BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jermon Ltd, Re Application for Judicial Review [2008] ScotCS CSOH_76 (21 May 2008)
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_76.html
Cite as: [2008] CSOH 76, [2008] ScotCS CSOH_76

[New search] [Context] [Printable version] [Help]


 

OUTER HOUSE, COURT OF SESSION

 

[2008] CSOH 76

 

P2987/07

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD CLARKE

 

in the Petition of

 

Jermon Limited

Petitioners;

for

 

Judicial Review of decisions made on 2 October 2007 by West Dunbartonshire Council to grant (1) Planning permission for the erection of a non-food retail development (amendment to Condition 12 of DC04/004 to permit sub-division to seven units) at land adjacent to St James Retail Park, Glasgow Road, Dumbarton; (2) Approval of reserve matters application (DC07/284/REM) for the erection of a non-food retail development with associated car parking, access, services and landscaping at land adjacent to St James Retail Park, Glasgow Road, Dumbarton; and (3) full planning permission for the erection of a non-food retail and leisure development with associated car parking, access, services and landscaping (DC07/285/FUL) at land adjacent to St James Retail Park, Glasgow Road, Dumbarton

 

 

ญญญญญญญญญญญญญญญญญ________________

Petitioners: Armstrong QC, Ledingham Chalmers

Respondents: Gale QC, Anderson Strathern

Interested Party: Currie QC, Semple Fraser

 

21 May 2008

INTRODUCTION
[1] In this petition for judicial review, which came before me for a first hearing, the petitioners challenge decisions of the respondents, West Dunbartonshire Council of 2 October 2007 whereby they granted certain planning applications made to them relating to land adjacent to the St James Retail Park, Glasgow Road, Dumbarton. The petitioners aver that they are the owners of 32, 34 and 36 High Street, Dumbarton and that on 18 August 2006 they acquired a long lease over the Artizan Centre, Dumbarton, which lease is said to run from 30 November 2003 for 99 years. Both the aforementioned sites are said to be situated in the town centre of Dumbarton and have retail units on them.

[2] The three decisions which are the subject of attack in the petitioners are described in the petition as follows:

  1. The grant of "planning permission in relation to application DC07/286/FUL for the erection of a non-food retail development (amendment to Condition 12 of DC04/004 to permit sub-division to seven units) at land adjacent to St James Retail Park, Glasgow Road, Dumbarton, subject to a condition stipulating that any proposal to further sub-divide any of the seven units would require a separate planning application (herein referred to "permission DC07/286/FUL")."
  2. The "approval of a reserved matters application (DC07/284/ERM) for the erection of a non-food retail development with associated car parking, access, services and landscaping at land adjacent to St James Retail Park, Glasgow Road, Dumbarton, subject to the conclusion of technical consultations with SEPA and the Environmental Health Section and subject to conditions set out in Appendix 2 of the Minute of the meeting and such other conditions as may arise from said consultation (hereinafter referred to as "reserve matters permission DC07/284/REM")."
  3. The grant of "full planning permission in respect of application DC07/285/FUL for the erection of a non-food retail and leisure development with associated car parking, access, services and landscaping at land adjacent to St James Retail Park, Glasgow Road, Dumbarton subject to the conclusion of technical consultations with SEPA and the Environmental Health section and subject to the conditions set out in Appendix 2 of the Minute of the Meeting and such other conditions as may arise from said consultation (hereinafter referred to as "full planning permission DC07/285/FUL").

There was some significant background to the said decisions of the Respondents. On 3 November 2006 the Respondents granted outline planning permission for a non-food retail development of 6503 m2 along with garden centre, builders yard, parking, access, services and landscaping on land adjacent to St James Retail Park (the site to which the decisions attacked in the present proceedings relate) hereinafter referred to as "permission DC04/004". This permission was subject to certain conditions including a condition (Condition 12) which provided that

"For the avoidance of doubt this consent authorises the construction of two units each of 35,000 square feet but does not authorise the sub-division of either of the units hereby approved without the benefit of a separate planning consent".

[3] The reason stated for Condition 12 being imposed by the Respondents was that:

"The site is adjacent to St James Retail Park and is suitable for large floor space units and in order to protect the retail viability of the remainder of Dumbarton town centre"

[4] In 2006, that application had been recognised by the Respondents to involve a departure, in part, from the approved local plan (being the Dumbarton District, District Wide Local Plan adopted March 1999), in that part of the application site was identified therein as for industry and business. In addition, part of the application site was owned by the Respondents themselves. In accordance, therefore, with the provisions of the Town and Country Planning (Notification of Application) (Scotland) Direction ("the 1997 Direction"), the respondents referred the application to the Scottish Ministers. In due course the Scottish Ministers notified the Respondents that they did not intend to issue a direction restricting the grant of planning permission or requiring the application to be referred to them for determination.

[5] On 19 June 2007, the Respondents considered in relation to the site (a) a planning application DC06/394/FUL for the erection of a non-food retail development (amendment to Condition 12 of DC04/004 to permit sub-division to seven units); (b) a reserved matters application DC06/404/REM for the erection of a non-food retail development with associated car parking, access, services and landscaping; and (c) a planning application DC06/419/FUL for the erection of a non-food retail and leisure development with associated car parking, access, services and landscaping all at land adjacent to St James Retail Park, Glasgow Road, Dumbarton. All of these applications were refused by the Respondents. The reason given for the refusal of planning application DC06/394/FUL was that the size of units proposed by the sub-division would adversely affect existing retail units in the town centre. The applicant making these applications (the now interested party in the present proceedings) has appealed the refusals. Those appeals are presently sisted. In the meantime the applicant submitted three fresh applications, the decisions in respect of which are the subject of the present petitions.

[6] In August 2007 the Respondents published the final draft of the West Dumbarton Local Plan. The site, in respect of which the decisions to which the present proceedings relate, is identified therein as being within a defined commercial centre and is specifically designated as "a retail development opportunity site".

THE REPORT TO THE RESPONDENTS' COMMITTEE

[7] The report to the respondents' planning committee, in respect of the three applications to which the present proceedings relate is 7/48 of process. Because of the very prominent role this document has had to play in the discussion before me I propose, at this stage, to quote certain passages from it.

[8] At paragraph 1. the report states:

"The current application is similar to the earlier application DC06/394, but requires to be considered in the context of amendments to the detailed proposals, which will be addressed separately. As a result of these amendments, the total retail floor space proposed has been reduced slightly. The applicant has also provided a statement explaining in greater detail the reasons for seeking to vary the condition."

At paragraph 3.1 of the report the following is recorded:

"One letter of objection has been received from a planning consultant acting on behalf of Jermon Developments Limited, the owners of the Artizan Centre in Dumbarton High Street. The reason for objection is that they believe that the proposal would detract from the vitality and viability of the existing town centre. It is argued that the site is an edge of centre rather than a town centre location, and its development for retail purposes would divert trade away from the High Street area, as well as encouraging unsustainable travel patterns. Although it is recognised that the site has outline permission for retail development, they consider that the adverse impact arising from seven medium sized units would be greater than that of two large units, as the proposed units would be of a size which competed more directly with town centre retail units. This would undermine efforts to retain existing retailers in the town centre, and to attract new retailers. It is suggested that this would conflict with the national and local planning policies intended to protect the retail function of established town centres. It is also suggested that retail units of the size and design envisaged would detract from the amenities of neighbouring dwellings, and that such units would be more appropriately located within the town centre."

Paragraph 4 of the report is headed "Assessment Against the Development Plan". It continues as follows:

"4.1. The majority of the site is identified as Marketable Industrial Site in the Dumbarton District, district wide local plan 1999 and policy EMP 1A of that plan indicates that such sites will be safeguarded for industrial uses so as to ensure a sufficient supply of employment within the plan area. The western end of the site is identified as part of a Retailing Development Opportunity site, and Policy R1A of the plan indicates that new retail development will generally be restricted to existing town centres and to the identified Retail Opportunity Sites. Policy R1B states that proposals for retail development on sites adjacent to town centres will be considered favourable where the impact upon the town centre will be acceptable and there are no suitable alternative sites within the town centre. The principle of developing the entire site for retail purposes was considered at the time of the outline planning application, when it was determined that this would be an appropriate use of the site, and that its impact upon the town centre would be acceptable."

Paragraph 4.2 of the report goes on to state:

"Under the West Dumbartonshire Local Plan (finalised plan) the entire site is identified as being within a defined Commercial Centre, and the site is specifically designated as a Retail Development Opportunity site. Within Commercial Centres, policy RET1A supports retail and leisure developments provided that these do not undermine town centres. This policy does indicate that unit size should be considered when assessing whether a proposal will complement existing facilities. Policy RET3 indicates that designated retail development opportunity sites represent the main sites for such development within the plan area, where retail development will be supported subject to compliance with all the relevant policies. The application site is referred to in the schedule RET1 as having potential for 6503 m2 of non-food retail development."

Paragraph 5 of the report is headed "Assessment Against Material Considerations". Paragraph 5.1 is sub-headed "Principle of Retail Development" and states as follows:

"Although the majority of the site is identified as an industrial site within the adopted local plan, this has been overtaken by subsequent events. The development of housing at Park Street and the new Asda food store mean that the site is now landlocked and is only accessible through the retail park, which greatly reduces its potential for industrial development. The emerging local plan reflects this, and allocates the site for retail development. Moreover, the site now benefits from outline planning permission for non-food retail development of 6503 m2, and the impact of this upon the town centre was considered at the time of that application. As such, the principle of 6503 m2 of non-food retail development of the site has been established, and is not open to reconsideration in the context of this application."

At paragraph 5.2 the following is stated:

"When the retail development on this site was originally mooted, a major DIY retailer was interested in building a very large retail warehouse. In imposing the condition, the Council envisaged that the units would be suitable for large DIY or bulky good type uses (although no condition was imposed on the type of goods which could be sold). At the time, it was considered preferable that this site should be occupied by very large units, and that demand for smaller units be fulfilled at the Artizan Centre and at Castle Street (the "Vico Site"), which also has outline permission for retail development."

The report continues at 5.3 as follows:

"However, since outline planning permission was granted, the DIY retailer has reappraised their plans and is no longer interested in the site. Within the retail sector demand for such large units is currently very limited, and it should be noted that even within the major retail centre of Braehead, the large and modern B&Q warehouse store has closed. Several of the existing units within the St James Retail Park are successfully occupied by DIY/bulky goods retailers, and these existing units are significantly smaller than those required by the conditions. The applicant has explained that there is very limited demand for non-food retail units of the size and type required by the outline permission. Apart from food stores, few retailers require such large units other than in major retail centres such as Glasgow city centre. As such, it is claimed that a development of the type required by the condition would not be economically viable."

At paragraph 5.5 under the heading "Impact on Town Centre" the report states:

"The principle issues to be addressed in the consideration of this application is whether the proposed seven units would have any greater impact upon the town centre than would the consent of development of two large units and if so, whether that impact would be unacceptable. At 5.6 it is noted that in approving the outline application it was considered the impact of the proposal upon Dumbarton town centre would be relatively modest and that the benefits of retaining expenditure and boosting Dumbarton as a retailing centre were considered to offset any immediate abstraction of trade from existing retailers."

At paragraph 5.7 the following appears:

"The outline consent allows 6503 m2 of retail, but apart from specifying that it should be non-food, it does not impose any restrictions upon the type of goods sold. In general, the impact of new retail development is considered to be relative to the total quantity of floor space and not the manner of its provision, and as such it is unlikely that the proposal would cause any greater impact upon the town centre than would two large units. The submitted retail impact assessment suggested that the loss of trade to the High Street area as a result of the proposal would be in the region of 3% of the existing turnover, a level which was considered acceptable. The main impact of the new retail units is likely to be upon existing retail park units and supermarkets, as well as serving to retain a proportion of the expenditure currently exported."

Paragraph 5.9 and 5.10 are to the following effect:

"In assessing this impact, it is necessary to consider the size and range of retail units available within the High Street area. It is recognised that at present there is an existing problem of low demand for retail units within the High Street, which manifests itself as vacant/underused units. The revitalisation of Dumbarton town centre is a priority for the council and it would be undesirable to allow development which would undermine this. However, the majority of the existing vacant units within the High Street area are relatively small, typically less than 200 m2 (with the notable exception of the former Co-Op store). The consented refurbishment of the Artizan Centre (which involves refurbishment of existing buildings and some demolition/ new building) will create a number of larger units of similar size to those proposed by this application, and to this extent, it is possible that the two developments would be competing for the same tenants. However, the proposed development would also compete for tenants for planned retail development on the former distillery site at Castle Street (the Vico Properties site), which also has outline permission for retail development, although a detailed application was recently refused on design grounds and that decision is currently subject to an appeal.

The current application site is considered to be a logical extension to the established retail park, and is in some respect preferable to the Vico site as a location for retail development. Although some competition for tenants with other approved developments may arise, it is considered that the site competes more directly with the Vico site than the High Street areas. As both the application site and the Vico site have outline permission, it would not be appropriate to treat one or the other preferentially in the context of the reserved matters application, and ultimately the retail market should determine if there is sufficient demand for both schemes. It is considered that this development will help to retain existing exported expenditure and will help to improve Dumbarton's overall attractiveness as a retail destination."

The conclusion of the report was at paragraph 6.1 in the following terms:

"The principle of developing this site as an extension to the retail park has been established, and this application is merely concerned with the number of units employed to make up the permitted new floor space. When outline planning permission was granted, the positive benefits of retaining some of the existing exported expenditure within the town were considered to outweigh the relatively slight loss of turnover for the High Street area. It is considered that the impact which seven units would have upon the town centre would not be significantly greater than that of two larger units of the same overall size, and the proposal is therefore considered acceptable."

[9] The respondents' planning committee followed the recommendation of the planning officer in the report just referred to and granted consent in respect of the removal of the condition, the consent being issued on 8 October 2007. They also granted permissions in respect of application DC07/284/REM and DC07/285/FUL. It was a matter of agreement among the parties that the validity of the last two mentioned permissions is conditional upon the validity of the permission in respect of the removal of condition 12.

 


SUBMISSIONS FOR THE PETITIONERS

[10] In commencing his submissions, senior counsel for the petitioners referred to sections 25, section 36(1) and (2) of the Town and Country Planning (Scotland) Act 1997 and the following authorities City of Edinburgh District Council v Secretary of State 1998 SC (HL) 33, Wordie Properties 1984 SLT 354 and Tesco Stores Limited v Secretary of State [1995] 1WR 159 for the proposition that in determining the applications in the present case, the respondents had to have regard to the development plan and other relevant matters. What senior counsel described as the "priority" that fell to be given to the development plan was emphasised by what was said by Lord Clyde in the City of Edinburgh case at page 44B-D under reference to the then provisions of the 1972 Town and Country Planning Act which have their equivalent in the 1997 Act. At page 43G Lord Clyde said this:

"By virtue of sec 18A the development plan is no longer simply one of material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission. It is distinct from what has been referred to in some of the planning guidance, such as for example in paragraph 15 of PPG1 of 1988 as a presumption, but what is truly an indication of a policy to be taken into account in decision-making. By virtue of sec 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given.

Moreover the section has not touched on the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he fail to give effect to that requirement."

[11] Senior counsel for the petitioners submitted that in the event of a planning authority arriving at a decision which failed to have regard to the development plan or the relevant policies of the plan or which obviously disregarded material considerations, such a decision fell to be reduced by the court. That was recognised by what Lord Clyde had to say at page 44E-G. Lord Clyde went on to discuss the process which the decision making authority should follow in order to comply with its duties when he said at page 44G-45B as follows:

"In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify the provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy of a development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with a development plan. There may be some points of the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it. He will have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."

These dicta of Lord Clyde in the City of Edinburgh case were, it was submitted, applicable to an application made under section 42 of The Town and Country Planning Act 1997 which was the section under which the first of the applications with which these proceedings are concerned was made. Section 42(1) and (2) are to the following effect:

"(1) This section applies, subject to sub-section (4), to applications for planning permission for the development of land without complying with conditions subject to which the previous planning permission was granted.

(2) On such an application the planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and -

(a) If they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly;

(b) If they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application."

I was referred to the case of Pye v Secretary of State for the Environment and another [1998] 3PLR 72. That case is authority for the proposition that in respect of the then equivalent provision to section 42, to be found in the English legislation, namely section 73 of the Town and Country Planning Act 1990, an application made under section 73 was to be regarded as an application for planning permission as such. It, furthermore, was held by Sullivan J, that in considering such an application the planning authority's duty was to have regard to the development plan and any other material consideration. I should say that none of this was the subject of any dispute by counsel for either the respondents or the interested party. The last mentioned case was also, it was submitted, authority for the principle that if the condition in question related to a narrow issue then the consideration to be given by the authority to the application might be on a narrower basis than if it was central to the original application where the authority's consideration would require to be wider. Reference in this connection was made to Sullivan J's judgment at page 85F-G and at page 88. This approach to such matters has been wholly endorsed subsequently by the Court of Appeal in England in the case of R v Leicester City Council, EXP, Powergen UK Limited 81P& CR5 at pages 53 to 56.

[12] Senior counsel for the petitioners then took me to the original application, 7/1 of process, in respect of which the relevant condition was imposed. The committee report in relation to that application is 7/15 of process. Senior counsel, for the petitioners, made it clear that the petitioners were not seeking, in any way, to challenge the validity of the decision taken in respect of that application. He did, however, draw my attention to certain of the material upon which the decision was made. This included the applicant's retail impact assessment 7/10 of process. At paragraph C of 7/10 it was stated under the heading "Development Plan Policies" as follows:

"The development site is identified in the Dumbarton District Wide Local Plan which was adopted in 1999 as an existing industrial/business class site and as part of Dumbarton town centre. Both industrial and retail policies require to be considered along with government guidance.

Government Guidance

The Government policy with regard to retailing is contained within National Planning Policy Guideline 8 (NPPG8), Town centres and Retailing, which sets out the national context against which the proposals should be judged. The regeneration of urban areas, particularly town centres, is an objective that underpins the Government approach to sustainable development. Proposals which extend the retail floor space of the town centre and sustain and enhance its viability without damaging other interests therefore warrant support. In this respect it should be noted that retailing is retained as the core function. NPPG8 indicates that where proposals for retail development do not accord with the development plan the applicant must satisfy the council that the proposal will not adversely affect the adjacent town centres, satisfies the sequential approach and does not affect the environment, transport and other policy objectives."

The report continued under the heading "Structural Plan Policies" as follows:

"Policy SP6 of the Glasgow and Clyde Valley Joint Structure Plan 2000 indicates that the quality of life and health of the communities of the Glasgow and the Clyde Valley area will be supported through a number of actions including protection, management and enhancement of town centres as the preferred locations for retailing and other community focused activities. Schedule 6 (c)(i) indicates the criteria against which retail development proposals require to be assessed, whilst Schedule 6 (c)(ii) sets out the sequential approach to retailing. The structure plan also sets out additional retailing requirements which include opportunities at St James Retail Park, which had been taken up by Asda and other recent consents."

The report then referred to local plan policies and stated:

"The eastern part of the site is covered by policy EMP 1A of the Dumbarton, District Wide Local Plan with the western part of the site covered by policy R1A. Policy EMP 1A identifies the site as being a marketable industrial site as well as listing sites which represent the effect of marketable lands applied for new and industrial business class use development opportunities. This policy safeguards such sites solely for these uses. The Council will continue to ensure that a sufficient and effective supply of land is available by annually monitoring the situation and, where appropriate, identifying further sites by means of alterations to the Local Plan.

Policy R1A indicates that the existing shopping hierarchy within the plan area will be supported by encouraging and generally restricting retail and commercial developments to sites within the existing town centre shopping areas and those development opportunity sites in Schedule R1, subject to conformity with other local plan policies. Schedule R1 identifies the western part of the site as an opportunity to extend the retail park to include additional food and non-food units.

The Consultative Draft West Dumbartonshire Local Plan was approved at last month's committee."

At the assessments section of the report, section F, it was stated:

"The application is required to be assessed against the development plan and any other material considerations. This is a significant application which is also a departure from the Adopted Local Plan."

In the conclusion and recommendation section of the report, section G, the following appears:

"The application represents a departure in part from the approved Local Plan as part of the site is currently identified for industry and business. Although the site is not therefore fully identified as a retail opportunity it is adjacent to the town centre."

Later in the same section the following appears:

"It should also be noted that part of the site is owned by the Council and as a consequence an approval would be required to be referred to the Scottish Ministers because the Council has a financial interest in the site and the proposal is in part contrary to the development plan."

The grant of planning permission following on that report, is 7/24 of process. It contains the relevant condition 12. The reason for the condition was given as follows:

"The site is adjacent to St James Retail Park and is suitable for larger floor space units and in order to protect the retail viability of the remainder of Dumbarton Town Centre."

[13] Senior counsel for the petitioners drew my attention to the fact that the report just referred to made no express reference to strategic policy or the relevant development plan (7/6 of process) against which the proposal should have been assessed. Moreover the assessment carried out in the applicants' retail impact study, which found that it did proceed on the basis of a sequential test, was predicated on the units to be built on the site being 35,000 square feet in dimension. Reference was made by senior counsel for the petitioners to three reports of the respondents' Forward Planning and Regeneration section which, it was said, expressed concern about the impact the proposed development would have on the existing town centre and which fully justified the need for imposing condition 12 (these reports are 7/12, 7/13 and 7/14 of process).

[14] As previously noted the next chapter in the history of the matter was the lodging of three applications in similar terms to those to which the present proceedings relate and which were refused by the respondents, in June 2007, only some four months before the grants in the present case. The report to the respondents' committee in relation to the June application is 7/31 of process. That report appears to assess the proposals against the development plan (at paragraph 4.1). Senior counsel for the petitioners pointed out, however, that there was no express reference in the report to the Glasgow and Clyde Valley Joint Structure Plan 2000. At paragraph 5.10 however, there was a reference to SPP8 in relation to town centres and retailing. Paragraph 5.10 of the report states as follows:

"The focus of the SPP is encouraging a mix of uses and activities in the town centre and directing such uses to this location and the edge of town centre which are sites adjacent to the boundary of the town centre. Commercial centres such as mixed retail parks could provide a suitable location for development. The proposed development complies with the guidance of SPP8 as the application site is a site adjacent to the town centre and would add additional floor space to an existing retail park. Both the non-food retailing and leisure development would be compatible with this location."

While the report recommended the granting of the application, as previously noted, the respondents' committee refused to grant.

[15] In relation to the applications to which the present proceedings relate, the relevant report, as has been seen, is 7/48 of process. Senior counsel for the petitioners drew my attention to the fact that in this report, while there is a reference to the Local Plan, there is no reference, as such, to the Structure Plan. In particular there is no reference to SP9 of the Structure Plan which was a critical consideration for the committee to have regard to. There was also no reference in the report (7/6 of process) to SPP8. Paragraph 14.2 of the relevant Structure Plan provides:

"Development proposals should be assessed within the context of the Structure Plan. The Structure Plan is based upon taking account of the direct, cumulative and indirect strategic impacts of development. Strategic Policy 9 therefore identifies the criteria that should be applied in the assessment of any planning proposal made through a planning application, notification or local plan, in order to determine whether it accords with the Structure Plan. These criteria have been based upon the Guiding Principles for Sustainable Development of the Plan in terms of the following considerations:

        An assessment of the supply of and demand for development land that has formed the basis for the assumptions in the Plan;

        A presumption in favour of more sustainable locations (e.g. town centres) as identified in the Strategic Policies of the Plan, and the impact upon strategic environmental resources; and

        The adequacy of measures to offset the direct environmental and infrastructure implications of the proposals."

Paragraph 14.3 of the Structure Plan is to the following effect:

"A consistent approach must also be taken to significant departures from the structure plan. The significance of a proposal will be judged in terms of its direct impact, both in the local and wider area, in terms of cumulative impact and by any precedent that can be set for the future interpretation on Structure Plan Policies. In addition, therefore, to the notifications to Scottish Ministers of any proposals that are required by Government Circulars or Guidelines, the Structure Plan through Schedule 9 identifies the thresholds for the scale of development that are likely to represent a significant departure from the policies of the Structure Plan. The types of development identified in this Schedule do not cover all potential departures. In particular, there will be situations where smaller scale developments could raise significant issues in their own right or in terms of the precedent set. This is a matter for each authority to implement within the spirit and purpose of the relevant policies. This, in particular, applies to the cumulative impact, and therefore need for control of small-scale housing developments in the Green Belt or wider countryside."

It appears, it was contended by senior counsel for the petitioners, that the respondents had never considered the relevant applications against SP9. SP9 is headed as follows.

"In order to accord with this Structure Plan, development proposals will require to satisfy the following criteria:

Any proposal which fails to meet these criteria will be regarded as a departure from the Development Plan and will be required to be justified against the criteria in Strategic Policy 10. These criteria are complementary, and the fulfilment of one criterion does not override the need to satisfy others."

Senior counsel then took me through the various criteria set out under Strategic Policy 9.

[16] SP10 is headed "Any proposal which fails to meet the relevant criteria in Strategic Policy 9 will be regarded as a departure from the development plan and consideration shall require to be given to the appropriateness of the development having regard to the following criteria and any other material considerations." Senior counsel for the petitioners took the court through the detailed criteria set out in SP10 (7/4 of process). SPP8 at paragraph 38 provides:

"All planning applications shall be vigorously assessed against the Development Plan and the policies set out in this SPP. The assessment should be applied to all new development, re-development or extension to existing facilities, changes of use, renewal of planning permission and applications to vary or remove existing planning conditions concerned with the scale and or character of the development. Where appropriate, conditions should be used to ensure proposals adhere to policy (see paragraph 23). In summary the assessment will need to ensure, that in all circumstances, both the following considerations are met;

        The proposal is of high design quality and an appropriate scale for the location (see paragraph 27 - 29)

        The location is, or can be made, conveniently and safely accessible to all sectors of the community (see paragraphs 30-33).

Paragraph 39 of SPP8 provides:

"In addition, where the proposed development is not consistent with the development plan, the assessment should ensure that all the following considerations are met;

        A sequential approach to site selection has been used (see paragraphs 15-23).

        There is no unacceptable individual or cumulative impact on the vitality and viability of the network of centres identified in the development plan (see paragraphs 10-14, 17 and 35).

        The proposal will help to meet qualitive and quantative deficiencies identified in the development plan (see paragraphs 14, 24-26 and 34).

        The proposal does not conflict with other significant objectives of the Development Plan or community planning strategies."

On the face of the material placed before the respondents' committee in determining the applications to which the present proceedings relate, it could not, senior counsel for the petitioner submitted, be said that the respondents had faced up to deciding whether or not the proposal was in accordance with the Development Plan. It was their duty to determine that question, one way, or another, because if their conclusion was that the proposal was contrary to the Development Plan then they had to take into account other considerations.

[17] Senior counsel then proceeded to analyse the content of the report 7/48 of process, in support of his first ground of attack on the decisions in question, namely that the respondents had failed to take into account material considerations in reaching their decision and, in particular, had not addressed the question as to whether or not the proposals were in compliance with the Structure Plan. It was accepted by counsel that in paragraphs 5.2, 5.3 and 5.4 of the report relevant considerations were addressed. He was, however, critical of the way in which paragraph 5.5 was framed. The question was whether the removal of the condition would be contrary to the relevant policies of the Structure or Local Plan or contrary to SPP8, not whether or not there was any greater impact on the town centre by virtue of the removal of the condition and, if so, whether that impact was acceptable. In that respect senior counsel was particularly critical of what was stated in paragraph 5.9 of the report. That betrayed, he said, a complete failure to adopt the sequential approach. The petitioners now had consent in relation to the Artizan Centre in the town centre. The units which were now being proposed at the site in question were of the same order of size as those for which the petitioners had consent at the Artizan Centre. There were also similar sized units available at the former Co-Op site. The adoption of a proper sequential approach should have given preference to these units in the town centre. The approach set out in paragraph 5.9 was contrary to SP9 and SPP8. The report from the applicants' consultants in support of the applications pre-dated the grant of the consent to the petitioners in respect of the Artizan Centre. It could not, therefore, be relied upon as addressing the existing position in the town centre. The fact that in paragraph 5.9 it was expressly acknowledged that the proposed units may possibly be in competition with the units at the Artizan Centre betrayed the failure of the complier of the report to address the relevant policy. Following the approach of Lord Clyde in the City of Edinburgh case and Lord President Emslie in Wordie Properties the decision in respect of section 42 application failed to be quashed. If that was so then the decisions to grant in respect of the two other applications fell also to be quashed as they were conditional on removal of the condition. Reference in this connection was made to Heron Corporation Limited and another v Manchester City Council [1978] 1WLR 937 and Denning M.R. at pages 943-944.

[18] Senior counsel for the petitioners drew my attention to a letter received from the respondents, just prior to the commencement of the hearing before me, in which they acknowledged that the third grant did in fact require to be referred to the Scottish Ministers in accordance with the direction 5/2007 (7/2 of process) though he pointed out that what was said in that letter revealed a failure to recognise what the procedures were that required to be followed in this respect. This led senior counsel, in turn, to address what he described as his second primary ground of challenge of the respondents decision namely their failure to comply with the requirements of the direction just referred to ("the 2007 direction").

[19] The 2007 direction replaced and updated the 1997 direction under which a reference was made by the respondents in respect of the application in 2005, in respect of which Condition 12 was imposed. The 2007 direction came into effect on 1 July 2007. The Schedule to Annex A of the direction sets out the descriptions of development for which applications must be notified to the Scottish Ministers. Paragraph 13 of the Schedule provides:

"Development:

(a)                for which the planning authority is the applicant/developer;

(b)               in respect of which the planning authority has a financial or other (e.g. partnership) interest; or

(c)                to be located on land wholly or partly in the planning authority's ownership or in which it has an interest;

in circumstances where the proposed development would be contrary to the development plan for the area or has been the subject of a substantial body of objections."

The Scottish Ministers, in May 2007 published PAN82 (7/5 of process) regarding local authority interest developments. Paragraphs 25, 26 and 27 take up the expression "contrary to the development plan for the area" referred to in paragraph 13 of the Schedule to Annex A of the 2007 direction. Paragraph 25 of PAN82 is to the following effect:

"Planning legislation places a statutory duty, when deciding a planning application, to make that decision in accordance with the development plan for the area, unless material considerations indicate otherwise. This duty ensures that development plans are firmly at the heart of the planning system, and are central to a planning authority's assessment of any application. In carrying out that assessment, the authority must identify all aspects of the development plan which are relevant to the proposed development, interpret them carefully taking account of the wider aims and objectives of the plan as well as the detailed wording of the stated of policies, and then reach a decision as whether or not the proposal is in accordance with the development plan."

Paragraph 26 continues:

"In many cases, deciding whether or not a proposed development is in accordance with the plan will be straightforward. It will clearly be out of accord with the plan if the development conflicts with a specific land allocation or designation. But it may not be so certain where a proposal is being assessed against more general or criteria-based policies, or where it is actively supported by some policies of the development plan but perhaps does not sit perfectly with other policies."

Paragraph 27 then states:

"The planning authority is best placed to balance the range of policies and proposals and decide whether a proposal does or does not accord with a development plan, and is obliged to do so as part of his assessment of any planning application. In terms of this criterion for notifying Ministers, the only judgement to be made is whether or not the proposal constitutes a departure from the development plan; it should not be influenced by material considerations" (my emphasis).

At paragraphs 34-35 of the same document the following appears:

"34 In deciding whether an application "does not accord with the development plan" or has attracted a "substantial body of objections" - and should therefore be notified to Ministers - planning authorities will need to contemplate all of these issues and make a judgment drawing on their knowledge of their areas and of the relevant issues. To carry out the notification procedure where there is no need to do so will lead to unnecessary delays to development, causing frustration to some parties and it may also give a degree of false hope to people who have lodged objections. Planning authorities should not therefore adopt a blanket approach to notifying local authority interest developments to Ministers without considering these relevant factors. But as a general rule, if having considered this advice planning authorities are unsure whether any particular application falls within the criteria, it would be best to err on the side of caution and notify Ministers, to ensure there is no doubt about there having been an appropriate level of scrutiny."

Paragraph 35 then states:

"35 It is good practice for a planning authority to provide a clear explanation why it has concluded that a local authority interest development should or should not be notified to Scottish Ministers. This can generally be explained in the report to the council's relevant committee."

Senior counsel for the petitioner submitted that in the present case, where it is accepted that the application relates to development of land in the ownership of the respondents, nothing appeared in the report to the committee which indicated that the author of the report, and in turn the respondents' committee, addressed the question of the requirements of the 2007 Direction and PAN82. The Direction, in annex A, sets out the procedure to be followed where a planning authority proposes to grant planning permission for development falling within the descriptions set out in the Direction, including the sending of various documents to the Scottish Ministers. At paragraph 2 of annex A it is provided that

"In circumstances where a local authority has an interest in the development, as described at paragraph 13 of the attached Schedule, before notifying the application to the Scottish Ministers the planning authorities shall inform all objectors of its intended decision, affording them an opportunity to:

(i)                  comment on the authority's statement of reasons for proposing to grant planning permission; and

(ii)                make further representations to the planning authority and to Scottish Ministers if they do not consider that their views have been properly dealt with.

Then, after a period of no less than 14 days, the planning authority shall take account of any further comments received and only if it remains minded to grant planning permission should it carry out the notification to the Scottish Ministers under paragraph 1 above."

Paragraph 3 of the same Annex states:

"Where a planning authority have in accordance with paragraph 1 given information to the Scottish Ministers in respect of any application, they shall not grant planning permission for the development to which the application related before the expiry of a period of 28 days beginning with the date notified to them by the Scottish Ministers as the date of receipt by them of the information."

Paragraph 4 provides:

"The Scottish Ministers may during the said period of 28 days referred to in paragraph 2 notify the planning authority in writing that an earlier date shall be substituted for the date of expiry of that period."

Paragraph 5 then provides:

"If on the expiry of the period of 28 days or such other date as has been notified to them the authority has not received from the Scottish Ministers:

(a)                a Direction under section 46 of the Town and Country Planning (Scotland) Act 1997, requiring the application to be referred to them instead of being dealt with by the authority, or

(b)               A Direction under article 17 of the Town and Country Planning (General Development Procedure)(Scotland) Order 1992 further restricting the granting of planning permission, the planning authority may proceed to determine the application."

None of the foregoing procedure has been followed in the present case. There is, however, produced in these proceedings, an affidavit dated 21 February 2008 of Alasdair Ian Gregor (7/51 of process) who is the planning services manager of the respondents. At paragraph 9 of the affidavit Mr Gregor depones:

"In deciding that it was not necessary to refer application s DC07/284/REM or DC07/286/FUL to the Scottish Ministers, the Council took into account the provisions of the Town and Country Planning (Notification of Applications)(Scotland) Direction 2007 (henceforth referred to as the Direction), of Scottish Executive circular 5/2007 "Notification of Planning Applications" (henceforth referred to as circular 5/2007), and of Scottish Executive Planning Advice note 82 'local authority interest directions' (henceforth referred to as PAN82)."

At paragraphs 10 and 11 of the affidavit the witness refers to certain provisions of the Direction. At paragraph 12 Mr Gregor continues:

"In terms of class 8 (Development Contracts and Development Plans), the threshold for notification of the Ministers is that the development would, in the opinion of the planning authority, be significantly contradictory to the development plan for the area. Circular 5/2007 advises that planning authorities are best placed to judge whether a departure from a plan is 'significant', but that the Ministers expectation is that applications should be notified to them where the proposed development is contrary to the main aims, objectives and policies of the plan."

At paragraph 13 of the affidavit Mr Gregor depones:

"In this case, it was considered that the proposed development was a departure from the plan (in as much as the site is allocated for employment development in the adopted local plan), but that this departure was not a significant departure as it would not conflict with the main aims, objectives or policies of the plan. Furthermore the Scottish Ministers had previously been notified about outline application DC04/004 and had not decided to intervene in that decision. Application DC07/284/REM and DC 07/286/FUL directly related to permission DC04/004 and in the view of the Council did not significantly alter the nature of the proposed development and did not in themselves constitute departures from the plan. Application DC07/285/FUL introduced a new use (leisure) which was not part of the outline permission, but this was considered to be a relatively minor part of the overall development. As such, it was not considered that any of the applications constituted a significant departure from the development plan and therefore none of the applications are required to be notified to Ministers under class 8."

At paragraph 14 Mr Gregor continues:

"In terms of class 13 (Development in which Planning Authorities have an interest), the criteria for notification set out in the Direction include development to be located on land wholly or partly in the planning authority's ownership or in which it has an interest (as is the case for the application site) where the proposed development would be contrary to the development plan for the area or has been the subject of a significant body of objections. Guidance of what constitutes a 'substantial body of objections' is provided in PAN82. This states that the planning authority should notify the Scottish Ministers where the strength of opposition, is a significant material consideration, taking account of the number of objections, the extent to which these are representative of the community, and the relevance of grounds of objection."

At paragraph 15 of the affidavit the witness refers to the representations which had been received. Then at paragraph 16 Mr Gregor depones as follows:

"In terms of the development being contrary to the development plan, it was recognised that the site is allocated as a Marketable Industrial Site in the adopted local plan, and that whilst in the council's view material considerations justify allowing the development, the development as a whole was a departure from the plan (albeit not a 'significant' departure). The fact that the development as a whole was contrary to the land use designation in the adopted local plan was clearly set out in both of the committee reports. The committee reports did not specifically refer to the approved Structure Plan or SPP8, however these were implicit in the consideration of the application, and the Council does not consider it necessary or appropriate for reports to refer explicitly to every single policy or document relevant to a planning application unless their relevance is direct. In this case, the principle of retail development of the scale proposed had already been established, and the alterations to the unit sizes and the introduction of a relatively modest leisure use have not significantly altered the nature or character of the development."

[20] Senior counsel for the petitioners submitted that from the foregoing passages of the affidavit the respondents appeared to be attempting to justify their failure to notify the applications in terms of the Direction by relying on a view that the proposed development did not "substantially alter the character of the development". That however, it was submitted, did not address the exercise which the Direction required them to undertake nor was it the question they were obliged to address. Since the lodging of the affidavit the respondents had recognised that they required to notify the Scottish Ministers, in terms of the Direction, the application in relation to unit 3 -see their letter of 21 February 2008 - but even that letter betrays an ignorance of the procedure which required to be followed as specified in annex A of the Direction.

[21] Both the respondents and the interested parties had taken pleas directed to title and interest of the petitioners to bring the petition. Senior counsel for the petitioners addressed me on this subject but, in the event, neither of the other parties sought to support these pleas and so I do not require to deal with that matter.

SUBMISSIONS OF RESPONDENTS

[22] In opening his submissions, in reply, senior counsel for the respondents invited me to dismiss the petition and sought to draw, from the outset, a distinction between what was described as form and substance in the field of planning reports and decisions. The report to the respondents' committee in the present case, 7/48 of process, it was submitted, discussed what the officer in question regarded as the relevant planning issues raised in the context of the application in question. Such a report, it was submitted, was intended to provide a planning committee, a body which came with its own body of knowledge, with a basis upon which to have an informed discussion. In relation to what was required in respect of the decisions of planning authorities Lord Clyde in the City of Edinburgh Council case said at page 50 this:

"It is necessary that an account should be given of the reasoning of the main issues which were in dispute sufficient to enable the parties and the court to understand that reasoning. If that degree of explanation was not achieved the parties might well be prejudiced. But elaboration is not looked for and a detailed consideration of every point which was raised is not to be expected. In the present case the reporter dealt concisely but clearly with the critical issues. Nothing more is to be expected of him".

Again, more recently, in the case of South Bucks DC v Porter (number 2)[2004] 1WLR 1953 Lord Brown of Eaton-Under-Heywood at paragraph 36 was to the following effect:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely upon the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact on future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. Reasons challenged will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

Senior counsel for the respondents invited me to apply these tests in the present case, in particular the test of whether it could be said there was a substantial doubt as to whether the decision maker had erred in law, in assessing the decisions under attack in the present proceedings. It was explained that while application DC06/394/FUL had been granted on 2 October 2007 the decisions in respect of the other two applications to which the present proceedings relate were subject to further consultation which had now been concluded. It was now accepted that the procedure necessary to comply with the 2007 Direction had not been properly followed in respect of the third application and that this would "now be put right".

[23] Senior counsel for the respondents then proceeded to carry out a detailed consideration of the history of the matter, starting with the 2004 application DC04/004 and the relevant planning policies obtaining at that time. Reference was made in detail to the assessment report submitted by the developer in respect of the 2004 application which is 7/10 of process. It is described as "Supporting planning, retail and sequential site assessment report". It is dated November 2004. Reference was also made in detail to a document headed "Observations of Forward Planning and Regeneration Section", 7/13 of process in relation to this application and the report to the respondents; committee, 7/15 of process. I was also referred to 7/16 of process, 7/17 of process and 7/18 of process relating to the 2004 application which were respectively, the minutes of the planning committee, the intimation of the matter to the Scottish Ministers and a request by the Scottish Ministers for further information. By letter of 8 December 2005, 7/22 of process, the Scottish Ministers advised the respondents that they did not intend to issue a direction restricting the granting of planning permission in respect of the 2004 application or requiring the application to be referred to them for determination. The respondents were, accordingly, authorised to deal with the application in the manner they thought fit. It was against all of that background that the consent, 7/24 of process, was granted and against which the application 7/25, 7/26 and 7/27 of process were made.

[24] In support of the section 42 application, the developers produced a detailed retail and planning statement, 7/28 of process. The application had attracted a substantial body of objectors who were concerned with environmental issues. The applicants were invited to address these concerns. The section 42 application was also made against the background of the emerging local plan as was observed in 7/28 of process. That document also, it was submitted, carried out a sequential site assessment for the development and embodied an updated retail assessment. All the relevant planning considerations were addressed, it was said, in detail, in that document. From this report came material, it was submitted, which would entitle the respondents to reach the conclusion that any impact on the viability of the town centre brought about by the removal of the condition would not be "critical". The relevant report to the respondents committee 7/31 of process, clearly accepted and agreed with the conclusions of the developers' planning retail report. While the planning officer, who had compiled 7/31 of process, recommended granting the application the respondents' planning committee refused to do so. As previously noted that decision has been appealed but the appeal is presently sisted.

[25] In the meantime the applications to which the present proceedings relate had sought to address the objections made in respect of the previous applications. That they had successfully done so was evidenced by the fact that the previous objectors had not objected to the present applications. The report to the committee 7/48 of process was compiled by the same person as compiled 7/31 of process. All the relevant planning issues, it was submitted, had been addressed in a letter from the developer's consultants of 1 August 2007, 7/46 of process which was sent to the respondents and which summarised the developer's case, a document which the respondents' committee had before them in deciding the applications. The report, 7/48 of process referred to the history of matters and it was submitted that at sections 4 and 5 there was reference to the relevant planning considerations against that background. A planning judgment was being exercised, where at paragraph 5.7 it was stated:

"In general, the impact of the retail development is considered to be relative to the total quantity of floor space and not the manner of its provision, and as such it is unlikely that the proposal would pose any greater impact upon the town centre than would two large units."

The compiler of the report, in exercising his planning judgment, also reached the conclusion that the main impact of the new retail units proposed would be likely to be upon the existing retail park units and supermarkets and not upon High Street stores. The conclusion of the report at paragraph 6.1 described the proposal as "acceptable". The word "acceptable", it was submitted, was a shorthand way of covering a number of planning issues.

[26] Senior counsel for the respondents, in particular, invited the court to bear in mind that there existed a sound practical reason for the removal of the condition as evidenced by the content of the report 7/48 of process, namely that the earlier consent which had the condition imposed upon it was, effectively, incapable of being implemented because of evolving changes in retail demand. It was pointed out in paragraph 5.3 of the report that the anticipated large anchor store had not been forthcoming and there was limited demand for non-food retail units of the size and type required by the outline permission. Accordingly a planning benefit in respect of the development of the retail park would be achieved by the removal of the condition. Otherwise there was the prospect of a major site, through market changes, being sterilised. The principal issue, it was submitted, which the respondents had to address, in planning terms, in dealing with these applications was whether the removal of the condition would mean that the proposed development would have a different impact on the town centre than if the condition remained and, if so, whether any impact would be "unacceptable". That was exactly what was addressed at paragraph 5.5 of the report. That issue was being addressed clearly having regard to the relevant policies and the development plan. The petitioners themselves in their submissions to the respondents, had drawn attention to the relevant policies. The possible impact of the proposed development had always been a consideration which the respondents had in mind from the initial application until the time of granting the applications to which the present proceedings relate. The impact of the development on the town centre was considered at paragraphs 5.6 and 5.7 of the report. It was not considered by the author of the report to be critical. On the other hand what was brought out by the report was that there was a potential benefit to be obtained in removing the condition and drawing back to the Dumbarton area expenditure in relation to comparison shopping which was being leaked elsewhere. Moreover it was considered, as previously noted, that any impact would be more likely on existing retail park units and supermarkets. The report, therefore, indicated that the planning officer who had written it had carried out a careful balancing exercise based on the material placed before him and the objections which had been received. Having done so, he considered, as a matter of planning judgement, that any impact on the town centre which might be caused by a modification in the size of the unit would be "acceptable".

[27] The petitioners complained that in the report there was no evidence that the necessary sequential approach had been followed in the assessment of the proposals. But that had been done by the developer as noted at paragraph 4.1 of the report. The proposal had to be looked at for what it was - a new build on a natural extension to an existing retail park. The development as a whole could not be accommodated in the town centre - that was a sound reason for now removing the restriction imposed by the condition. In all the circumstances, it was clear that the respondents had considered the relevant provisions of the development plan, the finalised local plan and the fact that the site remained designated as a large industrial site had been reconsidered in the context of the structure plan revision. Having addressed all those matters the respondents had come to the conclusion, on a reasonable basis, to follow the recommendation to grant.

[28] Senior counsel for the respondents responded very briefly to the submissions made on behalf of the petitioners under the second main line of attack which relied on the provisions of the 2007 Direction. He did so on the footing that his submissions, to date, had foreshadowed his position in relation to this chapter of the case. The granting of the application, he submitted, had not involved any departure from the structure plan or, if it did, it did not involve a "fundamental" departure from it. Having regard to the content of the report 7/48 of process, the provisions of paragraph 13 of the Direction were not attracted since the proposed development would not be contrary to the development plan for the area. The writer of the report had, it was submitted, reached the conclusion that since there was no departure from the development pan there was no need for the procedure set out in PAN82. The provisions of SP10 were not engaged. In conclusion senior counsel for the respondents accepted that if for any reason the grant in relation to the section 42 application fell to be quashed the other two grants also fell to be reduced.

SUBMISSIONS FOR THE INTERESTED PARTY

[29] Senior counsel for the interested party adopted the submissions advanced on behalf of the respondents. The question which the case raised, it was said, was whether the relevant local and structure plan policies had been addressed by the respondents and whether, having done so, the application was considered to be in compliance with these. Senior counsel for the interested party submitted that on a proper reading of the report 7/48 of process, it was clear that the author considered that the application complied with the relevant policies. There was nothing in the report or elsewhere to suggest that any policy in the structure plan had not been complied with. The context in which the decision to grant was reached had to be kept in mind. The whole history of the interest in the site was highly pertinent as to how one read 7/48 of process and what the respondents would have made of it. Applications in relation to the site had been looked at on no fewer than three times over a two year period. At a general level it was reasonable to infer that the respondents' committee were fully aware of the planning issues relative to this site and the implications for the town centre. The court should also keep in mind the nature of the respondents' committee. It was a specialised committee used to dealing, on a regular basis, with proposals which might affect the town centre. In addition the function of the report had to be borne in mind. Its function was to encapsulate in a readable form the live issues for the committee in the light of the committee's experience and expertise.

[30] There were three main issues, it was submitted, for the respondents to consider in determining these applications. The first was the general question of the adequacy of investment in the town centre. The second was the vitality and viability of the town centre and the third was the application of the sequential test. Senior counsel submitted that all these matters were addressed in 7/48 of process. The question of investment in the town centre was covered in paragraph 5.9 of the report. The vitality and viability of the town centre was covered in paragraphs 3.1 and 4.1 and the sequential test was covered in paragraph 4.1. The issue of alternative sites was addressed at paragraph 4.1, paragraph 5.1 and paragraph 5.2. There was no suggestion that there were any other suitable sites. Counsel for the petitioners had not criticised the respondents' conclusions on the basis that a proper application of the sequential test would have ruled out the applicant site. Accordingly all the relevant issues were addressed. Senior counsel for the interested party went further, however, and submitted that within the report there was no recognition that the structure plan policies were being departed from. Counsel for the petitioners had particularly relied on the continued formal existence of policy EMP1A but that was wholly obsolete by October 2007 - its industrial designation had gone under the local plan process. Notwithstanding that the respondents had in late 2005 referred the original application to the Scottish Ministers, by October 2005 the final draft of the local plan had recognised the realities, by the authority deciding that retail use was appropriate for this site. In that situation, it was submitted, it would have been what was described as an "extraordinary" application of the Direction to consider that notification under it was necessary, because the issue of principle had been addressed by the Scottish Ministers in 2005. Realities should be allowed to rule over formalities. The petition should be dismissed.

REPLY FOR PETITIONERS

[31] In reply senior counsel for the petitioners pointed out that counsel for the respondents and the interested party had both accepted that there was no specific and express conclusion in 7/48 of process that the proposal was or was not contrary to the development plan. Nor did either of them take the court to any document which said that the proposal was in conflict with the development plan. There was nothing in 7/28 and 7/40 of process which supported the application, which said that, for example, what was proposed was in conformity with the development plan. The priority of the development plan meant that the respondents had to address specifically whether or not the application was in conformity with it and to state what the position was in that respect. There were three main difficulties in the report 7/48 of process. Policy R1B of the Dumbarton District Local Plan provided:

"Shopping development proposals on sites adjoining the existing town centres will be positively considered where it can be demonstrated that there is sufficient capacity in terms of available expenditure from the catchment population to support additional floor space and provided that there are no adverse impacts on the surrounding environment and no alternative sites within the existing centre or identified in schedule R1."

That policy was not addressed at paragraph 4.1 of the report 7/48 of process. In paragraph 5.9 matters were left completely in the air as to whether or not the proposal was in compliance with RIB. What the report did not shrink from acknowledging was that in the existing local plan, the site was designated for industrial use. That was why the proposal was referred to the Scottish Ministers in 2005.

[32] The next difficulty in the report was that there was no reference at all to SP9. It might be said that in paragraph 5.9 of the report the sequential approach had been addressed but how could it be said that it had been properly addressed when there was a recognition in that paragraph that there sites in the town centre which could accommodate the development in question. The developers reports' 7/28 and 7/24 of process could not be prayed-in-aid in support of a reasoned sequential approach addressed by the respondents, when both of those documents were prepared at a time when the petitioners did not have planning consent for their site in the town centre. In the letter 7/40 of process of 3 August 2007 Turley Associates, acting for the developers, referred to the earlier sequential assessment but there was no mention of the change of situation arising from the petitioners' site having obtained planning consent. While SP8 had been referred to in the June report, there was no explanation as to why it did not feature in 7/48 of process. It was a material consideration. In his submissions senior counsel for the respondent had referred to the language of category 8 description of developments for which applications require to be notified under the Direction 2007. It states:

"Any development which, in the opinion of the planning authority, would be significantly contrary to the development plan for the areas."

The relevant category was, however, category 13 where the wording "significant" did not occur. Any development in which the planning authority had an interest, if it was contrary to the development plan required notification by virtue of category 13. Reference was made to the terms of paragraphs 34 and 35 of PAN82

It was clear, it was submitted, that the respondents had not followed the advice or guidance in those paragraphs in the instant case.

Decision

[33] I begin my consideration of the submissions made to me by having regard to the affidavit, 7/51 of process. Neither counsel for the respondents, nor for the interested party, sought to distance themselves from its content in any respect. I have to take it to represent the position of the respondents. The content of paragraphs 9 and 10 of the affidavit have already been set out by me. At paragraphs 11 and 12 the witness refers to the provisions of class 6 and class 8 in the Schedule to the Direction. The respondents' position at paragraph 13 of the affidavit has already been set out by me in full, supra. At paragraphs 14 and 15 the witness deals with the terms of class 13 in relation to the position where the application in question has been the subject of a significant body of objection. I refer also to the terms of paragraphs 16 of the affidavit set out supra.

At paragraph 19 of the affidavit the witness goes on to explain further the respondents' reasoning with regard to the position of application DC07/286/FUL where he says:

"Application DC07/286/FUL sought to vary a planning condition attached to outline permission DC04/004, which placed restrictions on the size of the individual retail units and preventing sub-division of these units. Sub-division of retail units would not normally constitute 'development' as defined under the Town and Country Planning (Scotland) Act 1997, and were it not for this condition no planning permission would be required to do so. Scottish Office Development Department circular 4/1998 'the use of conditions in planning permissions' makes it clear that conditions governing the size of units occupies should normally be avoided. Whilst the council considers that this condition was originally imposed for legitimate planning reasons, in the context of application DC07/286/FUL, having given full weight to the development plan and other material considerations including those raised by the petitioners' letter, it was considered that the removal of the condition was acceptable in planning terms. Under the circumstances it was considered that the removal of this condition did not substantially alter the character of the development. Therefore, application DC07/286/FUL did not constitute a departure from the development in its own right and did not require to be notified to the Scottish Ministers."

In my judgement the passages quoted from the affidavit betray a misdirection by the respondents as to their duties under the Direction in relation to applications for developments to be located wholly or partly on land owned by them or in which they have an interest. In such a case if the proposal is contrary to the development plan that triggers the requirement to notify. Category 13 is not qualified with any words such as "significant" or "material" departures, (in contrast to the position with regard to e.g. category 8). The report 7/48 of process, in my judgment was deficient in that it does not face up, fairly and squarely, to the issue of whether or not the proposal was contrary to the development plan. The content of the affidavit, in that connection, might be seen as involving something of an attempt at an ex post facto rationalisation about the matter. While I completely accept a good deal of what was said by the respondents and the interested party, about (a) the need to avoid requiring planning reports to be overloaded with express references to every relevant policy and (b) the appropriateness of using shorthand references in such reports, it still remains the case that the reasoning, and the material upon which it relies, must be intelligible and adequate as Lord Clyde put matters in The City of Edinburgh case at page 50. I quite accept that, standing the history of the matter, the background to the application itself and the material which was before the respondents, a good deal of petitioners' criticisms about the absence of specific and explicit references to individual policies was misguided. On the other hand it seems to me that the informed reader of 7/48 of process would be left unclear, ultimately, as to whether and, if so in what respects, the compiler of that report considered the proposals to involve a departure from the development plan. I am left with the distinct impression that that was done deliberately by the use of words such as "acceptable" or "unacceptable". There is an element of equivocation to be found in certain of the paragraphs, in the report, to which the petitioners referred. I agree also with senior counsel for the petitioners that in paragraph 5.9 of the report, which deals with questions of impact, the writer has left matters completely in the air as regards his conclusion with regard to the retail impact of the proposal on the town centre and the sequential approach to such matters. The fact that the petitioners had recently obtained planning permission for their town centre site required, it seems to me, that these questions were addressed against the relevant planning polices which with much more clarity than appears in the report. Senior counsel for the petitioners was also, in my view, well justified in saying that the respondents and the interested party could not take refuge in the reports submitted on behalf of the developer which had not had regard to the position of the petitioners' site having obtained planning consent.

[34] The good practice referred to at paragraph 35 in PAN82 has not, in my view, been followed in this case. That good practice, is reflective, in any event, of what is required, as a matter of law, in the production of decisions in this field namely that the decision maker should make clear its reasoning so that interested parties can properly assess their rights on the matter. I consider that the informed reader of 7/48 of process is left in a state of uncertainty as to whether the writer of that report is saying that the proposal was (a) contrary to the development plan or not, (b) if so in what respects there was a departure from the development plan, and, (c) if so, why, nevertheless, the proposals should be granted. The decision which followed upon that report and relied on its reasoning is therefore inadequate in its reasoning in the sense described by Lord Clyde in the passage cited supra.

[35] I also consider that the report fails the test prescribed by Lord Brown of Eaton-Under-Heywood, namely,

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached in the "principal important controversial issues" disclosing how any issue of law or fact was resolved."

[36] Moreover, and in any event if, as seems at times to be accepted in the affidavit referred to, the proposal did, contrary to what was submitted on behalf of both the respondents and the interested party before me, involve a departure from the development plan (though not "significant") then it fell to be referred to the Scottish Ministers being a class 13 proposal in terms of the 2007 direction. That it has not been so referred is contrary to law. The social and political reasons for requiring referral of planning applications in the class of category 13 to the Scottish Ministers are obvious. The need to avoid any appearance of conflict of interest on the part of authorities, like the respondents, in dealing with such applications means, in my judgment, that these provisions should be followed with some care. They are not to be regarded as technical matters. In the present case, the sensitivity of the matter was, in my view, all the greater because the respondents had themselves previously imposed the condition as being necessary to support the vitality and viability of the town centre and this was the basis upon which the Scottish Ministers had previously considered the matter. There was, in that situation, a very good reason why it was appropriate for the Scottish Ministers to be asked to consider the matter of the proposed change of position in that respect.

[37] The respondents' understanding of how the 2007 direction falls to be applied, in situations like the present, as described in the affidavit, in my judgment, is misconceived. That they have, by their own admission, failed to apply the direction properly in relation to the third application simply undermines further their position in this respect.

[38] For the foregoing reasons I consider the decision to be invalid and I shall therefore sustain the petitioners first and second pleas in law and grant reduction of the decisions.

 

 

 

 


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_76.html