Standard Commercial Property Securities Limited+standard Commercial Property Development Limited V. City Of Glasgow Council+atlas Investments Limited For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lord President,Lord Reed,Lord Kirkwood |
| Date | 03 December 2004 |
| Docket Number | P1082/03 |
| Court | Court of Session |
| Published date | 03 December 2004 |
| FIRST DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord President Lord Kirkwood Lord Reed
| P1082/03 OPINION OF THE COURT delivered by LORD REED in RECLAIMING MOTION FOR PETITIONERS in PETITION and ANSWERS by STANDARD COMMERCIAL PROPERTY SECURITIES LIMITED and STANDARD COMMERCIAL PROPERTY DEVELOPMENT LIMITED Petitioners; against CITY OF GLASGOW COUNCIL First Respondents; and ATLAS INVESTMENTS LIMITED Second Respondents: for JUDICIAL REVIEW _______ |
Act: Currie, Q.C., Mure; Semple Fraser (Petitioners)
Alt: Agnew of Lochnaw, Q.C., Cowie; City of Edinburgh Council (First Respondents)
Hodge, Q.C., Williamson; Russel & Aitken (Second Respondents)
3 December 2004
Introduction
[1]These proceedings for judicial review concern a decision taken by the first respondents, City of Glasgow Council, concerning the exercise of powers of compulsory acquisition and disposal, under the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"), in relation to a site in Glasgow city centre. The first petitioners own property forming part of the site. The second petitioners are an associated company of property developers. The second respondents are also property developers, and own property forming part of the site.
[2]On 26 October 2000 the first respondents' Development and Regeneration Services Committee ("the Committee") approved a document entitled:
"Framework for the use of compulsory purchase powers (CPO) and back to back agreements with developers under the Town and Country Planning (Scotland) Act 1997".
[3]In subsequent documents prepared by the first respondents, this document is referred to as "the Framework". It is in the following terms:
"1.INTRODUCTION
1.1Section 189 of the Town and Country Planning (Scotland) Act ('the
Act') authorises a local authority to acquire compulsorily any land (including buildings) which:-
1.1.1Is suitable for and required in order to secure the carrying out
of development, redevelopment or improvement.
1.1.2Is required for a purpose which it is necessary to achieve in the
interests of the proper planning of an area.
1.2Section 191 of the Act sets out where disposing of land compulsorily acquired under Section 189, the authority may do so in such manner and subject to such conditions as considered expedient which result in either the best use of the land or the construction or carrying out of any works which appear to the authority as being needed for the proper planning of the area. Additionally, such land shall not be disposed of otherwise than as at the best price or on the best terms that can reasonably be obtained.
PROCESS
2.1Phase 1 - Consideration
2.1.1Consideration by the Council as to whether acquisition of land
by use of CPO powers under the Act is reasonably necessary for planning purposes.
2.1.2This phase is usually triggered by approaches by a developer or
developers who has/have expressed an interest in developing land.
2.1.3In determining whether CPO powers may be necessary regard
will be had to:-
2.1.3.1 The condition of the land.
2.1.3.2 The current use of the land.
2.1.3.3 The Development Plan and other relevant Council
policies.
2.2Phase 2 - Publication of Intention
2.2.1If officers determine that CPO powers may be necessary:-
2.2.1.1 A report will be presented to the Development and
Regeneration Services Committee for authority to
investigate the requirement for the use of CPO
powers."
2.2.1.2 If approved a notice will be issued to the developer(s)
who has/have approached the council indicating an
interest to develop along with all owners and occupiers
of the site declaring the Council's intention to use
CPO powers if necessary to assemble the site.
2.2.1.3 All parties will be invited to submit their proposals for
redevelopment etc. and/or any desire to remain and
carry on their business within the site.
2.3Phase 3 - Evaluation
2.3.1In determining which proposal(s), if any, should be supported
by the Council officers will evaluate all submissions against the following criteria:-
2.3.1.1 Design proposals (to include where practicable the
relocation of existing businesses wishing to obtain
accommodation within the site).
2.3.1.2 Ownership and/or attempts to acquire the site on a
voluntary basis.
2.3.1.3 Experience of development and financial soundness.
2.3.1.4 Timescale for commencement/completion of
development.
2.4Phase 4 - Conclusion
2.4.1Following a detailed evaluation as set out above officers will:-
2.4.1.1 Present a further report to the Development and
Regeneration Services Committee detailing the terms of the submissions received, the results of the evaluation process with a recommendation as to which, if any, developer(s) and development proposal(s) should be supported along with the extent to which CPO powers will be necessary. Approval will be sought to the recommendations along with authority to enter into a back to back agreement with the successful developer(s) which will set out the conditions required to be met by the developer(s) before CPO powers are used including; a planning consent is in place; the developer(s) can satisfy Council officers that reasonable offers have been made to acquire the site on a voluntary basis and all attempts to negotiate have failed and the developer(s) have agreed to meet all of the Council's costs including compensation associated with any use of CPO powers under deduction of any monies due to the Council in respect of outstanding charging orders over the site."
[4]It is to be noted that, although paragraph 1.2 of the Framework records the statutory requirement that land must not be disposed of otherwise than at the best price or on the best terms that can reasonably be obtained, paragraph 2.4 envisages that disposal will invariably be in terms of a back-to-back agreement entered into before the land is acquired, under which the developer will reimburse the costs incurred by the first respondents. The Framework does not envisage any consideration being given to the issue of what is the best price or the best terms that can reasonably be obtained for the disposal of the land.
[5]On 4 October 2001 the Committee resolved to investigate whether it was necessary to use compulsory purchase powers under the 1997 Act in order to facilitate development on land (including the site with which these proceedings are concerned) within an area of Glasgow city centre situated between Buchanan Street and West Nile Street, south of their junctions with Bath Street. Officials then made enquiries into the ownership and occupation of the land and the buildings there. The owners and occupiers who were identified were invited to submit any proposals for redevelopment. The information which was then received indicated that the first respondents did not require to invoke compulsory purchase powers in respect of the southern part of the area. In relation to the northern part, on the other hand, the situation was more complex. In a report to the Committee, dated 28 March 2002, the first respondents' Director of Development and Regeneration Services ("the Director") reported:
"4.1 ... The representations made to the Council have revealed a general
consensus by the key development interests that redevelopment in some form or other is required at this locus, but a clear difference of opinion as to how it should be achieved. Although there is recognition that the Council's use of its compulsory purchase powers may be required to effect some tidying up of the title deeds, the various development interests are potentially in dispute about the use of compulsory purchase at this time. Furthermore, the investigation has revealed at least three competing commercial operations, as well as evidence of continuing negotiation and dialogue between development interests."
The report noted that detailed planning permission had been granted for the commercial redevelopment of a parcel later referred to as Phase A. That permission had been granted to the first petitioners. In relation to Phase A, the report stated:
"The development interests in control of the site have confirmed their intention to proceed with the redevelopment as soon as possible."
The report also noted that a second developer owned another parcel, and that a third developer had also expressed an interest in the redevelopment of parts of the area. The Director concluded:
"4.5The investigation into the requirement for the Council to use its powers
of compulsory purchase has revealed a situation as challenging as it is potentially contentious. Apart from the competing development interests with their own separate agendas and aspirations, the northern part of the street block is also home to individual proprietors and at least one long-term tenant.
4.6It is therefore suggested that all relevant parties should be invited to
meet with the Council to discuss their redevelopment proposals and aspirations in greater detail with a view to assisting the evaluation process."
[6]That report was considered by the Committee on 11 April 2002. It then instructed the Director to contact all relevant parties in the northern part of the area, "with a view to evaluating their redevelopment proposals and aspirations in greater detail". It also instructed the Director to inform owners and occupiers in the southern part of the area that the first respondents intended to eliminate them from any further investigation into the need to use compulsory purchase powers.
[7]The matter next came before the Committee on 7 November 2002, when it considered a further report by the Director, dated 28 October 2002. In his report, the Director stated that, at the meeting on 11 April 2002, "authority was given to the Director of Development and Regeneration Services to implement Phase 1 of the Framework". He reported that the site (i.e. the northern part of the larger area originally considered) consisted of twelve parcels. The general condition and appearance of the site...
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