Sally Carroll Against Scottish Borders Council And Another Against A Decision Of A Local Review Body Of Scottish Borders Council Dated 21 March 2013

JurisdictionScotland
JudgeLady Smith,Lady Clark Of Calton,Lord Menzies
Judgment Date07 October 2015
Neutral Citation[2015] CSIH 73
CourtCourt of Session
Date07 October 2015
Published date07 October 2015
Docket NumberXA52/13

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 73

XA52/13

Lord Menzies

Lady Smith

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD MENZIES

in the cause

SALLY CARROLL

Appellant and reclaimer;

against

SCOTTISH BORDERS COUNCIL

Respondents:

and

THE FIRM OF SR FINDLAY

Interested party

against a decision of a Local Review Body of Scottish Borders Council dated 21 March 2013

Appellant and reclaimer: Poole QC, Irving; Kennedys

Respondents: Burnet; bto

Interested party; Martin QC, Van der Westhuizen; CMS Cameron McKenna LLP

Lord Advocate; Wilson QC; Scottish Government Legal Directorate

7 October 2015

Introduction
[1] The interested party wishes to erect two wind turbines together with ancillary equipment on land south west of Neuk Farm, Cockburnspath. The turbines will be 110 metres high to blade tip. The site is in coastal farmland proximate to a coastal margin which is considered to be highly sensitive. It is within two kilometres of the Berwickshire Coast Special Landscape Area, four kilometres of the Lammermuir Hills Special Landscape Area, one kilometre of the Dunglass historic garden, two kilometres of the Southern Upland Way, and is close to the two conservation areas of Oldhamstocks and Cockburnspath and the Berwickshire Coastal Path.

[2] Planning permission for the erection of wind turbines on this site was refused on 15 September 2010, and was refused again by a Local Review Body (“LRB”) of the respondents on 7 March 2011 on the basis that the proposal was contrary to the Development Plan. The interested party resubmitted the application for planning permission, and on 2 October 2012 the respondents’ planning officer refused the application, again on the basis that it was contrary to the Development Plan. The interested party sought review of this decision, and on 21 March 2013 an LRB of the respondents concluded that the development was consistent with the Development Plan and granted planning permission for the development, subject to conditions.

[3] The appellant resides in Cockburnspath and objected to the grant of planning permission. She is aggrieved by the decision of the LRB dated 21 March 2013. She appealed to the Court of Session on the basis that the decision was not within the powers of the Town and Country Planning (Scotland) Act 1997 (“the 1997 Act”) and that the relevant requirements of that Act have not been complied with. On 12 July 2013 the court granted the appellant’s motion to remit the appeal to the Outer House to be heard by the Lord Ordinary in the first instance. On the same day the court made a Protective Expenses Order in favour of the appellant and suspended ad interim the grant of planning permission. Having heard the appeal, on 17 January 2014 the Lord Ordinary held that the decision of the LRB dated 21 March 2013 was within the powers of the 1997 Act, and refused the appeal. It is against that decision that the reclaimer reclaims to this court.

[4] We were told that this is the first case in which a decision of an LRB has been challenged in this court. Accordingly it may be helpful to set out to the salient provisions of the statutory regime which was introduced by the Planning etc (Scotland) Act 2006 (“the 2006 Act”), together with the relevant regulations and EU directive.

The relevant legislative provisions
The Town and Country Planning (Scotland) Act 1997 (as amended)

43A Local developments: schemes of delegation

(1) A planning authority are –

(a) as soon as practicable after the coming into force of section 17 of the Planning etc (Scotland) Act 2006 … to prepare a scheme (to be known as a ‘scheme of delegation’) by which any application for planning permission for a development within the category of local developments or any application for consent, agreement or approval required by a condition imposed on a grant of planning permission for a development within that category is to be determined by a person appointed by them for the purposes of this section instead of by them, and

(b) to keep under review the scheme so prepared.

(8) Where a person so appointed –

(a) refuses an application for planning permission or for consent, agreement or approval,

(b) grants it subject to conditions, or

(c) has not determined it within such period as may be prescribed by regulations or a development order [or within such extended period as may at any time be agreed upon in writing between the applicant and the person so appointed],

the applicant may require the planning authority to review the case.

(10) Regulations or a development order may make provision as to the form and procedures of any review conducted by virtue of subsection (8).

(11) Without prejudice to the generality of subsection (10), the regulations or order may –

(a) make different provision for different cases or classes of case,

(b) make different provision for different stages of a case,

(c) make provision in relation to oral or written submissions and to documents in support of such submissions,

(d) make provision in relation to time limits (including a time limit for requiring the review), and

(e) require the planning authority to give to the person who has required the review such notice as may be prescribed by the regulations or the order as to the manner in which that review has been dealt with.

(12) Any notice given by virtue of paragraph (e) of subsection (11) –

(a) is to include a statement of –

(i) the terms in which the planning authority have decided the case reviewed, and

(ii) the reasons on which the authority based that decision, and

(b) may include such other information as may be prescribed by the regulations or the order.

(13) The provision which may be made by virtue of subsections (10) and (11) includes provision as to –

(a) the making of oral submissions, or as to any failure to make such submissions or to lodge documents in support of such submissions, or

(b) the lodging of, or as to any failure to lodge, written submissions or documents in support of such submissions,

and, subject to section 43B, as to what matters may be raised in the course of the review.

(14) The provision which may be made by virtue of subsections (10) and (11) includes provision that the manner in which the review, or any stage of the review, is to be conducted (as for example whether oral submissions are to be made or written submissions lodged) is to be at the discretion of the planning authority.

(15) The planning authority may uphold, reverse or vary a determination reviewed by them by virtue of subsection (8)

43B Matters which may be raised in a review under section 43A(8)

(1) In a review under section 43A(8), a party to the proceedings is not to raise any matter which was not before the appointed person at the time the determination reviewed was made unless that party can demonstrate –

(a) that the matter could not have been raised before that time, or

(b) that its not being raised before that time was a consequence of exceptional circumstances

(2) Nothing in subsection (1) affects any requirement or entitlement to have regard to –

(a) the provisions of the development plan, or

(b) any other material consideration.

239. – Proceedings for questioning the validity of other orders, decisions and directions.

(1) If any person –

(a) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds –

(i) that the order is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that order.

he may make an application to the Court of Session under this section.”


The Town and Country Planning (Schemes of Delegation and Local Review Procedure) (Scotland) Regulations 2008

Interpretation

2. In these Regulations –

‘review documents’ means notice of the decision in respect of the application to which the review relates, the Report on Handling and any documents referred to in that Report, the notice of review given in accordance with regulation 9, all documents accompanying the notice of review in accordance with regulation 9(4) and any representations or comments made under regulation 10(4) or (6) in relation to the review;

Determination without further procedure

12. Where the local review body consider that the review documents provide sufficient information to enable them to determine the review, they may determine the review without further procedure.

Decision as to procedure to be followed

13.–(1) Where the local review body do not determine the review without further procedure, the local review body may determine the manner in which the review is to be conducted and are to do so in accordance with this regulation.

(2) The local review body may determine at any stage of the review that further representations should be made or further information should be provided to enable them to determine the review.

(3) Where the local review body so determine, the review or a stage of the review is to be conducted by one of or by a combination of the procedures mentioned in paragraph (4).

(4) The procedures are –

(a) by means of written submissions;

(b) by the holding of one or more hearing sessions; and

(c) by means of an inspection of the land to which the review relates.


Decision Notice

21.–(1) The local review body must –

(a) give notice (‘a decision notice’) of their decision to the applicant; and

(b) notify every person who has made (and not subsequently withdrawn) representations in respect of the review that a decision on the review has been made and where a copy of the decision notice is available for inspection.

(2) A decision notice must, in addition to the matters required by section 43A(12)(a) of the Act –

(a) in the case of an application for planning permission –

(i) include the reference number of the...

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