Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 137
XA13/10	OPINION OF LORD BANNATYNE in the Appeal by BANCON DEVELOPMENTS LIMITED Appellants; against SCOTTISH MINISTERS Respondents: in respect of a decision by W H Paterson, a Reporter appointed by the Scottish Ministers, dated 6 January 2010, which was communicated to the appellants on 7 January 2010. ­­­­­­­­­­­­­­­­­________________

Appellants: Wilson, Q.C., van der Westhuizen; Maclay Murray & Spens

Respondents: Crawford, Q.C., E McKenzie; Scottish Government Legal Directorate

17 August 2011

Subject of proceedings

[1] The present appeal is against the decision of a Reporter appointed by the Scottish Ministers to determine a planning appeal under section 47 and Schedule 4 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") dated 6 January 2010. In terms of that decision the respondent dismissed the appeal of Bancon Developments Limited ("the appellants") and refused their planning permission.

Background

[2] The planning history of the site can be briefly summarised as follows:

[3] Outline planning permission was granted in 2005. That development did not proceed due to difficulties in obtaining the proposed access all as fully set out in 6/1 of process at paragraph 3a. In 2007 an application for detailed planning permission was made, with vehicular access from the north, via a recent development at Upper Lochton. That application was refused on character, amenity, landscape and design grounds. The appellants appealed to the Scottish Ministers against that refusal. The appeal was refused on grounds relating to tree loss, the proximity of trees along the eastern boundary and the proximity of plots to an existing dwelling house, "The Stables". Thereafter the appellants met with planning officials for discussions. On 8 May 2009 the appellants submitted the application that forms the subject matter of the present appeal.

[4] In terms of this application the appellants sought full planning permission for the erection of twenty seven dwelling houses, garages and an access road at a site referred to as Land at Upper Arbeadie, Banchory, Aberdeenshire. The application for planning permission was refused by the Aberdeenshire Council by way of a notice dated 8 October 2009. The detailed planning history is set out in 6/1 of process.

[5] On 4 November 2009 the appellants appealed against the aforesaid decision to the Scottish Ministers under section 47 of the Town and Country Planning (Scotland) Act 1997. The appellants indicated in the appeal that the preferred procedure for the determination of the appeal was that of written submission together with a site visit.

[6] Both parties made written submissions. The Reporter carried out a site visit. Neither party was present or represented at the site visit. The Reporter did not seek further representations from either party after the lodging of the written submissions. The Reporter thereafter issued the challenged decision.

The general geography of the site so far as material to this appeal

[7] The site lies to the north-west of Banchory. To the east and south-east of the site is an existing development known as Cairds Wynd. Between the sites is a mature tree belt. To the north-west of the site are two properties "the Stables" and "Woods of Arbeadie" and to the north of the site is the Upper Lochton residential development.

The relevant statutory provisions

[8] The provisions of the 1997 Act so far as material to this appeal are as follows:

[9] Section 25(1) of the 1997 Act provides:

"(1) Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise -

(a) to be made in accordance with that plan...."

Section 37(2) of the 1997 Act provides:

"In dealing with such an application (an application to a planning authority for planning permission) the authority shall have regard to the provisions of the development plan, so far as material to the application and to any other material considerations."

Section 47(1) of the 1997 Act provides:

"Where a planning authority -

(a) refuse an application for planning permission or grant it subject to conditions...

the applicant may appeal to the Secretary of State against the decision."

Section 47A of the 1997 Act provides:

"(1) In an appeal under section 47(1), a party to the proceedings is not to raise any matter which was not before the planning authority at the time the decision appealed against 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 sub-section (1) affects any requirement or entitlement to have regard to -

(a) the provisions of the development plan, or

(b) any other material consideration."

Section 48(5)(a) of the 1997 Act provides:

"In relation to an appeal to the Secretary of State under section 47 -

Section 33, 37(1) to (3), 38(1) to (3), 41(1) and (2) and 42 and Part 1 of Schedule 3 shall apply, with any necessary modifications, as they apply in relation to an application for planning permission which falls to be determined by the planning authority."

Section 237(1)(f) of the 1997 Act provides:

"Except as provided by this Part, the validity of -

any such action on the part of the Secretary of State as is mentioned in sub-section (3)

shall not be questioned in any legal proceedings whatsoever.

(3) The action referred to in section 1(f) is action on the part of the Secretary of State of any of the following descriptions -

(b) Any decision on an appeal under section 47."

Section 239(1) of the 1997 Act provides:

"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.

(5) On any application under this section the Court of Session...

(b) 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 a failure to comply with any of the relevant requirements in relation to it, may quash that order or action....

(9) In this section "the relevant requirements", in relation to any order or action to which this section applies, means any requirements of this Act or of the Tribunals and Inquiries Act 1992, or of any order, regulations or rules made under this Act or under that Act which are applicable to that order or action."

In terms of Regulation 2(6) of the Town and Country Planning (Miscellaneous Amendments) (Scotland) Regulations 2009 the Town and Country Planning (Appeals) (Scotland) Regulations 2008 apply to a written submission appeal submitted after 3 August 2009 and accordingly apply to this appeal (these regulations are hereinafter referred to as "the 2008 Regulations").

[10] The provisions of the 2008 Regulations so far as material to this appeal are as follows:

Regulation 3 provides:

"(3) The notice of appeal....must include

(d) a statement setting out full particulars of the appeal including a note of what matters the appellant considers require to be taken into account in determining the appeal....

(4) Subject to paragraph (5) -

(a) all matters which the appellant intends to raise in the appeal must be set out in the notice of appeal or in the documents which accompany the notice of appeal; and

(b) all documents, material and evidence which the appellant intends to rely on in the appeal must accompany the notice of appeal."

[11] Regulation 7 provides:

"Where the appointed person considers that no further representations are or information is required to enable the appeal to be determined, the appointed person may determine the appeal without further procedure."

[12] Regulation 8 provides:

"(1) Where the appointed person does not determine the appeal without further procedure, the appointed person may determine the manner in which the appeal is to be conducted and must do so in accordance with this regulation.

(2) The appointed person may determine at any stage of the appeal that further representations should be made or further information should be made available or provided to enable the appeal to be determined.

(3) Where the appointed person so determines, the appeal or a stage of the appeal is to be conducted by one of or by a combination of the procedures mentioned in paragraph (4).

(4) The procedures are - ...

(d) by means of an inspection of the land to which the appeal relates.

(5) Where the appointed person considers that such further representations should be made or information should be made available or provided by means of -

...

(d) an inspection of the land, Regulation 11 applies."

Regulation 12 provides:

"(1) If after the conclusion of any further procedure conducted by virtue of Regulation 8, the appointed person proposes to take into consideration any new evidence which is material to the determination of the appeal, the appointed person must not reach a decision in the appeal without first affording the appellants, the planning authority and other relevant party an opportunity of making representations on such new evidence."

Access routes to the site proposed by the appellants

[13] The argument before me concerned in particular the way that the Reporter had approached and dealt with the issue of access to the site and it is perhaps convenient at this stage to set out briefly the access routes proposed by the appellants to the site: The access proposed by the appellants consisted of (1) vehicular access to the north of the site, via an existing development at Upper Lochton, (2) access for pedestrians and cyclists to the south-west of the site via the unmade part of Upper Arbeadie Road and (3) pedestrian access to the east of the site via an informal link at the north-eastern edge of the site ("the north-eastern link") to an informal woodland path leading to Cairds Wynd.

[14] The present proposal did not include pedestrian access to the east of the site via two other more southerly links to said informal woodland path leading to Cairds Wynd, and in particular, did not include a link to the south-east of the site. The said link at the south east of the site had previously been identified by the appellants as a possible means of access but formed no part of their present proposal.

The grounds of appeal

[15] The grounds of appeal are fully set out in the appeal print, however, as developed in the course of the argument before me they came to be this:

1. It was asserted on behalf of the appellants that in reaching his decision the Reporter had not acted in accordance with natural justice. He had acted unfairly in that: he had failed to give parties an opportunity to make representations on a new issue being one which neither party to the appeal could have foreseen was to become a determinative issue.

2. It was argued that the Reporter had breached the statutory duty incumbent upon him in terms of Regulation 12 of the 1998 Regulations in that he had taken into account new evidence obtained at the site visit which was material to his decision without allowing parties an opportunity to make representations regarding this.

Two other subsidiary grounds were also argued which reading short were: that he had based his decision on a material error of fact and he had taken account of a particular guidance document without giving parties an opportunity to comment thereon.

Legal framework

[16] Before turning to the parties detailed submissions it would be convenient to set out at this stage the broad legal framework within which both parties approached their submissions. This agreed legal framework can be set out briefly in a series of legal propositions:

[17] First that in making his decision the Reporter is obliged to have regard to the provisions of the development plan and his decision is to be in accordance with the development plan unless material considerations indicate otherwise (see: the 1997 Act sections 25, 37(2) and 48(5)(a)).

[18] It follows from the above that the Reporter is not confined in his consideration of the appeal to the issues as placed before him by parties to the appeal in their documentation and submissions. Rather it was accepted that he could have regard to wider issues. He is thus in a different position from a judge, an arbiter or an adjudicator. He is to apply his independent judgment.

[19] Second the Reporter is to look at the application as if made to him in the first place.

[20] Third the courts are concerned only with the legality of the decision making process and not with the merits of the decision. Matters of planning judgment are within the exclusive province of the planning decision maker (Tesco Stores Limited v Secretary of State for the Environment 1995 1 WLR 759 per Lord Hoffmann at 780).

[21] Fourth it is for a Reporter, having regard to the development plan and the proposal, to decide the determining issues that arise, the evidence that is material to these issues and the conclusions to be drawn from the evidence. It is for the Reporter applying his judgment and expertise to resolve the determining issues (Moray Council v The Scottish Ministers 2006 SC 691, per the Lord Justice Clerk at 699, paragraphs 29 and 30).

[22] Fifth the courts will only interfere with the decision of a Reporter if it is ultra vires i.e. if the decision is illegal, irrational or was arrived at in a procedurally unfair manner (section 239 of the 1997 Act; Wordie Property Company Limited v The Secretary of State for Scotland, 1984 SLT 345, per the Lord President at 347 and 348).

[23] Sixth there is a common law duty on a Reporter not to depart from the principles of natural justice. The concept of natural justice is not based on rigid formulated principles but on the facts, circumstances and context of each case. What is required by the principles of natural justice will depend on the facts and circumstances of each case.

[24] Seventh in relation to the issue of what were the obligations of the Reporter in calling for further representations from parties in order to comply with the principles of natural justice these were broadly as set out in (Fairmount Investments Limited v Secretary of State for the Environment and another 1976 1WLR 1255, per Lord Russell of Killowen at 1265 and 1266; R (On the application of Tatham Homes Limited) v The First Secretary of State and another, 2005 EWHC 3538 per Mr Justice Sullivan at paragraphs 13 to 18 and The Trustees of the Lawrence Sheriff School and another v The First Secretary of State, 2005 EWHC 3450 (Admin) per Mr Justice Collins at paragraphs 8 to 10).

[25] Eighth, there is a statutory requirement that a Reporter must not take into account any new evidence which is material to his determination without first affording the parties an opportunity of making representations on such new evidence (Regulation 12 of the 2008 Regulations).

Submissions for the appellants

1. Breach of natural justice

[26] It was contended on behalf of the appellants that on a fair reading of the written submissions and the other documents presented to the Reporter the issue between the parties so far as pedestrian access to the site was concerned could clearly be identified. So far as the planning authority was concerned reference was made to their Appeal response form 6/2 of process at page 3 section 5 headed "Matters relevant to the appeal".

"Failure to provide sufficient pedestrian access link.

- Please refer to section 6.7 of the attached Marr Area Committee Report 29/9/09 which provides an in depth discussion relating to access."

Section 6.7.2 of the Marr Area Committee Report is contained in 6/5 of process and is in the following terms:

"Roads have however recommended refusal of this application on the grounds of insufficient information. An adequate link should be properly formed to the east of the site through to Cairds Wynd which would provide a safe pedestrian and cycle route to the south towards Banchory School and would also form a logical connection to the hill of Banchory's future leisure and retail developments. Presently the proposals indicate a link formed up to the tree belt to the east, which currently has an informal pathway running through it. However as this section of land is outwith the control of the applicant, a formal access cannot be achieved through this area to continue with a link into Cairds Wynd. The proposals would therefore contradict policy Inf\1: Roads and Accesses of Local Plan which states that access must be convenient and safe for pedestrians and cyclists."

The foregoing document it was submitted: set forth the planning authority's understanding of the issue.

[27] It was submitted that the appellants' understanding of the issue was clearly the same as could be seen in appendix no. 4 to 6/5 of process. Appendix no. 4 was a letter to Aberdeenshire Council (the planning authority) from the appellants dated 23 July 2009. At page 4 thereof in relation to the issue of pedestrian access the appellants state as follows:

"With regard to footpath access to the east of the site, the best that Bancon can offer is to provide paths to the edge of the site that will offer a link to informal paths via the area between the site and Cairds Wynd. As you will be aware, this land is in the control of a third party, and as such no formal link through it can be provided. However, in terms of the recent changes to land access legislation, anyone has the right to cross it. The outlined approach has been considered acceptable on nearby sites with similar issues."

[28] It was the position advanced on behalf of the appellants that having regard to the foregoing the issue between the parties was in summary this: whether the proposed link to the east (the north-eastern link) which could not be formalised was nevertheless acceptable. It was counsel's submission that the issue was accordingly a very narrow one.

[29] It was submitted that this narrow issue was considered by the Reporter.

[30] The Reporter at paragraph 7 of his decision dealt with that issue. The Reporter said as follows:

"The lack of formal status and tarmac surfaces and street lighting for the readily achievable short links to and across the woodland path would be disadvantageous, but not enough to discount them as realistic alternatives to use of cars for access to the proposed development, had such opportunities been fully entailed in the appeal scheme; it is notable that the council appears to have pragmatically acknowledged the effectiveness of similar informal links elsewhere in Banchory."

[31] It was submitted that on a fair reading of that section of his decision the Reporter had decided the narrow issue which was between the parties regarding pedestrian access in favour of the appellants.

[32] Counsel then argued that having decided that issue in the appellants favour the Reporter, in particular in paragraphs 6, 7, and 9 of his decision then went on to identify, consider and decide the appeal on the basis of a new and much wider issue, than the lack of formal status of the north-eastern link. It was contended that he then went on to consider whether the pedestrian linkage generally complied with certain local plan policies and held that the proposed north-eastern link and the proposed Upper Arbeadie Road link for reasons he sets out in paragraph 9 of his decision did not comply with these.

[33] In development of the argument that the decision relative to the north-eastern link involved consideration of a new issue it was submitted that at paragraph 9 of the Reporter's decision it was held that the north-eastern link was only one of "three potential informal links" on the eastern side of the site and that it was the "least beneficial" of these three informal links and thus must amount to failure under local plan policies Gen/1 and Inf/2.

[34] It was submitted on behalf of the appellants that what in effect the Reporter had done was to conduct a comparison exercise among the three potential informal links to the east of the site and decided that the access from the south-east of the site was the preferable one for reasons which he outlined in his decision and rejected the appellants' proposed north-eastern link as the least beneficial. Both of these links were accepted within the Reporter's decision to be informal links and accordingly the basis of the Reporter's decision was not one based on formality or lack of formality of the linkage, rather a new and separate issue had been raised by him and had been decisive in rejecting the appellants' application.

[35] It was submitted that the need for the link at the south-east of the site arose solely from the Reporter's concerns and that accordingly the primary reason he came to an adverse conclusion on the appeal was based on an issue which the appellants' could not reasonably have foreseen would be an issue in the case given the way that the matter had developed to the stage of the appeal to the Reporter between them and the planning authority.

[36] As regards the respondents reply to the argument that that the Reporter had had regard to a new issue counsel for the appellants characterised it generally as follows:

"What was being argued was that the appellants could reasonably anticipate the approach which had been taken by the Reporter and therefore should have presented a full case in relation to providing a south-eastern access. The primary response to the case of natural justice was that one must look at the actings of the Reporter in the context that he had exclusive jurisdiction on all matters of fact and planning judgment and was entitled to apply his mind to wider issues than the parties and that is what he did."

The broad reply to that contention on behalf of the respondent was this: it was accepted that the Reporter had exclusive jurisdiction in relation to such matters, however, the real issue was that the Reporter must discharge his statutory functions fairly. Here the concept of fairness arose in this way: a party should be given a fair opportunity to put his case and to answer all points adverse to his case. It was this opportunity which the appellants had been denied in this case.

[37] It was the position advanced on behalf of the appellants that the detailed arguments of the respondents failed to show that the appellants could reasonably have anticipated the approach of the Reporter.

[38] Turning to the specific arguments of the respondents in relation to whether this approach could reasonably have been foreseen it was argued that:

[39] First it had been submitted on behalf of the respondents that the appellants had recognised that the general issue of access and resulting compliance with the development plan policies arose and reference had been made to a number of specific passages in documentation prepared by the appellants.

[40] It was submitted on behalf of the appellants that the respondents' construction of these documents was incorrect. It was particularly argued that the context in which such statements and assertions had been made by the appellants had to be had regard to. The context of these assertions was this: that where other land ownership prevented the formalisation of a pedestrian link to the east the informal link was the best possible alternative. It was submitted that it was not being put forward on behalf of the appellants that the north-eastern link was the best among the three possible links to the eastern side of the site. It was submitted that this was not a fair reading of this documentation. Secondly it had been argued on behalf of the respondents that the general adequacy of access to the site had been raised by objectors and was therefore an issue which was squarely before the Reporter. It was accordingly a matter which the appellants ought to have known they required to deal with. The respondents relied in support of this submission on the objection of a Mr Christopherson.

[41] It was the submission on behalf of the appellants that when Mr Christopherson's objection was examined by reference to the minutes of the meeting at which the objection was put forward that it did not relate to the issue of pedestrian linkage to the east of the site but rather related to vehicular access to the site.

[42] Thus it was the position of the appellants that the adequacy generally of the eastern pedestrian link was not raised by a third party.

[43] Thirdly it had been argued on behalf of the respondents that the planning authority's response form 6/2 of process, paragraph 5 (which I have earlier quoted in this opinion) put the issue of the general adequacy of access to the site squarely before the Reporter.

[44] The appellants' reply was that if paragraph 6.7 of the Marr Report which was referred to in paragraph 5 of 6/2 was examined then the issue raised was clearly that of the lack of formality of the north-eastern link and not a general issue regarding adequacy of the proposed link.

[45] Further in advancing the position of the respondents that the Reporter had not taken account of a new issue some reliance had been placed on the use of the plural "paths" in 6/5/21 in order to show a wider question of access was being considered.

[46] In relation to this it was submitted on behalf of the appellants that the only reasonable construction of this section of 6/5 was that it referred to paths within the site, not outwith the site. It could not be suggested that it included the south-east link as the proposal lodged by the appellants did not include a south-eastern link.

[47] Lastly in putting forward the position that a more general access issue was squarely before the Reporter reference had been made to the fact that the link at the south-east of the site had previously been identified by the appellants as a possible means of access. It was, as I understood it, submitted on behalf of the appellants that although this was correct, it had to be borne in mind that a south-eastern link formed no part of the appellants' application which was before the Reporter.

[48] Having identified the new issue which the Reporter had had regard to without calling for further submissions it was submitted on behalf of the appellants that the test of whether in those circumstances there had been a breach of natural justice was that set forth by Lord Russell of Killowen in Fairmount Investments Limited v Secretary of State for the Environment at 1265 and 1266 where he says:

"All cases in which principles of natural justice are invoked must depend on the particular circumstances of the case. I am unable, my Lords, in the instant case, to generalise. I can only say that in my opinion, in the circumstances I have outlined, Fairmount has not had - in a phrase whose derivation neither I nor your Lordships could trace - a fair crack of the whip."

[49] The submission for the appellants was that the appellants in this matter had not been given a fair crack of the whip by the Reporter.

[50] Counsel elaborating upon this said that the concept of fairness arose in the particular circumstances of this case in this way: a party should be given a fair opportunity to put their case and to answer all points adverse to their case. If they were not given such an opportunity then they had not been given a fair crack of the whip.

[51] The appellants here had not been able to comment on and seek to deal with the Reporter's views as to the unsuitability of the north-eastern link, given that he was holding that the mere fact of its non formalised nature did not make it unsuitable. Nor had they been given the opportunity to comment on and seek to deal with the Reporter's views as to the suitability of the south-eastern link when compared with the north-eastern link.

[52] It was submitted for the reasons already advanced that the appellants had no reason to think that given the planning authority's ground for refusal that the Reporter would consider the question of whether the north-eastern link was the most suitable pedestrian link and would in deciding that issue compare that link to two other links which formed no part of the proposal and was a matter upon which he had had no submissions from either party and neither party had presented any evidence. It was submitted that the appellants would have wished to have put before the Reporter evidence seeking to counter the views which he had arrived at in relation to this new issue.

[53] My attention was drawn to Anduff Holdings v Secretary of State for Scotland 1992 SLT 696. In this case it was held that the Reporter's grounds of decision were based on issues not raised by the parties and that the principles of natural justice required that the applicants should have had an opportunity to deal with these issues.

[54] The Lord Justice Clerk (Lord Ross) at page 698 J - K set out the essential facts of the case:

"In my opinion counsel for the appellant is well founded in contending that the district council had refused the application on the ground of use, and that the Reporter's first ground of decision was based upon design which was an issue which had not been raised by either of the parties and as to which the appellants had had no opportunity to make submissions. Having regard to the terms of the district council's reasons for refusal and their observations, the appellants had no reason to think that design considerations had anything to do with the refusal of planning permission. The Reporter gave them no opportunity to address him upon the matter of design, and in these circumstances I am satisfied that there was a denial of natural justice. If the district council in their reasons for refusal or in their observations had made reference to the physical design of the appellants' proposal I have no doubt that the appellants would have made submissions in that regard."

[55] The Lord Justice Clerk at 699G - I went on to observe:

"Counsel for the respondent submitted that the Reporter was always entitled to use his own expertise, and he referred to Ladbroke Racing Limited v Secretary of State for Scotland. It was there observed (at page 710) that the Reporter was entitled in reaching his conclusions to make use of his own planning experience and expertise. I entirely accept that that is so. The present case appears to me, however, to be quite different on its facts from Ladbroke Racing Limited v Secretary of State for Scotland. As was observed by Lord Russell of Killowen in Fairmount Limited v Secretary of State for the Environment, all cases in which principles of natural justice are invoked must depend on the particular circumstances of the case. In Ladbroke Racing Limited v Secretary of State for Scotland it was considered that the Reporter was entitled to reach the conclusions at which he had arrived although no evidence had been led before him in relation to part of his ground for decision. In the present case, however I am satisfied that fairness to the appellants required that they should have had an opportunity to comment upon the suggestion that it was possible that the adjacent triangular site would remain unused."

It was submitted by counsel that this case was very much on all fours with the appellants' case. It was submitted that as in the appellants' case the Reporter had decided the appeal on the basis of a matter which had not been raised in the grounds for refusal or observations. It was submitted that as in the appellants' case the basis upon which he had decided the case was not one which the applicants could have reasonably foreseen. The Lord Justice Clerk thereafter having accepted that a Reporter was entitled on reaching his conclusions to make use of his own planning experience and expertise nevertheless held that there had been a denial of natural justice in that the appellants had not been able to make representations in relation to this new issue.

[56] It was accordingly in summary submitted that the Reporter having taken account of and decided the case upon the basis of a new matter without obtaining representations from the appellants and the planning authority on this new matter there had been a breach of natural justice and his decision should be set aside.

Breach of Regulation 12 of the 2008 Regulations

[57] Turning to the second principal argument, namely: the issue of the breach of the 2008 Regulations it was the appellants' position that in particular there had been a breach of Regulation 12.

[58] It was the position advanced on behalf of the appellants that neither they nor the planning authority had raised the issue of which of the three possible links to the eastern side of the site formed the best link. Neither party had in fact within the body of this application and its refusal referred to the possibility of either of the two other links being used as a means of pedestrian access. It was thus submitted that there was no evidence placed before the Reporter on behalf of either the appellants or the planning authority in relation to that particular issue. Nor had either party made any submissions in relation to that issue.

[59] Given the foregoing it was submitted that in arriving at his conclusion that the north-eastern link was the least beneficial the Reporter must have had regard to evidence which he had gained from his locus inspection.

[60] Where such a comparison exercise was undertaken by the Reporter he must have collected evidence in order to carry this out. That evidence collected must have included evidence as to the suitability of all three paths including the issue of whether they were suitable having regard to their quality as links. In considering the quality of the paths he would have had to have looked at evidence as to the particular nature of them including how they were surfaced, their state of maintenance and how they were lit. In addition he would have had to consider evidence as to the precise positioning of the paths and distances from other relevant points. It was submitted that this evidence could only have been obtained as a result of the site inspection. There was no other source for this evidence.

[61] It was submitted that all of this was new evidence in the sense that none of it had been presented to the Reporter for his consideration by either the appellants or the planning authority.

[62] It was submitted that on a fair reading of the Reporter's decision at its heart was this comparison exercise and therefore it was clear that this new evidence formed a material part of the determination made by the Reporter. He had not afforded the appellants or the planning authority an opportunity of making representations on this new evidence and accordingly the Reporter had breached the terms of Regulation 12.

3. The Subsidiary Grounds of Appeal

[63] The appellants' third ground of appeal as developed in the course of oral

submissions was to the effect that the Reporter had made a factual error. This ground related to the Reporter's factual findings regarding Upper Arbeadie Road's use as a link.

[64] In relation to the issue of factual error by the Reporter I was taken by counsel for the appellants to productions 6/6 to 6/9 of process which were respectively:

·       A table showing comparative distances of routes to town centre (post office and schools) from proposed Upper Arbeadie Development

·       Plan showing routes from proposed Upper Arbeadie Development to schools and post office.

·       Plan showing current access from existing Upper Lochton development and intended new routes through proposed Upper Arbeadie development.

·       Plan showing existing and proposed community facilities in Banchory in relation to the Upper Arbeadie development.

[65] These productions it was argued illustrated factual errors in relation to the following finding within the Reporters decision:

"However, even so it (the Upper Arbeadie Link) would be discouragingly longer and less direct for non motorised access to schools and much of the town, compared to informal but, for most people, usable access from the south-east corner of the site, taking advantage of short cut paths between streets to the south."

[66] It was submitted that having regard to these productions the court could hold that there was a factual error contained within the Reporter's decision. It was submitted that if there were such a factual error then the court could properly hold that such a factual error could found a head of challenge in an appeal on a point of law. In support of this submission I was referred to E v Secretary of State for the Home Department 2004 EWCA Civ 49 QB 1044. In the opinion of Lord Justice Carnwath at paragraph 66 he states after observing that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law that the requirements for a finding of unfairness in such circumstances are as follows:

"Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of CICB. First there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellants (or his advisors) must not have been responsible for a mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."

[67] It was submitted that having regard to the test that first the productions evidenced the mistake in fact i.e. it was shown that the finding as to distances as set out in paragraph 64 of this opinion was factually incorrect. Secondly it was submitted the evidence as to distance referred to in that opinion was uncontentious and objectively verifiable. Thirdly the appellants were not responsible for the mistake. Fourthly it was submitted that having regard to the matter upon which the error related namely distance this clearly formed a major part of the Reporter's decision. It was thus submitted that for the foregoing reasons that on this third basis the Reporter's decision should be set aside. These submissions under this ground of appeal to some extent tied in with the submissions under the first two grounds of appeal in that this finding relative to Arbeadie Road formed part of the comparison exercise and thus part of the consideration of the new issue and accordingly it should have been a matter upon which the Reporter should have called for representations. Equally, it was a matter based on new evidence which he had again founded upon and which required him to call for further representations and he had thus breached natural justice and Regulation 12 of the 2008 Regulations.

[68] The final ground of appeal which was argued in the course of oral submissions was a development of the argument based on failure by the Reporter to call for representations.

[69] In relation to this separate argument on failure to call for representations it was put forward on behalf of the appellants that the Reporter had had regard (see paragraph 10 of his decision) to design policy guidance contained in a document Designing Places and that this had had a material bearing on his decision.

[70] It was argued that in failing to call for further representations relating to the materiality of the policy guidance contained therein the Reporter had breached his obligations in terms of natural justice.

[71] Finally certain submissions were advanced regarding what constituted substantial prejudice. I was referred to Hibernian Property Company Limited v Secretary of State for the Environment and Another 1974 27 P & CR 197 where it was held at 198.

"The question in relation to an alleged failure to observe the rules of natural justice was not whether the information had in fact prejudiced them (the applicants) by contributing to the decision of the Secretary of State to confirm the compulsory purchase order but whether there was a risk that it might have done so....and therefore "the applicants had necessarily been substantially prejudiced"

[72] It was submitted that applying that test across to the sphere of planning and applying it to the circumstances of this case it was clear that in so far as the appellants had to establish material prejudice then on the fairly low test of whether there was a risk that the appellants had been prejudiced the appellants had clearly fulfilled that test.

[73] In particular the appellants relied in support of their position that a failure to allow representations could amount to substantial prejudice on the case of Central Regional Council v Secretary of State for Scotland and Strathclyde Regional Council 1991 SCLR 348. In that case the appellants had had no notice of a proposed modification to the structure plan of the second respondent and no opportunity to make representations thereon. At 356C - D it was observed by Lord McCluskey:

"Had it been necessary to consider whether or not the interests of the appellants had been substantially prejudiced, then I should have concluded that such prejudice was clearly established by the failure to offer the appellants the opportunity to make representations or objections in time to the proposed modifications."

[74] In conclusion for the foregoing reasons it was moved that the appeal should be granted and the Reporter's decision quashed.

Submissions on behalf of the respondents

1. Reply to the ground of appeal based on breach of natural justice

[75] Junior counsel for the respondents opened his argument by setting out the respondents' basic position which was this: this ground of appeal was misconceived as in essence it invited the court to go into the Reporter's exclusive planning jurisdiction.

[76] As the argument developed it was stressed on behalf of the respondents that in so submitting it was not being argued that the appellants had to second guess the Reporter. It formed no part of the respondents' position that the appellants had to answer every single possible point that a Reporter might think up. It was accepted that the Reporter must act fairly and in accordance with natural justice. What, however, the respondents were saying was this: the Reporter had acted fairly in that no new issue had arisen, and there was therefore no obligation upon him to return to the appellants and the planning authority in order to obtain their further representations.

[77] In elaborating upon that general position seven specific points were put forward on behalf of the respondents which were:

(1) It was clear, at the outset of the appeal, that an issue arose as to the adequacy of the proposed access to the subjects, including access to the east of the subjects, and whether, having regard to the proposed access, the development complied with development plan polices.

(2) The appellants had an opportunity, which they took advantage of, to make representations on that issue. Having regard to the terms of the new planning appeal regulations and the accompanying circular, the appellants knew or ought to have known that full representations required to be provided at the outset and that they may not have an opportunity to make further representations.

(3) Having carried out a site inspection, the Reporter had discretion whether to request further representations on the question of access or whether to determine the appeal on the basis of the evidence before him i.e. the representations and information supplied by the parties and the findings of his site inspection. He considered that he had sufficient evidence to enable him to determine the appeal and was entitled to come to that view.

(4) The Reporter concluded that the proposed access arrangements were inadequate, in particular, because of a failure to incorporate a link to the south east of the subjects, and that this failure resulted in non-compliance with the development plan. That was a conclusion reasonably open to the Reporter on the basis of the evidence before him.

(5) In reaching his determination the Reporter correctly followed the procedure contained in the 2008 Regulations. He did not err in fact or in law, nor did he act unfairly, in reaching his decision.

(6) The Reporter did not take into account new evidence. Esto the Reporter's site inspection constituted new evidence which was not accepted then that evidence was not material to the determination of the appeal as evidence about the adequacy of the proposed access to the subjects was already before him.

(7) The underlying nature of the dispute concerned competing arguments about the relative advantages and disadvantages of different access routes to and from the subjects which was a matter for the Reporter to resolve using his judgment and expertise.

[78] In advancing the argument in relation to the first of his seven specific points counsel submitted that it was clear at the outset of the appeal that the general issue of the adequacy of the proposed access to the site arose by considering first:

the planning authority's reasons for refusing the application and from a consideration of the appellants' statement of appeal.

The planning authority's reasons for refusal included:

"The applicant has ... failed to demonstrate that an appropriate formal pedestrian and cycle linkage can be formed into the adjacent development of Cairds Wynd, which could connect up with Banchory's schools and future leisure and retail development within the Hill of Banchory. Therefore the proposals...fail to comply with the requirements of Policy Inf/1: Roads and Accesses of the adopted Aberdeenshire Local Plan 2006, which states that development must provide access which is designed to be safe and convenient for pedestrians and cyclists.

[79] From the foregoing it was the respondents' position that it was clear from the planning authority's reasons for refusing the application that a wider issue than merely the informality of the north-eastern link was the basis for refusing the application.

[80] Developing the position that from a consideration of the appellants' statement of appeal it could be seen that this wider issue was squarely before them it was the respondents' position that assertions were made by the appellants within the statement of appeal which made it reasonably foreseeable that the Reporter would consider alternative access routes. In particular reference was made to the following:

"(1) In respect of Inf/2, "It is clear that Bancon have done the maximum possible to address this policy" and, in respect of Gen/1, "There is no conflict with this policy" (6/1/21, para 4b).

(2) In respect of pedestrian access, "Bancon have sought to provide the best possible access arrangements without restricting development altogether through unreasonable ransom payments"; the road between the site and Upper Arbeadie Road "provides the most direct route from the site to Banchory Academy and Banchory Primary School"; Banchory Primary School "is accessed most conveniently to the south of the site, by Upper Arbeadie Road" (6/1/27 to 28, para 5i).

(3) A map was provided showing the site in its wider context, with services such as schools, leisure and retail services identified throughout Banchory, including Hill of Banchory, and not restricted to the town centre (6/1/28; map included in document 7 enclosed with the statement of appeal).

(4) As regards land ownership, a compromise position was available to the east of the site, by forming informal path links (as had been done on adjacent sites) to link the proposed development (and, indeed, the existing development at Upper Lochton) to the wider footpath network, "This would increase connectivity to the town centre, the Academy and primary schools, and other facilities for the residents of this site, and equally for existing residents at Upper Lochton, Cairds Wynd and the surrounding area" (6/1/28, para 5j)

(5) Again, as a regards pedestrian access, "Bancon have provided links to informal path networks as a best available solution to the east of the site" (6/1/34, para 7). (emphasis added)

It was submitted that from these representations that the general issue of access, including access to the east of the site, was in the mind of the appellants at the outset of the appeal. The appellants were provided with an opportunity, which they took as above shown, to make detailed representations on the question of access and compliance with development plan policies.

Under reference to their specific point 2 it was stressed that the appellants must have known that they required to make full representations at the outset and therefore required to make full representations from the outset on the general issue of access.

[81] It was the respondents' position that the Reporter was entitled to consider whether the representations made on behalf of the appellants in their appeal documents were correct. The Reporter concluded that these assertions were not correct. It was submitted that when the appellants made assertions of this type the Reporter was bound to consider their accuracy. It was for the appellants to give sufficient information at the outset of the appeal to establish these assertions.

[82] It was also submitted that various other documents showed that the general issue of access and resulting compliance with development plan policies arose and not merely the narrow issue of informality of the north-eastern link.

[83] Reference was made to 6/2 of process at paragraph 5 where it was stated:

"Failure to provide sufficient pedestrian access link

Please refer to section 6.7 of the attached Marr Area Committee Report 29/9/09, which provides an in depth discussion relating to access."

Then reference was made to 6/5 of process at Appendix 4, page 21 where references were made to paths in the plural. It was contended that this showed that the appellants understood that more than one path was being considered.

[84] Further reference was made to an objection made by a Mr Christopherson and this was also said to show that the general issue of access was one which the Reporter would have to have regard and that this should have been known by the appellants.

[85] Thereafter it was submitted that having regard to the documentation the Reporter considered the representations and information supplied by the parties. He undertook a site inspection, being the only form of further procedure requested. At the site inspection the Reporter examined the various access routes (i.e. the route proposed by the appellants and the two other possible links to the east of the subjects) and how the various routes connected with surrounding subjects and the town more generally. The various access routes and their connectivity with surrounding subjects and the town more generally were matters raised by the planning authority's reasons for refusal and the appellants' statement of appeal as set out above. The Reporter's site inspection did not, in itself, constitute "new evidence". Instead, the site inspection provided an opportunity for the Reporter to consider parties' representations, including those on access, with reference to the situation "on the ground"

[86] At the site inspection it was submitted that the Reporter looked at and tested the assertions made on behalf of the appellants and did no more. It was accepted that the proposed development did not include the link to the south east of the site, however the Reporter was entitled to consider that link as it was a possible access route and, as such, was relevant to the general issue of the adequacy of the access arrangements. In addition, having asserted, as noted above, that they had provided links to informal path networks "as a best available solution to the east of the site", the appellants put in issue whether the link chosen by them was indeed the best of the available links to the east of the site. That, inevitably, involved a consideration of other possible existing links at the east of the site, being links the appellants had themselves previously identified and were shown in site drawings included in the appellants' statement of appeal (at 6/1/9 and 6/1/12). In these circumstances, the link to the south east of the site did not constitute new evidence and there was no duty on the Reporter to request further representations or information on that link. Parties had already had an opportunity to make detailed representations on the question of access, including that link, and the Reporter was of the view that he had sufficient evidence before him to enable him to determine the appeal. He was entitled to come to that view in that it fell within the range of options reasonably open to him and gave rise to no unfairness to the parties. The Reporter it was submitted concluded that for the great majority of the 27 houses at the development, the lack of the two other possible links at the east of the site and, in particular, the omission of the link at the south east of the subjects, represented a "serious missed opportunity". He considered that these links offered the shortest and most direct route "to schools and much of the town" when compared with the Upper Arbeadie Road route which was "discouragingly longer and less direct" (paragraph 6 of the decision notice).

18. He went on to conclude that:

"Overall, the provision of only the least beneficial of three potential informal links into the woodland path and existing streets from the south-eastern part of the site, the impracticably indirect pedestrian linkage for most destinations by the only vehicular access from the north and the relative indirectness for most destinations of the link by Upper Arbeadie Road must amount to failure under local plan polices: Gen\1 (c), by which development should reduce the need to travel using private cars and allow safe, easy access by walking an cycling; and Inf\2, by which development should (a) be well related to existing settlements and (b) accessed conveniently by walkers and cyclists" (paragraph 9 of the decision notice).

It was submitted that the Reporter was entitled to come to these conclusions on the basis of the evidence before him and that, in doing so, he did not err in fact or law or act unfairly.

[87] In conclusion on this particular ground of appeal reference was made to the Trustees of the Lawrence Sheriff School and another v The Secretary of State and in particular to paragraph 10 thereof where Mr Justice Collins after observing that the test as to whether further representations should be called for is the fair crack at the whip test went on to say:

"The concerns (upon which the Secretary of State had called in the case) extended over a wide area. Accordingly, the parties should have appreciated that they could not assume that any agreement between them would be accepted by the inspector. They had to show compliance. They had to establish that this was a development which did not conflict or, to the extent that it did, was to be regarded as acceptable. This does not mean that an inspector will never have to disclose concerns where the parties have apparently assumed that there were none, but the general obligation to satisfy the Secretary of State of the matters which were identified will usually mean that no assumption can properly be made that an agreement will be accepted."

[88] As I understand it the court was referred to this case as an example of where the court had applied the fair crack of the whip test and had considered the circumstances of how that test should apply in relation to the issue of a Reporter calling for further representations. It was drawn to my attention that in paragraph 1 of the report Mr Justice Collins set out that the development had been agreed by the planning authority. Paragraph 10 however made it clear that that did not entitle the parties to assume that any measure of agreement between them would simply be accepted by the inspector. The point as I understand it that it is sought to take from this case is that parties must consider what it is reasonably foreseeable that a Reporter might consider and merely because there was agreement between them did not mean that that matter on which there was agreement would not be considered by the Reporter.

2. Breach of Regulation 12 of the 2008 Regulations

[89] Turning to the respondent's reply to the ground of appeal based on the breach of Regulation 12 of the 2008 Regulations it was submitted that the Reporter determined the appeal in accordance with the procedure set out in the 2008 Regulations, including regulation 8. A site visit clearly represents "further procedure" in terms of regulations 7 and 8. Regulation 8(2) gives a Reporter a discretionary power to request further representations or information, it is not a duty. (emphasis added)

[90] It was accepted that Regulation 12 did, however, place the following duty on a Reporter:

"If after the conclusion of any further procedure conducted by virtue of regulation 8, the appointed person proposes to take into consideration any new evidence which is material to the determination of the appeal, the appointed person must not reach a decision on the appeal without first affording the appellants, the planning authority and other relevant party an opportunity of making representations on such new evidence"

It was submitted on behalf of the respondents under reference to certain of the submissions that had been made in reply to the first ground of appeal that the Reporter had ingathered no new evidence and even if the site inspection did amount to "new evidence" in terms of regulation 12, it was not "material to the determination of the appeal" in that evidence about routes, distances and the location of the site in relation to schools and other destinations was already before the Reporter, as contained in parties' written representations and supporting documentation.

[91] It was submitted that in the context of this case what information the Reporter had obtained at the site visit did not amount to new evidence which was material to the determination of the appeal. What the Reporter was doing was no more than seeing the lie of the land. The site inspection did no more than enable the Reporter to look at the site and see it through his own eyes. The site inspection was in order to clarify what was already presented to him in the planning appeal and the response. The Reporter was entitled to carry out that checking process using his own eyes and own planning experience and judgment.

[92] Counsel contrasted what the Reporter had done in the present case to what had been done by the Reporter in Hibernian Property Company Limited v Secretary of State for the Environment and another.

[93] The relevant factual matrix in the Hibernian case was that at the inquiry two petitions and a letter from residents in the order area were put before the inspector. The council relied on these petitions though the present applicants and other objectors criticised them as being unreliable. None of the signatories of the petitions or of the letter and no occupier supporting demolition gave evidence at the inquiry. Doubts were expressed during the inquiry as to the validity of the residents' petitions.

[94] The Reporter against that background as set out at page 203 went on to do the following:

"The information given to me by the occupiers of thirty nine of the houses in the order was received in the absence of any representative of the Hibernian Property Company Limited because no representative accepted the invitation to accompany me on my inspection of the order lands. I deliberately asked the questions of those occupiers because no such person had actually been called as a witness by the council or by Hibernian, although two petitions and a letter urging clearance rather than improvement had been mentioned in evidence; and in the council's reply its representative had referred to the alleged wishes of local residents in favour of clearance. In addition comments have been made on behalf of Hibernian property company limited and another objector and in all the circumstances I considered it proper to ask the questions referred to in paragraph 217 of my report."

[95] At page 218 Browne J observed in relation to the actings of the Reporter:

"The result is that I feel compelled to quash this order under both heads of paragraph 2(ii) of Schedule 4....I suppose that most judges have felt the temptation to try to find out the truth for themselves by their own investigations when the evidence at the hearing has been left in an unsatisfactory and uncertain state. When the inspector gave way to this temptation I have no doubt at all that she was acting from the highest motives. ........

In view, however of the authorities to which I have referred and of the vital importance of ensuring the strictest observance of the rules which the courts have laid down as being those of natural justice, I am in my judgment, bound to quash this order, which I accordingly do."

[96] Counsel described what had been done by the Reporter in that case as being a world away from what the Reporter did in the present case. What was done by the Reporter in the Hibernian case was clearly a frolic of her own. At the site visit in the instant case the Reporter clearly did no more than check what was on the ground. What the inspector had done in the Hibernian case was having spotted a hole in the evidence she plugged it by evidence she obtained at the locus visit.

[97] The actings of the Reporter in the Hibernian case could clearly be characterised as the obtaining of new evidence. That contrasted clearly with what had happened in the instant case.

[98] It was submitted that when one looked to construe Regulation 12 some content had to be given to the word "new" within that Regulation. It was the submission made on behalf of the respondents that there was for the reasons they had advanced nothing new which the Reporter had obtained at the locus.

[99] It was submitted that were it to be held that every time a Reporter went on a site inspection and checked the assertions made in the papers before him that this amounted to new evidence this would have very considerable consequences as it would require in every such case for there to be a call for further representations. That could not have been the intention of Regulation 12.

[100] In summary regarding the issue of fairness as raised in terms of the natural justice argument and in relation to the breach of Regulation 12 it was submitted that it was clear from the outset of the appeal that an issue arose as to the adequacy of the proposed access arrangements, including access to the east, and corresponding compliance with development plan policies. The appellants had an opportunity, which they took, to make detailed representations on that issue. They knew or ought to have known that full representations required to be made at the outset and that they may not be given an opportunity to make further representations. Such an approach it was submitted was consistent with both the letter and spirit of the 2008 Regulations.

[101] The Reporter was entitled, and indeed required, to come to his own view on the issue of access, regardless of the position of the planning authority. For the reasons advanced all of the possible access links to the east of the site had been put in issue and the Reporter was entitled to consider all of the possible access routes, and to make appropriate findings, without further recourse to the parties. The Reporter had an adequate evidential basis for his conclusions regarding the different access routes as a result of the representations from the parties and his site inspection.

[102] The Reporter took account of the disadvantages of the woodland path but considered that the path could still be used by pedestrians and cyclists (paragraphs 5, 6 and 7 of the decision notice). Having undertaken a site inspection, the Reporter was best placed to consider the advantages and disadvantages of the woodland path and the extent to which it is suitable for use by pedestrians and cyclists. In any event, it is noted that in seeking planning permission the appellants themselves rely upon the woodland path as providing access to the east of the site and it is illogical and inconsistent for the appellants to now seek to argue that the path is unsuitable as an access route. It is further noted that it is not part of the Reporter's decision that the proposed access along Upper Arbeadie Road should not also be available i.e. access along Upper Arbeadie Road and access via the south east of the subjects would be complimentary and not alternatives.

[103] For these reasons it was submitted that the Reporter did not have a duty to invite further representations or information from the parties. In any event, even if the Reporter had given parties an opportunity to make further representations, the appellants had not demonstrated that the outcome was likely to have been different. The productions lodged by the appellants in the present appeal reinforced, rather than undermined, the Reporter's findings.

3. The Subsidiary Grounds of Appeal

[104] As regards the ground of appeal based on error of fact it was submitted on behalf of the respondents that the Reporter did not make a material error in determining the appeal. He found that the two other possible links at the east of the site and, in particular, the link at the south east of the site, offered the shortest and most direct route "to schools and much of the town". Matters of fact and any inferences and conclusions to be drawn therefrom are matters for a Reporter. In any event, the correctness of the Reporter's findings anent schools is confirmed by the appellants' table lodged as production 6/6. The table clearly shows that for each of the four different locations at the subjects chosen by the appellants the link at the south east of the subjects represents the shortest route to Banchory Primary School and Banchory Academy when compared with the two routes proposed by the appellants (i.e. the route via Upper Arbeadie Road and the most northerly of the three links to the east of the subjects). Far from showing that the Reporter proceeded on the basis of a factual error, the appellants' own calculations, at least in so far as access to schools is concerned, confirm the correctness of the Reporter's findings.

[105] The Reporter also found that the two other links at the east of the subjects including, in particular, the south east link, provided the shortest and most direct route to "much of the town". By "much of the town" the Reporter is clearly referring to the town of Banchory as a whole (see, for example, the map of the town included in document 7 enclosed with the statement of appeal). Having examined the site and how it connects with surrounding subjects and the town more generally the Reporter is best placed to consider which access routes to and from the site provide the shortest and most direct routes to various parts of the town.

[106] No evidence it was submitted had been produced to establish that the Reporter erred in fact in finding that the two other links at the east of the subjects including, in particular, the south east link, provided the shortest and most direct route to "much of the town". While the table lodged as production 6/6 shows that the route via Upper Arbeadie Road is the shortest route from the subjects to the post office, the Reporter did not find that the link at the south east of the subjects was the shortest route from the proposed development to the post office or, indeed, the town centre. Instead, as he was entitled to do, the Reporter looked at matters more broadly and found that the link at the south east of the site was the shortest route to "much of the town". The factual accuracy of that finding is not called into question, far less proved, by the documents lodged by the appellants

[107] Finally in reply to the ground of appeal based on the Reporter's reliance on the document Designing Places it was submitted that Designing Places sets out national planning policy and, as such, is a material consideration the Reporter was entitled to have regard to. That is particularly so given that the document was referred to in the planning authority's response to the notice of appeal. The appellants had an opportunity to respond to the planning authority's response. In any event, the passage from Designing Places referred to by the Reporter relates to a matter the appellants had already had an opportunity to make representations on, namely, the adequacy of non-vehicular access to and from the site. Furthermore, the Reporter had already concluded that the application was not in accordance with the local development plan (paragraph 9 of the decision notice) before going on to consider whether there were other material considerations, including the policy guidance in Designing Places, which indicated that approval should nonetheless be granted (paragraph 10 of the decision notice). The Reporter concluded that the guidance in Designing Places reinforced rather than contradicted the presumption against the proposal in terms of the development plan (paragraph 11 of the decision notice). Even if the Reporter had not had regard to the guidance in Designing Places his decision would, therefore, have been the same.

[108] In summary it was submitted the appellants had an opportunity to refer to such documents as they wished at the outset of the appeal and it was now too late to seek to found on additional documents. In addition, it was as earlier submitted not part of the Reporter's decision that the proposed access along Upper Arbeadie Road should not also be available. In any event, given the Reporter's findings that the two other possible links at the east of the site and, in particular, the south east link, offered the shortest and most direct route "to schools and much of the town", the outcome was unlikely to have been different had the Reporter had regard to the documents now founded upon by the appellants.

[109] For the foregoing reasons it was submitted that the Reporter did not err in fact or law, or act unfairly and that the appeal should be refused.

Discussion

1. Natural justice

[110] The appellants' complaint is that the Reporter identified a new issue and that he thereafter determined the appeal on the basis of that new issue without the opportunity being given for representations to be made by the appellants in order to seek to deal with that issue. Thus it was argued that the appellants did not have a fair crack of the whip.

[111] The respondents' reply reading short is this: the Reporter did not decide the appeal on the basis of a new issue, there was accordingly no need for him to call for further representations and thus he had discharged the obligations which he owed at common law to the appellants.

[112] A helpful discussion of the principles which the court should apply when considering whether a party has had a fair crack of the whip is contained in the judgment of Mr Justice Sullivan in R on the application of Tatham Homes Limited v First Secretary of State and another 2005 EWHC 3538 (Admin) where at paragraph 13 after observing that:

"Whether or not a party to an inquiry has been given a fair crack of the whip will very much depend upon the particular circumstances of the case."

he then refers to the judgment of Ouseley J in Castleford Homes v Secretary of State for the Environment, Transport and the Regions and Royal Borough of Windsor and Maidenhead 2001 EWHC Admin 77 who at paragraph 52 said this:

"The relevant law, though not cited to me, is to be found in cases such as Fairmount Investments Limited v Secretary of State for the Environment....did the claimant have a fair crack of the whip? Was the claimant deprived of an opportunity to present material by an approach on the part of the inspector which he did not and could not reasonably have anticipated, or is he trying to improve his case subsequently, having been substantially aware of or alerted to the key issues of the inquiry? Did he simply fail to realise that he might lose on an aspect which was fairly and squarely at issue and hence failed to put forward his fall back case. Those are the sort of questions which can be used to guide inclusion as to whether the manner in which a particular issue was dealt with at an inquiry involved a breach of natural justice and was unfair."

[113] Further assistance as to the obligations of a Reporter to inform parties in relation to matters concerning him can be obtained from the observations of Mr Justice Collins in Trustees of Lawrence Sheriff School and Persimmon Homes Midlands Limited v The First Secretary of State.

[114] After setting out the general principle of parties being given a fair crack of the whip he goes on at paragraph 10 to say:

"The concerns (upon which the Secretary of State had called in the matter) extended over a wide area. Accordingly, the parties should have appreciated that they could not assume that any agreement between them would be accepted by the inspector. They had to show compliance. They had to establish that this was a development which did not conflict or, to the extent that it did, was to be regarded as acceptable. This does not mean that an inspector will never have to disclose concerns where the parties have apparently assumed that there were none, but the general obligation to satisfy the Secretary of State of the matters which were identified will usually mean that no assumption can properly be made that an agreement will be accepted. If there is an issue of fact which could be covered by evidence and which the parties assume is not contentious, it may be that an inspector would not act fairly if he did not raise his concerns but reached an adverse conclusion on the basis of lack of evidence. But where the issue involves a planning judgment or a proper construction of a policy in a plan or its application to a particular factual situation, it seems to me that an inspector cannot, generally speaking, be criticised for not raising concerns at the time. It should be obvious to the parties that they have to deal with such issues."

[115] Having looked at the observations made in these two cases as to the approach that the court should take when considering whether a matter was truly a new issue and therefore required a Reporter to call for further representations I turn to the way the Reporter has approached this appeal as set out in his decision.

[116] At paragraph 9 of his decision the Reporter says the following:

"Overall, the provision of only the least beneficial of three potential informal links into the woodland path and existing streets from the south eastern part of the site, the impracticably indirect pedestrian linkage for most destinations by the only vehicular access from the north, and the relative indirectness for most destinations of the link by Upper Arbeadie Road must amount to failure under local plan policies Gen\1(c), by which development should reduce the need to travel using private cars and allow safe, easy access by walking and cycling; and Inf\2, by which development should (a) be well related to existing settlements and (b) accessed conveniently by walkers and cyclists."

[117] The Reporter went on to conclude at paragraph 10 that in light of the matters identified in paragraph 9:

"There is still a substantial failure under terms of the development plan..."

[118] On a proper reading of the decision it appears that the determining issue for the Reporter was this: the general adequacy of the proposed pedestrian access arrangements. He has then held, having considered that issue that there is a substantial failure in terms of the development plan.

[119] The question for the court then becomes: could the appellants have reasonably foreseen that this was an approach which would be adopted by the Reporter? Another way to put this would be to ask this: was this question of the general adequacy of the pedestrian access arrangements one which was clearly in issue from the outset of the appeal? It was contended on behalf of the respondents that not only the general issue of the adequacy of pedestrian access was at issue but the even wider issue of the general adequacy of access arrangements.

[120] The respondents in seeking to establish that the above was clearly, in issue from the outset in particular relied on the following:

[121] First that the planning authority's refusal notice, 6/4 of process, clearly raised this issue. In particular reference was made to part of paragraph 1 of 6/4 which states as follows:

"The applicant has also failed to demonstrate that an appropriate formal pedestrian and cycle linkage can be formed into the adjacent development of Cairds Wynd, which would connect up with Banchory schools and future leisure and retail development within the Hill of Banchory. Therefore the proposals also fail to comply with the requirements of policy Inf\1: Roads and Accesses of the Adopted Aberdeenshire Local Plan 2006,..."

[122] The respondents also, as I understood it, sought to rely on 6/2 of process at page 3, paragraph 5, which is the appeal response form lodged by the planning authority which states:

"Failure to provide sufficient pedestrian access link

Please refer to section 6.7 of the attached Marr Area Committee Report 29/9/09 which provides an in depth discussion relating to access."

[123] Turning first to 6/4 of process the refusal notice, it is in my judgment of critical importance in arriving at a proper construction of that passage in the refusal notice to note the use of the word "formal" when the planning authority refers to the failure to demonstrate that an appropriate pedestrian and cycle linkage can be formed into the adjacent development of Cairds Wynd.

[124] The inclusion of that word when referring to the appropriateness of the pedestrian and cycle linkage clearly indicates that the planning authority's reason for refusal was a narrow one, namely: that the pedestrian and cycle linkage proposed by the appellants could not be formalised and that it was this very specific point which prevented the proposed pedestrian and cycle linkage being appropriate.

[125] That it was this narrow point regarding the inability on the part of the appellants to formalise the link which was the concern of the planning authority so far as pedestrian access was concerned is confirmed by reference to 6/2 of process their appeal response. At paragraph 5 as far as failure to provide sufficient pedestrian access links is concerned it directs the Reporter for their detailed reasons to paragraph 6.7 of the Marr Area Committee Report.

[126] When 6.7 of the said report is examined the part which deals with pedestrian access is at 6.7.2. There it is said as follows:

"Roads have however recommended refusal of this application on the grounds of insufficient information. An adequate link should be properly formed to the east of the site through to Cairds Wynd which would provide a safe pedestrian and cycle route to the south towards Banchory schools and would also form a logical connection to the Hill of Banchory's future leisure and retail developments. Presently the proposals indicate a link formed up to the tree belt to the east, which currently has an informal pathway running through it. However as this section of land is outwith the control of the applicant, a formal access cannot be achieved through this area to continue with a link into Cairds Wynd. The proposals would therefore contradict policy Inf\1: Roads and Accesses of the Local Plan which states that access must be convenient and safe for pedestrians and cyclists."

[127] It is clear on looking to 6.7.2 that it is the inability of the appellants to provide a formal access due to their lack of control of the land that results in the recommendation of refusal of the application.

[128] Having regard to these documents it appears to me that on a fair reading they can be construed in only one way, namely: that in relation to the issue of pedestrian access there was only one narrow problem which was identified by the planning authority and which resulted in refusal of the application and that is the inability of the appellants to be able to offer a formal pedestrian link to the east of the site through to Cairds Wynd.

[129] Thus it forms no part of the planning authority's grounds for refusal which were placed before the Reporter that the proposed north-eastern link through to Cairds Wynd was inappropriate in that it was: the least beneficial of the three informal links into the path and streets from the south-eastern part of the site, as was eventually held by the Reporter at paragraph 9 of his decision. There in fact was no reference in the planning authority's refusal to the two other informal pedestrian links to which the Reporter makes reference in the course of his decision. In addition no issue appears to be raised in relation to the linkage formed by Upper Arbeadie Road. The general issue of access, looking beyond merely pedestrian access does not so far as the planning authority is concerned appear to be an issue.

[130] Thus on the basis of the planning authority's position the wide issue relative to access as contended for by the respondents was not raised and it could not be reasonably foreseen from their position that this would become a concern for the Reporter. Their concern was limited to the narrow one of the lack of a method of formalising the link to the east.

[131] Turning to the appellants' position it appears to me clear on an examination of the documentation submitted on their behalf that the issue as they understood it was the same narrow one as I have earlier identified in relation to the planning authority, namely: whether an informal pedestrian link was appropriate.

[132] The starting point in considering the documentation submitted on the appellants' behalf is the letter of 23 July 2009 from the appellants to the planning authority. (6/5 of process, p18)

[133] This letter is said to put forward:

"A detailed response to your letter, outlining the work we have undertaken to date to address the concerns of the planning service..." (see 6/5 p18)

[134] In addition to this letter being sent to the planning authority the appellants ask for it to be forwarded to the Marr Committee.

[135] In relation to the issue of pedestrian access to the east of the site the letter states as follows:

"With regard to footpath access to the east of the site, the best that Bancon can offer is to provide paths to the edge of the site that will offer a link to informal paths through the area between the site and Cairds Wynd. As you will be aware, this land is in the control of a third party, and as such no formal link through it can be provided. However, in terms of the recent changes to land access legislation, anyone has the right to cross it. The outlined approach has been considered acceptable on nearby sites with similar issues." (see: p21)

[136] Thus the issue which the appellants understood to be the concern of the planning authority was this one of the informality of the pedestrian link and it is this issue of informality which the appellants seek to address under reference to the recent changes to land access legislation and the fact that the approach of providing informal linkage has been considered acceptable on nearby sites where similar issues have arisen.

[137] That the appellants continued to understand that it was this narrow issue which was the concern of the planning authority and the basis for the refusal of the application by the planning authority is, it appears to me, clearly illustrated by reference to two passages in their appeal document, 6/1 of process:

[138] First at 6/1/17:

"The concerns of the roads service therefore refer solely to pedestrian access, in particular the requirement to provide safe routes to school. When these comments were raised as part of the first planning application...it was recommended by the planning officer that Bancon approach to provide links to the existing informal path networks would be a sufficient compromise - given the unfortunate existence of ransom strips between the site and formal footpath networks. Site plan revision S shows how this will tie in with the footpath network adjacent to Cairds Wynd. However, the links could not be formally surfaced and lit as part of Bancon's work, as they were outwith the planning application site."

[139] And secondly at page 21:

"Policy Inf\2

This policy requires new developments to be well related to existing settlements, and accessed conveniently by walkers and cyclists, as well as be close to public transport services. It should be designed to cause minimal impact on the character of the site and surrounding areas and developer contributions should be provided to mitigate any development impact. It is clear that Bancon have done the maximum possible to address this policy, but that land ownership constraints restrict the formal footpath linkages. However, in line with the last part of the policy, an agreement is in place to mitigate the shortfall in formal footpath linkages, by contributing the full amount for surfacing and lighting the track to the south-west of the site."

[140] Again the issue being dealt with by the appellants is this question of their inability to offer a formal access into Cairds Wynd to the east of the site. It is this particular issue which the appellants are seeking to answer in the documentation.

[141] It was contended on behalf of the respondents that on a fair construction of the appeal document it is clear that the appellants understood that a wider general issue of access was from the outset squarely before them. It was further submitted on behalf of the respondents that in the course of that document (6/1 of process) it is the appellants who raised the issue of what is the most appropriate informal link on the eastern side.

[142] In so arguing the respondents subjected the document to severe scrutiny and minute analysis. Looking to the various points which were made on behalf of the respondents I believe that in construing this document it has to be looked at as a whole and in the context of what concerns the planning authority had raised and which had caused them to refuse the application. The appellants in that document, in the first place at least, are seeking to answer these points which have caused the refusal of their application. Therefore they were seeking to answer the point so far as the issue of pedestrian access was concerned that they were unable to formalise the link on the east of the site into Cairds Wynd. That was the issue.

[143] Thus when for example the appellants say in the document that they "have done the maximum possible"; have "sought to provide the best possible access arrangements" and are offering:

·       "the best available solution to the east of the site."

all of these phrases having been founded upon by the respondents as showing that the appellants recognised a wider general issue of access had to be addressed and that by so saying they were opening up a comparison exercise of the type carried out by the Reporter, I do not believe that this is a correct construction.

[144] Taken in context what is being said by the appellants is that the informal link offered is the best that can be provided given that they do not own the land. Looked at in context nothing said within the appeal document, it appears to me, raises or seeks to deal with an argument that other routes from the east of the site into Cairds Wynd might be more appropriate than the one which the appellants were proposing or that the one proposed was the most appropriate of three possible routes.

[145] The appellants' submissions are directed to dealing with the informality issue. The general issue of the adequacy of the access arrangements and in particular the adequacy of the proposed north-eastern link when compared with other possible linkages to the east was not an issue between the appellants and the planning authority and the appellants had no reason to believe that it would become an issue before the Reporter. The issue between parties was confined to the issue of the lack of formalisation of the north-eastern link and no question was raised between parties as to some other link to the east being more appropriate.

[146] It was submitted on behalf of the respondents that Mr Christopherson had, through his objection, raised the wider issue of access and thus the appellants should have been reasonably aware of the approach that the Reporter would take.

[147] An issue was raised by Mr Christopherson at a meeting on 29 September 2009. However, when the minute of that meeting is had regard to the objection which he raised related to vehicular access and increased vehicular traffic which would be generated by the property development. I cannot see how this point being raised by him should have made it reasonably foreseeable to the appellants that they should make submissions about alternative pedestrian linkages on the other side of the site. The issue raised by Mr Christopherson is in no way related to the issue which proved determinative for the Reporter.

[148] It appeared to be relied on by the respondents as alerting the appellants to the reasonable foreseeability that the Reporter would consider the other two informal access linkages on the eastern side and would compare them with the proposed north-eastern link that the appellants in an earlier planning application had made reference to the linkage which the Reporter in the end of the day decided was the most suitable. Again, I am unable to see how reference to such a linkage in previous applications should have alerted the appellants to the Reporter then deciding that that particular linkage was the most appropriate. This link was referred to in a previous application and formed no part of the proposed development in terms of the current application and appeal. The reference to these by the appellants has to be seen in the context of their first setting out the history of the various planning applications and then in the context of what they understood the dispute to be between them and the planning authority. It cannot be said that the appellants by reference to this particular path as part of the planning history should in some way have therefore reasonably foreseen that the Reporter would then go on to consider the suitability of that path and carry out a comparison with the proposed north-eastern link.

[149] Lastly it was submitted on behalf of the respondents that the part earlier quoted of the letter of 23 July 2009 from the appellants to the planning authority referred to paths. On the basis of this short paragraph and fleeting reference to paths it was argued that the wider issue of access was clearly squarely before the appellants. In my judgment the foregoing cannot form a basis for the Reporter considering which of three paths was the most suitable when taken against the whole background of the documents to which I have referred and the context in which this letter was written to which I have earlier referred. In relation to this specific submission I prefer what was contended on behalf of the appellants.

[150] The issue upon which the Reporter decided the matter was not one, given the background which I have set out, which the appellants could reasonably have anticipated he would decide the matter upon. It was not an issue which was squarely before the appellants.

[151] The issue relative to pedestrian access which formed the planning authority's case in refusing the application the Reporter decided in favour of the appellants when he states at paragraph 7 of his decision as follows:

"The lack of formal status and tarmac surfaces and street lighting for the readily achievable short links to and across the woodland path would be disadvantageous but not enough to discount them as realistic alternatives to use of cars to the proposed development...; it is notable that the council appears to have pragmatically acknowledged the effectiveness of similar informal links in Banchory."

[152] After deciding that issue in their favour he went on to consider whether the north-eastern link proposed by the appellants was the most favourable of three informal routes which were available. The Reporter gave the appellants no opportunity to make representations in relation to that issue.

[153] It is clear from the authorities that matters of planning judgment are the exclusive province of the Reporter; that he is entitled to use his own expertise and experience; that he is entitled to have regard to more than merely the issues raised by the parties; and that he looks at the matter of new. In addition to that I entirely accept that having regard to the 1997 Act and the 2008 Regulations that the appellants are required to state their case in full at the outset and may not have an opportunity to make further representations. This is the legal framework within which the Reporter was making his decision, as was frequently stressed on behalf of the respondents, and I recognise this.

[154] However, as was observed by Lord Russell of Killowen in Fairmount Investments Limited v Secretary of State for the Environment, all cases in which principles of natural justice are invoked must depend on the particular circumstances of the case. Having regard to the circumstances of this case I do not believe that the appellants had a fair crack of the whip. In relation to his decision a principal determinative issue was that the proposed north-eastern link was the least beneficial of 3 possible links to the east. To that point this had not been an issue between parties and it could not reasonably have been foreseen, given the way that matters had developed between the parties that it would become a concern for the Reporter. The Reporter was of course , I accept, fully entitled to raise this as a concern. However if he had such a concern then I am satisfied that fairness to the appellants required him to raise that matter with the parties and afford them an opportunity to make representations on that matter if they so wished. The appellants have been deprived of an opportunity to present as much evidence as they would have wished, given the particular approach taken by the Reporter.

[155] In the course of the submissions made on behalf of the respondents it appeared that particular reliance was placed on paragraph 10 in the judgment of Mr Justice Collins in the Trustees of the Lawrence Sheriff School and Persimmon Homes Midlands Limited v The First Secretary of State. In my view what is said by Mr Justice Collins in that paragraph is very much supportive of the position of the appellants. It must be noted that the observations which Mr Justice Collins makes in that case are in the context of it being a call in by the Secretary of State. As Mr Justice Collins makes clear in paragraph 9 it follows from this being a call in:

"The parties will know the matters which concern the Secretary of State and, indeed, in this case they were identified and are set out at the outset of the inspector's report."

[156] At the beginning of paragraph 10 Mr Justice Collins states that the concerns of the Secretary of State extended over a wide area. It was against that background that Mr Justice Collins said that the general obligation to satisfy the Secretary of State of the matters which were identified will usually mean that no assumption can properly be made that an agreement will be accepted. However, it appears to me to follow from what Mr Justice Collins is saying that where as in the instant case parties are as one as to the issue between them i.e. the lack of formality of the north-eastern link then if the Reporter has a wider concern i.e. as here the general adequacy of pedestrian access then he would not act fairly if he failed to raise that new concern with parties and allow them to make representations thereon.

[158] Having regard to the foregoing I consider that there is substantial merit in the complaint of the appellants under this ground of appeal. In my judgment the Reporter has acted unfairly in failing to allow the appellants and the planning authority to make representations on this new issue and he has accordingly acted ultra vires.

2. The Breach of Regulation 12 of the 2008 Regulations

[159] I turn now to the alleged breach of the 2008 Regulations. The argument under this head, to some extent, overlapped with the natural justice argument.

[160] The argument under this head was that the Reporter had taken into account as a result of his site inspection new evidence which had a material bearing on his determination.

[161] In my view the Reporter clearly took account of new evidence.

[162] In their note of argument the respondents said this:

"At the site inspection the Reporter examined the various access routes (i.e. the routes proposed by the appellants and the two other possible links to the east of the subjects) and how the various routes connected with surrounding subjects and the town more generally."

[163] I have already held that neither the planning authority nor the appellants had raised any issue in relation to the "two other possible links to the east of the subjects". The issue between them had been confined solely to the issue of the lack of formality in relation to the arrangements regarding the proposed north-eastern link. No representations or evidence were presented by either the appellants or the planning authority in terms of this application regarding the "two other possible links to the east of the subjects".

[164] Given the foregoing it seems to me that by having regard to these two other possible links, thereafter examining them at the time of his site visit and finally reaching the conclusion that the north-eastern of these three links, when compared to these other two possible links was the least beneficial the Reporter must have had regard to new evidence.

[165] It is of course true that without having a site inspection the Reporter could have reached certain views on distances from plans which were before him. However, it would only be as a result of a site inspection he could have come to any qualitative decision as to whether these two other possible links which he identified could form actual links. By this I mean he would have had at the site visit to consider the nature of these two other links which would have included a consideration of the physical nature of the links: their surfacing, state of maintenance and their lighting among other factors. It would only have been at the site visit that he could have obtained evidence regarding these matters as no such evidence was presented on behalf of either the appellants or the planning authority. The Reporter was not as asserted on behalf of the respondents doing no more at the site visit than checking assertions made by the appellants against the actual situation on the ground. As I have said no assertions regarding these two other possible links were made by the appellants.

[166] It was argued very strongly before me on behalf of the respondents that if I were to hold that this amounted to new evidence that it would result in all Reporters, where they had a site visit, having to seek further representations from parties and this could clearly not have been the intention of Regulation 12. I am clearly of the view that this is not the case. There is no necessity for a Reporter normally to seek further representations when he has carried out a site visit. He is entitled to consider the situation on the ground in light of representations without seeking further representations. However, if the Reporter, as a result of the site visit, identifies a concern which is unknown to the parties, thereafter ingathers evidence in support of that concern at the site visit and then decides that this will be a determining issue, it is in those circumstances that he would require to seek further representations. The breach of Regulation 12 flows from his identification of a new issue and his ingathering of evidence about that issue which therefore becomes new evidence within the meaning of that Regulation.

[167] As to whether that evidence was material to the determination I am clearly of the view that it was. Without that evidence the Reporter could not have reached his conclusion that the north-eastern link was the least beneficial of the three. He needed to satisfy himself at the site visit that these two other possible links could in fact be used.

[168] In my view there has been a clear breach of Regulation 12 and having regard to the authorities to which I was referred such a breach would amount to substantial prejudice.

3. Subsidiary Grounds of Appeal

[169] Turning to the error of fact ground of appeal it is not disputed that an error of fact can give rise to unfairness and therefore form a separate basis of challenge in an appeal on a point of law. (see: E v The Secretary of State at paragraph 66).

[170] The section of the Reporter's decision which was under attack under this head was this:

"However, even so it would be discouragingly longer and less direct for non-motorised access to schools and much of the town, compared to informal but for most people, useable access from the south-east corner of the site taking advantage of shortcut paths between the streets to the south." and

"Moreover the opportunity would also be lost to make the shortest link..." see paragraphs 6 and 7 of the Reporter's decision.

I am not satisfied that an error of fact has been demonstrated. As indicated on behalf of the respondents the principal document relied on by the appellants in support of this ground of appeal 6/6 of process on the face of it did not wholly support the appellants' contention. I agree with the submission that there are two principal problems with 6/6 of process: First it shows that the route preferred by the Reporter so far as the Primary and Secondary schools is the shortest and thus that part of the production cannot be used to support the appellants' position.

[171] Secondly, in addition the use of the phrase "much of the town" by the Reporter means that the exercise carried out by the appellants in using the post office is not an exact comparison. The Reporter does not say that the route the appellants propose is longer to the post office, but is longer to much of the town. Thus the comparison exercise is not comparing like with like and for this further reason I did not believe the document 6/6 supported the submission that there was an error of fact.

[172] Thirdly there is the further difficulty that certain plots were chosen by the appellants as the starting points within the site for carrying out the comparison exercise in 6/6. I am unable to be satisfied that these correspond to the starting points or point taken by the Reporter and this further difficulty simply makes it even more problematic to be satisfied of a factual error.

[173] For the foregoing reasons I am unable to hold myself satisfied that the Reporter has proceeded upon a factual error.

[174] Lastly I turn to the argument based on the Reporter's reference within his decision to the document Designing Places.

[175] In 6/2 of process, which is the planning authority's appeal response form at page 4, where they deal with documents before the planning authority one of the documents to which they refer is a Policy Statement for Scotland - Designing Places. Given that this is a matter which was before the planning authority and to which they make reference in their response to the appeal it is my view that the appellants could have reasonably anticipated that the Reporter would have regard to this and in those circumstances, if they wished to make representations in relation to it, they should have done so in terms of their appeal. In my view there was no breach of natural justice in the Reporter having regard to it without seeking further representations. I prefer the respondents' submissions in relation to this particular ground of appeal.

Decision

[176] For the foregoing reasons the appellants' two principal grounds of appeal succeed and I shall therefore allow the appeal. The effect of my decision is that I quash the Reporter's decision and remit the case to the directorate for a new reporter to consider the matter afresh..