Petition for judicial review of a decision by Highland Council to grant planning permission for a development of 64 houses at Resaurie near Inverness.
The petitioners (who lived nearby the proposed development) had two main arguments:
- In making its decision, the Council should have had regard to the increased risk of ground water flooding to the petitioners’ property and other properties on the boundary of the site.
- The Council should also have had regard to a change of planning policy (in the interval between the resolution to grant consent and the formal grant) which introduced a requirement to take a precautionary approach to flood risk.
The petition was refused by Lord Pentland in the Outer House and an appeal to the Inner House was also refused. The court found that the issue of groundwater had been before the Council when they took their decision to grant planning permission and it could not be argued that they failed to take account of it. Issues of groundwater flooding had been considered and addressed by the professionals advising the developers, and had been fairly put before the Council. (The court also noted that the weight to be attached to a relevant consideration is a matter for the decision-maker, provided that he does not act unreasonably.)
With regard to the change of planning policy, although the Inner House disagreed (“with some hesitation”) with Lord Pentland’s finding that there had been no material change to the planning policy, it found that the amendments made had been slight and amounted to mere fine tuning. The court had also been told that the Council’s planning officer had considered the terms of the planning policy and reached the view that both the developer and the Council had in fact taken a precautionary approach in relation to the proposed development. The court did not consider that the planning officer could be said to have erred in reaching that conclusion.
The full judgement is available from Scottish Courts here.
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