Paul McErlean has given Jermon’s first public reaction to the Judicial Review verdict on this blog. (see comments section on “Jermon Wins”). I felt his comment was gracious in that there was no spirit of triumphalism. Rather Paul made clear that Jermon were only doing what they had to do to protect their investment and therefore the regeneration of the town centre.
From Business for Dumbarton’s point of view I have now read the judgement in full and would like to precis the relevant points in Lord Clark’s decision. I have done this below and have highlighted bold the passages which are of particular relevance to the town centre. The important points arising from this are that it would seem that West Dunbartonshire Council has clearly acted contrary to law and against the best interests of the viability and vitality of Dumbarton town centre. They did not properly consider the impact that their decision would have on the wellbeing of the town or on the precarious state of town centre footfall largely brought about by their own previous decisions. The judge highlighted that there should have been no use of the term “acceptable” when referring to the 3% downturn that the council anticipated would result from the development in the town centre.
Over the next few weeks as everyone comes to terms with the implications of this decision there will be many questions asked. I would like to ask the following: Were the council prepared for the decision going against them? Is this the real reason that a 56 year old officer “retired” shortly before the decision was made public? Is it also the reason why another officer closely involved in the decision has left the council? Who will be accountable for the failures highlighted in the judgement? Most importantly, what measures will now be put in place to genuinely support the town and begin to repair the damage arising from this and previous decisions?
Robert Ryan (Chairman Business for Dumbarton)
Here are the main points of Lord Clark’s decision.
1) “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.”
2) “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.”
3) The good practice referred to at paragraph 35 in PAN82 has not, in my view, been followed in this case. That good practice, is reflective, in any event, of what is required, as a matter of law, in the production of decisions in this field namely that the decision maker should make clear its reasoning so that interested parties can properly assess their rights on the matter. I consider that the informed reader of 7/48 of process is left in a state of uncertainty as to whether the writer of that report is saying that the proposal was (a) contrary to the development plan or not, (b) if so in what respects there was a departure from the development plan, and, (c) if so, why, nevertheless, the proposals should be granted. The decision which followed upon that report and relied on its reasoning is therefore inadequate in its reasoning in the sense described by Lord Clyde in the passage cited supra
4) Moreover, and in any event if, as seems at times to be accepted in the affidavit referred to, the proposal did, contrary to what was submitted on behalf of both the respondents and the interested party before me, involve a departure from the development plan (though not “significant”) then it fell to be referred to the Scottish Ministers being a class 13 proposal in terms of the 2007 direction. That it has not been so referred is contrary to law. The social and political reasons for requiring referral of planning applications in the class of category 13 to the Scottish Ministers are obvious. The need to avoid any appearance of conflict of interest on the part of authorities, like the respondents, in dealing with such applications means, in my judgment, that these provisions should be followed with some care. They are not to be regarded as technical matters. In the present case, the sensitivity of the matter was, in my view, all the greater because the respondents had themselves previously imposed the condition as being necessary to support the vitality and viability of the town centre and this was the basis upon which the Scottish Ministers had previously considered the matter. There was, in that situation, a very good reason why it was appropriate for the Scottish Ministers to be asked to consider the matter of the proposed change of position in that respect.
