Scottish Court of Session Decisions

Shba Ltd v. Aberdeen City Council & Anor [2002] ScotCS 102 (10th April, 2002)

OUTER HOUSE, COURT OF SESSION
	OPINION OF LORD WHEATLEY in APPEAL TO THE COURT OF SESSION under section 238 of the Town and Country Planning (Scotland) Act 1997 by SHBA LIMITED, Appellants; against (FIRST) ABERDEEN CITY COUNCIL and (SECOND) ABERDEENSHIRE COUNCIL, Respondents: _______

Appellants: Martin, Q.C., Drummond; Paull & Williamsons

Respondents: Moynihan, Q.C., E.C. Brown; R. Henderson, Scottish Executive for 1^st Respondents; Gale, Q.C.; Robson McLean for 2^nd Respondents

10 April 2002

1. The appellants are a company incorporated under the Companies Act and are limited by guarantee. They represent the interests of residential housebuilders in Scotland and operate through committees or groups of members in different parts of the country. In the north east of Scotland their local representatives are the Grampian Housebuilders Committee. As residential housebuilders they have an interest in the Structure Plans produced by local authorities in their areas.
2. The provisions governing the preparation of Structure Plans are found in the Town and Country Planning (Scotland) Act 1997, and in particular Part II of that Act. Section 5 of the Act provides for the designation of Structure Plan areas and recognises the part to be played in such a development by the local planning authority. Section 7 provides for the form and content of the plans themselves. Section 9 provides specifically for alteration and replacement of Structure Plans. Section 10 provides for approval or rejection of the Structure Plan by the Secretary of State (now the Scottish Ministers) and for proposals for alteration or replacement to the Plan by them. Of particular significance in this case is section 4(1) of the Act which imposes a duty on the planning authority to keep under review the matters which may be expected to affect the development of their district or the planning of its development. In general terms, all parties to this appeal agreed that the purpose of any such Structure Plan prepared by a local planning authority in terms of the Act was to provide a policy framework for land use within the authority's area. Authorities also require to produce Local Plans, which provide more detailed specification of how the Structure Plan is to be implemented in practice. Section 10 of the Act authorises the preparation of Local Plans. The Structure Plan therefore provides the general context in which the Local Plan must operate, and together the two documents form what is known as the Development Plan for any area. Section 24 of the Act provides the statutory definitions of this arrangement and section 25 makes it clear that any determination under the planning legislation requires to be made in accordance with the Development Plan unless material considerations indicate otherwise. Accordingly, the immediate and particular significance of the Development Plan for the appellants is that it is the means by which the local authority manages development in their area. Further, it is of significance in the present appeal that by virtue of section 7(2) of the Act the local authority, in formulating their policy on the general proposals for a Structure Plan, requires to show that these are justified by the results of surveys carried out in terms of section 4 of the Act. While, as indicated above, section 4(1) requires a planning authority to keep under review those things which may be expected to affect the development of their district or the planning of its development, section 4(2) empowers the authority to institute surveys to examine the matters which may affect such development. The matters that the planning authority must keep under review are described in section 4(3) and include the principal physical and economic characteristics of the district and the size, composition and distribution of the population. In essence the planning authority must go through a consultation exercise in preparing the Structure Plan, then publish their proposals which are subject to objection and comment. After that has happened, and after any public inquiry that might be thought necessary, the Scottish Ministers may approve or reject the plan or make modifications to it.
3. In the present case, the City of Aberdeen Council and Aberdeenshire Council jointly submitted a finalised Structure Plan to the Scottish Ministers on 26 April 2001. The Scottish Ministers then invited objections and comments on the Plan. Of particular concern to the appellants was Chapter 3 of the Plan. In chronological order, the significant parts of Chapter 3 which affect this appeal can be summarised as follows. Paragraph 3.6 notes the need to identify two housing market areas, the Aberdeen Housing Market Area and the Rural Housing Market Area, and to provide an effective five year supply of land available within those areas for housing. This paragraphs leads to Policy 7 which seeks to maintain at all times a minimum five years supply of effective housing land, or land that is capable of being effective for housing purposes. In paragraph 3.7 it is indicated that the policy of the plan is also to be informed by strategic employment, population and housing forecasts. The paragraph goes on to provide that:

"On the basis of the most recent forecast published in October 1999, likely housing requirements are shown in Table 2."

The forecasts referred to are contained in the Structure Plan Area Forecasts Main Report for Aberdeen City and Aberdeenshire Councils 1998 to 2016, and the associated Structure Plan Area Forecasts Technical Report, both of which were published in the autumn of 1999, and were referred to in the appeal as the 1999 forecasts. Table 2 is headed "Housing Requirements 2000 to 2015" and contain figures for each of the two market areas for the periods from January 2000 to December 2005, January 2006 to December 2010, and January 2011 to December 2015, together with overall totals. Paragraph 3.8 then notes that in anticipation of a more buoyant economy, the robustness of the Structure Plan can be secured by introducing what is described as headroom flexibility. This allows for a potential increase in housing allocations of 20% in the Aberdeen Housing Market Area and 10% in the Rural Housing Market Area. In other words the Structure Plan anticipates that if the economy were to improve as a result of promotional economic policies contained elsewhere in the Plan and endorsed by the local authorities then additional housing would become available. Table 3 then provides the figures for the additional housing which such flexibility would produce, and covers the same time periods as Table 2. Paragraph 3.9 provides that the overall position on the provision of housing land will be monitored by an annual housing land audit. Policy 8 specifies in detail the housing allocations to be identified by the local plans for the period from January 2000 to December 2005; policy 9 indicates the expected need for housing by providing allocations for January 2006 to December 2010, and policy 10 anticipates what might be required in the way of housing for the period 2010 to 2015. Throughout these policies reference is made to the use of brownfield sites in the context of planning permissions, and policies 13 and 14 are concerned respectively with developer contributions to particular developments and affordable and special needs housing.

4. The appellants, through the Grampian Housebuilders Council, made representations to the Scottish Ministers in respect of the Structure Plan in June 2001. Their representations were concerned with Chapter 3 and Policies 8, 9 and 10 of the Plan. In brief, these objections were concerned with a view that the Structure Plan understated the requirement for housing in the area for the years 2000 to 2015. No objection was taken to Policy 7. It was a matter of significance in the debate that the Structure Plan provided more than sufficient housing land in terms of Policy 7 to satisfy all of the projections for housing requirements during the whole period of the Plan, including the higher figures for housing requirements argued for by the appellants. This statement was at no time challenged by the appellants, and appeared to be correct. The appellants did not therefore seek to displace Policy 7. The appellants also made reference to the Plan's forecasts on the use of brownfield sites, developer contributions, and affordable and special needs housing.
5. In September 2001 the Scottish Ministers issued draft modifications to the Plan, none of which related to the matters about which the appellants had made representations. The Scottish Ministers thereafter invited further comment and again, on 29 October 2001, the appellants made representations to the Scottish Ministers. These representations were on the same subject as the appellants' earlier representations. Then in October 2001 the joint Councils approved and issued a report entitled "Strategic Forecasts of Aberdeen City and Aberdeenshire 2000 to 2016". This report, which was referred to in the appeal as the 2001 forecasts, identified a significantly higher housing requirement than that predicted two years earlier, based on a more positive outlook in employment and a higher population forecast. The 2001 forecasts exceeded the figures projected in the 1999 forecasts even when the latter statistics were increased by the operation of the principle of flexible headroom. The appellants submitted further representations to the Scottish Ministers' initial draft modifications on 29 October 2001 and made particular reference to the 2001 forecasts in support of their principal submission that the housing requirement figures had been understated. The joint Councils themselves had submitted this report to the Scottish Ministers in the course of the modifications approval process. The Councils considered the 2001 forecasts on 27 November 2001, and concluded that there was no need to alter the Structure Plan. The view was taken that the headroom flexibility currently built into the Plan and the provisions for review in the later part of the Plan period should ensure that an adequate housing land supply could be maintained through the Development Plan process. The Joint Council's Report also acknowledged the requirement in the Plan to monitor the situation in order to review the housing numbers requirement throughout the period of the Plan. They therefore advised the Scottish Ministers that while they had noted the terms of the 2001 forecasts, they did not consider that the Structure Plan required to be altered in any way.
6. The Scottish Ministers issued their decision letter on 17 December 2001, approving the Structure Plan with modifications, and making it operative from that date. Attached to the Decision Letter was an annex (Annex B) which contained a list of the objectors to the Structure Plan, a summary of their objections, and a brief statement by the Scottish Ministers in respect of these objections. The appellants' objections submitted as described above were described (at p. 11 of the Annex) as "Object to the overall housing requirement as expressed at Policies 7, 8, 9 and 10 as based on low forecasts". The Scottish Ministers' response was that "No new population and household forecasts were available in the short term". This is the principal issue in the appeal. There was no mention in the decision letter or in the Annex to the figures contained in the strategic forecasts issued by the joint Councils in Autumn 2001for the period 2000 to 2016 (the 2001 forecasts) which were available to the Scottish Ministers before they issued their decision letter. A secondary question in the appeal was concerned with representations made by the appellants to the Scottish Ministers in both June and October 2001 concerning the level of brownfield sites provided for in the Plan, the question of developer contributions to particular developments, and the question of affordable and special needs housing. There is no reference to any of these matters in the Scottish Ministers' Decision Letter, or in Annex B.
7. This appeal is therefore taken under section 238 of the Act. Section 238(1) provides:-

"If any person aggrieved by a Structure Plan or a Local Plan or by an alteration, repeal or replacement of any such Plan desires to question the validity of the Plan or, as the case may be, the alteration, repeal or replacement on the ground -

1. that it is not within the powers conferred by Part II, or
2. that any requirement of that Part or of any regulation made under it has not been complied with in relation to the approval or adoption of the Plan or, as the case may be, its alteration, repeal or replacement,

he may make an application to the Court of Session under this section".

Paragraph 238(2) provides:-

"On any application under this section the Court of Session -

.......

3. if satisfied that the Plan or, as the case may be, the alteration, repeal or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the Plan or, as the case may be, the alteration, repeal or replacement either generally or in so far as it effects any property of the applicant".
8. Section 239 of the Act, which refers to the more commonly considered appeals from planning decisions, is identically worded so that the same tests which apply to planning appeals can be applied to considering appeals in respect of Structure Plans.
9. The present appeal is in the first instance concerned with whether the Scottish Ministers, in terms of their decision letter of 17 December 2001, acted outwith the powers conferred on them by Part II of the Act in terms of section 238(1)(a), and whether any requirement of that Part of the Act has not been complied with in relation to the approval or adoption of the Plan in terms of section 238(1)(b). In particular, the appellants in the present case claim that the Scottish Ministers did not take into account the 2001 forecasts indicating increased housing requirements and the appellants' related representations in issuing their decision letter. Accordingly, the appellants maintain that the Scottish Ministers failed to have regard to material and relevant considerations in coming to their decision to approve the Structure Plan. The appellants further claim that the Scottish Ministers have failed to give adequate reasons why they did not accept the 2001 forecasts and the appellants' representations. Finally in this respect the appellants argued that in failing to modify the development plans in terms of the 2001 forecasts and the appellants' representations, the Scottish Ministers reached a decision which they could not reasonably have reached.
10. Parties to the appeal appeared to be in general agreement, at least in broad terms, as to the legal principles which apply to an appeal of this kind. The appropriate test for considering whether the Scottish Ministers had acted in contravention of section 238 was in practice the same test that applied in judicial reviews. Counsel referred to the well established dicta of the Lord President (Emslie) in Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T.345:-

"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it".

Further, at p.348 it is noted that:-

".... all that requires to be said is that in order to comply with the statutory duty imposed upon him the Secretary of State must give proper and adequate reasons for his decision which deal with the substantial question in issue in an intelligible way. The decision must, in short, leave the informed reader and the Court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it".

Additional references were made to Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 W.L.R.1320; Re Poyser & Mills' Arbitration [1964] 2 Q.B.467; Bolton Metropolitan District Council & Others v Secretary of State for the Environment & Others 61P.& C.R.343; Save Britain's Heritage v Number 1 Poultry Limited & Others [1991] W.L.R.153 and Scottish Housebuilders Association v Secretary of State for Scotland & Another 1995 S.C.L.R.1039.

11. Counsel for the appellants therefore submitted that the failure by the Scottish Ministers to have regard to the 2001 forecasts was fatal to their approval of the Structure Plan. The 2001 forecasts contained relevant and material considerations which they ought to have examined before issuing their decision letter. The only explanation which the Scottish Ministers had given in response to the appellants' representations was that no new population or household forecasts were available in the short term. This meant that the Scottish Ministers accepted that they had not taken the 2001 forecasts into account, or if they had, they had failed to give adequate proper reasons for the decision not to include this material in their decision (see Re Poyser & Mills' Arbitration at p.470). Counsel accepted that reasons do not have to be given in every situation, but if reasons are given and they are wrong, it was submitted, the whole process of approval of the Structure Plan is flawed. It had been simply wrong for the Scottish Ministers to suggest that there was no new population and household statistics. The increase in the housing requirement figures in the 2001 strategic forecast was significant, and no reasonable Minister could have reached a decision which did not refer to those figures.
12. For the Scottish Ministers it was submitted that the only issue in the case was the question of whether the Scottish Ministers had been acting properly and correctly in not referring to the 2001 forecasts in issuing the decision letter. The position of the Scottish Ministers in their decision letter was clear and unequivocal; they had considered all of the representations and objections made to them in coming to their decision. The issue before the Scottish Ministers in respect of the housing requirement and allocation figures was whether the Structure Plan could properly base its housing policy on the 1999 forecasts together with the potential increase allowed for by the headroom flexibility. In the present appeal, counsel submitted, the only real issue was whether Policy 8, which was concerned with the housing requirements for 2000 to 2005, should be quashed. Policy 9, which refers to the housing requirement for 2005 to 2010 has to be reconsidered within 5 years. Policy 10, which relates to the period from 2010 to 2015, is also subject to review. Accordingly both Policies 9 and 10 have an inbuilt requirement to reflect the provisions of section 4(1) of the Act. In terms of their letter to the Scottish Ministers dated 27 October 2001, the appellants sought to rely on the 2001 forecasts but only in relation to Policies 9 and 10 of the Structure Plan and to the overall figures for housing requirements with the addition of flexible headroom for the period from 2000 to 2015. The appellants were therefore not proposing at that stage to increase or exceed the allocation of housing land already available. The reason for the appellants' stated position at that time was that they accepted that the proposed allocations in Policy 8 and Tables 4 and 6 for the period up till December 2005 exceeded the 1999 forecasts requirement with headroom flexibility and indeed also exceeded the revised housing requirements that would be required by the 2001 forecasts. They also accepted that the Plan provides sufficient effective land supply for the entire period of the Structure Plan. Accordingly the appellants in terms of their representations to the Scottish Ministers in the latter part of 2001 specifically did not seek to amend the housing allocations up until 2005, but sought only to update Table 3 and Housing Policies 9 and 10. In these circumstances, the Scottish Ministers response to their objections at page 11 of Annex B, attached to their decision letter of 17 December 2001, was entirely appropriate. The appellants did not suggest that the 2001 forecasts were relevant to the current five year period. The reference to the new population and household forecasts being unavailable in the short term was a clear reference, it was suggested, to the General Registrar of Scotland's figures for 2000 which were not due to be published till 2002. These figures are first referred to in response to objections by a Mr Downie at page 2 of Annex B, and thereafter in respect of a number of other objectors. An informed reader would understand perfectly well what was meant at this stage by the unavailability of short term forecasts. The Scottish Ministers had therefore made no error in fact, and had not failed to take into account material and relevant information said to be contained in the 2001 forecasts.
13. For the Joint Councils it was submitted that the court should exercise its discretion in favour of approval of the Plan. In terms of section 238(2)(b) of the Act the court had a discretion as to whether the Plan should be quashed in whole or in part, and there was no reason not to exercise that discretion in the respondents' favour. On the basis of the material placed before them in respect of Policies 8, 9 and 10, the decision reached by the Scottish Ministers was neither ultra vires or unreasonable. The proposals for planning development could not be entirely regulated by forecasts; nor were they written in stone, but were subject to constant revision. Further, Scottish Ministers had the benefit of the Joint Council's views on the 2001 forecast figures, which were to the effect that no adjustment of the Structure Plan was necessary, as it contained sufficient flexibility to meet any increased demand for housing.
14. The first question that had to be decided therefore was what is meant by the note at page 11 of Annex B of the Scottish Minister's decision letter to the effect that no short term forecasts on population or households were available. If this can be construed as a reference to the 2001 forecasts, then plainly the response to the appellants' objections contains a fundamental error. It would therefore follow that, as the appellants argued, the Scottish Ministers could be said to have failed to take account of relevant and material considerations, and that there was no basis in fact for making that statement. However, I have come to the conclusion that the reference at page 11 in Annex B to the unavailability of short term forecasts on population and households cannot possibly, on any view, be a reference to the figures contained in the 2001 forecast reports. Firstly, Annex B must be read as a whole. Reading the Scottish Ministers response to Mr Downie at page 2 of Annex B, to Tor Ecosse at page 4, to Mr Murray and Mr Reid at page 5, and to the appellants at page 11, I have no doubt that reference is being made in all these entries to a common set of statistics. Further, I think it is a reasonable inference to take from these entries that the short term population and household forecasts referred to are those based on the year 2000 by the General Registrar of Scotland, which are due to be published in August 2002. That is the conclusion I believe an informed reader would reach. Further the description of these forecasts clearly possesses characteristics which differentiate them from the 2001 forecasts, which were neither based on 2000 nor due to be published in August 2002. So even if there is any doubt on the face of the decision documents about precisely what source the reference to short term forecasts for population and households relate to, it is clear that they do not relate to the 2001 forecasts. There is therefore no ground for concluding that by referring to the absence of short term forecasts at page 11 of Annex B, the Scottish Ministers had either failed to consider the 2001 forecasts, or had failed to consider them in a proper manner. The Scottish Ministers, in my reading of what is said at page 11 of Annex B, have simply not referred to the 2001 forecasts at all. It is accepted that the only obligation on the Scottish Ministers is to consider every relevant matter; they are not obliged to mention everything in their decision letter, (City of Edinburgh Council v Secretary of State for Scotland per Lord Clyde at p.50). In their decision they make it clear that they did in fact consider every objection, and there is no reason to think that they did not do so. In the event, it is not surprising that the Scottish Ministers should not refer to the 2001 forecasts in the response to the appellants' objections. Those objections, as outlined in the appellants' letter of 29 October 2001, refer at page 4 to an update of Table 3 (which contains the headroom flexibility figures for 2000 to 2015) and Policies 9 and 10, which refer to the housing allocation and requirements for the years 2005 to 2015. It would therefore seem reasonable to assume that the 2001 forecasts were being used by the appellants to justify an increase in the housing allocation and requirement for the longer term, as opposed to the current 5 year period, and were not considered by them to be relevant to the immediate short term. Both Policies 9 and 10 have inbuilt requirements for review, which will no doubt take account of both the Registrar's 2000 statistics due to be published in 2002, and the 2001 forecasts. Consideration of Policies 9 and 10 was therefore irrelevant in deciding whether the Structure Plan should be approved. There appears therefore to be no reason to criticise the Scottish Minister's view that in the short term the population and household figures based on 2000 and due for publication in 2002 were not available for material consideration at the time when they approved the Structure Plan. Accordingly I can find no reason for concluding that the Scottish Ministers were not in a position properly to approve the Plan in December 2001, or that they were obliged to have regard to the 2001 forecasts for the purpose of that approval. Nor, in my view, can it be said that these various conclusions were such that no reasonable Minister could reach them. I therefore hold that the appellants' principal submission in this respect is unfounded in fact.
15. There is in my view a further reason why the appellants' submissions should not succeed. Had the appellants demonstrated that the reasons given by the Scottish Ministers at page 11 of Annex B in respect of the appellants' objection were wrong or indicated a failure properly to consider relevant material in terms of section 238(1), the question would then have arisen as to what should happen. Section 238(2)(b) makes it clear that the court, if satisfied that the Plan is ultra vires of the powers conferred by Part II of the Act or that the interests of the applicant have been substantially prejudiced, may quash the Plan in whole or in part. This requires two matters to be considered. The first is whether or not the appellants would have been prejudiced had they established their right to succeed in this appeal under section 238(1). Counsel for the Scottish Ministers submitted that the appellants had failed to identify any prejudice either in their grounds of appeal or in their submissions. While it is true that the appellants did not make any such explicit claim, it would be difficult to deny them a remedy on that ground. If their submissions in support of their objections had been relevant to support a claim that Policy 8 should be amended to increase the number of houses to be built in the current period (2000-2005), then it would be difficult to see how any failure to examine properly an argument to increase those immediate numbers could not be regarded as prejudicial to their interest.
16. However, in respect of the second question, it does seem clear that in terms of section 238(2)(b) the court has a discretion as to whether, in the event of a successful challenge to the validity of the Structure Plan, it should in any particular case quash the Plan in whole or in part. The terms of the subsection indicate that the court may quash the Plan as opposed to being required to do so. Reference was made to Scottish Housebuilders Association v Secretary of State for Scotland and Anr. and First Corporate Shipping Ltd v North Somerset Council (unreported) 4 May 2001. This proposition did not appear to be challenged by the appellants. The respondents made submissions under two heads in support of their claim that the Court should exercise its discretion by not rejecting any part of the Structure Plan. Firstly, it was said that it would cause serious difficulties for the planning authorities, who would require to go back to the beginning of the process, at least in respect of those parts of the Plan which were quashed, and begin again. This would also cause serious difficulties for applicants for planning permissions. If Chapter 3 of the Plan were quashed, the only guidelines which would be available to inform the decision on any planning application in the area covered by the Joint Councils would be the previous Structure Plan, in respect of which the housing allocation and requirements were exhausted. The planning authorities would in effect require to undertake a further review of the housing requirements, as they already are committed to in terms of section 4(1) of the Act.
17. I did not find this first argument particularly convincing. Clearly there will be difficulties for the Joint Councils if the Scottish Ministers' approval of their Structure Plan is not confirmed. However, that would have been the normal and natural consequence of any established failure by the Scottish Ministers properly to approve the relevant part of the Plan. More powerful considerations would normally be required for the exercise of a discretion in favour of one party in that situation.
18. On the other hand I am of the view that any failure by the Scottish Ministers to take into account the 2001 forecasts would not have made any difference to their decision to approve the Structure Plan. I accept the argument by counsel for the Scottish Ministers that the decision letter of 17 December 2001 would become invalid only if the court can conclude that their decision might have been different had the error not occurred. The principles that apply are summarised by Lord Justice Glydewell in Bolton Metropolitan Borough Council v Secretary of State for the Environment & another at p.352:-

"I venture to suggest that from the authorities generally, and particularly those to which I have referred, one can deduce the following principles:

......

(2) the decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb "might" I mean where there is a real possibility that he would reach a different decision if he did take that consideration into account.

(3) If the matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account".

19. When the Joint Councils reported the conclusions of the 2001 forecast reports to the Scottish Ministers they indicated that they accepted the conclusions of the reports but that they would not make any difference to the Structure Plan. The forecasts particularly related, in their view, to the later part of the development period which were principally concerned with Policies 9 and 10. Policies 9 and 10 contained, as indicated above, an obligation to review the housing allocation and requirements, and the 2001 forecasts were relevant to that process. The forecasts (which were only forecasts and not facts) were therefore not relevant to Policy 8, which covered the period from 2000 to 2005. It is noteworthy that at when 2001  forecasts were issued, a significant part of the period covered by Policy 8 (2000-2005) had already elapsed. Section 4(3) of the Act specifically requires population figures to be kept under review, and accordingly it would seem to follow that such forecasts would not be necessary for the purposes of approval of the Plan. The Structure Plan requires to have a starting point from which it can evolve in a structured and principled fashion. The Joint Councils clearly concluded that the contents of the 2001 forecasts were not relevant to the approval of the Structure Plan, and in particular were not relevant to the implementation of Policy 8. In specific terms the Joint Councils considered that these figures were relevant for the purposes of reviewing and revising the housing forecasts, a process which was going to be required in any event for the periods from 2005-2010, and 2010-2015 in terms of Policies 9 and 10. They therefore concluded that the 2001 forecasts would be accommodated within the flexibility of the Structure Plan as it stood both in respect of the allocation of effective housing land (which is not disputed) and the availability of review. They came to this conclusion in the knowledge that the Plan had not yet been approved or made operative. This view they communicated to the Scottish Ministers. In these circumstances it is difficult to maintain that the Scottish Ministers could not reasonably arrive at the same conclusion. The decision by the Scottish Ministers to approve the Structure Plan was accordingly not only a decision that any reasonable Minister would have taken, but one which would not have been affected by, and was not in fact affected by, the 2001 forecasts.
20. The ancillary grounds of the appeal can be shortly dealt with. The appellants had made representations to the Scottish Ministers in respect of the allocation of effective housing land by including the use of brownfield sites, developer contributions to particular developments, and special needs in affordable housing. The decision letter, and in particular Annex B, makes no reference to the appellants' comments and objections, nor do the modifications suggested by the Scottish Ministers reflect the appellants' objections on these matters in any way. The appellants however did not make out any case, either in their grounds of appeal or in submissions, to suggest that these matters were in any way material. As I have noted earlier, it was accepted by appellants' counsel that such matters must be considered

but need not be the subject of comment. In these circumstances, there can be no substance in the appellants' grounds of appeal on these matters.

21. For these reasons this appeal is dismissed.