Inner House case concerning a planning appeal relating to a site on Seafield Road in Blackburn. Hallam applied for planning permission in principle for the construction of a residential development of approximately 120 houses. West Lothian Council refused planning permission for the development and an appeal to the Scottish Ministers by Hallam was also refused by the reporter appointed to determine it.  Hallam appealed to the Court of Session against the reporter’s decision.

There were two main issues at the centre of the appeal:

• whether there was a deficiency in the supply of land for new housing and whether the proposed development would help make good any such deficiency; and
• whether there was adequate school accommodation for children from the proposed development.

The reporter had found that the supply of effective housing land in West Lothian and in the area local to the appeal site was “adequate to meet current market demand for new houses” and thus the proposed development was not justified in terms of maintaining a five years’ supply of effective housing land.   The reporter also concluded that there was a lack of education capacity at Bathgate Academy and St Kentigern’s Academy to accommodate children from the proposed development meaning that the development did not comply with the relevant strategic development plan.

The Inner House found that the reporter had been entitled to conclude that insufficient capacity was available in local secondary schools to support the proposed development and, consequently, that planning permission for the development would not comply with the strategic development plan. That conclusion had been sufficient to allow the reporter to refuse Hallam’s appeal. However, the Inner House also noted that the reporter’s conclusion with regard to the supply of housing land had been erroneous and that the court would have allowed the appeal if it had not been for the lack of education provision.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case in which Tesco sought to challenge a decision by Perth and Kinross Council to agree to the removal of a condition contained in a section 75 agreement made with Sainsbury’s.

 The s75 agreement was ancillary to a grant of planning permission allowing Sainsbury’s to construct a large store on a site in Perth to the southwest of the junction between the A9 and A85. There was known to be traffic congestion in the vicinity of the proposed development and Sainsbury’s had put forward a number of proposed road traffic “mitigations” in order to ensure that the new superstore would cause “no net detriment” to the road network. In terms of clause 5 of the s75 Agreement, Sainsbury’s agreed to pay a traffic mitigation sum before it commenced work on the development.  Clause 6 of the Agreement contained a trading restriction to the effect that the new superstore should not open for trading until such time as the Council had let the contract for the construction of the road improvement works.

There was some slippage from the original timetable for the carrying out of the road improvement works which meant that it would not be possible for the Council to let the contract for the construction of the works when originally envisaged. This led to the possibility that Sainsbury’s would end up in the position of having completed the development but be unable to open for trading because of a delay in the letting of the road construction contact.

As a result, Sainsbury’s applied to, and obtained from the Council, a modification of the s75 agreement deleting clause 6 of the agreement.

Tesco (the owner of a nearby store) argued that, in allowing the modification, the Council had:

1. failed properly to interpret its own development plan;
2. failed to address a material issue, namely whether clause 6 was still necessary and/or still served a useful purpose;
3. failed to give adequate or intelligible reasons for its decision and/or had no factual basis for key parts of its decision; and/or
4. reached a decision that no reasonable planning authority could have reached.

The Inner House rejected all of those arguments and refused Tesco’s petition.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering a planning appeal in respect of an application for the development of a waste to energy combined heat and power plant in Invergordon.

The Reporter determining the appeal had granted permission subject to a number of conditions, one of which permitted the power plant to accept a maximum of 100,000 tonnes per annum of waste originating from within the Highland Council area.  However, the condition also stated that a proportion of the waste could originate beyond the Highland Council area.

The Inner House found that the condition was invalid as the reference to the waste from outwith the Highland Council area meant that the permission granted went beyond that which had been applied for (the application had provided for incineration of Highland waste only) and thus beyond what had been considered at the planning inquiry. The developer’s Environmental Impact Assessment had also been drawn up on the understanding that only Highland waste was to be treated at the plant. All of this meant that the planning authority (Highland Council) and the Ross Estates (objectors) had been disadvantaged and their appeal on that basis was held to be well founded.

The court found that the invalid condition was not severable from the rest of the planning decision (on the basis that the planning permission may not have been granted at all if it had been appreciated that the condition was invalid) and so it was not possible to quash only that condition. However, whilst the planning inquiry required to be re-opened, it was unnecessary to rehear the entire case and the inquiry would only have to deal with the invalid condition. If the reporter considered that the condition was essential to the grant of permission he would have to hear evidence and submissions from all of the parties on its merits. If the reporter were to consider the condition, as drafted, not to be essential to the permission, then it was open to him to substitute an amended condition.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering a petition brought by Sustainable Shetland for judicial review of the Scottish Minister’s decision to grant planning permission to Viking Energy Partnership for a 103 turbine wind farm development on a site of approximately 50 square miles on mainland Shetland.

When the relevant statutory provisions[1] were being considered in the Outer House, it was discovered that Viking did not hold a licence to generate electricity. On a construction of the provisions, Lady Clark found that it was not open to the Ministers to grant consent for the building of the wind farm to persons who were not licence holders or exempt persons[2] in terms of the legislation.

Lady Clark also concluded that there was merit in Sustainable Shetland’s argument that there had been a failure on the part of the Ministers to take proper account of their obligations under the Wild Birds Directive 2009[3], finding that they had failed to properly engage with the directive in any meaningful way when reaching their conclusion.

Arguments
The Scottish Ministers’ appealed on two grounds:

1. Whether, on a proper interpretation of the Electricity Act, an application for section 36 consent could competently be made only by a person who held a licence under section 6 or an exemption under section 5 (the competency issue).
2. Whether, having regard to the information before them, the Scottish Ministers had failed to engage with their obligations under the Wild Birds Directive (the whimbrel issue).

Decision
The Inner House allowed the appeal on both grounds.

The Competency issue
Sustainable Shetland decided not to insist on the competency issue and did not present any arguments based on it. However, at the suggestion of Lady Clark, an amicus curiae[4] was appointed to present the argument. Nevertheless, after presenting a written argument on the point, the amicus curiae indicated that he no longer considered that he could support the Lady Clark’s decision on the point. The Inner House considered that Sustainable Shetland and the amicus curiae had been correct in their decision not to support the decision of the Lady Clark on the competency issue.

The Inner House found that the holding of a licence is not a condition precedent to the granting of consent of section 36 and agreed with the reasoning of Lord Doherty in Trump International Gold Club Scotland Ltd v The Scottish Ministers in which the same argument (adopted by Trump following Lady Clark’s decision) was rejected [4].

The whimbrel issue
With regard to the whimbrel issue, the Inner House found that, instead of deciding whether the Ministers’ decision had been lawful once account had been taken of the Wild Birds Directive, Lady Clark had considered whether the Ministers had demonstrated that they had fully understood and complied with their obligations under the directive irrespective of the likely effect of the consent on the bird population. The Inner House noted that, whilst the Minister’s decision letter did not make specific reference to the Wild Birds Directive, it was clear from the letter that the decision had been made having regard to an assessment of the impact on the whimbrel population which had been put forward by Scottish Natural Heritage under reference to the Directive.

The full judgement is available from Scottish Courts here.

(See also appeal to the Supreme Court here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case concerning a planning appeal by Patersons in respect of the refusal of an application to allow the extraction of minerals at Lamington near Biggar.

Paterson’s planning application was refused by South Lanarkshire Council on 28 March 2012. A subsequent appeal was then refused by a reporter appointed by the Scottish Minister’s on 9 January 2012 on the basis of both the landscape and visual impacts of the proposed development.

Paterson’s appealed to the court on the basis that the reporter had:

• failed to keep in mind the overriding and imperative nature of the need for mineral;
• erred in his interpretation and application of planning policies ENV4 (Protection of the Natural and Built Environment), ENV29 (Regional Scenic Areas and Areas of Great Landscape Value Policy) and MIN2 (Environmental protection hierarchy);
• reached a decision which was perverse or “Wednesbury unreasonable”; and
• failed to use the opportunity to resolve matters by imposing conditions.

The Inner House refused the appeal. It found, when the decision was read as a whole, it could not be suggested that the reporter overlooked, or lost sight of, the overriding and imperative nature of the need for minerals. It also found that the reporter’s interpretation of each of the planning policies had been correct. Further, he had taken all of the positive factors into account before exercising his planning judgement to decide that the positive factors were outweighed by the negative factors and, as such, his decision was not perverse or “Wednesbury unreasonable” (i.e. a decision so unreasonable that no reasonable person acting reasonably could have made it). With regard to the possibility of imposing conditions, the court found that the reporter had been entitled to be cautious in his approach to suggest conditions when there might be EIA publicity requirements, and moreover the reporter had not had sufficient material before him to enable him to assess the repercussions or consequences of such conditions.

 The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Petition for Judicial Review in which Trump International sought to challenge the Scottish Government’s decision to grant permission for an offshore wind farm near its golf resort at Menie in Aberdeenshire[1].

Trump argued that the Scottish Government:

1. should have held a public inquiry before reaching its decision; and
2. should not have granted consent in terms of s36 of the Electricity Act 1989 as the wind farm developer did not hold a licence to generate electricity.

Public inquiry
Trump contended that the Scottish Government’s failure to hold a public inquiry would raise in the mind of the fair-minded and informed observer a real possibility that the decision-maker was biased.

S36 argument
Trump founded on the decision in Sustainable Shetland v The Scottish Ministers in which Lady Clark found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity.

Decision
Lord Doherty rejected these arguments. The decision not to hold a public inquiry had been lawful (the Minister has a wide discretion as to whether or not to hold a public inquiry) and Trump had not set out any objective justification as why it indicated bias. As regards s36 of the 1989 Act, Lord Doherty disagreed with the interpretation taken by Lady Clark in Sustainable Shetland and found that the Act conferred power on the Scottish Government to grant s36 consent even though Aberdeen Offshore did not have a licence to generate electricity.  Trump’s petition was dismissed.

The full judgement is available from Scottish Courts here.

(See also appeals to the Inner House and Supreme Court.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case in which Mr Barr appealed a decision of the Outer House refusing his appeal of East Renfrewshire Council’s decision to grant planning permission to Stewart Milne Homes Limited to construct a development in Newton Mearns.

Background
Mr Barr lived at Fa’side House which was adjacent to the proposed development and was accessed by a tree lined driveway. The planning brief stated that the development should deliver “protection of the existing tree boulevard along the access to Fa’side House”. Mr Barr argued that the Outer House failed to recognise that, when granting permission for the development, the Council had failed to take account of a key requirement in its own planning brief and thus failed to take account of a material consideration.

Decision
The Inner House refused the appeal finding that it was plain from the decision that the judge had correctly identified the legal issue submitted by Mr Barr. It also refused to accept that the Council had failed to have regard to the content of its planning brief. In the Council’s “Report of Handling” there had been express reference to the planning brief and its objectives, including the need to protect the tree boulevard.

In the court’s opinion, Mr Barr’s complaint was, in essence, not that the Council had failed to have regard to the objectives of the planning brief but that they had failed to reach a conclusion that the proposed development would, in a material way, breach the planning objectives. In effect, Mr Barr was arguing that the proximity of the trees to the new development would inevitably lead to the trees requiring to be removed for safety reasons. However, the court found that Mr Barr had failed to show that there was evidence before the Council to support this argument.

In the view of the court, Mr Barr’s criticism of the Council decision related to the merits of the planning decision and to matters on which the Council was entitled to reach a conclusion.

The full judgment is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering whether additional parties (including the Trump Organisation) could intervene in the case of Sustainable Shetland v The Scottish Ministers which concerned the Scottish Government’s decision to grant planning permission for a wind farm on Shetland.

Background
In the Outer House Lady Clark had, in essence, found that consent to build a wind farm could not be granted to developers who did not already hold a licence to generate electricity (this finding has become known as “the competency question”). As was noted by the Inner House, the competency question has caused a “degree of consternation” amongst wind farm developers.

The Scottish Minister’s sought to appeal the decision of the Outer House. However, although they have indicated that they wish to maintain environmental arguments, Sustainable Shetland have indicated that they do not wish to maintain an argument based on the competency question.

A variety of parties including the Trump Organisation[1], various wind farm developers and the RSPB then sought to intervene in the proceedings in terms of Rules of Court 58.8(2) (which allows parties directly affected by any issues raised in proceeding to intervene) and 58.8A (which allows parties to intervene in order to raise an issue of public interest).

Decision
Rule 58.8(2) – parties directly affected
The Inner house found that Trump and the other wind farm developers could not be said to be directly affected by the issues raised in the proceedings:

 “As a general rule, if a public law decision is challenged, for whatever reason, the range of persons able to enter the process remains limited to those who can show an interest in the outcome of the case; that is to say not in the potential legal reasoning employed by the court in reaching a decision, but in the decision itself. Neither Trump nor AES K2 and the related companies have any interest in the outcome of whether the Shetland windfarm goes ahead.”

Rule 58.8A – issues of public interest
Trump’s application under rule 58.8A also failed. They were not advancing a public interest point. The point which they sought to make was one intended as a protection of their private interests in the marketing of their Menie development.

The Outer House also rejected the RSPB’s application under rule 58.8A noting that, although they had interest in the bird life on the wind farm, they had had the opportunity to intervene in the Outer house proceedings and chose not to do so. Consequently, the Inner House did not consider it appropriate to allow the RSPB to enter the process at the appellate stage under the guise of a public interest intervention. Further, given the positions of Sustainable Shetland and the Scottish Ministers, the court did not consider that any propositions advanced by the RSPB would be likely to assist the court.

The full judgement is available from Scottish Courts here.

Outer House decision concerning Trump International’s challenge to the Scottish Government’s decision to grant permission for an offshore wind farm near its golf resort at Menie in Aberdeenshire. (My blog on some of the issues surrounding the golf resort can be seen here.)

Following the recent decision in Sustainable Shetland v The Scottish Ministers in which Lady Clark came to the conclusion that it was not competent to grant planning permission for a wind farm to persons who were not licence holders or exempt persons[1] under the Electricity Act 1989, Trump International lodged a minute of amendment seeking to add the argument made by Sustainable Shetland (referred to as the “competency question”) to their pleadings. They also sought to have the competency question dealt with before the other issues in the case and referred to the Inner House.

Lord Woolman allowed Trump international to amend their pleadings[2] to include the competency question but, having regard to the potential consequences and effect it might have on the overall delay, refused the motion to detach the competency question from the other issues in the case.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.