Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 18

P763/15

OPINION OF LORD ARMSTRONG

In the petition of

CHRISTINE MARGARET HUNT AND OTHERS

Petitioners;

for

JUDICIAL REVIEW OF THE DECISION OF MORAY COUNCIL DATED 28 MAY 2015, TO GRANT PLANNING PERMISSION FOR THE ERECTION OF 30 BEACH HUTS AT NORTH BEACH, FINDHORN

Petitioners:  Agnew of Lochnaw, QC;  Drummond Miller LLP

Respondent:  Sutherland;  Morton Fraser LLP

Interested Party:  Burnet;  Clyde & Co

27 January 2016

Introduction

[1]        The petitioners are residents of Findhorn, Forres, Morayshire.  They were objectors to the planning application in respect of which the respondent granted planning permission on 28 May 2015 (“the Decision”).  The respondent is Moray Council, a local authority.  The interested party is 1 Architects Limited and was the applicant for that planning permission.  In terms of the decision, planning permission was granted for the erection of 30 beach huts at North Beach, Findhorn.  The petitioners seek reduction of the Decision on the basis that, by granting planning permission as they did, the respondent erred in law (1) by misinterpreting Policy E4 (Green Spaces) of the Moray Local Development Plan (“the LDP”), and (2) by failing to have regard to the emerging Moray Local Development Plan, then not yet adopted, (“the emerging LDP”), as a material consideration. 

 

The facts
[2]        The location of the proposed beach huts is part of the Findhorn Bay Local Nature Reserve and also part of the Culbin, Findhorn Bay and Burghead Site of Interest to Natural Science, and is an area designated ENV6 in terms of the LDP.  That designation applies to open spaces categorised at “Green Corridors/Natural/Semi Natural”.

[3]        Within the Settlement Statements of the LDP in relation to Findhorn, one of the stated objectives is:

“To ensure that any new development does not compromise the specific features of the village, namely, its open spaces … woodlands, footpaths, Bay foreshore and its enclosure by gorse and sand dune areas”.

 

(In respect of another passage of the Findhorn Settlement Statement, an issue arose as to an apparent discrepancy between the wording of the principal Moray Local Plan 2008 and a version of it published on the internet.  Ultimately the parties agreed on the correct wording.  This opinion proceeds on the basis that the correct wording was what was taken into account in the process which led to the Decision.  In any event, even if reliance had been placed on the erroneous wording, I would have reached the same conclusion).

[4]        Policy E4 of the LDP is stated in the following terms:-

“Development which would cause the loss of, or impact on, areas identified under the ENV designation in settlements … in rural communities will be refused unless:

 

a.         the proposal is for a public use that clearly outweighs the value of the green space;  and

 

b.         the development is sited and designed to minimise adverse impacts on the recreational, amenity and biodiversity value of the site. …”.

 

The stated justification of the policy is:

“The aim of the policy is to protect ‘green spaces’ identified in the settlement statements and rural community statements.  Green spaces in the built environment provide opportunities for social contact and recreation and provide biodiversity and landscape benefits.  It is therefore important that they are safe, secure, accessible and well-maintained.”

 

[5]        In her report, dated 2 March 2015, the planning officer made the following comments:

“Recommendation

 

The proposal is contrary to the approved Moray Structure Plan 2007 Policy 2(a) and the adopted Moray Local Plan 2008 Policies E4, ED9 and IMP 1 where because of the location, design and number of the beach huts to be introduced, the resultant development would be prominent and obtrusive when viewed from the beach area and is not being integrated sensitively into the surrounding area, the proposed grouping of beach huts would detract from the existing largely unspoiled open character, appearance and amenity of Findhorn Beach. …”;

 

“The Proposal

 

Application to build 30 beach huts on dune land at North Beach, Findhorn …

 

The supporting information indicates that two huts are to be given to the community, and that many of the huts will be locally owned, they will not generate car journeys but some beach hut users arriving by car will probably use the existing car park. …”;

 

“Consultations

 

Development Plans – No objection.  The proposal complies with Policy E2, E4, ED9, and INP1.  As a low intensity, recreational/tourist use, beach huts could significantly enhance and add a distinctiveness to Findhorn as a tourist destination.  Based on advice from SNH including the localised impact on dune habitat not being likely to result in significant adverse impacts on natural heritage interests, the proposal complies with policy E2 (Local Nature Conservation and Bio-Diversity).  The site is within an ENV designation in the Moray Local Plan 2008 therefore Policy E4 (Open Spaces) applies.  Policy ED9 (Tourism Facilities and Accommodation) also applies.  The huts would have economic benefits for the whole village by encouraging new visitors to the area and encouraging locals to stay.  It is also noted that two huts are to be donated to the community which have the potential to generate rental income.  Whilst the proposal is not considered to clearly outweigh the value of the open space, the potential tourism and long-term economic benefits to the wider community that could be generated from this proposal, increasing Findhorn’s profile as a tourist destination, could be considered to satisfy Policy E4 and ED9. …”;

 

“Issue:  The proposal is contrary to Moray Local Plan Policy E4 (Green Spaces).

Comments:   (PO):  The application site is identified as part of an open space (Findhorn ENV 6 refers) as defined in the Moray Local Plan.  For this designation Policy E4 presumes against the loss of this open space as identified except where the development is for a public use that outweighs the value of the green space and the development is sited and designed in a manner that minimises adverse impact on the recreational, amenity and bio-diversity value of the site.  In this case and although unlikely to adversely impact on recreational and bio-diversity interests, the elevated site and multi-coloured design of the huts would detract from the amenity and somewhat unspoiled appearance of the beach area, and evidence to demonstrate that the proposal will fulfil a public use is lacking. …”;

 

“Issue: The proposal is contrary to the emerging Moray Local Development Plan (LDP).

Comments:  (PO):  The LDP has not yet been adopted and is not yet a material consideration, therefore it had not been taken into account. …”;

 

“Observations:

…

At coastal locations elsewhere, (multi-coloured) beach huts sited on, or on land adjacent to a beach are perhaps not an uncommon feature but here, the requirements of Policy E4 are not achieved.  Except for two huts (yet to be identified), where it is proposed that they be offered to the local community, information to demonstrate that the proposal will be for public use is lacking from the submission.  According to the agent, the majority of the huts are to be owned locally, with little else to suggest that under that arrangement the huts will be provided for public (or community) use.  As such and in terms of Policy E4 a non-public use would not outweigh the value of the open space as defined.”

 

[6]        Scottish National Heritage did not object to the application and stated in their consultation response:  “The proposal is unlikely to have any significant adverse impact on natural heritage interests.”

[7]        In their Applicant Response, the interested party noted that the respondent’s Development Plan Unit had concluded that the proposal complied with the relevant Policies E2, E4, ED9 and IMP 1 of the LDP.  Under the heading “Public Benefits” the interested party stated:

“There are a number of realisable benefits across different sectors:-

 

We have formally offered to give two huts free of charge to the local community, to administer on behalf of the village.  These have a direct cash value of £40,000 but could be leased weekly or daily to provide an income in perpetuity. 

We believe that Moray Council should find a way of applying Council Tax or a similar levy, so that there is an annual income to the Council.  At say, £750 per annum that would be an additional £22,500 to some Council budget.  We are happy to work with the Assessor’s Department on this.

 

If the above is not possible under statute, we are happy to ensure that public benefit is guaranteed by entering a ground rent burden on the title deeds of all huts sold.  In association with Moray Council Treasury we can produce a protocol that preserves and protects this for the public benefit in perpetuity. 

 

The village needs tourist income, and beach huts are incredibly popular.  The huts at Hopeman are now on a 15 year waiting list.  I have yet to visit a beach resort with huts that were not fully used, some all year round.”

 

[8]        At a meeting of the respondent’s Planning and Regulatory Services Committee, on 19 May 2015, following consideration of the planning officer’s report and a motion that the committee should agree to grant planning permission on the basis set out in the report under the heading “Consultations: Development Plans”, the motion was carried and the committee agreed to grant planning permission.

[9]        The reasons stated in the Decision for the grant of planning permission were in the following terms:

“Following consideration, the proposal is considered to accord with Development Plan Policy E2, E4, ED9 and IMP1 (where, the beach huts could significantly enhance and add distinctiveness to Findhorn as a tourist destination, the proposal would not likely result in significant adverse impacts on natural heritage interests and the huts would have economic benefits for the community, and there are no material considerations that indicate otherwise.”

 

The submissions

[10]      The parties each lodged, and formally adopted, written notes of argument.  I have taken the content of these notes of argument into account, together with the oral submissions presented. 

 

Submissions for the petitioners
The interpretation of Policy E4

[11]      The application required to be determined in accordance with the LDP unless material considerations indicated otherwise (Town and Country Planning (Scotland) Act 1997, section 25).  The misinterpretation by a planning authority of its own policy would amount to an error in law.  Whether or not there had been such a misinterpretation was a matter for the court to determine (Tesco Stores Limited v Dundee City Council 2012 SC (UKSC) 278, at paragraphs [17]-[21], [35]).  It was accepted that it was within the respondent’s planning judgment as to whether to grant or refuse planning permission, but before reaching that stage it was incumbent on the respondent properly to construe the meaning of “public use” in its application to Policy E4.  Only then did scope for planning judgment arise. 

[12]      Given the terms of the policy and in particular the use of the phrase “for a public use” it was significant that the reasons stated in the Decision made no specific reference to that concept.  It made reference instead to “economic benefits for the community”.  The meanings of “public benefits” or “community benefits” were not to be equated with that of “public use”.

[13]      It was submitted that “a public use” in the context of the environmental designation accorded to the area in which the proposal site was located, meant a use by the public or a use for the public, and embraced the concept of public access.  That latter aspect was consistent with the importance given to green spaces being “accessible” in the stated justification for Policy E4.  Examples of public use were provided by children’s play parks, sports facilities, swimming pools or coastguard stations.  Such examples were to be contrasted with the proposed beach huts which were, apart from two, to be sold to private individuals. 

[14]      According to the Oxford English Dictionary, (1) “public” meant “pertaining to the people of a … locality”;  “that belongs to, affects, or concerns the community”; “that is open to, may be used by, or may or must be shared by, all members of  the community”; and “in general, and in most of the senses, the opposite of “private”, and (2) “use” meant “the act of using or fact of being used”; “the act of employing a thing for any (esp. a profitable) purpose; the fact, state, or condition of being so employed; utilization or employment for or with some aim or purpose, application or conversion to some (esp. good or useful) end”; and, in the on-line version, “the act of putting something to work or applying a thing for any (esp. a beneficial or productive) purpose”. 

[15]      Although it was part of the proposal that two of the 30 beach huts would be given to the community, that was de minimis in relation to public use, and could not bring the whole development within the requirements of Policy E4.

[16]      The case of Naylor v Essex CC, 2014 WL 795 297, was illustrative of the concept that a private owner of land could only render the land public if the site was made over for public use.

[17]      Although, in her report, the planning officer had made no reference to “public use” under the chapters “Recommendation” or “Consultations” (including the reference to the response by the Development Plans Unit), there was a reference to public use some ten pages further into the document in the context of her comments in relation to particular issues arising, and some seven pages yet further into the document under the heading “Observations”.  On that basis, it could rightly be stated that she had been alive to the issue.  Having correctly recognised the terms of Policy E4, in effect her recommendation had been that since the proposal was not for a public use it could not outweigh the value of the relevant green space.

[18]      It was clear from the terms of the reasons given in the Decision and the use of language such as “the beach huts could significantly enhance and add distinctiveness to Findhorn as a tourist destination” and “the huts would have economic benefits for the community”, in the absence of any use of the phrase “public use”, that the respondent had misinterpreted Policy E4.  The language used in the reasons stated did not import the meaning of “public use”. 

 

Failure to have regard to a material consideration
[19]      Provided that a planning authority has regard to all material considerations, it is at liberty (absent Wednesbury irrationality) to give them whatever weight it thinks fit, or no weight at all.  The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process (Tesco Stores v Secretary of State for the Environment 1995 1 WLR 759, per Lord Hoffman, at 780G-H).

[20]      When a planning authority has publicised a draft local plan, it should have regard to it when considering how to deal with an application for planning permission, subject to any objections to the draft plan yet to be resolved (Regina v City of London Corporation (ex parte Allan & Another) (1980) 79 LGR 223, 227;  J.A. Pye (Oxford Estates Limited) v Secretary of State for the Environment and Wychavon District Council, Queens Bench Division, July 29, 1986). 

[21]      In the present case there had been an emerging LDP which had reached an advanced stage, was effectively in its final form, and was in fact adopted on 21 June 2015, some four weeks after the date of the Decision.  Give the realities of the situation and the limited terms of Regulation 2 of the Town and Country Planning (Grounds for Declining to Follow Recommendations) (Scotland) Regulations 2009, it would have been almost certain, at the time of the Decision, that the emerging LDP was inevitably going to be adopted in its  existing terms.  These terms included a new Policy E5 which eventually replaced Policy E4 of the then existing LDP, and was in similar terms to those of Policy E4, but for the description of the exceptions to the general prohibition on development which would  cause a loss of, or adversely impact on, areas identified under the ENV designation.  These exceptions in terms of Policy E5 of the emerging LDP, (words in italics inserted to indicate innovations on the then existing Policy E4), were:

“- the proposal is for a public use that clearly outweighs the value of the open space or the proposed development is ancillary to the principal use and will enhance the use of the site for sport and recreation; and

 

- the development is sited and designed to minimise adverse impacts on the recreational, amenity and bio-diversity value of the site; and

 

- there is a clear excess of the type of ENV designation within easy access in the wider area and loss of the open space will not negatively impact upon the overall quality and quantity of open space provision, or

 

- alternative provision of equal or greater benefit will be made available and is easily accessible for users of the developed space.”

 

[22]      Although, in her report, the planning officer, had stated that the emerging LDP, not yet adopted, was not yet a material consideration and therefore had not to be taken into account, she was plainly wrong in that regard.

[23]      There was no indication in the Decision that any consideration had been given to Policy E5 of the emerging LDP.  Such a failure to have regard to a material consideration amounted to an error of law.

[24]      Even if public use was to be equated with public benefit, had consideration been given to Policy E5, the respondent might have come to a different decision, having regard to the issues of (1) whether the proposal was ancillary to the principal use and would enhance use of the site for sport and recreation, (2) in circumstances where there was an excess of relevant ENV designated land, within easy access, whether or not the loss of open space would negatively impact upon the overall quality and quantity of open space provision, or (3) whether alternative provision, easily accessible for users, would be made available.

[25]      Reference was made to the principles set out by Glidewell LJ in the case of Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority (1991) 61P and CR 343, 352-3, amongst which were the following:

“2.       The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account.  Such a matter is relevant to his decision-making process.  By the verb “might”, I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account.

 

3.         If a matter is trivial or of small importance in relation to the particular decision, then it follows that if it were taken into account there would be a real possibility that it would make no difference to the decision and thus it is not a matter which the decision maker ought to take into account.   …

 

5.         If the validity of the decision is challenged on the ground that the decision-maker failed to take into account a matter (the need for consideration of which was implied from the nature of the decision and of the matter in question), it is for the judge to decide whether it was a matter which the decision-maker should have taken into account .

 

6.         If the judge concludes that the matter was ‘fundamental to the decision’, or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus enabled to hold that the decision was not validly made.  But if the judge is uncertain whether the matter would have had this effect or was of such importance in the decision-making process, then he does not have before him the material necessary for him to conclude that the decision was invalid.”

 

Reference was also made to Bova v Highland Council and Others, 2013 SC 510, at paragraph [57]. 

[26]      It was submitted that the difference in terms between the proposed Policy E5 and the then Policy E4 was such that, had Policy E5 been considered, it would have raised issues so sufficiently different that a different outcome would have been a real possibility.  In such circumstances, in the light of the respondent’s failure to have regard to Policy E5 of the emerging LDP as a material consideration, the Decision should be reduced. 

 

Submissions for the respondent
The factual background
[27]      The size of the application site was relatively small compared to the large surrounding areas designated as ENV 6 green spaces.  Reference was made to the plan comprising part of the Settlement Statements section, referable to Findhorn, of the LDP.  The proposed beach huts would occupy only 100 metres on a coastal walk which followed the beach for many kilometres. 

[28]      As noted in the interested party’s design statement, against the background of a local economy which was dependant on seasonal tourism/recreational activity, a previous feasibility and business plan, published in 2014 by the Findhorn Village Conservation Company, had included the erection of beach huts in its 3-5 year plan strategy.  Until the 1950s, there had previously been beach huts at Findhorn.

[29]      The proposal provided obvious benefits to the community.  The intention was to donate two of the beach huts to the community so that an income stream would be generated from leasing.  Under reference to the interested party’s response following public consultation, the direct cash value of two beach huts would be £40,000.  A council tax charge or similar levy at, say £750 per hut, would raise £22,500 annually.

[30]      The members of the respondent’s planning committee had carried out a site visit and had knowledge of the proposal in its context.  In making their decision, they had taken into account the public benefit identified in the context of Policy E4.  That was reflected in the terms of the reasons stated in the Decision.

[31]      In her report, the planning officer had recognised the intention to give two huts to the community.  Under the heading “Consultations: Development Plans”, there was a clear recognition of public benefit to an extent capable of satisfying Policy E4.  That public benefit was described as follows:

“… beach huts could significantly enhance and add distinctiveness to Findhorn as a tourist destination…”;

 

“… The huts would have economic benefits for the whole village by encouraging new visitors to the area and encouraging locals to stay. …”;

 

and

 

“…. The potential tourism and long-term economic benefits to the wider community that could be generated from this proposal, increasing Findhorn’s profile as a tourist destination could be considered to satisfy Policy E4…”

 

The fact that throughout these passages the term “public use” was never used, was significant.  In circumstances where the planning officer was clearly addressing Policy E4 for an informed reader, it was reasonable to infer that public benefit fell within the ambit of, and could include public use.

[32]      As to whether the proposed public use could be said to outweigh the value of the relevant green space, it was significant that Scottish National Heritage had expressly indicated no objection.

[33]      It was not the case that the planning officer had indicated that the proposal was not for a public use.  In the section of her report under the chapter “Observations”, she had expressed the view that any public use benefits (from recreation or indirectly from tourism) were not such as to outweigh the value of the relevant open area.  That was an expression of judgement on her part, but nevertheless in making that judgement she had recognised that public use benefits existed.  Her conclusion and recommendation for refusal had been based not on the absence of any public use, but rather on the visual impact of the proposed beach huts.

 

The interpretation of Policy E4

[34]      It was submitted that an objective interpretation of the language of the policy, used in its proper context, did not support the narrow interpretation of the phrase “for a public use” contended for by the petitioners.  On the contrary, a broad interpretation, which embraced the concept of enhancement of the distinctiveness of Findhorn and of economic benefits for the local community, was appropriate. 

[35]      Within the terms of the policy itself, the phrase “for a public use”, where it appeared in the first exception to the general prohibition on development, was not qualified or restricted in any way.  A plain reading was required.  The stated justification for the policy, which made reference to “social contact and recreation” and to “landscape benefits”, embraced a range of usages and benefits which could arise from green space whether directly or indirectly.  It was significant that amongst the stated categories of green spaces was included ENV3 Private Gardens and Grounds.  That was an indication that where public use was a consideration, the term required a broad interpretation to suit particular contexts. 

[36]      As to the issue of accessibility, it was to be noted that given where the word “accessible” appeared within the stated justification of the policy, it was clearly referable to the general importance of green spaces, rather than to development proposals which might impact on them. 

[37]      The test, consistent with Lord Reed’s dictum in Tesco v Dundee District Council, supra, at paragraph [20], was whether the phrase “for a public use” was capable of bearing the meaning “for a public benefit”.

[38]      The terms of the policy did not indicate that, in order to satisfy the first exception, a proposal had to be exclusively for a public use.  On the contrary, the concept of a proposal which included both public and private uses was unremarkable.  Indeed, a policy which excluded development which involved an element of private use would be unworkable.  The example of the installation of an electricity sub-station was cited.  A structure of that type would have an obvious public use resulting from the benefit to be derived from the supply of electricity, but would not normally be accessible to the public and would necessarily involve a significant private element given the involvement of a corporate energy provider.

[39]      Accordingly, a broad interpretation of Policy E4, which included the concept of public benefit and both public and private uses was appropriate.

[40]      Insofar as the first exception to the general prohibition on development was concerned, whether the referable public use outweighed the value of the green space was a matter of planning judgment for the respondent.

 

The emerging LDP
[41]      It was accepted that the comment by the planning officer, in her report, to the effect that since the emerging LDP had not been adopted, it did not require to be considered, was wrong.  That did not mean, however, that Policy E5 had been a material consideration or that there had been an error of law in failing to have regard to it.

[42]      Policy E5 of the emerging LDP had not been a relevant consideration because consideration of it would not have given rise to a real possibility of a different outcome.  Rather, had it been taken into account, it was arguable that the proposal would have received stronger support.

[43]      In comparison with that of the existing Policy E4, the stated justification for Policy E5 of the emerging LDP was not materially different.  The difference between the two policies was that in Policy E5 there were additions made to the exceptions to the general prohibition on development of green spaces.  Policy E5 included four exceptions whereas the then existing Policy E4 included two.

[44]      Insofar as the first exception of Policy E5 was concerned, it retained the first exception of the then existing Policy E4 but added a second part which provided an additional and separate basis for the grant of planning permission.  If the first part was satisfied, as the respondent had found it to be, there was no need to consider the second part.  The addition was in effect a weaker alternative since it did not require public use at all.  In any event, there had been evidence before the planning committee that the proposed beach huts would enhance the ability to use the relevant open space.  On that basis it could be maintained that the added alternative of the first exception of Policy E5 was satisfied.  In the event, however, the respondent, in considering Policy E4, had in effect found the first part of the first exception of Policy E5 to be satisfied and, accordingly, had they been considering Policy E5 of the emerging LDP instead, it would have been unnecessary to have regard to the added alternative.  On that basis, even if Policy E5 had been taken into account, it would have made no difference.

[45]      The second exception of Policy E5 of the emerging LDP was in the same terms as that of the then existing Policy E4. Consideration of Policy E5, in that regard, would therefore have made no difference.

[46]      Insofar as the third exception was concerned, there was clear evidence before the respondent of the extensive area of ENV 6 designated land within easy access, and of the fact that, far from impacting negatively on the overall quality and quantity of the open space provision, the proposal would enhance its attraction as a tourist destination.

[47]      The fourth exception of Policy E5 of the emerging LDP was not relevant as the question of alternative provision had not arisen.

[48]      Thus the evidence which had been available was such that if Policy E5 of the emerging LDP had been taken into account, it was likely that the respondent would have reached the same decision.

[49]      In any event, the petitioners had not submitted how, when considering Policy E5 of the emerging LDP, the respondent might have reached a different outcome.  In circumstances where it was incumbent on them to demonstrate that there had been a real possibility of a different decision, they had failed to do so.

[50]      Even if it was correct that there had been an error of law by failing to have regard to Policy E5 of the emerging LDP as a material consideration, in circumstances where Policy E5 was now in effect, and offered stronger policy support for the proposal such that the respondent, on reconsidering it, would be likely to reach the same conclusion again, the court’s discretionary power should be exercised so as not to reduce the Decision.  Reference was made to the seventh of the principles set out by Glidewell LJ in Bolton (at page 35);

“7.       Even if the judge has concluded that he could hold that the decision is invalid, in exceptional circumstances he is entitled nevertheless, in the exercise of his discretion, not to grant any relief.”

 

Submissions for the interested party
The interpretation of Policy E4

[51]      It was important to construe the policy in context and inappropriate to approach it as one would a statutory or contractual provision.  Planning policies frequently contain broad statements and accordingly some flexibility in their interpretation was appropriate. 

[52]      It was clear that the area of Findhorn was well supplied with green spaces designated as ENV 6, indeed to a greater extent than the area of land occupied by buildings.  In addition, there were expansive further areas of adjacent dune lands not designated in the LDP.  In applying Policy E4, therefore, the amount of green space lost as a result of the proposal was minimal compared to the area remaining.

[53]      The petitioners’ interpretation of the phrase “for a public use”, which was limited to use by the public directly in circumstances where the public had access to use the relevant land, was excessively narrow. 

[54]      The more appropriate interpretation, contended for by both the respondent and the interested party, was broader and included the concept of something of, or for, use for the public or for the benefit of the public. 

[55]      In her report, the planning officer’s conclusions had been shaped by her view of the extent to which the proposal might have negative visual impact.  It would be wrong to say that she had identified no public use.  Rather, her concern had been that there was a lack of evidence that the proposal would fulfil a public use and as such operate to outweigh the value of the green space.  In that regard, the amount of information required by a planning authority in order to enable it to assess and decide upon a planning application was a judgment for the planning authority itself (Simson v Aberdeenshire Council 2007 SC 366, at paragraph [23]).  At the very least, the offer of two beach huts to be made over to the local community was evidence of public use.  Whether or not that provision was de minimis was not a question for the court, in the absence of irrationality.  The weight to be given to the various factors taken into account was a matter for the planning authority.  In the event, the public use to be provided by two beach huts was not de minimis.  Neither was it irrational to take that fact into account.  It was not uncommon for some element of public benefit to be provided by enabling development.  That said, whether permission for such development should be granted was a matter of planning judgment.

 

The emerging LDP
[56]      It was accepted that the emerging LDP had the potential to be relevant as a material consideration, but the issue was whether consideration of Policy E5 of the emerging LDP would have made any difference.

[57]      In that regard, it was important to note that what was significant was not the document itself but rather the content of the policy within the emerging LDP (Carroll v Scottish Borders Council and Others 2015 CSIH 73, at paragraphs [65] and [66]). 

[58]      The appropriate approach was to compare the differences between the existing Policy E4 and the then proposed Policy E5, in order to determine whether the differences amounted to a material consideration.  That would be so only if consideration of the differences, in this case additional criteria, would have led to the real possibility of a different decision.  In that regard, counsel for the interested party adopted the submissions for the respondents. 

 

Decision

[59]      It was common ground that a planning authority must proceed upon a proper understanding of the relevant development plan.  Against that background, it must also be recognised that the content of development plans may, and often does, include broad statements of policy, the purposes of which are to secure consistency and direction in the exercise of discretionary powers, while allowing a measure of flexibility to be retained (Tesco Stores v Dundee District Council, at paragraphs [18] and [19]).  In my assessment, Policy E4 is an example of that.  Viewed in that way, it would be wrong to construe such policies by adopting, as a matter of course, a narrow approach to their interpretation.  Rather, the appropriate approach to the interpretation of such policies is to consider their content objectively in accordance with the language used, read in its proper context. 

[60]      Adopting that approach, and taking into account the whole tenor of the policy, together with the content and context of the application which was under consideration, I am satisfied, for the reasons submitted by the respondent and the interested party , that the phrase “for a public use”, as employed in the terms of Policy E4 of the LDP, is capable of bearing the meaning contended for by them, and that, properly interpreted, it encompasses the concept of public or community benefit, economic or otherwise.  In circumstances where there was evidence of anticipated benefits arising from the proposed development under consideration, in the form of enhancement of the area as a tourist destination with associated beneficial impact on the local economy, the grant of planning permission did not therefore proceed on an error of law as to the interpretation of that phrase. 

[61]      Considered in the appropriate context, the concept of accessibility afforded to the public was not to be regarded as determinative.  Rather, the weight and significance to be attached to the extent of such accessibility, if any, and the extent of public ownership to be derived from the donation of beach huts to the local community, were matters of judgment for the respondent to take into account when assessing whether the nature and extent of the public use arising was sufficient to outweigh the value of the green space lost.

[62]      As regards the question of the status of Policy E5 of the emerging LDP as a material consideration, on the analysis of its terms as submitted by the respondent, under reference to the evidence available, I am persuaded that, had it been taken into account, the decision reached would have been likely to have been the same as that now challenged.  To state the matter another way, I am satisfied that the petitioners have failed to demonstrate that there was a real possibility that the respondent would have reached a different conclusion if the proposed Policy E5 had been taken into account.  That being so, Policy E5 of the emerging LDP was not a material consideration.  Although, given my decision on these matters, it is unnecessary for me to exercise discretion in the sense envisaged by the seventh of the principles set out by Glidewell LJ in Bolton, I do consider that, were the respondent obliged to reconsider the application under reference to the now current LDP, it is likely that the same decision would be reached.

[63]      In the course of the argument, it was submitted that the respondent’s reasons, as set out in the Decision, were inadequate in that no explanation was given for the fact that the conclusions reached by the respondent were contrary to the views expressed in the report by the planning officer.  The point was made in passing, no doubt in recognition of the fact that it was not specifically presaged in the pleadings.  Be that as it may, it is the case that the reasons stated made reference to all relevant policies of the LDP and set out the justification for the decision made.  In the particular context of this case, I am satisfied that, as regards the adequacy of the reasons given, the informed reader would not be left in doubt (see Uprichard v Scottish Ministers 2012 SC 172, at paragraph [26]).

[64]      I emphasise, of course, that the court is concerned only with the legality of the Decision and not its merits as determined by the planning judgment of the respondent.  In that regard, the question of the efficacy of the balancing exercise employed, as between positive benefits and adverse impacts, is not one in which the court can intervene.

[65]      In the event, I find that the respondent did not err in law either by misinterpreting Policy E4, or by failing to have regard to a material consideration in the form of Policy E5 of the emerging LDP.

 

Conclusion
[66]      For these reasons, I will sustain the respondent’s second, third and fourth pleas-in-law, sustain the interested party’s second, third and fourth pleas-in-law, repel the petitioners’ first and second plea-in-law, and refuse the petition.  I reserve, meantime, all questions of expenses.