In An Appeal Under Section 238 Of The Town And Country Planning (scotland) Act 1997 By The Cairngorms Campaign And Others
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2012] CSOH 153 |
| Docket Number | XA158/10 |
| Published date | 21 September 2012 |
| Court | Court of Session |
| Date | 21 September 2012 |
| OUTER HOUSE, COURT OF SESSION [2012] CSOH 153 | |
| XA158/10 | OPINION OF LORD GLENNIE in an Appeal to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997 by (1) THE CAIRNGORMS CAMPAIGN, (2) GUS JONES and ROY TURNBULL, respectively Convenor and Vice‑Convenor of the BADENOCH & STRATHSPEY CONSERVATION GROUP, and (3) WILIAM G McDERMOTT and SYBIL SIMPSON, respectively Chairman and Hon. Treasurer of the SCOTTISH CAMPAIGN FOR NATIONAL PARKS Appellants; against the decision of the CAIRNGORMS NATIONAL PARK AUTHORITY to adopt the Cairngorms National Park Local Plan 2010 made on 29 October 2012 and advertised in the Edinburgh Gazette on 8 November 2010. ________________ |
Appellants: Sir Crispin Agnew of Lochawe, Bart., QC; Drummond Miller LLP
First Respondents: D Armstrong QC; Harper MacLeod LLP
Second, Third and Fourth Respondents: J Findlay; Paull & Williamsons LLP
21 September 2012
INTRODUCTION
[1] The Cairngorms National Park Authority ("CNPA") is a National Park authority established under the National Parks (Scotland) Act 2000. By resolution dated 29 October 2010 it adopted the Cairngorms National Park Local Plan 2010 as modified ("the Local Plan").
[2] In this appeal the appellants seek reduction of the decision by CNPA to adopt the Local Plan. They complain in particular about the adoption of the following development policies proposed in the Local Plan, namely:
(A) Nethy Bridge NB/H2 - allocation for 40 dwelling houses;
Nethy Bridge NB/ED1 - allocation for business units;
(B) Carr-Bridge C/H1 - allocation for up to 117 dwelling houses;
(C) An Camas Mòr - allocation for 1,500 dwelling houses to be developed over time
(D) Kingussie KG/H1 - allocation for 300 dwelling houses, with 75 to be provided during the life of the Local Plan.
In the material before the court, Carr-Bridge (as it is designed in the Local Plan) is also variously designed "Carr-bridge" and "Carrbridge". For consistency with the Local Plan, I shall use the designation "Carr-Bridge" throughout this Opinion.
[3] The appeal is brought in terms of s.238 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). It was a matter of agreement that s.238 applies to this appeal by reason of the Planning etc. (Scotland) Act 2006 (Development Planning) (Saving, Transitional and Consequential Provisions) Order 2008 (SSI 2008 No.432). It was also agreed that, although it is commonly referred to as an appeal, an application of this sort falls to be considered on judicial review grounds.
[4] CNPA are the first respondents to the appeal. The second respondents are Davall Developments Limited, who have an interest in development at Kingussie. The third respondents, Tulloch Homes Limited, have an interest in development at both Nethy Bridge and Carr-Bridge. The fourth respondents, An Camas Mòr Developments LLP, have an interest in development at An Camas Mòr.
[5] The decision to adopt the Local Plan is challenged in respect of these particular allocations on a number of different grounds and by reference to a range of different legal and environmental policies. Accordingly, not only are there a large number of issues to be addressed, but they require to be addressed in the context of a number of different allocations within the Local Plan. Although the hearing in court was relatively short, I was provided (helpfully) with lengthy written submissions. Before turning to consider these individually, I must summarise the position regarding the Cairngorms National Park and the Cairngorms National Park Plan; describe the process leading up to the adoption of the Local Plan; and set out the main provisions of the National Park Plan and the Local Plan which form the context in which the particular policies under challenge fall to be considered. As a result, this Opinion is considerably longer than I would have wished it to be, and has taken longer to produce than I had hoped.
THE CAIRNGORMS NATIONAL PARK AND THE CAIRNGORMS NATIONAL PARK PLAN
The National Parks (Scotland) Act 2000 ("the 2000 Act")
[6] Section 2(2) of the National Parks (Scotland) Act 2000 provides that the Scottish Ministers may propose the designation of an area as a National Park and the establishment of a National Park authority if it appears to them (a) that the area is of outstanding national importance because of its natural heritage or the combination of its natural and cultural heritage, (b) that the area has a distinctive character and a coherent identity, and (c) that designating the area as a National Park would meet the special needs of the area and would be the best means of ensuring that the National Park aims are collectively achieved in relation to the area in a co-ordinated way. The Cairngorms National Park was designated in 2003. It includes parts of the local authority areas of Highland, Aberdeenshire, Moray and Angus.
[7] CNPA is the National Park authority for the Cairngorms National Park. The general purpose of a National Park authority is to ensure that the National Park aims are collectively achieved in relation to the National Park in a co-ordinated way: s.9 of the 2000 Act. Those aims are defined in s.1 of the 2000 Act as (a) "to conserve and enhance the natural and cultural heritage of the area", (b) to promote sustainable use of the natural resources of the area, (c) to promote understanding and enjoyment (including enjoyment in the form of recreation) of the special qualities of the area by the public, and (d) to promote sustainable economic and social development of the area's communities. Despite the obligation on the National Park authority to ensure that the National Park aims are collectively achieved in a co-ordinated way, the possibility of conflict between these various aims is recognised in s.9(6) of the 2000 Act. This provides that if, in relation to any matter, it appears to the authority that there is a conflict between the National Park aim set out in section 1(a) and other National Park aims, the authority "must give greater weight" to the aim set out in section 1(a).
[8] It was accepted on behalf of the appellants that this obligation to give "greater weight" to the aim of conserving and enhancing the natural and cultural heritage of the area did not mean that that aim would always prevail in the event of conflict. It was submitted, however, that the duty to give greater weight to that aim had to be observed at every level of the formulation of the Local Plan, not only as part of the general approach but also in considering each particular housing or development allocation within it. The appellants conceded that this obligation had been recognised in the Cairngorms National Park Plan 2007 (to which I shall refer in due course), both in section 3.1 at pp.19-20 and also in section 6.6 dealing with Housing, and had been carried through in para.1.4 of Local Plan to an express general recognition of the greater weight to be attached to the first aim; but it was submitted that the relevant "balancing exercise", in which the first aim was to be given greater weight, had not been carried through to the site-specific proposals of the Local Plan, or, at least, it was not apparent from the reasons given that that balancing exercise had been carried out. I shall come back to deal with that point later in this Opinion.
Preparation and adoption of a National Park Plan
[9] With a view to accomplishing the purpose of ensuring that the National Park aims are achieved in a co-ordinated way, a National Park authority must prepare a National Park Plan setting out its policy for (a) managing the National Park and (b) co-ordinating the exercise of its functions in relation to the National Park with those of other public bodies; and, after consultation, must submit it to the Scottish Ministers for their approval: ss.11 and 12 of the 2000 Act. Once the Plan has been approved, the National Park authority must adopt it as its National Park Plan: s.12(7)(a) of the 2000 Act.
[10] The National Park Plan, when adopted, is a significant document placing upon the National Park authority and others certain legal obligations. S.14 of the 2000 Act requires a National Park authority and other public bodies, in exercising functions so far as affecting a National Park, to have regard to the National Park Plan as adopted. Similarly s.264A of the 1997 Act requires a body exercising any power under the planning Acts with respect to any land in a National Park to pay special attention to the desirability of exercising the power consistently with the National Park Plan as adopted. Again it should be noted that neither of these expressions ("have regard to ..." and "pay special attention to the desirability of ...") requires the relevant body to treat the National Park Plan as binding; but they must give proper consideration to it. Its adoption therefore has a considerable influence on the content of the Local Plan, as well as to other plans prepared by CNPA, such as the Core Paths Plan, and to plans prepared by other bodies, such as Community Plans.
The Cairngorms National Park Plan ("CNPP 2007")
[11] The Cairngorms National Park Plan 2007 was approved by Scottish Ministers on 15 March 2007. Section 3 ("Context") identifies the Cairngorms as an area which is
"... widely recognised and valued as an outstanding environment which people enjoy in many different ways."
It has a "distinctive landscape" and "rich biodiversity", featuring mountains, moorland, forests and woodlands, straths and farmland, and rivers and lochs. The CNPP 2007 sets out the long-term vision (25 years) for the Park, focusing on matters ranging from landscape, biodiversity and geodiversity, through land management, the built heritage, archaeology, cultures and traditions, energy, water use and waste management, to training and employment, business, housing, transport, outdoor access and recreation, and tourism. It also identifies priorities for action for...
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