Case in which Dawn Developments sought judicial review of Lanarkshire Council’s decision to grant planning permission to JHAG Ltd for a development which included a superstore, garden centre, filling station and hotel at Redwood Crescent in East Kilbride.
Dawn applied for planning permission for the erection of a superstore at West Mains Road in East Kilbride (approximately 1 km from JHAG’s proposed development) on 29 March 2010. JHAG’s application had been lodged on 17 February and an objection to it was lodged on behalf of Dawn on 30 March.
Dawn had written to the Council requesting that its application should be considered at the same time as JHAG’s. However, at a meeting on 7 September 2010, the planning committee decided to consider JHAG’s application ahead of Dawn’s.
Dawn argued:
1) that the council had failed to properly apply the sequential test; and
2) that the procedure leading to the decision had been unfair.
Application of the sequential test
National Planning Policy requires application of the sequential test when considering applications for retail development. The test is designed to protect the commercial viability of town centres and involves considering locations for development in order from the town centre outwards.
In the first place Dawn said that when considering JHAG’s application the Council should also have had regard to its application which was sequentially equal. They questioned whether the Council was entitled simply to disregard its proposals generally as relating to a sequentially equal site, and whether, in considering the cumulative impact of JHAG’s proposed development with other actual or potential retail developments, their site should be taken into account.
In the second place they argued that, in assessing whether JHAG’s proposals could be accommodated elsewhere, the scale of the development should not be determined by JHAG’s application without considering whether a development on a smaller scale might be accommodated elsewhere.
When considering the authorities, Lord Drummond Young noted that the width of discretion that is available to a planning authority in applying national planning policies. In particular he referred to Tesco Stores [2010] CSOH 128 [2011] CSIH 9:
“the sequential test … should be treated as a statement of policy designed to facilitate the delivery of national government objectives, not a rule of law. It was very difficult to suggest that there was one correct method of applying the test to the exclusion of other possible approaches. The correct method was a matter for the exercise of the planning judgment of the planning authority as to how to apply the sequential test. On that basis, a challenge to the application of the test would only be successful if the disappointed person could establish that the planning authority’s decision was unreasonable in the Wednesbury sense.”
Lord Drummond Young found that a report prepared by the Council’s Executive Director (Enterprise Resources) and considered by the Planning Committee at a meeting held on 5 October 2010 fully addressed the sequential approach and dealt with the cumulative effect of the development.
Lord Drummond Young also took the view that the reports conclusions fell squarely within the planning judgment of the local authority and was not persuaded that an incorrect approach had been adopted.
Procedural unfairness
With respect to procedural unfairness, Dawn argued that the Council’s officers significantly misinformed the Planning Committee. Reports to, and comments made by, officers at the Committee’s meeting of 7 September 2010 were said to have contained inaccurate descriptions of the status of their application. The officers, it was said, gave the Committee to understand that there were fundamental problems with the Dawn’s application, in relation to both transportation issues and the period of time within which it was likely that such issues could be resolved.
However, the court heard that the Dawn had been represented at the meeting on the 7th and that their representative had put their case clearly. Lord Drummond Young took the view that Dawn was given a clear opportunity at that meeting to state its case and to refute any misleading statements made by Council officers. The request to conjoin the applications was refused the meeting and no attempt was made to reduce that decision. It could not be said that there was any unfairness in taking JHAG’s application (which had been received first and proceeded rapidly) ahead of Dawn’s. Further delay would have prejudicial to JHAG and it was open to the Council to consider whether that prejudice was outweighed by the prejudice to Dawn in not having its application considered.
As the decision not to conjoin the applications had been made and not challenged directly it was not necessary to consider the events after the meeting of 7 September. However, correspondence and other documentation after revealed that there were significant issues to be resolved with Dawn’s application which appeared to justify the statements made about the preparedness of Dawn’s application.
The full judgement is available from Scottish Courts here.
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