Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 105
XA101/09	OPINION OF LORD UIST in Application under section 238 of the Town and Country Planning (Scotland) Act 1997 by PENNY UPRICHARD to quash An Order of the Scottish Ministers dated 22 May 2009 approving the Fife Structure Plan 2006-2026 with Final Modifications dated May 2009 ­­­­­­­­­­­­­­­­­________________

Applicant: Findlay, O'Rourke; Drummond Miller LLP

Scottish Ministers: Drummond; Solicitor to the Scottish Executive

Fife Council: Douglas Armstrong QC; Balfour & Manson LLP

30 July 2010

Introduction
[1] On 27 April 2006 Fife Council approved the Fife Structure Plan 2006-2026 ("the structure plan") for submission to the Scottish Ministers. In December 2007 the Council produced a report entitled "Proposed Modifications to the Structure Plan arising from Re-Appraisal of Housing Land Requirement (2007)" ("the proposed modifications"). The Scottish Ministers thereafter considered the structure plan and the proposed modifications. In December 2008 they published the "Finalised Fife Structure Plan 2006-2026 incorporating the Scottish Government Proposed Modifications" ("the draft structure plan with proposed modifications", 11/1 of process) and allocated the period between 9 December 2008 and 2 February 2009 for consultation.

[2] In the course of the consultation period the applicant lodged an objection to the draft structure plan with proposed modifications by letter of objection dated 29 January 2009. She objected to the draft structure plan with proposed modifications, among other reasons, because of

"the omission of any change to the plans for St Andrews - 1,090 houses, a bypass, a 10 hectare science park, a 10 hectare business park and the intention to make this small historic town 'an economic driver for Fife'".

Objections on the same or similar grounds were lodged by other named individuals, the Royal Burgh of St Andrews Community Council, the St Andrews Preservation Trust, the St Andrews Green Belt Forum and Scottish Natural Heritage.

[3] In her letter of objection the applicant made criticisms of the draft structure plan alterations based upon inter alia St Andrews Strategic Land Allocations, Landscape Capacity and Greenbelt. She made reference to (i) the Alison Grant Landscape Capacity Assessment dated March 2003 (11/20 of process) prepared on behalf of Fife Council ("the Grant Report"); (ii) Fife Council St Andrews Strategic Study dated 1998 and (iii) report by David Tydesley & Associates dated May 1997 entitled "A Green Belt for St Andrews" ("the Tydesley Report"). These reports were all well known to the Scottish Ministers and the Council.

[4] The applicant objected in particular to the draft structure plan modifications to the extent that they set out plans for Strategic Land Allocations to the west of St Andrews at chapter 2.4 in the following terms:

"St Andrews West

The strategy is to realise the potential of St Andrews as an economic driver for the whole of Fife in terms of academic development and tourism whilst reconciling this against the need to protect its internationally important heritage. This strategy has significant implications for land use and expansion of the town and has to be balanced with the need to protect its landscape setting. High quality development and expansion of employment land is required over the longer term. Land for a minimum of 1,000 houses in the period to 2026 will be identified, a large proportion of which will be within a Strategic Land Allocation to the west of the town and will maximise the use of brownfield sites where possible. A 10 ha Science Park and 10 ha General Business Park will be identified to provide opportunities for employment growth. The Local Plan will define the Green Belt boundaries taking account of the need to provide land for development over, and potentially beyond, the Plan period. Contribution to a new link road will be required as part of this development. Up to 90 additional housing units arising from the 270 unit strategic allocation to the St Andrews and NE Fife HMA as set out in Proposals PH1 and PH3 may be assigned to St Andrews following further assessment."

[5] Following receipt of the letter of objection the Scottish Ministers published the "Finalised Fife Structure Plan 2006-2026, Final Modifications - May 2006" ("the finalised structure plan") along with (i) a Schedule of Reasons for Final Modifications; and (ii) a Schedule of Reasons for not making Modifications. The objections set out in the applicant's letter were rejected. In the latter Schedule the Scottish Ministers set out the substance of the objection and their response to it as follows:

"33. Landscape character and capacity assessments indicate that St Andrews is at its landscape capacity or that development should be steered to Craigtoun (named individuals, Royal Burgh of St Andrews CC, St Andrews Preservation Trust, St Andrews Green Belt Forum).

Reason: The 2003 Alison Grant Study indicates that some scope for further development to the west of St Andrews exists subject to mitigation."

[6] In this application under section 238 of the Town and Country Planning (Scotland) Act 1997 ("the Act") the applicant challenges the above reason given by the Scottish Ministers as inadequate. She maintains that her letter of objection and the reports referred to therein reached clearly reasoned and coherent conclusions to the effect that the capacity for strategic land allocation to the west of St Andrews was very limited and that this was supported by the objections of the other parties. While the Scottish Ministers took account of her representations, they failed to give a proper, adequate or intelligible reason for not modifying the final structure plan. The reason given by them did not answer the clear and reasoned points of objection put forward in her letter of objection and the reports referred to in it. Taking account of all the points of objection, the reason that "some scope for further development to the west of St Andrews exists subject to mitigation" was inadequate. The Grant Report had concluded at page 32 that, while a limited area of about 22 hectares to the west could be developed without adversely affecting the key characteristics and visual qualities of St Andrews (provided mitigation work was undertaken), the majority of the western landscape was inappropriate for development due to the impact it would have on the landscape character, scenic quality or visual attributes of St Andrews and its setting. An area of 22 hectares was not a sufficient extent of land to accommodate the strategic land allocation envisaged for St Andrews in the finalised structure plan. An area of 20 hectares alone was identified as necessary for both a science park and a business park. It was incumbent upon the Scottish Ministers, in order to meet the clear and reasoned points of objection advanced by the applicant, to have given an adequate reason for refusing to modify the finalised structure plan. In particular, it was incumbent upon them, having regard to the limited area identified in the Grant Report as suitable for development, to have given an adequate reason for outlining a level of development to the west of St Andrews far beyond the land available. The stated reason was not intelligible and did not deal with the substantive objections raised by the applicant. The order made was therefore beyond the powers conferred upon the Scottish Ministers by Part II of the Act to the extent that it approved the Strategic Land Allocation and associated developments for St Andrews referred to in the finalised structure plan. The interest of the applicant had been substantially prejudiced by the Scottish Ministers' failure to comply with their obligations under Part II of the Act and the order therefore required to be quashed to the extent that it affected any property of the applicant. (The Act applied without amendment by the Planning Etc (Scotland) Act 2006 because the structure plan was submitted to the Scottish Ministers before 28 February 2009: SSI 427/2008 and SSI 70/2009.)

The relevant statutory provisions
[7] I set out below the relevant provisions of the Act as they applied at the material time.

"4-(1) It shall be the duty of the planning authority to keep under review the matters which may be expected to affect the development of their district or the planning of its development.

(2) A planning authority may, if they think fit, institute a survey, examining the matters referred to in subsection (1), of the whole or any part of their district ...

7-(1) The structure plan for any district shall be a written statement-

(a)      formulating the planning authority's policy and general proposals in respect of the development and other use of land in that district (including measures for the conservation of the natural beauty and amenity of the land, the improvement of the physical environment and the management of traffic),

(b)     stating the relationship of those proposals to general proposals for the development and other use of land in neighbouring districts which may be expected to affect that district, and

(c)      containing such other matters as may be prescribed ...

8-(1) When preparing a structure plan for their district and before finally determining its content for submission to the Scottish Ministers, the planning authority shall take such steps as will in their opinion secure-

(a) that adequate publicity is given in their district to the report of the survey under section 4 of this Act and to the matters which they propose to include in the plan,

(b) that persons who may be expected to desire an opportunity of making representations to the authority with respect to those matters are made aware that they are entitled to an opportunity of doing so, and

(c) that such persons are given an adequate opportunity of making such representations.

(2) The Authority shall consider any representations made to them within the prescribed period ...

10-(1) The Scottish Ministers may, after considering a relevant proposal, either approve it (in whole or in part and with or without modifications or reservations) or reject it.

(2) In this section "relevant proposal" means -

(a) a structure plan ...

submitted (or resubmitted) to the Scottish Ministers.

(3) In considering a relevant proposal the Scottish Ministers may take into account any matters which they think are relevant, whether or not they were taken into account in the proposal as submitted to them.

(9) On considering a relevant proposal the Scottish Ministers may consult, or consider the views of, any planning authority or other person, but shall not be under any obligation to do so.

(10) On exercising their powers under subsection (1) in relation to a relevant proposal the Scottish Ministers shall give such statement as they consider appropriate of the reasons governing their decision.

11-(1) Every planning authority shall prepare local plans for all parts of their district ...

(3) A local plan shall consist of -

(a) a written statement formulating in such detail as the planning authority think appropriate the authority's proposals for the development and other use of land in that part of their district or for any description of development or other use of such land including in either case such measures as the planning authority think fit for the conservation of the natural beauty and amenity of the land, the improvement of the physical environment and the management of traffic,

(b) a map showing those proposals, and

(c) such diagrams, illustrations and descriptive matter as the planning authority think appropriate to explain or illustrate those proposals, or as may be prescribed,

and shall contain such other matters as may be prescribed.

(5) In formulating their proposals in a local plan the planning authority-

(a) shall have regard to any information and any other considerations which appear to them to be relevant or which may be prescribed, and

(b) shall secure that the local plan conforms generally to the structure plan, as it stands for the time being, whether or not it has been approved by the Scottish Ministers.

24- (1) For the purposes of this Act, any other enactment relating to town and country planning and the Land Compensation (Scotland) Act 1963, the development plan for any area (whether the whole or part of the district of a planning authority) shall be taken as consisting of-

(a) the provisions of the structure plan for the time being in force for that district or the relevant part of that district, together with the Scottish Ministers' notice of approval of the plan,

(b) any alterations to that plan, together with the Scottish Ministers' notices of approval of them,

(c) any provisions of a local plan for the time being applicable to the area, together with a copy of the authority's resolution of adoption or, as the case may be, the Scottish Ministers' notice of approval of the local plan, and

(d)    any alterations to that local plan, together with a copy of the authority's resolutions of adoption or, as the case may be, the Scottish Ministers' notices of approval of them.

37- (1) Where an application is made to a planning authority for planning permission -

(a) ... they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations ...

238-(1) If any person aggrieved by a structure plan or a local plan or by any alteration, repeal or replacement of any such plan desires to question the validity of the plan or, as the case may be, the alteration, repeal or replacement on the ground -

(a)      that it is not within the powers conferred by Part II, or

(b)     that any requirement of that Part or any regulations made under it has not been complied with in relation to the approval or adoption of the plan, or, as the case may be, its alteration, repeal or replacement,

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

(2) On any application under this section the Court of Session -

(b) if satisfied that the plan or, as the case may be, the alteration, repeal or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration, repeal or replacement either generally or in so far as it affects any property of the applicant."

[8] Regulations 6, 18 and 19 of the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 provide:

"6 The policies and general proposals formulated in a structure plan shall be set out so as to be readily distinguishable from the other contents thereof and the plan shall include a reasoned justification of the policies and general proposals formulated therein.

18 Where the Scottish Ministers propose to modify a structure plan they shall, except as respects any modification which they are satisfied will not materially affect any policy or general proposal of the plan-

(a)      notify the planning authority of the proposed modifications;

(b)     give notice by advertisement of the proposed modifications;

(c)      serve notice of the proposed modifications in the like terms on such persons as they think fit; and

(d)     consider any objections duly made to the proposed modifications.

19 The Scottish Ministers shall in relation to their decision on a structure plan notify the planning authority thereof in writing, give notice thereof by advertisement and shall serve a notice thereof on such persons as they think fit."

The Tyldesley Report
[9] The Tyldesley Report (May 1997) was commissioned by the St Andrews Preservation Trust. Its objective was "to assist and inform the consideration of a Green Belt in the Structure Plan Review". It stated at para 4.1:

"St Andrews is one of the most important historic towns in Scotland, and one with an exceptionally high environmental quality, distinctive appearance and outstanding relationship with its surrounding landscape. The historic core of the town is an Outstanding Conservation Area of national importance, with over 300 listed buildings, some 30 of which are Grade A, an unusually high proportion. Being largely surrounded by higher land and the sea, the town's distinctive skyline and landscape, including the links, can be seen from many important viewpoints."

The report went on to recommend the creation of a green belt for St Andrews with inner and outer boundaries, as set out on the plans on the last two pages of the report. The basis for the delineation of the inner boundary is addressed at chapter 6 of the report, the description of the boundary is set out at Table 3 and the factors influencing the delineation are set out in Table 2.

The Grant Report
[10] In March 2003 Alison Grant, Landscape Architect, prepared on behalf of the Council a report entitled "Landscape Capacity Assessment and Proposed Green Belt Study of St Andrews". As stated by her, the study was commissioned to assess the capacity of the landscape to accommodate new built development adjacent to the settlement of St Andrews. It had the following objectives in relation to landscape capacity:

·       identify features that are important to the setting of St Andrews in landscape terms

·       identify constraints for development in landscape terms

·       identify areas that are capable of absorbing development, with or without landscape enhancement measures

·       identify areas where the landscape would benefit from development

·       identify areas that are inappropriate for development because of landscape constraints; and

·       propose a green belt boundary based on clearly defined landscape features.

[11] The study addressed landscape issues only and did not take into account other planning considerations. It therefore cannot be used in isolation to allocate sites which are either appropriate or inappropriate for development. It sought rather to explain clearly the landscape considerations which were relevant on a site by site basis with a view to informing the Council and contributing to the development of a locational strategy. "Development" was assumed to mean domestic scale residential development of five houses or more. The geographical area of the search for the landscape capacity element of the study was determined by working outwards from the existing settlement edge, reflecting the requirement of the Council to consider settlement expansion of St Andrews only. Opportunities for proposed development were therefore identified only where they would expand the existing settlement and adjacent neighbourhoods, and not where they would create the focus for a new settlement or new neighbourhood adjacent to the existing town. The study delineated a particular area as St Andrews West.

[12] At page 33 of the study the author stated:

"St Andrews West

Landscape Opportunities and Constraints

The main opportunity for development within St Andrews West lies within the Coastal Terrace area and should focus on the most level land closest to Lang Lands. Here the flat terrain allows for foreshortened views, which limit visibility of any future development to the outside edge only, reducing its visual impact. The main landscape constraints to development in this location are the view to the town from the Strathkinness Road and the physical separation from the town centre which is created by the presence of the university complex. Low buildings, of no more than two stories, would help retain the view from the Strathkinness Road.

Any development of the coastal terrace would need to be closely linked to the subtle changes in land form, and be strongly associated with the most level area of land: the changes in gradient would then provide some sense of settlement 'edge'.

The coastal terrace site has special qualities which should be built into the design of any development. Access roads should be aligned to retain the visual relationship between the site and the coast and historic centre of the town, the den of the Swilken Burn should be extensively planted and the pine shelterbelt on the north eastern edge of the site should be extended to allow for its regeneration in time.

Development would not be considered appropriate on the open coastal hill or the landward ridge, where the open character of the landscape would be compromised. Both areas, and in particular the open coastal hills which is a very self-contained character type (sic), are perceptually detached from St Andrews, and both contribute to the setting and backdrop of the settlement. Development on either ridge would extend built development onto higher ground, compromising the strong association between the settlement form and low lying ground. Analysis also shows that there are no alternative obvious landscape features which would create strong sense of 'edge' to additional development."

[13] On page 34 the author proceeded to make proposals. These were that in much of the area development was inappropriate because of its potential impact on the landscape character, scenic quality or visual attributes of St Andrews and its setting, but that a particular defined area was capable of some development without adversely affecting the key characteristics and visual qualities of St Andrews, provided that landscape mitigation work was undertaken.

Submission for the applicant
[14] It was submitted for the applicant that it was trite law that, if the Scottish Ministers provided a reason for not modifying the draft structure plan, then it had to be proper, adequate and intelligible. The reason provided could not be described in those terms. It indicated that landscape capacity had been considered and that there was scope for the proposed development by reference to the Grant Report, but that report provided no support for the amount of development proposed. The Scottish Ministers' reason accordingly failed the well-known test established by Lord President Emslie in Wordie Property Company v Secretary of State for Scotland 1984 SLT 345. At p 348 he said:

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

I have only to add that in appeals such as these reasons which fail to pass the test which I have just discussed will demonstrate a failure to comply with statutory requirements which cannot have been other than prejudicial to the appellant."

[15] Further, while a reason may be expressed shortly, it had to satisfy the test set out by Megaw J in In re Poyser and Mills' Arbitration [1963] 2 QB 467 at p 478:

"Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate reasons must be given. The reasons that are set out must be reasons which will not only be intelligible, but which deal with the substantial points that have been raised."

[16] In the more recent case of South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 Lord Brown of Eaton-under-Heywood embarked, at paras 24-34, on a summary and analysis of the cases on the adequacy of the reasons given in planning determinations. At para 36 he summarised the principles to be extracted from the cases as follows:

"36 The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

[17] The reason given in the present case did not address the substantial point raised by the applicant's objection, namely, that there was insufficient available land to the west of St Andrews conceivably to accommodate the housing and science and business park facilities strategically provided for. It was therefore unreasonable to make a strategic allocation for such sizeable developments in the absence of sufficient available and identifiable land to accommodate them. One of the purposes in requiring reasons to be adequate was to impose upon the decision-maker the necessary rigour in approaching decisions. The absence of a proper reason in this case may well demonstrate a lack of rigour, namely, a failure to grapple with the landscape issues before determining the amount of development.

[18] The same conclusion is reached if Reason 33 is read in the context of the remainder of the document. The principal relevant context could be found in Reason 17, which reads as follows:

"17 St Andrews West development will increase town centre congestion, affect landscape and amenity. Scale of development is too high ...

Reason It is appropriate for St Andrews to accommodate a strategic allocation of Fife's housing requirement. The local plan will articulate the strategic land allocation which can be accommodated subject to mitigation and landscape enhancement."

[19] The second sentence in Reason 17 was a simple assertion, but it did refer to mitigation, which tied in with Reason 33, in which the point was expressly dealt with. It did not assist the Scottish Ministers or explain how and/or why the proposed development would be incorporated into St Andrews. There was, for example, no acceptance that damage would be done, only justification by reason of need. It was asserted that the assessments indicated that there was scope for further development, which they did, but not of the scale proposed.

[20] As to the various suggestions by the Scottish Ministers and the Council that landscape capacity issues could be considered during the course of the local plan process, they were without foundation. In terms of section 11(5)(b) of the Act the local plan had to conform generally to the structure plan, a point reinforced by previous policy guidance (PAN 49 and SPP 1, para 37). If a strategic allocation was materially reduced in a local plan it would not be in conformity with the structure plan: Persimmon Homes (Thames Valley) Ltd v Stevenage Borough Council [2005] EWCA Civ 1365, [2006] JPL 526.

[21] Secondly, the structure plan directed that the strategic allocations for a minimum of 1,000 houses and the 10 ha science and business parks "will be identified" (para 2.4). The local plan could not revisit such strategic allocations. Further, it directed that the definition of the Green Belt would take account of the need to provide land for development even beyond the plan period. Para 3.46 provided that the local plans would identify the specific sites as a priority. Policy ENV 1, which provided for Green Belts for, inter alios, St Andrews, was amended so that the purpose of such belts was only to "manage" and not to "control" long-term planned growth. That reflected the text in paras 4.4-4.5, which made it clear that the Green Belts should be set taking account of, inter alia, the need to provide for careful management of growth - in contrast to the original version which left the extent of growth more open. It would simply not appear to be possible for the amount of development proposed in the structure plan to be reduced as part of the local plan process. The terms of the recent 2009 draft St Andrews and North East Fife plan illustrated the impact of such strategic requirements as well as demonstrating the extent of the land take necessary to fulfil them.

[22] The strategic land allocation to the west of St Andrews set out in the draft structure plan modifications was therefore not simply an academic point, with the practicalities of its implementation left to the local plan process. As a direct result of the strategic land allocation the Council proposed to alter the local plan significantly and contrary to the recommendations in the Grant Report. Accordingly, the proper point of challenge was at the stage of the structure plan, without which the local plan changes could not proceed.

[23] In relation to submissions which it was expected would be made on behalf of the Council and the Scottish Ministers, the following points were made in anticipation:

(i)                 It would be said that this was all part of a strategic policy decision and that the policy in the structure plan derived from a careful weighing of the requirements for Fife. That may be so, but it was no answer to the applicant's point. The applicant had lodged an objection with the Scottish Ministers because she was of the view that the Council had not considered the point properly. She was not suggesting that the Council could not come to the decision which they had reached if they accepted that there would be damage to the landscape or obtained a new report disagreeing with the Grant Report, but the Scottish Ministers' answer in Reason 33 founded on the Grant Report.

(ii)               It was certainly not a requirement of the grant of a remedy that the decision under challenge should affect the property of the appellant, although the application sought quashing of the order to the extent that it affected any property of the applicant. It was open to the court to quash the whole or part of a plan or policy. The scale of the proposed development would affect all properties within St Andrews. It was not necessary to show that it specifically affected the property of the applicant. She was a person aggrieved. The reference in the pleadings to the extent that the property of the applicant was affected could be deleted.

(iii)              There would require to be exceptional circumstances, if it were persuaded of the merit of the application, for the court not to quash the plan. The clear and vital importance of St Andrews as a tourist attraction to Fife and Scotland meant that there would have to be extreme reasons not to quash the plan in view of the long-term damage which might ensue if it were not quashed.

(iv)             The applicant's challenge was directed at the strategic housing and employment land allocations. If they were unlawful, the parties should agree which parts of the plan fell to be quashed, failing which further submissions should be made. The thrust of the challenge was clear.

Submission for the Scottish Ministers
[24] The first proposition advanced on behalf of the Scottish Ministers was that Reason 33 was proper, intelligible and adequate. In order to make a successful challenge to the structure plan, the applicant had to show, under section 238 of the Act, that the plan or the alteration or replacement of it was not within the powers of Part II of the Act or that the applicant's interests had been substantially prejudiced by the failure to comply with any requirement of Part II of the Act or of any regulations made under it. Even if the court were satisfied that the applicant had established this, it had a discretion under section 238(2)(b) of the Act as to whether or not to quash the plan or any part of it. Section 7 of the Act provided for the form and content of structure plans. The purpose of any such structure plan prepared by a planning authority was to provide a policy framework for land use within the authority's area. Planning authorities were also required to produce local plans, which provided more detailed specification of how the structure plan was to be implemented in practice. The structure plan provided the general context in which the local plan had to operate. Section 11(5)( b) of the Act provided that, in formulating proposals in a local plan, the planning authority had to secure that the local plan conformed generally to the structure plan. The structure plan and the local plan together formed the development plan for any area. Section 25 of the Act provided that where, in making any determination under the Planning Acts, regard is to be had to the development plan, the determination had to be made in accordance with the plan unless material considerations indicated otherwise. Accordingly, the immediate and particular significance of the development plan was that it was the means by which the planning authority managed development in its area.

[25] Scottish Planning Policy 1: The Planning System (2002) set out Scottish Executive Policy on the provision of structure plans and local plans. Structure plans should provide a long-term vision, looking forward at least ten years, as part of an overview of an area's development requirements, expressing the development strategy for the area and identifying priorities for urban and rural regeneration (Planning Advice Note 37: Structure Planning). Local plans should set out detailed policies and specific proposals for the development and use of land that should guide day-to-day planning decisions (Planning Advice Note 49: Local Planning). Scottish planning Policy 3: Planning for Housing (2003) indicated how structure and local plans should deal with land for housing (see also Planning Advice Note 38: Housing Land, which provides guidance on housing land allocations).

[26] A planning authority could at any time submit to the Scottish Ministers proposals for the alteration and repeal of a structure plan (section 9 of the Act). It had to go through a consultation exercise in preparing the structure plan and then had to publish its proposals, which were subject to objection and comment. It had to consider any timeous objections to their proposals. The plan thereafter had to be submitted to Scottish Ministers for their consideration. Section 10 of the Act had the effect that, before determining whether or not to approve a structure plan, the Scottish Ministers had to consider objections made to the proposals so far as made in accordance with regulations (see Regulation 188 of the 1983 Regulations). The Scottish Ministers could thereafter approve or reject the plan with or without modifications. Section 10(10) provided that, when exercising their powers to approve (with or without modifications) or reject the plan the Scottish Ministers had to give such reason as they considered appropriate as to the reasons governing their decision.

[27] It was accepted on behalf of the Scottish Ministers that, when they gave reasons under section 10(10) of the Act, they had to comply with the test laid down in Re Poyser and Mills' Arbitration and Wordie Property Company Ltd. For the applicant to succeed there had to be something substantially wrong or inadequate in the reason given. Provided the reason given was intelligible and dealt with the substantive points, it was open to the Scottish Ministers to conclude that a short reason would suffice or that a point was not substantive and therefore needed little or no reasoning: Edwin H Bradley and Sons Ltd v Secretary of State for the Environment (1984) 47 P & CR 374 at p 389 and Westminster City Council v Great Portland Estates [1985] 1 AC 661 at p 672). In the South Bucks District Council case Lord Brown of Eaton-under-Heywood further refined the test at para 36 and emphasised the need to establish substantial prejudice.

[28] The relationship between adequacy of reasoning and prejudice in a planning context was analysed by Lord Bridge in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at p 167C-E:

"Whatever may be the position in any other legislative context, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not to be answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be tested by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given."

At p 168D-E he went on to state that:

"... when the decision was essentially an exercise of discretion, I think that it is for the applicant to satisfy the court that the lacuna in the stated reasons is such as to raise a substantial doubt as to whether the decision was based on relevant grounds and was otherwise free from any flaw in the decision-making process which would afford a ground for quashing the decision."

[29] In Di Ciacca v Scottish Ministers 2003 SLT 1031 Lord Reed, referring to what Lord Bridge said in the above passages, stated at p 1038C-E, para [16] as follows:

"In this passage Lord Bridge analysed the duty to give reasons in the context of planning law, and its relationship to the court's power to quash a planning decision, more fully than Lord President Emslie had done in Wordie Property. I do not however consider that there is any inconsistency between what Lord Bridge said and what Lord President Emslie had said. The Lord President's observations about prejudice, in particular, were related specifically to 'appeals such as these' and to 'reasons which fail to pass the test which I have just discussed'. A decision which left the court 'in ... real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it' would not only fail Lord President Emslie's test, but would also give rise to substantial prejudice because, in Lord Bridge's words, it 'was so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act'."

[30] It was important to read a decision in context, in good faith and without subjecting it to hypercritical analysis. In South Somerset District Council and the Secretary of State for the Environment v David Wilson Homes (Southern) Ltd (1993) 66 P & C R 83, dealing with an inspector's decisions on two planning applications for housing development, Hoffmann LJ (as he then was) said:

"The inspector is not writing an examination paper on current and draft development plans. The letter must be read in good faith and references to policies must be taken in the context of the general thrust of the inspector's reasoning."

[31] In Save Britain's Heritage Lord Bridge rejected as seriously misleading any suggestion that "the court has a role analogous to that of an educational examination board which sets a standard of draftsmanship which a decision letter must reach in order to achieve a pass mark". In particular, a relevant factor to take into account when considering the quality of reasons provided is whether the decision was one on a question of fact or one on a question of planning judgement (Gillenden Development Co Ltd v Surrey County Council (1997) 74 P & C R 119 per Pill LJ at p125).

[32] The adequacy of reasons for approving a structure plan was considered by Otton J in Bromsgrove District Council v Secretary of State for the Environment (1991) 62 P & C R 297. He emphasised (at pps 317-318) the fundamental distinction between the ordinary planning inquiry rights of the parties and the very different framework and procedure under which structure plans were produced and approved. He considered that the tasks and duties of the Secretary of State under sections 9 and 10 of the equivalent English statute were different from those on a planning appeal or an enforcement notice appeal which involved the rights and obligations of individuals. Sections 9 and 10 did not confer any rights on individuals or even on local planning authorities who might be directly or indirectly affected by the policy promulgated and any alteration thereto, as the Secretary of State was making decisions purely of planning policy relating not to individuals but to areas of the country.

[33] The adequacy of reasons for making modifications to a structure plan was considered by the Court of Appeal in Alfred McAlpine Homes (North) Ltd v Secretary of State for the Environment (1994) 70 BLR 138. Glidewell LJ stated that:

"... dealing with the substantive points does not mean that the decision-maker has to make a reference to every argument which every objector has raised. As Lord Bridge said, it depends upon the nature of the issues falling for decision. Mr Aylesbury, in my view, is entirely correct in the argument which he initially advanced that we must be conscious that we are here dealing with the approval of a Structure Plan to which there has been a substantial number of objectors, and to the modification of which there has been a substantial number of objectors. We are not dealing with an objection to a decision on a Planning Appeal relating to one single piece of land."

[34] In the context of the present application it was clear from the Fife Structure Plan, the schedule of reasons for making modifications and the schedule of reasons for not making modifications that a strategic policy decision had been taken to realise the potential of St Andrews as an economic driver for the whole of Fife. Reference was made to Chapter 3, paras 1.5 - 1.16, 2.1 - 2.4 and 4.2 - 4.7 of the Fife Structure Plan and Reasons 2-6, 12 , 17 and 33 of the Schedule of Reasons for not modifying the structure plan. In terms of para 2.4 of the Fife Structure Plan the policy in relation to St Andrews West was that land for a minimum of 100 houses will be identified in the period to 2026, a large proportion of which will be within a Strategic land Allocation to the west of the town and will maximise the use of brownfield sites where possible. The location of the business park and the science park will be identified in the local plan. The local plan will also identify Green Belt boundaries taking account of the need to provide land for development over, and potentially beyond, the plan period. The land will be identified through the local plan process taking into account all relevant considerations, including landscape capacity.

[35] The applicant had objected to the proposals to modify the structure plan on the ground inter alia that St Andrews was at its landscape capacity. In Reason 33 the Scottish Ministers were dealing with the applicant's objection based upon a lack of landscape capacity. In rejecting her objection that St Andrews was at its landscape capacity they explained that the Grant Report (which was the most up-to-date report) did in fact indicate that, in landscape capacity terms, there was scope for development in St Andrews West subject to mitigation. That Report identified the west of St Andrews as having the largest areas capable of development in landscape capacity terms and also identified constraints to the north and south of St Andrews. Landscape capacity was only one of the considerations which had to be taken into account when considering where development should be permitted in St Andrews. It was not necessary or appropriate, in the context of a structure plan, for the Scottish Ministers to identify where the developments would be located within St Andrews West. As indicated in the structure plan, the specific location of the housing and the science and business parks would be identified in the local plan.

[36] The reasoning made it plain that the applicant's objection to the modification of the structure plan on landscape capacity grounds was rejected. It was important to assess the reasoning in its context. The Scottish Ministers had received 2,426 objections to the structure plan submitted in 2006. They received 187 objections to the proposed modifications. Reason 33 was a reason for not making modifications to the structure plan, not a reason for making modifications to it. It concerned a matter of planning judgment. In such a context the reason could be a brief one. It was intelligible: it left the informed reader in no real and substantial doubt that the applicant's objection had been rejected under explanation that the Grant Report did provide scope for development (by recognising landscape opportunities for development) in landscape capacity terms. The reason, although brief, did not disclose any irrationality or misunderstanding on the part of the decision-maker. Such an adverse inference should not be readily drawn. The reason provided was not so inadequately or obscurely expressed as to raise a substantial doubt whether the decision was taken within the powers of the Act.

[37] The intelligibility of Reason 33 was challenged because the Grant Report did not identify sufficient land to accommodate the proposals in the structure plan. It was being asserted by the applicant that St Andrews was at its landscape capacity, but the Grant Report did not say that. It was accepted that Reason 33 could have been fuller by referring to the Strategic Environmental Assessment. It could have referred to the policy contained in the structure plan from a very early stage, but the test to be applied was not whether the reason could have been fuller. It was easy to take an isolated sentence and subject it to criticism and scrutiny: it was necessary to look at the structure plan policy, the supporting documents, the modifications made by the Scottish Ministers, and the reasons given for making and not making modifications. The relevant question to ask was whether the informed reader would have a real and substantial doubt about what the reasons for the decision were. It was not necessary or appropriate, in the context of providing a reason for not making a modification, to embark on a wholesale justification of the structure plan policies. The location of the business and science parks would be identified in the local plan. The structure plan set out at a strategic level the housing land requirements for St Andrews: it was not appropriate for it to specify the area in which the housing would be located. The initial draft of the local plan showed that the housing land requirement was being accommodated in St Andrews West, as were the business and science parks. That did not conform to the Grant Report, although there was some overlap. The Grant Report was one factor among many which required to be considered when deciding where the development should go. It addressed only landscape issues: it did not take into account other planning considerations, such as housing requirements. The landscape constraints to the north and south of St Andrews were recognised and the only areas identified as being suitable for development were in the west and south west. The Grant Report did not prescribe where all development should go.

[38] The second proposition advanced on behalf of the Scottish Ministers was that the applicant's interests had not been substantially prejudiced by any deficiency in the reason given. Any objections which the applicant had to the location of development in St Andrews West could be made through the local plan process. The Council had published the Finalised St Andrews and East Fife Local Plan 2009 on 30 October 2009 and the statutory consultation period had ended on 24 December 2009. The Finalised Local Plan identified the location of the housing and the science and business parks envisaged in the structure plan without any reduction in the strategic allocation. The applicant had been, and would continue to be, afforded the opportunity to make objections to the specific location of development throughout the local plan process.

[39] Furthermore, the applicant's interests had been previously addressed. She had raised several queries with the Scottish Ministers, which were addressed by them, prior to the publication of the schedule of reasons for not making modifications. In a letter dated 10 July 2007 she had complained about the development of St Andrews and alleged that the Grant Report had been mainly ignored. In a reply dated 23 July 2007 the Director and Chief Planner had explained that the implementation of the Green Belt policy was very much a matter for the Council, taking into account national planning policy and the structure plan. The applicant had also written to her MP on 29 March 2009 (7/1 of process) and to the Principal Planner on 17 April 2009 (7/2 of process) raising a number of doubts about the landscape capacity of St Andrews. The Principal Planner replied to the applicant (7/4 of process) and her MP (7/3 of process) by letters dated 13 May 2009. In his letter to her MP he explained that the Grant Report indicated that there was some scope for further development to the west of St Andrews subject to mitigation. He acknowledged that in her submitted objections to the proposed modifications the applicant disagreed that mitigation could counteract adverse impacts where they had been identified. Accordingly, the applicant's main concerns had been properly addressed previously as well as in the schedule for not making modifications. If she wished to object to development in particular locations in St Andrews West she would be afforded the opportunity of so doing during the local plan process. She had failed to specify how her interests had been substantially prejudiced.

[40] The third proposition advanced on behalf of the Scottish Ministers was that even if Reason 33 was struck at by Part II of the Act, the court should refuse to exercise its discretion to quash the Fife Structure Plan or any part of it. Section 238(2)(b) of the Act conferred a discretion on the court whereby it "may" quash the plan wholly or partly if satisfied that the applicant's interests have been substantially prejudiced by any failure to comply with any statutory requirement. Had further reasons been provided, no different conclusion would have resulted. Further, if parts of the plan were quashed, that would result in a substantially incomplete strategic context for the local plan for St Andrews and East Fife and also lead to widespread uncertainty as to general policy on what development may or may not be permitted in St Andrews West. That would be a disproportionate consequence of any prejudice suffered by the applicant (UK Coal Mining Ltd v North Warwickshire Borough Council [2008] EWHC 23 (Admin) and Landmatch plc v Secretary of State for the Environment [1994] JPL 161). If the court were persuaded that it should exercise its discretion to quash parts of the Fife Structure Plan, it should have regard to the applicant's own averment that it required to be quashed to the extent that it affected any of her property. She had failed to identify which parts of the structure plan affected her property.

Submission for Fife Council
[41] The submission for the Council to a large extent duplicated that of the Scottish Ministers. It was submitted that the important points to be taken from the relevant statutory provisions and the authorities were as follows:

(1)              The structure plan sets out the policies and proposals of the planning authority as approved or modified by the Scottish Ministers.

(2)              The proposals in the structure plan required to be justified by the results of the surveys carried out under section 4 of the Act.

(3)              The planning authority had to consider the representations made to it on the written statement. (The applicant had not suggested that the planning authority had failed to fulfil its duty to consider her representations.)

(4)              The justification for the policies and proposals formulated therein had to be contained in the structure plan.

(5)              The Scottish Ministers had to consider any objections to the written statement.

(6)              The Scottish Ministers had to give such statement as they considered appropriate of the reasons for their decision to approve the structure plan.

(7)              So far as the statement of reasons for structure plan approval is concerned, often little elaboration is required because: (i) the process has involved a detailed consideration of representations; (ii) the justification for the structure plan is contained in the text and supporting documentation; and (iii) the main issues will often be questions of value judgment.

(8)              In order to succeed in the present application the applicant had to show: (i) that the reason provided was substantially wrong or inadequate; (ii) that she had been substantially prejudiced by the deficiency in the reason given; and (iii) that in the circumstances it is appropriate for the court to quash part of the plan, taking into account the effect of doing so.

[42] It was emphasised that an analysis of the structure plan process was important in the consideration of the present application because it: (i) sets out the context in which the Scottish Ministers' reasons should be considered; (ii) shows that the clear justification for the structure plan proposals is contained in the written statement and background papers; and (iii) highlights the lack of any prejudice to the applicant.

[43] The structure plan process commenced in April 2002. During that process there had been a consultation procedure in which the applicant had fully participated. The representations had been considered by the Council, which had responded to them. Ultimately the structure plan set out the Council's policy and general proposals as modified by the Scottish Ministers. The justification for the policies and proposals was primarily contained in the structure plan and supporting documentation. The structure plan had to have appropriate regard to government policy and advice, in particular to Scottish Planning Policy 3 and Planning Advice Note 38, paras 9-13 and 20-22 for housing land allocations (11/28 and 11/25 of process).

[44] The consultative draft of the written statement (11/14 of process) was published in March 2005. It stated that St Andrews is a key centre (1.14), development of key town centres is key to the growth of the Fife economy (1.15) and that the structure plan focuses growth on St Andrews and provides the framework for its long-term growth. It set out in greater detail the strategy for St Andrews, which included developing it as an economic driver for the whole of Fife and requiring a green belt which should take account of the need to provide land over and above the plan period (2.17 and 3.16). It set out the housing land requirements for the relevant housing market areas and how that requirement would be met (3.28 to 3.37); the employment land proposals for a 10 ha business/science park with an additional allocation to be identified for 6-10 ha; and the housing allocation for St Andrews for the period 2006-2026 of between 1000-1800 units (schedule H3).

[45] The Finalised Structure Plan was approved by the Council in April 2006. For present purposes the important changes from the draft were:

(i)                 St Andrews is made a strategic land allocation (1.26);

(ii)               Land is required for 1,200 houses in the period to 2026, "a large proportion of which will be within a Strategic Development Area to the west of the town and ... a 10 ha science park and a 10 ha general business park will be identified to provide opportunities for employment growth" (2.4);

(iii)              Requirements are set out for the Strategic Development areas which included St Andrews (3.1 to 3.29); and

(iv)             The housing allocation for St Andrews and the employment land proposals are set out (PE1 and PH2).

[46] Further justification for these proposals was set out in the Report of Survey - Finalised Fife Structure Plan 2006-2026 (11/3 of process). It set out the requirements of SPP1 (11/22 of process) and SPP3 (11/23 of process) about identifying land to meet the housing land requirement and SPP 2 about employment land; the requirements of NPPG 14 and 18; the settlement strategy (pages 27 to 31); the basis for employment land allocation in St Andrews (pages 57 to 63) and the justification for the housing allocations in the structure plan (pages 82 to 104). The Potential of Options for Strategic Growth set out a summary of the assessment of the strategic land allocations and the alternatives that were considered. Pages 39 and 40 set out a summary of the evaluation of the St Andrews assessment. (The second phase appraisal criteria are set out on pages 24 and 25 and the selection process is set out at pages 17 and 18.) After the submission of the Finalised Structure Plan to the Scottish Ministers the Council carried out a Housing Land Requirement Re-Appraisal (11/10 of process). This reduced the allocation of housing units for St Andrews from 1200 to 1000. In addition the council carried out a Sustainability Appraisal and Strategic Environmental Assessment on the Finalised Structure Plan (11/11 of process).

[47] The Scottish Ministers proposed modifications to the Finalised Structure Plan (11/1 of process). For present purposes the important changes were:

(i)                 a reassessment of the housing land requirement having regard to the most up to date figures; and

(ii)               the requirement for St Andrews strategic allocation being changed from 1200 to "a minimum of 1000" houses and the allocation of up to 90 additional housing units from proposals PH1 and PH3.

The modifications by the Scottish Ministers did not change the strategy of the structure plan or increase the size of the allocations for St Andrews and were incorporated in the Approved Plan.

[48] The structure plan (11/27 of process) sets out:

(i)                 the development strategy to grow (sic) the Fife economy and population (1.5-1.7 and 1.10-1.16);

(ii)               the settlement strategy of growth centred on St Andrews (2.1, 2.2 and 2.4);

(iii)              the housing requirement for the St Andrews and North East Fife area (3.37-357); and

(iv)             the protection of the landscape setting of St Andrews (4.2-4.7).

[49] The Re-Appraisal of the Housing Land Requirement background report (11/9 of process) set out the balancing exercise that the Council undertook and the issues raised (pages 34 and 35 and the Area Committee comments in Appendix 3, pages 2-3). The Potential of Options for Strategic Growth (11/4 of process) set out the assessments carried out and the selection process. The report of survey (11/3 of process) set out the basis for the Strategic Development Area and the considerations which were taken into account (sections 2 and 3).

[50] It could be seen from the above review and analysis of the structure plan process that there was a detailed justification for the strategic release at St Andrews in the structure plan and supporting documentation, the appropriate place for such a justification in terms of the applicable statutory provisions. There was therefore no requirement upon the Scottish Ministers to set out a detailed justification for their reasons for not making modifications in relation to St Andrews. The detailed justification was set out in the structure plan and its supporting documentation. Throughout the process the applicant had been engaged in making representations and objections and receiving responses from the Council and the Scottish Ministers (7/3, 7/4, 7/6, 7/7, 11/5, 11/6, 11/13, 11/16 and 11/21 of process). It was clear from the background that the applicant's concerns about the St Andrews allocation had been fully considered and responded to by the Council. The approval of the structure plan by the Scottish Ministers was their acceptance of the justification for the proposals contained in the structure plan and supporting documentation. The reasons given by the Scottish Ministers had to be read: (i) as a whole; (ii) with the reasoned justification set out in the structure plan and supporting documentation; and (iii) in the context of the background of the process which had gone before. In relation to (i) reference should be made to Schedule of Reasons for not Making Modifications 2, 3, 4, 5, 6, 12, 17, and 33; and in relation to (ii) and (iii) the detailed analysis of the structure plan process given above.

[51] The landscape character and capacity assessment of the strategic allocation for St Andrews was only one of the considerations which had to be taken into account in considering what level of allocation should be made and where in St Andrews. Critical to the allocation were the requirements for housing demand and supply and the settlement strategy. The applicant had not challenged these sections of the structure plan or the Scottish Ministers' justification for not making modifications to them. The sentence in Reason 33 relating to the Grant Report had also to be considered against the background of the study in that report, in particular, pages 2 and 3 - the scope of the study; page 21 - landscape setting; page 23 - visual assessment; pages 26-45 - detailed landscape assessment; page 46 - conclusions; and page 48 - green belt proposals. The study concluded that, in landscape terms, the west of St Andrews was the only area where any new development could take place, as graphically demonstrated from the green belt proposals map after page 48.

[52] In the circumstances the reasons given were proper, adequate and intelligible. They were not substantially wrong or inadequate.

[53] Moreover, the applicant had not shown that she had been substantially prejudiced by any inadequacy in the reasons given by the Scottish Ministers. She was well aware of the reason for the allocation. She averred that the order required to be quashed to the extent that it affects any of her property, but not what property was affected and how. She would be able to participate and set out her concerns in the local plan process. The visual impact of the strategic allocations would be fully considered during that process (11/18, 11/19 and 11/22 (paras 32 to 40) of process, dealing with the roles of the structure and local plans).

[54] The immediate consequence of quashing part of the structure plan would be that the St Andrews area would not have an up to date structure plan. The Council was currently progressing the local plan, which had to conform to the structure plan. The finalised local plan had been drafted to conform to the structure plan. The Council would not be able to progress the local plan if the St Andrews element of the structure plan were to be quashed. The result of quashing part of the structure plan would be that progress on the local plan could not be made until the strategic basis for the allocations in St Andrews was known. The St Andrews and East Fife area would therefore not have an up to date development plan for some time and consequently there would not be a plan-led approach to development in St Andrews for possibly some years. That could not be in the interest of any resident of St Andrews, particularly having regard to the housing land supply figures. Developers would put in applications for housing all around St Andrews and there would be unplanned development. There would be very considerable cost implications for the Council and a consequential effect on the two main other local plans for Fife.

Response for the applicant
[55] It was submitted in response for the applicant that at the heart of her case was the proposition that in the balancing process when deciding what to allocate to St Andrews and where there had to be taken into account landscape capacity and the likely harm of the scale of the proposals for St Andrews. That is what the structure plan said at para 4.5. The modification to the first sentence took away the question of the extent of growth and left only the question of how that growth was to be managed. Substantial prejudice to the applicant arose because no one had grappled with the issue contained in the change to para 4.5. There was nothing in the text or the footnotes to indicate that the issue had been considered. The amount of land which the Grant Report identified as suitable for development was a matter of fact. How much land was to be allocated to St Andrews West was essentially a matter of fact. The opinions expressed in the Grant Report were also matters of fact. Reason 33 did not express any opinion or exercise any discretion: all it did was refer to the Grant Report. There was a real concern that there had been a misunderstanding of that report.

[56] The Report of Survey dated 27 April 2006 (11/3 of process) stated at p 30, para 2.17 that in St Andrews 1,200 houses to 2026 would be required to be located to the south of the town whilst maximising the use of brownfield sites where possible. There was no reference to a balancing act or to a St Andrews West Strategic Development Area. In her objection the applicant had argued that no major expansion should take place and that there had been no recognition of the major harm which such expansion would do to St Andrews. The "Apocalypse argument" for the Scottish Ministers about what would happen if there were no finalised structure plan was answered in the Sustainability Appraisal and Strategic Environmental Assessment Background Paper of April 2006 (11/11 of process) at pages 25-26, in particular at para 3.5.2, which states:

"In the absence of the Finalised Structure Plan, development would still occur but would be less well attuned to environmental and other strategic objectives and priorities."

[57] There was no basis for saying that there were no existing development controls in place. The Grant Report provided justification for there being no large-scale development. The balancing exercise had not been grappled with at page 35, para 19.3 of the Re-Appraisal of the Housing Land Requirement dated 11 December 2007 (11/9 of process). There was no recognition there that the extent of the development proposed would cause harm. There was no suggestion that the Grant Report had been rejected. It was the extent of the development which was at the heart of the applicant's objection. When the point of the capacity of the area to the west of St Andrews is raised, reference to the Grant Report does not meet the objection. The substance of the objection had been raised with the Scottish Ministers in the hope that they would grapple with the point because the Council had not done so. Para xii of the Non-Technical Summary in the Scottish Ministers' Environmental Report of December 2008 stated:

"As stated earlier, the Environmental Report should be regarded as a tool for public consultation. Consultees are therefore invited to submit their views on the modifications in light of the environmental information provided in this report. It is not intended to reopen a debate on the wider content of the plan at this stage, and so consultees are asked to limit their views to specific issues arising from the modifications proposed for the plan."

Footnote 22 on page 16 referred to a landscape assessment which was not relevant to development to the west of St Andrews. The Scottish Ministers accepted that the Grant Report was the most up to date assessment. On the last page of that document it was stated that previous landscape capacity studies had identified major constraints around St Andrews arising from its special landscape qualities and mitigation was dealt with in five bullet points. Bullet point 2 stated:

"The design of new housing, siting and scale should take into account landscape capacity. In particular, areas around St Andrews that were noted for their distinctive qualities and role in providing the unique setting of the town should be avoided as far as possible."

The emphasis was on the avoidance of harm, not the acceptance of avoidable harm if the development went ahead. It was made clear that there was a real issue whether large-scale housing could be incorporated without environmental damage but did not answer it. In so far as there was any indication of a balancing process having been carried out, the suggestion was that development should go somewhere other than St Andrews.

[58] The submission for the Scottish Ministers had invited the court to apply a strict, literal approach to the Scottish Ministers' summary of the applicant's objection, in stark contrast to their suggestion that matters have to be read in context. The applicant's objection (7/6 of process) did not state that there was no room for development: she was clearly directing her fire at the scale of the proposed development. The summary provided by the Scottish Ministers at 33 was reasonable, not to be taken literally and had not been challenged by the applicant, but there was a clear error of law in the response as it did not provide a sensible answer to any approach to the objection. The applicant was not calling for a wholescale justification of the structure plan policies: a short, simple sentence would have sufficed.

[59] In relation to points about remedy and discretion, in the Gillenden case the planning authority had opted for the view of the appeal inspector, who had given proper reasons. In contrast, in the present case the Grant Report did the opposite of supporting the response. The response provided in the correspondence was essentially the same response as that provided in Reason 33 and underlined the inadequacy of the answer. The submission for the Council had raised the point whether the quashing of the relevant parts of the finalised structure plan would mean that they would have to revert to the start of the process. The decisions which had been referred to were first instance English decisions. All that the applicant was asking was that someone faced up to reality and reached a decision the submission for the Scottish Ministers had only raised a doubt about what would happen if there were to be a quashing. It was clear that the applicant sought to have quashed the Strategic Allocation to St Andrew's West and the policies that deal with that. That matter was perfectly capable of reasonable resolution in due course and there would be no uncertainty. The reference in the pleadings to para 3.52 was a mistake and paras 1.14 and 1.15 were not objected to as it might still be possible for the 20 ha identified in the grant Report to be a key driver of the economy.

Discussion and conclusion
[60] In determining this application I have no concern with the merits of the planning issue whether houses should be built in St Andrews West and, if so, how many. That is a planning policy decision which the legislature has conferred upon the Council as planning authority and the Scottish Ministers. It is quite clear that the applicant, as a concerned resident of St Andrews, is strongly opposed to the housing development envisaged in St Andrews West in the structure plan, but it is not for me to say whether in planning terms she is right or wrong in her opposition. My function is limited to determining whether the Scottish Ministers have acted unlawfully in what they have said in Reason 33. All questions of planning policy are within the exclusive competence of the planning authority and the Scottish Ministers, provided that in reaching a decision they must act lawfully.

[61] It was accepted (under reference to the authorities referred to above) that Reason 33 had, in order to be lawful, to be proper, adequate and intelligible. In my opinion the scrutiny of Reason 33 must be an exercise which is carried out in the context and against the background of the whole statutory process for the making of a structure plan, not one which is carried out by viewing it in isolation. Reason 33 was only one of many reasons given by the Scottish Ministers for not making modifications to the structure plan, and it must be viewed in the context of all that had gone before in the course of the statutory procedure which was followed. It would be quite unrealistic to view it in isolation.

[62] Having considered Reason 33 in context and against the background of the statutory procedure which preceded it, as well as the competing submissions, I am not satisfied that it can be said that the Scottish Ministers have failed to give an adequate, proper and intelligible reason for not modifying the Finalised Structure Plan. What the applicant was seeking was in effect a reversal of the previously declared policy of the Council to have a housing development in St Andrews West. That issue had in the earlier stages of the process been the subject of appropriate consultation and dispute, but the policy decision had already been taken well before the applicant proposed a modification to the structure plan. Indeed, it is questionable whether what she proposed could fairly be described as amounting only to a modification, as opposed to a major change of policy. In my judgment the submission for the Council that the justification for the policies in the structure plan has to be set out in the structure plan itself and its supporting documents is well-founded. Regulation 6 of the 1983 Regulations provides that the structure plan must include a reasoned justification of the policies and general proposals formulated in it. I do not think that, in responding to a proposed modification, the Scottish Ministers require to provide a detailed justification of a policy for which the Council had provided (as they were legally required to do) a reasoned justification in the structure plan. To seek in Reason 33 a comprehensive justification of the policy to have a housing development in St Andrews West is to look in the wrong place. I am therefore of the opinion that Reason 33 passes the test set out in Re Poyser and Mills' Arbitration and Wordie Property Co Ltd.

[63] Moreover, had I been of the view that Reason 33 was deficient, I would not have been satisfied that the interests of the applicant have been substantially prejudiced, for the reasons given in the submissions for the Scottish Ministers and the Council. Her concerns had been previously addressed and any objection which she has to the specific location of development in St Andrews West can be made through the local plan process. It is averred by the applicant that the order requires to be quashed to the extent that it affects any of her property, but it is not averred, and I was not told, what property of the applicant was affected, or in what manner. In my view the fact that the applicant is, in her capacity as a resident of St Andrews, displeased with the reason given does not mean that she is prejudiced or that her property has been affected.

[64] Further, had I been in favour of the applicant I would have refused to exercise my discretion to quash the structure plan or any part of it in view of the disruption to the development plan which would have ensued. Such a course would result in delaying progress on the local plan due to the absence of a strategic basis for allocations in St Andrews. There would be no up to date development plan for St Andrews for some time, which would be a disproportionate consequence of any prejudice suffered by the applicant.

Decision
[65] For the reasons set out above I shall refuse the application.