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 claim for damages under the Occupiers Liability (Scotland) Act 1960. Mr Dawson worked as a self employed courier and was delivering a package to Ms Page’s cottage. Building works were taking place at the cottage and the surroundings resembled a building site.  After making two unsuccessful visits to the cottage to deliver the package, Mr Dawson left the package under an oil storage tank in the back garden. As he was leaving the cottage he slipped on a wet plank over a trench in the garden and injured his hand.

Mr Dawson’s claim for damages failed in the Outer House.  After noting wet planks are slippery and a notice is not required to point that out, Lord Glennie found that there was no requirement on Ms Page to exclude people from the site or give warning of the risks. The Inner House observed that the fundamental aim of the 1960 Act had been to the restore a broad test of reasonableness in relation to such claims and rejected Mr Dawson’s appeal which was based the argument that Lord Glennie should not have reached the conclusion that a state of affairs which is obvious is not a danger.

The full decision 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 a proposed development of 12 flats by Greenland Developments on land to the south of Veitch’s  Square, Stockbridge in Edinburgh. Despite being recommended for approval by the planning officer, the application was refused as the development was deemed to be contrary to the Local Plan in various respects.  Greenland appealed to the Scottish Ministers.  Following an unaccompanied site inspection and consideration of the documentation, a Reporter refused the appeal by means of a brief decision letter. Greenland then appealed that decision. They argued:

• the Reporter had failed to provide adequate and intelligible reasons for refusing the appeal;
• the Reporter’s decision letter had failed to pay due regard to the terms of section 25 of the 1997 Act which provide that where, in making a determination under the Town and Country Planning (Scotland) Act 1997, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise;
• the handling of the appeal by the Reporter had been tainted by procedural irregularities in that the Reporter had refused a reasonable request on behalf of the appellant that she should hold an accompanied site inspection and had also refused a request that she hear part of the appeal by way of oral process;
• Regulation 4(2) of the The Town & Country Planning (Appeals) (Scotland) Regulations 2008 provides that within 21 days of receipt of notification of a Notice of Appeal, the planning authority must send to the Scottish Ministers its response to the appeal, together with associated documentation. In this case the Council had failed to do so; and
• finally, it was argued that the Reporter had erred in failing to consider whether the imposition of a relevant condition might have rendered acceptable what she otherwise considered to be an unacceptable development.

An Extra Division of the Inner House refused the appeal finding that it had been open to the Reporter to reach the findings she had. It was perfectly clear from the decision letter which findings and conclusions the Reporter had reached and why she had reached them.  She also had the discretion to refuse to have an accompanied visit and to refuse to hold an oral hearing.

With regard to s25 of the 1997 Act, although the Reporter did not specifically refer to the statutory provisions, she applied the correct legal test. She considered whether the proposed development would have a detrimental impact on the amenity of the New Town conservation area. In the light of those findings she assessed whether the proposed development complied with specified polices in the development plan, whether the proposed development would be in accordance with the development plan and whether any other material considerations warranted granting planning permission in the face of conflict with the development plan.

With regard to the Reporter’s consideration of the response by the Council to the Greenland’s Notice of Appeal, regulation 4(2) provides that, in addition to the planning authority’s response, the planning authority also require to send to the Scottish Ministers a copy of the documents which were before the planning authority in reaching their decision, a copy of any report on handling and any conditions the planning authority consider should be imposed in the event that the Reporter decides that planning permission should be granted. Given the scope of the documentation, the Extra Division did not consider that the public interest would be served if the Reporter could not take the documents into account if they were not submitted in the 21 day period.

Finally, as regards the failure to consider whether the attachment of conditions may have rendered the development acceptable, although reference to a possible condition had been made on behalf of Greenland, it had not been argued that the imposition of the condition on its own would have enabled the Reporter to reach a different conclusion. Furthermore, the information before the Reporter was not such as could have satisfied the Reporter that the householder concerned would agree to the condition or that there was any reasonable prospect that such a condition could be complied with. The possibility of any other conditions being imposed was not raised with the Reporter at any stage.

The full text of the decision is available from the Scottish Courts website here.

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