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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bell & Anor v. East Renfrewshire Council & Anor [2005] ScotCS CSOH_159 (22 November 2005) URL: http://www.bailii.org/scot/cases/ScotCS/2005/CSOH_159.html Cite as: [2005] CSOH 159, [2005] ScotCS CSOH_159 |
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Bell & Anor v. East Renfrewshire Council & Anor [2005] ScotCS CSOH_159 (22 November 2005)
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OUTER HOUSE, COURT OF SESSION [2005] CSOH 159 |
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OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge) in the application to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997 by ASHLEY BELL Applicant against EAST RENFREWSHIRE COUNCIL First Respondent and GEORGE WIMPY UK LIMITED Second Respondent and CARVILL (SCOTLAND) LIMITED Third Respondent ________________ |
Applicant: Sir Crispin Agnew of Lochnaw QC; Morton Fraser
First Respondent: D Armstrong; Shepherd & Wedderburn
Second and Third Respondents: Abercrombie QC, A L Stewart; Aitken Nairn
22 November 2005
Introduction
[1] This is an application by Ashley Bell to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) which has been remitted under Rule of Court 41.44 by the Inner House to the Outer House for a hearing. The applicant seeks the quashing of Policy T7, which relates to the development of a motorway service area (MSA) at or near the junction of the M77/GSO, in the local plan adopted by the first respondents, East Renfrewshire Council (ERC), on 19 November 2003. As there were different versions of policy T7 at different times it is necessary to distinguish between them. Although they are all referred to in the various documents as policy T7, I shall, in order to distinguish between them, refer to them respectively as policies T7/1, T7/2 and T7/3. [2] Policy T7/1 appears in the finalised local plan dated 1 March 2001 (no 6/2/1 of process). Its terms are as follows:"The Council will support in principle the development of a Motorway Service Area (MSA) at or near the junction of the M77/GSO, as shown on the Proposals Map, provided that environmental and access requirements can be met.
Justification: This proposal is consistent with the Structure Plan and NPPG 9. Commercial interest has been shown in this general area but the Council will have to be convinced that the optimum location is arrived at which balances economic benefit with protecting the environment. The terms of Policy Strat2 will be applied in assessing proposals or options. Until such time as a MSA is developed, the terms of policy E2 will continue to be applied."
"The Council will support in principle the development of a Motorway Service Area (MSA) at or near the junction of the M77/GSO, as shown on the Proposals Map, provided that environmental and access requirements can be met. To ensure compliance with NPPG 9, the Scottish Executive as the Trunks Road Authority will be consulted on proposals for this facility.
Justification: The Council considers that there is an opportunity for a MSA at the junction of the M77/GSO. This policy acknowledges that the Scottish Executive as the Trunk Roads Authority requires to be consulted on this type of development. Outline planning permission has been granted for an MSA at Kingswell, East Ayrshire and the Council acknowledges that if this proposal receives all the necessary final approvals and is implemented, the development of a MSA at the M77/GSO junction will require particular justification in accordance with NPPG 9. Commercial interest has been shown in this general area but the Council will have to be convinced that the optimum location is arrived at which balances economic benefit with protecting the environment. The terms of Policy Strat2 will be applied in assessing proposals or options. Until such time as a MSA is developed, the terms of Policy E2 will continue to be applied."
"The Council will investigate the suitability of locating a Motorway Service Area (MSA) at or near the junction of the M77/GSO, as shown on the Proposals Map, as a possible alternative to the proposed MSA at Kingswell, East Ayrshire provided that environmental and access requirements can be met.
Justification: The Council considers that there is an opportunity for a MSA at the junction of the M77/GSO and that this location may be a preferable alternative to the proposed MSA at Kingswell. Outline planning permission has been granted for an MSA at Kingswell, East Ayrshire and the Council acknowledges the requirements of NPPG 9 that a new MSA, whether accessed directly from the motorway or via an Interchange, should not be less than 24 kilometres from the nearest existing MSA (or approved proposal for a new MSA).
This Policy acknowledges that the Scottish Executive as the Trunk Roads Authority requires to be consulted on this type of development. Commercial interest has been shown in this general area but the Council will have to be convinced that the optimum location is arrived at which balances economic benefit with protecting the environment. The terms of Policy Strat2 will be applied in assessing proposals or options. Until such time as a MSA is developed, the terms of Policy E2 will continue to be applied."
"Opportunities for motorway service areas exist at the locations listed in schedule 4(vi). In realising these opportunities, regard should be had to the guidance in NPPG 9, existing planning permissions, emerging road proposals, the impact of new facilities on the free and safe flow of traffic on the motorway, the need to safeguard the strategic locations identified in Schedules 5(b) and (d), and the important environmental considerations such as the Green Belt and the natural and built heritage".
The M77/GSO interchange did not feature among the locations listed in schedule 4(vi) as opportunities for motorway service areas, it having been removed by the Scottish Ministers.
[7] Paragraph 13 of NPPG 9, so far as relevant, states:"The Secretary of State will rely on the planning authorities to formulate policies to permit and promote suitable developments in appropriate locations and on the private sector to lease and acquire sites. Following wide consultation it is now Government policy:
(a) to promote more MSAs while leaving it to the local authorities, public bodies and the private sector to identify opportunities, and to the private sector to acquire sites and seek consent from planning authorities;
(b) to require, in the interests of the free flow of motorway traffic and general road safety, that a new MSA, whether accessed directly from the motorway or via an interchange, should not be less than 24 kilometres from the nearest existing MSA (or approved proposal for a new MSA).
Issues of market demand and of planning and environmental policy will influence the practicable spacing in each case and particular justification will be required for any proposal with spacing below 24 kilometres."
Paragraph 17, so far as relevant, states:
"In general it would not be appropriate for service areas accessible to traffic in the same direction to be closer than 24 kilometres to each other and larger intervals may often be appropriate. However frequent (sic) queuing of vehicles on the approaches to existing service areas which cannot be expanded to cope with demand may justify a new service area closer than 24 kilometres to existing ones."
Paragraph 30 states:
"Structure Plan authorities should use these Policy Guidelines and the outcome of their discussions with developers, neighbouring authorities and National Roads Directorate to set out in alterations to their plans strategic policies for lengths of motorway and other trunk road (sic). These should
(a) indicate where on the motorway and other trunk road network there are opportunities for service areas;
(b) indicate which lengths of the trunk road network are constrained by environmental and other considerations;
(c) indicate where there is a need for other facilities short of service area provision; and
(d) set out their strategies for enhancing and promoting the facilities in wayside and bypassed settlements to contributing to meeting the needs of travellers."
The first sentence of paragraph 31 states:
"Local plans should implement the structure plan strategy by identifying opportunities for joint public/private sector initiatives and specific sites within the general strategic locations to meet the detailed Policy Guidelines in this document."
The relevant statutory provisions
[8] Certain statutory provisions are relevant to the determination of this application. The provision governing the application is section 238 of the 1997 Act, which, so far as relevant, provides:"(1) If any person aggrieved by a structure plan or a local plan or by any alteration, repeal or replacement of any such plan desires to question the validity of the plan, or as the case may be, the alteration, repeal or replacement, on the ground -
(a) that it is not within the powers conferred by Part II, or
(b) that any requirement of that Part or of any regulations made under it has not been complied with in relation to the approval or adoption of the plan or, as the case may be, its alteration, repeal or replacement,
he may make an application to the Court of Session under this section.
(2) On any application under this section the Court of Session - .....
(b) if satisfied that the plan, or, as the case may be, the alteration, repeal or replacement is wholly or to any extent outwith the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan, or, as the case may be, the alteration, repeal or replacement either generally or in so far as it affects any property of the applicant."
Section 11 of the 1997 Act deals with the preparation of local plans. Section 11(5) provides:
"In formulating their proposals in a local plan the planning authority -
(a) shall have regard to any information and any other considerations which appear to them to be relevant and which may be prescribed, and
(b) shall secure that the local plan conforms generally to the structure plan, as it stands for the time being, whether or not it has been approved by the Scottish Ministers".
Section 17(3) of the 1997 Act, which deals with adoption of proposals, provides:
"Where the Scottish Ministers have, under section 10, approved a structure plan for any area the planning authority shall not adopt any plan or proposals which do not conform to that structure plan".
"Where, for the purpose of considering objections duly made to a local plan, a local inquiry or other hearing has been held, the planning authority who prepared the plan shall, as part of the consideration of the objections, consider the report of the person appointed to hold the inquiry or hearing and decide whether or not to take any action as respects the plan in the light of the report and each recommendation, if any, contained therein; and the authority shall prepare a statement of their decisions, giving reasons therefor."
Submission for the applicant
[10] Sir Crispin Agnew of Lochnaw for the applicant prefaced his submission by mentioning two general points. The first was that what had happened since the adoption of the local plan by ERC was irrelevant. The second was that the conditional planning permission in favour of the second and third respondents was subject to a pending judicial review at the instance of Kingswell Developments Limited. [11] Sir Crispin then stated that the applicant had outline planning permission for an MSA on the proposed M77 at Kingswell in East Ayrshire, about 8 kilometres from the M77/GSO interchange. The structure plan originally had an opportunity for an MSA at that junction, but it was taken out of the final structure plan. The finalised local plan had been the subject of an inquiry, but because of the change to the structure plan, it was modified before the inquiry by acceptance that the opportunity for an MSA at the M77/GSO interchange was no longer consistent with the structure plan (policy T7/2). In a report dated 6 June 2002 (no 5/6 of process) to ERC the Director of Environment stated at paragraph 3 that the main issue for the council concerned the proposal in the finalised local plan for an MSA at the M77/GSO junction as the decision of the Scottish Ministers in approving the structure plan to delete reference to an MSA at the M77/GSO junction meant that that the council needed to consider its response to this. He advised that the council could either seek to delete all reference in the local plan to an MSA development opportunity or put forward to the inquiry reporter proposals to change policy T7/1. At paragraphs 5, 6 and 7 he stated as follows:"5. The most important change is that modification 19 no longer identifies an opportunity for a Motorway Service Area (MSA) on the M77. The Ministers' reason for this is 'to reflect the guidance contained in NPPG 9'. This guidance seeks to restrict new MSA's (sic) within 24 kilometres (15 miles) from an existing or approved MSA. In this respect the Ministers' (sic) appear to have taken into account that outline planning permission has now been granted for an MSA at Kingswell, East Ayrshire.
6. The Finalised East Renfrewshire Local Plan, Policy T7, supports the development of a MSA in the vicinity of the junction of the M77/GSO. The justification for Policy T7 cites the previous Structure Plan as support for this development. This is no longer the case, and the Local Plan requires to be modified to reflect this changed position. Nevertheless, I would continue to support the construction of an MSA at the M77/GSO junction and the Council is currently in receipt of two outline planning applications for such a proposal. One of these applications is awaiting formal registration pending the receipt of further information. Both applicants have recently confirmed their intention to proceed with their applications following the Ministers' decision. Although outline planning permission has been granted by East Ayrshire Council for a MSA at Kingswell, all the other approvals required for this development are not in place and indeed, (sic) the final approvals of the Scottish Executive as the Trunk Roads Authority have not been given. Consequently, it is considered that the opportunity for an MSA at the M77/GSO junction remains and that the final decision on the optimum location for this facility continues to lie within the control of the Scottish Executive.
7. In these circumstances it would be premature to abolish Policy T7 in its entirety and it is therefore considered that the policy should be realigned to reflect the changed circumstances that the Structure Plan now presents. Appendix 1 shows the proposed changes to this Policy."
At paragraph 12(ii) the Director recommended that the Executive of the council should "approve the proposed modification to Policy T7 and the accompanying justification, to be commended to the Reporter at the PLI".
[12] Sir Crispin then turned to consider certain parts of the structure plan. The last paragraph of the introduction stated that it became operative on 1 May 2002 and that the modifications to it by Scottish Ministers, in light of representations and objections that they received, had been incorporated into the reprint of the plan. Paragraph 7.22, dealing with the designation of the Green Belt (within which the M77/GSO junction lay) stated the objectives of the Green Belt. Strategic Policy 4, incorporating Schedule 4(vi), set out opportunities for MSAs, but these did not include the M77/GSO junction. If a site was not included within those opportunities, it meant that it was not an appropriate site for an MSA: the only appropriate sites for MSAs were those specified in Schedule 4(vi). An application for an MSA at another site would be contrary to the structure plan, although that did not mean that it could not be granted. This point lay at the heart of the first point taken in the application. Development proposals in areas not identified in the structure plan were not in accordance with the structure plan. Reference was made to paragraphs 14.2 - 14.4 of the structure plan. Nothing in NPPG 9 suggested that where the structure plan identified a specific strategic location the local plan could identify other opportunities within it. In summary, what had happened here was that ERC had issued a local plan, the finalised structure plan had then taken out the opportunity at the M77/GSO junction and ERC had then modified policy T7/1 to go to the local inquiry as policy T7/2. [13] The reporter's recommendations on Policy T7/2 were contained in no 5/4 of process. ERC had submitted to the reporter (at paragraph 81.19) that it was clear that the terms of the structure plan did not preclude the identification of a potential opportunity for an MSA on the M77 south of Glasgow, but that was wrong because the identification of certain opportunities in the structure plan precluded the identification of any other opportunities. The reporter summarised his recommendations at paragraphs 81.46 - 81.48 as follows:"81.46 Policy T7 and the reference to this on the proposals map should be deleted from the local plan.
81.47 In the event that the council decides to retain policy T7, it should be further modified with text in similar terms to the following:
'The council will investigate the suitability of locating a MSA at or near the junction of the M77/GSO, as shown on the proposals map, as a possible alternative to the proposed MSA at Kingswell, East Ayrshire provided that .....'.
In addition the reasoned justification should be revised to clarify that the investigation would be in respect of an alternative to, rather than an addition to, the proposed MSA at Kingswell, in (sic) East Ayrshire.
81.48 No proposal for a specific site for a MSA should be included within the local plan or shown on the proposals map."
The reporter was there saying that policy T7/2 did not conform to the structure plan and that was why it should be taken out. The evidence of the suitability of an MSA at the junction did not outweigh his recommendation.
[14] ERC responded to the reporter's recommendation in their Statement of Responses and Decisions on Reporter's Recommendations (no 5/3 of process). So far as recommendation 116 contained in paragraph 81.46 was concerned they stated:"The Council is in receipt of two applications for planning permission for a MSA at the junction of the M77/GSO. It considers that this junction continues to offer a potential alternative location to the site at Kingswell in East Ayrshire that has outline planning permission for a MSA."
So far as recommendations 117 and 118, contained in paragraphs 81.46 and 81.47, are concerned, they responded as follows:
"Recommendations 117 and 118 would allow the Council to retain Policy T7 with minor modifications that reflect its position and it therefore rejects Recommendation 116 and accepts Recommendations 117 and 118."
"If there is a dispute about the meaning of words contained in a policy document which a planning authority is bound to take into account, it is of course for the court to determine as a matter of law what the words are capable of meaning. If the decision maker attaches a meaning to the words they are not properly capable of bearing, then it will have made an error of law, and it will have failed properly to understand the policy (see Horsham DC v Secretary of State for the Environment [1992] 1 PLR 81, per Nolan LJ at p 88). If there is room for dispute about the breadth of the meaning the words may properly bear, then there may in particular cases be material considerations of law which will deprive a word of one of its possible shades of meaning in that case as a matter of law."
Here there was no mention in the structure plan of further opportunities. Nothing was left to the local plans as it was all in the structure plan, which should be read in relation to NPPG 9, from which it arose. The construction proposed by the applicant was also consistent with the deletion of an MSA at the M77/GSO junction which had been made from the structure plan.
[18] Turning to the second, third and fourth grounds of challenge in the application, Sir Crispin said that to an extent they ran together and the point taken was that it was irrational for ERC to go against the reporter's primary recommendation for no reason. The only reason that ERC gave for not deleting policy T7/2 was that they had two planning applications for an MSA at the M77/GSO junction and they still thought it a good alternative. In the total absence of any reasoning for not deleting policy T7/2, one was entitled to infer unreasonableness. Reference was made to Bonnes v West Lothian District Council 1997 SLT 398 per Lord Osborne at p 402G to p 403I; R W Cairns v Busby East Church Kirk Session 1985 SC 110 per Lord Justice Clerk Wheatley at p 120; and Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 per Lord President Emslie at p 348. The test laid down in Wordie applied to a local planning authority preparing a statement of their decisions and giving reasons therefor under Regulation 35(1) of the 1983 Regulations. The failure to give adequate reasons itself amounted to prejudice under section 238(2) of the 1997 Act: Mirza v City of Glasgow Licensing Board 1996 SC 450 per Lord Justice Clerk Ross at p 457E-F and South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 per Lord Brown of Eaton-under-Heywood at p 1964, paragraphs 35 and 36; and Barrow-in-Furness Borough Council v Secretary of State for the Environment [1992] 2 PLR 51 at p 56C-D and pages 56H-57B. Where there was a disagreement between two people with planning functions clear and intelligible reasons had to be given for the disagreement. This was made clear in Planning Advice Note 49 at paragraphs 27, 28, 57 and 58. Paragraph 57 stated that "Clear, reasoned justification of local plan policies and proposals is vital". The Note was no more than advice, but it was consistent with the authorities. ERC had not here given a clear, reasoned justification for not following the reporter's primary recommendation to delete policy T7/2.Submission for the first respondent
[19] Mr Armstrong submitted that the application was based on two grounds: (1) non-conformity with the structure plan; and (2) inadequacy of reasons. [20] So far as the first ground was concerned, the question whether or not a local plan conformed with a structure plan was primarily a matter of planning judgment, so the test was whether no reasonable planner or planning authority could have concluded that the local plan conformed to the structure plan. Five cases set out that test and the law that should be applied: City of Edinburgh Council v The Scottish Ministers 2001 SC 957 per Lord Kirkwood at p 962, paragraph 13; R v Derbyshire County Council ex parte Woods [1998] Env LR 277 per Brooke LJ at p 291; Cooper v Secretary of State for the Environment [1996] JPL 945 at pages 952-3; Commission for the New Towns v Horsham District Council [2000] PLCR 70 per Brooke LJ at p 83D; Virgin Cinema Properties Ltd v Secretary of State for the Environment [1998] 2 PLR 24; and Freeport Leisure plc v West Lothian Council 1999 SC 215 per Lord Prosser at p 221C and G-H. All these cases indicated that the question whether a local plan conformed to a structure plan was a matter of planning judgment unless the judgment were an unreasonable one. Sir Crispin had founded on three points in support of his submission: (1) the deletion of the sentence in the finalised local plan; (2) the reporter's recommendation; and (3) the text of the structure plan. [21] The sentence which was deleted was surplus to requirements. Policies T7/1 and T7/2 had supported in principle the development of an MSA at the M77/GSO junction with the consequence that an applicant for outline planning permission would have the support of the local plan. Policy T7/3 mentioned only investigating the suitability of locating an MSA at the M77/GSO junction as a possible alternative to the GSO at Kingswell. It was policy T7/3 which had to be considered. [22] So far as the reporter's recommendation was concerned, he had said at paragraph 81.34 that the modifications to the structure plan comprised positive opportunities rather than negative control and the fact that they excluded an opportunity on the M77 did not necessarily mean that such an opportunity would not be in conformity with the structure plan. He had not found that policy T7/3 was not in conformity with the structure plan. He had exercised his planning judgement in making the recommendation at paragraph 81.47 (quoted above). The reasoning in support of that recommendation was to be found at paragraphs 81.30 to 81.33. He had advanced policy T7/3 on the basis that it had to conform with the structure plan. He would not have devised a policy which he thought did not conform to the structure plan or was inconsistent with NPPG 9. The reporter's planning judgment was that policy T7/3 conformed to the structure plan. It was worthwhile to refer to section 18 of the 1997 Act, which empowered the Scottish Ministers to call in a local plan for them to approve. They had not done that in this case (see their letters of 11 November 2003 to ERC no 6/1/3 of process and to the second and third respondents no 6/2/9 of process). That was another planning judgment in favour of ERC. [23] Turning to the text of the policy in the structure plan, it was clear that Strategic Policy 4 was very much a positive policy. The parts of schedule 4 dealing with matters other than MSAs were not exclusive in their terms. Sir Crispin's interpretation would effectively prevent development and regeneration of the whole structure plan area. There was no mention of this point in the grounds of challenge set out in the application and it was inconsistent with paragraphs 8.19 and 8.20 on p 44 of the structure plan. Policy T7/3 was not setting out an opportunity for an MSA: investigating the suitability of locating was at least one step back from an opportunity. The Kingswell site had not been identified in the Ayrshire structure plan as suitable for an MSA. With regard to NPPG 9, there was no legal requirement for a local plan to conform to Government policy. Sir Crispin had not taken issue with the reporter's conclusions on NPPG 9 at paragraphs 81.26 - 81.33 of his report, and in any event policy T7/3 recognised that there was no question of two MSAs within 24 kilometres of each other. [24] In summary, the planning judgements of the planning authority, the reporter and the Scottish Ministers were that the local plan conformed to the structure plan. The reporter had recommended policy T7/3, the planning authority had adopted it in the local plan and the Scottish Ministers had not called in the local plan. [25] Turning to the second, third and fourth grounds of challenge in the application, Mr Armstrong described them all as essentially a variation on the theme of inadequate reasons. He referred to sections 11, 15 and 17 of the 1997 Act and Regulation 35(1) of the 1983 regulations; Welsh Development Agency v Carmarthenshire County Council [2000] JPL 692; South Bucks District Council v Porter (No 2) (supra) at paragraphs 35 and 36, particularly the last sentence of paragraph 35; Simplex GE Holdings v Secretary of State for the Environment 57 P & CR 306 per Staughton LJ at p 328; and the well-known passage in Wordie Property Co Ltd (supra). In the present case the planning authority had followed the detailed recommendation of the reporter. They did not have to respond to every single paragraph of his report: the requirement upon them was to respond only to the reporter's recommendations. In any event they had taken on board what he reporter had said at paragraph 81.36 by deleting policy T7/2. The reporter had set out in his report the justification for policy T7/3 and all that the planning authority had to do was to say "agreed", but they had set out two reasons for keeping a policy about MSAs in the local plan, namely, (1) that they had received two planning applications, which indicated a market interest in the area; and (2) they considered it a potential alternative site to that at Kingswell, which had outline planning permission. They had effectively followed what the reporter had said at paragraphs 81.30 to 81.33 where he had expressed sympathy with the case for the second and third respondents. In any event, even if the reasons were inadequate, there was no substantial prejudice to the applicant: there was no reason why he needed to know anything more.Submission for the second and third respondents
[26] Mr Abercrombie began his submission by drawing attention to the report dated 6 June 2002 from the Director of Environment to ERC and said that it unequivocally accepted that if Kingswell went ahead the M77/GSO development could not proceed. As the reporter had pointed out at paragraph 81.21, Kingswell could not proceed without a signage agreement, and there was no guarantee that such would be granted. The letters of 27 August and 7 October 2002 from the Scottish Executive (nos 6/2/3 and 6/2/4 of process) made clear that they would ultimately allow signing on the motorway for only one of the two sites. Policy T7/2, which the reporter had considered, involved the possibility of MSAs at both sites, recognising the need for particular justification as they would be within 24 kilometres of each other, but that policy was changed by recognising that an MSA could proceed at only one of the two sites. The relevant terms of the structure plan were not exclusive or prescriptive, as was evident from a consideration of the other paragraphs under the heading of Strategic Policy 4. Sir Crispin's submission made a mockery of the policy in paragraph 13 of NPPG 9. Not only did the Scottish Ministers have the opportunity to consider the local plan before it was adopted, but the application by the second and third respondents for the M77/GSO junction was referred to the Scottish Ministers (the custodians of the structure plan who had the responsibility of seeing that it was fully implemented) at a time when the present application to the court was up and running and they did not wish to become involved in the application as there were no national planning issues involved: see the letters of 1 June 2004 nos. 6/2/12 and 6/2/13 of process. The reporter had himself given reasons for adopting policy T7/3 and there was therefore no obligation on the planning authority to give any reason for doing so. [27] The Kingswell site did not feature in any structure plan. Sir Crispin's point really was that the applicant was in the door first and the Kingswell site should therefore have priority for an MSA. There had originally been two applications for Kingswell, one from the applicant and one from Texaco. East Ayrshire Council had been minded to grant both applications but the Scottish Ministers had called them in and the Texaco application had subsequently been withdrawn. The Scottish Ministers had then rescinded the call-in of the applications and remitted the applicant's application back to East Ayrshire Council to decide.Response for the applicant
[28] Sir Crispin stated that he did not depart from anything he had said in his earlier submission. Properly read the reporter's recommendations amounted to his saying that ERC should delete any policy about an MSA at the M77/GSO junction. ERC rejected that. The reporter was saying that there was no justification for an MSA policy in the local plan: such a reading was consistent with what he said at paragraph 81.36 of his report. To suggest that he was saying only "take out this particular policy" (referring to T7/2) was to give his recommendation a restricted reading. The rejection of his primary recommendation (116) had not been explained. So far as prejudice was concerned, the approach in Wordie, which was followed in Mirza, fell to be accepted: inadequate reasons in themselves amounted to prejudice. Control by the Scottish Ministers was through their applying NPPG 9 in the planning process. It was accepted that, where a subjective judgement had to be made on whether the local plan conformed to the structure plan, the test which the court had to apply was the judicial review test of unreasonableness. For policy T7/3 to be acceptable the structure plan would have to be altered under section 9 of the 1997 Act. The first thing which the court had to do was to determine as a matter of law what the words used were capable of meaning. It was then a matter of planning judgment to determine what they meant and the court would interfere with that judgment only if it was perverse. It was for the court to look at schedule 4(vi) in the structure plan and determine whether the policy there set out was capable of only one meaning and excluded other sites, as was maintained on behalf of the applicant. It was accepted that some parts of the structure plan left other matters for determination within the local plan, but there were other matters which were prescriptive. The structure plan had a prescriptive list of MSAs: it was saying "you cannot have an MSA at the M77/GSO junction, so there is no point of investigating the suitability of one". Even though the wording of policy T7 was altered between T7/1, T7/2 and T7/3, one still ended up with a policy which countenanced an MSA at the M77/GSO junction in certain circumstances. If that policy came to fruition, what it would amount to would be support for an MSA at this location.Response for the first respondents
[29] Mr Armstrong said that four new matters fell to be dealt with by him in response. [30] First, Sir Crispin mentioned the possibility of amendment to the structure plan under section 9 of the 1997 Act. There had been two alterations to the structure plan. These covered the Ravenscraig development and the proposed rail link between Glasgow city centre and Glasgow Airport, which were both major developments. No planning authority would seriously consider amending the structure plan only for the purpose of an MSA at the M77/GSO junction. [31] Secondly, Sir Crispin now appeared to accept that the proposals in Strategic Policy 4 in the structure plan were not entirely prescriptive, while still maintaining that those relating to opportunities for MSAs were prescriptive. Such an interpretation was an extraordinary one for a document which had been produced for the public. [32] Thirdly, there was no mention in the application, nor had there been in Sir Crispin's initial submission, that the reporter had been wrong to make to recommendations 117 and 118. [33] Fourthly, it was not correct that the applicant had no say on recommendations 116 and 117. The applicant had objected to the modification of T7/2 to T7/3: see no 6/1/4 of process, which set out his objections to ERC.Response for the second and third respondents
[34] Mr Abercrombie submitted that if (as he invited the court to find) the words used in schedule 4(vi) of the structure plan were not prescriptive, the foundation for all Sir Crispin's submissions disappeared. So far as the reporter's recommendations were concerned, if he had meant that there should be no MSA at all at the M77/GSO junction, surely he could and would have said so. What he meant was that T7/2 should be deleted. ERC agreed with what he said and the rest was pure semantics.Discussion and Conclusion
[35] All counsel agreed that there were in substance two grounds of challenge by the applicant to policy T7/3: first, non-conformity with the structure plan; and, secondly, inadequacy of reasons for disagreeing with the recommendations of the reporter. I shall deal with each of these grounds in turn. [36] The structure plan in schedule 4(vi) sets out five specific opportunities for MSAs, none of which is the M77/GSO junction. It seems to me that the question which arises is whether that specified list of opportunities for MSAs excludes even the consideration of the investigation of the suitability of an MSA at any other site. In my opinion it does not. Neither ERC, the reporter nor the Scottish Ministers have considered, in the exercise of their planning judgment, the list of opportunities to exclude the investigation of the suitability of an MSA at another site and I have not been persuaded by any submission on behalf of the applicant that I should take the view that such a planning judgment was not reasonably open to them. It is important to keep in mind that the relevant policy to be considered in this context is policy T7/3 and what its terms are. If the different versions of policy T7 had been distinguished by number in the way that I have distinguished them I think much of the confusion which has arisen would have been avoided. Policy T7/3 involves only the investigation of the suitability of an MSA at the M77/GSO junction as an alternative to an MSA at Kingswell: it does not involve adding the M77/GSO junction to the list of unconditional opportunities for MSAs in schedule 4(vi) of the structure plan. All that ERC are doing in having policy T7/3 is preserving the option of an MSA at the M77/GSO junction in the event that an MSA at Kingswell does not proceed. So far as the restriction contained in NPPG 9 on having two MSAs within 24 kilometres of each other is concerned, there can be no question of policy T7/3 contravening that restriction as it is conditional upon there being no MSA at Kingswell. [37] So far as concerns the contention that ERC failed to give adequate reasons for not following the reporter's recommendation, I am of the view that this is based on a misconception of both the reporter's recommendation and the policy adopted by ERC in response to it. It seems to me plain that what the reporter was in essence saying was that policy T7/2 was unacceptable and had to be deleted, and that if ERC wished to include in the local plan any policy about an MSA at the M77/GSO junction it should be along the lines of the wording proposed by him at paragraph 81.47 of his report. Far from ERC disagreeing with the recommendations of the reporter at paragraphs 81.46 to 81.48, they accepted them. As they did not disagree with his recommendations, they were not required to give reasons for something which they did not do. Paragraphs 81.46 to 81.48 of the report have to be read together. ERC did not reject, as Sir Crispin submitted, "the reporter's primary recommendation". Confusion has again arisen here by a failure to distinguish policy T7/2 from policy T7/3. Despite their statement that they rejected the reporter's recommendation at paragraph 81.46, ERC in fact complied with it by deleting policy T7/2. Paragraph 81.47 then gave them the option of not including in the local plan any policy at all about an MSA at the M77/GSO junction or, alternatively, including a policy along the lines of the wording proposed by the reporter. They chose, as they were entitled to do, the latter option. The reason for including that option is contained in the justification for policy T7/3. There was nothing unreasonable in the course followed by ERC, which was in accordance with the reporter's recommendations. In any event, I fail to see how the applicant could possibly be prejudiced by the adoption of policy T7/3, which is only a possible alternative to the proposed MSA at his site at Kingswell.Decision
[38] As I am satisfied, for the reasons given above, that there is no merit in this application I shall refuse it.
