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.

Case in which Dawn Developments sought judicial review of Lanarkshire Council’s decision to grant planning permission to JHAG Ltd for a development which included a superstore, garden centre, filling station and hotel at Redwood Crescent in East Kilbride.

Dawn applied for planning permission for the erection of a superstore at West Mains Road in East Kilbride (approximately 1 km from JHAG’s proposed development) on 29 March 2010.  JHAG’s application had been lodged on 17 February and an objection to it was lodged on behalf of Dawn on 30 March.

Dawn had written to the Council requesting that its application should be considered at the same time as JHAG’s. However, at a meeting on 7 September 2010, the planning committee decided to consider JHAG’s application ahead of Dawn’s.

Dawn argued:

1)     that the council had failed to properly apply the sequential test; and

2)     that the procedure leading to the decision had been unfair.

Application of the sequential test

National Planning Policy requires application of the sequential test when considering applications for retail development. The test is designed to protect the commercial viability of town centres and involves considering locations for development in order from the town centre outwards.

In the first place Dawn said that when considering JHAG’s application the Council should also have had regard to its application which was sequentially equal. They questioned whether the Council was entitled simply to disregard its proposals generally as relating to a sequentially equal site, and whether, in considering the cumulative impact of JHAG’s proposed development with other actual or potential retail developments, their site should be taken into account.

In the second place they argued that, in assessing whether JHAG’s proposals could be accommodated elsewhere, the scale of the development should not be determined by JHAG’s application without considering whether a development on a smaller scale might be accommodated elsewhere.

When considering the authorities, Lord Drummond Young noted that the width of discretion that is available to a planning authority in applying national planning policies. In particular he referred to Tesco Stores [2010] CSOH 128 [2011] CSIH 9:

 “the sequential test … should be treated as a statement of policy designed to facilitate the delivery of national government objectives, not a rule of law. It was very difficult to suggest that there was one correct method of applying the test to the exclusion of other possible approaches. The correct method was a matter for the exercise of the planning judgment of the planning authority as to how to apply the sequential test. On that basis, a challenge to the application of the test would only be successful if the disappointed person could establish that the planning authority’s decision was unreasonable in the Wednesbury sense.”

 Lord Drummond Young found that a report prepared by the Council’s Executive Director (Enterprise Resources) and  considered by the Planning Committee at a meeting held on 5 October 2010 fully addressed the sequential approach and dealt with the cumulative effect of the development.

Lord Drummond Young also took the view that the reports conclusions fell squarely within the planning judgment of the local authority and was not persuaded that an incorrect approach had been adopted.

Procedural unfairness

With respect to procedural unfairness, Dawn argued that the Council’s officers significantly misinformed the Planning Committee.  Reports to, and comments made by, officers at the Committee’s meeting of 7 September 2010 were said to have contained inaccurate descriptions of the status of their application. The officers, it was said, gave the Committee to understand that there were fundamental problems with the Dawn’s application, in relation to both transportation issues and the period of time within which it was likely that such issues could be resolved.

However, the court heard that the Dawn had been represented at the meeting on the 7^th and that their representative had put their case clearly.  Lord Drummond Young took the view that Dawn was given a clear opportunity at that meeting to state its case and to refute any misleading statements made by Council officers.  The request to conjoin the applications was refused the meeting and no attempt was made to reduce that decision. It could not be said that there was any unfairness in taking JHAG’s application (which had been received first and proceeded rapidly) ahead of Dawn’s. Further delay would have prejudicial to JHAG and it was open to the Council to consider whether that prejudice was outweighed by the prejudice to Dawn in not having its application considered.

 As the decision not to conjoin the applications had been made and not challenged directly it was not necessary to consider the events after the meeting of 7 September. However, correspondence and other documentation after revealed that there were significant issues to be resolved with Dawn’s application which appeared to justify the statements made about the preparedness of Dawn’s application.

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 Mr McGinty sought reduction of National Planning Framework for Scotland 2 (NPF2) to the extent that it designates a new power station and transportation hub at Hunterston.

Mr McGinty’s argument was that the Scottish Ministers had not complied with their obligations relating to notice and consultation with regard to the proposed development.

Facts and background
The Ministers conducted a consultation process on the scope and content of NPF2 between February and October 2007. A discussion draft was issued in January 2008 with a consultation period from 8 January until 15 April 2008. The revised NPF2 was published in December 2008 and considered by the Scottish Parliament between 12 December 2008 and 6 March 2009. The finalised NPF2 was laid before the Scottish Parliament on 25 June 2009 and published on the Scottish Government’s website on 2 July 2009.

The Hunterston development was included as item 9 in a list of 14 national developments in the finalised NPF2 approved by the Ministers. However, it was not included in the discussion draft of NPF2 which had been issued in January 2008 (and contained only 9 proposed national developments). Hunterston had been proposed as a candidate for national development during the consultation process, the responses to which were posted on the NPF website on 8 August 2008.

On 19 September 2008 a supplementary consultation paper[1] was published on the NPF website and included 52 potential national developments including Hunterston.  At or about the same time the “NPF2, SEA Guide” and a newsletter were also published on the NPF website. Both of these publicised the supplementary paper and requested responses to it by 31 October 2008. Intimation of the supplementary paper was also made in the Edinburgh Gazette on 23 September 2008.

Arguments and decision
The Ministers contended that the publicity given to the supplementary paper was sufficient to comply with their requirements in terms of the legislation[2]. They also argued that, in any event, the petition was barred by mora, taciturnity and acquiescence and further that Mr McGinty had no title and interest to present the petition.

Mora
With regard to mora, taciturnity and acquiescence, Mr McGinty said that he first became aware of the Hunterston development’s inclusion in NPF2 at a public meeting in Largs on 28 July 2009, had contacted solicitors on 11 August and raised the petition on 23 September 2011.

Lord Brailsford found that, had the period of delay been confined to the 7 week period, there would probably have been no merit in the plea of mora. However, having formed the view that the procedure followed by the Ministers did not breach their obligations with regard to publicity, Mr McGinty ought to have been aware of NPF2 in September 2008.  Against that background Lord Brailsford was of the view that the plea of mora should be upheld.

Title and interest
With regard to Mr McGinty’s title and interest to raise the petition, the relevant facts were that Mr McGinty resided in Largs (about 5 miles from the Hunterston site). His only connection with the site, beyond the geographical proximity, was that he occasionally used it on an informal basis for recreational purposes.  Lord Brailsford said:

“Without in any sense wishing to denigrate such usage, from which I have no doubt the petitioner obtains both pleasure and benefit on the occasions that he exercises it, it cannot I think in fairness be regarded as other than somewhat vague and remote”.

At best, Lord Brailsford considered Mr McGinty may have been regarded as having title to sue in order to “prevent a breach by a public body of a duty owed by that public body to the public”. However, it was also found[3] that Mr McGinty did not have “a real and legitimate interest to protect” or “real and practical” interest to bring the proceedings. Lord Brailsford noted:

“He does not reside adjacent to the site and is not therefore a neighbour. His use of the site is limited, intermittent and non-essential. The type of usage he exercises over the site could in fact be exercised over any area of land to which the public has access at any location in Scotland. He does not sue as a member or representative of a group or organisation with title or interest. If an interest of this sort were to constitute sufficient interest to sue in a public law question then any member of the public who, on occasion, used a piece of ground for recreational purposes would have a title and interest to challenge a public law decision which affected that ground…. I do not consider that it is either desirable or, perhaps more pertinently, necessary for the discharge of public bodies to be subject to challenges by persons, no matter how well intentioned they may be, whose link with a site or subject are as remote as this.”

Publicity
There was also discussion as to whether advertising the Edinburgh Gazette was sufficient to comply with the requirements for publicity given that it is not of wide publication and is not ready available to, or even known by, members of the public.  However, Lord Brailsford took the view that the Edinburgh Gazette is the recognised method in Scots law of publishing formal and legal notices and, as long as that status remains, advertisement in it should be regarded as a proper means of bringing matters such as the supplementary paper to the public attention.

Also, although many members of the public would rarely visit the Scottish Government’s website, it too was an entirely proper means of making information available to the public.

Whilst publication in a local newspaper would be an effective means of bringing such matters to the public attention, Lord Brailsford did not consider it was the only means of doing so and, more importantly, did not consider it was a necessary requirement. Such a requirement would add considerably to the burden and cost of the administration of strategic planning and would constitute an unnecessary and onerous obligation on the Scottish Ministers.

The full judgement is available from Scottish courts here.

(See appeal to the Inner House here.)

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

Inner House case in which Penny Uprichard challenged a decision of the Scottish Ministers to approve the Fife Structure Plan 2006-2026 with Final Modifications dated May 2009.

The Fife Structure Plan includes provision for a significant expansion of St Andrews with a view to making the town an ‘economic driver’ for Fife. The Council submitted a report containing modifications to the Structure Plan[1] and, after considering the Structure Plan and the Council’s modifications, the Scottish Ministers issued the Finalised Fife Structure Plan incorporating Scottish Government modifications for consultation. Ms Uprichard objected to the modifications to the Structure Plan as they did not reverse the plans for the expansion of St Andrews. However, the Scottish Ministers then approved the Structure Plan as modified and published a document[2] (the May Document) containing the reasons certain modifications had been made and other proposed modifications had not been made. 

Ms Uprichard challenged that approval and concentrated her argument on an objection to the effect that assessments had shown St Andrews to be at its landscape capacity. The reason given for rejection of that objection (in the May Document) was that a study[3] had shown that there was some scope for development to the west of St Andrews. Ms Uprichard argued that that was insufficient reason for rejecting the objection contending that the site to the west of St Andrews was insufficient to accommodate development on the scale envisaged in the Structure Plan. She claimed that it was for the Scottish Ministers to give a reason for proposing development to the west of St Andrews that was beyond the land available.

The Inner House refused Ms Uprichard’s reclaiming motion finding that, although her objection was described as being purely a landscape objection founded on the alleged inadequacy of the landscape capacity of St Andrews for the proposed level of development, it was in fact a root and branch objection to the fundamental aims of the Structure Plan so far as they affect St Andrews. As such it was directed against the strategic land allocation to the west of St Andrews and the identification of St Andrews as an economic driver for Fife.

The court found that there was a wealth of material entitling the Scottish Ministers to conclude that St Andrews West should be one of the strategic land allocations that were a key element in the Structure Plan. The question of landscape capacity was taken into account but did not outweigh other wider considerations that were inherent in the adoption of the overall Structure Plan strategy.

The reasoned justification that Fife Council had offered for its policy for the growth of St Andrews as an ‘economic driver’ for Fife had been constant throughout the Structure Plan. Reading the May Document in its entirety, the Scottish Ministers had given due consideration to both that justification and to the objections of Ms Uprichard and had decided in favour of the justification. Their acceptance of the Council’s justification was a clear and adequate answer to Ms Uprichard’s objection.

The Lord Justice Clerk (Gill) also made the following comments:

“In a case where the adequacy of reasons is challenged, the court should consider whether the informed reader would understand the basis for the decision complained of. The reasons must be intelligible and must deal with the substantive points that have been raised; but in my opinion it is important to begin by considering the nature of the decision that is complained against and the context in which it has been made. In a case of this kind it is also important to assess the adequacy of the reasons on the basis that they are addressed to persons who are familiar with the background and the issues.”

The full judgement is available from Scottish Courts here.

(See appeal to the Supreme Court here.)

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

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 argued that the Council had failed to adopt the correct approach to assessing the risk of flooding arising from the development. In particular the petitioners argued that the Council had not adopted a precautionary approach to flood risk as they should have done in terms of the planning policy. They also argued that the Council had failed to understand and take proper account of objections which they had raised in a letter to the Council.

Lord Pentland refused the petition.  The petitioner’s case referred to a change in the wording of the planning policy. SPP7[1] had obliged the Council to “err on the side of caution where flood risk is an issue” whereas the new Scottish Planning Policy[2] (SPP) which replaced it stated instead that developers and planning authorities should take a “precautionary approach” in taking decisions where flood risk is an issue. This change, the petitioners argued, amounted to a new material consideration which the Council had to consider before granting the permission.  However, Lord Pentland found that the change was no more than “textual or cosmetic”.  This meant there was no material change in policy and no new material consideration for the Council to consider before deciding the matter.

Lord Pentland was also not persuaded that the Council had failed to give adequate consideration to the objections raised by the petitioners in their letter taking the view that all of the objections had been adequately summarised and addressed in the planning report which was presented to the planning officials.

The full judgement is available from Scottish Courts here.

(NB: see appeal to the Inner House here.)

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

The Scottish Government have published research looking at various methods of charging for development within the planning system in order to fund infrastructure.  Five different models were considered including a ‘blanket’ system similar to the Community Infrastructure Levy used in England.

Although the research determined that all five models were options for Scotland, the ‘blanket’ system was criticised for being short on certainty and not necessarily being tangibly linked to site developments. The models deemed to have the greatest potential were (1) the ‘measured charges’ model which bases the charge on the “infrastructure call” made by the development and depends on up front financing being available for specific phases of the development with payment of the charge being made at the point of build or on unit sales and (2) the ‘negotiated model’ i.e. the present section 75 contribution approach.  Also considered were a ‘central model’ (i.e. state funding for infrastructure) and an ‘innovative model’ which included various approaches such as Tax Increment Financing (TIFs) and Local Asset Backed Vehicles (LBVs).

The full Report is available from the Scottish Government here.

Case considering the grant of planning permission for a wind farm at Fallago Rig in the Lammermuir Hills.  Due to the large capacity of the development, consent was required by the Scottish Ministers in terms of the Electricity Act 1989. Consent was granted by the Scottish Ministers by a decision letter in November 2010. In terms of the legislation that consent is also deemed to be planning permission for the development.

There were a number of interested parties who objected to the development leading to two public enquiries and what is described as voluminous correspondence.  The petitioners sought reduction of the decision letter on various reasons (including natural justice, ultra vires, unlawful conditions and inadequate reasons), however, the main thrust of their argument was bias.

The petitioners argued that, while it was quite lawful for elected representatives to be predisposed to renewable energy (it being Government policy to encourage the development and use of renewable energy from natural sources), it was not lawful to pre-determine an application which fits that policy without first considering the objections. In this case the petitioners argued that the government had made up their mind to bring about the conditions in which consent could be granted. They argued that the Government had had covert conversations with the MOD (which was the main objector to the development on the basis that the turbines could interfere with radar systems) and those conversations were successful as the MOD withdrew its objection. This, they argued, showed bias.

After detailed consideration of the authorities Lord McEwan looked to the test for bias in Porter v Magill (2002) in which Lord Hope came to the conclusion the test was:

“… whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that …” (the decision taker) “… was biased”

Lord McEwan took the view that the best guidance on the application of that test to a planning case was given in R (Lewis)v Redcar and Cleveland Borough Council (2009) which made it clear that a Minister’s position is different from someone holding a judicial or quasi judicial office:

“… the requirement made of such decision makers is not, it seems to me, to be impartial but to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other. It is noticeable that in the present case no complaint is raised by reference to the merits of the planning issues. The complaint, on the contrary, is essentially as to the timing of the decision in the context of some diffuse allegations of political controversy. So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required… ‘ unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision … “

After considering the documents and evidence, Lord McEwan found that, far from showing pre-determination on the part of the Minister, there was a great deal to indicate the opposite i.e. an open fair mind. He also failed to find that the conduct of the Minister could be criticised noting that “in the realm of administrative law there is nothing wrong with the decision taker meeting an objector.”

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.

Appeal by Hallam against the adoption of the Edinburgh City Local Plan. Hallam argued that the Council had rejected reporters’ recommendations as to sites at Newcraighall North and Newcraighall East without giving adequate reasons for doing so. The Council’s development company EDI was involved in both developments and the reporters had recommended reducing the number of housing units allocated to each site. To make up the structure plan’s requirement for additional housing in the urban fringe, the reporters recommended increasing the number of units at two other sites (one of which was owned by Hallam).

Lord Malcolm allowed the appeal and granted an order quashing the Edinburgh City Local Plan in so far as it includes the allocation of housing units at both Newcraighall North and Newcraighall East. In coming to this decision Lord Malcolm referred to the decision in Oxford Diocesan Board of Finance v West Oxfordshire District Council and another (1998):

“Even in cases involving planning judgement, the planning authority must give adequate and intelligible reasons for its decision. It must be apparent that the authority fully and
properly considered the substantial points raised by the reporters. It must deal with the matters relevant to the merits of the decision and give sufficient reasons for departing from the reporters’ conclusions. The obligation to deal with the matter thoroughly, conscientiously, and fairly is enhanced when (as here) the council is both a promoter of a site and the ultimate decision-maker. It would not be sufficient for a planning authority merely to recite a series of assertions. While what is needed will vary from case to case and depend on the context and precise circumstances, fair and specific consideration of the report is required.”

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.