Inner House case concerning a petition for judicial review of the decision of Fife Council to grant planning permission for the building of a new Madras College on greenbelt land at Pipeland on the outskirts of St Andrews.

Background
The current Madras College is located on two sites and in need of replacement. The Executive Committee of Fife Council (as the education authority) had agreed, amongst other things, that a replacement school should, where possible, be situated on a single site. Planning permission for the building of a new school on a single site at Pipeland was granted on 16 May 2014 subject to a number of conditions.

Arguments
In the Outer House, the petitioners had argued that the council decision (and preceding planning officer’s report) had treated the education authority’s criteria as if they had been overriding planning requirements and so had failed to balance the educational considerations with the relevant planning considerations for the alternative sites. The petitioners also contended that the decision to rule out an alternative site at North Haugh (identified as a school site on the local plan) as it was too small ignored the possibility of combining it with the current playing fields at Station Park (with which it could have been linked by means of an underpass).

Decision
Lord Malcolm refused the petition in the Outer House and the petitioners appealed.

The Inner House allowed that appeal.

As the locating of the school at Pipeland was contrary to the development plan, it could only be approved if justified by sufficiently weighty material considerations[1].  In this regard, national planning policy provides that such a development can be approved where there is proven need and an absence of a suitable and available alternative site.

Where the planning authority was satisfied as to the need for the school and that the effect of a school on the greenbelt could not be mitigated, the key question was whether the school should be at Pipeland or on an alternative site with less environmental consequences. As to that, the planning authority:

“had to assess the respective merits and demerits of the other sites as compared with the merits and demerits of Pipeland.  The preferences and requirements of the applicant were relevant factors, but by no means decisive.  Any applicant developer, whether for retail, housing, or an educational development, will be influenced, perhaps primarily influenced, by its own interests.  The role of the planning authority is to reflect and safeguard the wider public interest in the proper planning of development in the area, including appropriate protection and conservation of the environment.  This is where the question of the suitability of alternative sites comes into the picture.  Given the acknowledged significant harm caused by development at Pipeland, if, in the opinion of the planning authority, a satisfactory alternative could be found which is consistent with the development plan and causes significantly less environmental harm, that would be a clear reason for refusal of the current application.”

In this case, the court found that the factor which had influenced the planning authority’s decision was the separation of the North Haugh site and the conflict this brought with the education authority’s desire for a single site. The planning authority had accepted the education authority’s decision as to the site instead of exercising its own planning judgement. However, the planning authority should have made up its own mind as to the alternative sites and have done so with regard to planning considerations[2].

“The planning authority was diverted from the planning judgment which it required to carry out if properly exercising its jurisdiction.  The full council was effectively told that it should ignore the issue as to whether the green belt could be protected by using an urban site, because the applicant had already considered the matter and its decision was determinative.  Thus the councillors were put in the position that if they wanted a new Madras College, and that had been a pressing need for many years, they would have to sanction development at Pipeland.”

 The full judgement is available from Scottish Courts here.

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[1] In terms of s25 of the Town and Country Planning (Scotland) Act 1997

[2] The judgement includes a postscript on the dangers involved when a Council is both an applicant and a planning authority.