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Judgments - Land Securities Group plc (Appellants) v. Scottish Ministers and others (Respondents) (Scotland)

HOUSE OF LORDS

SESSION 2005-06

[2006] UKHL 48

 

 

OPINIONS

OF THE LORDS OF APPEAL

for judgment IN THE CAUSE

 

Land Securities Group plc (Appellants)

v.

Scottish Ministers and others (Respondents) (Scotland)

 

Appellate Committee

 

Lord Nicholls of Birkenhead

Lord Scott of Foscote

Lord Rodger of Earlsferry

Lord Walker of Gestingthorpe

Lord Mance

 

Counsel

Appellants:

Heriot Currie QC

Jonathan Lake

(Instructed by Semple Fraser LLP)

First Respondents:

Gerry Moynihan QC

James Wolffe

(Instructed by Solicitor to the Scottish Executive)

Second Respondents:

Richard Keen QC

James Mure

(Instructed by Simpson & Marwick)

 

Hearing dates:

11 and 12 july 2006

 

on

WEDNESDAY 25 October 2006

 

HOUSE OF LORDS

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

Land Securities Group plc (Appellants) v. Scottish Ministers and others (Respondents) (Scotland)

[2006] UKHL 48

LORD NICHOLLS OF BIRKENHEAD

My Lords,

    1.  I have had the advantage of reading in draft the speech of my noble and learned friend Lord Rodger of Earlsferry. I agree that, for the reasons he gives, this appeal should be dismissed.

LORD SCOTT OF FOSCOTE

My Lords,

    2.  Having had the advantage of reading in advance a draft of the opinion of my noble and learned friend Lord Rodger of Earlsferry I find myself in full agreement with the reasons given by Lord Rodger for dismissing this appeal and there is nothing I can usefully add.

LORD RODGER OF EARLSFERRY

My Lords,

    3.  If you go from Motherwell to Wishaw or from Motherwell to Carfin, about a quarter of a mile from the town centre of Motherwell you will see a vast cleared area roughly the size of Monaco, still bearing the scars of its industrial past. It is the site of the former Lanarkshire and Ravenscraig steelworks. Steel production there stopped as long ago as 1992 and since then, while much has been done to decontaminate the land and a spine road has been built across it, the site ("Ravenscraig") has stood empty and undeveloped, blighting the surrounding area.

    4.  Naturally, considerable thought has gone into how Ravenscraig might be redeveloped. Indeed the matter has been regarded as of not merely local but national importance. Not surprisingly, it featured prominently in various aspects of the Glasgow and the Clyde Valley Joint Structure Plan 2000 which the Joint Committee, the second respondents, submitted to the Scottish Ministers, the first respondents, for their approval on 19 July 2000. The Plan was eventually approved, subject to certain modifications, on 26 April 2002 and became operative on 1 May 2002.

    5.  The Structure Plan written statement identified a number of "Metropolitan Flagship Initiatives" which were distinguished by their importance and by the scale of the joint action required: para 7.29. These developments would be, it said, the main foci for the longer term development of the Structure Plan area and would be of national significance. In Joint Policy Commitment 1, Ravenscraig-Motherwell-Wishaw was identified as an area for which priority was to be given to the joint promotion of its regeneration. In para 7.32 this area was said to contain a range of potential projects that should be promoted as a Metropolitan Flagship Initiative. In particular, Ravenscraig would provide an opportunity to create a more coherent urban structure, a sense of place and a quality of life within Lanarkshire, for example, by creating a core economic development area with an industrial and business park, providing new residential neighbourhoods with over 3000 new homes, improving transport links, providing a major sports and recreational facility and "testing the potential for creating a new town centre for the area linked to the restructuring of Motherwell and Wishaw."

    6.  After the Structure Plan had been submitted to the Scottish Ministers, but before they had given their approval, on 28 June 2001 a partnership of Wilson Bowden Developments Ltd, Scottish Enterprise Lanarkshire and the owners, Corus, lodged a planning application relating to the site with North Lanarkshire Council. The application was for a mixed use development, including a new town centre with provision for up to 57,600 sq m gross of retail floorspace, together with offices and other services, food and drink, major leisure facilities, a hotel, residential and community facilities. The proposed retail floorspace greatly exceeded what would have been required to meet the needs of the roughly 3,500 new homes which the application envisaged. The retail element in the proposed development was clearly designed to attract shoppers from surrounding communities.

    7.  A year later, in June 2002, the reporter appointed on behalf of the Scottish Ministers granted a wholly unrelated planning permission for the refurbishment, redevelopment and expansion of Motherwell Town Centre. This included provision for retail space.

    8.  Some of the objectors to the partnership's planning application argued that in one major respect it involved a departure from the policy in the Structure Plan. Schedule 6(c)(ii) of the Plan requires developers to apply a "sequential approach" to retailing and other town centre uses. In other words, preference is to be given to developments in town centres. The Plan emphasises that it is the responsibility of developers to demonstrate that they have applied the sequential approach, by showing that town centre options have been thoroughly assessed before edge-of-centre or out-of-centre locations are considered. The written statement, paras 11.36 and 11.38, explains that the aim behind the sequential approach is to promote the vitality and viability of the network of town centres which is essential to the economic success of the area and the wellbeing of its people. For these reasons, the principle that town centres, as opposed to out-of-centre locations, should be preferred for new developments is said to be central to the Metropolitan Development Strategy.

    9.  When the Structure Plan was being prepared, however, as para 11.58 shows, consideration had already been given to including retailing and other town centre uses as part of the Flagship Initiative for Ravenscraig. It was felt that there was capacity for increased retail floorspace within the Motherwell and Wishaw retail catchment areas and a need to consider the quality and distinctiveness of the retail facilities. The availability of Ravenscraig was thought to provide an opportunity for redevelopment of a scale and character that should stimulate regeneration throughout a wider area. Indeed, as paras 11.59 and 11.60 show, the Joint Committee were aware of the possibility of a planning application along the lines of the one which the partnership eventually made in June 2002:

    "11.59  A proposal has been promoted for the development of a new concept in leisure and retailing combined with other town centre functions, and incorporating 58,000 sq m of comparison retail floorspace, as well as major leisure facilities, with the aim of creating a substantially more attractive retail facility than is currently available. This would be linked to the existing centres of Motherwell and Wishaw where measures would be required to manage the impacts of a retail centre at Ravenscraig. The relationship to the potential redevelopment and extension of Motherwell Town Centre, which is likely to accord with policy, would also need to be evaluated. The Ravenscraig proposal requires an evaluation of its marketability retail, environmental and transport impact assessments.

    11.60  When North Lanarkshire, in consultation with the Structure Plan Joint Committee, has considered the full implications of the retail potential of Ravenscraig, it may be appropriate to expedite resolution of the strategic planning issues involved by an Alteration to the Structure Plan."

    10.  So, when, after the Structure Plan was approved, North Lanarkshire Council actually had to confront the question of the scale of the retail floorspace in the partnership's planning application, as para 11.60 of the Plan envisaged would happen, they consulted the Joint Committee. The Council and the Joint Committee did further work to evaluate the potential for creating a new town centre at Ravenscraig. Then on 15 January 2003 the Joint Committee decided to seek approval of an Alteration of the Structure Plan which would add Ravenscraig to the network of town centres in schedule 1(a) and would provide the strategic context for its inclusion in the Local Plan. On 25 April 2003 the Joint Committee submitted the First Alteration to the Scottish Ministers for their approval under section 10(1) of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). By a decision letter dated 24 November 2003 the Scottish Ministers approved the Alteration with effect from 26 November 2003. Two aspects of the Alteration must be mentioned.

    11.  First, Part 7 of the Structure Plan deals with Strategic Development Priorities. At para 7.1 the written statement explains that Strategic Policy 1 sets out the Strategic Development Locations for future investment in urban and rural areas and that those locations are areas where major physical change will occur. They are said to be central to the successful implementation of the Strategic Vision and some are integral to the Flagship Initiatives. Strategic Policy 1 provides in part:

    "Priority shall be given to investment in the following locations (as identified on the Key Diagram) in order to maximise the scale of urban renewal, in particular to support the Metropolitan Flagship Initiatives identified in Joint Policy Commitment 1, and to sustain rural communities:

    (a)  Town Centres (Schedule 1(a));

    (b)  Urban Renewal Areas (Schedule 1(b))…."

In the original version of the Plan, schedule 1(a) lists Motherwell/Wishaw among the Town Centre Renewal Priorities and Motherwell and Wishaw as town centres to be safeguarded through structure and local plans. Significantly, in that original version Ravenscraig is not included in the list of town centres in schedule 1(a). But the Alteration adds Ravenscraig to that list and inserts a new para 7.8 in the written statement:

    "Consideration has been given to a proposal for a new Town Centre in North Lanarkshire as a component of the regeneration proposals for the former Ravenscraig Steel Works site. A proposal, therefore, for the development of a new Town Centre at Ravenscraig, including additional retail floorspace, will help meet identified deficiencies in the existing retail provision and Town Centre facilities as well as helping the renewal of the Ravenscraig site and regeneration of this part of North Lanarkshire. The Supplementary Written Statement (Ravenscraig-Strategic Planning Role) sets out the basis upon which a new Town Centre could be supported, including the need for any proposal to be linked, as necessary, to a planned restructuring of the existing centres of Wishaw and Motherwell."

    12.  The thinking behind the change is explained in the supplementary written statement. Paras 10 and 11 are to this effect:

    "10.  The redevelopment of Ravenscraig has the potential to create a significant new community with the potential for up to 10,000 people and 12,000 jobs. This scale of activity needs to be planned around a new centre to provide a focus for the new community and employment areas, create a sense of place and character for the area and to facilitate a more sustainable form of transport provision. Such a strategy which integrates primary land uses of home and work supported by services and local activities will result in a more integrated, balanced and sustainable urban development.

    11.  The outstanding issue that delays further progress in the implementation of the nationally agreed priorities for the area is the testing of the potential for creating a new Town Centre as part of the overall development. The components of the Town Centre would be a mixture of the following elements and must be developed in phase with the primary land uses on the site: … "

The list of the components of the new town centre at Ravenscraig includes retail and leisure facilities, community facilities, including cultural, religious, recreational and educational, and integrated residential uses, a railway station and bus routes and related interchange facilities.

    13.  The supplementary written statement continues, at paras 12 and 13:

    "12  The potential form and scale of the centre however needs to be related to the network of existing town centres which serve the area, in particular Motherwell and Wishaw. These two centres do provide local functions but do not provide a high quality and range of services nor quality of environment. Neither centre serves the higher order needs of the communities in a way that would be expected for the scale of population in the area and their relative distance from Glasgow City Centre.

    13  The limited retail provision results in a disproportionate number of the community having to travel longer distances to meet their needs. This problem has increased over the last ten years and is reflected in low levels of investment, the range of shops and rental levels. It is also considered that the potential of Motherwell as a business centre is underdeveloped, given its location on the main line rail network and the scale of the area served. Wishaw also requires to improve its emerging focus as a local convenience centre with a greater residential function."

    14.  For North Lanarkshire Council, which had been presented with the partnership's planning application, however, the most important element in the Alteration was the deletion of paras 11.58 - 11.60 in the existing Plan and their replacement by three new paragraphs in these terms:

    "11.58  Consideration has been given to retailing and Town Centre uses as part of the Flagship Initiative, in addition to industry, business, housing, leisure and environmental improvement…. There is capacity for increased floorspace within the Motherwell and Wishaw retail catchment areas, and a need to consider the quality and distinctiveness of the retail facilities. The availability of the Ravenscraig site provides an opportunity for redevelopment of a scale and character that should stimulate regeneration throughout a wider area. These matters are set out in the Supplementary Written Statement (Ravenscraig - Strategic Planning Role).

    11.59  A planning application has been promoted for the development of a new concept in leisure and retailing combined with other Town Centre functions, and incorporating 58,000 sq m gross of comparison retail floorspace, as well as major leisure facilities, with the aim of creating a substantially more attractive retail facility than is currently available. This would be linked to the existing centres of Motherwell and Wishaw where measures would be required to manage the impacts of a retail centre at Ravenscraig. The relationship to the potential redevelopment and extension of Motherwell Town Centre, which is likely to accord with policy, would also need to be evaluated. There would also require to be evaluation of the levels of impact on other centres, in particular, Easterhouse and Parkhead Town Centres in Glasgow and Hamilton in South Lanarkshire. Additionally, this Ravenscraig proposal requires an evaluation of its marketability, retail, environmental and transport impact assessments. In this context, therefore, the outstanding objections to this proposal require to be addressed in relation to and are not prejudiced by the recognition of a strategic need for a Town Centre at Ravenscraig, as set out in Strategic Policy 1(a).

    11.60  The Structure Plan will support the creation of a new Town Centre at Ravenscraig to include retail floorspace and a range of other community facilities and services. Retail provision of up to 6,500 sq m net to serve the new community would accord with the Plan. However, in terms of the overall scale of the centre, comparison floorspace to serve a wider subregion (including the needs of the new community) of about 30,000 sq m net would be acceptable. This is however subject to its being integral to and controlled through a comprehensive redevelopment plan for the Ravenscraig site. The evaluation of any planning proposal over 6,500 sq m net shall take into account the requirements set out in paragraph 19 of the Supplementary Written Statement (Ravenscraig - Strategic Planning Role) including complementary action for Motherwell and Wishaw Town Centres. Such action will require to be confirmed through Section 75 or other legally binding arrangements. It will be essential, also, that the development of any retail provision should be linked through programming, to the phased development of a comprehensive redevelopment plan for the Ravenscraig area. There should be continuing priority given by stakeholders in support of other Lanarkshire Town Centres, in particular Hamilton, in the light of any Ravenscraig proposal and consideration given to the impacts on neighbouring centres within Glasgow, namely Easterhouse and Parkhead."

    15.  Once armed with the Scottish Ministers' approval of this alteration to the Structure Plan which was designed to support the creation of a town centre with substantial retail floorspace at Ravenscraig, the North Lanarkshire Council felt that they were now in a position to consider the partnership's planning application. On 3 March 2004 the Planning and Environment Committee decided that planning permission for the development should be granted - despite the fact that, as they knew, a number of companies, including the appellants, had appealed to the Court of Session against the Scottish Ministers' decision to approve the Alteration and the appeal was due to be heard by the Inner House at the beginning of September. In proceedings brought by the Standard Life Assurance Company and Land Securities Group plc, on 29 July 2004 Lord Carloway reduced the Committee's decision to grant planning permission and interdicted the Council from issuing any planning permission in pursuance of their purported decision of 3 March.

    16.  The appeal against the Ministers' decision under section 238(1) of the 1997 Act was duly heard by an Extra Division (Lord Kirkwood, Lord Marnoch and Lady Cosgrove) and on 30 March 2005 they refused it: 2005 CSIH 33. The appellants then lodged their appeal to this House. Nevertheless, on 11 May 2005 North Lanarkshire Council announced urbi et orbi that work on the billion pound Ravenscraig project had moved another giant step forward following the Planning and Environment Committee's decision to release the planning permission for the development. Despite this, the House was told that the Council have not actually granted planning permission to the partnership.

 
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