Introduction

The case of Bridges Antonine LLP v North Lanarkshire Council ([2020] CSOH_38) adjudicated by Lord Burns in the Scottish Court of Session's Outer House on May 1, 2020, represents a pivotal moment in the interpretation and application of Strategic Development Plans (SDP) within Scottish planning law. Bridges Antonine LLP, the owner of Antonine Shopping Centre in Cumbernauld Town Centre, challenged the decision of North Lanarkshire Council to grant planning permission to Promontoria Holding (177) BV for a substantial development at Westway Retail Park. The core of the dispute revolved around whether the Council had correctly applied the SDP, specifically Policy 4, in assessing the impact of the proposed retail development on the strategic center of Cumbernauld Town Centre.

Summary of the Judgment

The petitioners, Bridges Antonine LLP, contested the Council's decision to approve a major retail development that would add significant convenience and comparison retail floorspace to the already permitted land at Westway Retail Park. The Council's approval included conditions to limit the extent of retail expansion. Bridges Antonine LLP argued that the Council misapplied the Strategic Development Plan by inadequately assessing the impact of the new development on Cumbernauld Town Centre, a designated strategic center facing challenges such as retail contraction and vacancy issues.

Upon review, Lord Burns identified that the Council had erroneously relied on existing permissions and a Retail Impact Assessment (RIA) that only accounted for convenience floorspace, neglecting a comprehensive assessment of comparison retail floorspace. The Court determined that the Council failed to properly interpret and apply Policy 4 of the SDP, which mandates a thorough evaluation to ensure that new developments protect and enhance the strategic centers without causing detrimental impacts. Consequently, the Court found the Council's decision to grant planning permission unlawful and ordered a reassessment of the application.

Analysis

Precedents Cited

The judgment referenced several key legal precedents to underpin its reasoning:

• Tesco Stores Ltd v Dundee City Council [2012] SC (UKSC) 278: Emphasized that the true interpretation of planning policies is a matter of law, not merely one of judgment.
• Mansell v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314: Highlighted that decisions should not be based on misapplying existing permissions if they do not adequately address current policy requirements.
• City of Edinburgh Council v Secretary of State for Scotland [1998] SC (HL) 33: Underlined the necessity for planning authorities to properly interpret and apply development plans, failing which decisions could be overturned.
• Braintree v Secretary of State for Communities and Local Government [2018] EWCA Civ 610: Confirmed that planning judgments should be respected unless they breach the law or principles of fairness.
• South Buckinghamshire District Council v Secretary of State for the Environment, Transport and the Regions [1999] PLCR 72: Clarified that reliance on extant permissions must be materially relevant and not merely a fallback without proper consideration.

Legal Reasoning

Lord Burns meticulously dissected the Council's approach to applying Policy 4 of the SDP. The policy mandates that any strategic development proposal must be assessed to determine whether it protects and enhances the network of strategic centers in accordance with their roles and functions, without causing detrimental impacts. The Court identified that the Council failed to:

• Conduct a comprehensive Retail Impact Assessment (RIA) for both convenience and comparison floorspace, as required.
• Properly interpret "protect and enhance" by merely relying on existing permissions without assessing current impacts.
• Ensure that the proposed development would not exacerbate the challenges faced by Cumbernauld Town Centre.

The reliance on existing permissions was deemed insufficient because these permissions were either partially unbuilt or granted under a different strategic policy, thereby being irrelevant to the current SDP's stringent requirements. The Court emphasized that policy interpretation is a legal matter and not subject to the Council's discretionary judgment.

Impact

This judgment reinforces the necessity for local planning authorities to meticulously adhere to strategic development policies, especially when assessing the impact of large-scale developments on designated strategic centers. Key implications include:

• Mandatory comprehensive impact assessments for all relevant aspects of a development, not limited to previously permitted uses.
• Clear legal responsibility to interpret and apply development plans accurately, reducing subjective discretion that could lead to unlawful decisions.
• Potential for increased judicial scrutiny on planning decisions, ensuring that strategic development objectives are genuinely met.
• Guidance for developers and councils alike on the importance of aligning proposals with strategic policies to avoid legal challenges.

Future cases involving strategic developments will likely cite this judgment as a cornerstone for arguing the necessity of thorough policy compliance and impact assessment.

Complex Concepts Simplified

Strategic Development Plan (SDP)

A Strategic Development Plan is a comprehensive policy document that outlines the long-term planning goals and strategies for a region. It sets forth the vision for spatial development, identifies strategic centers, and provides guidelines to ensure sustainable growth and development.

Policy 4 of the SDP

Policy 4 specifically addresses the evaluation of large-scale development proposals. It mandates that such proposals must:

• Protect and enhance the development of strategic centers in line with their designated roles and functions.
• Adopt a sequential approach to development, prioritizing the most suitable locations within the established network.
• Ensure that new developments do not detrimentally impact the role and function of existing strategic centers.

Retail Impact Assessment (RIA)

A Retail Impact Assessment is an evaluative process used to determine the potential effects of a new retail development on existing shopping centers. It assesses factors such as customer diversion, economic impact, and changes in retail expenditure.

Extant Permissions

Extant permissions refer to existing planning consents that have been granted for a particular site but may not yet have been fully implemented. These permissions can influence future development decisions but must be relevant and up-to-date with current policies.

Sequential Approach

The sequential approach in planning requires that developments be first considered within the existing network of strategic centers before looking to alternative locations. This ensures that new developments support and do not undermine the strategic objectives of established centers.

Conclusion

The judgment in Bridges Antonine LLP v North Lanarkshire Council underscores the critical importance of accurate policy interpretation and comprehensive impact assessments in the planning process. By overturning the Council's decision, the Court reinforced that strategic development policies must guide planning decisions meticulously to protect the integrity and vitality of designated strategic centers. This case serves as a compelling reminder to both local authorities and developers about the paramount significance of aligning development projects with established strategic frameworks to foster sustainable and harmonious urban growth.