Fsh Airport (edinburgh) Services Limited V. City Of Edinburgh Council
| Jurisdiction | Scotland |
| Judge | Lord Macphail |
| Neutral Citation | [2007] CSOH 193 |
| Court | Court of Session |
| Docket Number | XA121/06 |
| Published date | 06 December 2007 |
| Date | 06 December 2007 |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 193 | |
| XA121/06 | OPINION OF LORD MACPHAIL In application under The Town and Country Planning (Scotland)Act 1997, Section 238 By FSH AIRPORT (EDINBURGH) SERVICES LIMITED Applicants: Against CITY OF EDINBURGH COUNCIL Respondents: ________________ |
Applicants: Dean of Faculty (Martin, Q.C), J. Mure; Biggart Baillie
Respondents: D. Armstrong Q.C., Burnet; Solicitor for City of Edinburgh Council
6 December 2007
Introduction
[1] This is an application under section 238 of the Town and Country Planning (Scotland) Act 1997 ("the Act"). The applicants, who own a site near Edinburgh Airport, lodged an objection to the finalised Rural West Edinburgh Local Plan ("the Plan") prepared by the respondents, who are the relevant planning authority. The applicants objected to the Plan's designation of their site as an area of importance for flood control for the purposes of Policy E45, a policy in the Plan as to flooding. Two reporters heard evidence at a public inquiry and recommended that that designation should be deleted from the Plan. The respondents, however, decided not to accept that recommendation and to adopt the Plan. The applicants now challenge that decision on two grounds. They contend, first, that the decision is ultra vires and, secondly, that their interests have been substantially prejudiced by the respondents' failure to comply with the statutory requirement to give reasons for their decision. The applicants submit, accordingly, that the Plan should be quashed in part by the deletion of the site from the area designated on the proposals map in the Plan as being an area of importance for flood control for the purposes of Policy E45.
Statutory provisions
[2] The Act provides for the preparation of local plans, the holding of an inquiry for the purpose of considering objections to a local plan, and the adoption of the plan by the planning authority (sections 11, 15 and 17). The Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 (SI 1983, No 1590) ("the Regulations") provide by regulation 35(1) that the planning authority must consider the report of the inquiry and decide whether or not to take any action as respects the plan in the light of the report and each recommendation contained in it; "and the authority shall prepare a statement of their decisions, giving reasons therefor."
[3] Section 238(1) of the Act, read short, provides that if any person aggrieved by a local plan desires to question the validity of the plan on the ground (a) that it is not within the powers conferred by Part II of the Act, or (b) that any requirement of any regulations made under the Act has not been complied with in relation to the adoption of the plan, he may make an application to the Court of Session. Section 238(2)(b) provides that the Court, if satisfied that the plan is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of any such regulations, may wholly or in part quash the plan either generally or in so far as it affects any property of the applicant.
The facts
[4] Chapter 3 of the Plan (no 6/4 of process) deals with the environment of Rural West Edinburgh and sets out a number of policies and proposals. One section of the chapter is headed "Flood Risk and Surface Water Requirements". It is there explained that identified areas of importance for flood control are shown on the Proposals Map, and that the areas identified are currently of value for water storage in the event of flooding and are not currently occupied by built development (paragraph 3.81). It is also said that these areas "are indicative only, representing the best available current information on the extent of land that is of value for flood water storage" (paragraph 3.82). The policy relative to flooding, entitled "Policy E45: Flooding", is then set out. It includes the following:
"2. Areas of importance for flood control
Within identified areas of importance for flood control, or any other area of value for the storage of flood water, there will be a presumption against development that will significantly reduce its water storage capacity, including landraising and flood prevention measures, unless:
(a) it can be demonstrated that adequate compensatory water storage can be provided; and
(b) proposals for provision of such compensatory water storage are submitted with the planning application.
If acceptable in principle, the implementation of compensatory water storage will be secured through planning condition or legal agreement."
[5] The finalised Plan designated the applicants' site as an area of importance for flood control. The site is known as 19-20 East Mains of Ingliston, Eastfield Road, Edinburgh, and is a field extending to about 4 hectares to the south of Edinburgh Airport and adjacent to the Hilton Hotel, between Eastfield Road and the Gogar Burn. The applicants lodged an objection in these terms (no 6 of process, appendix 6):
"FSH Airport (Edinburgh) Services Ltd object to the site being designated under Policy E45 as an Area of Importance for Flood Control. The site has been wrongly designated in this respect in that it does not provide significant flood storage potential and it is not on a natural flood plain. The site is protected against flood risk."
[6] It is convenient to interpolate here a few extracts from Planning and Flooding, Scottish Planning Policy 7 (SPP7), published in 2004 (no 7/9 of process), which sets out the Scottish Executive's planning policy on new development and flooding. The glossary includes the following:
"Flood plain - the generally flat areas adjacent to a watercourse or the sea where water flows in time of flood or would flow but for the presence of flood prevention measures (also called the geographical flood plain). The limits of a flood plain are defined by the peak water level of an appropriate return period event. See also Functional Flood Plain."
"Functional flood plain - the areas of land where water flows in times of flood which should be safeguarded from further development because of their function as flood water storage areas."
Paragraphs 16-18 of the text of SPP7 deal with development on functional flood plains. They state in part:
"16. Functional flood plains store and convey flood water during times of flood. These functions are important in the wider flood management system. New development on the functional flood plain will not only be at risk itself, but will add to the risk elsewhere. Cumulative effects will arise from proposals which individually may seem of little consequence. For planning purposes the functional flood plain will generally have a greater than 0.5% (1:200) probability of flooding in any year.
17. Built development should not therefore take place on functional flood plains. [ . . .]"
The reporters' report (no 6/5 of process) also includes the following definitions at paragraph 7.28:
"Flood prevention measures: works including walls, new channels, embankment and flood water storage areas. Usually components of a flood prevention scheme (see below).
Flood prevention scheme: a scheme of flood management measures under the Flood Prevention (Scotland) Act 1961."
[7] The respondents' written response to the applicants' objection was as follows (no 6 of process, appendix 8):
"Not accepted. This land is prone to flooding (despite the limited existing defences) and provides valuable flood water storage. Policy E45 does not preclude the development of such sites, subject to compliance with other policies of the plan and compensatory water storage being provided."
[8] An inquiry for the purpose of considering the applicants' objection and other objections was held before two reporters between November 2004 and April 2005. The reporters heard evidence and submissions on behalf of the applicants and the respondents. They considered the applicants' objection in chapter 7 of their report (no 6/5 of process). It is clear from their account of the evidence and submissions relative to the applicants' grounds of objection and the respondents' response that the parties were at issue on a number of matters. The reporters say at paragraph 7.26:
"Most of the submissions and evidence relating to this objection focus on the various definitions and policy approaches to minimising flood risks; on the appropriate flood status of the objection site; and whether it should be treated as a site of importance for flood control, in that it may contribute to reducing flood risks downstream."
[9] It is apparent from the following paragraphs of the report that one focus of controversy was a bund, or embankment, which had been constructed to protect Edinburgh Airport. The applicants regarded the bund as a flood protection measure, while the respondents maintained that it was an agricultural flood embankment. The significance of the distinction is that an agricultural flood embankment is designed to provide a lesser degree of protection than a flood protection measure. The parties were also at issue as to the level of protection the bund provided, and as to the circumstances of flooding which had affected the site and the Hilton Hotel in the year 2000. Further, the applicants maintained that the site was not part of the functional flood plain, while the respondents maintained that it was. The applicants also said that Policy E45 did not take account of the guidance in SPP 7.
[10] The reporters set out their conclusions in paragraph 7.33 of their report in the form of bullet points. They are (numbers supplied):
"1. The inclusion of this site in the local plan as an area of importance for flood control is based on the assumption that it stores water during periods of high water levels in the Gogar Burn, and is hence part of the functional flood plain.
2. That assumption appears to be...
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