Glasgow District Council v Secretary of State for Scotland
| Jurisdiction | Scotland |
| Judgment Date | 14 December 1979 |
| Date | 14 December 1979 |
| Docket Number | No. 12. |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Town and country planningPlanning permissionRefusal of planning permission by local authorityAppeal to Secretary of StateDecision of Secretary of State that planning permission not requiredDecision correct in law but based on reasoning in part erroneousWhether decision ultra viresTown and Country Planning (Scotland) Act 1972 (cap. 52), secs. 33 (1), (3)1 and 2332.
StatuteConstructionPartial demolition of buildings under compulsitor of local building authorityWhether such demolition constituted "development" for purposes of planning legislationTown and Country Planning (Scotland) Act 1972 (cap. 52), secs. 19 (2)3 and 20 (1)4.
The owners of a five-storey tenement building applied for planning permission to demolish the building so as to leave only the ground and first floors and to carry out the necessary re-roofing. The local planning authority refused the application. The owners appealed against this decision to the Secretary of State for Scotland who ordered a public inquiry to be held. The Secretary of State thereafter held that planning permission was not required for the removal of the upper three storeys of the building and granted planning permission for the re-roofing of the remaining two storeys of the building. The planning authority appealed to the Court of Session.
Originally the local building authority had proposed to order the demolition of the whole building on the ground that it was dangerous. Although no demolition order was made, throughout their negotiations with the building authority the owners were under a threat that such an order would be made. The building authority in the event granted warrant for the partial demolition sought by the owners.
Held (1) that, in view of sec. 33 (3) of the Act of 1972, the Secretary of State was correct in holding that the demolition of the upper three
storeys, having been carried out under threat of a demolition order and in pursuance of a warrant issued by the building authority, did not require planning permission. (2) That the decision of the Secretary of State, being correct in law, should not be quashed because the reasoning by which it was reached was in part erroneous; and appealdismissedThe City Of Glasgow District Council appealed to the Court of Session under section 233 of the Town and Country Planning (Scotland) Act 1972 against a decision of the Secretary of State for Scotland dated 14th February 1978 which related to the demolition of the top three storeys of a five-storey tenement building in Glasgow and the re-roofing of the remaining two storeys of the building. In the decision it was stated, inter alia, that the Secretary of State took the view that planning permission was not required for the removal of the upper three storeys of the building.
The material facts are fully set forth in the opinion of the Lord Justice-Clerk.
The appeal was heard before the Second Division on 6th November 1979 and following days.
At advising on 14th December 1979,
LORD JUSTICE-CLERK (Wheatley).This is an appeal stated to be under sections 231, 233 and 234 of the Town and Country Planning (Scotland) Act 1972 (hereinafter referred to as "the Act") against a decision of the Secretary of State dated 14th February 1978. The property which is the subject matter of dispute is located at 114124 Clyde Street, Glasgow. On 17th April 1975 the second-named respondents lodged an application for planning permission in respect of the said property with the appellants' statutory predecessors. This application was refused and replaced by a further application to the present appellants dated 15th October 1975. In this latter application the use of the building property is stated as:"Part commercial, part residential, the latter subject to demolition order." The proposed development is said to be:"To demolish this existing five-storey tenement to leave two storeys, namely ground floor and first floor, re-roofing, and carrying out suitable treatment of the eaves thereto to provide a reasonably attractive two-storey building in this central location. Details to be discussed with the department prior to completion." On 1st December 1975 the appellants refused this application which in the Notice of Refusal of Planning Permission they described as an application for planning permission in respect of retention and re-roofing of ground/first-floor property at 114124 Clyde Street. The reasons given for the refusal were:
(a) By allowing the continuation of a ground and first-floor use in partially demolished premises, the possibility of replacement development being undertaken on the site in the near future is removed; and
(b) the proposed retention of a single ("single" later amended to "two") storey building would be detrimental to the visual amenity of the Central Area river front close to the recent improvements at Custom House Quay.
On 29th April 1976 the second-named respondents lodged an appeal to the Secretary of State against this decision and the Secretary of State ordered a public enquiry thereanent to be held by a Mr Wylie. This enquiry was held on 8th and 9th February 1977 and on 26th August 1977 Mr Wylie presented his report to the Secretary of State. On 14th February 1978 the Secretary of State issued his decision (which will be referred to in greater detail later) in which he said that having regard to the legal as well as to the planning aspects of the case:
(1) he took the view that planning permission was not required for the removal of the upper three storeys of the appeal premises, and
(2) he granted planning permission for the roofing of the remaining two storeys of the building.
Against that decision the present appeal has been taken. To obtain the full picture it is desirable to narrate the history of events as agreed by the parties. The first chapter relates to the period when the appellants' statutory predecessors were in office and the second chapter to the period when the appellants were in existence following the reconstruction of local government. About 20th February 1975 the Master of Works reported that the building 114124 Clyde Street was dangerous, On 25th February 1975 the Procurator-fiscal, proceeding on the Master of Works' report, presented a Petition to the Dean of Guild Court under the Glasgow Streets, Sewers and Buildings Consolidation Order Confirmation Act 1937, under reference to sections 18 and 99 of that Act, maintaining that the condition of the building over the whole premises was dangerous. The Procurator-fiscal accordingly asked for (a) an Order to cite the proprietors of all the properties in the building; (b) an Order to remit to a competent person to inspect and report on the condition of the building as a whole; (c) in the event of the report being to the effect that the building was dangerous or a source of danger or unsafe for use, an Order to take such steps as the Dean of Guild might deem necessary in the interests of public safety; (d) an Order on the occupiers of the building to remove from the premises; and (e) an Order for the building to be taken down or secured or repaired by the proprietors or to be taken down by the Master of Works at the expense of the proprietors. In pursuance of that Petition a remit was made to a Mr Mennie to report on the state of the premises. On 3rd March 1975 Mr Mennie reported that he had examined the whole buildings and recommended that all the proprietors should be warned out and an Order made on the Master of Works to have the building demolished.
On 7th March 1975 the Procurator-fiscal lodged a written motion to the effect that in view of the danger referred to in Mr Mennie's report he craved warrant to eject the owners and occupiers from the building, a list of the occupiers being given. On 4th April 1975 the matter again came before the Dean of Guild Court and an interlocutor was then pronounced in these terms:"Having considered the report and heard parties the Dean of Guild Court approves the report as an interim one, and in view of the danger to the occupants grants the motion, the occupants to remove goods and gear immediately and not later than 5th May 1975 and failing such removal taking place grants warrant to officers of Court to eject the occupants therefrom; continues the remit to Mr Mennie for further inspection and report and continues the case to the next Court to allow a scheme for repair to be submitted."
The case next called in the Dean of Guild Court on the 9th May when it was continued. That was the last time that the Dean of Guild took part in view of the re-organisation of local government. Up until that point there had been no Order for demolition.
Thereafter the Building Control Department of the appellants came into the picture. The matter was next dealt with at a meeting of the Building Control Committee on 12th September 1975, a minute of which records:"Report submitted by an Inspector of the Committee, and, having heard representatives of the owners, agreed to continue the case to allow the owners to put forward proposals for partial demolition of the building."
On 10th October 1975 the matter was continued again. On 7th November 1975 the Building Control Committee again met and the Minute of that meeting records:"Agreed that consideration be again continued to allow the owners of the ground and first floor of the property to commence work within twenty-eight days of their being notified that the last occupier of the third, fourth and fifth floors had been removed in a scheme of partial demolition of the building on condition that a Building Warrant had been granted for such."
On 10th November 1975 the Depute Director of Building Control wrote a letter to Messrs Crone and Partners, who were the second-named respondents' technical advisers, referring to the above Minute and saying "I would point out that planning permission is also required for...
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