Planning

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

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:

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: