NO KINGSFORD STADIUM LIMITED AGAINST ABERDEEN CITY COUNCIL AND ABERDEEN FOOTBALL CLUB PLC [2019] ScotCS CSOH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> NO KINGSFORD STADIUM LIMITED AGAINST ABERDEEN CITY COUNCIL AND ABERDEEN FOOTBALL CLUB PLC [2019] ScotCS CSOH_19 (01 March 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_19.html Cite as: [2019] ScotCS CSOH_19

Petitioner: Wilson QC, Van Der Westhuizen; Gillespie MacAndrew LLP

[1] On 23 April 2018, the respondent (“the Council”) granted planning permission for a

proposed development at West Kingsford, Skene Road, Aberdeen, near Westhill, comprising

“Proposed Community and Sports Facilities, Football Academy, (comprising outdoor

pitches, pavilion, ancillary buildings), Stadium (20,000 capacity), ancillary uses, formation of

access roads, parking and associated landscaping and engineering works”. The centre piece

of the proposed development is a new stadium for Aberdeen Football Club, which has

[2] The petitioner is a company whose objects include benefiting the community of

Westhill, Kingswells and West Aberdeen by inter alia (i) advancing environmental protection

and/or improvement including preservation, sustainable development and conservation of

the natural environment and landscape, and (ii) promoting the use, management and

preservation of land within the community in a sustainable and environmentally friendly

manner for the benefit of the community and the public in general which promotes,

preserves and enhances the environment, heritage, amenity and culture of the community.

It opposes the football stadium development. The petitioner made various written

representations to the Council against the development and was represented at and

[3] The proposed development is located on an undeveloped and unallocated site within

an area designated as green belt in the Aberdeen Local Development Plan (“ALDP”), which

was adopted on 20 January 2017. In that regard, as is common ground, the development is

contrary to the provisions of the development plan. The Council’s officers concluded,

however, that there were no other sites within Aberdeen that would be suitable, available

and deliverable, and preferable in terms of environmental impacts. The Council in turn

concluded, having assessed the development against various policies in the development

plan, that the public benefits of the stadium outweighed the provisions of the development

plan and that no material considerations had been identified that would weigh significantly

[4] In this application, the petitioner seeks reduction of the Council’s decision to grant

planning permission for the development. In summary, the petitioner contends, firstly, that

the Council made material errors of law in the interpretation and application of its own

development policy and, secondly, that it failed to establish the necessary factual basis for

the sequential approach that it adopted in concluding that there was no alternative available

[5] The principal, though not the only, component of the development plan is the ALDP

which, as I have noted, was recently adopted. For the purposes of these proceedings, the

No development will be permitted in the Green Belt for purposes other than those

essential for agriculture; woodland and forestry; recreational uses compatible with

an agricultural or natural setting; mineral extraction/quarry restoration, or

[The policy goes on to list a number of exceptions, none of which is applicable to the

proposed development. The abbreviation NE stands for “natural environment”.]

Development within the city centre must contribute towards the delivery of the

vision for the city centre as a major regional centre as expressed in the City Centre

Masterplan and Delivery Programme. As such the city centre is the preferred

location for retail, office, hotel, commercial leisure, community, cultural and other

significant footfall generating development serving a city-wide or regional market.

Proposals for new retail, office, hotel, commercial leisure, community, cultural and

other significant footfall generating development (unless on sites allocated for that

use in this plan) shall be located in accordance with the sequential approach referred

… All significant footfall generating development appropriate to town centres

(unless on sites allocated for that use in this plan) should be located in accordance

with the hierarchy and sequential approach as set out below and detailed in

In these circumstances, proposals serving a catchment area that is city-wide or

larger shall be located in the city centre if possible. Retail proposals shall

Proposals serving a catchment area of a size similar to that of a town centre or district

centre shall be located in a town centre or a district centre if possible. They may also

All significant footfall generating development appropriate to designated centres,

when proposed on a site that is out-of-centre, will be refused planning permission

if it does not satisfy all of the following requirements (unless on sites allocated for

no other suitable site in a location that is acceptable in terms of Policy NC4

there will be no adverse effect on the vitality or viability of any centre listed

there is in qualitative and quantitative terms, a proven deficiency in

the proposed development would be easily and safely accessible by a choice

of means of transport using a network of walking, cycling and public

transport routes which link with the catchment population. In particular,

the proposed development would be easily accessible by regular, frequent

and convenient public transport services and would not be dependent

the proposed development would have no significantly adverse effect on

Commensurate with the scale and anticipated impact, new developments must

demonstrate that sufficient measures have been taken to minimise traffic generated

Transport Assessments and Travel Plans will be required for developments which

The development of new communities should be accompanied by an increase in

local services and employment opportunities that reduce the need to travel and

include integrated walking, cycling and public transport infrastructure to ensure

that, where travel is necessary, sustainable modes are prioritised. Where sufficient

sustainable transport links to and from new developments are not in place,

developers will be required to provide such facilities or a suitable contribution

Further information is contained in the relevant Supplementary Guidance which

New developments must be accessible by a range of transport modes, with an

emphasis on active and sustainable transport, and the internal layout of

developments must prioritise walking, cycling and public transport penetration.

Links between residential, employment, recreation and other facilities must be

protected or improved for non-motorised transport users, making it quick,

Street layouts will reflect the principles of Designing Streets and meet the

minimum distances to services as set out in the Supplementary Guidance.

Existing access rights, including core paths, rights of way and paths within the

wider network will be protected and enhanced. Where development proposals

impact on the access network, the principle of the access must be maintained at all

times by the developer through provision of suitable alternative routes.

Recognising that there will still be instances in which people will require to travel by

car, initiatives such as like car sharing, alternative fuel vehicles and Car Clubs will

[6] The development plan also includes the Aberdeen City and Shire Strategic

Development Plan (“SDP”), dated March 2014 and produced by the Aberdeen City and

Shire Strategic Development Planning Authority (“ACSSDPA”). According to its

introductory paragraphs, the purpose of the SDP is to set a clear direction for the future

development of the North-East, a key part being the ACSSDPA’s vision and spatial strategy,

supported by a series of objectives and targets. Among the proposals in Schedule 2 to the

SDP is “a new community stadium – a regionally important facility which will bring

economic, social and cultural benefits”. Two possible locations for the stadium are

identified (paragraph 3.24 and related diagram): at or near the current stadium site at

Pittodrie/King’s Links and at Loirston to the south of the city. Kingsford is not identified as

[7] The Council’s decision followed the recommendations made to it in a report (“Report

on Handling”) dated 29 January 2018 prepared by its development management manager.

The reasons given by the Council for its decision reproduce the reasons set out in the Report

on Handling for recommending approval. It is convenient at this stage to set out those

reasons, in so far as they address the issues with which the petitioner’s challenge is

[8] Under the heading “Reasons for Decision”, the Council stated inter alia as follows:

“The development proposed is contrary to the provisions of policy NE2 (Green Belt)

on the basis of its location within an area designated as green belt in the ALDP.

Whilst this policy would potentially allow for elements of the development it is

nevertheless the case that, taken as a whole, the development represents a significant

departure from policy NE2, particularly in terms of its encroachment onto a green

buffer which visually separates existing settlements of Kingswells and Westhill and

contributes to maintaining their separate identities as well as the wider landscape

setting of Aberdeen. Nevertheless, sufficient information is available to enable

officers to conclude that there are no other sites with [sic] Aberdeen that would be

suitable, available and deliverable that would be preferable in term of environmental

The proposed stadium use represents a 'significant footfall generating use' serving a

City-wide or regional market for the purposes of assessment against local and

national policy. Notwithstanding the shortcomings in the applicants' consideration

of sequentially preferable alternatives, sufficient information has been submitted by

the applicant or is otherwise available to enable officers to utilise a sequential

approach to considering alternative sites on the basis of both co-location and

disaggregation and in the light of planning policy including identified sites for such

a stadium at Loirston and Kings Links. The conclusion reached is that there are no

other sites with Aberdeen on which the stadium could be accommodated that would

be both available and deliverable in a reasonable timescale. On that basis, it is

accepted that the proposal accords with the requirements of policy NC1 (City Centre

Development) and NC4 (Sequential Approach and Impact) by having fully explored

options for providing the development within the City Centre and other sequentially

preferable locations. Further, despite some areas of policy conflict relating to

accessibility, which arise as a result of the site's peripheral location, it is concluded

that the proposal has, on balance, satisfied the terms of policy NC5 (Out-of-Centre

The site's location is such that it is not readily accessible by sustainable modes of

transport. This would be mitigated to some extent by match-day shuttle buses that

would run from the city centre to the site. However, this only addresses travel needs

from the city centre, and travellers from outlying areas would have longer journey

times to access the site via public transport or other sustainable means. The location

is such that it would be largely separated from its catchment populations, reducing

the potential for travel by walking or cycling. This, together with the provision of

off-site car parking in addition to the on-site provision at the maximum levels

permitted by policy, is considered to encourage car-borne travel, which runs

contrary to the stated aims of ALDP Policies T2 and T3 in relation to minimising

traffic generated by development and promoting sustainable travel.

Notwithstanding this tension with transport-related policies, the use of conditions to

ensure the delivery of interventions such as a pedestrian overbridge (or other means

of safe pedestrian crossing) and implementation of a Controlled Parking Zone within

Westhill will go some way to mitigating the impacts of the development. An

ongoing commitment to the delivery of a bus strategy, including provision for

monitoring and review, can be secured through a planning agreement…

In terms of public benefits (economic and social) it is considered that approval and

implementation of the proposal would result in potentially millions of pounds of

additional GVA [ie gross added value] per annum for the region, in addition to a

significant £50 million up front investment and would create additional short and

long term jobs. It would give the potential for improved performance by the football

team and of at least maintaining, if not increasing crowd numbers together with the

attraction of additional major sporting events and concerts - all of which would bring

visitors from outside the region along with associated spending which would benefit

the local economy. This would be in accordance with planning policies in SPP and

other relevant socio-economic policy document for the City. As well as the potential

to provide further events infrastructure to the north east, the development has

potential to promote the north-east as a sporting destination. If opportunities for

additional sporting events can be realised, this offers potential to enhance the image

of the city and promote Aberdeen as a destination for sporting events and associated

event-related and overnight/weekend business. The new stadium would also enable

the expansion of the work of the AFCCT to increase the number of people in the

region who participate in sport and physical activity. These benefits are highly

unlikely to occur if approval is not given for the current proposal and, given the

availability and suitability of alternative sites, certainly not in the short to medium

term future. These potential public benefits to the region represent a significant

material consideration weighing in favour of approval of the application.

In conclusion, it is considered that the proposal would have significant public

benefits for the region - both economic and social. A thorough evaluation of

potential sites has been carried out and it is considered that there are no sequentially

preferable sites in the City for the stadium (whether co-located or disaggregated) that

are available and deliverable at this time or in a reasonable timescale. Given the lack

of available or deliverable sites, it can be concluded that these public benefits will not

be realised if approval is not given for the development on the site that is currently

proposed. The proposal is unique – Aberdeen Football Club is the only sports club

in the region with a region-wide fan base – that can potentially deliver the economic

and social benefits envisaged – and as such approval of the stadium does not set an

undesirable precedent for future applications for other sports stadia or other uses

that would not deliver the same benefits or where land is specifically zoned for such

uses. Whilst the proposal is considered to be contrary the Green Belt Policy NE2 of

the ALDP there are significant elements of the proposal – notably the training pitches

and car parking that would either be compatible with Green Belt Policy or accord

with the general aims of policy to maintain the openness of the green belt and visual

separation between settlements. There are tensions with transportation policy in that

the proposal would not be readily accessible by sustainable means but these would

be mitigated by a green travel plan incorporating the extensive use of shuttle buses

On balance, therefore, it is considered that the public benefits of the stadium

outweigh the provisions of the development plan and no material considerations

have been identified that would weigh significantly to the contrary. Having had

regard to the benefits that would be realised through the development and its

limited environmental and ecological value over and above its basic function as part

of a buffer between settlements, it is considered that Scottish Planning Policy (SPP)

The reference to AFCCT is to the Aberdeen FC Community Trust, which was the joint

applicant along with Aberdeen Football Club for planning permission for the proposed

[9] The suitability and availability of other sites for the development was addressed in

some detail in the Report on Handling. Having concluded that Aberdeen FC’s existing

premises at Pittodrie were not realistically suitable for the development of a new stadium,

the report considered the King’s Links site, located near Pittodrie, within walking distance

of the city centre, and identified in the SDP as a potential location for stadium development.

The difficulty identified was that a golf centre and driving range, held by a tenant on a long

lease from the Council, occupied 6ha in the northern part of the site. The tenant had

confirmed that it had no intention to break the lease early. The view of Aberdeen FC was

that the remaining 4ha of land was not sufficient to accommodate either the stadium or the

training facilities. While not accepting the club’s assertion that a minimum of 12.5ha was

needed for either component of a disaggregated development, the report nevertheless

acknowledged (paragraph 9.76) that there was no realistic prospect of either element being

[10] The report then turned to consider the Loirston site which was sequentially

preferable by virtue of its allocation in the ALDP for a potential stadium development. That

allocation had been an element in the development of a larger site extending to 119.2ha for

uses including residential and commercial. The majority landholder at Loirston was

Hermiston Securities Ltd (“Hermiston”), a developer. The Council also owned land there

and had a development agreement with Hermiston to pool resources. By the time of the

report, certain landholdings had been sold to third parties, and a planning consent for

housing had been granted. Aberdeen FC was of the view that the land remaining within the

area originally allocated for a stadium development was no longer sufficient. Hermiston

had indicated that it would seek full market value based on residential development for any

land re-allocated for stadium development. Against that background, the report concluded

(paragraph 9.88) that whilst there were areas within the Loirston site that might technically

remain available, the residential zoning of the land, the commercial realities of its value, and

the legal obligation for the Council to achieve best value in the disposal of land were such

that there was no realistic prospect of a development there being financially viable for

Aberdeen FC. It was observed that “if development is not viable due to prohibitive land

cost, and the potential for significant public benefit would be lost, then land cost and

[11] The report went on to assess whether there was any other environmentally

preferable site which avoided or lessened harm. Having considered certain sites, including

other green belt sites, the report concluded (paragraph 9.108) that there was no readily

apparent site that was suitable and environmentally preferable to the proposed site at

[12] The legal principles applicable to a court challenge to a decision of a planning

authority were not in dispute. The parties helpfully lodged a joint statement of legal

principles at the outset of the hearing. I need only set out a few of these:

Applications for planning permission require to be determined in accordance

with the development plan, unless material considerations indicate otherwise

(Town and Country Planning (Scotland) Act 1997 (“the Act”), sections

25(1)(a) and 37; City of Edinburgh Council v Secretary of State for Scotland 1998

A decision of a planning authority will be ultra vires if it has improperly

exercised the discretion confided to it. In particular it will be ultra vires if it is

based upon a material error of law going to the root of the question for

determination. It will also be ultra vires if the planning authority has taken

into account irrelevant considerations or has failed to take into account

relevant and material considerations, including, if it is one for which a factual

basis is required, where there is no proper basis in fact to support it (Wordie

Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347-348).

It is for the Court to determine what is a material consideration. However,

the weight to be given to a material consideration is a matter of planning

judgement, and whether or not material considerations outweigh or justify a

departure from the development plan is a matter of planning judgement for

the decision maker, provided that it does not lapse into Wednesbury

irrationality (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1

The planning decision-maker must properly interpret and apply planning

policy, which should be interpreted objectively in accordance with the

language used, read in its proper context. The construction of a development

plan policy can be a matter of law for the Court, and if the decision-maker

errs regarding the interpretation of policy, it is for the Courts to substitute the

correct interpretation. It is a question of textual interpretation that can only be

answered by construing the language used in its context. The relative

importance of a given policy (properly construed) to the overall objectives of

the development plan is essentially a matter of judgement for the planning

decision-maker and their exercise of their judgement can only be challenged

on the ground that it is irrational or perverse, with the proviso that a

planning authority “cannot make the development plan mean whatever they

would like it to mean” (Tesco Stores Limited v Dundee City Council 2012 SC

Issues of interpretation of policy, appropriate for judicial analysis, and issues

of the application of planning judgement to policy which are within the

province of the planning decision-maker, are distinct, and the two issues

should not be elided (Suffolk District Council v Hopkins Homes Ltd [2017] 1

The court will construe a planning officer’s report in a practical, reasonably

flexible and common sense way in the knowledge that it is targeted at parties

who are well aware of the facts and issues (Waterstone Estates Ltd v Welsh

Ministers and others [2018] EWCA Civ 1572 at paragraph 11). The question for

the court is whether, on a fair reading of the report as a whole, the planning

officer has materially misled the members on a matter bearing upon their

decision, and the error has gone uncorrected before the decision was made

(Mansell v Tonbridge and Malling Borough Council [2018] JPL 176 at 42 (CA)).

A planning decision-maker is required to give proper and adequate reasons

for its decision, which deal with the substantial questions in issue in an

intelligible way. The decision must leave the informed reader in no real and

considerations that were taken into account (Wordie Property Co Ltd, above at

348). Where the adequacy of reasons is challenged the Court should consider

whether the informed reader would understand the basis for the decision

straightforward manner on the basis that they are addressed to persons who

are familiar with the background and issues (South Bucks District Council v

Porter (No 2) [2004] 1 WLR 1953 at paragraph 36; Uprichard v Scottish

[13] In addition to these general principles, reference requires to be made to certain

statutory provisions concerning the disposal of land by a local authority. Section 1(1) of the

Local Government in Scotland Act 2003 states that “it is the duty of a local authority to make

arrangements which secure best value”. “Best value” is defined in section 1(2) as

“continuous improvement in the performance of the authority’s functions”. At a somewhat

more specific level, section 74(2) of the Local Government (Scotland) Act 1973 provides that

a local authority may not dispose of land for a consideration less than the best that can

reasonably be obtained, except in accordance with regulations made under section 74(2C).

Those regulations are the Disposal of Land by Local Authorities (Scotland) Regulations 2010

“(1) The circumstances in which a local authority may dispose of land for a

consideration less than the best that can reasonably be obtained are that—

(a) the local authority is satisfied that the disposal for that consideration

(b) the disposal is likely to contribute to any of the purposes set out in

paragraph (2), in respect of the whole or any part of the area of the local

[14] On behalf of the petitioner, two principal arguments, containing within them a

[15] The Council’s interpretation and application of development policy was significantly

flawed. Policy NC5 stated that all significant footfall-generating development when

proposed on an out-of-centre site “will be refused” planning permission if it did not satisfy

all of the five specified criteria. The Council was obliged to assess the proposed

development against these criteria and to refuse it if it failed to satisfy any one or more of

them. A proper interpretation of Policy NC5 ought to have led to the conclusion that

locating the proposed development at Kingsford was contrary to its terms. As regards the

fourth criterion, both the ACSSDPA and Aberdeenshire Council had objected on the basis

that the location was not easily accessible; this conclusion was supported by the Council’s

roads management team. In relation to the fifth criterion, those authorities objected on the

ground that the location of the development would give rise to unsustainable travel patterns

contrary to the SDP. The Report on Handling failed to address the policy significance of

these objections. The availability (or otherwise) of alternative suitable sites was a separate

issue which should not have been taken into account in relation to the fourth and fifth

criteria of Policy NC5. In relation to the first criterion, the Council did not have a sound

factual basis upon which to reach the conclusion that there were no other suitable sites

[16] The approach taken to interpretation and application of Policy NC5 was flawed and

constituted an error of law. It was not open to the Council to carry out a balancing exercise

similar to that required by section 25 of the Act in reaching an overall conclusion as to

whether or not the proposed location “would broadly accord with” the provisions of the

policy. An objective consideration of the language of the policy and the aims and targets of

the SDP that the policy was intended to support should have led the Council to conclude

that in the event that any of the criteria were not met, the application had to be refused. It

should have been concluded that the Kingsford location contravened the requirements of

[17] The Council’s decision was based also upon a flawed assessment against the

requirements of Policies T2 and T3. As regards the former, it was recognised in the Report

on Handling that there were “areas of tension with Policy T2”, including deliverability of

measures such as a controlled parking zone in Westhill and a footbridge over the A944 road

to address the impacts of car-based travel to a peripheral location. Again the Council had

conflated an assessment against the terms of the policy with a balancing exercise under

section 25 of the Act. The result was that the Council had understated the extent to which

the proposed development contravened the development plan policies. In relation to Policy

T3, it was accepted in the Report on Handling that the Kingsford site was not accessible by a

range of transport modes, so the only reasonable conclusion was that the development was

contrary to the policy. There was no proper basis to conclude that it “broadly accords” with

Policy T3 on the basis of an assessment that it was the only viable location for the

[18] The conditions proposed to be attached to the grant of permission did not ensure the

deliverability, prior to commencement of the development, of the mitigation measures

regarded as essential for the purposes of complying with Policy T2. The extent of departure

[19] The Council further erred in law by failing to take into account the following

The policy provisions of the SDP, which were not discussed in the Report on

The objection by the ACSSDPA that a development at Kingsford was not in

accordance with the SDP, in that it would result in the loss of 25ha of green

belt land and coalescence of urban areas, gave rise to unsustainable travel

The provisions of Scottish Planning Policy relating to sustainable

development that underpinned Policies NC5, T2 and T3 in the ALDP.

[20] The Council’s approach was perverse and irrational in that it left out of account

specific policy objectives designed to achieve sustainable development. The primacy given

by section 25 of the Act to the provisions of the development plan indicated that very

weighty material considerations were required to overcome non-compliance with those

policy objectives. Failure to give such primacy to the green belt Policy NE2 was perverse.

(ii) Failure to establish the necessary factual basis for the sequential test

[21] The Council carried out its own sequential approach to site selection and concluded

that there were no alternative available or deliverable 25ha or 12.5ha sites in a sequentially

preferable location. That exercise was significantly flawed. There was a failure to establish

the necessary factual basis upon which to carry out the sequential assessment. Critically, the

Council did not determine the minimum site area required for the proposed development,

whether as a single site or as two disaggregated sites for the stadium and for training and

other facilities respectively. Without this factual grounding, the Council was not in a

position to reach a conclusion that there were no suitable alternative sites for the

[22] The Council also failed to establish a factual basis upon which it could be concluded

that land sufficient for the development was not available at either King’s Links or Loirston.

It did not demonstrate that it had carried out a sufficiently thorough assessment to enable it

to decide that it was not in a position, in its capacity as landlord of land at King’s Links, to

secure release of that land for a stadium development. As regards the land at Loirston, the

Council failed to establish the legal basis upon which it contended that it was statutorily

obliged to obtain “best value” for land in its ownership, or that this necessarily meant

commercial or residential value. It had ignored its power under the 1973 Act and 2010

Regulations to take into account non-financial considerations. The Regulations contained

exceptions to the duty to dispose of land for the best consideration that could reasonably be

obtained. It was unclear which statutory provision the Council had relied upon in

concluding that it had to realise best value. It was also unclear how much of the site was in

Council ownership. The Council had accordingly failed to establish a factual basis for its

conclusion that there was no alternative available other than in the green belt at a peripheral

location. Reference was made to St Andrews Environmental Protection Association Ltd v Fife

[23] Finally, it was submitted that the Council had given inadequate reasons for its

conclusions that sufficient land for the development was not available at either King’s Links

[24] On behalf of the Council it was submitted that the decision, on balance, to grant

planning permission was a lawful exercise of proper planning judgement, as required by

section 25 of the Act. It was acknowledged that the development would be contrary to

Policy NE2 and a significant departure from the development plan. A sequential approach

to availability of alternative sites was adopted and the conclusion reached that, on balance,

there would be no breach of Policies NC5, T2 and T3. Those policies were framed in general

terms and allowed scope for exercise of planning judgement. The petitioner’s arguments

were directed not to interpretation of the policies but to their application to the proposal,

and demonstrated no error in approach to either interpretation or application. On a fair

reading of the Report on Handling as a whole, a proper basis in fact had been demonstrated

to enable the Council to reach a view as to whether or not there was a sequentially

preferable site. The question of what was or was not available was a matter of fact and

[25] As regards the petitioner’s argument that the Council had made material errors of

law, it was submitted that although Policy NC5 was clear that a development which did not

satisfy all five criteria was to be refused, discretion and judgement were built into the

criteria themselves. The Report on Handling considered each of the five criteria before

concluding that, despite some areas of tension regarding accessibility, the proposal broadly

accorded with the policy. The issue of accessibility was fully assessed at paragraphs 9.96-

9.97 of the Report on Handling. The question whether the development would be contrary

to Policy T2 was a matter of judgement, not arithmetical calculation. The Council was

entitled to conclude that the proposed mitigation measures such as the provision of a shuttle

bus on match days, which could be made the subject of conditions, rendered the proposal

broadly acceptable in the context of the policy. The only relevant point in Policy T3 was the

part of the first sentence that required new developments to be accessible by a range of

transport modes, with an emphasis on active and sustainable transport. The policy did not

exclude car travel. The Council was entitled to find that with the provision of shuttle buses

and the upgrading of pedestrian and cycle routes, and with no other viable alternative, the

[26] The petitioner’s complaint that the conditions proposed to be attached to the grant of

permission did not ensure the deliverability, prior to commencement of the development, of

essential mitigation measures was unfounded. The relevant conditions (5, 6 and 7)

envisaged a two-stage process whereby development would not take place unless a scheme

had been approved by the Council, and the stadium would not be brought into use unless

[27] The Council had not failed to take into account, as material considerations, any of the

matters identified by the petitioner. The concerns raised by the ACSSDPA and by

Aberdeenshire Council had been set out in the Report on Handling and all had been

addressed in the report’s analysis. It was unnecessary to mention either body by name in

the analysis, provided that the matters raised were fully dealt with. As regards the

underlying strategy of sustainable development promoted by Scottish Planning Policy, the

Report on Handling had addressed that strategy; it should be borne in mind that that

concept took account of social and economic as well as environmental factors. On a proper

application of the concept to the proposal, the Council had been entitled to conclude that

[28] There was no obligation incumbent upon the planning authority to determine the

minimum site area available for a stadium development. The question was not whether

there could be a different development elsewhere but rather whether there was a preferable

alternative site for this development. Both the developer and the Council were expected to

approach the question of adequacy of site size with realism and flexibility. In any event size

had not been the focus of the Council’s assessment: other possibilities had been rejected for

reasons other than size. The only sites rejected on grounds of size were in the city centre.

[29] The Council had adopted a proper and realistic sequential approach to the question

of availability of other sites and had been entitled, in the exercise of its judgement, to

conclude that there was no preferable alternative available. As regards King’s Links, it

would not be reasonable to expect the Council to explore, in its capacity as landlord, the

possibility of terminating an agreement such as a lease unilaterally, or to require the

developer to do so. As regards Loirston, there were reasons that entitled the planning

authority to find that there was no longer a realistic possibility of the stadium development

being located there. The concept of “best value”, in the context of Loirston, meant market

value. Regulation 4 of the 2010 Regulations was not relevant to the Council’s sequential

assessment. It was not for a planning authority to make inquiries about the availability of an

alternative site. Nor was there any deficiency in the reasons given by the Council for its

[30] Senior counsel for Aberdeen FC adopted the arguments on behalf of the Council and

made a number of additional submissions. It was observed that the planning policies in the

ALDP fell into different categories: some, such as Policies T2 and T3 were aspirational and

set targets; others, such as Policy NC5 specified an outcome; but both of these categories

required the exercise of planning judgement, in contrast to others where the policy was

stated in binary or absolute terms. The Council’s use of the word “tension” in relation to a

policy represented a fair acknowledgment that the proposal did not pass that particular

requirement with flying colours, but that did not mean that there was any breach.

[31] In relation to the petitioner’s argument that lack of an alternative site should have

been regarded as irrelevant to the Council’s consideration of Policies NC5, T2 and T3, it was

submitted that the policies had to be interpreted in the context of the development plan as a

whole, including the acceptance that Aberdeen FC had to relocate from Pittodrie. What was

required in relation to the policies was not judgement in the abstract but in the context of the

development plan and the proposal put forward. The petitioner’s approach conflicted with

[32] It was not within the Council’s responsibility to decide what size of site was needed

for the proposed development. It had adopted the reasonable approach of considering a

range and concluding, on the one hand, that 4ha was too small but, on the other hand, that it

had not been proved that 12.5ha was the minimum needed for each element of a

disaggregated development. As regards Loirston, it was clear from the Report on Handling

(paragraph 9.87) that the Council had regarded market value as the starting point for

assessment of best value, and not as the sole measure; accordingly no error of law had been

[33] In my opinion the petitioner has not identified an error of law in the approach of the

Council that would entitle this court to interfere with its decision to grant planning

[34] I deal first with the petitioner’s criticisms of the Council’s approach to Policy NC5. It

is common ground among the parties that if any of the five criteria in Policy NC5 is not met

in relation to a development, then a grant of planning permission would be contrary to the

development plan. The question is therefore whether the Council misinterpreted the plan in

finding that the proposed development “broadly accorded” with the provisions of Policy

NC5. At paragraphs 9.91 to 9.100, the Report on Handling assessed whether each of the five

criteria in turn was satisfied and concluded that all were. The first was that no other suitable

site in a location acceptable in terms of Policy NC4 was available; I address this in the

chapter below. The second and third criteria were found to be fulfilled and no challenge is

[35] The fourth criterion was that the proposed development would be easily and safely

accessible by a choice of means of transport using a network of walking, cycling and public

transport routes linking with the catchment population, and that it would in particular be

easily accessible by regular, frequent and convenient public transport services and not

dependent solely on access by private car. The Council’s roads development management

team raised a number of concerns which are set out at paragraph 9.96: accessibility of the site

via public transport, especially from areas outwith the city centre; availability of buses to

service the needs of the development; the provision of off-site car parking which seemed to

undermine the requirements of the ALDP and SPP for the promotion of sustainable means

of travel; and the ease with which the site could conveniently be reached by public

[36] The authors of the Report on Handling took the view (paragraph 9.97) that these

concerns had to be considered alongside the assessment of sequentially preferable sites, the

Council’s acceptance that Aberdeen FC would relocate from Pittodrie, and the decision to

allocate land for the purpose of a new stadium at Loirston. The petitioner argued that this

approach amounted to an error of law, conflating the balancing exercise that required to be

carried out under section 25 of the Act with the assessment of whether the proposed

development was contrary to the terms of a particular policy. I accept that such conflation

might amount to an error of law, and that the question that had to be addressed at this stage

was whether the criterion in question was met. But I also accept the Council’s submission

that the addressing of that question required an exercise of planning judgement, and that it

was not only legitimate but appropriate to address it against the background of other

relevant policies in the development plan. The point made at paragraph 9.97 was that there

was, on the one hand, firm support in the development plan for a new stadium

development but, on the other hand, no appropriate city centre or edge-of-centre location

that was both suitable and available for such a development. That being so, the fourth

criterion had to be considered in the context of a development sited at a peripheral location.

In that context, the report identified aspects of the proposal which promoted the strategy

articulated by Policy NC5: the availability of a match day shuttle bus, the proximity to an

AWPR junction, and reduced congestion in the city centre with associated benefits to air

quality. That, in my view, provided a sufficient basis for the report to recommend, and for

the Council to accept, that on balance the fourth criterion was met.

[37] On the particular issue of shuttle buses, senior counsel for the petitioner drew

attention in her reply to the fact that the Report on Handling envisaged (paragraph 9.6) that

the stadium would also be used for “additional major sporting events and concerts”. Shuttle

buses on match days, it was argued, would not assist in such circumstances. I note,

however, that Condition 22 requires provision of shuttle buses when “a match or other

major event” is taking place. The point is therefore addressed in the grant of permission.

[38] The fifth criterion in Policy NC5 was that a proposal would have no significantly

adverse effect on travel patterns and air pollution. The issue of air quality was dealt with at

paragraph 9.98, leading to the conclusion in paragraph 9.100 that there would be no

significantly adverse effect. As regards travel patterns, the report acknowledged that the

proposed development would clearly alter existing travel patterns. Again, however, the

assessment of adverse effect was made against the background of there being no realistic

prospect of development being accommodated at a city centre or edge-of-centre location or

at the allocated Loirston site, whilst reiterating that the development plan supported a new

stadium and training facilities development. For much the same reasons as I have stated

above in relation to the fourth criterion, I consider that this approach represented an

appropriate exercise by the Council of planning judgement and not a misinterpretation of

the development plan. The conclusion at paragraph 9.101 that the proposed location would

“broadly accord” with the provisions of Policy NC5 does not, in my opinion, indicate that an

inappropriate balancing exercise has been carried out. Rather, it demonstrates, as senior

counsel for Aberdeen FC submitted, that the Council recognised that the matter was not

clear cut, but nevertheless determined in the exercise of its judgement that all five criteria

[39] I turn now to the petitioner’s criticisms of the Council’s approach to transport

Policies T2 and T3. Policy T2 requires a developer to demonstrate that sufficient measures

have been taken to minimise traffic generated and to maximise opportunities for sustainable

and active travel. The approach taken in the Report on Handling (at paragraph 9.120) is

much the same as that taken in relation to Policy NC5: the assessment of compliance with

Policy T2 is expressly stated to proceed on the basis of the absence of availability of any

sequentially preferable site and the Council’s acceptance of the principle of Aberdeen FC

relocating to a peripheral location. The petitioner’s complaints are also largely the same:

that availability of an alternative ought not to have been taken into account when assessing

whether the development accorded with a transport policy, and that the Council thus

conflated the section 25 balancing exercise with assessment of accordance with the

[40] Again I consider that these criticisms are not well founded. In City of Edinburgh

Council v Secretary of State for Scotland (above), Lord Clyde observed (at page 44) that the

decision-maker had to consider whether the development proposed in the application

before him did or did not accord with the development plan. Lord Clyde continued:

“There may be some points in the plan which support the proposal but there may be

some considerations pointing in the opposite direction. [The decision-maker] will

require to assess all of these and then decide whether in light of the whole plan the

In my view this was the approach adopted by the Council when assessing accordance with

Policy T2 against the background of the plan as a whole, where support was given to a

stadium development which, in all the circumstances, was only likely to take place at a

peripheral location. In that context, the Council noted the contribution of match day shuttle

buses to the promotion of sustainable travel, and the benefits to the road network of siting

the stadium near an AWPR junction. The references at the end of paragraph 9.120 to “areas

of tension” and to the proposal being “broadly acceptable” do not, in my view, indicate that

any error of law was made but rather that once again the Council concluded that although

there were legitimate concerns, the proposed development came down on the side of

[41] The relevant part of Policy T3 states that new developments must be accessible by a

range of transport modes, with an emphasis on active and sustainable transport. At

paragraph 9.121 of the report, it was noted that reliance on car borne travel and dedicated

shuttle services were a direct result of there being found to be no alternative site in a highly

sustainable, central location. The conclusion was that the proposal “would promote

sustainable travel to the extent that it is realistically possible, and would make provision for

the improvement of facilities where practicable”, including the upgrading of

pedestrian/cycle routes. The point is the same as already discussed. In my opinion, for the

reasons already given, the Council was entitled to exercise its planning judgement in

relation to accordance with Policy T3 in the context of the plan as a whole, and did not

misinterpret the plan by concluding that the proposal would broadly accord with that

[42] The next criticism was that the conditions proposed to be attached to the grant of

permission did not ensure the deliverability, prior to commencement of the development, of

the mitigation measures regarded as essential for the purposes of complying with Policy T2.

I reject that submission. As regards the controlled parking zone (CPZ) in Westhill and the

pedestrian crossing over the A944, the conditions provide for a phased approach whereby (i)

no development may be undertaken unless (in the case of the CPZ) a traffic regulation order

has been granted for its implementation and (in the case of the pedestrian crossing) a

scheme has been submitted to and agreed in writing by the planning authority; and (ii) the

stadium may not be brought into use unless the CPZ and agreed pedestrian crossing scheme

have been fully implemented. As regards the shuttle buses, the stadium may not be brought

into use unless a scheme for provision of match day shuttle buses has been submitted to and

approved by the planning authority. At paragraph 9.114 of the Report on Handling the

view is expressed that it would not be realistic at this stage to develop a detailed bus

management plan (which would encompass both shuttle buses and increased frequency of

existing bus services as described at paragraph 3.17). That in my opinion is a matter

[43] The petitioner’s next criticism was that the Council had failed to take into account

material considerations comprising the provisions of the SDP, the objections by the

ACSSDPA and by Aberdeenshire Council, and the provisions of SPP relating to sustainable

development. In my opinion there is no substance to this criticism. The points made by

ACSSDPA and Aberdeenshire Council are narrated in part 4 of the Report on Handling, and

the relevant provisions of the SDP and SPP are set out in parts 6 and 7 respectively. Without

going into unnecessary detail, it is in my view readily apparent that all of the points made

and relevant provisions have been considered and addressed in the detailed evaluation in

part 9 of the report. Reading the report as a whole leaves the informed reader in no

substantial doubt as to the reasons why the Council did not regard any of these

considerations, individually or cumulatively, as being of sufficient weight to lead to the

conclusion that planning permission should not be granted. That being so, it was

unnecessary to repeat the source of each matter in the course of the evaluation. The issues of

strategic objectives and sustainability are addressed in the evaluation and in the reasons

given for imposition of many of the conditions. It follows that no failure to take any

[44] Finally in this chapter it was submitted that the Council’s conclusion was perverse in

that it failed to attach sufficient weight to the development plan policies whose purpose was

to protect the green belt from development. This amounts to no more than a disagreement

with the Council’s assessment and does not in my view provide any justification for a

[45] The first criticism made of the Council’s application of the sequential test was that it

had failed to determine the minimum site area required for the proposed development,

whether as a single site or as two disaggregated sites. It may be noted in this connection that

the Report on Handling made clear that a number of important submissions by the

applicants had not been accepted, notably the assertion that the stadium and training

facilities had to be co-located, and the assertion that at least a 25ha single site or two 12.5ha

sites would be required. At paragraph 9.68, the view was expressed that the applicant had

not carried out the sequential approach with flexibility and realism in accordance with SPP,

ALDP policy and case law (a reference to Tesco Stores Ltd v Dundee City Council, above).

Nevertheless, the report stated that there was sufficient information to enable the planning

authority to carry out an evaluation of whether there were sequentially preferable sites in

the ALDP area when assessed against local and national planning policies.

[46] In my opinion the petitioner’s criticism runs counter to the guidance provided by the

Supreme Court in the Tesco Stores case. At paragraph 28, Lord Reed observed, in the context

“… The application of the sequential approach requires flexibility and realism from

developers and retailers as well as planning authorities. The need for flexibility and

realism reflects an inbuilt difficulty about the sequential approach. On the one hand,

the policy could be defeated by developers' and retailers' taking an inflexible

approach to their requirements. On the other hand, …to refuse an out-of-centre

planning consent on the ground that an admittedly smaller site is available within

the town centre may be to take an entirely inappropriate business decision on behalf

Lord Reed went on (at paragraph 29) to approve the observation of Lord Glennie in Lidl UK

GmbH v Scottish Ministers [2006] CSOH 165 that the question for the planning authority was

whether an alternative site was suitable for the proposed development, and not whether the

proposed development could be altered or reduced so that it could be made to fit an

alternative site. These dicta demonstrate that the developer and the planning authority are

both expected to adopt a flexible and realistic approach to what is required for a

development, but it is not for the planning authority to require the developer to restrict itself

[47] That being so, I consider that the duty incumbent upon the Council in the present

case was to assess whether there was a sequentially preferable alternative site – or sites –

which was – or were – realistically capable of accommodating the proposed development if

the necessary degree of flexibility was demonstrated by the applicant. That assessment was

to be carried out against a factual background known to the Council; it did not in my

opinion oblige the Council to make a finding in the abstract as to the minimum size of site or

sites required for a stadium and training facilities development. It was sufficient for the

Council to consider sites which would, in terms of the development plan, be regarded as

sequentially preferable if suitable and available. That evaluation is set out at paragraphs

9.72 to 9.88 and 9.102 to 9.108 of the Report on Handling. The Council began by considering

the city centre, and accepted as a matter of fact that the largest allocated site extended to

only 1.9ha, so that there was no realistic prospect of the development being accommodated

in the city centre. The Council then turned its attention to edge-of-centre sites, and accepted

evidence provided by Aberdeen FC that the existing site at Pittodrie and the available land

(extending to 4ha) at King’s Links were both too small readily to accommodate either the

new stadium or the training facilities. In my opinion it was entitled to do so in exercise of its

planning judgement, without having to express a view as to what size of site it would,

hypothetically, have regarded as sufficient. As regards Loirston, the Council’s conclusion

that there was no realistic prospect of a development being financially viable was not based

upon site size but on the projected cost to Aberdeen FC of acquisition of land at a price

representing residential market value. Again, therefore, it was unnecessary to make a

[48] At paragraphs 9.102 to 9.108, the Report on Handling considered whether there was

any other suitable, deliverable and available site at a location that was sequentially

preferable to Kingsford. Two sites (the existing Aberdeen Exhibition and Conference Centre

site at Bridge of Don and the Rowett North site allocated in the ALDP for a new conference

centre) were rejected for reasons that did not depend upon the size of the sites. Other green

belt sites were rejected not on the basis of size but because they were not environmentally

[49] In summary, therefore, the Council did not in my opinion err in law in failing to

make a determination as to the minimum site size required for a single or disaggregated

stadium and training facilities development. It fulfilled its duty to assess whether there was

an available and sequentially preferable site for the development that had been proposed,

adopting a flexible and realistic approach to what was needed for that development as

opposed to a different, more restricted one. The petitioner’s challenge accordingly fails.

[50] The next criticism was directed against the Council’s reasons for rejection of land at

King’s Links as a suitable and sequentially preferable alternative site. The Report on

Handling noted (at paragraph 9.76) that 6ha in the northern part of the site was occupied by

a golf centre and driving range and held by a tenant on a long lease from the Council until

2040. A letter had been produced from the tenant stating that it had no intention to break

the lease early. On behalf of the petitioner it was submitted that the Council as planning

authority had erred in law in being satisfied with the letter from the tenant, when what it

ought to have done was to investigate whether it, as landlord, could bring the tenancy to an

end. I accept the Council’s argument that no such duty was incumbent upon it as planning

authority. The fact that it happened to be the landlord was fortuitous; as planning authority

it was entitled to place weight on the position adopted by the tenant and not to investigate

whether a lawful means could be found to terminate the lease against the tenant’s wishes.

[51] The petitioner’s next criticism related to the reasons given in the Report on Handling

for rejecting Loirston as a viable and sequentially preferable site for the proposed

development. Those reasons, it was submitted, demonstrated an approach by the Council’s

officials to the duty to obtain “best value” that was erroneous in law, and that the Council

had accordingly reached its decision on the basis of misinformation regarding the

availability of land at Loirston. I have set out above the legislation that prohibits a local

authority from disposing of land for a consideration less than the best that can reasonably be

obtained, and the exceptions to that prohibition. Those statutory provisions were not

addressed in any detail in the Report on Handling, although at paragraph 9.87 it is

acknowledged that the market value of a site is “the starting point” for determining best

value, rather than being synonymous. That, in my view, is a fair summary of the legislation,

in a context where no party appears to have relied upon any particular exception in the 2010

[52] An important complication noted in the report was that the Council was not the

majority landowner or lead developer of the Loirston site, and that Hermiston, the lead

developer, had an obligation under the development agreement to achieve market value for

any future development. The report also referred to data provided by property consultants

as to land costs for residential, commercial/industrial and green belt land respectively. The

point being made was that, regardless of the Council’s statutory obligation to achieve best

value (which was nonetheless a material consideration), the cost to Aberdeen FC of

acquiring a site at Loirston would involve paying at least Hermiston residential value. The

critical issue identified was not, therefore, the possibility that the Council might be

permitted by law, if it so chose, effectively to subsidise a stadium development at Loirston,

but rather whether, from the point of view of Aberdeen FC as applicant, such a development

was realistically viable at all. The report’s conclusion, on the basis of the material presented

to it, that the development was not viable was one that it was reasonably entitled to reach. It

follows, in my view, that the Council was not misled by incorrect information into rejecting

[53] A further argument was presented that the Report on Handling failed to specify

what area of land at Loirston was owned by the Council. That, in my view, would have

been beside the point. The problem of land value arose in relation to Hermiston and another

developer. At paragraph 9.84, the report noted, apparently without disagreement, the

applicant’s contention that land sales and planning consents had reduced the remaining

land within Aberdeen FC’s Loirston planning application boundary to 8.3ha which was not

sufficient to accommodate either disaggregated element of the proposed development. It

followed that additional land would be required, which land, at least in so far as in the

ownership of Hermiston or the other developer, would have to be acquired at residential

market value. There is nothing in any of the materials referred to in the report to suggest

that there was land owned by the Council at Loirston which would of itself be available,

[54] The last criticism made in this chapter was that the Council had given inadequate

reasons for concluding (i) that sufficient land at King’s Links could not be made available;

and (ii) that its duty to obtain best value rendered the Loirston site unavailable for the

development. This criticism adds little to what has gone before. For the reasons set out

above I consider that the Council has given proper, adequate and intelligible reasons for its

[55] For these reasons I shall sustain the first and second pleas in law for the Council and

the first and third to seventh pleas in law for the interested party and refuse the petition.

Scottish Court of Session Decisions