Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 89

XA163/14

 

Lord Menzies

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD MENZIES

in Appeal under section 239 of the Town and Country Planning (Scotland) Act 1997

by

STEWART MILNE GROUP LIMITED

Appellants;

against

THE SCOTTISH MINISTERS

Respondents:

Act:  Burnet;  Gillespie Macandrew LLP

Alt:  Findlay;  Scottish Government Legal Directorate

8 December 2015

Introduction

[1]        In December 2004 the appellants were granted outline planning permission for a residential development including neighbouring shops and business park at Schoolhill, Portlethen, Aberdeenshire.  This permission was granted subject to 37 conditions.  Condition 2 stated as follows:

“The residential element of this development is hereby restricted to 840 dwellinghouses.  No more than 400 dwellinghouses shall be constructed prior to January 2006”.

 

The reason for this condition was stated to be “in order to define the planning permission and reflect the housing allocations specified in the Aberdeen & Aberdeenshire Structure Plan 2001-2016 (Policies 8 and 9)”.  An indicative master plan was approved with the outline consent.

[2]        The appellants commenced the development in accordance with the consent, conditions and indicative master plan.  By 2013 the development was nearing the maximum number of houses permitted in terms of condition 2 above.  It was anticipated that 840 houses would be completed by the end of 2015.  However, the appellants identified residual land within the master plan area and within the settlement boundary which remained undeveloped.  This residual land could accommodate approximately 190-260 dwellings, depending on the capacity of associated infrastructure.  The land is not allocated for residential development or development of any kind, but does lies within the settlement boundary of Portlethen in the adopted Aberdeenshire Local Development Plan 2012 (“ALDP”). 

[3]        On 28 August 2013 the appellants applied to Aberdeenshire Council in terms of section 42 of the Town and Country Planning (Scotland) Act 1997 (“the Act”) for planning permission for the development of this land without complying with conditions subject to which the previous planning permission was granted.  By report dated 14 May 2014 the Council’s Director of Infrastructure Services reported to the Kincardine & Mearns Area Committee on this application.  The report considered various factors, including education capacity (at paragraph 4.1) and infrastructure services (planning policy) (at paragraph 4.4).  It recognised (at paragraph 6.7) that there were existing pressures on schooling facilities in the locality, but concluded that the issue of primary schooling would be largely addressed through the provision of the new school to be located within the Schoolhill site, and that further contributions towards this facility would be sought as a result of any consent granted for further housing.  It recommended that authority to grant the application be delegated to the Head of Planning and Building Standards, subject to the completion and signing of a section 75 agreement and appropriately worded conditions.

[4]        By notice dated 22 July 2014 Aberdeenshire Council refused planning permission for the following reasons:

“(1)      The proposal would impact negatively on the amenity and infrastructure of the area.

 

(2)        The proposed development would add further pressure to education provision at Portlethen Primary School, which is already over-capacity.

 

(3)        The proposed development would result in an uplift of 25% on the previously approved outline Planning Permission, and negatively impact on the infrastructure.

 

(4)        The preferred area of development in the Local Development Plan is Chapelton of Elsick and the scale of this proposal could negatively impact on that development.”

 

[5]        The appellants appealed against this refusal to the Scottish Ministers.  By decision letter dated 24 October 2014 a reporter appointed by the Scottish Ministers dismissed the appeal and refused planning permission in principle.  At paragraph 3 of her decision letter the reporter stated:

“Having regard to the provisions of the Development Plan the main issues in this appeal are as follows:

 

(a)        whether the proposed development is in accordance with the provision of ALDP in terms of the potential impact on amenity, infrastructure and education;  and

 

(b)        whether the proposed development would have a negative impact on the Chapelton of Elsick Strategic Growth Area (SGA)”.

 

The reporter considered several factors, including transport infrastructure, healthcare facilities, utilities capacities, affordable housing and education.  With regard to the second main issue identified in paragraph 3, she concluded that the council’s fourth reason for refusal was not justified by the development plan.  However, she found that the proposed development would be contrary to ALDP policy 8 “Layout, siting and design of new development”, specifically in relation to the provision of primary education facilities.  She also found that the proposed development was contrary to criterion 1 of policy SG LSD 4 because it would impact negatively on the amenity of the surrounding area, as the impact on primary education services would be unacceptable for the reasons set out at paragraphs 10‑16 of her decision letter.  She considered that the reference to amenity included the wider amenity of the residents of the surrounding area and included the potential impact on services and facilities such as primary education.  She therefore concluded that the proposed development did not accord overall with the relevant provisions of the development plan, and there were no material considerations which would justify granting planning permission.  It is against this decision that the appellants have now appealed to this court.

 

The relevant provisions of the Development Plan

[6]        No issues have been raised in this appeal in respect of the strategic development plan.  The most relevant passages of ALDP and supplementary guidance (“SG”) are as follows:-

“Policy 8 Layout, siting and design of new development

 

For some time there has been widespread concern at national and local level that the general quality of design in new development is mostly poor.  In view of that concern, we set up the Aberdeenshire Design Forum, made up of both the public and private sectors who give advice on how to improve the situation.  A major part of the advice we received involves recognising that good design needs an overall approach, from the choice of site to its layout and detailed design, and covering the whole range of factors that contribute.  For example, in the case of a house, design is not just about what the building looks like, but also about the way the building works, how long it will last and how it relates to its surroundings.  It is not about copying the past, but promoting appropriate design, whether that be new or traditional.

 

…..

 

Aberdeenshire Council will support new development on sites we have allocated within this plan, where they conform with a previously agreed development framework and/or master-plan (whichever is appropriate) for the site.  We will assess all development, whether on sites we have allocated or elsewhere, using a process that includes appropriate public consultation and appropriate standards for design, open space, accessibility, safety, sustainability, and the provision of associated services.

 

The way we will do this is set out in the following supplementary guidance.

 

…..

 

SG LSD4:  Infill development…”.

 

“Policy 9 Developer contributions

 

Developer contributions can help to overcome obstacles in granting planning permission.  They do this by helping to reduce, get rid of or compensate for any negative effects.  This may apply to any type of development.  We will ask for developer contributions for:

 

• The timely provision of on-site facilities to serve the reasonable expectations of the people who will be living in or using the buildings;and
• Providing or improving off-site facilities, if the existing facilities will be placed under extra pressure that results in additional requirements or has a negative impact on what is there.

 

Aberdeenshire Council will support development, if the developer makes a reasonable contribution, in cash or in kind, to public services, facilities and infrastructure and the mitigation of negative effects on the environment, that fairly and reasonably relates in scale and kind to the proposed development, and is necessary to make the proposed development acceptable in planning terms.

 

The Council will ask for contributions for both local and regional items from developers.  We will also give details of the circumstances in which we will ask for these contributions, including the locations and the types of development from which we will seek them, in Schedule 3 and the settlement statements.

 

…..

 

In Schedule 3 of the plan we show the main elements of infrastructure for which we will require contribution”.

 

 

“SCHEDULE 3

 

Likely Infrastructure Needs

 

The following tables identify the strategic elements of infrastructure which will be required as a result of new development.  The Aberdeen City and Shire Structure Plan recognises both the need for contributions towards necessary infrastructure and facilities within development sites and also towards off-site infrastructure where development on a number of sites can make a cumulative impact.

 

This schedule sets out the items for which we will seek financial or other contributions, and the circumstances where we will seek them.

 

…..

 

Primary education

Contributions will be required to fully accommodate any deficit where the capacity of existing schools is projected to be exceeded as a result of proposed development.  This is detailed in the settlement statements.  All new housing developments within a primary school catchment will contribute to any identified requirement.”

 

“SG LSD4: Infill development

 

We will approve development on sites within a settlement boundary in the settlement maps which have no specific land use allocation, subject to other policies, if:

 

(1)        the nature of the development will not erode the character or amenity of the surrounding area through over or under-development;  AND

 

(2)        the development will not interfere significantly with the existing or proposed use of neighbouring sites, or with the accessibility of future potential development areas;  AND

 

(3)        the development will not cause the loss of a significant area of open space, allotments or woodland important to the community”.

 

“SG Developer Contributions 1: Developer Contributions

 

We will approve development, subject to other policies, if:

 

(1)        the developer makes a fair and reasonable contribution, in cash or in kind, towards the cost of public services, facilities and infrastructure and the mitigation of adverse environmental impacts, that fairly and reasonably relates in scale and kind to the proposed development, and is necessary to make the proposed development acceptable in planning terms (this will include cumulative impacts that can reasonably be predicted and are identified in the settlement statements); AND

 

(2)        the developer agrees to retrospectively make a fair and reasonable contribution to the cost of infrastructure or of facilities that have already been delivered by Aberdeenshire Council, but which are directly related to the cumulative impact of their development;  AND

 

(3)        such contributions are consistent with the scale and nature of the development and are based on the requirements set out in the action programme.

 

In all cases the need for and scale of any contribution will be reviewed in the light of circumstances at the time the planning application is made.

 

Reasoned Justification

 

The aim of this policy is to ensure that the cost of new or additional infrastructure required for new development will be met by the developers/s and not by the general public.

 

Schedule 3 identifies key facilities and infrastructure likely to be required, and the developments which will be expected to make a contribution to their provision….”

 

Submissions

[7]        Both parties helpfully lodged detailed notes of argument, which we have taken into account, but which we do not seek to repeat here.  Parties’ submissions, both oral and written, may be briefly summarised as follows.

[8]        Under reference to sections 25(1) and 37(2) of the Act, Mr Burnet for the appellants reminded us of the importance to be attached to the development plan in decisions such as this.  Moreover, the issue before the planning authority (and the reporter) was not “all or nothing” – an application under section 42 may be granted subject to conditions differing from those subject to which the previous permission was granted.  He accepted the principles of law set out in the note of argument for the respondents – parties were in agreement as to the legal principles involved.  In particular, he accepted that it was for the court to decide what the correct interpretation of policy in a development plan was – Tesco Stores Ltd v Dundee City Council 2012 SC (UKSC) 278.  It was not helpful to look at the dictionary definition of a word or words; rather, it was necessary to interpret policy in its own context.  There may be some points in the development plan that support a proposal, but there may be some considerations pointing in the opposite direction, and it was necessary to interpret the plan as a whole and to identify material considerations – City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, per Lord Clyde at 44/45.

[9]        In the present case the reporter approached the balancing exercise in the wrong manner.  The most appropriate place to consider education provision was in the context of policy 9.  The reporter could have refused this application on the basis that education provision was a material consideration which outweighed compliance with the development plan; however, that was not what she did – she found the application contrary to policy 8.

[10]      The ALDP (and in particular policy 8) was more “developer friendly” than was the development plan which was considered by this court in Hallam Land Management Ltd [2014] CSIH 110A.  In that development plan there was a clear presumption against development if education constraints could not be overcome.  That was quite different from policy 8 of ALDP in which the primary mechanism for resolving any conflict between education capacity and the need to find housing land supply is by developer contributions.  The reporter’s approach to interpretation of the development plan was accordingly wrong.  In the Hallam Land Management case there was no question but that the proposal was contrary to the development plan, and there were no material considerations to the contrary.  In the present case, the reporter required to balance different policies in the development plan to reach a conclusion as to whether the proposal was compliant with the development plan.  A consideration of material considerations would involve a different exercise. 

[11]      There was no policy in the ALDP specifically directed at educational provision, nor was there one directed at infrastructure.  However, counsel submitted that policy 9, read together with Schedule 3 and SG Developer Contributions 1, was the most relevant when considering educational capacity in relation to proposed development.  Where there were concerns about educational capacity, ALDP sought to resolve these by approving development subject to the developer making a fair and reasonable contribution, in cash or in kind, towards the cost of additional capacity.  By contrast, policy 8 and SG LSD 4 were concerned with layout, siting and design, and environmental and amenity factors.  If it had been intended that infrastructure constraints (including school capacities) should be included within a policy 8 appraisal, as the reporter included them, one would have expected specific reference within policy 8 and SG LSD 4 to adverse impact on infrastructure.

[12]      The Director of Infrastructure Services in his report to the Committee addressed the issue of educational capacity and developer contributions.  He directed the Committee’s attention to the relevant parts of ALDP, including both policy 8 and policy 9.  He recognised that there were existing pressures on schooling facilities but concluded that the issue of primary schooling would be largely addressed through the provision of the new school to be located within the Schoolhill site, and further contributions would be sought as a result of any consent granted for further housing (in a broadly similar way that healthcare constraints were to be dealt with) – see paragraphs 6.7, 6.8 and 6.14.  Despite the conclusions of this report, the Council refused planning permission for the reasons stated above.  There was no indication that the Council decided that the application was contrary to the development plan (nor, if it was, to which particular policies it was contrary).  It was to be noted that in the Council’s written submissions to the reporter there is no explicit statement that the Council regarded the proposal as contrary to the development plan, and if so, to which policy;  rather, in paragraph 4.21 it was stated that “although there may not be direct reference to this in the development plan the Committee were entitled to regard educational provision as a material consideration and based on the response from the education service they were entitled to treat this as another reason for refusal.”  The Council did not rely on policy 8 as a reason for refusal.

[13]      Notwithstanding this, the reporter based her decision on her conclusion that the proposed development did not accord with SG LSD 4 and policy 8.  She did not explain why she was content that the issue of healthcare provision could be addressed through a suitable section 75 legal agreement requiring payment of the appropriate contribution, but she was not content for the same mechanism to apply for educational capacity constraints. 

[14]      For the respondents, Mr Findlay observed that the reporter dealt with a large number of issues in her report, and she was clearly alive to the opportunities for conditions and section 75 agreements.  She dealt very fully with constraints on educational capacity at paragraphs 10-16 of the report; the only criticism made by the appellants of these paragraphs was the last sentence of paragraph 16, in which she found that the proposed development would be contrary to policy 8, specifically in relation to the provision of primary education facilities.  However, earlier in paragraph 16 the reporter concluded “that I have no evidence before me from any party to indicate how pupils from the proposed development could be accommodated as the developer contributions that the Council may levy would not address the lack of capital funding…”  It was to be noted that the appellants had not raised the possibility of a suspensive condition, either before the reporter, or in their grounds of appeal, or in their note of argument or oral submissions to this court.  There was no issue in principle about development on this land, as it is within the development boundary and all issues raised were site specific.  The reporter had considered all the issues which might have prevented development, and rejected each one except for educational capacity constraints.  The appellants could therefore raise a fresh section 42 application, or lodge a fresh planning application, for a proposed development on this site.  There was a single issue between granting and refusing of permission; the reporter had this clearly in mind, and was also well aware that the appeal was about conditions.

[15]      The possibility of other material considerations was raised by the appellants before the reporter in the context of the fourth reason for refusal, relating to Chapelton of Elsick.  Having dealt with this fourth reason for refusal in the way she did, there was no need for the reporter to deal with other matters that were not live.  The only live issue was educational provision.  There was no evidence that capital funding would be available (in contrast to the Hallam Land Management case, in which there were uncertainties about capital funding).  The appellants make no challenge to the reporter’s findings in paragraphs 10-16 of her decision letter; they only challenge the last sentence of paragraph 16, which is the conclusion which she draws from these findings.

[16]      Counsel submitted that there was no merit in the submission for the appellants that the reporter erred by carrying out her assessment in the context of policy 8 rather than considering educational capacity as some other material consideration.  The reporter exercised her planning judgment with regard to the question of educational capacity constraints, and it is clear from paragraphs 10-16 that she did so carefully.  The exercise of her planning judgment on this matter cannot be impugned before this court, and there can be no answer to it.  There was no real possibility that there could be any other outcome, whether the reporter considered the matter under policy 8, policy 9 or as another material consideration.  Counsel referred us to Tesco Stores v Dundee City Council at paragraphs [19] and [31].  The present case was a single issue case.  The reporter required either to refuse permission or to grant it, but if she granted it, there would be a very unsatisfactory position regarding education provision.  The reporter decided in the light of her findings how she resolved the determining issues, which involved the exercise of her planning expertise and judgment.  Counsel referred us to Moray Council v Scottish Ministers 2006 SC 691, at paragraphs [28] to [32]. 

[17]      Turning to the terms of ALDP, the terms of Schedule 3, dealing with primary education, (quoted above) should be noted.  The reporter was correct to take a wide interpretation of amenity in looking at the first criterion in SG LSD 4.  Indeed, in their statement of grounds for appeal to the reporter dated August 2014 the agents for the appellants themselves used a very broad interpretation of amenity (see paragraphs 4.5 and 4.6 in particular);  they assumed “that this impact upon amenity relates to impacts upon existing amenities including medical facilities, retail provision, open space requirements and affordable housing provision”, and observed in relation to the impact upon amenity that “the developer contributions discussed include a suitable contribution towards the new school facility”.  They categorised education provision as falling within the broad area of the amenity of the surrounding area, and the reporter was correct to do so as well.  It was clear that policy 8 of ALDP was a development control policy, which required consideration of the provisions of associated services.  There was no reason to exclude from the category of associated services matters such as healthcare provision or education provision.

[18]      Counsel submitted that policies 8 and 9 had to be read together.  Policy 8 was a development control mechanism, whereas policy 9 provided the means by which a developer might overcome issues thrown up by policy 8.  Schedule 3 was not just tied to policy 9; it made it clear that certain things might be required of developers, and the only policy that provided a mechanism to make requirements of developers was policy 8.

[19]      In response to questions from the court about the figures given in paragraph 14 of the decision letter, counsel for the appellants indicated that, by way of very approximate estimation, the appellants’ contribution towards the cost of an expanded school to accommodate 540 pupils would have been around £1m, and that his understanding was that the additional costs of building an expanded school to accommodate 540 pupils was approximately £2.4m more than the cost of the new school with an initial capacity at opening of 355 pupils.

 

Decision
[20]      The proper interpretation of policy statements in development plans is a question of law;  “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context” – Tesco Stores v Dundee City Council at paragraph [18].  It is for the court to determine if a decision-maker (whether a planning authority, a reporter or a local review body) has decided an issue on the basis of a mistaken interpretation of a development plan.  However, as Lord Reed went on to observe in the following paragraph in Tesco Stores v Dundee City Council, policy statements should not be construed as if they were statutory or contractual provisions;  development plans are full of broad statements of policy, many of which may be mutually irreconcilable.  Moreover, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment.  Such matters fall within the jurisdiction of planning authorities (and we would add, reporters and local review bodies which are considering applications de novo) and their judgment can only be challenged on the ground that it is irrational or perverse.  These statements of principle were not contentious in this appeal. 

[21]      It was submitted on behalf of the appellants that in finding that policy 8 et separatim SG LSD 4 were concerned with primary education provision the reporter misinterpreted and misapplied the policies.  There was no mention of education provision in policy 8 nor in SG LSD 4; it was argued that the reporter misinterpreted these policies, which were more concerned with layout, siting and design of new development and not with infrastructure.  In particular, it was argued that she erred in adopting a broad interpretation of the phrase “the character or amenity of the surrounding area” where it appears in the first criterion of SG LSD 4. 

[22]      We are not persuaded by this submission.  The word “amenity” is capable of both wide and narrow construction.  In order to determine which is correct in a particular circumstance, it is necessary to look to the context in which it is used.  In the present case, that context includes not only the whole of SG LSD 4 and policy 8, but the rest of ALDP.  SG LSD 4 was supplementary guidance issued by the planning authority in terms of policy 8.  There is nothing in the language of the first criterion stated in this supplementary guidance which suggests that a narrow interpretation of “amenity” is required.  On the contrary, we consider the word has a sufficiently broad connotation in every day usage to include adequate educational provision within a reasonably convenient distance.  When considering the amenities of a residential area, whilst these may include sufficient areas of open space, allotments or woodlands, they are not confined to these.  In our view, counsel for the respondents was correct to observe that the term “amenity” is apt to include adequate and convenient access to services such as shops, transport links and schools.  That policy 8 and SG LSD 4 may include consideration of education provision is in our view supported by the last sentence of the second paragraph of policy 8 quoted above, where (reading short) the Council commits itself to assessing all development using a process that includes appropriate standards for design, open space, accessibility, safety, sustainability and the provision of associated services.  The provision of associated services is a term sufficiently wide to include the provision of transport, healthcare, utilities and education.

[23]      We agree with the submission for the respondents that policies 8 and 9 must be read together, and in the context of ALDP as a whole.  Policy 8 provides a development control mechanism, and policy 9 provides the means by which a developer may be able to overcome issues raised by policy 8.  Schedule 3 and the supplementary guidance on developer contributions cannot be read as being relevant only to policy 9; they form part of the whole scheme of the plan.  There is nothing in them which lends support for the argument that policy 8 is not concerned with associated services such as education, or that “amenity” should be given a narrow interpretation.  We note that in the written submissions to the reporter which were made on behalf of the appellants, a wide construction of the term is adopted – “for the purposes of this Grounds of Appeal it is assumed that this impact upon amenity relates to impacts upon existing amenities including medical facilities, retail provision, open space requirements and affordable housing provision”.  If the term includes medical facilities, retail provision and affordable housing provision, it is difficult to see why it should exclude the provision of educational facilities.

[24]      Lest there be any misapprehension on the point, we should make it clear that we are not attempting to provide a general definition of the word “amenity” which might be applicable to all circumstances.  The views which we have expressed relate to our construction of the term in its own particular context in ALDP.  It is conceivable that in a different context, a different construction may be necessary.  However, in the circumstances of this case we are not persuaded that the reporter reached her decision on the basis of a misinterpretation of policy 8 or SG LSD 4.  We agree with her interpretation and do not consider that she has made any error of law.  The first ground of appeal accordingly fails.

[25]      In any event, an error by the reporter in interpreting the policies would be material only of there was a real possibility that her determination might otherwise have been different – Tesco Stores v Dundee City Council per Lord Reed at paragraph [31].  The reporter made detailed findings in fact with regard to education capacity and projected additions to this, in paragraphs 10-16 of her decision.  The appellants take issue only with the conclusion which she draws from these findings in the last sentence of paragraph 16; they do not take issue with the findings themselves.  That is perhaps not surprising, as these are matters which involve the exercise by the reporter of her own expertise and judgment when assessing the available evidence, which could only be challenged on the ground that it was irrational or perverse.  In any event, no such challenge has been made in this case.  The reporter set out in some detail her findings as to existing and projected school capacities.  At paragraph 14 she stated as follows:

“When the 76 pupils from the proposed development are accommodated, the new Hillside Primary School would be over-capacity within one year of opening as a consequence of this development.  I have no evidence before me from any party indicating how this issue is to be resolved, other than the appellant offering developer contributions through the section 75 mechanism.  The new primary school will have the potential to be expanded to accommodate 540 pupils, but at present the Council have not identified the capital funding to build the minimal capacity building, let alone the expanded one.”

 

[26]      She went on at paragraph 16 to state:

“It is clear to me that the proposed development would give rise to capacity issues at both the existing and the new primary school and I conclude that I have no evidence before me from any party to indicate how pupils from the proposed development could be accommodated, as the developer contributions that the Council may levy would not address the lack of capital funding…”

 

[27]      It was not suggested, either to the reporter or before us, that any developer contribution from the appellants would be sufficient to provide capital funding to expand the new school from its initial capacity of 355 pupils to an expanded capacity of 540 pupils.  Without evidence as to how the problem of capital funding would be resolved, we consider that even if (contrary to our views expressed above) the reporter was in error in her interpretation of policy 8 and SG LSD 4, any such error was not material because there was not a real possibility that her determination might otherwise have been different.  Whether the issue was considered in terms of policy 9, or as another material consideration, we consider it to be clear that the outcome would have been the same. 

[28]      The appellants advanced a second ground of appeal to us, namely that the reporter failed to give proper, adequate and intelligible reasons for her decision;  she failed to identify what she regarded as material considerations and failed to specify which, if any, material considerations she had taken into account in her decision.  It was argued that the appellants in their appeal submissions had referred to policy support for the economic benefits of housing development and the principle of infill development inter alia contained within Scottish Planning Policy SSP and the National Planning Framework NPF 3.

[29]      We do not consider that there is any substance in this ground of appeal.  The reporter gave full and clear reasons to support her decision.  She reached her decision on the basis that the proposed development did not conform to the development plan.  Material considerations were raised by the appellants in the context of the planning authority’s fourth ground for refusal, namely the possible negative impact on Chapelton of Elsick.  Having disposed of that aspect of the appeal before her in favour of the appellants, we do not consider that there was any need for the reporter to give further details about issues which were no longer live before her.  The reporter’s reasoning was clear:  she considered a variety of factors which might have precluded the proposed development.  She reached the conclusion that all but one of these factors either did not preclude the development, or could be satisfactorily resolved by means of conditions and/or a section 75 agreement.  The only matter which she concluded was such as to preclude the development was its effect on education capacity.  She stated her reason for determining this issue in the way she did clearly at paragraph 16 of her decision letter, which was based on the material contained in the preceding six paragraphs.  She stated as follows:

“It is clear to me that the proposed development would give rise to capacity issues at both the existing and the new primary school, and I conclude that I have no evidence before me from any party to indicate how pupils from the proposed development could be accommodated, as the developer contributions that the Council may levy would not address the lack of capital funding, the potential to move children to other primary schools requires a statutory process with no guaranteed outcome, and other windfall developments may arise within the catchment to exacerbate the situation.”

 

We consider that the informed reader of the decision letter could be in no real or substantial doubt as to what the reasons for the reporter’s decision were.  The second ground of appeal must accordingly fail.

[30]      In conclusion, we are satisfied that the decision of the reporter dated 24 October 2014 was within the powers of the Act.  We answer the first two questions of law put to us in the affirmative, and the last three questions in the negative, and we refuse this appeal.