the Secretary of State to which the
section applies. As originally enacted, no mention is made in the section of
enforcement notices, and accordingly they were not covered by the section. By
Schedule 9 to the Town and Country Planning (Scotland) Act 1969, section 31(4)
of the Act of 1959 was amended by the inclusion of, inter alia, a new
paragraph (g) to the following effect:
Any decision
of the Secretary of State on an appeal to him under section 16(1)(a), (f)
or (g) of the Act of 1969 against any enforcement notice.
The effect of
that alteration was that Parliament conferred upon an authority a right to make
an application to the Court of Session in order to challenge a decision of the
Secretary of State on an appeal to him against an enforcement notice. These
provisions are now to be found in section 231(3)(f) of the Act of 1972.
It is thus
plain that when Parliament has wished to extend the rights that an authority
has to apply to the Court of Session in order to challenge the validity of
certain orders, Parliament has done so expressly, and this reinforces our view
that Parliament cannot have intended to confer upon a planning authority a
right to apply to the Court of Session under section 232.
There is a
further reason for concluding that it cannot have been the intention of
Parliament that a planning authority should have a right to apply to the Court
of Session under section 232. The opening words of section 232(1) provide: ‘if
any person aggrieved by a structure plan desires to question the
section 232′. As already observed, structure plan is defined in section 5(3) of
the Act of 1972 as being a written statement formulating the planning
authority’s policy and general proposals in respect of the development and
other use of land. Since the structure plan contains a statement of the
planning authority’s policy and general proposals, we do not understand how the
planning authority could ever qualify to be a person aggrieved by its own
statement of policy and general proposals. This consideration confirms that
‘any person aggrieved’ in section 232(1) does not include the planning
authority. In these circumstances we are satisfied that the present appeal is
incompetent in that the appellants are not a person aggrieved within the
meaning of section 232 of the Act of 1972. That is sufficient for the disposal
of this appeal. Mrs Paton, for the Secretary of State, also addressed us in
support of her second plea in law, which was directed to the competency of the
crave of the appeal, but it is not necessary to reach any decision upon that
submission. Likewise it is unnecessary in the circumstances to express any
opinion upon the arguments presented by both counsel to the merits of the
appeal. We shall accordingly sustain the first plea in law for the Secretary of
State and shall dismiss this appeal as incompetent.
Appeal dismissed as incompetent.
