Scottish Court of Session Decisions

[1] In about 1994 the applicants applied to the then City of Aberdeen District Council for outline planning permission for residential development of a site at Contlaw Road, Aberdeen. No decision was given within the prescribed period and the applicants appealed to the Secretary of State in terms of sections 33 and 34 of the Town and Country Planning (Scotland) Act 1972. The Secretary of State appointed one of the Scottish Office Inquiry reporters, Mr. F. Cosgrove, to determine the appeal. Mr. Cosgrove held a public local inquiry in December 1995 and decided the appeal in the applicants' favour by a decision letter dated 6 March 1996. The second respondents, as statutory successors to the City of Aberdeen District Council, applied to the Court of Session to quash the reporter's decision and on 9 January 1997 the court granted that application. We were informed that the application was not opposed and that the reason for holding the decision invalid was that it proposed to include in the grant of the planning permission a condition in relation to the provision of educational facilities which was not a valid planning condition. After the decision of the court, the Secretary of State appointed Mr. Cosgrove to re-determine the appeal. Mr. Cosgrove held a public local inquiry on 11 and 12 November 1997 and, by a decision letter dated 23 April 1998, reached a decision adverse to the applicants.

[2] The grounds on which the decision was challenged by the applicants fall into two distinct chapters. The first chapter concerns a number of alleged procedural failures and breaches of natural justice arising from correspondence preceding the public local inquiry in November 1997, from the manner in which the inquiry was conducted and, to a certain extent, from events after the closing of the inquiry. The second chapter concerns the reporter's reasons for his decision which show, the applicants allege, that he erred in law. As regards both chapters, the points which are critical to the determination of this application fall into quite a short compass, but in order to explain the submissions which were made it is necessary to examine in a little detail the procedures which were followed.

[3] As part of the background, it should be explained that at the time of the first public local inquiry the relevant development plan was found in the Grampian Region (Part) Structure Plan - Aberdeen Area Review 1986. In its submissions to the first public local inquiry, the City of Aberdeen District Council maintained that grant of planning permission would be contrary to the policies found in that plan. The Council also founded on one of the policies set out in the Grampian Structure Plan which, at that time, had been submitted to the Secretary of State but not approved. Reference was also made to the fact that a small part of the appeal site was in the green belt. The reporter concluded, in the letter of 6 March 1996, that the site could be developed without materially infringing the protection of the green belt. As regards housing policy his conclusions can, very broadly, be summarised by saying that he regarded the 1986 structure plan as so old that little weight could be attached to it, that it was necessary to look elsewhere for guidance on how to meet an apparent shortfall in housing land allocation and that, taking account of all the circumstances, including the information as to housing land allocation and demand which was before him, the appeal site could properly be granted planning permission in order to assist in meeting that shortfall. By the time of the second public local inquiry, however, the Secretary of State had approved the Grampian Structure Plan. That plan included detailed figures for the demand for, and supply of, housing land and a number of policies with regard to housing land supply. Policy 4 stated:

Housing policy 5 was so set out as to encourage housing development on brownfield, gap and in-fill sites within settlements, subject to the availability of infrastructure. Housing policy 6 was headed "Housing provision in the Aberdeen Housing Market Area" and provided:

[4] There were then set out two tables showing, respectively, the residual of the January 1993 housing allowances in respect of a number of particular areas and the indicative housing allowances for the period beyond 2001. The appeal site falls within the area described as Lower Deeside and the residual of the 1993 housing allowances set out against that area was nil.

[5] In August 1997 the Contlaw Road Residents' Group, who had been objectors at the first inquiry, wrote to the Scottish Office Inquiry Reporters' unit seeking information about the re-determination of the applicants' appeal. On 27 August 1997 the SOIR replied stating that, apart from the condition in regard to educational facilities, it was understood that the court had not criticised, and indeed had not been required to consider, the rest of the decision letter and continued:

[6] The letter then gave information about the proposed date of the inquiry. On 22 September 1997 letters were sent by the SOIR to the applicants, the Contlaw Road Residents' Group and Aberdeen City Council with regard to the arrangements for the inquiry. Apart from one matter, to be referred to later, the letters were in substantially the same terms. The letter to the applicants stated:

[7] The letter also suggested that the applicants and the planning authority might co-operate with regard to the possible terms of a planning condition which might be substituted for the condition which had been held invalid. The letter to the Contlaw Road Residents' Group did not refer to the planning condition but otherwise was substantially in the same terms. The letter to Aberdeen City Council was again in similar terms but included the following:

[8] On 30 September 1997, the Contlaw Road Residents' Group wrote to the SOIR raising a number of questions as to how the matter of educational provision would be dealt with and how written submissions would be handled. There must also have been correspondence with Aberdeen City Council, although that part of the correspondence was not placed before us. On 6 October 1997 the SOIR wrote to the applicants' solicitors (and presumably also to the Residents' Group and the City Council). The letter to the applicants' solicitors stated:

[9] Not, perhaps, surprisingly this letter provoked a further round of enquiries from various parties about the proposed procedure. In due course, letters dated 10 October 1997 were sent to the applicants, the City Council, the Residents' Group and another interested party which explained that in such cases it was not normal for the public inquiry to be re-opened, but the reporter had sought permission to do so because the modifications to the Grampian Structure Plan, which had been announced since the quashing of the previous decision, were likely to amount to significant fresh evidence relating to the housing land requirement. The letters stated, inter alia,

[10] Later in the letter, it was stated:

[11] These letters provoked a further letter from the applicants' solicitors, dated 15 October 1997, in which they expressed concern about the terms of the letter of 10 October and what they submitted was a contradiction between it and the letter of 22 September, on which the applicants had been proceeding in their preparation for the inquiry. The letter of 15 October 1997 stated, inter alia, that the applicants had not been proposing to lead oral evidence on matters such as visual impact, green belt matters, landscaping and other similar topics. The letter also said that the applicants did not consider it appropriate for the reporter to look at fresh evidence on any topics other than housing land supply in the reconvened inquiry but continued:

[12] On 20 October 1997 the SOIR wrote to the applicants' solicitors stating, inter alia,

[13] In the submissions on behalf of the applicants, the correspondence was criticised on the ground that it had displayed an attempt to "twin-track" the inquiry by proceeding partly by way of a re-opened inquiry and partly by way of written submissions. It was suggested that the correspondence had been confusing and that the proposed procedure had not been in accordance with what was normal and proper in situations such as this. It was not, however, suggested that there was anything in the procedure which had been followed which was incompetent or contrary to any of the provisions of the relevant regulations. On behalf of the respondents it was submitted that, while some of the correspondence might be open to criticism, any real doubts or obscurities had been resolved by the time that the letter of 20 October 1997 was written and that there should have been no real confusion or prejudice as to what the inquiry was to deal with. In the end, the applicants' submission was that the critical errors on which they founded related to matters which arose at or after the re-opened inquiry. In these circumstances, while we agree that there was some obscurity and risk of confusion in the correspondence, we are not satisfied that there was any substantial procedural failure or anything which could be regarded as giving rise to a breach of the requirements of natural justice. The applicants aver that they were not able to prepare their evidence adequately, that they were not given fair notice of the scope of the inquiry and that they were prejudiced by the procedures which were adopted. However, there was no specification of any respect in which they were unable to prepare evidence or suffered prejudice in consequence of the pre-inquiry procedures and, in our view, the respondents are correct in their submission that by the time of the letter of 20 October 1997 any doubts about the scope of the inquiry or the procedures proposed to be adopted had been sufficiently resolved. In these circumstances, we do not think that there was anything in the pre-inquiry procedure which could be regarded as being in breach of proper procedures or contrary to natural justice.

[14] The applicants aver that at the inquiry the reporter allowed oral evidence on a wide range of topics, including roads, policies on cycling, school bus routes and others. There is, however, again no specific complaint as to any prejudice suffered by the applicants or any effect which these matters may have had on the decision of the reporter. The applicants further aver:

[15] Later, the applicants aver that the reporter had regard to matters to which he ought not to have had regard, and in particular to written submissions not properly before him and continue:

[16] There are further averments related to a dispute as to when the "precognition" was first notified to the applicants but it is not necessary to go into that matter. The applicants then aver:

[17] The respondents did not dispute the factual narrative contained in these averments of the applicants. It was, however, explained on behalf of the respondents that at the start of the inquiry the Contlaw Road Residents' Group had complained that they were the only party who had submitted an advance written statement, the Council having put in a statement in conformity with Rule 7 of the Procedure Rules but nothing more, and the Residents' Group sought an adjournment of two weeks. The reporter allowed a brief adjournment, but then proceeded with the inquiry, the applicants' position being that they wanted to get on with the question of the housing land supply and that if any other question arose then that would require an adjournment. The applicants' first witness had dealt with education matters and their next witness with housing land supply. The Council led a planning witness and a highways witness but none on education. In due course, the written submissions for which the reporter had asked were provided. The applicants' written submission, which was produced, deals with matters of housing land supply, education and roads and also with the specific question of a planning condition. We should add that paragraphs 49 to 63 of the decision letter of 23 April 1998 do set out what is described as the case for the Contlaw Road Residents' Group. In paragraph 49 the reporter states the position of the Residents' Group as being that they withdrew from the re-opened inquiry relying thereafter on their written submissions. Paragraphs 50 and 51 set out the Residents' Group case on housing land supply: paragraphs 52 to 58 deal with educational matters: and paragraphs 59 to 62 deal with road safety questions. Paragraph 63 is a general summary of the Residents' Group case.

[18] The essence of the applicants' submission in this part of their case appeared to be that because the Residents' Group had withdrawn from the inquiry, or, as it was repeatedly put, "withdrawn totally from the inquiry", the applicants had in some way been deprived of an opportunity to deal with their submissions in their precognition and had somehow been prejudiced. In our view, it is extremely difficult to see any justification for this complaint. It is clear on the averments and admissions of parties that the Residents' Group only withdrew from the inquiry on the basis that they had submitted the document described as a precognition to the reporter. The reporter's manner of dealing with the precognition indicates that he, at any rate, understood that the Residents' Group were relying on that as a written submission. There is a reference in the applicants' written submissions to the position of the residents, although it is only a passing reference and it might be unfair to place too much weight upon it. What is more important, in our view, is that the precognition had clearly been placed before the reporter and thereby became, as the respondents submitted, part of the material for him to consider. If the applicants had had any doubt about the status of the precognition, they had ample opportunity to clarify the matter before the close of the oral proceedings. In our view, therefore, there is nothing in this part of the procedure which justifies the applicants' complaint of breach of natural justice or prejudice.

[19] The last procedural matter on which the applicants founded was the reporter's treatment of a letter dated 7 January 1998 which was submitted to the reporter by the Residents' Group. The letter is a long document, including comments on many of the matters which were the subject of the inquiry and the report. It also included detailed observations on the findings of the reporter in another inquiry concerning land at Nigg, which was decided by a letter dated 29 December 1997. The reporter in that case regarded the determining issue as being whether the proposal was in accordance with the development plan and rejected the appeal on the basis that it was not. On 13 January 1998 the SOIR sent a copy of the letter to the applicants' solicitors, inviting comments on it. The solicitors replied by a letter dated 21 January 1998 in which they expressed the view that it would not be appropriate for the reporter to take cognisance of the terms of the letter of 7 January. The respondents' answer to this part of the applicants' complaint was, in brief, that the reporter had not in fact taken any account of the letter of 7 January and we were informed by counsel that that position had been confirmed by the reporter personally. The applicants, while not disputing that assurance, suggested that the request for comments on the letter, coupled with the fact that the Nigg decision had been introduced and that the conclusion reached had been based on similar policy considerations to those on which the decision in this case was based, had at least the appearance of an unsatisfactory procedure and that, in accordance with the well-recognised principle that justice must be seen to be done as well as being actually done, what had happened was sufficient to justify quashing the decision. In our view, the mere fact that the letter was circulated is not sufficient to suggest that there was any unfairness or appearance of unfairness in the procedure: indeed, considering the letter had been received it might be said that there was a positive duty, or at least a positive advantage, in the reporter keeping other parties informed of what had happened and allowing them the opportunity to make observations on it. In fact, what the applicants did was to suggest that the reporter should not take the letter into account and that is, according to the information given to us, what he did. As regards the similarity between the reasons in the Nigg inquiry decision and the decision letter in this inquiry, both decisions were concerned with the application of the same housing land policies and the similarity is not, in our view, sufficient to indicate that there was any unfairness or impropriety.

[20] In all the circumstances, therefore, in our opinion the applicants' complaints, based on alleged procedural unfairness or breach of natural justice, fall to be rejected. The other branch of the applicants' attack on the decision letter was that the reporter had erred in law. In the decision letter the reporter referred, at paragraph 69, to section 25 of the 1997 Act which required the appeal to be determined in accordance with the development plan, unless material considerations indicated otherwise, and to the development plan comprising the Grampian Structure Plan, as approved in July 1997, and the Aberdeen Local Plan, adopted in 1991 but under review. The reporter refers in paragraph 70 to material considerations, namely, relevant statements of Government policy and advice, housing land supply in the relevant area, the effect on the green belt and any community gain from allowing the appeal. In paragraph 72 he sets out the determining issues in the appeal as green belt policy, housing land allocation policies in the development plan, the question of whether there was a need to add to the effective supply of housing land and whether planning permission should be granted, if there were such a need, having regard to the specific characteristics of the appeal site. He refers, in paragraph 73, to the findings of his previous report in which he rejected the argument that the development would be contrary to green belt policy. He then proceeds to refer to the fresh evidence in regard to housing land policy. In paragraph 79 he says:

[21] Thereafter the reporter deals with some further arguments including an argument in regard to a need to roll forward post-2001 allowances of housing land and rejects that particular argument essentially on the basis that the Secretary of State would not have approved the GSP with an effective land supply so depleted that further land would need to be released within a few months of it coming into force.

[22] The applicants' argument was that effectively the reporter had interpreted policy 6 in the structure plan in such a way as to override policy 4 entirely because on the basis that there was a zero allowance in policy 6 for the area in which the appeal site fell permission could not be granted, notwithstanding the fact that there was a manifest shortfall in regard to the five year supply. What the reporter had done was to interpret policy 6 in such a way as to deprive policy 4 of all content and it was submitted that that was an error in law.

[23] In our view, this argument is plainly unfounded. It is clear that the reporter has fully considered all the policies and that his decision is an application of planning judgment on the basis of the material considerations. Accordingly, there was, in our opinion, no error of law.

[24] For all these reasons the application must be refused.