Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 75
XA24/10	OPINION OF LORD MALCOLM in the Appeal to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997 by HALLAM LAND MANAGEMENT LIMITED Appellants; against the adoption by the City of Edinburgh Council of the Edinburgh City Local Plan on 28 January 2010 Respondents: ____________

Appellants: Martin Q.C., Burnet, Advocate; DLA Piper LLP

Respondents: Armstrong Q.C., Sutherland, Advocate; City of Edinburgh Council

Interested Party: Smith Q.C.; Gillespie Macandrew

6 May 2011

[1] On 28 January 2010 the City of Edinburgh Council ("the respondents") adopted the Edinburgh City Local Plan. Previously two reporters had been appointed to consider objections to the finalised local plan (approved in March 2007). Their report was delivered to the respondents on 30 June 2009. Amongst other things, the reporters dealt with objections to the plan's strategic housing allocations. This appeal relates to their consideration of how the structure plan's requirement of 400 new housing units for the Edinburgh urban fringe should be met through local plan allocations. In particular the reporters considered the relative merits of the respondents' proposed strategic allocations when compared to other "candidate" sites. The council sites are known as Newcraighall North and Newcraighall East (HSG13 and 14 in the finalised plan), and had been allocated respectively 200 and 220 housing units. (It can be noted that in the adopted plan the sites were designed as HSG14 and 15.)

[2] The reporters carried out a comparative assessment of urban fringe sites, which included site by site assessments. They concluded that the Newcraighall North site, which is partly owned by the council's development company, should have an assumed site capacity of 140 units (reduced from 200): the Newcraighall East site, proposed by the council and owned by the Dalrymple Trust ("the interested party"), 90 units (reduced from 220): the Burdiehouse site, proposed and owned by Hallam Land Management Limited ("the appellants), 100 units: and a site at Dreghorn, 75 units. In summary, the reporters advised reduction of the housing units allocated to the respondents' proposed sites, and the introduction of housing on two other sites to make up the structure plan's requirement for 400 or thereby additional housing units in the urban fringe.

[3] The reporters set out their consideration of the evidence and submissions, and their conclusions on the relevant issues, all at length and in detail. However the respondents rejected the reporters' recommendations. In the adopted local plan the council adhered to the terms of the finalised plan. The main submission made on behalf of the appellants was that the reasoning given for rejection of the reporters' advice is wholly inadequate, and so this part of the adopted plan should be quashed in terms of section 238(2)(b) of the Town and Country Planning (Scotland) Act 1997.

[4] While a number of cases were cited, there was general agreement that the correct approach is set out in the judgment of Mr Justice Laws (as he then was) in Oxford Diocesan Board of Finance v West Oxfordshire District Council and Another [1998] PLCR 370. So far as relevant for present purposes, that approach can be summarised as follows. Even in cases involving planning judgement, the planning authority must give adequate and intelligible reasons for its decision. It must be apparent that the authority fully and properly considered the substantial points raised by the reporters. It must deal with the matters relevant to the merits of the decision and give sufficient reasons for departing from the reporters' conclusions. The obligation to deal with the matter thoroughly, conscientiously, and fairly is enhanced when (as here) the counsel is both a promoter of a site and the ultimate decision-maker. It would not be sufficient for a planning authority merely to recite a series of assertions. While what is needed will vary from case to case and depend on the context and precise circumstances, fair and specific consideration of the report is required.

[5] Counsel for the respondents submitted that the issues in the present case were matters of pure planning judgement, but even if that is so, in my opinion it does not elide the duty fairly to address and deal with the main points raised by the reporters. Against this background the appellants' counsel submitted that the reasons given are wholly inadequate and provide no sufficient basis for rejection of the reporters' recommendations; whereas counsel for the respondents and the interested party submitted that this complaint has no merit. There was no dispute that the grounds of challenge, if upheld, would justify the exercise of the court's power to quash under and in terms of section 238 of the 1997 Act.

The Newcraighall North site
[6] The reporters' consideration of the Newcraighall North site begins at page 1-27 of their report. They summarise the objectors' cases and the respondents' responses. They then set out their conclusions, which can be summarised as follows. There is a concern as to earlier underground workings. Some site investigation work has been carried out, but insufficient to provide reassurance, not least as to the costs of any necessary remediation work. Parts of the site may not be developable at all. It would be unsafe to assume that all the site can be developed at the suggested density of 30 houses per hectare. There is concern regarding former landfill activity which could raise contamination issues given the limited available information. It is noted that the council concedes a reduced developable area of 6.6 hectares because of pylons on the land. Nonetheless the reporters conclude that in broad terms most, if not all of the site is likely to become effective over the period of the plan. They are satisfied that the proposed development would minimise impact on green belt objectives, and that the elevated former rail embankment forming the north eastern boundary is a robust boundary for development on the site. They are persuaded that the development will strengthen the regeneration of Newcraighall.

[7] It is noted that there are differences as to the size of the site as a whole. The pylon issue reduces it to 6.6 hectares, and the local nature conservation designation on the southern boundary further reduces the net area for development. The issues of the former mineworkings and possible residual contamination are likely to further reduce the developable area, but this cannot be estimated with any precision. It is necessary to take into account the need for remediation and the issue of the economic viability of the site.

[8] Notwithstanding the above considerations the reporters are persuaded that most, if not all of the site outwith the pylon set off area is likely to be developable economically, including allowance for some remediation where necessary. However they conclude "that it would be prudent to assume....a reduced site capacity of say 140 houses - which equates to around 25 dwellings per hectare on approximately 5.6 hectares". The actual number of units developed could be marginally different once detailed site and market appraisals have been undertaken in the course of a full planning application and taking full account of the constraints of the site.

[9] The reporters are therefore of the view that the site is appropriate for allocation of 25 houses per hectare and with a reduced net developable area to take account of the pylons and the nature conservation designation. The assumed capacity of 140 units makes "some allowance" for the uncertainties of under-mining and landfill contamination which is "likely to further reduce the capacity for housing development". The reporters conclude that the various benefits of the allocation in economic, social and recreational terms will outweigh the costs, in particular the small loss of green belt land. The reduced allocation will have the benefit of allowing housing to be developed on sites other than those at Newcraighall.

[10] The respondents' planning officials advised acceptance of the reporters' recommendations with regard to this site. However on 1^st October 2009 the relevant planning committee rejected this advice and decided not to accept the reporters' recommendations. The reasons given were as follows:

"A small part of the site is understood to be affected by past mineworkings and will require remedial treatment. It is expected that the Edinburgh housing market will be strong enough to fund the remedial work required. The site can therefore be classed as effective. In addition, the reporters' assumptions on likely density (of 25 houses per hectare) are low and unrepresentative of recent housing development in Edinburgh. Family housing (housing with private gardens attached) has been achieved at densities of 30 houses per hectare and above in Edinburgh. The site should therefore accommodate 200 units approximately on the net developable area of the site".

[11] The key element in the reasoning is that only a small part of the site is affected by past mineworkings. Because of this the remedial treatment will be of a limited extent and cost, and such that the market can bear. Strictly the reasons said that a small part of the site is "understood" to be so affected. If one seeks the basis of this understanding, the reasons are silent, no doubt because of the factors explained in the report. The necessary investigatory work has not been done. In short, in response to the concerns of the reporters, the council has simply said that it thinks that there is no problem.

[12] In essence the reporters suggested that, given the uncertainties over the whole site, it would be prudent to be cautious and to make some provision for housing elsewhere. In its decision the council says that the uncertainties are limited to a small area. However I can identify no basis for that assertion, thus I conclude that the reasoning given by the respondents in their statement of decisions in response to this part of the report is inadequate. I do understand that, in the absence of an argued recommendation from their officials to reject the reporters' recommendations, the committee members were required to draft their own reasoning without expert assistance, but that cannot alter the consequences of a failure to meet the required standards.

[13] Counsel for the owners of the Newcraighall East site submitted that, given the inter-relation between the two sites, should the decision on one fall, then the decision on the other could not stand. Nonetheless it is appropriate that I should consider the merits of the argument in connection with the other site.

The Newcraighall East site
[14] This site is adjacent to the other Newcraighall site. It is owned by the interested party and, as with the other site, is promoted by the respondents. The site is green belt land and the reporters' main concern relates to green belt objectives. They explain why, notwithstanding various developments and proposed developments in the area, they are of the view that this land should still play a valuable role in the green belt around south east Edinburgh. Housing would introduce severance and discontinuity for the first time in an area which is vulnerable to further severance. Even if reduced in extent, this part of the green belt should be safeguarded. The reporters offer the view that the council's reasons in support of their proposal do not address all relevant issues, nor demonstrate a comprehensive evaluation of the possible site options against national and strategic planning policy. Structure plan policy requires the council to choose sites which minimise impact on green belt objectives and which are in locations where new defensible green belt boundaries can be established. All of this requires a comparative assessment. In the absence of such an assessment from the council, the reporters carried out that exercise. They conclude that, unless safeguarded at its southern boundary, the site does not meet these structure plan requirements.

[15] Given other developments in the area, the reporters are of the view that if the whole of the site were to be developed for housing, it would form "the last piece in the jigsaw" leading to the loss of this section of the green belt between Edinburgh and Musselburgh, and to the coalescence of those settlements. For these reasons only the northern section should be allocated for housing. This would allow for a new defensible green belt boundary at this location.

[16] On the reduced site, 90 houses could be built at a density of 25 dwellings per hectare. The key benefit would be to allow effective green belt to be retained to the east of Newcraighall public park, giving additional publicly accessible open space. The reporters explain that this approach would retain a green urban edge to define and contain the built up areas of Edinburgh and Musselburgh. It would be wrong to "needlessly sacrifice" the separate identities of Edinburgh and Musselburgh. As a result of their comparative assessment the reporters identify other suitable sites to the west where a proportion of the 400 houses can be allocated without these harmful consequences. The reduced allocation on Newcraighall East would still afford significant local regeneration benefits.

[17] Again the council's planning officer advised the relevant planning committee to accept the reporters' recommendations in respect of this site. However the committee adhered to the terms of the finalised plan. Their reasons were as follows. (1) The "view" is that the land does not have the potential to be an effective part of the green belt.

(2) Its development will not have a detrimental impact on the landscape setting of the city nor upon its identity from any significant public viewpoint.

(3) It represents the least harmful of the options before the council.

(4) Its loss to the green belt is outweighed by the benefits to be derived from a larger development on the site.

(5) The other developments proposed in the area by East Lothian Council throw into doubt the long term defensibility of the site as part of the green belt.

(6) The amount of open space is disproportionate to the amount of housing proposed by the reporters and thus unlikely to be realised.

(7) The allocation is consistent with other structure plan policies, and will afford the possibility of a range of house types.

(8) Notwithstanding adverse ground conditions because of mining operations, the site is effective in planning terms.

(9) Concerns as to coalescence can be addressed at the master plan stage, and by ensuring that new housing takes place within a landscape framework which compliments that proposed for the planned business park.

[18] At first sight these reasons seem more impressive than those given in respect of Newcraighall North. However closer consideration reveals that, on the key issues which caused the reporters to recommend retention of the green belt at this location, they are lacking in reasoning and do not reveal the basis for the statements made. In short, in my view, especially when set against the careful and detailed treatment of the issue by the reporters, the reasons are no more than a series of glib and unsubstantiated assertions.

[19] As to the first reason, there is no attempt to explain why the land does not have the potential to be an effective part of the green belt, nor in what way the reporters fell into error in this regard. On the face of it the reporters' careful analysis and reasoning is compelling, and any interested party would be left in ignorance as to why this "view" was taken by the committee. There is no explanation of the basis or reasons for factors 2, 3 and 5. As to number 4, the suggested benefits are not identified, nor is it explained why they outweigh the harms identified by the reporters, not least the damage to structure plan policy. The sixth reason is an unexplained assertion. The final reason is superficial, and in the circumstances very unlikely to be understood by an aggrieved party without some elaboration as to how or why the reporters' fundamental concerns can be addressed at the master planning stage.

[20] It is necessary to guard against an overly intrusive approach by the court on a matter which the relevant legislation has entrusted to the planning authority. However, bearing in mind the dangers highlighted by Laws J when the planning authority is both a promoter of sites and judge on the ultimate outcome, it is important that when an authority is rejecting the outcome of the inquiry process, it is clear to an interested person that the authority has engaged with the issues raised by the reporters and explained the basis of the contrary decisions. Having applied the approach laid down in the Oxford Diocesan Board of Finance case, I am not persuaded that an informed reader would be so satisfied. I consider that the reasons given are inadequate. I shall uphold the appellants' submissions in respect of both sites. In these circumstances the appeal succeeds.

The consequences of the quashing of this part of the plan
[21] The consequences of a successful appeal was a matter of debate, with a fundamental difference of view emerging. Counsel for the appellants and for the respondents submitted that the effect of the relevant legislation is that the whole process in respect of this part of the adopted local plan would require to be repeated afresh and from the beginning. On behalf of the interested third party Mr Smith, Q.C. submitted that if the appeal were to succeed, the court should simply quash the relevant part of the adopted plan.

[22] There is authority from south of the border which supports the first approach, however I have decided not to follow those decisions. The relevant statutory provision, namely section 238(2)(b) of the 1997 Act, allows the court to quash the local plan in whole or in part. On the face of it the terms of section 238, including section 238(5)(a), suggest that the "local plan" is a document, and in particular the document one would be given having asked for a copy of the adopted local plan. This initial impression is reinforced by the terms of sections 11 to 19 of the Act. As section 11 makes clear, the local plan for an area is the result of the preparatory steps taken by the planning authority in this regard. It consists of the written statement setting out the authority's proposals for the development and use of land, along with a map and such diagrams and illustrations as the authority think appropriate. A local plan may be altered from time to time, and that would involve a change in that document. If a new plan is prepared, it is that document which is superseded. When a planning authority adopts a plan under section 17 of the Act it is holding out a particular set of written proposals and map, etc as the local plan for the area. If one is asking whether a local plan conforms to the structure plan, one will compare the two documents. As provided for in sections 18 and 19, if a local plan is called in, the Scottish Ministers will be sent a copy of the plan, which will be considered and then approved, modified or rejected. In short, the local plan is the document kept by the local authority and available for public inspection, not the whole process from start to finish.

[23] Section 239 allows the court to quash other orders, decisions and directions made under the Act, for example a grant of planning permission. In such cases there is no question of the court doing other than set aside the particular order or decision concerned, thereby leaving it to the planning authority to decide on the appropriate administrative steps once the matter is again before it for decision. For example, if a planning permission granted after an inquiry is quashed, there may be a remit for the reopening of the inquiry, or part of it. On the other hand it is common for a planning authority simply to reach a new decision taking into account the reasons for the court's decision. If a planning permission is quashed because of a failure to take account of a material consideration or because of an absence of sufficient reasoning, the authority may see no need to do more than avoid the errors highlighted by the court, perhaps reaching the same decision as before but free from the procedural or legal reasons which vitiated the earlier grant. There may be cases where ordinary concepts of fairness and proper administration require the planning authority to order some further procedure before reaching a new decision; however this is a matter for the discretion and decision of the planning authority, to be reached having regard to all the relevant circumstances. If all this is well understood in respect of decisions to quash under section 239, the question is, why should matters be different in respect of section 238?

[24] The submission was that as a matter of construction of section 238 the court can only quash the entire process, at least in respect of the part under challenge, meaning that in respect of the housing allocations in the Edinburgh urban fringe the whole statutory procedure would have to start again from scratch. On the face of it this is a surprising proposition. However it was based upon the decision of Hidden J in South Northamptonshire District Council v Charles Church Developments Limited and Another [2000] PLCR 46, which was followed in two subsequent English cases. It is therefore necessary to consider that decision.

[25] Hidden J's decision was complicated by the fact that he was asked to clarify an earlier decision of a different judge to quash part of a plan. This involved interpretation of parts of the earlier judge's decision, some of which Hidden J thought required reconsideration of earlier steps in the procedure, though of course the first judge's mind was not directed to the specific issue before Hidden J. To my mind the first judge's remarks are equally consistent with the alternative approach which I have outlined. Hidden J accepted a submission that with regard to the equivalent English statutory provisions the reference to "the plan" included the draft plan, and thus quashing "the plan" required the whole process to begin again. With respect, I do not find that reasoning compelling, having regard to the other factors in favour of the traditional approach.

[26] Hidden J's decision is buttressed by reference to a submission that starting again is the "only common point applicable to all cases of quashing". Reference is made to cases where logic required starting again at some point along the procedural history of the case, and the assumption is made that this means that the court must require recommencement at the beginning. This ignores the alternative possibility that the court can quash the final step and leave what follows to the discretion of the authority, to be exercised in accordance with the circumstances of the case. In particular the authority can consider any representations from the parties and then decide whether it is necessary to start again from the beginning or from some later stage in procedure, including simply a fresh reconsideration of the inquiry report. In other words the authority can rewind to the logical position. Suppose the problem was an arithmetical or clerical error in the final decision, or some other purely technical mistake at a late stage which could easily be rectified? It would make no sense to require the whole procedure to start again from scratch. For myself I would require clear wording in the Act before I was driven to the conclusion that this was Parliament's intention.

[27] Mr Martin Q.C. presented a submission that, under reference to the terms of section 237(1) of the Act, a distinction can be drawn between the references to questioning the validity of an order or a decision on the one hand, and on the other hand quashing a local plan. It was suggested that the former are events, whereas a plan is a process. I do not find this argument persuasive. In my view the plan is the outcome of a process, not the process itself. I base this conclusion on a straightforward construction of the language used in the Act.

[28] In the present case there is no objection to anything that happened prior to 1 October 2009 when the relevant committee reached its decision, thus it would be odd if the court was required to set aside all of the earlier procedure in respect of housing allocations and require a re-run in front of the reporters, with all the delay and additional expense which that would involve to a large number of parties. In any event, in what sense can the court quash those earlier parts of the procedure? They are merely preparatory steps leading up to the plan itself. The court can quash a decision, or an order, or a plan, or part of a plan, but not an inquiry, nor a process of consultation and objection. The challenge here was directed only to the respondents' consideration of the reporters' recommendations and to the reasoning in support of the terms of the adopted plan, thus it would make sense for the court to set aside only the relevant part of the plan leaving it to the authority to decide how the matter can be resolved thereafter in procedural and administrative terms. I can see nothing in the Act which requires or even suggests that the court can only order the whole process to start again. On the contrary, on a proper construction of the relevant statutory provisions, my view is that the court can do no more than quash the plan, or the relevant part of it, in the sense explained above. That is what I shall do.

Subsidiary submissions
[29] The appellants presented a subsidiary argument based upon an alleged failure to take account of a material consideration, namely a June 2009 green belt landscape capacity study carried out in connection with preparation of the first strategic development plan. At a late stage this document was forwarded by the appellants to the respondents' planning officer. He rejected a request that it be taken into account on the basis that it had no relevance to the decision upon the local plan. In the result this issue does not require to be decided, but if it had I would have found that, in the whole context of the report and the relevant issues before the committee, it is most unlikely that this document would have made any difference to the outcome. In any event it would seem disproportionate to quash the decision on the basis of an unapproved and limited study which commented on one issue which had been debated before and considered by the reporters in the course of the inquiry; and when the appellants decided not to attend the relevant committee meeting when the point could have been pressed. A contrast can be drawn with cases where a material issue is wholly ignored, as opposed to setting aside a document commenting upon an issue which was given consideration. Nonetheless, when this issue comes before the respondents for a fresh decision, in the event that they decide to ignore this study, it would be prudent for the committee itself to give reasons for that decision.

[30] On behalf of the respondents it was submitted that if the relevant part of the plan is quashed, it would leave a gap in respect of housing allocation in the urban fringe and that the Newcraighall land would be in limbo ("white space"). Thus, even if the decision of the committee was flawed, the court should exercise its discretion not to quash this part of the plan. I am not persuaded by this argument, which would allow the current development control applications relating to housing in the urban fringe to proceed upon the basis of an unlawful committee decision, all to the benefit of the promoters of the Newcraighall sites and the disadvantage of the other locations. Further, while no doubt it will take some time before a fresh decision is reached, and even if there is a lengthy delay, this need not halt the development control process in respect of planning applications for housing development in the urban fringe. In short, I am not persuaded that any detrimental consequences of the quashing of the plan would justify an exercise of the court's discretion to refuse to declare this part of the plan unlawful.

Decision
[31] In the event that the appeal was successful the appellants sought an order quashing the Edinburgh City Local Plan in accordance with section 238(2)(b) of the Town and Country Planning (Scotland) Act 1997 in so far as it includes the allocation of 200 units of housing within Newcraighall North (site HSG14 in the local plan as adopted) and the allocation of 220 units of housing within Newcraighall East (site HSG15 in the local plan as adopted). I shall pronounce an order in those terms, reserving meantime the question of expenses.