Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 27

P807/14

OPINION OF LORD DOHERTY

In the petition of

ST ANDREWS ENVIRONMENTAL PROTECTION ASSOCIATION LIMITED

Petitioner;

for

Judicial Review of a decision of Fife Council dated 16 May 2014 to grant planning permission in principle for the erection of a secondary school (class 10) with associated facilities at land to the north of Pipeland Farm, Largo Road, St Andrews

 

Petitioner:  Findlay; Gillespie Macandrew LLP

Respondent: Armstrong Q.C;  Balfour & Manson LLP

Interested Party:  McKinlay;  Davidson Chalmers

 

20 March 2015

Introduction

[1]        In this petition for judicial review the petitioner seeks reduction of a decision of Fife Council (“the respondent”) of 16 May 2014 granting planning permission in principle for the erection of a new secondary school (the proposed new Madras College) on land owned by Hermiston Securities Limited (”the interested party”) at Pipeland.  The respondent and the interested party lodged answers to the petition.  The matter came before me for a first hearing on 16 and 17 December 2014.

Background

[2]        Madras College is the local authority secondary school in St Andrews.  It is located on two sites.  The senior school is in South Street and the junior school is at Kilrymont.  Playing fields are elsewhere.  The school buildings are unsuitable for current and future educational needs.  There has been a great deal of local debate and controversy as to the way forward. 

[3]        The respondent is both the education authority and the planning authority.  As education authority it investigated and considered options for a replacement school.  The process took place over a period of several years beginning in about 2006.  Many options were considered.  Initially, the construction of a new school at Kilrymont had been a serious contender, but latterly that proposal was seen to be problematical.  The Executive Director for Education and Learning submitted a report to the Executive Committee of the respondent for consideration at a meeting of the Committee on 4 December 2012.  The report re-assessed site options for a new school.  The potential options considered included North Haugh.  The report concluded that the sites worthy of further consideration were Pipeland and Kilrymont.  At its meeting on 4 December 2012 the Committee agreed the following criteria for a new school: 

“(6)      Agrees that when building a secondary school for the 21^st century the school should:

(a)        where possible be able to deliver all aspects of the curriculum and the extended curriculum on a single site;

and

(b)        be afforded the space, if possible, to maximise flexibility as the demands of the requirements of the curriculum inevitably develop and change. 

 

(7)        Agrees that Fife council should not settle for a school that is second (or third) best as an option in its pursuit of a replacement for the current Madras College.

(9)…

(c)        Agrees that Pipeland is the only site that is available and meets the criteria as set out in Section 6 above. Pipeland would also avoid the necessity of decant arrangements…”

 

The planning application

[4]        On 4 September 2013 the respondent’s agents submitted an application for planning permission in principle for the erection of a secondary school (class 10) with associated facilities at land to the north of Pipeland Farm, Largo Road, St Andrews (“the application”).  The proposal is a “major development” in terms of the Town and Country Planning (Hierarchy of Developments) (Scotland) Regulations 2009 (“the 2009 Regulations”).  In terms of the 2009 Regulations, and prior to submitting the application, the respondent held public consultation events in St Andrews, Newport and Tayport.  An Environmental Impact Assessment was required, and an Environmental Statement was submitted with the application.  On 6 January 2014 updates to the Environmental Statement were submitted, including an updated Chapter 4:  Site Selection and Alternatives.  The proposal is a major development significantly contrary to the development plan.  In terms of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2013 persons who submitted representations were given the opportunity to appear before and be heard by a committee of the respondent.  Several such persons availed themselves of that opportunity at a pre‑determination hearing held before the respondent’s North East Planning Committee on 21 and 22 February 2014.

 

The planning officer’s report
[5]        A report prepared by a planning officer from the respondent’s Enterprise, Planning and Protective Services (“the report”) was submitted to the North East Planning Committee on 20 March 2014.  The report recommended conditional approval of the application and notification of it to the Scottish Ministers.  Notification was required because the application was significantly contrary to the development plan and the respondent had an interest in the application (Planning Circular 3/2009:  Notification of Planning Applications, and the Notification of Applications (Scotland) Direction 2009).  The report stated:

“1.1 Site

…

1.1.1       The application site is located outwith the settlement boundary in an area defined as Greenbelt within the Adopted St Andrews and East Fife Local Plan (2012) to the east of the A915 (Largo Road) and St Andrews Community Hospital… The site extends to an area of approximately 12.7 hectares of prime agricultural land (Class 3.1)… The site is bounded by residential dwellings to the north, St Andrews Community Hospital to the west and agricultural land to the south and east…

 

1.2 Proposal

…

1.2.1         …(T)he proposed new school building comprises a series of large connected blocks over 4 different levels located on the western half of the site along with car parking and bus stance areas … The current proposals include the provision of 6 playing fields/sports pitches…

 

1.2.2         The overall project consists of the following key elements:

 

- The erection of a new secondary school, with an anticipated floor area of 14,500 square metres, accommodating up to 1,450 pupils;

- The provision of 6 playing fields/sports pitches including 1 all-weather pitch with floodlighting; …”

 

[6]        In section 1.3 the report noted that at the time of the examination report into the Local Plan in 2012 the reporter had noted that development in this location would be detrimental to the landscape setting of St Andrews;  and that in January 2013, as part of the Site Assessments of the FIFEplan Main Issues Report it was decided not to assess further a proposal for housing and mixed development at Pipelands Farm because it was not acceptable in terms of Green Belt policy and impact on the landscape setting of St Andrews.

[7]        Section 2.6 of the report considered two issues.  First, whether the application complied with the Town and Country Planning Environmental Impact Assessment (Scotland) Regulations 2011.  The report concluded that it did.  The petitioner does not challenge that conclusion.  The report continued:

“2.6.14     The second part of this section now deals with the weight that should be attached to the need for the school and whether the location proposed can be justified based on the suitable alternatives that are available…

 

2.6.15       …There are many reports and assessments including two HMIE reports 2006 & 2008 that express concern regarding the condition of the facilities and that the existing split site facilities affected the time spent on learning. The HMIE also indicated that the Education Authority should take ‘immediate steps to remove barriers to learning, teaching and behaviour due to weaknesses in accommodation’… It is therefore an unassailable fact that there is a pressing need for a replacement secondary school.

 

2.6.16       The question of ‘location’ is also covered but only indirectly by the Local Plan. The St Andrews West Development Framework identifies a site option ‘for a school/university’ at North Haugh within the Strategic Land Allocation… In Development Plan Terms therefore there is a site identified in the Local Plan for a new school but only as an ‘option’ and not as a definitive land allocation… (T)he decision on this application must address the merits of the North Haugh ‘option’ site in the context of the provision of a secondary school that meets the project parameters. Crucially those same considerations are fundamental in deciding whether any of the restrictive policies should be set aside…

 

2.6.17       When the North Haugh site was included as an option within the Local Plan the exact scope of the school project was still in flux. The Council was considering a range of sites that would deliver quite different educational facilities in terms of the limitations and characteristics of the site, most importantly its size. Crucially in December 2012 the Executive Committee provide a decision that set out the actual project requirements. From that point onwards the development under consideration must strive to deliver those requirements. This has significantly changed the way that the Planning Authority can view the feasibility of the North Haugh option in the Local Plan and any other candidate sites…

 

2.6.19       The Planning Authority must address not just whether there are any alternative sites but whether they are suitable and available… In applying each of the 4 separate criteria listed above [avoidance of the negative impact a decant would have; where possible to deliver all aspects of the curriculum on a single site; to be afforded the space, if possible, to maximise flexibility; not to settle for a school that is second or third best] it is necessary to review from the list of alternatives available - whether any other site was suitable and available.”

 

The report then noted that the first criterion - decanting - would rule out only the rebuild or remodelling options at Kilrymont or South Street.  It continued:

“2.6.21     The second criterion relates to the provision of a school delivering all aspects of the curriculum on a single site. In simple terms this factor rules out the status quo ‑ retaining a junior and senior school - but in broader terms rules out a split between a St Andrews school and a Taybridgehead school or any other permutation whereby the school is divided between two locations. The provision of sports pitches on the same site as the school building itself is a key outcome of the ‘single site’ expectation. Physical education is part of the curriculum and providing the facilities next to the building thus reducing pupil and staff travel time to the playing pitches is the main impact of this decision. The decision to discount any site not large enough to have the playing pitches on the single site rules out North Haugh, Strathtyrum, Langlands, University Playing Fields & Petherum Bridge. The primary impact from this decision is the immediate removal of North Haugh from the list of ‘suitable’ alternatives. Regardless of the detailed case expounded by objectors it is primarily this fact which precludes the North Haugh from being an acceptable site.

 

2.6.22       The third criterion is about future space to respond to a developing curriculum. This is not precise enough to apply to the sites in a robust way. It would put in question the Kilrymont and South Street rebuild options as they are already land locked restricted sites. The other small sites circa 6ha or less in the list i.e. Petherum Bridge, University playing fields, Langlands and North Haugh would also be vulnerable. This would affirm the decision to exclude them as split sites.”

 

The report then concluded that the fourth criterion - not settling for second or third best options - was too imprecise to be applied.  It proceeded:

“2.6.24     Now that the unsuitable sites are ruled out it is necessary to look at the other characteristics of those that remain suitable; those sites would be of a size and shape that could deliver a single site campus. These are Craigtoun Road, Strathkinness High Road, Station Park, Botanic Gardens, Strathtyrum and Pipeland…

 

2.6.25       The importance of the project was first identified to the Council formally in the HMIE report from 2006. Due to the time that has elapsed, the applicant must therefore move forward with as little delay as possible. The applicant has indicated that any development that relies on the purchase of land from the St Andrews University to be vulnerable in this regard; thus ruling out the Botanic Gardens as an unavailable site. It clearly has other planning constraints relating to its existing use and these would add to its status as ‘unavailable’.”

 

The report then examined the suggested alternative sites at Station Park, Craigtoun Road, Craigtoun Park, Strathkinness High Road and identified problems with suitability and availability.  It continued:

            “2.6.29     The potential site at Strathtyrum is further north on the periphery of the town. It has similar characteristics to the North Haugh. The applicant believes it would be a more costly building due to its prominent gateway position at the entrance to the town. Although over 6ha in size it is the smallest of the ‘larger’ sites at 7ha and would still require some use of the Station Park playing fields thus rendering it a split site. In addition the applicant has indicated that they believe the site to be unavailable to purchase. The site is neither available nor suitable.

 

…

 

2.6.32       …The proper identification and application of development plan policy is the legal principle which should influence the decision of the Planning Authority in the determination of this and any other planning application. Ultimately the question is whether an alternative site is suitable for the proposed development not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site. As with the consideration of “alternatives” in the EIA context, developers are not expected to carry out a wholly artificial examination of alternatives.

 

2.6.33       By following this sifting process the Pipeland site becomes a candidate site that is worthy of consideration against the restrictive policies of the Development Plan. So in deciding whether to set aside the matters of principle established by the Green Belt, Countryside, Core path and prime agricultural land policies the Planning Authority has to be satisfied that there is an underlying need for a development at that location and that it couldn’t be delivered satisfactorily elsewhere. In basing the assessment on the information provided by the applicant regarding the availability and suitability of the alternative sites and by expanding that consideration to other sites suggested within representations it is considered that at this point in time - with a project scope set by the applicant in December 2012 and ratified in January 2013 the Pipeland site must be considered the only available and suitable site. Significant weight is therefore being attached to this fact in the determination of the application and the assessment of the development against all the policies of the development Plan…”

 

[8]                    In the conclusions section of the report the planning officer stated:

 

            “…The various documents and assessments submitted with the application along with the description of the school requirements set by the Executive Committee of Fife Council in December 2012 indicate that there are very few areas of land large enough within the vicinity of St Andrews that could deliver an appropriate replacement school. The school requirements (a single site facility) also rendered the option identified within the Local Plan (North Haugh) as unsuitable. Of those sites that are large enough only the Pipeland site is both suitable and available within a reasonable timescale that would ensure that progress on the replacement school commenced within the next 12 months. Ultimately the determination has been made on the basis of whether an alternative site is suitable for the proposed development not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site…”

 

The North East Planning Committee’s recommendation
[9]        On 20 March 2014 the North East Planning Committee voted (by seven votes to six) in favour of recommending to the respondent that the application be refused on several grounds, including the interest of protecting the countryside, the Green Belt and the prime agricultural land to the south of St Andrews;  and protecting the landscape setting of St Andrews.  In relation to protection of the countryside, Green Belt and prime agricultural land the Committee observed:

“There is insufficient evidence within the application submission to clearly establish that no other suitable site is available for a replacement secondary school and therefore the development would be contrary to the terms of the St Andrews and East Fife Local Plan policies E1, E17 and E18 and there are no material considerations that would merit setting aside the Development Plan.”

 

The meeting on 3 April 2014
[10]      On 3 April 2014 the application was considered at a full council meeting of the respondent.  The meeting had before it the application and associated documents, the report, and a further report (”the further report “) from the Head of Planning outlining the recommendation of the North East Planning Committee.  At the meeting a motion was made that the application be approved for the reasons set out in the report of 20 March 2014.  An amendment was moved that the application be refused for the reasons agreed by the North East Planning Committee and for the additional reason that the decision to set aside the development plan had not been established.  The minute of the meeting of 3 April noted:

“Considerable discussion thereafter took place on the application and members raised various points relating to development within the green belt; need for a new secondary school on one site had been established; no other suitable or available sites within St Andrews; transportation assessment of traffic impact around the site; right of way effectively managed through the site; future plans for expansion of hospital site; and impact on residential properties.

 

Vote

Amendment - 11 votes

Motion         - 56 votes

 

Decision

 

The Council agreed that the application, which was significantly contrary to the Development Plan, be approved, for the reasons set out in the report to the North East Planning Committee, contained in Appendix 1 to the current report.”

 

Notification
[11]      The application was notified to the Scottish Ministers.  On 14 May 2014 the Scottish Ministers intimated that they would not exercise their powers to call in the application.

 

The permission and reasons

[12]      On 16 May 2014 the respondent issued the planning permission.  Attached to the decision were the following reasons:

“The assessment of this application has considered the application submission documents, including the environmental statement, the representations received from third parties, the replies to the consultation process and the information presented at the Pre-determination Hearing…

 

There are many issues where the development has been found to accord with the provisions of the Development Plan. Where the development does not accord the Service has considered the importance of the material considerations as required by the terms of Section 25 of the Act.

 

The new secondary school development is significantly contrary to the Development Plan as it involves development within the countryside, the Green Belt and on prime agricultural land which is not expressly provided for within the criteria set out in the three key Local Plan policies governing such matters, Policies E15, E17 and E18. Policy 3 of the TAYplan provides a policy context for the replacement Local Development Plans with regard to development in the countryside, Green Belts and the protection of prime agricultural land and does not therefore have a key determining role in these issues. The assessment of the development as significantly contrary is a straightforward statement of fact and has driven both the processing and the consideration of this application. In the broadest test relating to the principle of development within the area subject to these policy restrictions the Service has placed significant weight on the need for the school and the lack of a suitable, available, alternative site within the environs of St Andrews…

 

There is overwhelming evidence set out over a significant period of time that the existing two secondary school buildings that make up Madras are not providing an appropriate environment for the delivery of the secondary education curriculum for St Andrews and the other North East Fife settlements that make up the school catchment for Madras.

 

The various documents and assessments submitted with the application along with the description of the school requirements set by the executive Committee of Fife Council in December 2012 indicate that there are very few areas of land large enough within the vicinity of St Andrews that could deliver an appropriate replacement school. The school requirements (a single site facility) also rendered the option identified within the Local Plan (North Haugh) as unsuitable. Of those sites that are large enough only the Pipeland site is both suitable and available within a reasonable timescale that would ensure that the process on the replacement school commenced within the next 12 months. Ultimately, the determination has been made on the basis of whether an alternative site is suitable for the proposed development not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site.

 

The weight to be attached to this matter is considered to be sufficient to set aside the terms of the Development Plan in this regard…”

 

The petitioner’s submissions
[13]      It was common ground that the application was contrary to the development plan.  The application should have been refused unless material considerations indicated otherwise:  Town and Country Planning (Scotland) Act 1997, section 25, section 37(2). 

[14]      Mr Finlay submitted that in ruling out the North Haugh site the respondent had erred in two respects. 

[15]      First, (ground 2 in the petition at article 20),

 

“the decision to rule out the North Haugh site proceeded on an incorrect factual basis separatim failed to take into account the ability to combine North Haugh and Station Road sites”. 

The respondent had not considered the option of North Haugh being used with Station Park.  It had accordingly left out of account a material consideration.  Esto it had regard to that consideration it had proceeded on an incorrect factual basis.  It was factually incorrect to say that North Haugh with Station Park would not constitute a single site.  On any sensible view the option of using North Haugh as the school site with Station Park providing the sports pitches was not a split site option.  North Haugh and Station Park were adjacent and were separated only by the A91.  An underpass or overbridge could link them satisfactorily.  Bell Baxter High School, Cupar was an example of school and playing fields being separated by a road.  The North Haugh option suffered none of the problems of split sites where school buildings were in different geographical locations (e.g. loss of learning time and wasted travelling time for staff and pupils).  In treating the option as a split site the respondent had acted in a way which was perverse, or had left out of account a material and relevant consideration (that it was, on any sensible view, a single site on both sides of a road) (Wordie Property Company Limited v Secretary of State for Scotland 1984 SLT 345, at pages 347-8);  or had proceeded on an erroneous factual foundation (E v Secretary of State for the Home Department [2004] QB 1044, at paragraph 63). 

[16]      Second, if the respondent had been entitled to treat North Haugh/Station Park as a split site it had erred in ruling it out from further consideration on that ground.  It had misconstrued the education authority’s preference for a single site as being an absolute requirement.  Even if it had been right to treat it as a requirement of the education authority, the respondent had erred in law in treating the education authority’s requirement as being determinative of whether the site was a suitable one in the whole circumstances.  As a result of ruling out the site at the outset the respondent had not embarked upon the process of examining any particular disadvantages of the site alongside its clear advantages in planning terms.  It had failed to assess the relative planning merits of Pipeland and the North Haugh/Station Park option.  Reference was made to R (on the application of Langley Park School for Girls Governing Body) v Bromley London Borough Council [2010] 1 P&CR 10, per Sullivan LJ at paragraphs 39-56;  City of Edinburgh Council v Secretary of State for Scotland 1998 SC(HL) 33, per Lord Clyde at pages 43G-45B;  Tesco Stores Ltd v Dundee City Council 2012 SC (UKSC) 278, per Lord Reed at paragraphs 28-29;  R (Trashorfield Limited) v Bristol City Council [2014] EWHC 757 (Admin), per Hickinbottom J at paragraph 13. 

[17]      In considering the legality of the decision it was not correct to treat the decision of the respondent at the meeting of 3 April 2014 as if it had been a decision of an expert tribunal.

[18]      If either of the grounds of challenge was well founded the planning permission should be reduced.  This was not a case where the court could be confident that the planning authority would have reached the same decision if it had directed itself properly:  cf. Tesco Stores Ltd v Dundee City Council, supra, per Lord Reed at paragraph 31.  Contrary to the respondent’s contention that there would be difficulty acquiring the North Haugh site from the University, the University were content to sell (as the affidavit from Mr Scott 6/12 of process and the correspondence at 6/12/2 and 6/12/4 demonstrated). 

 

The respondent’s submissions

[19]      Mr Armstrong submitted that neither of the grounds of challenge was well founded. 

[20]      The petitioner’s criticism of the report was unfounded.  It could not be said that it had materially misled the respondent about material matters or that such matters had been left uncorrected at the meeting at which the decision was taken (Oxton Farms & Another v Selby District Council & Another, Unreported, Court of Appeal, 18 April 1997, per Judge LJ;  R (Trashorfield Limited) v Bristol City Council, supra, per Hickinbottom J at paragraph 13).  In so far as the respondent’s decision had involved matters of opinion in relation to which there had been evidence before the respondent the court should defer to the planning authority as it would to the conclusions of a specialist tribunal (Irving v Minister of Pensions 1945 SC 21, per Lord Justice Clerk Cooper at page 30;  Cartledge v Scottish Ministers (No. 2) 2011 SC 602, per Lord Stewart at paragraphs 43-44).

[21]      It was incorrect to suggest that the respondent had not had regard to the possibility of combining North Haugh and Station Park.  The assessments of alternative sites in the accompanying documents had considered the option of a school being built on North Haugh which used the playing fields at Station Park.  The report and the decision had clearly had that option in mind - hence the references to it being a split site option.  It was equally incorrect to maintain that the respondent’s decision was based on an error of fact.  The respondent was fully entitled to regard North Haugh/Station Park as a split site.  That characterisation was neither perverse nor erroneous.  The two sites were separated by a major A class road, the A91. 

[22]      The contention that the respondent had misdirected itself in law as to the relevance of, and weight to be attached to, the education authority’s requirements for the new school (article 19 of the petition) was also unfounded.  North Haugh did not satisfy two of those requirements.  It could not accommodate a single site school and that had been the primary reason for rejecting it.  However the report had also noted that the site was not large enough to allow for future expansion.  It was also plain from the report, and would have been in the minds of councillors, that there were likely to be difficulties and/or delays in acquiring a site from the University.  It was well established that the weight to be attached to a material consideration was a matter of planning judgement for the planning authority (City of Edinburgh Council v Secretary of State for Scotland, supra, per Lord Clyde at pages 43 44;  Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, per Lord Keith at pages 764G-H, per Lord Hoffman at pages 780F-H;  R (on the application of Cherkley Campaign Limited) v Mole Valley District Council [2013] EWHC 2582 (Admin), per Haddon-Cave J at paragraphs 38 45).  The need for the new school, the suitability of the applicant’s site compared with alternative sites, and the availability of the site for development in early course were material considerations which the planning authority had been entitled to, and did, have regard to in determining that the development plan should be departed from.  It was also well established that there is no prescribed way in which a planning authority must set about its task of assessing the material before it (City of Edinburgh Council v Secretary of State for Scotland, supra, per Lord Clyde at pages 45C-F).

[23]      Even if the planning authority had made either, or both, of the suggested errors this was not a case where reduction should be granted.  It was plain that the education authority wished to have a school on a single site, and that it needed it without delay.  The option of North Haugh with playing fields at Station Park had been assessed by the council and it did not meet its requirements.  It was also clear that discussions with the University about the acquisition of sites suggested that negotiations to acquire the North Haugh site would be likely to be unsuccessful or, at best, protracted.  Councillors were well aware of the North Haugh/Station Park option but did not see it as a suitable or available solution.  There had been a large majority in favour of the development at Pipeland.  There was no real possibility that the respondent’s decision would have been different had the respondent proceeded as the petitioner suggests it should have (Tesco Stores Ltd v Dundee City Council, supra, per Lord Reed at paragraph 31). There was no real possibility that the respondent would have concluded that North Haugh/Station Park is a suitable and available option. 

 

The interested party’s position
[24]      Miss McKinlay adopted Mr Armstrong’s submissions.

 

Decision and reasons
[25]      It is not hard to appreciate why the proposed development has given rise to so much controversy.  It is significantly contrary to the development plan.  Pipeland is in the countryside.  It is in the Green Belt.  It is prime agricultural land.  A development of the type and scale proposed at this location would have significant adverse landscape and visual impacts.  Serious harm in planning terms is anticipated.  On the other hand, there is a pressing need for a new secondary school. 

[26]      Given that the proposed development is not in accordance with the development plan, planning permission may only be granted if material considerations justify departing from the plan (Town and Country Planning (Scotland) Act 1997, section 25, section 37(2);  Tesco Stores Ltd v Dundee City Council, supra, per Lord Reed at paragraph 18).  In the present case the material considerations which are said to justify departure from the development plan are the urgent need for a new secondary school in St Andrews; the fact that the proposed site is available;  and the fact that no other site is suitable and available.  It is the last of these considerations which forms the battleground in this judicial review.

[27]      In R (on the application of Langley Park School for Girls Governing Body) v Bromley London Borough Council, supra, Sullivan LJ observed:

“52…The starting point must be the extent of the harm in planning terms (conflict with policy etc.) that would be caused by the application. If little or no harm would be caused by granting permission there would be no need to consider whether the harm (or the lack of it) might be avoided. The less the harm the more likely it would be (all other things being equal) that the local planning authority would need to be thoroughly persuaded of the merits of avoiding or reducing it by adopting an alternative scheme. At the other end of the spectrum, if a local planning authority considered that a proposed development would do really serious harm it would be entitled to refuse planning permission if it had not been persuaded by the applicant that there was no possibility, whether by adopting an alternative scheme, or otherwise, of avoiding or reducing that harm.

 

53 Where any particular application falls within this spectrum; whether there is a need to consider the possibility of avoiding or reducing the planning harm that would be caused by a particular proposal; and if so, how far evidence in support of that possibility, or the lack of it, should have been worked up in detail by the objectors or the applicant for permission; are all matters of planning judgment for the local planning authority…”

 

[28]      Here the planning officer and the planning authority approached the application acknowledging that the proposed development would cause serious harm in planning terms.  They proceeded - correctly in my view - on the basis that it was necessary for them to be satisfied that a suitable development which was more in keeping with the development plan could not be situated on another site.  The petitioner maintains that it was in carrying out that exercise that they fell into error.  I turn then to the two grounds of challenge.

[29]      I do not accept the contention that the respondent overlooked the possibility of North Haugh being used in conjunction with the playing fields at Station Park.  The assessments of alternative sites in the documents which accompanied the application had considered that option.  Representations from objectors had focussed upon it.  It was one of the most controversial issues.  Councillors are bound to have been well aware of it.  Any other conclusion strikes me as fanciful.  The report and the decision clearly had the option in mind - hence the references to it being a split site option. 

[30]      What then of the submission that the respondent erred in fact in treating the combination of North Haugh/Station Park as being a split site?  I am unable to accept that it was guilty of any such error.  From a geographical standpoint it appears to me that there is little doubt that North Haugh and Station Park comprise a split site.  They are not contiguous.  They are separated by a major A class road, the A91.  At present there is no connection between them (by way of an underpass, an overbridge, or otherwise).  In my opinion the respondent was fully entitled to regard North Haugh/Station Park as a split site.  That characterisation was neither perverse nor erroneous.

[31]      I turn then to the remaining ground of challenge.  The petitioner’s complaint is that both the planning officer and the respondent appear to have regarded the education authority’s requirements as being immutable and as being necessarily determinative of the question whether a site was suitable;  that they simply ruled out the North Haugh/Station Park option as being unsuitable because it was a split site;  and that the planning authority failed to assess for itself the suitability of the option, in light of its particular characteristics and advantages and disadvantages (including any actual disadvantages of this site being split and the advantages in terms of adherence to the development plan of the new school being there rather than at Pipeland).

[32]      I agree with Mr Finlay that the education authority’s criteria were not hard and fast requirements.  The single site criterion was expressed as a preference (viz “if possible”).  The same observation applies to the criterion that the site ought to be large enough to accommodate future changes in the curriculum. The fact that these were preferences does appear to me to be relevant to consideration of the suitability of sites (cf. Tesco Stores Ltd v Dundee City Council, supra, per Lord Reed at paragraphs 28-30).  I also accept that there must be a broad spectrum of split sites.  At one end of the spectrum are dual campus schools with the campuses situated on sites remote from each other, resulting in dispersal of teachers and staff and significant travelling time between campuses for staff and pupils.  The North Haugh/Station Park option is, arguably, at the other end of the spectrum:  all the school buildings, teachers and pupils would be based on a single campus with playing fields on an adjacent site across a public road.  It seems obvious that there are likely to be greater disadvantages with the former scenario (e.g. in terms of dispersal of facilities and management, and inter-campus travelling time for staff and students) than with the latter.

  

[33]      However, on a careful reading of the planning officer’s report I do not think it is correct to say that she ruled out North Haugh/Station Park only on the basis that it was a split site and without giving any consideration (i) to the actual disadvantages of a school which had school buildings at North Haugh and playing fields across the road at Station Park or (ii) to any other factor.

[34]      First, at para. 2.6.2.1 the planning officer observed:

“The provision of sports pitches on the same site as the school building itself is a key outcome of the “single site” expectation. Physical education is part of the curriculum and providing the facilities next to the building thus reducing pupil and staff travel time to the playing pitches is the main impact of this decision. The decision to discount any site not large enough to have the playing pitches on the single site rules out North Haugh …”

 

While where school and playing pitches are adjacent across a public road the degree of disadvantage from the split site is likely to be less than where the two are remote from each other, it does not follow that the disadvantage at North Haugh/Station Park would not be  significant. The councillors (with their local knowledge of the geography of the location) were better placed than the court is to decide that matter.

[35]      Second, while the primary ground for deciding that the site was unsuitable was that it was a split site, a further reason given (para. 2.6.22 of the report) was that North Haugh was  a small site without the space which might be necessary to respond to a developing curriculum in the future.  I attach no significance to the fact that this factor was not mentioned in the summary reasons appended to the grant of permission. The motion which was made, and carried, at the meeting on 3 April 2014 was to approve the application for the reasons set out in the the planning officer’s report of 20 March 2014.

[36]      Neither the planning officer nor the planning authority found that the North Haugh site was unavailable for development as a school. They did not reach that stage. They rejected the site as being unsuitable for the proposed development. There are, of course, indications in relation to the discussion of other options that acquisition of land from the University might not be a straightforward process: but there was no discussion or determination in respect of the availability or otherwise of the North Haugh site. 

[37]      The planning merits of the application are not a matter for this court. This court’s role, in the exercise of the supervisory jurisdiction, is to examine the lawfulness of the respondent’s decision in light of the challenges to it which have been advanced. In my opinion the grant of planning permission was lawful. The planning authority was entitled to approach matters in the way that it did. If the North Haugh/Station Park site was unsuitable then it mattered not a jot that development on it would be more consonant with the development plan than development at Pipeland. The weight which the planning authority attached to the disadvantage of the site being split, and of the site being a small one without scope for future development, were  matters of judgement for it. Its decision that the option was unsuitable was not irrational. Nor am I persuaded that the planning authority left out of account any relevant considerations or had regard to any irrelevant considerations. My conclusions do not depend upon treating the planning authority as having been in a position akin to an expert tribunal:  I prefer to reserve my opinion on the issue whether a planning application granted by a full meeting of a council ought to be treated in that way.

 

 

[38]      If, contrary to my view, I had been persuaded that the decision was unlawful I would have granted decree of reduction. I would not have accepted Mr Armstrong’s submission that there would be no real possibility of the respondent making a different decision. In particular, given the controversy on the issue, it would not have been appropriate for the court to proceed on the basis that the North Haugh site is unlikely to be available on acceptable terms within a reasonable timescale.

 

Disposal

[39]      I shall sustain the fourth and fifth pleas-in-law for the respondent and the second and third pleas-in-law for the interested party, repel the petitioner’s pleas-in-law, and refuse the petition.  I shall reserve meantime all questions of expenses.