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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 180
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OPINION OF LORD TURNBULL
in the cause
DALFABER ACTION
GROUP
First Appellants;
MOYRA GRAY
Second Appellant;
against
THE SCOTTISH
MINISTERS
First Respondents;
REDHAVEN ESTATES
Second Respondents:
ญญญญญญญญญญญญญญญญญ________________
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First and Second Appellants: Connal, QC;
McGrigors
First Respondents: Springham; M Sinclair, Solicitor to the
Scottish Executive
Second Respondents: O'Carroll; Brodies, W.S.
15 November 2007
Introduction
[1] This is an appeal brought in terms of section 239
of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act")
by, firstly, the Dalfaber Action Group and the office bearers thereof and
secondly Moira C Gray. The appeal
seeks to challenge a decision of the Scottish Ministers by their reporter dated
16 November 2006 concerning an area of
ground at North Dalfaber, Aviemore. The
respondents are, firstly the Scottish Ministers and secondly Reidhaven Estates
Limited.
History
[2] By application dated 17 February
2005 the second respondents sought outline planning consent for a residential
development comprising 101 (subsequently amended to 104) serviced
housing plots, all associated roads and access points and all associated
engineering and landscape works at the site which they owned at North Dalfaber,
Aviemore ("the site"). Although an
application for outline planning permission, the application was accompanied by
detailed plans and drawings, showing the position of access roads and house
plots. The planning authority to whom
application was made was the Cairngorm National Park Authority. By letter dated 6 March
2006
the planning authority intimated its refusal to grant outline planning
permission specifying three separate reasons.
The second respondents sought to appeal the planning authority's
decision in terms of section 47 of the 1997 Act and the reporter was
appointed to determine the matter. The
appeal to the reporter was determined on the basis of written submissions and a
site visit. In a reasoned decision dated
16 November 2006 the reporter allowed the
second respondents' appeal and granted outline planning permission subject to
the conditions as set out in Annex A of his letter. Condition 1 explained that approval was
for a development of up to 104 residential units, of which 25 were to
be affordable units. Condition 2
explained that the layout plan submitted with the application was not approved
and that a revised layout was to be agreed with the Cairngorm National Park
Authority as part of a reserved matters approval application. The first and second appellants now seek to
challenge the reporter's decision on ten grounds as set out in the Record
prepared for the hearing before me.
Appellants'
Submissions
[3] Mr Connal, QC who appeared for both
appellants presented the case on their behalf without distinguishing on any
point between either appellant. He
sought to argue that the reporter had erred in law in his treatment of various
issues before him and had failed in his duty to give adequate reasons for the
decision taken.
[4] In his
principal argument Mr Connal sought to define what he submitted was the
central issue before the reporter for determination. Mr Connal drew my attention to the terms
of the Badenoch and Strathspey Local Plan as adopted by the Highland Council in
September of 1997 (number 6/2 of process). The site was located within one of the areas
which the local plan had identified as being allocated for a mix of housing and
related community facilities. As could
be seen from paragraph 6.1.2(c) this area had been identified as suitable
for housing development:
"with
residential enclaves being absorbed within compartments of woodland and
modulated according to localised physical characteristics, landform and other
site planning factors".
However, the local plan also adopted a strategy of
protecting amenity woodland and its settlement diagram showed woodland at North Dalfaber as enclosing "pockets" for
development marked as new or long term. The
proposed development was within these so called pockets but also encroached
beyond these and into the surrounding amenity woodland. This encroachment formed a significant aspect
of the appellants' opposition to the proposed development, as argued before the
reporter. Accordingly Mr Connal
said that it was not the principal of residential development which was truly
at issue before the reporter, but rather the detail of the particular
development proposed.
[5] Mr Conal
referred to the fact that the second respondents had submitted a detailed plan
of the proposed development to the reporter which was not said to be indicative
only. It set out the locations and sizes
of each of the proposed 104 plots. It
was the question of this particular development which he said the parties had
joined issue over. Accordingly, when one
saw that the reporter had both refused to approve of the layout plan submitted
and granted planning permission for a development of "up to 104 residential
units", as found in condition 1 and 2 of Annex A, it could be
seen that he had failed to address the principal issue in the appeal before him
and had arrived at a decision which did not reflect the requests made of him by
any party. As Mr Connal put it, the
reporter was faced with a stark choice, either to allow the development
proposed or to refuse to allow it.
[6] Further,
it was said that once the reporter had decided not to approve of the detailed
layout proposed by the developers there was no material before him to justify a
decision to grant outline planning permission for "up to 104 residential
units". Once his decision in principle
had been taken it was said that there ceased to be any relevance at all to the
figure of 104. Before he was
entitled to come to the decision he did the reporter would have needed to see
evidence that it remained possible to locate up to this number of houses
within the site without encroaching on the amenity woodland. In any event, it was argued that the decision
letter was silent as to the reporter's reasoning on his approach to this aspect
of his decision
[7] As a
further limb to this argument Mr Connal submitted that the reporter had
failed to comply with his duty in terms of section 25 of the 1997 Act
to determine the appeal before him in accordance with the local development
plan unless material considerations dictated otherwise. He drew my attention to the fact that at paragraph 38
of his decision letter the reporter had noted that the extent of the amenity
woodland provided for by the local plan was not fully reflected in the
proposals being advanced and that the entire affordable housing provision was
located within the amenity woodland. He
went on to point out that in paragraph 39 of his letter, when drawing
together the issue of compliance or otherwise with the local plan, the reporter
said:
"Even allowing for some
latitude, the proposals go further that the plan clearly intended, and to that
extent they are not fully in accordance with the local plan. Taking the development plan as a whole, the
proposals meet the principles regarding housing development, whilst falling
short of the specific aspects regarding amenity woodland in the local plan."
It could be seen, said Mr Connal, that in his
decision letter the reporter then went on to address the question of material
considerations. Accordingly he did so
without first deciding the crucial issue of whether the proposals accorded with
the local plan or did not. It was, he
said, as if a sentence was missing from the end of the passage quoted.
Subsidiary Arguments
[8] In
addition to his main attack on the reporter's decision Mr Connal advanced
a number of other arguments to the effect that the reporter had failed to give
consideration to and determine significant matters placed before him. These arguments took in five propositions:
1. The reporter had failure to determine
the natural heritage issues advanced by the Cairngorm National Park Authority
as founded upon the information produced by their Natural Heritage Group.
2. The reporter had failed to deal with
the issue of maintenance and management of the woodland in the context of the
insertion of private housing within the amenity.
3. The reporter had failed to deal with
the national planning policy on integration of affordable housing.
4. The reporter had failed to require an
agreement under section 75 of the 1997 Act in relation to the
affordable housing issue before him.
5. The reporter had failed to deal with
the issue of flood risk which it was said was before him.
It was also said that he had failed to explain his
reasoning in respect of each of these matters in his decision letter.
[9] Finally,
Mr Connal also argued that the reporter had erred in law in his treatment
of the aims of the National Park. It was
not disputed that the site fell within the Cairngorm National Park. The Cairngorm National Park Authority had
been established in terms of the National Parks (Scotland) Act 2000 ("the 2000 Act")
to exercise functions in relation to the Park.
Section 10 of the 2000 Act provides for a National Park authority
being designated as the planning authority for the Park for the purposes of the
planning Acts. It was accepted that such
designation had occurred in the present case.
Section 1 of the 2000 Act provides as follows:
"The National Park aims
In this Act, references to the National Park aims are to the following aims in
relation to an area -
(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."
Section 9 of the 2000 Act provides, so far
as relevant, as follows:
"General purpose and functions
(1) 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.
(2) A National Park authority has, in relation to the National
Park -
(c) such planning functions as may be conferred under section 10,
(6) In exercising its functions a National
Park authority must act with a view to accomplishing the purpose set out in subsection (1);
but 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 any other National Park aims, the authority
must give greater weight to the aim set out in subsection 1(a)."
[10] Mr Connal's
submission was that there was now an element of interplay between the
reporter's duty in terms of section 25 of the 1997 Act and the aims
of the National Park authority as found in the 2000 Act. It was said that he, like the National Park
authority, was bound by section 9(6) of the 2000 Act to prioritise
the aims of the National Park. It could
be seen, said Mr Connal, that the reporter had failed to appreciate and
give effect to this legal requirement.
Respondents'
Arguments
[11] For the first respondents Miss Springham
commenced by seeking to identify the approach which the Court ought to take to
an appeal brought in terms of section 239 of the 1997 Act. She reminded me that in terms of that section
the validity of the reporter's decision could only be challenged on the basis
that it was a decision which was not within the powers of the Act or that any
of the relevant requirements had not been complied with in relation to that
order. She referred me to the speech of Lord Clyde
in City of Edinburgh Council v Secretary of State for Scotland 1998
SC (HL) 33 at pages 43 to 45 in order to vouch her submissions
as to the relevance of the local development plan to the reporter's decision
and to the primacy which must be given to his assessment of the weighting to be
given to the various relevant considerations.
In her submission the reporter had said all that was necessary in his
decision letter to permit the parties, who were well aware of the issues, to
properly understand the basis for his decision.
In any event she submitted that the appellants could not point to any
prejudice which they had suffered as a consequence of the way in which the
reasons had been articulated.
[12] As
further context to her submissions Miss Springham also took me to the
definition of "outline planning permission" as found in section 59 of the 1997 Act
and the definition of "reserved matters" as found in regulation 2(1) of
the Town and Country Planning (General Development Procedure) (Scotland) Order 1992.
[13] Miss Springham
then went on to submit that the principal argument advanced by the appellants
ought not to be given effect to. She
submitted that in light of the wide powers available to the reporter in
deciding an appeal in relation to an application for outline planning
permission it was perfectly competent for him to allow the appeal in part and
to grant planning permission on an outline basis subject to conditions. She drew my attention to the fact that in
their written submissions to the reporter (number 6/11 of process), as an
alternative to their principle argument, the developers had sought the approval
of such elements of the application as the reporter thought justified,
including outline consent for 104 residential units at the site. The reporter had acknowledged this, as could
be seen from paragraph 22 of his decision letter. Miss Springham pointed out that although
both the Dalfaber Action Group and the Cairngorm National Park Authority had
been aware of the content of the developer's written submissions to the
reporter and had each tendered their own (6/14 and 6/12 of process
respectively), neither had commented on the developer's alternative request. Accordingly, she submitted that all concerned
were aware of what the reporter had been asked to do. It was incorrect to say that the only
question before him was whether to grant the application in keeping with its
detailed layout or to refuse it. It was
equally incorrect to say that he had decided a question which had not been
asked of him.
[14] Miss Springham
also submitted that the reporter had ample material before him to entitle him
to conclude that the site could accommodate up to 104 residential units. She submitted that this arose from the fact
that he had before him a request that outline permission for this number be
granted and the fact that the local plan included an assessment that the
designated area had a capacity for two hundred and fifty houses, within which
one hundred had already been built. Since
the reporter had only granted outline planning permission the detail of the
layout for individual plots was to be determined by application for approval of
reserved matters. This process would in
turn determine the total number of units to be permitted within the site under
the umbrella of the outline permission granted.
[15] Miss Springham
also pointed out that the appellants had focussed their argument to the
reporter around the issue of encroachment into the amenity woodland. They had accepted that the local development
plan acknowledged the appropriateness of residential development in principle. Accordingly they had in fact been successful
in this argument before the reporter and it was difficult now to understand why
they were taking the point they were. In
any event she submitted that it could be seen from a reading of paragraphs 36
to 38 and 47 of the reporter's decision letter that he had properly
identified what the local development plan was and had decided that the
proposal was in keeping with this plan, subject to the extension beyond the
pockets identified for housing. It was,
she said, entirely within his powers to permit the application but to decline
for this reason to give approval to the specific layout.
[16] Miss Springham
went on to submit that it was perfectly clear that the reporter had been aware
of the Natural Heritage issues put before him and those relating to the
maintenance of the woodland, as could be seen both from the content of his
decision letter and from the conditions which he had attached. She submitted that in his reasons on these
matter, as with the others under challenge, the reporter had said all that he
needed to and left the informed reader in no substantial doubt as to his
conclusions on the determining issues. She
also said it was difficult to understand in what way the appellants were
claiming to have been prejudiced on account of a deficiency in reasons. She submitted that nowhere within the Record
did one find any averment as to the prejudice which they had suffered and that
none had been identified on their behalf in submissions. On the matter of flood risk it was submitted
that this had not been an issue before the reporter, as it had not been
referred to in the written submissions presented on behalf of the planning
authority or the present appellants. Nor
had it featured as a ground of refusal of the application by the planning
authority. In any event it was argued
that conditions 6(c) - (f) adequately dealt with any concern and
reflected the conditions asked for by the planning authority in the event of
the reporter granting the application.
[17] In
response to the appellants' submissions relating to the issue of affordable
housing Miss Springham submitted that one had to remember that the
reporter had declined to approve of the detailed layout suggested. Although he had stipulated in
condition 1 that there had to be 25 affordable housing units the
location of these was a matter, like all other details, which would have to be
resolved by further application to the planning authority. It followed that he could not be criticised
in the way the appellants had sought to do for declining to say anything about
how these units were to be integrated. Miss Springham
also submitted that whether the matter of affordable housing was to be dealt
with by requiring an agreement in terms of section 75 of the 1997 Act,
or by imposing conditions, was a matter for the planning judgement of the
reporter.
[18] When it
came to the challenge arising out of the provisions of the 2000 Act Miss Springham
said that it was clear from paragraphs 43 and 44 of his decision
letter that the reporter had given consideration to the aims of the National
Park authority. She argued that the
weight to be given to these aims was a matter for planning judgement and could
not be attacked in the absence of an argument that the reporter had acted
perversely or irrationally, which had not been advanced. Again, on the matter of reasons, it was said
that the reporter had said as much as was necessary.
Second
Respondents
[19] Mr O'Carroll,
who appeared on behalf of the second respondents, adopted the submissions
presented by Miss Springham and since much of what he wished to say
overlapped with what had already been submitted took me through his own
submissions expeditiously. He also
provided me with a written note of submissions for ease of following. In revisiting the various arguments presented
by the appellants he submitted that the points advanced failed to acknowledge
both the powers available to a reporter and the correct nature of outline
planning permission. He also submitted
that the terms of the 2000 Act had not altered or modified the reporter's
obligation to give effect to section 25 of the 1997 Act.
Discussion
[20] The
reporter is required to make a decision by reference to the provisions of the
local development plan and to other material considerations (1997 Act,
sec 37(2); sec 48(5)(a)). Unless
material considerations indicate otherwise he has to make his determination in
accordance with the development plan (1997 Act, sec 25). What weight he gives to the various matters
brought to his consideration is for the planning judgement of the reporter and
is not open for review before the court, (City
of Edinburgh Council v Secretary of
State for Scotland). The court can only
quash the decision of a reporter on the limited grounds set out in section 239
of the 1997 Act.
[21] The
starting point is to define the nature of the application being considered by
the reporter and to identify his powers in that regard. As can be seen from their brochure (number 7/27
of process) the second respondents had reached the stage of setting out their
aspirations in detailed form to the planning authority. They did not intend to build a residential
development in the regularly encountered sense.
They had in mind that the available plots would be sold on to purchasers
who would instruct the construction of individualised homes to their own
personalised design choices, within the framework of a design guide which
sought to reflect the aims of the National Park. The developers had hoped that if outline
planning consent which included approval for the layout and plots sizes they
suggested could be obtained, then the benefit would be a reduced burden on the
purchasers when it came to seeking approval for the individual homes to be
built. However, it is clear that
throughout the history of the application it was understood to be an
application for outline planning permission.
This is how it is described in the original planning application
document (number 7/1 of process) in box 1 under the heading "Type of
application". This is how it was
understood in the report on called-in planning application prepared for the
Cairngorm National Park Authority (number 7/3 of process). In this document at paragraph 9 it is
explained that:
"Outline planning permission
is sought in this application for 104 serviced house plots, all associated
roads and access points and all associated service engineering and landscape
works. The standard information required
in an outline planning application has been supplemented by a series of
indicative drawings, showing details of the position of access roads and house
plots."
As the reporter explains it in paragraph 3 of his
decision letter:
"Although an outline
application, the submitted plans include a detailed layout, not marked
indicative, for the plot layouts, roads and access points, service engineering
works and landscaping, for which approval is sought as part of the outline
permission."
Outline planning permission is defined (for the
purposes of this appeal) by section 59 of the 1997 Act which
provides:
"(1) In this section "outline planning permission" means planning
permission granted, in accordance with the provision of regulations or a
development order, with the reservation for subsequent approval by the planning
authority or the Secretary of State of matters not particularised in the
application ("reserved matters")."
The definition of reserved matters found in the Town
and Country Planning (General Development Procedure) (Scotland) Order 1992 at article 2(1)
is as follows:
"reserved matters in
relation to an outline planning permission or an application for such
permission, means any matters in respect of which details have not been given
in the application and which concern the siting, design or external appearance
of any building to which the planning permission or application relates, or the
means of access to such building, or the landscaping of the site in respect of
which the application was made;"
[22] The
powers of the reporter in dealing with an appeal are, as set out in section 48(1)
of the 1997 Act, to:
"(a) allow or dismiss the appeal, or
(b) reverse or vary any part of the decision
of the planning authority (whether the appeal relates to that part of it or
not)"
The reporter is also empowered to deal with the
application as if it had been made to him in the first instance. It is beyond question that the second
respondents put before the reporter a request that he grant outline planning permission
for 104 houses in the event that he was not prepared to approve of the
detailed layout submitted. This can be
seen from the written submissions presented on their behalf (number 6/11
of process paragraph 2.2). It is
acknowledged by the reporter at paragraph 22 of his decision letter. Standing the nature of the application before
him and the wide powers available to him it is incorrect to argue that the
reporter's obligation was either to grant the detailed application as it stood
or to refuse it. Nor, standing the
second respondents' submission to him, is it correct to say that he decided a
matter which was not asked of him. It
should also be noted in this connection that the planning authority put before
the reporter a list of conditions which they wished him to consider imposing in
the event of the application being granted.
[23] What
the reporter decided to do was to grant outline planning permission subject to
detailed conditions in the understanding that all issues relating to location,
design and impact on the surrounding amenity could be dealt with by the
planning authority in applications for approval of reserved matters. Article 6 of the Town and Country
Planning (General Development Procedure) (Scotland) Order 1992 provides
that such applications require to be accompanied by such particulars and such
plans and drawings "as the authority may
require as necessary to enable them to deal with the applications". In doing so the reporter placed a ceiling of 104 units
on the development. I was satisfied on
the basis of the submissions presented on behalf of the respondents that there
was material before the reporter to underpin this decision. The local plan had envisaged up to 250 houses
within the area at North Dalfaber. One hundred
had already been built. The reporter has
accepted the developer's submission (noted at paragraph 12 of his letter)
that the figure suggested by them is well within the remaining estimated
capacity for the designated area. In
addition it is obvious that he cannot select a particular number since he
has deferred all questions as to layout and plot size to reserved matters
applications. As Miss Springham
said, it is the detail of the still to be approved layout plan which will
determine the number of properties within the development. Putting aside the question of whether the
reporter's decision is otherwise open to challenge, I am satisfied that he has
adopted a competent course of action.
The Reporter's Approach
[24] As was accepted by Mr Connal, the
local plan had allocated the area within which the development was proposed for
residential development, at least within the pockets shown on the settlement
diagram. The reporter refers to the
local plan correctly by name in paragraph 12 of his decision letter and
refers to its content at paragraph 13, when summarising the developer's
submissions to him, paragraphs 24, 25 and 26, when summarising the
planning authority's submissions and in paragraphs 36, 37, 38, 39
and 47, when explaining his decision.
In their written pleadings in the present case the appellants quote two
of three sentences in paragraph 39 of his decision letter and seek to
argue that he failed to address himself to the question of whether the
application accorded with the development plan.
The whole paragraph reads as follows:
"39. Drawing all these points together, I find the appeal site as a
whole to be located in an area which in principle is designated in the local
plan for development, subject to the retention of substantial areas of amenity
woodland. Even allowing for some
latitude, the proposals go further than the plan clearly intended, and to that
extent they are not fully in accordance with the local plan. Taking the development plan as a whole, the
proposals meet the principles regarding housing development, whilst falling
short of the specific aspects regarding amenity woodland in the local plan."
Paragraph 47 of his decision letter reads as
follows:
"47. Taking the material considerations together, as the issues
relating to the extent of the amenity woodland and informal recreation areas
can be addressed at the detailed planning stage, in line with NPPG 14
guidance, I find nothing to justify the refusal of planning permission for a
development that accords with the principle, if not the letter of the
development plan."
Condition 2 of Annex A to the decision
letter reads:
"2. For the avoidance of doubt the layout plan submitted with the
application is not approved. A revised
layout shall be agreed with the Cairngorm National Park Authority (CNPA) as
part of the reserved matters approvals referred to below. Reason:
because the application is in outline, and the submitted plan does not
adequately reflect the local plan intentions for the application site with
regard to the retention of amenity woodland."
From these references it is, in my opinion, quite
clear that the reporter's understanding of the local development plan cannot be
faulted and that he has accurately held that, subject to the proposed
encroachment into the amenity woodland, the proposals were in accordance with
it.
Failure To Determine
Significant Issues Put before Him
[25] It is clear from what the reporter said in
paragraphs 19 and 28 of his decision letter that he understood the
natural heritage issues which were advanced before him. A reading of paragraphs 38, 39, 43 and
46 demonstrates that he was well aware of the importance of preserving the
amenity woodland and that this consideration drove him to rejecting the
particular layout proposed by the second respondents. However, all of these issues were addressed
by him in the context of a site which was intended for housing development. As he states in paragraph 43 of his
decision letter:
"Regarding the first aims of
the National Park, with regard to the natural heritage there are no specific
designations covering the appeal site, and whilst the woodland has obvious
important local value the site is intended for housing development in the local
plan. I have already found that whilst
the detail of the proposal as it stands is not acceptable this can be addressed
through conditions, allowing the most important elements of the woodland to be
protected."
These issues were before the reporter as matters of
planning judgement. In the exercise of
that judgement he has weighed them and arrived at a decision. His decision included the imposition of
conditions 2, 12 and 14 which were designed to afford the appropriate
protection to the natural heritage in light of the introduction of a housing
development.
[26] The
appellants' submissions under reference to the subject of affordable housing
were in my view misconceived. The
reporter has imposed a condition that the development requires to include a
total of 25 affordable housing units.
This number is fixed regardless of how many other houses are
eventually given approval for. His
decision is in keeping with national planning policy as can be seen from paragraph 35
of his decision letter. The complaint as
to there being no detail as to the way in which these units are to be
integrated into the remainder of the development fails to acknowledge that the
entirety of the layout for the development has been left by the reporter to the
planning authority as part of the reserved matters application process. Since the eventual layout has not yet been
suggested it is illogical to argue that the reporter ought to have determined
the way in which adequate integration was to be achieved. Equally, there was no need for the reporter
to require an agreement in terms of section 75 of the 1997 Act. The way in which affordable housing is to be
provided or managed is not a matter for outline planning permission. It is for the planning authority and other
interested parties at the stage of a reserved matters application. The reporter's decision to deal with the
matter by condition rather than require a section 75 agreement, as
expressed at paragraph 48 of his decision letter, is in line with national
planning policy, as can be seen from the Scottish Executive's Planning Advice
Note 74 on affordable housing at paragraph 41 (number 7/24 of
process).
[27] The
appellants' written pleadings contain the proposition that that the reporter
erred in his treatment of flood risk. In
advancing his submissions Mr Connal took me to the Scottish Executive's
Planning Policy Number 7 "Planning and Flooding" (number 6/4 of
process). He also took me to the report
of the Scottish Environment Protection Agency who were consultees in the
planning process (number 6/16 of process).
The argument appeared to be that as a consequence of the content of number 6/16
of process there was an issue as to flood risk before the reporter. That issue ought then to have been dealt with
in line with national policy as found in number 6/4 of process and as a
consequence the reporter ought to have obtained a flood assessment report
before granting outline planning permission.
It was then submitted that since he had not followed national policy and
had failed to give a reason for this his decision was open to challenge. When it came to an examination of this issue
it became clear that if flood risk was truly before the reporter then it was
only so in a very limited sense. It was
not given as a ground of refusal by the planning authority. It was not advanced by the planning authority
or the appellants in their written submission to the reporter. No objection was advanced to the grant of
outline planning permission by the Scottish Environment Protection Agency, they
being content that relevant conditions would be imposed. The report which Mr Connal founded upon
at 6/16 of process contained a request by the agency that three specific
conditions be imposed in order to prevent water pollution. By way of distinction the report also
contained a suggestion that a flood risk assessment should be carried out for
the site. Mr O'Carroll in his
submissions also drew my attention to number 7/16 of process which was a
drainage impact assessment for the site prepared by a firm of consulting
structural and civil engineers. Paragraph 11
of that document stated that:
"There is no known flooding
history for this site. We enclose a
response from SEPA relating to the flood history of the site"
In the result the reporter, as suggested by the
planning authority, imposed a number of conditions to the grant of outline
planning permission which addressed this issue.
These can be seen in conditions 6(c) to 6(f), 8 and 9. These requirements were all imposed as
conditions precedent to the commencement of work starting in connection with
the development of individual plots.
[28] When it
came to advancing his argument regarding the impact of the 2000 Act Mr Connal
submitted that the reporter had not said very much about the relevance of the
aims of the National Park policy in the decision which he had to make and that
he had not given the aims of the National Park their due importance. As I understood him his argument was that in
light of the interplay between the two statutory provisions outlined the
reporter had made an error of law.
[29] Beyond
providing that the National Park authority may be designated by order as the
planning authority for the purposes of the planning acts, the 2000 Act
makes no reference to how the authority ought to perform such functions. In particular it makes no reference to the
general duty set out in section 25 of the 1997 Act to make a
determination in accordance with the development plan unless material
consideration indicate otherwise. I
agree with the submissions made on behalf of each of the respondents that this
duty is not displaced by the terms of either section 1 or section 9
of the 2000 Act. In my opinion, the
effect of the 2007 Act is that the aims of the National Park are material
considerations to which the reporter may give whatever weight he deems
appropriate in the exercise of his planning judgement. It is clear that the reporter was aware of
the National Park aims. He notes that
they featured in the decision made by the Cairngorm National Park Authority. It was because of the fact that the second
respondents' original proposals affected the natural heritage of the area in a
way which he deemed to be unacceptable that he declined to give them the
permission they sought. In
paragraphs 43, 44 and 46 of his decision letter the reporter makes
reference to the various aims of the National Park and explains how in his view
these can be adequately accommodated. These
views are then underpinned by conditions 11, 12 and 18(c). The effect of the reporter's decision is in
fact to give priority to the first of the National Park Aims over the fourth.
[30] For the
reasons outlined above I am satisfied that the reporter did give consideration
to all of the material issues which were placed before him. I am satisfied that he identified what the
determining issues were and that he applied his planning judgement to the
question of how these were to be resolved.
No argument was advanced before me to the effect that in the assessment
of any relevant consideration the reporter had acted irrationally or in a
perverse manner.
Adequacy of Reasons Given
[31] On the matter of the responsibility
imposed on the reporter to give adequate reasons for his determination of the
issues before him I was referred to Wordie
Property Co, Ltd. v Secretary of
State for Scotland 1984 SLT 345, Moray Council v The Scottish
Ministers 2006 SC 691, Perth
and Kinross Council v Secretary of State for Scotland 1999
SC 144, Save Britain's Heritage
v Number 1 Poultry Ltd [1991]
1WLR 153, South Bucks District
Council and Another v Porter
(No 2) [2004] 1WLR 1953 and Edwin
Bradley & Sons v Secretary of
State for the Environment and Others (1984) 47 P&CR 374. The import of this line of authority was most
recently considered and drawn together in the opinion of the Lord Justice
Clerk in the Moray Council case. At paragraphs 30 and 31 of his
opinion he explained the duty in this way:
"[30] The reporter must then decide in the light of his findings how he
resolves the determining issues. This
involves the exercise of his planning expertise and judgement. In his decision letter he must set out the
process of reasoning by which he reaches his decision; but that does not
require an elaborate philosophical exercise.
Nor does it require a consideration of every issue raised by the parties. The reporter is entitled to confine himself
to the determining issues. So long as
his reasons are intelligible and adequate, he is entitled to express them
concisely. The guiding principle is that
the decision letter should leave the informed reader in no substantial doubt as
to the reporter's findings in fact and conclusions on the determining issues,
and as to the way in which he has applied section 25 of the 1997 Act
in reaching his decision (Perth &
Kinross Council v Secretary of State
for Scotland).
[31] Lord Brown of Eaton-under-Heywood has observed that
'Decision letters must be read in a straightforward manner, recognising that
they are addressed to parties well aware of the issues involved and the
arguments advanced. A reasons challenge
will only succeed if the party aggrieved can satisfy the court that he has
genuinely been substantially prejudiced by the failure to provide an adequately
reasoned decision' (South Bucks District
Council v Porter (No 2),
para 36)."
[32] Applying
this approach to my examination of the reporter's decision letter I find that
the determining issues in this case were clear cut and that it was obvious to
the parties what they were. In my
opinion a fair and reasonable reading of the reporter's letter makes it obvious
not only what he considered the principal controversial issues to be but also
discloses the other matters which he took account of. His reasoning in the resolution of these
issues is clear from the particular paragraphs and conditions to which I have
referred in analysing the submissions advanced.
Adopting the words of Lord Brown of Eaton-under-Heywood in the South Bucks case, there is no mystery as
to what moved the reporter. Nor was
there in any event any averment or meaningful submission as to the nature of
the prejudice which it was said the appellants had suffered. Mr Connal sought to rely on one of the
examples given by Lord Bridge of Harwich in the Save Britain's Heritage case as to where prejudice might arise. At page 167 letter G-H his Lordship
had explained that:
"... an opponent of
development, whether the local planning authority or some unofficial body like
Save, may be substantially prejudiced by a decision to grant permission in
which the planning considerations on which the decision is based, particularly
if they relate to planning policy, are not explained sufficiently clearly to
indicate what, if any, impact they may have in relation to the decision of
future applications."
[33] No such
difficulty arose for the present appellants.
It is perfectly obvious what policy influenced the reporter and how that
impacted on his decision. As he
explained, he left all issues concerning the layout of the development and
issues as to impact on and management of the amenity woodland to reserved
matters applications. These will be
decided within the framework of his decision to grant outline planning
permission and the provisions of the local development plan which identifies
the need to protect the areas identified as amenity woodland.
Decision
[34] For the reasons given above I will refuse
to give effect to the appellants' motion to quash the decision of the reporter
dated 16 November 2006. I will grant an award of expenses against the
appellants in favour of each of the first and second respondents.
