GRAHAMS THE FAMILY DAIRY LIMITED AND MACTAGGART & MICKEL HOMES LIMITED AGAINST THE SCOTTISH MINISTERS [2019] ScotCS CSIH

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> GRAHAMS THE FAMILY DAIRY LIMITED AND MACTAGGART & MICKEL HOMES LIMITED AGAINST THE SCOTTISH MINISTERS [2019] ScotCS CSIH_3 (23 January 2019) URL: http://www.bailii.org/scot/cases/ScotCS/2019/[2019]_CSIH_3.html Cite as: [2019] CSIH 3, [2019] ScotCS CSIH_3, 2019 GWD 5-67, 2019 SCLR 861, 2019 SLT 258

Respondents: Crawford QC, Van der Westhuizen; Scottish Government Legal Directorate

[1] This is an appeal against a decision of the respondents, dated 18 June 2018,

dismissing an appeal against Stirling Council’s decision to refuse planning permission for a

development in the green belt. The development was for 600 housing units (including

affordable housing), a public park, commercial space (neighbourhood centre),

improvements to road and drainage, and a new primary school, located between Bridge of

Allan and Causewayhead. The primary issue is whether the respondents failed to take into

account a relevant consideration or took into account an irrelevant one, notably in

connection with the outcome of a local development plan process, which had occurred

between the date of a reporter’s recommendation to the respondents and their decision

[2] Scottish Planning Policy attempts to deliver the objectives of the National Planning

Framework, which provides for Scotland's long-term spatial development as envisaged by

the respondents (Town and Country Planning (Scotland) Act 1997, Pt 1A). A key

component in SPP is “a presumption in favour of development that contributes to

“28. The planning system should support economically, environmentally and

socially sustainable places by enabling development that balances the costs and

benefits of a proposal over the longer term. The aim is to achieve the right

development in the right place; it is not to allow development at any cost.”

One of the requirements of SPP is the maintenance of an effective housing land supply.

Planning authorities “123. ... should … ensure a generous supply of land for house building

is maintained and there is always enough effective land for at least five years”.

[3] Planning decisions require to be made in accordance with the relevant local

development plan, “unless material considerations indicate otherwise” (1997 Act, s 25(1)).

Where a shortfall in the 5-year effective housing land supply exists, LDP policies for the

supply of housing land will not be considered up-to-date (SPP, para 125). Where that

occurs, the status of the sustainable development presumption is elevated from a “material”

(para 32) to a “significant material” (para 33) consideration. In that situation:

“Decision-makers should also take into account any adverse impacts which would

significantly and demonstrably outweigh the benefits when assessed against the

[4] If an LDP is under review, it may be appropriate to consider any prejudice to a new

“34. ... is so substantial, or its cumulative effect would be so significant, that to

grant permission would undermine the plan-making process by predetermining

decisions about the scale, location or phasing of new developments that are central to

the emerging plan. Prematurity will become more relevant as a consideration the

[5] Regulation 13 of the Town and Country Planning (Appeals) (Scotland) Regulations

2013 provides that, if an appointed person (reporter) proposes to take into consideration any

new evidence which is material to the appeal, the appellant and the planning authority must

[6] In September 2014 the appellants sought permission for their development from

Stirling Council. The report from the Council’s planning officials had recommended

approval because: the benefits of the development would outweigh non-compliance with

the LDP (green belt), which had been adopted in 2014; significant weight had to be attached

to SPP, which provided for a presumption in favour of sustainable development; the SPP

outweighed the LDP; and a proposed Agreement under section 75 of the 1997 Act and the

imposition of planning conditions could mitigate the impact of the development.

[7] On 23 March 2016, following a pre-determination hearing and contrary to the advice

of their officials, the Council refused permission. The reasons for refusal, were that: the

benefits of the development would not outweigh the disadvantages arising from non-

compliance with the LDP; and the section 75 agreement would not satisfactorily mitigate the

impact of the development, in connection with the erosion of the green belt and flooding

[8] The appellants appealed to the respondents under section 47 of the 1997 Act. The

respondents resolved to determine the appeal themselves (1997 Act, sch 4, para 3(1)), rather

than have a reporter do so, because: the development involved over 100 residential units;

high priority was placed on the delivery of good quality housing; and the respondents

played an important part in the monitoring of the practical application of SPP. On

11 October 2016 the respondents appointed a reporter to examine and report on the appeal.

In January 2017 the reporter requested information on the relevance of a replacement LDP,

which was then being developed, and the weight to be attached to it in the context of any

potential prejudice which might be caused to it by the grant of permission for the

development. The parties were agreed that the emerging LDP was relevant, but disagreed

on the weight which might be attached to it. On 1 June 2017, the reporter recommended

[9] The report identified the principal issues in the appeal as being the impact on the

green belt, flooding and transportation. Other matters included economic benefits, enabling

development, infrastructure improvements, the emerging LDP, the historic environment

and visual impact. The report explained that the development would meet a number of SPP

objectives, which could be improved during the detailed design phase. These were local

and city wide economic benefits, including the provision of: construction and other local

jobs; affordable housing; businesses, both retail and leisure; easy access by road, public

transport and on foot; support for infrastructure; improvement in terms of flood prevention;

[10] The report acknowledged (para 2.12) that there was a shortfall of 896 housing units

in the land which had been identified in the extant LDP as suitable for housing. That

requirement, minus completions, was for 4,536 units, giving an annual target of 504 to the

end of the 10 year plan period in 2024. The effect of this was that the LDP had identified an

effective supply of only 3.2 years. The LDP was thus deemed out of date. The reporter

reasoned that the development would “only address this shortage in part, as the

programmed delivery of the housing is mostly beyond the five years’ supply shortfall”.

This reasoning was based upon the development having a ten year programme. There were

several constraints to be overcome before the grant of permission in principle could result in

houses being built. These constraints, including drainage, road infrastructure, conditions

and legal agreements, could take more than a year to resolve. The appellants’ phasing

showed a maximum of 225 houses being built in the first four years and 350 within five.

Given the lead in time, the reporter determined that a maximum of 175 units would be built

within the five years and thus contribute to the elimination of the shortage. It could be

greater or lesser. In relation to the replacement of the deemed out of date LDP, the reporter

concluded that there was an “expectation” that it would “8.5 ... properly address the

shortfall before any housing is built on this site if the appeal is allowed”.

[11] The report noted that the development would be contrary to the existing LDP, which

sought to protect the green belt from development. There would be:

“8.6 ... a significant reduction in the separation of the settlements at Bridge of

Allan and Causewayhead, Stirling. This would be noticeably more pronounced by

the local topography and the isolation of the remaining section of green belt and its

“8.11 Taking all the issues into account... a judgement on the appeal comes down to

the weight to be given to the current development plan policy in relation to the green

belt, set against the expectations of SPP for sustainable development and providing a

housing land supply. The importance of the green belt in this location has been

highlighted ... and there is no doubt that many local people value the contribution

this site makes to the separation and retention of identity of the two communities of

Bridge of Allan and Causewayhead. At the same time, the proposal would make a

contribution to the shortfall in housing land supply, including affordable housing,

whilst providing for the infrastructure requirements it would generate. The proposal

[12] Given that a new LDP was in formation, the reporter considered that the grant of

“8.13 ... have a prejudicial effect on a central aspect of the emerging LDP, namely

the location of sufficient housing land for a five years’ effective supply and the extent

of the green belt ... [T]his is a relatively significant and contentious issue which

should be considered by LDP examination. ... it would be premature to grant

“8.14 Weighing up the benefit of part of the scheme to housing land supply and the

benefits of the scheme in terms of local infrastructure against the total harm to the

green belt, ... the green belt in this location is of such sensitivity, that it carries

considerable weight. Housing should be planned for and provided in the context of

the new LDP. ... The SPP presumption in favour of the development is a significant

material consideration in this case, but, in the light of the scale of development

related to its impact on housing land supply shortfall, I do not consider that this is

sufficient to outweigh the development plan presumption against allowing the

The overall conclusion was that the development would be “8.15 ... contrary to the

development plan and that material considerations do not indicate that it should be

[14] The report was not, at that stage, disclosed to the parties.

[15] After the report had been submitted, it ultimately became apparent to the reporters,

who had been appointed by the respondents to examine the emerging LDP, that, rather than

providing an effective five year supply of housing land, as the reporter in the appeal had

anticipated, it would produce a shortfall of 169 units. Homes for Scotland, who represent

many in the housebuilding industry, later contended that even this was out of date and the

shortfall could be as much as 897. When the new LDP was approved by Stirling Council in

[16] The respondents’ officials presented a submission on the appeal to the respondents

on 17 May 2018. The delay which had occurred by then was attributed to a previous

decision to await the adoption of the emerging LDP; the timing of which had “slipped”. The

LDP had been approved by the Council for adoption on 3 May 2018, although that would

not formally occur until October 2018. The submission drew the respondents’ attention to

the reporter’s acknowledgement that the emerging LDP ought to have identified sufficient

sites to resolve the then shortage according to the existing LDP of some 896 units. The new

LDP had, however, after the identification of an arithmetical error, produced the 169 unit

shortfall. The SPP presumption in favour of development was therefore a “significant

material consideration”. The submission went on to summarise the report by stating that

the reporter did not consider that the presumption, as a material consideration, or the

development’s benefits outweighed the LDP’s green belt policy.

12. Taking all the issues into account, a judgement on the appeal comes down to

the weight to be given to development plan policy in relation to the greenbelt, set

against the expectations of SPP for sustainable development and providing a

13. The reporter acknowledges that the proposal would in some ways contribute

to sustainable development and helping to meet the housing shortfall. However, the

proposal is also a major development at a strategic scale, would result in the loss of a

significant area of sensitive greenbelt and is considered contrary to the development

plan. The green belt provides an important gap between Causewayhead and Bridge

of Allan, preventing further coalescence of settlements. ... Overall, the appeal

reporter concluded that neither the contribution to the housing land supply nor the

benefits of the scheme in terms of sustainability or local infrastructure are sufficient

material considerations to outweigh the development plan particularly the harm to

the green belt in this sensitive location and further coalescence of settlements.

14. SPP requires that planning applications must be determined in accordance

with the development plan unless material considerations indicate otherwise. SPP

aims to achieve the right development in the right place, not to allow development at

any cost. We therefore agree with the reporter’s overall conclusions and

recommendation that the proposed development does not accord overall with the

relevant provisions of the development plan and that material considerations do not

indicate that the appeal should be allowed. We are satisfied that the site has recently

been assessed through examination, and was not considered suitable for housing.

The site remains as greenbelt in the emerging LDP2. We conclude that there are no

planning reasons for us to recommend a departure from the reporter’s

15. On balance it is recommended that you agree that the appeal is dismissed

[18] In a section entitled “Presentation” it was suggested that a press release should read,

“Having carefully considered the reporter’s report, [the respondents] agreed with the

reporter’s recommendation and have refused planning permission in principle. The

proposed development does not accord overall with the relevant provisions of the

development plan due to the loss of an important area of greenbelt and coalescence

[19] The respondents’ decision, which was issued on 18 June 2018, dismissed the appeal

and refused planning permission. The decision letter simply stated that the respondents

accepted the reporter’s conclusions and recommendations and “adopt them for the purpose

of their own decision”. The letter gave no further reasons. It did not refer to the reporter’s

prior unrealised expectation that the new LDP would “properly address the shortfall before

[20] With the exception of their second ground of appeal, the appellants did not challenge

the content of the report to the respondents. Their criticisms were directed towards what

had happened after the report had been submitted. As at the date of their decision, the

respondents were bound to take into account all material considerations (1997 Act, s 25;

North Lanarkshire Council v Scottish Ministers 2017 SC 88 at paras 25-28). If the respondents

were (or ought reasonably to have been) aware of a material consideration at the time of

their decision, they were bound to take it into account (R (Kides) v South Cambridgeshire DC

[2003] 1 P&CR 19 at para 125). If they did not do so, and there was a real possibility that it

would have made a difference, the decision would be invalid (see eg Carroll v Scottish

[21] The grounds of appeal were, first, that the respondents erred by failing to take into

account that the new LDP had been approved for adoption with the housing land supply

shortfall of 169 units; a position not anticipated by the reporter. The respondents failed to

take into account that the actual shortfall could be as much as 897 homes. The respondents

appeared to have taken account of the prejudice to the LDP process, as described by the

reporter, when that process had been almost complete and was no longer a relevant

consideration. The reporter had contemplated that the relevant material considerations,

including the development’s contribution towards sustainable development, indicated that

permission in principle could be granted. There was a real possibility that the respondents

would have reached a different conclusion if they had not left out of account a relevant

consideration and taken into account an irrelevant consideration. In that context, there was

a “tilted balance” in favour of development. What required to be assessed was whether the

adverse impact on the green belt “significantly and demonstrably” outweighed the benefits

of the development (SPP paras 33 and 125; Hopkins Homes v Communities Secretary [2017] 1

[22] In reaching his recommendation, the reporter had taken into account that, when the

new LDP was in place, there would be no shortfall. He had thought that the development

would have a limited impact on any shortfall. He had taken into account the prematurity of

the application, given the development of the new LDP. There was no indication that the

new LDP would remedy the shortfall within a reasonable time. The respondents’

contention, that the reporter’s reasoning had not proceeded on the basis that any shortfall

would be remedied, was incorrect. Whilst there was a shortfall, both at the time of the

report and the decision, the level of that shortfall was also material (Hallam Land Management

v Communities Secretary [2019] JPEL 63 at paras 47 and 51-52). Homes for Scotland had

[23] The respondents accepted that they had been aware that the new LDP had produced

a shortfall. If so, they were bound to take it into account and, in terms of regulation 13 of the

2013 Regulations, to allow the appellants and the Council to make representations upon it.

If the respondents had taken the shortfall into account, which was unclear from their

adjusted answers, they failed to explain how they reached their decision, having regard to

[24] In terms of the second ground of appeal, the respondents erred in taking into

account the reporter’s finding that a maximum of only 175 units would contribute to the

reduction in the housing supply shortage. The evidence had been that the proposed

development would contribute 450 units in the first five years of development, or 350 if the

first year were discounted. The effectiveness of the proposed development to achieve that

rate had not been challenged. There was no evidence before the reporter to support his

conclusion that the appellants’ phased strategy showed a maximum of 225 units being built

in the first four years or that the maximum was 175. The reporter had not been entitled to

reach these conclusions on the evidence. There was a real possibility that the respondents

would have reached a different conclusion, if they had not taken into account the reporter’s

findings in this regard. Again, alternatively, the respondents had failed to give proper,

adequate and intelligent reasons in respect of the potential contribution to the housing land

[25] The respondents maintained that paragraphs 33 and 125 of the SPP did not alter the

approach as set out in section 25 of the 1997 Act. The respondents had to decide the

application in accordance with the LDP, unless material considerations indicated otherwise.

The LDP had been deemed out of date at the time of both the report and the decision, thus

triggering the presumption in favour of sustainable development. The weight to be attached

to the presumption became a matter for planning judgment; balancing the presumption

against the impact on the green belt policy. The recommendation in the report had still been

valid at the time of the respondents’ decision. The reporter’s recommendation, that the

appeal should be refused, and the respondents’ subsequent decision had been determined

on the basis of a balancing exercise between the protection of the green belt on the one hand

and the expectations of SPP for sustainable development and housing land supply on the

other. They had not been determined on the basis of the new LDP. The new LDP’s

relevance was no more than as confirmation that the factual matrix remained the same, both

[26] The policies in the existing LDP did not all become out of date. It was still possible

to attach weight to them (Hopkins Homes v Communities Secretary (supra)). The extent of the

housing supply shortfall was not material. The reporter had recognised that the

development was on land designated as green belt in the existing LDP and not zoned for

housing in the proposed LDP. He had considered that the development in the green belt

would be contrary to the LDP. He had recognised that SPP was a significant material

consideration, in so far as it contributed to sustainable development and the maintenance of

a minimum five year housing supply. That notwithstanding, the protection of the green belt

outweighed the SPP. The respondents similarly determined the appeal on that basis. The

respondents knew, at the time of their decision, that the proposed LDP had been finalised

[27] The relevance of the new LDP to the reporter had been in the context of prematurity.

It had not affected his balancing decision. The LDP had become irrelevant. That was a self-

evident matter of fact. There was no need for the respondents to add a postscript to deal

with it. The parties were assumed to have known what the outstanding issues were.

[28] Adequate and intelligible reasons had been given in the report and in the

respondents’ determination. The change from a surplus to a shortfall, which occurred in

relation to the examination of the new LDP after the reporter had issued his report, was not

a material consideration or new evidence requiring an opportunity for the appellants to

[29] Although the appellants had referred to a build rate of 450 units in the first five years

of the development, this had been under reference to a phasing strategy. This had indicated

a rate of 225 units in the first five years. There was accordingly evidence before the reporter

to support his conclusion. The reporter had been entitled to estimate a maximum of

175 houses, as contributing to the elimination of the housing supply shortage, taking into

account a lead time of more than a year to deal with matters subject to planning conditions

[30] The court is concerned only with the legal validity of the respondents’ decision and

not with matters of planning judgment. A decision will be regarded as invalid where the

decision maker has failed to take account of a relevant consideration or taken into account

an irrelevant one (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, LP

(Emslie) at 347-8). The respondents’ decision is contained exclusively in their letter of 18

June 2018, which adopted the reporter’s conclusions and recommendations simpliciter. The

questions then are, first, whether the material considerations, which were taken into account

by the reporter, and which had been so adopted, remained relevant at the time of the

decision and, secondly, whether there were material considerations, which had emerged

since the report, which were not taken into account by the respondents. If one or more of

the reporter’s material considerations had become irrelevant, but was still taken into account

by the respondents, or if a new material consideration had emerged which was not taken

[31] The material considerations which the reporter took into account are expressed in

clear and unambiguous terms in the conclusions to his report. One critical factor was that

the reporter was proceeding (para 8.5) on the basis that the emerging LDP would “properly

address the shortfall” before any houses could ever be built on the development site. This

was a material consideration (“all the issues”) which the reporter then took into account

(para 8.11) when he conducted his analysis of the competing values of the green belt and the

SPP presumption in favour of sustainable development. A second factor, and one which

was undoubtedly material (para 8.13) in the reporter’s recommendation, was that the grant

of planning permission would have a prejudicial effect on the location of housing land,

which was sufficient to provide a five year supply, in the new LDP. However, the

significance of the new LDP was not just in the context of prematurity. The reporter had

considered (para 8.14) that what was a “significant and contentious issue”, that is the

conflict between an adequate housing land supply and the importance of the green belt,

ought to be considered in the context of the wider LDP examination, rather than in an

individual appeal. It is significant that, when he came to weigh the balance, the reporter

specifically commented (ibid) that: “Housing should be planned for and provided in the

context of the new LDP”. This view reflects SPP (para 34) that the grant of permission for a

[32] In arriving at his conclusion, the existence of an ongoing LDP process, which the

reporter anticipated would satisfactorily address the housing land supply shortage, was a

material consideration not only on the prematurity point but also in his assessment of the

correct planning balance. Once that consideration had ceased to be part of the equation, it

was incumbent upon the decision maker to re-calibrate the balance and determine where the

scales came to rest in a situation in which not only had that consideration ceased to be

material but also a new LDP had produced a housing land supply shortage in respect of

which there was no apparent solution. This itself became a new material consideration. It

may be correct to say that there was a shortage both at the time of the report and the point of

the decision. The difference, and it was an important one to the reporter, was that at the

time of the report it was anticipated that the shortage would soon be resolved. At the time

[33] The respondents therefore failed to take into account a relevant material

consideration; that the LDP process had been practically completed and produced a housing

land supply shortage for which no solution was offered. They purported to take into

account an irrelevant consideration; that there was an ongoing LDP process which would

resolve the shortage in the relatively short term. For both of these reasons, the appeal must

[34] The respondents were bound to regard the change brought about by the approved

LDP as a material change in circumstances. Although it may not strictly fall within the

ambit of regulation 13 of the Town and Country Planning (Appeals) (Scotland) Regulations

2013, it would certainly have been within the spirit of that regulation to allow the parties to

address the significance of this change before making a decision. It was incumbent upon the

respondents to do so as a matter of fairness. When the matter falls to be reconsidered by the

respondents, it will be for them to determine how that is to be done in terms of procedure.

[35] The respondents’ wholescale adoption of the reporter’s reasoning betrays a

somewhat careless approach to decision making or at least the provision of adequate

reasons; since it adopts a ground for refusing permission (prematurity) which was, on any

view, no longer valid. It is not a sufficient explanation now to assert that the redundancy of

the reason would be obvious to the parties and therefore did not require to be dealt with at

[36] The parties to the appeal are entitled to reasons for the decision which “leave them in

no real and substantial doubt as to what the reasons for it were and what were the material

considerations” (Wordie Property v Secretary of State for Scotland (supra) LP (Emslie) at 348,

followed in RSPB v Scottish Ministers 2017 SC 552, LP (Carloway) delivering the opinion of

the court, at para [226]). The respondents cannot be expected “to address, line by line, every

nuance of every matter raised” (Uprichard v Scottish Ministers 2013 SC (UKSC) 219, Lord

Reed at para [48]). They must, however, in this case address how they have approached the

“tilted” balancing exercise which the housing land shortage requires (SPP paras 33 and 125;

Hopkins Homes v Communities Secretary [2017] 1 WLR 1865, Lord Carnwath at para 59, Lord

Gill at para 80). In particular, they must make it clear whether and how, in accordance with

SPP (paras 33 and 125), they regarded the shortage as a “significant material consideration”

(cf the conclusion and recommendation in the submission to the respondents and the

proposed press release) and the extent to which they regarded the green belt as

“significantly and demonstrably” outweighing or otherwise the benefits of the development.

[37] Two matters require to be addressed for completeness. First, the reporter, as a

specialist in planning matters, was entitled to reach a broad view, based upon his own skill

and experience as well as any specific material before him, on the annual build capacity of

the development site. Although the appellants had submitted that they could achieve a total

of 450 units in five years, they had produced a phasing strategy which had described a

maximum of 225 houses in those years. There was ample material before the reporter to

suggest that this was optimistic given the infrastructure constraints; especially those relating

to flooding, drainage and transport. The reporter was entitled as a matter for his judgment

to regard 175 units as a reasonable estimate for the level of contribution to the elimination of

the five year supply shortage. The second ground of appeal falls to be rejected.

[38] Secondly, the figure of 897 units estimated by Homes for Scotland was not one which

found its way as established fact into the new LDP. It did not become a material

consideration merely by being advanced by that organisation. There was no obligation for

the respondents to take account of a figure which had not been proved to be accurate.

[39] The appeal is allowed and the decision of 18 June 2018 is quashed.

Scottish Court of Session Decisions