Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 129

XA146/14

OPINION OF LORD TURNBULL

In the cause

CALMAC DEVELOPMENTS LIMITED

Appellant;

against

DUMFRIES AND GALLOWAY COUNCIL

Respondents:

Appellant:  Burnett;   Morton Fraser LLP

Respondents:  Dunlop;   Pinsent Masons LLP

18 September 2015

Introduction
[1]        This is an appeal under section 238 of the Town and Country Planning (Scotland) Act 1997 (“the Act”).  It arises out of the adoption by the respondents, who are the relevant planning authority, of the Dumfries and Galloway Local Development Plan 2014 (“the 2014 Local Development Plan”). 

[2]        The appellant is the owner of the Woodland House Hotel, which lies to the north-west of Dumfries town centre.  Prior to the adoption of the 2014 Local Development Plan the settlement boundary of Dumfries was governed by the Nithsdale Local Plan 2006 (“the 2006 Local Plan”).  The Woodland House Hotel lay within the settlement boundary of Dumfries in the 2006 Local Plan.  As a consequence of the adoption of the 2014 Local Development Plan the Dumfries settlement boundary changed, with the result that the area occupied by the Woodland House Hotel now falls outside the settlement boundary.

[3]        The Woodland House Hotel is situated between two small settlements known as Newbridge and Woodlands respectively.  Each of these settlements also lay within the settlement boundary of Dumfries as defined in the 2006 Local Plan but each now also falls outside the boundary as defined by the 2014 Local Development Plan.

[4]        Another area of land, referred to as LN12, lies adjacent to and generally to the south-east of the area occupied by the Woodland House Hotel.  The appellant does not own this land.  Again it fell within the settlement boundary of Dumfries within the 2006 Local Plan.  In that plan this area was identified as a possible future housing development option.  The appellant has an interest in promoting a small-scale housing development on the property around the Woodland House Hotel.  A planning application for such a proposal would previously have been determined in accordance with housing policies applying within the settlement boundary of Dumfries.  As a consequence of the redrawing of the boundary in the 2014 Local Development Plan any such application would now be dealt with under different, and, it is contended, more restrictive housing policies.

The emergence of the 2014 Local Development Plan
[5]        Section 16 of the Act requires a planning authority to prepare a local development plan at intervals as specified.  Sections 15 through to 20 of the Act prescribe the general form, content and process by which a local development plan is to be prepared and adopted.  The Town and Country Planning (Development Planning) (Scotland) Regulations 2008 contain further regulations to be followed in this process.

[6]        In keeping with the sections of the Act mentioned the respondents produced a Main Issues Report in March 2011 and a Proposed Local Development Plan in January 2013.  The appellant made submissions in response to the Main Issues Report concerning its interest in a development on its property and suggesting that the site should be included in the Local Development Plan for two houses.

[7]        In December 2012, a technical paper titled “Settlement Hierarchy” was published in association with the preparation of the Proposed Local Development Plan.  This paper explained the concept of a settlement hierarchy and contained a flowchart demonstrating how each settlement would achieve its designation.  A settlement with a population of less than 3,000 and at least one community facility would fall to be designated as a village in terms of the information provided.  The categories of community facilities for this purpose included hospitality, such as a hotel with non-resident facilities.  A settlement of this size with no community facilities would fall to be designated as a small building group.

[8]        On publication of the Proposed Local Development Plan it became clear, for the first time, that the respondents were intending to change the settlement boundary of Dumfries, with the consequence that the area occupied by the Woodland House Hotel, the area LN12 adjacent to it and the settlements known as Newbridge and Woodlands would all now fall outside the settlement of Dumfries.  Appendix 1 of the Proposed Local Development Plan listed a “Settlement Hierarchy” in which settlements were allocated designations of:  “Regional Capital”, “District Centres”, “Local Centres” and “Villages”.  Neither the settlement of Newbridge or Woodlands was listed under any description.

[9]        As permitted by section 18 of the Act, the appellant made representations to the respondents concerning the proposed plan.  The respondents made no modification in light of these representations but requested the appointment of a reporter to examine unresolved representations in terms of section 19 of the Act.  In due course the reporter recommended no modification to the Proposed Local Development Plan in the area of the appellant’s property.

[10]      The 2014 Local Development Plan identifies different policies concerning housing development according to the classification of the area within which the development is proposed.  These include:  “Policy H2 Housing Development in Villages”, “Policy H3 Housing in the Countryside” and “Policy H4 Housing Development Immediately Outside Settlement Boundaries”.

The competing submissions
[11]      Counsel for the appellant contended that both the respondents and the reporter had failed to consider the appellant’s representations on the effect of the reduction in the settlement boundary of Dumfries and had failed to consider how to classify Newbridge and Woodlands in planning terms if the boundary of Dumfries was to be restricted.  It was argued that the respondents had failed to take account of their own policy in relation to how it should classify settlements and had failed to take account of a representation that Newbridge should be classified as a village in the event that the Dumfries settlement boundary was reduced.  Counsel submitted that no reasons had been given for not recommending that Newbridge should be designated as a village.

[12]      Counsel for the appellant also submitted that, insofar as reasons for not classifying Newbridge as a village had come to be given by the respondents in their answers to the present appeal, I should take no account of these.  He submitted that proper reasons required to be given during the process of adoption of the 2014 Local Development Plan, both by the respondents and by the reporter.

[13]      Counsel referred to Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P & CR 343, Uprichard v  Scottish Ministers 2012 SC 172 and 2013 SC (UKSC) 219, FSH Airport (Edinburgh) Services Ltd v City of Edinburgh Council [2007] CSOH 193 and Eadie Cairns Limited v Fife Council [2013] CSIH 109.

[14]      Counsel for the respondents submitted that, properly read, the appellant’s representations concerning the Proposed Local Development Plan were restricted to the claim that the site occupied by its property and the settlements of Newbridge and Woodlands should remain within the settlement boundary of Dumfries, as they had been in the 2006 Local Plan.  Counsel submitted that the reasons given by the respondents, and approved of in the decision of the reporter, reflected an appropriate exercise of planning judgement and were expressed in a concise manner which would be understood easily by an informed reader.

[15]      Counsel explained that no reasons had been given for declining to classify Newbridge as a village since no representations had been made to the respondents that they should do so.  In the answers to the present appeal the respondents explained that the Woodland House Hotel sits in extensive grounds separate from the settlements of Newbridge and Woodlands.  The respondents considered them to be two separate settlements, each of which remained unclassified after the adoption of the 2014 Local Development Plan.  Since the adoption of that Plan the respondents had determined that Woodlands should be characterised as a small building group in light of the receipt of planning applications for development within that settlement.  They intended to consider the classification of the settlement of Newbridge on receipt of any planning applications for development within that settlement.

[16]      Beyond the cases referred to on behalf of the appellant counsel for the respondents referred to Cartledge v Scottish Ministers 2011 SC 602, Wordie Property Co Ltd. v Secretary of State for Scotland 1984 SLT 345, In Re Poyser & Mills’ Arbitration [1964] 2 QB 467, Moray Council v Scottish Ministers 2006 SC 691, Clark Homes Limited v Secretary of State for the Environment [1993] P & CR 263, Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, and Westminster City Counsel v Great Portland Estates [1985] 1 AC 661.

Discussion
[17]      The representations which the appellant made to the respondents in connection with the Proposed Local Development Plan were submitted on its behalf by its professional advisers.  The representations were made on a form produced by the respondents for this purpose.  Part 4 of the form asks:  “What changes are you seeking to the document?”.  The change suggested by the appellant was as follows:  “Adjustment to Settlement Boundary for North West Dumfries to embrace Newbridge and Woodlands.”

[18]      Part 5 of the form is headed up “Representation” and contains the reasons given by the appellant for the suggested change specified in Part 4.  The contents of this part of the form are as follows:

“No reasoned justification appears to be contained in the proposed local development plan for the ‘shrink wrap’ of the Settlement Boundary in this part of Dumfries from that shown in the Nithsdale Local Plan (October 2006).  In addition Newbridge is not designated as a village in the Dumfries Housing Market Area.  We consider therefore that the Settlement Boundary requires to be adjusted as shown in red on Appendix 1.  This adjustment will essentially maintain the Settlement Boundary as shown in Nithsdale Local Plan (October 2006).

Noted that LN12 in the Nithsdale Local Plan (October 2006) has been deleted without any apparent explanation in the proposed local development plan.

By drawing the line of the Settlement Boundary as shown in the proposed local development plan would mean that any application for the development of housing out with this in the future would be assessed in terms of policies H3 Housing in the Countryside and H4 Housing Development Immediately Outside Settlement Boundaries.  It is submitted that the application of these policies to the built up area in this area of Dumfries would be entirely inappropriate.  Small housing sites in particular should not have to face a potential embargo based on the larger scale of the Housing Land Audit.

The Settlement Boundary if adjusted as shown in Appendix 1 would leave it open to a developer to pursue development without having to wrestle with policies H3 and H4.

This adjustment will also have the additional benefit of providing more flexibility and choice for residential development particularly appropriate small scale development.

If the Settlement Boundary is not adjusted in the Local Development Plan as shown in red in Appendix 1 Calmac Developments Ltd objects to the Local Development Plan.”

[19]      The reasons given by the respondents for refusing to make any change to the Proposed Local Development Plan in light of the representations received from the appellant were as follows:

“The Council gave careful consideration to the review of the boundary to the north west of Dumfries. A site was indicated within the Nithsdale Local Plan (LN12) page 26 (core document 20) for future consideration as a housing site in the next plan, ie the Local Development Plan. In reviewing existing allocations, suggested longterm sites and sites submitted for consideration in the Local Development Plan it was considered that the strategy for distributing sites across Dumfries would be in a sustainable manner, aiming to make the best use of existing land, infrastructure, facilities and transport networks. LN12 is located in an outlying area and it was considered that other sites, closer to the town centre and other facilities better met the housing land requirements for the plan at this time.  It was considered that this was too large a site to include within the settlement boundary as unallocated land close to the edge of the settlement.

With the exclusion of LN12, both Newbridge and the Woodlands estate become physically separated from the rest of the settlement. The Woodlands Estate is of a similar type and age to that at Cargenbridge and was built in a way that there are limited infill spaces or logical means of extension.”

[20]      The reasons given by the reporter for recommending no modification to the Proposed Local Development Plan were as follows:

“The possible future housing area identified in the Nithsdale Local Plan as LN12 would infill the area between the settlement edge and the small community at Newbridge.  The identification of this site was only a possible indication subject to the review of the future housing needs of Dumfries. Whilst there is housing along the south-eastern boundary and at Woodland/Newbridge, the urban edge of Dumfries in this locality is characterised by the Lochside Industrial Estate. There would be a need for a landscaped buffer between these uses. In any event, the site is relatively remote from the town centre. I agree with the council that the existing edge of development presents a logical settlement boundary given that the site is not required to meet the area’s housing needs.”

[21]      It was accepted that the present appeal only concerned the legality of the decision making process engaged in by the respondents and could not address the merits of the decision which they made.  The contention advanced on the appellant’s behalf was that the reasons given for rejecting its representations were inadequate.  I accept that the reasons as given require to speak for themselves and that the respondents cannot remedy a deficiency in the content of earlier reasons by adding to those in the context of this appeal.

[22]      In an appeal of this nature an appellant requires to satisfy the court that he has been substantially prejudiced by a failure to provide adequate reasons - Save Britain’s Heritage v Number 1 Poultry Limited.  The duty to provide adequate reasons will be satisfied by reasons which are intelligible and which deal with the substantial points raised.  Such reasons may be concisely stated but the guiding principle is that the decision should leave the informed reader in no substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it - Wordie Property Co. Ltd v Secretary of State for Scotland and Moray Council v Scottish Ministers.  The jurisdiction of the court can only be invoked when there is shown to be something substantially wrong or inadequate in the reasons which are given – In Re Poyser & Mills Arbitration and the adequacy of the reasons given has to be considered on the basis that they are addressed to persons who are familiar with the background and the issues – Uprichard v Scottish Ministers.

[23]      In my view, if the respondents are correct in their submission that the only representation made to them by the appellant concerned the placement of the boundary of the settlement of Dumfries, then the reasons given by them for reducing the boundary area were adequate.  The reasons given explained the exercise of an understandable planning judgement in a concise manner which would be understood easily by an informed reader familiar with the background and the issues.  It would be obvious that the decision to exclude the area LN12, the appellant’s property and the settlements of Newbridge and Woodlands had been arrived at by identifying an appropriate and defensible boundary for the settlement of Dumfries, the identification of a landscape buffer and the conclusion that the housing needs of the area were otherwise met.  If this was the only representation made to the respondents, then their decision, as communicated to the appellant, made would meet the test of a proper, adequate and intelligible set of reasons dealing with the substantive point raised.  The reasons would therefore meet the tests as discussed in the cases identified in the preceding paragraph.  On this view it would follow that the adoption of this reasoning by the reporter was also beyond criticism.

[24]      The remaining issue in this appeal is therefore whether or not the respondents were required to address the question of whether the settlement of Newbridge ought to be classified as a village.

[25]      An aerial view of the area around the property occupied by the Woodland House Hotel was lodged in a joint bundle of productions.  This view makes it plain that the two settlements of Newbridge and Woodlands are distinct and separated by an area of open land.  The property occupied by the Woodland House Hotel lies between the two settlements.  It would not be possible for me to determine whether the property occupied by the hotel was part of one settlement or the other, or part of neither.  Nor is it any part of my function to do so in determining this appeal.  At the hearing before me counsel for the appellant sought to group the two settlements together as one and referred to the area as Newbridge/Woodlands.  This was in keeping with part of the remedy sought in the appeal which was to quash the Local Development Plan: “insofar as it fails to designate the settlement at Newbridge/Woodlands as a village within the settlement hierarchy”.

[26]      The only reference to either of the two settlements which appears in the representations on behalf of the appellant is to the settlement of Newbridge.  Two questions might arise at this stage:  First, is the Woodland House Hotel part of the settlement of Newbridge?  Second, if so, does it properly fall to be described as a community facility?  If the answer to both questions is in the affirmative then the respondents’ guidance as set out in their Settlement Hierarchy technical paper of December 2012 would suggest that Newbridge ought to be classified as a village.  I am not in a position to provide the answer to either question though.  Each would be for the respondents to determine and might involve the application of planning judgement on their part, although I note that in their answers the respondents accept that the Woodland House Hotel provides non-residential facilities including a restaurant.

[27]      It is of note that the Representation Form (item 6 in the joint bundle of productions) completed by the appellant only identifies one change which it seeks to the Proposed Local Development Plan.  It is not suggested in the representations made on behalf of the appellant that, failing adjustment to the settlement boundary as argued for, a process of classification of the now excluded settlements would be appropriate or necessary.

[28]      Counsel for the respondents argued that the reference to Newbridge in the representation section of the form completed by the appellant was a statement of fact included as part of the argument in favour of reinstating the original boundary.  The comment is that the settlement is not designated as a village, not that it should be designated as a village.  It was a statement which went to show that as a consequence Housing Policies H3 or H4 would apply to any development proposed by the appellant rather than any other policy.  He argued that nothing was said in the representation section to suggest that the absence of designation as a village was an incorrect or inappropriate outcome.  Nothing was said about the association between the Woodland House Hotel and the settlement of Newbridge and nothing was said about the hotel providing a community facility.  Nothing was said about the respondents previously published settlement hierarchy diagram in favour of the suggestion that this guidance would lead to classification as a village.

[29]      Counsel for the respondents was correct in making these observations about the content of the representations and, in my judgement, he was correct in his submission that, properly read, only one change to the Proposed Local Development Plan was argued for by the appellant, namely the reinstatement of the previous boundary.  The answer to the question “what change does the appellant seek”, is found by looking to Part 4 of the form which asks that very question.  The respondents are not required to interpret the subsequent representation section of the form in order to ascertain whether any further change is also being sought.  In any event, a scrutiny of the representations which were made in support of the change sought would not lead reasonably to the conclusion that the appellant was also arguing, as a fall back contention, that the settlement of Newbridge should be designated as a village.  The representations conclude with the statement that if the boundary is not adjusted the appellant objects to the local development plan.  No suggestion of any alternative outcome is included.

[30]      This conclusion is reinforced by the references in the representations made to the impact in planning terms of the boundary being drawn as proposed.  The appellant points out that the effect of this would be that any application for the development of housing outside the boundary would be assessed in terms of policies “H3 Housing in the Countryside” and “H4 Housing Development Immediately Outside Settlement Boundaries”.  It argues that the application of these policies would be inappropriate and suggests that the appellant’s proposed adjustment to the boundary would avoid the need for a developer to comply with these policies.  Nowhere is it suggested that the classification of Newbridge as a village would result in the application of policy “H2 Housing Development in Villages”, or that this would be the appropriate policy to apply to a proposal to develop the appellant’s site.  Put shortly, there are no reasons given in support of any suggestion that Newbridge should be classified as a village.  The only reasonable explanation for this is that no such request was being made of the respondents.

[31]      There is a further indicator of the artificial nature of the argument presented by the appellant.  The remedy sought in the present appeal includes the quashing of the 2014 Local Development Plan in so far as it fails to designate “the settlement at Newbridge/Woodlands as a village”.  This remedy appears to be sought upon the premise that each of the two visibly and geographically distinct areas, with different names, ought properly to be classified in planning terms as one village benefiting from the communal facility provided at the Woodland House Hotel.  There is no sense in which it can reasonably be stated that this was a proposal which was made to the respondents in the representations made by the appellant.

[32]      Since no request was made to the respondents to classify Newbridge (or Woodlands) as a village within the Proposed Local Development Plan, there was no obligation on the respondents to provide answers for not doing so.  Nor can it be said that the respondents acted illegally in leaving each settlement unclassified in planning terms within the 2014 Local Development Plan.  On the argument that, having decided to exclude Newbridge and Woodlands from the boundary of Dumfries the respondents were obliged to apply the guidance as set out in their Settlement Hierarchy technical paper of December 2012 to the settlements and should have done so regardless of whether any representations were made, I am entitled to take account of what was said in the answers.  The respondents consider each settlement to be distinct.  That is an apparently reasonable conclusion given their obvious separation and different names.  They also consider the Woodland House Hotel to be part of neither settlement but to sit apart.  I am not in a position to determine whether that is or is not a correct conclusion.  All that I can say is that the content of the answers lodged on behalf of the respondents address the suggestion raised in the appeal that the respondents should have classified the settlements of their own accord.  For the reasons which I have set out this was not an issue which the respondents were required to address in their reasons for rejecting the representations made to them by the appellant. 

[33]      Accordingly, in my opinion, the only representation which was properly made by the appellant to the Proposed Local Development Plan prepared by the respondents related to the placement of the boundary of the settlement of Dumfries.  Adequate reasons were given for rejecting that representation.

Disposal
[34]      For the reasons given, the appeal taken by Calmac Developments Limited fails and I shall uphold the first, second and third pleas-in-law for the respondents. I shall reserve meantime the question of expenses, not having been addressed on that matter.