Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2010] CSOH 102
XA115/09	OPINION OF LORD BRAILSFORD in Appeals to the Court of Session under Section 239 of the Town and Country Planning (Scotland) Act 1997 by (1) EILDON LIMITED and (2) MACIVER PROPERTIES (A FIRM) Appellants; against a decision of Trevor A Croft, a Reporter appointed by the Scottish Ministers, dated 11 June 2009 ­­­­­­­­­­­­­­­­­________________

Appellants: Sutherland; Drummond Miller

Respondents: Barnes; Office of the Solicitor to the Scottish Executive

28 July 2010

[1] These were two appeals to the Court of Session under Section 239 of the Town and Country Planning (Scotland) Act 1997 against a decision by a reporter appointed by the Scottish Ministers dated 11 June 2009. By interlocutor dated 8 October 2009 the Inner House remitted the appeals to the Outer House to be heard by a Lord Ordinary in terms of Rule of Court 41.44. The appellants in each appeal had been applicants for planning permission for the conversion of existing office buildings at 27 and 29 at Ardconnel Terrace in Inverness into residential apartments. The issues in each appeal were identical. The appeals had not been formally conjoined but it was a matter of agreement between each appellant and the respondents that the cases should be heard together. The appellants were jointly represented. For convenience, it was submitted by the appellants that the appeal by Eildon Limited be regarded as a notional lead appeal and that the productions in that process should be utilised for the purpose of the appeal. The respondents did not object to this course, it appeared expedient and I assented to that course being followed.

[2] For convenience, I will refer to the two appellants as a single entity entitled "the appellants" throughout this opinion.

[3] The appellants had applied to Highland Council for planning permission for the conversion of existing office buildings at the said addresses in Inverness. The applications covered different parts of an office building which had previously been residential villas interconnected at ground and first floor levels. Both applications were dealt with together at one appeal hearing. The subjects for which planning permission was sought were within a designated conservation area, the "Riverside Conservation Area". In terms of the applicable Development Plan the reporter required to determine whether the proposals would constitute overdevelopment because of disproportionate scale and density, whether there would be any impact on neighbouring residential amenity and whether there would be an adverse impact on the character or appearance of the conservation area. Counsel for the appellant presented his submissions in two parts, firstly, dealing with the legal background and secondly, challenging the decision of the reporter.

[4] So far as the legal background was concerned, my attention was drawn to Section 64 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("the 1997 Act")which sets forth a general duty incumbent upon planning authorities in the exercise of planning functions in respect of conservation areas. That provision stipulated inter alia:

"(1) In the exercise, with respect to any buildings or other land in a conservation area, of any powers under any of the provisions in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."

The planning acts are amongst the provisions included in subsection (2). Counsel for the appellant's submission was that the interpretation of that section was the basis of the present appeal.

[5] In relation to the interpretation of that section, my attention was firstly drawn to the well known decision of the House of Lords in South Bucks District Council v Porter (No. 2) [2004] 1 WLR in relation to the giving of reasons by decision makers such as the reporter in the present instance. In that case, Lord Brown of Eaton-under-Haywood summarised the law relating to the requirement to give reasons in the following way:

"35. It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader's attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.

36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising they are addressed to parties well aware of the issues involved in the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

The propositions in the foregoing passage were said to represent the approach I should take in considering the reporter's decision letter in the present case.

[6] With specific reference to the question of the interpretation of Section 64 of the aforesaid Act of 1997, my attention was drawn to the decision in the House of Lords in South Lakeland District Council v The Secretary of State for the Environment [1992] 2 AC 141 (at p150) where in the only substantive speech Lord Bridge of Harwich, quoted with approval from the judgment of Mann L.J. in the Court of Appeal as follows:

"In seeking to resolve the issue I start with the obvious. First, that what is desirable is the preservation or enhancement of the character or appearance of the conservation area. Second, the statute does not in terms require that a development must perform a preserving or enhancing function. Such a requirement would have been a stringent one which many an inoffensive proposal would have been inherently incapable of satisfying. I turn to the words. Neither 'preserving' nor "enhancing" is used in any meaning other than its ordinary English meaning ... In my judgment, character or appearance can be said to be preserved where they are not harmed. Cases may be envisaged where development itself make a positive contribution to preservation of character or appearance. A work of reinstatement might be such. The statutory desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed, that is to say preserved".

This approach was said by counsel to be the appropriate one to apply when considering section 64 which was in a practical sense in similar terms to section 277(8) of the Town and Country Planning Act 1971 the English provision under consideration in South Lakeland District Council (supra). My attention was drawn to three further cases, namely, Birmingham Corporation v Minister of Housing and Local Government and Another [1964] 1 QB 178, Westminster City Council v Great Portland Estates Plc 1985 1 AC 661 and Chorley and James v Secretary of State for the Environment [1993] JPL 927, albeit that in the course of submission counsel accepted these authorities added nothing of substance to the arguments he was advancing.

[7] Against this legal background, counsel for the appellants then turned to consider the decision challenged. His approach was to subject the decision letter to an intensive textual scrutiny. In that regard no issue was taken with paragraphs 1 and 2 of the decision letter. In relation to paragraph 3, counsel informed me that the proposal in each application had been, to use his language, "worked up" with the planning officials. I took this to mean that there had been involvement of employees of the planning authority in the development of the proposals for planning permission with which the reporter was ultimately concerned. Planning officials involved in this process included, I as informed, a conservation architect. The design represented in the application specifically took into account what had been represented by the officials as appropriate development within the relevant conservation area. This argument was developed no further, although I took it to at least imply that the submitted design had received at least some imprimatur of approval from the planning authority. In relation to paragraph 4, the submission was that the report failed to properly consider and apply the provisions of Section 64 of the 1997 Act. In particular, my attention was drawn to the final sentence in paragraph 4. In that sentence, the reporter noted that the proposal would provide "... arguably an improvement on the present situation" but nevertheless went on to conclude that "... it would not enhance the appearance of the area." It was submitted that the statutory provision did not require "enhancement" in order to be satisfied. The statutory provision was satisfied if the character or appearance of the relevant area was preserved or enhanced (my emphasis). It was accordingly submitted that paragraph 4 introduced confusion to the reasoning of the reporter. In relation to paragraph 5, it was submitted that the reporter proceeded upon an assumption that there would be twenty six people in occupancy of the premises once developed. It was submitted that such an assumption was unjustified. It was also submitted that the reporter's assumption that the properties would "be likely to appeal to younger people" and that such occupants would be likely to come and go more frequently than more established residents was an assumption that the reporter was not entitled to make. Counsel submitted that the Reporter was not entitled to take the age of potential occupants of any development into account in his determination. It was further submitted that he was not entitled to make any inferences about the method or type of occupancy which would occur. Having regard to these factors, it was submitted that the reporter was indulging in improper speculation in this paragraph of his decision letter. In relation to paragraph 7, comments made by the reporter there in relation to the development were said to be inconsistent with his findings in paragraph 4 to the effect that the development would be an improvement on the existing situation. It was further submitted that the paragraph failed to address the correct approach to Section 64 as identified in the authorities referred to by counsel.

[8] Having regard to these arguments, counsel submitted that the reporter had adopted an incorrect approach to the relevant statutory test. In these circumstances, the decision letter should be quashed.

[9] In reply, counsel for the respondents invited me to refuse the appeal. He took no issue with counsel for the appellants' outline of the applicable law. It was his submission that in paragraph 1 of the decision letter, the reporter had clearly set forth the three issues which were for his determination. Counsel further submitted that the issues identified were the correct ones which the reporter required to consider and determine in order to properly apply Section 64. Paragraphs 3, 4 and 5 of the decision letter, which had been the subject of criticism by the appellant, were no more than the reporter discussing the various issues which were before him and which had constituted the subject matter of evidence and argument at the hearing. The reasons for the reporter's decision are, it was argued, set forth clearly in paragraph 7 of the decision letter. Paragraph 7 was to be construed as standing on its own as being the decision of the reporter. As such it illustrated that the reporter had clearly understood the statutory provision he must apply, namely section 64 of the said Act of 1997. More over, on a fair construction of that paragraph, it was plain that the statutory tests set forth in the said section had been complied with.

[10] This appeal raised a narrow point, namely, the proper approach to be taken to the interpretation and application of section 64 of the 1997 Act. As noted, there was no dispute between the parties as to the applicable law, that being as I have recorded in my summary of counsel for the appellants' submissions. The approach of the appellant seems to me to be fairly categorised as seeking to dissect the decision letter in a way whereby, taking certain passages in isolation, they may seem to indicate a failure by the reporter to properly consider the statutory provisions he was applying. I would not categorise such an approach as illegitimate in an appropriate case. I am, however, not persuaded that the approach was justified in the present instance. Following the approach of Lord Brown in South Bucks District Council (supra) I require to consider whether the reporter's reasons were intelligible, his conclusions were based upon consideration of the relevant factual issues before him, and to be satisfied that his reasoning did not disclose a substantial error in law. In relation to all these matters I should be slow in drawing any inference adverse to the decision reached.

[11] Approaching the decision in that manner, I agree with counsel for the respondent that the reporter clearly identified in paragraph 1 of his decision letter the questions for his determination. I further agree with counsel for the respondent that paragraph 3, 4 and 5 are fairly to be regarded as a discussion of the facts as elicited at the hearing. These passages are not, in my view, to be considered as containing decisions in themselves. They seem to me to be setting forth the background material necessary to make the reporter's decision intelligible and explicable, and, further, to discussion arising from that factual material. I am, further, satisfied that counsel for the respondents was correct when he characterised paragraph 7 of the letter as representing the reporter's conclusions and determination. It further seems to me that that paragraph clearly demonstrates that the reporter applied the applicable statutory provision in a proper and correct manner.

[11] Having regard to the foregoing, I consider that the appeal falls to be refused.