Appeal Under Section 239 Of The Town And Country Planning (scotland) Act 1997 By North Lanarkshire Council Against A Decision By Scottish Ministers Dated 3 August 2015
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lady Paton,Lord Drummond Young |
| Judgment Date | 23 August 2016 |
| Neutral Citation | [2016] CSIH 69 |
| Court | Court of Session |
| Docket Number | XA91/15 |
| Published date | 23 August 2016 |
| Date | 23 August 2016 |
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 69
XA91/15
Lady Paton
Lady Smith
Lord Drummond Young
OPINION OF THE COURT
delivered by
LORD DRUMMOND YOUNG
in an appeal
under
section 239 of the Town and Country Planning (Scotland) Act 1997
by
NORTH LANARKSHIRE COUNCIL
Appellants
against
a decision by Scottish Ministers dated 3 August 2015 upholding an appeal by Peter D Stirling Ltd and the I D Meiklam Trust and granting planning permission in principle for the expansion of Mossend railhead
Appellant: Findlay; A Sutherland; Ledingham Chalmers LLP
Respondents (Scottish Ministers): Johnston, QC; Burnet; Scottish Government Legal Directorate
Interested parties (Peter D Stirling Ltd and the Trustees of the I D Meiklam Trust): Armstrong, QC; Anderson Strathern
23 August 2016
[1] In October 2013 the interested parties, Peter D Stirling Ltd and the Trustees of the I D Meiklam Trust, applied to the appellants, the local planning authority, for planning permission for the expansion of Mossend railhead. The work included additional rail sidings at the railhead and the development next to it of a freight terminal known as the Mossend International Railfreight Park. The relevant works included buildings for Class 5 (General Industry) Use, Class 6 (Storage and Distribution) Use, and ancillary support uses, including access to the A8 road and associated site preparation, earthworks, infrastructure and landscaping. On 22 September 2014 the appellants refused planning permission for the proposed development. The applicants (the interested parties) appealed to Scottish Ministers against the refusal. On 22 December 2014 Scottish Ministers, exercising powers under paragraph 3(1) of Schedule 4 to the Town and Country Planning (Scotland) Act 1997, directed that they would determine the appeal themselves rather than having the decision made by a reporter appointed by them. A reporter, Mr Michael Cunliffe, was appointed to report and make recommendations to Scottish Ministers.
[2] The appeals were considered on the basis of written submissions. The reporter also carried out two site inspections, accompanied on 6 February 2015 and unaccompanied on 6 March 2015. He produced a report dated 5 May 2015, which was presented to Scottish Ministers. In summary, the report concluded that the proposed development would not be in accordance with the development plan, and that material considerations that supported the development did not carry sufficient weight to justify the granting of planning permission in principle in the light of the provisions of the development plan. For that reason the report recommended that the appeal should be dismissed and that planning permission in principle should be refused. Nevertheless, Scottish Ministers did not support the reporter’s recommendation; they upheld the appeal and granted planning permission in principle.
[3] The appellants have appealed against that decision under section 239 of the Town and Country Planning (Scotland) Act 1997, which, in subsection (5)(b), permits the court to quash an order or action “if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements in relation to it”.
[4] In considering the appeal, we propose first to summarize, at some length, the report prepared by Mr Cunliffe, the reporter. Secondly, we will set out the terms of the material parts of Scottish Ministers’ decision letter. Thirdly, we will set out the principles of law that are relevant to appeals of this nature, and in particular the grounds on which the court may interfere with the decision of a planning authority, including Scottish Ministers. Fourthly, we will consider the application of those principles to the decision by Scottish Ministers.
Mr Cunliffe’s report
[5] Mr Cunliffe’s report begins (chapter 1) with a description of the site, which comprises approximately 125.8 ha lying to the south of the A8 trunk road, west of a major railway line, and north of Bellshill. The southern part of the site (28.2 ha) consists of an existing railhead and adjacent brownfield land, formerly in industrial use, while the larger northern part (97.6 ha) consists of agricultural land covering an area south of the A8 road. The proposed development consists of an extended railhead with four additional sidings, a rail freight storage and distribution park, and a service and logistics park with 200,000 square metres in total of Class 5 (industrial) and Class 6 (storage and distribution) floorspace, with supporting ancillary Class 4 office space. An access road to the A8 road is proposed. The intention is to create a strategic rail freight interchange based on expansion of the established Mossend Railhead, operated by the first of the interested parties.
[6] The report covers four major topics: freight transport, the Green Belt and sustainable locations, environmental and amenity impacts and economic impacts.
Freight transport
[7] On freight transport, the reporter set out the respective contentions of the developers and the council, and also those made of behalf of Freightliner Ltd, who own and operate a rail freight terminal at Gartsherrie Road, Coatbridge. His conclusions (paragraphs 2.23-2.30) were as follows. The appeal site occupies a particularly advantageous position in relation to transport links, owing to its proximity to the west coast main railway line and the A8 and M8 roads. Direct access to the A8 and on to the motorway network would be available. Thus the proposed development would support modal shift in the freight sector from road to rail, reducing traffic congestion and lowering carbon emissions. The extension of the existing Mossend Railhead would enable it to handle longer trains, thereby securing economies in unit costs. Furthermore, the terminal would be located on brownfield land.
[8] Some policies in the Strategic Development Plan provided support for the proposal. The Spatial Development Strategy listed freight hubs as core components, and noted a need for investment in freight hubs in key locations to enable modal shift from road to rail to occur. In the Plan the locations for freight hubs are set out in Schedule 3; these included Mossend, Gartsherrie (in Coatbridge), and others. The policies in the Local Plan supported the freight terminal element of the proposal but were less supportive of the rail freight park. The Third National Planning Framework (NPF3) supported modal shift of freight transport from road to rail, and it identified Mossend, along with Coatbridge and Grangemouth, as an important interchange in the Central Belt. Nevertheless, Mossend had not, in NPF3, been designated as a national development; the priority developments had to await NPF4, the next version of the National Planning Framework. Consequently some caution was necessary in assessing the weight to be assigned to NPF3 in its support for the proposal. Mossend was one of a number of existing and proposed rail freight developments in North Lanarkshire. The Freightliner terminal at Coatbridge had spare capacity and some development potential, which could be put at risk by the appeal proposal. Another competing terminal existed at Eurocentral, just to the east of the appeal site, and a further new site at Kilgarth had been designated in the development plan for rail freight development. A strong case could thus be made out for strategic consideration of rail freight needs and priorities at the national level (NPF4) and at regional and local levels (in the Strategic and Local Plans), to ensure the optimum pattern of development.
[9] Scottish Planning Policy supported development that contributed to sustainable development. The appeal proposal was in accord with some of the applicable criteria, including giving due weight to net economic benefit; supporting delivery of infrastructure, including transport; and mitigating climate change. The development sat less comfortably with some other aspects of SPP, however, but it was consistent with a further policy in SPP, for new or expansion of rail freight interchanges on suitable sites.
Green Belt and sustainable locations
[10] On the subject of the Green Belt and sustainable locations, after setting out the cases for the developers and the council, the reporter referred to a substantial number of letters of objection, and three petitions. In these the loss of Green Belt was one of the main reasons for objection. The reporter then set out his conclusions (paragraphs 3.41-3.51). The part of the appeal site that lay within the Green Belt had an agricultural, undeveloped landscape with scenic qualities and a peaceful character which was sensitive to large-scale development. This helped to provide some relief from the heavily urbanised character of this part of North Lanarkshire. Although the proposed freight terminal was on brownfield land, the rail freight park would require the loss of 59.4 hectares of Green Belt land. That element of the proposal was contrary to the Local Plan, under which the proposal did not qualify as acceptable development. In 2011-2012 the case for excluding the site from Green Belt designation had been considered in the context of the Local Plan examination, but the resulting report concluded that the land should be retained as Green Belt. The reporter in that examination thought that a review of the potential for land-use change in the vicinity of the new motorway would allow a comprehensive and co-ordinated approach, and would allow the preparation of a master plan for the entire A8/M8 corridor. The present reporter agreed with that conclusion, and considered that the Local Development Plan process provided the most appropriate vehicle to revisit the Green Belt designation.
[11] Furthermore, the Strategic Development Plan’s spatial development strategy...
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