Appeal Under Section 239 Of The Town And Country Planning (scotland) Act 1997 By The Trustees Of The Late Mrs Hilda Pilkington Against Decision Of A R
| Jurisdiction | Scotland |
| Judge | Lord Armstrong |
| Neutral Citation | [2013] CSOH 147 |
| Court | Court of Session |
| Published date | 03 September 2013 |
| Year | 2013 |
| Date | 03 September 2013 |
| Docket Number | XA146/12 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 147 | |
| XA146/12 | OPINION OF LORD ARMSTRONG in APPEAL under Section 239 of the Town and Country Planning (Scotland) Act 1997 by THE TRUSTEES OF THE LATE MRS HILDA JANE (or JOHANNA) CAROLINE PILKINGTON (otherwise MRS HILDA CAROLINE PILKINGTON) Appellants; Against a decision of a reporter appointed by the Scottish Ministers, dated 12 September 2012 ________________ |
Appellants: Martin QC, Turner; Pinsent Masons LLP
Respondents: Burnett; Scottish Government Legal Directorate
Interested Party: Findlay; Turcan Connell
3 September 2013
Introduction
[1] This is an appeal to the Inner House of the Court of Session, in terms of the Rules of the Court of Session, chapter 41, which, by interlocutor of the Inner House, dated 19 February 2013, was remitted to the Outer House for a hearing. The appeal is brought under the Town and Country Planning (Scotland) Act 1997, section 239, against a decision of a reporter appointed by the Scottish Ministers in relation to a planning appeal.
[2] The appellants are the developers. The respondents are the Scottish Ministers. The interested party comprises the trustees of the John Dewar Lamberkin Trust. The reporter's decision of 12 September 2012 ("the decision") which the appellants are now contesting refused an appeal by the appellants to the respondents against a decision of Perth and Kinross Council ("the planning authority"), dated 4 January 2012, to refuse planning permission in principle for a mixed-use development including the construction of 1,800 (latterly 1,500) houses, a school, leisure, retail and office facilities and associated development at land known as Almond Valley, adjacent to Huntingtower and Ruthvenfield, Perthshire ("the appeal site").
[3] Although the challenge to the decision is based on grounds of irrationality in various forms, it also raises the issue of the significance, if any, to be attached to an emerging local development plan ("LDP") as a material consideration in the context of planning decisions.
The history of the appeal site
[4] The Perth area local plan was adopted on 4 March 1996 and included the appeal site as a long-term development site. In the course of the future plan-making process, the Enterprise and Infrastructure Committee of Perth and Kinross Council, on 23 June 2004, decided not to include the appeal site within the draft proposed new local plan. In terms of the main issues report, published in September 2010, the appeal site was included but was not the planning authority's preferred option. It was not prioritised for short term development, but rather it was limited to 150 houses until 2024. Instead an alternative site at Perth West was prioritised for the development of 1,500 houses.
[5] By a report, dated 24 November 2011, it was recommended to the Development Control Committee of Perth and Kinross Council, which met on 7 December 2011, that there should be approval of the application to develop the appeal site on the basis that it was considered to comply with the development plan and that there was no other material consideration such as to justify a departure from it.
[6] Notwithstanding that, having considered the report, the planning authority refused the application, by decision dated 4 January 2012, on the basis that it did not fully comply with the development plan. In particular, the application was said to be contrary to Policy 1 of the Perth area local plan 1995 in that the area of the proposed site was larger than the area zoned as the relevant opportunity site in the local plan and contrary to Policy 2 in that the proposed site adjoined the village of Almondbank. In the event, by her decision dated 12 September 2012, the reporter found that the planning authority's concerns in relation to Policies 1 and 2 could have been addressed by the imposition of an appropriate planning condition, to which the appellants were agreeable, to limit the development of the proposed site. She found that had such a planning condition been put in place the application would have accorded with the development plan.
[7] At the time of the planning authority's decision, dated 4 January 2012, the appeal site, in addition to being an area allocated for housing in the development plan was also one allocated for housing in the emerging proposed LDP. A report by the Executive Director (Environment of Perth and Kinross Council), dated 21 December 2012, seeking approval of the proposed LDP, in which the appeal site was included within the proposed housing allocation, and of its publication for representations, was considered at a special council meeting of Perth and Kinross Council on 10 January 2012. At that meeting the council approved the proposed LDP but subject to an amendment to remove the land of the appeal site from the proposed housing allocation and instead to insert an employment site. Another site, Perth West, previously identified in the LDP main issues report as having a capacity comparable to that of the appeal site, was added back into the proposed LDP together with another site, Berthapark, both as long-term strategic sites for housing.
[8] The proposed LDP was published in January 2012 and, as a result of the council decision, did not include the appeal site within the proposed housing allocation.
Legal principles
[9] The parties were broadly in agreement as to the applicable law in relation to which I was referred to a number of well-known authorities to the following effect.
[10] In the consideration of an application for planning permission there is a presumption that the development plan will govern the decision unless there are material considerations which indicate that the provisions of the plan should not be followed. If the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan, it should be refused unless there are material considerations indicating that it should be granted. However, there remains flexibility in the system. Thus, where for example a particular policy in a development plan is seen to be outdated or superseded by more recent guidance and material considerations indicate that the development plan should not be followed, a decision contrary to its provisions can properly be made. In this context, the decision-maker must (i) identify the provisions of the development plan, (ii) make a proper interpretation of them, (iii) consider whether the proposed development accords with the development plan, (iv) identify all other material considerations which are relevant to the application and (v) having assessed the weight to be given to each, decide whether there are considerations of such weight that the development plan should not be accorded priority. How that exercise is carried out in practice is a matter for the decision-maker, acting within his power in the particular circumstances of each case (City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, per Lord Clyde at 43E-45F).
[11] Whether a matter is a material consideration is a question of law. The weight to be given to any material consideration is a question of planning judgment. Matters of planning judgment are the exclusive province of the local planning authority, or, in this case, the reporter. The court must be concerned only with the legality of the decision-making process and not with the merits of the decision (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, per Lord Hoffman at 780F-H).
[12] Although a reporter is required to have regard to all material considerations, he is not required, in stating his reasons for the decision made, to deal specifically with every material consideration. He must state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues (Bolton Metropolitan District Council and Others v Secretary of State for the Environment [1996] 71 P&CR 309, per Lord Lloyd at 313-4). Reasons given must be proper, adequate and intelligible and must deal with the substantial points raised (In re Poyser and Mills' Arbitration (1964) 2 QB 467). The informed reader should be left in no real and substantial doubt as to what the reasons for the decision were and what were the material considerations taken into account in reaching it (Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345, 348).
[13] A decision letter should not be judged by a needlessly exacting standard involving detailed textual analysis and criticisms. The reporter's decision does not require an elaborate philosophical exercise and nor does it require a consideration of every issue raised by the parties. So long as his reasons are intelligible and adequate, a reporter is entitled to express them concisely (Moray Council v Scottish Ministers 2006 SC 691, 699).
[14] In considering the adequacy of reasons given for a decision, it is necessary to take into account the nature of the decision, the context in which it is made, the purpose for which the reasons are provided and the context in which they are given. The adequacy of the reasons given should be considered on the basis that they are addressed to persons who are familiar with the background and issues (Uprichard v Scottish Ministers and Another [2013] UKSC 21 per Lord Reed at paragraphs 44 and 46).
[15] Whenever a planning decision is challenged on the ground of failure to give reasons, the question for the court is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. That will arise where the reasons raise a substantial doubt as to whether the decision was taken within the powers of the Act (Save Britain's Heritage v Number 1 Poultry Ltd and Others [1991] 1 WLR 153...
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