Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH
XA26/08	[2009] CSOH 6970 OPINION OF LADY STACEY in the cause Appeal under the Town and Country Planning Act 20071997 by SCOTTISH BORDERS COUNCIL Pursuer; against THE SCOTTISH MINISTERS Defender: ­­­­­­­­­­­­­­­­­________________

Act: J D Campbell Q.C. City of Edinburgh Council, for Scottish Borders Council

Alt: K Springham Scottish Government Legal Directorate

15 May 2009

Introduction

[1] This is an appeal under the Town and Country Planning (Scotland) Act 20071997 ('the 2007 Act') by Scottish Borders Council ('the council') against a decision by Mr Philip G Hutchison, a Reporter appointed by Scottish Ministers ('the reporter'), to allow a planning appeal by Dr PH Campbell against the refusal by the council of his application for outline planning permission. The site address is land adjacent to Borthwick Hall Lodge, Heriot EH38 5YE. The application was dated 17 April 2007 and was refused by the council on 20 August 2007. The reporter decided the appeal on written submissions by letter dated 22 January 2008.

[2] Mr Campbell opening the appeal for the council explained that for Borders Council (hereinafter 'the Council') submitted that the cCouncil challenged the decision of thea reporter on appeal to grant outline planning permission.about a developer contribution in regard to the Waverley Railway. The case arose out of an application by Dr Peter Campbell permission forThere is an interested party, Dr Campbell, had who entered the process and had withdraewn, but was present in court. . He is no longer part of the proceedings although he is in court.

Mr Campbell explained the process by saying that a planning officer will collate papers and will prepare a report for members. Appeals lie in the hands of disappointed applicants but not for councils or third parties. In this case tThe cCouncil refused the application for the reasons set out and the applicant (Dr Campbell) appealedin the notification of refusal by the council to Dr Campbell dated 20 August 2007 and produced by the Scottish Ministers as 7/7 of process, thus:-

"'The application fails to comply with Policy G6 of the Finalised Local Plan 2005 in that no financial contribution towards the reinstatement of the Waverley Line, as required by the policy, is forthcoming."'

Background

[3] The application had an unfortunate history which is referred to by the reporter. It has no relevance to the decision of the reporter nor of the court and it is mentioned only for completeness. The applicant did not know that his application was to be decided by the committee on the day on which it was decided, as he was in discussion with the legal department of the council on the necessity of his making a developer contribution, and understood that that question would be resolved before the committee was asked to decide on his application. That did not happen and instead the council sent the application for consideration stating that the applicant had refused to pay a contribution.

[4] The Waverley Railway (Scotland) Act 2006 ('the 2006 Act') provides for the raising of contributions to the cost by local authorities. Section 39 enables the council to require developer contributions from those who seek planning permission. The section is in the following terms.

"'(1) Section 75 of the 1997 Act, section 69 of the Local Government (Scotland) Act 1973 (c.65) and Part 3 of the Local Government in Scotland Act 2003 (asp 1) shall, in their application to the relevant planning authorities have effect in accordance with following provisions of this section.

(2) Subject to subsections (5) to (8) below a relevant planning agreement may include provisions relating to or to development supporting or otherwise connected with the authorised works.

(3) A relevant planning authority shall not be precluded from entering into a relevant planning agreement which includes provision relating to, or to development supporting, or otherwise connected with, the authorised works by reason only of the fact that all or some of the authorised works are located outwith the local government area of the planning authority concerned.

(4) subject to subsections (5) to (8) below, in any relevant planning agreement made pursuant to this section financial provisions relating to the authorised works may require the payment of developer contributions towards the cost of providing the authorised works or any development relating to supporting to otherwise connected with the authorised works.

(5) The developer contributions obtained by the relevant planning authorities towards the cost of providing the authorised works shall not in aggregate exceed the total of the sums necessary for the purpose of providing the authorised works.

(6) No developer contribution under subsection (4) above shall be required more than 30 years after the opening of the railway works for public use.

(7) For the purposes of this section and section 40 below the sums necessary for the purpose of providing the authorised works include all sums from time to time payable for that purpose, and (without prejudice that generality) include interest payments loan charges and sums payable under or in consequence of any financial support contract.

(8) Accordingly, developer contributions may be required at any time during the currency of a loan agreement or a financial support contract.

(9) A requirement for developer contribution does not amount to the raising of money by making a levy or imposition within the meaning of section 22 (7) of the Local Government in Scotland Act 2003 (asp1)."

Thus the council is enabled by the 2006 Act to enter into planning agreements which require developers to pay a sum of money towards the cost of the railway.

[5] The council adopted policy G5 in relation to developer contributions generally and Policy G6 in relation to developer contributions related to railway reinstatement. Each is printed in 7/8 of process as part of the papers prepared by the planning officer for the committee which was asked to decide on the application. Policy G5 is in the following terms:-

"POLICY G5 DEVELOPER CONTRIBUTIONS

'Where a site is otherwise acceptable but cannot proceed due to deficiencies in infrastructure and services or to environmental impacts, any or all of which will be created or exacerbated as a result of the development , the Council will require developers to make a full or part contribution through s.75 or alternative legal Agreements towards the cost of addressing such deficiencies.

Each application will be addressed to determine the appropriate level of contribution guided by: the requirements identified in the Council's Supplementary Planning guidance on developer contributions: planning or development briefs; outputs from community or agency liaison; information in settlement profiles; other research and studies such as Transport Assessments; the cumulative impact of development in a locality; provisions of Circular 12/96 in respect of the relationship of the contribution in scale and kind to the development.

Contributions may be required for one or more of the following:

1.     Treatment of surface or foul waste water in accordance with the Plan's policies or preferred methods (including SUDS maintenance)

2.     Provision of schools, school extensions or associated facilities all in accordance with current educational capacity estimates and schedule of contributions;

3.     Off site transport infra structure including new roads or road improvements Safer Routes to School, road safety measures, cycleway and other access routes subsidy to public transport operators; all in accordance with the Council's standards and any Green Travel Plan.

4.     Leisure, sport, recreation play areas and community facilities either on site or off site;

5.     Landscape, open space, trees and woodlands including cost of future management and maintenance;

6.     Protection, enhancement and promotion of environmental assets either on site or off site having regard to the Local Biodiversity Action Plan and the Council's Supplementary Planning Guidance on Biodiversity, including compensation for any losses and /or alternative provision;

7.     Provision of other facilities and equipment for the satisfactory completion of the development that may include: measures to minimise the risk of crime; provision for storage collection and recycling of waste, including communal facilities and provision of street furniture."

Policy G6 is in the following terms:-

"POLICY G6 DEVELOPER CONTRIBUTIONS RELATED TO RAILWAY REINSTATEMENT

In accordance with provisions of the Waverley Railway (Scotland) Bill 2003, the Council will seek developer contributions towards the cost of providing the Waverley rail link from many developments that may be considered to benefit from, or be enhanced by, the re-instatement of the rail link. The post codes affected and level of contribution sought will be in accordance with council decision of 5 October 2004 or from any subsequent Council decision during the Local Plan period.

Justification

The policy is specifically geared to seeking developer contributions towards the cost of the Waverley Railway in post code sectors where new housing development is considered to benefit from or be enhanced by the rail link. In turn this policy will assist in providing funding for the railway which will provide considerable social economic and environmental benefits to the area.

The approach to developer contributions in these special circumstances is set out in the Waverley Railway (Scotland) Bill 2003. It is acknowledged that this policy represents a change in the way that the existing Section 75 regime operates.

The Bill provides for a rail link between Edinburgh and Central Borders. The postcode sectors affected by this policy are therefore concentrated in the Housing Market areas in the Central Borders and North and South Roxburgh. In the longer term, the aim is to achieve a rail link through to Carlisle as provided for in the Structure Plan ands the route is safeguarded in both plans.

At the time of writing the Bill is still proceeding through the Parliamentary process and subsequent events may alter the provisions of thus policy."

The council decided in 2004 on a list of post codes which were areas which would benefit from the reinstatement of the railway line; applications for planning permission for sites in those post codes would therefore be asked to pay a contribution. The council's Director of Planning and Economic Development reported to the council's Executive Committee on 17 October 2006 on the subject of Waverley Project Developer Contributions. His report was produced to the committee when considering Dr Campbell's application, and was available to the reporter. It is produced in 7/8 of process. As I understood it both parties were content to proceed on the basis that the Executive Committee had resolved to act as recommended in the report. The report advises that the Waverley Railway (Scotland) Act 2006 has received Royal assent. A requirement to provide a station at Stow was included in the act, though not in the bill in 2004. The report is to the effect that it is thought appropriate to extend the area within which developer contributions should be sought to include the North Ettrick and Lauderdale Housing Market area. A list of post codes is provided. The post code of the application site is in the list.

Consideration of the application by the council

[6] In the submission by the planning officer of the council to the committee which considered the application there is no adverse comment except in relation to compliance with policy G6. The planning officer stated that the application was located within a post code sector identified in the supplementary planning guidance revised in 2006 to take account of the benefits to be derived from the additional station proposed at Stow. The officer summarised the objections raised by the applicant thus:-

·       The development would not benefit since the line would make access to the bus stop more difficult.

·       The new road and bridge required to cross the line would increase traffic speeds and be detrimental to road safety.

·       The rail link will not provide an enhanced public transport service to Edinburgh since the bus service is as quick and more accessible.

·       Prices in the area will be depressed relative eto the central Borders where properties will benefit from the rail link.

·       Other post code sectors that will derive benefits will not have to pay a contribution.

He then set out his reasons for recommending refusal thus:-

"'Planning authorities are advised that planning agreements related to the payment of contributions towards off site infrastructure must be clearly related to the development and the extent of contribution required should relate in scale and kind. This approach was followed when the supplementary guidance was originally formulated, and extended in 2006, whereby it covers postcode areas which are considered to benefit from the provision of a rail service to the Borders, and the development of a station at Stow. It is considered that the extent to which the catchment area approach should be challenged is a matter to be considered when reviewing the policy, as opposed to varying the approach on a case by case basis. It is considered that the policy applies to this development since the benefits to be derived form the rail link directly relate to the catchment area within which the development is located and that the contentions raised by the applicant are not sufficient for the contribution to be waived in this case.

On the basis that the applicant is not willing to pay the contribution, the application therefore fails to comply with Policy G6 of the Finalised Local Plan and. accordingly, is recommend for refusal."'

Consideration by the reporter of the appeal.

[7] The papers on which the reporter decided the appeal included the paper prepared by the planning officer quoted above. The reporter's decision was to grant the appeal. In his decision letter at paragraph 4 he stated that the appeal turned on whether policy G6 should be applied to the appeal. In paragraph 6 the reporter found that the application fell within the geographical scope of policy G6, as revised by a council decision of October 2006, and that the application was at odds with the requirement of the policy.

[8] The reporter went on in paragraph 7 of his decision letter to consider whether the developer contribution was justified. He noted that the appellant had put forward a compelling argument that it was not justified, but that the council had restricted itself to a statement without any amplification or reasoned arguments that "'the benefits to be derived from the rail link apply to this site, given that it would benefit from a significantly enhanced public transport service....based on the provision of a station at Stow." ' The reporter found that the written submissions from Dr Campbell:

"'showed very clearly that occupiers of the development would be extremely unlikely to use or benefit from the reopened Waverley line (and Stow station in particular). To access the station at Stow (the addition of which drew the above post code sector within the scope of policy G6) occupiers would have to travel 3 km into Heriot and another 12 km to the south by the A7 (T)-unless they use a narrow twisty road for a similar distance on the south bank of the Gala Water. The station at Gorebridge would be a good 2 km closer and of incomparably greater appeal for anyone travelling to and from Edinburgh. Travel to and from Galashiels would present no real incentive to park at Stow when another 11 km of uncongested A7(T) would take travellers right into Galashiels. I do not need to rely on speculation that the bus services on the A7 (T) may well be less attractive when the railway reopens."'

[9] In paragraph 8 the reporter found in favour of the arguments put up by Dr Campbell that there would be no benefit to the proposed development from the authorised works. He found that a developer contribution under policy G6 could not reasonably be demanded in view of the site's particular geographical context. The reporter referred to the circular 12/1996 "'Planning Agreements"' and in particular paragraphs 12 and 13. He found that planning agreements had to be reasonable and that there must be a connection between the proposed development and the payments sought from the developers. If this related to public transport then the benefit must not be too remote. He concluded that the connection between the site and the rail link and Stow station was too remote. There was no reason to refuse the permission other than that the contribution had not been paid. Thus the reporter found that the contribution should not have been requested, and granted the permission subject to certain conditions which are not relevant to this appeal. on a single ground that he had not been willing to pay approximately £1700 in respect of a contribution to the railway. The case went to the Reporters Unit byand Mr Hutchison decided the appeal on written submissions. The application was made on 24 April 2007 and refused on 20 August 2007. The Reporter allowed the appeal and issued his letter on 22 January 2008. That letter is appended to the appeal documents.

Mr Campbell went to statement 4 and outlines how that sets out a scheme for developer contributions. The Waverley Railway has long been an aspiration of local authority and government and they have now passed the Waverley Railway (Scotland) Act 2006 and that Act provides for the raising of contributions by local authorities. Section 39 of it enables the Borders Council to require developer contributions from developers. Governmentandauthoritiesenteringdevelopment supporting or otherwise connected with the authorised works by reason only of the fact that all or some of the authorised works are located outwith the local government area of the planning authority concerned.

(4) subject to subsections (5) to (8) below, in any relevant planning agreement made pursuant to this section financial provisions relating to the authorised works may require the payment of developer contributions towards the cost of providing the authorised works or nay development relating to supporting to otherwise connected with the authorised works.

(5) The developer contributions obtained by the relevant planning auhtoriites towards the cos tof providing the authorised works shall no tin aggregate exceed the total of ht esums necessary for ht epurpose of providing h teauhtorised works.

(6) No developer contribution under subsection (4) above shall be required more than 30 years after the opening of the railway works for public use.

(7) For the purposes of this section and section 40 below the sums necessary for the purpose of providing the authorised works include all sums from time to time payable for that purpose, and (without prejudice that generality) include interest payments loan charges and sums payable under or in consequence of any financial support contract.

(8) Accordingly, developer contributions may be required at any time during the currency of a loan agreement or a financial support contract.

(9) A requirement fro developer contribution doe snot amount to the raising of money by making a levy or imposition within the meaning of section 22 (7) of the Local Government in Scotland Act 2003 (asp1).

Thus the Council is enabled by the act to enter into planning agreements which require developer to pay a sum of money towards the cost of the railway. Th eocuncil decided to require such contributions as set out in their policy G6. Th policy provides that the council 'will seek developer contributions towards the cost of providing the Waverley rail link from any developments that may be considered to benefit from or be enhanced by there instatement of the rail link. There follows a list of post codes which are said to be those in which development is expected to benefit from or be enhanced by the rail link. This was revised in October 2006 and the post code in which the development for which Dr. Campbell made application is included in the list .

Submissions on behalf of the council

The areas within which such contributions can be sought are delineated by post codes. It came into force in 2004 as is set out in statement 5.

In 2006 the Council resolved to extend the catchment area to get additional contributions from and after October 2006. These resolutions got into the local plan, which is part of the statutory development plan. For this see section 25 of the Town and Country Planning Act 1997.[10] Mr Campbell submitted that the policy of the Council was that any development within the listed post codes was subject to the requirement of a contribution, because the council had decided that areas within these postcodes would benefit from or be enhanced by the building of the railway. This he said was a decision that the council was entitled to take; and was a decision with which the reporter was not entitled to interfere. As a fall back position he argued that if the reporter was entitled to look at the policy as it affected the individual application then he had failed to do so properly. When this matter came to the Reporter it can be seen that the decision letter in paragraph 1 is an echo of section 25. All that can be identified from the papers is in Policy H5. In paragraph 3 the Reporter focuses on Policy G6 being his reason for refusal. He sets out the decision of 2004 translated to the local plan. The areas are those expected to benefit or to be enhanced by the existence of the railway. The Reporter is correct when he says that G6 is not likely to change. In paragraphs 5 and 6 it is stated correctly that the Council perceived that this developer contribution was resisted. The Reporter says "I concluded it fell within G6". In paragraph 7 however he goes on to discuss whether or not the development contribution is justified. At paragraph 8 he gives his conclusions. The Council take issue with his giving his view in paragraph 8. Thus Mr Campbell argued that G6The Council say that this is a provision of compulsory application. The Council's position on fallback, is that Iif it is not compulsory, in any event, the Reporter did has not taken into account all matters and has reached a decision by an erroneous exercise of his discretion. So thHe summarised the Council's position can be summed up in the following way:

"1. The reporter had acted His action is ultra vires or

2. The reporter had exercised his His discretion has been exercised wrongly."

One can see from statement 5 that the Reporter was made aware of the appellant's stance. See section 69 of the Act. The minutes were not before the Reporter but Miss Springham does not say that they were not adopted and he does not understand this to be in dispute. The material which the Reporter either had or ought to have had was section 25 of the 1997 Act, the 2000 Act in particular, section 39. In paragraph 8 of the appeal it can be seen that K5 requires contributions and G6 requires contributions for the rail link from this postcode area. Mr Campbell's argument was that if the Ministers do not like the policy they should review it but should not vary on a case by case basis.

[11] Mr Campbell referred to the material before the reporter in the paper prepared for the committee. On looking at the papers prepared by Mr Clarke, the council planning officer, he can agreed, without conceding, that there is some appearance of the planning officer weighing up the points made by the applicant rather than simply submitting that the application of the post code is decisive. He argued however that the officer made plain that the policy should be applied, as G6 was designed to recognise benefit to the community. It was not appropriate to reconsider the matter application by application. Mr Clarke is undertaking a balancing exercise. He does say however that Mr Clark takes the view that this is a compulsory application.

Mr Campbell went on to explain that there was discussion in Parliament about the provision of a station at Stow.

[12] OOn his esto case, Mr Campbell said that Dr Campbell submitted at length that the proposed development would get no benefit from the railway didn't get any benefit at all. The application of G6 is however designed to benefit the community area by area and it is not appropriate to look at it application by application. If however Tthe rReporter agreed, but was entitled to do this he failed to consider all relevant matters.do so properly with balance. In paragraph 7 of the decision letter the rReporter said that he looked at the council report of 2004, the council report of October 2006 and the local plan. He did not does not say that he looked at the enabling legislation. The reporter He said that Dr Campbellthe appellant hads shown that the occupiers of the proposed development would be extremely unlikely to use the station at Stow for the reasons given, being that it is 15 kilometres to the south, and so hardly likely to be attractive if one wished to travel north; it was not attractive for those wishing to travel south either, due to the necessity of getting there by car before being able to use the railway. The reporter did find that the station at . Note that he makes reference to the station at Gorebridge might be more attractive. . This is also a new station and note that this may be relevant.

Mr Campbell went on to submit that if the language of G6 admits of a discretiondiscretion there are matters features of increased rail travel which the rReporter should have consideredtaken into account. He should have taken account of the reduction of road traffic and pollution by cars; the benefits to the area generally of having good public transport; the benefits to society from the encouragement of rail travel; the fact that the council had promulgated a policy after consideration; and the benefits of transparency given that applicants knew in advance eif they development they proposed was in the post code listed. All that the reporter did was to consider give distances; he and did not give any proper consideration to the bigger picture. If the reporter did give proper consideration to all that he should have considered then he did no t give reasons for his decdision which showed what he made of it all. Thus he did not fulfil the ht erequirenments of decision making as set out in the case of Wordie Properties v Secretary of State 1984 SLT 345discussion about whether or not there would be an advantage.

[13] Mr Campbell 's position was that he would moved me invite me tto quash the decision. which would mean that it would be remitted back to the directorate and heard again by the Reporters Unit

.

Miss Springham said that her first submission was on the general sense of approach under section 239 of the 1997 Act. She would then look at the decision of the Reporter and thirdly would look at the grounds of challengSubmissions for Scottish Ministerse in the document put up by the Council.

[14] Miss Springham directed my attention to the Scottish Planning Encyclopaedia, ed. Gill, at pages B261 to B264. She submitted that the grounds of challenge of the reporter's decision were those provided by the act in s.239 (1) (b)as interpreted in the case of Seddon Properties v Secretary of State for the Environment (1981) 42 P.&C.R 26 and conveniently set out at the foot of page 261 into 262. went to the Planning Encyclopaedia and looked at the foot of page B261 and the case of Seddon. She referred to the case of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 and to Lord Clyde's speech at page 44 and 45 for the proposition that the decision maker in a planning application has to decide what weight he puts upon the material before him and assess it all; matters of planning judgment are for the local planning authority and the Secretary of State, but not for the courts; and if a decision maker fails to take account of some material consideration or takes account if some consideration which is irrelevant then his decision will be open to challenge, on the basis that it is irrational or perverse.

directed my attention towards tab 5 on the original list of authorities for the Scottish Ministers and asked me to look at Lord Clyde at page 44. He was looking at section 18A of the previous Act which is now section 25 of the 1997 Act. He said at page 45 that a decision had to be irrational or perverse before it should be quashed.

[15] Miss Springham submitted that She said that in this case there were two key issues. The development plan did not include G6. It had not been finalised at the time. She said that the Reporter had been asked to look at whether or not there would be any benefit to the subjects by the station at Stow. She referred to the papers which had been before the reporter, which were those before the committee and a document entitled "'Response to Grounds of Appeal"' from the council and now produced as 7/3 of process. The latter document clearly showed, she submitted, that the council considered whether said that the other document was what the Council submitted and is now at 7/3 and that Dr Campbell may have thought that he was appealing against the decision of the Council. She said that paragraphs 2 and 3 show that the Council looked to see if the objections put up by the applicant warranted a departure from the policy. So Thus the reporter had been asked to look at whether or not there would be any benefit to the subjects by the station at Stow. Ttherehe council had always was an acceptedance by the Council of the that question of whether the particular site would benefit was to be discussed and decided, and so that question was open to the reporter. She submitted that and that was open to the Reporter. She said that you can also see that from the report of the Committee at 7/8. t The correct way to read the policy is that in to consider every case it must considered whether there is a benefit to or an enhancement of the site which is the subject of the application. T. She said that the postcode simply defines the geographical scope position and one then has to consider whether there are benefits or not. She argued that said that if one looks at the 2006 Act it makes it plain that that interpretation is correct. In section 38 of that Act the words "relevant planning agreement" are defined as meaning an agreement entered into by a planning authority under section 75 of the 1997 Act in connection with land on which any development can be expected to benefit from or be enhanced by the provision of the authorised works. She argued that the definition there given when read with section 39(2) of the 2006 Act showed that each application had to be such as to benefit and that that was a question of fact to be decided each time. Thus she argued the reporter had done in this case what he was obliged to do and what the parties had invited him to do. that you have to look at the actual land. This can be seen also from section 39(2). There is then a question of fact for everyone. That is why the Reporter considered facts in each case. He did so because the parties asked him to and that is what he is required to do.

[16] Miss Springham said that the rReporter's letter at paragraph 8 referred to the circular which sets out in summary the proper use of planning agreements. She referred to paragraph 12 and paragraph 13 and she noted that there was no challenge in the appeal by the council to document to the rReporter taking this into account.

[17] The reporter had competing submissions about whether there was any benefit to the development and so he was being asked to decide that. The Council did not argue that the Reporter must apply the policy. Miss Springham's submission was that on a plain reading of G6 a contribution was justified and required only if a proposed development would benefit from, or be enhanced by, the railway. This was, she said, consistent with 7/3 of the productions and was in 7/8. It was also consistent with the definition of relevant planning agreement. The reporter had dealt with the question properly on that basis.

[18] Miss Springham argued that in terms of section 37 of the 1997 Act that the planning authority in dealing with an application had to have regard to the provisions of the development plan so far as relevant to the application and to any other material considerations. She argued that the existence of policy G6 was a "'material consideration"' to which the planning authority and the reporter on appeal should give due weight, but that it was not determinative of an application . She argued that the reporter did give due weight to the existence of the policy. She then submitted on the grounds of challenge the following:-

1. The Reporter had no discretion because policy was mandatory according to the Council and that meant that if a particular area was in a particular postcode a contribution would be required. The Scottish Ministers in contrast said that G6 was a material consideration and so it was a matter for the Reporter to determine assessment of that and what weight would apply to it. Mr Campbell's second argument could only succeed if it was argued successfully that the decision was perverse or irrational on the part of the Reporter. There was no such argument in the grounds of appeal.thing about this in the grounds of appeal. Nor was there any argument that no reasonable reporter would have come to this view. Therefore Miss Springham's submission was that on a plain reading of G6 a contribution is only justified and required if a proposed development will be benefited or enhanced by the railway. This was, she said, consistent with 7/3 of the productions and was in 7/8. It was also consistent with the definition of relevant planning agreement.

[19]

2. The Reporter had competing submissions about whether there was any benefit to the development and they were asking the Reporter to decide that. It is not correct to say that the Council told the Reporter that he must apply the policy. The parties were asking the Reporter to consider the issue of benefit and that is what he did. It is not for this Court to go into the planning merits so if it was accepted that the Reporter was entitled to look at them because he is to use his planning knowledge then this Court cannot contradict him.

3. Mr Campbell had argued that the reporter had failed take account of the matters set out in paragraph 10 of his pleadings, but these matters were not put before the reporter. The cCouncil had had its opportunity to place before the reporter such material as it chose. The only material additional to that tin the report paper pout up to the planning committee was the response to grounds of appeal, 7/3 of process, in which paragraph 3 raised very briefly the assertions that the site would benefit from significantly enhanced public transport, and that application of the post code approach allows for an appropriate means of applying the policy consistently across areas likely to benefit in a transparent and clear manner before applicants make their application. The council had not argued as Mr Campbell now argued that the benefits set out in the pleadings would apply to the site.

[20] Miss Springham argued that a reporter was not obliged in giving his reasons to refer to every submission made to him. She reminded me that the reporter was required to make a decision and that his decision on planning matters should not be disturbed by the court. She referred to the cases of Tesco v Secretary of State 1995 1W.L.R. 759 and Moray Ccouncil v Scottish Ministers 2006 S.C. 691. In the present case, t 4..The rReporter had not said, as was averred in the council's pleadings, did not say that a contribution could not be made but rather that on the facts of it it was not warranted. and that is why he used the word "reasonable". He found that it was not reasonable seek a contribution. As I understood her argument, she submitted that the court should not substitute its own judgment for that of the reporter.

[21] Miss Springham argued that the appeal should be refused.

Reply on behalf of the council.

[22] In reply Mr Campbell submitted aid that in a planning appeal there are only two grounds in section 239 of the 1997 Act, being an excess of power and procedural impropriety. In this case He said that we are in the ultra vires territory and he argued that the a decision taken by the reporter was which was taken which involved considering something which should not have been considered or leaving out something which should have been considered as ultra vires. Therefore Miss Springham says that one must say that it is irrational; one does not need to say that one can simply say that it is ultra vires. He accepted that the Moray District Council case showed that the court one should was not to substitute its ones own discretion decision on planning matters for that of the inspector. He accepted also that it was not incumbent on the rReporter to look at everything or to mention all that was put before him in his decision. . He argued that relevant facts in owever in this case he said that the chain starteds in 2004 with 7/15 of process at paragraph 2.2 wherewhen the council resolved that it says that contributions would ill be sought and that in saying so deciding the cCouncil was setting out a compulsory template. This is reinforced by the resolution passed in 2006 activities. G6 has made that clear although he accepted it could be read either way. It was clear that the council did not intend that each application lying within the listed post code areas would be decided by examining each one afresh.However deciding things house by house does not sit well with a list of postcode areas. As regards to the planning circular on which the reporter relied, Mr Campbell argued that he said that it was ten years old and that the rReporter had to take it into account rather than be bound by it. He referred to Looking at paragraph 4 of the circular which he would argued showed that that there may be benefit for the greater good of society may be considered. . He argued that In paragraph 12 gave these are just examples of questions which could be asked. . Mr Campbell submitted that Thethe issue "'staring the court in the face"' was is whether the reporter was can he be right to place such relevance on the a 1996 circular? He submitted that there were three points to make.There are three points to be made. OneFirstly, the reporter was correct to consider correct to consider the circularit. Secondly he was correct to apply aTwo correct to apply a test of reasonableness, but in so doing he should have considered the council's decision to promulgate the but must consider the October meeting making the policy decision now known as G6 and their desire to designate certain post code areas being areas which the council considered would benefit. and t Thirdly the reporter erred in the way in which he applied ree, wrong to apply paragraph 13. The reporter There gave no was no analysis of what was considered too remote.

After a short reply in which Miss Springham repeated most of what she had said already and both counsel made reference to the case of Tesco v The Secretary of State 1995 1 Weekly Law Reports 759.

Discussion

[23] In my opinion the reporter was entitled to consider whether the application for planning permission was for a development which would benefit from the re instatement of the railway. I did not accept Mr Campbell's argument that the reporter was obliged simply to accept the council's decision on that matter, and that the only way to argue against such a policy was by an action to reduce it. In terms of the 1997 Act the reporter appointed by the Secretary of State has power to allow or dismiss the appeal or reverse or vary any part of the decision of the planning authority and may deal with the application as if it had been made to him in the first instance. Thus the reporter is bound in determining an appeal to have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. Policy G6 is a material consideration to which he has to have regard. In doing so he is in my opinion entitled to consider whether the condition which the council seek to put on the grant of planning permission is justified given the geographical relationship between the site and the route of the Waverley rail link. Therefore I do no t accept Mr Campbell's primary argument that the reporter acted ultra vires by considering the merits of the condition sought by the council.

[24] Further, in the circumstances of this case, I agree with Miss Springham that the papers before the reporter do indicate that the parties appeared to ask the reporter to consider the merits of the condition. In the papers submitted by the council to the reporter there is no clear submission that the policy cannot be questioned. In the paper prepared for planning committee (on pages 7 and 8) the council state as follows:-

"'Planning authorities are advised that planning agreements related to the payment of contributions towards off site infrastructure must be clearly related to the development and the extent of contribution required should relate in scale and kind. This approach was followed when the supplementary guidance was originally formulated, and extended in 2006, whereby it covers cupost coade areas which are considered to benefit from the provision of a rail service to the Borders, and the development of a station at Stow. It is considered that the extent to which the catchment area approach should be challenged is a matter to ber considered when reviewing the policy, as opposed to varying the approach on a case by case basis. It is considered that the policy applies to this development since the benefits to be derived from the rail link directly relate to the catchment area within which the development is located, and that the contentions raised by the applicant are not sufficient for the contribution to be waived in this case."'

[25] That submission asserts that the policy should not be varied on a case by case basis, but also asserts that the contentions made by the applicant are insufficient to waive the policy in this case. Thus the council appear to concede that case by case variation is competent and that the argument for such a variation has been considered by them and rejected on the merits. The council does not clearly and unequivocally assert that the policy should always be followed, nor does it make such an assertion accompanied by a fall back position that if the merits are considered on a case by case basis then certain considerations apply. Rather it seem so me to make a confusing submission from which it can be seen that the reporter might well take the view that the council expected the case to be decided on the arguments particular to the merits of the proposed condition in this case.

[26] In the response to grounds of appeal by the council dated 24 09 07 the council stated that the committee which refused the application did so by considering whether the application warranted a departure from the policy, and asserted that that was the correct process. The council asserted that the site would benefit from a significantly enhanced public transport service. There is no specification of why it came to that view. It also asserted that the post code approach allows for an appropriate means of applying the policy consistently in a manner transparent and clear to applicants before they submit their application.

[27] In my opinion the reporter was correct in considering the merits and in doing so by considering the arguments put before him. I am, however, of the opinion that while the reporter was correct to consider the merits of the imposition of the condition, he failed to take into account all relevant matters, or if he took them into account, that he failed in his decision letter to show that he had done so. It is correct that the council gave little information whereas the applicant set out his case at some length. Nonetheless the reporter was advised that the council had considered the matter and had adopted the policy. He does not give any reason for apparently ignoring that. The reporter does not give any reason for his apparently ignoring the fact that the G6 was introduced because the council formed the view that those postcodes brought in by it related to sites which would benefit from the reinstatement of the railway once it had been decided to include a station at Stow. He does not deal with the argument put up, albeit faintly, on behalf of the council that the post code approach creates certainty and transparency. It is not clear that the reporter dealt with the decision by acknowledging that there was a policy and looking at the application to see if its circumstances justified a departure from that policy. The reporter dealt with the matter as though it were an agreement under section 75 of the 2007 Act, and he did not to refer to the 2006 Act to put the matter in context. There is nothing in the reporter's decision letter which shows that he considered the wider benefits which might be thought to exist in being part of an area which has good public transport, even if there are arguments to indicate that those living at the application site might not themselves use it. The reporter referred to the station at Gorebridge, which does not seem to have been referred to by either party and found that it would be "'of incomparably greater appeal for anyone travelling to and from Edinburgh."' I understand that is a reference to a station to be provided on the Waverley line, and therefore a reference to a benefit which may come from the reinstatement of the railway. This has apparently been raised by the reporter rather than by parties. The reporter does not explain his view on that.

[28] I am of the opinion that the reporter has not given reasons intelligible to the informed reader which show that in considering the appeal against council's decision that a condition that a developer contribution be paid he considered all relevant matters. Therefore I allow this appeal, up holding the council's secondary argument that the reporter has not shown by his written reasons that he gave full consideration to all relevant matters.