Scottish Court of Session Decisions

[1] This is an appeal under sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997 ("the Act") by Invervale Limited ("Invervale"). It is taken against the decision of a reporter appointed by the Secretary of State for Scotland to allow an appeal by Wimpey Homes Holdings Limited ("Wimpey") and Morrison Bowmore Distillers Limited against the refusal by Aberdeenshire Council ("the Council") to grant outline planning permission for a proposed residential development, public open space and bypass road on land west of Glengarioch Distillery, Oldmeldrum, communicated to Invervale on 10 May 1999.

[2] The reporter held a public local inquiry in November 1998 at which evidence was led and which was concluded with consideration of submissions on 8 February 1999. In the intervening period he made accompanied inspections of the site and surroundings, taking in another site referred to in the decision letter as "the Invervale site", with numerous locations and vantage points mentioned in evidence. He also undertook various unaccompanied inspections of the area before, during and after the inquiry. No issue arises as to the propriety of the procedure followed at the inquiry except to the extent referred to in the second ground of appeal in relation to the decision letter.

[3] The first ground of appeal is that in paragraph 126 of his decision letter, the reporter purported to accept the validity of the Consolidated Aberdeenshire Local Plans (1998) ("CALP") as a deposited draft local plan but went on to conclude that the provisions therein relating to Oldmeldrum were based on a number of misjudgements and that negligible weight could be attached to its provisions. It is said that the reporter's decision was in effect a challenge to the validity of the relevant provisions of CALP and as such was beyond the powers contained in the Town and Country Planning (Scotland) Act 1997, and in particular section 237(1) thereof. The Act made provision for a local plan inquiry where there were objections lodged to a deposited draft local plan.

[4] For the appellants it was submitted that the error into which the reporter fell was to allow the public local inquiry to become an independent review of CALP and not simply an inquiry directed to a determination of the planning appeal by the respondents concerning their planning application for a single site. It was to pre-empt the statutory process by which a draft local plan, having been prepared under reference to publicity and consultation in accordance with section 12 of the Act, would, where objections were lodged, become the subject of a local inquiry held in terms of section 15 prior to adoption in terms of section 17.

[5] In our opinion there is no merit in this ground of appeal. The deposited draft local plan was not a plan which constituted any part of the relevant development plan for the purposes of the Act (section 24). It had not been adopted. Since it did not have the status accorded to those plans which constitute a development plan for the purposes of section 25, it did not carry with it the presumption laid down in section 25 that the determination of the reporter should be made in accordance with that plan unless material considerations indicated otherwise. Indeed as section 17 provides, the local authority may modify a draft local plan prior to adoption to take account, amongst other things, of objections to it presented after the draft plan has been deposited. On the other hand, it was accepted on both sides of the bar that its existence as a deposited draft local plan was a material consideration in relation to the determination which the reporter was called upon to make in the appeal. The provisions of section 237(1)(a) apply to CALP as a draft local plan intended as a replacement of the Gordon District Local Plan (1989) but one which at the date of the appeal had not yet been adopted by the Council. However section 237(1) read short merely provides that "Except as provided by this Part, the validity of 'any such plan' shall not be questioned in any legal proceedings whatsoever". It is clear, when regard is had to section 238 (proceedings for questioning the validity of development plans and certain schemes and orders) or section 239 (proceedings for questioning the validity of other orders, decisions and directions), that the word "validity" encompasses two specific matters each of which may be the subject of challenge by an aggrieved person. Firstly, there are the powers of the local authority conferred upon it under Part II of the Act and whether these have been exceeded in what was done in the making of the plan or other orders. Secondly, there is matter of procedural propriety on the part of the local authority and whether there has been compliance with the statutory procedure required under the Act or in regulations made under it. It appears from paragraph 24 of the decision letter that the respondents had presented an argument to the effect that except for the local plan inquiry process, the draft plan once deposited must be accepted as valid, that is to say, within the powers of the local authority and not open to challenge as perverse or unreasonable. But nowhere in the decision letter can we find any suggestion by the reporter that the Council acted ultra vires in preparing the deposited draft local plan or criticism that the procedures followed by the Council to the date of the inquiry had been faulty in that they did not comply with the statutory requirements in any way. On the contrary, the reporter makes clear that he was not concerned with such matters. Indeed in paragraph 124, in a section dealing with evidence about public opinion, he states that although they might be unfair, it was regrettable that unfavourable impressions of the plan making process had been allowed to develop. He then commented that the inquiry provided a transparent examination of all the evidence, with participation on fair and equal terms. He went on:

[6] He was faced with evidence led by the parties to the inquiry, including the present appellants and the Council, which required him to consider in detail matters which were relevant to the terms of the draft deposited local plan insofar as that related to the appeal site and the appellants' site which was favoured in CALP. Counsel for the respondents reminded us that, even where a presumption is laid down as a statutory requirement as it is in section 25, it is in essence a presumption of fact. And it is with regard to the facts that the judgment must be made by the decision taker in any determination under the planning Acts, as Lord Hope of Craighead pointed out in his speech in City of Edinburgh Council v. Secretary of State 1998 SC (HL) 33 at page 36. The decision taker is in principle entitled to decide that the presumption in favour of the development has been overcome by other material considerations, as Lord Clyde said at page 46 in the same case. Nothing in the decision letter gives any support to this ground of appeal. The power of the Council to proceed to the preparation of the deposited draft local plan was accepted by the reporter as was the power of the Council to decide to refuse the respondents' planning application by reference to, amongst other things, its preference for the appellants' site for housing at Oldmeldrum. But that did not foreclose consideration by the reporter of the relative merits of the two sites in the context of the development plan and the policies set out in it and in CALP.

[7] We would add that we were informed that prior to the public local inquiry the respondents had offered to both the Council and the respondents to sist the appeal to await any local plan inquiry for CALP or at least to allow the applications for the appeal site and the Invervale site to become the subject of conjoined appeals, but these proposals had not proved acceptable. Indeed because of the mutually exclusive nature of the competing applications, it had been necessary for the respondents, following the completion of the public local inquiry but prior to the issue of the reporter's decision, to obtain interim interdict to prevent the Council proceeding to consider and grant the appellants' application for planning consent in advance of the reporter's decision.

[8] The second ground of appeal was that the reporter had failed correctly to conclude that CALP had significant weight in the determination of the issue before him and properly to assess the weight to be given to any another relevant matter against that background. The other matters in fact taken into account by the reporter in reaching his decision were matters already fully addressed in CALP itself and no relevant change in the circumstances leading to the treatment accorded to them by CALP was identified. There were accordingly no material considerations which ought properly to have outweighed the planning scheme set out in CALP, and in concluding that the CALP scheme was outweighed by other matters, the reporter erred in law and exceeded the power of the 1997 Act in failing to attach appropriate relative weight to the material before him.

[9] Counsel for the respondents on the other hand submitted that the decision letter if properly read, presented a clear, rational and relevant statement of the case which the reporter required to consider and the reasoning upon which his conclusions on the evidence led at the appeal, and thus his determination, were based.

[10] These submissions require to be considered in the context of the decision letter and its terms. The reporter started by noting that the appeal was against the refusal by the Council to grant outline planning permission for residential development, public open space and a bypass road on land west of Glengarioch Distillery, Oldmeldrum. In paragraphs 4 to 14 he set out the background to the appeal. This section contained descriptions of both the appeal site and the Invervale site (paragraphs 4 and 5). In paragraph 9 a summary of the reasons for refusal was set out. The reporter noted these reasons as being that the appeal site lay in the East Gordon Countryside in the statutory local plan (1989) and in Countryside Around Towns in the Consolidated Aberdeenshire Local Plans (1998) (CALP); that on each basis the appeal site was outwith the settlement in an area where development of the scale proposed was not permitted; that the proposal therefore offended council policies and the development plan agreed for Oldmeldrum; that in addition approval would pose an unacceptable precedent of significance. In paragraphs 10 to 13 the reporter set out the relevant policy background as including as the more prominent elements, the Grampian Structure Plan (1995), the Gordon District Local Plan (1989) and CALP. He summarised those of their provisions most relevant to the appeal. In particular he took note in the Structure Plan (1995) approved in July 1997 of Housing Policy 6 (Housing Provision in the Aberdeen Housing Market Area) and Housing Policy 9 (Permissions in Advance of Local Plan Adoption). The former policy specified pre-2001 allowances for individual settlements including Oldmeldrum and required local plans to take account of indicative allowances likewise specified for these settlements, to meet a 2001-2006 shortfall. He further noted that CALP allocated the western part of the Invervale site as a proposal for 190 houses with its eastern part safeguarded for Possible Future Development (to deliver the Structure Plan housing allowance to 2006). He also noted that CALP contained certain policies relevant to infrastructure and affordable housing, which he then summarised.

[11] From paragraphs 14 onwards to paragraph 88 the reporter set out the case summaries for the three main parties, Wimpey, Invervale and the Council, and the local residents who appeared at the inquiry. This he did under headings related to specific topics, policy and related issues (paras. 15 to 27), visual and other environmental aspects (paras. 28 to 40), traffic and access issues (paras. 41 to 55), infrastructure, planning gain and developer contributions (paras. 56 to 77), public opinion (paras. 78 to 86) and planning conditions and agreements (paras. 87 and 88). We note that in paragraph 21 the reporter alludes to part of the case made for the Council under reference to CALP, in the following terms:

The above quotation indicates clearly that the criteria which were in mind when CALP was being prepared by the Council in relation to Oldmeldrum encompassed the various topics specifically addressed in the evidence placed before the reporter.

[12] The next chapter in the letter beginning at paragraph 89 was headed "Conclusions". That paragraph began with a reference to section 25 of the Act and correctly identified the Structure Plan and the adopted Gordon District Local Plan (1989) as the development plan. The reporter noted that the Local Plan was prepared with earlier Structure Plan policies in mind. He then said

This statement of the issues was both correct and appropriate.

[13] In paragraph 90 the reporter found that the proposal conformed to the 1995 Structure Plan in much the same measure as the proposed Invervale houses. He noted that although the site lay within Countryside Around Towns and was covered by Policy Rural Grampian 3, that policy left local plans to specify its precise coverage. However he observed that CALP was not past deposit stage prior to the inquiry, far less independently evaluated. He concluded that the Rural Grampian policy could not credibly favour either site over the other and was of neutral effect, as were certain other of the Housing Policies. Certain further policies relating to housing and employment land did not require allocations at any particular point in Oldmeldrum. Housing policy 9 turned upon which site was preferred. Although it favoured the Invervale site, the comparison was, the reporter stated, "thoroughly ventilated by all 3 main parties to this inquiry and remains open to review". He was to return to this matter in paragraph 129. Other housing policies specified no particular levels of developer contributions or affordable housing. In the result he concluded in paragraph 91 that the provisions of the Structure Plan were of generally neutral value in the appeal, stating that this conclusion was supported by parties' recognition that the appeal site and the Invervale site would meet the terms of the housing policy which provided for housing in the Aberdeen Housing Market Area. The reporter then continued as follows:

Counsel for the appellants subjected this paragraph to some criticism. However, reading what is said there in its context, we consider that the reporter was well founded in his view that because of the generally neutral value of the Structure Plan and the fact that the adopted local plan was of no particular assistance, the determination primarily required to be made under reference to the issue whether material considerations justified exceptional approval.

[14] In the next paragraph the reporter considered policy considerations in these terms:

We consider that it is impossible to fault the reasoning of the reporter set out in this paragraph. He acknowledged the fact of CALP as a provisional statement of the Council's policies and preference, as being a material consideration. He was faced with comparative evidence led by each of the three main parties in relation to the two sites, only one of which could be developed. Furthermore the Council had elected not only to favour the Invervale site but there was the acknowledged prospect of an application in relation to that site being approved in advance of local plan adoption. That being so, the reporter was fully justified in looking to that comparative evidence in order to determine what weight to give to CALP since the factors to which such evidence was directed were the same as those which gave rise to the Council's provisional support in CALP for the Invervale site.

[15] Thereafter the reporter narrated his reasoned conclusion with regard to each factor. He dealt with visual and other environmental effects (paras. 94 to 99), traffic and access issues (paras. 100 to 106), infrastructure, planning gain and developer contributions (paras. 107 to 121), public opinion (paras. 122 to 124). He returned to the outstanding policy issues in the light of these other matters and set out his conclusions as follows:

In the last sentence the reporter was doing no more than repeat what he had remarked earlier about that plan. Against that background he proceeded in paragraph 126 to identify the weight to be attached to CALP against his findings in fact and conclusions on the factors set out in paragraphs 94 to 124. He came to the view drawn from these findings and conclusions that the Council's choice of sites was flawed in several respects. Having taken this view, he concluded that the provisions in CALP for Oldmeldrum, "as explored in this letter", were based on a number of misjudgments and negligible weight could be attached to those provisions. Accordingly he held that CALP could not decisively influence the outcome of the inquiry. He continued in paragraph 127:

[16] Counsel for the appellants did not suggest that the matters specified as flaws or misjudgments were not properly based upon material drawn from the reporter's assessment of the evidence led before him and the conclusions reached by him on that evidence. His submission was based on the proposition that the material considerations to which the reporter had regard were all factors which had been the subject of careful comparison when CALP was being prepared by the Council. CALP contained the considered judgments of the Council. The only material considerations which the reporter was entitled to set in the balance against CALP required to be factors outwith CALP. Since no such factors were relied upon by the reporter, his determination was fundamentally flawed. At the end of the day his submission came to be little more than submitting that the reporter should have supported the council's choice of the Invervale site because it was in CALP. Not only is this to give CALP a status which it did not possess in terms of the Act, it is also to disregard the fact that those factors upon which the Council's comparisons proceeded were matters which were examined in evidence and the fact that the reporter was not in any way bound by the Council's judgments in relation to them.

[17] In our opinion nothing said by way of criticism of the reporter's decision letter persuades us that he erred in the manner in which he approached his task of determining the appeal or that he went outside his remit. The weight to be attached to CALP was a matter of fact upon which he was required to adjudicate by virtue of the cases brought before him by the three main parties, not least because it was accepted that there was no support for the proposition that both sites could be developed. Furthermore there was no bar in the Structure Plan policies to determining the appeal in advance of adoption of CALP. It was for him to determine the weight to be given to CALP and any statement of policy contained within it so far as it was relevant to the issues arising at the appeal (see City of Glasgow District Council v. Secretary of State for Scotland 1992 S.C.L.R. 453). No doubt plans proceeding towards adoption can be regarded as material considerations because their existence indicates that a relevant policy is under review and the circumstances that have led to that review may be taken into account by a reporter. But the reporter remained free to look afresh at these matters in the light of the evidence led before him and to consider whether the Council had sound reasons for refusing the appeal. In the present case we agree with counsel for the respondents that the decision reached by the reporter is based on proper, intelligible and adequate reasons and that the reporter dealt fully and properly with all the material which was placed before him.

[18] For these reasons we have refused the appeal.