Planning

Tesco Stores Limited v Dundee City Council and Asda Stores, [2012] UKSC 13, 21 March 2012

Mon, 26 Mar 2012 22:42:26 GMT

Supreme Court case considering an appeal from the Inner House which upheld the planning authority’s decision to grant permission for an Asda Store at a site in Myrekirk Road in Dundee.

Tesco (which owns a store 800m from the proposed site) argued that the planning committee had failed to properly apply the “sequential test” (which involves considering suitable alternative sites for development from the town centre outwards) which was set out in the development plan and planning policy. Tesco also claimed that the planning committee had failed to consider its own policy in respect of the Lochee district. (There was an alternative site in Lochee which the Council had discounted as being too small.)

The Supreme Court refused the appeal. The argument centred on the meaning of the word “suitable” which Tesco contended meant “suitable for meeting identified deficiencies in retail provision in the area”. The Supreme Court found that the Council had been correct to proceed on the basis that the word “suitable” meant “suitable for the development proposed by the applicant” but this was subject to the qualification that flexibility and realism must be shown by developers.

Asda had followed a flexible approach but did not regard the Lochee site as suitable for their needs. In accepting that assessment, the Council had exercised their judgment as to how the policy should be applied to the facts and had not proceeded on an erroneous understanding of the policy.

Lord Reed observed that an error by the planning authority in interpreting its policies would be material only if there was a real possibility that their determination might otherwise have been different and he was not persuaded that there was such a possibility in this case.

With regard to a planning authority’s exercise of discretion, Lord Reed also noted:

“planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”

Greenland Developments (UK) Limited v. The Scottish Ministers, 20 January 2012, [2011] CSIH 05

Tue, 31 Jan 2012 17:34:00 GMT

Inner House case considering a planning appeal in respect of a proposed development of 12 flats by Greenland Developments on land to the south of Veitch’s Square, Stockbridge in Edinburgh. Despite being recommended for approval by the planning officer, the application was refused as the development was deemed to be contrary to the Local Plan in various respects. Greenland appealed to the Scottish Ministers. Following an unaccompanied site inspection and consideration of the documentation, a Reporter refused the appeal by means of a brief decision letter. Greenland then appealed that decision. They argued that:

the Reporter had failed to provide adequate and intelligible reasons for refusing the appeal;
the Reporter’s decision letter had failed to pay due regard to the terms of section 25 of the 1997 Act which provide that where, in making a determination under the Town and Country Planning (Scotland) Act 1997, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise;
the handling of the appeal by the Reporter had been tainted by procedural irregularities in that the Reporter had refused a reasonable request on behalf of the appellant that she should hold an accompanied site inspection and had also refused a request that she hear part of the appeal by way of oral process;
Regulation 4(2) of the The Town & Country Planning (Appeals) (Scotland) Regulations 2008 provides that within 21 days of receipt of notification of a Notice of Appeal, the planning authority must send to the Scottish Ministers its response to the appeal, together with associated documentation. In this case the Council had failed to do so; and
finally, it was argued that the Reporter had erred in failing to consider whether the imposition of a relevant condition might have rendered acceptable what she otherwise considered to be an unacceptable development.

An Extra Division of the Inner House refused the appeal finding that it had been open to the Reporter to reach the findings she had. It was perfectly clear from the decision letter which findings and conclusions the Reporter had reached and why she had reached them. She also had the discretion to refuse to have an accompanied visit and to refuse to hold an oral hearing.

With regard to s25 of the 1997 Act, although the Reporter did not specifically refer to the statutory provisions, she applied the correct legal test. She considered whether the proposed development would have a detrimental impact on the amenity of the New Town conservation area. In the light of those findings she assessed whether the proposed development complied with specified polices in the development plan, whether the proposed development would be in accordance with the development plan and whether any other material considerations warranted granting planning permission in the face of conflict with the development plan.

With regard to the Reporter’s consideration of the response by the Council to the Greenland’s Notice of Appeal, regulation 4(2) provides that, in addition to the planning authority’s response, the planning authority also require to send to the Scottish Ministers a copy of the documents which were before the planning authority in reaching their decision, a copy of any report on handling and any conditions the planning authority consider should be imposed in the event that the Reporter decides that planning permission should be granted. Given the scope of the documentation, the Extra Division did not consider that the public interest would be served if the Reporter could not take the documents into account if they were not submitted in the 21 day period.

Finally, as regards the failure to consider whether the attachment of conditions may have rendered the development acceptable, although reference to a possible condition had been made on behalf of Greenland, it had not been argued that the imposition of the condition on its own would have enabled the Reporter to reach a different conclusion. Furthermore, the information before the Reporter was not such as could have satisfied the Reporter that the householder concerned would agree to the condition or that there was any reasonable prospect that such a condition could be complied with. The possibility of any other conditions being imposed was not raised with the Reporter at any stage.

Dawn Developments for Judicial Review of a decision of Lanarkshire Council, [2011] CSOH 170, 18 October 2011

Thu, 08 Dec 2011 10:14:00 GMT

Case in which Dawn Developments sought judicial review of Lanarkshire Council’s decision to grant planning permission to JHAG Ltd for a development which included a superstore, garden centre, filling station and hotel at Redwood Crescent in East Kilbride.

Dawn applied for planning permission for the erection of a superstore at West Mains Road in East Kilbride (approximately 1 km from JHAG’s proposed development) on 29 March 2010. JHAG’s application had been lodged on 17 February and an objection to it was lodged on behalf of Dawn on 30 March.

Dawn had written to the Council requesting that its application should be considered at the same time as JHAG’s. However, at a meeting on 7 September 2010, the planning committee decided to consider JHAG’s application ahead of Dawn’s.

Dawn argued:

that the council had failed to properly apply the sequential test; and
that the procedure leading to the decision had been unfair.

Application of the sequential test

National Planning Policy requires application of the sequential test when considering applications for retail development. The test is designed to protect the commercial viability of town centres and involves considering locations for development in order from the town centre outwards.

In the first place Dawn said that when considering JHAG’s application the Council should also have had regard to its application which was sequentially equal. They questioned whether the Council was entitled simply to disregard its proposals generally as relating to a sequentially equal site, and whether, in considering the cumulative impact of JHAG’s proposed development with other actual or potential retail developments, their site should be taken into account.

In the second place they argued that, in assessing whether JHAG’s proposals could be accommodated elsewhere, the scale of the development should not be determined by JHAG’s application without considering whether a development on a smaller scale might be accommodated elsewhere.

When considering the authorities, Lord Drummond Young noted that the width of discretion that is available to a planning authority in applying national planning policies. In particular he referred to Tesco Stores [2010] CSOH 128 [2011] CSIH 9:

“the sequential test … should be treated as a statement of policy designed to facilitate the delivery of national government objectives, not a rule of law. It was very difficult to suggest that there was one correct method of applying the test to the exclusion of other possible approaches. The correct method was a matter for the exercise of the planning judgment of the planning authority as to how to apply the sequential test. On that basis, a challenge to the application of the test would only be successful if the disappointed person could establish that the planning authority’s decision was unreasonable in the Wednesbury sense.”

Lord Drummond Young found that a report prepared by the Council’s Executive Director (Enterprise Resources) and considered by the Planning Committee at a meeting held on 5 October 2010 fully addressed the sequential approach and dealt with the cumulative effect of the development.

Lord Drummond Young also took the view that the reports conclusions fell squarely within the planning judgment of the local authority and was not persuaded that an incorrect approach had been adopted.

Procedural unfairness

With respect to procedural unfairness, Dawn argued that the Council’s officers significantly misinformed the Planning Committee. Reports to, and comments made by, officers at the Committee’s meeting of 7 September 2010 were said to have contained inaccurate descriptions of the status of their application. The officers, it was said, gave the Committee to understand that there were fundamental problems with the Dawn’s application, in relation to both transportation issues and the period of time within which it was likely that such issues could be resolved.

However, the court heard that the Dawn had been represented at the meeting on the 7th and that their representative had put their case clearly. Lord Drummond Young took the view that Dawn was given a clear opportunity at that meeting to state its case and to refute any misleading statements made by Council officers. The request to conjoin the applications was refused the meeting and no attempt was made to reduce that decision. It could not be said that there was any unfairness in taking JHAG’s application (which had been received first and proceeded rapidly) ahead of Dawn’s. Further delay would have prejudicial to JHAG and it was open to the Council to consider whether that prejudice was outweighed by the prejudice to Dawn in not having its application considered.

As the decision not to conjoin the applications had been made and not challenged directly it was not necessary to consider the events after the meeting of 7 September. However, correspondence and other documentation after revealed that there were significant issues to be resolved with Dawn’s application which appeared to justify the statements made about the preparedness of Dawn’s application.

Marco McGinty v The Scottish Ministers, [2011] CSOH 163

Fri, 21 Oct 2011 20:20:00 GMT

Petition for Judicial Review in which Mr McGinty sought reduction of National Planning Framework for Scotland 2 (NPF2) to the extent that it designates a new power station and transportation hub at Hunterston.

Mr McGinty’s argument was that the Scottish Ministers had not complied with their obligations relating to notice and consultation with regard to the proposed development.

Facts and background

The Ministers conducted a consultation process on the scope and content of NPF2 between February and October 2007. A discussion draft was issued in January 2008 with a consultation period from 8 January until 15 April 2008. The revised NPF2 was published in December 2008 and considered by the Scottish Parliament between 12 December 2008 and 6 March 2009. The finalised NPF2 was laid before the Scottish Parliament on 25 June 2009 and published on the Scottish Government’s website on 2 July 2009.

The Hunterston development was included as item 9 in a list of 14 national developments in the finalised NPF2 approved by the Ministers. However, it was not included in the discussion draft of NPF2 which had been issued in January 2008 (and contained only 9 proposed national developments). Hunterston had been proposed as a candidate for national development during the consultation process, the responses to which were posted on the NPF website on 8 August 2008.

On 19 September 2008 a supplementary consultation paper[1] was published on the NPF website and included 52 potential national developments including Hunterston. At or about the same time the “NPF2, SEA Guide” and a newsletter were also published on the NPF website. Both of these publicised the supplementary paper and requested responses to it by 31 October 2008. Intimation of the supplementary paper was also made in the Edinburgh Gazette on 23 September 2008.

Arguments and decision

The Ministers contended that the publicity given to the supplementary paper was sufficient to comply with their requirements in terms of the legislation[2]. They also argued that, in any event, the petition was barred by mora, taciturnity and acquiescence and further that Mr McGinty had no title and interest to present the petition.

Mora

With regard to mora, taciturnity and acquiescence, Mr McGinty said that he first became aware of the Hunterston development’s inclusion in NPF2 at a public meeting in Largs on 28 July 2009, had contacted solicitors on 11 August and raised the petition on 23 September 2011.

Lord Brailsford found that, had the period of delay been confined to the 7 week period, there would probably have been no merit in the plea of mora. However, having formed the view that the procedure followed by the Ministers did not breach their obligations with regard to publicity, Mr McGinty ought to have been aware of NPF2 in September 2008. Against that background Lord Brailsford was of the view that the plea of mora should be upheld.

Title and interest

With regard to Mr McGinty’s title and interest to raise the petition, the relevant facts were that Mr McGinty resided in Largs (about 5 miles from the Hunterston site). His only connection with the site, beyond the geographical proximity, was that he occasionally used it on an informal basis for recreational purposes. Lord Brailsford said:

“Without in any sense wishing to denigrate such usage, from which I have no doubt the petitioner obtains both pleasure and benefit on the occasions that he exercises it, it cannot I think in fairness be regarded as other than somewhat vague and remote”.

At best, Lord Brailsford considered Mr McGinty may have been regarded as having title to sue in order to “prevent a breach by a public body of a duty owed by that public body to the public”. However, it was also found[3] that Mr McGinty did not have “a real and legitimate interest to protect” or “real and practical” interest to bring the proceedings. Lord Brailsford noted:

“He does not reside adjacent to the site and is not therefore a neighbour. His use of the site is limited, intermittent and non-essential. The type of usage he exercises over the site could in fact be exercised over any area of land to which the public has access at any location in Scotland. He does not sue as a member or representative of a group or organisation with title or interest. If an interest of this sort were to constitute sufficient interest to sue in a public law question then any member of the public who, on occasion, used a piece of ground for recreational purposes would have a title and interest to challenge a public law decision which affected that ground…. I do not consider that it is either desirable or, perhaps more pertinently, necessary for the discharge of public bodies to be subject to challenges by persons, no matter how well intentioned they may be, whose link with a site or subject are as remote as this.”

Publicity

There was also discussion as to whether advertising the Edinburgh Gazette was sufficient to comply with the requirements for publicity given that it is not of wide publication and is not ready available to, or even known by, members of the public. However, Lord Brailsford took the view that the Edinburgh Gazette is the recognised method in Scots law of publishing formal and legal notices and, as long as that status remains, advertisement in it should be regarded as a proper means of bringing matters such as the supplementary paper to the public attention.

Also, although many members of the public would rarely visit the Scottish Government’s website, it too was an entirely proper means of making information available to the public.

Whilst publication in a local newspaper would be an effective means of bringing such matters to the public attention, Lord Brailsford did not consider it was the only means of doing so and, more importantly, did not consider it was a necessary requirement. Such a requirement would add considerably to the burden and cost of the administration of strategic planning and would constitute an unnecessary and onerous obligation on the Scottish Ministers.

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[1] The paper is snappily entitled “National Planning Framework 2: SEA (Strategic Environmental Assessment) Supplementary assessment of the environmental effect of candidate national developments; Environmental Report, annex 2: Consultation paper”.

[2] In terms of Town and Country Planning (Scotland) Act 1997 and Directive 2001/42/EC.

[3] Following Axa General Insurance Limited and others v The Lord Advocate and others [2011] SLT 439.

Penny Uprichard v. The Scottish Ministers and Fife Council, [2011] CSIH 59

Tue, 20 Sep 2011 22:12:23 GMT

Inner House case in which Penny Uprichard challenged a decision of the Scottish Ministers to approve the Fife Structure Plan 2006-2026 with Final Modifications dated May 2009.

The Fife Structure Plan includes provision for a significant expansion of St Andrews with a view to making the town an ‘economic driver’ for Fife. The Council submitted a report containing modifications to the Structure Plan[1] and, after considering the Structure Plan and the Council’s modifications, the Scottish Ministers issued the Finalised Fife Structure Plan incorporating Scottish Government modifications for consultation. Ms Uprichard objected to the modifications to the Structure Plan as they did not reverse the plans for the expansion of St Andrews. However, the Scottish Ministers then approved the Structure Plan as modified and published a document[2] (the May Document) containing the reasons certain modifications had been made and other proposed modifications had not been made.

Ms Uprichard challenged that approval and concentrated her argument on an objection to the effect that assessments had shown St Andrews to be at its landscape capacity. The reason given for rejection of that objection (in the May Document) was that a study[3] had shown that there was some scope for development to the west of St Andrews. Ms Uprichard argued that that was insufficient reason for rejecting the objection contending that the site to the west of St Andrews was insufficient to accommodate development on the scale envisaged in the Structure Plan. She claimed that it was for the Scottish Ministers to give a reason for proposing development to the west of St Andrews that was beyond the land available.

The Inner House refused Ms Uprichard’s reclaiming motion finding that, although her objection was described as being purely a landscape objection founded on the alleged inadequacy of the landscape capacity of St Andrews for the proposed level of development, it was in fact a root and branch objection to the fundamental aims of the Structure Plan so far as they affect St Andrews. As such it was directed against the strategic land allocation to the west of St Andrews and the identification of St Andrews as an economic driver for Fife.

The court found that there was a wealth of material entitling the Scottish Ministers to conclude that St Andrews West should be one of the strategic land allocations that were a key element in the Structure Plan. The question of landscape capacity was taken into account but did not outweigh other wider considerations that were inherent in the adoption of the overall Structure Plan strategy.

The reasoned justification that Fife Council had offered for its policy for the growth of St Andrews as an ‘economic driver’ for Fife had been constant throughout the Structure Plan. Reading the May Document in its entirety, the Scottish Ministers had given due consideration to both that justification and to the objections of Ms Uprichard and had decided in favour of the justification. Their acceptance of the Council’s justification was a clear and adequate answer to Ms Uprichard’s objection.

The Lord Justice Clerk (Gill) also made the following comments:

“In a case where the adequacy of reasons is challenged, the court should consider whether the informed reader would understand the basis for the decision complained of. The reasons must be intelligible and must deal with the substantive points that have been raised; but in my opinion it is important to begin by considering the nature of the decision that is complained against and the context in which it has been made. In a case of this kind it is also important to assess the adequacy of the reasons on the basis that they are addressed to persons who are familiar with the background and the issues.”

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[1] Proposed Modifications to Finalised Fife Structure Plan (2006) Arising from Re-Appraisal of Housing Land Requirement (2007)

[2] Scottish Government Final Modifications to Fife Structure Plan – May 2009

[3] Landscape Capacity Assessment and Proposed Green Belt Study of St Andrews, a report by Alison Grant, landscape architect.

Paul Bova and Carol Christie v The Highland Council, [2011] CSOH 140

Thu, 25 Aug 2011 09:47:41 GMT

Petition for judicial review of a decision by Highland Council to grant planning permission for a development of 64 houses at Resaurie near Inverness.

The petitioners argued that the Council had failed to adopt the correct approach to assessing the risk of flooding arising from the development. In particular the petitioners argued that the Council had not adopted a precautionary approach to flood risk as they should have done in terms of the planning policy. They also argued that the Council had failed to understand and take proper account of objections which the petitioners had raised in a letter to the Council.

Lord Pentland refused the petition. The petitioner’s case referred to a change in the wording of the planning policy. SPP7[1] had obliged the Council to “err on the side of caution where flood risk is an issue” whereas the new Scottish Planning Policy[2] (SPP) which replaced it stated instead that developers and planning authorities should take a “precautionary approach” in taking decisions where flood risk is an issue. This change, the petitioners argued, amounted to a new material consideration to which the Council had to consider before granting the permission. However, Lord Pentland found that the change was no more than “textual or cosmetic”. This meant there was no material change in policy and no new material consideration for the Council to consider before deciding the matter.

Lord Pentland was also not persuaded that the Council had failed to give adequate consideration to the objections raised by the petitioners in their letter taking the view that all of the objections had been adequately summarised and addressed in the planning report which was presented to the planning officials.

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[1] Scottish Planning Policy (SPP) 7: Planning and Flooding

[2] Scottish Planning Policy, February 2010

Hallam Land Management Ltd v Edinburgh City Council [2011] ScotCS CSOH 75 06/05/2011

Fri, 13 May 2011 09:28:42 GMT

This case concerns the challenge by Hallam Land Management in terms of Section 238 of the Town & Country Planning (Scotland) Act 1997 in relation to the adoption by the City of Edinburgh Council of the Edinburgh City Local Plan (an “old style” plan).

In essence the case related to specific allocations to meet a requirement in terms of the Structure Plan for 400 new houses in the “Edinburgh Urban Fringe”. The City of Edinburgh Council proposed to meet that allocation on two sites, New Craighall North and New Craighall East, respectively for 200 and 220 units.

Following upon a Local Plan Inquiry the Reporters recommended that the capacity on each site should be reduced to 140 and 90 units respectively and the balance between the total of those figures and the required allocation in terms of the Structure Plan should be made up on three sites, one of which was owned by Hallam Land Management.

The Reporters’ recommendations were supported by the professional officers at City of Edinburgh Council but were rejected by the Council at the planning meeting. Hallam according brought their challenge. (Note: under the new planning system the Council would not find it as easy to reject the recommendations.)

The basis of the challenge was that the justification given by the Council for not accepting the recommendations of the Reporters was inadequate.

This is an area in respect of which there has been a reasonably significant amount of case law over the years. Often Councils (the planning authority) will argue that what is involved is an application of planning judgement which the courts should not intervene in or not lightly intervene in. The judge in this case (Lord Malcolm) acknowledged that principle but made clear in this view that even in cases involving the exercise of planning judgement the planning authority must give adequate and intelligible reasons. In his view that meant that it had to be apparent that the planning authority had fully and properly considered the substantial points raised by the Reporters, must deal with the merits of the position and provide sufficient reasons for departing from the Reporters’ conclusions. The obligations on the Council were enhanced, as the judge put it, in this case where the planning authority was both the promoter of a site (Edinburgh Council had a title interest) and the ultimate decision maker. In his view it was not sufficient for the planning authority simply to make assertions. In effect the judge applied a decision of Mr Justice Laws in Oxford Diocesan Board of Finance v West Oxford Shire District Council.

The approach of the judge in this case (Lord Malcolm) appears to be more onerous than that of other Scottish judges in recent cases. Contrast can to some extent be drawn with the decision (for example) of Lord Uist in the case of Penny Uprichard v Scottish Ministers (2010) CSIH105 (this case is under appeal – it should be noted in that case that at least part of Lord Uist’s decision was based upon the substantial background to the Structure Plan). The extent of the reasons that required to be given in the decision letter was also considered by the Inner House in Bennett v Gordon & Scottish Ministers (2008) CSIH 21 where Lord Kingarth observed that to some extent the position may well depend upon all the circumstances and the nature of the issues raised.

In the Hallam case the comments of Lord Malcolm are clear however. In relation to one of the sites allocated by the Council the Reporters were concerned about the possibility of mine workings. They accordingly suggested a prudent approach. The Council in response to that indicated that they understood there was no material problem. Lord Malcolm simply saw this as assertion and in the absence of any justification accordingly inadequate. In relation to the other site while the reason given by the Council for rejecting the Reporters’ recommendations were more extensive again in his view they lacked reasoning and did not provide any basis or justification for the statements made. In particular he thought that the approach of the Council when contrasted to the careful and detailed treatment of the issue by the Reporters (as he termed in), were no more than a series of “glib and unsubstantiated assertions”.

Having reached those views Lord Malcolm then had to decide what the consequence was. It appeared that Counsel for Hallam and for the Council thought that the whole relevant part of the Local Plan should be quashed with the process in respect of that part of the Local Plan repeated afresh and from the beginning. Counsel for a third party submitted that the court should simply quash the relevant part of the Adopted Plan.

Lord Malcolm contrasted the position between Section 238 of the Town & Country Planning (Scotland) Act 1997 (the relevant section here) from that under Section 239 which related to other orders, decisions and directions made under the Act. In relation to these it was clear that if quashed it would then for the local authority to decide what action should be taken. The question he in effect posed was why the position should be different under Section 238 with the consequence that the entire process should be quashed.

Lord Malcolm considered English authority on the issue (which supported the views put forward by Hallam) but came to the conclusion that he should only quash the relevant part of the Local Plan and not the process that led to that part of the Local Plan. He made the point that arguably a relatively insignificant issue could result in the whole process being quashed even though the whole process was not in itself tainted. Indeed in this case it appeared to be the position that nothing prior to 1 October 2009 (when the Committee reached the relevant decision which was in effect being challenged) was objectionable and he thought it odd according if the court sought to set aside all that had gone before even when there was no complaint in relation to that. He also thought that the wording of the Act only entitled him to quash the relevant part of the Local Plan (i.e. the end document) rather than the process which resulted in that because it was not the process itself which was referred to in Section 238.

Given the consequences of this decision it is likely that Edinburgh Council will consider whether the decision should be appealed. The issue of what steps were available to Lord Malcolm is also one that is likely to result in further debate and/or discussion.

Secretary of State for Communities and Local Government and another v Welwyn Hatfield Borough Council, [2011] UKSC 15, 06/04/2011

Thu, 14 Apr 2011 23:28:00 GMT

This appeal concerns the application of planning law to a dwelling house disguised as a hay barn. The first issue is whether the building is within the provisions of the Town and Country Planning Act 1990 which impose a time limit for taking enforcement action against breaches of planning control. The second issue is whether the owner’s dishonest scheme disentitles him from benefitting from those provisions.

In 2001 Mr Beesley, the Second Respondent, applied for and obtained planning permission to construct a hay barn for grazing and haymaking on open land which he owned in the Green Belt. In 2002 he constructed a building which was to all external appearances the permitted barn, but internally was a fully fitted-out dwelling house with garage, living room, study, bedrooms, bathrooms and gym. In August 2002 he moved in with his wife and lived there continuously for four years. Welywn Hatfield Borough Council, the Appellant, in whose area the property lies, remained unaware that the building was constructed as, or was being used as, a dwelling house.

In August 2006 Mr Beesley made an application for a certificate of lawfulness for use of the building as a dwelling house. He contended that the four year time limit for taking enforcement action in section 171B(2) of the Town and Country Planning Act 1990 (“the 1990 Act”) was applicable and had elapsed. The section provides that “where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach”. The certificate was granted and subsequently upheld by the Court of Appeal, which decided that there had been a “change of use” within section 171B(2) such that immunity from enforcement was established.

The Council appealed to the Supreme Court on two grounds. First, it challenged the Court of Appeal’s decision that there had been a relevant change of use. Secondly, it argued that even if there had been such a change, the principle of public policy that no one should be allowed to profit from his own wrong precluded Mr Beesley from relying on section 171B(2).

The Supreme Court unanimously allows the appeal. It holds that: (i) there had been no change of use within section 171B(2); (ii) in any event, Mr Beesley’s dishonest conduct meant that he could not rely on the section. Lord Mance gives the lead judgment. Lords Rodger and Brown deliver additional
concurring judgments.

On the first issue, the question was whether there had been any relevant change of use such as to bring the building within section 171B(2). The Supreme Court held first that the building which Mr Beesley constructed was not the permitted barn: it was a dwelling house. Therefore there could not have been a change of use within section 171B(2) from the use permitted by the planning permission.

The second issue involved consideration of the scope and application of the principle that, unless the contrary intention appears, statutes are to be construed to the effect that no one should be allowed to profit from his own wrong. The Court noted that Mr Beesley intended to deceive the Council from the outset by his statements in the planning application. This was positive deception in matters integral to the planning process and directly intended to undermine that process. His conduct was not identifiably criminal but the principle is not only relevant where there has been the commission of a crime. The Court further considered the rationale of the statutory provision: the four year period in section 171B(2) must have been conceived as a period during which a planning authority would normally be expected to discover an unlawful use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner which prevent discovery take a case outside that rationale. It would in fact frustrate the policy of the section if the time limit for enforcement was to apply on the facts of the present case. It would also damage the public’s confidence in planning law: any law-abiding citizen would be astonished to suppose that Mr Beesley’s dishonest scheme, once being discovered, would not be enforced against but rather crowned with success. It is unthinkable that Parliament intended such an outcome. Even if, therefore, Mr Beesley had come within the literal wording of section 171B(2), his conduct took him outside its scope.

Tesco Stores Limited v. Dundee City Council and (1) Asda Stores Limited; & (2) MacDonald Estates Group plc [2011] CSIH 9

Sun, 27 Mar 2011 22:38:54 GMT

In this action, the petitioners sought judicial review of a decision of the respondents’ Development Quality Committee to grant outline planning permission for the development of a superstore at Myrekick Road, Dundee.

The petitioner objected to the grant of planning permission on the grounds that development of a supermarket at the site would have an adverse impact on the Lochlee District Centre, and the availability of a site which it held there. At first instance, the petitioner argued that the planning committee had failed to apply the sequential approach set out in the Lochlee Development Plan and in the Scottish Planning Policy SPP8 Town Centres and Retailing (SPP8). It was also argued that the planning committee had vitiated its decision by failing to take account of a material consideration, namely the findings and objectives of the Lochlee Framework. The Lord Ordinary had dismissed the petition.

On the first issue, the Lord Ordinary had held that SPP8 was a statement of policy, not a rule of law, and was to be implemented in a flexible and realistic way. The application of the sequential approach was a matter for the judgment of the planning authority, and its decision could be challenged only on Wednesbury unreasonableness grounds. On the second issue, the Lord Ordinary doubted whether the proposed new store was in Lochee, and in any event, found that the committee had in fact taken the Framework into account. The petitioner reclaimed against these findings.

On appeal, the court considered that the planning committee was required to consider the planning application in a broad context, which included the development plan policies on economic development alongside other material considerations. The Inner House found that their decision was based correctly on discretion, and could not be regarded as unreasonable or perverse. Noting that the Lochlee Framework could not be considered as a separate material consideration because its basic retail objective was already set out in the development plan, the Inner House noted that in any event it had been considered by the committee and that the likely impact on Lochlee was a prominent factor in their decision making. Reclaiming motion refused.

Alan Cartledge v Scottish Ministers – 18 March 2011 & 22 March 2011

Fri, 25 Mar 2011 00:22:44 GMT

Two planning decisions have been issued in different actions brought by Mr Cartledge both of which relate to a caravan park at Glenfinart, Ardentinny, Argyll: Alan Cartledge v Scottish Ministers, [2011] ScotCS CSIH_23 (18 March 2011) and Alan Cartledge v The Decision of a Scottish Minster's Reporter [2011] ScotCS CSOH_53 (22 March 2011)

Tesco Stores Limited v. Highland Council and Asda Stores Limited [2011] CSOH 11

Fri, 28 Jan 2011 00:36:14 GMT

In this application for judicial review, the petitioners (Tesco Stores Limited) sought the quashing of a decision of the first respondents, the Highland Council, dated 20 April 2010, granting planning permission to the second respondents, Asda. The grant of planning permission related to the development of a supermarket and petrol station at Knockbreck Road, Tain. Tesco had previously been granted a similar planning permission in the town centre of Tain in September 2008 and were in the course of implementing that development when this rival planning application was granted by the Council.

Tesco challenged the grant of planning permission on two grounds. First, it was submitted that the decision was vitiated because of the Council’s failure to properly interpret and apply the relevant retail policies, and in particular the sequential approach. Secondly, it was submitted that certain councilors had voted in favour of the Asda application, simply because of a desire to stop or undermine the Tesco development.

Rejecting the petitioner’s submissions on the misapplication of the sequential approach, the Lord Ordinary noted that it was clear from the committee’s decision and the materials they consulted that the sequential approach had not been disregarded and accordingly, no error of law had been made. While the Lord Ordinary recognized that certain councillors had made unhelpful and inappropriate comments about there being too many Tescos and not enough Asdas in the Highlands, the Lord Ordinary did not deem this conduct sufficiently objectionable to strike down the decision. Noting that there was a sensible and sound basis for the decision made, the court thought it would be disproportionate to strike down a decision based on stray irrelevant remarks. Application for judicial review refused.

Morge (FC) (Appellant) v Hampshire County Council (Respondent), [2011] UKSC 2, 19/01/2011

Thu, 27 Jan 2011 23:29:00 GMT

This appeal concerns, first, the meaning of the obligation imposed on the United Kingdom by the Habitats Directive, a European legislative instrument, to prohibit “deliberate disturbance” of certain species of bats. It concerns, secondly, the scope of the obligation in domestic legislation on planning authorities to have regard to the requirements of the Habitats Directive.

Hampshire County Council, the Respondent in the appeal, granted planning permission on 29 July 2009 for a proposed three mile stretch of roadway to provide a rapid bus service between Fareham and Gosport in South-East Hampshire. The Appellant, Mrs Morge, lives close by and objects to the scheme. The scheme, its supporters argue, will create a new and efficient form of public transport to the benefit of many residents, workers and visitors to the area. Environmental objections have arisen, however, on grounds that the proposed path of the busway runs along the path of an old railway line, which has become an ecological corridor for various flora and fauna.

The planning application was submitted on 31 March 2009 and objected to by Natural England, the Government’s adviser on nature conservation, in part because of their concerns about the impact of the development on bats. The Council responded by submitting an Updated Bat Survey (UBS), largely as a result of which Natural England in a letter of 17 July 2009 withdrew their objections. At a meeting of the Council’s Planning Committee on 29 July 2009 planning permission was granted by a majority of six to five with two abstentions.

The UBS recorded that no bat roosts were found on the site. The removal of trees and vegetation, however, would result in a loss of good quality bat foraging habitats. This would have a moderate adverse impact at local level on foraging bats for nine years, the impact thereafter reducing to slight adverse / neutral. In addition the busway would sever a bat flight path, increasing their risk of collision with buses.

Mrs Morge challenged the permission on environmental grounds, including its impact on several species of European protected bats. The challenge failed before the High Court and Court of Appeal, but the Supreme Court granted the Appellant limited permission to appeal on two issues of general importance. The first is the level of disturbance required to engage the prohibition in article 12(1)(b) of the Habitats Directive on “deliberate disturbance” of the bat species in question. The second is the scope of the obligation in regulation 3(4) of Conservation (Natural Habitats etc.) Regulations 1994 on local authorities to have regard to the requirements of the Habitats Directive in deciding whether to grant planning permission, and whether the Council in this case complied with the obligation.

The Supreme Court by a majority of 4 - 1 dismisses the appeal. Lord Brown gives the lead judgment for the majority, setting out the correct approaches to article 12(1)(b) of the Habitats Directive and regulation 3(4) of the 1994 Regulations, and finding that the Council complied with the obligation in regulation 3(4). Lord Kerr agrees with majority on the article 12(1)(b) issue but dissents on the regulation 3(4) issue.

Tesco Stores Limited v Highland Council, [2011] CSOH 11, 25/01/2011

Thu, 27 Jan 2011 23:00:00 GMT

This case is another in the seemingly unending disputes which are taking place between supermarkets these days. It appears that major supermarkets having opened units in all major towns are now battling over who should have units in smaller towns – this case concerned Tain.

In effect Tesco had been granted a planning permission in Tain. Asda were also granted planning permission and Tesco sought a judicial review (unsuccessfully) of that decision bringing judicial review proceedings against the Council and calling Asda in as an interested party.

In effect both Tesco and Asda had interest in developing in Tain as did Robertson Properties Limited. There were a series of applications (the details of which are not significant) and as a consequence of that the Council obtained its own retail assessment which confirmed that notwithstanding approvals which had been granted there was sufficient capacity over and above the existing capacity for the application made by Tesco (which was pending at the time of the report) and either the development proposed by Asda or Robertsons. In fact Robertsons withdrew their application as did Asda and Tesco were granted planning permission following upon an inquiry before Scottish Ministers. That inquiry related to the refusal of reserved matters, Tesco having been granted outline planning permission. It appears that a number of Councillors were very active in opposing the grant of reserved matters.

Asda then made a new application which the Council ultimately granted and it was that grant of planning permission which is the subject of the judicial review application.

The judicial review application essentially proceeded on two grounds:-

1. That the Asda site did not meet the sequential test; and

2. In essence that certain Councillors were motivated to grant the Asda application to stop the Tesco application being implemented.

The first ground of challenge really relates to guidance from the Scottish Government which seeks to ensure that certain types of development including retail development should take place in town centres failing which on the edge of centre and only if there are no satisfactory sites in either of those locations outwith the town centre. In effect it is hierarchical approach, albeit issues sometimes arise when developers argue that though there may be a site available in a preferred location in the hierarchy, that site for some reason is not suitable (typically it is too small). There have been a number of cases on the sequential approach before the Scottish Courts and each case will often turn upon its own merits. In this case it was acknowledged by all parties that the planning officer who prepared the planning report in respect of the Asda application had made an error in relation to the sequential approach, albeit that error was not critical to matters.

The judge (Lord Malcolm) considered the proper application of the sequential approach and came to the view that it was not disregarded by the Council as Tesco argued, nor could he detect any error nor irrationality in its application (which resulted in the rejection of other town centre as potential alternatives to the site identified by Asda). He did indicate they had some sympathy with the argument that the sequential test while demanding a degree of flexibility, sites “higher” in the hierarchy should not simply be set aside because the developer has come up with a scheme which cannot be fitted into such a site. Lord Malcolm did indicate however there were limits to the extent to which a developer should be expected to fit a development into a site in the “preferred position” in the hierarchy if that site properly could not accommodate the proposed development.

The case is really of interest because of the second ground of challenge. Lord Malcolm noted that Counsel for Tesco was not “specific as to the exact nature or categorisation of their challenge”. Apparently reference was made to concepts such as bias, perceived bias, pre-determination, fettering of discretion, taking into account of irrelevant considerations, breach of the rules of natural justice, unreasonableness and irrationality. This suggests there was something of a “shotgun” approach. In reality this ground of challenge related to the actions of Councillors.

Lord Malcolm however approved and English case in 2009 R (Lewis) v Redcar & Cleveland Borough Council in which the court indicated the following principles:-

1. A decision maker should not be influenced by any pecuniary, proprietary or other personal interest;

2. In a legal challenge the court should consider whether a fair minded and informed observer would be left with the view there was a real possibility that the Planning Committee was biased and did not approach the decision with an open mind (though this test should be applied with caution – Councillors were allowed to have legitimate grounds to be pre-disposed to a particular outcome and to have freedom to express their opinions);

3. Given the nature of local government and the role of Councillors there should be clear evidence that there was such bias or a closed mind.

4. If Councillors have no pecuniary or personal interest they complied with their duties if they addressed the planning issues fairly and on their merits even though they may approach them with a particular pre-disposition. Councillors must be prepared to change their minds and to remain open to any new arguments.

5. It will be easy to quash a decision if there is no substantial planning justification. The reverse was equally true.

6. The test in relation to a challenge based upon pre-determination or bias is difficult to satisfy.

Having identified these criteria Lord Malcolm them applied them to the facts including reviewing the circumstances in relation to what appears to have been a fairly noisy and high-spirited Council meeting. Having done that he came to the view that there were no grounds to overturn the decision. That decision was reached despite the fact that one Councillor had made comments to the effect there were not enough Asdas in the Highlands and too many Tescos – a comment that appeared in the press.

Developers are often concerned about the attitude of Councillors to applications and whether they have pre-conceived views. This case appears to suggest that Councillors can quite legitimately have such views and that will not necessarily make a decision in which they are involved open to challenge providing the decision making process is approached in the correct manner.

Doonin Plant Limited v Scottish Ministers, [2011] CSOH 3, 13/01/2011

Fri, 21 Jan 2011 01:01:25 GMT

This case concerns the validity of an enforcement notice. Enforcement is an important part of planning control though one that is often not given the prominence it deserves.

Appeal by Doonin Plant Limited against a decision of the Scottish Ministers through their Reporter [2011] CSOH 3

Fri, 14 Jan 2011 00:23:07 GMT

This appeal was brought under section 239 of the Town and Country Planning (Scotland) Act 1997, against a decision of the Reporter dated 4 August 2009, where the Reporter had refused the appellants’ appeal against an enforcement notice served on them in April 2009.

The original application for planning permission by the appellants related to premises which were formerly operated as a milk distribution centre and bottling plant by a dairy operator. The appellants wished to utilise the property as a transport operating centre, administration headquarters and materials recycling centre. Planning consent was required for the partial change of use to a recycling centre. South Lanarkshire Council granted planning permission in November 2001 to the appellants for the use of former milk bottling/distribution depot for the recycling of waste materials with associated external storage, although conditions were imposed on this grant of planning permission, which were later allegedly breached by the appellants, leading to the enforcement notice for change of use being served on them, against which they now appealed.

The appellants submitted that the mere fact the Council were complaining of non compliance with the consent in the conditions of the planning permission was not definitive evidence of breach. It was submitted that it was necessary for the Reporter to look at the terms of the conditions attached to the planning permission and make an assessment firstly, of whether the conduct complained of had occurred and secondly, whether it was a breach of a particular condition. Accordingly, the approach which the Reporter should have adopted was to consider the factual situation in the five year period beginning with the grant of the permission and its expiry and consider whether the new use was instituted in that period.

In the Lord Ordinary’s opinion, the decision making process under section 27(1)(b) of the 1997 Act required considering questions of mixed fact and law, and that the conclusion could differ depending on the facts of a particular case. Crucially, the Lord Ordinary did not consider that a change in use could only be instituted at or after the time when full implementation of the planning permission had occurred, as the Reporter had indicated.

The court noted that the Reporter was required to make a judgment as to whether within the five year period, a change of use within the terms permitted by the planning permission had occurred. This was, in the court’s view, a matter of judgment on the facts as to whether the bottling plant use has ceased and sufficient work and change consistent with the planning permission had been done to achieve the change of use for which planning permission was granted. Therefore the court found that the Reporter, in asking himself if the planning permission had been implemented in full, had asked himself the wrong question. Noting moreover the Reporter’s general confusion on key issues of both fact and the law of civil evidence, the Lord Ordinary concluded that the Reporter’s reasoning was flawed and accordingly quashed his decision.

G. Hamilton (Tullochgribban Mains) Limited v. (1) The Highland Council and (2) Ennstone Thistle Limited [2011] CSIH 1

Thu, 13 Jan 2011 21:10:21 GMT

In this petition for judicial review, the petitioner owned agricultural land at Tullochgribban, Carrbridge, Morayshire, part of which was worked for minerals. The second respondent to the site owned the mineral rights in the land.

The second respondent had applied to the local authority for approval of a schedule of conditions governing an existing planning permission for mineral working at the site. The petition for judicial review challenged the decision of the first respondent on this approval and also its proposal to define the boundaries of the mineral site, in the petitioner’s view, over too large an area of his land. The Lord Ordinary had originally dismissed the petition in January 2009 and this was the decision reclaimed against.

Counsel for the petitioner raised two issues; namely, (1) whether the planning authority was entitled or obliged to define the extent of the mineral site in the first list stage governed by Schedule 9 of the Town and Country Planning (Scotland) Act 1947; and (2) whether, if the planning authority had power to define the extent of the site at that stage, it had correctly defined it in this case.

In relation to the first issue, the Inner House upheld the decision of the Lord Ordinary, noting that the power of the local authority at the first list stage of planning permission was merely to list a mineral site, a purely administrative function. Noting that the first list was akin to a census of mineral sites in any area, the court concluded that the list was not of defined areas of land, it was only drawn up to identify where mineral sites existed and to classify them in order to determine the procedures in the next stage of the planning permission process. The court noted that while the local authority was bound to satisfy itself that a relevant planning permission existed at that stage over the site, it was not bound to identify the relevant planning permission in the list itself and therefore did not have to identify the exact boundaries of any site. The petitioner had therefore proceeded on a misinterpretation of the procedure in the Schedule and the decision to dismiss this argument by the Lord Ordinary had been correct.

As regards the second issue, the court noted that in the absence of a plan of the land, the extent of a previous 1965 planning permission which had been examined by the local authority in coming to their decision was relevant and on that basis, the local authority was entitled on the evidence to come to the conclusion they did on the boundaries of the mineral site. Reclaiming motion refused.

R (on the application of Sainsbury's Supermarkets Ltd) (Appellant) v Wolverhampton City Council and another (Respondents), [2010] UKSC 20

Thu, 13 May 2010 21:44:25 GMT

The Town and Country Planning Act 1990 gives a power to local authorities to acquire compulsorily any land in their area if the authority thinks that the acquisition will facilitate the carrying out of development on the land and if it thinks that the development is likely to contribute to the well-being of the overall area for which it is responsible. This appeal concerned the proper approach to the exercise of that power in relation to land known as the Raglan Street site which lies immediately to the west of, and just outside, the Wolverhampton Ring Road.

Cartledge v Scottish Ministers, [2010] CSOH 46

Tue, 13 Apr 2010 15:40:36 GMT

Appeal to the Court of Session on whether the number of vans allowed on the appellant's caravan park is controlled by the planning permission for the site or by the caravan licence for the site.

R (on the application of Lewis) (Appellant) v Redcar and Cleveland Borough Council and another (Respondents), UKSC 2009/0167

Thu, 11 Mar 2010 17:09:42 GMT

The Appellant was one of five local residents who applied under Section 15 of the Commons Act 2006 (‘the 2006 Act’) to have a piece of land in the town of Redcar registered as a town or village green. When land is successfully registered as a town or village green under the 2006 Act, the inhabitants of the locality concerned are entitled to exercise ‘lawful sports and pastimes’ over the land, such as walking, or playing informal games. Registration typically prevents development on the land taking place. In order to register land for such use, however, the inhabitants are required to demonstrate under s.15, broadly, that a significant number of them have indulged, ‘as of right’, in lawful sports and pastimes over the land for a period of 20 years.

This appeal concerned the meaning of ‘as of right’ in the 2006 Act. The land in question had been used, until 2002, as a golf course by the tenants of the land. The inspector who conducted a public inquiry into registration recommended to the relevant registration authority - the Respondent - that the land should not be registered. He found that although the local inhabitants had indulged in lawful sports and pastimes on the land for 20 years, they had ‘overwhelmingly deferred’ to the landowner’s use of the land by, amongst other things, waiting for the golfers to play their shots before they walked across the course. Such use, he concluded, was not ‘as of right’. On the inspector’s recommendation, the council decided not to register the land. On an application for judicial review by the Appellant, the High Court and the Court of Appeal both upheld the council’s decision. The Appellant appealed.

Petition of Mary Buchan Forbes v Aberdeenshire Council & Trump International Golf Links [20092010] CSOH NO01

Tue, 12 Jan 2010 16:22:10 GMT

The decision in this case relates to the controversial proposal by Donald Trump to construct an international golf resort in Aberdeenshire.

The original application was made to Aberdeenshire Council but when it appeared likely that the “Planning Committee” of the Council would refuse planning permission the application was called in by Scottish Ministers for their determination. Following upon a 4 week inquiry planning permission was granted in December 2008. That planning permission was an outline planning permission subject to a considerable number of conditions.

Penelope Uprichard Judicial Review of the Fife Council for the Installation of 28 Parking Meters [2009] CSOH 170

Wed, 06 Jan 2010 16:22:00 GMT

This case was brought by Penelope Uprichard and sought to challenge under the planning legislation a decision of Fife Council to grant planning permission for the installation of 28 parking meters at various locations throughout St Andrews. It is not clear whether while the case was brought under the planning legislation, in reality was as much a challenge to the system of parking regulation. The parking meters replaced an earlier voucher parking system.

Sainsbury's Supermarket Limited for Judicial Review of Decisions of Perth and Kinross Council taken on 17th December 2008 [2009] CSOH 138

Tue, 10 Nov 2009 09:05:00 GMT

This case concerns an application for judicial review by Sainsbury’s in relation to a decision of Perth & Kinross Council. The facts are complicated but the judge made some interesting observations of general relevance.

Murray Shaw, planning expert and Chairman of Biggart Baillie added his comment to this report as detailed below. In this video he explains why this decisions is an interesting one.

CALA Management Limited v The Firm of Messrs A & E Sorrie [2009] CSOH 79

Thu, 25 Jun 2009 07:40:00 GMT

Section 75 Agreements are often integral to the grant of planning permission. Typically they will be negotiated by the developer who at the time the Section 75 Agreement falls to be signed is not the land owner. The relevant Option Agreement or missives will usually make provision for the land owner to be bound to enter into the Section 75 Agreement.

This case is an interesting example of where that approach may go wrong and it is therefore of considerable interest because the approach is one commonly adopted.

Scottish Border Council v. The Scottish Ministers [2009] CSOH 70

Wed, 20 May 2009 09:46:00 GMT

Appeal under the Town and Country Planning Act 2007:- Here the council appealed under section 239 of the Town and Country Planning (Scotland) Act 2007 against a decision by a reporter appointed by the Scottish Ministers to allow a planning appeal by a Dr PH Campbell against the refusal by the council of his application for outline planning permission. The application was dated 17 April 2007 and was refused by the council on 20 August 2007. The reporter decided the appeal on 22 January 2008. It was submitted on behalf of the council that the policy of the council was that any development within certain post codes was subject to the requirement of a contribution because the council had decided that these areas would benefit from, or be enhanced by, the building of the railway. It was submitted that that was a decision that the council were entitled to take and was a decision with which the reporter was not entitled to interfere. As a fall back position it was submitted that if the reporter was entitled to look at the policy as it affected the individual application then he had failed to do so properly. It was submitted on behalf of the Scottish Ministers that the reporter had done what he was obliged to do and what the parties had invited him to do. Here the court considered whether the reporter was entitled to consider whether the application for planning permission was for a development which would benefit from the reinstatement of the railway and in the event that the reporter was correct to consider the merits of the imposition of the condition, whether he took into account all relevant matters in making his decision.

Vattenfall Wind Power Limited v. A Decision of the Scottish Ministers dated 9 July 2008 [2009] CSIH 27

Wed, 25 Mar 2009 17:13:00 GMT

On 10 April 2003 the appellant applied to the Scottish Borders Council for planning permission for twelve wind turbines to be erected in Peebleshire. On 6 June 2008 the appellant appealed to the respondents against the failure of the Scottish Borders Council to determine their application. By letter dated 12 June 2008 the respondents notified the appellant that it appeared to them that the appeal was out of time and by a letter dated 9 July 2008 they refused to consider the appeal. Here the appellants appealed under under Section 239 of the Town and Country Planning (Scotland) Act 1997 against that decision. It was submitted on behalf of the appellants that the Scottish Borders Council were given a valid extension of time to 31 December 2007 for the making of its decision and the six months period within which the appellant could appeal to the respondents against a failure by the planning authority to determine the application ran until 30 June 2008. It was therefore submitted that the appeal intimated on 6 June 2008 was timeous and should have been considered. Here the court considered whether the appellants had timeoulsy exercised their right to appeal within the period of six months from the date on which the statutory period had expired.

Hallam Land Management Limited v. The Scottish Ministers [2009] CSIH 22

Wed, 18 Mar 2009 14:52:00 GMT

Reclaiming Motion:- On 19 April 2007 the Lord Ordinary refused the reclaimers' appeal under section 29 of the Land Compensation (Scotland) Act 1963 against a decision of the respondents. That decision had been made on an appeal lodged by the reclaimers against the decision of East Dunbartonshire Council to issue a certificate of appropriate alternative development in respect of an area of land on the western edge of the village of Torrance. Here the reclaimers sought review of the interlocutor of 19 April 2007. The certificate issued by that Council on 26 April 2002, stated that:- ..."the only acceptable use of the land would be amenity space for informal recreation and nature conservation interests and planning permission would not have been granted for any other development." A number of grounds of appeal were advanced on behalf of the reclaimers in relation to the certificate of appropriate alternative development, dated 26 April 2002, which was described as a negative certificate. It was submitted on behalf of the respondents that the appeal should be refused. Here the court considered the statutory provisions applicable to the certification of appropriate alternative development contained within section 25 of the Land Compensation (Scotland) Act 1963 in deciding whether the the respondents' decision dated 22 October 2004 should stand as the Lord Ordinary had concluded.

Boyack Homes Limited against Fife Council, [2009] CSIH 7

Thu, 12 Mar 2009 17:02:00 GMT

The pursuers and appellants are a firm of house builders who in 2001 were engaged in a private housing development adjacent to Holly Road, Leven, Fife. The development required the building of new roads which at one point linked up with the existing thoroughfare at Holly Road. The defenders and respondents are the relevant roads authority and the appellants required to obtain a construction consent from them to build the roads within the development.

Brian Gregory Hamilton v. Dumfries and Galloway Council for Judicial Review [2009] CSIH 13

Thu, 05 Mar 2009 13:43:00 GMT

In this petition for judicial review the petitioner, the owner of the land in question, sought declarator that an area of land on the edge of a village in Dumfriesshire, was not a "road" capable of being added by the respondents to their list of public roads under section 16 of the Roads (Scotland) Act 1984. It was submitted on behalf of the petitioner that the expression "public right of passage", as used in the 1984 Act, referred to the public right of passage recognised by the common law of Scotland prior to that Act and a right of passage over the disputed section of road did exist, but it had been extinguished by the stopping up of the road in 1989 and by the blocking of the disputed section of road and the opening of a new route the disputed section of road ceased to serve any place to which the public might wish to go. Further, it was submitted that no public right of passage had been created subsequent to 1989. It was submitted on behalf of the respondents that the expression "public right of passage", as used in the 1984 Act, was a statutory concept previously unknown to the law and the use made by the public of the disputed section of road since 1989 was sufficient to constitute a public right of passage within the meaning of the 1984 Act and such a right could not be extinguished by the landowner's withdrawing permission. Here the court considered status of the road after 1989, and whether the disputed section of road formed part of a "road", within the meaning of section 151(1) of the 1984 Act, and, once the 1983 Order came into effect in 1989, the effect of that on the public right of passage over the disputed section of road and it's status within the meaning of the Act. Here the court considered whether the disputed section of "road" could be adopted under section 16 of the 1984 Act.

Planning Gain, but Financial Pain?

Tue, 17 Feb 2009 10:14:00 GMT

Introduction

The future for “planning gain” in Scotland is unclear (see article Planning Gain – What Next?). As well as issues about the legal framework within which the planning gain system should operate, it is now clear that there are significant issues in relation to the funding of planning gain (or developer contribution) packages as a result of the current financial climate:

Planning Gain and the Current Financial Climate

While the reforms referred to in more detail below are welcome, the more pressing practical issues in relation to planning gain arise out of the impact of the current financial position. While there have been anecdotal stories of developers seeking to either re-negotiate planning gain packages or delay when payment should be made, there appears to be a growing recognition on the part of local authorities that action needs to be taken by them with a view to trying to make sure that in practice planning gain benefits can in fact be realised. A negotiated package is of little benefit if the development which underpins it is not to proceed.

The need for developers to contribute by way of planning gain to infrastructure requirements remains pressing. The general view within the development industry (both in the public and private sector) is that there are many infrastructure issues (such as roads, sewerage, water and education issues) which need to be addressed. The practical issue is the extent to which developers can contribute in the current financial climate.

In the context of their Local Plan Review, East Ayrshire Council have published a paper identifying specific projects that need to be undertaken as a consequence of developments which have been identified – the paper costs these with some detail. This approach appears to be consistent with the thinking which underlies the review of Circular 12/1996 referred to above. The report however acknowledges that while progress has to be made in relation to identification of the planning gain package the Council has to take account of the current financial position. Specifically the report comments:- “In order to assist the development industry as far as possible, supplementary planning guidance on developer contributions that will be prepared by the Council is likely to include measures such as flexible methods of payment (i.e. developers will not necessarily be asked to pay developer contributions in advance of houses being constructed and sold) and will allow developers to make a request for non—payment/reduced levels of developer contributions, should it be proven, to the satisfaction of the Council, that their site will be rendered non-commercially viable by the requirement”.

This thinking seems to be shared by other Councils. The Leader of Glasgow Council, Stephen Purcell, announced in November that Glasgow Council will be flexible in relation to the timing of payment of some developer contributions.

Stirling Council also recognise the difficulties, announcing on 10 December the possible deferral of commuted payments and other financial contributions including the possible amendment to legal agreements already entered into. This approach was taken in light of the current difficulties. The Leader of the Council, Graham Houston, specifically commented “This is a very difficult time for the construction industry and we feel that the proposed measures would help stimulate and support the industry to continue to build across Stirling, securing jobs and adding to the economic growth of the area.”

Specifically the Council made clear that developers or applicants who wish the timing of payments to be reviewed should write into Head of Planning, Regulation and Economic Development given the details of the changes sought with the justification for the request.

The review of Circular 12/1996 (see below) was underway before the current economic position became as difficult for the development industry as it currently is and the effects of the review will (hopefully) continue when the economy improves. It is clear that some Councils, in the meantime, appreciate the need to be flexible to support the development industry and to secure benefits for the Councils.

At the planning summit in October the then Chairman of the Scottish Property Federation, Dan MacDonald, in effect challenged the Scottish Government to find funding to address the infrastructure issues which affect Scotland (the problem is in fact referred to in the draft National Planning Framework 2). The Scottish Government has been quick to dismiss the economic revitalisation package brought forward by the Westminster Government as inappropriate and ineffective. Possibly the time is right for the Scottish Government to find the funds to resolve some of these infrastructure problems now which would not only stimulate the economy but help address issues which will have to be dealt with in any event once we return to more normal economic circumstances.

Draft New Circular 12/1996

The current guidance is found in Scottish Government Circular 12/1996 which deals with planning agreements. Usually planning gain packages will be subject to some form of agreement, typically a Section 75 Agreement. Most of those involved in the development industry think that this Circular is basically sound, the difficulties arising from the way in which the Circular is implemented.

The Circular identifies that planning agreements should meet a number of criteria including: -

(a) The agreement must relate to the development in question;

(b) The proposed planning gain package should be related in scale and kind to the proposed development;

(d) It must be reasonable to require the agreement to be entered into.

While the Scottish Government have indicated that they do not immediately intend to carry out any wholesale changes to the planning gain system, it is intended to review this Circular and there are ongoing discussions in relation to that. A Consultation paper was issued just prior to Christmas looking for comments by March 2009.

A draft of a proposed new Circular is included in the Consultation paper at Annex A. Various issues are identified as part of this Consultation process including whether the guidance in relation to when a planning agreement may be appropriate is clear, whether that guidance will result in a more consistent approach and the desirability of pre-application negotiation of agreements (to minimise delay and cost).

The draft makes clear that there is a sequential approach to be followed:

(a) Conditions;
(b) Legal agreement (e.g. under the Local Government (Scotland) Act 1973);
(c) Section 75 Agreement.

The guidance about when an agreement is appropriate largely reflects that in the existing circular, albeit the wording appears to be intended to be more prescriptive. It makes clear all the criteria are to be met and the benefits proposed must “directly” relate to the development and “fairly and reasonably” relate in scale and kind. There is also a new requirement to the effect not only should what is proposed serve a planning purpose, it should be “relevant to the published Development Plan of the authority”.

Planning Agreements – When Are They Appropriate?

The requirement that a proposed development should be “relevant to the published Development Plan of the authority” suggests that the Government expects planning authorities to set out either in the Development Plan or Supplementary Planning Guidance what is expected of developers. Specifically, the use of policies to identify when agreements may be necessary is encouraged. However, it appears that detailed methodology should be left to Supplementary Planning Guidance. This has not always been done in the past, nor has such an approach always been welcome (e.g. at Local Plan Inquiries).

Finalising a Planning Agreement

Possibly the most significant part of the guidance is that dealing with the process of finalising the terms of an agreement. This often is the point at which delay is caused. The guidance suggests active “project management” is appropriate and raises the possibility of pre-application discussion resulting in Heads of Terms. The guidance appears to advocate greater public involvement – presumably this is at the policy stage not in relation to the agreement of detailed terms.

Detailed guidance is given in Annex A on the process of agreeing the document itself. While this guidance is helpful, the real issue is often the practical one of the resources available in local authority legal departments to prioritise matters. Some developers arrange for their agents to draft the agreement. If so, in the future they will need to have regard to the final form of this Annex.

Planning Agreements and Dispute Resolution

Nothing is said about resolving any conflict other than by way of appeal. This is unfortunate. In an early discussion paper there was some suggestion that a form of “adjudication” short of an appeal process might be possible. At the moment in the event of serious dispute the only real choice for the developer is to go to appeal. This is a time consuming and expensive process. While the possibility of entering into a unilateral planning agreement in terms of the 2006 Act (once the relevant provisions are enacted) may help in some circumstances, that legislative change is clearly not a panacea for this problem. Having an effective means of dispute resolution which would obviate the need to go to appeal (assuming the planning gain package is the only issue outstanding) would be welcome to the development industry. It appears this is not on the cards at the present time.

For more information email Murray Shaw of Biggart Baillie LLP or call 0141 228 8000.

Planning Appeals In Scotland

Tue, 20 Jan 2009 15:43:00 GMT

Introduction

Consistent with the timetable published in December 2008, the Regulations in relation to planning appeals and separately schemes of delegation and local review bodies have now appeared.

In effect these two sets of regulations are the final regulations required to implement the substantive provisions of the Planning etc (Scotland) Act 2006.

The Town & Country Planning (Schemes of Delegation & Local Review Procedure) (Scotland) Regulations 2008

An integral part of the proposals was an intention to delegate more decisions from planning authorities to planning officers. The practical manifestation of this is found in the regulations entitled “The Town & Country Planning (Schemes of Delegation & Local Review Procedure) (Scotland) Regulations 2008”.

Schemes of Delegation

The provisions in relation to schemes of delegation are relatively brief and straightforward. There is an obligation upon local authorities to prepare a scheme of delegation (the intention being these should be reviewed at intervals of no greater than 5 years). The scheme is to prescribe applications which are to be dealt with by the appointed officer and if there are to be restrictions upon what applications are to be delegated the scheme is to make these clear. These schemes will relate to local applications in terms of the hierarchy which now applies. In terms of this legislation these schemes of delegation are only to deal with applications for planning permission and applications for consents required by a planning permission. Local authorities in fact have wide power under other legislation to make schemes of delegation and one issue which local authorities will need to address is the inter relationship between schemes made specifically for the purposes of these regulations and schemes made more generally. Schemes of delegation are to include restrictions preventing a “delegated” decision in some cases. These restrictions are simplified from the draft regulations and in effect now delegation is only prescribed where the application is made by a planning authority, a member of the planning authority or the application relates to land in ownership of the planning authority or in which they have a financial interest.

Apart from these provisions there are now no mandatory provisions regarding the format of schemes of delegation (as there was in the draft regulations) but where a scheme is to be made then the authority are to send a copy of the scheme to Scottish Ministers and they are not free to adopt the scheme until it has been approved by Scottish Ministers. There appears to be no specific timescale within which approval is to be given. Once the scheme has been made however it is to be published on the internet and made available in public libraries and at Council offices.

Local Review Bodies

Appeals from delegated decisions will no longer be to the Scottish Government (in reality the Department for Planning & Environmental Appeals) but rather to a local review body. This is possibly the most controversial change that was brought about by the 2006 Planning Act.

There are considerable concerns about whether local review bodies are in fact human rights compliant. It is interesting to note that a similar proposal in England was dropped because of such concerns.

Leaving to one side that legal issue (which can ultimately only be determined by the courts) there are practical concerns about the operation of local review bodies. The Government is certainly aware of these concerns. Indeed in the original consultation paper, it commented as follows:- “However the Scottish Government recognises that this significant change must not result in reduction in the quality of the examination, one of the key strengths of the existing system. It is essential that any local review processes are underpinned by high standards: those with responsibility for participating as members or chairing a local review body must be fully trained…. those requesting a review must be confident that their case will be dealt with fairly”.

Local review bodies are to be made up of at least 3 members of an authority and to meet in public. The membership is in itself to a degree controversial. In small authorities (such as East Renfrewshire or Clackmannanshire) identifying 3 members (minimum) and having them trained may be a significant burden particularly when those members for all practical purposes will have to be precluded from other planning decisions. There will also be difficulties where those members have an interest in a planning application within their ward – an issue that becomes particularly complicated with larger multi-member wards. In large authorities however different problems may also arise. A number of local authorities in Scotland act on a local committee basis. It might reasonably be anticipated that members of a local committee will be concerned if their committee has no representation on the local review body.

The regulations set out detailed provisions in relation to how the review body must work, notice to be given and the procedures to be followed. The local review body is to have a discretion to consider whether further representation should be made and how a review is to be conducted. A review apparently may be by means of written submissions, a hearing or inspection of the land (or any combination of these means). The regulations contain detailed provisions about how each process should be conducted. The draft regulations made provision for some form of inquiry process. This has been dropped though the hearing process may involve a degree of questioning and evidence being given.

A particular issue of concern was how local review bodies would be advised in relation to issues. It seems inappropriate that advice should be given by the Director of Planning (on the basis that in effect it was a decision made by him or on his behalf that was being reviewed) or a planning officer who might be a colleague of the actual decision maker. The regulations now provide for the possible appointment of an assessor to advise the local review body. If an assessor is appointed, he/she is to advise in writing after any hearing session upon the matters in relation to which they were appointed. There is nothing in the rules to make clear who can be appointed assessor. It will be interesting to see whether planning authorities turn to the private sector in this regard, though given the restrictions on local authority funding there may be practical restrictions on their ability so to do.

There are also concerns about how matters such as conditions and Section 75 Agreements may be dealt with in the event that a review is successful. Nothing is said in the regulations specifically as to how such matters are to be dealt with though a decision notice requires to specify any conditions which the decision is subject to and if there is to be a Section 75 Agreement to state the terms of this and where such terms may be inspected. Again however there is the practical issue of who is to advise the local authority in relation to these.

Generally speaking the regulations are simpler than the draft regulations. Leaving to one side the issue in relation to human rights, the practical concern is how local review bodies will in fact operate and whether the high standard and quality which the consultation paper referred to will in fact be maintained.

Schemes of delegation come into operation on 6 April 2009 with a view to ensuring that local authorities have schemes of delegation in place in good time for the effective start date for the new appeal system which will be 3 August 2009 (though there will be a delay until applications made under the new system percolate through).

Town & Country Planning (Appeals) (Scotland) Regulations 2008

The second set of regulations which appeared dealing with appeals are entitled “Town & Country Planning (Appeals) (Scotland) Regulations 2008”. These make significant changes to the appeal process and will need to be closely followed by anyone who is involved in that process.

Notably the period within which an appeal is to be lodged has been reduced from 6 months to 3 months. When a similar change was made in England the Inspectorate there was swamped with appeals. There are some concerns that this will also happen in Scotland though it may be the current financial position (and a consequent reduction in the number of planning applications) will reduce the impact.

While the regulations make a number of detailed changes regarding how an appeal is made possibly the most significant change however is that the decision as to the format of the appeal will no longer be made by the appellant, but rather by the decision maker (effectively the Directorate for Planning & Environmental Appeals). While there is provision for an appeal to be determined without further procedure once lodged, when this does not happen the decision maker is to decide how the appeal should be dealt with having regard to the terms of the regulations. It appears unlikely that many (if any) appeals will be determined without some further procedure.

The procedures available for determining an appeal are written submissions, hearing sessions, inquiry sessions, inspection of the land to which the appeal relates or any combination of these. In practice it seems more likely in the future that a combination will be used (indeed in the Trump Inquiry some issues were dealt with in writing with the balance in an Inquiry).

Detailed provisions are made in relation to how the different types of appeal processes are to be conducted. In effect the intention is to make the decision maker much more effectively in control of the process.

The rule restricting a precognition to 2,000 words has been retained – there is provision that the decision maker (the appointed person) may authorise a longer precognition. Given some witnesses will be hard pushed to keep their precognition to that sort of length then there may be more reference to reports which contain information which previously would have found its way into a precognition. It appears likely that the decision maker (the appointed person) will not necessarily allow new information to be lodged and in practical terms it is likely that an appeal (whatever process follows) will be more akin to a review of the information before the planning authority than has previously been the case.

The significance of these changes is likely in reality to result from the way in which the new rules are operated by the decision maker. While it is easy to challenge what have the potential to be significant changes, in reality what will be important is that the appellant (whoever they might be) feels that in an appeal context (howsoever run) their case has been properly and fairly considered.

For more information email Murray Shaw or call 0141 228 8000.

Appeal under sections 237 and 239 of the Town and Country Planning Act 1997 by Kartar Singh Barhaya v. A Decision of a Reporter in the Scottish Executive Development Department Inquiry Reporters Unit [2008] CSOH 114

Thu, 14 Aug 2008 08:26:00 GMT

Appeal Under sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997:- This was an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 against a decision by a reporter in the Scottish Executive Development Department Inquiry Reporters Unit, dated 9 January 2007 in which the reporter refused the appeal of Mr Barhaya against the refusal of planning permission by Glasgow City Council for the development of shop premises in Glasgow, for use as a hot food takeaway with a charcoal filter extraction system. The initial reasons for refusal were:- "(1) By reason of the low level discharge point and the configuration of the back court the proposal is likely to result in disamenity to residents as a result of the failure to adequately disperse cooking odours. (2) By reason of the failure to provide an adequate means of dispersal of cooking odours, the proposal is considered contrary to the residential policy designation in the adopted city plan." The appellant appealed to the Scottish Ministers against this decision under section 47 of the 1997 Act. The reporter refused planning permission, his decision turned on the issue of residential amenity and the adequacy of the case which the appellant had presented in relation to possible adverse environmental effects. Here the appellant raised a number of issues:- (1) he submitted that any objections to the principle of the use of the premises as a hot food takeaway were beyond the scope of the section 47appeal; (2) he submitted that there was no need for planning permission for the installation of the extraction system; (3) he submitted that he should not have been required to present his appeal at a hearing when he had wished to proceed by written submissions; (4) he submitted that the Council had already taken into account residential amenity when they granted permission to change the use of the premises to a hot food takeaway and that the amount of cooking which was proposed on the premises was not significant; (5) he submitted that the Council had acted irrationally as certain councillors and officials had promoted the site as one of the locations for the pilot project but the Council had then refused to give it planning permission; and (6) he submitted that the reporter had no technical or mechanical expertise or expert evidence before him which allowed him to conclude that the filtration system would not be effective if it were not maintained. Here the court considered whether the reporter had acted within his powers under the 1997 Act.

Bellway (Scotland) Limited and Others v. Stirling Council & Walker Group (Scotland) Limited [2008] CSIH42

Sun, 20 Jul 2008 15:05:00 GMT

Appeal under section 238 of the Town and Country Planning (Scotland) Act 1997:- In this appeal the appellant sought an order quashing an alteration to the first respondents' local plan which allocated the second respondents' site at Durieshill as the "Major Growth Area" for housing. Section 238 allows a person aggrieved by a structure or local plan or any alteration to such a plan to question its validity on the basis that it was not within the powers conferred by the Act or that a requirement of the Act had not been complied with. In terms of section 238 the Court may "wholly or in part quash the plan or...the alteration", if it determines the application to be well founded. It was submitted on behalf of the appellants that:- (1) on a proper construction of the Structure Plan, the Alteration was contrary to its terms in so far as it designated land to the south of the M9, and hence Durieshill, as in Stirling East or the Search Area; and (2) the reporter had failed to take into account a letter from the owner of Plean Farm and, as such, failed to take into account a relevant material consideration in making her recommendation. It was submitted on behalf of both respondents that the appeal should be refused. The issue for the court here was whether whether the adoption of Alteration 2 to the Local Plan was inconsistent with the description of the search area in the Structure Plan.

Sigurdur Arthur Bennett v. Michael Gordon & Mrs Susan Gordon & The Scottish Ministers [2008] CSIH 21

Wed, 05 Mar 2008 11:35:00 GMT

Appeal under section 239 of the Town and County Planning (Scotland) Act 1997:- This was an appeal under section 239(1)(b) of the Town and Country Planning (Scotland) Act 1997 against a decision of a Reporter appointed by the third respondents, dated 26 October 2005, in which the Reporter upheld an appeal by the first and second respondents against an enforcement notice which had been served on them by the City of Edinburgh Council in respect of a property in a residential area in Edinburgh. On 8 February 2005 the Council served on the first and second respondents an enforcement notice relating to the property, on the basis that it appeared to them that there had been a breach of planning control in that there was alleged to be "Without planning permission, the material change of use ... from dwellinghouse to entertainment venue". The notice required the first and second respondents to cease the use of the property as an entertainment venue within two months of its effective date, being 24 March 2005, unless an appeal was taken before that date. The first and second respondents appealed against the notice and submitted that the matters stated in the notice, and which it was contended constituted a breach of planning control, had not occurred. A reporter was appointed by the third respondents to determine the appeal which was heard on 30 and 31 August 2005 when the Reporter conducted a public local inquiry. The Reporter decided that the first and second respondents' appeal against the enforcement notice succeeded under section 130(1)(b). The appellant appealed against the Reporter's decision under section 239(1)(b) of the Act the central ground of complaint being the inadequacy of the reasons given by the Reporter.

Dalfaber Action Group & c & The Scottish Ministers v. Moyra Gray & Redhaven Estates [2007] CSOH 180

Tue, 20 Nov 2007 18:53:00 GMT

Appeal under section 239 of the Town and Country Planning (Scotland) Act 1997:- In this appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 the appellants sought to challenge a decision of the Scottish Ministers by their reporter dated 16 November 2006 concerning an area of ground at North Dalfaber, Aviemore. On 17 February 2005 the second respondents sought outline planning consent for a residential development at a site which they owned at North Dalfaber. On 6 March 2006 the planning authority intimated its refusal to grant outline planning permission and the second respondents sought to appeal the planning authority's decision in terms of section 47 of the 1997 Act and the reporter was appointed to determine the matter. On 16 November 2006 the reporter allowed the second respondents' appeal and granted outline planning permission subject to certain conditions. In the appeal under section 239 it was submitted that the reporter had erred in law in his treatment of various issues before him and had failed in his duty to give adequate reasons for the decision taken. The main issue here was whether the proposed development encroached beyond the terms of the Badenoch and Strathspey Local Plan, in particular, an incursion into the surrounding woodland.

Appeal to the Court of Session under section 239 of the Town and Country Planning (Scotland) Act 1997 by CRE Energy Limited v. A Decision of the Scottish Ministers by their Reporter WMH Patterson Esq dated 3rd March 2005 [2006] CSOH 131

Mon, 28 Aug 2006 23:00:00 GMT

Appeal under s239 Town & Country Planning (Scotlan

BATH & NORTH EAST SOMERSET COUNCIL v EILEEN CONNORS & ORS (2006) [2006] EWHC 1595 (QB) (Date Uncertain)

Sat, 01 Jul 2006 00:00:00 GMT

Planning. Temporary planning permission was unlikely to be granted on appeal by a gypsy community which had located caravans in an area of outstanding beauty notwithstanding a new circular which placed a duty on the local authority to consider the accommodation needs of gypsies and provide suitable land to cater for such needs.

R (on the application of John Catt) v Brighton & Hove City Council (Defendant) & Brighton & Hove Albion Football Club (Interested party) [2006] EWHC 1337 (Admin)

Thu, 15 Jun 2006 00:00:00 GMT

The Claimant lived next to Withdean football stadium which was the home of the Interested Party. The IP applied for planning permission to extend the stadium by 1966 seats bringing the total seating capacity to 9000, the extension of existing stands, new changing rooms and the relocation of the hospitality unit. In a screening opinion, it was decided that no Environmental Impact Assessment would be required since the proposed development would not result in significant impact on the environment. The Claimant challenged this decision. It was held that the effect of the proposed development had been properly taken into account. Impact on the environment was an independent factor to be considered in light of possible mitigating measures. Terefore the local authority’s decision was not erroneous.

Mark Hughes v (1) First Secretary of State (2) South Bedfordshire District Council [2006] EWCA Civ 838 (Date Uncertain)

Thu, 01 Jun 2006 00:00:00 GMT

The Secretary of State’s challenge against a decision to quash his decision to uphold a local authority’s refusal to grant retrospective planning permission to gypsy famailies to use their land as a gypsy caravan site was allowed. It was held that such planning judgments required the Secretary of State to balance the interests of the community at large, as reflected in the planning considerations, against the interests of the families, in particular the childrens’ educational requirements. The view of the Secretary of State that this balance came down in favour of the community at large notwithstanding the disruption of the childrens’ education was one that he was entitled to make.

Ashley Bell + George Wimpey UK Limited v. East Renfrewshire Council + Carvill (Scotland) Limited

Tue, 22 Nov 2005 00:00:00 GMT

Applicaton to Court of Session under Section 238 of Town and Country Planning Act:

South Bedfordshire District Council v Price & Ors [2005] EWHC 2031 (QB) (23 September 2005)

Fri, 23 Sep 2005 00:00:00 GMT

Gypsy Injunction: Mr Justice Bean determined that an injunction must be complied with, in circumstances where a local planning authority had obtained the order requiring that gypsies vacate a site which they occupied and continued to occupy in breach of planning control. It did not matter that the local authority acknowledged that there was a need for further gypsy site provision within its area. The judge held that the order of the court must be complied with, and declined to suspend it until such time as provision of alternate sites was made.

Hampson, R (on the application of) v Wigan Metropolitan Borough Council & Anor [2005] EWHC 1656 (Admin) (27 July 2005)

Wed, 27 Jul 2005 00:00:00 GMT

Mr Justice Richards held the fact that where a planning officer’s report to Committee was deficient in its evaluation of a planning application, such deficiency was irrelevant in circumstances where Members would have reached the same conclusion even had the report addressed all the relevant issues satisfactorily. The officer’s report had omitted proper consideration of the relevant planning policies, but the thrust of his report was clear: the benefits of the development significantly outweighed the disadvantages. In such circumstances there was no likelihood of Members reaching a different conclusion to that which they ultimately reached, and so the planning permission would be allowed to stand.

Green v First Secretary of State [2005] EWHC 691, QBD, 13th April 2005

Fri, 13 May 2005 00:00:00 GMT

Mr Justice Gibbs granted an application to quash a decision of the Secretary of State’s Inspector, in which the latter had given conditional planning permission for a gypsy caravan site. The court held that the question of whether the ‘caravans’ on an appeal site were indeed caravans for the purposes of the Caravan Site and Control of Development Act 1960, was a material consideration to which the Inspector should have had regard. On the facts of the case, there was justification for querying whether the some of the ‘caravans’ had in fact been so altered as to be incapable of meeting the definition contained in the Act. If indeed ‘caravans’ did not fall within the confines of the statutory definition, that could have an effect on the gypsy status of those residing within them.

First Secretary of State & Anor v Sainsbury's Supermarkets Ltd [2005] EWCA Civ 520 (06 May 2005) [2005] EWCA Civ 520, Court of Appeal, 6th May 2005

Fri, 06 May 2005 00:00:00 GMT

In allowing an appeal on behalf of the Secretary of State, the Court of Appeal found that Mr Justice Collins had been wrong to quash the former’s decision not to grant planning permission for the extension of a supermarket. It was necessary to have regard to a decision of the Secretary of State in the round; and where that decision was intelligible and contained no errors, it was not appropriate to quash merely because the decision could have been expressed more clearly. However, this approach should not be adopted to the extent that the courts ‘rescued’ decisions of the executive by straining to interpret them as legally invulnerable. Furthermore, it was held that the Secretary of State was justified in determining that evidence suggesting that a particular supermarket was trading at levels above average capacity need not be a conclusive indication of quantitative need.

Appeals to the Court of Session by the Standard Life Assurance Company + Land Securities Group PLV v. The Scottish Ministers + Glasgow and Clyde Valley Structure Plan Joint Committee Against a Decision of the Scottish Ministers Dated 24 November 2003

Wed, 30 Mar 2005 00:00:00 GMT

Town and Country Planning:

Simmons v First Secretary of State & Anor [2005] EWHC 287 (Admin) (02 March 2005)

Wed, 02 Mar 2005 00:00:00 GMT

Gypsy Caravan Sites: Mr Justice Newman concluded that when a gypsy was seeking to develop land in the green belt as a caravan site, it was necessary to have regard to the availability of alternative sites in determining whether or not the applicant had demonstrated “very special circumstances” justifying a grant of planning permission. However if all the relevant data, as available to the local planning authority, indicated that no such alternative sites were available, then it would not be relevant that the applicant had failed to undertake a search for such sites.

Oxfordshire County Council v Oxford City Council & Anor [2005] EWCA Civ 175 (24 February 2005)

Thu, 24 Feb 2005 00:00:00 GMT

Village Greens: The Court of Appeal made a sequence of findings in relation to the process of registering land as a town or village green. Most significantly, the court determined that in order to qualify for registration, it was necessary that land be used by inhabitants for ‘lawful sports and pastimes’ until the date of registration itself, rather than until the date on which the application had been made. The Court further determined that registration of land as a town or village green conferred no rights on those persons whose use of the land had caused it to be registered.