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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Nimmo Smith
Lord Philip
Lord Eassie
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[2008] CSIH 28
XA36/06
OPINION OF THE COURT
delivered by LORD EASSIE
in
APPEAL
under section 239 of the Town and Country
Planning (Scotland) Act 1997
by
ABERDEENSHIRE COUNCIL
Appellants;
against
SCOTTISH MINISTERS
Respondents:
_______
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Act: Thomson Q.C., Burnett, Shepherd
& Wedderburn
Alt: Miss Poole, Scottish Government Legal Directorate
28 March 2008
Introductory
[1] This is an
appeal under section 239 of the Town and Country Planning (Scotland) Act
1997 ("the Act") by a local planning authority against a decision of the reporter
appointed to hear and determine an appeal to the Scottish Ministers under
section 47 of the Act by an applicant for outline planning consent which
had been refused by the present appellants.
The application refused by the appellants was made by Osprey Homes Ltd.
for outline planning permission for residential development on agricultural
land situated in the vicinity of the village of Newburgh, Aberdeenshire lying on the north
side of a road (B9000) known as School Road running westwards from Newburgh to the A90 trunk road and
Oldmeldrum. The site extends to some three hectares
and would enable the construction of approximately 50 houses. The reporter decided to uphold the appeal and
to grant the application subject to certain conditions. As respects one of those conditions
(Condition 13, on the provision of affordable housing) the appellants contend
both that it is so lacking in precision and enforceability as to be invalid and
also that it is not capable of being severed from the grant. However the principal thrust of the
appellants' grounds of appeal are independent of that subsidiary
contention.
[2] It is not in
dispute that the proposed development is contrary to the development plan. Where an application is made to a planning
authority for planning permission, section 37(2) of the Act provides
that:
"In dealing with such an application
the authority shall have regard to the provisions of the development plan, so
far as material to the application, and to any other material
considerations."
Section 25 of the Act provides as follows:
"Where, in making any determination
under the planning Acts, 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 Development Plan
[3] The "development
plan" comprises two elements, namely the relevant structure plan and any
applicable local plan (cf. section 24 of the Act). At the time of the reporter's decision the
relevant structure plan was one elaborated jointly by the appellants and
Aberdeen City Council covering the areas of both local authorities and having,
in addition to the formal title "Aberdeen & Aberdeenshire Structure Plan
2001-2016", the title "North East Scotland Together" ("NEST"). NEST was approved by Scottish Ministers on 21 December
2001 and was
published in June 2002. The applicable local
plan was the Gordon District Local Plan, which dated from 1989. However, at the time of the hearing of the
appeal by the reporter (November 2005) the process of preparing a new local plan
was well advanced and the report of an inquiry into the new "Finalised
Aberdeenshire Local Plan" ("FALP") had recently been published.
[4] The
application for planning permission was refused by the appellants on the ground
that it represented an unplanned extension of the settlement of Newburgh into the countryside, which is
protected from such development by certain specified policies set out in the development
plan. Those policies were as
follows:
(a) Policy 12 in NEST, which, subject
to certain exceptions, provides that: "In
countryside not designated as Green Belt there shall be a presumption against
house building". The exceptions are not material
in the present case. They relate
essentially to very small scale operations such as the rehabilitation or
replacement of an existing house and the like.
(b) Policy ENV2 of the Gordon District
Local Plan, which provides: "Within the area defined as East Gordon countryside
there will be a presumption against development. The only exceptions to this will be proposals
which the District Council consider to be covered by one of the categories
detailed in paragraphs (i)-(iv) below".
None of these paragraphs has any relevance in the present case.
(c) Policy HOU\4 of FALP. This policy reflects NEST Policy 12 and
is essentially directed to the exceptions to that policy.
[5] In addition
to Policy 12, other provisions of NEST were referred to by counsel for the
appellants. NEST contains in its first
chapter inter alia a statement
(page 9) of the "aims" of the structure plan which it is unnecessary to
set out at length. It is sufficient to note
that the aims are described (paragraph 1.13) as being methods by which the
two local planning authorities intend to work towards realising the plan's
"vision". In paragraph 1.15 it is stated
that the plan's "vision and strategy" are firmly based on the concept of
sustainability. Paragraph 1.17 states:
"This vision represents a radical
change in the way the North East operates.
It will not be achieved without new ways of thinking as well as acting,
some of which it will take time to adjust to."
Counsel went on to refer to what are described as the core
strategic land use objectives and locational objectives catalogued on
page 12 of NEST, particularly objectives 1 and 7 which, so far as
relevant, are in these terms:
"Core
Strategic Land Use Objectives
Objective 1 To create a long-term sustainable framework
of settlements in a hierarchy, which focuses major development on the main
settlements in the North East. The roles
of each type of settlement and area are set out in more detail in Table 1 and
the Strategic Diagram (Figure 1)
..............
Locational Objectives
Objective 7 To secure a choice of location for a viable
supply and adequate variety of land for housing (including affordable housing),
employment, services and open space, which:
·
relates
development to each settlement's ability to accommodate it without loss of
amenity or identity;
·
ensures
that the particular use or uses proposed for each site will maximise the
overall sustainability of the community;
·
gives
preference to use and re-use of sites within existing settlements;
·
............
·
relates
the density of development, when considered with adjoining land uses, to its
proximity to services and the transport network;
·
............"
[6] Counsel also
referred to some of the text respecting these objectives. Paragraphs 1.33 to 1.35 state:
"1.33 The
most critical resources affected directly by the planning system are land,
energy and fuel, our use of which dictates our effect on the rest of the community,
economy and environment. The main thrust
of the strategy is therefore to concentrate on reducing waste in these
resources and ensuring that, where they are used, they are used to their
maximum potential. Thus the core
objectives are to focus future development on existing settlements, and to
reduce both the need to travel and the environmental cost of travelling.
1.34 This
leads in turn to the concept of 'connecting communities'. By this, we mean the integration of
employment, housing and services in a hierarchy of settlements ranging in scale
from Aberdeen down to the smallest settlement which has at least some
services, in such a way that viable services are available in the most
effective way to all.
1.35 It
also means that the settlement hierarchy is defined by location in the
development corridors which are related to the long-term planned expansion of an
integrated transport network. In essence
the resulting strategy focuses future development on the main settlements, although
other proposals that support local communities will also be accommodated by
opportunities identified in local plans."
Reference was also made to paragraph 1.44 which explains the
term "key centres". It reads:
"1.44 All
the main Aberdeenshire settlements are located at important positions on the
transport network. Those in prime
positions on the network have been identified as key centres. Their main role is as centres of the rural
industries and in providing sites and premises for new business to grow, but they
will also be promoted to provide a focus for many of the same activities as in Aberdeen ...."
Attention was then drawn to paragraphs 1.47 and 1.48
which read as follows:
"1.47 However,
the corollary to the need to focus development on the main settlements is that
housing should not generally be dispersed across the remaining
countryside. This is to ensure not only
that housing is located close to where most jobs and services are (to limit the
need for travel, to help maintain the viability of the remaining rural services,
and to minimise unnecessary costs in providing public services), but also to
maintain as much as possible of the natural resources of the countryside.
1.48 The
intention is to give a general welcome to economic initiatives in the countryside,
in particular providing opportunities for small-scale and start-up businesses,
but to steer new small-scale housing development to those villages that retain
viable services, or to where housing is associated specifically with places of
work ..."
Among the other passages to which our attention was brought
is paragraph 1.59 which reads:
"1.59 To
create a more sustainable way of life, there will be a stronger emphasis in
future on regenerating existing sites within the urban fabric, rather than bringing
forward peripheral greenfield or even rural brownfield sites, which are often
less accessible by public transport and less well connected with necessary
services. This will be particularly
important in Aberdeen where most of the appropriate brownfield
opportunities exist. Preferred sites
will cater for a mixture of uses, with opportunities for the creation of urban
villages within the existing built-up area being encouraged."
[7] Reflecting
that general approach, NEST then adopts in table 1 on page 16 what may be
described as a hierarchical classification of area roles and functions
proceeding from the city areas of Aberdeen at one end of the spectrum to remote
upland and coastal areas at the other. Newburgh does not come within the classification
of a "key centre", nor the wider category of "main service centres" embracing
key centres. It is within the category
of "rural service centres" which, so far as housing is concerned, are
identified as having "opportunities for small-scale housing".
[8] Housing is
dealt with in greater detail in Chapter 3 of NEST, which addresses inter alia housing land supply. For the purposes of housing land supply, NEST
divides the overall area which it covers it into two housing market
areas. One is the "Aberdeen Housing
Market Area" ("AHMA"), which embraces the whole of the area of Aberdeen City
Council and parts of the area of the appellants in relative proximity to the
city. The other market area is the
"Rural Housing Market Area" ("RHMA"), which consists essentially of those parts
of the area of the appellants which are to the north and west of AHMA. Newburgh lies within AHMA.
[9] Policy 7
states:
"The Councils shall seek, through the
development plan, to maintain at all times a minimum five year supply of
effective housing land or land that is capable of becoming effective."
There then follows Table 2 which sets out housing
requirements for the quinquennia from January 2000 to December 2015 for the
respective housing market areas.
Table 3 sets out increased requirements to take account of
"headroom flexibility". Having set out
those requirements NEST then addresses the means whereby those needs may be met
in the context of the development plan.
Counsel for the appellants drew attention to the following passage in
paragraph 3.13:
"For the period 2006-2010, structure plan
housing policies indicate where any identified shortfall between the forecast
requirement and the existing effective supply should be addressed in accordance
with the development strategy. This
means that allocations will focus development on brownfield sites in Aberdeen, together with development in the
edge of city communities and main service centres with good accessibility by a
number of transport modes. Small scale
development (usually under 15 houses) will be spread among rural service
centres to support services, local housing needs and economic development. ..."
[10] Policy 8
then deals with allocations for the quinquennium to December 2005 and is
reflective of the general principle that the identification of particular sites
for new housing should be done in the context of the local plans. The following quinquennium - which is the one
more pertinent to the present case - is addressed at Table 4 and in
Policy 9 which reads:
"Local plans shall safeguard the
following indicative housing land allocations.
These will meet the expected need for permissions to be granted in the
period January 2006 to December 2010.
These allocations are subject to review when the structure plan is
reviewed either in five years time, or earlier should monitoring show this
to be necessary. Planning permission
will not be granted for development of these sites until that review is
complete."
There then follow certain allocations within the AHMA which
it is unnecessary to detail other than to say that Newburgh comes within the
total allocation of 500 houses for "other Aberdeenshire settlements" to
which by asterisk there is footnoted:
"Development which local plans
identify in other settlements should be small scale and in support of economic
development or local services."
[11] It may be
noted at this stage that Policy 9 thus envisaged a review of the local plan
allocations following a review of the structure plan itself and placed a bar on
the actual grant of planning permission for those sites until that review was
complete. But, for reasons into which it
is not necessary to go, the envisaged structure plan review did not take
place. In order to deal with this
problem the appellants issued, with the approval of the Scottish Executive,
"supplementary planning guidance", the technical purpose of which was to enable
the grant of planning permission for housing sites identified in the local plans
notwithstanding the absence of the review of the structure plan envisaged in
Policy 9.
[12] We turn now to
the local plan element of the development plan.
Policy ENV2 has already been quoted and the proposals before the reporter
clearly did not come within any of the exceptions referred to in that policy. Counsel for the appellants also referred to
Policy ENV4 which states: "In
support of the national planning guidelines, prime agricultural land
(classes 1, 2 and 3.1) will be protected.
The only exception will be where development in conformity with the structure
plan and local plan is proposed and there is no suitable alternative land
available."
[13] Although not
technically part of the statutory development plan it was recognised by both
parties and the reporter that FALP was a material consideration, to which
considerable weight had to be given. At
the time of the public local inquiry FALP had been the subject of an inquiry
and the report of the reporters to that inquiry was available. As respects Newburgh, particular objections to the plan are
discussed as "Issue 123". At
paragraph 123.10 the reporters advert to an objection to the plan from a
Mr Benton, who sought to have some six hectares of land to the west
of the village and north of the B9000 allocated for housing in, put shortly, a
phased development of two halves of the site. The first phase covered the site with which
these proceedings are concerned. At
paragraphs 123.37 to 123.39 the FALP reporters rejected the proposal that
the site, which, as already indicated, would embrace the current site, be
allocated for housing on what might be shortly described as strategic and site
specific grounds. FALP also identifies
within the settlement of Newburgh three sites suitable for housing and capable of
accommodating a total of 25 houses together with a further site suitable
for mixed use including 15 units of housing, that is to say a total of
40 houses.
Planning History
[14] The proposal
advanced, by way of objection to FALP, to have an area of land embracing the
site with which these proceedings are concerned allocated for housing, was
preceded by an earlier application for planning consent in outline refused
initially by the local planning authority and subsequently refused by a reporter
on appeal to the Scottish Ministers by a decision letter of 20 April
2004.
The Reporter's Decision
[15] Following an
introduction and the summary narration of the cases for the parties to the
appeal before him the reporter expresses his conclusions at paragraph 53
and following of the decision letter. In
the opening paragraph 53 he says:
"Section 25 of the Act requires
the determination in this case to be made in accordance with the provisions of
the development plan unless material considerations indicate otherwise. The development plan currently constitutes
the Aberdeen and Aberdeenshire Structure Plan
2001-2016 (NEST) and the Gordon District Local Plan 1989, while the finalised
Aberdeenshire Local Plan is an important material consideration. A further important material consideration,
which has been put forward as a major justification for approval, is the
alleged major shortfall in the supply of housing land in the Aberdeenshire
portion of the AHMA."
Under a sub-heading "Development plan compliance" the reporter
then refers to a number of core strategic land use and locational objectives in
the structure plan and some of the related text. In relation to housing land supply, the reporter,
in paragraph 54, states:
"Due to the higher than expected take
up of housing land in the AHMA in recent years (resulting in the construction
of about 5000 more new houses than anticipated, for the period 1999-2005),
the decision not to review the structure plan and the proposed replacement of
the structure plan by a strategic development plan for the Aberdeen city/region
that will take some years to emerge and deliver additional sites (as it
requires the completion of new legislation, the preparation and approval of the
plan, and the revision of local development plans to reflect the new strategy),
it is evident that the supply of effective housing land provided through the
development plan in the Aberdeenshire portion of the AHMA has not at all times
maintained a 5 year supply; and that even if it does so at present, it
will fail to do so well before the new development plan arrangements can
deliver further sites through the development plan mechanism. Confirmation of this position is provided by
the Council's adoption of supplementary planning guidance to seek to provide
additional housing sites without the formal review process required by
policy 9 of the structure plan. The
proposal at appeal cannot be described as small scale, in the context of the
size of the village and the intentions of the structure plan strategy."
Thereafter in paragraph 56 the reporter states:
"Drawing these various development
plan matters together, it is evident that the proposal would not comply with
the structure plan strategy, as it would not be located in one of the major
centres, and cannot be regarded as a small scale development. In addition, it would occupy greenfield agricultural land situated in the
countryside. However it would give
support to existing village services in Newburgh (notably the primary school and
shops) and would make use of capacity that is available in the drainage
system. It would also add to the supply
and choice of effective housing land in a situation where there is an evident
impending shortfall (in relation to structure plan policy 7). The proposal would be at variance with the
provisions of the adopted local plan.
Accordingly, as the proposal does not accord with the provisions of the
development plan in respect of some important objectives and policies, it is
necessary to consider whether other material considerations, including the
development plan objectives and policies that it would support, would justify approval. In addition, the provisions of the finalised
local plan must be taken into account as a material consideration, with the
potential to add to the arguments both against and for the proposed
development. The plan is nearing the end
of a long process, and has been subject to considerable public scrutiny, so
that its emerging provisions should carry considerable weight."
[16] The reporter thereafter,
in paragraphs 57 and 58, makes short reference to FALP, noting that the
proposal would be contrary to the policies espoused in it. Under the sub-heading "Development plan
objectives: further considerations" the reporter
then discusses further the land use and locational objectives to which he made
earlier reference. He then proceeds to a
"synthesis" as follows:
"69. On
the basis of these further more detailed conclusions, together with the
preceding assessment, I am satisfied that the proposed development would
provide a useful addition to the supply of effective housing land, where there
is likely to be a significant shortfall, in a location that is sustainable in
terms of supporting the existing community in Newburgh and through convenient
access to local services on foot and further afield by bus. I am also satisfied that, with careful design
and landscape treatment, there would be little, if any, adverse impact on the
identity and amenity of the village, and some scope for enhancement of the
western approach.
70. In
contrast, if the application were to be refused, it would have to be on the
basis that the development plan can be relied on to deliver a constant
5 years supply of effective housing land from now until the new strategic
plan has enabled the provision of additional sites through the local
development plan. It would appear that
virtually all new housing in the Formartine portion of the AHMA would have to
be accommodated at Oldmeldrum, as little further development is anticipated at
the key service centre (Ellon). Thus
there is considerable uncertainty regarding both the supply and choice of new
housing locations that would be provided through the development plan for the
forthcoming period. The alternative
scenario recommended by the Council also involves uncertainty, and would itself
involve a departure from the terms of the development plan. Refusal of this application would also mean
that the primary school, shops, and other village services in Newburgh would have little additional
support, and would be at risk of further decline.
71. For
these reasons, I am satisfied that on balance, the public interest in all of
these matters and in the various objectives set out in the structure plan and
the emerging local plan, would benefit from and not be undermined by further
development at Newburgh. The appeal site
is well placed for this purpose, as it is close to both the primary school,
shops, and bus services, and has adequate space to accommodate a variety of
house types, ancillary facilities (eg SUDS and toddlers play), and peripheral
landscaping. I am also satisfied that
this favourable set of circumstances would not set an unsatisfactory precedent
for proposals elsewhere that are less well placed for pedestrian access to
local services and public transport. The
site would complement the Council's own efforts to augment the housing supply
through the supplementary guidance.
Accordingly, I conclude that these various material considerations
justify a departure from the terms of the development plan, including the use
of agricultural land for development, and outweigh the third party
objections."
[17] Following that
synthesis, concluding with his decision to depart from the provisions of the development
plan, the reporter then adverts to the issue of the provision of "affordable
housing" and to this matter, and the terms of the decision letter relevant
thereto, we shall return when considering the ground of appeal relating to the
affordable housing condition.
The Criticisms
[18] Counsel for
the appellants advanced a number of criticisms of the decision letter and the reporter's
reasoning, which we endeavour to summarise and to discuss as follows.
(i)
Determining Issues
[19] In what may be
seen in some ways as a criticism in
limine, it was submitted that the terms of the decision letter were not
adequate. In particular the reporter had
failed to identify the "determining issues" in the appeal; he had failed to
identify and resolve the facts bearing on those issues; and consequently had
failed properly to decide the determining issues.
[20] In Moray Council v Scottish Ministers [2006] SCIH 41; 2006 SC 691, to which we
were referred by both parties, the Lord Justice Clerk (Gill) stated in
paragraphs [29] and [30] of his Opinion:
"His [a reporter's] starting point
will be the development plan, considered if need be in the light of national
planning guidance. Having regard to the
development plan framework and the nature of the proposal, he must decide what
are the determining issues. With those
issues in mind, he must make his findings in fact on the nature of the proposal
and its probable effects. It is for him
to decide what lines of evidence are material to the determining issues and
what conclusions are to be drawn from them.
[30] The
reporter must then decide in the light of his findings how he resolves the
determining issues. This involves the
exercise of his planning expertise and judgment. In his decision letter he must set out the
process of reasoning by which he reaches his decision; but that does not
require an elaborate philosophical exercise.
Nor does it require a consideration of every issue raised by the parties. The reporter is entitled to confine himself
to the determining issues. So long as
his reasons are intelligible and adequate, he is entitled to express them
concisely. The guiding principle is that
the decision letter should leave the informed reader in no substantial doubt as
to the reporter's findings in fact and conclusions on the determining issues,
and as to the way in which he has applied sec 25 of the 1997 Act in
reaching his decision (Perth and Kinross
Council v Secretary of State for
Scotland 1999 SC 144)."
[21] In the present
case we consider that it is evident that the reporter does not expressly and in
terms set out what he regarded as being the "determining issues". Counsel for the Scottish Ministers sought to
meet this criticism by pointing to paragraph [28] of the Opinion of the
Lord Justice Clerk in Moray Council v
Scottish Ministers in which he
observed that subjecting a decision letter to detailed textual analysis and
criticism may involve the application of a needlessly exacting standard, and
submitted that formal identification of the determining issues was not necessary.
[22] We do not read
the Lord Justice Clerk as saying that cataloguing the determining issues as
such is a formal requirement. What is
necessary however for a satisfactorily reasoned decision is that it should be
clear to the informed reader that the decision taker has gone through the
process of identifying the key issues and made the appropriate findings for
their resolution. However while adopting
that - in our view, plainly appropriate, non-formalistic approach - we
nonetheless consider that there is force in this criticism advanced by counsel
for the appellants. It is in many
respects not clear that the reporter has identified the determining
issues. However, as we understood
counsel the principal thrust of this criticism of the lack of clear
identification of the determining issues was that it provided a backdrop to,
and possible explanation for, the other substantial flaws in the decision
letter for which counsel for the appellants contended.
(ii)
Housing Land Supply
[23] Counsel for
the appellants clearly recognised that notwithstanding the reporter's failure
to identify in terms the determining issues, the broad question of housing land
supply appears to have been an important element in the reporter's decision and
the question of housing land supply was a matter of major contention at the
public local inquiry. We did not
understand counsel for the Scottish Ministers to dispute this.
[24] In the course
of his summary of the case for the appellant developer before him the reporter says
as regards housing land requirements and supply that "extensive, complex and
contradictory evidence was put forward on these matters by the principal
parties". Counsel for the appellants submitted
that, having regard to the place which an alleged shortage in housing land
supply occupied in the reporter's mind, it was incumbent upon the reporter to
set out in a coherent form the evidence on these matters before him; the
particular conflicts in that evidence which he required to resolve; and the
manner in which he did so by indicating which evidence he accepted or rejected;
and consequently the reasons for accepting or rejecting the evidence. However, the reporter had failed to set about
these tasks in anything approaching an adequate manner.
[25] For her part
counsel for the Scottish Ministers appeared to us to be unable to present any
effective response to this criticism of the reasoning, such as it might be,
provided by the reporter. In addition to
Moray Council v Scottish Ministers she referred to what was said by Lord Brown
of Eaton-under-Heywood in his summary at paras 35 and 36 of his opinion in
South Bucks District Council &c v
Porter (No.2) [2004] UKHL 33;
[2004] 1 WLR 1953. While
recognising the need to avoid applying an over-exacting standard, we
nonetheless consider that the reporter's treatment of evidence, which he
recognises to have been extensive, complex and contradictory, is
inadequate. In so far as the reporter purports
to narrate the evidence on housing land supply, the summaries lack
coherence. More importantly there is no
attempt by the reporter to identify the particular contradictions in the
evidence which he required to resolve nor any indication of his reasons for
resolving those contradictions in one particular direction. There is no indication of his reasons for
rejecting or accepting evidence.
Accordingly, we consider that the decision is indeed flawed in respect
that the reporter has not performed the essential procedural requirement of
adjudicating on the material disputed evidence before him and providing reasons
for that adjudication. And we consider
the appellants have been prejudiced by that failure to follow that
requirement.
[26] But in so far
as the reporter goes on to discuss housing land requirements and supply issues
without having conducted the essential exercise of adjudication to which we
have referred in the preceding paragraph, further criticisms were advanced by
counsel for the appellants. The reporter
had made a number of errors which revealed a misunderstanding of the provisions
of the development plan and a failure to understand the relevant evidence. We summarise these further criticisms as
follows.
[27] First, in the
final sentence of paragraph 53 of the decision letter the reporter refers to its
being alleged that there is a "major shortfall in the supply of housing land in
the Aberdeenshire portion of the AHMA"
(emphasis added). It was, said counsel
for the appellants, an error to consider possible shortfall in the
Aberdeenshire portion of AHMA. As was
plain from PAN 38 "Housing Land", which was before the reporter, the
relevant housing market area had to be considered as a whole. And so, when in paragraph 54 of the letter
the reporter stated that it was "evident that the supply of effective housing
land provided through the development plan in the Aberdeenshire portion of AHMA
has not at all times maintained a 5 year supply ...", the reporter was
making the error of breaking up the housing market area into sub-units or
sub-areas and assuming that a 5 year supply was to be maintained in each
such sub-area. That was a misreading of
the relevant provisions of the structure plan.
Further, on a proper understanding of the structure plan policies, it
should have been apparent to the reporter, on any view, that in accordance with
the fundamental policy of NEST, housing needs in AHMA were increasingly to be
satisfied through local plan allocations to sites in the Aberdeen City area.
[28] Secondly, in
purporting to find that there was a shortage in housing land supply in the
Aberdeenshire portion of AHMA it appeared that a reason for the reporter's reaching
that view was to be found in the opening parts of the portion of
paragraph 54 of the decision letter, quoted above, in which he referred to
a higher than expected take up of housing land in the AHMA. This, submitted counsel, contained an
important logical error. The fact, if
such it be, that the take up or implementation of housing sites may have been
faster than expected in the period 1999-2005 did not produce the result that
there was a shortage of housing land in 2006.
What was relevant and material in assessing the supply of housing land
was the relevant housing land audit as to what was "effective" since, for
example, constrained sites may become unconstrained and therefore enter into
the figures. The local planning
authority had placed before the reporter the 2005 housing land audit for
effective land supply in AHMA which demonstrated that the effective housing
land supply met the NEST targets (c.f. decision letter,
paragraph 25). The reporter did not
explain his approach to that evidence or give any reason why he set aside the
housing land audit figures. Instead he
adopted an approach which involved a non sequitur.
[29] The third in
our summary of the further criticisms advanced by counsel for the appellants is
a submission that the reporter misunderstood the procedural and legal
significance of the supplementary planning guidance to which we briefly
referred in paragraph [8] above. As
had been fully explained in the evidence for the local planning authority (cf.
paragraph 27), the supplementary planning guidance was issued because of
the terms of NEST Policy 9 which had assumed a review of the structure
plan and imposed a moratorium on the grant of planning permission for housing
sites identified in the local plans during the period 2006-2010 until
completion of the review. The nature and
purpose of the supplementary planning guidance was evident from
production 22 (before the reporter) and was to enable the grant of
planning permission for sites identified in FALP notwithstanding the absence of
a review. The reporter however took the
issuing of the supplementary planning guidance as confirmation that there was,
and would continue to be, a shortfall in the housing land supply by reference
to the structure plan figures. He
evidently failed to appreciate not only that the 2005 housing land audit showed
an adequate supply but also that the supplementary planning guidance would
bring into the 2006 housing land audit all the FALP allocations for 2006-2010,
which had hitherto been excluded.
[30] Counsel for
the appellants further pointed to an error in the reporter's summary of the appellant
developer's case in the 8th bullet point in paragraph 21
of the decision letter in which the reporter says:
"The report on objections to the new
local plan found that there was a housing land shortfall in the AHMA of some
3000-3500 units. The Reporters
recommended the release of some extra housing sites, but most of these have not
been accepted by the Council."
The report in question was a much earlier report into a
superseded draft local plan namely the "Consolidated Aberdeenshire Local Plan"
and not the new, almost finalised, local plan FALP which contained no such
finding but reached a very different conclusion (cf. the FALP reporters' report
on objections, paragraphs 20.18 ff).
[31] For these,
among other reasons, the reporter's approach, which appears to proceed on the
basis of a finding of a shortfall in housing land supply in the Aberdeenshire
portion of AHMA, was fundamentally flawed.
[32] Counsel for
the Scottish Ministers sought to address these criticisms - a task in which she
was in evident difficulty, given the reporter's failure properly to address the
evidence on housing land supply to which we have already referred. But despite her endeavours we are not
persuaded that the criticisms are unsound.
Against the background of the reporter's failure to address the evidence
properly, it does appear to us that there is merit in the criticisms advanced
by the appellants which we have summarised above. As respects the first of those criticisms, it
appears to us that the reporter has proceeded, or at least may have proceeded,
on the basis of an alleged shortfall in housing land supply in the Aberdeenshire
portion of AHMA. In our view, the
endeavour to identify local shortages within a housing market area not only
runs contrary to the exercise described in PAN 38, but also involves an error
in the interpretation of the provisions of NEST. The structure plan policy envisages the
provision of a certain number of units by way of housing land supply in the
whole of the housing market area. It
does not require the existence of proportionate provisions in sub-divisions of
that market area. Indeed, as counsel for
the appellants pointed out, the whole thrust of the policy is to direct, over
time, the provision of housing towards the City of Aberdeen and the communities on the periphery
of the city. As respects the second
criticism, we agree that, logically, the fact (if such it be) that there was a
faster take up of sites than expected in the period 1999-2005 does not mean in
itself that there is a shortfall. As
counsel for the appellants pointed out, there is the other side of the balance
sheet, namely the sites which have become available. The balance is reflected in the housing land
audit, to which the reporter makes no reference although it obviously formed an
important part of the case for the local planning authority. We also accept that the reporter has
apparently misconstrued the significance of the supplementary planning
guidance. Its plain purpose was to
overcome the moratorium imposed by Policy 9 of NEST and it is not a
legitimate inference that by adopting that supplementary planning guidance
there was a housing land shortage which would not be addressed by the release
of the local plan allocations in accordance with that supplementary
guidance. Accordingly the reporter appears
to have compounded his previous error in having no regard to the 2005 housing
land audit by ignoring the release, by virtue of the supplementary planning
guidance, of the FALP allocations into the 2006 housing land audit. In this regard, counsel for the Scottish Ministers
argued that the supplementary planning guidance would not address housing land
shortage, were the provisions of the structure plan to be outdated and
insufficient because of the absence of the review contemplated by NEST. That might possibly be so, but that is not
the way in which the reporter, who has made no findings as to what such a
review might have produced, has expressed himself.
[33] In these
circumstances we consider that in so far as the reporter appears to find a
shortfall in the supply of housing land in the Aberdeenshire portion of the AHMA
and to base his decision on that finding, as an apparent material consideration
justifying his departure from the provisions of the development plan, that
finding, and that basis, are flawed. The
finding is flawed in the first place by its not being accompanied by a
sufficient analysis of the "extensive, complex and contradictory evidence"
before the reporter. But secondly, in so
far as the reporter does attempt to explain that finding, his approach has the
logical errors identified by counsel for the appellants, those errors being
perhaps reflective of his having failed to take account of the material
elements which required to be considered; having failed to direct himself to
the determining issues to be decided in respect of the housing land supply
issues; and having failed to set about any coherent analysis of the evidence.
[34] By way of a
further criticism, counsel for the appellant submitted that even if it were the
case there was a shortfall in the supply of housing land in AHMA, such a fact
would not in itself amount to a good reason for granting this application for planning permission. It would then be necessary to place the
application in the context of the aims and policies of the development plan -
with their stress on sustainability and the need to locate housing in proximity
to employment. It did not follow that
the alleged existence of a shortfall meant that those aims, and the policy of
giving greater concentration to the provision of housing in AHMA in locations
closer to the city, should be set aside.
The scheme of NEST would plainly direct a housing development of this
size to a larger centre.
[35] We note this
criticism or observation, with the sense of which we would not quarrel, but it
is perhaps easier to treat it as a matter arising as respects the issue whether
the reporter identified other material conditions which would entitle him in
the exercise of his planning judgement, to grant planning consent
notwithstanding the proposed development's being contrary to the development plan. To this matter we now turn.
"Other material considerations"
[36] In essence,
and setting aside the housing land issue, the reporter identified certain local
objectives for which some support could be identified in NEST and which we
think can be summarised by saying that he considered that an additional
50 households in the vicinity of Newburgh would sustain some community
facilities, including the shops, in Newburgh and take advantage of the
sustainable urban drainage system ("SUDS").
So, although the proposed development was plainly contrary to the
specifically declared policies in the development plan, for present purposes
effectively NEST, within other discussion in NEST one could find provisions or desiderata which, in isolation, might be
seen as affording argument in support of the proposed development. The reporter appears to have selected these
as "material considerations" also justifying his departure from the provisions
of the development plan.
[37] Counsel for
the appellants submitted that this was not a legitimate approach to the
provisions of section 25 of the Act.
Properly construed, the section meant that the "material considerations"
justifying departure from the development plan had to be considerations
external to the factors considered and evaluated in the development plan. Put colloquially, and in summary, "cherry
picking" amongst those factors was not a proper exercise by the decision
taker. For her part, counsel for the
Scottish Ministers submitted that in deciding whether "other material
considerations" justified a departure from the development plan, it could not
be said that the decision taker was prohibited from reviewing the criteria or
considerations leading to the policy in the development plan. Consideration of any application for planning
consent would no doubt involve a consideration of some of the matters referred
to in the development plan. An overlap
was almost inevitable. And so one could
not usefully draw any distinction between material considerations external to
the development plan and those matters discussed within it.
[38] We were of
course referred to the discussion of the legislative predecessor of section 25
of the Act to be found in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33. In his speech, Lord Hope of Craighead
noted that the purpose of the provision was "to enhance the status ... of the development
plan". He went on to say (page 36):
"It requires to be emphasised,
however, that the matter is nevertheless still one of judgment, and that this
judgment is to be exercised by the decision taker. The development plan does not, even with the
benefit of [section 25], have absolute authority. The planning authority is not obliged, to adopt
Lord Guest's words in Simpson v Edinburgh Corporation 1960 SC 313 at
p. 318 'slavishly to adhere to' it.
It is at liberty to depart from the development plan if material
considerations indicate otherwise. No
doubt the enhanced status of the development plan will ensure that in most
cases decisions about the control of development will be taken in accordance
with what it has laid down. But some of its provisions may become outdated as
national policies change, or circumstances may have occurred which show that
they are no longer relevant. In such a
case the decision where the balance lies between its provisions on the one hand
and other material considerations on the other which favour the development, or
which may provide more up to date guidance as to the tests which must be satisfied,
will continue, as before, to be a matter for the planning authority."
In his speech, at page 43G, Lord Clyde noted that
if it were to be thought useful to talk of presumptions, it could then be said
that there is now a presumption that the development plan is to govern the
decision on an application for planning permission. He went on to say (p. 44A), as respects
an instance in which it would be appropriate to depart from the development plan,
that:
"One example of such a case may be
where a particular policy in the plan can be seen to be outdated and superseded
by more recent guidance. Thus the
priority given to the development plan is not a mere mechanical preference for
it. There remains a valuable element of
flexibility. If there are material
considerations indicating that it should not be followed then a decision
contrary to its provisions can properly be given."
Lord Clyde then proceeded to discuss the practical
application of the provision which has now become section 25 of the
Act. Put shortly, the first step was to
consider whether the application, in light of the whole provisions of the development
plan including those which might support it and those to which it was contrary,
was or was not in accordance with it.
(In the present case, there is of course no dispute that the present
application is on any interpretation contrary to the provisions of the development
plan.) Lord Clyde continued (p. 44H)
as respects the task of the decision taker:
"He will also have to identify all the
other material considerations which are relevant to the application and to
which he should have regard. He will
then have to note which of them support the application or which of them do not
and he will have to assess the weight to be given to all of these
considerations. He will have to decide
whether there are considerations of such weight as to indicate that the development
plan should not be accorded the priority which the statute has given it. And having weighed these considerations and
determined these matters he will require to form his opinion on the disposal of
the application."
But later in his speech (p. 45E-F) Lord Clyde recognised
that such a two stage decision process was not always to be required. He said:
"In many cases it would be perfectly
proper for the decision-maker to assemble all the relevant material including
the provisions of the development plan and proceed at once to the process of
assessment, paying of course all due regard to the priority of the latter, but
reaching his decision after a general study of all the material before
him. The precise procedure followed by
any decision-maker is so much a matter of personal preference or inclination in
light of the nature and detail of the particular case that neither universal
prescription nor even general guidance are useful or appropriate."
As respects this discussion, two things may be
noted. The first, as pointed out by
counsel for the appellants in this case, is that as respects the proper
approach to the predecessor of section 25 of the Act there was no
contradictor. The second is that as
respects other material considerations which might overrule the development plan,
the only examples given by their Lordships were the advent of new planning
policy guidance which might be taken as superseding the thinking behind a development
plan of some antiquity. For what it is
worth, it is also to be noted that the ministerial guidance in SPP1 "The
Planning System", in discussing section 25 of the Act, gives as an example of
material considerations which might overrule the provisions of the development plan,
the development plan's having been superseded by new thinking. Thus, paragraph 48 includes this
statement:
"However, other considerations such
as more recent expressions of policy and planning guidance may outweigh the
policies of the plan, either in favour of, or against, the proposed
development. Likewise, similar
circumstances may apply where plans are out of date and less relevant to charge
circumstances. The critical link between
up-to-date and relevant plans and sound development control decisions cannot be
over-emphasised."
[39] In our view,
the formulation adopted in section 25 of the Act (and its predecessor) may
present some difficulties of application.
Various descriptions have been employed as respects its intention, such
as "enhancement of status" or the giving of a "presumption" to the provisions
of the development plan. But in our view
it is plain that the fact of a proposal being contrary to the policies of the development
plan is a hurdle, of importance, which must be overcome by reliance on a
material, contra-indicating consideration.
Where that consideration is something subsequent to the elaboration of
the development plan some years before, such as later planning guidance, one
can readily see that such an external consideration can be a material
consideration of the kind envisaged in section 25 of the Act. Only such material considerations appear to
have been contemplated by the House of Lords in City of Edinburgh Council v Scottish
Ministers. In the present case, the
argument advanced by counsel for the Scottish Ministers is that,
notwithstanding the in casu recent or
contemporaneous nature of the development plan, a decision taker is nonetheless
entitled to explore within the matters discussed in the development plan such
of those matters as may support the proposed development while yet setting
aside other contrary matters adverse to it.
[40] Having
considered all that was said in the House of Lords and the submissions advanced
to us by counsel for the parties we have to say that, while we do not think
that a material consideration justifying departure from the development plan
has necessarily to take the form of some later planning guidance, we nonetheless
think that there is much force in all that has been said in the argument for
the appellants. It appears to us that a
material consideration such as to override the presumption, or enhanced status,
given to the development plan by section 25 of the Act must normally be
external to the factors included in the overall ponderation of matters in the
elaboration of the development plan policy.
In essence, were the decision taker entitled to effect a personal
selection of a factor, or some factors, in that overall ponderation while
ignoring others and treat that selection as the basis for a "material
consideration" which elided the responsibility placed upon him by section 25 of
the Act, the provisions of section 25 would be much weakened, if not emasculated,
and would be in effect little more than a mere statutory exhortation.
[41] In the present
case the reporter, under reference to paragraphs 1.47 and 1.48 of NEST,
singles out the support which the additional housing would give to the shops
and other community facilities in Newburgh as being in accord with the desire
to maintain the viability of rural service centres. But beyond noting the existence of a bus
service to Ellon and thence to Aberdeen, no attention is given to the
fundamental policies in the NEST element of the development plan (which is not
of any antiquity) of the hierarchy of settlements; the need to relate housing
to the local availability of employment; the need to avoid travel to
employment; the shifting of housing in AHMA to the City and edge of city communities;
and the general underlying policy of "sustainability". As it was cogently put by counsel for the
appellants, while the reporter may have made "the right noises" about section
25, the reality is that he has applied his own personal view of the application
and has not identified any material considerations which would properly allow
for departure from the development plan.
Irrationality
[42] Under this
sub-heading we mention two criticisms additional to those already summarised,
which were said by counsel for the appellants to indicate a lack of logic or
acceptable reasoning on the part of the reporter.
(a) Visual Considerations:
At both the previous planning appeal and at the FALP inquiry the
respective reporters (three in total) rejected the proposal for housing on this
site on aesthetic or visual grounds. The
present reporter acknowledged that fact but at paragraph 64 in fine of his decision letter
says:
"I am aware that two previous
Reporters have concluded that development of the appeal site for housing would
be undesirable on visual grounds, but both of them were assessing the merits of
the site in the context of the strategic limitations on new housing in Newburgh imposed by the structure and local
plans."
In agreement with counsel for the appellants, we are unable
to see how that context is in any material respect different from the context
in which the present reporter was required to operate.
(b) In
paragraph 70 of the decision letter the reporter states:
"In contrast, if the application were
to be refused, it would have to be on the basis that the development plan can
be relied on to deliver a constant 5 years supply of effective housing
land from now until the new strategic plan has enabled the provision of
additional sites through the local development plan."
It was submitted that this sentence displayed a perversity of
reason and was plainly wrong. It
proceeded on the assumption that the only basis for refusing the application
could be that the development plan could be relied upon to produce a constant
supply of housing land. However, esto (which was disputed) there were
such a failure it did not follow that this application had to be granted. Further if, as was noted in the succeeding
sentence, new houses in the Formartine area would go to Ellon and Oldmeldrum,
that was just what the development plan envisaged. We consider that this criticism is also well
founded. The important introductory
sentence to paragraph 70 displays a non
sequitur. It simply cannot follow
that if the development plan could not be relied on for delivery of a 5 year
effective housing land supply, the present application must be granted.
[43] For all the
foregoing reasons we consider that the reporter has misdirected himself to an
extent which renders it necessary to quash the decision.
Condition 13
[44] Additionally
there remains the issue of the validity of Condition 13 in the conditions which
the reporter attached to his grant of planning consent. It is in these terms:
"25% of the total number of
residential units provided under this outline planning permission shall be for
affordable housing, or such lesser proportion as may be agreed in writing by
the Planning Authority, or such higher proportion as may be agreed in writing
by the developer. Implementation of the
affordable housing component of the development shall be guided by
section 5 of appendix 7 of the Finalised Aberdeenshire Local
Plan."
[45] An initial
point concerns the reference in the condition to section 5 of Appendix 7
of the "Finalised Aberdeenshire Local Plan".
While at one stage in the elaboration of FALP affordable housing was
dealt with in section 5 of Appendix 7, in the version modified in light of the FALP
reporters' recommendations the relevant section became section 4 of
Appendix 7. This, it was said,
illustrated the undesirability of making reference in a planning condition to
an evolving document.
[46] The
substantive argument for the appellants was however that the condition was on any
view unenforceable. There were different
means by which affordable housing could be provided (cf. SPP3 "Planning for
Housing" paragraph 74ff; and PAN 74, "Affordable Housing"
paragraph 38ff) and it was therefore necessary to identify the particular
method to be employed in the provision of affordable housing. Similarly, the nature and location of the
affordable housing within the development was a matter which required to be
addressed. The appellants' preference
had been for agreement on the type, location and method of provision of
affordable housing to be reached by an agreement under section 75 of the
Act, a course to which the developer was not averse. (That was the appellants' normal approach -
recognised in PAN 74 as an example of best practice.) The condition lacked any compulsitor to produce agreement. Agreement on the provision of affordable
housing had not been made a reserved matter, nor was it subject to any other
compulsitor, such as was to be found in, for example, Condition 11 which
made commencement of the development conditional upon prior agreement of the
provision on proposed public art. So if,
for example, the developer built and sold three-quarters of the site at open
market prices and left the remaining one quarter vacant, the provision of
social housing could not yet be procured.
The planning enforcement mechanisms did not work effectively for
Condition 13 as it had been framed. In
the example postulated, a completion notice under section 61 would simply
remove the consent; an enforcement notice under section 127 of the Act
would encounter the problem that the condition lacked specification and was
uncertain and could raise no obligation to convey any land to a registered
social landlord. The same difficulty
attended a breach of conditions notice under section 135. Moreover the remedy under section 135 was of
no value in the case of affordable housing stock.
[47] For her part,
counsel for the Scottish Ministers disputed the contention that the condition
lacked precision and was unenforceable.
Possible ambiguity in a condition did not render a condition void (Caledonian Terminal Investments Limited
v Edinburgh Corporation 1970
SC 271). The condition had to be
meaningless. However the expression
"affordable housing" was not meaningless.
Counsel referred in particular to Wychavon
District Council v Westbury Homes
(Holdings) Limited [2001] PLCR 13 in which His Honour Judge Boggis
Q.C. said at paragraph 23 of the expression "low cost affordable housing" -
"I do not accept the submission that
this phrase is meaningless. It is a well-known
term used in planning. It means housing
in the area of the relevant planning authority which is available to those who
cannot afford to rent or buy what is available in the open market. How the requirement will be met depends on
individual circumstances ..."
Accordingly it was submitted that the enforcement procedures
under the Act could be used. And that
the condition was not void because the terms could not be said to be
meaningless.
[48] We have come
to the conclusion that also on this branch of the case the argument for the
appellants is to be preferred. Apart
from the confusion as to which version of FALP the condition refers, we
consider that counsel for the appellants was correct in describing the
condition as framed as being "aspirational".
The condition does not specify the type or form of provision of the
affordable housing, nor its location, and it is clear both that the method by
which the continued availability of social housing is to be secured and the
form and location of such housing within the development remained to be
settled. But, as framed, there is no
compulsitor to achieving that settlement.
In fairness we note that there is a passage in paragraph 75 of the
decision letter which strongly suggests that the reporter may have seen the
fixing of arrangements for the provision of affordable housing as part of the
reserved matters. He says:
"The location and layout of the
affordable housing should be worked out as part of the master plan for the site
and for subsequent approval of details. The land should be set aside for development
by a Registered Social Landlord (Housing Association), and the design and
funding details taken forward in accordance with the guidance set out in appendix 7
of the finalised local plan." (emphasis added).
We also note that in paragraph 81 the reporter appears
to envisage the involvement of the social housing landlord in the working out
of the detail of the reserved matters.
However, while it may well have been the reporter's intention that the
necessary agreement on the nature and method of provision of the affordable
housing should be dealt with as a reserved matter, it appears to us that, as
the conditions have been structured and drafted, that intention is not realised
since the conditions do not include affordable housing among the reserved
matters.
[49] Although, as
counsel for the appellants pointed out, the Wychavon
case was concerned with English equivalent of a section 75 agreement, it is
to be noted that, as was submitted by counsel for the Scottish Ministers, the
terms of the agreement in that case suffered deficiency in terms of
specification similar to the absence of specification in
Condition 13. The decision is of
course not binding on us. More
importantly, as is pointed out in the commentary which follows the report of
the case, the declaration granted by the judge was to the effect that the
developers' proposal did not satisfy the definition of affordable housing. The judge did not attempt to say how
satisfaction of the agreement for the provision of affordable housing was to be
achieved. Further, the definition given
by him of "low cost affordable housing" - described by the commentator as "very
flexible" - does not in our view assist as respects the fundamental lack of
specification of the nature and detail of the landowner's obligation in terms
of the impugned condition, which counsel for Scottish Ministers accepted was
not severable.
Disposal
[50] For all the
reasons which we have discussed, we consider that the decision of the reporter
must be quashed on both of the grounds contained in section 239 of the
Act.
