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APPEAL BY ROBERT BRUCE AGAINST MORAY COUNCIL [2023] ScotCS CSIH_11 (21 February 2023)
URL: http://www.bailii.org/scot/cases/ScotCS/2023/2023_CSIH_11.html
Cite as:
2023 SCLR 261,
2023 GWD 7-81,
[2023] CSIH 11,
2023 SLT 450,
2023 SC 197,
[2023] ScotCS CSIH_11
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2023] CSIH 11
XA1/22
Lord President
Lord Woolman
Lord Pentland
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the appeal under section 239 of the Town and Country Planning (Scotland) Act 1997
by
ROBERT BRUCE
Appellant
against
MORAY COUNCIL
Respondents
______________
Appellant: S Blair; Drummond Miller LLP (for LSA Brown, Glasgow)
Respondents: Dunlop; DWF LLP
21 February 2023
Introduction
[1]
This appeal concerns the use of land on and around the former Portessie railway
station to the east of Buckie. The Save Slochy Woodlands campaign group aims to protect
this land from residential development; principally on the ground that it contains a thriving
2
ecosystem. The group wishes to preserve the land's status as part of the Buckie ENV5 Green
Corridor. The group mainly consists of residents in the local area. Some live in the
immediate vicinity, while others, including the appellant, live in Buckie itself or beyond.
The appellant is on the group's management committee.
[2]
The Moray Local Review Body granted planning permission for the development of
seven four-bedroom detached houses on the land. The appellant, who pursues the appeal as
an individual rather than as part of the campaign group, contends that the MLRB's decision
should be quashed as unlawful.
Moray Local Development Plan 2020
[3]
Moray Council published a proposed Local Development Plan in 2019. This updated
the 2015 version. Unresolved objections to the proposals were examined by a reporter
appointed by the Scottish Ministers. Following receipt of her recommendations, Moray
Council modified the LDP and formally adopted it on 27 July 2020.
[4]
Although a number of LDP policies are said to be relevant to the proposed
development, this appeal is concerned with only one; Policy EP5. It outlines the principles
applicable to open space and provides that:
"Development which would result in a change of use of a site identified under the
ENV designation in settlement statements ... to anything other than open space will
be refused ...
The only exceptions are where the proposal is for essential community infrastructure
required to deliver the key objectives of the Council ..., excluding housing, or for a
site specific opportunity identified within the settlement statement ...".
3
[5]
One of the designations is ENV5: "Green Corridors". Appendix 1 to the
Supplementary Guidance on Open Space Strategy 2018 provides a definition of each ENV
category. Green corridors are described as:
"Routes including ... old railway lines, linking different areas within a town or city
as part of a designated and managed network and used for walking, cycling or horse
riding, or linking towns and cities to their surrounding countryside or country parks.
These may link green spaces together."
[6]
One such ENV5 green corridor, in terms of Buckie's Settlement Statement, is
Portessie Station/Cycle Path. In the 2019 proposed LDP, a section of the corridor, to the
south-east of Station Road and including the cycle path on its northern border, was re-
designated for housing. The site was shown in orange as R10 on the 2019 settlement map as
follows:
[7]
A more detailed view of the site in the proposed LDP showed R10 as a 0.59 acre site
on the former station, which was said to be an opportunity for low density housing
development of five units. Any proposal would require to preserve the existing cycle path,
which runs along the disused railway line and forms part of the National Cycle Path
4
Network. Landscaping was to be provided on the southern boundary. Morlich Homes duly
applied for permission to build seven houses.
[8]
Meantime, a member of the public objected to the designation of the site for housing.
The Scottish Ministers appointed a reporter to look into this and other issues in dispute. She
visited the site, which she described as "mostly ... covered in shrub and ... boggy" and with
no important habitat. However, she determined as follows. The site formed an effective
screen between the built-up edge of Portessie and the open countryside. It provided
Portessie with a valuable landscape setting. Development of the site would breach the
natural limit of the village. A precedent would be set. The site's removal from the LDP as
suitable for housing would not impact on the overall supply of housing within the Buckie
Housing Market Area.
[9]
The reporter recommended a modification to the final version of the LDP reinstating
the site's green corridor (ENV5) designation. That is what occurred. Site R10 was removed
from the settlement map which now appears as ENV land as follows:
5
The Council must have accepted the recommended modification (see below). Its earlier
decision to release this site for housing was thus reversed.
The Planning Decisions
[10]
Morlich Homes' application had been made prior to the adoption of the 2020 LDP.
Its determination occurred after that adoption. The Council's planning officer noted five
objections and seven letters of support. The objections included concerns about the impact
of the development on the natural environment and the usefulness of the cycle way. The
officer recommended that planning permission be refused. He observed that the site
comprised "a small portion" of the larger Buckie ENV5 green corridor. It was a dense
thicket of bushes. He assessed the application on the basis of the adopted LDP; the site
being in an ENV5 area and not the previous R10 housing designation. On that basis the
development was contrary to EP5. That policy was very clear that housing with an ENV
designation was not acceptable and there was no justification for a departure from the
policy. The application was determined under the Council's Scheme of Delegation (ie by an
appointed officer; Town and Country Planning (Scotland) Act 1997, s 43A). On 2 December
2020 planning permission was refused.
[11]
Morlich Homes requested a review of the refusal by the Council's Local Review
Body (1997 Act, s 43A(8)). At a meeting on 25 November 2021, the MLRB considered the
proposal and reversed the earlier decision. It granted planning permission, subject to
conditions. A transcript of the MLRB hearing reveals that one councillor expressed some
exasperation that the site had been designated ENV5 after the Council had "advertised" it
for housing. The reporter's reasoning was explained by a planning officer. The councillor
6
disagreed with that reasoning; stating that "We are screaming out for houses here" and it
would "even help the ... primary school roll". The development would generate three more
pupils, albeit in the context of an already stable school roll five-year forecast. Another
councillor regarded the site as brown field; describing the station ruins. The Council's legal
adviser explained that the MLRB had to determine the review in accordance with ENV5 and
not on the basis that some councillors did not agree with that designation. There required to
be strong planning reasons to justify overturning a designation in a newly adopted LDP.
The only ground for upholding the appeal would be if the MLRB considered that the
development was "an acceptable departure" from LDP policy. In the adviser's view, the
reasons advanced by those in favour of the development, namely community benefit in
terms of housing and increase in the school roll, were weak.
[12]
Those in favour of the development continued to argue that it would bring more
community benefit than would be gained by leaving the site as "scrubland". The land had
been correctly designated for housing in the original proposed LDP. The legal adviser
stated that there was no policy support for the position that this was an acceptable
departure. The question became whether there were material considerations of sufficient
weight to justify a departure from the development plan.
[13]
The MLRB upheld the review by five votes to three. In the decision notice of
25 November 2021 it stated that:
"the application is ... an acceptable departure from [policy] ... EP5 ... based on
community benefit in terms of housing and the school roll".
Submissions
Appellant
7
[14]
The appellant's primary ground of challenge was inadequacy of reasons; the MLRB
having failed to explain why it had departed from the view of its planning officer (R (Bates)
real and substantial doubt as to what the reasons were (Wordie Property Co v Secretary of State
for Scotland 1984 SLT 345 at 348). Multiple interlocked policies were in play and pointed to
refusal. It was unclear how the MLRB had balanced these against the merits of the
application. Housing had been used in support of the departure, but that was expressly
excluded in EP5. No evidence had been identified in support of any benefit to the
community in terms of: (i) the need for housing; or (ii) the increase in the school roll.
[15]
The decision to grant permission was unreasonable. EP5 said that housing on land
with an environmental designation was not acceptable. The addition of three pupils to the
school roll was not a strong countervailing benefit. Where there was a departure from an
LDP, the decision-maker must: (i) identify the provisions of the development plan; (ii)
properly interpret them; (iii) consider whether the proposed development accorded with the
LDP; (iv) identify all other material considerations; and (v) decide whether there are
considerations of such weight that the development plan should not be accorded priority
(City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 at 44-45).
[16]
The MLRB misdirected themselves by considering whether the site had been
correctly designated as an ENV5 green corridor. Section 25 of the 1997 Act required
planning decisions to be taken in accordance with that designation, unless material
considerations indicated otherwise. Disagreement with the designation of a site was not a
material consideration.
8
[17]
The appellant was an aggrieved person in terms of section 239 of the 1997 Act. He
was a member of the campaign group. He lived in Buckie. Incapacity had prevented him
from using the woods in recent times, but he intended to do so in the future. He had only
become aware of the controversy in May 2021. Reference was made to Walton v Scottish
Ministers 2013 SC (UKSC) 67 (at paras 89-93); and 152; R (CPRE Kent) v Dover District Council
Council
[18]
The appellant was not an aggrieved person. He had not made any representations to
the Council about the development. He lived two miles from the site. He was not pursuing
the appeal on behalf of his group and had been selected because of his eligibility for legal
aid.
[19]
Detailed enquiry into the balancing exercise, the weight to be attached to policies and
the material considerations was unnecessary. It was sufficient for reasons to be brief and to
address the main determining issue, namely whether there were material considerations
justifying a departure from the LDP. The material considerations were the need for housing
and the contribution to the school roll.
[20]
What constituted a material consideration was a matter of law. Material
considerations were not defined. They required to be planning considerations. The weight
to be attached to them was a matter of planning judgement. Housing supply needs and
contribution to a school roll were material considerations. The MLRB were entitled to
conclude that they justified a departure from the LDP policies.
[21]
The MLRB properly directed themselves in terms of the designation of the site as
ENV5 land and recognised the reporter's findings. The fact that one councillor had
9
disagreed with the designation only reinforced that he understood it. That there was a
proper understanding of the site's designation was reinforced by the MLRB's finding that
there were material considerations justifying departure from the terms of EP5.
Decision
[22]
The appeal draws into sharp focus the roles of all those involved in the planning
process. The underlying principle is that national and local planning policy is a
participative and democratic exercise. At a local level, the planning authority, namely the
Council, will draw up a proposed local development plan which ought to reflect the views
of the community as represented democratically through the councillors. One of their, and
the community's, concerns will be the sustainability of the towns and villages in the Council
area. In 2019, the Council agreed that a modest expansion of Buckie at Portessie was
desirable and could be accommodated in what some regarded as the derelict, station site.
In terms of the proposed LDP, safeguards to maintain the cycleway and the landscape
setting of the village were regarded as necessary. On the face of things, Morlich Homes'
seven house development would have met the criteria set out for the site in the Settlement
Statement: "R10 Site at Station Road, Portessie".
[23]
At a national level, and in accordance with the structure of the planning process as
set out in the Town and County Planning (Scotland) Act 1997, the Scottish Ministers
required to appoint a reporter to examine any unresolved objections to the proposed LDP
taken by one or more persons. The reporter would be expected to have a sound awareness of
the relationship between local and national planning policy. Contrary to the views of the
campaign group, the reporter on the LDP did not consider there to be any significant habitat
10
on site; rather it was boggy, shrub covered land. Her reason for recommending removal of
the housing designation was that the site provided an effective screen between Portessie and
the countryside; thus creating a landscape setting. The reporter considered that the site was
outwith the "natural limit" of the village. This is an approach which will be familiar to town
planners in relation to the preservation of the settings of individual towns and villages. In
effect, the reporter did not consider that, in planning terms, the village should expand
eastwards, beyond Station Road, notwithstanding that, until 1968, there was already
expansion beyond any natural limit in the form of a railway station and associated buildings
and sidings.
[24]
It is clear from the minutes of the MLRB that some councillors considered that the
reporter's view was misconceived in that it failed to take sufficient account of local issues
and priorities. Herein lay the problem in terms of the structure of planning law. The 1997
Act provides that, once a planning authority receives a report on a proposed LDP, which
recommends a modification (as here), it is bound to incorporate that modification in the LDP
except in certain defined circumstances. These are set out in the aptly named Town and
Country Planning (Grounds for Declining to Follow Recommendations) (Scotland)
Regulations 2009. For present purposes, the only relevant ground is that:
"the recommendation in respect of the modification is based on conclusions that the
[reporter] could not reasonably have reached based on the evidence ...". (reg 2)
[25]
The Council could have decided that the reporter's conclusion was unreasonable,
declined to follow it and intimated that decision to the Scottish Ministers. The Ministers
would then have had to consider whether to issue a direction that the proposed LDP should
be modified. No such intimation appears to have been given. The plan as modified having
11
been adopted, the Council, including the MLRB, were therefore bound by its terms. The
result is that the site is undoubtedly within an ENV5 designation. In terms of EP5, a change
of use from open space to residential could only be permitted if the proposal was for
essential community infrastructure (excluding housing), or was on a site identified in the
settlement agreement. It was not suggested that either exception was applicable.
[26]
That left section 25 of the 1997 Act, which permits a departure from the development
plan only if "material considerations" so indicate. This was, in essence, the task which the
Council's legal advisor had set for the MLRB. She explained that there had to be a sound
planning reason, in the form of a material consideration, to justify circumventing a
designation in a newly adopted LDP. In examining this issue, it is worth repeating that the
court is not concerned with the planning merits of the MLRB's decision. Its remit is to
consider only its legality.
[27]
Three issues can be disposed of with alacrity. First, an issue, which had been raised
in the appeal about the apparent bias of a councillor, who was present at the MLRB hearing,
was not insisted upon. It need not be considered further.
[28]
Secondly, the Council's contention that the appellant was not an aggrieved person
falls to be rejected. The court does not have a detailed account of the nature and timing of
the campaign group's objections, but it is evident that there were objections by at least five
persons, which the planning officer recorded at the time of the Council's initial
consideration of the development. These included complaints upon environmental, rather
than purely planning, grounds. These objections were presumably all before the MLRB.
[29]
As a generality, for a person to be aggrieved, he or she ought to have played a part in
the process which led to the decision about which a complaint has been made (Walton v
12
Scottish Ministers 2013 SC (UKSC) 67, Lord Reed at para 86); at least unless prevented from
doing so. Strictly, the appellant may not meet this test. He is, however, a member of a
campaign group whose existence is solely concerned with stopping the development and
who had objected timeously. He has "demonstrated a genuine concern about what he
contends is an illegality in the grant of consent" (ibid para 88). The issue, with which the
appeal is concerned, does not involve a person's use of the site for recreation or other
purposes. It is not about environmental impact. The purpose of the reporter's decision was
to preserve the landscape setting of Portessie, not to protect its value for individual users,
whether human, flora or fauna. The appellant raises issues which concern the legality of the
MLRB's decision. He has participated in the process through the campaign group and has a
sufficient local connection to establish that he is an aggrieved person in terms of section 239
of the 1997 Act.
[30]
Thirdly, the reasons given by the MLRB are sufficient to meet the test of being proper
and adequate. It is correct to say that, when one planning decision-maker differs from an
earlier decision-maker, he must "grasp the intellectual nettle of the disagreement" (see
Dunster Properties v First Secretary of State [2007] 2 P&CR 26, [2007] EWCA Civ 236 (Lloyd LJ at para 23, cited by
is rather different here where the MLRB were, as their name suggests, reviewing a decision
taken by an appointed planning officer under delegated authority. The process is essentially
one of appeal.
[31]
The relevant reasons are those in the decision notice of 25 November 2021 and not
any comments made during the course of the debate at the MLRB hearing. The notice leaves
the informed reader and the court in no real and substantial doubt about what the reasons
13
for it were and what were the material considerations taken into account (Wordie Property Co
v Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 348). Although the contents of
the transcription of the MLRB hearing do not form part of the reasons, the knowledge of the
informed reader can be gleaned from the transcript and the other background material, in
particular the proposed LDP, the report on the modification and the adopted LDP. There is
no difficulty in understanding that the MLRB decided that the development was an
acceptable departure from LDP policies because of community benefit in terms of housing
and the school roll.
[32]
Concision of reasoning should seldom be a subject of criticism if it meets the Wordie
test (NLEI v Scottish Ministers [2022] CSIH 39, LP (Carloway), delivering the opinion of the
court, at para [54]). Nothing which is said about the process of reasoning in City of
Edinburgh v Secretary of State for Scotland 1998 SC (HL) 33 (Lord Clyde at 44-45) suggests that
there requires to be a detailed philosophical elaboration of that process in the final statement
of reasons in support of a planning decision. Provided that reasons are intelligible and
adequate, they may be expressed in a concise form. This is especially appropriate where
those affected by the decision are aware of the issues involved and the arguments which
have been advanced (Moray Council v Scottish Ministers 2006 SC 691, LJC (Gill) at paras [30]
and [31], citing South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953, Lord Brown at
para 36). Whether the reasons constitute material considerations is another matter.
[33]
The words used in the decision notice are "acceptable departure". It is not
immediately clear whether there were material considerations which "indicate[d]
otherwise" in terms of section 25 of the 1997 Act. However, having regard to what was said
by the legal adviser at the MLRB hearing, the court will proceed on the basis that that is
14
what was intended. The Council accepted that there had been no attempt at the hearing to
bring the proposed development within the express exceptions in EP5.
[34]
The reasons are encapsulated as "community benefit"; there being two aspects to
that, namely housing and school roll. These two aspects are expressed as cumulative. If one
is wrong, the conclusion on benefit overall must be an error. The evidence before the MLRB
was that the school roll would be increased by three pupils. It was not disputed that the roll
was 117 pupils spread over the six primary school years. The MLRB were advised that the
school roll would be steady for the next five years without the development. Such a small
increase cannot be characterised as a "material" consideration sufficient to contribute to a
departure from the general principle that planning decisions ought to be made in terms of
the development plan.
[35]
"Housing" poses a problem of a different nature. At least one councillor said that
the local community was "screaming" for housing. He was entitled to express that view, but
the reporter had found that the removal of this small site would not have an impact on the
overall supply of housing in the Buckie Housing Market Area. That is not surprising given
the numbers involved.
[36]
More importantly, EP5 specifically excludes housing is as an exception to the general
rule. The court drew parties' attention to the dictum in Aberdeenshire Council v Scottish
Ministers 2008 SC 485 (Lord Eassie, delivering the opinion of an Extra Division, at para [40])
which the court endorses. This is that:
"a material consideration such as to override the presumption, or enhanced status,
given to the development plan by section 25 of the Act must normally be external to
the factors included in the overall ponderation (sic, ie consideration) of matters in the
elaboration of the development plan policy. In essence, were the decision-taker
entitled to effect a personal selection of a factor ... in that overall ponderation while
ignoring others and treat that selection as the basis for a `material consideration'
15
which elided the responsibility placed upon him by section 25 of the Act, the
provisions of section 25 would be much weakened, if not emasculated, and would be
in effect little more than a mere statutory exhortation."
[37]
In this case, "housing" cannot be a material consideration given that: (i) it has been
specifically excluded as a sufficient reason in EP5 itself; and (ii) it had already been taken
into account by the reporter in recommending the exclusion of the site from those areas
considered suitable for development and by the Council in adopting that modification.
[38]
For these reasons the decision of the MLRB: constitutes an error of law; is therefore
ultra vires the 1997 Act; and must be quashed. In so determining, the court emphasises again
that it is making a decision about the legality of the MLRB decision. It is not expressing any
view about whether there may be material considerations which would justify a departure
from EP5 in relation to what is a relatively small site on the ENV5 green corridor.
