Land Securities Group plc (Appellants) v. Scottish Ministers and others (Respondents) (Scotland)
17. While a variety of grounds was argued before the Court of Session, the appeal to the House relates solely to the question whether, in reaching their decision, the Scottish Ministers correctly interpreted and applied their own policy on the sequential approach to potential town centre developments, set out in NPPG 8, as revised in 1998, on Town Centres and Retailing. Since NPPG 8 is central to the appeal, I must set out the relevant aspects.
18. As para 1 tells the reader, NPPG 8 defines the factors that the Secretary of State (now the Scottish Ministers) will have in mind when considering policies and development proposals. Planning authorities are also expected to take its contents into account in preparing their development plans and in undertaking their development control responsibilities. Among the broad policy objectives set out in para 7 is sustaining and enhancing the vitality, viability and design quality of town centres as the most appropriate location for retailing and other related activities. That policy is reflected, of course, in various parts of the Structure Plan, especially in its Strategic Vision.
19. Paras 8 and 9 flesh out the general principles, while paras 10-15 set out the sequential approach which has given rise to the issue in this appeal:
Para 15 adds:
By "out-of-centre" is meant a location that is clearly separate from a town centre but within the urban area, including programmed extensions to the urban area in approved or adopted development plans. By contrast, "out-of-town" means development on a green field site, or on land not clearly within the current urban boundary.
20. Paras 31 and 32 are in these terms:
21. Under the heading "assessing new developments", paras 44 and 45 provide inter alia:
22. The principal submission of Mr Currie QC on behalf of the appellants was that, when they were deciding whether to approve the Joint Committee's Alteration to the Strategic Plan, the Scottish Ministers had to take account of their declared policy in NPPG 8 that, when planning authorities consider there to be a requirement for a new development, development plan policies and proposals should be consistent with the sequential approach in para 12 of the NPPG. It was important that Ministers should stick to their declared policy because companies like the appellants had invested in various existing town centre sites on the basis that the sequential approach would be followed and priority given to development in town centres. In fact, however, when AWG Developments Ltd had raised the need for the sequential approach to be applied by the Scottish Ministers when deciding whether to approve the Alteration, the Scottish Ministers had replied, in Annex A to their decision letter, that "The sequential approach, as set out in NPPG 8, is not directly applicable to the creation of a new town centre." Counsel for the Scottish Ministers accepted that "directly" added nothing to the statement of their view.
23. Mr Currie submitted that this reply showed that the Ministers had misinterpreted their policy and so had failed to take into account a relevant and material consideration which ought to have been taken into account. It was common ground that, in line with the well-known passage in the opinion of Lord President Emslie in Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, 347 - 348, if the Scottish Ministers were indeed bound to apply the sequential approach but had not done so, then their decision to approve the Alteration would be ultra vires. Only rather faintly did Mr Moynihan QC for the Ministers suggest that, in an exercise of discretion, the House might nevertheless decide not to quash the decision.
24. On behalf of the Joint Committee Mr Keen QC put forward a somewhat sophistical argument in reply to the appellants' argument. The sequential approach in NPPG 8 had to be applied when a planning authority was considering a proposal for retail or similar development outside a town centre. So, if the Alteration had simply proposed a retail development at Ravenscraig, it would admittedly have been outside any town centre and the Scottish Ministers would have had to apply the sequential approach in deciding whether to approve that aspect of the Alteration. But, in fact, the development being proposed included a town centre and any proposed retail development would take place in that town centre. So the retail development was one to which priority should indeed be given in accordance with the sequential approach.
25. I would reject that argument. It seems to me that Mr Currie was basically correct when he said that the sequential approach in NPPG 8 was designed to afford support to existing town centres. That is implicit in the broad policy objective of "sustaining and enhancing" the vitality, viability and design quality of town centres: para 7. The same goes for the reference in para 8 to "sustaining" their vitality and viability which is said to depend on "continuing investment in new schemes and refurbishments". Para 9 talks of "protecting and enhancing" town centres. And in para 12 the sequential approach itself requires that first preference should be for town centre sites, where sites or buildings suitable for conversion are available - clearly, sites in existing town centres are contemplated. In short, the policy in NPPG 8 is that existing town centres should be supported, rather than that developments should be encouraged in other areas. Whether that policy puts too much emphasis on protecting what exists rather than supporting new ventures is purely a matter of planning judgment and not a matter for the court. As long as the policy in NPPG 8 stands, however, its aim is to protect existing town centres from being undermined by developments in other parts of the town or city or outside the town or city. That being so, the mere fact that the retail development at Ravenscraig would take place in a projected town centre would not mean that it was automatically to be given priority by the application of the sequential approach in para 12 of NPPG if that approach had to be followed.
26. So the critical question is indeed whether the Scottish Ministers had to follow the sequential approach in para 12 of NPPG 8 when considering whether to approve the Alteration. Of course, if NPPG 8 did not apply at all to their consideration of the Alteration, then the sequential approach in para 12 would not apply either. But counsel for the Ministers did not advance that submission. Even on the assumption that various other aspects of NPPG 8 did indeed apply, however, it does not necessarily follow that the Ministers were bound to apply the sequential approach in para 12 of their policy if it was not actually suited to, or operable in, the exercise in which they were engaged.
27. Here what the Ministers were being asked to approve was an Alteration which did not simply envisage a large retail development at Ravenscraig. On the contrary, what was envisaged was a many-faceted development. As had already been explained in para 7.32 of the original Structure Plan, Ravenscraig was seen as furnishing an opportunity to create a more coherent urban structure, a sense of place and a quality of life within Lanarkshire and to deliver major land renewal. This was to be achieved in a variety of ways, such as 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." So the town centre, whose potential still remained to be tested, was just one element, though an important element, in that larger scheme. Similarly, as I have already explained in para 12 above, the town centre was itself to be composed of a mixture of elements, including retail and leisure facilities, community facilities, such as cultural, religious, recreational and educational facilities, integrated residential uses, a railway station, bus routes and related interchange facilities. Having done further work, especially on the retail aspects, after the Structure Plan was approved, the Joint Committee now wanted to alter it so that it would support the town centre element, including the retail floorspace, in that larger development. As Lord Marnoch said in para 88 of his opinion in the Inner House, the designation of the new town centre at Ravenscraig is a unitary concept which proceeds upon a number of wide-ranging planning judgments.
28. Mr Currie concentrated, of course, on the retail element. The Alteration would lend support to a very substantial retail development on what was, in reality, he said, an out-of-centre site no distance at all from the town centre of Motherwell. Para 15 of the supplementary written statement acknowledged that, depending on its size, the development would have an impact on Motherwell and Wishaw and perhaps on other town centres in Lanarkshire. If the Scottish Ministers had duly applied their policy on Town Centres and Retailing in NPPG 8, they would have followed the sequential approach and would have given priority to sites in these existing town centres for the retail development. Indeed, their reporter had granted planning permission for a retail development in Motherwell town centre as recently as June 2002. In deciding that the sequential approach in NPPG 8 did not apply to what was so plainly an out-of-centre retail development, the Ministers had misinterpreted their policy in a most material respect.
29. Had the retail element stood alone, there would have been no answer to Mr Currie's argument that the requirement to follow the sequential approach was a policy which would have been relevant to the Scottish Ministers' consideration of the Alteration. They could, of course, still have decided to depart from their policy and not apply the sequential approach in deciding whether to approve the Alteration, but they would have had to give reasons for doing so. In fact, however, the retail element does not stand alone: it is an integral part of a scheme for the creation of a new town centre, which is in its turn part of a larger scheme for the redevelopment of the whole area. In that situation the appellants' argument is unrealistic since the sequential approach simply cannot be sensibly applied to the issue which the Scottish Ministers had to consider, viz an alteration to the Structure Plan which would support the development of a town centre at Ravenscraig. The sequential approach presupposes that the development in question is simply a retail or similar development which could take place in an existing town centre and for which the town centre should therefore have priority. Or else, if the development is too large, it can be broken down so as to make a better fit with existing developments in the town centre. Alternatively, consideration can be given to the range of goods to be sold in any retail premises, or the way in which they could be sold. If one asks oneself whether that sequential approach can be applied to the actual development which the Scottish Ministers had to consider, the proposed town centre at Ravenscraig, then the plain answer is that it cannot. The whole point is that the town centre is to be at Ravenscraig. It cannot be airlifted and dropped into an existing town centre. And the Ministers could not carve out the retail elements and apply the sequential approach so as to require them to be sited in an existing town centre such as Motherwell or Wishaw without completely altering, indeed destroying, the very nature of the proposed town centre development at Ravenscraig. The Scottish Ministers were therefore obliged to proceed on the basis that the Alteration put forward by the Joint Committee related to a whole town centre. In these circumstances they were fully justified in taking the view that the sequential approach was simply not operable and so did not apply to their consideration of the Alteration.
30. There is no escape from the fact that, if it goes ahead, the town centre development will greatly affect the town centres of Motherwell and Wishaw. Indeed, even the Scottish Ministers' approval of the Alteration is likely to have had an impact on the prospects for development in these two centres. As is to be expected in a broad statement of planning policy for the whole of Glasgow and the Clyde Valley, the point about the impact on Motherwell and Wishaw is dealt with only relatively briefly. Para 7.8 in the supplementary written statement says that any proposal for a new town centre would need "to be linked, as necessary, to a planned restructuring of the existing centres of Wishaw and Motherwell." The new para 11.60 of the Structure Plan itself simply says that the evaluation of any planning proposal for over 6,500 sq m of retail space will have to take account of complementary action for Motherwell and Wishaw and that such action will have to be confirmed through section 75 or other legally binding arrangements. Giving effect to that Structure Plan policy for complementary action for Wishaw and Motherwell is a matter for North Lanarkshire Council, as the local planning authority with responsibility for the Local Plan and for deciding individual applications for planning permission.
31. I would accordingly reject the principal argument advanced on behalf of the appellants.
32. Mr Currie advanced a subsidiary argument which really shaded into his principal submission. As I have noted, another change which was made to the original Structure Plan was to add Ravenscraig to the list in schedule 1(a) of town centres which are to be safeguarded through Structure and Local Plans. Mr Currie submitted that Ravenscraig could not be added to that list since it was not an existing town centre. It had therefore been ultra vires for the Scottish Ministers to approve that alteration to the Structure Plan. I would reject that argument also. I have already accepted that the general policy behind NPPG 8 is the protection of existing town centres. And, equally, I would accept that many of the policies in the Structure Plan are designed to support existing town centres. It is also, at first sight, strange that Ravenscraig is added to a list of town centres at a time when, if you visited the site, you would see nothing but a vast open space, with not the slightest sign of a town centre. Nevertheless, once it is accepted that the vision behind the Structure Plan is that one day, within the lifetime of the Plan, there should be a town centre on that site as part of a larger development, then it makes sense for the Structure Plan to list it in schedule 1(a) and so try to promote investment in the site and ensure that the viability of this future town centre is not undermined in advance by, say, large retail or leisure developments on other sites in the vicinity. The effect of this addition to schedule 1(a) may not be to safeguard an existing town centre, but the Joint Committee were perfectly entitled to give effect in this way to a policy which is designed to promote investment and to protect the viability of what is intended to be the town centre at the heart of a development of national significance.
33. For these reasons I would dismiss the appeal.
LORD WALKER OF GESTINGTHORPE
34. I have had the privilege of reading in draft the opinion of my noble and learned friend Lord Rodger of Earlsferry. I am in complete agreement with it, and for the reasons which Lord Rodger gives I would dismiss this appeal.LORD MANCE