Scottish Court of Session Decisions

East Dunbartonshire Council v. Scottish Ministers & Ors [2003] ScotCS 8 (17 January 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Kirkwood Lord Cameron of Lochbroom Lord McCluskey	XA71/01 OPINION OF THE COURT delivered by LORD KIRKWOOD in APPEAL and ANSWERS under Section 239 of the Town and Country Planning (Scotland) Act 1997 by EAST DUNBARTONSHIRE COUNCIL Appellants; against THE SCOTTISH MINISTERS and OTHERS Respondents: against a decision by W.M.H. Patterson, the Reporter appointed by the Scottish Ministers   _______

 

 

Act: Wilson; Shepherd & Wedderburn, W.S. (Appellants)

Alt: Wolffe; R. Henderson (Scottish Ministers): Martin, Q.C.; Dundas & Wilson, C.S. (Second Respondents, Cala Homes)

17 January 2003

1. In 1999 Cala Homes (Scotland) Limited, the second respondents, applied for planning permission for residential development at Southview Drive, Bearsden, comprising 26 residential units (arranged in two blocks of two-storey flats and one block of 21/2 storey town houses), and the formation of a vehicular access road. The site, which extends to 0.8 hectare, is within the grounds of Bearsden Golf Club which has a nine-hole course in a wedge of green belt but having the built-up areas of Bearsden to the north-east and east and Drumchapel to the south-west. The site is irregular in shape and is a former golf practice area which has not been used regularly since the 1990s and is now becoming overgrown.
2. On 22 December 1999 the appellants, East Dunbartonshire Council, refused planning permission for the following reasons:

"(1) The proposal represents a significant encroachment of the built-up area of Bearsden into land designated as Green Belt in the Bearsden and Milngavie Local Plan.

(2) The proposal is contrary to National Policy for Green Belts as stated in SDD Circular 24/1985 and NPPG3.

(3) The proposal is contrary to Strathclyde Structure Plan Policies GB1 and RES2 and cannot be justified against the criteria of policies GB1A and RES1A.

(4) The proposal is contrary to policies GB1 and LR1 in the Bearsden and Milngavie Local Plan.

(5) The proposal would exceed the clearly defined edge of the built-up area of Bearsden taking urban development to a 'new' boundary which is not as defensible a Green Belt boundary as the present boundary.

(6) The proposal if granted would create an undesirable precedent for similar developments elsewhere on the urban fringe which would be difficult to resist and cumulatively would detract from the character and amenity of Bearsden."

3. The second respondents appealed the refusal of planning permission and Mr. W.M.H. Patterson, an inquiry reporter, was appointed to determine the appeal. Mr. Patterson held a Public Local Inquiry into the appeal at Bearsden on 6-8 June 2000, and by a decision letter dated 8 January 2001 he allowed the appeal and granted planning permission for the proposed development, subject to certain conditions.
4. At the inquiry all parties were agreed that the site is wholly within an area of green belt consistent with the terms of the approved Strathclyde Structure Plan 1995 and defined in the adopted Bearsden and Milngavie Local Plan, which plans together formed the Development Plan for the purposes of section 25 of the 1997 Act. In terms of the guidance given in Scottish Development Department circular 24/1985 there was a general presumption against any intrusion into designated green belts.
5. It will be convenient at this stage to set out the terms of a number of planning policies which were considered in the course of the inquiry. The Strathclyde Structure Plan 1995, as modified by the Secretary of State in his approval of October 1997, includes the following:

"GB1A

Proposals for development within the Greenbelt shall require to be assessed against the following criteria,

(a) economic benefit [defined in the glossary as "the net beneficial consequence of a development over its economic life in terms of the economy of the Region and of the locality concerned, particularly in terms of employment"],

(b) specific locational need, [defined in the glossary as "a need for development which is specifically associated with a particular location"]

(c) infrastructure implications, and

(d) environmental impact.

RES1

The Regional Development Strategy requires that preference shall be given to residential development on 'brownfield' infill or redevelopment sites within urban areas (excluding zoned and other valued and functional open space), rather than 'greenfield' sites.

RES1A

Proposals to extend the 'greenfield' supply of land for residential development shall require to be justified against the following criteria,

(a) clear evidence of a shortfall in effective housing land supply in the relevant housing market area,

(b) the evidence of need for social or rented housing established in the relevant local authority's approved housing plan,

(c) accessibility to the public transport network and town centres,

(d) infrastructure implications, and

(e) impact on environmental quality and on policy for the Greenbelt, Greening the Conurbation, or Countryside Around Towns.

RES3

The Regional Development Strategy requires a five year rolling supply of effective development opportunities for owner-occupied housing in accordance with Policies RES1, ...

RES4

Local Plans shall identify and maintain a supply of effective development opportunities for owner-occupied housing in accordance with Policies RES1 ...

RES4A

In assessing the supply and demand position of owner-occupied housing, in consultation with the housebuilders, local authorities shall (a) treat housing market areas as the basic units for the comparison of supply and demand, and (b) be guided generally by the forecasts of demand in the Structure Plan, or an update of it."

6. The Bearsden and Milngavie Local Plan, which was adopted in January 1996, includes the following policies:

"GB1: GREEN BELT

In the Green Belt there shall be a general presumption against development (including changes and intensification of uses), except for developments directly associated with agriculture, forestry or outdoor recreation; or other uses appropriate to the character of the Green Belt; or telecommunications developments where there is no alternative location. Any such developments will require to be justified against the following criteria:-

(a) environmental impact;

(b) compatibility with adjoining land uses;

(c) specific locational need;

(d) infrastructure implications; and

other relevant local planning criteria. The council may require the applicants to enter into Section 50 agreements to secure the aims of this policy.

RES2: LAND FOR PRIVATE HOUSING

The ... Council will oppose planning applications for the development of greenfield sites for private housing. The exception to this is the site ... at Craigton Mains, Milngavie. The availability of land for private housing will be monitored during the plan period to ensure that an adequate supply is maintained, in accordance with the Strathclyde Structure Plan.

LR1: EXISTING RECREATIONAL LAND AND AMENITY OPEN SPACE

It is the policy of the Council to protect all existing recreational and amenity land by resisting developments which would adversely affect these uses. All areas of leisure and recreational land are covered by this policy, including those areas which are too small to be identified on the Proposals Map."

7. The reporter observed (in paragraph 11) that, for the purposes of the structure plan, housing land requirements are at two levels, those of the Greater Glasgow/Lanarkshire Housing Market Area (HMA), where there is an element of mobile demand, and the former Bearsden and Milngavie District, and reference was made to table 9.11A.
8. On 18 July 2000 the reporter issued an "intentions letter", notifying the parties that he was minded to allow the appeal and grant planning permission subject to conditions, once it had been confirmed that a section 75 agreement had been concluded and registered (although in the event a section 75 agreement was not concluded as the appellants decided instead to appeal). In that letter the reporter narrated the submissions which had been made to him by the parties and set out his reasons for granting planning permission. The reporter considered that the main issues to be determined were whether the proposal was consistent with development plan policy and, if not, whether an exception to the provisions of the plan was justified by other material considerations.
9. The reporter's conclusions were set out in paragraphs 44 to 59 of the intentions letter. Paragraphs 44 to 49, which dealt with planning policy and housing land supply, were in the following terms:

"44. It is beyond doubt that the appeal site is in a designated green belt where very exceptional reasons would have to be shown to justify a housing development. The development plan policies on the green belt are reflected in or supported by policies on housing land and protection of open space and are also firmly reinforced by national policy. Accordingly there is inevitably a powerful presumption against the appeal scheme.

45. However, the provision of a supply of land for housing, in essence a minimum of five year's supply of effective land in the relevant area, is also a very important aspect of the development plan and of the expectations in national policy of what the development plan should achieve. Both the approved structure plan and the adopted local plan are becoming due for replacement. It is evident that the replacement structure plan as recently emerging is likely to be highly controversial in relation to the location of major elements of the future housing land supply, and in that awareness I cannot give more than very limited weight to either the consultative draft which has been superseded by later technical study or the draft finalised version which had not yet been approved by all the relevant planning authorities. As for the local plan, it seems certain to be several years before a replacement can be adopted.

46. Faced thus with a lack of persuasive up-to-date policy guidance on housing land allocations and possible adjustments of green belt boundaries, I have to consider the broad intentions behind the policies of the current development plan, in which the former Bearsden and Milngavie District, although only a component part of a housing market area, has also had specific allocations of housing land; and I cannot reasonably ignore the situation in which on the evidence before the inquiry the supply of land for private housing in that local area is effectively drying up and is likely to have virtually ceased, apart from any unexpected windfall sites, before there can be a new local plan which may bring forward new sites. Despite the very restrictive terms of the GB and RES policies governing greenfield and green belt land releases, the strong preference for urban renewal over greenfield building, and policy statements that past rates of development are not to be treated as norms for the future, I cannot find in the present policies, taken with those that promote or require provision of land for housing, any conscious or acknowledged intention, expectation or desire that housebuilding on previously undeveloped land in the former district should either temporarily or permanently almost cease.

47. Nor does it seem to me satisfactory to suppose that this very radical effect of applying the letter of current policies must be treated as implicit within them and hence perfectly acceptable, as that would not have been an open and public declaration of policy as is the essence of development plans. Moreover, whilst urban renewal efforts in nearby parts of the conurbation will have wide support, it seems premature so early in that process to depend on urban renewal areas as adequate substitutes for new dwellings in Bearsden and Milngavie, especially for those who already live in these areas and are forming new households or wish to move to smaller or larger homes while remaining in familiar communities. In that regard I find the appeal site, though not ideally placed for walking to Bearsden town centre and public transport, capable of easy integration with the existing built-up area and for the reasonably able-bodied within practicable walking distance of the centre, the railway station and local buses.

48. Accordingly there are important considerations which militate against an absolute and unbending application of the presumption against development in the green belt. However, such are the importance and the expectation of permanence of green belts, in policy at all levels, that an exception outside the process of development plan review could be justified in this case only if the harm to the green belt were minimal and could be mitigated by measures such as landscaping, and if there were no other compelling objections.

49. If the outcome of such assessment were favourable, the proposals could pass criteria (c) and (d) of structure plan policy GB1A and criteria (a), (c) (d) and (e) of structure plan policy RES1A; that conclusion on criterion (a) is qualified and on the basis that the former Bearsden and Milngavie District is not a housing market area in the structure plan, but is well established as a desirable suburban area that has played an important role in the housing market area by contributing to the availability of a full range of housing types in the northern part of the conurbation. However, by my reading of local plan policy GB1, its criteria only apply to those categories of development which are stated within the policy as potential exceptions, and not to residential developments. The connection with the future of the golf course is not in my view direct enough for the scheme to qualify under that policy as 'developments directly associated with ... outdoor recreation'; and for similar reasons criteria (a) and (b) of structure plan policy GB1A are in my view not applicable to it. The scheme has no support from local plan policy RES2 and is against policy LR1 in so far as the appeal land, though disused, is part of a wider area of land used for active recreation."

10. In paragraphs 50 and 51 the reporter considered the relevance of the future of Bearsden Golf Club, and concluded that the probability that the investment in the course and in the club house of most of the proceeds of sale of the appeal site would stabilise the club's declining position and ensure a long future as, in effect, a guardian of this important green belt wedge was great enough to merit some weight in relation to benefits to the greenbelt.
11. Having reached that conclusion, the reporter went on to consider the direct effects on the greenbelt. Paragraph 52 is in the following terms:

"52. That conclusion would easily be outweighed if the proposals were likely to cause significant direct harm to the appearance, effectiveness or integrity of the green belt. The existing green belt boundary at Southview Drive is certainly well defined, as fairly emphasised by the council. However, because the breadth of the green belt between Bearsden and Drumchapel at this point is determined by the salient of Golf View and the appeal site is in a slight valley, the contribution of the former practice ground to the separation function of the green belt is slight. Similarly its contribution to the landscape setting of Bearsden, whilst not negligible, is very modest by comparison with the main part of the golf course. Its present contribution to providing land for recreation is nil and its potential in relation to the golf course has been shown to be small. With competent planting and aftercare, the proposed tree belt would in time become an attractive feature in itself and a reasonably well defined and lasting boundary to the green belt. I conclude therefore that harm to the green belt through development of the appeal site would in principle be minimal and could be mitigated by appropriate measures. I find the context manifestly different from Clober golf course, where the loss of green belt would be far more significant."

12. The reporter then dealt with a number of other material considerations, including the fact that the planning authority had expressed concern about the precedent which would be set by a grant of planning permission at this location. The reporter took the view that the combination of circumstances justifying an exception in this case was very unusual and unlikely to be easily matched. He stressed that while the local deficiency of housing land had been of great importance and its relevance was not specific to the appeal site, he would not have regarded it as justifying a truly significant incursion into the green belt outwith a review of the development plan.
13. In paragraphs 58 and 59 the reporter set out a summary of his conclusions under planning policy and in relation to section 25 of the 1997 Act. These paragraphs are in the following terms:

"58. The proposals have no support under criteria (a) and (b) of structure plan policy GB1A and are contrary to the general intent of policy RES1 (and STRAT1) of the structure plan, besides being against the terms of policies GB1, RES2 and LR1 of the local plan. There are no significant objections under the relevant criteria (c) and (d) of policy GB1A and (c), (d) and (e) of RES1A in the structure plan. There is some support from criterion (a) of RES1A, in that Bearsden (with Milngavie) is a qualitatively and geographically distinct and significant part of the relevant housing market area, and in more general terms from RES3 and RES4 of the structure plan, assessment under RES4A being broadly neutral. With regard to section 25 the predominant failure to conform to the development plan is outweighed by the partial compliance with the development plan together with other material considerations.

59. I have taken account of all the other matters raised but find none that outweigh the considerations on which those conclusions are based. I have paid particular attention to the obviously relevant previous appeal decision at Clober golf course, but find that the cases can readily be distinguished in respect of the character of the sites, the period of some 18 months since that inquiry was held, and consequently the changed situation in regard to housing land supply, the age of the current development plan documents since approval and adoption, and prospects for replacements for the constituent parts of the development plan."

14. Counsel for the appellant invited us to quash the decision of the reporter on the ground that it was not within the powers of the 1997 Act. Counsel began by setting out the statutory framework, including section 25 of the 1997 Act, and reminded us that the Strathclyde Structure Plan 1995 had been approved by the Secretary of State in October 1997 and that the Bearsden and Milngavie District Local Plan had been adopted in January 1996. We were also referred to the decision of the House of Lords in City of Edinburgh Council v. Secretary of State for Scotland 1998 SC (HL) 33, and to National Planning Policy Guideline 1 (revised in 2000): The Planning System. The reporter needed to have a proper basis for departing from the provisions of the development plan. Before he could discharge his duties, he had properly to construe the relevant policies and, having done that, he had to apply them correctly to the facts of this particular appeal. In his decision letter he had wrongly construed development plan policies and had then gone on to apply them incorrectly. He had failed to give sufficient weight to the presumption against development of a site that was in the green belt, and the material considerations on which he had sought to rely had not justified the departure from the development plan. Further, it was submitted that the reasoning of the reporter was irrational. He had been wrong to take the view that the proposed development was broadly compatible with the development plan and, in certain respects, was in accordance with the development plan. These conclusions were flawed, and accordingly the remainder of his reasoning was also flawed as he had started from the wrong premise.
15. The principal attack on the reporter's decision was based on the way in which he had dealt with policies RES 1A, RES 3, RES 4 and RES 4A of the structure plan. The reporter had correctly identified these policies as being directly relevant to the determination which he had to make, but he had failed properly to assess the proposed development against them. In particular, he failed to have proper regard to whether the proposed development was in accordance with the terms of those policies. He failed to treat the housing market area as defined in the structure plan as the basic unit for the comparison of supply and demand for the purpose of policy RES 4. Having failed to carry out the assessment properly, he had therefore been unable to make any findings-in-fact upon which he could base his conclusion that the development was supported by policy RES 4 and was neutral in terms of policy RES 4A. His decision had been based on an incorrect interpretation of structure plan housing policy, his interpretation being inconsistent with the National Planning Policy Guidelines, and he had failed to determine the appeal in accordance with the development plan. The reporter had referred in paragraph 18 to policies RES 4 and RES 4A, in the context of the argument which was advanced on behalf of the second respondent, but they were not mentioned again until paragraph 58, which contained a summary of his conclusions.
16. The assessment of the demand for, and the supply of, housing was to be made in the structure plan which sets out the strategic requirements, and specifies the requirement which has to be met in each local plan area. The relevant housing market area in the structure plan was the conurbation housing market area comprising Greater Glasgow and Lanarkshire, and that is where supply and demand fell to be assessed. The former Bearsden and Milngavie District was not a housing market area. There was no justification for the approach that, because there was a shortfall of available housing sites in one particular local plan area, that shortfall provided sufficient justification for greenfield releases and breaking into the green belt. If there is a surplus of available housing sites over the housing market area as a whole, it does not matter that there is no supply in one particular district. A high level of demand in one particular, and very popular, local plan area cannot be used to justify the release of more greenfield sites in that area. The requirement for a five year rolling supply of housing land is a requirement which has to be satisfied in the relevant housing market area, and there is no such requirement in the case of each local plan area. Table 9.11A of the modified structure plan, which dealt with the allocation of mobile demand, showed a surplus of owner-occupied housing of 230 in Bearsden and Milngavie. The reporter stated (in paragraph 58), that the proposed development had some support from criterion (a) of policy RES 1A, but that was not the case as criterion (a) demanded an assessment of supply and demand in the housing market area. There was in this case no evidence of any shortfall of housing land in the relevant housing market area, and the reporter had not suggested that there was a shortfall. The reporter had relied on the shortfall in the Bearsden and Milngavie local plan area, and had thereby erred in concluding that the proposed development gained some support from RES 1A.
17. In July 1999 the Scottish Ministers had issued a decision in relation to a proposed residential development at Clober Golf Club, Milngavie and planning permission had been refused. In that decision it had been accepted that the relevant housing market area for the purpose of calculating a shortfall in terms of criterion (a) of policy RES 1A was the Greater Glasgow and Lanarkshire housing market area, and not Bearsden and Milngavie District. The reporter in the present appeal gave no adequate or intelligible reasons for departing from that reasoning in the Clober decision.
18. It was further submitted that it could not be assumed that local demand in a local plan area had to be met within that area. The use in the structure plan of the conurbation housing market area took account of the fact that linkages exist between local plan areas to such an extent that it would be unrealistic to have to meet all the local demand in that local plan area. A local plan had to bring forward land for development which is separate from the strategic requirement. However, it was important to maintain the distinction between the supply of land in a local plan to meet local demand and a supply being brought forward in the local plan to meet a strategic requirement. It was accepted that there was a diminishing supply of housing land in Bearsden and Milngavie, but it would be for the next local plan to bring additional sites forward, and there was also the possibility of windfall development. It was expected that the new local plan would be adopted in 2004. In the modified structure plan, there was no separate strategic requirement for the Bearsden and Milngavie area. The present shortage of land in Bearsden and Milngavie had no bearing on the assessment of policy RES 1A. That policy was designed for a situation where there was a shortfall of housing land in the conurbation housing market area, not in one particular local plan area. Bearsden and Milngavie could not be permitted to go on expanding indefinitely. While the structure plan was of some age, the methodology had not changed. In the circumstances the reporter should have concluded that criterion (a) of policy RES 1A did not lend any support to the proposed development. Table 9.11A in the modified structure plan showed that the identified surplus in Bearsden and Milngavie was sufficient to meet the allocation of mobile demand. This was not an issue which the reporter addressed at all.
19. Counsel for the appellant also submitted that the reporter had erred in law in holding that there was a lack of persuasive up-to-date guidance on housing land supply, and that that entitled him to give only limited weight to the development plan. The fact that the structure plan and the local plan were coming to the end of their lives could not justify such an approach. The structure plan as modified still provided the basis for assessing the strategic requirement and maintaining the five year land supply. The decision of the reporter had been flawed and was patently illogical. The appeal should be allowed and the reporter's decision quashed.
20. Counsel for the first respondents, the Scottish Ministers, submitted that the onus was on the appellants to identify an error in law by the reporter. The question which arose was whether the reporter had been entitled to reach his decision to grant planning permission. The reporter had founded on certain material considerations in deciding not to follow the strict terms of the development plan. Provided that these were relevant considerations, which was a matter for the court, it was for the reporter to decide what weight to give to them. (City of Edinburgh Council v. Secretary of State for Scotland, supra, per Lord Hope of Craighead at page 36E - F). The appellants' argument had implied that it was for the court to address questions relating to the construction and application of the relevant planning policies, and that the court should put itself in the place of the reporter to ascertain if he had properly considered and applied those policies. However, it is clearly established that the interpretation and application of planning policies are matters of planning expertise, and that it is for the reporter to interpret the policies and reach his own conclusions (Cala Management Limited v. The Scottish Ministers 2002 S.C. 42, per Lord Coulsfield at page 55). Further, it is no part of the function of a reviewing court to re-examine the factual conclusions which the reporter drew from the evidence in the absence of any suggestion that he acted improperly or irrationally (City of Edinburgh Council, supra per Lord Clyde at page 49C - D).
21. Turning to the terms of the reporter's "intentions letter", counsel submitted that the letter had to be read as a whole. It was not in dispute that the reporter had had regard to the relevant development plan policies and to the terms of section 25 of the 1997 Act. He had also addressed a range of material considerations. He recognised that there was a powerful presumption against the proposed development in the green belt. While the appellants' argument had focussed on the issue of housing land supply, that had been only one of the issues considered by the reporter. An important consideration was the effect which the proposed development would have on the green belt. With regard to the allocation of housing land, the reporter had found (in paragraph 46) that there was a lack of persuasive up-to-date policy guidance on housing land allocations and possible adjustment of green belt boundaries, and that was a conclusion which he had been entitled to reach. It was conceded by the appellants that the structure plan was becoming due for replacement. The period of the local plan had been 1995 - 2000, and a new local plan was not expected to be adopted until 2004. In these circumstances the reporter had not been obliged to leave the issue of planning permission to be resolved after new plans eventually emerged. The fact that a structure plan was out of date was a relevant planning consideration (City of Edinburgh Council, supra, per Lord Hope of Craighead at page 36B - D). The reporter had been entitled to decide the appeal on the basis of the evidence which was before him (Wyre Forest District Council v. Secretary of State for the Environment and the Order of the Holy Trinity Convent (1989) 58 P. and C. R. 291).
22. The reporter had taken into account all the issues raised before him and, having weighed all the relevant considerations, he had reached a decision which he was entitled to reach. Housing land supply was one of the material considerations to which he had regard. It had been suggested that he had erred in that he had regarded Bearsden and Milngavie as the relevant housing market area referred to in criterion (a) of policy RES 1A. That was clearly not the case as he had recognised (in paragraphs 46 and 49) that Bearsden and Milngavie was not a housing market area, but only a component part thereof, albeit a significant part. He had held, and it was accepted by the appellants, that there was a shortage of housing land in the former Bearsden and Milngavie District, and that the supply would have virtually dried up before new land could be brought forward in the new local plan. He was entitled to take that into account as a material consideration. He was also entitled, in relation to policy RES 1A, to look at the issue of the distribution and range of housing types within the relevant housing market area. In the circumstances, and having regard to the need for a rolling five year supply of housing land in the relevant housing market area, it had not been irrational for the reporter to conclude that the proposed development gained some support from criterion (a) of RES 1A. The reporter was also entitled to find that there was some support for the proposed development in more general terms from RES 3 and RES 4 of the structure plan, the assessment under RES 4A being broadly neutral.
23. Counsel further submitted that the reporter had given proper and adequate reasons for the decision which he had reached. So far as the decision in the Clober Golf Course appeal was concerned, it was accepted that a previous appeal decision could be a material consideration, and in the present case the reporter had given adequate reasons for distinguishing the Clober decision. In particular, in that decision there had been "Roll Forward" evidence which had not been led at the public inquiry in the present case. Further, the site in the Clober appeal was very much larger, and the development plan was by the time of the present inquiry even more out of date, as was the local plan. Counsel also referred to North Wiltshire District Council v. Secretary of State for the Environment and Clover (1992) 65 P. and C. R. 137 and R. v. Secretary of State for the Environment ex parte David Baber and Others [1996] J.P.L. 1034.
24. On the whole matter it was submitted that the reporter had taken into account section 25 and the relevant development plan policies, as well as other material and relevant considerations to which he was entitled to have regard and, looked at as a whole, his decision could not be regarded as being irrational. The appeal should be refused.
25. Counsel for Cala Homes (Scotland) Limited, the second respondents, adopted the submissions which had been made on behalf of the first respondents. Sections 25 and 37(2) of the 1997 Act had to be read together and it was accepted that they had the effect of enhancing the status of the development plan (Simpson v. Edinburgh Corporation 1960 S.C. 313). The appeal raised three issues, namely (1) whether the reporter had had proper regard to the development plan, (2) whether the other considerations to which he had referred were relevant and were considerations to which he was entitled to have regard and (3) whether his decision was irrational. There was no dispute as to the weight which he had given to the material considerations, the matter in dispute being whether they were all relevant. Further, it was for the reporter to decide what weight to attach to the development plan policies, particularly having regard to the fact that the structure plan and the local plan both had to be replaced.
26. Turning to the terms of the reporter's decision, counsel submitted that, in having regard to the admitted shortfall of land for private housing in the former Bearsden and Milngavie District, the reporter was taking into account a material consideration which was undoubtedly relevant and which he was entitled to put in the scales against the application of the development plan policy in the particular circumstances of this case. In order to succeed, the appellant had to establish that the admitted shortfall in the Bearsden and Milngavie area was not a relevant consideration. The housing land supply in that area was down to twenty-one units and sinking fast. The reporter had to consider the radical effect of applying the development plan policy, and the weight to be given to the shortfall was a matter for him. He had also found that the effect of the proposed development on the green belt would be minimal, a major reason for distinguishing the decision in the Clober Golf Club appeal. The reporter had had regard to the development plan policies and other material considerations, and had considered them all together. There was nothing to show that he had at any stage lost sight of the status of the development plan.
27. So far as housing land supply was concerned, the reporter had recognised that in policy RES 1A the reference to "the relevant housing market area" was a reference to the Greater Glasgow and Lanarkshire housing market area. He was aware that there was no evidence of a shortfall in that area. There were, however, other material considerations to be placed in the balance, the weight to be given to them being for the reporter to determine. While the reporter in the Clober Golf Club appeal had held that the reduction in the Bearsden and Milngavie effective housing stock would not, by itself, justify further releases, it did not follow that in another case, where there were different facts and other material considerations, the same conclusion would be reached. Every application for planning permission must depend on its own facts. The reporter in this case had been entitled to reach the decision he did, he had not been shown to have erred in law and the appeal should be refused.
28. In reply, counsel for the appellants pointed out that the reporter had taken into account, in considering criterion (a) of RES 1A, the shortage of housing land in the local plan area. She submitted that that was not a relevant consideration in making an assessment of supply and demand in the relevant housing market area. While it might be a material consideration in considering whether or not to depart from the structure plan, it was not relevant to the applicability of RES 1A(a) or the obtaining of an effective five year rolling land supply. It was submitted that the reporter (in paragraph 45) had taken Bearsden and Milngavie to be "the relevant area" and had suggested that a five year supply of land was required in that local plan area. However, the true position was that the relevant area is the conurbation housing market area and there was no evidence of a shortfall in that area. Further, the reporter had not dealt with the unresolved issue of mobile demand.

Decision

29. This appeal relates to a proposed residential development of an area of 0.8 hectare, comprising twenty-six residential units, and the site, which is a former golf practice area, is in the green belt. In considering the appeal against the refusal of planning permission, the reporter had to bear in mind the provisions of section 25 of the Town and Country Planning (Scotland) Act 1997 which is in the following terms:

"25. Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

Section 25 was formerly section 18A of the 1972 Act, having been introduced into that legislation in 1991.

30. In City of Edinburgh Council v. Secretary of State for Scotland, supra, Lord Clyde observed (at page 43F-G):

"By virtue of sec 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission."

31. In the present case the reporter had to consider whether or not the proposed development accorded with the development plan. However, as Lord Hope indicated in City of Edinburgh Council, supra (at page 36A-B), the development plan does not, even with the benefit of section 25, have absolute authority. A reporter is at liberty to depart from the development plan if material circumstances indicate otherwise. So far as the role of the court is concerned, Lord Hope observed (at page 36D-G) as follows:

"The function of the court is, as before, a limited one. All the court can do is review the decision, as the only grounds on which it may be challenged in terms of the statute are those which section 233(1) of the Act lays down. I do not think that it is helpful in this context, therefore, to regard the presumption in favour of the development plan as a governing or paramount one. The only questions for the court are whether the decision taker had regard to the presumption, whether the other considerations which he regarded as material were relevant considerations to which he was entitled to have regard and whether, looked at as a whole, his decision was irrational. It would be a mistake to think that the effect of sec 18A was to increase the power of the court to intervene in decisions about planning control. That section, like sec 26(1), is addressed primarily to the decision taker. The function of the court is to see that the decision taker had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan."

32. In the present case it is accepted that the reporter had regard to all the relevant development plan policies, but the appellants contend that he misinterpreted and misapplied certain of them. The reporter made it clear that the appeal site was in a designated green belt where very exceptional reasons would have to be shown to justify a housing development and that the development plan policies on the green belt were reflected in, or supported by, policies on housing land. He observed that there was inevitably a powerful presumption against the proposed development. The principal attack on the reporter's decision was in relation to the way he had dealt with the policies relating to housing land supply.
33. Structure plan policy RES 1A stated that proposals to extend the "greenfield" supply of land for residential development required to be justified against certain criteria. Criterion (a) specified "clear evidence of a shortfall in effective housing land supply in the relevant housing market area". It was common ground that the reference to "the relevant housing market area" was a reference to the conurbation housing market area comprising Greater Glasgow and Lanarkshire. It was contended on behalf of the appellants that the reporter had erred in respect that he had taken the relevant housing market area in policy RES 1A(a) to be the former Bearsden and Milngavie District. However, we are satisfied that there is no merit in that criticism. The reporter made it clear in paragraphs 46 and 49 that Bearsden and Milngavie was not a housing market area in the structure plan. However, he stated that, while it was only a component part of a housing market area, it was well established as a desirable suburban area that had played an important role in the housing market area by contributing to the availability of a full range of housing types in the northern part of the conurbation and had also had specific allocations of housing land. These observations by the reporter were not disputed by the appellants. The reporter found, on the evidence, and again it was not disputed, that the supply of land for private housing in that local area was effectively drying up and was likely to have virtually ceased, apart from any unexpected windfall sites, before there could be a new local plan which might bring forward new sites. We were told that there had been only twenty-one available sites for private housing in Bearsden and Milngavie. The local plan had covered the period from 1995 to 2000 and it was not expected that the new local plan would be adopted before 2004. The structure plan itself, which provided for a minimum of five years supply of effective land, was becoming due for replacement and the reporter took the view, for the reasons set out in paragraph 45, that he could not give more than very limited weight to the consultative draft or the draft finalised version. In the October 1997 modifications to the structure plan, modification 21 stated that, while the structure plan covered a seven year period (1994 to 2001), "the period of time which has elapsed since it was submitted means that it is now arguably deficient in terms of the guidance it provides on housing land supply". In the circumstances the reporter concluded that he was faced with a lack of persuasive up-to-date policy guidance on housing land allocations and possible adjustment of green belt boundaries. In our opinion that was a conclusion which, on the basis of his personal professional judgment, the reporter was entitled to reach. He had therefore decided to consider the shortfall of private housing land in Bearsden and Milngavie in light of the broad intentions behind the policies in the current development plan. Having done so, he found that there was nothing in these policies indicating any intention that house building on previously undeveloped land in the former district should cease.
34. The reporter accepted (in paragraph 58) that the proposed development was contrary to a number of development plan policies and that there was a predominant failure to conform to the development plan. However, he also observed that there was "some support" from criterion (a) of RES 1A in that Bearsden (with Milngavie) is a qualitatively and geographically distinct and significant part of the relevant housing market area. In our opinion, the admitted shortage of effective housing land in such a significant part of the housing market area justified the reporter's conclusion that, while there was a predominant failure to conform to the development plan, criterion (a) offered "some support" for the proposed development. It must be borne in mind that it is not the duty of a reviewing court "to engage in a detailed analytic study of the precise words and phrases" that had been used by a reporter (City of Edinburgh Council, supra, per Lord Clyde) at page 49C-D). The reporter also concluded that the proposed development received some support in more general terms from policies RES 3 and RES 4, the assessment under RES 4A being broadly neutral. These were matters for the reporter to determine and we are not in a position to say that he erred in reaching the conclusion which he did in relation to those policies.
35. Having determined that the proposed development failed predominantly to conform to the development plan and that there was only partial compliance, the reporter then had to ascertain if there were relevant material considerations which supported the effective departure from the structure plan. It is clear that the reporter's findings in relation to the effect of the development on the green belt constituted a relevant and material consideration. The appeal site is a small one. The reporter found (in paragraph 52) that the harm to the green belt through development of the appeal site would in principle be minimal and could be mitigated by appropriate measures. In particular, he was satisfied that with competent planting and aftercare, the proposed tree belt would in time become an attractive feature in itself and a reasonably well defined and lasting boundary to the green belt. The site was capable of easy integration with the existing built-up area. Further, in our opinion, the reporter was entitled, in assessing if there were such relevant material considerations, to take into account the admitted deficiency of available housing land in the former Bearsden and Milngavie District, particularly in light of his finding that it was a qualitatively and geographically distinct and significant part of the housing market area. Once the reporter had identified material considerations which favoured the proposed development, as he did, it was for him to decide what weight should be placed on them when balancing them against the predominant failure of the proposed development to conform to the development plan. In the circumstances, and reading the reporter's decision as a whole, we have not been persuaded that he erred in reaching the conclusion that the material considerations to which he referred outweighed the failure to conform to the development plan.
36. While the appellants sought to found on the reporter's failure to adopt certain of the reasoning in the Clober Golf Club decision of July 1999, we are satisfied that the reporter was correct in distinguishing that decision on its facts. In the Clober Golf Club case, the appeal site was much larger, extending to 6.5 hectares, and there were plans for 120 houses. It was held that the proposed development would have an adverse effect on the green belt and would be detrimental to visual amenity. That decision was taken eighteen months before the decision in the present case and at a time when there was an effective stock of eighty-one units, and when the development plan could not be said to have been as out-of-date as it was at the time of the decision in the present case. In the Clober decision, the reporter commented that exceptional circumstances justifying the development had not been made out, but that decision was made in light of the facts which had been established at that inquiry. While the present reporter did not approach the housing land policies in the same way as the reporter in the Clober case, it is clear that there was evidence in that case which was not before the reporter at the inquiry into the present application. It was said that the reporter had failed to follow the reasoning of the Clober reporter in relation to the deficiency of the housing land supply in Bearsden and Milngavie and the development plan housing land policies, reasoning which had been approved by the Scottish Ministers. In our opinion, the reporter in this case was entitled to adopt the approach which he did in the particular circumstances of this case, an approach which has been supported by the Scottish Ministers. In any event, it is quite possible for two reporters to reach different views on the effect of development land policies, particularly when one view is taken at a later stage and at a time when the structure plan is becoming due for replacement and a new local plan is not likely to be adopted for several years. In such an event it is not necessarily the case that the later approach is wrong.
37. We have considered all the submissions made to us, including the appellants' submission in relation to the issue of mobile demand, which we regard as peripheral, but we have not been persuaded that the reporter has been shown to have erred in law. On the whole matter we do not consider that the reporter ignored the presumption in favour of the development plan. We are satisfied that he did not misinterpret or misapply the policies founded on by the appellants, nor do we consider that his decision was irrational. For these reasons we have decided to refuse the appeal.