PETITION OF COSMOPOLITAN HOTELS LTD AGAINST RENFREWSHIRE COUNCIL [2021] ScotCS CSOH

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> PETITION OF COSMOPOLITAN HOTELS LTD AGAINST RENFREWSHIRE COUNCIL [2021] ScotCS CSOH_116 (09 November 2021) URL: http://www.bailii.org/scot/cases/ScotCS/2021/2021_CSOH_116.html Cite as: [2021] ScotCS CSOH_116, [2021] CSOH 116, 2021 GWD 38-516

OUTER HOUSE, COURT OF SESSION

[2021] CSOH 116

P356/21

OPINION OF LORD TYRE

In the Petition

COSMOPOLITAN HOTELS LIMITED

Petitioner

against

RENFREWSHIRE COUNCIL

Respondent

Petitioner: Armstrong QC; Shepherd & Wedderburn LLP

Respondent: Burnet QC; CMS Cameron McKenna Nabarro Olswang LLP

9 November 2021

Introduction

[1]

The petitioner is the owner of part of an area of land ("the site") adjacent to the

Erskine Bridge Hotel in Renfrewshire. In the current Adopted Local Plan (2014), the site is

identified as part of a wider Transitional Area whose acceptable uses include residential use.

The petitioner has applied for planning permission in principle for residential development

of the site.

[2]

The respondent ("the Council") is in the final stages leading to adoption of a

proposed new Renfrewshire Local Development Plan ("the proposed LDP"). On 9 March

2021, the Council's Communities, Housing and Planning Policy Board resolved to authorise

the Council's Head of Economy and Development to modify the proposed LDP in line with

various recommendations by reporters appointed by the Scottish Ministers to consider

representations in relation to the proposed plan. The effect of one of the modifications was

to remove the site from the list of sites allocated for residential development under the

Housing Land Supply policy.

[3]

In these proceedings the petitioner seeks reduction of that decision, on the ground

that it was taken by the Board without having been informed by the Council's officials that

the reporter's recommendation contained a material error, being based upon a conclusion

that the reporter could not reasonably have reached on the evidence considered in the

course of their examination. The Council denies that the Board's decision was based on any

error of fact or law, and as a preliminary issue contends that the petition is incompetent

because any challenge to the decision must be made by way of the statutory appeal

procedure.

The procedure for adoption of a local development plan

[4]

In terms of sections 18-20 of the Town and Country Planning (Scotland) Act 1997

("the 1997 Act"), when a planning authority publishes its proposed local development plan,

it must specify a deadline at least six weeks later for the making of representations in

relation to the proposed plan. After expiry of the deadline, the planning authority may

make modifications to the plan to take account of any timeous representations. If it decides

not to make modifications, it must submit the plan to the Scottish Ministers with a request to

appoint a reporter to examine the plan, which examination will include consideration of the

representations that have been made. After such investigation as he sees fit, the reporter

must prepare and submit to the planning authority an Examination Report, setting out and

giving reasons for his conclusions and recommendations, which may include

recommendations for modifications to the proposed plan.

[5]

On receipt of the Examination Report, the scope of actions available to the planning

authority is limited. It must make the modifications recommended by the reporter, except if

it declines to do so on certain grounds prescribed in the Town and Country Planning

(Grounds for Declining to Follow Recommendations) (Scotland) Regulations 2009 ("the

2009 Regulations"). The only ground relevant for present purposes is in regulation 2(c),

namely that

"the recommendation in respect of the modification is based on conclusions that the

appointed person could not reasonably have reached based on the evidence

considered in the course of the examination under section 19(3) of the Act".

[6]

The planning authority must then publish the proposed plan (whether or not

modified) and advertise their intention to adopt it. Unless the Scottish Ministers direct

otherwise, the planning authority will be free to adopt the plan when 28 days have elapsed

from the date of advertisement. On adoption, the plan is constituted as the local

development plan.

Challenge to the validity of a local development plan

[7]

Section 237(1) of the 1997 Act, so far as material, provides:

"Except as provided by this Part, the validity of

(a)

a strategic development plan or local development plan or any

alteration, repeal or replacement of any such plan, whether before or

after the plan, alteration, repeal or replacement has been approved or

adopted,

...

shall not be questioned in any legal proceedings whatsoever."

[8]

Section 238(1) (as amended) states:

"If any person aggrieved by a strategic development plan or local development plan

desires to question the validity of the plan on the ground--

(a)

that it is not within the powers conferred by Part II, or

(b)

that any relevant requirement of that Part or of any regulations made

under that Part has not been complied with,

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

Factual background

[9]

In the proposed LDP, the site was allocated for residential development. Various

representations were submitted seeking modifications in relation to the site, including an

objection to its allocation for housing. The allocation accordingly fell to be considered by the

reporter (in fact one of four reporters) appointed by the Scottish Ministers to examine the

plan. In its response to the objection to allocation of the site for housing, the Council stated:

"The site is included as a development site in the Adopted Local Development Plan

and although an area of open space is associated with the linear walkway alongside

the river, the entire site is not considered to be an area of formal open space. It is

accepted that areas of woodland, SINCs and open space are present in this area.

Detailed considerations including impact on local infrastructure and amenities and

loss of trees are currently being considered by the Council in the assessment of a

detailed Planning Application submitted by Persimmon Homes AD065 and a

planning permission in principle application submitted by the owner of the Erskine

Bridge Hotel AD066. A Developer Contribution will be required to address capacity

constraints at St John Bosco Primary.

While there are constraints to the development of this site, it is considered that these

require to be addressed by an appropriate layout and other development

considerations. The site should remain allocated for residential use within the

Renfrewshire Local Development Plan."

[10]

In the Examination Report dated 29 January 2021, however, the reporter

recommended modification. The reporter noted that the concerns raised over the principle

of developing the site for housing were made on the grounds of open space and loss of trees

together with the capacity of local roads and pressure on services to support the

development, and that although a significant part of the proposed allocated housing site was

identified as a Site of Interest for Nature Conservation (SINC) and continued to be so in the

proposed plan, the walk along the riverside would not be impeded by the allocation and

extensive open space was also identified and safeguarded by the proposed plan nearby the

site and throughout the Erskine area. He continued:

"...

The council has forwarded a copy of its decision notice for planning

application 19/0184 (dated 13 November 2020). That planning application directly

relates to the site allocated in the proposed plan . The application was refused by the

council because of the impacts on the SINC, biodiversity and protected species. The

development of this particular site was also seen by the council as breaking an

existing wildlife corridor and removing valued woodland. In addition, part of the

site is considered to be adjacent to uses that may be noisy.

Given the nature of the reasons for refusal, I take the decision notice to be the

council's considered and up-to-date view on the principle of housing development

on the site. The reasons for refusal clearly conclude that an allocation of housing of

the scale proposed is not considered suitable.

10.

... (F)or the reasons set out above I find that the shortcomings in developing

this site, taken together with the council's latest view on the site, are such that it

should not be allocated for residential development. Its removal from the proposed

plan would not have a significant impact on the overall supply of land necessary to

meet these requirements. This is because our recommendations on all sites allow for

a sufficient land supply. Therefore, I recommend a modification which would

remove the site from the plan."

[11]

On 9 March 2021, Mr Colin Campbell, the petitioner's planning consultant, sent an

email to Ms Sharon Marklow, a member of the Council's Development Plans and Local

Housing Strategy Team, stating:

"As you know I represent Cosmopolitan Hotels who have an interest in the Erskine

Riverfront site (RFRF1003) that the Reporter has recommended should be deleted.

My clients can't see how the Reporter could possibly reach the conclusions he did

based on the evidence to the Examination.

His recommendation is based on flawed conclusions in paragraphs 8 to 10 on

page 228 of the Examination Report and must be rejected by the Council."

[12]

The Examination Report was considered at two meetings of the Council's

Communities, Housing and Planning Policy Board. On each occasion the Board was

provided with a report by the Council's chief executive, recommending acceptance of the

recommendations in the Examination Report. At the first meeting, on 16 March 2021, the

Board voted to reject the report. The matter was called in by the Council's Leadership Board

who sent it back to the Communities, Housing and Planning Policy Board with an

instruction to state clearly which of the reporter's modifications they agreed with and which,

if any, they did not wish to accept and why. In his report dated 14 April 2021, the chief

executive advised the Board that:

"... The planning authority ... can only decline to make the recommended

modifications to the proposed LDP in the exceptional circumstances where there are

specific reasons for not doing so, as set out in [the 1997 Act and the

2009 Regulations]".

Board members were provided with a table listing the reporter's recommended

modifications, including the recommendation to remove the site from Policy P2 Housing

Land Supply Sites. The Examination Report itself was one of the background papers for the

meeting. No reference was made in the chief executive's report to any representations

received by the Council's officials in relation to the reporter's recommendations. In

particular, no reference was made to Mr Campbell's email.

[13]

At its meeting on 14 April 2021, the Board decided to accept all but three of the

reporter's recommended modifications and authorised the Head of Economy and

Development to notify the Scottish Ministers of the Council's intention to adopt the Local

Development Plan as so modified. In the course of the meeting there was discussion of

various representations that had been submitted directly to members of the Board. There

was no discussion of the reporter's recommendation in relation to the site. It was not one of

the three that the Board resolved not to accept. Mr Campbell's email was not drawn to the

Board's attention.

The petitioner's contention

[14]

The petitioner's contention is that the reporter's conclusions at paragraphs 8 to 10

(above) were flawed. A decision on a planning application could not change the settled view

of the Council on a development plan allocation. Different factors required to be considered

and a different process required to be followed when deciding whether to remove a site

from a proposed local development plan. A change in the settled view could not be made

by implication. The petitioner was entitled to expect the Council's officials to consider the

email sent to them and to direct the Board's attention to the issue raised. If the Board had

considered paragraphs 8 to 10 properly, it would have realised that the basis for the

recommended modification was flawed. The failure to consider them and to reconsider the

modification was irrational and unreasonable. The decision of the Council was outwith its

powers.

Competency of the application for judicial review

[15]

On behalf of the Council it was submitted that the present application was

incompetent, being precluded by the terms of section 237(1) of the 1997 Act. The decision

under challenge related to the Council's actings in the context of section 19(10). The

petitioner's primary grievance appeared to be with the reporter's recommendation in

relation to the site. The Board's decision to accept the recommendation was a step in the

procedure required by section 19(10). As such, the statutory appeal procedure provided by

section 238 was applicable, and challenges by other means were excluded. The statutory

procedure provided the petitioner with an appropriate remedy; there was no substantive

difference from the remedy that could be obtained by judicial review. In either case, a

decision by the court in favour of the petitioner would result in the allocation of the site

being returned to the Board for further consideration. There were sound policy reasons why

challenges to the validity of a local development plan were prohibited until after it had been

adopted.

[16]

On behalf of the petitioner, it was submitted that the present application was

competent. The petitioner was not challenging the validity of the plan, but rather the

validity of the Council's actions and decision. Section 238 did not provide a remedy. It

could not add the site to the list of Housing Land Supply sites. Quashing the plan or part of

it would not be appropriate as that would remove the site from being designated as a

transitional area. There was no further opportunity for the matter complained of to be

considered by the Council. The judicial review procedure would not cause substantial delay

in the adoption of the plan.

[17]

In my opinion the present application is precluded by the prohibition in section 237.

The purpose of the application is to challenge the validity of the proposed local

development plan in so far as it applies to the site, and it therefore falls squarely within

section 237(1)(a). The basis of the challenge is that there was a flaw in the decision-making

process, but the challenge is to the validity of that part of the plan. Equally, the petitioner's

complaint falls clearly within the scope of section 238(1), which permits an application to the

Court of Session by any person aggrieved by a local development plan on the ground that it

is not within the powers conferred by Part II of the 1997 Act. The petitioner's contention is

that the decision of the Board to accept the reporter's recommended modification in relation

to the site was not within the Council's powers because it had failed to give proper

consideration to the allegedly flawed basis of the recommendation. That is in substance an

objection to the validity of the plan, as regards the site, on a ground permitted by

section 238.

[18]

I find support for this view in the decision of the Inner House in Eadie Cairns Ltd v

Fife Council 2013 CSIH 109. That case concerned an application under section 238 for an

order quashing a sentence in a recently adopted local development plan which provided in

relation to a particular site that, should an extant outline planning permission remain

unimplemented and expire, the site should remain undeveloped and revert thereafter to

greenspace. The applicants successfully challenged the Council's failure to give reasons for

its refusal to modify the proposed plan by removing this proviso prior to adoption and the

failure of reporters in an Examination Report to give intelligible reasons for supporting the

Council's proposal. It was suggested by the Council (without being pressed as an issue of

competency) that the application came too late in the planning process because the

applicants could have challenged the lack of reasons by judicial review when they became

known to them. On this point Lord Justice Clerk Carloway observed (at paragraph 45):

"Whether such a review would have been competent, in the absence of exceptional

circumstances, may be doubted. The issue of reasons by both the respondents and

the reporters formed part of the process leading up to the adoption of the local plan.

It is that adoption which can be made the subject of a statutory application under

section 238 of the 1997 Act. Prior to such adoption, there would at least be a question

of whether judicial review was open to the applicants given the existence of an

alternative statutory remedy. What is certainly established is that, in terms of the

statute, a challenge at this stage on the grounds of procedural irregularity, by means

of a section 238 application, is competent."

These observations may be applied mutatis mutandis to the present case. The making of

recommended modifications by the reporter and the presentation of those recommendations

to the Board formed part of the process leading up to the intended adoption of th e proposed

LDP, and it is that adoption that can be made the subject of a statutory application under

section 238. I find no exceptional circumstances in which judicial review lies open as an

alternative.

[19]

The petitioners contended that the present case was analogous to well-known

authorities such as Lafarge Redland Aggregates Ltd v Scottish Ministers 2000 SLT 1361 and Lakin

Ltd v Secretary of State for Scotland 1988 SLT 780, in which challenges proceeded by way of

judicial review. In my view those authorities are distinguishable. Lafarge Redland concerned

a failure to determine a planning application within a reasonable time, as well as issues of

procedural impropriety. Lakin concerned breach of legitimate expectation and procedural

impropriety. In each case no effective remedy was provided by the statutory application

procedure.

[20]

In contrast, section 238 provides an effective remedy for the petitioner. Following

upon adoption of the new plan, it will be open to the petitioner to apply for an order

quashing the relevant part of the plan. In the circumstances of the present case that may

mean quashing the designation on a map of the site for transitional use. That does not, of

course, as the petitioner pointed out, achieve its goal of restoring the pre-modification

allocation for residential development, but that would not have been the effect of reduction

of the Board's decision either: the matter would simply have returned to the Board for

reconsideration. The effect of quashing part of the plan was described in Eadie Cairns at

paragraph 44 as leaving the site as "white space" in the development plan, but subject to the

planning background leading up to the (on this hypothesis) flawed decision. A fuller

explanation of the effect was given by Lord Malcolm in Hallam Land Management Ltd v City of

Edinburgh Council 2011 SLT 965 (approved in Tesco Stores Ltd v Aberdeen City Council

2013 SCLR 71 at paragraph 33). Declining to follow English authority that the process had to be

started afresh in relation to the quashed part of the plan, Lord Malcolm explained (at

paragraph 26):

"... This ignores the alternative possibility that the court can quash the final step and

leave what follows to the discretion of the authority, to be exercised in accordance

with the circumstances of the case. In particular the authority can consider any

representations from the parties and then decide whether it is necessary to start

again from the beginning or from some later stage in procedure, including simply a

fresh reconsideration of the inquiry report. In other words the authority can rewind

to the logical position ..."

In the present case, the logical position, if the petitioner were to present a successful

application under section 238, would appear to be to rewind to the Board's consideration of

the reporter's recommendations in relation to the site, which is, in effect, the result that the

petitioner is attempting to obtain by its application for judicial review. However, as

Lord Malcolm observed, it would be a matter for the discretion of the Council.

[21]

I should add that this outcome appears to me to be in accordance with sound public

policy. It allows the Council to proceed to adopt the proposed LDP. That is a matter of

importance to the many persons with an interest, financial or otherwise, in other land within

the area covered by the plan. The petitioner's entitlement to challenge the particular aspect

of the plan by which it is aggrieved is preserved. If, on the other hand, the Board's decision

were to be reduced, the process of adoption of the plan as a whole would be delayed.

Although in the circumstances of the present case the delay might not be lengthy, that may

not always be so if the complaint related to a procedural flaw that had occurred early in the

adoption process.

[22]

For these reasons the petition is incompetent and must be dismissed.

The merits of the petitioner's challenge

[23]

As I have held that the petition is incompetent, it is not strictly necessary for me to

address the merits of the petitioner's challenge to the Board's decision. If after adoption of

the plan by the Council the petitioner presen ts an application under section 238, any view

that I express in these proceedings will be of no consequence. However, and only in case the

present application is taken further, I shall express my view briefly.

[24]

It is implicit in the petitioner's challenge to the Board's decision (a) that the reporter's

recommendation was flawed, and (b) that the Board might have reached a different decision

if it had been advised in the chief executive's report that it was open to the Board, in terms of

the 2009 Regulations, to decline to make the recommended modification because it was

based on conclusions that the reporter could not reasonably have reached based on the

evidence considered in the course of his examination.

[25]

In an affidavit produced for the purposes of these proceedings, Ms Marklow, who

participated in the drafting of the report prepared for the Board meeting on 14 April 2021,

stated that after publication of the Examination Report the Council received over 200 emails

containing enquiries and representations in relation to the proposed LDP. Some of these

were also sent directly to Board members. The Council officials took the view that none of

these communications, including Mr Campbell's email, contained any evidence that raised

grounds to challenge the reporters' recommendations, and therefore that there was no need

to report any of it to the Board. The officials were moreover satisfied, in relation to each of

the recommendations and conclusions in the Examination Report, that the findings were

acceptable and that no substantive evidence had been presented that the reporters had made

an error or reached an unreasonable conclusion that would justify a decision to decline to

follow them.

[26]

As regards the recommended modification with which these proceedings are

concerned, the officials were, in my opinion, entitled to reach that conclusion. The reporter's

decision to remove the site from allocation for residential development, with the effect of

leaving it as part of a transitional area with housing as one possible use, was in substance an

exercise of planning judgement. It was expressly based on three considerations:

shortcomings in developing the site, the reporter's perception of the Council's up to date

view as evidenced by its refusal of the Persimmon Homes planning application, and the

adequacy of land supply at other sites. Only the second of these considerations is

challenged. Whilst I accept the petitioner's contention that different considerations apply to

deciding a planning application and a local plan allocation respectively, it does not

necessarily follow that the reporter was wrong to conclude that the refusal of this

application, details of which had been provided to the reporter by the Council, was

indicative of the Council's up to date thinking with regard to the site more generally. The

words "an allocation of housing of the scale proposed", while clearly referring to the

particular application that had been refused, could reasonably be taken as an indication that

the Council would not be minded to grant permission for other proposed developments of

similar scale, thereby limiting the contribution that the site could make to housing land

supply. Although Planning Circular 6/2013 sets out (at paragraphs 72 and 78) the Scottish

Ministers' expectation that a proposed plan should represent the planning authority's settled

view as to what the final adopted content of the plan should be, this cannot of itself preclude

a change of view on the part of the Council in the course of the adoption process.

[27]

In any event, the Council was best placed to judge whether the reporter had made a

factual error in concluding that the decision notice was indicative of its own considered and

up-to-date view on the principle of housing development on the site. If that had been

wrong, one would have expected the Council officials to draw the matter to the Board's

attention. Having regard also to the confirmation in Ms Marklow's affidavit that the

officials regarded the reporter's findings as acceptable, I conclude that no error on the part of

the reporter that would have entitled the Board to decline to make the recommended

modification has been demonstrated. It follows that no unfairness or procedural

impropriety was caused by the officials' decision not to draw the petitioner's representation

to the attention of the Board.

[28]

I do not regard it as material that Board members took account of other

representations submitted directly to them. It is hard to see how they could have been

prevented from doing so, provided that their decision -making process remained compliant

with the 1997 Act and the 2009 Regulations. The issue is simply whether a possibility of

declining to make the recommended modification in relation to the site required to be

drawn to their attention. For the above reasons, it did not.

Disposal

[29]

I shall sustain the respondent's first plea in law (a plea to competency), repel the

petitioner's pleas, and dismiss the petition.

Scottish Court of Session Decisions