Tesco Stores Ltd V. Aberdeen City Council

CourtCourt of Session
JudgeLord Marnoch,Lord Carloway,Lord Menzies
Neutral Citation[2012] CSIH 81
Date11 October 2012
Published date11 October 2012
Docket NumberXA54/12


Lord Carloway Lord Menzies Lord Marnoch [2012] CSIH 81



delivered by LORD CARLOWAY

in the application under s 238 of the Town and County Planning (Scotland) Act 1997








Act: Dean of Faculty (Keen QC), Burnet; Semple Fraser LLP

Alt: Gale QC; Morton Fraser LLP

Ross; Scottish Government Legal Directorate (for the Scottish Ministers)

11 October 2012

Legislation etc.

[1] The Town and Country Planning (Scotland) Act 1997 (c. 8) lays down a statutory scheme for the creation, and in some instances destruction, of local development plans. Such a plan is:

"a broad statement of the planning authority's view as to how the development of the land could and should occur and as to the matters which might be expected to affect that development" (section 15(1)).

This involves the preparation of a "main issues report" (section 17) setting out general proposals and thereafter a Proposed Local Development Plan (section 18). The Plan may be modified in light of any representations made but, thereafter, it is to be submitted to the Scottish Ministers who may appoint a reporter to examine it and to report upon its content (section 19; see also Scottish Government Planning Circular 1 of 2009 on Development Planning, para 68). Upon receiving the report, the planning authority are required:

"19...(10)...(a) to make (i) (except in so far as they decline to do so, on such grounds as may be prescribed for the purposes of this sub-paragraph) such modifications, if any, to the proposed local development plan as the appointed person recommends, and

(ii) such other modifications to it, if any, as appear to them to be requisite having regard to the report".

Otherwise, the authority must proceed to publish the Plan, advertise their intention to adopt it and, in due course, adopt it (section 20).

[2] The prescribed grounds for declining to make any modifications recommended by a reporter are contained in the Town and Country Planning (Grounds for Declining to Follow Recommendations)(Scotland) Regulations 2009 (2009 SSI No 53). The grounds concern issues of consistency with strategic plans and planning policies and with certain specific environmental provisions. However, there is a general provision which allows a planning authority to reject a recommended modification where it is:

"2... (c) ...based on conclusions that [the reporter] could not reasonably have reached based on the evidence considered in the course of the examination".

In terms of the Planning Circular (supra):

"61. Examination reports are largely binding on planning authorities. ...

63. ...section 19(10) of the Act requires authorities to make the modifications recommended in the examination report, and any other requisite modifications. The intention is that these other modifications should be wholly consequent on the reporter's recommendations (e.g. to rectify any factual or terminological inconsistencies created by the reporter's recommended modifications), and should not introduce unconnected new material into the plan".

[3] Once a plan has been adopted, the determination of any planning application must be in accordance with its terms, in the absence of material considerations indicating otherwise (section 25).


[4] This is an application under section 238 of the 1997 Act to quash the Aberdeen Local Development Plan as ultra vires. The particular focus is upon a site in the western quadrant of the city at the former Woodend Hospital Annexe in Rousay Drive on the south side of the Lang Stracht. This site was bought by the applicants, who are keen to develop it as a superstore, in about 2001. Outline planning permission to use the site for such a store was granted in 1996 (and perhaps, in part, as early as 1989). The Aberdeen Local Plan, adopted in 1991, identified the site (designated as OP61) as suitable for a superstore. None was, however, built at that time.

[5] A Local Plan inquiry in 2007 heard submissions on the need for a new superstore in west Aberdeen. The applicants had argued then that there was such a need, which could be met on an expanded Woodend site or elsewhere. One alternative mentioned at the inquiry was the former Summerhill School, then owned by the respondents and also located on the south side of the Lang Stracht, a short distance to the east of Woodend. The respondents supported the idea of a new superstore, which, they agreed, could be accommodated on an expanded Woodend site or elsewhere, provided the latter met the "sequential" approach to planning. This approach prefers retail developments in regional and town centre sites to edge-of-centre locations, which are, in turn, preferred to out- of-centre developments.

[6] The reporter agreed with the contention that there was a need for a superstore in west Aberdeen (Report on Issue 239, para 39 et seq). However, he considered that the Local Plan ought to identify a specific site for the superstore. He observed:

"44. If... a site other than OP61 were identified for the new food superstore, the owner of OP61 would still be able to proceed with the retail development for which planning permission exists. This would result in two major retail developments, possibly in close proximity to each other. No case has been made for this scale of development and nothing has been put forward to show how it could be avoided...

45. The matters covered in the preceding paragraphs point strongly to designating the OP61 site as the location for the new west Aberdeen food superstore".

[7] The reporter's recommendations, which were accepted by the respondents, found their way into the Local Plan, adopted on 28 June 2008, as follows:

"3.49.6 ...there remains a need for a modern superstore to serve the western districts of the City... The previous local plan which was adopted in 1991 identified a site at Lang Stracht-Rousay Drive as suitable for a modern supermarket. Planning permission has been granted for a retail development on part of this site. Development on this site would meet the need.... The site is shown as OP61 on the proposals map.

3.49.7 No need has been identified for any other new superstores in the city at this time... With the exception of the new superstore on site OP61, any superstore proposals which do come forward will be assessed in terms of policy 65A... Proposals for the OP61 site will be considered in terms of policy 62".

[8] Policy 62 is headed "New Superstore" and expressly supports, in principle, the development of the Woodend site. Policy 65A is headed "Sequential Approach" and states that retail developments should be in specified locations which are hierarchically listed, with a preferred order of Regional, Town, District and Neighbourhood Centres. In each case, proposals are not to detract from any first, second, third or fourth tier location. "Lang Stracht-Rousay Drive" is specified as a District Centre, but with the qualification that it was:

"effective only from such time as a superstore development in accordance with Policy 62 has been completed and brought into use".

Lang Stracht and Rousay Drive (the latter effective only as above) were also specified separately as Neighbourhood Centres as was Summerhill Drive.

[9] Meantime, in March 2008, an application for detailed planning permission at the Woodend site was made. The respondents resolved to grant this in November 2008, but it was not until 24 November 2010, following the conclusion of a formal planning agreement, that consent was finally given.

[10] On 18 August 2010, the respondents approved a Proposed Local Development Plan, which zoned both the Woodend (now OP38) and Summerhill (OP120) sites as opportunities for residential development; recognising that this would not preclude the development of either site as a superstore. A number of representations in relation to the sites were made to the reporter appointed by the Scottish Ministers to examine objections. Some of these questioned the "deliverability" of the Woodend site, given the length of time which had expired from the granting of planning permission without a development being completed. Summerhill was advanced by some as a more appropriate alternative.

[11] The respondents' position was that development of either the Woodend or Summerhill sites would meet the need for a superstore in the area. They noted the terms of the earlier Local Plan to the effect that Woodend would be classified as a District Centre once the superstore had been constructed. However, they considered that, if a superstore was not built on one of the sites, that site would be suitable for alternative rezoning for residential development. On the question of both sites being developed for retail use, the respondents commented:

"The impact of two superstores on the Lang Stracht would have to be carefully considered in terms of the effect on the vitality and...

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