Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 145

 

P125/15

OPINION OF LADY PATON

in Petition of

ANGUS ESTATES (CARNOUSTIE) LLP & Others

Petitioners

against

ANGUS COUNCIL

Respondent

Pursuer:  Martin QC, Burnet;  Davidson Chalmers

Defender:  Findlay, Garrity;  Corporate Services, Glasgow City Council

13 October 2016

Challenge to grants of planning permission in principle dated 18 December 2014
[1]        The petitioners own land at Carlogie, Carnoustie.  They are affected by certain planning decisions taken on 18 December 2014 by the respondent (“the Council”).  Initially the petitioners sought reduction of three such decisions in which planning permission in principle was granted for 198 houses and 24 flats at Strathmartine, 350-400 houses at Monifieth, and 250 houses and an industrial estate at Pitskelly.  For present purposes, parties agreed to focus on Pitskelly, on a “without prejudice” basis.    The petition was amended accordingly.  The productions were agreed, and subject to one matter (see paragraphs [12] and [45] below), the court was requested to make a decision on the basis of the pleadings, the productions, and the submissions, without the necessity of hearing oral evidence from witnesses.

 

Time-line
[2]        References in square brackets are to the productions, the petitioners’ productions being [6/1] et seq, and the Council’s productions being [7/1] et seq.

2009:  The Angus Local Development Plan (ALDP) was approved.  Carlogie was identified as the favoured site for further residential development, in preference to Pitskelly.

June 2012:  The TAYplan Strategic Development Plan 2012-2032 was published.

November 2012:  The Main Issues Report was published by the Council, identifying Pitskelly as the preferred option for business and residential development in the proposed ALDP, with Carlogie as the first alternative (Answer 6).

13 May 2014:  The petitioners sought planning permission for a business park at Carlogie.  A report by the head of planning dated 13 May 2014 [6/13] supported the application for employment land there.  However at the Council meeting on 13 May 2014, Councillor Bowles moved that:

“ ... the application be deferred until such time as the alternative application for the proposed development at Upper Victoria [i.e. the Pitskelly site:  cf 6/5] was submitted, to allow members to make an informed decision regarding each proposal [6/12]”.

 

The application was deferred.  The petitioners then appealed on the basis that their application was not timeously dealt with.

June 2014:  Scottish Planning Policy (SPP) was published.  Paragraph 34 thereof provides:

“34.  Where a plan is under review, it may be appropriate in some circumstances 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 predetermining decisions about the scale, location or phasing of new developments that are central to the emerging plan.  Prematurity will be more relevant as a consideration the closer the plan is to adoption or approval.”

 

19 August 2014:  A reporter allowed the petitioners’ appeal and granted permission in principle for the Carlogie business park application [6/11], commenting:

“ 5. … the most recent review of the Angus Local Plan [a public local inquiry] considered land north of Pitskelly Farm … and concluded that the Carlogie Road site was preferable, and should be allocated for employment use …

9. … the absence of development on this site over the five years since the adoption of the Angus Local Plan Review does not in itself demonstrate that the site is not viable.  The last five years have seen particularly unusual economic conditions, during which many sites that one would expect to have seen developed in normal circumstances have stalled.  The appellants’ [petitioners’] evidence is that they have a new development partner, and that jointly they are willing and able to progress the proposal even if financial support from the Council is not forthcoming.  A detailed financial appraisal has not been submitted … Equally no compelling or detailed evidence has been submitted to show that the scheme is not financially viable … I therefore conclude that any uncertainty over the deliverability of the site does not constitute a strong enough material consideration to overturn the clear development plan position …”

 

11 December 2014: A meeting of the Council took place, inter alia to consider the proposed draft ALDP.  It was intended that the draft be approved and that 9 weeks be allowed for consultation.  The draft included an allocated housing site – “original site C1” – at Carlogie, close to the Carlogie business park land.  At the meeting Councillor Bowles moved a typed amendment [6/9] which had the effect of deleting the original site C1 and substituting land at Pitskelly (for both housing and employment: sites C1 and C7).   As recorded in the minute of the meeting [7/11] the amendment was passed without the need for a vote.  The Council authorised the head of planning to make changes to the proposed ALDP and supporting documents.  Copies of the pre-amendment and post-amendment plans ([6/7] and [6/24]) show the deletion of the housing land at Carlogie (original site C1), and the substitution of the Pitskelly housing and employment sites C1 and C7.

18 December 2014:  Seven days later, a special meeting of the Council took place in the David Lloyd Centre, Monifieth.  Four planning applications were to be considered – Strathmartine, Monifieth, Ashludie, and Pitskelly, in that order.  A context report and individual reports [6/1 to 6/5] prepared by the head of planning were available for the meeting.  As recorded in the minute of the meeting [7/13] the Council made grants in principle in respect of the Strathmartine application and the Monifieth application, refused the Ashludie application, and finally made a grant in principle in respect of the Pitskelly application, in relation to which it was noted that:

“COUNCILLOR BOWLES, SECONDED BY COUNCILLOR BOYD, MOVED AS AN AMENDMENT, THAT THE APPLICATION BE APPROVED AS THE PROPOSED DEVELOPMENT WOULD CONTRIBUTE TOWARDS ADDRESSING AN IDENTIFIABLE SHORTFALL IN THE FIVE YEAR EFFECTIVE HOUSING LAND SUPPLY IN THE SOUTH ANGUS HOUSING MARKET AREA AND WOULD ASSIST IN THE DELIVERY OF EMPLOYMENT LAND IN CARNOUSTIE IN ADDITION TO THAT CURRENTLY ALLOCATED.”

 

8 February 2015:  The petitioners brought the current petition for judicial review of the Council’s decisions of 18 December 2014.  The Council has undertaken to give the petitioners three weeks notice before taking any further steps in relation to Pitskelly.

October 2015:  The petitioners applied for planning permission for a housing development at Carlogie original site C1, which is situated near the land intended for Carlogie business park.

 

Relevant statutory provisions
[3]        The Town and Country Planning (Scotland) Act 1979 provides inter alia:

“Status of development plan

25. – (1) Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise –

(a) to be made in accordance with that plan …

 

Determination of applications:  general considerations

37. – (1) Where an application is made to a planning authority for planning permission –

(a) subject to sections 27B(2) and 59(1)(b), they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations …”

 

Excerpts from the planning report relating to Pitskelly

[4]        The report by the head of planning dated 18 December 2014 relating to Pitskelly [6/5] stated inter alia:

“1.  RECOMMENDATION

It is recommended that the application be refused for the reasons given in Section 10 of this report …

8.  PLANNING CONSIDERATIONS

8.1 Sections 25 and 37(2) of the [1997 Act] require that planning decisions be made in accordance with the development plan unless material considerations indicate otherwise.

8.2 In this case the development plan comprises:-

• TAYplan (Approved 2012)
• Angus Local Plan Review (Adopted 2009) …

8.8 … there is sufficient employment land allocated to meet current development plan requirements.  On this basis a proposal that provides for in the region of 10 hectares of employment land outwith a development boundary is contrary to development land policy …

8.29 … there is unlikely to be sufficient need to justify two large employment sites … the site at Carlogie has been granted planning permission on appeal by the Scottish Ministers.  In allowing that appeal the Reporter noted that Angus Council had previously accepted that a site at Carlogie was preferable to a site at Pitskelly.  He also determined that there was no compelling evidence to demonstrate that the Carlogie scheme was undeliverable …

8.31     Finally, in terms of addressing the shortfall in the 5-year effective housing land supply in the South Angus HMA [housing market area], it is relevant to note that there is an alternative site on the edge of Monifieth that has capacity to address that shortfall.  That site is on the edge of the settlement, provides good accessibility and does not give rise to significant landscape or visual impacts.  As it is reasonably well contained by existing landscape features, it would not pre-determine decisions regarding the future long-term growth of the settlement.  That site is considered more suitable to address the current shortfall in effective housing land supply and is generally compatible with development plan policy …

Conclusion … 8.35     SPP confirms that, in circumstances where a plan is under review, it can be appropriate to refuse planning permission where the proposed development is so substantial, or its cumulative impact would be so significant, that to grant permission would undermine the plan-making process by predetermining decisions about the scale, location or phasing of new development that are central to the emerging plan …

10.       Conclusion

It is recommended that the application be refused for the following reasons:

1. Reason:That large-scale housing and employment land development on a site outwith a development boundary is contrary to Policy S1 of the Angus Local Plan Review as it is not of a nature and scale appropriate to a countryside location and is contrary to Policies SC6 and SC17 of that Local Plan.

    

2. Reason:That the proposal would provide for large-scale employment development outwith a principal settlement as defined by TAYplanA further site is not required in order to meet the requirements Policy 3 of TAYplan as there is an alternative site allocated in the Angus Local Plan Review which has planning permission in principle for employment land uses at Carlogie, Carnoustie.

    

3. Reason:That the proposal would provide for large-scale housing development outwith a principal settlement as defined by TAYplan and there is an alternative site to provide for an effective 5-year housing land supply in the South Angus Housing Market Area that is sequentially preferable in terms of Policy 1 of TAYplan, that is better located in relation to existing community infrastructure in terms of Policy 2 of TAYplan and does not give rise to landscape and visual impacts of the same significance as would occur with development of this site.

    

4. Reason:That the application is contrary to Policy 5 of TAYplan as the residential development is proposed outwith the Dundee Core Area, the scale of development is not currently required in order to provide a minimum of 5-years effective housing land supply and development of the site could prejudice the delivery of a Strategic Development Area.

    

5. Reason:That the proposed development would result in the irreversible use of prime agricultural land.As the site is not allocated and the development is not required to secure the implementation of the Local Plan Strategy and the advantages of development do not outweigh the loss of productive land, the application is contrary to Policy 3 in TAYplan and Policy ER30 in the Angus Local Plan Review.

    

6. Reason:Approval of this application would prejudice the emerging Angus Local Development Plan as the proposed development is substantial and its cumulative effect is considered to be significant.It would predetermine decisions about the scale, location or phasing of new development that are central to the emerging development plan.”

 

[5]        The reports relating to Strathmartine and Ashludie contained passages similar or identical to those noted above, in particular referring to an “alternative site” (namely Monifieth) which could address the 5-year effective housing land supply shortfall.

 

Submissions for the petitioners

[6]        What follows is an abbreviated and paraphrased note of the submissions made by senior and junior counsel for the petitioners .

[7]        Breach of statutory duty: sections 25 and 37 of the 1997 Act:  Neither the reports, nor the existing LDP, supported the Pitskelly application.  The Carlogie and Pitskelly sites had been compared, and the former preferred for various reasons (including the fact that the site was on the edge of a settlement rather than some distance from it).  The relevant report recommended refusal of the Pitskelly application on the basis of carefully considered reasons.  There were no “material considerations” justifying departure from the LDP.  The solution recommended for the 5-year housing land shortfall was the site at Monifieth.  Once the Monifieth application had been granted, no significant shortfall remained to be addressed.  Permission had already been granted for employment land at Carlogie.  By making a decision contrary to the LDP, the Council failed to comply with its statutory duty in terms of sections 25 and 37.

[8]        Decision irrational, unreasonable, ultra vires:  (i) The Council had failed to comply with SPP paragraph 34.  A 9-week public consultation on the emerging LDP was about to begin in February 2015.  There was no urgency about the four planning applications, and even if an applicant appealed on the basis of the lack of a timeous decision, the justification for any delay was the emerging LDP process.  By making the Pitskelly decision on 18 December 2014, the Council was pre-determining issues of scale, location, and phasing, contrary to SPP paragraph 34.  The proper procedure of public consultation was frustrated.  The Council had acted unreasonably or ultra vires.  (ii) The housing land supply shortfall to be addressed was 285.  That shortfall was resolved by the Monifieth grant.  If phasing or “build rate” had any relevance, that had to be properly clarified and explained to the councillors at the meeting on 18 December 2014. In the circumstances it was irrational and unreasonable to grant applications of up to about 872 units, an excessive response to a shortfall of 285, and pre-determining the emerging LDP.  (iii) One of the four applications related to Ashludie.  That application had been refused, in accordance with five reasons for refusal in the relevant report by the head of planning.  Those five reasons were equally applicable to Pitskelly and Strathmartine.  It was therefore inconsistent to grant the Pitskelly application (Hallam Land Management Ltd v Scottish Ministers [2014] CSIH 110A).

[9]        Furthermore, the Council appeared to have left out of account (i) SPP paragraph 34;  (ii) the head of planning’s recommendation to refuse the Pitskelly application, for the reasons set out in the report dated 18 December 2014 [6/5];  (iii) the fact that the Monifieth grant answered the housing land shortfall;  (iv) the fact that employment land permission had been granted at Carlogie and there was no need for two business parks at Carnoustie (report [6/5] paragraph 8.29).  As for irrelevant factors apparently taken into account, the figure of 730 or 750 (mentioned at the meeting by Councillor Bowles) related to the housing land requirement in the emerging ALDP for the period 2016-2026, and not to the 5-year housing land supply shortfall.  Accordingly that figure was irrelevant and should have been left out of account.  The Council had therefore acted unreasonably and irrationally.

[10]      A1P1:  The Pitskelly decision resulted in loss of value of the petitioners’ land at Carlogie.  The petitioners might not be able to implement the Carlogie business park planning permission due to over-supply of employment land permissions in the area.  Also the petitioners’ recent housing land application for original site C1 might be prejudiced.  The Pitskelly grant therefore infringed the petitioners’ convention rights in terms of Article 1 of Protocol 1 of the European Convention on Human Rights (“A1P1”).  However the petitioners were content that their plea-in-law 6 relating to A1P1 simply be reserved meantime.

[11]      Lack of reasons:  The Pitskelly decision had not been supported by proper, adequate and intelligible reasons (Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345).  Only two reasons were given, as set out in Councillor Bowles’ amendment:  (i) to contribute towards addressing an identifiable shortfall in the 5-year effective housing land supply;  and (ii) to assist in the delivery of additional employment land.  Those reasons were inadequate and unintelligible.  There was no mention of phasing or deliverability;  the emerging LDP;  SPP;  and the proper approach to housing land supply.  Ex post facto reasons and justifications could not assist.

[12]      Alleged questionable conduct by a councillor:  Senior counsel advised the court that the petitioners had evidence that Councillor Bowles had a private discussion with the Pitskelly developer at a critical point on the day of the meeting on 18 December 2014, when  decisions were about to be made about applications and developers.  Reference was made to an affidavit dated 1 July 2015 [13].  It was accepted that if the matter was considered by the court to be of significance, evidence would require to be led.        

[13]      Conclusion:  The court was invited to grant the petition as amended;  to reduce the Council’s decision dated 18 December 2014 granting the application for planning permission in principle for development at Pitskelly, Carnoustie (Application No: 14/00573/PPPM) in terms of paragraph 4(1) of the petition;  to sustain the petitioners’ pleas-in-law 1 to 5;  and to reserve the petitioners’ plea-in-law 6.  Alternatively a second hearing should be fixed to resolve disputed matters of fact:  but the petitioners’ primary position was that the court could, and should, on the basis of the pleadings and the documents, find in the petitioners’ favour.

 

Submissions for the Council
[14]      Again, what follows is an abbreviated and paraphrased note of the submissions made by senior and junior counsel for the Council.

[15]      No breach of sections 25 and 37:  There were clear and obvious material considerations taken into account at the meeting on 18 December 2014 entitling the Council to grant the Pitskelly application, including the SPP;  the strong need for an effective 5-year housing land supply;  the proposed local development plan, which included a requirement for 780 houses and employment land;  and the considerations contained in the context report and the individual reports. In the result, the Council made its decision on a well-informed basis, taking into account the plans, policies and the factual background. 

[16]      Decision not irrational, unreasonable or ultra vires:  The planning system continued to function notwithstanding discussions about the adoption of a proposed LDP.  Any issue of prematurity was a matter for the decision-maker.  Paragraph 34 of SPP recognised that there might be tension between the proposed LDP and the ongoing functioning of the planning system, and there was such a tension in the present case:  but there was nothing unreasonable or irrational about the determination of the Pitskelly application.  When assessing “effective” housing land supply, the Council had to take into account the fact that the headline figure in the planning consent did not necessarily mean that the Pitskelly, Monifieth, and Strathmartine projects would actually deliver 250, 350, and 198 dwellings respectively in the five year period 2014-19.  Actual production would be phased over the years, during which it was always possible that the shortfall might increase. Estimating the phasing of actual delivery was more an art than a science, and was an exercise of planning judgment.  In those circumstances, the decision reached by the Council could not be categorised as ultra vires, irrational, or not complying with statute.  Provided the Council took into account all material considerations (which it did) it was irrelevant that it reached a decision different from that recommended by the head of planning.  The Council was entitled to do so.  All four applications were considered at the same meeting, with the same reporting structure, by the same group of councillors, with an overarching context report gathering together all the issues and considerations.  The Council then exercised planning judgment and made such decisions as it thought fit.  Nothing in Hallam Land Management Ltd v Scottish Ministers detracted from the Council’s power to exercise its planning judgment as it had.

[17]      The petitioners had identified two sources of information: the reports and the discussions.  However there were further sources.  For example, local knowledge of the history of the site;  information obtained from the  meeting on 11 December 2014 concerning housing land at Pitskelly [6/9];  the councillors’ knowledge of how housing land supply works, including the issue of phasing.  When assessing employment land supply, the Council was entitled to consider the issue of “delivery”.  As reflected in the minute of the meeting on 18 December 2014, the Council took account of the reporter’s grant of the appeal on 19 August 2014, giving permission in respect of Carlogie business park (C6).  But the Council also took into account – as it was entitled to do – the apparent delay in delivery of Carlogie business park, and the need for effective employment land.  It was also entitled to take the view that there should in any event be an additional business park at Carnoustie.

[18]      No breach of A1P1:  There had been no breach of A1P1.  There had been no failure to adhere to the established planning system.  The Pitskelly application had been determined in accordance with planning legislation and planning policy (SPP).  Thus there was justification for any interference with the petitioners’ property rights.  In any event, the existing planning consent for Carlogie employment development land (site C6, the proposed business park) was unaffected;  the petitioners accordingly had that consent, and could proceed without housing land attached.  It was only subsequently, in October 2015, that the petitioners had applied for planning permission for a housing development at Carlogie site C1.

[19]      The reasons were adequate and intelligible:  The meeting on 18 December 2014 dealt with four applications with accompanying representations, discussions, and voting.  The relative brevity of the minute of the meeting was therefore understandable, but the reasons given were adequate and intelligible to the informed reader.  In relation to the Pitskelly application, it would only be on the grant of planning permission that a statutory duty to give reasons would arise (Answer 19):  it was always possible that the reasons then given might be more detailed, but they would in substance be the reasons contained in the minute of the meeting.  Furthermore (i) this was not a case where, as submitted by senior counsel for the petitioners, there was no proper basis or justification in fact for what was contained in the Council’s reasons.  In respect of housing land supply, there was a perfectly proper basis.  The councillors had concluded that Pitskelly could contribute to the resolution or alleviation of the shortfall in housing land supply, having taken into account all the sources of information and factors such as prematurity.  They were entitled to reach that conclusion.  (ii) The reasons noted were sufficiently clear (cf dicta in Carroll v Scottish Borders Council [2014] CSOH 6). They were not a final version:  if necessary, they could be put in context by phrasing to include background material.  But the reasons given were perfectly adequate for the informed reader.  (iii) Standing the reports available to the Council, there was no proper basis for a claim that it could not be known whether certain material factors (such as prematurity) had been left out of account or taken into account, simply because they were not expressly mentioned in the reasons.  It was noteworthy that the reasons given did not refer to the figure of 750, and (agreeing with the petitioners) the decision was not based on the figure of 750:  the decision depended solely upon the issue of a contribution to housing land shortfall.

[20]      Councillors were democratically elected:  Planning decisions were taken by democratically elected councillors, who were responsible to their local communities and entitled to pursue policies (Lady Hale at paragraph 36 of R (Morge) v Hampshire County Council [2011] 1 WLR 268;  dicta of Pill LJ, quoted at paragraph 28 of R (Berky) V Newport City Council [2012] EWCA Civ 378).  Councillor Bowles was entitled to express a view about Carnoustie (his home town);  to obtain support from others;  and to disagree with others as he saw fit.  He had had meetings with both sides.  He was entitled to take into account the fact that one of the sites had been allocated in 2009, but nothing had been delivered, and to weigh up whether a further site would assist in delivery.  He was entitled to take a different view from the officers in the reports.

[21]      Outcome:  The petitioners’ pleas-in-law 1 to 6 should be refused;  the respondent’s pleas should be upheld;  and the petition refused.

 

Discussion
Background

[22]      At the meeting on 18 December 2014, the shortfall in effective housing land supply for the 5-year period to 2019 was estimated at 285 units (paragraph 4.40 of the context report dated 18 December 2014 [6/1]).

[23]      At that meeting, a figure of 750 or 730 was also mentioned, in particular by Councillor Bowles, who stated that there was a need for 750 new houses, and that “that could be sorted at the meeting” (Answer 15 for the Council).  That figure related to the housing land requirement in the emerging ALDP, covering the period from 2016 to 2026, and requiring public consultation, possible objections, the possible appointment of a reporter, who might make recommendations.  Thus the figure of 750 or 730 was distinct from the estimated housing land supply shortfall of 285 for the 5-year period to 2019, although it was to some extent part of the background.  But it was the estimated shortfall in the 5-year effective housing land supply (285) which was to assist in the approach to the planning applications.

[24]      At the pre-determination part of the meeting on 18 December 2014 [7/20], there were references the issue of “phasing” of houses being constructed, i.e. the actual rate of delivery of the headline figures referred to in the planning applications.  For example, phasing was raised in the discussion relating to the Strathmartine application (see [7/20] page 2, and also the context report [6/1] paragraph 4.24).  Similarly the Monifieth report [6/3] paragraph 8.20 referred to a “first phase” of around 200 dwellings anticipated for the period to 2021. Moreover at the earlier meeting of the Council on 11 December 2014, there had been references to phasing at Pitskelly, with around 150 dwellings anticipated in the period to 2021 ([6/9] page 2).   

 

Obligation to maintain a 5-year effective housing land supply

[25]      Planning authorities have an important duty to maintain a 5-year effective housing land supply (cf the observations at paragraph [6] of Hallam Land Management Limited v Scottish Ministers [2014] CSIH 110A).  As is set out in paragraph 123 of SPP:

“Maintaining a 5-year Effective Land Supply

123.  Planning authorities should actively manage the housing land supply.  They should work with housing and infrastructure providers to prepare an annual housing land audit as a tool to critically review and monitor the availability of effective housing land, the progress of sites through the planning process, and housing completions, to ensure a generous supply of land for house building is maintained and there is always enough effective land for at least five years.  A site is only considered effective where it can be demonstrated that within five years it will be free of constraints and can be developed for housing …

124.  The development plan action programme, prepared in tandem with the plan, should set out the key actions necessary to bring each site forward for housing development and identify the lead partner …

125.  Planning authorities, developers, service providers and other partners in housing provision should work together to ensure a continuing supply of effective land and to deliver housing, taking a flexible and realistic approach.  Where a shortfall in the 5-year effective housing land supply emerges, development plan policies for the supply of housing will not be considered up-to-date, and paragraphs 32-35 will be relevant.”

 

[26]      Included in paragraphs 32 to 35 is paragraph 34, in the following terms:

“34.  Where a plan is under review, it may be appropriate in some circumstances 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 predetermining decisions about the scale, location or phasing of new developments that are central to the emerging plan.  Prematurity will be more relevant as a consideration the closer the plan is to adoption or approval.”

 

[27]      In the present case, a shortfall in the 5-year effective housing land supply was identified.  Accordingly development plan policies for the supply of housing land were not up-to-date, and paragraphs 32 to 35 became relevant.  Those paragraphs required the exercise of judgment when assessing what might be needed in order to address the shortfall in such circumstances, and a consideration of whether the granting of permission(s) with a view to resolving the shortfall might be considered premature in the sense of predetermining decisions about the scale, location, or phasing of new developments that were central to the emerging plan.

[28]      Against that background, the Council had four applications to consider at the meeting on 18 December 2014.  When addressing the 5-year effective housing land supply shortfall, the councillors had assistance from the head of planning’s reports.  Paragraph 8.20 of the Monifieth report [6/3] referred to the draft proposed ALDP and to a relevant policy, noting proposals for a residential development of around 350 dwellings, with a first phase of around 200 dwellings in the period to 2021, and a further phase of around 150 dwellings in the period to 2026.  In the pre-determination meeting on 18 December 2014, a question was raised about phasing in respect of Strathmartine ([7/20] page 2]).  At the earlier Council meeting on 11 December 2014, reference was made to phasing at Pitskelly, with around 150 dwellings anticipated in the period to 2021 ([6/9] page 2).

[29]      Thus concepts of phasing and build rates were being considered by the councillors.  Many of the councillors would be familiar with the process of building and construction, involving programming over a period of time in order to produce the headline figure of dwellings contained in the planning application.

[30]      In my opinion, on the information available to the councillors (including the reports, discussions, local knowledge of the sites, information obtained from the meeting on 11 December 2014, and the councillors’ knowledge of how housing land supply works, including the issue of phasing), the councillors were entitled to take the view that the grant of the Monifieth application alone would not necessarily solve the 5-year effective housing land supply shortfall.  They were entitled, on the information they had, to work on the basis that Monifieth might deliver about 200 units in the period to 2021, and therefore about 150 units during the five years to 2019;   that it was not clear if Strathmartine would deliver sufficient additional units during the 5-year period;   and that a further grant or grants in relation to land at Ashludie or Pitskelly might be necessary to ensure that there was a “generous supply of land for house building … always enough effective land for at least five years” (SPP paragraph 123).

 

Specific criticisms made

[31]      Against that background, I turn to consider the petitioners’ specific criticisms of the decisions taken on 18 December 2014.

[32]      Sections 25 and 37 of the 1997 Act:  In my opinion, the obligation to resolve the shortfall in the 5-year effective housing land supply was a “material consideration” entitling the councillors to make the decisions they did.  The head of planning’s reports contained recommendations and reasons pointing to Monifieth as a way in which to address the shortfall:  but as indicated in paragraphs [28] to [30]  above, the grant of the Monifieth application would not necessarily resolve the shortfall.  Bearing in mind the planning authority’s obligation to ensure a generous supply of land for house-building, always enough effective land for at least five years, the Council was, in my opinion, entitled to treat the existing LDP as out-of-date, and therefore, while bearing in mind the issue of prematurity (specifically raised in the reports) to take the decision it did on 18 December 2014 with a view to resolving the shortfall.   Accordingly I do not accept that the Council was in breach of its statutory duty in terms of sections 25 and 37 of the 1997 Act.

[33]      Irrationality, unreasonableness, and vires:  Paragraph 34 of SPP is not mandatory or prescriptive.  It provides that “where a plan is under review, it may be appropriate in some circumstances to consider whether granting planning permission would prejudice the emerging plan”.  Reference is made to scale, location, and phasing, and to the possibility that grants might predetermine these issues.  In my opinion, the question whether the granting of planning permission in principle with a view to resolving a shortfall in the 5-year effective housing land supply would be premature in the circumstances was a matter of judgment for the Council.  The councillors had the question of prematurity in mind (see, for example, the “reasons” sections in the reports).  But the councillors were entitled to consider the question of prematurity, consider the head of planning’s recommendations, and to decide nevertheless that, in the circumstances, the emerging LDP would not be prejudiced.  Questions of building rates, phasing, and deliverability were raised;  a figure of 750 or 730 was mentioned, but on the information available, that figure was relevant as background:  nothing in the papers suggests that the figure of 750 was confused with the 5-year effective housing land supply shortfall of 285.  The councillors were entitled to decide that the shortfall could and should be addressed by granting the applications in respect of Strathmartine, Monifieth, and Pitskelly, but that the Ashludie application should be refused.  Nothing said in Hallam Land Management Ltd v Scottish Minister [2014] CSIH 110A would prevent such an exercise of planning judgment by a Council when considering contemporaneous planning applications. The head of planning recommended refusal of the applications for Strathmartine and Pitskelly:  but the councillors were entitled to take those recommendations into account and yet not follow them.  The councillors were also entitled to decide that there should be a grant of employment land at Pitskelly, additional to the earlier grant of employment land at Carlogie.  They were entitled to conclude that little had occurred at the Carlogie employment land site over the previous five years, to reject the recommendation of the head of planning, and to grant the application for employment land at Pitskelly “to assist in the delivery of employment land in Carnoustie in addition to that currently allocated”. In the result I am not persuaded that the decision taken on the material available to the councillors was irrational or unreasonable in the Wednesbury sense, or ultra vires.

[34]      Furthermore,  I do not accept that it has been demonstrated that the councillors left out of account relevant factors such as sections 27 and 35 of the 1997 Act;  SPP paragraph 34;  the head of planning’s reasons and recommendations;  the fact that there was already a grant of employment land at Carlogie and that a reporter had given an opinion that there was no need for two business parks at Carnoustie (report [6/5] paragraph 8.29).  Nor do I accept that any relevant case has been made out on the basis of the pleadings and the productions indicating that some irrelevant factor – for example, the figure of 750 in some way being confused with the proper basis upon which the shortfall should be addressed – was taken into account.  For these reasons also I am not persuaded that the Council’s decision was irrational or unreasonable in the Wednesbury sense.

[35]      A1P1:  As I understood senior counsel for the petitioners, the argument based on a breach of A1P1 was not immediately insisted upon, the petitioners being content to reserve their position on that matter.  However I consider it appropriate to give an opinion on the point, as it may affect further procedure.  I agree with the Council’s submissions on this matter, as set out in paragraph [18] above.  Accordingly I am not persuaded that there is any merit in the argument.   

[36]      Lack of reasons:  As Lord Reed explained in Uprichard v Scottish Ministers 2013 SC (UKSC) 219:

“[44]    In considering the adequacy of the reasons given for a decision, it is necessary to take account of a number of matters, including the nature of the decision in question, the context in which it has been made, the purpose for which the reasons are provided and the context in which they are given …

[46] … Furthermore, the adequacy of the reasons given … has to be considred on the basis that they are addressed to persons who are familiar with the background and the issues …

[47] … the reasons … must be proper, adequate and intelligible, and must deal with the substantive points that have been raised …

[48]      It is in addition important to maintain a sense of proportion when considering the duty to give reasons, and not to impose on decision-makers a burden which is unreasonable having regard to the purpose intended to be served … [In the particular circumstances, involving a structure plan, if] the Ministers were to be expected to address, line by line, every nuance of every matter raised in every objection, the burden imposed in such circumstances would be unreasonable …”

[37]      Further, in the classic passage in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, Lord Emslie explained at page 348:

“ … The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.”

 

[38]      The present case involved a meeting of the Council to decide certain planning applications.  Many of the councillors would have experience of building and construction matters.  Many would have considerable local knowledge.  Many would  have views about what developments might best serve the local area:  cf the observations of Lady Hale in R (Morge) v Hampshire County Council [2011] 1 WLR 268 at paragraph 36:

“ … in this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of, their local communities.  As Lord Hoffmann put it in R (Alconbury Developments Ltd v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295, para 69: ‘In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them’.  Democratically elected bodies go about their decision-making in a different way from courts.  They have professional advisers who investigate and report to them.  Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them … It is their job, and not the court’s, to weigh the competing public and private interests involved …”

[39]      In the present case the councillors had their own experience; knowledge of the local area, its history and its people; carefully prepared reports by the head of planning which gave a full and clear picture of all four applications and their merits and demerits;  the obligation to address the shortfall in the 5-year effective housing land supply;  and the head of planning’s recommendations and reasons.  On the day of the meeting (18 December 2014) the councillors also had the benefit of full and open discussions. 

[40]      In my opinion, the councillors were, in those circumstances, well-informed.  They knew about many matters, including the location and nature of the areas concerned;  the need to address the 5-year effective housing land supply shortfall of 285;  the nature and content of the four applications (Strathmartine, Monifieth, Ashludie, and Pitskelly);  the nature and content of various reports;  the head of planning’s recommendations, particularly in the context of the shortfall in the 5-year effective housing land supply, where the advice was:

“… there is [a] site on the edge of Monifieth that has capacity to address that shortfall.  That site is on the edge of the settlement, provides good accessibility and does not give rise to significant landscape or visual impacts.  As it is reasonably well contained by existing landscape features, it would not pre-determine decisions regarding the future long-term growth of the settlement.  That site is considered more suitable to address the current shortfall in effective housing land supply and is generally compatible with development policy …”

In the reports, that advice or recommendation was supported by carefully explained reasons. 

[41]      The councillors also had before them information about phasing and build rates (referred to in paragraph [24] above) and information about the previous grant of employment land at Carlogie, followed by a lack of activity at that site for about five years (paragraph 8.29 of [6/5]).  In the circumstances it cannot, in my view, be suggested that the councillors were unaware of the issues involved.

[42]      Against that background, and taking into account the nature of the meeting on 18 December 2014, its context, and the decisions being made, I consider that the reasons given for the Council’s decision to grant the Pitskelly application were intelligible and adequate (cf Uprichard, paragraphs [44] to [48]).  The reasons left the informed reader and the court in no real and substantial doubt as to what the reasons were and what were the material considerations which were taken into account (Wordie, page 348).

[43]      The two reasons as recorded in the minute of the meeting [7/13] were that the grant of the Pitskelly application would (i) “contribute towards addressing an identifiable shortfall in the five year effective housing land supply in the South Angus Housing Market Area”, and (ii) “assist in the delivery of employment land in Carnoustie in addition to that currently allocated”.  In my opinion, given the “nature of the decision in question, the context in which it has been made, the purpose for which the reasons are provided and the context in which they are given” (Uprichard, paragraph [44]), each reason was sufficient and intelligible to the informed reader, as follows.

[44]      The reason relating to the housing land supply shortfall decision:  I consider that it would place an unreasonable burden on the decision-maker (cf Uprichard, paragraph [48]) to expect the minute of the meeting to narrate in detail the issue of phasing or build rates for houses being constructed on the various sites, perhaps giving precise estimates (for example, 30 or 40 houses per year for Monifieth).  In my view the councillors can, in the circumstances, be taken to have been working on the basis that the relevant developer would have to construct the houses in phases, and would not deliver the headline number (for example 350-400 for Monifieth) all at once.  The reason given for the Pitskelly grant, namely to “contribute towards addressing [the shortfall]” (emphasis added) accurately reflected the councillors’ conclusion that one site would not necessarily answer or resolve the whole shortfall nor (necessarily) would two sites.  In such circumstances, the reason given is adequate and intelligible to any informed reader, aware of all the facts, and taking into account inter alia that there were material considerations (cf sections 27 and 35) entitling the councillors to take the approach they did, even bearing in mind the recommendations of the head of planning, the emerging LDP, the anticipated 9-week consultation period, and paragraph 34 of SPP.

[45]      The reason relating to the employment land decision:  Again the reason for the grant in relation to employment land at Pitskelly was, in my opinion, adequate and intelligible.  The reason recorded was that the grant “would assist in the delivery of employment land in Carnoustie in addition to that currently allocated”(emphasis added).  The reason makes clear that the councillors were well aware of the earlier grant of employment land at Carlogie.  The reference to assisting in the “delivery” of employment land in Carnoustie impliedly refers to the apparent inactivity during the five years or so following upon the previous grant of employment land at Carlogie.  The councillors were entitled, in the circumstances, to consider but not to follow the head of planning’s advice and recommendations as set out in paragraphs 8.8 and 8.29 of the Pitskelly report [6/5].  The councillors were entitled to form their own view that the grant of employment land at Pitskelly would assist in the delivery of employment land in Carnoustie.

[46]      Alleged questionable conduct by a councillor:  In my opinion, there is insufficient information to permit this court to conclude that conduct on the part of any councillor was such that it might invalidate the decisions taken on 18 December 2014.  Whilst agreeing that a proof of facts would be required if this ground of challenge were to be taken any further, it is my view that there is nothing in the pleadings or the productions sufficient to persuade me that conduct occurred such as to justify reduction of the Pitskelly decision.  The Council’s decisions about the planning applications were made at an open public meeting, on the basis of information available to all.  Motions were made, seconded, and discussions and debates conducted openly, in public.  Votes were taken and counted.  Procedures were followed and recorded in the minute.  On the basis of the averments and productions available at present, I would not consider ordering any proof on this question, nor would I consider making an order for the reduction of the Pitskelly grant.

 

Decision
[47]      For the reasons given above, I sustain the Council’s pleas-in-law, repel the petitioners’ pleas-in-law and refuse the petition.  I continue any question of expenses.