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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Hallam Land Management Ltd v. Edinburgh City Council & Ors [2011] ScotCS CSOH_75 (06 May 2011) URL: https://www.bailii.org/scot/cases/ScotCS/2011/2011CSOH75.html Cite as: [2011] JPL 1470, 2011 SLT 965, [2011] ScotCS CSOH_75, 2011 GWD 18-442, [2011] CSOH 75 |
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OUTER HOUSE, COURT OF SESSION
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XA24/10
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OPINION OF LORD MALCOLM
in the Appeal to the Court of Session under section 238 of the Town and Country Planning (Scotland) Act 1997
by
Appellants;
against
the
adoption by the City of
Respondents:
____________
|
Appellants: Martin Q.C., Burnet, Advocate; DLA Piper LLP
Respondents: Armstrong Q.C., Sutherland, Advocate;
City of Edinburgh Council
Interested Party: Smith Q.C.; Gillespie Macandrew
6 May 2011
[1] On 28 January 2010 the City of Edinburgh Council
("the respondents")
adopted the
Edinburgh
City Local Plan. Previously two reporters had been
appointed to consider objections to the finalised local plan (approved in March
2007). Their report was delivered to the respondents on 30 June 2009.
Amongst other things, the reporters dealt with objections to the plan's
strategic housing allocations. This appeal relates to their consideration of
how the structure plan's requirement of 400 new housing units for the
Edinburgh
urban fringe should be met through local plan allocations. In particular the
reporters considered the relative merits of the respondents' proposed strategic
allocations when compared to other "candidate" sites. The
council
sites are
known as Newcraighall North and Newcraighall East (HSG13 and 14 in the finalised plan), and had been
allocated respectively 200 and 220 housing units. (It can be noted that in the
adopted plan the sites were designed as HSG14 and 15.)
[2] The
reporters carried out a comparative assessment of urban fringe sites, which
included site by site assessments. They concluded that the Newcraighall North
site, which is partly owned by the council
's development company, should have
an assumed site capacity of 140 units (reduced from 200): the Newcraighall
East site, proposed by the
council
and owned by the Dalrymple Trust ("the
interested party"), 90 units (reduced from 220): the Burdiehouse site,
proposed and owned by
Hallam Land Management
Limited ("the appellants), 100
units: and a site at Dreghorn, 75 units. In summary, the reporters advised
reduction of the housing units allocated to the respondents' proposed sites,
and the introduction of housing on two other sites to make up the structure
plan's requirement for 400 or thereby additional housing units in the urban
fringe.
[3] The
reporters set out their consideration of the evidence and submissions, and
their conclusions on the relevant issues, all at length and in detail. However
the respondents rejected the reporters' recommendations. In the adopted local
plan the council
adhered to the terms of the finalised plan. The main
submission made on behalf of the appellants was that the reasoning given for
rejection of the reporters' advice is wholly inadequate, and so this part of
the adopted plan should be quashed in terms of section 238(2)(b) of the
Town and Country Planning (Scotland) Act 1997.
[4] While a
number of cases were cited, there was general agreement that the correct
approach is set out in the judgment of Mr Justice Laws (as he then was) in
Oxford Diocesan Board of Finance v
West Oxfordshire District
Council
and Another [1998] PLCR 370. So far as relevant for present purposes,
that approach can be summarised as follows. Even in cases involving planning
judgement, the planning authority must give adequate and intelligible reasons
for its decision. It must be apparent that the authority fully and properly
considered the substantial points raised by the reporters. It must deal with
the matters relevant to the merits of the decision and give sufficient reasons
for departing from the reporters' conclusions. The obligation to deal with the
matter thoroughly, conscientiously, and fairly is enhanced when (as here) the
counsel is both a promoter of a site and the ultimate decision-maker. It would
not be sufficient for a planning authority merely to recite a series of
assertions. While what is needed will vary from case to case and depend on the
context and precise circumstances, fair and specific consideration of the
report is required.
[5] Counsel for the respondents submitted that the issues in the present case were matters of pure planning judgement, but even if that is so, in my opinion it does not elide the duty fairly to address and deal with the main points raised by the reporters. Against this background the appellants' counsel submitted that the reasons given are wholly inadequate and provide no sufficient basis for rejection of the reporters' recommendations; whereas counsel for the respondents and the interested party submitted that this complaint has no merit. There was no dispute that the grounds of challenge, if upheld, would justify the exercise of the court's power to quash under and in terms of section 238 of the 1997 Act.
The
Newcraighall North site
[6] The reporters' consideration of the Newcraighall North site begins at
page 1-27 of their report. They summarise the objectors' cases and the respondents'
responses. They then set out their conclusions, which can be summarised as
follows. There is a concern as to earlier underground workings. Some site
investigation work has been carried out, but insufficient to provide
reassurance, not least as to the costs of any necessary remediation work. Parts
of the site may not be developable at all. It would be unsafe to assume that
all the site can be developed at the suggested density of 30 houses per
hectare. There is concern regarding former landfill activity which could raise
contamination issues given the limited available information. It is noted that
the council
concedes a reduced developable area of 6.6 hectares because of
pylons on the
land
. Nonetheless the reporters conclude that in broad terms
most, if not all of the site is likely to become effective over the period of
the plan. They are satisfied that the proposed development would minimise
impact on green belt objectives, and that the elevated former rail embankment
forming the north eastern boundary is a robust boundary for development on the
site. They are persuaded that the development will strengthen the regeneration
of Newcraighall.
[7] It is noted that there are differences as to the size of the site as a whole. The pylon issue reduces it to 6.6 hectares, and the local nature conservation designation on the southern boundary further reduces the net area for development. The issues of the former mineworkings and possible residual contamination are likely to further reduce the developable area, but this cannot be estimated with any precision. It is necessary to take into account the need for remediation and the issue of the economic viability of the site.
[8] Notwithstanding the above considerations the reporters are persuaded that most, if not all of the site outwith the pylon set off area is likely to be developable economically, including allowance for some remediation where necessary. However they conclude "that it would be prudent to assume....a reduced site capacity of say 140 houses - which equates to around 25 dwellings per hectare on approximately 5.6 hectares". The actual number of units developed could be marginally different once detailed site and market appraisals have been undertaken in the course of a full planning application and taking full account of the constraints of the site.
[9] The
reporters are therefore of the view that the site is appropriate for allocation
of 25 houses per hectare and with a reduced net developable area to take
account of the pylons and the nature conservation designation. The assumed
capacity of 140 units makes "some allowance" for the uncertainties of
under-mining and landfill contamination which is "likely to further reduce the
capacity for housing development". The reporters conclude that the various
benefits of the allocation in economic, social and recreational terms will
outweigh the costs, in particular the small loss of green belt land
. The
reduced allocation will have the benefit of allowing housing to be developed on
sites other than those at Newcraighall.
[10] The respondents' planning officials advised acceptance of the reporters' recommendations with regard to this site. However on 1st October 2009 the relevant planning committee rejected this advice and decided not to accept the reporters' recommendations. The reasons given were as follows:
"A small part of the site is understood to be affected by past
mineworkings and will require remedial treatment. It is expected that the Edinburgh
housing market will be strong
enough to fund the remedial work required. The site can therefore be classed
as effective. In addition, the reporters' assumptions on likely density (of 25
houses per hectare) are low and unrepresentative of recent housing development
in
Edinburgh
. Family housing
(housing with private gardens attached) has been achieved at densities of 30
houses per hectare and above in
Edinburgh
. The site should therefore accommodate 200 units approximately on
the net developable area of the site".
[11] The key
element in the reasoning is that only a small part of the site is affected by
past mineworkings. Because of this the remedial treatment will be of a limited
extent and cost, and such that the market can bear. Strictly the reasons said
that a small part of the site is "understood" to be so affected. If one seeks
the basis of this understanding, the reasons are silent, no doubt because of
the factors explained in the report. The necessary investigatory work has not
been done. In short, in response to the concerns of the reporters, the council
has simply said that it thinks that there is no problem.
[12] In
essence the reporters suggested that, given the uncertainties over the whole
site, it would be prudent to be cautious and to make some provision for housing
elsewhere. In its decision the council
says that the uncertainties are limited
to a small area. However I can identify no basis for that assertion, thus I
conclude that the reasoning given by the respondents in their statement of
decisions in response to this part of the report is inadequate. I do
understand that, in the absence of an argued recommendation from their
officials to reject the reporters' recommendations, the committee members were
required to draft their own reasoning without expert assistance, but that
cannot alter the consequences of a failure to meet the required standards.
[13] Counsel for the owners of the Newcraighall East site submitted that, given the inter-relation between the two sites, should the decision on one fall, then the decision on the other could not stand. Nonetheless it is appropriate that I should consider the merits of the argument in connection with the other site.
The
Newcraighall East site
[14] This site is adjacent to the other Newcraighall site. It is owned by
the interested party and, as with the other site, is promoted by the
respondents. The site is green belt land
and the reporters' main concern
relates to green belt objectives. They explain why, notwithstanding various
developments and proposed developments in the area, they are of the view that
this
land
should still play a valuable role in the green belt around south east
Edinburgh
. Housing would
introduce severance and discontinuity for the first time in an area which is
vulnerable to further severance. Even if reduced in extent, this part of the
green belt should be safeguarded. The reporters offer the view that the
council
's
reasons in support of their proposal do not address all relevant issues, nor
demonstrate a comprehensive evaluation of the possible site options against
national and strategic planning policy. Structure plan policy requires the
council
to choose sites which minimise impact on green belt objectives and which are in
locations where new defensible green belt boundaries can be established. All
of this requires a comparative assessment. In the absence of such an
assessment from the
council
, the reporters carried out that exercise. They
conclude that, unless safeguarded at its southern boundary, the site does not
meet these structure plan requirements.
[15] Given
other developments in the area, the reporters are of the view that if the whole
of the site were to be developed for housing, it would form "the last piece in
the jigsaw" leading to the loss of this section of the green belt between
Edinburgh
and Musselburgh, and to the coalescence of those settlements. For
these reasons only the northern section should be allocated for housing. This
would allow for a new defensible green belt boundary at this location.
[16] On the
reduced site, 90 houses could be built at a density of 25 dwellings per
hectare. The key benefit would be to allow effective green belt to be retained
to the east of Newcraighall public park, giving additional publicly accessible
open space. The reporters explain that this approach would retain a green urban
edge to define and contain the built up areas of Edinburgh
and Musselburgh. It
would be wrong to "needlessly sacrifice" the separate identities of
Edinburgh
and Musselburgh. As a result of their comparative assessment the reporters
identify other suitable sites to the west where a proportion of the 400 houses
can be allocated without these harmful consequences. The reduced allocation on
Newcraighall East would still afford significant local regeneration benefits.
[17] Again
the council
's planning officer advised the relevant planning committee to
accept the reporters' recommendations in respect of this site. However the
committee adhered to the terms of the finalised plan. Their reasons were as
follows. (1) The "view" is that the
land
does not have the potential to
be an effective part of the green belt.
(2) Its development will not have a detrimental impact on the landscape setting of the city nor upon its identity from any significant public viewpoint.
(3) It
represents the least harmful of the options before the council
.
(4) Its loss to the green belt is outweighed by the benefits to be derived from a larger development on the site.
(5) The other
developments proposed in the area by East Lothian Council
throw into doubt
the long term defensibility of the site as part of the green belt.
(6) The amount of open space is disproportionate to the amount of housing proposed by the reporters and thus unlikely to be realised.
(7) The allocation is consistent with other structure plan policies, and will afford the possibility of a range of house types.
(8) Notwithstanding adverse ground conditions because of mining operations, the site is effective in planning terms.
(9) Concerns as to coalescence can be addressed at the master plan stage, and by ensuring that new housing takes place within a landscape framework which compliments that proposed for the planned business park.
[18] At first sight these reasons seem more impressive than those given in respect of Newcraighall North. However closer consideration reveals that, on the key issues which caused the reporters to recommend retention of the green belt at this location, they are lacking in reasoning and do not reveal the basis for the statements made. In short, in my view, especially when set against the careful and detailed treatment of the issue by the reporters, the reasons are no more than a series of glib and unsubstantiated assertions.
[19] As to
the first reason, there is no attempt to explain why the land
does not have the
potential to be an effective part of the green belt, nor in what way the
reporters fell into error in this regard. On the face of it the reporters'
careful analysis and reasoning is compelling, and any interested party would be
left in ignorance as to why this "view" was taken by the committee. There is
no explanation of the basis or reasons for factors 2, 3 and 5. As to number 4,
the suggested benefits are not identified, nor is it explained why they
outweigh the harms identified by the reporters, not least the damage to
structure plan policy. The sixth reason is an unexplained assertion. The
final reason is superficial, and in the circumstances very unlikely to be
understood by an aggrieved party without some elaboration as to how or why the
reporters' fundamental concerns can be addressed at the master planning stage.
[20] It is necessary to guard against an overly intrusive approach by the court on a matter which the relevant legislation has entrusted to the planning authority. However, bearing in mind the dangers highlighted by Laws J when the planning authority is both a promoter of sites and judge on the ultimate outcome, it is important that when an authority is rejecting the outcome of the inquiry process, it is clear to an interested person that the authority has engaged with the issues raised by the reporters and explained the basis of the contrary decisions. Having applied the approach laid down in the Oxford Diocesan Board of Finance case, I am not persuaded that an informed reader would be so satisfied. I consider that the reasons given are inadequate. I shall uphold the appellants' submissions in respect of both sites. In these circumstances the appeal succeeds.
The
consequences of the quashing of this part of the plan
[21] The consequences of a successful appeal was a matter of debate, with
a fundamental difference of view emerging. Counsel for the appellants and for
the respondents submitted that the effect of the relevant legislation is that
the whole process in respect of this part of the adopted local plan would
require to be repeated afresh and from the beginning. On behalf of the
interested third party Mr Smith, Q.C. submitted that if the appeal were to
succeed, the court should simply quash the relevant part of the adopted plan.
[22] There is
authority from south of the border which supports the first approach, however I
have decided not to follow those decisions. The relevant statutory provision,
namely section 238(2)(b) of the 1997 Act, allows the court to quash the local
plan in whole or in part. On the face of it the terms of section 238,
including section 238(5)(a), suggest that the "local plan" is a document,
and in particular the document one would be given having asked for a copy of
the adopted local plan. This initial impression is reinforced by the terms of
sections 11 to 19 of the Act. As section 11 makes clear, the
local plan for an area is the result of the preparatory steps taken by the
planning authority in this regard. It consists of the written statement
setting out the authority's proposals for the development and use of land
,
along with a map and such diagrams and illustrations as the authority think
appropriate. A local plan may be altered from time to time, and that would
involve a change in that document. If a new plan is prepared, it is that
document which is superseded. When a planning authority adopts a plan under
section 17 of the Act it is holding out a particular set of written
proposals and map, etc as the local plan for the area. If one is asking
whether a local plan conforms to the structure plan, one will compare the two
documents. As provided for in sections 18 and 19, if a local plan is called
in, the Scottish Ministers will be sent a copy of the plan, which will be
considered and then approved, modified or rejected. In short, the local plan
is the document kept by the local authority and available for public
inspection, not the whole process from start to finish.
[23] Section 239 allows the court to quash other orders, decisions and directions made under the Act, for example a grant of planning permission. In such cases there is no question of the court doing other than set aside the particular order or decision concerned, thereby leaving it to the planning authority to decide on the appropriate administrative steps once the matter is again before it for decision. For example, if a planning permission granted after an inquiry is quashed, there may be a remit for the reopening of the inquiry, or part of it. On the other hand it is common for a planning authority simply to reach a new decision taking into account the reasons for the court's decision. If a planning permission is quashed because of a failure to take account of a material consideration or because of an absence of sufficient reasoning, the authority may see no need to do more than avoid the errors highlighted by the court, perhaps reaching the same decision as before but free from the procedural or legal reasons which vitiated the earlier grant. There may be cases where ordinary concepts of fairness and proper administration require the planning authority to order some further procedure before reaching a new decision; however this is a matter for the discretion and decision of the planning authority, to be reached having regard to all the relevant circumstances. If all this is well understood in respect of decisions to quash under section 239, the question is, why should matters be different in respect of section 238?
[24] The
submission was that as a matter of construction of section 238 the court
can only quash the entire process, at least in respect of the part under
challenge, meaning that in respect of the housing allocations in the Edinburgh
urban fringe the whole statutory
procedure would have to start again from scratch. On the face of it this is a
surprising proposition. However it was based upon the decision of
Hidden J in South Northamptonshire District
Council v
Charles
Church Developments Limited and Another [2000] PLCR 46, which was followed
in two subsequent English cases. It is therefore necessary to consider that
decision.
[25] Hidden J's decision was complicated by the fact that he was asked to clarify an earlier decision of a different judge to quash part of a plan. This involved interpretation of parts of the earlier judge's decision, some of which Hidden J thought required reconsideration of earlier steps in the procedure, though of course the first judge's mind was not directed to the specific issue before Hidden J. To my mind the first judge's remarks are equally consistent with the alternative approach which I have outlined. Hidden J accepted a submission that with regard to the equivalent English statutory provisions the reference to "the plan" included the draft plan, and thus quashing "the plan" required the whole process to begin again. With respect, I do not find that reasoning compelling, having regard to the other factors in favour of the traditional approach.
[26] Hidden J's decision is buttressed by reference to a submission that starting again is the "only common point applicable to all cases of quashing". Reference is made to cases where logic required starting again at some point along the procedural history of the case, and the assumption is made that this means that the court must require recommencement at the beginning. This ignores the alternative possibility that the court can quash the final step and leave what follows to the discretion of the authority, to be exercised in accordance with the circumstances of the case. In particular the authority can consider any representations from the parties and then decide whether it is necessary to start again from the beginning or from some later stage in procedure, including simply a fresh reconsideration of the inquiry report. In other words the authority can rewind to the logical position. Suppose the problem was an arithmetical or clerical error in the final decision, or some other purely technical mistake at a late stage which could easily be rectified? It would make no sense to require the whole procedure to start again from scratch. For myself I would require clear wording in the Act before I was driven to the conclusion that this was Parliament's intention.
[27] Mr Martin Q.C. presented a submission that, under reference to the terms of section 237(1) of the Act, a distinction can be drawn between the references to questioning the validity of an order or a decision on the one hand, and on the other hand quashing a local plan. It was suggested that the former are events, whereas a plan is a process. I do not find this argument persuasive. In my view the plan is the outcome of a process, not the process itself. I base this conclusion on a straightforward construction of the language used in the Act.
[28] In the present case there is no objection to anything that happened prior to 1 October 2009 when the relevant committee reached its decision, thus it would be odd if the court was required to set aside all of the earlier procedure in respect of housing allocations and require a re-run in front of the reporters, with all the delay and additional expense which that would involve to a large number of parties. In any event, in what sense can the court quash those earlier parts of the procedure? They are merely preparatory steps leading up to the plan itself. The court can quash a decision, or an order, or a plan, or part of a plan, but not an inquiry, nor a process of consultation and objection. The challenge here was directed only to the respondents' consideration of the reporters' recommendations and to the reasoning in support of the terms of the adopted plan, thus it would make sense for the court to set aside only the relevant part of the plan leaving it to the authority to decide how the matter can be resolved thereafter in procedural and administrative terms. I can see nothing in the Act which requires or even suggests that the court can only order the whole process to start again. On the contrary, on a proper construction of the relevant statutory provisions, my view is that the court can do no more than quash the plan, or the relevant part of it, in the sense explained above. That is what I shall do.
Subsidiary
submissions
[29] The appellants presented a subsidiary argument based upon an alleged
failure to take account of a material consideration, namely a June 2009 green
belt landscape capacity study carried out in connection with preparation of the
first strategic development plan. At a late stage this document was forwarded
by the appellants to the respondents' planning officer. He rejected a request
that it be taken into account on the basis that it had no relevance to the
decision upon the local plan. In the result this issue does not require to be
decided, but if it had I would have found that, in the whole context of the
report and the relevant issues before the committee, it is most unlikely that
this document would have made any difference to the outcome. In any event it
would seem disproportionate to quash the decision on the basis of an unapproved
and limited study which commented on one issue which had been debated before
and considered by the reporters in the course of the inquiry; and when the
appellants decided not to attend the relevant committee meeting when the point
could have been pressed. A contrast can be drawn with cases where a material
issue is wholly ignored, as opposed to setting aside a document commenting upon
an issue which was given consideration. Nonetheless, when this issue comes
before the respondents for a fresh decision, in the event that they decide to
ignore this study, it would be prudent for the committee itself to give reasons
for that decision.
[30] On
behalf of the respondents it was submitted that if the relevant part of the
plan is quashed, it would leave a gap in respect of housing allocation in the
urban fringe and that the Newcraighall land
would be in limbo ("white space").
Thus, even if the decision of the committee was flawed, the court should
exercise its discretion not to quash this part of the plan. I am not persuaded
by this argument, which would allow the current development control
applications relating to housing in the urban fringe to proceed upon the basis
of an unlawful committee decision, all to the benefit of the promoters of the
Newcraighall sites and the disadvantage of the other locations. Further, while
no doubt it will take some time before a fresh decision is reached, and even if
there is a lengthy delay, this need not halt the development control process in
respect of planning applications for housing development in the urban fringe.
In short, I am not persuaded that any detrimental consequences of the quashing
of the plan would justify an exercise of the court's discretion to refuse to
declare this part of the plan unlawful.
Decision
[31] In the event that the appeal was successful the appellants sought an
order quashing the Edinburgh
City Local Plan in accordance with section 238(2)(b) of the Town and
Country Planning (Scotland) Act 1997 in so far as it includes the allocation of 200 units of housing
within Newcraighall North (site HSG14 in the local plan as adopted) and the
allocation of 220 units of housing within Newcraighall East (site HSG15 in
the local plan as adopted). I shall pronounce an order in those terms,
reserving meantime the question of expenses.