Aberdeenshire Council V. Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Nimmo Smith,Lord Philip,Lord Eassie |
| Judgment Date | 28 March 2008 |
| Neutral Citation | [2008] CSIH 28 |
| Published date | 31 March 2008 |
| Docket Number | XA36/06 |
| Court | Court of Session |
| Date | 28 March 2008 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Nimmo Smith Lord Philip Lord Eassie | [2008] CSIH 28 XA36/06 OPINION OF THE COURT delivered by LORD EASSIE in APPEAL under section 239 of the Town and Country Planning (Scotland) Act 1997 by ABERDEENSHIRE COUNCIL Appellants; against SCOTTISH MINISTERS Respondents: _______ |
Act: Thomson Q.C., Burnett, Shepherd & Wedderburn
Alt: Miss Poole, Scottish Government Legal Directorate
28 March 2008
Introductory
[1] This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 ("the Act") by a local planning authority against a decision of the reporter appointed to hear and determine an appeal to the Scottish Ministers under section 47 of the Act by an applicant for outline planning consent which had been refused by the present appellants. The application refused by the appellants was made by Osprey Homes Ltd. for outline planning permission for residential development on agricultural land situated in the vicinity of the village of Newburgh, Aberdeenshire lying on the north side of a road (B9000) known as School Road running westwards from Newburgh to the A90 trunk road and Oldmeldrum. The site extends to some three hectares and would enable the construction of approximately 50 houses. The reporter decided to uphold the appeal and to grant the application subject to certain conditions. As respects one of those conditions (Condition 13, on the provision of affordable housing) the appellants contend both that it is so lacking in precision and enforceability as to be invalid and also that it is not capable of being severed from the grant. However the principal thrust of the appellants' grounds of appeal are independent of that subsidiary contention.
[2] It is not in dispute that the proposed development is contrary to the development plan. Where an application is made to a planning authority for planning permission, section 37(2) of the Act provides that:
"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations."
Section 25 of the Act provides as follows:
"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."
The Development Plan
[3] The "development plan" comprises two elements, namely the relevant structure plan and any applicable local plan (cf. section 24 of the Act). At the time of the reporter's decision the relevant structure plan was one elaborated jointly by the appellants and Aberdeen City Council covering the areas of both local authorities and having, in addition to the formal title "Aberdeen & Aberdeenshire Structure Plan 2001-2016", the title "North East Scotland Together" ("NEST"). NEST was approved by Scottish Ministers on 21 December 2001 and was published in June 2002. The applicable local plan was the Gordon District Local Plan, which dated from 1989. However, at the time of the hearing of the appeal by the reporter (November 2005) the process of preparing a new local plan was well advanced and the report of an inquiry into the new "Finalised Aberdeenshire Local Plan" ("FALP") had recently been published.
[4] The application for planning permission was refused by the appellants on the ground that it represented an unplanned extension of the settlement of Newburgh into the countryside, which is protected from such development by certain specified policies set out in the development plan. Those policies were as follows:
(a) Policy 12 in NEST, which, subject to certain exceptions, provides that: "In countryside not designated as Green Belt there shall be a presumption against house building". The exceptions are not material in the present case. They relate essentially to very small scale operations such as the rehabilitation or replacement of an existing house and the like.
(b) Policy ENV2 of the Gordon District Local Plan, which provides: "Within the area defined as East Gordon countryside there will be a presumption against development. The only exceptions to this will be proposals which the District Council consider to be covered by one of the categories detailed in paragraphs (i)-(iv) below". None of these paragraphs has any relevance in the present case.
(c) Policy HOU\4 of FALP. This policy reflects NEST Policy 12 and is essentially directed to the exceptions to that policy.
[5] In addition to Policy 12, other provisions of NEST were referred to by counsel for the appellants. NEST contains in its first chapter inter alia a statement (page 9) of the "aims" of the structure plan which it is unnecessary to set out at length. It is sufficient to note that the aims are described (paragraph 1.13) as being methods by which the two local planning authorities intend to work towards realising the plan's "vision". In paragraph 1.15 it is stated that the plan's "vision and strategy" are firmly based on the concept of sustainability. Paragraph 1.17 states:
"This vision represents a radical change in the way the North East operates. It will not be achieved without new ways of thinking as well as acting, some of which it will take time to adjust to."
Counsel went on to refer to what are described as the core strategic land use objectives and locational objectives catalogued on page 12 of NEST, particularly objectives 1 and 7 which, so far as relevant, are in these terms:
"Core Strategic Land Use Objectives
Objective 1 To create a long-term sustainable framework of settlements in a hierarchy, which focuses major development on the main settlements in the North East. The roles of each type of settlement and area are set out in more detail in Table 1 and the Strategic Diagram (Figure 1)
..............
Locational Objectives
Objective 7 To secure a choice of location for a viable supply and adequate variety of land for housing (including affordable housing), employment, services and open space, which:
· relates development to each settlement's ability to accommodate it without loss of amenity or identity;
· ensures that the particular use or uses proposed for each site will maximise the overall sustainability of the community;
· gives preference to use and re-use of sites within existing settlements;
· ............
· relates the density of development, when considered with adjoining land uses, to its proximity to services and the transport network;
· ............"
[6] Counsel also referred to some of the text respecting these objectives. Paragraphs 1.33 to 1.35 state:
"1.33 The most critical resources affected directly by the planning system are land, energy and fuel, our use of which dictates our effect on the rest of the community, economy and environment. The main thrust of the strategy is therefore to concentrate on reducing waste in these resources and ensuring that, where they are used, they are used to their maximum potential. Thus the core objectives are to focus future development on existing settlements, and to reduce both the need to travel and the environmental cost of travelling.
1.34 This leads in turn to the concept of 'connecting communities'. By this, we mean the integration of employment, housing and services in a hierarchy of settlements ranging in scale from Aberdeen down to the smallest settlement which has at least some services, in such a way that viable services are available in the most effective way to all.
1.35 It also means that the settlement hierarchy is defined by location in the development corridors which are related to the long-term planned expansion of an integrated transport network. In essence the resulting strategy focuses future development on the main settlements, although other proposals that support local communities will also be accommodated by opportunities identified in local plans."
Reference was also made to paragraph 1.44 which explains the term "key centres". It reads:
"1.44 All the main Aberdeenshire settlements are located at important positions on the transport network. Those in prime positions on the network have been identified as key centres. Their main role is as centres of the rural industries and in providing sites and premises for new business to grow, but they will also be promoted to provide a focus for many of the same activities as in Aberdeen ...."
Attention was then drawn to paragraphs 1.47 and 1.48 which read as follows:
"1.47 However, the corollary to the need to focus development on the main settlements is that housing should not generally be dispersed across the remaining countryside. This is to ensure not only that housing is located close to where most jobs and services are (to limit the need for travel, to help maintain the viability of the remaining rural services, and to minimise unnecessary costs in providing public services), but also to maintain as much as possible of the natural resources of the countryside.
1.48 The intention is to give a general welcome to economic initiatives in the countryside, in particular providing opportunities for small-scale and start-up businesses, but to steer new small-scale housing development to those villages that retain viable services, or to where housing is associated specifically with places of work ..."
Among the other passages to which our attention was brought is paragraph 1.59 which reads:
"1.59 To create a more sustainable way of life, there will be a stronger emphasis in future on regenerating existing sites within the urban fabric, rather than bringing forward peripheral greenfield or even rural brownfield sites, which are often less accessible by public transport and less well connected with necessary services. This will be particularly important in Aberdeen where most of the appropriate brownfield opportunities exist. Preferred sites will cater for a mixture of uses,...
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