OUTER HOUSE, COURT OF SESSION [2012] CSOH 153

XA158/10

OPINION OF LORD GLENNIE in an Appeal to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997 by (1) THE CAIRNGORMS CAMPAIGN, (2) GUS JONES and ROY TURNBULL, respectively Convenor and Vice‑Convenor of the BADENOCH & STRATHSPEY CONSERVATION GROUP, and (3) WILIAM G McDERMOTT and SYBIL SIMPSON, respectively Chairman and Hon. Treasurer of the SCOTTISH CAMPAIGN FOR NATIONAL PARKS Appellants; against the decision of the CAIRNGORMS NATIONAL PARK AUTHORITY to adopt the Cairngorms National Park Local Plan 2010 made on 29 October 2012 and advertised in the Edinburgh Gazette on 8 November 2010. ________________

Appellants: Sir Crispin Agnew of Lochawe, Bart., QC; Drummond Miller LLP

First Respondents: D Armstrong QC; Harper MacLeod LLP

Second, Third and Fourth Respondents: J Findlay; Paull & Williamsons LLP

21 September 2012

INTRODUCTION

[1] The Cairngorms National Park Authority ("CNPA") is a National Park authority established under the National Parks (Scotland) Act 2000. By resolution dated 29 October 2010 it adopted the Cairngorms National Park Local Plan 2010 as modified ("the Local Plan").

[2] In this appeal the appellants seek reduction of the decision by CNPA to adopt the Local Plan. They complain in particular about the adoption of the following development policies proposed in the Local Plan, namely:

(A) Nethy Bridge NB/H2 - allocation for 40 dwelling houses;

Nethy Bridge NB/ED1 - allocation for business units;

(B) Carr-Bridge C/H1 - allocation for up to 117 dwelling houses;

(C) An Camas Mòr - allocation for 1,500 dwelling houses to be developed over time

(D) Kingussie KG/H1 - allocation for 300 dwelling houses, with 75 to be provided during the life of the Local Plan.

In the material before the court, Carr-Bridge (as it is designed in the Local Plan) is also variously designed "Carr-bridge" and "Carrbridge". For consistency with the Local Plan, I shall use the designation "Carr-Bridge" throughout this Opinion.

[3] The appeal is brought in terms of s.238 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). It was a matter of agreement that s.238 applies to this appeal by reason of the Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (SSI 2008 No.432). It was also agreed that, although it is commonly referred to as an appeal, an application of this sort falls to be considered on judicial review grounds.

[4] CNPA are the first respondents to the appeal. The second respondents are Davall Developments Limited, who have an interest in development at Kingussie. The third respondents, Tulloch Homes Limited, have an interest in development at both Nethy Bridge and Carr-Bridge. The fourth respondents, An Camas Mòr Developments LLP, have an interest in development at An Camas Mòr.

[5] The decision to adopt the Local Plan is challenged in respect of these particular allocations on a number of different grounds and by reference to a range of different legal and environmental policies. Accordingly, not only are there a large number of issues to be addressed, but they require to be addressed in the context of a number of different allocations within the Local Plan. Although the hearing in court was relatively short, I was provided (helpfully) with lengthy written submissions. Before turning to consider these individually, I must summarise the position regarding the Cairngorms National Park and the Cairngorms National Park Plan; describe the process leading up to the adoption of the Local Plan; and set out the main provisions of the National Park Plan and the Local Plan which form the context in which the particular policies under challenge fall to be considered. As a result, this Opinion is considerably longer than I would have wished it to be, and has taken longer to produce than I had hoped.

THE CAIRNGORMS NATIONAL PARK AND THE CAIRNGORMS NATIONAL PARK PLAN

The National Parks (Scotland) Act 2000 ("the 2000 Act")

[6] Section 2(2) of the National Parks (Scotland) Act 2000 provides that the Scottish Ministers may propose the designation of an area as a National Park and the establishment of a National Park authority if it appears to them (a) that the area is of outstanding national importance because of its natural heritage or the combination of its natural and cultural heritage, (b) that the area has a distinctive character and a coherent identity, and (c) that designating the area as a National Park would meet the special needs of the area and would be the best means of ensuring that the National Park aims are collectively achieved in relation to the area in a co-ordinated way. The Cairngorms National Park was designated in 2003. It includes parts of the local authority areas of Highland, Aberdeenshire, Moray and Angus.

[7] CNPA is the National Park authority for the Cairngorms National Park. The general purpose of a National Park authority is to ensure that the National Park aims are collectively achieved in relation to the National Park in a co-ordinated way: s.9 of the 2000 Act. Those aims are defined in s.1 of the 2000 Act as (a) "to conserve and enhance the natural and cultural heritage of the area", (b) to promote sustainable use of the natural resources of the area, (c) to promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public, and (d) to promote sustainable economic and social development of the area's communities. Despite the obligation on the National Park authority to ensure that the National Park aims are collectively achieved in a co-ordinated way, the possibility of conflict between these various aims is recognised in s.9(6) of the 2000 Act. This provides that if, in relation to any matter, it appears to the authority that there is a conflict between the National Park aim set out in section 1(a) and other National Park aims, the authority "must give greater weight" to the aim set out in section 1(a).

[8] It was accepted on behalf of the appellants that this obligation to give "greater weight" to the aim of conserving and enhancing the natural and cultural heritage of the area did not mean that that aim would always prevail in the event of conflict. It was submitted, however, that the duty to give greater weight to that aim had to be observed at every level of the formulation of the Local Plan, not only as part of the general approach but also in considering each particular housing or development allocation within it. The appellants conceded that this obligation had been recognised in the Cairngorms National Park Plan 2007 (to which I shall refer in due course), both in section 3.1 at pp.19-20 and also in section 6.6 dealing with Housing, and had been carried through in para.1.4 of Local Plan to an express general recognition of the greater weight to be attached to the first aim; but it was submitted that the relevant "balancing exercise", in which the first aim was to be given greater weight, had not been carried through to the site-specific proposals of the Local Plan, or, at least, it was not apparent from the reasons given that that balancing exercise had been carried out. I shall come back to deal with that point later in this Opinion.

Preparation and adoption of a National Park Plan

[9] With a view to accomplishing the purpose of ensuring that the National Park aims are achieved in a co-ordinated way, a National Park authority must prepare a National Park Plan setting out its policy for (a) managing the National Park and (b) co-ordinating the exercise of its functions in relation to the National Park with those of other public bodies; and, after consultation, must submit it to the Scottish Ministers for their approval: ss.11 and 12 of the 2000 Act. Once the Plan has been approved, the National Park authority must adopt it as its National Park Plan: s.12(7)(a) of the 2000 Act.

[10] The National Park Plan, when adopted, is a significant document placing upon the National Park authority and others certain legal obligations. S.14 of the 2000 Act requires a National Park authority and other public bodies, in exercising functions so far as affecting a National Park, to have regard to the National Park Plan as adopted. Similarly s.264A of the 1997 Act requires a body exercising any power under the planning Acts with respect to any land in a National Park to pay special attention to the desirability of exercising the power consistently with the National Park Plan as adopted. Again it should be noted that neither of these expressions ("have regard to ..." and "pay special attention to the desirability of ...") requires the relevant body to treat the National Park Plan as binding; but they must give proper consideration to it. Its adoption therefore has a considerable influence on the content of the Local Plan, as well as to other plans prepared by CNPA, such as the Core Paths Plan, and to plans prepared by other bodies, such as Community Plans.

The Cairngorms National Park Plan ("CNPP 2007")

[11] The Cairngorms National Park Plan 2007 was approved by Scottish Ministers on 15 March 2007. Section 3 ("Context") identifies the Cairngorms as an area which is

"... widely recognised and valued as an outstanding environment which people enjoy in many different ways."

It has a "distinctive landscape" and "rich biodiversity", featuring mountains, moorland, forests and woodlands, straths and farmland, and rivers and lochs. The CNPP 2007 sets out the long-term vision (25 years) for the Park, focusing on matters ranging from landscape, biodiversity and geodiversity, through land management, the built heritage, archaeology, cultures and traditions, energy, water use and waste management, to training and employment, business, housing, transport, outdoor access and recreation, and tourism. It also identifies priorities for action for the first five years of the Plan, from 2007 - 2012. The "Guiding Principles", summarised in Section 4, are sustainable development, social justice, participation, managing change and adding value.

Section 5 CNPP 2007 - strategic objectives

[12] Section 5 of the CNPP 2007 lists certain "strategic objectives", which provide a "long-term framework for managing the National Park and working towards the 25 year vision". The strategic objectives fall under three broad headings: 5.1 "Conserving and Enhancing the Park"; 5.2 "Living and Working in the Park"; and 5.3 "Enjoying and Understanding the Park".

Section 5.1 - Conserving and Enhancing the Park

[13] The strategic objectives in section 5.1 "Conserving and Enhancing the Park" are set out in a number of sub-sections, one of which is 5.1.2 "Conserving and Enhancing the Natural and Cultural Heritage". This is divided into a number of topics, including "Landscape, Built and Historic Environment" and "Biodiversity". Each topic has a number of sub-headings.

[14] The following are amongst the points made under the topic "Landscape, Built and Historic Environment":

"(b) Conserve and enhance the sense of wildness in the montane area and other parts of the Park.

Large areas of the Park, not restricted to the montane area, are valued for their innate qualities and the experience of wildness that many people come to the area to enjoy. This sense of wildness and quiet enjoyment should be safeguarded from encroachment by human infrastructure, inappropriate activities or insensitive management and use. New tracks, paths, roads, structures, motorised access, aircraft and organised outdoor access events should seek to minimise effects on the experience of wildness. The removal of inappropriate vehicle tracks and the repair of badly eroded footpaths should be pursued where possible.

...

(d) New development in settlements and surrounding areas and the management of public spaces should complement and enhance the character, pattern and local identity of the built and historic environment.

The existing settlements and their surroundings each have distinctive local character and identity. New development should demonstrate an understanding of this heritage and complement it. It should enhance the local identity, quality of public space and surrounding environment. High quality design should be a feature of all new developments."

[15] In relation to "Biodiversity", which is "of national and international importance", it is explained that

"The extent and scale of habitats including the native pine woodlands, mountain plateaux, rivers, moorlands, heathlands, farmlands and wetlands hold a rich biodiversity that includes many rare and threatened species. Approximately 39 per cent of the Park is designated for a particular nature conservation interest. Its future condition should be enhanced through a landscape-scale approach that brings all habitats in the wider countryside of the Park into good condition and increases the connectivity between them.

There are 31 areas of the Park (including the rivers Spey and Dee) that are currently designated as being of European importance for nature conservation through the Natura 2000 designations of Special Protection Areas and Special Areas of Conservation. A total of 46 sites are designated as part of a national network of Sites of Special Scientific Interest and a further six areas are designated as National Nature Reserves where management for nature conservation is given primacy.

These designations carry special responsibilities for public authorities, land managers and users. While these sites represent examples of the best of the natural heritage in the Park, they cannot be managed in isolation from the surrounding land and habitats.

Accordingly, their future condition should be enhanced through a landscape-scale approach that brings all habitats in the rest of the Park into good condition - it is not just designated sites that are of importance. This will be achieved through a strategic approach to management that targets habitat enhancement in key locations which will increase the viability of the designated areas by increasing the connectivity between them. It will also improve the extent of high quality habitats and associated native plant and animal communities that is already unparalleled in Britain.

The Scottish Biodiversity Strategy seeks to help meet the UK's international obligations under the UN Convention on Biological Diversity (1992), under which the European Union seeks to protect and restore the functioning of natural systems and to halt the loss of biodiversity by 2010. The National Park can make a valuable contribution to these efforts."

[16] There is then the following explanation of Natura 2000 and the special designations "SAC" and "SPA":

"Natura 2000 - A Network of Special Sites

Natura 2000 is a European network of protected sites which represent areas of the highest value for habitats and species of plants and animals which are rare, endangered or vulnerable in the European Community.

The network includes Special Areas of Conservation (SACs) which support valuable habitats and species (other than birds) and Special Protection Areas (SPAs) which support significant numbers of rare and/or migratory wild birds and their habitats.

The network is established in response to the 1992 Habitats Directive and the 1979 Birds Directive, with the enabling legislation in the UK being provided by the Conservation (Natural Habitats &c.) Regulations 1994. Through these,

Scotland has a responsibility to identify and protect SACs and SPAs. There are currently 19 SACs and 12 SPAs in the Park, which together with other nationally designated Sites of Scientific Interest must be protected and managed positively for their qualifying nature conservation interest.

The Park also has a number of wetlands of international importance listed under the Ramsar Convention. As a matter of policy, the government has chosen to afford these sites protection equivalent to Natura sites, although many have

dual designation already.

The qualifying habitats in these designated areas usually extend outside the site boundaries. The objective of achieving favourable conservation status for them can only be secured in the long-term by safeguarding the habitats and protected species wherever they occur. This adds impetus to the need to manage all semi-natural habitats and native species in the Park to the highest standards. For Natura sites, there is an obligation in law to prevent any activities being undertaken which are likely to have an adverse impact on the qualifying features of interest, unless such impact would be caused by an activity that is

in the overriding public interest and for which, there was no available alternative."

[17] Against this background, a number of specific strategic objectives were identified in relation to Biodiversity, including the following:

"(a) Conserve and enhance the condition and diversity of habitats and species present throughout the Park through a landscape-scale approach to habitat networks.

The habitats and species throughout the Park are special qualities which underpin its designation as a National Park. Many are of national and international importance and their conservation, and where possible enhancement, is key. However, it is the existing scale and proximity of habitats, such as semi-natural woodland, rivers, moorland and montane areas that give the Park its particular importance. Nature conservation efforts should therefore seek to bring all habitats in the Park into good condition.

Management should take a strategic view to enhance the linkages between habitats and their scale and to minimise fragmentation. Extensive and inter-connected networks of montane ground, moorland, forest, wetlands and semi-natural farmland habitats should be maintained and enhanced, and protected from fragmentation. Robust networks will be vital to help many species adapt their range as a result of climate change.

(b) Ensure all designated nature conservation sites are in favourable condition.

Within the network of habitats in the Park, some are designated as being of national or international importance for particular nature conservation features including biodiversity, geology and landforms. These sites should be exemplars of good management where the natural heritage interest is secure within a long-term management plan devised in partnership with land managers. Public support and resources should seek to engage managers, local communities and visitors in understanding and caring for these sites.

All public bodies have responsibility to ensure that they safeguard designated sites when carrying out their functions. The use of targeted incentives will ensure specific actions to maintain and enhance the interests of designated sites. These will be complemented by incentives that promote the positive management of the connecting habitats between them.

(c) Engage all sectors in meeting or exceeding international, national and local biodiversity targets.

All partners in the Park have a key role to play in delivering aspects of European Union biodiversity objectives, the Scottish Biodiversity Strategy and the Cairngorms Local Biodiversity Action Plan.

The Cairngorms Local Biodiversity Action Plan identifies a range of management issues and opportunities to conserve and enhance the biodiversity of the area. Building on this, all sectors involved in managing, living and working in the Park should be engaged in helping to deliver the aims of the Local Biodiversity Action Plan, thereby conserving and enhancing the biodiversity qualities of the Park.

While biodiversity objectives apply to all native species and semi-natural habitats throughout the Park, some species require extra effort to protect and enhance them either because of their particular ecological requirements or because they are threatened with extinction. In the Park, species such as capercaillie, hen harrier, water vole, sea lamprey and freshwater pearl mussel, as well as a range of plants, require extra effort.

...

(e) Ensure that populations of species given special protection under the Habitat Regulations, the Wildlife and Countryside Act, the Nature Conservation Act and European Directives are stable or, where appropriate, increasing.

In addition to ensuring that the habitats necessary for those species given special protection are in good condition, a co-ordinated effort between public agencies, land managers, the police and public to address wildlife crime and irresponsible actions is required. These bodies need to develop partnerships with local communities to help prevent all forms of wildlife crime including poaching and illegal killing or taking of protected species. This will be supported by communications about the law, the nature of the species at risk and advice as to how everyone can help to safeguard them."

[18] Also within section 5.1 is sub-section 5.1.4, which deals with Integrated Land Management. Included within this is Forest and Woodland Management, in relation to which it is pointed out that

"the forests and woodlands of Strathspey, Strath Avon, Glenlivet, Donside, Deeside, and the Angus Glens form an extensive and predominantly native forest resource. While the native pine forests are the most renowned feature, the Park also contains the largest area of native birch woodland in Britain and the most important stands of aspen woodland. The value of the Park's forest is increased further by the occurrence of smaller areas of oak, ash and riparian woodlands and the occurrence of the only remaining natural example of an altitudinal forest tree line in the country. The extent of this forest, together with the close proximity and connectivity of individual woodlands combines to form one of the most valuable ecological networks in the country and one of the widely recognised special qualities of the Park. It is also a valuable economic and tourism resource.

The conservation and enhancement of this network and its predominantly native character, whether self-sown or planted, is important. It should be integrated with work to support the production, processing and local use of timber in pursuit of broader objectives, including sustainable design, construction and renewable energy. Public support and policy needs to encourage the wide range of benefits provided by forests, including business and community development, timber production, landscape enhancement, nature conservation, sport, recreation, health, environmental quality and carbon sequestration."

[19] A number of strategic objectives are then set out in relation to Forest and Woodland Management, including the following:

(e) Promote the value of forests and woodlands as a major sustainable tourism asset, increasing the derived economic benefits to woodland owners and local communities.

Forests and woodlands should continue to develop as a major asset to sustainable tourism, providing a range of accessible and high quality recreation opportunities and creating a resource that underpins the landscape character and identity of the National Park. Ways to help woodland owners and local communities realise and capture the economic benefits of forest-based tourism should be explored.

...

(g) Contribute to national efforts to address climate change.

Forests and woodlands are an important resource in addressing climate change. The extensive forests of the National Park can make a significant contribution to national targets. Forests can help mitigate climate change by off-setting carbon emissions through carbon sequestration. They also play an important role in enabling biodiversity to adapt to the effects of climate change by providing dispersal routes through robust habitat networks. The forest resource will play an increasingly important role in the provision of wood fuel as a source of renewable energy."

Section 5.2 - Living and Working in the Park

[20] Section 5.2 is concerned with "Living and Working in the Park". The introduction to this section emphasises the goal of Sustainable Development (5.2.1), and Sustainable Communities (5.2.2), as well as dealing with Economy and Employment (5.2.3) and Housing (5.2.4). I need not go into any detail about much of this, but two sections are of importance.

[21] First, among the strategic objectives listed under 5.2.2, Sustainable Communities were the following:

"(a) Encourage a population level and mix in the Park that meets the current and future needs of its communities and businesses.

Many of the objectives in this section of the Plan will influence and contribute to the population level and mix. However, it is important to actively encourage a population in the National Park that can continue to support thriving communities in the long-term. In the short-term this means seeking to retain or attract more young people.

(b) Make proactive provision to focus settlement growth in the main settlements and plan for growth to meet community needs in other settlements.

The main settlements of the National Park have the greatest range of existing services and infrastructure which can best accommodate increased growth in a sustainable way. Other settlements in the National Park require growth that meets the communities' needs, but that also reflects the scale and qualities of the settlements, as well as the viability of services and infrastructure present.

(c) Promote provision of local services that meet the needs of communities through Community Planning and other community development initiatives.

The provision of services should contribute to thriving communities that have the appropriate facilities to meet their needs. Access to services, including schools, health care and social infrastructure such as shops, post offices, pubs and phone boxes, is key to the long-term sustainability of communities. New development should seek to reinforce the sustainability of communities and support the provision of services in settlements."

[22] The second matter of some importance is Housing. This is dealt with in section 5.2.4. The approach to the question of affordable and good quality housing within the Park is explained in the following way:

"5.2.4 Housing

The need to ensure greater access to affordable and good quality housing to help create and maintain sustainable communities is a key challenge in the National Park. This includes both owner-occupier properties and those rented through social and private landlords. The projected small increase in population, together with a trend to smaller household size, means that the demand for housing in the area is likely to increase between 2006 and 2016 by between 600 and 1,000 households, based on current trends. ...

Currently, 75 per cent of households in the National Park have an income that would not be sufficient to secure a mortgage great enough to purchase a house at the average 2005 price in the Park. While registered social landlords target housing provision at those in most need, and those on the highest incomes have a range of housing options, those in intermediate income brackets have difficulty in accessing the current housing market.

The quality and design of new housing should meet high standards of water and energy efficiency and sustainable design and be consistent with or enhance the special qualities of the Park through careful design and siting."

[23] Section 5.2.4 then goes on to list a number of "Strategic Objectives for Housing". They include the following:

"(a) Increase the accessibility of rented and owned housing to meet the needs of communities throughout the Park.

There is a need to ensure access to rented and low cost housing in perpetuity. This means identifying appropriate sites for housing and prioritising these in strategic planning as well as in funding programmes and making appropriate provision for land through the Local Plan.

Access to housing could be improved by increasing the supply of housing targeted at those who have difficulty entering the open housing market, widening the availability of existing properties and using mechanisms such as section 75 planning agreements to ensure housing remains affordable to those who need it in the long-term.

...

(d) Ensure there is effective land and investment for market and affordable housing to meet the economic and social needs of communities throughout the Park.

The availability of appropriate land and investment in infrastructure and services is key to the provision of housing. To ensure the availability of land and investment in the Park that is consistent with the special qualities of the area and avoids damage to important nature conservation sites and species, a long-term approach and partnership working are required."

Section 5.3 - Enjoying and Understanding the Park

[24] Section 5.3 is concerned with "Enjoying and Understanding the Park". After pointing out that the Cairngorms National Park is known for its outstanding environment and outdoor recreation opportunities, it identifies the vision as being

"... to go further and develop a world class destination which plays a significant part in the regional and national tourism economy."

To achieve that vision, it says,

"... requires a sustainable approach to developing tourism, an excellent quality provision of outdoor access and recreation opportunities and a significantly enhanced awareness and understanding of the National Park, its special qualities and management needs."

[25] Among the strategic objectives listed under this head are the following:

(c) Maintain a high quality environment by encouraging sound environmental

management by all those involved in tourism in the Park.

The high quality environment forms the basis for tourism in the Park and is therefore one of the sector's most important assets. Everyone involved in tourism should minimise negative impacts and support positive enhancement of the environment. This includes action for the landscape and habitat resources that underpin much of the visitor appeal, as well as sound environmental management practice in individual tourist businesses. Those advising and supporting the development of new tourism businesses should ensure that high environmental standards are built into business development.

...

(f) Develop and maintain a wide range of opportunities for visitors to experience and enjoy the special qualities, distinctiveness and natural and cultural heritage of the Park.

The special natural and cultural heritage qualities of the Park underpin its appeal and offer a distinctive visitor experience. Development of tourism products and services should help to develop discovery and understanding of the area through activities, events and products that draw on the special qualities of the Park. Focusing on this distinctiveness offers the potential for greater long-term sustainability in economic, environmental and social terms."

Section 6 - Priorities for Action 2007-2012

[26] Section 6 is concerned with "Priorities for Action 2007-2012". The introduction to this section is in the following terms:

"In working towards all of the strategic objectives, all sectors in the National Park can make significant progress towards the vision. However, even a wide range of partners working together cannot immediately tackle all areas and try to achieve all objectives within the next five years. There is a need to prioritise where we collectively focus effort and resources in order to ensure that the most pressing issues are tackled and that we focus the collective resources available on making a difference in these areas.

The Priorities for Action identified here set out a programme of work in key areas for the next five years, 2007-2012. They do not try to plan for every action needed to deliver the strategic objectives - implementation is an ongoing process for all involved. Instead, they set out what difference we seek to make in these areas of priority over five years and the headline actions that are needed to achieve this.

They are targeted at the most pressing issues and challenges that have been identified during consultation and preparation of the plan. There is either an important need to address the issue now, or a valuable opportunity which should be grasped. To support integration across sectors, the five year outcomes for each priority will contribute to strategic objectives across several sections. The relevant sections of strategic objectives to which the outcomes contribute are listed under each priority.

The Priorities for Action for 2007-2012 are:

• Conserving and Enhancing Biodiversity and Landscapes;

• Integrating Public Support for Land Management;

• Supporting Sustainable Deer Management;

• Providing High Quality Opportunities for Outdoor Access;

• Making Tourism and Business More Sustainable;

• Making Housing More Affordable and Sustainable;

• Raising Awareness and Understanding of the Park.

For each action, the partners that need to deliver it are listed (in alphabetical order). These will form the basis of the delivery group for each priority. However, this list may not be exhaustive and implementation of these priorities should involve all those necessary to achieve the outcomes most effectively. Section 7 describes the process for implementation in more detail."

[27] The passage on "Outcomes for 2012" is in tabular form (which I shall not reproduce here), identifying what is sought to be achieved within the 5 years between 2007 and 2012. It provides as follows:

"i. A Landscape Plan for the Park will identify the natural, cultural and built landscape qualities, the factors influencing them and underpin actions for positive management.

ii. The key areas for the experience of wild land qualities will be identified, protected and enhanced as a major source of enjoyment of the Park and wild land qualities throughout the rest of the Park will be safeguarded.

iii. The location, scale, layout and design of all new development will make a positive contribution to the natural, cultural and built landscapes of the Park and the adverse impacts of some existing developments will be reduced.

iv. Species and habitats identified as the highest priorities in the Cairngorms Local Biodiversity Action Plan, the UK and Scottish Biodiversity Strategies and Action Plans and the Scottish Species Framework will be protected and under active conservation management.

v. There will be enhanced connectivity within habitat networks through practical implementation of a planned, landscape-scale approach, with early emphasis on lowland agricultural habitat networks and forest networks.

vi. All the designated nature conservation sites in the Park will be in favourable condition, or under positive management to bring them into favourable condition. This will be enhanced further by the appropriate management of the surrounding land to increase the ecological integrity and viability of these sites.

vii. The habitat and water quality of rivers and wetlands will be enhanced through commencement of positive management initiatives guided by catchment management planning.

viii. The diversity of rocks, minerals, landforms and soils of international, national and regional value will be safeguarded and more widely appreciated, together with the natural processes underpinning them.

ix. An active programme will be underway to safeguard and manage priority historic landscapes and archaeology sites and to promote them to the public."

[28] Within this section, under the heading "Biodiversity", the following action is identified as being needed (at 3d):

"The Local Plan and development control procedures will ensure that all approved developments protect the Park's special habitat and species qualities and site design plans for development will make a positive contribution to biodiversity as appropriate to their location."

[29] Para.6.6, which is headed "Making Housing More Affordable and Sustainable", includes the following:

"Why is this a priority?

The lack of access to affordable and good quality housing has been identified by many communities as a key issue facing the National Park.  Young people and those on low incomes in particular have difficulty in securing suitable accommodation in their communities.  The lack of access to good quality affordable housing is one of the key challenges to creating and maintaining sustainable communities in the long-term, so it is a priority to address now. 

The demand for housing must also be managed to ensure high environmental and sustainability standards. Provision must be consistent with conserving and enhancing the area's special qualities, but should also seek more sustainable use of resources including water, energy and materials."

[30]         This is followed by a number of points in tabular form.  The first point, made under the heading "Outcomes for 2012 - what does this seek to achieve in five years?", is that there will be a reduction in the gap between housing need and supply in the Park to meet community needs. 

[31]         Under the heading "ACTION PROGRAMME 2007-2012: Making Housing More Affordable and Sustainable" a number of actions are identified as needed to "achieve the five year outcomes".  The following point 1b is included under the first sub-heading "Increasing supply and accessibility": 

"Increase the supply of quality, affordable private rented properties and privately owned housing for rent (for example through a rural leasing scheme)."

This is to be actioned inter alia by private developers.  The following point 4a appears under the fourth sub-heading, "Effective land and infrastructure":

"Make provision for effective land and policies for housing in the Local Plan and regularly review."

This point is to be actioned by CNPA.

THE CAIRNGORMS NATIONAL PARK LOCAL PLAN 2010 ("The Local Plan")

The CNPP 2007 and the Local Plan

[32] S.11 of the 1997 Act deals with "preparation of local plans". In terms of s.11(3), a local plan must consist inter alia of a written statement formulating, in such detail as the planning authority thinks appropriate, its proposals for the development and other use of land, including such measures as it thinks fit for the conservation of the natural beauty and amenity of the land and the improvement of the physical environment. For the reasons explained earlier, the content of the local plan will be heavily influenced by the National Park Plan, which provides a strategic context for it. In addition, however, because the area of the National Park includes parts of the local authority areas of Highland, Aberdeenshire, Moray and Angus, structure plans and local plans for those areas are also relevant in so far as they affect areas within the National Park. This has the potential to give rise to problems of inconsistent guidance, though that is not a problem which arises directly in the present case. But the existence of other plans covering parts of the area of the National Park does have some relevance to the issues which arise on this appeal. The Highland Structure Plan 2001 and the Badenoch and Strathspey Local Plan 1997, for example, are both relevant to the housing allocations in the Local Plan under review.

Adoption of the Local Plan

Initial consultation and the Consultative Draft Local Plan

[33] The Local Plan had its origins in preparatory work and "blank sheet" public consultation and engagement dating back to 2004. After initial consultation, a Consultative Draft Local Plan was published in 2005, accompanied by a Strategic Environmental Assessment ("SEA") Environmental Report (this was not lodged in process in this appeal).

The Deposit Local Plan - June 2007

[34] The Consultative Draft Local Plan was consulted on from November 2005 until February 2006. As a result of this further consultation, a Deposit Local Plan was approved by CNPA in June 2007 and placed on deposit in July 2007, accompanied by a further SEA Environmental Report, which contained a detailed analysis both of the policies set out in the Consultative Draft Local Plan and of the particular development proposals, including those relating to Nethy Bridge, Carr-Bridge, An Camas Mor and Kingussie.

The Appropriate Assessment - October 2008

[35] Regulation 48(1) of the Conservation (Natural Habitats, etc.) Regulations 1994 ("the Habitats Regulations") provides that before deciding to undertake, or give any consent, permission or other authorisation for a plan which (a) "is likely to have a significant effect on a European site in Great Britain ..." and (b) is not directly connected with or necessary in the management of the site, a competent authority

"... shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives."

This has become known as the "Appropriate Assessment". CNPA is a "competent authority" for the purpose of the Regulations. The definition of "European site" is given in Regulation 10. It includes a "special area of conservation" ("SAC") designated in accordance with Regulation 8. It is agreed that the Local Plan is a "plan" for the purpose of Regulation 48(1). Regulation 48(3) requires the competent authority, for the purposes of the assessment, to consult the appropriate nature conservation body, to have regard to any representations made by it and, if thought appropriate, to take the opinion of the general public.

[36] Regulation 49 contains special provision where the plan or project has to be carried out "for imperative reasons of overriding public interest". Subject to that, however, in light of the conclusions of the Appropriate Assessment, the authority

"... shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site ..."

See Regulation 48(5). In considering whether the plan or project will adversely affect the integrity of the site, the authority

"... shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."

See Regulation 48(6).

[37] It was recognised in the SEA that an Appropriate Assessment would be required before any decision could be made on certain parts of the Local Plan. An Appropriate Assessment was carried out and completed in October 2008. The conclusion, set out in para.1.2, was that

"... with appropriate safeguards and mitigation the finalised Local Plan as modified will not adversely affect the integrity of any Natura site in the Cairngorms National Park."

[38] It is convenient here to make reference to one argument made by the appellants, which applies to the Appropriate Assessment as a whole and not just in relation to one or more of the allocations challenged in this appeal. In para.1.5 of the Introduction and Background to the Appropriate Assessment, it is stated that the four aims set out in s.1 of the 2000 Act

"... must be achieved collectively and in a co-ordinated way, and it is the statutory function of the Cairngorm National Park Authority to ensure this collective and co-ordinated approach".

It was submitted on behalf of the appellants that this showed that the requirement in the 2000 Act to give priority to the aim in s.1(a) - that of conserving and enhancing the natural and cultural heritage of the area - was being overlooked or ignored. That submission, in so far as it is based on the wording of para.1.5, must be rejected. The 2000 Act urges the Park Authority to attempt to achieve all four aims collectively. But it is clear that those responsible for preparing the Appropriate Assessment did have regard to the priority to be afforded the aim in s.1(a). In section 6 of the Appropriate Assessment, dealing with "Safeguarding Policies", the terms of Policies 1 and 2 of the draft Local Plan are noted as being of importance. They are quoted verbatim. Within Policy 1, at para.(c), it is expressly stated that in the event of conflict between the four aims, the first aim - to conserve and enhance the natural and cultural heritage of the area - is to be given greater weight. The validity of any criticism that the Appropriate Assessment did not in fact give greater weight to the first aim must, of course, depend on a more careful examination of the assessment itself, but in so far as the criticism is based on a textual analysis of the Appropriate Assessment itself, it fails.

[39] Finally, at this stage at least, I should point out that in section 6 of the Appropriate Assessment, Safeguarding Policies, it is stated in terms that Policies 1 and 2 of the Local Plan

"6.2 ... aim to protect sites designated as Natura from inappropriate development. Other safeguarding policies aim to offer some degree of protection through consideration of various aspects of development including impact on other natural heritage sites, impact on biodiversity, impact of development on the wider landscape ...

6.3 Further safeguarding mechanisms will be provided through forthcoming supplement planning guidance ...

6.4 In addition there are various mitigation measures that can be employed to reduce potential impacts of proposals, and these would extend to planning conditions ..."

These points are picked up later when the Assessment addresses the particular concerns raised in relation to particular development proposals.

The Public Local Inquiry - May and June 2009

[40] Objections to the Local Plan led to the holding of a Public Local Inquiry in May and June 2009 before two Reporters ("the Reporters"). They submitted their Report ("the Report") on 4 December 2009. It is a lengthy and well written document, running to some 338 pages. In parts it is critical of the draft Local Plan as it was at that stage.

Analysis of the Recommendations in the Report - May 2010

[41] The Report was by no means the last stage in the consultation process. An Analysis of the Recommendations in the Report ("the Analysis") was prepared by planning officers of CNPA in May 2010. This ran to some 300 pages. It considered in detail the various points made in the Report, and proposed a number of post inquiry modifications. It was presented to the Board of CNPA with a recommendation that the Board accept the Analysis and the post inquiry modifications and fix a period of further consultation on those modifications.

Modifications and further consultation - May-July 2010

[42] At a meeting of the Board on 14 May 2010, the Minutes of which show extensive discussion of a number of points, CNPA accepted the Analysis and the proposed modifications and approved a period of consultation to run from 24 May to 2 July 2010.

Analysis of responses and approval of the Local Plan

[43] A number of objections were received during that consultation period. These were analysed by planning officers in an Analysis of responses to Post Inquiry Modifications to the Local Plan" ("the Analysis of Responses") dated 20 August 2010 running to some 183 pages. No further changes to the Local Plan were recommended. A final version of the Environmental Report was submitted in support of the Local Plan.

[44] At a Board meeting on 29 October 2010, CNPA approved the Local Plan as presented with the Analysis of Responses. The Analysis, together with the Analysis of Responses, both of which were approved by CNPA, may be taken to represent CNPA's reasons for deciding to accept or decline to accept the various recommendations in the Report.

[45] It should be noted that the Local Plan is for the period from 2007 to 2012. Another Local Plan taking the matter forward from 2012 is already under consideration. The Local Plan 2007 was only adopted more than half way through its intended lifespan. In consequence, even by the time is was adopted and by the time this appeal was brought, the issues raised in it were on the verge of becoming of academic interest only.

The Local Plan

[46] It is necessary to set out some of the provisions of the Local Plan at some length.

Chapter 1

[47] Chapter 1 sets out the statutory context. It sets out in para.1.3. the four National Park aims listed in s.1 of the 2000 Act. In para.1.4 it refers to s.9 of the 2000 Act and notes that if there is any conflict between the first aim and the others, CNPA must give greater weight to the first aim. It then goes on to note the link with the CNPP 2007 and other structure plans.

Chapter 2

[48] Chapter 2 sets out "The Vision of the Cairngorms National Park Local Plan, its Preparation and its Uses". The purpose of the Local Plan is summarised in paras.2.6 - 2.8 in the following terms:

"2.6 The Local Plan provides one of the National Park Authority's tools to ensure the delivery of objectives of the Cairngorms National Park Plan and the collective and co-ordinated delivery of the aims of the Park. It is intended to promote sustainable development in the Park through sustainable economic and social development of its communities, the sustainable use of its natural resources and the conservation, and where possible, the enhancement of its outstanding natural and cultural heritage.

2.7 The Local Plan provides a development framework for the whole of the Park, bringing together areas where development proposals were previously considered under four separate local authority plans. It creates a clear and consistent approach to guide development proposals and opportunities within the National Park, while allowing an appropriate level of flexibility to ensure that the Plan can be reactive and accommodate good ideas which further the aims of the Park. Its duration, for up to five years from adoption, identifies strategic sites and land for some development to provide certainty about the use of land in the medium to longer term beyond the next five years.

2.8 Once adopted, the Local Plan will be used by the planning authorities within the Cairngorms National Park to assess planning applications for development. The planning authorities are the four local authorities as well as the Cairngorms National Park Authority when it acts as a planning authority in calling-in and determining planning applications."

[49] Paras.2.9-2.13 go on to describe the structure of the Local Plan as follows:

"2.9 The Local Plan provides a set of policies to manage development and a set of specific proposals for development requirements and opportunities. The Local Plan outlines the context for these policies and proposals as well as a vision for the Local Plan.

2.10 The Local Plan contains a range of policies dealing with particular interests or types of development. These provide detailed guidance on the best places for development and the best ways to develop. The policies follow the three key themes of the Park Plan and are outline in Chapters 3 to 5 to provide a detailed policy framework for planning decisions:

• Chapter 3 Conserving and Enhancing the Park;

• Chapter 4 Living and Working in the Park;

• Chapter 5 Enjoying and Understanding the Park.

2.11 The site-specific proposals of the Local Plan are provided on a settlement by settlement basis in Chapter 6 .... These proposals, when combined with the policies in the Local Plan, are intended to meet the sustainable development needs of the Park for the Local Plan's lifetime.

2.12 The Local Plan has been subject to Strategic Environmental Assessment (SEA) throughout its development. EC Directive 2001/42/EC and the Environmental Assessment (Scotland) Act 2005 ... require that development plans are assessed to identify potentially significant environmental effects. The SEA of the Local Plan continues throughout its lifetime.

2.13 The SEA assesses the likely significant environmental effects of the Plan. It identifies opportunities to strengthen the positive environmental effects of the Plan and ensures environmental considerations are integrated throughout. An Environmental Report of the SEA accompanied the Consultative Draft Local Plan. A revised Environmental Report accompanies the Local Plan. It takes account of the changes to the Local Plan and comments on the previous Environmental Report. ..."

[50] Finally, in this Chapter, there is a section on implementation of the Local Plan. This is in the following terms:

"2.14 The Local Plan will be implemented by a wide range of organisations, individuals and groups. The planning authorities will implement it through the determination of planning applications. The local authorities have additional responsibilities as the providers of services and in administering the mechanisms to support the successful delivery of many policies. Partners of the Cairngorms National Park and statutory consultees will be key in the delivery of the Local Plan, both through advice during the planning process and through their strategic work involved in areas such as cultural and natural heritage, tourism, infrastructure and economic development. Developers will implement the Local Plan by obtaining planning permission and completing developments that comply with the Plan and contribute to the strategic objectives of the Park Plan. Other organisations, including statutory undertakers, contribute to the implementation by providing the necessary infrastructure to allow development.

2.15 The Local Plan will provide the basis for planning decisions but is supplemented by other policies, strategies and guidance. The Park Plan is a material consideration in planning decisions and has component strategies, such as the Cairngorms National Park Outdoor Access Strategy and Cairngorms National Park Sustainable Tourism Strategy, that can also be relevant to individual planning applications.

2.16 Some proposals contained in the Local Plan require additional detail to ensure development minimises any negative environmental effects and makes a positive contribution to the aims of the Park and objectives of the Park Plan. The Cairngorms National Park Authority will work with local authorities, landowners, developers, communities and other interested parties to create development briefs, masterplans and framework plans as appropriate for such sites.

2.17 Similarly, some policies within the Local Plan will not provide sufficient detail for the long-term implementation of the Plan and will be supplemented by additional planning guidance. CNPA is committed to preparing a Sustainable Design Guide and sustainability checklist for new development proposals that will supplement the Local Plan's Sustainable Development and Design Standards policies. Further supplementary planning guidance will be prepared to provide additional guidance on other key topics such as the development of micro generation energy production ....

2.18 The planning authorities will use conditions and legal agreements, produced at the expense of the applicant, to ensure that consented developments comply with the Local Plan's policies. In carrying out its planning function CNPA will act in line with its Codes of Conduct, and ensure that all developments are carried out in line with its obligations created through various legislation, such as the Nature Conservation (Scotland) Act 2004, which places a duty to further the conservation of biodiversity in carrying out its function."

The key themes of the CNPP 2007

[51] The three key themes of the CNPP 2007, referred to in para.2.10 of the Local Plan (see above), are "Conserving and Enhancing the Park", "Living and Working in the Park", and "Enjoying and Understanding the Park". These themes are developed in Chapters 3 to 5 of the Local Plan to provide a detailed policy framework for planning decisions. In the course of the discussion in each Chapter, specific policies are adopted. I shall set them out to the extent that they are relevant to this appeal.

Chapter 3

[52] The theme of Chapter 3 is: "Conserving and Enhancing the Cairngorms National Park". Paras.3.1 - 3.3 provide as follows:

"3.1 The Cairngorms National Park Plan acknowledges that the conservation and enhancement of the special qualities, which underpin the National Park's importance and attraction as well as much of its economy and communities, must form the basis of successful future management. To achieve this, it identifies a number of key areas on which to focus attention: conserving and enhancing the natural and cultural heritage; sustainable use of resources; and integrated land management.

3.2 The Local Plan aims to address these key areas through policy implementation, which reconciles appropriate forms of development whilst also conserving and enhancing the special qualities of the Park.

3.3 In addition to the National Park designation, much of the Park is covered by national or international designations or areas of particular importance for natural, cultural or earth heritage reasons which developers must consider when making any new proposals. All planning applications will be assessed against the impacts made on any important natural, cultural or earth heritage resources that might be affected by the proposed development."

[53] Policy 1 is then set out. This was discussed in some detail in the Reporters' Report following on from the Inquiry (though at that time it was called Policy 2). It played an important role in argument in the instant appeal and I should set it out in full:

"POLICY 1

Natura 2000 Sites

Development likely to have a significant effect on a Natura 2000 site will be subject to an appropriate assessment in accordance with the Conservation (Natural Habitats, &c.) Regulations 1994. Where an assessment is unable to ascertain that a development will not adversely affect the integrity of the site, the development will only be permitted where:

(a) there are no alternative solutions; and

(b) there are imperative reasons of overriding public interest, including those of a social or economic nature.

Where the site has been designated for a European priority habitat or species,

development will only be permitted where the reasons for overriding public interest relate to human health, public safety, beneficial consequences of primary

importance for the environment or other reasons subject to the opinion of the

European Commission (via Scottish Ministers)."

[54] The text goes on to explain that that policy meets the CNPP 2007's strategic objective for biodiversity. "Implementation and Monitoring" of Policy 1 is discussed in paras.3.8 - 3.12. So far as relevant, these provide as follows:

"3.8 This policy must be implemented by the planning authority wherever a proposal may affect a Natura 2000 site. Most development in the Cairngorms National Park takes place within the catchments of the rivers Dee and Spey, which are both designated as SACs. Many proposals will therefore have potential to affect those sites. However, it may in certain circumstances be possible to avoid or mitigate some of the potential adverse effects of developments so that the integrity of Natura sites is not adversely affected. Where this is not possible, planning permission can only be granted in the exceptional circumstance described by the Directive and the Habitats Regulations.

3.9 The precautionary principle should be applied where the impacts of a proposed development on nationally or internationally significant landscape or natural heritage resources are uncertain but there is sound evidence for believing that significant irreversible damage could occur. ...

...

3.11 Policy 1 applies to development proposals on sites proposed through the Local Plan as well as development proposals on sites not identified in Chapter 6 ... of the Local Plan. The Local Plan has also been subject to an appropriate assessment before adoption. The planning authority will inform developers of any special requirements resulting from Natura interests or the appropriate assessment of the Local Plan during pre-application discussions or when the need for such requirements are recognized by the authority. The special requirements could include mitigation measures to avoid effects on Natura interests that would be imposed as conditions on planning consent, or particular information required by the planning authority to undertake an appropriate assessment of the specific development proposal.

3.12 The planning authority must satisfy itself that the development will not adversely affect the integrity of the site before granting any form of planning permission. Developers should therefore be aware of this position and the implications that this requirement might have on the need to carry out additional research to support any development proposal."

[55] I can pass over for present purposes Policies 2 and 3. Policies 4, 5 and 6 are in the following terms:

"POLICY 4

Protected Species

Development that would have an adverse effect on any European Protected Species will not be permitted unless:

(a) there are public health, public safety or other imperative reasons of overriding public interest, including those of a social or economic nature and beneficial consequences of primary importance for the environment; and

(b) there is no satisfactory alternative solution; and

(c) the development will not be detrimental to the maintenance of the population of the species concerned at a favourable conservation status in their natural range.

In addition, development should avoid any adverse impact of proposals on species listed in Schedules 1, 5 and 8 of the Wildlife & Countryside Act 1981, as amended, Annexes II and V of the EC Habitats Directive and Annex 1 of the EC Birds Directive.

POLICY 5

Biodiversity

Development that would have an adverse effect on habitats or species identified in the Cairngorms Local Biodiversity Action Plan, UK Biodiversity Action Plan, or by Scottish Ministers through the Scottish Biodiversity List, including any cumulative impact will only be permitted where:

(a) the developer can demonstrate to the satisfaction of the planning authority, that the need and justification for the development outweighs the local, national or international contribution of the area of habitat or populations of species; and

(b) significant harm or disturbance to the ecological functions, continuity and integrity of the habitats or species populations is avoided, or minimized where harm is unavoidable, and appropriate compensatory and/or management measures are provided and new habitats of commensurate or greater nature conservation value are created as appropriate to the site.

Where there is evidence to indicate that a habitat or species may be present on, or adjacent to, a site, or could be adversely affected by the development, the developer will be required to undertake a comprehensive survey of the area's natural environment to assess the effect of the development on it.

POLICY 6

Landscape

There will be a presumption against any development that does not complement and enhance the landscape character of the Cairngorms National Park, and in particular, the setting of the proposed development.

Proposed development that does not complement and enhance the landscape character of the Park and the setting of the proposed development will be permitted only where:

(a) any significant adverse effects on the landscape character of the Park are clearly outweighed by social or economic benefits of national importance; and

(b) all the adverse effects on the setting of the proposed development have been minimised and mitigated through appropriate siting, layout, scale, design and construction to the satisfaction of the planning authority."

[56] Of the other Policies in this Chapter, I need only refer to Policy 11 which provides as follows:

"POLICY 11

The Local and Wider Cultural Heritage of the Park

There will be a presumption against development that does not protect or conserve and enhance a site, feature or use of land of local or wider or cultural historic significance, or its setting.

Any development that would adversely affect a site, feature or use of land of local or wider or cultural historic significance or its setting, will take reasonable measures to avoid, minimise and mitigate those effects."

Chapter 4

[57] The theme of Chapter 4 is "Living and Working in the Cairngorms National Park. The introductory paragraphs of that chapter give the essential background to the formulation of the policies. I quote from paras.4.1 - 4.4:

"4.1 The Cairngorms National Park is a place of work and daily life for approximately 16,000 people, and the economic and social needs and issues faced by them are similar to those throughout rural Scotland. However, its designation as a National Park brings a new focus to finding solutions to sustainable living in the long-term for the Park, and tackling global issues of sustainability. The Cairngorms National Park has the potential to improve opportunities for people within the Park, and contribute significantly to the wellbeing of the wider region and play its part in minimising the impacts of climate change.

4.2 Sustainable development means that the resources and special qualities of the Park are used and enjoyed by current generations in such a way that future generations can continue to use and enjoy them to a comparable degree. The Local Plan aims to ensure that all forms of development are sustainable, and that on a wider scale, all proposals contribute to the development and promotion of sustainable communities for those living and working within the Cairngorms National Park.

Sustainable Communities and Development

4.3 Supporting sustainable communities is a key goal of the Scottish Government, and the approach in the Cairngorms National Park is set out in the Park Plan and supported by these policies. Key to the growth pattern of new development is the underlying guidance provided in Scottish Planning Policy (SPP), which aims to see selective, modest growth which does not result in the suburbanisation of the countryside or erode the high quality of the environment.

4.4 All developers must consider how they can best include the principles of sustainable development in their proposals, looking at the impact on the environment, the economy and on the community. All planning applications will therefore be assessed on the basis of the proposal's sustainability credentials, and those making a positive contribution to sustainable development, will be more favourably considered. The impact on the wider community, including the effect on public facilities, will also be assessed. This assessment will be in line with the proposals contained in the Cairngorms National Park Sustainable Design Guide. It will be aspirational and encourage innovation, whilst still ensuring adequate protection as set out in other policies in the Local Plan."

[58] A number of policies are then set out. I need refer only to Policy 16, which is in the following terms:

"POLICY 16

Design Standards for Development

Design of all development will seek, where appropriate, to:

(a) minimise the effect of the development on climate change;

(b) reflect and reinforce the traditional patters and character of the surrounding area and reinforce the local vernacular and local distinctiveness, whilst encouraging innovation in design and use of materials;

(c) use materials and landscaping that will complement the setting of the development;

(d) demonstrate sustainable use of resources (including the minimisation of energy, waste and water usage) throughout construction, within the future maintenance arrangements, and for any decommissioning which may be necessary;

(e) enable the storage, segregation and collection of recyclable materials and make provision for composting;

(f) reduce the need to travel;

(g) protect the amenity enjoyed by neighbouring properties and all proposals will be designed to help create environments that can be enjoyed by everyone;

(h) be in accord with the design standards and palette of materials as set out in the Sustainable Design Guide and any other Supplementary Planning Guidance produced relating to design for new developments;

All proposals must be accompanies by a design statement which sets out how the requirement of the policy have been met."

[59] Part of the Chapter, beginning at para.4.19, is devoted to "Housing". The opening paragraphs of that part set out the strategic and other considerations informing the policy adopted in the Local Plan.

"4.19 The promotion of sustainable economic and social development of the Cairngorms National Park's communities is one of the aims of the National Parks (Scotland) Act 2000, and is borne out in the National Park Plan through the strategic objectives for Sustainable Communities and Housing. The National Park Plan is material in the planning process as it operates within the Park, and it influences both the Local Plan policies and consideration of planning applications.

4.20 To achieve the long-term vision for the Cairngorms National Park set through the National Park Plan, there is a recognised need for communities to be sustainable in social, economic and environmental terms. The need to ensure greater access to affordable and good quality housing is key to supporting these communities. It is acknowledged within the National Park Plan that the population of the Cairngorms National Park is expected to rise and that there are likely to be more households seeking accommodation. The structure of the population is forecast to be an ageing one, and combined with this many young people, and those on low and modest incomes, will continue to have increasing difficulty in accessing housing. The Cairngorms National Park Plan also recognises the need for sustainable design in housing, and highlights the strategic role of the larger settlements in the Park.

Strategic Guidance

4.21 Although the Cairngorms National Park is covered by four local authorities and four Structure Plans, only two areas within the Park are extensive enough for the Structure Plans to provide specific direction about likely housing requirements.

4.22 The Highland Structure Plan 2001 sets a target of land for 1750 dwellings in Badenoch and Strathspey for the period 1998-2017 ... It acknowledged that in order to meet that land supply, a new community at Cambusmore ... would require infrastructure investment. North East Together (NEST) 2001-2016, shows the Cairngorms National Park at the periphery of its rural housing market area. Current reviews of housing need within Aberdeen city and shire continue, and exclude the National Park, but do indicate that the need for additional housing, particularly affordable provision, continues to grow. Both the structure plans pre-date the designation of the Park and the production of the Cairngorms National Park Plan.

4.23 In addition to the policies and allocations set through the housing section, the Local Plan must also work towards achieving the objectives of the local housing strategies which exist within the Park, and take relevant account of the current legislation and guidance regarding housing provision. This includes SPP Planning Advice Note 72 Housing in the Countryside, Planning Advice Note 74 Affordable Housing, and the Homelessness etc. (Scotland) Act 2003.

The Housing Issues in the Cairngorms National Park

4.24 New housing is important for a wide variety of social and economic reasons, but at its most basic, housing should provide comfortable, secure and healthy homes for people. The need for new housing comes from changes in the population such as new households being formed, the migration of new households into an area, and the movement of households within the housing market. New housing is needed to provide homes for a backlog of households who have been unable to access the open market, as well as for new households that will be formed in the future in the Park.

4.25 To investigate the demands on housing within the Cairngorms National Park two pieces of work were commissioned. The first on housing need and building land ... and the second on affordable housing .... Housing demand is related to the ability and interest of households to fund their aspirations for housing. Much of this demand is met through existing housing stock, but new housing can improve choice and provide for particular requirements that are not available in existing housing stock.

4.26 In recent years, a number of factors have impacted on the availability of dwellings to meet the housing need. This issue has been recognised as a national problem and not one solely faced in the National Park. The key factors affecting the market include, a reduction in the number of social rented, privately rented and cheaper owner occupier dwellings; a slow turn over in social rented dwellings; growth in second home ownership and holiday let purchases; and growth in commuting outwith the housing area. Recent issues relating to the provision of infrastructure have also resulted in less new dwellings becoming available than were envisaged in previous Local Plans. House prices and private sector rents have risen, income levels have failed to keep pace with rises in cost, and therefore more households living and working in the National Park are having difficulty in accessing a home.

4.27 As a result of this reduced availability of housing in traditionally affordable sectors, and resultant inflated costs, new housing provision has an increasing role to play in providing the affordable housing for rent that a proportion of the population will always require. It must also provide a range of opportunities for those on modest incomes to enter the housing market, through Low Cost Home Ownership (LCHO) or other mechanisms, and a balance of sizes of properties that allows realistic movement within the open market. ...

4.30 Population and household projections for the Cairngorms National Park have been prepared for the Park itself and for the Badenoch and Strathspey part of the Park (the area with the largest population and most dynamic economy). These are based on past trends in society, and assumptions about likely future conditions, and give an indication of the likely changes that may occur and should be planned for. The projections suggest that the population of the National Park is likely to remain constant, or rise slightly, over the period 2006-2016. It is expected that over this period, more of the population will form smaller households of single persons, single parents and households of only two adults. This is likely to lead to an increase in the number of households in the Park of between approximately 750 and 950. To ensure a flexible approach is taken, which can react to unforeseen circumstances, the higher figure will be used.

4.31 The Cairngorms National Park therefore faces a dilemma in its high need and demand for affordable housing from within the communities living and working in the Park. Reductions in the availability of funding to build the numbers of dwellings required by those communities, is coupled with many communities requiring a wider range of housing options than conventional social housing provides, with a greater emphasis on housing those in need locally. The Cairngorms National Park Authority, local authorities, public subsidy providers, landowners, developers and housing associations need to work together to provide housing to meet everyone's needs.

Housing Land Requirement

4.32 The Cairngorms National Park Plan sets the strategic direction for the Local Plan for housing. It establishes: 'The need to ensure greater access to affordable and good quality housing to help create and maintain sustainable communities is a key challenge in the National Park'. One of the strategic objectives directs the Local Plan to make appropriate provision for land for housing, in particular to meet the need to increase the accessibility of rented and owned houses to meet the needs of communities throughout the Park.

4.33 The Scottish Government, through Scottish Planning Policy (SPP), gives its commitment to increasing the supply of new homes and, to achieve this, requires the planning system to identify a generous supply of land for the provision of a range of housing in the right places.

4.34 SPP goes on to require that the identification of land for housing in development plans should be effective and capable of development to meet the housing land requirement for a minimum of five years at all times. The use of housing land audits is recommended as the way to monitor the availability of effective sites, the progress of sites through the planning process and housing completions. Effective sites are sites which, within the five-year period beyond the date of the housing land audit, can be developed for housing and will be free of constraints. The constraints listed are ownership, physical, contamination, deficit funding, marketability, infrastructure and land use. This is the definition used in drawing up the housing land audits.

4.35 To this end, Appendix 2, Tables 1-4 (see p145), set out the most up-to-date position regarding the effective supply of sites, as identified in the local authority Housing Land Audits and within this Local Plan. From these, it is clear that the Local Plan must provide sufficient land to provide 774 units to meet the need to 2016.

4.36 The Cairngorms National Park Authority is required to allocate sufficient land to provide an effective supply of land for a five-year period at all times. The Local Plan covers the period 2006 - 2016. To ensure an effective five year supply of land is provided during the last half of the Local Plan period, the Cairngorms National Park Authority must look beyond 2016.

4.37 Table 4 sets out those sites which are being taken forward in this Local Plan to meet the housing need in accordance with the need identified in Table 3, and the requirement to look beyond 2016 in ensuring a five year supply of effective land at all times. On this basis, the Local Plan allocates sufficient land for 834 units. The allocation will be monitored annually to ensure the Local Plan is supplying the required five-year supply at the time of each annual housing audit.

Table 1 - Baseline effective housing land supply at the commencement of the Local Plan preparation.

Table 2 - The most current information regarding completions.

Table 3 - Current effective land supply.

Table 4 - Current effective land supply reflecting the Post Inquiry Modifications.

This table provides the basis for all allocations in the Local Plan.

The Local Plan Housing Policies

4.38 The policies within the Local Plan inform how allocated sites develop and how and where other developments occur. The approach taken aims to create a balance of development opportunities within the Park, allowing for a variety of scales of development to meet local needs, thus supporting sustainable communities and their economies. These policies also provide the basis for development briefs on many sites which will be used to add detail to allocations, in terms of design, scale of development, particular design requirements to take account of individual circumstances, and other detail which would not be appropriate for the Local Plan. The policies are integral to the delivery of housing for the Park's communities, as they will secure the affordable housing required and manage the increased land supply."

[60] A number of policies are then identified.(Policies 21 - 24). Policy 20 is in the following terms:

"POLICY 20

Housing Development within Settlements

Settlement boundaries have been identified which indicate the extent to which these settlements may expand during the Local Plan period and new housing development should be contained within these boundaries. Housing proposals within these settlement boundaries will be considered favourably where the development:

(a) occurs within an allocated site identified within the proposals' maps; or

(b) is compatible with existing and adjacent land uses, and comprises infilling, conversion, small scale development, the use of derelict or underused land or the redevelopment of land.

The proposal should reinforce and enhance the character of the settlement, and accommodate within the development site appropriate amenity space, and parking and access arrangements."

The following paragraphs within that Chapter of the Local Plan seek to explain and justify the policy:

"Background and Justification

This policy supports the Cairngorms National Park Plan's strategic objectives for:

• Landscape, Built and Historic Environment

• Sustainable Communities

• Housing

4.49 Within the proposals' maps of the Local Plan ... a series of settlements are identified, each of which has an identified settlement boundary. The policy provides for the assessment of housing development proposals made within those settlement boundaries. This includes both sites identified within the proposals' maps as being allocated for housing development, and also windfall sites which can provide opportunities for new housing on smaller sites not identified on the proposals' maps.

4.50 Creating quality residential environments, which support sustainable and thriving communities, is key to the delivery of the housing objective contained within the National Park Plan. This must be matched with the sustainable use of resources, integration with services and facilities, and promotion of highest standards in design and environmental quality. The reinforcement of current settlement patterns found across the Park is key to this. The policy will allow for growth in areas in a sustainable way which best uses existing resources, while allowing choice and incremental growth to meet local demand.

4.51 The development of such sites should not result in the loss of amenity of surrounding land uses and should be readily serviced.

Implementation and Monitoring

4.52 This policy will be used to allow the development of housing within settlements which reinforces and enhances the character of the settlement. Settlements with a particular pattern of development, such as the planned village of Tomintoul, and the use of bothies in Braemar, should be protected. Developments should be well designed, should not have any adverse impact on the features of natural or cultural heritage importance within the settlement boundary, and should complement the existing scale, materials, and landscaping. Development should not result in the loss of amenity of surrounding land uses and should be readily serviced. For sites allocated in the proposals' maps, the Cairngorms National Park Authority will work closely with developers and partners to produce and agree development briefs which detail the approach to be used in developing these key sites.

4.53 In developing housing proposals within settlements, it will be expected that a range of house sizes is provided to reflect the needs of the communities of the Park. Proposals should take into account local community needs surveys, local housing needs studies, local waiting lists or any other information on local housing need collated by the Cairngorms National Park Authority or local authority within the past three years.

4.54 This approach endeavours to secure a supply of smaller units while still retaining the financial viability of developments. The principle of achieving a sustainable balance of house sizes will apply to both affordable housing and open market housing.

4.55 The effects of this policy will be monitored through review of planning consents and housing completions within settlement boundaries."

[61] The remainder of Chapter 4 deals with matters such as economic development, transport and communications (Policies 25 - 32).

Chapter 5

[62] I need not say anything about any part of Chapter 5, the theme of which is "Enjoying and Understanding the Cairngorms National Park" and which sets out Policies 32 - 36.

Chapter 6

[63] Chapter 6 is concerned with "Settlement Proposals". The introductory paragraphs explain the proposals for strategic, intermediate and rural settlements:

"6.2 A hierarchy of settlements is identified, including strategic, intermediate and rural settlements. The majority of development and provision of facilities should be provided within strategic settlements. This is supportive of sustainable approaches to site selection and ensures that the key areas of growth are focused in a number of areas where development pressure can be managed appropriately. Within intermediate settlements, developments should support the local communities and ensure their sustainability for the future. Small areas of housing land are included for this purpose. Within rural settlements, there are opportunities for limited growth which helps consolidate the settlement. New facilities which support the community will also be encouraged. Outwith these recognised settlements, development proposals will be considered against other policies in the Local Plan. A more flexible approach is therefore available to well designed schemes which have a particular locational need and which support the sustainability of local dispersed communities.

6.3 The Local Plan identifies proposals for new uses of land and land where key uses support and maintain the sustainable communities found in settlements across the Park. Existing uses of land remain vitally important to the Park, and the Local Plan will resist proposals to change from the existing use to another without clear justification and suitable alternatives being provided. For example, it is assumed that existing business sites will continue as business sites, and existing community facilities, such as playing fields, parks, community halls or other facilities, will be retained as community facilities of equal or greater value to the community.

6.4 Three key proposal types have been identified:

• Housing

• Economic Development

• Community

Within these proposal types, mixed uses which support sustainable developments and communities will also be supported where evidence indicates this to be the most appropriate way to take forward development proposals. In addition, key areas of open space and land, which contributes to the setting of settlements, is identified as 'Environment'.

6.5 Settlement boundaries are identified, outwith which it is expected that proposals will require justification for their selected location. Where no locational need exists, development on the periphery of settlements will be resisted. All proposals must consolidate the existing urban form, where it exists, and not result in ribbon development or sprawl of development into the countryside. Village and town centre areas are also identified where relevant, and illustrate any designations that may influence the detail of development proposals.

Housing

6.6 Housing sites are proposed where strategic sites have been identified. Development of these sites must comply with the policies of the Local Plan and any specific requirements for the site noted in the proposal text. The identification of these sites within settlements does not preclude the development of other windfall sites, both elsewhere within settlements and in other locations within the Park.

6.7 The sites identified form a five year land supply for the Local Plan, with larger sites in the main settlements and An Camas Mòr, providing a basis for the medium and longer term land supply. Smaller settlements have only a five-year housing land supply, but additional sites for longer term supply will be identified through housing land audits and review of the Local Plan.

6.8 The proposals have indicative house numbers attached to each site that should be used as a guide to the capacity of the site. However, proposals should not be constrained by these figures and should seek to create attractive urban environments, with a range of house designs working within the site."

[64] Having dealt with Housing in paras 6.6 - 6.8, the Chapter then goes on to deal in a similar way with Economic Development, Community and Environment. It then describes in detail the proposed settlements within the National Park. They include the settlements which are the subject of this appeal, namely An Camas Mor and Kingussie, which are strategic settlements, and Carr-Bridge and Nethy Bridge, which are intermediate settlements within the hierarchy. I describe these in more detail, in the order in which they appear in the Grounds of Appeal, in the next section of this Opinion.

THE SETTLEMENT PROPOSALS CHALLENGED IN THIS APPEAL

NETHY BRIDGE

[65] Nethy Bridge is described as an intermediate settlement. The policies challenged are NB/H2, an allocation for 40 dwelling houses, and NB/ED1, an allocation for business units. Although the focus was necessarily on these two policies, it is important to put these in context by setting out the whole of the section dealing with Nethy Bridge.

[66] The text explaining the proposals has to be read alongside the map showing the location of the particular sites. The relevant map here shows the existing village, with houses running approximately east-west along both sides of the river Nethy but, in the main, separated from the river banks by open green spaces. A number of these green spaces, both along the river banks and to the north of the village are marked "ENV" on the map, to indicate that they will be protected from adverse development. There is a small site (only 0.47Ha in area) to the west of the village near to existing playing fields which is marked "H1", the letter "H" indicating that it is regarded as suitable for housing. There is no challenge to this site. Nearby, to the west of the playing fields, is an area marked "C1", to indicate that it is for community use and will be protected from development. H2, which is the subject of challenge, comprises two larger sites extending north and east from the eastern end of the village. Another site, "ED1" ("ED" standing for economic development), which is also the subject of challenge, is a relatively small site (0.76Ha) to the east of the easternmost H2 site.

[67] With that summary, I shall set out the whole of the relevant text relating to the Nethy Bridge proposals.

"Nethy Bridge

Nethy Bridge is an intermediate settlement in the settlement hierarchy.

PROPOSALS

NB/H1: This 0.47Ha site, opposite the football pitch, has detailed planning consent for 13 amenity dwellings. Part of this site lies within SEPA's indicative 1 in 200 year flood risk area. A detailed flood risk assessment will be required to accompany any further development proposal for this site.

NB/H2: These two sites have outline consent for a total of 40 dwellings. Development on these sites will retain enough woodland to allow for movement of species between areas of woodland to the sides of the sites, and retain the woodland setting of this part of the village. A small water course runs through the site and potential flood risk has not be (sic) adequately quantified. A flood risk assessment may be required in support of any further planning application or reserved matters.

NB/ED1: This 0.76Ha site adjacent to H2 is identified for business use. Any development of the site will need to take account of its site within the woodland and at an entry point to the village. Development of this site will retain enough woodland to allow for movement of species between areas of woodland to the sides of the sites, and to retain the woodland setting of this part of the village.

NB/C1: This 1.09Ha site west of the playing fields, which plays an important role in supporting the Abernethy Games, is identified for community use and will be protected from development.

NB/Env: A number of open spaces within Nethy Bridge are identified as contributing to the setting of the village and will be protected from adverse development. Open space adjacent to the Mountview Hotel is also protected by means of a planning condition.

Mixed uses which support sustainable developments and communities will also be supported where evidence indicates this to be the most appropriate way to take forward proposals.

There is a need to review the level of development which is permitted in Nethy Bridge. To complete this work in a comprehensive way, and to allow full engagement of the local community, the Cairngorms National Park Authority will work with partners to produce a masterplan for the village. This will be drawn up in consultation with the community and key stakeholders."

As indicated above, the allocations which are challenged in this appeal are NB/H2 and NB/ED1.

CARR-BRIDGE

[68] Carr-Bridge is also described as an intermediate settlement. Again I shall set out the whole of the section on Carr-Bridge.

"Carr-Bridge

Carr-Bridge is an intermediate settlement in the settlement hierarchy. The village services currently include a school, shops, tourist facilities and some industrial-type activities.

PROPOSALS

C/H1: This site has an outline planning permission for up to 117 dwellings and a detailed application is now with the Cairngorms National Park Authority for the development of this number across the site. This will assist in providing housing for this Local Plan and its housing needs. The site is broken up by an area of bog woodland habitat and the entire area has a range of habitats and UK biodiversity action plan species that need to be safeguarded within the development.

C/ED1: The existing and vacant business/ industrial sites south west of the A9 are identified for business uses.

C/ED2: The site provides an important contribution to the local economic position, and should be retained. Part of this site lies within SEPA's indicative 1 in 200 year flood risk area. A detailed flood risk assessment may be required to accompany any further development proposals for this site.

C/ED3: Landmark Forest Adventure Park plays an extremely important role in supporting the economy of both the settlement and the wider area, and appropriate proposals to enhance this facility will be supported.

C/Env: A number of open spaces and land, which contribute to the setting of Carr-Bridge, are identified and will be protected from development.

Mixed uses which support sustainable developments and communities will also be supported where evidence indicates this to be the most appropriate way to take forward proposals."

The allocation challenged is C/H1, an allocation for up to 117 dwelling houses.

AN CAMAS MOR

[69] An Camas Mor is described as a strategic settlement. Again I shall set out the whole section.

"An Camas Mor

I. The Local Plan continues the proposal for a new sustainable community at Cambusmore (now named An Camas Mòr), on the east side of the river Spey opposite Aviemore, that was identified in the Badenoch and Strathspey Local Plan 1997 and in the Highland Structure Plan 2001.

II The Local Plan identifies an indicative settlement boundary for the site, within which it is expected that development of a community of up to 1500 homes could be developed over time. The Cairngorms National Park Authority will continue to work closely with the developers for the site, interested parties and consultees, to ensure realistic and appropriate timescales are set and adhered to, and that through such partnership workings, the effectiveness of the site is realised.

III Development of the site will require a detailed transport assessment and this should examine the various access issues facing the site, including the impact of the development on the trunk road and local road network, the impact on the nearby rail network, and the need for non-motorised access across the river Spey to link the community with Aviemore.

IV In addition to housing, the settlement will provide commercial and community uses. The Cairngorms National Park Authority will work with partners to produce a detailed masterplan for the site. Within this, the requirements to create a sustainable community, including economic development opportunities, community facilities and other forms of development, will be detailed within design guidance for all forms of development, which should attain the highest design and sustainable development credentials. The masterplan will also include mitigation measures required as a result of the development.

V The development of An Camas Mòr presents an excellent opportunity to provide opportunities for large and small scale developers and builders to work together to bring forward the delivery of the settlement. This will be recognised in the masterplan.

VI Development of the An Camas Mòr site has potential to have significant effects on the river Spey SAC. Permission for development will only be permitted if the planning authority is satisfied that proposals have been designed to the highest standards that do not adversely affect the integrity of the river Spey SAC.

VII The whole of An Camas Mòr site sits within the Cairngorm Mountains National Scenic Area. As such, development will only be permitted if the planning authority is satisfied that proposals have been designed to the highest standards, that avoid and mitigate any significant adverse effects on the environment and protect the overall integrity of the Cairngorm Mountains National Scenic Area.

VIII The development of the site must accord with the approved development principles which were approved by the Cairngorms National Park Authority in December 2008 (see Appendix 4, p159).

IX Mixed uses, which support sustainable developments and communities, will also be supported where evidence indicates this to be the most appropriate way to take forward proposals.

Please note: An Camas Mòr falls wholly within a National Scenic Area designation."

The challenge in these proceedings is to Policy II, which identifies a potential settlement of up to 1500 homes over time.

KINGUSSIE

[70] Kingussie is also described in the Local Plan as a strategic settlement. It is identified as a main settlement in the Cairngorms National Park Plan. Once again I shall set out the whole section to provide context.

"Kingussie

Kingussie is a strategic settlement within the settlement hierarchy and it is identified as a main settlement in the Cairngorms National Park Plan.

PROPOSALS

KG/H1

I. This 16.05Ha site would provide land for short and longer term housing supply in Kingussie. It could provide land for around 300 dwellings, with 75 of these provided during the life of the Local Plan. The phasing of the site will need to take into account access provision to the site and the capacity of the existing road network.

II. The site runs north from the A86 by Craig an Darach towards Kerrow Farm and west from Kerrow Farm to the rear of properties bounding Ardbroilach Road, and is bounded by forestry to the north. The site is currently improved grassland grazed by livestock.

III. Access to this site should be taken from the local road network. A traffic impact assessment will be required to ensure development of this site ,and others in neighbouring Newtonmore, does not create an unacceptable cumulative impact on the A86 or A9.

IV. The Cairngorms National Park Authority will work with partners to produce a masterplan for the site to ensure effective provision of housing. This masterplan should clarify the position regarding key infrastructure issues. The development of this site presents an excellent opportunity to provide opportunities for large and small scale developers and builders to work together to bring forward the delivery of the proposal. This will be recognised in the masterplan.

KG/ED1: Land to the east of the settlement provides opportunity for economic development in support of the settlement and its sustainable community. A prominent site, the design of any development will be to the highest standards and both the siting and design should integrate with the landscape.

KG/ED2: A small area of land to the west of Spey Street and adjacent to the railway line could also provide some opportunity to support the economic development of the settlement. Part of this site lies within SEPA's indicative 1 in 200 year flood risk area. A detailed flood risk assessment will therefore be required to accompany any development proposals for this site.

KG/Env: A number of open spaces and land, which contribute to the setting of Kingussie, are identified and will be protected from adverse development.

Mixed uses which support sustainable developments and communities will also be supported where evidence indicates this to be the most appropriate way to take forward proposals."

The policy under attack in these proceedings is KG/H1, which proposes a development of 300 dwelling houses, of which 75 will be provided during the life of the Local Plan.

GENERAL GROUNDS OF CHALLENGE

[71] There was no dispute in principle about the grounds upon which the court could properly review the decision of CNPA to adopt the Local Plan or, if different, to include within it the disputed proposals. These were, in essence, illegality/unlawfulness, Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223), and a failure to give adequate reasons.

Illegality and Wednesbury unreasonableness

[72] Illegality or unlawfulness is subsumed within the classic Wednesbury test. The same test applies in Scotland. I was referred to the well-known formulation of the test in Scotland by the Lord President (Emslie) in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347-8:

"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account. Similarly it will fall to be quashed on that ground if, where it is one for which a factual basis is required, there is no proper basis in fact to support it. It will also fall to be quashed if it, or any condition imposed in relation to a grant of planning permission, is so unreasonable that no reasonable Secretary of State could have reached or imposed it. These propositions, and others which are not of relevance for the purposes of these appeals, are, it appears to me, amply vouched by many decided cases including Associated Provincial Picture Houses Ltd. v Wednesbury Corporation, Ashbridge Investments Ltd. v Minister of Housing and Local Government, Anisminic v Foreign Compensation Commission, Coleen Properties Ltd. v Minister of Housing and Local Government, British Airports Authority v Secretary of State for Scotland, and Secretary of State for Education and Science v Tameside Metropolitan Borough Council."

That passage remains good law, with the qualification that, in light of the remarks of Lord Hope in Eba v Advocate General for Scotland [2011] 3 WLR 149 at paras.29-34, the power to correct may cover errors of law which are intra vires as well as those which are ultra vires. That question does not arise for decision in this case.

[73] A number of cases emphasise that matters of planning judgement are for the statutory decision maker, in this case CNPA. One such case is City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33. At p.44, in a passage with which the other members of the House of Lords agreed, Lord Clyde said this, referring to s.18A of the Town and Country Planning (Scotland) Act 1972 which introduced a requirement that a priority be given to the development plan in the determination of planning matters:

"... the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell LJ observed in Loup v Secretary of State for the Environment at p 186: 'What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations.' Those matters are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues.

Correspondingly the power of the court to intervene remains in principle the same as ever. That power is a power to challenge the validity of the decision. The grounds in the context of planning decisions are contained in sec 233 of the Act of 1972, namely that the action is not within the powers of the Act, or that there has been a failure to comply with some relevant requirement. The substance of the former of these grounds is too well established to require repetition here. Reference may be made to the often quoted formulation by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland at pp 347-348. Section 18A has not innovated upon the principle that the court is concerned only with the legality of the decision-making process. As Lord Hoffmann observed in Tesco Stores v Secretary of State for the Environment at p 780: 'If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.'"

The remarks of Lord Hoffman in Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759 at p.780, quoted with approval by Lord Clyde in the passage cited above, were particularly relied on by the Respondents to this appeal.

[74] It was submitted on behalf of the respondents that where, as here, the decision maker is a body created for the very purpose of determining policy in a specialist area, having within its ranks (or within easy access) specialists in the relevant area, the court should be slow to intervene. Even where the statutory scheme provides for a particular approach to be taken to the decision making process, the matter remains one of judgement, to be exercised by the decision maker. Provided that he has had regard to the relevant matter, for example the priority to be given to the development plan, it is not for the court to assess whether the decision maker has given it sufficient weight as against other competing and material considerations: see per Lord Hope at p.36A and F in City of Edinburgh Council. Nor, provided that there was evidence upon which he could reach a particular conclusion, will the court re-examine his conclusion in the absence of a suggestion of irrationality: per Lord Clyde in City of Edinburgh Council at p.49C. On matters of planning judgement, the court's only role is to supervise the exercise of that judgement by the authority according to the conventional public law (Wednesbury) test. In this context, in addition to the cases already mentioned, I was also referred to Persimmon Homes (Thames Valley) Ltd v Stevenage Borough Council [2006] 1 WLR 334 at para.21 and Skye Windfarm Action Group Limited v Highland Council [2008] CSOH 19 (Lord Hodge) at paras.[41]-[42].

[75] None of this was challenged in principle by the appellants, and I accept it, subject to the qualification (if it is a qualification), as shown by the recent decision of the Supreme Court in Tesco Stores Ltd. v Dundee City Council [2012] UKSC 13 (21 March 2012), that it is always necessary to distinguish between questions of law (i.e. how to identify the question to be asked) and questions of planning judgement (i.e. how to answer the question which has been correctly identified).

[76] In addition, a number of submissions of a general kind were made by the respondents in connection with the approach to be adopted by the court. These were not controversial, and I agree with them. They were as follows.

[77] First, it was submitted that the documents, such as the National Park Plan, the Local Plan, and the various Assessments and Reports informing their preparation and production, require to be read as a whole. It is "an entirely wrong approach" and an illegitimate method of criticism to concentrate on one part only: per Lord Justice Clerk Gill in Uprichard v Scottish Ministers [2011] CSIH 59 at para.[29]. It is for that reason that I have set out so extensively material parts of the CNPP 2007 and the Local Plan.

[78] Second, the reasons given by CNPA, and others, have to be assessed on the basis that they are addressed to persons who are familiar with the background and the issues: Uprichard v Scottish Ministers at para.[26].

[79] Third, those reasons should not be subjected to "detailed analytic study of the precise words and phrases which have been used". Such an exercise is "quite inappropriate to an understanding of a planning decision": City of Edinburgh Council per Lord Clyde at p.49C.

[80] Fourth, when considering a report by planning officers or others which are subsequently considered by Committees, it is necessary to bear in mind that such a report is not to be construed as if it were a statute. It is the overall fairness of the report which has to be considered: Oxton Farms, Samuel Smith Old Brewery (Tadcaster) v Selby District Council, Persimmon Homes (Yorkshire) Limited (Court of Appeal, unreported, 18 April 1997) per Pill LJ (a decision cited with approval in Tesco Stores Limited v Dundee & others [2011] CSIH 9 at para.[41]). An application for judicial review based on criticisms of a planning officer's report "will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken": Oxton Farms per Judge LJ. And on questions of planning judgement, it is not objectively possible to prove that the views of a reporter are right or wrong, and CNPA cannot be expected to attempt to do so: per Pill LJ in Gillenden DC Ltd v Surrey County Council (1997) 74 P. & C.R. 119 at p.125.

[81] Fifth, the Report of the Reporters following on the Public Inquiry is not binding on the National Park Authority. In other words, CNPA are entitled to disagree with the Reporters. Reasons are required in such circumstances, but the extent of what is required by way of reasons will vary with the type of issue about which there is disagreement.

Duty to give reasons

[82] I have mentioned the obligation on the decision maker in various circumstances to give reasons for his decision. The alleged failure to give adequate reasons was among the main grounds of challenge to the decision to adopt the Local Plan, or at least those parts of it of which complaint is made. It was submitted on behalf of the appellants that since the Reporters had, in effect, recommended that the policies complained of should not be included in the Local Plan, or should at least be substantially modified, and CNPA had not accepted these recommendations, it was incumbent upon CNPA to give proper, adequate and intelligible reasons for not accepting the recommendations. This was particularly so, it was submitted, where the Reporters had raised issues of fact and issues relating to inadequate investigation. I shall return to deal with the factual premise underlying the submission, but it is convenient to consider at this stage the general law relating to the giving of reasons.

[83] In terms of Regulation 35 of the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 (SI 1983 No.1590) ("the 1983 Regulations") CNPA was required to set out reasons for its decisions on the issues before it. Regulation 35(1) provides:

"Where, for the purpose of considering objections duly made to a local plan, a local inquiry or other hearing has been held, the planning authority who prepared the plan shall, as part of the consideration of the objections, consider the report of the persons appointed to hold the inquiry or hearing and decide whether or not to take any action as respects the plan in the light of the report and each recommendation, if any, contained therein; and the authority shall prepare a statement of their decisions, giving reasons therefor."

The respondents accepted that the reasons must be proper, adequate and intelligible. In this context the word "adequate" is intended as a reference not to the quality of the reasons given by the decision maker but to their sufficiency to explain the basis on which the decision was made. They submitted that the reasons must leave the informed reader and the court in no real and substantial doubt as to what the reasons were and what were the material considerations which were taken into account in reaching them. The informed reader test meant that the consideration of the reasoning was not to be on some abstract basis but rather in the context that the parties are to be taken as understanding the issues. For a reasons challenge to be successful, they submitted, the reasons must be substantially wrong or inadequate and the appellants must have been substantially prejudiced by the deficiency of reasons given.

[84] In the well-known passage from his Opinion in Wordie Property Co Ltd v Secretary of State for Scotland (supra), the Lord President (Emslie) said this (at p.348):

"... 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."

[85] The classic modern summary of the law on this topic is the speech of Lord Brown in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 at paras.35 and 36:

"35. It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.

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."

[86] It is, of course, clear that the reasons may be set out in or amplified by reference to another document. Thus, the reasons may be found in a Planning Officer's report which is adopted by a Committee: see the remarks of Lord Kinclaven in George Moore v East Renfrewshire Council [2005] CSOH 128 at para.105, applying the approach of Sullivan J in R v Mendip District Council ex parte Fabre [2000] JPL 810, 821-2. In the present case they are set out in the Analysis and the Analysis of Responses.

[87] Lord Brown's recognition that his summary would not avoid all need for future citation of authority is borne out in this case. In addition to Wordie and South Bucks, I was referred to the following authorities: Westminster City Council v Greater Portland Estates plc. [1985] 1 AC 661, 673-4, Save Britain's Heritage v Number 1 Poultry Ltd. [1991] 1 WLR 153 per Lord Bridge at p.167, Oxford Diocesan Board of Finance v West Oxfordshire District Council etc [1998] PLCR 370, per Laws J at p.381, Gillenden DC Ltd v Surrey County Council, J Sainsbury plc v Secretary of State for Scotland 1997 SLT 1391 at p.1395E, Hallam Land Management Ltd. at para.[4] and Uprichard v Scottish Ministers at para.[26]. Despite this, there was a considerable measure of agreement between the parties on the question of reasons. However, three small points of difference appeared from the submissions made to me.

(i) The first related to the point, mentioned by Lord Brown, that the reasons are addressed to parties who are well aware of the issues involved and the arguments advanced. A number of cases make the same point: see e.g. Uprichard at para.26. It need not be assumed that their target audience knows nothing and requires everything to be set out at length. The appellants argued that the reasons must be sufficiently full and self-explanatory to be intelligible to the court, which has not been involved in the process. They must make clear what material factors were taken into account. It was submitted that the court cannot rely on a general assumption that CNPA had regard to all relevant material, or placed reliance on some particular aspect, unless the Reasons make clear what was had regard to in the context of responding to the Reporters' Report. In dealing with this submission, I should make it clear that I do not accept that the fact that the court may be called upon to determine the adequacy of the reasons means that those reasons must be expressed in terms which go beyond what is necessary to make them intelligible to the parties who are aware of the issues and arguments. That apart, I suspect that on this point there is nothing of significance between the parties. The content of the reasons, and the extent to which they will require to set out the points in detail, will depend on the context, including the subject matter under consideration and the degree to which the various arguments are already well rehearsed and understood: see per Lord Bridge in Save Britain's Heritage at pp.167-8.

(ii) Second, in a number of places in his arguments Mr Armstrong, for CNPA, referred to the maxim omnia praesumuntur rite esse acta, or the presumption of regularity as it is called in English. He referred to cases such as Kruse v Johnson [1898] 2 QB 91, 99, Morris v Kanssen [1946] AC 459, 475, T C Coombs & Co v IRC [1991] 3 All ER 623, 635-6, South Somerset District Council v Secretary of State [1993] 1 PLR 83, Oxton Farm (supra), Trevelyan v Secretary of State for the Environment [2001] 3 All ER 166 at para.38, and Di Ciacca v Scottish Ministers 2003 SLT 1031. For my part, I do not consider that the application of this maxim, in either language, is likely to assist in the type of case under consideration. The burden is on the appellant to show that the decision maker has failed to take account of some material fact or argument. The presumption of regularity, if it applies, may perhaps indicate that it is for the applicant to persuade the court that the decision is not soundly based. But it is clear, in any event, that that onus is on the applicant, without the need to rely upon the presumption. If it can be shown that the decision, and the reasons given to support that decision, omit all reference to a matter which ought to have played a material part in the decision making process, and would have been expected to be referred to in the reasons if it had been considered, or if they refer to a material fact or matter in such a way that leaves it unclear what view was formed of it, then a reasons challenge will be likely to succeed. If that cannot be shown - and the burden is on the appellant to establish that matter on balance of probabilities - then the reasons challenge will not succeed. In such a case there is no need to rely upon the presumption of regularity; the position will be simply that the alleged irregularity has not been established.

(iii) Third, Lord Brown noted that 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." The appellants relied on the words of the Lord President in Wordie, in a passage on p.348 following upon the passage already quoted above:

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

The respondents submitted that the test was somewhat higher. They quoted Lord Bridge in Save Britain's Heritage at pp.166-8. I do not think it necessary to set out that passage or spend much time on this issue. On the findings I make later in this opinion, the point is academic. However, I tend to agree with Lord Reed in Di Ciacca v Scottish Ministers when he said, at paras.[12] - [16], that he did not consider that there was any inconsistency between Lord Bridge and Lord President Emslie in the passages quoted. He said at para.[16]:

"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'."

Partial or total reduction?

[88] There was some discussion before me as to whether, if the appellants were successful in any part of their submissions, the court could reduce the individual policies or allocations complained of, or whether it ought in those circumstances to reduce the whole of the decision to adopt the Local Plan. It was argued by the respondents that reduction of only some parts of the Local Plan would amount to the court re-writing it. If the appellants were successful in any part of their contentions, it would be better to leave it to CNPA to reconsider the Local Plan as a whole in light of the decision of the court. I was referred in this context to the decision of Lord Malcolm in Hallam Land Management Limited [[2011] CSOH 75 at paras.[21]-[28], and to the Opinion of the Lord Justice-Clerk (Gill), with which the other members of the Court agreed, in Uprichard v The Scottish Ministers and Fife Council [2011] CSIH 59 at para.[33]. It is clearly competent to quash part only on a plan. This is made clear by the concluding words of s.238(2)(b) of the 1997 Act. This was done under earlier legislation, for example in Westminster City Council v Great Portland Estates plc [1985] AC 661 (see p.675). But, as stated in Uprichard, that is likely to be the appropriate course only in exceptional cases. It was there pointed out that in the normal case "none of the provisions of the structure plan can be excised without there being repercussions on other parts of the plan". The same is generally true, in my opinion, of a Local Plan. However, I do not need to decide this point here because it was agreed that, if I were to reach that point in my deliberations, I should put the case out By Order for discussion as to the appropriate interlocutor.

ADDITIONAL GROUNDS OF CHALLENGE

[89] In addition to the general grounds of challenge referred to above, a number of specific arguments were advanced. While each policy in the Local Plan requires to be addressed on its merits, it is convenient to deal with the general points at this stage. If necessary, I can return to them in more detail in the context of the individual policies under consideration.

(1) Section 9(6) National Parks (Scotland) Act 2000 - the duty to give "greater weight" to the aim in s.1(a) of conserving and enhancing the natural and cultural heritage of the area

[90] There is a hierarchy in the aims set out in s.1 of the 2000 Act. The obligation imposed on the National Park authority by s.9(6) of that Act, in the event of an apparent conflict between the aim set out in s.(1)(a) and the other aims, is to give greater weight to the aim set out in s.1(a). Section 1(a) sets out the aim of conserving and enhancing the natural and cultural heritage of the area. The appellants argue that the reasons given by CNPA for not following the Reporters' recommendations in relation to all but one (Kingussie) of the housing policies or allocations under attack in this case show that (a) they did not have this obligation in mind and (b) they did not give greater weight to the aim of conserving and enhancing the natural and cultural heritage of the area. A number of specific points should be mentioned.

[91] First, the appellants contend that the obligation to give greater weight to the s.1(a) aim is an obligation which applies at every level of the Local Plan, both at the overall level and at the level of deciding upon particular housing allocations. The CNPP 2007 identifies the four aims at p.19 and, while emphasising the need to work together for all four aims collectively, recognises that, in the event of conflict between the other aims and that of conserving and enhancing the natural and cultural heritage, greater weight must be given to that latter aim; and see also para.6.6 of the CNPP 2007 which refers to the requirement that development of the sites proposed in the Local Plan "must be consistent with conserving and enhancing the area's special qualities", which include biodiversity and forests and woodlands. The appellants say that whatever is said at that general level or in the CNPP 2007, this is not carried through to the level of the Local Plan or any of the particular housing policies. It is not good enough, they submit, to leave it out at that stage, either on the basis that the point has already been addressed in the CNPP 2007 or, worse, on the basis that it can be addressed at the next stage in considering an application for planning permission in the context of the policies laid down in the Local Plan. By that stage the die is cast; any application for planning permission in areas favoured for residential development by the Local Plan will have a following wind.

[92] The respondents say that this is simply wrong. There is express recognition given in the Local Plan to the four aims and to the need, in the event of conflict between them, to give greater weight to the aim of conserving and enhancing the natural and cultural heritage: see paras.1.3 - 1.4, and see also, for a further consideration of the four aims, paras.1.9 - 1.11. Further, in section 6 of the Local Plan, which deals with Settlement Proposals, there is a reference back in para.6.6 (housing) to the requirement that development of the sites proposed in the Local Plan "must comply with the policies of the Local Plan ...".

[93] On this broad level, I consider that the respondents are correct. There is no failure, either at the stage of the CNPP 2007 or at the stage of formulating the policies in the Local Plan, to recognise the particular weight to be attached to the aim of conserving and enhancing the natural and cultural heritage. On the contrary, the obligation to give greater weight to this aim has been expressly recognised in the Local Plan and carried though, by cross-reference, to the particular proposals on settlements and housing. Whether the appellants can show, in relation to a particular housing policy, that greater weight has not in fact been given to this aim may have to be considered in due course. It may be difficult for them to show this. But, standing the recognition of that obligation in the Local Plan, that is how the matter falls to be considered, with the burden on the appellants to make good their complaint.

[94] Secondly, the appellants argue that it is incumbent on CNPA to show in their reasons that they have had regard to the need to give greater weight to this aim. There is, they say, no reference to the point in the reasons which they give for not accepting the Reporters' recommendations. This is a sub-set of the reasons challenge identified earlier, but it is one which is particularly focussed on the statutory obligation to give greater weight to the aim of conserving and enhancing the natural and cultural heritage. I accept that submission at a very general level. But CNPA satisfy that requirement at that general level. Whether there is a requirement in each case to show a specific recognition of that obligation will depend on the whole circumstances. It will be for the appellants to show that, despite the appropriate sentiments having been expressed at the general level, the facts are such that it looks as though the point may have been overlooked - in which case, if no mention is made of it, it may be assumed that CNPA have overlooked it. It is the details that matter, and I shall consider those details in due course. But it should also be emphasised that the obligation is to give greater weight to the aim of conserving and enhancing the natural and cultural heritage. That greater weight need not necessarily be decisive. Further, greater weight only has to be given to that aim where that aim is in conflict with one or more of the other aims identified in s.1(a) of the Act. The Act contemplates that in many cases there will not be any conflict. The primary goal is to work towards achieving all four aims together. I accept the submission made on behalf of the respondents that it is for CNPA, in the first instance at least, to consider whether there is or is not such a conflict as would bring s.9(6) (the requirement to give greater weight to the aim of conserving and enhancing the natural and cultural heritage) into play, though of course any failure to recognise a conflict would itself be susceptible, in principle at least, to review on Wednesbury grounds.

[95] Third, the appellants argue that, in so far as CNPA rely on the conclusions in the SEA and the Appropriate Assessment that certain aspects of the development would not adversely affect the nature of the site, they are in error, not only because of particular criticisms of the Appropriate Assessment but also because "not adversely affecting the site" is not the test. The test is not: "will it (or might it) adversely affect the nature of the site". That might be relevant if the duty were to give greater weight to conserve the natural heritage, but it is not. The test is: "will it conserve and enhance the mature of the site?" The duty is to give greater weight to the aim of conserving and enhancing it. Given the remarks made above, and the explicit recognition given in the Local Plan to the obligation to give greater weight to that aim, I consider that a criticism on this level is no more than semantic. The court has to look at the substance of CNPA's reasoning, not just to the particular expressions which CNPA has chosen to adopt from other documents which it was required to consider. The court should not be too ready to find that there has been a failure to understand and apply the hierarchy laid down in s.9(6) simply because certain words were or were not used, or because documents relied on by CNPA did not in terms accurately state the test laid down s.1(a) of the Act. But, if it has any force, the point requires more detailed consideration in respect of the facts of each case.

(2) Pre-existing outline planning permission

[96] One issue that arose at various points in the argument, particularly as regards Nethy Bridge and Carr-Bridge, was as to the relevance to the Local Plan of the fact that outline planning permission had already been granted and was in force at the time the Local Plan was prepared. As is apparent from a consideration of the individual housing allocations in the Local Plan of which complaint is made, CNPA justified their decision to designate certain sites as suitable for housing development in part at least by reference to the fact that those sites already had outline permission for housing development. Opponents of the allocations in question contended that development in accordance with the existing outline planning permission faced difficulties, and the Reporters gave some measure of support for that view. If the development for which outline planning permission will not in fact go ahead because of these difficulties, or faces potentially insuperable obstacles, why should the existence of that extant permission be a factor in favour of a proposal for housing on the relevant site? The appellants say it should not.

[97] However, as the arguments developed, this point took on a somewhat different aspect. The judgements that go into formulating the development proposals for inclusion in the Local Plan are judgements based on the weighing of factors laid down in the relevant legislation and planning guidance. That guidance, it was argued, says nothing to justify identifying an area for future housing development just because outline permission has been granted in the past and may still be live. The Local Plan looks to the future. It takes into account policies which may have changed since the outline permission was granted. In an intervention during the submissions on behalf of CNPA, it was expressly accepted by the appellants that the existence of extant planning permission could be a relevant factor in drawing up the Local Plan. This is made clear in any event by the decision of the Inner House in Mackenzie's Trustees v Highland Regional Council 1994 SC 693. The appellants submitted, however, that this should not be taken too far. CNPA had placed too much weight on the existence of that planning consent. To identify an area in the Local Plan as suitable for housing development simply because outline permission has previously been granted and is still live would mean that the content of the Local Plan would be dictated by considerations and policies which did not, or at least might not, reflect current thinking. The considerations and policies that led to the grant of that outline permission would, in effect, be built into the new Local Plan by default; and by that route would continue to govern well beyond the expiry of the outline permission. That could not be right. The right approach, it was argued, was to formulate the policies in the Local Plan without regard to the extant outline permission for housing development (though in marginal cases it might provide the basis for preferring one site to another), recognising, of course, as one must, that the existence of outline planning permission might, if the development for which outline permission had been given was practical, result in a development being carried out which was contrary to the policies of the Local Plan.

[98] To my mind there is some force in this point. An application for planning consent, whether outline or detailed, will be considered under reference to existing planning policy. Once granted, that consent remains in existence for some years in the future, even though the planning policies (on which the decision to grant it was made) may have changed. A subsequent change of planning policies does not have any direct impact on that consent. This is made clear in the Opinion of the court delivered by the Lord President (Hope) in Mackenzie's Trustees v Highland Regional Council, a case in which the challenge to the Local Plan proceeded on the basis that it had failed to have sufficient regard to the existence of extant planning permission. If outline consent has been granted for a particular development, it can be anticipated that detailed planning permission for a development consistent with that outline consent will in due course be granted provided (i) that an application is made and (ii) that the detailed proposals satisfy other existing criteria. Those two reservations are important. There might be a number of reasons, whether commercial or practical, why the development idea is not pursued and an application for detailed permission is not made; or an application for detailed permission might be refused if the detailed proposal did not comply in some material respect with some relevant environmental consideration. Accordingly, it cannot be assumed that the existence of outline permission will necessarily, or even probably, result in a development going ahead. The Local Plan is designed to set out relevant planning considerations for a period of 5 years into the future. Planning permission in existence on the date when the Local Plan comes into force may expire within a shorter period of that date. Once it has expired, there can be no expectation that planning permission will be granted of new simply because there had previously been a grant of planning permission. Planning policy might have changed, and any new application will have to be considered in line with existing policy at the time of the application, which might then point against a development on that site, for any number of environmental and other reasons. The formulation of policies in the Local Plan requires to be driven, or at least to be informed, by the multi-faceted considerations to which I have referred earlier. If those considerations now point to a conclusion that a particular site is not appropriate for development, it would be wrong in principle for the site to be identified in the Local Plan as suitable for housing development simply because, at the time when the policies in the Local Plan were formulated, there was in existence planning permission for such a development. Such a course would result in the previous planning policies, which had resulted in the grant of permission but which ex hypothesi are no longer considered appropriate, continuing to influence development well beyond the lifetime of the permission which was granted. The mere existence of planning permission for a site would lead to that site being identified in the Local Plan as suitable for development; a further application for permission would then be viewed favourably (and probably granted) in light of the policy set out in the Local Plan; that new planning permission would then influence the content of a future Local Plan; and so on ad infinitum. There would be little chance of the cycle ever being broken.

[99] However, it does not follow from the above that the existence of planning permission will always be irrelevant in the formulation of policies in the Local Plan. The decision in Mackenzie's Trustees v Highland Regional Council makes it clear that it is potentially a relevant factor. The question is one for the judgement of the local authority (here CNPA). The Local Plan has to take account, amongst other things, of the predicted demand for new housing. For example (and it is obviously not the only example), if there are several suitable sites identified for housing development, more than are required to meet the estimated need for housing, those formulating the Local Plan might think it appropriate to give some weight to the fact that one among the several sites is already the subject of planning permission, and therefore that in the interests of continuity and certainty they should include that site rather than one of the others. But that is a matter for them. What they cannot do, in my opinion, is to proceed upon the basis that the existence of planning permission granted under a different regime necessarily outweighs other factors which, in the absence of that, would have led them to reject a particular site as a site suitable for development. I do not consider that they have done that in the present case.

[100] The need to take into account the predicted demand for new housing is one among many obligations placed upon CNPA in formulating the Local Plan. The submission was made on behalf of CNPA that if they were to do this properly they had to approach the matter in light of the fact that in certain areas planning permission had already been granted. If, say, it was predicted that 1,000 new houses were going to be required over the following 5 years, and there was already in existence planning permission for, say, 400 houses on sites within the Park, what was CNPA to do? If they allocated fresh provision for development of 1,000 houses at new sites, ignoring the existing permission, they might find they end up with too many houses being built (the original 400 plus the new 1,000). I can understand the difficulty, though it should be borne in mind that there is always the risk, perhaps a probability, that, for a variety of reasons, the number of houses built will not match the aspirations of the Local Plan. The difficulty is not, however, insuperable. Counsel could suggest no reason why the Local Plan should not both (a) recognise the fact that development might take place in areas for which outline consent already existed (without including such sites in the areas proposed for housing development in the Local Plan) and (b) include proposals for housing development on a number of identified sites, though making some such proposals contingent upon whether or not development did in fact take place on sites for which outline consent had already been granted). That appears to be what was done by the local authority in Mackenzie's Trustees v Highland Regional Council: see the following passage in the Opinion of the court at p.699:

"... There is no doubt that the existing planning permission for development at Stratton farm if implemented will have a material effect on the future development of this part of the area. The council have acknowledged this fact by including an alternative arrangement of land uses resulting from its implementation in a separate inset map."

This might be difficult to work out, and might complicate the Local Plan, but at least it would avoid the risk of perpetuating a presumption in favour of development in a site where, on the hypothesis on which this argument proceeds, in line with current policy housing development should not be encouraged.

(3) Section 14 of the National Parks (Scotland) Act 2000

[101] In exercising functions affecting a National Park (such as the Cairngorms National Park), CNPA must "have regard to" the National Park Plan as adopted (here the CNPP 2007): see s.14 of the 2000 Act. This obligation is reinforced by s.264A of the 1997 Act as amended, which requires, in the exercise of any power under the planning Acts, "special attention" to be paid to "the desirability of exercising the power consistently with the National Park Plan".

[102] It was submitted on behalf of the appellants that, although the Local Plan, where it dealt with Housing, contained extracts from the strategic objectives listed under reference to Sustainable Communities and Housing in the CNPP 2007, it made no reference to the other strategic objectives at sections 5 and 6 of the CNPP 2007. The strategic objectives relating to Housing in section 5.1.2 of the CNPP 2007 were cross-referenced to the matters raised earlier in that section about conserving and enhancing the natural and cultural heritage. Further, at section 6.6 of the CNPP 2007, under reference to housing, it was emphasised that

"the demand for housing must also be managed to ensure high environmental and sustainable standards. Provision must be consistent with conserving and enhancing the area's special qualities ...".

Those special qualities must include the area's distinctive landscape, rich biodiversity and forests and woodlands. The omission of any reference to these other strategies is indicative of CNPA not having regard to these strategies when they formulated the Local Plan housing policies. Having regard to these failures, and to the points noted by the Reporters in respect of the natural heritage and landscape (to which I refer below under reference to each housing allocation which is the subject of challenge in these proceedings) they submitted that it was clear that, in formulating the housing policies and allocations presently under review, CNPA had not had regard to the CNPP 2007, contrary to s.14 of the 2000 Act. Further, contrary to s.264A of the 1997 Act, they had not paid special attention to the desirability of exercising the power consistently with CNPP 2007. Had they done so, the housing allocations which were the subject of challenge would not have been included in the local plan. Accordingly CNPA acted unlawfully and/or unreasonably.

[103] It was accepted by the respondents that the CNPP 2007 set out the National Park authority's policy for the management of the Park and set out the strategic contexts, objectives and outcomes for the Park. It had an input into the development plan and planning decisions as it provided an overarching context for development planning and management within the National Park. Reliance was again placed upon the maxim omnia praesumuntur rite esse acta. It was submitted that the matter should be judged on Wednesbury grounds. It was also submitted that, when considering whether CNPA had complied with its duty under the 2000 Act in adopting the Local Plan, the reasons for not following the Reporters' recommendations should not be considered in isolation; regard should be had to the whole of the Local Plan and the analysis that was carried out of that plan. The relevant sections of the Local Plan showed clearly that proper consideration had been given to the CNPP 2007. There were express references in the CNPP 2007 to particular policies and strategic objectives. However, it had to be stressed that there was no statutory requirement expressly to cross link policies and proposals in the Local Plan with those in the Park Plan, and nor was there any statutory requirement to repeat elements of the Park Plan in the Local Plan.

[104] The respondents stressed that the strategic objectives for housing in the CNPP 2007 were not all focussed on conservation issues. Emphasis was placed on the need to ensure greater access to affordable and good quality housing (both for owner occupiers and for those renting through social and private landlords), in order to help create and maintain sustainable communities. There was a projected increase in population, accompanied by a trend to smaller household size. The demand for housing in the area was likely to increase between 2006 and 2016 by between 600 and 1000 households based on current trends. The aim was to reduce the gap between housing need and supply to meet community needs. The action programme in the CNPP 2007 (section 6 - Priorities for Action) required provision to be made in the Local Plan for policies for housing and land to be identified for housing development. The particular development proposals were legitimately influenced by factors such as existing outline planning consent and also their relationship to the existing main settlements of the National Park, including Aviemore and Kingussie. These played a strategic role in the area, being home to those working elsewhere as well as centres for visitors coming into the Park. They also had the greatest range of existing services and infrastructure, thereby enabling them to accommodate increased growth in a sustainable way. It was submitted that the line of argument adopted by the appellants was, in reality, no more than an attack on the judgments made by the Park authority. It did not satisfy the Wednesbury test.

[105] Although I cannot deal fully with these arguments without considering the specific development proposals in issue, it may be helpful at this stage to set out how, in my opinion, the matter should be approached.

[106] First, I accept that, in drawing up the Local Plan, CNPA, as National Park authority, is required (a) to "have regard to" the CNPP 2007 (s.14 of the 2000 Act) and (b) to pay special attention to the desirability of drawing it up in a way which is consistent with CNPP 2007 (s.264A of the 1997 Act). Those are clear and distinct legal obligations placed on CNPA. The National Park Plan has a place in the hierarchy, and proper regard must be had to it when drawing up the Local Plan.

[107] That does not mean, however, that CNPA are bound slavishly to follow the CNPP 2007. Nor does it mean that their decisions as to the Local Plan or parts of it can be challenged simply because they do not conform to particular policies set out in the CNPP 2007, whether those policies in the CNPP 2007 are described as "strategic objectives", "priorities for action" or in some other way. The CNPP 2007 contains within it a large number of policies. Many of them, perhaps inevitably, point in different directions. The strategic objectives for housing, encouraging the increase of affordable and good quality housing to meet the demand of a projected increase in the local population together with a move towards smaller households, is likely to come up against a strategic objective of conserving and enhancing the natural and cultural heritage. They may or may not conflict in a particular place. Where they do conflict, a judgement will require to be made as to what is the appropriate way forward. The Local Plan is therefore likely to include proposals which, while consistent with some policies in the CNPP 2007, come into conflict with others. For this reason there is clearly a danger that a challenge to the Local Plan, or to any particular policies in the Local Plan, may be at risk of being seen as an attack on the planning judgements which have informed it. That is not a permissible line of attack.

[108] Accordingly, for a challenge on these lines to be successful, the petitioners must be able to demonstrate that CNPA, as National Park authority, have failed to have regard to the CNPP 2007 or some particular policy contained within it; or, and I do not think there is any real difference here, have failed to pay special attention to the desirability that the Local Plan be drawn up in a manner consistent with it. Such a challenge will not succeed simply by showing that in one or more respects the policies in the Local Plan do not comply with the policies in the CNPP 2007. It is perfectly possible to have regard to a policy in the CNPP 2007 but, in light of other factors, not to follow it.

[109] How is such a failure to be demonstrated? This is very much fact dependent. It is not enough, in my opinion, for the petitioners simply to point out that the policies in the CNPP 2007 are not repeated at length in the relevant parts of the Local Plan. There is no obligation for the Local Plan to set out these policies at length. Nor, on the other hand, will the challenge fail simply because the policies are set out in the Local Plan, if it is apparent that mere lip service is being paid to them. The presence or absence of references to the particular policies may be a pointer which the court can properly take into account. Ultimately, however, the matter must be judged as one of substance rather than form. In order to succeed the petitioners must, in my opinion, show that as a matter of substance there was a policy in the CNPP 2007 which was germane to the particular policy in the Local Plan which is the subject of challenge and ought, had regard been had to it, to have led to a different policy being adopted (or at least to a real possibility of a different policy being adopted). Unless the petitioners can go that far, the complaint under this head is unlikely to succeed. If they can go that far, it will then be necessary to look to see what reasons, if any, are given for not following that particular policy. Those reasons may be found in the discussion of the particular policy in the Local Plan or, indeed, in any relevant discussion or report leading up to the finalisation of the Local Plan.

(4) Section 11(3) of the 1997 Act

[110] As I have already noted, s.11(3) of the 1997 Act requires a Local Plan to contain the planning authority's "proposals for the development" and other use of land, or for any "description of development" or other use of such land, including "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."

[111] On behalf of the appellants, it was argued that, although the Local Plan contained a number of general policies - for example Policies 11, 16 and 20 (all recited above) - this was not sufficient to comply with s.11(3). Each housing allocation was a "proposal for development" or a "description of development". Accordingly, the Local Plan should, in respect of each particular housing allocation, set out the measures which the planning authority thinks appropriate for the conservation of the natural beauty and amenity of the land and the improvement of the physical environment. The appellants complain that the sections of the Local Plan dealing with particular housing allocations make no mention of such measures at all.

[112] While as a matter of fact it is undoubtedly true that the text relating to the particular housing allocations do not set out such measures, the respondents argued that it was not a requirement of the 1997 Act (or, for that matter, of anything) that it should. The Local Plan contained a range of policies dealing specifically with measures for the conservation of the natural beauty and amenity of the land and the improvements of the physical environment. There was no requirement for there to be such measures in respect of all development proposals or allocations in the Local Plan. But in any case, as was accepted by the appellants, policies relating to these matters were set out in the Local Plan in Policies 11, 16 and 20 and elsewhere. Paragraphs 3.1 to 3.3 of the Local Plan made it clear that all development proposals would be assessed against the conservation and enhancing policies of the Local Plan. It was also made clear in paras.6.1 and 6.6 of the Local Plan - in Chapter 6 which deals with the detailed Settlement Proposals - that all development proposals for these sites must comply with the policies of the Local Plan. That was sufficient.

[113] I do not consider that there is any merit in the points made on behalf of the appellants under this head as a stand alone argument. It appears to be accepted by the appellants that the matters referred to in s.11(3) of the 1997 Act, namely conservation of the natural beauty and amenity of the land and the improvement of the physical environment, are addressed in Policies 11, 16 and 20. It is clear from the introductory part of Chapter 6 that development proposals have been worked out in accordance with those policies. Specific reference is made in Chapter 6 to the requirement that development proposals for those sites must comply with the policies in the Local Plan. It cannot, in my view, be a further requirement that this be reiterated in the detailed discussion of each proposed settlement. That would be putting form over substance.

[114] Further, some of the matters in Policy 16, to take one example, such as policies concerning materials and landscaping, storage and recycling, and so on, are matters which cannot be addressed in detail at the level of the Local Plan but will require to be addressed at the stage of detailed planning permission. The matter has to be dealt with in the Local Plan on a level of generality. While it is obviously right that, on that level of generality, the Local Plan should identify the matters which require to be addressed, as it does in the individual Policies, it would serve no purpose for the particular housing and other allocations set out in Chapter 6 of the Local Plan to have to reiterate them on this same general level. It is sufficient that there be a reference to the need, when specific proposals are put forward, for these general policies to be adhered to.

[115] None of the above is intended to mean that the development allocations in the Local Plan should not be scrutinised to ensure that they are compliant with the Policies set out in the Local Plan. This is a matter to which I shall return when considering the specific complaints.

(5) Section 1 of the Nature Conservation (Scotland) Act 2004 ("the 2004 Act")

[116] The appellants contended that CNPA acted unlawfully and/or unreasonably in failing to further the conservation of biodiversity as required under s.1 of the 2004 Act. That section provides inter alia as follows:

"(i) It is the duty of every public body and office-holder, in exercising any functions, to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions."

Though broadly similar in effect to the ss.1 and 9 of the 2000 Act, this section emphasises the importance of biodiversity and nature conservation as a factor in any decision-making by CNPA. The appellants submitted that the proposed housing densities at Kingussie, An Camas Mor, Nethy Bridge and Carr-Bridge conflicted with this obligation. There was a reference to the 2004 Act in para.2.18 of the Local Plan, which requires CNPA, in carrying out its planning function, to ensure that all developments are carried out in line with its obligations under the 2004 Act, namely to further the conservation of biodiversity. But, they argued, there was nothing to indicate that CNPA actually had regard to that duty when deciding upon the specific housing allocations under challenge in this appeal. They referred back to the biodiversity issues relied upon in relation to the argument under s.9(6) of the 2000 Act (see above).

[117] On behalf of CNPA, it was submitted that it was wrong to say that CNPA had "approved" housing densities in adopting the Local Plan - references to housing numbers was clearly stated to be indicative only (see para.6.8 of the Local Plan). That may be correct as a matter of language, but the effect of the proposals in the plan is to sanction housing densities in specific areas, subject to the proposed development meeting other relevant criteria. It is noteworthy that para.6.8, having stated that the indicative house numbers should be used as a guide to capacity at the site, goes on to say that proposals "should not be constrained" by these figures, thereby suggesting, at least to my mind, that the indicative figures were, if anything, minimum figures for development purposes.

[118] More importantly, perhaps, CNPA submitted that the policies in the Local Plan ensured that biodiversity and nature conservation were protected. The Reporters in their Report (at pp.49-51) acknowledged that Policy 5 in the Local Plan would protect biodiversity. In response, the appellants accepted that the Reporters did indeed acknowledge that Policy 5 was framed in such a way as to protect biodiversity, but contended that that Policy had not been properly applied to the housing allocations in the Local Plan. The Reporters noted in para.12.5 of the Report that there should be a presumption against development which would adversely affect species important to biodiversity and the ecosystems of the Park, and also noted in para.12.9 that they shared the concern of objectors that the local plan must not allocate any areas for development that were particularly sensitive.

[119] For the second to fourth respondents, it was submitted more broadly that it could not seriously be contended that, in putting together the Local Plan, the 2004 Act was simply ignored. There was no need to refer to the Act when determining each housing allocation or even the balancing of housing requirements. The Park Authority were writing a Plan and giving reasons for particular policies, "not an exam answer". He characterised the attack on these grounds as a "merits complaint", which was illegitimate, proceeding on the assumption, for which there was no warrant, that CNPA had only paid lip service to the 2004 Act and that had certain issues been properly taken into account the result would have been different.

[120] Policy 5 in the Local Plan (Policy 6 in the draft Local Plan considered at the Inquiry) deals with the question of biodiversity by stating that development that would have an adverse effect (including cumulative impact) on relevant habitats or species will only be permitted where (a) the developer can demonstrate that the need and justification for the development outweighs the local, national or international contribution of the area of habitat or populations of species, or (b) significant harm or disturbance is avoided or, where unavoidable, is minimised with appropriate compensatory and/or management measures being implemented and new habitats created. Where necessary, a comprehensive survey of the area's natural environment will be required, to assess the effect of the development on it. In para.12.5 of their Report, the Reporters agree that there should be a "presumption against development which would adversely affect species important to the biodiversity and ecosystems of the Park." They find that Policy 5 (Policy 6 as was) reflects the strategic objectives of the CNPP 2007 and that "it conforms to the duty placed on CNPA in regard to biodiversity by the [2004 Act]". They add, in para.12.6, that it achieves an "appropriate balance between biodiversity and the social, economic and cultural consequences of a proposed development". They then go on to say this in para.12.9:

"Given the imperative to achieve the strategic objectives for biodiversity embedded in the CNPP 2007, we can readily agree that where there is any threat to specific habitats and species these must be taken into account in the allocation of land in the proposals maps. We share the concern of the objectors that the local plan must not allocate any areas for development that are particularly sensitive, designated or have a recognised biodiversity value. In addition, any application for planning permission on a particular site must be treated on its merits against the terms of policy 6 [now Policy 5], the other policies of the CNPP 2007, and any other material considerations. With adverse effects on habitats and species in mind, the policy places a requirement upon the developer to undertake a comprehensive survey to assess the likely impacts and effects consequent upon the development. While we recognise that such work should be done properly, we cannot agree that it is vital that CNPA conduct or commission this work itself even with charges recouped from the prospective developers. Rather, we consider that CNPA should have ready access to the professional skills required to judge the quality of the work undertaken by, or for, a developer."

Their conclusion, in para.12.10, was as follows:

"... we conclude that Policy 6 [now Policy 5] ... meets the strategic objectives of the CNPP 2007 and accords generally with relevant national and other strategic planning policy guidance. The policy identifies sufficiently clearly the nature and extent of the protection from development that will be afforded to species not afforded specific legal protection. Rigorous implementation of the policy as drafted will ensure that development does not weaken unacceptably the overall integrity and connectivity of the ecosystems of the Park."

The appellants' submissions focused on the Reporters' acceptance of the presumption against adverse development in para.12.5 and the concern that the Local Plan must not allocate sensitive areas for development. They sought to take from these references, as I understood it, the proposition that issues of biodiversity required to be resolved before any decision was made about the allocation of land for development in the proposals maps in the Local Plan.

[121] I do not consider that those passages bear that interpretation. Para.12.5 makes it clear that in the Reporters' view the Policy is expressed in sufficiently clear terms to provide a firm safeguard against development that fails the biodiversity test (I use the expression "biodiversity test" as shorthand for the test set out in Policy 5, formerly Policy 6, of the Local Plan). Para.12.9 then makes it clear that any established threat to habitats and species must be taken into account in the allocation of land in the proposals maps; so that if development there would be bound fail the biodiversity test, the land should not be allocated for development; but if the position was not clear, the land might properly be allocated for development on the proposals maps, leaving the biodiversity considerations in the Policy to be considered at the next level, i.e. when any planning application was made.

[122] In my opinion, therefore, to succeed in their challenge under s.1 of the 2004 Act, the appellants must show that any local authority, acting reasonably on the material before it and having regard to the views expressed by the Reporters in their Report, would have been bound to conclude that the particular allocations complained of should not have been included in the Local Plan, because any development there was bound to fail the biodiversity test; or, to put it the other way round, that no local authority, basing itself on the material before it, could reasonably have decided to allocate those sites for housing, leaving the biodiversity arguments to be considered at a later stage in the context of an application for planning permission which would no doubt follow upon that decision. That is a high hurdle to surmount.

(6) The Habitats Regulations

[123] The appellants contend that CNPA acted unlawfully in adopting the Local Plan without an adequate Appropriate Assessment in terms of Regulation 48 of the Habitats Regulations. Those Regulations make provisions for the purpose of implementing EC Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora ("the Habitats Directive") as amended.

[124] For present purposes, the relevant provisions of the Habitats Regulations are to be found in Regulations 48 and 49. Regulation 48 reflects the terms of Article 6(3) of the Habitats Directive, while Regulation 49 reflects those of Article 6(4). I have already referred to Regulation 48. The important parts of Regulation 48 for present purposes are paras.(5) and (6) which provide that:

"(5) In the light of the conclusions of the assessment, and subject to regulation 49, the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European site ...

(6) In considering whether a plan or project will adversely affect the integrity of the site, the authority shall have regard to the manner in which it is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given."

Regulation 49 deals with considerations of overriding public interest. Para.(1) provides in certain circumstances , if there are no alternative solutions and the plan has to be carried out for imperative reasons of overriding public interest, the plan may be allowed to go ahead notwithstanding a negative assessment of the implications for the site. Para.(2) provides as follows:

"(2) Where the site concerned hosts a priority natural habitat type or a priority species, the reasons referred to in paragraph (1) must be either -

(a) reasons relating to human health, public safety or beneficial consequences of primary importance to the environment, or

(b) any other imperative reasons of overriding public interest, provided that the competent authority has had regard to the opinion of the European Commission in satisfying itself that there are such reasons. ..."

I need not set out the remaining parts of Regulation 49.

[125] An Appropriate Assessment was required in terms of Regulation 48(1) because the Local Plan, or some parts of it, was likely to have a significant effect on the River Spey SAC and other European sites in the area. The potential for the Kingussie and Nethy Bridge housing allocations to have an effect on the River Spey SAC was identified in the SEA of July 2007. An Appropriate Assessment was carried out and completed in October 2010. There was at one stage an issue about this, but it is now clear - and this was accepted by the appellants - that an Appropriate Assessment was indeed carried out. A copy was lodged in process and referred to at the hearing of this appeal. The real issue in the appeal, therefore, was not whether an Appropriate Assessment was carried out but as to the adequacy of the procedures adopted by CNPA and the adequacy of the Appropriate Assessment itself.

[126] The appellants advanced an argument to the effect that, although Regulation 48(4) left it up to the local authority to decide whether to "take the opinion of the general public", they ought here to have done so since EC Guidance in the form of a document entitled "Managing Natura 2000 Sites" suggested that such consultation was appropriate. They submitted that it was unreasonable not to consult the public. The submission was understandably made without any great enthusiasm or persistence - indeed I was not clear whether it was ultimately insisted upon. But whether it was or was not, in my opinion there is no substance in the point. It is a matter for the local authority to form a view as to the necessity for or appropriateness of a public consultation: see per Sullivan LJ in Boggis v Natural England [2010] 1 All ER 159 at para.39 and Akester v Department for Environment Food and Rural Affairs [2010] EWHC 232 per Owen J at paras.122 and 123. In any event, however, in a case such as this the Public Inquiry which followed on the publication of the draft Local Plan, itself based in part at least upon many-layered consultation and the investigations and analysis informing the Appropriate Assessment, is sufficient public consultation on the conservation issues concerning the site. The answer to the challenge that CNPA did not "take the opinion of the general public" on the conservation issues covered by the Habitats Regulations and the Habitats Directive is that, whether or not they had to, they did.

[127] The appellants' case as to the inadequacy of the Appropriate Assessment itself was based on the fact that it left matters to be assessed in subsequent planning applications. The Reporters noted in respect of An Camas Mor that there remained "considerable uncertainty ... about environmental issues". Curiously they appeared to link this to there having been "no supporting appropriate assessment". This is puzzling. As I have already observed, it is clear (and not now in dispute) that an Appropriate Assessment was carried out. This is the only place where the absence of an Appropriate Assessment is mentioned. Had there been no Appropriate Assessment, one would have expected this omission to feature prominently in many places, and not just in the context of An Camas Mor. Equally, if there was an Appropriate Assessment, but the Reporters regarded it as inadequate, one would have expected them to say so in terms, and to give details of why they thought it inadequate. They did not do that. The inference I would draw is that the Reporters knew that there had been an Appropriate Assessment, but simply overlooked that fact when considering An Camas Mor. The Reporters also noted that uncertainty remained about biodiversity at Carr-Bridge and Nethy Bridge (though they make no reference to any inadequacy of the Appropriate Assessment in connection with that uncertainty). In those circumstances, it was submitted on behalf of the appellants that CNPA could not lawfully have adopted the relevant policies in the Local Plan. Regulation 48(5) prohibited them from agreeing to the Local Plan until after they had ascertained that it would not adversely affect the integrity of the River Spey SAC. A similar point is made in respect of the Abernethy Woodland SPA, but it is not necessary to treat that separately for present purposes.

[128] Taking this in a little more detail, it was accepted in the Appropriate Assessment that there could be significant effects on the River Spey SAC from the housing policies proposed at a number of sites, including An Camus Mor, Kingussie, Carr-Bridge and Nethy Bridge. However, in each case the view was taken in the Appropriate Assessment that, in practice

"... all development proposals will have to comply with Policy 2, which protects Natura sites in accordance with the Conservation (Natural Heritage etc) Regulation 1994 (as amended)."

Policy 2 in the draft Local Plan referred to in the Appropriate Assessment is now Policy 1 of the Local Plan as adopted. I have set out its terms in para.[53] above. In each case the quoted passage in the Appropriate Assessment is followed by text suggesting that

"One of the ways this would be achieved is ..."

followed by proposals for particular steps to be taken to deal with the potential problem. I give more detail of this in relation to the particular allocations which are the subject of this appeal.

[129] As regards An Camas Mor, the Reporters say in para.4.28 of the Report that it

"... has been incorporated into the finalised version of the local plan with no supporting appropriate assessment or information about mitigation and based on an SEA report that predicts a significant negative effect for the water environment, i.e. the River Spey special Area of Conservation. That effect might be capable of mitigation, but again there is no substantial evidence to explain and support that proposition. Given the importance of the designation, we have significant concerns about this .... We have no doubt that CNPA would intend to address this deficiency at planning application stage, but in view of the international heritage status of the natural heritage designation, we find that to be too late in the process."

Consideration was also given in the Appropriate Assessment to the cumulative effect of supplying water to all the proposed new developments. The overall conclusion as regards the integrity of the River Spey SAC was that, provided Policies 2 and 13 were rigorously enforced, implementing the proposals

"... will not detract from meeting the conservation objectives and thus site integrity will not be adversely affected"

These examples illustrate the point made by the appellants. It is not just a case of differing from the Reporters as to the proper time to address the deficiency of information about the means of mitigating or avoiding the effect of the proposed development on the River Spey SAC. That, it might reasonably be said, is a matter ultimately for CNPA to decide. The point, they say, is more fundamental. The appellants contend that the Local Plan cannot be approved and adopted until it has been ascertained that it will not adversely affect the integrity of the site: Regulation 48(5). That, they say, requires the various uncertainties identified in the Appropriate Assessment to be resolved before the Local Plan can be adopted.

[130] The appellants' submission therefore raises a stark point of principle which can conveniently be addressed at this level of generality. Is it permissible for the Local Plan to be approved where the Appropriate Assessment makes it clear that relevant matters affecting the integrity of a European site require further investigation and consideration? Is it permissible to leave such matters to be resolved at the stage of consideration of an application for planning permission?

[131] In support of their argument that CNPA could not lawfully postpone full consideration of the environmental effect of the proposed allocations, by relying on the fact that the subsequent application for planning permission would be assessed and only allowed if it did not affect the integrity of the site, the appellants relied on two authorities from the European Court, namely Landelijke Vereniging tot Behoud van de Waddenzee v Staatssecretaris van Landbouw, Natuurbeheer en Visserij (Case C-127/02) [2004] ECR I-07405 ("Waddenzee") and Commission v United Kingdom (Case C-6/04) [2005] ECR I-09017, and one authority from the Court of Appeal in England, namely Boggis v Natural England [2010] 1 All ER 159.

[132] Waddenzee and Commission v United Kingdom were both concerned with the Habitats Directive rather than the Regulations, but that makes no difference to their relevance to the issues here. Article 6(3) of the Directive is in the following terms:

"Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site's conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public."

The concluding words are to the same effect as Regulation 48(5). In the Opinion of the Advocate General in Waddenzee, there is some discussion of what was meant by the words "likely to have significant effect" in the second line of Article 6(3). The word used in the German text suggested that even a slight possibility would suffice, whereas the English word "likely" suggested at least a strong possibility. The "necessary degree of probability" was unclear. The Advocate General rejected the idea that the possibility of avoiding or minimising adverse effects was relevant to the question whether there should be an appropriate assessment, because without an appropriate assessment it would doubtful that such measures could be adequately formulated or carried out with sufficient precision. He concluded, at para.74 of his Opinion, that

"... an appropriate assessment is always necessary where reasonable doubt exists as to the absence of significant adverse effects."

[133] The Court dealt with this point in paras.39-45. Its conclusion on this matter, which informs its subsequent consideration of the question focused in this appeal, is at paras.43-45:

"43. It follows that the first sentence of Article 6(3) of the Habitats Directive subordinates the requirement for an appropriate assessment of the implications of a plan or project to the condition that there be a probability or a risk that the latter will have significant effects on the site concerned.

44. In the light, in particular, of the precautionary principle, which is one of the foundations of the high level of protection pursued by Community policy on the environment, in accordance with the first subparagraph of Article 174(2) EC, and by reference to which the Habitats Directive must be interpreted, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have significant effects on the site concerned .... Such an interpretation of the condition to which the assessment of the implications of a plan or project for a specific site is subject, which implies that in case of doubt as to the absence of significant effects such an assessment must be carried out, makes it possible to ensure effectively that plans or projects which adversely affect the integrity of the site concerned are not authorised, and thereby contributes to achieving, in accordance with the third recital in the preamble to the Habitats Directive and Article 2(1) thereof, its main aim, namely, ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora.

45. In the light of the foregoing, the answer to Question 3(a) must be that the first sentence of Article 6(3) of the Habitats Directive must be interpreted as meaning that any plan or project not directly connected with or necessary to the management of the site is to be subject to an appropriate assessment of its implications for the site in view of the site's conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects."

It is important to note the application of the precautionary principle in this area. If the risk of the plan having a significant effect on the site cannot be excluded, the assessment must be carried out. The purpose of the assessment is, of course, not only to ascertain and identify the risks of adverse effects upon the integrity of the site but also to identify and evaluate measures which might be taken to eliminate or reduce such risks.

[134] The question of what was required by way of appropriate assessment as a precondition to approval of the plan or project was discussed by the Court in dealing with Question 4 of the questions referred to it for decision:

"50 By Questions 4(a) to 4(c), the national court in essence asks the Court to clarify the concepts of 'appropriate assessment' within the meaning of Article 6(3) thereof ....

52 As regards the concept of 'appropriate assessment' within the meaning of Article 6(3) of the Habitats Directive, it must be pointed out that the provision does not define any particular method for carrying out such an assessment.

53 None the less, according to the wording of that provision, an appropriate assessment of the implications for the site concerned of the plan or project must precede its approval and take into account the cumulative effects which result from the combination of that plan or project with other plans or projects in view of the site's conservation objectives.

54 Such an assessment therefore implies that all the aspects of the plan or project which can, either individually or in combination with other plans or projects, affect those objectives must be identified in the light of the best scientific knowledge in the field. ....

55. As regards the conditions under which an activity such as mechanical cockle fishing may be authorised, given Article 6(3) of the Habitats Directive and the answer to the first question, it lies with the competent national authorities, in the light of the conclusions of the assessment of the implications of a plan or project for the site concerned, to approve the plan or project only after having made sure that it will not adversely affect the integrity of that site.

56. It is therefore apparent that the plan or project in question may be granted authorisation only on the condition that the competent national authorities are convinced that it will not adversely affect the integrity of the site concerned.

57. So, where doubt remains as to the absence of adverse effects on the integrity of the site linked to the plan or project being considered, the competent authority will have to refuse authorisation.

58. In this respect, it is clear that the authorisation criterion laid down in the second sentence of Article 6(3) of the Habitats Directive integrates the precautionary principle (see Case C-157/96 National Farmers' Union and Others [1998] ECR I-2211, paragraph 63) and makes it possible effectively to prevent adverse effects on the integrity of protected sites as the result of the plans or projects being considered. A less stringent authorisation criterion than that in question could not as effectively ensure the fulfilment of the objective of site protection intended under that provision.

59. Therefore, pursuant to Article 6(3) of the Habitats Directive, the competent national authorities, taking account of the conclusions of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned, in the light of the site's conservation objectives, are to authorise such activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects (see, by analogy, Case C-236/01 Monsanto Agricoltura Italia and Others [2003] ECR I-0000, paragraphs 106 and 113).

60. Otherwise, mechanical cockle fishing could, where appropriate, be authorised under Article 6(4) of the Habitats Directive, provided that the conditions set out therein are satisfied.

61. In view of the foregoing, the answer to the fourth question must be that, under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all the aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site's conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities, taking account of the appropriate assessment of the implications of mechanical cockle fishing for the site concerned in the light of the site's conservation objectives, are to authorise such an activity only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects."

The appellants naturally drew my attention to the use of the word "convinced" in para.56 and "made certain" in paras.59 and 61 (which I have underlined).

[135] In Commission v United Kingdom the UK was accused of having failed correctly to transpose the requirements of the Habitats Directive, and in particular Article 6(3), into UK law. The case concerned both water abstraction proposals and land use proposals. It is sufficient for present purposes to consider the land use proposals. The problem was that while a land use plan, or a development plan, was to be treated as a plan or project within the meaning of Article 6(3) of the Habitats Directive, it was not in itself sufficient to enable a proposal to be implemented. A separate permission was required for that, which permission was to be granted in accordance with the plan but only if other material considerations did not preclude the grant of permission. It was argued for the UK that it was only these subsequent permissions which were likely to affect areas of conservation. It followed, on the UK's argument, that the development plan did not itself require to be the subject of an appropriate assessment before it could be approved or adopted; it was sufficient protection for the site that the development plan made it clear that the grant of subsequent permission was subject to compliance with the Habitats Directive, including the making of an appropriate assessment. The Advocate General rejected this argument at paras.41-49 of her Opinion. The Court took the same view. It said this at paras.51-56:

"51. The Commission submits that United Kingdom legislation does not clearly require land use plans to be subject to appropriate assessment of their implications for SACs in accordance with Article 6(3) and (4) of the Habitats Directive.

52. According to the Commission, although land use plans do not as such authorise development and planning permission must be obtained for development projects in the normal manner, they have great influence on development decisions. Therefore land use plans must also be subject to appropriate assessment of their implications for the site concerned.

53. The United Kingdom accepts that land use plans can be considered to be 'plans and projects' for the purposes of Article 6(3) of the Habitats Directive, but it disputes that they can have a significant effect on sites protected pursuant to the directive. It submits that they do not in themselves authorise a particular programme to be carried out and that, consequently, only a subsequent consent can adversely affect such sites. It is therefore sufficient to make just that consent subject to the procedure governing plans and projects.

54. As to those submissions, the Court has already held that Article 6(3) of the Habitats Directive makes the requirement for an appropriate assessment of the implications of a plan or project conditional on there being a probability or a risk that it will have a significant effect on the site concerned. In the light, in particular, of the precautionary principle, such a risk exists if it cannot be excluded on the basis of objective information that the plan or project will have a significant effect on the site concerned ....

55. As the Commission has rightly pointed out, section 54A of the Town and Country Planning Act 1990, which requires applications for planning permission to be determined in the light of the relevant land use plans, necessarily means that those plans may have considerable influence on development decisions and, as a result, on the sites concerned.

56. It thus follows from the foregoing that, as a result of the failure to make land use plans subject to appropriate assessment of their implications for SACs, Article 6(3) and (4) of the Habitats Directive has not been transposed sufficiently clearly and precisely into United Kingdom law and, therefore, the action brought by the Commission must be held well founded in this regard."

It follows from this decision that an appropriate assessment must be carried out before a development plan or a local plan is adopted, whenever the proposals in that plan, if subsequently carried out, give rise to a risk of adverse effects on the integrity of a European site.

[136] These cases were referred to and applied by the Court of Appeal in Boggis v Natural England. I need not refer to that case in any detail, save to note that at para.37 of his judgment Sullivan LJ points out that whenever an infraction of Article 6.3 is alleged, even in domestic proceedings,

"a claimant who alleges that there was a risk which should have been considered by the authorising authority so that it could decide whether that risk could be 'excluded on the basis of objective information', must produce credible evidence that there was a real, rather than a hypothetical, risk which should have been considered."

Although this comment addresses the question of whether or not an Appropriate Assessment should have been carried out, it seems to me that it must apply equally to criticisms of the inadequacy of the assessment, and to the question whether, when an assessment has been carried out, some issues can sensibly be left to be addressed at a later stage. Such criticisms would, of course, require to satisfy the Wednesbury test.

[137] At first glance those cases appear to provide some support for the appellants' submission. Their argument is simple. An Appropriate Assessment requires to be made at the stage of the Local Plan. That is not in dispute. The Local Plan cannot be approved or adopted by CNPA unless, on the basis of the Appropriate Assessment, CNPA are convinced or have made certain that implementation of the Local Plan will not adversely affect the integrity of that site. That requires decisions to be made at that stage as to what the risks are, whether or not they can be avoided (and, if so, how), and what mitigation steps are needed, and how and when they are to be implemented. The Local Plan should not contain housing and other development policies if it is not clear, in relation to those policies, that risk to the integrity of the site can be avoided or mitigated to acceptable levels. Those decisions cannot be left to be dealt with at the stage of an application for planning permission for a particular development.

[138] Despite its superficial attraction - and I mean no disrespect by using that word - I do not accept this argument. It appears to me to conflate the requirement for there to be an Appropriate Assessment at a particular stage with the question of what that Appropriate Assessment must contain. To my mind, it does not follow from the fact that an Appropriate Assessment must be carried out at the stage of drawing up the Local Plan that that assessment must provide a conclusive answer to all the questions legitimately raised about the potential for significant adverse effect on the integrity of the site. The Appropriate Assessment carried out at this stage must be sufficient to inform the local plan and to satisfy the decision maker that implementation of the plan will not adversely affect the integrity of the site. The local plan itself contains a judgement, perhaps many judgements, as to the future. The decision maker at this stage is entitled, when assessing the likelihood of the plan having an adverse effect upon the integrity of the site, to take into account all the circumstances relating to that future. That means taking into account not only likely impacts of any development but also measures to prevent such impacts arising or to mitigate their effect. As the respondents' submitted, the appellants' challenge under this head is predicated upon the unwarranted proposition that no regard can be had to any subsequent process in assessing the affect upon the integrity of European sites. A plan of this sort has to be prepared and approved at a certain level of generality. It makes housing and other allocations based on an assessment of housing needs and a large number of other factors, all as set out in the Local Plan. It is in no way intended as a guide to the details of forthcoming proposals for any such developments. The possibilities are, no doubt, many and varied. Matters of layout, design and infrastructure will be worked up by developers and considered with planners in the planning department. Although it is possible in the Appropriate Assessment to identify and assess in general terms the possible impact of development of a particular type upon the integrity of the site, it is not possible at that stage to be certain about whether the particular development for which permission is ultimately sought will or will not have an effect upon the integrity of the site; or, perhaps more realistically, whether the proposed development will comply with the various Policies in the Local Plan; and, if not, whether any, and if so what, mitigating measures would be needed and whether they would be effective. Those matters, so it seems to me, can be assessed in detail only when the particular development proposals fall to be considered. By setting out Policies in the Local Plan which will govern the treatment of future planning decisions, CNPA have adopted a procedure by which they can be convinced (or "certain") that such development as follows on from the proposals in the plan will not adversely affect the integrity of the site. In the last resort, if, despite the inclusion of all possible and relevant mitigating measures, a planning application cannot satisfy those Policies, it will not be granted. Of course, views may differ as to whether the decisions made by the local authority - both at the stage of the local plan and also later, at the stage of planning consent - are the correct ones. They can be challenged only on well-known judicial review grounds. But to require more at the Local Plan stage would impose too great a burden on the local authority. As was submitted for the respondents, the whole plan led system would in significant part grind to a halt if full details of every housing or other development allocation were needed at local plan stage whenever there was perceived to be a risk of adverse impact on the integrity of a European site.

[139] Such an approach does not render worthless an Appropriate Assessment at the stage of adoption of the local plan. Nor is it in conflict with the reasoning of the ECJ in Commission v United Kingdom to which I have referred. The reasoning in that case is based on the fact that applications for planning permission are determined in the light of the relevant "land use plans", such as the local plan, so that such plans necessarily "have considerable influence on development decisions and, as a result, on the sites concerned". If the Appropriate Assessment identifies and assesses the risks inherent in development on the sites proposed for development, and the Local Plan lays down clear and firm Policies to eliminate or mitigate such risks, with a requirement that any planning permission will only be granted if it is in line with the relevant Policies in the Local Plan, then the Local Plan, informed by the Appropriate Assessment, will have played its part in constraining such development and ensuring that the development will not affect the integrity of the site.

[140] The appellants referred me to the decision of the Court of Appeal in Smith v Secretary of State for Environment, Transport & Regions [2003] Env LR 32 as an illustration, in what he submitted was an analogous context, of how within the planning process it was incumbent on decisions to be made at a certain strategic level and not left to the planning authority to deal with at the time of the detailed planning decision.

"In my view it is a further important principle that when consideration is being given to the impact on the environment in the context of a planning decision, it is permissible for the decision maker to contemplate the likely decisions that others will take in relation to details where those others have the interests of the environment as one of their objectives. The decision maker is not however entitled to leave the assessment of likely impact to a future occasion simply because he contemplates that the future decision maker will act competently. Constraints must be placed on the planning permission within which future details can be worked out, and the decision maker must form a view about the likely details and their impact on the environment."

per Waller LJ at para.33. The appellants also referred to Regulation 48(6) in this context, with its requirement that the assessment "shall have regard to the manner in which [the plan or project] is proposed to be carried out or to any conditions or restrictions subject to which they propose that the consent, permission or other authorisation should be given". The circumstances of the Smith case were very different. In particular, that case was not concerned with the laying down of policy in a local or development plan which will govern the basis upon which planning permission for any proposed development on the site will be granted or refused. Where appropriate policies have been set out in the local plan, those policies constrain the decisions of the planning authorities thereafter. It is not a case, therefore, of CNPA simply contemplating that future decision makers will act competently - the Local Plan constrains them to act in accordance with the Policies adopted therein. In this way it seems to me that the manner of proceeding in the present case fits well with the requirement placed upon CNPA by the terms of Regulation 48(6).

[141] It was submitted that this issue raised a fundamental point on which the Court might wish to consider a reference to the ECJ. Having considered the arguments and felt able to come to a firm conclusion on the matter, I am not persuaded that a reference is necessary.

(7) The "affordable housing" argument

[142] Although there is no discrete challenge in this appeal to Policies 19 - 24, set out in the section on Housing beginning at para.4.19 of the Local Plan, the appellants do complain that, in relation to the specific housing development allocations which are the subject of this appeal, CNPA acted unreasonably in failing to act upon the fundamental concerns of the Reporter about its "blunt policy" on affordable housing.

[143] In the Report, the Reporters referred to "an over provision in the general land supply". They expressed "fundamental concerns" about the "blunt approach" to the allocation of greenfield sites for housing (para.24.18); and about "the general over allocation of housing land" (ibid). They were unable to conclude "that each settlement needs the amount of new housing that the allocated sites could deliver" (ibid). They referred to "over provision in the general land supply" as a "blunt policy instrument" which left CNPA "ill-equipped to address the most formidable land use challenges presented in the strategic objectives of the CNPP 2007" (para.24.19). Large housing allocations on greenfield land necessarily conflicted with the first aim of the National Park at section 1(a) of the 2000 Act and the obligation under section 14 of the 2000 Act to have regard to the CNPP 2007. The CNPP 2007 cross-referenced the strategic objective of Housing (5.2.4) to that of "Conserving and Enhancing the Natural and Cultural Heritage". At para.6.6 of the Priorities for Action 2007 to 2012 in the CNPP 2007, it was stated that:

"The demand for housing must also be managed to ensure high environmental and sustainability standards"

and that:

"Provision must be consistent with conserving and enhancing the area's special qualities ..."

The appellants contend that, in essence, given their criticisms about housing policy, the Reporters found that there was no evidence of need for the allocations in Nethy Bridge or Carr-Bridge or An Camus Mor; and that there was only a limited need at Kingussie. An Camus Mor was to be a substantial new town with a population of about twice that of Aviemore and considerably more than the combined populations of Aviemore and Grantown on Spey, the two largest "substantial towns" of the entire National Park. It was noted in the Local Plan, at para.4.30, that the population of the National Park was projected to remain constant, or rise slightly, over the period 2006-2016. The appellants submitted that if there was to be only a slight rise in the population of the National Park, it was unreasonable to allocate a new town that would effectively provide housing for a population equivalent of the whole of Aviemore and Grantown. In the context of those criticisms, together with the natural heritage issues (including issues relating to European sites) and CNPA's duties under sections 9(6) and 1(a) of the 2000 Act, CNPA acted unreasonably in making the housing allocations under review.

[144] I have some difficulty with this line of attack, for a number of reasons. First, I have already indicated that the appellants do not challenge any general housing policies in the Local Plan (Policies 19 - 24). In particular, they do not seek to challenge the policy on Affordable Housing (Policy 19), nor do they seek to review any of the discussion of Housing Land Requirements and Supply in the section on Housing at paras.4.19ff.

[145] The Affordable Housing part of the Local Plan has to be seen in the context of the CNPP 2007 to which the CNPA must have regard in drawing up the Local Plan: see s.14 of the 2000 Act, and see also the comparable duty under s.264A of the 1997 Act. The CNPP 2007 emphasises the need to ensure greater access to affordable housing and recognises that, because of a projected small increase in population and the trend to smaller household size, the demand for housing is likely to increase. I have already quoted from the strategic objectives for sustainable communities set out in CNPP 2007. These include (i) encouraging a population level and mix in the Park to meet the current and future needs of its communities and business; (ii) making proactive provision to focus settlement growth in the main settlements; and (iii) planning for growth to meet community needs in other settlements. Similarly the strategic objectives for housing in the CNPP 2007 include (i) increasing the accessibility of rented and owned housing to meet the needs of communities throughout the Park; and (ii) ensuring that there is effective land and investment for market and affordable housing to meet the economic and social needs of communities throughout the Park. Other parts of the CNPP 2007 are to a similar effect.

[146] In their Report, to which I shall return in a little more detail in relation to each of the allocations under review, the Reporters do not recommend any changes in relation to the affordable housing policy. Nor do they recommend altering the Local Plan to adopt alternative methods for achieving affordable housing. Although the appellants properly drew my attention to the criticisms made by the Reporters in paras.24.18 and 24.19 of the Report (see above), this section of the Report is by no means wholly critical of the provisions for Affordable Housing in the Local Plan.

[147] The general tone of the Reporters' comments can be gauged from the following extracts taken from the section of the Report dealing with Affordable Housing in general:

"When we review our findings above, we conclude that a local plan policy towards the provision of affordable housing is compatible with relevant natural and strategic planning policy." (para.24.10)

"We accept the research conclusions as the most reliable evidence upon which to base a local plan affordable housing policy" (para.24.12)

"the above ... points to a conclusion that the need for affordable housing in the National Park exceeds the available supply whereby addressing the current chronic lack of affordable housing is a major problem affecting the National Park which must be addressed by the local plan" (para.24.13)

"The CNPP 2007 clearly regards it [i.e. the need for affordable housing] as of vital importance ..." (para.24.13)

"This general approach seems to us to be satisfactory because it means that every development contributes to addressing the problem of affordable housing provision, and the greater part of that contribution should be in the form of social rented housing" (para.24.20)

"Given all of this, we find no compelling case to support a recommendation that the basic local plan policy approach should be altered in light of these objections, although we consider that the distinctive nature of the National Park housing market justifies more detailed research than has been submitted to this Inquiry. ..." (para.24.26)

"Clearly the National Park is exceptional because it suffers a considerable shortfall in affordable housing and the Local Plan facilitates substantial greenfield land releases" (para.24.29)

[148] In para.24.47 of their Conclusions on the topic of Affordable Housing, the Reporters say this:

"In drawing all of this together and based on the above, we conclude that the issue of affordable housing is a considerable problem for CNPA and the [Local Plan] to address. It is also an appropriate planning consideration that stems from national and strategic planning policy, including the CNPP 2007. Therefore, in general, Policy 21 meets the strategic objectives of the CNPP 2007 and accords with relevant national and other strategic planning policy guidance."

Policy 21 of the draft Local Plan, Contributions to Affordable Housing, is now Policy 19 of Local Plan as adopted. It is right to point out that some of the Reporters' criticisms made earlier in the Section are repeated in para.24.49. In spite of those criticisms, however, the Reporters conclude (in that same paragraph):

"However, we do not advocate the removal or substantial amendment of Policy 21 because:

·        the policy approach is compatible with relevant planning policy at all levels, including with the strategic objectives of the Park;

·        its implementation will contribute to the CNPP 2007 outcomes for 2012; and

·        it will make some limited but much needed contribution towards addressing the affordable housing shortfall".

In their Recommendation at para.24.53, despite their "considerable reservations" and their view that further action needs to be taken, the Reporters do not recommend any further changes to the Affordable Housing Policy set out in Policy 21 (now Policy 19). Accordingly, so it seems to me, the appellants cannot legitimately approach this part of the argument on the basis that the Reporters' comments were unreservedly critical. They were not. In many aspects they were supportive of the policy on Affordable Housing.

[149] A challenge to specific allocations at Nethy Bridge, Carr-Bridge, An Camus Mor or Kingussie on the basis that there is not shown to be a need within the Park to justify that level of housing development in those places runs into obvious difficulties if there is no challenge to the parts of the Local Plan dealing with the need for housing at a certain level. Since any challenge to the reasonableness of the housing allocations has to satisfy the Wednesbury unreasonableness test if it is to have any prospect of success, the difficulties in mounting a restricted challenge of this kind appear formidable. Further, the criticism of the housing requirement set out in the Local Plan appears to be focused on the assumptions in it as to population increase; however, it is clear from the Local Plan, the Report and the Analysis, that the need for additional housing is explained not just on the basis of an increasing residential population but also by reference to a change in occupancy levels. The challenge to the perceived need for additional housing does not address this point.

[150] In addition, as is clear from the more detailed consideration given below to each of the allocations challenged in the appeal, in light of the Reporters' comments CNPA reconsidered its housing requirement and supply figures. That reconsideration is set out fully in the Analysis, which was approved by the Board of CNPA and forms part of their reasons. In their criticisms of the Local Plan, the appellants make no reference to the revisions made in the Analysis, which appear in the revised Local Plan in the form ultimately approved. It is plain, since they do not mention it, that they do not contend that that aspect of the revised Local Plan, which takes account of the Reporters' criticisms (though it does not in all cases agree with them), is Wednesbury unreasonable. Nor could they do so on the basis of any evidence presently before the court. It is difficult to avoid the conclusion that on this issue at least, the appellants are, as the respondents submitted, simply seeking to debate the merits of the policy afresh before the court. That is not permissible.

FURTHER REFERENCES TO THE REPORTERS' REPORT

[151] It is convenient at this point to mention two further matters which were discussed by the Reporters in their Report following on from the public inquiry. These are: (i) the housing land requirement and supply; and (ii) the policy on protected species and biodiversity.

Housing land requirement and supply

[152] One of the issues raised by objectors to the draft Local Plan was the question of general housing land supply. This is the question mentioned in para.[150] above. In dealing with this in chapter 7 of their Report, the Reporters noted that the Local Plan had to address the provision of an adequate supply of housing land to meet the needs of the Park. As explained in the Local Plan, CNPA had done this generally for the Park as a whole before deciding upon specific housing allocations for particular settlements. In para.7.2, the Reporters identified the main issues to be addressed for housing land supply as follows:

"(i) whether the approach to housing land supply relates well to the strategic context set by the CNPP 2007, the relevant structure plans and national planning policy;

(ii)              whether the population projections used in the [Local Plan] provide a reliable basis for establishing the amount and timing of the rise in population expected in the CNPP 2007

(iii) whether the housing land requirement calculation set out in Table 2 Housing land requirement calculation ... is underpinned by a convincing rationale and, in particular, whether the upper household projection identified in the local plan is an appropriate basis for the housing land calculation;

(iv) whether the 50% allowance for second homes and vacant property and open market housing, as well as the 15% flexibility allowance, are appropriate uplifts;

(v) whether the phased land supply by settlement as set out in Table 4 Phased land supply by local authority area ... of the finalised version of the emerging local plan is underpinned by a convincing rationale."

[numbering added].

[153] The Reporters prefaced their consideration of these points by some general remarks. They were critical of the late stage at which CNPA had made available certain topic papers which set out much of their reasoning on these issues. They noted that although SPP 3 Planning for Homes (revised 2008) contained national planning policy which applied across the whole of Scotland, the Cairngorms National Park was recognised as an exception, in particular because of the priority afforded by statute to the four aims set out in ss.1 and 9 of the 2000 Act. They also noted that calculations of housing land requirements made in structure plans covering the area of the National Park, which had influenced the preparation of the Local Plan, had been "overtaken by events", since they had been approved before the designation of the Park and would, in future, exclude the area of the Park. Accordingly it was open to CNPA in preparing the Local Plan to take a different approach to that taken in extant structure plans where, as was the case here, the CNPP 2007 provided alternative guidance.

[154] In dealing with point (i) above, the Reporters noted that certain themes underpinned the approach to housing land supply in the Local Plan. These were (a) the need to accommodate the projected increase in population in the Park, (b) the need to provide accommodation for those who required to live in the Park to take up current or prospective job opportunities and (c), subject to the above, the need to distribute land for new housing in a way which would promote sustainable communities. At para.7.10, however, the Reporters expressed their appreciation of (and impliedly sympathy for)

"... the disquiet of some objectors who suggest that, in pursuing these themes, too little emphasis has been placed on the first aim of the Park: To conserve and enhance the natural and cultural heritage of the area and rather too much emphasis on the promotion of the fourth: To promote sustainable economic and social development of the area's communities."

The policy appeared to encourage population growth rather than simply accommodate that which was projected, to allocate substantial areas of land for the building of affordable homes for young people and the working population, and to encourage a substantial increase in homes for commuters, retired persons and second homes.

[155] As to point (ii), the question whether the population and household projections adopted for use in the Local Plan provided a reliable basis for the calculation of the housing requirements, the CNPP 2007 had estimated a small increase in population (about 600 people) between 2007 and 2017. A study by Manchester University suggested a 9% increase in population of just over 1,400 people (from 15,835 up to 17,238) between 2001 and 2025. Another study, by GRO(S), using the same software as Manchester University, predicted a 20% rise of 3,100 people (from 15,410 up to 18510) over approximately the same period. Both of these studies had shown population increase as being driven by "in-migration", resulting in a demographic profile weighted disproportionately to the older age groups. Of particular importance was the projection of the average household size decreasing, with the result that the number of households was projected to increase more than population. CNPA had adopted the Manchester University projections in their proposals for the Local Plan:

"While we have no particular quarrel with that, we note that it is not now the only available projection." (see para.7.13)

It is of interest to note that, in adopting the Manchester University projections, CNPA may be seen to have followed a more conservative approach, in line with the CNPP 2007, rather than the more dramatic increase projected by GRO(S). While the Reporters then go on to question certain of the assumptions made by Manchester University and others in making these projections, they noted (in para.7.16) that there had been no serious attempt by objectors to dispute their main findings, and on that basis the Reporters accepted the conclusions of the commissioned research as "the most reliable evidence available to CNPA on which to base the development of its policy towards the supply of housing land."

[156] The Reporters then turned to the issues covered by points (iii) and (iv). The Manchester University projections equated to between 750 and 950 households, and CNPA had chosen the upper limit because of the backlog of demand and the effect of inward migration. The Reporters urged caution in accepting the full extent of the projected population growth with their "generous migration assumptions" and the risk of "double counting". CNPA stated at the Inquiry that in addition to these population projections, they had taken other factors into consideration, in particular (a) encouraging a young population that supports thriving communities in the long term, (b) "growing" the population of the Highlands, an objective shared by Highlands and Islands Enterprise and The Highland Council, and (c) meeting the need for affordable housing through an increase in market housing and related land supply. The Reporters had reservations about this approach, both because of their doubts that population growth should be promoted as a policy objective (as opposed to providing housing for a projected increase in population) and because the CNPP 2007 did not endorse the objective of growing the population of the Highlands.

[157] On top of their assessment of housing need based on the Manchester University projections, CNPA had added a 50% allowance to ensure the land requirement reflected the growth component, second homes, vacant homes and houses rented for holiday accommodation; and a 15% flexibility allowance to allow for uncertainty in the projections. The Reporters expressed doubt about this too, in particular because it appeared to be based upon pursuit of "the growth component":

"Nowhere ... in the evidence brought to the inquiry, have we been provided with a convincing explanation of why the increase in the numbers of houses required to accommodate the projected increase in population should be uplifted at all, and certainly not by the considerable amount of 50%. Similarly we are also not convinced that an allowance should be made for uncertainty in the projections. ... In the event, the 15% uplift, as well as the 50% noted above, appears to have been plucked out of the air; and its adoption is in marked contrast to the painstaking approach of the consultants commissioned to produce the population and household projections."

They concluded this part of their discussion with the comment that they were unable to endorse the figures for housing land requirement and consented and new land supply set out in the draft Local Plan.

[158] Against that background, they went on to consider whether the allocation of housing sites to the settlements of the National Park as set out in Table 4 was underpinned by a convincing rationale. They took as their starting point (para.7.21) that Table 2 set out to show the need and demand for housing in the Park, while Table 3, phased land supply by local authority area, and Table 4 were concerned with the related matter of the provision of an adequate land supply broken down by local authority area and settlement. They bore in mind (para.7.22) the relevance within the Park of SPP 3 in meeting the housing requirement in the development plan. They recognised (para.7.23) that CNPA was not a housing authority, though they expected more in the way of housing land audits to demonstrate the availability of "an ongoing effective supply of land to meet identified requirements". They then said this:

"7.24 Turning to Table 4 we are disturbed that neither the table nor the text, nor indeed the proposals maps to which they should be seamlessly linked, makes any clear distinction between the established housing land supply and the effective land supply. ..."

They then referred to the definition of these terms in SPP 3. "Established land supply" is the total housing land supply - both constrained and unconstrained sites - including effective housing land supply, plus the remaining capacity for sites under construction, sites with planning consent, sites in adopted local development plans and, where appropriate, other buildings and land with agreed potential for housing development. "Effective land supply" is that part of the established housing land supply which is free or expected to be free of development constraints in the period under consideration and will therefore be available for the construction of housing. They continued:

7.25 Relating these definitions to Table 4, it seems clear to us that it cannot refer to the effective land supply because there is no appraisal anywhere in the emerging plan of the sites identified in the proposals maps against the criteria set out in Annex A to SPP 3, regarding their effectiveness. This is a matter to which we must return when dealing with objections to some individual allocations as set out in the proposals maps. In the meantime, we have assumed that the table actually refers to the established land supply which is available to meet the housing requirement as set out in Table 2, but even then we find that Table 4 is opaque and difficult to interpret. We are well aware of the difficulty in capturing the most up to date relevant information. Moreover, in estimating the established land supply in this first local plan for the National Park, we can understand the pragmatic if perhaps overly bold assumption made by CNPA that all of the sites in the adopted local plans can be considered to be effective for the purposes of Table 4. However, to support this position, we would have expected to have seen the following essential information: the capacity of the sites under construction; the approved capacity of other sites with planning permission; the capacity of the remaining sites identified within the adopted local plans; and any other land with agreed potential for housing development. "

The Reporters then went on to make criticisms of certain of the assumptions in the Local Plan, and of the failure to differentiate between different settlements even within a particular set.

[159] In their conclusions to this chapter, the Reporters criticised aspects of the presentation of the policies in the Local plan, highlighting scope for misunderstandings to arise. In para.7.33, after referring back to the unjustified uplifts of 50% and 15% (see above), there is this comment:

"... In the light of our own reservations, and in the absence of detailed evidence to explain these uplifts, we sympathise with the objector who took the view that the housing land supply should be based on a requirement to the year 2016 of 950 and no more. On the evidence before us, and bearing in mind the requirement of SPP 3 to provide a generous land supply, we would be reluctant to go that far. But we are in no doubt that the overwhelming weight of evidence before us leads to a conclusion that the calculation of 1538 housing units as the housing land requirement to 2016 is a substantial overestimate. ..."

Their recommendation was, in effect, that CNPA should revisit Tables 2, 3 and 4 and replace them with

"... text and associated tables that explains the assessment of housing land requirements in the National Park and the housing land allocations to particular settlements, in a manner which complies with the requirements of SPP 3: Planning for Homes, with the terms of the CNPP 2007, and which incorporates the most up to date information available to CNPA including the various housing land audits."

[160] Almost all of these recommendations made by the Reporters were accepted by CNPA. This part of the Report is discussed in Chapter 1 of the Analysis. In the Analysis, CNPA

(a) accepted the conclusion that for Table 2 the figures produced by Manchester University were the best available evidence and already included a degree of flexibility - accordingly they were content to remove the additional flexibilities of 15% and 50%;

(b) accepted the criticisms of Tables 2-4 and the failure to follow best practice, and agreed to provide new Tables and text "to clearly set out the established and effective housing land supply identified within the Local Plan;

(c) accepted the criticism of the lack of clarity about the positioning of settlements within the hierarchy, and agreed to include a statement for each settlement to explain its position within the hierarchy.

As a result, CNPA comprehensively revised this part of the Local Plan. As I said in para.[150], the appellants do not in their submissions address this acceptance by CNPA of the criticisms of this important part of the Local Plan, nor do they address the substantial changes made by CNPA to this part of the Local Plan as a consequence of accepting the Reporters' criticisms. This presents as a serious difficulty in the appellants' case, under reference to particular housing allocations, that the justification for the policy, being based on a housing need assessment in the Local Plan which was criticised in the Report as being overly generous and a substantial over-estimate, is flawed. That case is based on an assumption by the appellants, at least so far as their submissions are concerned, that CNPA did not respond to the Reporters' criticisms on this matter. In fact, not only did CNPA respond constructively to this part of the Report, they accepted many of the criticisms, re-worked the figures for housing land need and supply, and revised the Local Plan accordingly.

Protected species and biodiversity

[161] Protected species and biodiversity were covered by Policies 5 and 6 of the draft Local Plan as it was at the time of the inquiry. These two matters were considered together, in Chapters 11 and 12 of the Report. In summary, the Reporters found that the Policies as drafted accorded generally with relevant national and other strategic planning policy guidance, identifying sufficiently clearly the nature and extent of the protection from development to be afforded to species having no specific legal protection. They recommended that those policies be taken forward for inclusion in the adopted Local Plan.

[162] The following two paragraphs were, however, relied on by the appellants:

"12.5 The strategic objectives for biodiversity are set out in the CNPP 2007 ... For the reasons explained elsewhere in this report, we agree that there should be a presumption against development which would adversely affect species important to the biodiversity and ecosystems of the Park. The policy sets out the criteria to be overcome if a proposed development is to be judged to be in the interests, for instance, of promoting sustainable economic development. Drawing these matters together, we find that Policy 6 reflects the first aim of the Park by way of its compliance with the strategic objectives of the CNPP 2007, that it conforms to the duty placed on CNPA in regard to biodiversity by the Nature Conservation (Scotland) Act 2004, and that it has been worded to reflect generally national policy as set out in NPPG 14: Natural Heritage. ...

12.9 Given the imperative to achieve the strategic objectives for biodiversity embedded in CNPP 2007, we can readily agree that where there is any threat to specific habitats and species these must be taken into account in the allocation of land in the proposals maps. We share the concern of the objectors that the local plan must not allocate any areas for development that are particularly sensitive, designated or have a recognised biodiversity value. In addition, any application for planning permission on a particular site must be treated on its merits against the terms of Policy 6, the other policies of the [Local Plan], and any other material considerations. With adverse effects on habitats and species in mind, the policy places a requirement upon the developer to undertake a comprehensive survey to assess the likely impacts and effects consequent on the development. While we recognise that such work should be done properly, we cannot agree that it is vital that CNPA conduct or commission this work itself even with charges recouped from the prospective developers. Rather, we consider that the proper approach is that CNPA should have ready access to the professional skills required to judge the quality of the work undertaken by, or for, a developer."

THE SPECIFIC CHALLENGES TO THE LOCAL PLAN

[163] I turn now to consider the specific areas of challenge to the Local Plan as adopted.

(A) NETHY BRIDGE

Detailed consideration

[164] It is convenient to deal with the two Nethy Bridge challenges together. As I have already explained, NB/H2 is for housing development on two sites to the north and east of the eastern part of the village. The text relating to these sites reads as follows:

"NB/H2: These two sites have outline consent for a total of 40 dwellings. Development on these sites will retain enough woodland to allow for movement of species between areas of woodland to the sides of the sites, and retain the woodland setting of this part of the village. A small water course runs through the site and potential flood risk has not [been] adequately quantified. A flood risk assessment may be required in support of any further planning application or reserved matters."

NB/ED1, by contrast, is for economic development to the east of the easternmost end of NB/H2. The text reads as follows:

"NB/ED1: This 0.76Ha site adjacent to H2 is identified for business use. Any development of the site will need to take account of its site within the woodland and at an entry point to the village. Development of this site will retain enough woodland to allow for movement of species between areas of woodland to the sides of the sites, and to retain the woodland setting of this part of the village."

[165] These allocations for housing and business development took shape in the Consultative Draft Local Plan and later in the Deposit Draft Local Plan and the SEA Environmental Report of 2007.

The Environmental Report

[166] In that Environmental Report it was noted that site NB/H1 had permission for the development of sheltered housing while NB/H2 had permission for 40 houses, that permission also covering site NB/ED1. The view was expressed that

"The planning consent for site H2 means that Nethy Bridge is likely to have housing development within the lifetime of the Local Plan."

The Environmental Report then scored the predicted direct and indirect effects of the proposal, recognising that NB/H2 would lead to fragmentation of the local woodland habitat and pointing out that an Appropriate Assessment was required in terms of the Habitats Directive. It summarised the position in this way:

"The consented development proposals for the School Wood site in Nethy Bridge ... will have significant negative environmental effects in terms of loss of woodland habitat, fragmentation of habitat, and changes to the setting and character of Nethy Bridge. These effects could be reduced by appropriate layout and design and the application of the policies of the Local Plan to detailed proposals.

There is some uncertainty about the possible cumulative effects of development and the disposal of waste water on the river Spey SAC that cannot be satisfactorily resolved through the SEA. Under the Habitats Directive, the Local Plan must be subject to an appropriate assessment to identify the implications for the conservation interests of the SAC."

Under reference to options for mitigation, it noted that further mitigation could be identified through the assessment of detailed proposals.

[167] The requirement for an Appropriate Assessment in connection with the Local Plan stemmed from the uncertainty about the possible cumulative effects of development and waste water on the River Spey SAC. It appears to have been assumed that the significant negative environmental effects in terms of loss of woodland habitat, fragmentation of habitat, and changes to the setting and character of Nethy Bridge arose from the planning permission already extant for housing development for the School Wood site, and would be resolved in the context of the detailed discussions relating to detailed consent. Nonetheless, the Appropriate Assessment did in fact consider these other aspects of the proposed development.

The Appropriate Assessment

[168] The Appropriate Assessment considered "the likely effects of the policies, proposals and land use allocations within the modified Deposit Local Plan against the qualifying interest and conservation objectives of the Natura 2000 sites". Its conclusion was that

"... with appropriate safeguards and mitigation the finalised Local Plan as modified will not adversely affect the integrity of any Natura site in the Cairngorms National Park."

It went on to consider the likely significant effect of the proposed settlements. The Nethy Bridge sites potentially affected the River Spey SAC (Special Conservation Area), as well as Abernethy SPA and Craigmore Wood SPA (Special Protection Areas): see Table 2. The River Spey SAC, the Abernethy SPA and the Craigmore Wood SPA are then dealt with under reference to the predicted impact of the various development proposals, including Nethy Bridge.

[169] The Conservation Objectives of Abernethy Forest SPA are set out at p.19 of the Appropriate Assessment. Those objectives are as follows:

"To avoid deterioration of the habitats of the qualifying species (listed below) or significant disturbance to the qualifying species, thus ensuring that the integrity of the site is maintained.

To ensure for the qualifying species that the following are maintained in the long term:

·        Population of the species as a viable component of the site

·        Distribution of the species within the site

·        Distribution and [extent] of habitats supporting the species

·        Structure, function and supporting process of habitats supporting the species

·        No significant disturbance of the species"

The qualifying species include capercaillie. In considering the likely impact of the proposals for development at Nethy Bridge, the Appropriate Assessment notes that the plan is for 63 new houses, which (if they were all built) would lead to an increase in the population of the village of about 16%. While that could in theory lead to an increase in the number of people using the network of paths in the forest, and thereby potentially disturbing capercaillie, disturbance was unlikely in practice for two reasons. First, the paths were used by visitors as well as local residents, so that an increase of about 16% in the number of residents would translate into a lower figure - perhaps 10% - increase in recreational use of the woods, a figure well within normal seasonal fluctuations. Second, additional users of the woods would be very likely to use the paths and obey signs, and thereby avoid disturbing capercaillie at sensitive times. As a result, the development proposals would "not detract from meeting the conservation objectives and thus site integrity".

[170] So far as concerns the River Spey SAC, the following similar Conservation Objectives were noted:

"To avoid deterioration of the habitats of the qualifying species (listed below) or significant disturbance to the qualifying species, thus ensuring that the integrity of the site is maintained and the site makes an appropriate contribution to achieving favourable conservation status for each of the qualifying features; and

To ensure for the qualifying habitats that the following are maintained in the long term:

·        Population of the species, including range of genetic types for salmon, as a viable component of the site

·        Distribution of the species within site

·        Distribution and extent of habitats supporting the species

·        Structure, function and supporting process of habitats supporting the species

·        No significant disturbance of the species

·        Distribution and viability of freshwater pearl mussel host species

·        Structure, function and supporting processes of habitats supporting freshwater pearl mussel host species"

The qualifying species are listed as Atlantic salmon, freshwater pearl mussel, otter and sea lamprey.

[171] A number of policies from the Deposit draft Local Plan were then assessed for their likely effect. Of particular relevance here is the policy concerned with water resources, and especially waste water and sewerage. That was Policy 13 of the draft Local Plan, and is now Policy 12 of the Local Plan as adopted. It was noted that new development was likely to have a significant effect on the River Spey if it could result in a deterioration of water quality. Connecting the new developments proposed in the Local Plan to the public sewerage network could potentially affect water quality in the river, with an effect on the qualifying species:

"In particular, research specific to adult Freshwater Pearl Mussels identifies a sensitivity limit of 0.03 mg/l Soluble Reactive Phosphorous to maintain the favourable conservation status of the species. The corresponding limits for Juvenile Freshwater Pearl Mussel, Atlantic Salmon or Sea Lamprey are not known."

Having said this, however, it was considered that, provided certain safeguards were adhered to, implementation of the policy would not detract from meeting the site's conservation objectives. The salient passage reads as follows:

"In practice, however, all development proposals will have to comply with Policy 2 [now Policy 1], which protects Natura sites in accordance with the Conservation (Natural Heritage etc) Regulations 1994 (as amended). One of the ways this would be achieved is by only granting planning permission if it can be demonstrated that the 0.03 mg/l threshold for Soluble Reactive Phosphorous in-river will be exceeded as a result of the proposed development. In addition, compliance monitoring can be used to ensure that the discharges of harmful chemicals do not increase in the future. In the longer term, in order to inform decisions on discharge consents further research is needed into the tolerances of the qualifying species to concentrations of different chemical, and also into the sources of these chemicals and the paths by which they reach the river."

[172] Turning to deal with the predicted effect on the River Spey SAC specifically from the proposed development of Nethy Bridge, the Appropriate Assessment notes that contamination could arise during and after construction, but insistence on strict compliance with Policy 2 [now Policy 1], which protects Natura sites in accordance with the Habitats Regulations, should prevent this detracting from meeting the site's conservation objectives. One way of securing that no adverse effect would be felt as a result of implementation of the development proposals at Nethy Bridge was as follows:

"One of the ways this would be achieved is, for applications that involve ground disturbance near to watercourses, identifying appropriate guidance for developers to follow to avoid releases of sediment or chemicals into watercourses during construction; and to ensure that there is no potential for otter to become entangled in construction materials (e.g. overnight). Hence implementation of these proposals will not detract from meeting the site's conservation objectives."

[173] That deals with one aspect of the risk during construction. However, nothing further is said about how to avoid the risk of adverse effects after construction. The position rests with the general comments on Policy 13 noted above, to the effect that the grant of planning permission would be dependant on the level of in-river Soluble Reactive Phosphorus and the requirement, in the event of planning permission being granted, for compliance monitoring to ensure that the discharge of harmful chemicals did not increase.

[174] In effect, therefore, the approach taken here is to identify an aspect of the danger and insist upon the correct steps being taken at the stage of outline and detailed planning permission. Provided strict compliance with particular policies is insisted upon, the development should not affect the integrity of the site.

The Public Local Inquiry and the Report

[175] In para.66.4 of the Report, the Reporters summarised the main issues raised in the various objections to this proposal as being:

(1) whether the allocations were appropriate for the role of Nethy Bridge as identified in the settlement hierarchy described in the Local Plan;

(2) whether there were any landscape, biodiversity or other matters which constrained the allocation of land for this purpose;

(3) whether the delineated settlement boundaries were robust and defensible

(4) whether the housing sites were effective in terms of SPP 3: Planning for Homes, Annex A para.17, and

(5) whether there were any other material considerations which should be taken into account.

They then went on to consider these issues.

[176] As to the first issue, the Reporters said this at paras.66.6 and 66.7:

"66.6 As far as the first issue is concerned, we have stated elsewhere our serious concerns about the content of Table 4 Phased land supply by local authority area (page 42). However, we note that it reflects the 13 units with planning permission at NB/H1 and land carrying outline permission for 40 units at NB/H2. Nethy Bridge has an estimated resident population of around 500 persons and is identified as an intermediate settlement in the hierarchy described in the emerging local plan. In the finalised version of the plan it is stated that Within intermediate settlements, developments should support the local communities and ensure their sustainability for the future ..."

This is a reference to what is now para.6.2 of the Local Plan as adopted. They go on:

"... However, there is no explanation in the text supporting the proposals map or, indeed anywhere else in the local plan, of why the land allocated is necessary to support the local communities of Nethy Bridge and ensure their future sustainability. Nor is there any evidence of how the land once allocated will achieve that objective. No evidence [has] been brought to our attention of any business, whether a commercial or industrial initiative, which has been choked off by the absence of land specifically allocated for economic development.

66.7 The site at NB/H1 has the benefit of full planning permission for 13 amenity dwellings and other land at Braes of Balnagowan has the benefit of planning permission for 12 houses. Construction of these units is underway. We have been made aware of other applications for planning permission on what may be described as windfall sites. With all of this in mind we find that there is no evidence of an overwhelming need within the life of this local plan for the allocation of either of the components of NB/H2."

[177] The second issue, concerning landscape, biodiversity and other matters which constrained the allocation of land, potentially raises the question of the application of s.9(6) of the 2000 Act. The Reporters discussed it at paras.66.8 and 66.9:

"66.8 Moving on to the second issue, none of the parts of School Wood covered by the objection sites have the benefit of any specific protection other than Ancient Woodland designation. As far as biodiversity is concerned, we understand from evidence given at another hearing that the importance of capercaillie in School Wood is still the subject of legitimate debate. Authoritative research has revealed that the parts of School Wood taken by the objection sites accommodate numerous dreys used by red squirrels. Red squirrels are protected under schedule 5 of the Wildlife and Countryside Act 1981 and Section 9(4) of that Act makes it an offence to intentionally or recklessly damage a red squirrel drey. Under the terms of the Act a licence could not be granted that would allow the disturbance of the dwelling place of a schedule 5 species for the purpose of development.

66.9 There can be no doubt that the fine stands of mature Scots Pine within both components of NB/H1, and also at NB/ED1, are a valuable and valued part of the setting of this part of Nethy Bridge. Their contribution to visual and general amenity represents an obvious constraint on any development. We have made our findings elsewhere in this report on the contents of Policy 4 Other Important Natural and Earth Heritage Sites and Interests, Policy 5 Protected Species, and Policy 6 Biodiversity. In our view, in order to comply with the intent of the strategic objectives of the CNPP 2007, and the content of these policies as supported by CNPA at this inquiry, the various constraints on NB/H2 can only be overcome by a demonstration of overwhelming need for housing for those who currently live and work in the Park, or have employment prospects which require them to live in the Park. There is no evidence at all that NB/ED1 is necessary to meet a particular need for land for economic development however widely defined that might be."

[178] The third issue was whether the delineated settlement boundaries were robust and defensible. The Reporters dealt with this in para. 66.10 as follows:

"66.10 ... we can see some logic in extending the boundary of the settlement to incorporate the component of NB/H2 which lies to the east of School Road. That would link the built up area to the south with the primary school to the north while accommodation the existing path and cycle track. ... We can see no similar logic in the extension of the settlement to the east thereby violating a further piece of School Wood and providing nothing at all by way of an easily recognisable robust and defensible boundary."

[179] The Reporters dealt with the fourth issue, about the effectiveness of the site, in para.66.11:

"66.11 Taking the fourth issue, CNPA state in terms that sites NB/H2 and NB/ED1 have been allocated in the adopted Badenoch and Strathspey Local Plan ... and have extant planning permissions. They are therefore considered to be effective. We cannot go along with the objector who has stated that because the sites have not been developed since their allocation in the adopted local plan in 1997 they can be considered on that ground alone not to be effective. However, neither is it conclusive that they will be built out just because outline planning permission has been granted. Permission 02/00045/OUTBE is the subject of 10 reserved matters any one of which may prove to be an insuperable obstacle to the land being developed. We understand that an application seeking approval of the reserved matters has been called in for determination by CNPA (09/052/CP). The assessment will require to take into account all matters of law, and the content of the CNPP 2007 is a material consideration along with the latest position of CNPA on land use matters as set out in the emerging local plan."

I need not set out the Reporters' views on the fifth issue.

[180] The Reporters' Conclusions on these two allocations at Nethy Bridge are set out in paras.66.20 - 66.22:

"66.20 When we draw together our findings on whether these proposed allocations should be included within the adopted local plan and review them within our findings for other objections made to what appear in the proposal map for Nethy Bridge we are driven to some uncomfortable conclusions. In summary, our findings highlight in the particular context of Nethy Bridge what we regard as fundamental weaknesses in the approach generally adopted by CNPA to its Settlement Proposals as found in Section 7 of the finalised version of the local plan."

Section 7 of the finalised version of the local plan is the equivalent of Section 6 of the Local Plan as adopted. This comment is a reference back to the Reporters' concern about CNPA's whole approach to housing land supply, a matter discussed at paras.[152] - [160] above. They continue:

"66.21 In short, there is an over reliance on land allocations inherited from extant adopted local plans without adequate consideration of whether these fit well with the aims of the Park as these are taken forward through the strategic objectives of the CNPP 2007. Related to that, there is no evidence of a proactive approach to land allocation and no explanation of why and how the proposed allocations will contribute to the creation and maintenance of a sustainable community. Insufficient attention is paid in the text to landscape, biodiversity or other matters integral to achieving the objectives of the CNPP 2007 which are fundamental to achieving the first, and predominant, aim of the Park. Nor is there adequate explanation of how settlement boundaries have been delineated such that they are sufficiently robust to endure into the medium term and provide some certainty about policy implementation while remaining defensible against extensions to accommodate proposed developments which would be unacceptable. Finally, there is no assessment for the specific purposes of the local plan whether the allocated land is effective as defined by SPP 3.

66.22 In the case of Nethy Bridge, our reservations about what is proposed are so varied and of such intensity that we are driven to the conclusion that the proposals for the settlement should be the subject of a root and branch review. That would provide an opportunity to reflect on the role of "the forest village" within the park. The output might take the form of a masterplan prepared in accordance with the good practice set out in PAN 83: Masterplanning and with engagement of all stakeholders including the local communities along the lines of what we understand is envisaged for Tomintoul. In the meantime, bearing in mind the nature and extent of current construction in Nethy Bridge, we conclude that there should be a moratorium extending for the lifetime of the local plan on all housing and economic developments, other than on windfall sites, that do not already have detailed planning permission."

The expression "windfall sites" is a term of art meaning sites which become available for development unexpectedly and are therefore not included as allocated land in the Local Plan. The Reporters' Recommendation is set out in para.66.24 in the terms of the last sentence of that paragraph, recommending a moratorium on all housing and economic developments (other than on windfall sites) that do not already have detailed planning permission.

The Analysis

[181] The Analysis proposed a number of modifications to the draft Local Plan ("the Post Inquiry Modifications"). So far as concerned Intermediate Settlements, it removed the proposed allocations for Boat of Garten and Cromdale. It concluded that, in light of natural heritage and landscape constraints and the need to adopt a precautionary principle, the site proposed for housing at Boat of Garten could not be considered effective and should be removed. So far as concerned Cromdale, it agreed with the Reporters' view that the site did not properly reflect the strategic objectives of the CNPP 2007 and should be removed, "with new development focused instead on the sites contained in the current adopted local plan, and the site with existing permission". The planning officers' comments on the housing proposed for Carr-Bridge and Nethy Bridge are set out in summary form in para.34 of the Executive Summary which accompanied the recommendation of the Analysis to the Board:

"The Reporters recommended that, in light of a variety of factors, housing sites in both Carr-Bridge and Nethy Bridge are not effective and should be removed. In both cases the sites in question have outline planning consent. CNPA does not therefore accept these recommendations and will retain these sites within the Local Plan."

The use of the word "therefore" in the last sentence of the passage quoted might be taken to suggest that the existence of live outline planning consent, mentioned in the preceding sentence, was the only reason for the retention of these sites within the Local Plan; and, further, that the existence of such consent led automatically to the conclusion that the sites should be retained in the Local Plan as proposed sites for housing development. If that was the reasoning of the planning officers, that would show a material error of law, for reasons explained earlier. But I do not think it was. The Analysis goes on to deal with this question in more detail.

[182] The Reporters' recommendations regarding the Nethy Bridge proposals are considered at pp.272-275 of the Analysis. Paras.66.20 - 66.24 of the Report are quoted, and the Analysis identifies the Reporters' concerns as being twofold.

[183] The Reporters' first concern, according to the Analysis, related to the approach in the draft Local Plan to housing land supply. The Reporters' view is recorded as being that, having regard to extant permissions on H1 and windfall sites, "there is no evidence of an overwhelming need within the life of the plan for the allocation of either parts of H2 or ED1". The Analysis notes, in para.1.1 of the section dealing with Nethy Bridge (p.273), that the issue has been dealt with at the more general level in the General Housing Land Supply section of the Analysis at pp.41-61. That is the part of the Report considered at paras.[152] - [160] above. In that section of the Analysis, it was noted that the Reporters were concerned that the Local Plan should be consistent with the aims of the Park as reflected in the CNPP 2007. The CNPP 2007 did not encourage an allocation of housing land which was very considerably in excess of that required to accommodate a population as reasonably projected on current trends. It was for CNPA to conduct its own assessment of housing land requirements within its area, and it was not required to follow slavishly approved structure plans or adopted Local Plans. The Reporters' view was that the calculation of 1568 housing units as being the number required up to 2016 was "a substantial over estimate". Their recommendation, in para.7.37 of the Report, was that parts of the Housing Land Supply section of the Local Plan be deleted, along with various Tables, and all replaced by

"text and associated tables that explains the assessment of housing land requirements in the National Park and the housing land allocations to particular settlements, in a manner which complies with the requirements of SPP 3: Planning for Homes, with the terms of CNPP 2007, and which incorporates the most up to date information available to CNPA including the various housing land audits."

[184] That concern is addressed in detail in the Analysis at pp.44-46. In summary (see para.2 on p.45), the Analysis accepted the criticism regarding Tables 2-4, and revised those Tables and the text

"to clearly set out the established and effective housing land supply identified within the Local Plan".

It also accepted the criticism regarding the "need for clarity associated with the settlement hierarchy". The reasoning is set out more fully in the text leading up to that summary. The revised Tables are at pp.52-61 of the Analysis. As explained in Appendix 2 (at p.51 of the Analysis), the calculations proceed on an underlying assumption that, to meet projected demand to 2016, there was a requirement for up to 950 units additional to those in existence at the date of commencement of preparation of the Local Plan - that assumption of the need for 950 units was based on "the housing land audits published by the constituent local authorities", i.e. on population and household projections for the Cairngorms National Park, prepared for the Park itself and for the Badenoch and Strathspey part of the Park, which were based on past trends in society and assumptions about future conditions (the reasoning is set out in full in para.4.30 of the Local Plan). Table 1 (which was based on those housing land audits) identified the baseline effective housing land supply at the commencement of plan preparation, i.e. all sites already identified in housing land audits published by Local Authorities, as being sufficient for 904 units to meet that target of 950 units. Of those 904 units already allocated, some 176 units had been completed since the baseline effective land supply was identified, according to the most up to date information (Table 2). That meant that of the initial requirement of 950 units, some 176 had been built, leaving a requirement for the Local Plan to provide land for 774 units to meet the need to 2016. Table 3 identifies the effective land supply based on the most up to date housing land audits. This shows effective land supply for a total of 969 units, comfortably meeting the requirement for 774 units (with a margin of 195 units). It should be noted that the figure of 969 units includes among the effective land supply some 50 units at Nethy Bridge H2 and 48 units at Carr-Bridge H1. Table 4 shows the effective land supply reflecting post-Inquiry modifications. That Table shows a figure for effective land supply of 835, the proposed allocations at Grantown on Spey (60 units), Newtonmore (45 units) and Cromdale (2 x 15 units) having been removed as a result of the recommendations in the Reporters' Report. Nethy Bridge H2 and Carr-Bridge H1 are retained. The retention of only 835 units after these revisions leaves a margin of only 61 units over the 774 units required to meet the need up to 2016.

[185] It was in the context of having addressed the Reporters' concerns about housing need - causing them to reduce the effective land supply to a figure of 835 units, close to the 774 required - that the Analysis addressed the Reporters' concern that the extant outline planning permission for Nethy Bridge H2 and ED1 was subject to a number of conditions any one of which might prove to be insuperable. In the Analysis, at para.1.2 of the section dealing with Nethy Bridge (p.273), CNPA meet this point by saying that in other cases, such as Aviemore, the Reporters have taken a different approach and have assumed that at sites where there is extant outline planning permission the development will go ahead:

"therefore removing the local plan allocation would not remove the benefit of the permission, nor would it safeguard the sites and prevent development as the objectors might wish."

CNPA go on to say, as an additional reason for not removing these sites from the Local Plan, that the removal of sites which have extant planning permission "would create confusion for the reader".

Consultation on the Post Inquiry Modifications

[186] In the responses to the consultation on the Post Inquiry Modifications, there were three objections to the Nethy Bridge proposals. Two are relevant here. Mr Turnbull (one of the petitioners) complained that CNPA had ignored the suggestion by the Reporters in para.66.10 of the Report that that part of NB/H2 lying to the east of School Road should be removed and identified as "ENV" (i.e. protected from adverse development), and that the extension of the settlement to the east should also be removed from the settlement boundary. No reasons had been given. All that CNPA had proffered by way of explanation was that removing those sites would not remove the benefit of the extant planning permissions. Mr Turnbull described this as a "straw-man argument":

"Neither the Reporters, nor to my knowledge any of the objectors, make the claim that removing these sites would, at a stroke, 'remove the benefit of permissions'. ... What the removal of the sites NB/H2 and NB/ED1, and the redrawing of the settlement boundary as outline above, would achieve is the following:

-                     It would provide a strong material consideration with respect to the settlement boundary and the local plan allocation that would be taken into account during any determination of the application by CNPA.

-                     It would reduce confusion and uncertainty for the local community, many of whom at present have no confidence that CNPA will defend the woodlands that create the setting of the "Forest Village" of Nethy Bridge and do so much to enhance its amenity, landscape and conservation value.

-                     It would send a strong signal throughout the national park that CNPA will defend native woodlands and particularly ancient and semi-natural woodland in the Ancient Woodlands Inventory, like School Wood, with the additional beneficial results discussed below.

-                     It would ensure that, in the event of a re-application for development within School Wood, for whatever reason, then that application would be considered in the context in which there was no allocation within School Wood for development, that the area adjacent to School Wood was identified as ENV, and that the rest of School Wood was outwith the settlement boundary."

Mr Turnbull went on to discuss the benefits of the Reporters' proposals and to argue that confusion, which CNPA said they wanted to avoid, was caused more by including these sites within land allocated for housing, thereby allowing extension of the settlement boundaries in an ad hoc and illogical manner, than by excluding them.

[187] CNPA's analysis of this objection, and their response to it, appear from the following short paragraph:

"CNPA analysis and response

The matter of the allocation at NB/H2 and NB/ED1 was considered by the Reporters during the Local Plan Inquiry. In its analysis of the recommendations set out by the Reporters, CNPA has set out its reasoning for not following their recommendations. The position of CNPA has not changed and the objection raises no new planning issues, nor has their been a material change in circumstances to warrant either a further Local Plan Inquiry or modification to the proposals for Nethy Bridge as published."

Their decision was: "No change. Do not refer the objections to a further Local Plan Inquiry."

[188] The other relevant objection was by Dr A M Jones, on behalf of himself and the Badenoch and Strathspey Conservation Group ("BSCG"). He and Mr Turnbull are the second named petitioners in this case. The objection was in similar terms, though summarised more briefly in the analysis. I quote one short passage:

"BSCG fully understands that removing allocations with outline permission does not afford them protection from development. However, removing them is of significance in planning terms: It would be a consideration for any future detailed planning permission application; it would also be a consideration for the future LDP; and a consideration in reviewing the settlement boundary. ..."

CNPA analysis and response was in similar terms to that set out in respect of Mr Turnbull's objection. Again the decision was: "No change. Do not refer the objections to a further Local Plan Inquiry."

[189] It was pointed out in argument for the third respondents that Mr Jones did not argue that the extant planning permission was not to be given weight because it was likely to be ineffective. However, what was placed before me was only a summary of each objection. The point about the extant planning permission was raised by the Reporters and, in my view, clearly formed an important part of the background to the objection as formulated, since the gravamen of the objection was as to the consequences of paying undue regard to planning permission which, though live, was unlikely to be brought to fruition.

Arguments and Discussion

[190] In their submissions, the appellants listed a number of the adverse points made in the Report and pointed to the lack of any or any adequate response by CNPA to those points. It is convenient, therefore, to focus discussion of the appellants' case by reference to those criticisms made by the Reporters, to which, it is said, CNPA have not responded or responded adequately. The main issues were summarised in para.66.4 of the Report. They were:

(1) whether the allocations were appropriate for the role of Nethy Bridge as identified in the settlement hierarchy described in the Local Plan;

(2) whether there were any landscape, biodiversity or other matters which constrained the allocation of land for this purpose;

(3) whether the delineated settlement boundaries were robust and defensible;

(4) whether the housing sites were effective in terms of SPP 3 Annex A para.17 (i.e. free of development constraints and available for the construction of housing during the lifetime of the Local Plan); and

(5) whether there were any other material considerations which should be taken into account.

For present purposes, nothing turns on the points made under (3) and (5). I limit the discussion which follows to issues (1), (2) and (4).

Issue (1)

[191] In respect of Issue (1), the Reporters' repeated the concern which they had expressed earlier (in section 7 of the Report) about CNPA's assessment and presentation of information about effective and established land supply by local authority area. In paras.66.6 and 66.7 of the Report, dealing specifically with Nethy Bridge, the Reporters focused attention on the question of phased land supply as set out in Table 4 of the draft Local Plan as it was then; and then went on to say that there was no explanation of why the land allocated was necessary to support the local communities of Nethy Bridge and ensure their future sustainability; no evidence of how the land once allocated would achieve that objective; no evidence of any business being choked off by the absence of land allocated for economic development; and, in light of existing planning permission and construction work on other sites within Nethy Bridge, no evidence of an overwhelming need within the life of the Local Plan for the allocation of NB/H2. In para.66.20, under the heading "Conclusions", the point was widened to a concern, in the particular context of Nethy Bridge, of "fundamental weaknesses" in the approach adopted by CNPA to its Settlement Proposals in Section 7 of the draft Local Plan which they had before them.

[192] The appellants' case appears to be that CNPA have simply ignored this criticism. The legal basis for this part of the challenge is Wednesbury unreasonableness and/or a failure to give adequate reasons.

[193] To my mind, this part of the appellants' case must fail. I have already touched briefly upon the reasons for this conclusion. The appellants' analysis appears to stop with the Reporters' criticisms. It takes no account of what CNPA actually did in response to those criticisms. There appears to be no recognition of the fact that CNPA specifically addressed the Reporters' concerns about Settlement Proposals in Section 7 of the draft Local Plan, and re-worked all the Tables, including Table 4. Put simply, the Reporters' concern was as to the figures used in the Local Plan to assess housing need. CNPA responded to that concern by re-working the figures using data from the most up to date housing land audits. On the basis of the latest housing land audits, CNPA reduced the housing need figure from something over 1,500 units down to 950 units, or 774 once account had been taken of 176 units already built. The revised figures were dealt with generally in paras.4.32 - 4.37 of the Local Plan as adopted and in detail in Tables 1 - 4 of Appendix 2 to Local Plan as adopted. That reduction in the housing need figure led CNPA to remove the housing allocations for Boat of Garten as well as Grantown on Spey (60 units), Newtonmore (45 units) and Cromdale (2 x 15 units). However, they decided not to remove the allocations at Nethy Bridge. In para.1.5 of the section of the Analysis dealing with Nethy Bridge, they commented, that "Nethy Bridge experiences considerable pressure for new development".

[194] In summary, therefore, in terms of balancing housing allocations with the figures for housing need, CNPA revised the housing need figures in the Local Plan in light of the comments made in the Report. Whatever the merits or otherwise of the policy, the retention in the Local Plan as adopted of the housing allocation at Nethy Bridge is not undermined by the criticism in the Report of the underlying housing requirement figures, since the Local Plan as adopted does not contain the same figures for Housing Land Requirements as were in the draft criticised by the Reporters. Those revised figures, based on housing land audits, are not challenged in this appeal. There is no challenge at all to that part of the Local Plan, as adopted, which deals with housing need and housing land supply. There could be no basis for a challenge to CNPA's having revisited the figures for housing need, since this exercise was carried out in answer to the Reporters' criticisms of CNPA's projections. Nor could it properly be suggested that CNPA approached the matter of the wrong basis, since Scottish Government advice in both SPP 3 and PAN 38 directs attention to the need to rely on housing land audits. In short, CNPA responded to one important aspect of the criticisms by the Reporters, criticisms which carried over to the discussion of these allocations at Nethy Bridge, and no suggestion has been made that their response to that aspect of the criticisms was unreasonable in any way, still less that it was unreasonable in the Wednesbury sense.

[195] It is not suggested that the revised figures for housing need are irrelevant to a consideration of the housing allocations at Nethy Bridge. The Reporters clearly thought that they were linked, otherwise they would not have linked their criticism of the Nethy Bridge proposals to their general criticisms of the treatment afforded to housing need and housing land supply in the draft Local Plan before them. If a relevant challenge was to be made to those revised figures, I would have expected it to have been supported by an analysis of CNPA's re-worked figures and an explanation of why it is said that they do not support the assessment of need at Nethy Bridge. But there was no attempt at such an analysis.

[196] In para.1.1 of the Analysis dealing with the Nethy Bridge allocations, CNPA refer back to the re-working of the General Housing Land Supply section earlier in the analysis. Their assessment was that there was a need for housing at the particular sites in Nethy Bridge, an assessment which remained despite this re-working of the housing land supply figures, and which was based in part upon their view that there was a need for housing development in Nethy Bridge and in part upon their view, which was shared by the Reporters, that there were no appropriate alternative candidate sites in the area. This was a reasoned response to this criticism and it is a response which cannot be said to be Wednesbury unreasonable. It cannot be assumed that the Reporters' concern on this account would necessarily have continued, or at least would necessarily have continued to the same extent, once CNPA had revised their entire approach to General Housing Land Supply. An attack on this allocation at Nethy Bridge based on the Reporters' criticism of figures which have subsequently been revised appears to me to miss the point.

Issue (4)

[197] It is convenient next to deal with issue (4), which concerns the effectiveness or otherwise of the site or sites with extant outline planning permission. Although both NB/H2 and NB/ED1 are mentioned in connection with this point, my understanding is that it was only NB/H2 which had the benefit of outline permission. The Reporters raised doubt about the effectiveness of this site because the outline planning permission was subject to 10 reserved matters, one or more of which might prove to be an insuperable obstacle development. They said that it was not conclusive that the sites would be built out just because outline planning permission had been granted. CNPA answer this by reference to a section of the Report dealing with Aviemore. Their point is a short one: other sites with extant planning permission subject to a number of conditions been regarded as effective. Their argument is simply that the fact that there are numerous conditions attached to the planning permission does not of itself show that the site is not effective. That is obviously right. It will be a matter of judgment in each case.

[198] The appellants challenged this reliance on the extant planning permission on the basis both of a failure to give adequate reasons and also Wednesbury unreasonableness. It was argued that, in referring to the Aviemore situation, CNPA made "an improper comparison" between Aviemore, where there was outline permission and, despite conditions attached to it, an assumption that the development there would go ahead; and Nethy Bridge, where the conditions attached to the outline permission may, so it is said, prove an insurmountable obstacle to the proposed development. That seems to me, with respect, to be misreading the purpose of making of the comparison. I do not understand CNPA to be saying that the two situations can necessarily be regarded as directly comparable on the facts. They are simply pointing to Aviemore to show that a site may be effective notwithstanding conditions attached to the outline consent. In drawing this comparison, CNPA are simply trying to counter a suggestion that because the outline permission is subject to conditions, the site should not be considered to be effective. CNPA do not argue that the existence of planning permission is conclusive of the effectiveness of the site. Obviously it is not a necessary consequence of a site having planning permission that the site will be built out.

[199] The appellants argue that nowhere do CNPA explain why the "insurmountable obstacle referred to by the Reporter" might not take effect and therefore does not have to be taken into account (I quote from the appellants' written submissions). That argument somewhat distorts what the Report says. In fact the Reporters do not say that the conditions attached to the outline consent are "insurmountable". They say that any one of the 10 conditions "may prove to be an insuperable obstacle" to the land being developed (emphasis added). The distinction is important. As the Reporters go on to say, an application seeking approval of the reserved assessment has been called in for determination by CNPA. The Reporters cannot pre-judge that determination. Nor can CNPA do so, when carrying out their statutory function as promoter of the Local Plan. In any event, the criticism of CNPA for not explaining why the potential obstacles will not stop the development for which outline permission has been given turns the legal burden on its head. It is for the appellants to set up a case that CNPA has acted unreasonably in a Wednesbury sense, not for CNPA to eliminate any possible grounds of criticism.

[200] Stepping back slightly, it appears to me that criticism of CNPA on this matter is based on a possible misunderstanding of their position. Nowhere in the Local Plan do CNPA say that the housing allocation at NB/H2 was proposed only because of the existence of outline planning permission. As I read it, in the passage of the Local Plan describing the Nethy Bridge allocation, the reference to the existence of outline planning permission is primarily descriptive, identifying a relevant factor concerning the site. It was no doubt a factor which CNPA took into account, as is made clear in the Analysis, but it is not clear that it was decisive. The Analysis makes clear that CNPA had independently determined that there was a need for housing at Nethy Bridge and had concluded that there were no other suitable sites. The Reporters agreed with the conclusion that there were no other sites which could be considered as viable alternatives if NB/H2 was removed, though on the material before them - which changed subsequently when CNPA accepted their criticisms and re-worked their figures - they could not see any overwhelming housing need to justify that allocation. Accordingly, if the need was established, the particular site NB/H2 was the only viable candidate. That, at least, is how it appears on the material before the court. The existence of outline consent, therefore, fitted well with a decision which might have been taken anyway.

[201] The appellants' final criticism in relation to the point about extant outline planning permission relates to the statement by CNPA, in para.1.3 of the relevant section of the Analysis, that removal of the allocation from the Local Plan would neither remove the benefit of extant outline planning permission nor safeguard the site from development; it would simply create confusion for the reader and the local community as a whole if a site with extant permission were removed from the Local Plan.

[202] The appellants criticise this approach on two grounds. First, they contend that there is no explanation for the statement that removing the allocation would not safeguard the sites. This is an "inadequate reasons" challenge. With all possible respect, the meaning is clear. CNPA are simply saying that the Local Plan cannot quash or remove existing planning consent or the rights and expectations flowing therefrom. Removing allocation NB/H2 from the Local Plan would not prevent the development for which outline consent has been obtained from going ahead, provided all the conditions are satisfied. The point is made by the appellants that if the allocation were removed that would mean that, if the existing consent was not carried through to development, no other consent would be granted. That is true. CNPA do not challenge that. But it is in fact hard to conceive of circumstances in which that point would have any practical significance. Either the present conditions attached to the consent prove to be insuperable obstacles, or they do not. If they do not prove insuperable, it is to be assumed that the present outline permission will be built out; while if the conditions do prove insuperable, the present consent will lapse, and it is difficult to imagine any future application being more successful.

[203] Next, the appellants say that CNPA's concern that removal of these sites might lead to confusion, is not a relevant planning consideration. For that proposition, they rely on Westminster City Council v Great Portland Estates [1985] AC 661 at 669-670. That case establishes that the test of what is a material "consideration" in the preparation of plans or in the control of development is whether it serves a planning purpose, i.e. a purpose which relates to the character of the use of land. I have no difficulty with that test, but I do not see how it vouches the proposition for which it was deployed, nor how it assists the appellants here. A Local Plan, like other development plans, is designed to set out policies that are accessible and will achieve predictable outcomes - in this way the Local Plan, and consideration of the matters that go into it and how they are expressed, directly serves a planning purpose as so described. Avoiding confusion is part of that, and is clearly, to my mind, a material consideration.

Issue (2)

[204] I come finally to issue (2), whether there are any landscape, biodiversity or other matters which constrain the allocation of land for this purpose. This issue brings into play a number of specific arguments in addition to a general Wednesbury attack and an attack based on a failure to give adequate reasons.

[206] It is convenient to introduce the point under reference to what the Reporters say about it in their Report. They discuss it at paras.66.8 and 66.9. I summarise the relevant points in this way:

(a) Though none of the parts of School Wood covered by the objection sites have the benefit of any specific protection other than Ancient Woodland designation, they do accommodate numerous dreys used by red squirrels, which are protected under schedule 5 of the Wildlife and Countryside Act 1981, s.9(4) of which makes it an offence intentionally or recklessly to damage a red squirrel drey, and which prohibits the grant of a licence that would allow the disturbance of the drey for the purpose of development;

(b) As far as biodiversity is concerned, the importance of capercaillie in School Wood is "still the subject of legitimate debate";

(c) The "fine stands of mature Scots Pine" within both components of NB/H1 (which allocation is not challenged) and NB/ED1 - though not NB/H2 - are a valuable and valued part of the setting of this part of Nethy Bridge, contributing to visual and general amenity.

In addition, they refer back to their findings earlier in the report about Policy 4 (Other Important Natural and Earth Heritage Sites and Interests), Policy 5 (Protected Species), and Policy 6 (Biodiversity). They do not say anything about these earlier findings in respect of Policies 4, 5 and 6, but it is worth repeating here that the Reporters support the inclusion of these policies in the Local Plan. In relation to Policy 6, Biodiversity, the Reporters express their agreement with the proposal that there should be a presumption against development which would adversely affect species "important to the biodiversity and ecosystems of the Park" (para.12.5). They add, in para.12.9, that they can "readily agree that where there is any threat to specific habitats and species these must be taken into account in the allocation of land in the proposals map". The Local Plan should not allocate any areas for development that are particularly sensitive, designated or have a recognised biodiversity value. They are content that applications for planning permission should be treated on their merits against the terms of Policy 6 and other policies. By the consistent application of such policies, the potential dangers pointed out by the Appropriate Assessment, for example, and the risk to capercaillie in the woods is one example, will be avoided.

[207] It should be noted that Policy 6 (Policy 5 in the Local Plan as adopted) states inter alia that development that would have an adverse impact on habitats or species identified in certain Plans or Lists will only be permitted where the need and justification for the development outweighs the local, national or international contribution of the area of habitat or contribution of species, and where significant harm or disturbance to the ecological functions, continuity and integrity of the habitat or species population is avoided or minimised, or, if harm is unavoidable, alternative habitats are provided. It was, no doubt, with such considerations in mind that the Reporters, in dealing with Nethy Bridge at para.66.9 of the Report, concluded their remarks on this issue by saying that in order to comply with the intent of the strategic objectives of CNPP 2007 and the content of those Policies, the constraints on NB/H2 could only be overcome by a demonstration of "overwhelming need" for housing for those who currently lived and worked in the Park, or had employment prospects which required them to live in the Park. There was, they said, no evidence at all that the allocation at NB/ED1 was needed.

[208] This last point is important, because it emphasises, if emphasis were needed, that the identification in the Local Plan of appropriate sites for housing and economic development involves the exercise of judgement by the relevant authority. The policies to which reference has been made, reinforced by the various statutory obligations, require a balance to be struck between a number of factors. The environmental considerations are clearly important, and in some cases require to be given priority. But the legislation to which I have been referred does not require those considerations to be allowed a veto. The 2000 Act, for example, sets out four National Park aims, the first of which is "to conserve and enhance the natural and cultural heritage of the area" while the fourth is to "promote sustainable economic and social development of the area's communities": see s.1. The Park authority, CNPA, must act with a view to ensuring that those four aims are collectively achieved: s.9(1). That, no doubt, will sometimes be possible. But in the event that it cannot be achieved, i.e. where there is conflict between the first aim and the others, then CNPA must give "greater weight" to the first aim, that of conserving and enhancing the natural and cultural heritage of the area. As I have said earlier, giving greater weight to that first aim does not mean always allowing it to trump one of the others where the two aims conflict. A balance always has to be struck. This is recognised in the Report when the Reporters say (in para.66.9) that the constraints on NB/H2 could - albeit "only" - be overcome by a demonstration of overwhelming need for housing for those who currently lived and worked in the Park, or had employment prospects which required them to live in the Park. I understand the use of the word "overwhelming" in that passage to mean no more than this: that housing development will only be allowed if the need for housing in the area is sufficient to justify allocating a particular site for housing even though such an allocation would cut across environmental considerations. In the context of ss.1 and 9 of the 2000 Act, it means that the balance must fall in favour of housing development even though, in striking the balance, greater weight is to be given to the aim of conserving and enhancing the natural and cultural heritage of the area. The obligation under s.14 of the 2000 Act to have regard to the CNPP 2007 involves a similar balancing exercise, though in that case there is not the statutory weighting in favour of the natural and cultural heritage. Similar considerations apply to the 2004 Act, which places on a public body such as CNPA a duty, in drawing up a Local Plan, "to further the conservation of biodiversity so far as is consistent with the proper exercise of those functions": s.1(1). I have discussed those provisions in principle earlier in this Opinion and need not repeat that discussion here.

[209] It is relevant in this context to note the discussion in paras.66.12 - 66.19 of the Report about other sites for housing in the Nethy Bridge area. The Reporters considered "an array of suggestions" for further housing allocations in and immediately adjacent to the built up area of the settlement. Sites at Duackbridge, Dell Road, Lettoch Road and other areas were all considered, but the Reporters concluded that there were strong reasons, including environmental and biodiversity reasons, for not considering them as alternative sites for housing allocations. It would seem to follow from this that, if there is a need for new housing in Nethy Bridge such as to outweigh competing environmental concerns (even taking account of the statutory weighting given to such concerns), the Reporters take the view that there is no other suitable site in Nethy Bridge to accommodate that required housing development. NB/H2 is the only candidate, at least of those considered both by CNPA and opponents of the chosen site.

[210] At the end of this chapter of the Report, therefore, the Reporters set out their conclusions (in paras.6.20 - 6.23). Attempting some kind of synthesis, their conclusions can, I think, be summarised in this way:

(a) The need for additional housing at Nethy Bridge was not adequately demonstrated. This is a reference back to their criticisms in Chapter 7, which I have discussed above. They considered that there was a fundamental weakness in the analysis of housing need, and an overgenerous supply in the allocations in the Local Plan as it then was.

(b) Too much reliance had been placed on allocations from previous local plans, without seeing how they fitted with the strategic objectives of CNPP 2007. Although couched in general terms, this point appears to relate only to the question of effectiveness of the extant outline planning permission at NB/H2, a point which I have discussed earlier.

(c) There was no evidence of a "pro-active approach" to land allocation, and no explanation of how the proposed allocations would contribute to the creation and maintenance of a sustainable community. It is not entirely clear what is meant by a "pro-active approach" in this context, but the question about how the new allocations would contribute to the creation and maintenance of a sustainable community appears to be a reflection of the criticism of the housing need analysis made in para.66.6 (see (a) above) and the comment in that paragraph, in light of that, that there is therefore no explanation of how the allocation would benefit or support the community.

(d) There was insufficient attention paid in the text to landscape, biodiversity or other matters integral to achieving the objectives of CNPP 2007, which in turn were fundamental to achieving the first and "predominant" aim of the Park.

(e) There was no adequate explanation or certainty about settlement boundaries. This is not a point that is raised on this appeal and I need say nothing more about it.

The conclusion was that there should be a root and branch review and, in the meantime, a moratorium, extending for the whole life of the Local Plan, on all housing and economic developments (other than windfall sites) that did not already have detailed planning permission. That last qualification applied to NB/H1 which already had detailed planning permission. While accepting the need for a root and branch review, CNPA did not accept the need for a moratorium on development meanwhile.

[211] The appellants say that no consideration at all has been given by CNPA in their Analysis to the natural heritage points made in the Report. That is, I suppose, true to an extent. But it leaves out of account two important matters. The first is that the allocations made in the Local Plan, including those for Nethy Bridge, were made in light of the various Policies set out in the earlier parts of the Local Plan. These Policies include a recognition of the statutory and other obligations with regard to the environment, biodiversity and cultural and natural heritage. It is clear that in selecting and finalising proposals for the sites for housing development within the National Park area for the purpose of the Local Plan, CNPA attempted to take account of all of the environmental and natural heritage policies set out earlier in the Local Plan and also had regard to the SEA and the Appropriate Assessment. Whether they did so successfully or not is not a matter for the court, unless their decisions can be shown to be Wednesbury unreasonable. There was a faint attempt to argue that the Local Plan in fact took no account of the various statutory requirements. I did not understand that to be persisted in. In Chapter 3, "Conserving and Enhancing the Cairngorms National Park", Policy 1 covers Natura 2000 sites. Policies 5 and 6 cover Biodiversity and Landscape respectively, under reference to the 2004 Act and to the strategic objectives of the CNPP 2007. Policy 11, dealing with the Local and Wider Cultural Heritage of the Park, specifically recognises the aims listed in the 2000 Act, as well as the strategic objectives of the CNPP 2007. There was no detailed criticism of the proposals for Nethy Bridge - or, for that matter, the other allocations challenged in this appeal - with a view to attempting to show that in arriving at those proposals CNPA had ignored the Policies which they had laid down earlier in the Local Plan. Such an exercise would be well-nigh impossible, and despite occasional suggestions from counsel for the appellants that CNPA had simply paid lip-service to the Policies when considering Nethy Bridge (and the other disputed allocations), I took it to be accepted that they had indeed, at the stage of deciding upon the allocations, had regard to the appropriate Policies. In any event, even if it was not accepted, I can find no basis for finding that CNPA failed at that stage to have regard to the relevant Policies. Accordingly the criticisms directed at CNPA are confined to their response, or, as the appellants would have it, their lack of response, to the criticisms made by the Reporters in Chapter 66 of the Report. It is this response or lack of it which gives rise to a "reasons" challenge. It is said that CNPA have failed to explain why they have gone ahead with these allocations in face of serious criticism by the Reporters.

[212] This leads on to the second matter left out of account by the appellants in their criticisms on this issue. As discussed earlier, the appellants approached this whole question by assuming that CNPA had not responded to the Reporters' criticisms. But, as I have already pointed out, that was not the case. In fact, in light of the Reporters' criticisms of the housing need analysis, CNPA completely revised their figures, reducing the number of units required over the lifetime of the Local Plan and deleting certain allocations. They kept the Nethy Bridge allocations because, as they say in para.1.5 of the relevant section of the Analysis, Nethy Bridge experiences considerable pressure for new development. It was not suggested that that judgement was unreasonable. The revised figures, to be found now in paras.4.19 - 4.38 and in the Tables in Appendix 2, are not challenged. In short, therefore, to the Reporters' criticism that, because their assessment of housing need in the whole area was flawed, they had struck the wrong balance, CNPA have responded by re-considering the housing need question and making significant adjustments to it. That re-assessment of the housing need for the whole area is not said to be unreasonable. Nonetheless, CNPA concluded that the need for housing in Nethy Bridge during the lifetime of the Local Plan remained pressing. Accordingly, they maintained their view that the balance was to be struck in favour of maintaining the proposed allocations, and, while agreeing to a comprehensive review, rejected the suggestion of a moratorium.

[213] In those circumstances, it is clear that CNPA have given reasons for rejecting the Reporters' recommendation of a moratorium. Those reasons are intelligible. They are adequate to explain CNPA's reasons for not following the Reporters' recommendation. There is therefore no foundation for the reasons challenge.

[214] Nonetheless, the appellants argue that the decision is unreasonable in the Wednesbury sense. That argument might have some force if it could be said that, in deciding upon the Nethy Bridge allocations, CNPA had altogether ignored their statutory obligations, the strategic aims of the CNPP 2007, or one or more of the relevant Policies set out in the Local Plan. But that is not said. I have already explained why such an argument, if advanced, would fail. All that is said is that they did not follow the Reporters' recommendations and that they had no good reason for not following them. That argument must be rejected. It was not suggested that CNPA were bound to follow the Reporters' recommendations. The fact that they did not does not mean that they disregarded the relevant statutory obligation and Policies. All that it shows is that they did not agree with the criticism. Their reason for not following the recommendation was that they considered that the balance fell to be struck in a different way. That was in large part because, having accepted the criticism of their housing need analysis and re-worked the figures, they remained of the view that development was required at Nethy Bridge. That may be something upon which opinions may legitimately differ. However, that decision is not for the court. The court cannot intervene unless CNPA have misdirected themselves, or failed to have regard to a relevant consideration, or had regard to an irrelevant consideration, or reached a conclusion that no reasonable decision maker in their position, properly informed of the facts, could properly have reached. This is not such a case.

[215] I have earlier in this Opinion discussed a number of the grounds of challenge advanced by the appellants based on alleged breaches of statutory duty, Habitats Regulations, failure to take certain matters into account, and so on.. Under each head I expressed the view that at a general level the challenge failed, but that it would be necessary to consider the detailed facts in respect of each allocation under appeal to see whether it could be shown that, despite having formulated the appropriate Policies in the Local Plan, in substance CNPA had failed to have regard to them. Having now considered the material relating to Nethy Bridge in some detail, I am not persuaded that the appellants have been able to demonstrate that CNPA have failed to take any of the material considerations into account. Indeed, I am persuaded that the appellants have not shown any basis for a successful challenge.

[216] For all of these reasons, the appeal in respect of the Nethy Bridge allocations must fail.

(C) Carr-Bridge C/H1 - allocation for up to 117 dwelling houses;

[217] In relation to Carr-Bridge, the policy challenged is C/H1, an allocation for up to 117 dwelling houses. C/H1 provides as follows:

C/H1: This site has an outline planning permission for up to 117 dwellings and a detailed application is now with the Cairngorms National Park Authority for the development of this number across the site. This will assist in providing housing for this Local Plan and its housing needs. The site is broken up by an area of bog woodland habitat and the entire area has a range of habitats and UK biodiversity action plan species that need to be safeguarded within the development.

C/H1 is shown on the map accompanying the proposal. It is in fact a combination of three sites, all to the east and south east of the existing settlement at Carr-Bridge. The largest portion is on the eastern extremity of the settlement, comprising a field known as the Boy's Brigade Field and adjoining woodland. The other portions include a small site known as the Horse Field, together with some woodland in and around that field. As in the case of Nethy Bridge, this allocation took shape in the Consultative Draft Local Plan and later in the Deposit Draft Local Plan and the SEA Environmental Report of 2007.

The Environmental Report

[218] The Environmental Report noted that site C/H1 formed part of a site allocated in the Badenoch and Strathspey Local Plan 1997 and had outline planning consent for 117 houses. In view of that, no significant alternatives to Carr-Bridge C/H1 were considered. Because site H1 had planning consent, Carr-Bridge would not need additional new housing development in the lifetime of the Local Plan.

[219] In the scoring exercise, it was recognised that the consented housing development on site H1 did not avoid harm to the bog woodland habitat and risked harm to a range of rare ant species in or close to the site. Detailed discussions as to how to avoid significant negative effects on diversity of species and habitats and on the integrity of ecosystems in the Park were ongoing with the developer. The potential effects were being assessed in more detail and options to avoid, minimise and mitigate the effects were being explored in the determination of reserved matters for the site. Those reserved matters were, as I understand it, reservations on the existing planning consent. No additional mitigation was considered necessary.

[220] It is not clear from the Environmental Report that an Appropriate Assessment was required in respect of this part of the Local Plan. However, that may not matter, since one was in fact carried out.

The Appropriate Assessment

[221] I have already set out in relation to Nethy Bridge the general concerns covered in the Appropriate Assessment for the area. For ease of reference, and notwithstanding that it involves some repetition, I shall summarise the relevant parts of that here. The part of the Appropriate Assessment which concerns the proposals for Carr-Bridge is the part dealing with the River Spey SAC where, as noted above, the relevant Conservation Objectives were identified as being:

"To avoid deterioration of the habitats of the qualifying species (listed below) or significant disturbance to the qualifying species, thus ensuring that the integrity of the site is maintained and the site makes an appropriate contribution to achieving favourable conservation status for each of the qualifying features; and

To ensure for the qualifying habitats that the following are maintained in the long term:

·        Population of the species, including range of genetic types for salmon, as a viable component of the site

·        Distribution of the species within site

·        Distribution and extent of habitats supporting the species

·        Structure, function and supporting process of habitats supporting the species

·        No significant disturbance of the species

·        Distribution and viability of freshwater pearl mussel host species

·        Structure, function and supporting processes of habitats supporting freshwater pearl mussel host species"

The qualifying species were Atlantic salmon, freshwater pearl mussel, otter and sea lamprey.

[222] In respect of Policy 13 on water resources (now Policy 12), it was noted that new development was likely to have a significant effect on the River Spey because it could result in a deterioration of water quality. Connecting the new developments in the area to the public sewerage network could potentially affect water quality in the river, with an effect on the qualifying species:

"In particular, research specific to adult Freshwater Pearl Mussels identifies a sensitivity limit of 0.03 mg/l Soluble Reactive Phosphorous to maintain the favourable conservation status of the species. The corresponding limits for Juvenile Freshwater Pearl Mussel, Atlantic Salmon or Sea Lamprey are not known."

The Appropriate Assessment concluded, however, that provided that certain safeguards were adhered to, implementation of the policy would not detract from meeting the site's conservation objectives. The salient passage reads as follows:

"In practice, however, all development proposals will have to comply with Policy 2 [now Policy 1], which protects Natura sites in accordance with the Conservation (Natural Heritage etc) Regulations 1994 (as amended). One of the ways this would be achieved is by only granting planning permission if it can be demonstrated that the 0.03 mg/l threshold for Soluble Reactive Phosphorous in-river will not be exceeded as a result of the proposed development. In addition, compliance monitoring can be used to ensure that the discharges of harmful chemicals do not increase in the future. In the longer term, in order to inform decisions on discharge consents further research is needed into the tolerances of the qualifying species to concentrations of different chemical, and also into the sources of these chemicals and the paths by which they reach the river."

[223] So far as concerned the predicted effect of the proposed development of Carr-Bridge, the Appropriate Assessment noted (as in the case of Nethy Bridge) that contamination could arise during and after construction if physical or chemical contaminants were released into the River Spey. This was so particularly for development of sites ED1 and ED2, because of their proximity to the Spey. In addition, construction might cause disturbance to otter.

[224] However, it was considered that insistence on strict compliance with Policy 2, now Policy 1, should enable the site's conservation objectives to be met. One way of securing that no adverse effect would be felt as a result of implementation of the proposals at Carr-Bridge, as at Nethy Bridge, was for applications involving ground disturbance near to watercourses to identify

"... appropriate guidance for developers to follow to avoid releases of sediment or chemicals into watercourses during construction; and to ensure that there is no potential for otter to become entangled in construction materials (e.g. overnight). Hence implementation of these proposals will not detract from meeting the site's conservation objectives."

Again, nothing further was said about how to avoid the risk of adverse effects after construction. Matters were left to rest with the comments on Policy 13 to the effect that the grant of planning permission would be dependant on the level in-river of Soluble Reactive Phosphorus and the requirement, in the event of planning permission being granted, for compliance monitoring to ensure that the discharge of harmful chemicals did not increase.

[225] In short, the same approach was taken to the proposals as was taken at Nethy Bridge; identify the dangers and insist on the correct steps being taken at the stage of outline and detailed planning permission. It was considered that, provided strict compliance with particular policies was insisted upon, the development should not affect the integrity of the site.

The Public Local Inquiry and the Reporters' Report

[226] So far as Carr-Bridge was concerned, the Reporters noted in their Report at paragraphs (60.2 - 60.3) that the deposit version of the Local Plan showed that site C/H1 had outline planning permission for 89 market and 28 affordable houses to provide for Carr-Bridge housing needs for the life of the Local Plan. The finalised version of the Local Plan in the form in which it was in at the time of the Inquiry had removed the reference to affordable housing and updated the text to reflect the fact that a detailed planning application for 117 homes was under consideration by CNPA. It also noted in (para 60.4) that the allocation for C/H1 broadly reflected the allocations in the adopted Badenoch and Strathspey Local Plan 1997. CNPA informed the Reporters at the Inquiry that negotiations were on-going regarding the proposed layout of the development on the site. There were conditions attached to the outline planning permission which had been granted, and if the reserved matters application, relating to the subject matter of those conditions, was refused, then the outline planning permission would fall. That outcome could prove fatal to development on the site. Nonetheless, CNPA believed that the issues could be resolved and, as a result, in the finalised version of the Local Plan which was before the inquiry, they had proposed a housing allocation which could be construed as "effective" in terms of SPP 3: Planning for Homes (see para 60.5).

[227] A number of objections were raised in relation to the proposed allocation at the site. In para 60.6 the Reporters summarised the main issues to be addressed arising out of those objections as follows:

(1) Whether the amount of the housing land allocated in the draft Local Plan was appropriate for the role that Carr-Bridge played in the settlement hierarchy.

(2) Whether there were landscape or natural heritage matters which constrained the allocation of C/H1 to such an extent that there should be a presumption against housing development;

(3) Whether C/H1 was effective in terms of SPP 3, Annex A, para 17; and

(4) If C/H1 was deleted from the Local Plan, whether the sites covered should be redesignated as part of an extended network of ENV inside and outwith the defined settlement boundary, to be protected from development and to contain the built up area of Carr-Bridge.

They then went on to consider these issues.

[228] As to the first issue, the Reporters took no issue with the classification of Carr-Bridge as an intermediate settlement. Its population in 2001 was 652, and the village services included a school, shops, tourist facilities and some industrial type activities. CNPP 2007 supported growth to meet the needs and sustain the future of such a community. The Reporters then added this, at para 60.8.

"However, we can find no explanation in the finalised version of the local plan or in any of the inquiry evidence to establish why C/H1 in particular is needed to achieve this for Carr-Bridge, or to explain how C/H1 will deliver that outcome".

They followed up this remark by recalling their concerns that the supply of housing land in the finalised local plan was over generous (as to which, see above); and also their concerns about the lack of any community based information to support the principal of allocating such a large amount of additional housing to an intermediate settlement. In this connection, it should be recalled, as noted above, that CNPA accepted the Reporters' criticism in Chapter 7 of the Report of the over generous supply of housing land in the draft Local Plan, and this resulted in re-calculation and the input of different figures into the Local Plan which was considered at the Inquiry. As a result, the Local Plan adopted in October 2010, which differs in this respect from the Local Plan considered by the Reporters, is not caught by the criticism in the Report about an over generous supply of housing development, since that criticism has been met and there has been no critical analysis or criticism of CNPA's revised figures.

[229] The second issue relates to landscape or natural heritage constraints on the site. Dealing with this issue, the Reporters (in para 60.9) confirmed that C/H1 had no particular designation safeguarding automatically its natural heritage value. Scottish Natural Heritage (SNA) had raised no objections to the development. However, the Reporters were satisfied that the central bog woodland area had significant biodiversity value, as a result of which it had been allocated as ENV and not for housing development as it had originally been. Dealing with the outline planning permission which had been granted, the Reporters say this:

"60.10 Outline planning permission was granted with a specific requirement to undertake detailed surveys of wildlife and local hydrology. Some survey information has been submitted to CNPA by a prospective developer, but the results have been challenged and undermined to the extent that more information has been sought.

60.11 The dispute over the submitted survey information centred primarily on the woodland parts of C/H1 where the objectors' research has revealed numerous red squirrel dreys along with activity by capercaillie and by several other significant organisms. Red squirrels are protected under the Wildlife and Countryside Act 1981, so that development resulting in disturbance to them could not be granted. However, a related issue is the complex interaction between soil composition, water levels, and biodiversity, as well as between C/H1 and the ENV designation because development might cause harm through displaced impacts to an extent that it should be prevented. While we are satisfied that this represents an obvious constraint to development, our difficulty is that we only have limited information on which to base a conclusion.

60.12 On the one hand, CNPA has not furnished the developer's survey information and on the other, the only other evidence from the objectors was presented orally to the hearing, which limits our ability to verify it. However, that evidence described site conditions in considerable detail and it showed an obvious and intimate local knowledge, which must carry weight. The objectors' position is also supported by Topic Paper 4a ..., which summarised the findings of the Strategic Environmental Assessment (SEA) of the [Local Plan]. From that, C/H1 scored a significant negative against each environmental impact objective. Of particular note are objectives 1 and 2, which relate to the conservation and enhancement of the diversity on species and habitants, as well as objectives 4 and 5 that cover the protection and improvement of water bodies and the maintenance of catchments and hydrological systems.

60.13 Therefore, whilst the position on biodiversity is not yet certain, the balance seems to be shifting in favour of protecting more of the woodland from development than had previously been thought necessary, and certainly from when the site was designated in the adopted local plan and the outline planning permission was granted. Further, without a satisfactory outcome from this process, CNPA accepted at the hearing that other legal requirements, like the degree of protection afforded to the squirrel dreys, might make the outline planning permission incapable of implementation. As a result, we find that the existence of the outline planning permission does not support an assumption that the houses will or even can be built. The subsequent and related planning applications have been with CNPA for 4 years and 2 years respectively, and the fact that both stand undetermined after such an inordinately long time indicates to us that the issues remaining to be addressed are significant impediments to development".

The Reporters then dealt with certain landscape considerations and concluded that the development on most of the site C/H1 "would harm the landscape value of Carr-Bridge".

[230] The third issue considered the effectiveness of the site. The Reporters dealt with this issue at paras 60.16 - 60.18. The evidence given to the inquiry by CMPA had indicated that since C/H1 currently had outline planning permission it must be regarded as a contributor to the effective land supply. The Reporters regarded it as a fundamental weakness to place such heavy reliance on the existence of outline planning permission. However, in terms of the tests for effectiveness set out in Annex A to SPP 3, they indicated that they had no reason to suppose that the landowner was not a willing participant, had no evidence to suggest that housing was not the most appropriate or marketable form of development, had not been made aware of any physical constraint that could not be resolved, did not believe the site to be contaminated, and recognised that the prospect of development was not dependant upon public subsidy or the provision of specific infrastructure. They were, however, concerned about the "remaining test", that of "marketability". The site was allocated in Table 4 as capable of development within the 5 year period of the Local Plan. However, the Reporters note that it had not yet been established that the site was capable of development for biodiversity reasons, and the relevant subsequent planning applications had been undecided for a considerable length of time. Failure to satisfy the requirements attached to the outline permission would be fatal to the allocation. The Reporters had concerns about a mismatch between conditions attached to development in Table 4 and the extant outline planning permission which had been granted. They were concerned that the lack of development in associated areas suggested that the site was unattractive and not easily marketable. They concluded with this comment:

"60.18 To overcome all of these constraints, and thereby also to comply with the aims of the National Park and the strategic objectives of the CNPP 2007 as well as other finalised local plan policies that govern the protection of the natural environment, CNPA would need to show an overwhelming and locally driven need for the housing level to comprise C/H1. As we have stated above, we consider that requirement is not satisfied".

[231] Finally, the Reporters discussed and rejected the idea that the whole of C/H1 should be redesignated as ENV to safeguard it from development. But they did consider that designating much of it as ENV could establish a robust and appropriate settlement boundary for Carr-Bridge with some scope for additional development on the elevated farmland including at Boys Brigade Field.

[232] The Reporters' conclusions were as follows:

"60.20 Overall therefore, we conclude that the allocations in the finalised version of [the Local Plan] rely too heavily on those inherited from the extant adopted Local Plan, without adequate demonstration that these allocations continued to fit the prevailing and fundamentally changed circumstances. These new circumstances include the requirement to comply with the strategic objectives set by the CNPP 2007. In the absence of an overarching vision for the settlement, and evidence which demonstrates a locally generated housing need, we have difficulty in concluding that the amount of housing land allocated is appropriate for the role that Carr-Bridge plays in the settlement hierarchy.

60.21 We are also concerned about placing such heavy reliance on the existing outlying planning permission as a driver for the allocation when there are clear indications that other diversity issues may now render that permission incapable of implementation ...

60.22 The marketability and thereby also the effectiveness of C/H1 are at best doubtful, whereby we cannot conclude that C/H1 is effective in terms of Annex A of SPP 3 Planning for Homes. ...".

There recommendation was that with the exception of the Boys Brigade Field, housing allocation C/H1 should be deleted from the Carr-Bridge proposals map in the Local Plan.

Analysis of Recommendations in the Report ("the Analysis") - May 2010

[233] The Carr-Bridge proposals and the Reporters recommendations concerning them are dealt with at pp.254-256 of the Analysis. Paras 60.20 - 60.25 are quoted. The main criticism made by the Reporters related to the question whether the existing outline planning permission for the site was effective, in the sense that it would or could result in houses being built there. The Reporters concern was based on the fact that years had gone by without detailed planning permission being obtained. To the Reporters, this indicated difficulties in the potential developers meeting the conditions attached to the outline permission. In dealing with this, the Analysis compares the position with what the Reporters said about Aviemore:

"1.3 Previously in their report, the Reporters consider Aviemore H2 and H3... There are similarities with these housing allocations, as the sites in Aviemore also have the benefit of an outline permission which is subject to a very large number of conditions. The Reporters in 46.10 state, 'these sites have been allocated for development consistently since the adopted local plan and the [Draft Local Plan] allocations do more than recognise their current planning status, i.e. that they both have outline planning permission for residential development for up to 104 homes. Those permissions can be implemented irrespective of any Local Plan designation and we must assume that they will be implemented. Therefore, removing the Local Plan allocation would not remove the benefit of the permission, nor would it safeguard the sites and prevent development as the objectors might wish'.

[234] CNPA then go on to say this in para 1.5:

"In looking at the above, CNPA agree with the Reporters in 46.10 that removing CB/H1 would not remove the benefit of permission, and would not safeguard the sites from development. CNPA do not therefore consider it appropriate to remove this site as allocations from the Local Plan. Further, CNPA consider the removal of this site would create confusion for the reader, and the local community. CNPA has previously committed to improving the clarity for the reader, and considers this recommendation to be retrograde step".

They then consider and reject a proposal that the land be reallocated as ENV.

Consultation on the Post Inquiry Modifications

[234] At the subsequent consultation, an objection was raised by Dr A M Jones and the Badenoch and Strathspey Conservation Group. So far as it is relevant to this appeal, the objectors objected to CNPA including H1 in Table 3 as "effective" land in spite of the Reporters having concluded that it was ineffective. The objectors pointed out that the Reporters had stated clearly that the marketability and therefore also the effectiveness of the site were at best doubtful as a result of which they could not conclude that the site was effective. Yet CNPA had included H1 without reasoned justification in Table 3 detailing effective land supply.

[236] The CNPA's analysis and response was as follows:

"The issue of housing land allocations in Carr-Bridge was considered by the Reporters at the Local Plan Inquiry and CNPA had set out the reasons for its decision not to accept the recommendation to amend the allocations accordingly. Table 3 of the Local Plan sets out the published information from the Local Authorities which replicates their agreed effective housing land supply data. It is provided for information proposes and has not been manipulated by CNPA. The site was established by the Local Authority as effective and included in their data set in 2007. The information is historical. The matter of the allocation was considered by the Reporters during the Local Plan Enquiry. The objection raises no new planning issues and there is no material change in circumstances to warrant either reference to a further Local Plan Enquiry or modification to the proposals for Carr-Bridge as published".

Arguments and Discussion

[237] I refer to the general points made in respect of Nethy Bridge. Many of the specific points made in respect of Nethy Bridge apply equally to the case of Carr-Bridge, and I shall therefore be able to deal with them more briefly.

[238] Again, and for the same reasons as for Nethy Bridge, I propose to focus the appellants' case by reference to the criticisms made by the Reporters in their Report, to which CNPA is said not to have responded adequately or at all. The main issues, as summarised in para.60.6 of the Report, were:

(1) whether the amount of housing land allocated was appropriate for the role that Carr-Bridge plays in the settlement hierarchy described in the Local Plan;

(2) whether there were landscape or natural heritage matters which constrain the allocation of land so as to create a presumption against housing development;

(3) whether site C/H1 was effective in terms of SPP 3 Annex A para.17; and

(4) whether, if C/H1 were removed, the sites should be re-designated as part of an extended network of ENV spaces to be protected from development.

Nothing turns on point (4) for present purposes. I limit the discussion which follows to issues (1), (2) and (3).

Issue (1)

[239] As regards issue (1), the Reporters take no issue with Carr-Bridge being classified as an intermediate settlement in the hierarchy, based on population size (652 in 2001) and the range of facilities on offer (a school, shops, tourist facilities ad some "industrial type" activities). In terms of CNPP 2007, therefore, growth was encouraged so as to meet the needs of the community and to sustain its future. The Reporters' concerns were as to (i) whether development at site C/H1 was needed to achieve this for Carr-Bridge and (ii) how development there would achieve these objectives. Neither (i) nor (ii) were explained in the draft Local Plan or in evidence at the Inquiry. They repeated their view, noted above, that the supply of land for housing in the draft Local Plan before them was "over-generous".

[240] It was not entirely clear to what extent the appellants criticised CNPA for not giving a detailed answer to the Reporters' criticisms on this aspect. The appellants in their submissions noted that the Reporters had said that there was no evidence to establish why C/H1 was needed to achieve the growth needs of the community, but the point was not pressed directly in any detail. Nonetheless, I should deal with it. I can do so briefly. As already noted in the discussion concerning Nethy Bridge (see above), the Reporters' concerns about the over-generous supply of housing land in the Local Plan were accepted by CNPA. Those concerns were set out fully by the Reporters in section 7 of the Report. As a result, CNPA re-worked the Tables in the Local Plan and reduced the amount of new housing for the area. They removed certain housing allocations from the Local Plan. However, they decided to retain the allocation at C/H1 at Carr-Bridge. That was because they considered there was a requirement for additional housing at Carr-Bridge. I do not detect in the Report any dissent to the proposition that additional housing is required at Carr-Bridge. Nor, so far as I am aware, is the need for such additional housing at Carr-Bridge challenged by the appellants. On that basis, it may be that the concern in the Report is directed to whether the amount of proposed new housing is excessive. The formulation of issue (1) appear to be concerned with the amount of housing land allocated to Carr-Bridge as an intermediate settlement. But the text in the Report on this issue (in para.60.8) does not say what the appropriate or maximum figure should be. Nor do the appellants give any such figures. Given that the Reporters appear to accept the need (or at least the argument) for growth, and given that no other site at Carr-Bridge is suggested, I find it difficult to understand the Reporters' concerns about whether development at C/H1 was needed to achieve this growth and their doubts about how development there would achieve or help to achieve whatever growth was required.

[241] It is clear that site C/H1 was chosen in large part because (a) it reflected the allocation in the adopted Badenoch and Strathspey Local Plan 2007 and (b) it was already the subject of outline planning permission for 89 market and 28 affordable homes, a total of 117 homes. Although neither of these matters would compel CNPA to retain this allocation, these were both relevant considerations which CNPA was entitled to take into account, and I do not understand it to be suggested that they were not. I shall come back (when dealing with issue (3)) to consider the question whether the existence of outline planning consent made the site effective, but for present purposes, in dealing with issue (1), I cannot see any merit in the contention either that inadequate reasons were given to explain the decision to include C/H1 within the housing allocations or that that decision was Wednesbury unreasonable.

Issues (2) and (3)

[242] Issue (2) concerns the question of whether any landscape or heritage matters constrain development so as to lead to a presumption against it. Issue (3) concerns the effectiveness or otherwise of the site. It is convenient to deal with both issues together, since the question of the extant planning permission is, in the case of Carr-Bridge, raised in respect of both issues. The Reporters dealt with issue (2) in paras.60.9 - 60.15. They dealt with issue (3) in paras.60.16 - 60.18.

[243] Dealing first with issue (2), the Reporters pointed in para.60.9 to the fact that it now appeared that the central bog woodland area had significant biodiversity value, as a result of which it had now been allocated ENV in the Local Plan. By contrast, they noted that information about the remainder of the site, which now made up C/H1, was less conclusive, for a number of reasons. Those reasons are set out in paras.60.10 - 60.13. To my mind, it is important to distinguish between, on the one hand, this central bog woodland area designated ENV, and, on the other, the remainder of the site, now called C/H1, to which the point made about significant biodiversity value does not apply. As regards C/H1, the Reporters noted (in para.60.10) that survey information provided by a prospective developer pursuant to a requirement of the planning permission had been challenged. Evidence presented at the Inquiry had revealed red squirrel dreys (red squirrels having statutory protection), capercaillie activity and other significant organisms: para.60.11. A related issue was the complex interaction between soil composition, water levels and biodiversity: see also para.60.11. These were all points which, if substantiated, would be an obvious constraint to development. However, the points were not as yet substantiated. The Reporters recognised that they had only limited information on which to base a conclusion. They stressed, therefore, in para.60.13, that their position on biodiversity was not yet certain. However, on the basis of what they had heard at the Inquiry, they considered that the balance was shifting in favour of more woodland protection on the site and against development there.

[244] Against that background of evidence having been given about possible significant difficulties in way of development at C/H1, the Reporters observed (in paras.60.13, repeated in 60.16) that the existence of the outline planning permission did not support an assumption that the houses would or could be built.

[245] I should deal with the planning permission point straightaway. In the Analysis, CNPA answered this point about the extant planning permission in much the same way as they had answered the same point in respect of Nethy Bridge. In short, they recognised that the extant permission did not support an assumption that the houses would be built. But equally, the fact that there were conditions attached to the extant permission, or that there were other difficulties potentially in the way of development, did not mean that the site should not be regarded as effective. They preferred to retain this housing allocation for the reasons stated in para.1.5 of the relevant section of the Analysis, because removing the allocation (a) would not protect the site from the risk of development and (ii) would cause confusion. Both of those reasons are in my opinion clear and legitimate. I refer to what I have said about the issue previously. Unless the reasoning can be said to be unreasonable in a Wednesbury sense, which here it cannot, it is not for the court to substitute its own view on the merits of the issue.

[246] The Report then went on, still dealing with issue (2), to consider the question of likely harm to the landscape and character of Carr-Bridge, basing itself on the findings of CNPA's Landscape Capacity for Housing Study. It concluded, in para.60.15, that development on most of C/H1, in effect the whole of it apart from the Boys Brigade Field, would harm the landscape value of Carr-Bridge. The Conclusions and Recommendation in paras.60.20 - 60-25 were to the effect that the Boys Brigade Field should be the only site taken forward for development in the adopted Local Plan. However, the appellants' submissions, while noting that the Report made these points, did not raise a specific criticism of CNPA's lack of response to them. (I should mention here that no criticism is made by the appellants in relation to the other aspect of effectiveness, where the Report (in para.60.17) identified certain constraints in the outline planning consent relating to speed of house building.)

[247] The appellants say that, in the Analysis, CNPA gave no consideration at all to the points made in paras.60.9 - 6.13. These are the paragraphs upon which they focus their attack. I do not accept that this is a valid criticism. The starting point, as I said in relation to Nethy Bridge, is that, in settling upon the housing allocations in the Local Plan, CNPA must be taken to have had regard to the relevant policies set out in the Local Plan, including the need to have regard to their statutory obligations and to the strategic objectives of the CNPP 2007. Housing need was established, and despite the criticisms raised by the Reporters about housing need, which were addressed in the Analysis, it was thought necessary to retain some housing allocation in Carr-Bridge. No criticism is made of this. Nor is any other site at Carr-Bridge suggested in the Report. As I have said earlier, the exercise of drawing up a Local Plan involves, at times, the striking of a balance. The statutory constraints recognise this, as do the Policies in the Local Plan. The balance was struck in the case of Carr-Bridge by proposing an allocation for housing development at C/H1. That site was adopted in a previous local plan and has the benefit of extant outline planning permission. The most up to date housing land audit recognises that site as "effective", at least up to a capacity of 90 units. The Reporters do not say that environmental considerations will necessarily get in the way of the development. They are uncertain. They have not heard sufficient evidence. As against that, the extant permission is subject to a condition that detailed surveys of wildlife and local hydrology are undertaken. Surveys have been undertaken and are being undertaken. CNPA's position, as recorded in the Report, is that they believe the issues can be resolved. That is not a statement that the development will go ahead. But it is an expression of an opinion that the perceived problems may well be capable of being overcome. Why, in those circumstances, should they alter the approach taken in the Local Plan of allocating C/H1 for development?

[248] The Recommendation in the Report is that C/H1 should be deleted, apart from the Boys Brigade Field. This is of interest because it ties in with the Reporters' assessment of the landscape implications of the development as explained in para.60.15. But, no doubt for good reason, the appellants' criticism of this part of the Local Plan does not include a criticism of CNPA's failure to accept this landscape evaluation. It is difficult, therefore, to understand the basis for this aspect of their challenge.

[249] For all of these reasons, the appeal in respect of the Carr-Bridge allocation C/H1 must fail.

(D) An Camas Mor - allocation for 1,500 dwelling houses to be developed over time

[250] In relation to An Camas Mor, the challenge is to Policy II, which identifies a potential settlement of up to 1500 homes over time. This provides as follows:

"II The Local Plan identifies an indicative settlement boundary for the site, within which it is expected that development of a community of up to 1500 homes could be developed over time. The Cairngorms National Park Authority will continue to work closely with the developers for the site, interested parties and consultees, to ensure realistic and appropriate timescales are set and adhered to, and that through such partnership workings, the effectiveness of the site is realised."

The settlement boundary is shown on the map accompanying the proposal. It is a site to the south and east of the River Spey, directly across the river from Aviemore. This allocation too took shape in the Consultative Draft Local Plan and later in the Deposit Draft Local Plan and the SEA Environmental Report of 2007.

The Environmental Report

[251] The Environmental Report noted that the development of a new community at Cambusmore (now An Camas Mor) was proposed in the Badenoch and Strathspey Local Plan 1997 and the Highland Structure Plan 2001 to meet the long term development needs of Badenoch and Strathspey. The Local Plan identified the site for long term development and provided an indicative target for 100 houses to be provided on site towards the end of the Local Plan's 5 year timescale. The An Camas Mor site had been planned for more than 10 years and had been formulated through the development plans. The Local Plan, working to a 5 year timetable, needed to consider where to identify sites within An Camas Mor once the likely future needs were established, and also to provide a longer term view. It had attempted to provide a range of development options associated with all the main settlements within the National Park. Development land in Aviemore, which had been the major growth centre within Badenoch and Strathspey, was almost exhausted and was likely to run out within the life of the Local Plan. An Camas Mor therefore provided an opportunity

"to absorb the ongoing growth of Aviemore, to provide a more sustainable settlement using the best practice available, and to provide a degree of certainty and long term planning for future development in Badenoch and Strathspey."

It was noted that detailed proposals for An Camas More required an Environmental Impact Assessment ("EIA") to be carried out.

[252] In the scoring exercise, it was recognised that

"Development of the site is considered likely to have significant effects on [priority species and priority habitats]

and

"The detailed proposals will need to consider the potential effects of the development on priority species in detail.

There was also

"... some uncertainty about the potential cumulative effects of development on the river Spey SAC that will be resolved by an appropriate assessment."

The development would also be required to maintain water, avoid downstream impacts and incorporate SUDs.

"Although development of the site is considered unlikely to have any significant adverse effects [on] this SEA objective, there is some uncertainty about the potential cumulative effects of development on the river Spey SAC that will be resolved by an appropriate assessment."

This comment was applied to SEA objectives to protect and, where appropriate, improve waterbody status within or related to the Cairngorms National Park area and to maintain catchment processes and hydrological systems.

[253] It was considered that the finalisation of proposals would require an Appropriate Assessment of its effects on the River Spey SAC. The risk which gave rise to the need for that assessment was uncertainty about the potential cumulative effects of development on the River Spey SAC.

The Appropriate Assessment

[254] As in the case of Carr-Bridge, the part of the Appropriate Assessment which concerns the proposals for An Camas Mor is the part dealing with the River Spey SAC. Again, for convenience, I shall summarise it here. The relevant Conservation Objectives for the River Spey SAC were identified as being:

"To avoid deterioration of the habitats of the qualifying species (listed below) or significant disturbance to the qualifying species, thus ensuring that the integrity of the site is maintained and the site makes an appropriate contribution to achieving favourable conservation status for each of the qualifying features; and

To ensure for the qualifying habitats that the following are maintained in the long term:

·        Population of the species, including range of genetic types for salmon, as a viable component of the site

·        Distribution of the species within site

·        Distribution and extent of habitats supporting the species

·        Structure, function and supporting process of habitats supporting the species

·        No significant disturbance of the species

·        Distribution and viability of freshwater pearl mussel host species

·        Structure, function and supporting processes of habitats supporting freshwater pearl mussel host species"

The qualifying species were Atlantic salmon, freshwater pearl mussel, otter and sea lamprey.

[255] In respect of the then Policy 13 on water resources (now Policy 12 of the adopted Local Plan), it was noted that new development was likely to have a significant effect on the River Spey because it could result in a deterioration of water quality. Connecting the new developments in the area to the public sewerage network could potentially affect water quality in the river, with an effect on the qualifying species:

"In particular, research specific to adult Freshwater Pearl Mussels identifies a sensitivity limit of 0.03 mg/l Soluble Reactive Phosphorous to maintain the favourable conservation status of the species. The corresponding limits for Juvenile Freshwater Pearl Mussel, Atlantic Salmon or Sea Lamprey are not known."

Provided, however, that certain safeguards were adhered to, implementation of the policy would not detract from meeting the site's conservation objectives. The salient passage reads as follows:

"In practice, however, all development proposals will have to comply with Policy 2, which protects Natura sites in accordance with the Conservation (Natural Heritage etc) Regulations 1994 (as amended). One of the ways this would be achieved is by only granting planning permission if it can be demonstrated that the 0.03 mg/l threshold for Soluble Reactive Phosphorous in-river will be exceeded as a result of the proposed development. In addition, compliance monitoring can be used to ensure that the discharges of harmful chemicals do not increase in the future. In the longer term, in order to inform decisions on discharge consents further research is needed into the tolerances of the qualifying species to concentrations of different chemical, and also into the sources of these chemicals and the paths by which they reach the river."

[256] So far as concerned the predicted effect of the proposed development of An Camas Mor, the Appropriate Assessment noted (as in the case of Carr-Bridge and Nethy Bridge) that contamination could arise during and after construction if physical or chemical contaminants were released into the River Spey. Construction and development could also cause disturbance to otters. However, it was considered that insistence on strict compliance with Policy 2 would enable the site's conservation objectives to be met. One way of securing that no adverse effect would be felt as a result of implementation of the development proposals at An Camas Mor, as at Carr-Bridge and Nethy Bridge, was for applications involving ground disturbance near to watercourses to identify

"... appropriate guidance for developers to follow to avoid releases of sediment or chemicals into watercourses during construction; and to ensure that there is no potential for otter to become entangled in construction materials (e.g. overnight). Hence implementation of these proposals will not detract from meeting the site's conservation objectives."

Nothing further was said about how to avoid the risk of adverse effects after construction. Matters were left to rest with the comments on Policy 13 (now Policy 12) to the effect that the grant of planning permission would be dependant on the level of in-river Soluble Reactive Phosphorus and the requirement, in the event of planning permission being granted, for compliance monitoring to ensure that the discharge of harmful chemicals did not increase.

[257] In short, the same approach was taken to the proposals as was taken at Nethy Bridge and Carr-Bridge; identify the danger, and insist on the correct steps being taken at the stage of outline and detailed planning permission. Provided strict compliance with particular policies was insisted upon, the development should not affect the integrity of the site.

The Public Local Inquiry and the Reporters' Report

[258] In considering the proposals for An Camas Mor, the Reporters first explained how in a number of Structure and Local Plans there had been proposals for a development of a new community at Cambusmore (now An Camas Mor). The proposal in the Badenoch and Strathspey local plan 1997 was that Cambusmore should be a free standing village until the development of a road bridge over the River Spey would enable it to take its place as part of a long term expansion of Aviemore. Reference was made also to the Highland Council Structure Plan approved in 2001. The Reporters pointed out that the approved CNPP 2007 was silent on the subject of Cambusmore. It listed the main settlements in the Park as Aviemore, Ballater, Grantown-on-Spey, Kingussie and Newtonmore and identified one of the strategic objectives as being to focus growth on those main settlements because they had infrastructure that could accommodate it. Otherwise growth was only intended to meet settlement needs, in accordance with a strategy based on "a long-term vision of achieving communities that are sustainable in social, economic and environmental terms" (see generally paras 42.1 - 42.4). The Reporters note (in para 42.5) that although the deposit version of the Local Plan took forward the notion of a new settlement at An Camas Mor, the delineation of the site was now different, the boundary being further from the Spey at the North and excluding some woodland to the South. This version of the Local Plan designated An Camas Mor as a strategic settlement, with a new community of up to 1,500 homes being envisaged over a 15 year period, incorporating a new improved roads infrastructure, a pedestrian link to Aviemore, and community uses, all based on a master plan.

[259] However, the finalised version of the Local Plan (the version current at the date of the Inquiry) appeared to reduce the size of the site, so that it was more like that in the earlier proposals. The proposal relied upon a detailed transport assessment and a master plan to incorporate housing, commercial and economic development opportunities. Development would not be allowed to harm the integrity of the River Spey SAC or the National Scenic Area. In this version, An Camas Mor was still identified as a strategic settlement, where the majority of development facilities should be provided to support a sustainable approach to site selection and to ensure focusing key areas of growth where development pressure could be managed. However, an application had recently been submitted for outline planning permission for the development of a new community of 1,500 homes with associated business and community facilities and infrastructure. The proposal specified a first phase of 100 homes.

[260] The Reporters identified the main issues to be addressed in the Report as follows:

(1) Whether a new settlement of the size and hierarchy position was appropriate and in accordance with strategic and relevant national planning policy;

(2) Whether there were any landscape, by diversity or other matters which constrain the allocation of land for this purpose;

(3) Whether An Camas Mor could be regarded as an effective land supply contribution in terms of SPP 3; Planning for Homes, especially for the Local Plan; and

(4) Whether land at Kinakyle should be substituted as a better alternative that could deliver the required amount of new housing.

[261] In discussing the first issue, the Reporters went through the history of the various proposals, concluding (in para 42.12) that the National Parks Scotland Act 2000 and subsequent creation of the Cairngorms National Park

"...justifies a re-evaluation of the inherited development plan approach. In other words, the designation of a site in the existing development plan does not mean that it should be carried forward automatically into the [Local Plan]".

Considering the changes which had occurred to the nature of the proposed development, the Reporters formed the view (at para 42.13) that the Local Plan diminished the essential nature of the proposal and did not justify any particular remaining need for the settlement or explain why the new settlement should immediately be identified as a strategic settlement given its structure plan classification as a local centre and its proximity to Aviemore. Throughout this part of their Report the Reporters clearly indicate that they regard the development of the proposals as muddled (my word, not theirs). Despite changes, they say (in para 42.15) that:

"...An Camas Mor might still be acceptable in terms of the CNPP 2007 if it can be shown to satisfy relevant strategic objectives. There is no evidence before us that the merits of this proposal were assessed in this way and in the light of the new situation caused by the designation of the National Park".

[262] In the next paragraph (42.16) the Reporters accept that an Camas Mor might help to deliver other strategic objectives like tourism and recreation, but they had found no evidence of any need or demand for that. The CNPP 2007 emphasised the importance of keeping Aviemore as the main settlement, yet in comparison An Camas Mor would ultimately have the same population of the same size or more. In conclusion, the Reporters say this (at para 42.17):

"Drawing all these strands together, we cannot conclude that a new settlement at An Camas Mor is supported by the strategic context set out in the CNPP 2007 or that it accords with the strategic objectives of the CNPP 2007".

The aim of the Local Plan was to create a sustainable community, whereas in the CNPP 2007 the emphasis was on support for the existing communities.

[263] In addition, the Reporters were not satisfied of any "affordable housing" case for An Camas Mor. They repeated their concern, described earlier, that the amount of housing land allocated in the Local Plan was over-generous. In addition, subject to that concern, although there might be a need for affordable housing, CNPA appeared to be promoting this for particular places "without the benefit of a full understanding of the geographical spread of need for all forms of housing, but especially for affordable housing". They were concerned about concentrating the provision of so much housing on a single location without a full assessment of the need across the settlements of the whole Park. While the Reporters agreed with CNPA that a major issue for the Local Plan was addressing the acute lack of affordable housing in the Park, the allocated Aviemore sites already had capacity to contribute towards this aim, and it was not clear what the proposals for and An Camas Mor would really contribute. They did not agree that the affordable housing case for An Camas Mor was persuasive.

[264] In subsequent paragraphs the Reporters went on to consider the terms of SPP 3, both as regards the concept of a new settlement, and also as regards the importance placed on the landscape and on safeguarding natural heritage interests, especially where those were recognised by national or international designations as having exceptional quality. NPPG 14: Natural Heritage was also referred to. The Reporters pointed out that Special Areas of Conservation were needed under the Habitats Directive to form a network of protected areas to help ensure that rare, endangered or vulnerable habitats and species of European interest were either maintained or restored to a favourable conservation status. Reference was then made to the duties under the Habitats Directive and the relative Regulations. It was pointed out that Policy 7 of the Local Plan accorded with this by presuming against development in those circumstances where the development did not make a positive contribution to landscape character by virtue of location, siting and design. The Reporters said that the only evidence before them to help evaluate those environmental impacts comprised Topic Paper 4a, which expanded upon the findings of the SEA. It identified five positive aspects of An Camas Mor, relating to the sustainable use of resources, the maintenance of a sustainable and healthy population, energy efficiency, reduced waste and pollution, and the quality of the built environment. It also identified seven negative or uncertain aspects of development at An Camas Mor. The Reporters went on to say this at para 42.28:

"...for the water environment, which must include the River Spey Special Area of Conservation, the paper states that the effect would be either significantly negative or that it is uncertain and cannot be predicted. Therefore, we find that An Camas Mor has been incorporated into the finalised version of the Local Plan with no supporting appropriate assessment or information about mitigation and based on an SEA Report that predicts a significant negative effect for the water environment, i.e. the River Spey, Special Area of Conservation. That effect might be capable of mitigation, but again there is no substantial evidence to explain and support that proposition. Given the importance of the designation, we have significant concerns about this, as well as about the fact that Topic Paper 4a, as part of the SEA process, can do no more than describe any impact as uncertain or incapable of prediction. We have no doubt that CNPA would intend to address this deficiency at planning application stage, but in view of the international status of the national heritage designation, we find that to be too late in the process. ..."

I have already discussed in para.[127] above the meaning to be given to the reference to their having been "no supporting appropriate assessment". I shall not repeat it here.

[265] The Report then went on to consider landscape aspects. It makes certain criticisms of the proposals. All that need be mentioned at this stage is the fact that in a number of places (e.g. at paras 42.34 and 42.36) the Reporters point to the lack of a demonstrable need for the new settlement at An Camas Mor.

[266] Finally, I should quote from the conclusions to this chapter of the Report. The Reporters found that there were contradictions and unaddressed issues in the existing development plan which had been carried forward without question into the Local Plan. Re-examination of the proposals was justified. In the opinion of the Reporters, the CNPP 2007 did not imply support for the new settlement, nor did the proposal accord with relevant strategic objectives from the CNPP 2007. An Camas Mor was designated as a strategic settlement in the finalised Local Plan without adequate assessment of whether that role remained necessary, appropriate and justified. The Reporters repeated their conclusion (discussed above) that CNPA had been overly generous in the calculation of the housing land supply required for the National Park; and, so far as concerned An Camas Mor, the available evidence did not support the allocation of so much housing land in one place. So far as concerned landscape and national heritage impacts, both were of considerable importance given that An Camas Mor was within a National Scenic Area and had SAC status. However, the only evidence available about the impact in landscape and national heritage terms was in Topic Paper 4a and the Landscape Capacity for Housing Study, neither of which endorsed the proposal as put forward. The SAC in particular demanded a rigorous assessment of necessity and an appropriate assessment where harm was likely. It was of major concern that negative impacts were predicted and "no appropriate assessment [had] been provided". Nor had any details in mitigation been provided and no social-benefits of national importance in the public interest had been described. Accordingly, the Reporters could not conclude that the proposed new settlement at An Camas Mor accorded with strategic and relevant national policy.

[267] In their Recommendation, the Reporters repeated that they could not endorse the proposal for a new settlement at An Camas Mor. If, as was to be expected, CNPA wished to continue to promote the proposal, the shortcomings which they had described should be addressed and the plan text should be modified to make clear in the Local Plan that support for the proposal was support "in principle only". Detailed evaluation was required and CNPA should be completely satisfied regarding all of the potential negative impacts of the proposal before development could be allowed to proceed.

Analysis of Recommendations in the Report ("the Analysis") - May 2010

[268] The Analysis dealt with the position of An Camas Mor in chapter 42. It began by quoting from paras 42.37 - 42.44 of the Report. Commenting upon this, in para 1.3, CNPA said that it was the constrained capacity in Aviemore and surrounding villages that led to the identification of An Camas Mor in the existing Local Plan and in the Highland Structure Plan. The CNPP 2007 had identified Aviemore as a growth centre and it was reasonable for the Local Plan to look ahead beyond the 5 year period and indicate how to accommodate that longer term growth. The Local Plan had responded by an allocation to create a community at An Camas Mor to ensure that growth could be provided for in years to come. Their view, contrary to that of the Reporters, was that there was justification in the CNPP 2007 for the approach adopted in the Local Plan. However, they accepted that the role of An Camas Mor in delivering the CNPP 2007 should have been better articulated within the Local Plan, and to this end had included a further passage providing this clarification (see para 1.8).

[269] In response to the Reporters' concerns about the over generous housing land allocations, CNPA had revised the section on General Housing Land Supply (see above). As part of this work CNPA had reviewed the effectiveness of these sites against the published housing land audits produced by the local authorities. The land at An Camas Mor had not been included within the effective housing land supply, and CNPA had therefore removed An Camas Mor from its land supply calculations. However, bearing in mind the issue concerning conformity with the Structure Plan, CNPA remained committed to the allocation of An Camas Mor as a strategic settlement to meet the future needs of the area beyond the life of the plan.

[270] So far as concerned the alleged absence or inadequacy of an Appropriate Assessment, CNPA were of the view that they had complied with their obligations under the Habitats Regulations. With the help of SNH, an appraisal had been undertaken of the plan as a whole, including the An Camas Mor allocations. That appraisal had been published on the CNPA website, and the outcomes of that appraisal had influenced the modifications they had made to the wording of the text associated with the An Camas Mor allocation.

[271] As regards landscape issues, particularly those concerning the relationship of the new settlement to the existing settlement at Aviemore, CNPA considered that the two linked communities, with the park on either side of the River Spey between them, as articulated in the Principles, was the correct approach.

[272] CNPA's decision, as set out in the Analysis, was as follows:

"2.1 Accept the recommendation to support An Camas Mor in principal, and in doing so remove it from the effective housing land supply to meet the need for housing in this local plan.

2.2 Accept the inclusion of the development principles to assist in the delivery of the development.

2.3 Accept that the CNPA must be satisfied regarding the potentially negative impacts of the proposal before development can proceed.

2.4 [But] CNPA do not accept the criticism regarding the appropriate assessment which has been undertaken in compliance with the Regulations".

[272] As a result of this, amendments were made to the text in the Local Plan to clarify that the site was included to meet the long term housing needs of the area and did not contribute to the effective housing land supply for the life of this plan. Certain other changes were also made to reflect the discussion in that section. Paragraph VIII of the detailed proposals for An Camas Mor in the adopted Local Plan now includes a statement that the development of the site must accord with the approved development principles approved by CNPA in December 2008. Those are set out in Appendix 4 to the Local Plan, and cover three pages of text. They include sections on Landscape and Biodiversity. The section on Biodiversity states inter alia that proposals for An Camas Mor must "demonstrate how a development of this size and quality can both conserve and enhance the biodiversity of the site and surrounding area."

Consultation on the Post Inquiry Modifications

[273] An objection was made by Dr A M Jones and the Badenoch and Strathspey Conservation Group to the unspecific nature of the development principals to which the development at An Camas Mor must accord. In response, CNPA said that the development principals were included in the Local Plan at Appendix 4. It had been considered during the Local Plan Inquiry and the Reporters did not recommend the changes sought by the objectors. The post Inquiry modifications included the development principals in accordance with the recommendations of the Reporters. The objection did not raise new planning issues and there were no material changes in circumstances to warrant either a further enquiry or modification to the plan as published.

Arguments and Discussion

[274] The appellants' case on this allocation is far from clear. They complain that, in the analysis, CNPA do not address the significant environmental concerns raised by the Reporters in the context of national and international designations. They cast doubt on CNPA's claim that they had complied with their obligations under the Habitats Regulations - this is possibly because of the initial uncertainty about whether there ever was an Appropriate Assessment, a point which the appellants now concede. The appellants conclude that, "accordingly" CNPA have not given adequate reasons for not having regard to the Reporters' "considerable concerns" about the lack of a proper assessment of the environmental concerns, particularly in relation to its designation as an SAC. An assessment at the stage of a planning application would be too late. Further, the appellants say that CNPA have given no adequate explanation of why the appraisal of the whole plan carried out with SNH (i.e. the Appropriate Assessment) influenced the modifications made to this allocation in circumstances where the Reporters made it plain that the appraisals to date were inadequate. Accordingly, the challenge here appears to be primarily a reasons challenge. The appellants seek reduction of the allocation because CNPA did not give adequate reasons for their decision.

[275] I have some difficulty with this reasons challenge. There was clearly a misunderstanding about the Appropriate Assessment, possibly involving the Reporters. How it arose I cannot say, but it has now been resolved, at least to the extent that the appellants accept that one was carried out. The "appraisal" referred to in para.1.10 of the relevant section of the Analysis is, as I understand it, the Appropriate Assessment. CNPA make it clear in the Analysis that they have relied on it to inform the changes made to the An Camas Mor proposals. There is no lack of clarity. If it is said that they should not have relied on it, that is not a reasons challenge but a challenge on the basis of Wednesbury unreasonableness. But I would also reject a Wednesbury challenge. In referring to the "appraisal" carried out with the help of SNH in para.1.10 of the Analysis, it is clear that CNPA have taken the view, possibly correctly, that the Reporters have overlooked the fact that an Appropriate Assessment had been carried out. They respond to the Reporters' criticism of the lack of a supporting Appropriate Assessment by saying, in effect, that one was carried out (i.e. the appraisal) and had fed into the shaping of the outcome; and see also the reference to the CNPA Decision set out at para.2.4 of the Analysis. That response cannot be described as Wednesbury unreasonable.

[276] The other problem for the appellants is that CNPA have, in large measure, accepted the Reporters' recommendations. In para.42.4 of the Report, the Reporters refused to endorse the proposal for a new settlement at An Camas Mor. But if it was nonetheless to be promoted, the shortcomings which they had described should be addressed, and the plan text should be modified to make clear that the Local Plan support for the proposal was support "in principle only". Further detailed evaluation was required and CNPA should be completely satisfied regarding all of the potential negative impacts of the proposal before development could be allowed to proceed. In those circumstances, they commended the development principles produced to the Inquiry, subject to them being augmented and adjusted in line with their Recommendations. Although CNPA have not deleted the proposal, they have followed the Reporters' recommendations (a) to delete the allocation for An Camas More during the lifetime of the Local Plan, (b) to adjust the text to indicate that the recommendation to support An Camas Mor is a recommendation to support it "in principle"; and (c) to lay down modified development principles (i.e. those in Appendix IV).

[277] There is, to my mind, no merit in the appellants' contentions in respect of An Camas Mor, and I reject them.

Kingussie KG/H1 - allocation for 300 dwelling houses, with 75 to be provided during the life of the Local Plan.

[278] In relation to Kingussie, the challenge is to Policy KG/H1, which is an allocation for 300 dwelling houses, with 75 to be provided during the life of the Local Plan. KG/H1 provides as follows:

"KG/H1

I. This 16.05Ha site would provide land for short and longer term housing supply in Kingussie. It could provide land for around 300 dwellings, with 75 of these provided during the life of the Local Plan. The phasing of the site will need to take into account access provision to the site and the capacity of the existing road network.

II. The site runs north from the A86 by Craig an Darach towards Kerrow Farm and west from Kerrow Farm to the rear of properties bounding Ardbroilach Road, and is bounded by forestry to the north. The site is currently improved grassland grazed by livestock.

III. Access to this site should be taken from the local road network. A traffic impact assessment will be required to ensure development of this site, and others in neighbouring Newtonmore, does not create an unacceptable cumulative impact on the A86 or A9.

IV. The Cairngorms National Park Authority will work with partners to produce a masterplan for the site to ensure effective provision of housing. This masterplan should clarify the position regarding key infrastructure issues. The development of this site presents an excellent opportunity to provide opportunities for large and small scale developers and builders to work together to bring forward the delivery of the proposal. This will be recognised in the masterplan."

The substance of the proposal is in the first paragraph, the other paragraphs being in part descriptive and in part a discussion of matters such as access and infrastructure. The site is an extensive area of undulating land, presently used for grazing, to the north east of the existing settlement at Kingussie, sloping generally southwards with views across the River Spey. Once again, this allocation took shape in the Consultative Draft Local Plan and later in the Deposit Draft Local Plan and the SEA Environmental Report of 2007.

The Environmental Report

[279] The Environmental Report summarised the proposal. A large site had been identified for housing (KG/H1) and economic development (KG/ED1). They were considered together in the Environmental Report. The housing site had been considered in the Badenoch and Strathspey Local Plan 1997. No significant alternatives were considered.

[280] In the scoring exercise, the proposal was measured against various SEA objectives, such as conserving and enhancing the diversity of species and habitats, maintaining and enhancing the integrity of ecosystems, and protecting and, where appropriate, improving, waterbody status within or related to the Cairngorms National Park area. It was considered that the site would not affect any identified priority species or habitats and was unlikely to lead to a significant fragmentation of habitats or create barriers to native species movements. However

"... there is some uncertainty about the possible cumulative effects of development and the disposal of waste water on the river Spey SAC that cannot be satisfactorily resolved through the SEA. Under the Habitats Directive, the Local Plan must be subject to an appropriate assessment to identify the implications for the conservation interests of the SAC."

It was considered that the determination of proposals would require an Appropriate Assessment of its effects on the River Spey SAC. It is to be noted that this was only because of uncertainty about the cumulative effects of development and the disposal of waste water on the River Spey SAC.

The Appropriate Assessment

[281] The Appropriate Assessment dealt with two discrete issues concerning the proposals for development at Kingussie, namely (i) its likely effect on the River Spey SAC and (ii) its likely effect on the Insh Marshes SAC.

[282] So far as concerns the River Spey SAC, the Conservation Objectives and the assessment of Policy 13, water resources, already described above applied equally to the area around Kingussie. So also the potential impact of the proposed development at Kingussie was similar to that from the proposed developments at the other locations already considered. In theory, the development, if implemented, could have an impact on qualifying species and supporting habitats within the site if, during construction or subsequently, physical or chemical contaminants were released into the river. But in practice the development proposals would have to comply with Policy 2, Natura sites (now Policy 1). Again, one of the ways of achieving this, for applications involving ground disturbance near to water courses, would be to identify appropriate guidance for developers to avoid releases of sediment or chemicals into watercourses during construction. If this was done, implementation of the proposals would not prevent the site's conservation objectives being achieved. For the detail it is sufficient to look at what is said about the development proposal at An Camas Mor.

[283] The Insh Marshes SAC has not been mentioned before. The Conservation Objectives for that area were twofold. The first set of such Objectives was as follows:

"To avoid deterioration of the qualifying habitats (listed below) thus ensuring that the integrity of the site is maintained and the site makes an appropriate contribution to achieving favourable conservation status for each of the qualifying features; and

To ensure for the qualifying habitats that the following are maintained in the long term:

·        Extent of the habitat on site

·        Distribution of the habitat within the site

·        Structure and function of the habitat

·        Process supporting the site

·        Distribution of typical species of the habitat

·        Viability of typical species as components of the habitat

·        No significant disturbance of typical species of the habitat"

Qualifying Habitats were: alder woodland on floodplains (a priority habitat); clear-water lakes or lochs with aquatic vegetation and poor to moderate nutrient levels; and very wet mires often identified by an unstable 'quaking' surface".

[284] The second set of Conservation Objectives was as follows:

"To avoid deterioration of the habitats of the qualifying species (listed below) or significant disturbance to the qualifying species, thus ensuring that the integrity of the site is maintained and the site makes an appropriate contribution to achieving favourable conservation status for each of the qualifying features; and

To ensure for the qualifying species that the following are maintained in the long term:

·        Population of the species as a viable component of the site

·        Distribution of the species within the site

·        Distribution and extent of habitats supporting the species

·        Structure, function and supporting process of habitats supporting the species

·        No significant disturbance of the species"

The only Qualifying Species listed was the otter (Lutra lutra).

[285] After considering the effect of various Policies, including Policy 13 (water resources) and Policy 32 (waste management), the Appropriate Assessment went on to assess the proposed settlement at Kingussie in these terms:

"In theory development in line with the proposals in Kingussie, Newtonmore and Insh could lead to impacts on the qualifying habitats, the qualifying species or the supporting habitats within this site if, during construction, physical or chemical contaminants were released into watercourses that flow into Insh Marshes. Development at Insh could also result in disturbance to otter. In practice, however, all development proposals will have to comply with Policy 2 [now Policy 1], which protects Natura sites in accordance with the Conservation (Natural Heritage etc.) Regulations 1994 (as amended). One of the ways this could be achieved is, for applications that involve ground disturbance near to watercourses, identifying appropriate guidance for developers to follow to avoid releases of sediment or chemicals into watercourses during construction; and, at Insh, requiring otter surveys prior to submission of planning applications and designing development to avoid damaging holts or disturbing these animals. ..."

Under the heading "Conclusion on site integrity" there appears the following:

"Provided that Policies 2 and 13, and further detail in paragraphs 4.80 and 4.81 are implemented rigorously as described above, implementing the policies and proposals will not detract from meeting the conservation objectives and thus site integrity will not be adversely affected."

The Public Local Inquiry and the Reporters' Report

[286] The Reporters considered this allocation in chapter 54 of their Report. They noted (in para 54.2) that the objection site was allocated for housing and commercial uses in the adopted Badenoch and Strathspey Local Plan 1997. It was noted also that the site KG/H1 was currently the subject of outline planning permission for 300 houses, that a master plan was being prepared and that there were ongoing discussions regarding access to the site from the A86 Trunk Road.

[288] Based on the objections received and the material presented at the hearing of the Reporters considered the main issues were:

(1) Was the allocation contrary to the strategic objectives of CNPP 2007?

(2) Was the scale of the housing allocation there excessive?

(3) Were there environmental factors which rendered the site unsuitable for consideration as a housing site?

(4) Was part or all of the site effective (i.e. could the homes allocated to the site be completed and available for occupation within the life of the Local Plan).

[289] As regards the first issue, the Reporters rejected the submission that any allocation at the site ran contrary to the aims or strategic objectives of CNPP 2007 (see para 54.6). As to the second issue, while they were in no doubt that the total land supply allocated to settlements in the area as a whole was "over generous" (as to which, see above) the Reporters recognised that Kingussie was identified in the CNPP 2007 as a main settlement and therefore accepted that an allocation of housing land there was appropriate as part of a strategy which would focus growth on a number of main settlements where development pressures would appropriately be managed (see para 54.7). As to the third issue, the Reporters considered both landscape issues and environmental considerations. The landscape issues did not preclude development on the western part of the site for detached housing, with the possibility of more dense development adjacent to that; but they accepted the assessment that land to the east should be released for development only if it was required in the long term. There were no environmental factors rendering the site unsuitable for consideration as a housing site at this stage of the planning process, recognising that any part of the site which would be proposed for development would come under closer scrutiny at the planning application stage (see para 54.11). Finally as to the fourth issue, the Reporters raised a question about the marketability of any potential development at the site, their main concern being about access from the main road, the A86. On this issue they concluded that "as things stand", the failure to establish an access from the A86 meant that they could not find that the Eastern part of the site, i.e. that part of the side not served from Dunbarry Terrace, was effective (para 54.14).

[290] The Reporters set out their conclusions in paras 54.15 and 54.16 as follows:

"When we review the findings set out in the above paragraphs, we conclude that there should be an allocation of land for housing within Kingussie and that the vicinity covered by the site KG/H1 is a suitable area of search. However, we have reservations about what is proposed in the finalised version of the local plan. If CNPA decide that the whole of site KG/H1 should continue to be incorporated within the proposals marked for Kingussie then the phasing of land released becomes a critical factor. As things stand, on favourable assumptions, only 55 units can be accommodated on the western portion of the site accessed from Dunbarry Terrace, and even then we remain to be convinced that these are marketable over the life of the plan. We conclude that only that portion of the site which can be considered to be effective at this time should be allocated within this local plan. Any master plan which is prepared should incorporate the probability of sequential development with land released in a measured, phased manner. The master plan must also overcome the difficulties posed by the need for access at the Eastern edge of the site.

54.16. We consider all the other matters that have been drawn to our attention, including there be more open spaces in Kingussie and the benefits of dualling the A9, but find none of such weight that it alters our reasoning or conclusions".

[291] The Reporters recommended (at para 54.17) that that part of the Local Plan should be amended to a size which could deliver 55 houses within the life of the adopted Local Plan, and that continuing consideration be given to the subsequent phased release of the remainder of the site.

Analysis of Recommendations in the Report ("the Analysis") - May 2010

[292] So far as concerns this allocation, the Analysis quoted from paras 54.15 - 54.17 and noted that the Reporters did accept that an allocation of land for housing in Kingussie was appropriate within a strategy that focused growth on the main settlements; and that there were no factors rendering this particular site unsuitable for consideration as a housing site at this stage in the planning process.

[293] They then went on to say this:

"1.4 [The Reporters] then consider the effectiveness of the site as judged against the tests in SPP 3. Evidence presented by CNPA at the inquiry indicated that the site is effective. They then consider the issue of the preparation of a master plan. CNPA has, since the inquiry, received and approved a concept masterplan application for the site which established how the site will be developed.

1.5 Finally the Reporters assessed the issue of access. As a result of the ongoing negotiations and discussions which occurred as a result of the assessment of the concept master plan application, the objections and concerns raised by Transport Scotland have been overcome. As a result access can therefore be taken from the A86 and need not therefore be restricted to Dunbarry Road and Dunbarry Terrace".

[294] Accordingly, in the opinion of CNPA, the master plan having addressed the question of marketability and the discussions with Transport Scotland having overcome the problems of access, the concerns expressed by the Reporters had been addressed. On that basis, CNPA did not accept the recommendation that the site should be amended to limit delivery to 55 houses within the life of the Local Plan.

Consultation on the Post Inquiry Modifications

[295] There were no relevant objections to this part of the Local Plan at this stage.

Arguments and Discussion

[296] The appellants refer to the Report's reservations about the over generous allocation of housing land in the Local Plan. They note that the Reporters accept that there should be some allocation for housing in Kingussie, but restricted to 55 units. They contend that CNPA's response to the Report was inadequate. Though they did not agree that only 55 units could be considered effective, and said that the issues could be overcome, CNPA did not address the marketability issues raised in paras.54.13 and 54.15; did not explain how difficulties of access were to be overcome; and did not address the landscape and need issues relating to the eastern part of the site.

[297] The Reporters did not have a root and branch objection to the proposed allocation. They were concerned, as I understand it, with practicalities. Underlying their doubts about the allocation was a general concern that the Local Plan had been over generous in its provision of housing land allocations. As regards the specific problems with the local site, the one that stands out is access. The western part of the site could be accessed from Dunbarry Terrace, but access to the eastern part gave rise to difficulties. The western part could accommodate 55 units, hence the proposal to restrict the allocation to 55 units. They had concerns with "marketability" (defined in PAN 38, Housing Land, Revised 2003, as the possibility of the site being developed to provide marketable housing), largely on the basis that, though the site was adopted in the Badenoch and Strathspey Local Plan as long ago as 1997, there had been no development since then. However, they recognised that there may have been a constraint to development imposed by the capacity of the waste water treatment works, and were assured that this constraint had been or was about to be lifted: see para.54.12. They also recognised that they had not seen the "concept master plan" submitted by a prospective developer, envisaging a phased development of 300 houses and supporting infrastructure, which would clearly be relevant to this question: see paras.54.13 and 54.15.

[298] CNPA responded to each of these issues. As to the concern about an over generous housing allocation in the Local Plan, they had re-worked the figures as suggested (see above). That re-working had not resulted in the removal of any of the proposed allocation for Kingussie. As to landscape, they note what the Reporters have said about development of the eastern part being acceptable only if required in the long term, and interpret that (correctly in my view) as meaning that there were no factors which rendered H1 as unsuitable as a housing site at this stage in the planning process. As to marketability, a masterplan had been received and approved since the Inquiry which established how the site would be developed. It included details about phasing. And as regards access, discussions with Transport Scotland had resolved the problem - access could be taken from the A86.

[299] To my mind the Analysis undertaken by CNPA provides a complete answer to the criticisms. The role of the court is not to agree or disagree with a proposal. It is concerned to ensure that the decision is lawful. In a case such as this, that means (i) that the reasons for the decision are clear and (ii) that the decision, understood in the context and in light of the reasons given for it, cannot be said to be Wednesbury unreasonable, i.e. that it is not a decision that no reasonable person in that position properly informed of the facts could have reached. The appellants have failed to persuade me that this decision fails that test of lawfulness.

Disposal

[300] For all the foregoing reasons, I shall refuse the appeal.