Petition By The Co-operative Group Ltd For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord Turnbull |
| Neutral Citation | [2016] CSOH 88 |
| Date | 29 June 2016 |
| Docket Number | P1048/15 |
| Court | Court of Session |
| Published date | 29 June 2016 |
OUTER HOUSE, COURT OF SESSION
[2016] CSOH 88
P1048/15
OPINION OF LORD TURNBULL
In the petition
CO-OPERATIVE GROUP LTD
Petitioner;
for
Judicial Review
Petitioner: Findlay, advocate, Dunlop; Gillespie MacAndrew LLP
Respondent: Armstrong QC, Garrity; Glasgow City Council Corporate Services
Interested Party: Steele QC, O’Carroll; DWF LLP
29 June 2016
Introduction
[1] In this application for judicial review the petitioner seeks to reduce a planning decision taken by Glasgow City Council (“the respondent”) on 31 August 2015 concerning premises at 500 Duntreath Avenue Glasgow. The decision under challenge granted planning permission on the application of Aldi Stores Ltd (“Aldi”) for the creation of a retail store. Aldi appeared as the interested party in these proceedings.
[2] Prior to the decision under challenge being taken the petitioner had lodged a planning application seeking permission in principle for the erection of a retail store on a nearby site at Kinfauns Drive and Drumry East Road, Glasgow, which permission was granted on 31 October 2014. The intention was that Lidl UK GmbH (“Lidl”) would operate a retail food store from the petitioner’s development. The Lidl store would be located within Drumchapel town centre. Lidl and Aldi are commercial competitors.
The history of the Aldi application
[3] The Aldi application was first made on 15 April 2014. It was supported by a detailed Planning and Retail Statement prepared by Aldi’s agents Messrs GVA James Barr which included a retail impact assessment. Written objections were tendered by the petitioner on 12 June and the application was determined at a hearing of the respondent’s Planning Applications Committee (“the Committee”) on 2 December 2014. At that hearing the Committee was presented with a report by the respondent’s Executive Director of Development and Regeneration Services Department (“the report”) which recommended refusal of planning permission, as the development was contrary to the development plan. Planning permission was nevertheless granted. The petitioner subsequently sought reduction of that decision by judicial review and, by interlocutor dated 17 June 2015, the court, of consent, granted decree of reduction on the ground that the respondent had failed to provide proper, adequate, and intelligible reasons for the decision.
[4] The application was in due course re‑submitted, as was an updated retail impact assessment prepared by Messrs GVA James Barr. A further objection, including their own retail impact assessment, was tendered on behalf of the petitioner by their agents Messrs GL Hearn on 8 July 2015. The second application was determined at the hearing on 31 August 2015, at which time a supplementary report from the Executive Director of Development and Regeneration Services Department (“the supplementary report”) dated 18 August 2015 was made available. It again recommended refusal of the application on the basis that it was contrary to the development plan. Despite this, the Committee decided to grant full planning permission subject to conditions.
[5] In the respondent’s Planning Decision Notice they gave the following reasons for granting consent:
“The proposal is not in accordance with the development plan. However, the material considerations of provision of employment, revitalisation of the local economy and the town centre, and provision of a range of affordable convenience shopping were sufficient to outweigh the Development Plan policies.”
Grounds upon which reduction was sought
[6] The petitioner’s first submission was directed towards the adequacy of the report and the supplementary report for consideration by the Committee in determining the second application. The retail impact assessments submitted on behalf of Aldi and Lidl prior to the respondent’s second decision differed in their conclusions. In short, the assessment relied on by Aldi concluded that there was a “quantitative deficiency” within the Drumchapel catchment area such as would permit both the consented Lidl and proposed Aldi stores to trade alongside each other, whereas the assessment relied upon by the petitioner disagreed with the Aldi report’s conclusions. It included the following expression of view:
“Indeed, given the scale of the predicted impacts, we conclude that if the consented Aldi store were to proceed then it is likely that the consented Lidl store would not be implemented as it would be commercially unviable”
[7] The submission for the petitioner was that the supplementary report failed to provide any analysis of the respective assessments, or to give guidance to the Committee as to what weight should be attached to each. It failed to make any recommendation as to which of the competing opinions should be preferred. Since retail impact was a significant issue to be taken account of, and since the material considerations identified by the Committee were all matters in respect of which the petitioner’s development would have made a positive contribution towards, it was essential that the report contained adequate guidance. In addition, the supplementary report failed to provide any assessment of the impact of the proposed development on Drumchapel town centre. Counsel for the petitioner drew attention to the cases of Dairy Crest Limited v London Borough of Merton [2015] EWHC 2468 (Admin) and R (on the application of Langley Park School for Girls) v Bromley LBC [2010] 1 P. & C. R. 10 as illustrations of the importance of the content of a report to committee in appropriate circumstances.
[8] The petitioner’s second submission concerned the manner in which the issue of retail impact had been addressed in the decision notice issued by the respondent. It was submitted that it was not possible to identify from the reasons given what the respondent’s conclusions concerning retail impact, or capacity, were. It was not possible to determine whether they had preferred one assessment over the other or what reasoning had led them to attaching weight to one view as opposed to the other. These deficiencies were said to have been of particular importance since the respondent was aware that the issue of retail impact was at the root of the petitioner’s objection and was also aware that it was likely that the Lidl development would not proceed in the event that the Aldi application was granted. The petitioner was not told why the competing Aldi development was preferred over the proposed Lidl development. The result was said to be that the respondent had failed to provide any proper or adequate reasons such as would allow an informed reader to understand the reasons for the conclusions reached.
[9] The petitioner’s third submission concerned what was said to be the failure of the reasons given to address the application of the relevant planning policies. It was agreed that the applicable policies were the City Plan 2 policies contained within the development plan. However, it was submitted that the reasons given cast no light on the extent to which the members of the Committee viewed the application as being in conflict with the development plan. Particular concern was addressed to the manner in which the import of Policy SC3 had been addressed. This policy applied a sequential approach for retail developments, which the reasons given by the respondent failed to address. It was submitted that this was of importance since the petitioner’s development was sequentially preferable and the availability of this site was a consideration which did not attract any mention in the reasons given. If permission was granted upon the premise that the petitioner’s development would not then proceed the sequential test ought to have been applied, or reasons given for departing from it. Over and above these criticisms it was submitted that the reasons gave no indication of the Committee’s view on the impact which the proposal would have on Drumchapel town centre, whether the Committee members concluded that there was retail capacity for both stores, and if so on what basis, and alternatively why they preferred the proposed Aldi development over the Lidl development.
[10] The petitioner’s fourth submission addressed the material considerations of provision of employment, revitalisation of the local economy and the town centre, and provision of a range of affordable convenience shopping which were given in the decision notice as the basis for granting the application, despite it being contrary to the development plan policies.
[11] Provision of employment was given as a consideration without any accompanying assessment of any likely net benefit of employment. This was of importance given that the Lidl site was unoccupied, whereas the proposal by Aldi was to take over a site presently occupied by a packaging and distribution company trading under the name “Commands”.
[12] In assessing the consideration of revitalisation of the local economy and the town centre it was important to appreciate that the Lidl proposal was in Drumchapel town centre whereas the proposed Aldi site was in an industrial site outwith the town centre. It was not possible to determine from the reasons given why a site outwith the town centre was thought capable of revitalising that centre in preference to one within it. Nor was it possible to understand how a site presently contributing to the economy in an industrial site would be more likely to revitalise the economy and town centre as a retail store.
[13] In addressing the consideration of provision of a range of affordable convenience shopping it was submitted that no reasoning was given which could explain the conclusion that the proposed Aldi development, within an industrial site, would provide convenience shopping given its location. The reasons given did not explain why, in the respondent’s view, the need for affordable convenience shopping could not be met by the Lidl development, since it was within the town centre....
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