Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 154
XA124/11	OPINION OF LORD KINCLAVEN in the Appeal to the Court of Session under section 239 of the Town and County Planning (Scotland) Act 1997 by DAWN DEVELOPMENTS LIMITED Appellants; against A decision of the Scottish Ministers as contained in a decision letter dated 7 October 2011 etc ________________

Appellants: Gale, QC; McGrigors LLP, Edinburgh

Respondents: Crawford, QC, Barne; Scottish Government Legal Directorate

13 September 2013

Introduction

[1] This is an appeal to the Court of Session under section 239 of the Town and Country Planning (Scotland) Act 1997 by Dawn Developments Limited ("the appellants").

[2] The appeal is against a decision of the Scottish Ministers as contained in a decision letter dated 7 October 2011 issued by David Buylla, Esq, a Reporter appointed by the Scottish Ministers in respect of an appeal by the appellants against the failure of South Lanarkshire Council to determine the application for planning permission submitted by the appellants for Class 1 retail development with associated car parking and landscaping at 18-20 West Mains Road, East Kilbride.

[3] The respondents are the Scottish Ministers.

[4] Mr Gale QC appeared for the appellants. He invited me to allow the appeal essentially for the reasons outlined in the appellants' grounds of Appeal and Note of Argument as supplemented by oral submissions. His central submission was that the Reporter acted ultra vires, for the reasons stated, and that accordingly the decision to dismiss the appeal and refuse planning permission should be quashed.

[5] Ms Crawford QC and Mr Barne appeared for the Scottish Ministers ("the respondents"). Ms Crawford invited me to refuse the appeal essentially for the reasons outlined in the respondents' Note of Argument as supplemented by oral submissions.

[6] In my opinion, having heard the detailed submission of counsel for both parties, this appeal should be refused. I was not satisfied that the Reporter acted ultra vires. The respondent's submissions are well founded to the extent indicated below.

[7] Accordingly, I shall refuse the appeal and reserve the question of expenses.

[8] I would outline my reasons in more detail as follows.

The Statement of Agreed Facts

[9] Helpfully, by way of background, parties lodged a Statement of Agreed Facts, which was in the following terms:

"1. The Appellant's application for detailed planning permission in respect of a proposed Class 1 retail superstore with associated car parking and landscaping was submitted to South Lanarkshire Council ('the Council') on 26^th March 2010.

2. The Council prepared a report dated 14^th December 2010 in terms of which the relevant officer recommended to the Committee that the Appellant's application should be refused.

3. After sundry procedure, the Appellant appealed to the Scottish Ministers in respect of the Council's failure to determine the application within the prescribed time in terms of section 47(2)(a) of the Town and Country Planning (Scotland) Act 1997.

4. David Buylla, a Reporter within the Directorate for Planning and Environmental Appeals (DPEA), was appointed by the Scottish Ministers to conduct an inquiry and to determine the appeal on their behalf.

5. In a Note of Pre-Examination Meeting on 16^th May 2011, the Reporter stated:

Retail issues, including the provisions of the development plan and national policy as it relates to retail matters, will be considered at an inquiry session.

6. The inquiry session commenced on 5^th September 2011 and concluded on 7^th September 2011.

7. The inquiry session heard closing submissions on 13^th September 2011.

8. Transportation issues were considered at a hearing session on 9^th September 2011. The draft conditions and any planning obligation were considered at a hearing session on 13^th September 2011.

9. Each party at the inquiry session was invited to present evidence-in-chief, which was subject to cross-examination. After cross-examination, an opportunity for re-examination was given. At the close of evidence, each participating party was given the opportunity to make closing submissions. The Reporter required closing submissions to be lodged immediately before they were read. The Appellant was last to make closing submissions.

10. Item 12 of the Bundle is the closing submissions of East Kilbride Shopping Centre as lodged. Item 11 of the Bundle is the closing submissions of JHAG Limited and Tesco Stores Limited as lodged. Item 13 of the Bundle is the closing submissions of the Council as lodged. Item 10 of the Bundle is closing submissions of the Appellants as lodged.

11. On the last day of the inquiry session counsel for the Appellant stated that, for the avoidance of any doubt, ASDA and the Appellant had entered into an agreement regarding the development site, subject to the site obtaining planning permission. Said statement was made after the written final submission had been read out, but was made in response to a comment made by counsel for JHAG/Tesco Stores Ltd during his final submission. It was made on express instructions from representatives of the Appellants and a representative of ASDA who were in attendance. Counsel for both the Council and JHAG/Tesco questioned the evidential value of the assertion, coming after evidence had been led and without there being an opportunity for the assertion to be tested.

12. At no stage did the Appellant produce to the Reporter a contract or agreement between the Appellant and ASDA. A representative of ASDA, Ms Lynn Scott, appeared on behalf of the Appellants at the hearing session on planning conditions, in the course of which she indicated to the Reporter the extent to which certain proposed conditions would be acceptable to the Appellants and ASDA."

The closing submissions of counsel

[10] The written closing submissions, as provided to the Reporter, have been produced as part of the documentation in this appeal and are referred to in the Statement of Agreed Facts (paragraph 10). It might be helpful, if only to put matters in context, to outline some features of those submissions at this stage.

[11] The concluding submissions by Mr Gale QC for Dawn Developments Limited dated 13 September 2011 are No 7/10 of Process. In his concluding summary Mr Gale said (on page 20, paragraph 28):

"For the reasons given in evidence on behalf of the Appellants by Mr Smith the Reporter can properly conclude that the Appellants have had regard to the sequential approach; that they have discounted any sequentially preferable sites for reasons of unsuitability or unavailability,·and that the development proposed for West Mains Road would not have a significant adverse impact on East Kilbride Town Centre. The Appellants adopt in its entirety the policy assessment set out in Chapter 8 of Mr Smith's precognition. In addition the proposed development would be of substantial economic benefit in that it would lead to the creation of some 400 jobs without any significant effect on other employment locations. It would involve the re-use of a brownfield site which has lain unused for several years. It would be accessible by public transport. The development would accordingly represent sustainable economic growth which is the overarching aim of the Scottish Government."

[12] The closing submissions by Mr Martin QC on behalf of JHAG Limited and Tesco Stores Limited, dated 13 September 2011, are no 7/11 of Process. As part of his submission, Mr Martin outlined several reasons why the operation of the site by Asda should not be accepted as a reason to permit a development which would otherwise be unacceptable. He outlined those reasons in paragraphs 27, 28, and 29.

[13] In paragraph 30 Mr Martin submitted:

"The fact that a store at West Mains might be operated by Asda should be disregarded because as a matter of principle it is not a relevant material consideration and because as a matter of fact there is no adequate evidence that Asda would actually be the operator or that Asda would provide a unique attraction to shoppers likely to attracted to shop within East Kilbride."

[14] On a more general level, in conclusion, Mr Martin said (on page 19-20, paragraphs 40 and 41):

"40. In each of the respects in which the requirements of the development plan require to be satisfied before planning permission could be granted for a retail development which was contrary to the development plan, these have not been satisfied in the circumstances of this case. The assessment of-the development against the relevant Structure Plan and Local Plan policies is provided in the precognition of Mr McGlynn on which JHAG/Tesco rely.in support of the evidence put forward by Mr Mackay. The result is that in accordance with the requirements of Local Plan policy COM 3 and Structure Plan policies 9 and 10, planning permission should not be granted. In addition, no other material considerations have been identified which would justify the granting of planning permission notwithstanding that the development would be not in accordance with the development plan. Dawn actually put forward no justification for their proposal and the only positive note which might be identified, namely the-suggestion that it would be operated by Asda, should be disregarded for the reasons already explained.

41. In this situation, and by reference to the retail issues which were' considered at the inquiry session, there is no justification for the granting of planning permission for a development which would be contrary to the development plan and in accordance with section 25 of the 1997 Act, both the application for planning permission and the appeal should be refused."

[15] The closing submissions on behalf of the owners of East Kilbride Shopping Centre (EKTC), dated September 2011, are No 7/12 of Process. In short, EKTC submitted (on page 7, paragraph 6.1) that the evidence presented at the inquiry showed that permission should be refused.

[16] The concluding submissions by Sir Crispin Agnew of Lochnaw for South Lanarkshire Council, dated 12 September 2011, are No 7/13 of Process. In summary, Sir Crispin submitted (on page 16, paragraph 27) that the appeal should be refused for the following reasons:

a.    the application is contrary to the development plan found in the GCVSP (Glasgow and Clyde Valley Structure Plan 2006) and the LP (South Lanarkshire Local Plan 2009) ; and

b.    there are no material considerations to indicate otherwise, particularly as there is no retail capacity to support the proposal and the grant of the application would have an adverse impact on the town centre.

The Decision Letter

[17] The Reporter's decision letter dated 7 October 2011 is appended to the appeal and is referred to for its full terms. It runs to 19 pages.

[18] For the reasons stated, the Reporter dismissed the appeal and refused planning permission.

[19] In outline, the Reporter set out the six main issues (in paragraph 1 of the decision letter) as being:

(1) the proposal's effect on industrial land supply;

(2) whether development could be accommodated on any sequentially preferable sites;

(3) the local plan status of Kittoch Field (another site mentioned in the local plan);

(4) whether the proposal is justified in quantitative and qualitative terms;

(5) the proposal's implications for the vitality and viability of local centres; and

(6) the proposal's impact on the operation of the road network.

[20] The Reporter dealt with issue (1) in paragraphs 2 to 16 of his decision letter. Issue (1) relates to the effect on industrial land supply. In paragraph 16 the Reporter states:

"I conclude that, despite proposing a non-industrial use of land, the proposal would not result in an objectionable loss of such land or conflict with local plan policies that seek to regulate the development of such land."

[21] The Reporter deals with issue (2) in paragraphs 17 to 36 of his decision letter. Issue (2) relates to whether the development could be accommodated on any sequentially preferable site. In paragraph 36 the Reporter states:

"In terms of the sequential approach, I conclude that there are no suitable sequentially preferable site available."

[22] The Reporter deals with issue (3) in paragraphs 37 to 41 of his decision letter. Issue (3) relates to the local plan status of Kittoch Field. In paragraph 41 the Reporter states:

"In light of the above I conclude that Kittoch Field does not need to be factored into an assessment of retail capacity or cumulative impact".

[23] The Reporter deals with issue (4) in paragraphs 42 to 68 of his decision letter. Issue (4) relates to whether the proposal is justified in quantitative or qualitative terms. In paragraph 68 the Reporter states:

"I conclude that there is no convincing qualitative justification for the appeal proposal."

[24] The Reporter deals with issue (5) in paragraphs 69 to 82 of his decision letter. Issue (5) relates to the proposals implications for the vitality and viability of local centres. Inter alia in paragraphs 76 and 77 the Reporter states:

"76. Paragraph 63 of SPP confirms that it (is) for applicants to demonstrate that the impact of their development would be acceptable. I conclude that the appellant has not satisfied this requirement. Given the importance of convenience trade to the centre as a whole, and when considered in the context of a centre that has the problems of East Kilbride town centre, I conclude, from the evidence before me, that the appeal proposal would lead to an unacceptable cumulative impact on the town centre as a whole.

77. The proposal is therefore contrary to paragraph 64 of SPP and to structure plan Strategic Policies 6, 9A(iv), 9B(iii) and Schedule 6(c)(i)(b), and local plan Policy COM 3."

[25] For ease of reference, the relevant parts of Scottish Planning Policy ("SPP") are set out in no 6/3 of process. The relevant parts of the structure and local plan are set out in no 6/1 of process.

[26] The Reporter deals with issue (6) in paragraphs 83 to 98 of his decision letter. Issue (6) relates to the proposal's impact on the operation of the road network. In paragraph 98 the Reporter states:

"Overall, subject to the appropriate conditions, I conclude that the proposal would have no adverse impact on the operation of the road network."

The Reporter's Conclusions

[27] The Reporter sets out his conclusions in paragraphs 99 to 102, on page 19 of the decision letter, as follows:

"99. I am satisfied that the development of this site for retail purposes would not conflict with its development plan designation as industrial land and would not undermine the local supply of such land. I am satisfied there are no sequentially preferable sites that are both suitable and available. I conclude that Kittoch Field has insufficient status in the local plan to justify favouring that site over the appeal site or regarding it as a commitment when assessing capacity and impact. Planning conditions could resolve any remaining concerns over the layout of the site's car parks and service access.

100. However, the appellant has not demonstrated that there is sufficient capacity to support the proposal in quantitative terms, or provided adequate qualitative justification. The appellant has also failed to demonstrate that the proposal would not harm the vitality and viability of existing centres. For these reasons, I have found the proposal contrary to a number of policies in the development plan and to the retail policy aspects of SPP.

101. The development would undoubtedly create job opportunities and spin-off economic benefits. However, these would provide insufficient compensation for the policy conflict and the identified threats to vitality and viability, which would themselves be likely to result in reduced job opportunities and economic performance in the centres that would be harmfully affected. I have been advised of no other material considerations that would justify the appeal being allowed.

102. Accordingly, I conclude that the appeal should be dismissed."

Precognitions

[28] The productions for the appellants included several precognitions as undernoted.

Mr Smith

[29] No 6/1 of process is a precognition of Adrian P Smith, Chartered Planner.

[30] I was referred to paragraphs 1.1, 3.2, 3.3 and to the last bullet point in paragraph 8.1 of that precognition.

[31] Mr Smith said (at paragraph 1.1): "I appear at this enquiry on behalf of Dawn Developments and Asda Stores".

[32] He said inter alia (at paragraph 3.2): "Estimates of capacity are merely a tool to assist decision makers and findings have to be balanced with other factors".

[33] He also said (at paragraph 8.1):

"In my opinion the policy assessment of the appeal proposals as set out in the December committee report is flawed. In particular the assessment against structure plan Schedule 6(c)(i) is deficient in the following ways:

... [including] ...

·      Addressing qualitative deficiencies - it is entirely reasonable that the four key supermarket operators should all be represented within East Kilbride. There are currently no appropriate opportunities for Asda to establish a presence in the town apart from West Mains Road."

[34] Mr Smith concluded that:

"Given all of the above I conclude that the appeal proposals can be supported as appropriate in relation to prevailing planning policy. ... I believe the evidence before you is that the appeal proposals can be justified as an appropriate departure from development plan policy in all respects."

Mr MacLean

[35] No 6/2 of process is a precognition of Roderick MacLean, Chartered Town Planner, dated August 2011.

[36] Mr Maclean was appointed by South Lanarkshire Council to prepare a retail capacity and cumulative impact assessment for the inquiry.

[37] In his conclusions Mr Maclean was of the opinion that:

·      There is no capacity for the proposed out of centre superstore.

·      It would have an unacceptable cumulative impact on existing centres in conjunction with existing consents and commitments, and

·      The appellant's retail assessment is not robust or credible.

Mr Mackay

[38] No 6/3 of process is a precognition of Mr Mackay MRTPI, Mackay Planning, dated 19 August 2011.

[39] Mr Mackay's submission was on behalf of JHAG Ltd and Tesco Stores Ltd.

[40] His conclusions were:

"There is insufficient retail capacity to support the proposal at West Mains Road. The proposal fails the sequential approach to site selection. The site is poorly located for the development of a superstore. The site is not large enough to accommodate the size of store proposed. The proposal would have an unacceptable cumulative impact on East Kilbride town centre, jeopardise investment in the centre and would prejudice the long term delivery of Kittoch Field. The appeal should therefore be dismissed."

The South Lanarkshire Local Plan

[41] The productions for the respondents included no 7/1 of process which was an extract from South Lanarkshire Local Plan. It included Commercial Policy 3 ("COM3).

[42] "COM 3" states inter alia:

"Major development proposals (over 2000 square metres (gross) comparison (non-food) goods floorspace; 1000 square metres (gross) convenience (food) goods should be accompanied by a retail assessment. The retail assessment should include a quantitative assessment of retail impact and capacity but should also include an assessment of the qualitative impacts of the proposal. The cumulative effect of recently implemented or consented retail developments in nearby locations should also be included."

The Glasgow and the Clyde Valley Joint Structure Plan

[43] The productions for the respondent also included no 7/2 of process which was an extract from the Glasgow and the Clyde Valley Joint Structure Plan. It included Strategic Policy 9A(iv) and Schedule 6(c)(i), 6(c)(iii) and 6(c)(iv).

[44] Strategic Policy 9 relates to "Assessment of Development Proposals". "In order to accord with the Structure Plan, development proposals will require to satisfy the following criteria" - as set out in Policy 9. I was referred in particular to Policy 9A(iv) and 9B(iii)(b).

[45] Schedule 6(c)(i) relates to "Assessment of Significant Retail Development Proposals". "All significant proposals for retail development must accord with the strategic objectives of this Plan and will be assessed against results of analysis of the following criteria:" the criteria are listed in paragraphs (a) to (k). Paragraph (j) is "the contribution the development would make to remedying any qualitative deficiencies in existing retail provision".

[46] Schedule 6(c)(iii) relates to "Out-of-centre Retail Locations". Paragraph (a) is headed "Shopping and Leisure Centre" and the entry below is "Braehead, Renfrew - Shopping Mall and Leisure Mall".

[47] Schedule 6(c)(iv) relates to "Additional Retailing Opportunities". "Additional floorspace provision in the following locations will be supported in accordance with the appropriate policies and principles in this Plan". Under the heading "East Kilbride" the entry reads "Additional comparison floorspace which would provide for the identified shortfall -16,700 m2 gross."

Scottish Planning Policy

[48] No 7/3 of process is a copy of Scottish Planning Policy (February 2010) which can be referred to for its full terms.

[49] I was referred in particular to Paragraphs 62 to 65 in relation to "Sequential Approach".

[50] Inter alia Paragraph 64 states:

"When a proposed retail or commercial leisure development is contrary to the development plan, planning authorities should ensure that:

• the sequential approach to site selection has been used,

• there is no unacceptable individual or cumulative impact on the vitality and viability of the identified network of centres,

• the proposal will help to meet qualitative and quantitative deficiencies identified in the development plan, and

• the proposal does not conflict with other significant objectives of the development plan or other relevant strategy."

[51] Paragraph 65 relates to retail impact analysis and states inter alia:

"In carrying out an analysis, a broad-based approach should be adopted."

Retail Assessments

[52] During the debate reference was made to the following retail assessments:

The retail assessment by Blueprint.

[53] No 7/4 of process is a Retail Assessment entitled "Land at Corner of Queensway and West Mains Road, East Kilbride" prepared on behalf of Dawn Developments Ltd, dated May 2010, and prepared by Blueprint Planning and Development Ltd.

ASDA 75.

[54] No 7/5 of process was referred to as "Asda 75" during the debate. It is dated 4 February 2011. It was prepared by Muir Smith Evans, Planning and Development Consultants (Mr Smith) and entitled "Proposed Superstore, West Mains Road, East Kilbride - Retail Capacity and Cumulative Impact - Response to Report by RMA Ltd (December 2010) on behalf of Appellant". RMA is a reference to Roderick Maclean Associates.

[55] I was referred in particular to paragraphs 1.1, 2.4, 2.11, 3.1, 3.3, 3.11, 3.37, and 3.47 to 3.51.

[56] Muir Smith Evans state in their Conclusions (in paragraph 5.7):

"In light of all the above we conclude that there is scope for the provision of an Asda store at West Mains Road in addition to the proposal at Redwood Crescent. The current appeal should therefore be sustained and full planning permission granted subject to such conditions as might be considered necessary."

[57] I was also referred to Table 9 "Capacity Assessment" (which the respondents suggested had no content and no context).

Supplementary retail assessment for Atholl House.

[58] No 7/6 of process is a "Supplementary Retail Statement" dated May 2011. It was prepared by James Barr Ltd who had been instructed by Ediston Opportunity Fund to promote the proposed redevelopment of Atholl House, Churchill Avenue, East Kilbride (ref EK/10/0267). The application was for planning permission in principle and related to the erection of a food superstore (Class 1) and associated access and car parking.

[59] I was referred to paragraphs 1.3, 1.4, 2.5, 2.26 and 2.27. "Peel Park" is another way of referring to "Redwood Crescent".

[60] In their conclusions James Barr Ltd state inter alia (in paragraph 3.2):

"Capacity - It has been demonstrated that there is sufficient capacity within the primary catchment to support the proposal, even taking into account the recent JHAG consent at Peel Park. This has been demonstrated for the more limited East Kilbride catchment in this Supplementary Retail Statement and our original Planning and Retail Statement for the larger catchment."

[61] No 6/4 of process is a letter from Alex Mitchell on behalf of James Barr to South Lanarkshire Council dated 9 May 2011 in relation to planning application EK/10/0267 (Atholl House, Churchill Avenue, East Kilbride).

South Lanarkshire Council retail assessment.

[62] No 7/7 of process is an assessment dated December 2010 prepared by Roderick MacLean Associates Ltd for South Lanarkshire Council. It is entitled "West Mains Road superstore: Retail Capacity and Cumulative Impact". This was referred to as "SLC Production No 12".

[63] No 7/8 of process was "SLC Production No 20".

JHAG retail assessment.

[64] No 7/9 of process is a "planning statement and retail assessment" dated February 2010. It was prepared by Mackay Planning in relation to the planning application by JHAG Ltd for planning permission in principle at Redwood Drive, Peel Park, East Kilbride (LPA application ref. EK/10/0056).

[65] The report concluded that the proposal was consistent with the relevant policies and could therefore be fully supported.

The Town and Country Planning (Scotland) Act 1997

Section 25

[66] I was referred to Section 25 of the Town and Country Planning (Scotland) Act 1997 in relation to the "status of development plan"

[67] Section 25(1) is as follows:

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise -

(a) to be made in accordance with that plan, and

(b) if the development in question is a national development, to be made in accordance with any statement under section 3A(5) which -

(i) relates to that national development,

(ii) is expressed as applying for the purposes of development management, and

(iii) is to the effect that the development in question (or a development such as the development in question) could and should occur."

Section 239

[68] Section 239 of the 1997 Act relates to "Proceedings for questioning the validity of other orders, decisions and directions".

[69] Section 239(1) provides:

"If any person -

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds -

(i) that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order, or

(b) is aggrieved by any action on the part of the Secretary of State, or on the part of a planning authority, to which this section applies and wishes to question the validity of that action on the grounds -

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the Court of Session under this section."

[70] Section 239(5) provides:

"On any application under this section the Court of Session -

(a) may, subject to subsection (6), by interim order suspend the operation of the order or action in question until the final determination of the proceedings;

(b) if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements in relation to it, may quash that order or action."

Section 18 A of the Town and Country Planning (Scotland) act 1972

[71] Reference was also made to section 18A of the Town and Country Planning (Scotland) act 1972 and to the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33.

[72] In that case Lord Hope of Craighead said (at page 35-36):

" Section 18A of the Town and Country Planning (Scotland) Act of 1972, which was introduced by sec 58 of the Planning and Compensation Act 1991, creates a presumption in favour of the development plan. That section has to be read together with sec 26(1) of the Act of 1972. Under the previous law, prior to the introduction of sec 18A into that Act, the presumption was in favour of development. The development plan, so far as material to the application, was something to which the planning authority had to have regard, along with other material considerations. The weight to be attached to it was a matter for the judgment of the planning authority. That judgment was to be exercised in the light of all the material considerations for and against the application for planning permission. It is not in doubt that the purpose of the amendment introduced by sec 18A was to enhance the status, in this exercise of judgment, of the development plan.

It requires to be emphasised, however, that the matter is nevertheless still one of judgment, and that this judgment is to be exercised by the decision taker. The development plan does not, even with the benefit of sec 18A, have absolute authority. The planning authority is not obliged, to adopt Lord Guest's words in Simpson v Edinburgh Corporation at p 318 , 'slavishly to adhere to' it. It is at liberty to depart from the development plan if material considerations indicate otherwise. No doubt the enhanced status of the development plan will ensure that in most cases decisions about the control of development will be taken in accordance with what it has laid down. But some of its provisions may become outdated as national policies change, or circumstances may have occurred which show that they are no longer relevant. In such a case the decision where the balance lies between its provisions on the one hand and other material considerations on the other which favour the development, or which may provide more up to date guidance as to the tests which must be satisfied, will continue, as before, to be a matter for the planning authority.

The presumption which sec 18A lays down is a statutory requirement. It has the force of law behind it. But it is, in essence, a presumption of fact, and it is with regard to the facts that the judgment has to be exercised. The primary responsibility thus lies with the decision taker. The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which sec 233(1) of the Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of sec 18A was to increase the power of the court to intervene in decisions about planning control. That section, like sec 26(1) , is addressed primarily to the decision taker. The function of the court is to see that the decision taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan."

[73] In City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 Lord Clyde (at pages 43-44) said:

" Section 18A was introduced into the Act of 1972 by sec 58 of the Planning and Compensation Act 1991. A corresponding provision was introduced into the English legislation by sec 26 of the Act of 1991, in the form of a new sec 54A to the Town and Country Planning Act 1990. The provisions of sec 18A, and of the equivalent sec 54A of the English Act, were as follows: 'Status of development plans-Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.'

Section 18A has introduced a priority to be given to the development plan in the determination of planning matters. It applies where regard has to be had to the development plan. So the cases to which sec 26(1) of the Act of 1972 apply are affected. By virtue of sec 33(5) of the Act of 1972 sec 26(1) is to apply in relation to an appeal to the Secretary of State. Thus it comes to apply to the present case.

By virtue of sec 18A the development plan is no longer simply one of the 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 para 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."

List of Authorities

[74] During the hearing of the appeal, I was also referred to the following list of authorities:

Legislation

1 Town and Country Planning (Appeals) (Scotland) Regulations 2008. The respondent referred to Regulations 3(4), 3(5), 4(3), and 5(1), Schedule 1 and Schedule 2 paragraphs 4(1) and 4(5) in relation to the procedural background.

Cases

2 East Barnet UDC v British Transport Commission [1962] 2 QB 484;

3 Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at pages 347 -348;

4 Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P&CR 86 at pages 93-94;

5 Westminster City Council v Great Portland Street Estates plc [1988] AC 661 at pages 661-662 and 669-670;

6 Horsham DC v Secretary of State for the Environment (1991) 63 P&CR 219;

7 Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759;

8 R (Woods) v Derbyshire County Council 1997 JPL 958; R v Derbyshire County Council ex parte Woods [1997] JPL 958;

9 City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33;

10 Virgin Cinema Properties Limited v Secretary of State for the Environment [1998] 2 PLR 24;

11 South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953;

12 R (Sainsburys Supermarkets Ltd) v First Secretary of State [2005] EWCA (Civ) 520;

13 Lidl UK GmbH v Scottish Ministers [2006] CSOH 165 at paragraphs [6], [16] and [17];

14 Moray Council v Scottish Ministers 2006 SC 691;

15 R (on the application of Springhall) v London Borough of Richmond upon Thames [2006] EWCA Civ 189;

16 R (Riassi) v Home Secretary [2008] QB 836;

17 Dawn Developments Ltd (Petitioners) [2011] CSOH 170;

18 Tesco Stores Ltd v Dundee City Council [2012] UKSC 13; and

19 South Buckinghamshire DC v Porter (No.1) [2003] 2 AC 558.

The Appellant's Grounds of Appeal

[75] The appellants' Grounds of Appeal were as follows:

"Ground (1)

(a) At paragraph 62 of the decision letter the Reporter noted that 'there was no evidence before me of any contractual commitments by ASDA to operate the proposed store', and that the 'implications for my assessment of the proposal of an assumption that the operator would be ASDA are potentially significant in regard to the clawback issue and also when predicting the turnover of the proposed store ... Given this importance, I consider it unreasonable, in the absence of a contractual commitment from ASDA, to allow for an additional level of clawback that would be reliant on this retailer operating the proposed store.' He then proceeded to use the company average turnover ratio of the lowest of the big four retail operators instead of the ratio for ASDA, resulting in a convenience turnover figure for the proposed store of £25.9m rather than £31.8m.

(b) At paragraph 66 of the decision letter the Reporter, in dealing with qualitative issues, noted that the benefits of improved choice and greater competition in the East Kilbride shopping market 'could potentially justify a proposal where there was not a convincing quantitative argument.' On the basis that there was a significant discrepancy between the convenience capacity of the catchment and that needed to support the proposed store, 'the qualitative benefits require to be especially compelling.' He noted that the benefits of improved choice and greater competition 'would only arise if the proposed store were operated by a retailer, such as ASDA, which is not already represented in the catchment.' He concluded that 'in the absence of a contractual commitment to the site from ASDA or another retailer who does not currently operate a foodstore locally, I consider it unreasonable to attribute significant weight to the qualitative benefits claimed.'

(c) At paragraph 67 of the decision letter the Reporter accepted a submission made on behalf of JHAG Limited, the proposed developers of a site at Redwood Crescent, to the effect that in considering qualitative deficiencies regard should be had to the benefits of the existing commitment at Redwood Crescent, where there was a contractual commitment on the part of Tesco to develop that site. As Tesco was, and is, not represented in East Kilbride, the development at Redwood Crescent would likely reduce the impact of any qualitative benefits which would result from the development of the proposed store at West Mains Road. Accordingly 'this further reduces the weight that I should attach to any qualitative benefits associated with the appeal proposal.'

(d) There was before the Reporter the following information:- (i) that the application submitted by the Appellants was for detailed planning permission and the detailed drawings which accompanied the application indicated that ASDA was the operator with signage to that effect; (ii) that the pre-application consultations carried out by the Appellants identified ASDA as the operator, and ASDA was similarly identified in the pre-application consultation report; (iii) that the car parking requirements and layout, including staff car parking requirements, were in accordance with the specific requirements of ASDA as was made particularly clear in the hearing session on road traffic and car parking issues; (iv) that a representative of ASDA attended as the Appellants' principal representative at the hearing session on planning conditions and indicated the position of ASDA in respect of certain of the proposed conditions; and (v) that in the course of final submissions made on behalf of the Appellants, Counsel for the Appellants, confirmed to the Reporter that, on instructions, there was a contractual commitment by ASDA to operate the proposed store.

(e) The Reporter's decision to conclude, both in the context of his quantitative and qualitative assessments, that there was no evidence before him of a contractual commitment was unreasonable. The Reporter had clear information before him of ASDA's involvement as the intended operator of the proposed store. Said information was uncontradicted. Said information was, at least, of a nature and quality similar to the information before him regarding the contractual commitment of Tesco to the proposed development at Redwood Crescent which the Reporter accepted. The Reporter accordingly failed to have regard to a material fact, or alternatively failed to accord to that fact appropriate weight. The Reporter gave no indication of what his view would have been had he had regard to the contractual commitment of ASDA to operate the proposed store. As is apparent from the terms of the Reporter's decision letter, the contractual commitment of ASDA to operate the proposed store had the potential to be of significance in his assessment of the quantitative and qualitative justification of the proposal. By leaving said fact out of account, or alternatively by failing to accord to said fact appropriate weight, the Reporter acted in a manner which was unreasonable and/or perverse and/or irrational, and accordingly was outwith the powers of the Act. The Reporter accordingly erred in law.

Ground (2)

(a) At paragraph 52 of his decision letter the Reporter observed that the supplementary retail assessment in relation to the Atholl House proposal took into account the Redwood Crescent, Mavor Avenue and St Leonards permissions, and that the catchment area used in that assessment was accepted by the Reporter as 'a reasonable catchment for assessing the West Mains Road store.' He further noted that the assessment concluded that there remained a convenience retail capacity of approximately £36m 'which would be enough to accommodate the appeal proposal'. The said assessment was produced by the Appellants and was referred to by them. The Reporter was of the view that its methodology and assumptions were not discussed in any party's evidence and the author of the report did not give evidence, and concluded that it was not possible to assess its soundness. For that reason the Reporter concluded that 'it inappropriate to rely on this assessment for the purposes of this appeal.'

(b) The Appellants submit that the Reporter's decision to leave the said assessment out of account was unreasonable. The Reporter was able to arrive at certain conclusions regarding the use by the assessment's author of the catchment area used and in so doing used his own planning judgment. He unreasonably disclaimed any ability to consider the methodology and assumptions of the assessment. He accordingly left out of account a material fact.

Ground (3)

At paragraph 70 of his decision letter the Reporter agreed with the Appellants that the relevant policy required 'an assessment of cumulative impact on centres as a whole rather than assessment of impact on the convenience or comparison sectors in isolation. However, I do not agree that this precludes an assessment of the impact on a centre which takes account of the cumulative impact on each sector within it.' The Reporter proceeded thereafter to consider the potential impact on convenience floorspace in each centre without considering the acknowledged policy test of combined cumulative impact. In so doing the Reporter erred in applying the proper policy test to the issue of impact of the proposed centres.

Ground (4)

(a) At paragraph 75 of his decision letter the Reporter concluded that there is a predicted to be a 22% convenience goods trade diversion away from the town centre, and that this would be a significant loss of trade even in a healthy centre. The Reporter failed to record that convenience turnover represented only 11.8% of the total turnover of the town centre. It is submitted that the Reporter's conclusion that a 22% trade diversion would be a significant loss of trade failed to have proper regard to the limited extent of the convenience turnover of the town centre. It therefore proceeds upon a material error of fact, and accordingly cannot be supported.

(b) In any event the figure of 22% was derived from the Council's production SLC 20. The correct figure was in fact 17% as was apparent from production SLC 12, Table 3.5. The figure of 17% was consistent with the figure of 16% which can be extrapolated from production ASDA 75. The Reporter accordingly proceeded on an erroneous factual basis and his conclusion which was based on 22% trade diversion cannot be supported. [Ultimately, this ground of appeal, paragraph 4(b), was not insisted upon]"

The Appellants' Position

[76] The Note of Arguments for the appellants is no 15 of process.

[77] Mr Gale, on behalf of the appellants, invited me to allow the appeal and to quash the decision of the Reporter. He outlined the appellants' position along the following lines.

[78] The appellants seek to bring under review the decision of David Buylla Esq., a Reporter appointed by the Scottish Ministers to determine their appeal against the failure of South Lanarkshire Council to determine within the prescribed time their application for detailed planning permission for development of a Class 1 retail store with associated car parking and landscaping at 18/20 West Mains Road, East Kilbride. An inquiry session into the retail issues involved in that appeal was conducted by the Reporter over three days and concluded with final submissions from parties to that session on 13 September 2011. Hearing sessions were conducted by the Reporter in respect of transportation issues (in particular parking) and planning conditions.

[79] At the Inquiry session the Appellants led the evidence of Adrian Smith of Muir Smith Evans, Planning and Development Consultants. Other parties to the Inquiry session were (i) South Lanarkshire Council who led the evidence of Roderick MacLean of Roderick MacLean Associates Limited; (ii) JHAG/Tesco Stores Limited who led the evidence of Scott Mackay of Mackay Planning; and (iii) East Kilbride Shopping Centre who led the evidence of Alastair Wood of Savills (L&P) Limited and Richard Low of Cogent Property Solutions LLP.

[80] As noted in the appellant's Grounds of Appeal, the Reporter issued his decision letter on 7 October 2011, in terms of which he dismissed the appeal and refused planning permission. In that letter he concluded (a) that the proposal would not result in an objectionable loss of industrial land, nor would it otherwise be in conflict with development plan policies in respect of such land; (b) that in terms of the sequential approach to the location of development sites, there were no suitable sequentially preferable sites available; and (c) that the site referred to as Kittoch Field did not require to be factored into the assessment of retail capacity or cumulative impact. In these conclusions the Reporter accepted the case for the appellants. He further concluded, having heard parties in Hearing Session, that he was satisfied with the car parking proposals put forward by the appellants and that, subject to the imposition of appropriate conditions, the proposal would have no adverse impact on the operation of the road network.

[81] The Reporter concluded, however, (a) that the evidence adduced did not demonstrate to his satisfaction that there was a quantitative capacity justification for the proposed store, (b) that in the absence of a contractual commitment to operate the proposed store by ASDA Stores Limited (or, indeed, any other indentified operator) that he was unable to attribute significant weight to the qualitative benefits claimed, and that overall there was no convincing qualitative justification for the appeal proposal; (c) that the proposal would lead to an unacceptable cumulative impact on East Kilbride town centre as a whole, and would accordingly be contrary to national planning policy and certain development plan policies; and (d) the appellant had failed to address the issue of the potential impact of the appeal proposal on the deliverability of an approved development at St Leonards centre.

[82] It is in respect of the Reporter's conclusions on the matters referred to in the preceding paragraph, that the appellants' question the validity of the decision, and that under reference to the appellants' grounds of appeal.

[83] In presenting this appeal the appellants recognised that in terms of Section 239(1) of the Town and Country Planning (Scotland) Act 1997 it is necessary for them to satisfy the Court that the decision is not within the powers of the Act or that the interests of the appellants have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, and that if they can so satisfy the Court, it is then a matter in the Court's discretion whether it quashes the decision. The scope of such an appeal remains as stated by the Lord President (Emslie) in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347 to 348. Accordingly a decision of a Reporter may be challenged as ultra vires if it can be shown that he failed to take into account a relevant and material consideration, or, where a factual basis for the decision is required, he has failed to articulate a proper factual basis for it, or where the decision is unreasonable or irrational as those expressions are understood in the context of administrative law challenges. In addition the Appellants accept that issues of planning judgment are for the decision maker, in this case the Reporter, (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, per Lord Hoffmann at 780; City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, per Lord Clyde at 49).

[84] The First Ground of Appeal. At paragraph 62 of his decision the Reporter, in the context of his assessment of the quantitative justification for the proposal, observed that there was no evidence before him 'of any contractual commitment by ASDA to operate the proposed store.' At paragraph 66 of his decision he observed that it had been argued by the appellants that the store would offer improved choice and greater competition in the East Kilbride convenience shopping market, and that these are benefits that could potentially justify a proposal where there was not a convincing quantitative argument. The Reporter noted that there was a significant disparity between the convenience capacity of the catchment and that needed to support the proposed store, and that "in such circumstances the qualitative benefits require to be especially compelling". He went on to state that the benefits of improved choice and greater competition would only arise if the proposed store were to be operated by a retailer such as ASDA which was not already represented in the catchment. He concluded that in the absence of a contractual commitment from ASDA (or another retailer) to the appeal site, it was "'unreasonable to attribute significant weight to the qualitative benefits claimed". At paragraph 67 he proceeded to note that there was a contractual commitment on the part of Tesco to the Redwood Crescent site, and that as Tesco was not currently represented in East Kilbride, and that the operation of a Tesco store at that location would be likely to increase competition and choice in the convenience goods market, and that such would reduce the impact of any qualitative benefits associated with a new store at the appeal site.

[85] For the reasons given in the grounds of appeal (as adjusted) the appellants contend that the Reporter had before him a sufficiency of information to allow him to conclude that ASDA was contractually committed to operate the proposed store at the appeal site, the quality of that information being at least equal to that of the evidence regarding the commitment of Tesco to the Redwood Crescent site. In view of the information before him the Reporter's decision to conclude that there was no contractual commitment on the part of ASDA to the appeal site was, it is submitted, unreasonable and/or irrational, and accordingly the Reporter failed to have proper regard to a material consideration in his determination of the appeal. As noted above the Reporter was of the view that the qualitative benefits of improved choice and greater competition would only arise if the operator were to be ASDA. While it is the case that a grant of planning permission generally inures for the benefit of the land to which it relates, there are circumstances in which the personal circumstances of the applicant are material, (Westminster City Council v Great Portland Street Estates plc [1985] AC 661; East Barnet Urban District Council v British Transport Commission [1962] 2 QB 484). In the present appeal the Reporter, correctly it is submitted, recognised that in assessing the qualitative case, the identity of the operator of the proposed store had the potential to be a material consideration. The South Lanarkshire Local Plan (adopted 23 March 2009) provided that in respect of major development proposals, which in the case of convenience retail would be in excess of 100m² gross, should be accompanied by a retail assessment which itself should contain both a quantitative assessment of capacity and impact and an assessment of the qualitative impacts of the proposal, (Policy COM 3).

[86] Mr Gale submitted that the Reporter failed to recognise that ASDA was contractually committed to operate the proposed store, and in so doing, failed to have regard to a material consideration in his overall assessment of the appeal, and, in particular, his assessment of the appeal having regard to sections 25 and 37(2) of the Town and County Planning (Scotland) Act 1997.

[87] The Second Ground of Appeal. The Reporter had before him varying figures for the convenience retail capacity which were said to be relevant to the appeal proposal, and he referred to these in paragraph 49 et seq of his decision letter. In particular he had a report prepared by consultants commissioned on behalf of JHAG which disclosed a capacity of £102m in 2013. He concluded, however, that that capacity estimate did not represent a reliable estimate against which to assess the Appellants' proposal and that for the reasons given in paragraph 49. He did, however, conclude that a report prepared on behalf of the appellants contained "a more realistic catchment for the appeal proposal than that used for Redwood Crescent.", but proceeded to discount that assessment as it predated the grant of consents for Redwood Crescent, St Leonards and Mavor Avenue. He also noted that a supplementary retail assessment for a development at Atholl House which was carried out in May 2011 and which took into account the recent grants of planning permission. This document was before the Reporter in its complete form as production ASDA 78. It was produced by the appellants. It was referred to in the precognition of Mr Smith (paragraph 3.3) and relied upon him as relevant to the appeal proposal. The Reporter concluded that it represented a reasonable catchment against which to assess the appeal proposal. The said assessment disclosed that, after taking into account recent grants of planning permission, there remained a convenience retail capacity of approximately £36m which would be enough to accommodate the appeal proposal. The Reporter observed that its methodology and assumptions were not discussed in evidence and that the author of the assessment did not give evidence, and it was therefore impossible to investigate the assumptions that underlie the assessment and thereby assess its soundness. On that basis he considered it inappropriate to rely on this assessment for the purposes of the appeal.

[88] By failing to have regard to the supplementary assessment provided for the Atholl House proposed development, the Reporter was driven to accept the convenience capacity assessment produced by Mr Maclean, the witness for the Council, and relied upon by the Council. At -£0.9m Mr Maclean's assessment was materially different from that contained in the Atholl House assessment. In concluding that a quantitative capacity justification had not been demonstrated, the Reporter took as a datum the capacity figure of -£0.9m. It was accordingly critical to his determination on the quantitative case in the appeal.

[89] Mr Gale submitted that the Reporter failed to have proper regard to the supplementary assessment for Atholl House which was before him. It was apparent that the Reporter was able, in the exercise of his planning judgment, to conclude from a review of the assessment that it represented a reasonable catchment against which to judge the appeal proposal. The assessment and the covering letter from the consultants (productions ASDA 77 and 78) disclosed the assumptions made by those consultants and the basis of the assessment. In failing to have any, or any proper, regard to the capacity figure which he accepted related to a relevant catchment, the Reporter failed to properly resolve the disparity between the capacity estimates provided in this assessment and that provided by Mr MacLean. As observed there was a notable disparity between the two estimates. In failing to have regard to this assessment in assessing the quantitative case, it was submitted that the Reporter acted unreasonably, and accordingly failed to have regard to a material consideration in this regard.

[90] The Third Ground of Appeal. Paragraph 64 of the Scottish Planning Policy 2010 is contained under the general heading "Sequential Approach". It provides that where a proposed retail or commercial leisure development is contrary to the development plan, the planning authorities should ensure, inter alia, that there is no unacceptable individual or cumulative impact on the vitality and viability of the identified network of centres. The development plan policies to which the Reporter makes reference contain similar expressions of policy. The Reporter agreed with the Appellants' submission that "what is required in terms of policy is an assessment of cumulative impact on centres as a whole rather than an assessment of impact on the convenience or comparison sections in isolation." He then proceeded to indicate that he did not agree that such policy statements precluded an assessment of the impact on a centre which takes account of the cumulative impact of each sector within it.

[91] It was submitted by the appellants that a distinction falls to be drawn between the proper interpretation by a decision maker of an expression of planning policy and the application of that policy so interpreted to a development control decision. A similar general submission was made in the course of the judicial review application at the instance of these appellants when they sought to challenge the decision of the Council to grant planning permission in favour of JHAG - Dawn Developments Ltd (Petitioners) [2011] CSOH 170 - and recorded by the Lord Ordinary (Drummond Young) at para 24 et seq. Reference is also made to R (on the application of Sainsburys Supermarkets Ltd) v First Secretary of State [2005] EWCA (Civ) 520, per Sedley LJ at para 16, and R (on the application of Raissi) v Home Secretary [2008] QB 836 at 689 et seq.

[92] The appellants submitted that the proper interpretation to be given to the various expressions of policy which the Reporter encapsulates at paragraph 70 of his decision letter is that the assessment of impact is upon the identified centre as a whole. Such an interpretation is in accordance with the ordinary meaning of the words used in the policy statements and is reasonable. The policy statements do not expressly or by necessary implication envisage that the assessments would be made of individual aspects of or sections of a centre. It is the vitality and viability of the centre as a whole which is to be protected.

[93] In proceeding to carry out an assessment of the impact on the convenience sector in East Kilbride town centre, the Reporter erred in law in that he failed to properly interpret the various policy statements all of which directed him to assess the impact on the town centre as a whole.

[94] The Fourth Ground of Appeal. In respect of this ground of appeal the Appellants are content to rely on what is said in the grounds of appeal (as adjusted) subject only to the following observations. The evidence for the appellants at the Inquiry session was that the 11.8% contribution to total town centre turnover was such that there would be no significant loss of turnover due to the proposed development. The Reporter failed to record the figures provided by the appellants' witness, Mr Smith as contained in production ASDA 75, nor did he comment upon those figures, nor did he compare them with the evidence of Mr Maclean for the Council.

[95] In conclusion the appellants submitted that the Reporter acted ultra vires, and that for the reasons stated and that accordingly the decision to dismiss the appeal and refuse planning permission should be quashed. The appellants so moved the Court.

The Respondents' Position

[96] Ms Crawford, on behalf of the Scottish Ministers, invited me to refuse the appeal.

[97] The respondents' position (which was outlined in the Note of Arguments no 13 of process) was as follows:

"Introduction

1. This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997. A challenge can only be made on appeal under section 239(5)(b) on the basis that the decision complained of is (i) not within the powers of the Act, or (ii) that the interests of the Appellant have been substantially prejudiced by a failure to comply with the requirements of the Act. It is assumed that the present Grounds of Appeal invoke the first limb of section 239(5)(b), that is that the decision was not within the powers of the Act because of the alleged material errors of law.

2. The Appellant appealed to the Scottish Ministers under section 47(2) of the Town and County Planning (Scotland) Act 1997. The appeal was heard and determined by an appointed person ('the Reporter'). The appeal was conducted under the Town and Country Planning (Appeals) (Scotland) Regulations 2008 (SI 2008, No 434). The Appellant required to submit a notice of appeal which, inter alia, sets out the full particulars of the appeal including what matters the Appellant considers should be taken into account (Regulation 3). The Appellant must set out all matters in the notice of appeal and submit all documents that are to be relied upon. The Appellant may only raise other matters or submit further documents if that is permitted under Regulation 4, 5 or 10 or under the Inquiry Session or Hearing Session Rules. It is incumbent upon an appellant to submit the evidence and documents it considers relevant to the appeal.

3. The Reporter determined that the appeal should proceed by way of further procedure (Regulation 8) and, in particular, by means of an inquiry session and a hearing session. The Note of the Pre-Examination Meeting recorded at paragraph 10 that 'Retail Issues, including the provisions of the development plan and national policy as it relates to retail matters, will be considered at an inquiry session.' The inquiry session was, therefore, into retail issues.

4. The parties to the appeal presented the evidence they considered relevant to the appeal on retail capacity. This was because, as the Reporter found in paragraph 46, in order for the proposal to accord with the development plan and to be supported by SPP, the Appellant required to demonstrate that there was sufficient retail capacity. The evidence addressed the issues of (i) retail impact and (ii) cumulative impact of the proposal. In the course of the appeal the Reporter required to assess the evidence about these matters, apply his planning judgement and expertise to it, weigh the evidence, and form conclusion thereon. In the words of the Reporter at paragraph 43, quantifying retail capacity is not an exact science and a significant degree of professional judgement is required. Assessments about retail and cumulative impact require a prediction about the future behaviour of shoppers when responding to a proposed change in retail provision in the relevant area. It will be necessary to analyse the strengths and weaknesses of centres affected by a proposal and to address the characteristics of that centre before coming to a conclusion about the likely long-term effects. The performance of the town centre as a whole will be relevant to the assessment of the impact of a proposal. These features illustrate that a considerable degree of professional planning judgement is required.

5. The Reporter used his professional judgement and expertise to assess and weigh the evidence about retail capacity, and then made conclusions thereon. The assessment and weighing of this evidence was a matter of planning judgement which was 'within the exclusive province' (Tesco Stores v Environment Secretary [2005] 1 WLR 759 per Lord Hoffmann at 780H) of the Reporter. It is not for the Court to investigate, assess and weigh the evidence about retail capacity. In an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997, the Court does not determine the merits of the planning appeal, nor the merits of the decision made thereon by the Reporter.

6. SPP advises at paragraph 66 that retail impact assessments should be a 'broad based approach' and that 'it should not be necessary to attempt detailed calculations or forecasts of a sector's growth as small variations in assumptions can lead to a wide range of forecasts'. The policy guidance reflects the fact that retail assessment is not an exact science.

7. The respondents modified their stance in relation to this paragraph - as outlined below. For the sake of completeness I simply record their original position was to the following effect:

It is for the Reporter to interpret any planning policy. Where his interpretation is one that the policy is reasonably capable of bearing, there is no basis for intervention by the Court. The Court will only intervene if the interpretation of policy goes beyond the range of reasonable meanings that can be given to the language used (R v Derbyshire County Council ex parte Woods [1997] JPL 958 per Brooke LJ at 967-968, and R (on the application of Springhall v London Borough of Richmond Upon Thames [2006] EWCA Civ 189, per Auld LJ at paragraph 7). In other words, the Court can only interfere with the Reporter's decision if he attributes to a policy a meaning he could not reasonably have attributed or takes into account irrelevant matters, or disregards relevant matters, in coming to that meaning (Virgin Cinema Properties Ltd v Sec of State for Environment [1998] 2 PLR 24).

8. Decision letters require to be read as a whole and in context. They should not be subjected to a detailed textual analysis and criticism (South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 and Moray Council v Scottish Ministers 2006 SC 691). Although the Grounds of Appeal purport to address various errors of law, the alleged errors identify isolated passages in the decision letter which are not read in their proper context. Passages in a decision letter should not be taken out of context and ascribed a meaning which they do not properly bear.

Ground of Appeal 1

9. The Appellant argues that the Reporter has failed to have regard to a material fact, or failed to give that fact appropriate weight. The fact relied upon by the Appellant is that it and ASDA 'had entered into a contract that ASDA would operate the store subject to the obtaining of planning consent' (Ground 1(e)), ie the 'ASDA factor'. This Ground concerns the 'ASDA factor'.

10. The Reporter did not fail to have regard to a material fact, or fail to give appropriate weight to that fact. The weight to give to any fact is, in any event, and as submitted in paragraph 4 hereof, an exercise of planning judgement that is within the exclusive province of the decision maker.

11. The Appellant submitted that the ASDA factor was relevant to the question of adequate retail capacity or available expenditure. The Reporter used his professional planning judgement to come to a conclusion about whether there was sufficient retail capacity and expenditure. The Reporter's decision demonstrates that the ASDA factor would not have altered his conclusions that there was insufficient retail capacity and expenditure. The ASDA factor was not material to the question of retail capacity and expenditure.

12. The Reporter first addressed the issue of quantitative justification in paragraphs 47-65. He did so by a careful examination of the retail assessments. He noted in paragraph 47 that there had been several recent assessments of East Kilbride's convenience retail capacity which had produced 'widely differing conclusions'. He noted that care required to be taken 'when comparing different studies as assumptions such as year of opening/test year and the price base used for calculations may be different. Different source data may also be used for predicted turnover ratios.' The Reporter also noted that 'each assessment depends upon a catchment being defined. And the size and boundaries, and therefore the capacity identified within it, can be influenced by the nature of the development proposal being considered.'

13. In paragraph 51, the Reporter found that the retail assessment provided by the Appellant at the planning application stage (the Blueprint assessment) identified within the catchment of East Kilbride and its immediate surroundings a convenience retail capacity of £59M. The Reporter did not accept that figure because it did not identify inflows or outflows of expenditure and, significantly, did not identify three subsequent planning permissions. The Blueprint assessment could not therefore be relied upon.

14. In paragraph 53 the Reporter considered the Atholl House supplementary retail assessment. He decided for the reasons stated that he could not rely on it. This is the subject matter of Ground of Appeal 2, and will be discussed in further detail in this Note. At paragraph 54 the Reporter notes the retail assessment for the planning authority and concludes that the catchment area identified in it forms an appropriate basis for assessing capacity. The catchment was not significantly different to that in the Blueprint assessment.

15. Paragraph 55 contains the Reporter's conclusions about the planning authority's retail assessment about convenience capacity in the defined catchment area. The Reporter finds that that assessment takes account of existing expenditure inflows and outflows, existing under-trading, allowances for leakage, increases in inflow, and an allowance for an 'acceptable' level of impact on existing centres. So, the assessment for the planning authority demonstrated the methodology and assumptions used. The retail assessment for the planning authority gave a figure of -£0.9M for remaining convenience capacity in the defined catchment area. The Reporter accepted that there was a proper factual basis in the planning authority's assessment for a remaining convenience capacity in the relevant catchment are of -£0.9M. He was entitled to do so.

16. The Reporter addressed criticisms of the planning authority's retail assessment in paragraphs 56 and 57. He gave proper, rational and intelligible reasons for discounting those criticisms.

17. In paragraph 58 the Reporter notes that he requires to assess whether the adjustments made to inflows and outflows in the planning authority's assessment were reasonable.

18. The Reporter carries out that assessment in paragraph 59. The Reporter accepts that 35% inflow is reasonable, for the reasons given. He then carries out a 'sensitivity' test in relation to the 50% leakage assumption. He notes that in the event that there was a 'claw back' of 65% (rather than the assumed 50%) there would be an addition of approximately £5.8M to the retail capacity.

19. The Reporter then notes in paragraph 60 that he requires to consider whether a further addition to capacity requires to be made because the under-trading estimate was unrealistic. The Reporter noted that while it could be said that the figure for under-trading was an over-estimate he had not been provided with any alternative figure. Nonetheless, the Reporter calculated the retail convenience capacity adjusting under-trading to zero and using a 65% clawback. These adjustments operated in the Appellant's favour, albeit they were not supported by any evidence. Taking those assumptions into account, the convenience capacity increased to £12.1M. Using the assumptions most favourable to the Appellant, the convenience capacity available was far less than the convenience turnover for the proposed store whether that turnover was £25.9M or £31.8M. There would have been a greater disparity had the Reporter accepted a convenience turnover of £31.8M.

20. The Reporter recognised at paragraph 64 that 'any estimate of the proposed store's turnover is unlikely to predict precisely how the store would perform, particularly when there is no certainty as to which retailer will operate it. However, ... the figures provide a reliable broad indication of the level of convenience capacity and the turnover of the proposed store. The disparity between the identified capacity and the predicted turnover of the proposed store is significant ... And even if one assumed no existing under-trading and a 65% rate of leakage clawback, the disparity remains significant'. In paragraph 65 the Reporter finds that he can be 'confident that the picture painted by the analysis of capacity compared with turnover is sufficiently clear for me to conclude that it has not been demonstrated that there is quantitative capacity justification' and that the proposal was contrary to the relevant Development Plan policies.

21. In context, therefore, it can be seen that the Reporter concluded that the existence or otherwise of an ASDA factor did not provide a quantitative justification. The Reporter had a proper factual basis from which to conclude that there was no quantitative justification, whether or not the ASDA factor was present.

22. At paragraph 66, the Reporter took account of the Appellant's argument that there would be improved choice and greater competition in the East Kilbride convenience shopping market. He stated that these benefits 'could potentially justify a proposal where there was not a convincing quantitative argument. In the case of this proposal, there is a significant disparity ... In such circumstances, the qualitative benefits require to be especially compelling'. The Appellant was unable to demonstrate any especially compelling benefits, beyond assertion. In paragraph 67 the Reporter also found that any qualitative benefits from the proposal required to take account of the existing commitment at Redwood Crescent. This could be expected to increase competition and choice in the convenience goods market, and thus reduce any claimed benefits from the proposal. The Reporter was entitled to conclude that there was no 'convincing' qualitative justification. This was because (a) there was a significant disparity between convenience capacity and turnover, and (b) the qualitative benefits (if any) had not been established. The ASDA factor was of little (if any) weight to the assessment of whether qualitative considerations could justify the proposal.

23. The Reporter's conclusions on an ASDA factor and its relevance and/or materiality to the question of retail capacity (including quantitative and qualitative justification) were not unreasonable, perverse or irrational.

24. In any event, in order to place reliance on the ASDA factor, it was incumbent on the Appellant to submit evidence and documents about ASDA's contractual commitment to the development. This is especially so in a context where, during a hearing session, the Reporter asked an ASDA witness whether, in order to give weight to the ASDA factor, a condition should be imposed that limited any forthcoming planning permission to ASDA. The ASDA witness responded that the Appellant would not welcome the imposition of such a condition. The Appellant also required to submit evidence and documents setting out that the ASDA factor would provide a quantitative and qualitative justification for the development. The Appellant failed to do either. A statement to the Reporter that there was a contractual commitment, whether or not 'on instruction', did not cure the failure to lead evidence on the matter. More importantly, it did not cure the failure to lead evidence that such a commitment would be able to provide quantitative and qualitative justification for the proposal. The Reporter was not provided with evidence by the Appellant which would have entitled him to conclude that there was a quantitative justification, and/or that there was a qualitative justification which would was of sufficient weight to justify the proposal.

Ground of Appeal 2

25. The Appellant argues at Ground of Appeal 2(b) that it was unreasonable to leave the supplementary retail assessment in relation to the Atholl House proposal out of account, and that in doing so he left out of account a material fact.

26. This Note has already identified the passages in the decision which address the Reporter's assessment of the retail impact assessments. It is evident that the Reporter did not disregard the Atholl House supplementary retail assessment. However, he decided that it would be inappropriate for him to rely on that assessment. In other words, he attached no weight to it. The Reporter was entitled, in the exercise of his planning judgement and for the reasons given by him, not to rely on the supplementary retail assessment for the Atholl House proposal.

27. The reasons why the Reporter was unable to rely on the supplementary retail assessment for the Atholl House proposal were set out in paragraph 53. The Reporter could not identify the assumptions made, and whether or not they were reasonable. He was therefore unable to form a view as to the validity of the figures used. It can be seen in the retail assessments produced that the figure of £36M for available convenience expenditure in the Atholl House assessment was markedly different from the figures given in the evidence for the planning authority, and in the evidence prepared for the Appellant by Blueprint Planning and spoken to by the Appellant's witness. The author of the Atholl House assessment did not give evidence, despite an invitation to do so.

28. Esto the Appellant intended to rely on the Atholl House supplementary assessment of retail capacity, and invite the Reporter to attach weight to that assessment, it was incumbent upon it to provide evidence and documents that would enable the Reporter to be satisfied that he was entitled to attach weight to the assessment and rely upon it. The Appellant failed to do so.

29. However, the Reporter was entitled to take into account the catchment area used in the Atholl House supplementary retail assessment. The catchment area was supported by evidence that was before the Reporter from other sources. The catchment area, as the Reporter found in paragraph 52, was that devised by the planning authority's witness and based on National Survey of Local Shopping Data. The catchment area in the supplementary assessment had been revised to a smaller area following correspondence with the planning authority. The methodology and assumptions used to define the catchment area, in contrast to the assessment of retail capacity, were clear and were discussed by a witness who used the same methodology and assumptions. It was reasonable for the Reporter to use the catchment area identified.

Ground of Appeal 3

30. The Appellant argues that the Reporter has erred in applying the proper policy test to the issue of impact. This argument is no more than a challenge to the Reporter's interpretation of policy. The respondents originally suggested in their Note of Argument that the Reporter's interpretation of policy was reasonable. During the course of the appeal they went further and submitted it was "proper".

31. Paragraph 64 of SPP requires that there be 'no unacceptable individual or cumulative impact on the vitality and viability of the identified network of centres'. The Reporter was entitled to interpret this policy in the manner that he did and to assess the cumulative impact on the centre as a whole. He was entitled to do so by looking at the effect on individual sectors. He carried out that exercise in considerable detail in paragraphs 71-77. The Reporter considered both comparison and convenience retailing. He was entitled to examine the importance of convenience retailing to the vitality and viability of the town centre. He had unchallenged evidence with which to do so. The Appellant's calculation of 5.4% as the combined cumulative impact masked the actual impact of the importance of convenience retailing. It failed to take account of the characteristics of East Kilbride town centre and its strengths and weaknesses. The Reporter was entitled to reject the Appellant's calculation.

32. The Reporter was entitled to conclude that the development would have an unacceptable cumulative impact on East Kilbride town centre, and therefore was contrary to policy.

33. In any event, the Reporter found at paragraph 76 that the proposal would also be contrary to SPP paragraph 63 because the impact would be unacceptable. The Reporter found at paragraph 77 that the proposal would not accord with the relevant Development Plan policies.

34. In addition, the Reporter found at paragraphs 81-82 that the Appellant had failed to address and assess the impact on another centre, namely St Leonards. It could not demonstrate that the impact of the proposal on the vitality and viability of St Leonards would be acceptable. The Reporter found at paragraph 82 that for this reason the proposal was contrary to the Development Plan and the SPP.

Ground of Appeal 4

35. The Appellant argues that the Reporter has proceeded on a material error of fact about the convenience goods trade diversion because convenience turnover accounted for only 11.8% of the total turnover of East Kilbride town centre. Once again, the Appellant has failed to read the decision letter as a whole and in context.

36. The Reporter took account, in paragraph 71, of the fact that comparison retailing 'dominated' East Kilbride town centre. But the convenience turnover figure of 11.8% requires to be read in the context of the Reporter's conclusions in paragraphs 71-73. The convenience goods trade diversion was accordingly significant in the context of the characteristics of East Kilbride centre, and its strengths and weaknesses. The Reporter concluded that convenience retailing had increased importance relative to comparison retailing in East Kilbride town centre as a whole, and for the reasons articulated in paragraphs 71-73. Therefore, as he found in paragraph 74, the convenience retailing in the town centre has a greater relevance to the vitality and viability of the town centre than 'its relatively small scale might suggest'. The Reporter has not proceeded upon a material error of fact.

37. The appellant did not insist upon the point addresses in this paragraph (37), but for completeness I simply record the respondents' position as follows:

The figure of 22% is derived from SLC20, table 3.a, taking account of the fact that there was no commitment at Kittoch Field. This was explained in evidence by the planning authority's witness. The Appellant's figure of 17% shows a misunderstanding of SLC 12. The Appellant did not challenge the 22% figure as incorrect in closing submissions.

38. In any event, as previously submitted, SPP favours a broad based approach to the consideration of impact rather than a detailed attempt to calculate or forecast a sector's growth. In other words, whether the convenience trade diversion would be just under one-fifth of East Kilbride town centre's existing convenience trade, or just over one-fifth, would not have affected the Reporter's conclusion at paragraph 76 that the impact was unacceptable. This is because of his earlier assessment and conclusions at paragraphs 71-74. There was no evidence before the Reporter that would have entitled him to conclude that a 17% (esto that is the 'correct' figure) impact would be acceptable."

Discussion

[98] I have taken into account everything said by counsel for both parties.

[99] Having done so, in my opinion, the respondents' submissions prevail.

[100] In my opinion, despite Mr Gale's carefully presented submissions, the appeal falls to be refused.

[101] I have reached that conclusion essentially for reasons outlined by the respondents which I have already set out above.

[102] As noted above, in presenting this appeal the appellant recognised that in terms of section 239(1) of the Town and Country Planning (Scotland) Act 1997 it is necessary for them to satisfy the Court that the decision is not within the powers of the Act or that the interests of the appellants have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation to it, and that if they can so satisfy the Court, it is then a matter in the Court's discretion whether it quashes the decision.

[103] The scope of such an appeal is as stated by the Lord President (Emslie) in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347-348.

[104] If any reminder be needed the Lord President said this:

"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it."

[105] As the appellants contend, a decision of a Reporter may be challenged as ultra vires if it can be shown that he failed to take into account a relevant and material consideration, or, where a factual basis for the decision is required, he has failed to articulate a proper factual basis for it, or where the decision is unreasonable or irrational as those expressions are understood in the context of administrative law challenges.

[106] In addition the appellants accept that issues of planning judgment are for the decision maker, in this case the Reporter.

[107] In Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, Lord Hoffman said this in relation to "materiality and planning merits"(at page 780):

"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

[108] In City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 Lord Clyde said inter alia (at page 49):

" It was argued that the reporter was not entitled to draw the conclusion which he did from the evidence before him. Counsel for the respondents suggested a variety of reasons which might account for the expenditure surplus. He also sought to criticise the quality of the evidence on which the reporter had relied. But it was not suggested that there was no evidence before the reporter which could entitle him to discount such other explanations and to hold that there was an expenditure surplus which pointed to a quantitative deficiency. Whether the evidence did or did not so point was a matter wholly for him to determine. Provided that the evidence was there it was for him to assess it and draw his own conclusions from it. It is no part of the function of a reviewing court to re-examine the factual conclusions which he drew from the evidence in the absence of any suggestion that he acted improperly or irrationally. Nor is it the duty of a reviewing court to engage in a detailed analytic study of the precise words and phrases which have been used. That kind of exercise is quite inappropriate to an understanding of a planning decision."

[109] I also agree with the respondents that decision letters require to be read as a whole and in context. As the respondent suggests, they should not be subjected to a detailed textual analysis and criticism (South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 and Moray Council v Scottish Ministers 2006 SC 691).

[110] In Moray Council v Scottish Ministers 2006 SC 691, the Lord Justice-Clerk (Lord Gill) outlined his conclusions in relation to decision letters in paragraphs [28] to [32] as follows:

"Decision letters

[28] Counsel for the appellant has subjected the decision letter to detailed textual analysis and criticism. In doing so he has, I think, asked us to judge it by a needlessly exacting standard. The function of the Reporter is to make a decision by reference to the provisions of the development plan and to other material considerations (1997 Act, s 37(2); s 48(5)(a)). In so doing, he has to make his determination in accordance with the development plan unless material considerations indicate otherwise (1997 Act, s 25; cf City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, Lord Clyde at p. 43-44 ). In the normal case, the Reporter will have to consider, in addition to the development plan, any relevant national planning guidance, responses from consultees, expert evidence from the principal parties on the facts and on the planning issues and representations from supporters and objectors.

[29] His starting point will be the development plan, considered if need be in the light of national planning guidance. Having regard to the development plan framework and the nature of the proposal, he must decide what are the determining issues. With those issues in mind, he must make his findings in fact on the nature of the proposal and its probable effects. It is for him to decide what lines of evidence are material to the determining issues and what conclusions are to be drawn from them.

[30] The Reporter must then decide in the light of his findings how he resolves the determining issues. This involves the exercise of his planning expertise and judgment. In his decision letter he must set out the process of reasoning by which he reaches his decision; but that does not require an elaborate philosophical exercise. Nor does it require a consideration of every issue raised by the parties. The Reporter is entitled to confine himself to the determining issues. So long as his reasons are intelligible and adequate, he is entitled to express them concisely. The guiding principle is that the decision letter should leave the informed reader in no substantial doubt as to the Reporter's findings in fact and conclusions on the determining issues, and as to the way in which he has applied section 25 of the 1997 Act in reaching his decision (Perth and Kinross Council v Secretary of State for Scotland 1999 SLT 1095).

[31] Lord Brown of Eaton-under-Heywood has observed that "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. A reasons challenge 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" (South Bucks County Council v Porter (No. 2), supra, at para 36).

[32] The determining issues in this case were clear-cut. It was obvious to the parties what they were. In my opinion, the decision letter in this case is a particularly well-constructed document in which the Reporter's reasoning is lucid and well expressed."

[111] Applying those admittedly relevant considerations to the circumstances of the present case, I am simply not satisfied that the Reporter acted ultra vires.

[112] I agree with the respondent that the Reporter used his professional judgement and expertise to assess and weigh the evidence about retail capacity, and then made conclusions thereon. The assessment and weighing of this evidence was a matter of planning judgement which was "within the exclusive province"(Tesco Stores v Environment Secretary [2005] 1 WLR 759 per Lord Hoffmann at 780H) of the Reporter. It is not for the Court to investigate, assess and weigh the evidence about retail capacity. In an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997, the Court does not determine the merits of the planning appeal, nor the merits of the decision made thereon by the Reporter.

[113] On the information before me, I am not prepared to exercise my discretion in the appellants' favour.

[114] I need not rehearse again the submissions of parties, or the authorities referred to during the debate, which I have already set out above.

[115] At this stage, I shall simply attempt to distil my reasons, in relation to each the grounds of appeal as follows:

Ground of Appeal 1: The Asda Factor

[116] Ground of appeal 1 relates to what was referred to as "the Asda factor".

[117] Having regard to the whole circumstances, including the factors outlined by the respondents and the Statement of Agreed Facts (paragraphs 11 and 12), I am not satisfied that this ground of appeal is well founded.

[118] In my view, the approach taken by the Reporter was a reasonable one and within the exercise of his planning judgement.

[119] On the information before him, in my view, it cannot be said that his decision in relation to the Asda factor was unreasonable, perverse or irrational.

[120] In Westminster City Council v Great Portland Street Estates plc [1988] AC 661 Lord Scarman (at pages 669-670) said inter alia that :

"Personal circumstances of an occupier, personal hardship, the difficulties of businesses which are of value to the character of a community are not to be ignored in the administration of planning control. It would be inhuman pedantry to exclude from the control of our environment the human factor."

[121] I take no issue with that approach, which goes some way towards supporting the appellant's position in relation to the significance of an Asda commitment

[122] However, in my view, the Reporter deals adequately with the Asda issue in paragraph 62 of the decision letter and related paragraphs.

[123] It was for the appellants to satisfy the Reporter by producing acceptable evidence and on a fair reading of the decision letter they simply failed to do so.

[124] In any event the weight, if any, to be given to such information was a matter for the Reporter.

[125] In the exercise of his planning judgement the reporter concluded that it would be unreasonable to allow for an additional level of clawback. In my opinion he was entitled to do so. Tesco Stores v Environment Secretary [2005] 1 WLR 759 per Lord Hoffman at 780H.

[126] Even if there was sufficient evidence to support the appellant's assertion of a commitment (which is disputed), the Reporter was not bound to accept it.

[127] In my view, the Reporter also carried out a careful examination of the various retail assessments. He gave adequate reasons as to why the Blueprint assessment and the Atholl House assessment were not to be relied upon. He was entitled to attach little or no weight to those assessments and to conclude that there was no relevant justification.

[128] I reject ground 1 for those reasons.

Ground of Appeal 2: The Atholl House Assessment

[129] Ground of appeal 2 relates to what was described as the "Atholl House assessment"

[130] In my view, on a fair reading of the decision letter, the Reporter was entitled (in the exercise of his planning judgement, and for the reasons given by him) not to rely on the supplementary retail assessment for the Atholl House proposal (No 6/6 of process) in relation to retail capacity.

[131] In my opinion, paragraphs 52 and 53 of the decision letter deal adequately with the questions of catchment and capacity.

[132] In any event the weight, if any, to be given to such information was a matter for the Reporter who was entitled to bear in mind that the author of the assessment did not give evidence to the inquiry session.

[133] I reject Ground 2 for the reasons stated by the respondents.

Ground of Appeal 3: Policy in relation to impact

[134] Ground of appeal 3 relates to policy in relation to impact.

[135] Paragraph 64 of the Scottish Planning Policy 2010 is to be found under the general heading "Sequential Approach".

[136] At an earlier stage in these proceedings the respondent sought to advance an argument based on the Reporter's interpretation of policy simply being "reasonable". That was not the respondent's final position.

[137] More recently, having regard to authority, the respondent submitted that the Respondent's interpretation was "proper".

[138] I agree that "proper", looking at the policy objectively, is the correct test.

[139] In my view, the Reporters interpretation of policy meets the appropriate tests.

[140] In Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P&CR 86, Woolf J said (at page 93-94) inter alia that

"it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy."

[141] I agree with that. I am simply not satisfied that the reporter in the present case had failed to properly understand or have regard to the policies which he refers to.

[142] In Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 Lord Reed (with whom Lord Brown, Lord Kerr and Lord Dyson agreed) said in paragraphs 17 to 19 and 21:

"17. It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 219, 225-226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the plan if it fails to understand them. It also follows from the legal status given to the development plan by section 25 of the 1997 Act. The effect of the predecessor of section 25, namely section 18A of the Town and Country (Planning) Scotland Act 1972 (as inserted by section 58 of the Planning and Compensation Act 1991), was considered by the House of Lords in the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, [1997] 1 WLR 1447. It is sufficient for present purposes to cite a passage from the speech of Lord Clyde, with which the other members of the House expressed their agreement. At p 44, 1459, his Lordship observed:

'In the practical application of sec 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any 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 in the development plan which is relevant to the application or fails properly to interpret it.'

18. In the present case, the planning authority was required by section 25 to consider whether the proposed development was in accordance with the development plan and, if not, whether material considerations justified departing from the plan. In order to carry out that exercise, the planning authority required to proceed on the basis of what Lord Clyde described as "a proper interpretation" of the relevant provisions of the plan. We were however referred by counsel to a number of judicial dicta which were said to support the proposition that the meaning of the development plan was a matter to be determined by the planning authority: the court, it was submitted, had no role in determining the meaning of the plan unless the view taken by the planning authority could be characterised as perverse or irrational. That submission, if correct, would deprive sections 25 and 37(2) of the 1997 Act of much of their effect, and would drain the need for a "proper interpretation" of the plan of much of its meaning and purpose. It would also make little practical sense. The development plan is a carefully drafted and considered statement of policy, published in order to inform the public of the approach which will be followed by planning authorities in decision-making unless there is good reason to depart from it. It is intended to guide the behaviour of developers and planning authorities. As in other areas of administrative law, the policies which it sets out are designed to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained. Those considerations point away from the view that the meaning of the plan is in principle a matter which each planning authority is entitled to determine from time to time as it pleases, within the limits of rationality. On the contrary, these considerations suggest that in principle, in this area of public administration as in others (as discussed, for example, in R (Raissi) v Secretary of State for the Home Department [2008] QB 836), policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context.

19. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean. ...

21. A provision in the development plan which requires an assessment of whether a site is "suitable" for a particular purpose calls for judgment in its application. But the question whether such a provision is concerned with suitability for one purpose or another is not a question of planning judgment: it is a question of textual interpretation, which can only be answered by construing the language used in its context. In the present case, in particular, the question whether the word "suitable", in the policies in question, means "suitable for the development proposed by the applicant", or "suitable for meeting identified deficiencies in retail provision in the area", is not a question which can be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed."

[143] The appellants referred me to R (Sainsburys Supermarkets Ltd) v First Secretary of State [2005] EWCA (Civ) 520 and in particular Lord Justice Sedley, who delivered the judgment of the court, at paragraph 16.

[144] The appellants also referred me to R (Raissi) v Home Secretary, [2008] QB 836 and in particular to Hooper LJ, who handed down the judgment of the court, at paragraphs 118 to 124

[145] Lord Drummond Young considered those two case in Dawn Developments Ltd (Petitioners) [2011] CSOH 170. In particular he said at paragraphs [20] to [22]:

"[20] In support of his arguments to the effect that the Council had erred in law, counsel for the petitioner submitted that a distinction fell to be drawn between the proper interpretation by the planning authority of what government guidance means and the application of that interpretation to planning circumstances. While the application of the guidance to planning circumstances was a matter of policy, the former issue, the interpretation of what the guidance means, was said to be a matter of law, with the result that the court could intervene if the planning authority reached an incorrect interpretation. In my opinion that argument is inconsistent with the foregoing authorities. No doubt if the planning authority's interpretation is perverse, in the sense of an interpretation that no reasonable planning authority could properly reach, it will be open to judicial review. Nevertheless this is merely an aspect of the general power of judicial review that may be exercised in respect of planning decisions; I do not think that there is any specialty arising out of the fact that interpretation is involved.

[21] Counsel for the petitioner further placed some reliance on the relatively recent decision of the English Court of Appeal in R (Raissi) v Home Secretary, [2008] QB 836. That case involved extradition proceedings which were ultimately dismissed. The claimant applied to the Home Secretary for compensation for his detention under an ex gratia scheme introduced in a ministerial statement to Parliament in November 1985. The claim was refused, on the ground inter alia that the scheme did not apply to extradition proceedings because an extradition charge was not a charge for the purposes of the ex gratia scheme and because such proceedings could involve no serious default by the United Kingdom prosecuting authorities because they acted for a foreign government. The claimant sought judicial review. Judicial review was granted, on the ground that the purpose of the scheme was to compensate those who have spent a period in custody resulting from a serious default on the part of a police officer or some other public authority, and thus encompassed detention following extradition charges. The case is of significance for comments in the Court of Appeal as to the proper test to be applied in interpreting policy statements: see paragraphs [118] et seq. Planning cases were specifically considered. It was pointed out (paragraph [119]) that in planning cases the courts had in the past tended to ask only whether the meaning attributed to the words of policy was a reasonable one. Even there, however, the courts were not unanimous, and reference was made to a statement by Sedley LJ in R (Sainsbury's Supermarkets Ltd) v First Secretary of State, [2005] EWCA Civ 520, at paragraph [16]:

'The interpretation of policy is not a matter for the Secretary of State. What a policy means is what it says. Except in the occasional case where a policy has been ambiguously or unclearly expressed..., ministers are not entitled to thwart legitimate expectations by putting a strained or unconventional meaning on it. But what ministers do have both the power and the obligation to do... is to apply their policy from case to case, keeping in balance the countervailing principles (a) that the policy is not a rule but a guide and (b) that like cases ought to be treated alike'.

In Raissi the court refused to adopt a 'reasonable meaning' approach, and held that it should itself decide what the policy meant, not leaving that to the relevant minister.

[22] Raissi is of course in a very different context from planning, but the decision in Sainsbury's Supermarkets does relate to planning. Nevertheless, the decisions in Freeport Leisure and City of Edinburgh Council are binding on a Scottish court, and to the extent that there is any inconsistency between those cases and Sainsbury's Supermarkets it is the Scottish authorities that must be followed. I am doubtful if there is any serious discrepancy, however. If a minister or planning authority were to place a "strained or unconventional meaning" on a policy that might well give rise to an entitlement to judicial review on the ground of perversity or possibly Wednesbury unreasonableness. Likewise, if a Minister or planning authority failed to treat like cases alike, that would readily give rise to judicial review on the ground of perversity. Moreover, Sedley LJ recognizes that a policy is not a rule but a guide, which is perhaps the fundamental point emphasized in the Scottish decisions. I accordingly consider that the decisions in Raissi and Sainsbury's Supermarkets do not detract in any way from the established Scottish authorities."

[146] I agree with Lord Drummond-Young's assessment.

[147] In my opinion, in the present case, the Reporter's interpretation of policy was proper and reasonable. He was entitled to adopt the approach to policy which he did.

[148] The Reporter's views are set out fairly clearly, in my view, in paragraphs 71 to 77 of the decision letter.

[149] He assessed the cumulative impact on the centre as a whole and he was entitled to do so by looking at the effect on individual sectors as suggested by the respondents in their note of argument.

[150] In any event the Reporter was entitled to reject the appellant's calculations.

[151] In short, I reject ground of appeal 3 for the reasons stated by the respondents during the appeal.
Ground of Appeal 4: Convenience Goods Trade Diversion

[152] Ground of appeal 4 relates to Convenience Goods Trade Diversion

[153] This is a specialist area where I must be careful not to trespass onto the planning judgement of the Reporter - for the reasons already outlined above. The decision letter also requires to be read as a whole.

[154] In my opinion, the approach adopted by the Reporter in paragraphs 71 to 74 of the decision letter does not demonstrate any material error of fact or law.

[155] In any event, Scottish Planning Policy favours a broad approach.

[156] I reject ground of appeal 4 for the reasons stated by the respondents.

Ground of Appeal 5 - The Reasons Challenge

[157] Mr Gale also advanced an oral argument to the effect that there was an absence of proper reasons given by the Reporter.

[158] Although there was no specific ground of appeal in those terms, I am prepared to deal with this as being, in effect, ground of appeal 5.

[159] In short, I reject this ground also.

[160] What is sometimes referred to as "The reasons challenge" was also helpfully summarised in South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953. Lord Brown of Eaton-under-Heywood dealt with the issue at pages 1961-1962, at paragraphs 27 to 30.

[161] Lord Brown of Eaton-under-Heywood also set out what the appellants described as "the classic dictum on reasons" (at page 1964, paragraphs 35 and 36) as follows:

"The law summarised

35 It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.

36 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 on 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 upon 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. A reasons challenge 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."

[162] In my opinion, the reporter in the present case has said more than enough to meet the reasons challenge. He gave full and detailed reasons.

[163] As noted at the outset, the Reporter concluded inter alia that;

"100. However, the appellant has not demonstrated that there is sufficient capacity to support the proposal in quantitative terms, or provided adequate qualitative justification. The appellant has also failed to demonstrate that the proposal would not harm the vitality and viability of existing centres. For these reasons, I have found the proposal contrary to a number of policies in the development plan and to the retail policy aspects of SPP.

101. The development would undoubtedly create job opportunities and spin-off economic benefits. However, these would provide insufficient compensation for the policy conflict and the identified threats to vitality and viability, which would themselves be likely to result in reduced job opportunities and economic performance in the centres that would be harmfully affected. I have been advised of no other material considerations that would justify the appeal being allowed.

102. Accordingly, I conclude that the appeal should be dismissed."

[164] In my opinion, the Reporter's decision should not be quashed.

Decision

[165] I have given anxious consideration to the various submissions of parties.

[166] In the result, I am not satisfied that the Reporter

acted ultra vires.

[167] The respondents' submissions are well founded to the extent and for the reasons indicated above.

[168] Accordingly, I shall refuse the appeal and reserve the question of expenses.