Dawn Developments Limited Against A Decision Of The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Kinclaven |
| Neutral Citation | [2013] CSOH 154 |
| Court | Court of Session |
| Docket Number | XA124/11 |
| Date | 13 September 2013 |
| Published date | 13 September 2013 |
| OUTER HOUSE, COURT OF SESSION [2013] CSOH 154 | |
| XA124/11 | OPINION OF LORD KINCLAVEN in the Appeal to the Court of Session under section 239 of the Town and County Planning (Scotland) Act 1997 by DAWN DEVELOPMENTS LIMITED Appellants; against A decision of the Scottish Ministers as contained in a decision letter dated 7 October 2011 etc ________________ |
Appellants: Gale, QC; McGrigors LLP, Edinburgh
Respondents: Crawford, QC, Barne; Scottish Government Legal Directorate
13 September 2013
Introduction
[1] This is an appeal to the Court of Session under section 239 of the Town and Country Planning (Scotland) Act 1997 by Dawn Developments Limited ("the appellants").
[2] The appeal is against a decision of the Scottish Ministers as contained in a decision letter dated 7 October 2011 issued by David Buylla, Esq, a Reporter appointed by the Scottish Ministers in respect of an appeal by the appellants against the failure of South Lanarkshire Council to determine the application for planning permission submitted by the appellants for Class 1 retail development with associated car parking and landscaping at 18-20 West Mains Road, East Kilbride.
[3] The respondents are the Scottish Ministers.
[4] Mr Gale QC appeared for the appellants. He invited me to allow the appeal essentially for the reasons outlined in the appellants' grounds of Appeal and Note of Argument as supplemented by oral submissions. His central submission was that the Reporter acted ultra vires, for the reasons stated, and that accordingly the decision to dismiss the appeal and refuse planning permission should be quashed.
[5] Ms Crawford QC and Mr Barne appeared for the Scottish Ministers ("the respondents"). Ms Crawford invited me to refuse the appeal essentially for the reasons outlined in the respondents' Note of Argument as supplemented by oral submissions.
[6] In my opinion, having heard the detailed submission of counsel for both parties, this appeal should be refused. I was not satisfied that the Reporter acted ultra vires. The respondent's submissions are well founded to the extent indicated below.
[7] Accordingly, I shall refuse the appeal and reserve the question of expenses.
[8] I would outline my reasons in more detail as follows.
The Statement of Agreed Facts
[9] Helpfully, by way of background, parties lodged a Statement of Agreed Facts, which was in the following terms:
"1. The Appellant's application for detailed planning permission in respect of a proposed Class 1 retail superstore with associated car parking and landscaping was submitted to South Lanarkshire Council ('the Council') on 26th March 2010.
2. The Council prepared a report dated 14th December 2010 in terms of which the relevant officer recommended to the Committee that the Appellant's application should be refused.
3. After sundry procedure, the Appellant appealed to the Scottish Ministers in respect of the Council's failure to determine the application within the prescribed time in terms of section 47(2)(a) of the Town and Country Planning (Scotland) Act 1997.
4. David Buylla, a Reporter within the Directorate for Planning and Environmental Appeals (DPEA), was appointed by the Scottish Ministers to conduct an inquiry and to determine the appeal on their behalf.
5. In a Note of Pre-Examination Meeting on 16th May 2011, the Reporter stated:
Retail issues, including the provisions of the development plan and national policy as it relates to retail matters, will be considered at an inquiry session.
6. The inquiry session commenced on 5th September 2011 and concluded on 7th September 2011.
7. The inquiry session heard closing submissions on 13th September 2011.
8. Transportation issues were considered at a hearing session on 9th September 2011. The draft conditions and any planning obligation were considered at a hearing session on 13th September 2011.
9. Each party at the inquiry session was invited to present evidence-in-chief, which was subject to cross-examination. After cross-examination, an opportunity for re-examination was given. At the close of evidence, each participating party was given the opportunity to make closing submissions. The Reporter required closing submissions to be lodged immediately before they were read. The Appellant was last to make closing submissions.
10. Item 12 of the Bundle is the closing submissions of East Kilbride Shopping Centre as lodged. Item 11 of the Bundle is the closing submissions of JHAG Limited and Tesco Stores Limited as lodged. Item 13 of the Bundle is the closing submissions of the Council as lodged. Item 10 of the Bundle is closing submissions of the Appellants as lodged.
11. On the last day of the inquiry session counsel for the Appellant stated that, for the avoidance of any doubt, ASDA and the Appellant had entered into an agreement regarding the development site, subject to the site obtaining planning permission. Said statement was made after the written final submission had been read out, but was made in response to a comment made by counsel for JHAG/Tesco Stores Ltd during his final submission. It was made on express instructions from representatives of the Appellants and a representative of ASDA who were in attendance. Counsel for both the Council and JHAG/Tesco questioned the evidential value of the assertion, coming after evidence had been led and without there being an opportunity for the assertion to be tested.
12. At no stage did the Appellant produce to the Reporter a contract or agreement between the Appellant and ASDA. A representative of ASDA, Ms Lynn Scott, appeared on behalf of the Appellants at the hearing session on planning conditions, in the course of which she indicated to the Reporter the extent to which certain proposed conditions would be acceptable to the Appellants and ASDA."
The closing submissions of counsel
[10] The written closing submissions, as provided to the Reporter, have been produced as part of the documentation in this appeal and are referred to in the Statement of Agreed Facts (paragraph 10). It might be helpful, if only to put matters in context, to outline some features of those submissions at this stage.
[11] The concluding submissions by Mr Gale QC for Dawn Developments Limited dated 13 September 2011 are No 7/10 of Process. In his concluding summary Mr Gale said (on page 20, paragraph 28):
"For the reasons given in evidence on behalf of the Appellants by Mr Smith the Reporter can properly conclude that the Appellants have had regard to the sequential approach; that they have discounted any sequentially preferable sites for reasons of unsuitability or unavailability,·and that the development proposed for West Mains Road would not have a significant adverse impact on East Kilbride Town Centre. The Appellants adopt in its entirety the policy assessment set out in Chapter 8 of Mr Smith's precognition. In addition the proposed development would be of substantial economic benefit in that it would lead to the creation of some 400 jobs without any significant effect on other employment locations. It would involve the re-use of a brownfield site which has lain unused for several years. It would be accessible by public transport. The development would accordingly represent sustainable economic growth which is the overarching aim of the Scottish Government."
[12] The closing submissions by Mr Martin QC on behalf of JHAG Limited and Tesco Stores Limited, dated 13 September 2011, are no 7/11 of Process. As part of his submission, Mr Martin outlined several reasons why the operation of the site by Asda should not be accepted as a reason to permit a development which would otherwise be unacceptable. He outlined those reasons in paragraphs 27, 28, and 29.
[13] In paragraph 30 Mr Martin submitted:
"The fact that a store at West Mains might be operated by Asda should be disregarded because as a matter of principle it is not a relevant material consideration and because as a matter of fact there is no adequate evidence that Asda would actually be the operator or that Asda would provide a unique attraction to shoppers likely to attracted to shop within East Kilbride."
[14] On a more general level, in conclusion, Mr Martin said (on page 19-20, paragraphs 40 and 41):
"40. In each of the respects in which the requirements of the development plan require to be satisfied before planning permission could be granted for a retail development which was contrary to the development plan, these have not been satisfied in the circumstances of this case. The assessment of-the development against the relevant Structure Plan and Local Plan policies is provided in the precognition of Mr McGlynn on which JHAG/Tesco rely.in support of the evidence put forward by Mr Mackay. The result is that in accordance with the requirements of Local Plan policy COM 3 and Structure Plan policies 9 and 10, planning permission should not be granted. In addition, no other material considerations have been identified which would justify the granting of planning permission notwithstanding that the development would be not in accordance with the development plan. Dawn actually put forward no justification for their proposal and the only positive note which might be identified, namely the-suggestion that it would be operated by Asda, should be disregarded for the reasons already explained.
41. In this situation, and by reference to the retail issues which were' considered at the inquiry session, there is no justification for the granting of planning permission for a development which would be contrary to the development plan and in accordance with section 25 of the 1997 Act, both the application for planning permission and the appeal should be refused."
[15] The closing submissions on behalf of the owners of East Kilbride Shopping Centre (EKTC), dated September 2011, are No 7/12 of Process. In short, EKTC submitted (on page 7, paragraph 6.1) that the evidence presented at the inquiry showed that permission...
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