British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GRAHAMS THE FAMILY DAIRY LIMITED AND MACTAGGART & MICKEL HOMES LIMITED AGAINST THE SCOTTISH MINISTERS [2019] ScotCS CSIH_3 (23 January 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/[2019]_CSIH_3.html
Cite as: [2019] CSIH 3, [2019] ScotCS CSIH_3, 2019 SLT 258, 2019 SCLR 861, 2019 GWD 5-67
[New search] [Printable PDF version] [Help]
Page 1 ⇓
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Menzies
Lord Brodie
[2019] CSIH 3
XA58/18
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Appeal by
GRAHAMS THE FAMILY DAIRY LIMITED and MACTAGGART & MICKEL HOMES
LIMITED
Appellants
against
THE SCOTTISH MINISTERS
Respondents
Appellants: J d C Findlay QC, A O Sutherland; DWF LLP
Respondents: Crawford QC, Van der Westhuizen; Scottish Government Legal Directorate
23 January 2019
Introduction
[1] This is an appeal against a decision of the respondents, dated 18 June 2018,
dismissing an appeal against Stirling Council’s decision to refuse planning permission for a
development in the green belt. The development was for 600 housing units (including
affordable housing), a public park, commercial space (neighbourhood centre),
improvements to road and drainage, and a new primary school, located between Bridge of
Page 2 ⇓
2
Allan and Causewayhead. The primary issue is whether the respondents failed to take into
account a relevant consideration or took into account an irrelevant one, notably in
connection with the outcome of a local development plan process, which had occurred
between the date of a reporter’s recommendation to the respondents and their decision
which was taken about a year later.
Legislative and Policy Framework
[2] Scottish Planning Policy attempts to deliver the objectives of the National Planning
Framework, which provides for Scotland's long-term spatial development as envisaged by
the respondents (Town and Country Planning (Scotland) Act 1997, Pt 1A). A key
component in SPP is “a presumption in favour of development that contributes to
sustainable development”. This means that:
“28. The planning system should support economically, environmentally and
socially sustainable places by enabling development that balances the costs and
benefits of a proposal over the longer term. The aim is to achieve the right
development in the right place; it is not to allow development at any cost.”
One of the requirements of SPP is the maintenance of an effective housing land supply.
Planning authorities “123. ... should … ensure a generous supply of land for house building
is maintained and there is always enough effective land for at least five years”.
[3] Planning decisions require to be made in accordance with the relevant local
development plan, “unless material considerations indicate otherwise” (1997 Act, s 25(1)).
Where a shortfall in the 5-year effective housing land supply exists, LDP policies for the
supply of housing land will not be considered up-to-date (SPP, para 125). Where that
occurs, the status of the sustainable development presumption is elevated from a “material”
(para 32) to a “significant material” (para 33) consideration. In that situation:
Page 3 ⇓
3
“Decision-makers should also take into account any adverse impacts which would
significantly and demonstrably outweigh the benefits when assessed against the
wider policies in this SPP.”
[4] If an LDP is under review, it may be appropriate to consider any prejudice to a new
plan, where the development:
“34. ... 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 become more relevant as a consideration the
closer the LDP is to adoption or approval.”
[5] Regulation 13 of the Town and Country Planning (Appeals) (Scotland) Regulations
2013 provides that, if an appointed person (reporter) proposes to take into consideration any
new evidence which is material to the appeal, the appellant and the planning authority must
be given an opportunity to make representations about it.
Planning History
[6] In September 2014 the appellants sought permission for their development from
Stirling Council. The report from the Council’s planning officials had recommended
approval because: the benefits of the development would outweigh non-compliance with
the LDP (green belt), which had been adopted in 2014; significant weight had to be attached
to SPP, which provided for a presumption in favour of sustainable development; the SPP
outweighed the LDP; and a proposed Agreement under section 75 of the 1997 Act and the
imposition of planning conditions could mitigate the impact of the development.
[7] On 23 March 2016, following a pre-determination hearing and contrary to the advice
of their officials, the Council refused permission. The reasons for refusal, were that: the
benefits of the development would not outweigh the disadvantages arising from non-
Page 4 ⇓
4
compliance with the LDP; and the section 75 agreement would not satisfactorily mitigate the
impact of the development, in connection with the erosion of the green belt and flooding
and transport risks.
[8] The appellants appealed to the respondents under section 47 of the 1997 Act. The
respondents resolved to determine the appeal themselves (1997 Act, sch 4, para 3(1)), rather
than have a reporter do so, because: the development involved over 100 residential units;
high priority was placed on the delivery of good quality housing; and the respondents
played an important part in the monitoring of the practical application of SPP. On
11 October 2016 the respondents appointed a reporter to examine and report on the appeal.
In January 2017 the reporter requested information on the relevance of a replacement LDP,
which was then being developed, and the weight to be attached to it in the context of any
potential prejudice which might be caused to it by the grant of permission for the
development. The parties were agreed that the emerging LDP was relevant, but disagreed
on the weight which might be attached to it. On 1 June 2017, the reporter recommended
refusal of the appeal.
The Report
[9] The report identified the principal issues in the appeal as being the impact on the
green belt, flooding and transportation. Other matters included economic benefits, enabling
development, infrastructure improvements, the emerging LDP, the historic environment
and visual impact. The report explained that the development would meet a number of SPP
objectives, which could be improved during the detailed design phase. These were local
and city wide economic benefits, including the provision of: construction and other local
jobs; affordable housing; businesses, both retail and leisure; easy access by road, public
Page 5 ⇓
5
transport and on foot; support for infrastructure; improvement in terms of flood prevention;
and the enhancement of green infrastructure.
[10] The report acknowledged (para 2.12) that there was a shortfall of 896 housing units
in the land which had been identified in the extant LDP as suitable for housing. That
requirement, minus completions, was for 4,536 units, giving an annual target of 504 to the
end of the 10 year plan period in 2024. The effect of this was that the LDP had identified an
effective supply of only 3.2 years. The LDP was thus deemed out of date. The reporter
reasoned that the development would “only address this shortage in part, as the
programmed delivery of the housing is mostly beyond the five years’ supply shortfall”.
This reasoning was based upon the development having a ten year programme. There were
several constraints to be overcome before the grant of permission in principle could result in
houses being built. These constraints, including drainage, road infrastructure, conditions
and legal agreements, could take more than a year to resolve. The appellants’ phasing
showed a maximum of 225 houses being built in the first four years and 350 within five.
Given the lead in time, the reporter determined that a maximum of 175 units would be built
within the five years and thus contribute to the elimination of the shortage. It could be
greater or lesser. In relation to the replacement of the deemed out of date LDP, the reporter
concluded that there was an “expectation” that it would “8.5 ... properly address the
shortfall before any housing is built on this site if the appeal is allowed”.
[11] The report noted that the development would be contrary to the existing LDP, which
sought to protect the green belt from development. There would be:
“8.6 ... a significant reduction in the separation of the settlements at Bridge of
Allan and Causewayhead, Stirling. This would be noticeably more pronounced by
the local topography and the isolation of the remaining section of green belt and its
effective suburbanisation as parkland.”
Page 6 ⇓
6
The conclusion section of the report continued:
“8.11 Taking all the issues into account... a judgement on the appeal comes down to
the weight to be given to the current development plan policy in relation to the green
belt, set against the expectations of SPP for sustainable development and providing a
housing land supply. The importance of the green belt in this location has been
highlighted ... and there is no doubt that many local people value the contribution
this site makes to the separation and retention of identity of the two communities of
Bridge of Allan and Causewayhead. At the same time, the proposal would make a
contribution to the shortfall in housing land supply, including affordable housing,
whilst providing for the infrastructure requirements it would generate. The proposal
would also contribute to sustainable development.”
[12] Given that a new LDP was in formation, the reporter considered that the grant of
permission would, in terms of SPP (para 34, supra):
“8.13 ... have a prejudicial effect on a central aspect of the emerging LDP, namely
the location of sufficient housing land for a five years’ effective supply and the extent
of the green belt ... [T]his is a relatively significant and contentious issue which
should be considered by LDP examination. ... it would be premature to grant
planning permission in principle.”
[13] The reporter continued:
“8.14 Weighing up the benefit of part of the scheme to housing land supply and the
benefits of the scheme in terms of local infrastructure against the total harm to the
green belt, ... the green belt in this location is of such sensitivity, that it carries
considerable weight. Housing should be planned for and provided in the context of
the new LDP. ... The SPP presumption in favour of the development is a significant
material consideration in this case, but, in the light of the scale of development
related to its impact on housing land supply shortfall, I do not consider that this is
sufficient to outweigh the development plan presumption against allowing the
appeal.”
The overall conclusion was that the development would be “8.15 ... contrary to the
development plan and that material considerations do not indicate that it should be
allowed”.
[14] The report was not, at that stage, disclosed to the parties.
Page 7 ⇓
7
The Respondents’ Decision
[15] After the report had been submitted, it ultimately became apparent to the reporters,
who had been appointed by the respondents to examine the emerging LDP, that, rather than
providing an effective five year supply of housing land, as the reporter in the appeal had
anticipated, it would produce a shortfall of 169 units. Homes for Scotland, who represent
many in the housebuilding industry, later contended that even this was out of date and the
shortfall could be as much as 897. When the new LDP was approved by Stirling Council in
May 2018, it confirmed the 169 shortfall.
[16] The respondents’ officials presented a submission on the appeal to the respondents
on 17 May 2018. The delay which had occurred by then was attributed to a previous
decision to await the adoption of the emerging LDP; the timing of which had “slipped”. The
LDP had been approved by the Council for adoption on 3 May 2018, although that would
not formally occur until October 2018. The submission drew the respondents’ attention to
the reporter’s acknowledgement that the emerging LDP ought to have identified sufficient
sites to resolve the then shortage according to the existing LDP of some 896 units. The new
LDP had, however, after the identification of an arithmetical error, produced the 169 unit
shortfall. The SPP presumption in favour of development was therefore a “significant
material consideration”. The submission went on to summarise the report by stating that
the reporter did not consider that the presumption, as a material consideration, or the
development’s benefits outweighed the LDP’s green belt policy.
[17] The submission continued:
“Conclusion
12. Taking all the issues into account, a judgement on the appeal comes down to
the weight to be given to development plan policy in relation to the greenbelt, set
Page 8 ⇓
8
against the expectations of SPP for sustainable development and providing a
housing land supply.
13. The reporter acknowledges that the proposal would in some ways contribute
to sustainable development and helping to meet the housing shortfall. However, the
proposal is also a major development at a strategic scale, would result in the loss of a
significant area of sensitive greenbelt and is considered contrary to the development
plan. The green belt provides an important gap between Causewayhead and Bridge
of Allan, preventing further coalescence of settlements. ... Overall, the appeal
reporter concluded that neither the contribution to the housing land supply nor the
benefits of the scheme in terms of sustainability or local infrastructure are sufficient
material considerations to outweigh the development plan particularly the harm to
the green belt in this sensitive location and further coalescence of settlements.
Recommendation
14. SPP requires that planning applications must be determined in accordance
with the development plan unless material considerations indicate otherwise. SPP
aims to achieve the right development in the right place, not to allow development at
any cost. We therefore agree with the reporter’s overall conclusions and
recommendation that the proposed development does not accord overall with the
relevant provisions of the development plan and that material considerations do not
indicate that the appeal should be allowed. We are satisfied that the site has recently
been assessed through examination, and was not considered suitable for housing.
The site remains as greenbelt in the emerging LDP2. We conclude that there are no
planning reasons for us to recommend a departure from the reporter’s
recommendation.
15. On balance it is recommended that you agree that the appeal is dismissed
and refuse to grant planning consent.”
[18] In a section entitled “Presentation” it was suggested that a press release should read,
inter alia:
“Having carefully considered the reporter’s report, [the respondents] agreed with the
reporter’s recommendation and have refused planning permission in principle. The
proposed development does not accord overall with the relevant provisions of the
development plan due to the loss of an important area of greenbelt and coalescence
of settlements ...”.
[19] The respondents’ decision, which was issued on 18 June 2018, dismissed the appeal
and refused planning permission. The decision letter simply stated that the respondents
accepted the reporter’s conclusions and recommendations and “adopt them for the purpose
Page 9 ⇓
9
of their own decision”. The letter gave no further reasons. It did not refer to the reporter’s
prior unrealised expectation that the new LDP would “properly address the shortfall before
any housing is built on this site if the appeal is allowed”.
Submissions
Appellants
[20] With the exception of their second ground of appeal, the appellants did not challenge
the content of the report to the respondents. Their criticisms were directed towards what
had happened after the report had been submitted. As at the date of their decision, the
respondents were bound to take into account all material considerations (1997 Act, s 25;
were (or ought reasonably to have been) aware of a material consideration at the time of
their decision, they were bound to take it into account (R (Kides) v South Cambridgeshire DC
[2003] 1 P&CR 19 at para 125). If they did not do so, and there was a real possibility that it
would have made a difference, the decision would be invalid (see eg Carroll v Scottish
Borders Council 2016 SC 377 at para [66]).
[21] The grounds of appeal were, first, that the respondents erred by failing to take into
account that the new LDP had been approved for adoption with the housing land supply
shortfall of 169 units; a position not anticipated by the reporter. The respondents failed to
take into account that the actual shortfall could be as much as 897 homes. The respondents
appeared to have taken account of the prejudice to the LDP process, as described by the
reporter, when that process had been almost complete and was no longer a relevant
consideration. The reporter had contemplated that the relevant material considerations,
including the development’s contribution towards sustainable development, indicated that
Page 10 ⇓
10
permission in principle could be granted. There was a real possibility that the respondents
would have reached a different conclusion if they had not left out of account a relevant
consideration and taken into account an irrelevant consideration. In that context, there was
a “tilted balance” in favour of development. What required to be assessed was whether the
adverse impact on the green belt “significantly and demonstrably” outweighed the benefits
of the development (SPP paras 33 and 125; Hopkins Homes v Communities Secretary [2017] 1
WLR 1865 at paras 54-59).
[22] In reaching his recommendation, the reporter had taken into account that, when the
new LDP was in place, there would be no shortfall. He had thought that the development
would have a limited impact on any shortfall. He had taken into account the prematurity of
the application, given the development of the new LDP. There was no indication that the
new LDP would remedy the shortfall within a reasonable time. The respondents’
contention, that the reporter’s reasoning had not proceeded on the basis that any shortfall
would be remedied, was incorrect. Whilst there was a shortfall, both at the time of the
report and the decision, the level of that shortfall was also material (Hallam Land Management
v Communities Secretary [2019] JPEL 63 at paras 47 and 51-52). Homes for Scotland had
advanced certain figures in that regard.
[23] The respondents accepted that they had been aware that the new LDP had produced
a shortfall. If so, they were bound to take it into account and, in terms of regulation 13 of the
2013 Regulations, to allow the appellants and the Council to make representations upon it.
If the respondents had taken the shortfall into account, which was unclear from their
adjusted answers, they failed to explain how they reached their decision, having regard to
the new LDP’s housing land supply shortfall of 169 homes.
Page 11 ⇓
11
[24] In terms of the second ground of appeal, the respondents erred in taking into
account the reporter’s finding that a maximum of only 175 units would contribute to the
reduction in the housing supply shortage. The evidence had been that the proposed
development would contribute 450 units in the first five years of development, or 350 if the
first year were discounted. The effectiveness of the proposed development to achieve that
rate had not been challenged. There was no evidence before the reporter to support his
conclusion that the appellants’ phased strategy showed a maximum of 225 units being built
in the first four years or that the maximum was 175. The reporter had not been entitled to
reach these conclusions on the evidence. There was a real possibility that the respondents
would have reached a different conclusion, if they had not taken into account the reporter’s
findings in this regard. Again, alternatively, the respondents had failed to give proper,
adequate and intelligent reasons in respect of the potential contribution to the housing land
supply shortfall.
Respondents
[25] The respondents maintained that paragraphs 33 and 125 of the SPP did not alter the
approach as set out in section 25 of the 1997 Act. The respondents had to decide the
application in accordance with the LDP, unless material considerations indicated otherwise.
The LDP had been deemed out of date at the time of both the report and the decision, thus
triggering the presumption in favour of sustainable development. The weight to be attached
to the presumption became a matter for planning judgment; balancing the presumption
against the impact on the green belt policy. The recommendation in the report had still been
valid at the time of the respondents’ decision. The reporter’s recommendation, that the
appeal should be refused, and the respondents’ subsequent decision had been determined
Page 12 ⇓
12
on the basis of a balancing exercise between the protection of the green belt on the one hand
and the expectations of SPP for sustainable development and housing land supply on the
other. They had not been determined on the basis of the new LDP. The new LDP’s
relevance was no more than as confirmation that the factual matrix remained the same, both
when the decision was made and when the report was submitted.
[26] The policies in the existing LDP did not all become out of date. It was still possible
to attach weight to them (Hopkins Homes v Communities Secretary (supra)). The extent of the
housing supply shortfall was not material. The reporter had recognised that the
development was on land designated as green belt in the existing LDP and not zoned for
housing in the proposed LDP. He had considered that the development in the green belt
would be contrary to the LDP. He had recognised that SPP was a significant material
consideration, in so far as it contributed to sustainable development and the maintenance of
a minimum five year housing supply. That notwithstanding, the protection of the green belt
outweighed the SPP. The respondents similarly determined the appeal on that basis. The
respondents knew, at the time of their decision, that the proposed LDP had been finalised
and contained the 169 shortfall.
[27] The relevance of the new LDP to the reporter had been in the context of prematurity.
It had not affected his balancing decision. The LDP had become irrelevant. That was a self-
evident matter of fact. There was no need for the respondents to add a postscript to deal
with it. The parties were assumed to have known what the outstanding issues were.
[28] Adequate and intelligible reasons had been given in the report and in the
respondents’ determination. The change from a surplus to a shortfall, which occurred in
relation to the examination of the new LDP after the reporter had issued his report, was not
Page 13 ⇓
13
a material consideration or new evidence requiring an opportunity for the appellants to
comment.
[29] Although the appellants had referred to a build rate of 450 units in the first five years
of the development, this had been under reference to a phasing strategy. This had indicated
a rate of 225 units in the first five years. There was accordingly evidence before the reporter
to support his conclusion. The reporter had been entitled to estimate a maximum of
175 houses, as contributing to the elimination of the housing supply shortage, taking into
account a lead time of more than a year to deal with matters subject to planning conditions
and the construction of the necessary infrastructure.
Decision
[30] The court is concerned only with the legal validity of the respondents’ decision and
not with matters of planning judgment. A decision will be regarded as invalid where the
decision maker has failed to take account of a relevant consideration or taken into account
an irrelevant one (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, LP
(Emslie) at 347-8). The respondents’ decision is contained exclusively in their letter of 18
June 2018, which adopted the reporter’s conclusions and recommendations simpliciter. The
questions then are, first, whether the material considerations, which were taken into account
by the reporter, and which had been so adopted, remained relevant at the time of the
decision and, secondly, whether there were material considerations, which had emerged
since the report, which were not taken into account by the respondents. If one or more of
the reporter’s material considerations had become irrelevant, but was still taken into account
by the respondents, or if a new material consideration had emerged which was not taken
into account by them, the decision would be invalid.
Page 14 ⇓
14
[31] The material considerations which the reporter took into account are expressed in
clear and unambiguous terms in the conclusions to his report. One critical factor was that
the reporter was proceeding (para 8.5) on the basis that the emerging LDP would “properly
address the shortfall” before any houses could ever be built on the development site. This
was a material consideration (“all the issues”) which the reporter then took into account
(para 8.11) when he conducted his analysis of the competing values of the green belt and the
SPP presumption in favour of sustainable development. A second factor, and one which
was undoubtedly material (para 8.13) in the reporter’s recommendation, was that the grant
of planning permission would have a prejudicial effect on the location of housing land,
which was sufficient to provide a five year supply, in the new LDP. However, the
significance of the new LDP was not just in the context of prematurity. The reporter had
considered (para 8.14) that what was a “significant and contentious issue”, that is the
conflict between an adequate housing land supply and the importance of the green belt,
ought to be considered in the context of the wider LDP examination, rather than in an
individual appeal. It is significant that, when he came to weigh the balance, the reporter
specifically commented (ibid) that: “Housing should be planned for and provided in the
context of the new LDP”. This view reflects SPP (para 34) that the grant of permission for a
substantial development undermines the planning process.
[32] In arriving at his conclusion, the existence of an ongoing LDP process, which the
reporter anticipated would satisfactorily address the housing land supply shortage, was a
material consideration not only on the prematurity point but also in his assessment of the
correct planning balance. Once that consideration had ceased to be part of the equation, it
was incumbent upon the decision maker to re-calibrate the balance and determine where the
scales came to rest in a situation in which not only had that consideration ceased to be
Page 15 ⇓
15
material but also a new LDP had produced a housing land supply shortage in respect of
which there was no apparent solution. This itself became a new material consideration. It
may be correct to say that there was a shortage both at the time of the report and the point of
the decision. The difference, and it was an important one to the reporter, was that at the
time of the report it was anticipated that the shortage would soon be resolved. At the time
of the decision, there was no resolution in sight.
[33] The respondents therefore failed to take into account a relevant material
consideration; that the LDP process had been practically completed and produced a housing
land supply shortage for which no solution was offered. They purported to take into
account an irrelevant consideration; that there was an ongoing LDP process which would
resolve the shortage in the relatively short term. For both of these reasons, the appeal must
be allowed.
[34] The respondents were bound to regard the change brought about by the approved
LDP as a material change in circumstances. Although it may not strictly fall within the
ambit of regulation 13 of the Town and Country Planning (Appeals) (Scotland) Regulations
2013, it would certainly have been within the spirit of that regulation to allow the parties to
address the significance of this change before making a decision. It was incumbent upon the
respondents to do so as a matter of fairness. When the matter falls to be reconsidered by the
respondents, it will be for them to determine how that is to be done in terms of procedure.
[35] The respondents’ wholescale adoption of the reporter’s reasoning betrays a
somewhat careless approach to decision making or at least the provision of adequate
reasons; since it adopts a ground for refusing permission (prematurity) which was, on any
view, no longer valid. It is not a sufficient explanation now to assert that the redundancy of
Page 16 ⇓
16
the reason would be obvious to the parties and therefore did not require to be dealt with at
all.
[36] The parties to the appeal are entitled to reasons for the decision which “leave them in
no real and substantial doubt as to what the reasons for it were and what were the material
considerations” (Wordie Property v Secretary of State for Scotland (supra) LP (Emslie) at 348,
the court, at para [226]). The respondents cannot be expected “to address, line by line, every
Reed at para [48]). They must, however, in this case address how they have approached the
“tilted” balancing exercise which the housing land shortage requires (SPP paras 33 and 125;
Gill at para 80). In particular, they must make it clear whether and how, in accordance with
SPP (paras 33 and 125), they regarded the shortage as a “significant material consideration”
(cf the conclusion and recommendation in the submission to the respondents and the
proposed press release) and the extent to which they regarded the green belt as
“significantly and demonstrably” outweighing or otherwise the benefits of the development.
[37] Two matters require to be addressed for completeness. First, the reporter, as a
specialist in planning matters, was entitled to reach a broad view, based upon his own skill
and experience as well as any specific material before him, on the annual build capacity of
the development site. Although the appellants had submitted that they could achieve a total
of 450 units in five years, they had produced a phasing strategy which had described a
maximum of 225 houses in those years. There was ample material before the reporter to
suggest that this was optimistic given the infrastructure constraints; especially those relating
to flooding, drainage and transport. The reporter was entitled as a matter for his judgment
Page 17 ⇓
17
to regard 175 units as a reasonable estimate for the level of contribution to the elimination of
the five year supply shortage. The second ground of appeal falls to be rejected.
[38] Secondly, the figure of 897 units estimated by Homes for Scotland was not one which
found its way as established fact into the new LDP. It did not become a material
consideration merely by being advanced by that organisation. There was no obligation for
the respondents to take account of a figure which had not been proved to be accurate.
[39] The appeal is allowed and the decision of 18 June 2018 is quashed.