EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Reed Lord Mackay of Drumadoon Lady Cosgrove	[2011] CSIH 05 XA21/11 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in the appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 by GREENLAND DEVELOPMENTS (UK) LTD Appellant; against SCOTTISH MINISTERS Respondents: _______

Appellant O'Carroll; Archibald Campbell & Harley

Respondents Crawford Q.C. et Barne; Scottish Government Legal Directorate

20^th January 2012

[1] In December 2009 the appellant lodged an application for planning permission with the City of Edinburgh Council ("the Council"). The application related to a proposed residential development consisting of a five storey building comprising 12 flats on land to the south of Veitch's Square, Edinburgh. The application site is surrounded by traditional tenements on the west and north sides and modern residential flatted blocks to the east and south. The properties to the west of the site at street level are commercial units. They form part of a primary retail frontage in the Stockbridge Shopping Centre.

[2] Before lodging the application, the appellants entered into detailed discussions with planning officers employed by the Council. The application lodged with the Council was accompanied by a Planning and Design Statement prepared by Format Fbd (Scotland) Ltd and dated December 2009. That Statement concluded that "the proposal accords in general and in the spirit of the Edinburgh City Local Plan, the Non-Statutory Guidelines and the Edinburgh Standards." In a report to the Council's Planning Committee in respect of the application, the planning officer concluded "the proposals comply with the development plan and any infringement of non-statutory guidance is minor". The application was recommended for approval, subject to conditions relating to materials, cycle parking, land contamination, and archaeology and the conclusion of a section 75 agreement relating to affordable housing provision and transport requirements.

[3] The Council refused planning permission on 9 September 2010. The reasons for refusal were based on the proposed development being contrary to the provisions of the Edinburgh City Local Plan in five respects:-

"(a) The proposed development is contrary to ... Policy Des 1 (Design Quality and Context) as it would be damaging to the character and appearance of the area around it.

(b) The proposed development is contrary to ... Policy Des 3 (Development Design) as the development fails to have a positive impact on its setting due to inappropriate massing, scale and design and will have a negative impact on the amenity of the existing residents.

(c) The proposed development is contrary to ... Policy Env 6 (Conservation Areas - Development) as the development fails to preserve and enhance the special character of the New Town Conservation Area due to overdevelopment, inappropriate massing, height and design.

(d) The proposed development is contrary to ... Policy Hou 4 (Density) as it would result in unacceptable damage to the local character, environmental quality and residential amenity due to its scale and massing.

(e) The proposed development is contrary to ... Policy Tra 4 (Private Car Parking) and the Edinburgh Planning Guidance : Parking Standards as the level of parking proposed is insufficient to serve the development, which is likely to increase pressure on existing parking to the detriment of local amenities."

[4] On 7 December 2010, the appellant appealed to the respondents in terms of section 4 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). A detailed appeal statement was lodged with the Notice of Appeal, together with all relevant documentation. Those documents were intimated to the Council on 8 December 2010. In terms of regulation 8(4)(d) of The Town & Country Planning (Appeals) (Scotland) Regulations 2008 ("the 2008 Regulations"), the Reporter appointed to determine the appeal elected to do so by means of an unaccompanied site inspection and by considering the appellant's Notice of Appeal, with supporting documentation, the Council's response thereto, and the appellant's further comments in response to the Council's observations. The Reporter subsequently refused the appeal, by decision letter dated 9 February 2011. The appellant now appeals against that decision of the Reporter. In view of the brevity of the decision letter, it is appropriate to quote it in full (with the exception of one paragraph relating to a claim for expenses, which is not relevant to this appeal):-

"Decision
I dismiss this appeal and refuse planning permission.

.....

Reasoning
1. The determining issues in this appeal are whether the proposed development would:

·       have a detrimental impact on the amenity of existing residents; and

·       preserve or enhance the character or appearance of the conservation area

2. The proposed development comprises 12 flats: 2 on the ground floor; 3 on each of the first, second and third floors; and 1 on the fourth floor, which would be set back from the front (south) and side (east) elevations of the building. The building would abut the north elevation of the existing 4 storey block of flats at 3-10 Haugh Place and its front elevation would be set 1 metre back from the east elevation of that building. The majority of the proposed building would have a flat roof on top of the fourth storey, which would be used as a roof top garden for flats in the block and a small private roof top garden for the single flat, which comprises the fifth storey of the building. The fifth storey flat would have a shallow monopitch roof, the highest part of which would be slightly higher than the ridgeline of the block at 3-10 Haugh Street. The proposed flats would appear to be 4 storeys high at the front and 5 storeys to the rear.

3. The front (east) elevation of the proposed flats would be between 14 and 22 metres away from the front elevation of the Hanover Housing Association sheltered flats to the east. The Hanover flats are 3, 4 and 5 storeys high, but situated on lower ground adjacent to the Water of Leith. The rear (west) elevation of the proposed flats would be between 13.8 and 16.1 metres from the rear elevation of the traditional tenement flats at 39-45 Deanhaugh Street. The tenement flats are also 4 storeys high, but are much higher than the proposed block, as they have greater floor to ceiling heights and because they are on higher ground further from the Water of Leith.

4. The 4 storey high tenement block at 51 Deanhaugh Street projects north eastwards towards the appeal site. Consequently, the south east corner of the east elevation of this tenement block, where there are windows to each of the flats on the first, second and third floors, would be 3.5 metres away from the corner of the rear elevation of the proposed block. The north elevation of the proposed block would be between 10.5 and 11 metres away from the 2 storey offices of 1 St Bernard's Row to the north and 10.5 metres away from the side elevation of the 3 storey modern townhouse adjoining the offices at 1 Veitch's Square.

5. The undated historical plan submitted by the appellant shows large industrial buildings on and adjacent to the appeal site and on the site occupied by the Hanover development to the north east. Although it is the case that the appeal site was previously developed, the context is now completely different.

6. The appellant endorses the council planning officers' assessment that the proposed block would complete the square by infilling a gap. However, it could be said that the construction of the Hanover flats alongside the Water of Leith has already formed a 'square' with the modern flats at 3-10 Haugh Street, the rear of the tenements of Deanhaugh Street, the offices at 1 St Bernard's Row and the modern town houses in Veitch's Square. Although the rear and not the front of the tenements form one of the sides of this 'square', these elevations are not unpleasant and the paraphernalia often associated with commercial properties on the ground floors are largely out of sight. In such a dense urban environment, the open area in the middle of the 'square' provides a breathing space for surrounding residents.

7. I have carefully considered the report 'Daylight, Sunlight and Overshadowing Analysis' produced by the appellant. I accept its conclusions that all surrounding residential properties would receive adequate levels of daylight and sunlight. However, I am concerned that the introduction of a block of the size and scale proposed into the middle of the 'square' at such close proximities to existing properties (as noted in paragraphs 3 and 4 above) would have a significantly overbearing impact on residents in these properties.

8. I am particularly concerned about the effect on residents in the first and second floor flats at 51 Deanhaugh Street and in the Hanover sheltered flats, especially as the 3 storey part of this block would be closest to the proposed block. Although I am less concerned about residents in the flats at 39-45 Deanhaugh Street and in the townhouse at 1 Veitch's Square, I do not doubt that these residents would also suffer some diminution in their amenity as a result of the proximity of the proposed development.

9. I conclude that the proposed development does not comply with local plan policy Des 1, as it is an inappropriate design in the context of its location; or with Des 3, as its scale is inappropriate in its setting and it would be harmful to the amenity of neighbours. Although, I consider the proposed density to be appropriate for the area, because the development would result in unacceptable damage to residential amenity, I conclude that it does not comply with policy Hou 4.

10. Turning to the second determining issue and the impact of the proposed development on the character or appearance of the conservation area, I agree with the assessment made by council planning officers that the appeal site lies within a pocket of modern development which is unrepresentative of the traditional New Town character. I also agree that the mass of the proposed building is complementary to most of those in its immediate surroundings. The detailed design and the proposed materials, although modern, would not have a detrimental impact on the surrounding area.

11. I conclude that the proposed development would preserve the character of the conservation area and that it complies with local plan policy Env 6.

12. Objectors have expressed concern about the lack of any parking facilities associated with the proposed block. However, local plan policy Tra 4 allows lower parking provision where sites are accessible to local facilities and public transport and complementary measures such as secure covered cycle parking and access to the City Car Club scheme would be available to residents, all of which apply in this case.

13. There is no issue in relation to local plan policy Des 6. With reference to Hou 3, there would be less open space than the standard required. However, some flats would have balconies and all would have access to the roof garden. The appeal site is also located very near to the Botanic Gardens and Inverleith Park. In these circumstances, I do not consider the conflict with Hou 3 to be significant.

14. Although I have concluded that the proposed development would preserve the character of the conservation area and that it complies with a number of local plan policies, I consider that the policy conflict caused by the impact on the amenity of neighbours is sufficient to conclude overall that the proposed development is contrary to the development plan. I have identified no other material considerations which would outweigh this policy conflict and allow me to grant planning permission".

Submissions on behalf of appellant
[5] Counsel for the appellant advanced a number of grounds in support of his submission that the decision of the Reporter should be quashed. Firstly it was contended that in her decision letter the Reporter had failed to provide adequate and intelligible reasons for refusing the appeal. The terms of her decision letter had been so brief as to leave a reasonably well informed reader in substantial doubt as to the reasons for her decision. Secondly, although this point was only faintly pressed by counsel for the appellant, the Reporter's decision letter had failed to pay due regard to the terms of section 25 of the 1997 Act, which provide that where, in making a determination under the 1997 Act, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise. The decision letter had also failed to identify as a determining issue whether the application complied with the Edinburgh City Local Plan.

[6] Thirdly it was argued that the handling of the appeal by the Reporter had been tainted by procedural irregularities. The Reporter had refused a reasonable request on behalf of the appellant that she should hold an accompanied site inspection, during which she could have viewed the application site from elevated positions. Such a site visit would have better informed the Reporter as to the extent of any impact of the proposed development, than was possible during the unaccompanied site inspection, at ground level, which she undertook. The Reporter had also refused a request that she hear part of the appeal by way of oral process, involving a hearing session and/or a formal inquiry session on specific matters, during which she could have heard evidence and oral submissions about the design, layout, character and impact of the proposed development. Hearing part of the appeal by oral process would have ensured that the best evidence was available on which the Reporter could reach her decision. Fourthly, a further aspect of procedural irregularity was founded upon. Regulation 4(2) of the 2008 Regulations provides that within 21 days of receipt of notification of a Notice of Appeal, the planning authority must send to the respondents its response to the appeal, together with associated documentation. In the present appeal, the planning authority, the Council, had failed to do so. The Council's response was not sent until 13 January 2011, two weeks after the due date, namely 30 December 2010. As there was no statutory provision for extending the time limit, the Reporter had erred in taking into account the contents of the Council's response to the appellant's Notice of Appeal.

[7] Finally it was argued that the Reporter had erred in failing to consider whether the imposition of a relevant condition might have rendered acceptable what she otherwise considered to be an unacceptable development. Reference was made to circular 4/1998 Use of Conditions in Planning Permission, Annex A, paragraph 13. This fifth and final ground was not referred to in the Appeal, which had been lodged with this court on behalf of the appellant. It was, however, mentioned in the Note of Argument lodged in advance of the summar roll hearing.

Submissions on behalf of respondents

[8] On behalf of the respondents, it was stressed that the appeal fell to be determined in accordance with the provisions of section 239(1) and (5)(b) of the 1997 Act. The appeal could only be allowed if the court was to be satisfied that the Reporter's decision had not been within the respondent's powers under the 1997 Act or that the appellant's interests had been substantially prejudiced by a failure to comply with the relevant requirements in relation to the Reporter's decision. The need for the appellant to establish substantial prejudice in the latter situation was stressed.

[9 ] Senior counsel for the respondents submitted that the terms of the decision letter fell to be read as a whole. The construction of the decision letter was not an abstract exercise. Guidance as to the scope of the duty on a Reporter to give reasons for her decision was to be found in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, per Lord President Emslie at pp 347(2) - 348(1) and Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 W.L.R. 153, per Lord Bridge of Harwich at pp 166F - 167H. The role of the Reporter was also helpfully summarised in the opinion of the Lord Justice Clerk in Moray Council v Scottish Ministers 2006 SC 691 at paras [28] - [30]:

" Decision letters
[28] Counsel for the appellant has subjected the decision letter to detailed textual analysis and criticism. In doing so he has, I think, asked us to judge it by a needlessly exacting standard. The function of the reporter is to make a decision by reference to the provisions of the development plan and to other material considerations (1997 Act, s 37(2); s 48(5)(a)). In so doing, he has to make his determination in accordance with the development plan unless material considerations indicate otherwise (1997 Act, s 25; cf City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, Lord Clyde, pp. 43-44 ). In the normal case, the reporter will have to consider, in addition to the development plan, any relevant national planning guidance, responses from consultees, expert evidence from the principal parties on the facts and on the planning issues and representations from supporters and objectors.

[29] His starting point will be the development plan, considered if need be in the light of national planning guidance. Having regard to the development plan framework and the nature of the proposal, he must decide what are the determining issues. With those issues in mind, he must make his findings in fact on the nature of the proposal and its probable effects. It is for him to decide what lines of evidence are material to the determining issues and what conclusions are to be drawn from them.

[30] The reporter must then decide in the light of his findings how he resolves the determining issues. This involves the exercise of his planning expertise and judgment. In his decision letter he must set out the process of reasoning by which he reaches his decision; but that does not require an elaborate philosophical exercise. Nor does it require a consideration of every issue raised by the parties. The reporter is entitled to confine himself to the determining issues. So long as his reasons are intelligible and adequate, he is entitled to express them concisely. The guiding principle is that the decision letter should leave the informed reader in no substantial doubt as to the reporter's findings in fact and conclusions on the determining issues, and as to the way in which he has applied section 25 of the 1997 Act in reaching his decision (Perth and Kinross Council v Secretary of State for Scotland 1999 SC 144)".

[10] Senior counsel for the respondent submitted that when the decision letter was read as a whole it was quite clear why the appellant had lost its appeal against the Council's refusal of planning permission. The appellant had done so because the Reporter had held that the proposed development did not comply with three separate policies within the Edinburgh City Local Plan. That failure to comply arose on account of the adverse impact which a development of the size and scale proposed would have on the amenities of the surrounding area and existing residents. The development plan framework within which the appeal fell to be considered was clear. It could not be suggested that the Reporter had failed to take any relevant factor into account. The Reporter had factual evidence, including what she had observed during her own site visit and what was contained in the photographs, plans and the various reports of experts before her, which was relevant to the question of whether the proposed development would have an overbearing impact on the amenity of surrounding properties and surrounding residents. The Reporter also had before her the written objections of neighbours to the proposed development, which raised the question of amenity. It had been for the Reporter to assess all of that material in the light of her professional expertise and planning experience and in the exercise of her judgement reach a conclusion as to whether the Development Plan Policies would or would not be met by the proposed development. As far as the alleged procedural irregularities were concerned, senior counsel for the respondent submitted that it had been for the Reporter to decide whether or not to hold a hearing or enquiry session under Regulation 8(4) of the 2008 Regulations, as requested by the appellant. The Reporter had been entitled to refuse to do so. In any event the appellant had not been able to establish that the Reporter's refusal to hold an accompanied site inspection or oral hearing had caused it substantial prejudice.

[11 ] Whilst it was acknowledged that the Council had failed to lodge their response to the appellant's appeal within the 21 day period provided for in Regulation 4 of the 2008 Regulations, the appellant had been afforded an opportunity to submit written comments on matters raised by the Council's response and documents relating to those comments, within 14 days of their receipt of the Council's response. Accordingly they had not suffered any prejudice. When deciding a planning appeal taken by an unsuccessful applicant for planning permission in terms of the provisions of section 47 of the 1997 Act, the Reporter required to have all the relevant material before her. It was in the public interest that she should do so. In such circumstances the consequences of the Council's failure to meet the deadline provided for by Regulation 4 of the 2008 Regulations were different to those that would arise in the event of an unsuccessful applicant for planning permission, seeking to appeal against a planning authority's refusal of planning permission under Section 47 of the 1997 Act and failing to serve a Notice of Appeal on the respondents within the three months deadline provided for in regulation 3(2) of the 2008 Regulations.

[12] In conclusion, senior counsel for the respondent dealt with the ground of appeal relating to the alleged failure on the part of the Reporter to address the issue of whether the imposition of a relevant planning condition might have rendered acceptable what she otherwise thought to be an unacceptable development proposal. Senior counsel submitted that it had not been for the Reporter to raise the issue of planning conditions. In the papers submitted by the appellant in support of their appeal against the Council's decision, the only reference to a planning condition was to be found in paragraph 4.80 of their appeal statement. In paragraph 4.80, the appellant had expressed a willingness to bear the cost of constructing an additional window in a bedroom of a particular first floor tenement flat in Deanhaugh Street overlooking the application site. It had not been a matter for the Reporter to explore the issue of seeking to identify other conditions for the purposes of making an unacceptable application acceptable. In particular it would not have been competent for the Reporter to explore the possibility of imposing positive conditions requiring the appellant to carry out work on land or properties owned and controlled by others (see Grampian Regional Council v Secretary of State for Scotland and Aberdeen District Council 1984 SC (HL) 58).

Discussion
[13] In our opinion when the guidance to be found in Moray Council v Scottish Ministers and the other authorities to which we have referred is borne in mind, it is perfectly clear from a reading of the decision letter which findings and conclusions the Reporter reached and why she reached them.

[14] Having regard to the reasons the Council gave for refusing the application, the Reporter cannot be faulted for the manner in which she focused the determining issues. In reaching her decision, the Reporter was obliged to have regard to the provisions of the development plan, so far as material to the appellant's application for planning permission, and to any other material consideration (section 37(2) and section 48(5)(a) of the 1997 Act). She was also required to have regard to section 25 of the 1997 Act, to which we have already referred. We are quite satisfied from the terms of paragraphs 1 and 14 of her decision letter, and indeed on a reading of the whole of the letter, that although the Reporter did not specifically refer to those statutory provisions, she applied the correct legal test. She considered whether the proposed development would have a detrimental impact on the amenity of the existing properties and residents and would preserve or enhance the character and appearance of the New Town conservation area, in which the site of the proposed development lies. In the light of those findings she assessed whether the proposed development complied with specified polices in the development plan, whether the proposed development would be in accordance with the development plan and whether any other material considerations warranted granting planning permission in the face of conflict with the development plan.

[15] Paragraphs 2-5 of the decision letter provide an accurate summary of the size, scale and design of the building involved in the proposed development and its location. They are consistent with the documents, including photographs, maps and drawings submitted on behalf of the appellant in support of the appeal. As we have indicated they are also before us. In our opinion, it cannot be said that those paragraphs disclose an error on the part of the Reporter as to what the proposed development would involve. In paragraphs 6, 7 and 8 of the decision letter, the Reporter turns to deal with the effect and impact of the proposed development. In particular at paragraph 7 the Reporter acknowledges that all the surrounding residential properties would receive adequate levels of daylight and sunlight. However she then expresses concern as to the significantly overbearing impact the proposed development would have on residents in neighbouring properties, by reason of its size and scale and its close proximity to those properties. In that regard she expresses particular concern about the effect on residents in 51 Deanhaugh Street and the Hanover sheltered flats, and a lesser but nonetheless real concern about a diminution in the amenity of the residents of 39-45 Deanhaugh Street and the townhouse at 1 Veitch's Square. In our opinion it cannot be said that it was not open to the Reporter to make the findings she does as to the impact of the proposed development and as to her assessment of that impact. Nor do we consider that an informed reader of these paragraphs, who had access to the documentation that was lodged in support of the application and this appeal, would have any difficulty in understanding why the Reporter has reached the conclusion that she did.

[16] The Reporter then turns to assess the proposed development against the local plan policies mentioned in the reasons given by the Council when they refused the application. The Reporter holds that the proposed development would not comply with three of those policies:- Des 1, Des 3 and Hou 4. It was open to the Reporter to find that Des 1 was not complied with on account of the inappropriate design of the building in the context of its location. That conclusion clearly refers to the size and scale of the building and its proximity to the surrounding buildings, which the Reporter had already dealt with in paragraphs 2 - 4, 6 and 7 of the decision letter. Similarly the Reporter's findings about size, scale and proximity in paragraph 6 and 7 entitled her to hold that Des 3 was not complied with on account of the fact that the amenity of neighbours would be adversely harmed. As far as Hou 4 is concerned, the Reporter's findings that residential amenity would be diminished by the size, scale and proximity of the proposed development, entitled her to hold that the policy was not complied with, because on her assessment, the damage to, or in other words the impact on, residential amenity would be unacceptable.

[17] As far as the other development plan policies are concerned, the Reporter held that the proposed development would comply with them, subject to a conflict with policy Hou 3 which she did not regard as being significant. Having concluded that the proposed development would preserve the character of the New Town Conservation Area, she determined that the policy conflict with policies Des 1, Des 3 and Hou 4, which was caused by the impact of the proposed development on the amenity of neighbours, was sufficient to conclude overall that the proposed development was contrary to the Development Plan. She also indicated that she had identified no other material considerations which would outweigh this policy conflict and allow her to grant permission. In our opinion it was open to the Reporter to reach those conclusions and we are satisfied that her conclusions are expressed in terms which provide an adequate explanation as to why she reached them.

[18] We turn to deal with the grounds of appeal founded on procedural irregularity. As far as the Reporter's refusal to hold any oral hearing and an accompanied site inspection are concerned, these were matters which clearly fell within her discretion, in terms of regulations 8 and 11 of the 2008 Regulations. It cannot be said that the Reporter erred in taking the decisions that she did, nor has any matter been raised in submission which might suggest that the appellant was substantially prejudiced by the fact that neither an oral hearing nor an accompanied site inspection took place.

[19] Nor do we consider that the Reporter erred by taking account of the response by the Council to the appellant's Notice of Appeal. Regulation 4(2) of the 2008 Regulations provides that in addition to the planning authority's response, which should deal with the matters the planning authority consider require to be taken into account in determining the appeal, the planning authority also require to send to the Scottish Ministers a copy of the documents which were before the planning authority and which were taken into account in reaching their decision; a copy of any report on handling, prepared in respect of the application; and the conditions (if any) which the planning authority consider should be imposed in the event that the respondents (or a reporter) decide that planning permission should be granted. Standing the scope of such documentation, we do not consider that the public interest would be served if the respondents (or a reporter) could not take into account any such documents unless they were submitted by the planning authority within the 21 day period. We do not therefore consider that regulation 4(2) can have been intended to be construed as preventing the respondents (or a reporter) from taking such documents into account if they are submitted late.

[20] Finally we turn to the issue of conditions. Whilst we acknowledge that a reference to a possible condition was made in paragraph 4.80 of the statement submitted on behalf of the appellant, when the Notice of Appeal was lodged, we do not understand it to have been argued before us that the imposition of such a condition on its own might have enabled the Reporter to reach a different conclusion. Furthermore, the information placed before the Reporter in relation to that possible condition was not such as could have satisfied the Reporter that the householder concerned would agree to the additional window that was being proposed, or that there was any reasonable prospect that such a condition could be complied with. The possibility of any other conditions being imposed was not raised with the Reporter at any stage. There is, in particular, no suggestion that, when seeking an oral hearing or an accompanied site inspection, it was represented on behalf of the appellant that such procedures were requested in order to assist the Reporter in addressing the question with which this late ground of appeal is concerned. Nor did we receive any submissions as to the terms of any conditions which might have rendered the proposed development acceptable, let alone the likelihood of such conditions being competent and capable of implementation. In these circumstances we do not consider the Reporter can be faulted for not having addressed the issue of whether any conditions could have rendered acceptable what would otherwise have been an unacceptable development.

[21] In the whole circumstances the appeal falls to be refused.