Glasgow City District Council v Secretary of State for Scotland and others

Compulsory purchase — Subjects included in compulsory purchase order comprised a site of former buildings and certain existing garage premises — Whether it was necessary to include in the order the site of the garage premises in order to enable a viable development to proceed — The Secretary of State accepted view of the reporter after public inquiry that the inclusion of the garage premises was not necessary and the reporter’s recommendation that the order be not confirmed — City council sought reduction of this decision and submitted that the order should be confirmed subject to the exclusion of the garage premises — Challenge to Secretary of State’s decision, however, fails The petitioners, the city council, who were the acquiring authority, argued that in refusing to confirm the order the Secretary of State had gone too far — Although the council had not suggested at the inquiry that the order should be modified to exclude the garage premises, such a modification was an obvious and logical option which the Secretary of State should have considered — Applying Wednesbury principles, the Secretary of State had acted unreasonably in failing to consider it — The attitude of the proprietors and lessees of the garage was that the order should either not be confirmed at all or should be confirmed subject to the suggested modification In the opinion of the Lord Ordinary the petitioners had failed to demonstrate that the Secretary of State’s decision was unreasonable — The suggested modification was a possible option, but it was worthy of note that the principal witness for the petitioners at the inquiry had expressed the view that a development without the garage site would not be viable — Although that did not prevent the Secretary of State from considering the suggested modification, it did make it difficult for the petitioners to criticise the Secretary of State’s decision as unreasonable — Petition dismissed The following cases are referred to in this report. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680, (1947) 45 LGR 635, CA R v Hillingdon London Borough Council, ex parte Puhlhofer [1986] AC 484; [1986] 2 WLR 259; [1986] 1 All ER 467; (1986) 84 LGR 385, HL Stewart v Monklands District Council 1987 SLT 630 This was a petition by Glasgow City District Council, the acquiring authority, to reduce the decision of the Secretary of State for Scotland not to confirm the Berkeley Street/Granville Street Glasgow Compulsory Purchase Order 1987. The Secretary of State was the first respondent. Ronald Linklater Sharp and Walter Sharp & Sons, the proprietors and lessees of the garage premises at 25 Granville Street, were the second respondents. Patrick Cullen (instructed by Simpson & Marwick, WS) appeared on behalf of the petitioners; Sidney Neil (instructed by the solicitor to the Secretary of State for Scotland) represented the Secretary of State (first respondent); Eric Brown (instructed by Snell & Co, WS) represented Ronald Linklater Sharp and Walter Sharp & Sons (second respondents). Giving the opinion, LORD COULSFIELD said: These proceedings arise from the respondent’s refusal to confirm the Berkeley Street/Granville Street, Glasgow Compulsory Purchase Order 1987, which was made by the petitioners on May 1 1987 under section 102 of the Town and Country Planning (Scotland) Act 1972. The property comprised in the order consisted of the site of former buildings at 42 Berkeley Street and 21-23 Granville Street and existing garage premises at 25 Granville Street. Objections were lodged by the proprietors and lessees of the garage premises and in due course a public local inquiry was held on March 2 1988. The report of that inquiry contains, inter alia, the following findings in fact: . . . (2)  The compulsory purchase order site lies within the area of the Kent Road local plan wherein it is designated for residential use. (3)  In September 1985, outline planning permission was granted for the erection of an office development at 42 Berkeley Street and 21/23 Granville Street. No planning approval has been obtained for redevelopment of the garage site at 25 Granville Street. (4)  No development brief has been prepared and no detailed consideration given to the precise nature of any proposed development or redevelopment of the compulsory purchase order site. . . . (8)  The car parking facilities in the area are extremely limited. (9)  The vacant site at 42 Berkeley Street and 21/23 Granville Street is, in its present condition, extremely detrimental to the amenity of the area. (10)  A number of potential developers have expressed interest in the property comprising the site of the compulsory purchase order. (11)  It is essential that any development of the vacant site should incorporate an appropriate level of off-street parking and its design should be in accordance with the character of the adjacent properties. (12)  It would be possible to achieve a viable development, in accordance with the general requirements of the District Council, without inclusion of the site of the garage premises at 25 Granville Street. The garage facility at 25 Granville Street is a useful, but not essential, part of the operation of the business of Messrs Walter Sharp & Sons (the objectors). The reporter also noted that the garage premises at 25 Granville Street were in reasonably good condition and that their appearance was not out of accord with that of adjacant properties; and further that those premises lie at a different level from the remainder of the site. In his conclusions, the reporter dealt with a number of points which are not material for the present purpose. These included a submission that the order was defective due to a failure to follow statutory procedure, which the reporter accepted: but this part of his conclusions was rejected by the Secretary of State and no criticism was made of that part of the Secretary of State for Scotland’s decision. In regard to the merits of the order the reporter’s conclusions were as follows: To turn now to the merits of the case and of the District Council’s proposals for redevelopment, there is no doubt in my mind as to the desirability of proceedings with some form of development on the vacant site at the earliest possible date, in view of the detrimental effect of its present condition on the amenity of the surrounding area. The principal question, however, which arose from the enquiry was whether it was necessary to include the site of the garage premises in order to enable a viable development to proceed. As indicated in the findings of fact, I take the view that this is not the case. In the light of the evidence, I find it difficult to accept that it would not be possible to effect some form of development on the vacant site which would both be commercially viable and acceptable to the planning authority and the negotiations with prospective developers referred to by Mr Martin did not appear to me to support his view to the contrary. However, I accept that a site of regular shape would be more attractive to developers. As for the use of the premises by the second named objectors, while I do not accept that this facility is absolutely essential to the operation of their business, nevertheless it is an integral and useful asset and I see no grounds for depriving them of this facility unless inclusion of the site were absolutely essential to a proposed development. In all the circumstances I would respectfully recommend that the order be not confirmed. The decision of the Secretary of State was intimated by letter dated January 19 1989. Subject to the procedural point referred to above, the Secretary of State accepted the reporter’s findings and19 conclusions and his recommendation that the order be not confirmed. Accordingly, confirmation was refused. In these proceedings, the petitioners seek reduction of the decision not to confirm the order. Further, in respect that the objections were confined to the inclusion of the garage premises in the order, the petitioners seek a declaration that the Secretary of State is bound to confirm the order, subject to a modification to the effect that the garage premises should be excluded therefrom. The parties were agreed that the matter could be dealt with at the first hearing on this petition, without further procedure. Counsel for the petitioners referred to the statutory framework and in particular to para 4(2) of Schedule 1 to the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947, which provides: If any objection duly made as aforesaid is not withdrawn, the confirming authority shall, before confirming the order, either cause a public local inquiry to be held or afford to any person by whom any objection has been duly made as aforesaid and not withdrawn an opportunity of appearing before and being heard by a person appointed by the confirming authority for that purpose, and after considering the objection and the report of the person who held the enquiry or the person appointed as aforesaid, may confirm the order either with or without modifications. Counsel submitted that in the exercise of his duties under that paragraph the Secretary of State was bound to pay attention to the objections and to the report. His discretion under that paragraph was not unfettered but must be exercised reasonably. Given the scope of the dispute between the authority and the objectors, the Secretary of State had gone too far in refusing to confirm the order. From the outset of the dispute it had been plain that the only difference between the authority and the objectors was limited to the question whether the garage should be included in the order or not. It was true that at the inquiry the authority had not suggested modification to exclude the garage premises from the order as an option. Their position had been that they wanted the whole site, but the dispute had been confined to the garage site. There was no doubt of the desirability of development of the vacant site at the earliest possible date. The reporter had come to a clear view that the development of the site could proceed without the garage. The reporter had found that the petitioners’ position at the inquiry was not well founded so far as inclusion of the garage in the order was concerned. Since, however, he had not confined himself to that finding but had said that it was clear that development of the rest of the site should proceed, modification to the order to exclude the garage had clearly become an option when the matter was presented to the Secretary of State. At that stage modification was so clearly an option that it was a matter which must be considered by the Secretary of State, even though he had never been asked specifically to do so by the petitioners. Modification was so obviously desirable that if the Secretary of State had considered it at all there could have been only one result, namely that the order would have been confirmed subject to a modification to exclude the garage. Counsel referred to the well-known opinion of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] KB 223 and, in particular, to the passage at p 228 in which Lord Greene emphasises that an administrative authority must have regard to matters germane to its decision; and that a person making a decision in the exercise of an administrative discretion must call his own attention to the matters which he is bound to consider. Counsel submitted that in the whole circumstances the Secretary of State had acted unreasonably in failing to consider the possibility of confirming the order subject to a modification. Counsel for the first respondent submitted that in the exercise of his functions under para 4(2) of the Schedule to the 1947 Act the respondent was exercising a discretion. He accepted that it was possible that there might be a case in which it was so plain that modification of a compulsory purchase order was a proper option that it would be unreasonable for the respondent to fail to consider it. That could, however, arise only in an extreme case and the present was not such a case. The reporter had not been asked to address his mind to the question of modification, nor had the Secretary of State. The petitioners’ approach had been that they wanted to acquire the whole site and there had been no explanation as to how they would develop it if only part of it were acquired. No planning brief existed for the site and it was therefore at least a possibility that, at the time when the Secretary of State was making his decision, the petitioners might not have wished to proceed with development if the garage premises were not available. Attention had been drawn to the desirability of a regularly shaped site for development purposes and to the need for car-parking facilities, and particularly off-street car-parking facilities, in relation to any development. Counsel further referred to the cases of Puhlhofer v Hillingdon London Borough Council [1986] AC 484 and Stewart v Monklands District Council 1987 SLT 630 and submitted that these decisions should be taken into account in applying the observations of Lord Greene in the Wednesbury case, but for the purposes of the present case I do not think it necessary to consider these authorities in detail. Counsel for the proprietors and lessees of the garage said that these respondents were concerned only with the question of the inclusion of the garage in the compulsory purchase order. If the petition were dismissed, these objectors would be quite content. Equally if the petition were granted and the declaration that the Secretary of State was bound to confirm the order subject to modification were made, his clients would not be prejudiced. The proprietors and lessees of the garage, however, had no wish to be faced with an unmodified compulsory purchase order, in view of the procedures which had already taken place. In my opinion, the petitioners have failed to demonstrate that the first respondent’s decision is unreasonable, in the sense explained by the Master of the Rolls in the Wednesbury case. It is true that, once it had been decided that the petitioners should not be authorised to acquire the garage premises, modification of the order to exclude those premises became a possibility. However, having regard to the precise form of the reporter’s conclusions, it is not, in my view, obviously one which the petitioners would necessarily entertain. The reporter found that it was not necessary to include the site of the garage premises to enable a viable development to proceed, but went on to explain that conclusion by saying that he found it difficult to accept that it would not be possible to effect some form of development on the vacant site. He also referred to the greater attraction of a regular site to developers. It is pertinent to observe that the reporter records that the principal witness for the petitioners at the inquiry stated positively that, although an acceptable development would be physically possible within the confines of the site without including the site of the garage, that would not produce a viable development. Viability in relation to a development is a matter of opinion and judgment and the petitioners were not bound to accept the reporter’s conclusion, qualified as it was. This is, therefore, a case in which the acquiring authority did not merely fail to draw attention to the possibility of modification of the order or to suggest such a modification but, in effect at the inquiry, positively rejected modification as an acceptable option. That, of course, does not necessarily prevent the Secretary of State from considering modification, but it does, in my view, in the circumstances of this case, make it extremely difficult for the petitioners to criticise the Secretary of State’s decision as unreasonable. In the whole circumstances, in my opinion, the petition should be dismissed.