This case involves a successful challenge by Scottish Borders Council to a decision issued by a Reporter on an appeal against the refusal of planning permission. The original ground of refusal related to the failure of the applicant to agree to make a financial contribution required by the Council. It is one of the few cases before the Scottish Courts where such matters have been looked at.

The facts are relatively straight forward. An applicant applied for planning permission. The application site lay within an area in relation to which Scottish Borders Council had decided that planning permission would only be granted if the applicant made a contribution towards the cost of the Waverly Rail Line. The applicant refused to make such a contribution and planning permission was refused. The applicant argued that he should not be bound to make a contribution because in fact no benefit would result to the proposed development from such a contribution or indeed the rail line itself.

The applicant successfully appealed and Borders Council challenged the appeal decision.

The first argument for Borders Council was to the effect that the planning authority having made its policy in relation to this matter it was not an issue which could be challenged in the context of a particular application but rather any issue in relation to the relevance of the policy should be considered when the policy came up for review. Lady Stacey had no difficulty in rejecting this argument. The relevant policy was contained in a Finalised Local Plan. It is not clear to what extent her view might have been different had the policy found in adopted Local Plan.

The Council also argued however that the Reporter had failed to take into account relevant considerations including in particular the potential wider benefits which might accrue from the construction of the rail line thereby justifying a policy requiring contributions towards it. On this argument the Council were successful and accordingly the decision letter was quashed and the matter remitted back to Scottish Ministers to consider again.

Lady Stacey in her judgement appears to have been critical of the way in which the decision letter was framed. Her comments in this regard may be seen to be contrary to other decisions of the Court of Session which have indicated that a decision letter need not be unduly detailed and should not be construed “as a conveyancing document”.

There is no real consideration in the case of the parameters of what might properly be required by way of developer contributions. There is certainly nothing to suggest that the approach taken by the Council was in any way illegal. Given the lack of authority however in this area the case is nonetheless of some interest as to how the court might look at issues in other similar circumstances.

ByMurray Shaw, Partner, Biggart Baillie