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Land Securities Group V Scottish Ministers

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Land Securities Group V Scottish Ministers 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: First Respondents: Heriot Currie QC Gerry Moynihan QC Jonathan Lake James Wolffe (Instructed by Semple Fraser LLP) (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 -1- 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. -2- 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 -3- 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: -4- “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).
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