Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2016] CSIH 94

XA3/16

Lady Paton

Lord Malcolm

Lord McGhie

OPINION OF THE COURT

delivered by LORD MALCOLM

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

by

TAYLOR WIMPEY UK LIMITED

Appellant

against

THE SCOTTISH MINISTERS

Respondent

Appellant:  Armstrong QC;  Shepherd & Wedderburn LLP

Respondent:  Burnet;  Scottish Government Legal Directorate

21 December 2016

[1]        This is an appeal against a decision of the Scottish Ministers (delegated to a reporter) dated 4 December 2015.  Taylor Wimpey UK Limited (the appellant) applied to the City of Edinburgh Council for planning permission in principle for a residential development with associated transport infrastructure etc over land to the south of West Craigs Cottage, 85 Craigs Road, West Edinburgh.  The application was refused and an appeal was marked to the Scottish Ministers.  The Ministers’ reporter refused the appeal on the basis that the grant of planning permission in principle would be premature and undermine the process for approval of the new local development plan.  That decision is now challenged under and in terms of section 239 of the Town and Country Planning (Scotland) Act 1997 on various grounds which are discussed below. 

The Reporter’s Decision
[2]        The appeal site consists of 11 hectares of uncultivated farmland on the edge of Edinburgh to the west of Maybury Road.  The intention is that it be developed for a maximum of 250 houses.  The reporter explained that the key issues in the appeal included “the shortage of effective housing land and the maintenance of a five year housing land supply, infrastructure requirements, the provisions of Scottish Planning Policy and of the proposed development plan, and whether the proposed development is premature pending the results of the examination of the proposed local development plan”.  The site is in the green belt.  Given the strategic policy for increased house building, the reporter noted that the West Edinburgh area, within which the appeal site is located, is expected to deliver land for 2,700 units.  There is no dispute as to the substantial shortfall in the effective housing land supply.  It is recognised that the green belt around Edinburgh may need to be modified.  Local plans require to identify allocations which minimise the loss of land from the green belt, whilst balancing the need to achieve sustainability objectives.  The proposed local development plan identifies the appeal site as part of a wider potential allocated site for residential development (site HSG 19:  Maybury).  There are several such proposals for sites in the green belt, almost all of which are the subject of representations being considered through the local plan examination. 

[3]        It seemed to the reporter that there were “currently a number of uncertainties associated with infrastructure provision for the appeal site.”  The particular concerns related to transport and education issues.  She was uncertain as to whether the Council’s requirement for a planning obligation in respect of a financial contribution towards infrastructure provision could be guaranteed.  At paragraph 18 she said: 

            “Had I been inclined to grant planning permission in principle, I would have required more information on this issue.  However, I will take at face value the assurance given by the appellant and assume that it would be possible for these matters to be resolved between the Council and the appellant.  On this basis, I conclude, as required by criterion(c) of SESplan policy 7, that additional infrastructure required as a result of the development is capable of being funded by the developer.”

The reporter was satisfied that any development would be in keeping with the character of the settlement and local area, and that it would not undermine green belt objectives, all in terms of criteria (a) and (b) of the said policy. 

[4]        The reporter noted that both of the relevant local plans protected the green belt from inappropriate development.  However “because of the support from SESplan”, which is a more up to date component of the development plan, she concluded that overall “the appeal proposal complies with the development plan” (paragraph 20). 

[5]        The reporter then considered Scottish Planning Policy, which she considered to be an important material consideration.  Where, as here, a shortfall in the five year effective housing land supply emerges, development plan policies for the supply of housing land will not be considered up to date.  The Edinburgh City Local Plan, within which most of the appeal site lies, is more than five years old, and there is a clear shortfall in the effective housing land supply.  “The presumption in favour of development that contributes to sustainable development is, therefore, a significant material consideration and I must give less weight to the local plan policies for the supply of housing land.”  In paragraph 23 the reporter stated: 

            “However, in relation to prematurity, Scottish Plan Policy states that where a plan is under review it may be appropriate to consider whether granting planning permission would prejudice the emerging plan.  Such circumstances are only likely to apply where the development proposed is so substantial or its cumulative effect would be so significant that to grant permission would undermine the plan-making process by pre-determining decisions about the scale, location or phasing of new developments that are central to the emerging plan.  Prematurity will be more relevant the closer the plan is to adoption or approval and I deal with this issue below.”

[6]        In the grounds of appeal submitted to the reporter on behalf of the appellant the issue of prematurity was addressed at paragraph 4.56.  “It is clear… that the need to consider prematurity is not a universal requirement.  However, it is accepted that it is appropriate to consider it within the context of the proposed development.”  The issue was addressed by the appellant at paragraphs 5.30/36.  It was noted that the reporter for the recent appeal on the nearby proposed housing site at Cammo had considered the question of prematurity.  That reporter found the significance of the shortfall in the housing land supply to be compelling, and that any harm to the emerging local development plan (LDP) would be outweighed by the housing supply benefits.  However the Scottish Ministers did not agree.  “In the circumstances of this case there is sufficient prejudice to the proposed local development plan that consent should be refused at this time.”  The Scottish Ministers considered that the wider transport infrastructure implications of the proposed local plan, including cumulative effects of this and other proposed allocations on transport infrastructure in the area, have yet to be considered through the new plan examination process.  “Given the close proximity to the start of the examination, Scottish Ministers do not accept the reporter’s overall conclusion… that the harm to the emerging LDP is outweighed by the advantages of the scheme.” 

[7]        The grounds of appeal presented to the reporter stated that the Scottish Ministers’ “decision to refuse the Cammo appeal, means that the Council’s position on the HSG 19 site, of which the appeal site forms part, is now very clear.”  “As explained in Clause 4(a) and 4(b) of the coalition motion, the effect of the Cammo refusal is that the Council now effectively opposes the allocation of the HSG 20 Cammo site as well as the housing numbers on two sites in South Queensferry.  The Council’s settled view is that it unconditionally supports the allocation of the HSG 19 Maybury site.”  Attention was drawn to certain differences between the proposed development at Cammo, including the lesser scale, namely 225-250 dwellings, as opposed to 670 at Cammo.  In short, the reporter was urged to grant permission notwithstanding the overlap with issues before the new local plan reporters. 

[8]        The nub of the reporter’s reasoning is to be found in paragraphs 24-29 of the decision letter.  She observed that the proposed Edinburgh Local Development Plan is another important material consideration.  It identifies the appeal site for housing development as part of the Maybury site.  This allocation is the settled view of the Council and does “lend some support to the proposed development”.  The proposed local plan was submitted for examination in May 2015. 

“A number of requests for further information have been issued by the reporters undertaking the examination.  These include questions about the housing land supply and infrastructure delivery, including transport and education matters.  Hearing sessions to discuss these issues were held on 18 and 19 November 2015.  The agendas for the hearing sessions were issued to participating parties and posted on the Planning and Environmental Appeals Division website.  It is clear that there was discussion about transport and education infrastructure provision for sites allocated in the plan and how it would work in practice in West Edinburgh at the hearing and that this will be covered by the reporters in their report on the local development plan in due course.”  (paragraph 25)

The reporter then considered the Scottish Ministers’ decision that the application in respect of the Cammo site was premature given the close proximity to the start of the examination of the proposed local plan.  Six months had passed since that decision and the examination into representations as to the proposed local development plan was well advanced, with a target date of 27 February 2016 for submission of the report.  The issue of infrastructure provision, including for sites in west Edinburgh, was discussed at the recent sessions. 

“I am also aware that, even though site HSG 19 is identified in the proposed plan, the Council planning committee has subsequently stated that it sees merit in the representations seeking a reduction in the capacity of this site and also that there is merit in the representation promoting another site (East of Millburn Tower) as a housing allocation.  Consequently, in their report on the proposed local development plan the reporters might not confirm the allocation of site HSG 19.  I am also mindful of the interconnected nature of the sites in this part of Edinburgh and, in particular, of their infrastructure requirements, as I have described above.  In these circumstances, I consider that granting planning permission in principle for a small part of one of the sites which may be allocated in the plan would indeed be premature.  As these issues are an important part of the discussions which have taken place at the local development plan hearing sessions and will be covered in the report of the examination, I consider that pre-judging the issue and granting planning in principle for the proposed development at the appeal site at this stage would undermine the plan-making process” (paragraphs 28/29). 

[9]        The reporter’s ultimate conclusion was as follows: 

            “I conclude, for the reasons set out above that, although the proposed development accords overall with the relevant provisions of the development plan and is supported by some of the provisions of Scottish Planning Policy and the proposed local development plan, these factors in favour of the development are outweighed by those against;  in particular that granting planning permission in principle would be premature and undermine the plan-making process.  I have identified no other material considerations which would justify granting planning permission in principle.  I have considered all the other matters raised, but there are none which would lead me to alter my conclusions.”

It can be seen that the sole reason for refusal of the appeal mirrored that of the Scottish Ministers in respect of the appeal concerning the proposed housing development at the neighbouring Cammo site. 

The Grounds of Appeal
[10]      There are four grounds of appeal put forward in support of the legal challenge to the above decision. 

(1)        By referring to the hearings heard in November 2015 (see paragraph 25) the reporter relied upon new information without giving the appellant an opportunity to comment, contrary to Regulation 13 of the Town and Country Planning (Appeals) (Scotland) Regulations 2013, and also to the principles of natural justice. 

(2)        The reporter was in error in her comments as to the Council’s views on a rival site (East of Millburn Tower). 

(3)        The reporter erred in not reaching a view as to whether the proposal for the site was or was not sustainable development. 

(4)        The reporter did not set out a proper, adequate, and reasonable basis for her decision on prematurity.  In any event, her decision in that respect is unreasonable, perverse, and irrational. 

Various questions in law are set out to reflect the grounds of appeal. 

Decision on Ground of Appeal 1
[11]      A decision of this kind can be vitiated if a reporter causes unfairness by taking into account new evidence without giving the parties an opportunity to comment upon it.  Whether there is unfairness will always depend upon the full facts and circumstances of the case.  Here the question of prematurity was a live issue in the appeal from the outset, and both parties made representations to the reporter about it.  The appellant and the Council were participants in the emerging plan process and were fully aware of the issues and the timetable.  In any event the reporter did not have regard to “new evidence” or new information of the kind which requires an opportunity for comment.  There was no unfairness or prejudice to the appellant in the reporter recognising what was obvious to all, namely that the issues of housing land allocation in the area and associated infrastructure, including transport and education matters, were being considered in the by then well advanced new plan examination process. 

[12]      In support of this ground of appeal the appellant made reference to Bancon Developments Ltd v Scottish Ministers [2011] CSOH 137.  In that case the Lord Ordinary noted that the appellant complained that the reporter identified a new issue and decided the matter on the basis of it without the parties having any opportunity to make representations.  The determining issue for that reporter concerned the general adequacy or otherwise of the proposed pedestrian access arrangements for a residential development and access road at a site in Banchory.  “The question for the court then becomes:  could the appellants have reasonably foreseen that this was an approach which would be adopted by the reporter?  Another way to put this would be to ask this:  was this question of the general adequacy of the pedestrian access arrangements one which was clearly an issue from the outset of the appeal?”  (paragraph 119).  The Lord Ordinary answered both questions in the negative, and as a result the appeal was successful.  If similar questions were asked in the present case, the answers would be in the affirmative. 

[13]      In Bancon Developments the Lord Ordinary upheld the submission that the reporter took account of new evidence in breach of the relevant regulation.  At the site inspection the reporter examined various access routes, including two other possible links to the east of the subjects.  Neither the planning authority nor the appellant had raised any issue in relation to the possible links to the east.  The dispute had been confined solely to the lack of formality in relation to arrangements regarding the proposed north-eastern link.  “Given the foregoing it seems to me that by having regard to these two other possible links, thereafter examining them at the time of his site visit and finally reaching the conclusion that the north‑eastern of these three links, when compared to these other two possible links, was the least beneficial, the reporter must have had regard to new evidence” (paragraph 163).  The contrast between the circumstances of that case and the present is stark.  Here the reporter has done no more than draw attention to the ongoing procedures in the emerging plan process, which had an obvious overlap with the issues before him.  None of that amounts to “new evidence” within the meaning of Regulation 13 of the 2013 Regulations. 

[14]      At the hearing on this appeal counsel referred to certain documents with the purpose of demonstrating that the present proposal does not raise any significant infrastructure concerns, for example as to junction design and traffic flows.  However the court cannot form a view on the planning merits of the proposal, nor as to the soundness of the judgment of the reporter when she held that there was the potential for undermining the new plan reporter’s deliberations.  That is pre-eminently a matter for her. 

[15]      The discussion in Bancon Developments notes the general law that, in respect of a complaint of the present nature, each case depends upon its particular facts and circumstances.  The outcome depends upon whether material unfairness has been caused, sometimes summarised in the phrase, did the complaining party receive “a fair crack of the whip” – see Fairmount Investments Ltd v Secretary of State for the Environment [1976] 1 WLR 1255, Lord Russell of Killowen at 1265/6.  That case dealt with an inspector’s decision on an objection to a compulsory purchase order.  After an inquiry, he resolved the issue by reference to a factor which was described as a “bolt from the blue”.  There had been no mention of it at the hearing.  “Essential principles of fairness” required that the parties be told about it before a decision was made.  In the present case, there was no prejudice to any party, and in our view fairness did not require the reporter to give the parties an opportunity to comment on the matters set out at paragraph 25 of the decision.  This ground of appeal is rejected. 

Decision on Ground of Appeal 2
[16]      It was submitted that the reporter had no proper basis for stating that the planning committee had expressed the view that it saw merit in the representations seeking a reduction in the capacity of site HSG 19 and in the representations promoting the East of Millburn Tower site as a housing allocation.  At first sight there could be a question over the materiality of this issue, given that the Council refused the current planning application in respect of the appeal site, thus its position as to the proposed allocation of the larger HSG 19 site might be regarded as of lesser importance.  Be that as it may, the reporter’s thinking in this part of her decision was not wholly dependent upon the views currently held by the Council;  views which would form only a part of the overall picture before the new local plan reporters, who would not be bound to accept the Council’s position.  The essence of the reporter’s decision was that she did not wish to pre-empt their consideration of housing allocations and related infrastructure in West Edinburgh. 

[17]      In any event there is no substance to this ground of appeal.  The reporter has simply proceeded upon the terms of the planning committee’s report of 14 May 2015 entitled “Item 5.1 – Local Development Plan:  Submission to Examination”.  The committee noted that the examination stage provided an opportunity to change the new plan.  It took the view that there are a number of proposals within it where changes could occur as a result of representations.  Accordingly various updates were put forward to be incorporated into the Council’s responses, including (paragraph 3d) “that the Council sees merit in the representations seeking a reduction in the capacities of housing proposals HSG 19 Maybury…”  and (paragraph 4b) if the Cammo appeal is dismissed and permission refused “the Council sees some merit in… representations which object to HSG 20 Cammo, and that the reduction in numbers could be accounted for by the remaining capacity provided by the allocation of [East of Millburn Tower]”. 

[18]      Even if the above is left aside, the passage complained of was simply part of the narrative leading to the conclusion that “the reporters might not confirm the allocation of site HSG 19”, which, in all the circumstances, was no more than a statement of the obvious.  Failing that, it was a matter of planning judgement which was well within her jurisdiction.  The complaint that the reporter’s decision was based upon a material error is rejected. 

Decision on Ground of Appeal 3
[19]      In this ground of appeal reference is made to paragraph 22 of the decision letter where the reporter identified that the presumption in favour of development which contributes to sustainable development is a significant material consideration.  The criticism is that thereafter the reporter did not set out any conclusion on whether the proposal is or is not sustainable development.  “The reporter does not explain how she deals with this important material consideration and the policy advice related to the presumption in favour of development that contributes to sustainable development which is contained in paragraphs 28, 29 and 33 of Scottish Planning Policy.”  It is submitted that accordingly the reporter failed to give proper, adequate and intelligible reasons for her decision. 

[20]      There is no merit in this criticism.  The appeal was refused solely on the grounds of prematurity in relation to the emerging local plan.  A specific examination of the proposal’s contribution to sustainable development was not necessary, though it is reasonable to understand the reporter as having assumed that it would make a contribution in this regard. 

Decision on Ground of Appeal 4
[21]      The fourth ground of appeal notes that Scottish Planning Policy provides that a grant of planning permission is only likely to prejudice an emerging plan if the proposed development is so substantial or its cumulative effect so significant that permission would undermine the plan‑making process by pre-determining decisions about the scale, location or phasing of new developments which are central to the emerging plan.  It is submitted that a decision in favour of prematurity must identify one or more of these requirements.  It is said that the reporter identified the application as being in accordance with the development plan and meeting the requirements of SESplan policy 7 and in particular criterion(c).  It is “contended that the site is a small part of a larger site allocated in the proposed local plan”.  The submission is that the reporter failed to explain how a grant of permission would undermine the plan-making process in the terms required by policy.  In these circumstances she failed to set out a proper, adequate and reasonable basis for concluding that the proposal is premature.  She failed to identify the issues raised by the appellant and the Council in written submissions to her.  Separately it is said that her conclusions on prematurity are unreasonable, perverse and irrational. 

[22]      Whether the grant of planning permission in respect of any particular application carries the potential to undermine an emerging local plan process is ultimately a matter of planning judgment, something which is within the sole province of the decision-maker – Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.  The reporter sets out her reasoning in paragraphs 24 – 29 of her decision, which have been summarised earlier.  The proposal relates to a site extending to 11 hectares and involving up to 250 houses.  It raises infrastructure questions, not only in relation to road transport flows and configurations in an already busy part of West Edinburgh, but also education facilities.  The reporter was mindful of the “interconnected nature of the sites in this part of Edinburgh and, in particular, of their infrastructure requirements.”  She was of the view that the new local plan reporters might not confirm the allocation of site HSG 19.  She noted that a proposed development, albeit a larger development, in respect of an adjacent site had been refused by the Scottish Ministers on the grounds of prematurity.  She was aware that the local plan process was well advanced, and that by the date of her decision sessions had been held discussing matters directly related to housing allocations in this part of Edinburgh, along with associated transport and education infrastructure provision.  Earlier in her decision she commented that there were currently “a number of uncertainties associated with infrastructure provision for the appeal site”.  She knew of the detailed objections from West Craigs Ltd, the prospective developers of much of the rest of the Maybury site, in connection with the proposed access to the appeal site and its implications for accessibility by bus services.  The transport statement submitted by the appellant assumed that the development on the Cammo site would not be built, however it remained an allocated housing site in the proposed local plan.  That site’s allocation might well be confirmed by the reporters undertaking the examination.  It is clear that on a proper reading of her decision letter, the reporter did not conclude that the terms of policy 7c of SESplan were met, but rather that, for present purposes, she was prepared to take the assurances at face value.  She stated that had she been inclined to grant planning permission in principle, she would have required more information on these matters. 

[23]      Having regard to the above factors, it is difficult to conclude that the reporter was not entitled to reach the view that the proposal was premature in terms of the relevant policy.  Plainly she was fully aware of the terms of the policy in relation to prematurity.  She quoted it at paragraph 23.  It can safely be assumed that she applied it when reaching the conclusion that the grant of planning permission in principle for the proposed development at the appeal site would undermine the plan‑making process.  That is a classic matter of planning judgement.  Granting permission at this site could have implications relevant to housing allocations on other land and to objections made in response to the emerging plan. 

[24]      There is no basis for suggesting that she did not have regard to the representations made to her on this issue, nor for categorising her reasoning as perverse or irrational.  The reader is left in no doubt as to why she reached her decision.  The reasons given were proper, intelligible and adequate.  It follows that this ground of appeal is rejected. 

[25]      With regard to the questions of law set for the opinion of the court, we conclude: 

1.        The reporter did not act unfairly and contrary to the principles of natural justice and did not act contrary to Regulation 13. 

2.        The reporter did not rely upon a material error.

3.        The reporter did not act outwith her powers under the 1997 Act.

4.        The reporter gave proper, adequate and intelligible reasons for her decision.

5.        The reporter did not act unreasonably, perversely and irrationally in coming to her conclusion.

Accordingly the appeal is refused.