Scottish Court of Session Decisions

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

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

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

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

THE REPORT TO THE RESPONDENTS' COMMITTEE

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

At paragraph 3.1 of the report the following is recorded:

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

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

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

Paragraph 4.2 of the report goes on to state:

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

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

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

At paragraph 5.2 the following is stated:

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

The report continues at 5.3 as follows:

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

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

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

At paragraph 5.7 the following appears:

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

Paragraph 5.9 and 5.10 are to the following effect:

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

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

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

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

SUBMISSIONS FOR THE PETITIONERS

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

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

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

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

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

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

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

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

Government Guidance

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

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

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

The report then referred to local plan policies and stated:

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

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

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

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

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

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

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

Later in the same section the following appears:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paragraph 39 of SPP8 provides:

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

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

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

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

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

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

"Development:

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

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

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

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

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

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

Paragraph 26 continues:

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

Paragraph 27 then states:

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

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

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

Paragraph 35 then states:

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

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

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

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

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

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

Paragraph 3 of the same Annex states:

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

Paragraph 4 provides:

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

Paragraph 5 then provides:

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

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

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

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

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

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

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

At paragraph 13 of the affidavit Mr Gregor depones:

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

At paragraph 14 Mr Gregor continues:

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

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

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

SUBMISSIONS OF RESPONDENTS

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

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

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

SUBMISSIONS FOR THE INTERESTED PARTY

REPLY FOR PETITIONERS

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

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

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

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

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

Decision

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

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

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

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