Party litigants’ appeal against council’s refusal of guesthouse development rejected

Lord Brodie
Lord Brodie

A couple who challenged a Scottish local authority’s decision to refuse their application to redevelop a building for use as a hotel and guesthouse have had their appeal dismissed.

The party litigants claimed that the council ought to have referred their application to the Scottish Ministers rather than the Local Review Committee, but the Inner House of the Court of Session rejected all of their grounds of appeal.

Lord Brodie, Lord Drummond Young and Lord Malcolm heard that Mr and Mrs Altaf Ahmad were seeking to appeal against an October 2018 decision of the Glasgow City Council Planning Local Review Committee (LRC) refusing an application for change of the use class of a workshop in Glasgow to a 17-room hotel and guesthouse for tourists.

The development site comprises vacant outbuildings and a yard to the rear of single-storey commercial premises fronting the north side of the Gallowgate, Glasgow.

The appellants’ application sought permission to demolish some of the existing outbuildings and to convert both floors of an L-shaped building to create a number of small format, single aspect en-suite bedrooms, eight on the ground floor and nine on the first floor, with associated facilities.

The appellants’ application was considered by an appointed person in terms of the respondent’s scheme of delegation under section 43A of the Town and Country Planning (Scotland) Act 1997, following which the council’s executive director for development and regeneration services issued a decision notice in June 2017 providing six reasons for refusing the application.

The appellants sought a review of the refusal of planning permission, which was undertaken by the respondent’s LRC, who decided that it should determine the review of the application without the need for any further procedure.

Having considered the documents and a presentation in relation to the proposed development in June 2018, the LRC decided to refuse planning permission because it was “not considered to be in accordance with the development plan”, and issued a decision notice on 17 October 2018 giving six identical reasons for refusing the application.

Mr Ahmad lodged 11 grounds of appeal, arguing among other things that the respondent planning authority had “skipped a step” in the required procedure, as the application ought to have been forwarded to the Scottish Ministers for determination. 

The planning officer had delayed in reaching a decision, and then the LRC had taken over a year to determine the review, following which they were prevented from presenting their case to the Scottish Ministers and instead forced to present an appeal to the Court of Session on a point of law only, which left them searching for a “flaw in the law”.

It was submitted that the LRC ought to have visited the site; if it had done so, a “different decision” would have been reached.

Mr Ahmad also argued that their application had been determined according to “political and local pressure”.

However, counsel for the respondent that as this appeal had been brought under section 239 of the 1997 Act, the appellants had to show that the decision of the LRC was either not within its powers, as set out in the Act, or that one of the requirements in either the Act, or any of the relevant regulations made thereunder, had not been complied with.

It was argued that the appellants’ grounds of appeal did not conform to those requirements.

Delivering the opinion of the court, Lord Brodie said: “It is evident that the appellants feel frustrated at the refusal of what they consider to be a worthwhile proposal. However, we reiterate the point made at the beginning of this opinion: it is for the local planning authority to determine the merits of applications made in respect of their areas.

“Should they make an error as to the extent of their legal powers or should they fail to comply with a procedural requirement that has adverse consequences for an applicant, then this court may be applied to in order to provide a remedy. But if they make no such errors this court cannot interfere with their decisions; matters of planning judgment are for planning authorities, not for the court.”

On the alleged procedural error, the judges observed that, in terms of the Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2013, it is for the local review body to determine its own procedure.

Lord Brodie said: “A local review body must have regard to the review documents, which will include the material provided in support of the planning application and the Report on Handling but, as with matters of procedure, it is for the local review body, exercising their planning judgement, to determine whether the review documents provide sufficient information to enable them to determine the review…

“Accordingly, we do not find the respondent to have acted in excess of its powers or to have failed to comply with relevant requirements. We do not see the procedure which was adopted to have been unfair.

He continued: “A difficulty with the appellants’ contention that the respondent should have referred their review application to Scottish Ministers is that there was no power to do so; rather the respondent was obliged by the terms of section 43A(8) of the 1997 Act and the 2013 Regulations to proceed as it did.”

The court concluded: “We cannot uphold any of these grounds of appeal. We would add this. The appellants’ note of argument refers to alleged bias, ‘local and political pressure’, and general injustice in respect of the decision.

“However, on the information before the court there is no good or sufficient reason to conclude that the procedure was tainted by bias or impropriety on the part of the members of the LRC or anyone else.”

© Scottish Legal News Ltd 2020

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