Dawn Developments Limited For Judicial Review Of A Decision Of South Lanarkshire Council In Relation To Planning Permission
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young |
| Neutral Citation | [2011] CSOH 170 |
| Docket Number | P1264/10 |
| Court | Court of Session |
| Date | 18 October 2011 |
| Published date | 18 October 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 170 | |
| P1264/10 | OPINION OF LORD DRUMMOND YOUNG in the Petition of DAWN DEVELOPMENTS LIMITED Petitioner; for Judicial review of a decision of South Lanarkshire Council of 5 October 2010 in relation to planning permission for development of land at Redwood Crescent, Peel Park, East Kilbride Respondents: ________________ |
Petitioner: Gale, Q.C., Gill; McGrigors
Respondents: (South Lanarkshire Council): Sir Crispin Agnew, Q.C., Cowie; Simpson & Marwick
(JHAG Ltd): Findlay; Tods Murray
18 October 2011
[1] On 17 February 2010 JHAG Ltd applied to South Lanarkshire Council (referred to as "the Council") for outline planning permission for a proposed development at Redwood Crescent, Peel Park, East Kilbride; the development included a superstore, a garden centre, a hotel, a petrol filling station, allotments and certain other works. On 29 March 2010 the petitioner applied to the Council for planning permission for the erection of a superstore at 18/20 West Mains Road, East Kilbride. The petitioner's site and JHAG's site are situated approximately 1 km apart. On 30 March 2010 planning consultants acting on behalf of the petitioner objected to the application by JHAG. Despite the petitioner's objection, on 5 October 2010 South Lanarkshire Council granted outline planning permission for JHAG's development. The petitioner has brought the present petition for judicial review of that decision. In the proceedings, the Council appears as respondent and JHAG appears as an interested party.
[2] On the same date as the petitioner's objection to the JHAG application was lodged, the petitioner wrote to the Council requesting that its and JHAG's applications should be determined together. On 20 July 2010 Ediston Opportunity Fund made a further application for planning permission for the erection of a food superstore and associated works at Atholl House, Churchill Avenue, East Kilbride. Ediston subsequently requested that all three applications should be considered together. The Council responded that it had no policy of dealing with related applications together. On 18 June 2010 the petitioner lodged an application for judicial review of the refusal to conjoin the applications. On 21 June 2010 the Council gave an undertaking not to consider the application by JHAG at a Planning Committee meeting to be held the following day. On 27 August Council officers advised the petitioner that at a meeting to be held on 7 September the Planning Committee would consider whether the applications by JHAG, the petitioner and Ediston should be considered together. Written representations were requested by 31 August, and each applicant duly submitted such representations.
[3] At the meeting held on 7 September the Planning Committee had a report by the Council's Executive Director (Enterprise Resources) dated 1 September 2010. In this report the Committee was asked to consider whether the submissions by the three parties should be conjoined or considered separately at subsequent Committee meetings. In the report it was indicated that, in relation to the petitioner's application, there were "fundamental issues in resolving matters raised by Transport Scotland". It was further stated that "the transportation issues to be resolved are significant and to date it is not clear what the timescales are to resolve these, assuming that they are able to be resolved". A meeting of the Planning Committee was held on 7 September, at which those statements were repeated.
[4] The petitioner avers that the information given to the meeting about those matters was inaccurate. At the time it is averred the petitioner was discussing various alternative layouts with Transport Scotland, all of which, it is said, were superior in safety and standards to the layout in the petitioner's original application. Transport Scotland had also informed the petitioner's consultants that it was revisiting its position on the JHAG application. On 7 September the Committee decided that the JHAG application should be determined in advance of the applications by the petitioner and Ediston at the next or a subsequent meeting of the Committee. The JHAG application was allocated to a meeting of the Committee to be held on 5 October 2010. The petitioner's earlier application for judicial review was heard in the Court of Session on 1 October 2010, and the motion for interim interdict was refused on 4 October.
[5] On 17 September 2010 representatives of the petitioner and its advisers met officers of the Council to discuss, among other things, the accuracy or otherwise of the assertion made on 7 September that there were fundamental problems with Transport Scotland and an uncertain timetable for resolving any such problems. The petitioners' representatives informed the Council's officers that they understood that Transport Scotland was about to issue a response confirming that it was content with the petitioners' application, subject to certain conditions. That response was expected within a few days. The transport officers of the Council who were in attendance at the meeting disputed that view, and the Council's Executive Director (Enterprise Resources), who was chairman of the meeting, stated that there was significant uncertainty and that it could not be guaranteed that that would occur. On 20 September 2010 Transport Scotland stated that it was content that the petitioner's application should be granted, subject to certain conditions.
[6] At the meeting held on 17 September the Council officers also referred to a number of issues in relation to retail matters that were said to be outstanding. In a letter dated 6 September the petitioner's planning consultants had replied to queries previously raised by an officer, and the petitioner avers that it had received no further indication that any matter was outstanding. The petitioner's consultants responded to these queries at a meeting held on 20 September and in the letter dated 22 September. The petitioner avers that in these it addressed all outstanding questions. Before the meeting held on 5 October the Council's officers had given the petitioner no indication that they did not accept the petitioner's position as set out in the letter of 22 September.
[7] At the meeting of 5 October the Committee had before it a report by the Council's Executive Director (Enterprise Resources) dated 21 September. In this report the Planning Committee was asked to approve a recommendation to grant planning permission in principle to JHAG. The Committee granted such planning permission, and the petitioner submits that the inference should be drawn that it accepted the reasoning and conclusions of the report dated 21 September. The material sections of the report relate to the representations made in respect of the JHAG application. These are as follows. First, it had been represented (page 7) that Peel Park, JHAG's site, was of strategic importance as a Strategic Industrial and Business Location (it was zoned accordingly) and should therefore be retained as industrial land; the petitioner's site at West Mains Road, by contrast, was not a Strategic Industrial and Business Location, and was brownfield and not greenfield. The recommendation from officials was that the zoning of Peel Park should be reconsidered and that the petitioner's application should be considered on its own merits. Secondly, it was represented (pages 8 and 9) that the supporting information for the JHAG proposal did not consider the West Mains Road site in terms of the sequential approach; and further that, in order to observe the principles of natural justice and act fairly, the JHAG application and the petitioner's application should be considered at the same Committee meeting. The response was that the existence of the petitioner's application, and the application by Ediston, were material considerations in dealing with the JHAG proposal. Nevertheless the Council was not obliged legally to hear two or three competing applications at the same time but had to act reasonably in dealing with the request to conjoin consideration of the planning applications. In relation to the three applications, it was noted that for the JHAG application all information was submitted and the assessment was complete; with the petitioner's application, however, "there remained outstanding issues to be resolved in regard to retail and transportation matters". The options that were available were accordingly to determine the JHAG application in advance of the other two applications at the next Planning Committee meeting or to conjoin the JHAG application and the petitioner's application, in which case the timescale would be undetermined. Joining with the Ediston application was added as a third possibility.
[8] Paragraphs 6.12-6.15 of the report (pages 14-16) gave detailed consideration to the sequential analysis that is required by national planning policy. Much of the petitioner's criticism of the Council's approach was based on an alleged failure to conform to that policy. The policy is set out below at paragraphs [11] and [12], and the material provisions of the report are summarized at paragraphs [29] and [30]. The report gave further consideration to roads and transportation at paragraphs 6.35 and 6.36 (page 20). The recommendation (page 21; paragraphs 6.41 and 6.42) was to grant planning permission to JHAG. It was noted that, while the JHAG application was not in conformity with business and industrial policies of the Structure plan and the Local plan, the Executive Director (Enterprise Resources) considered that a development of the scale and mix of uses proposed by JHAG would enhance the facilities available to the population of East Kilbride and to the west and south of town, and was complementary to the wider regeneration aims of the Local Plan. On that basis he considered that the proposed development was not a significant...
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