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

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    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:

    "8.  The Government is committed to protecting and enhancing the vitality and viability of town centres. They offer a range, quality and convenience of services and activities that are attractive not only to the local population and visitors but also to investors. Despite recent pressures, they retain many natural advantages for shopping, leisure and employment. Shops in particular make an important contribution to their character. Town centres have a key role in contributing to the quality of life in urban areas and provide an important focus in rural areas, allowing both urban and rural communities to benefit from competition between retailers and types of retailing. Sustaining their vitality and viability depends on continuing investment in new schemes and refurbishments and a positive and a proactive approach by planning authorities, in partnership with other public sector agencies and the private sector, in the identification and development of suitable sites. Furthermore, a range of uses other than shopping should be encouraged to locate within the town centres, including commercial leisure developments.

    9.  Protecting and enhancing town centres is therefore a key consideration which underpins Government policy. In considering whether there is a requirement for additional retail and other developments, planning authorities are expected to reflect the primacy of town centres and promote comprehensive policies and proposals for sustaining them, both through development plans and development control decisions. In support of this policy, planning authorities should adopt a sequential approach to selecting sites for new development, with first preference always being given to development opportunities in town centres. Details of the sequential approach are set out in paragraphs 12 - 16.

    10.  Cities and most towns in Scotland are now served by a range of recent major retail and commercial leisure developments developed during the 1980s and 1990s and often located on sites outwith town centres. Given the importance attached to town centres, the scope for further such developments is likely to be more limited. Where proposals for further developments are not in accordance with the approved development plan, they should be refused if the considerations set out in paragraph 45 cannot be met.

    11.  Furthermore, new retail and commercial leisure developments should not lead to greater dependence on the car, and should be easily accessible by a choice of means of transport, including regular and frequent public transport services. This important requirement reinforces the principle that town centres should be the preferred locations for major generators of travel where access is easy and convenient.

    12.  Planning authorities and developers should adopt a sequential approach to selecting sites for new retail, commercial leisure developments and other key town centre uses …. First preference should be for town centre sites, where sites or buildings suitable for conversion are available, followed by edge-of-centre sites, and only then by out-of-centre sites in locations that are, or can be made, easily accessible by a choice of means of transport. The sequential approach should apply to all food and comparison shopping as well as other attractions and facilities usually found in town centres, unless guidance in this NPPG or the development plan provides for a particular exception.

    13.  In support of town centres as the first choice, the Government recognises that the application of the sequential approach requires flexibility and realism from developers and retailers as well as planning authorities. In preparing their proposals developers and retailers should have regard to the format, design, scale of the development, and the amount of car parking in relation to the circumstances of the particular town centre. In addition they should also address the need to identify and assemble sites which can meet not only their requirements, but in a manner sympathetic to the town setting. As part of such an approach, they should consider the scope for accommodating the proposed development in a different built form, and where appropriate adjusting or sub-dividing large proposals, in order that their scale might offer a better fit with existing development in the town centre. The scope for converting existing vacant and under-used premises in the town centre should be addressed as part of this approach. Consideration should also be given to whether the range of goods to be sold, including, say, bulky, electrical and fashion goods, could be retailed from a town centre or edge-of-centre site, in some cases in a different manner."

Para 15 adds:

    "Only if it can be demonstrated that all town centre options have been thoroughly addressed and a view taken on availability, should less central sites in out-of-centre locations be considered for key town centre uses. Where development proposals in such locations fall outwith the development plan framework, it is for developers to demonstrate that town centre and edge-of-centre options have been thoroughly assessed. Even where a developer, as part of a sequential approach, demonstrates an out-of-centre location to be the most appropriate, the impact on the vitality and viability of existing centres still has to be shown to be acceptable…."

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:

    "31.  Where a town centre site is not available or not suitable in terms of size, parking, traffic generation, or where there could be difficulties in providing servicing arrangements for large scale developments in the town centre itself, for example, in small or historic towns, an edge-of-centre site adjacent to the town centre should be the preferred alternative, since it should enable those shopping at the foodstore to walk to the town centre for other business. In this way it enables one trip to serve several purposes. In order to maintain and strengthen the adjoining town centre, this may require the reuse of derelict land or the redevelopment of suitable sites on the edge of the centre, enabling less favoured and neglected areas to be brought back into use.

    32.  Some town centre sites may be under challenge and showing early signs of decline. Where such centres have failed to benefit from recent investment that may have been attracted to other competing centres and locations, or to attract sufficient custom, a different approach may be necessary. Although these town centres would clearly benefit from modernisation and refurbishment, authorities should be realistic in their expectations. Attempts to go back to past patterns of use, against the market trends that led to deterioration, may not always succeed and in some circumstances it could be necessary for planning authorities to manage the decline in the relative importance of the centre."

    21.  Under the heading "assessing new developments", paras 44 and 45 provide inter alia:

    "44.  During the 1980s and 1990s there has been investment in town centres, but more significantly there has also been growth in new forms of retail and commercial leisure developments outwith traditional centres, such as food superstores and retail parks. Cities and most towns in Scotland are now served by a range of recent major developments and others approved or under construction, often in out-of-centre locations. Where Planning Authorities consider there to be a requirement for further new developments or the expansion of existing developments, development plan policies and proposals should indicate the location, scale of additional floorspace and type of development appropriate. Such policies or proposals should be consistent with the general policies in this NPPG, including the particular considerations set out in paragraph 45 below. Accordingly, applications for further new, or expansions to existing, major retail and commercial leisure developments, should initially be assessed as to whether they are consistent with the development plan. Where there is considered to be no requirement for further developments, additional sites should not be identified in the development plan.

    45.  Where a proposed development is not consistent with the development plan, it is for the developer to demonstrate why an exception to policy should be made. Such proposals should be rigorously assessed by the planning authority against the policies set out in this NPPG and should be refused if all the following considerations cannot be met. The proposed requirement should:-

    a)  satisfy the sequential approach…."

    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

My Lords,

    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

My Lords,

    

 
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