Inner House case concerning a brownfield site at St David’s Harbour in Dalgety Bay owned by Eadie Cairns Limited. The site had been previously used for both commercial and residential purposes until 1980 when it became derelict.

Background
In 2007 Fife Council produced a planning brief for developers proposing a mixed use development on the site. Eadie Cairns submitted an application for outline planning permission for a commercial and residential development along the lines of the planning brief. The Council failed to determine the application timeously and it was made the subject of a public local inquiry.  The Council opposed only the residential part of the application. In November 2007, the reporter at the inquiry allowed an appeal against the failure to determine the application and granted outline planning permission[1]. In October 2009 Eadie Cairns applied for detailed planning permission for 27 flats, a restaurant/bistro and a lighthouse. Planning permission was refused and the reporter[2]  refused an appeal on the basis of the siting of the flats.

By February 2010, the new proposed Dunfermline and West Fife local plan had been drafted. It  recorded that the Eadie Cairns site already had outline planning permission for commercial leisure and housing uses but also stated that if the permission were to remain unimplemented and expire the site should remain undeveloped and revert to greenspace. Eadie Cairns made representations opposing this aspect of the draft plan.

When considering approval of the plan, the Scottish Ministers required Fife Council to prepare a summary of unresolved issues in relation to the plan (including reasons the Council did not modify the plan in response to issues raised in representations). The Council identified Eadie Cairns objection to its site’s reversion to open space if planning permission lapsed and, as a reason for not accepting the objection, said:

“The site has significant planning history and was the subject of recent planning appeal.  The Draft local plan … maintains [the Council’s] position should the permission remain unimplemented.”

Meantime Eadie Cairns submitted a fresh planning application (for 24 flats, a restaurant/bistro and a lighthouse) after detailed discussions with Council’s planning officers. The Council again failed to determine the application timeously and Eadie Cairns again appealed to the Scottish Ministers. On the same day (3 May 2012) as the reporters ceased gathering information relating to the proposed local plan, Eadie Cairns sought to draw their attention to the fresh planning application stating that the planning officers’ support for the new application was inconsistent with the Council’s proposal for the site to revert to green space. The reporters refused[3] to consider this information and (noting that the outline permission for the site had lapsed) formally adopted the plan. The Scottish Ministers then refused the fresh application on the basis it did not accord with the plan.

Argument
Eadie Cairns sought an order quashing the entry relating to their site in the plan on the basis of the Council’s failure to give reasons. They argued that the reporters had not noticed the council’s failure and had not sought out their reasons (in contravention of national planning policy and guidance). The lack of reasons meant that the reporters could not properly scrutinise whether the proviso (i.e. that the site should return to greenspace) was appropriate or not.

Decision
Representations made by Eadie Cairns on 3 May 2012
The Inner House found that there had been no requirement for the reporters to take into account the representations Eadie Cairns had made on 3 May 2012 with regard to the fresh planning application. The statutory scheme involved a “cut-off date” at the point the reporter had completed examination. The purpose of the reporter’s examination was to assess issues raised in unresolved representations. The examination began at the point the Council summarised the objections and gave its reasons for not modifying the daft plan. Although the reporter could call for further representations, it was not obliged to consider any offers to provide additional representations. Consequently the “cut-off date” had long since passed by 3 May 2012.

Reasons given by Fife Council
The Inner House held that the Council had given no reasons for not modifying the proposed plan in terms of Eadie Cairns’ representations. Whilst the Council would not be criticised for giving reasons in a succinct, broad manner, intelligible reasons have to be given. The Council’s explanation of their position had been opaque. Their position, at the 2007 inquiry, was that commercial leisure, but not residential, development was appropriate for the site. However the inquiry had established that they had been wrong in relation to proper planning considerations and that a mixed commercial leisure and residential development was appropriate. Not only should the Council’s reasoning have provided coherent justification (preferably in the form of a material change in circumstances) for departing from the findings of the reporter in the 2007 inquiry, but it should also have given justification as to why the Council was no longer supporting the principles it had promoted in the 2007 planning brief.  In the absence of such reasoning there was:

“no apparent justification in planning terms for leaving an area of privately owned ground in amongst what is an urban development as, in effect, wilderness, especially in circumstances where it had formerly been the site of a bustling commercial harbour and remains what appears to be a prominent element in the local planning context.”

Reasons given by the reporters
The effect of this flaw in the Council’s reasoning had been that the issues had not been properly focused before the reporters. Whilst the reporters could have cured the flaw by requesting more information, they had not done. The Inner House found that no intelligible reason had been given by the reporters as to why the principle of commercial leisure and residential development established in 2007 was no longer appropriate for the site.

The Court also noted that the reporters had provided an erroneous, or at least materially incomplete, narrative of the planning history of the site and quashed the whole proposal relating to the site in the development plan.

The full judgement is available from Scottish Courts here.

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