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OUTER HOUSE, COURT OF
SESSION
[2008] CSOH 6
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OPINION OF LORD
MENZIES
in the
application to the Court of Session
under the Town
and Country Planning
(Scotland)
Act 1997, Sections 237 and 239
by
JAMES
McDONALD
Applicant;
against a
decision of the
Scottish
Ministers
________________
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Applicant:
Party
First
Respondents (The Scottish Ministers):
Mure; M. Sinclair, Office of the
Solicitor to Scottish Executive
Second
Respondents (Sanctuary Scotland Housing
Association): Simpson; Paull &
Williamsons
16 January 2008
Introduction
[1] This application relates to a proposal for the
redevelopment of social housing in the Anderston area of
Glasgow. There are approximately 495 flats which
are the subject of the proposal. Most of
these were constructed in the 1960s.
After 1988, title to these properties was held by Scottish Homes,
which let them out to individual tenants as social housing. Thereafter, title was transferred to the
second respondents, Sanctuary Scotland Housing Association ("Sanctuary") and in
July 2005 they submitted an application for outline planning permission to
Glasgow City Council for the demolition of the existing 495 units and the
erection of a new residential development for social housing in five
phases. This application was considered
by the council's Development and Regeneration (Development Applications)
sub-committee on 2 March
2006, and on 9 March
2006 Glasgow City Council issued a notice of refusal of outline
planning permission. On 6 April 2006, the applicant
registered title to a garage at 57 Grace
Street, Glasgow, which is within
the area covered by the proposals. By
notice dated 5 June
2006, Sanctuary appealed to the Scottish Ministers under
Section 47 of the Town and Country Planning
(Scotland)
Act 1997 against Glasgow City Council's refusal of permission. In August 2006, Mr Ronald W.
Jackson was appointed by the Scottish Executive Inquiry Reporters Unit to
determine Sanctuary's appeal. By
statement dated 25 October
2006, the applicant intimated his intention to address the reporter
on certain preliminary issues. The
reporter held a public local inquiry into the appeal on 9 and 10 November 2006, and by
decision letter dated 11 January
2007, he intimated his decision to allow the appeal.
[2] The applicant questions the validity of the
reporter's decision. He does so on four
stated grounds of appeal. There is some
degree of overlap between these grounds of appeal, but they raise essentially
the same points as were raised by the applicant before the reporter at the
public local inquiry. Stated shortly,
they are (1) that the Scottish Ministers were prevented from
considering the appeal because of the maxim "nemo debet esse judex in propria
causa"; (2) that the Scottish
Ministers were prohibited from considering the appeal by their being a party to
the application; (3) that the
reporter erred in law by not sustaining these arguments when they were put to
him at the public local inquiry; and (4)
that the applicant's right to a fair and impartial hearing before an independent
and impartial tribunal in terms of Article 6(1) of the European Convention
on Human Rights was breached.
Background
[3] Scottish Homes was established by the Housing
(Scotland)
Act 1988. Schedule 1 to that
Act provided inter alia that Scottish
Homes should be a body corporate with a common seal, that it should not be
regarded as a servant or agent of the Crown, and its property should not be
regarded as property of, or held on behalf of the Crown. Although its members were appointed by the
Secretary of State for
Scotland (and
latterly by the Scottish Ministers), it was a separate legal persona. By the Housing
(Scotland)
Act 2001, provision was made for the transfer of the functions of Scottish
Homes to the Scottish Ministers and for the subsequent dissolution of Scottish
Homes. Transitional provisions were made
with effect from 1 November
2001, and on that date, a new executive agency of the Scottish
Ministers called Communities Scotland was created as a housing and regeneration
agency for
Scotland.
[4] As narrated above, title to 495 flats in
the Anderston area of Glasgow was
held by Scottish Homes; these flats were
let out to tenants as social housing.
In 2003 the Anderston Tenants and Residents Association selected
Sanctuary as their preferred new social landlord. By a Minute of Agreement dated 27 June 2005, Scottish Homes sold
all the flats to Sanctuary. By a separate
Grant Funding Agreement of the same date between Sanctuary, Sanctuary Housing
Association and the Scottish Ministers acting through Communities Scotland,
arrangements were agreed for the financing by the Scottish Ministers, through
Communities Scotland, of the proposed demolition of the existing flats and
construction of new housing. This Grant
Funding Agreement included provision for a phased programme of works and a
profile of funding payments over a 5 year period. Clause 4 of the Grant Funding Agreement
was headed "Grant for the Works" and provided as follows:
"4.1 Communities Scotland shall ensure that the
Grant is made available to the Association following approval of the project
proposals referred to in clause 4.2.
Communities
Scotland shall
ensure that any approvals shall not be unreasonably withheld or granted subject
to unreasonable conditions. The total
Grant for the Works and the Owner/occupiers Repurchase shall not
exceed £39,543,506 ("the total Grant"), payable over the period of the
Programme. In the event that the
Programme is altered in terms of the Agreement or otherwise by agreement between
the Parties, the total Grant will be recalculated by Communities Scotland and
may be reduced.
4.2 Prior to the Works Commencement Date the
Association shall submit project proposals in relation to the Works to Glasgow
City Council.
4.3 The offers of Grant shall be in the form of the
standard HAG Offer and the following additional conditions
(a) The obligation on the Association to re-house
all of the Existing Tenants of the demolished Houses prior to letting houses to
new tenants; and
(b) preserving the right to buy of the tenants of
Scottish Homes as at the date of the Agreement of the demolished Houses.
4.4 Where insufficient numbers of Owner/occupiers
agree to transfer their properties to the Association to allow the demolition
and replacement of the tenanted Houses to take place, the Parties will agree a
revised Programme and the amount of Grant will be adjusted accordingly.
4.5 Communities
Scotland shall
ensure that the Grant is paid to the Association in accordance with the payment
profile agreed between the Parties and forming Part 2 of the Schedule
annexed hereto. In so far as Grant has
not been drawn down up to the relevant annual maximum amount specified in
Part 2 of the Schedule annexed hereto then the shortfall shall be available
for drawing in subsequent years, subject to compliance at that time with the
other provisions of this Agreement and with the standard conditions of the HAG
offer on the basis that the total Grant paid does not
exceed £39,543,506."
[5] After Sanctuary applied to Glasgow City Council
for outline planning permission for the proposal, the Director of Development
and Regeneration Services prepared a report to the Development and Regeneration
(Development Applications) sub-committee dated 20 January 2006
(No. 7/6 of process), which recommended the granting of outline planning
permission subject to conditions.
Included in this report (at page 6) was the following passage:
"In terms of
'use of public funds' it is stressed that the Association's proposals have been
subject to rigorous technical and financial scrutiny by Communities
Scotland. A Grant Funding Agreement
between the Association and the Scottish Ministers was entered into in
June 2005."
In the conclusion of the report, it
was noted that "the proposed redevelopment has been approved by both Scottish
Homes and Communities Scotland and Sanctuary Scotland Housing Association has
carried out extensive public consultation on their plans through a secret
ballot, preparation of a master plan, publicity brochures, an open day meeting
and regular working groups ..."
[6] Notwithstanding the recommendation for approval
contained in the Director's report, Glasgow City Council refused planning
permission for the following reason:
"The proposed demolition has not
been adequately justified and would be detrimental to the amenity of the
surrounding, established, residential area."
[7] Sanctuary appealed to the Scottish Ministers
against this refusal, and Mr Ronald Jackson was appointed as reporter to
determine this appeal. His letter of
appointment was subject to conditions contained in a schedule attached to
it. These included the following
conditions:
"1. In determining this case, or in making a
recommendation to Scottish Ministers for their decision, you appointed (sic) as an independent contractor and
not as the servant, agent or employee of the Scottish Ministers.
2. In determining the procedural aspects of the
case you must comply with all relevant legislation and guidance issued by the
Inquiry Reporters Unit ...
9. You shall have duties of confidentiality and
loyalty to the Crown in respect of this case.
These require you to exercise care in the use of information which you
acquire in the course of dealing with this case and to protect information which
is held in confidence. You will be
subject to the Official Secrets Act 1989."
[8] The applicant addressed the reporter in support
of his statement (No. 7/9 of process) which raised the preliminary issues
noted above and made reference to legislation, authorities and the report by the
Director of Development and Regeneration Services. The reporter's determination is contained in
the decision letter dated 11 January 2007.
He recorded the applicant's submissions at paragraph 24 of the
decision letter, and explained his conclusions at paragraph 26. He rejected the applicant's submissions. His reasons for doing so may be summarised as
follows: The authorities on which the
applicant relied referred to judicial proceedings which are different to a
planning appeal which is an administrative quasi judicial process, and these cases
had no relevance to the matters before him.
Moreover, he had a statutory duty to determine the appeal and conduct the
public inquiry in accordance with the statutory rules; it was not for him to take a decision as to
whether the legislation was flawed. The
applicant was adequately protected by his right to challenge the decision in
this court.
Submissions for the
Applicant
[9] The applicant submitted that it was trite law
that no one can be a judge in his own cause.
In support of this, he referred me to two well known authorities: R v
Bow
Street
Metropolitan Stipendiary Magistrate and Others ex parte Pinochet Ugarte
(No. 2) [1999] 1 All ER 577, particularly at pages 585
and 586; and Dimes v The Proprietors of the Grand Junction
Canal [1852] 3 HLC 759.
The terms of clause 4.1 of the Grant Funding Agreement obliged
Communities Scotland (i.e. the Scottish Ministers) to ensure that any approvals
shall not be unreasonably withheld. This
suggested an obligation on the Scottish Ministers to have contact with
Glasgow City Council regarding
approvals, including planning approvals.
An application for planning permission should be determined on its
merits, and the Scottish Ministers should not influence the determination. By the date of the application for planning
permission, the assets of Scottish Homes had been transferred to the Scottish
Ministers. When one looked at Sanctuary's
Master Plan, and the passage in the Director's report quoted above, one could
reasonably infer that the Scottish Ministers were truly a party to the
application. They had a financial
involvement by reason of the Grant Funding Agreement, and they had persuaded
Sanctuary to take over these properties from Scottish Homes. They were pursuing a policy to advance and
favour the proposal.
[10] In support of his submission that the reporter
erred in law in rejecting the applicant's arguments before him, the applicant
referred me to R (Alconbury Developments Ltd) v Secretary of State for the Environment,
Transport and the Regions [2003] 2 AC 295. The applicant stated that he
asked the reporter if he was able to entertain legal submissions, and the
reporter said that he was able to do so.
The reporter claimed to be
independent of the Scottish Ministers, and clause 1 of the schedule to his
letter of appointment appeared at first sight to support this. However, clause 9, which required the
reporter to have a duty of loyalty to the Crown, negated this. The Scottish Ministers were to be regarded as
the Crown for this purpose - see Scotland Act 1998, section 99; M v
Home Office [1993] 3 All ER 537. The reporter therefore owed a
duty of loyalty to the Scottish Ministers, and was not an independent and
impartial tribunal. The applicant pointed
out that he did not have to prove actual bias on the part of the reporter; all that was necessary was that a reasonable
man might have a suspicion in the whole circumstances that there was a chance,
however remote, of bias on the reporter's part.
He reiterated that no one should be a judge in his own cause, and the
reporter should be as distant from the subject-matter of the application as
possible. Looking at the whole
circumstances and in particular the Grant Funding Agreement and the schedule to
the reporter's letter of appointment, the reporter was not sufficiently distant
from this application.
Submissions for the Scottish
Ministers
[11] Counsel for the Scottish Ministers
submitted that, properly construed, the Grant Funding Agreement was not
concerned in any way with planning permission, but was simply concerned with the
mechanism by which central Government funds were released to finance Sanctuary's
development proposal. It was clear from
clause 8 (and indeed from the terms of the whole Agreement) that funds from
the Scottish Ministers were channelled through Glasgow City Council, who had
assumed responsibility for the administration of Housing Association Grant. That is why clause 4.2 required Sanctuary
to submit proposals to Glasgow City Council, and the approvals in
clause 4.1 related to funding approvals.
If the approvals envisaged in clause 4.1 had related to planning
permission, one would expect the clause to provide that planning permission
would not be refused; there was no
reference to planning permission in the Agreement, because the Agreement had
nothing to do with planning permission.
The fair-minded and informed observer would know that Communities
Scotland cannot deliver any particular result from a planning application made
to a local authority; the applicant's
interpretation to the contrary was startling.
[12] Counsel did not shrink from the fact that the
Scottish Ministers had been involved in discussions as to how this area might be
redeveloped and improved - this was clear from the Master Plan (No.7/5 of
process) and from the report from the Director of Development and Regeneration
Services. The Scottish Ministers were not
themselves applying for planning permission, and there was nothing sinister in
their involvement.
[13] With regard to the reporter's position, counsel
did not suggest that he was wholly independent of the Executive - the Scottish
Ministers appointed him and could recall his appointment. (The reason that it was made clear in
clause 1 of the schedule to his letter of appointment that he was not an
employee of the Scottish Ministers was for reasons of employment law. The reason for clause 9 was solely to
maintain confidentiality.) With regard to
the specific grounds for the present application, there was no merit in
ground 2 (i.e. that the Scottish Ministers were a party to the application
and so prohibited from considering any appeal on it). Although the applicant made reference in this
ground to the minutes of the hearing of 2 March 2006, there was no mention at all in those
minutes of the Scottish Ministers, nor was there anything to support the
suggestion that the Scottish Ministers were a party to the application.
[14] Counsel submitted that the test for considering
grounds 1 and 4 was the same - "the question is whether the fair-minded and
informed observer, having considered the facts, would conclude that there was a
real possibility that the tribunal was biased." - Porter v Magill [2002] 2 AC 357 per Lord Hope of Craighead at 494; [2001] UKHL 67 at
para.103. The law of Scotland before the
introduction of the European Convention on Human Rights was accurately stated in
London and Clydeside Estates Ltd v Secretary of State for Scotland 1987
S.L.T. 459 and City of Glasgow District
Council v Secretary of State for
Scotland (No.1) 1993 S.L.T. 198. On
this basis, the applicant's arguments failed - in the present case, the
involvement of Scottish Homes in discussing the Master Plan, and of Scottish
Ministers in providing funding for social housing, was no greater (and was in
fact less) than the involvement of the Secretary of State in those cases. Moreover, there was nothing to suggest that
the individual reporter in the present case had any connection with any of the
parties to the appeal. Government often
had a peripheral involvement in developments - for example, industrial
development where a company is only applying for planning permission because it
has been offered Government grants, or National Health Service developments or
roads proposals. The case of R (Alconbury Developments Ltd) v Secretary of State for the Environment,
Transport and the Regions (supra)
contained examples where the Secretary of State's involvement was considerably
greater than that of the Scottish Ministers in the present case. Alconbury concerned applications in
which the Secretary of State's department had direct pecuniary interest, where
land which was subject to development proposals belonged to Government
departments (e.g. the Ministry of Defence and the Highways Agency) and where the
decision was called in and was to be made by the Secretary of State
himself. These decisions were still not
held to be incompatible with Article 6(1), because of the power of the High
Court in judicial review proceedings to review the legality of the decision and
the procedures followed. Alconbury was a more extreme case than
the present - here the decision was the reporter's and not that of the Scottish
Ministers themselves. Any involvement of
the Scottish Ministers took place before the planning application was made to
Glasgow City Council. The applicant was
not suggesting that this application to the Court of Session was inadequate to
cure any lack of independence of the reporter.
[15] With regard to the third ground, the reporter
was correct to reach the view that he did with regard to the applicant's
objections. He was bound by the Town and
Country Planning Appeals (Determination by Appointed Person) (Inquiries
Procedure)
(Scotland) Rules
1997, and the applicant had the remedy of this application to the Court of
Session. For all these reasons counsel
invited me to refuse the application.
Submissions for Sanctuary
[16] Counsel for Sanctuary
adopted in full the submissions made on behalf of the Scottish Ministers. As the applicant accepted the Alconbury decision as up-to-date law,
this was determinative of the present proceedings. The interpretation of clause 4.1 of the
Grant Funding Agreement urged by the Scottish Ministers was to be preferred to
that urged by the applicant. Support for
this was to be found from the fact that after Glasgow City Council refused
Sanctuary's application for planning permission, Sanctuary did not sue the
Scottish Ministers for breach of their (alleged) obligation to ensure that
planning permission was not unreasonably withheld, but instead lodged an appeal
against that refusal in accordance with the statutory procedures. Having regard to the context of the Grant
Funding Agreement, it was inconceivable that Scottish Ministers would enter a
contractual obligation which would have the effect of allowing any appeal to
them from a refusal of planning permission by Glasgow City Council. However, counsel submitted that however
clause 4.1 of the Grant Funding Agreement was construed, the matter was
largely academic, because the present application was ill-founded as a result of
the Alconbury decision.
Reply by the applicant
[17] The applicant submitted that
clause 4.1 went beyond mere funding approvals and extended to planning
approvals. This was clear from a
comparison between clause 4.1 and clause 4.5. The latter related to phasing of the
development and approval of the release of funds, and the approvals referred to
in the former must be something different.
The whole basis of the Grant Funding Agreement was conditional on
planning permission being granted for the project proposals. Grant Funding was put in place in order for
the project proposals to take place, provided that planning permission was
granted for them. This interpretation
accorded with the recommendation of the Director in his report - "Grant subject
to conditions".
[18] With regard to Alconbury, the applicant maintained that
the Scottish Ministers have throughout pursued a policy objective of their own
in this matter. They abdicated their
responsibilities as landlords of these properties to Sanctuary, by Communities
Scotland promoting and funding a change of landlord. This involvement was, the applicant
maintained, greater than the involvement of the Secretary of State in Alconbury. The reporter should have disclosed his
obligation of loyalty to the Scottish Ministers imposed on him by clause 9
of his letter of appointment. He
reiterated that the Scottish Ministers were in effect judges in their own cause,
and their actings were contrary to the statements of law set out in the Dimes and Pinochet cases. He invited me to reduce the decision of the
reporter.
Discussion
[19] The Scottish Ministers were not directly
involved as a party to Sanctuary's application for planning permission. Scottish Homes appear to have supported the
principle of the proposed development, and the Scottish Ministers were prepared,
through Communities Scotland and Glasgow City Council, to provide funding for
the proposal. No doubt the proposal was
consistent with the policies of the Scottish Ministers. However, the Scottish Ministers did not have a
direct pecuniary interest in the granting of planning permission for this
proposal. Their interest was
substantially less than the interest of the Secretary of State in the various
cases decided in Alconbury. Moreover, unlike the examples in Alconbury, the Scottish Ministers did
not determine themselves Sanctuary's appeal against the refusal of planning
permission; instead, the determination of
this appeal was delegated to a reporter instructed by the Scottish Executive
Development Department Inquiry Reporters Unit.
That reporter required to follow the procedures set out in The Town and
Country Planning Appeals (Determination by Appointed Person) (Inquiries
Procedure)
(Scotland) Rules
1997. He also required to comply with all
relevant legislation and guidance. It is
not suggested that the reporter was himself interested in the proposals or
motivated by actual personal bias when reaching his decision.
[20] The applicant relied heavily in his submissions
on observations in the House of Lords in the Dimes and Pinochet (No.2) cases. However, these were authorities dealing with
the decisions of judges when acting in a judicial capacity. It was accepted by the applicant that the
reporter in the present case was acting in an administrative capacity, albeit in
a quasi judicial function. It must be borne in mind that not all the
principles that apply to actings performed in a judicial capacity apply to
administrative decisions. As Lord Caplan
observed in City of Glasgow District
Council v Secretary of State for
Scotland (No.1):
"I would accept
that there are certain rules of natural justice that are so fundamental that
they would apply to a Minister carrying out an executive responsibility as much
as to a tribunal with a more exclusively judicial role. The obligation to act bona fide is an example of one. However, in regarding the authorities quoted I
think it could be misleading to equate a Government Minister making an
administrative decision with a body which has a neutral adjudicative role. A Minister cannot be expected to abdicate from
his statutory responsibilities ...".
As was held in London and Clydeside Estates Ltd v Secretary of State for Scotland, a
Minister is not disqualified from exercising a quasi judicial function merely because
of support for a particular policy so far as related to a particular
development.
[21] The applicant argues that, against the
background of support for the development proposal from Scottish Homes and
thereafter Communities Scotland, the terms of clause 4.1 of the Grant
Funding Agreement and the terms of the reporter's letter of appointment are
sufficient to make the fair-minded and informed observer, having considered the
facts, conclude that there was a real possibility that the reporter was
biased. Considering these factors, I am
unable to reach the view that the fair-minded and informed observer would reach
this conclusion.
[22] The earlier involvement of Scottish Homes, and
thereafter Communities Scotland, in exploring possibilities for the regeneration
and redevelopment of this area of
Glasgow is in my view neither here
nor there. Their involvement in the
preparation of the Master Plan, whether through Scottish Homes or Communities
Scotland, and their policy of providing grant funding by way of Housing
Association Grant to housing associations such as Sanctuary, amount to no more
than a peripheral interest in the proposals (and certainly very significantly
less interest than that of the Secretary of State in the various developments
considered in Alconbury). Turning to the proper construction of the
Grant Funding Agreement, when read as a whole it is clear that this document (as
its title suggests) is concerned solely with the mechanisms for providing
central Government funding to enable Sanctuary to proceed with the proposal, by
means of scheduled payments of Housing Association Grant through Glasgow City
Council in accordance with the agreed phasing programme. There is no mention at any point in the
Agreement of planning permission, nor of any matter linked to the grant of
planning permission. There are however
provisions for the appointment of a project monitor, and no doubt the phased
release of grant funding would only be made on the approval of the project
monitor, Communities Scotland and Glasgow City Council. It is in this context that the words on which
the applicant focuses in clause 4.1 must be read. I can see no reasonable basis for interpreting
the words "any approvals" so that they include the grant of planning
permission. I consider that they can only
reasonably be interpreted as referring to financial approvals necessary for the
release of grant funding. Finally, with
regard to the schedule attached to the reporter's letter of appointment, I
cannot read the terms of clause 9, which imposes duties of confidentiality
and loyalty to the Crown on the reporter, as binding him so closely to the
Scottish Ministers that he must do their bidding and grant planning permission
if told to do so. This clause relates to
the care required of the reporter in the use of information and the protection
of information held in confidence.
Whether taken individually or cumulatively, I do not consider that these
factors would cause the fair-minded and informed observer to conclude that there
was a real possibility that the reporter was biased.
[23] In any event, even if I am wrong in my
interpretation of the Grant Funding Agreement and/or the schedule to the
reporter's letter of appointment, it seems to me that the Alconbury decision is a complete answer
to this application. Neither the Scottish
Ministers nor Sanctuary seek to suggest that the reporter was a completely
independent and impartial tribunal - although again I observe that he was
considerably more independent and impartial than the Secretary of State in the
examples considered by the House of Lords in Alconbury. Be that as it may, the availability of a
statutory application to this court to quash the decision of the reporter is
sufficient to ensure compatibility with Article 6(1) of the European
Convention on Human Rights, and is a complete answer to the applicant's
arguments.
[24] For these reasons I sustain the pleas-in-law
for each of the first and second respondents and refuse this application.
