UK: Too Interested A Party? - The Position Of The Council / Promoter

Last Updated: 17 May 2011
Article by Murray Shaw

The decision of Lord Malcolm in the case of Hallam Land Management v Edinburgh Council (2011) CSOH is interesting for a number of reasons. Of particular interest is his robust approach when dealing with a Council which as well as the planning authority was the "promoter" of a site.

This case concerns the challenge by Hallam Land Management in terms of Section 238 of the Town & Country Planning (Scotland) Act 1997 in relation to the adoption by the City of Edinburgh Council of the Edinburgh City Local Plan (an "old style" plan).

In essence the case related to specific allocations to meet a requirement in terms of the Structure Plan for 400 new houses in the "Edinburgh Urban Fringe". The City of Edinburgh Council proposed to meet that allocation on two sites, New Craighall North and New Craighall East, respectively for 200 and 220 units – sites the Council had an interest in.

Following upon a Local Plan Inquiry the Reporters recommended that the capacity on each site should be reduced (to 140 and 90 units respectively) and the balance between the total of those figures and the required allocation in terms of the Structure Plan should be made up on three sites, one of which was owned by Hallam Land Management.

The Reporters' recommendations (which were clearly detailed and well thought through) were supported by the professional officers at City of Edinburgh Council but were rejected by the Council at the planning meeting. Hallam according brought their challenge.

It is interesting to note (on the plus side) that under the new planning system a Council can only reject such recommendations on very limited grounds On the negative side there is no guarantee that the "inquiry" process would be as detailed.

The basis of the challenge was that the justification given by the Council for not accepting the recommendations of the Reporters was inadequate.

This is an area in respect of which there has been a reasonably significant amount of case law over recent years. Often Councils (the planning authority) will argue that what is involved is an application of planning judgement which the courts should not intervene in or not lightly intervene in. The judge in this case (Lord Malcolm) acknowledged that principle but made clear in this view that even in cases involving the exercise of planning judgement the planning authority must give "adequate and intelligible" reasons. In his view that meant in this case it had to be apparent that the planning authority had fully and properly considered the substantial points raised by the Reporters, must deal with the merits of the position and provide sufficient reasons for departing from the Reporters' conclusions. Lord Malcolm did accept the extent of the relevant obligation to give such reasons might depend on the circumstances.

Significantly he observed the obligations on the Council were enhanced, as the judge put it, in this case where the planning authority was both "the promoter of a site" (Edinburgh Council had a title interest) and "the ultimate decision maker". That represents the application of a healthy dose of realism that has not always applied to planning authorities.

In his view it was not sufficient for the planning authority simply to make assertions. In effect the judge applied a decision of Mr Justice Laws in Oxford Diocesan Board of Finance v West Oxford Shire District Council.

The approach of the judge in this case appears to be more onerous than that of other Scottish judges in recent cases. Contrast can to some extent be drawn with the decision (for example) of Lord Uist in the case of Penny Uprichard v Scottish Ministers (2010) CSOH105 (this case is under appeal – it should be noted in that case that at least part of Lord Uist's decision was based upon the substantial background to the Structure Plan). The extent of the reasons that required to be given in the decision letter was also considered by the Inner House in Bennett v Gordon & Scottish Ministers (2008) CSIH 21 where Lord Kingarth also observed that to some extent the position may well depend upon all the circumstances and the nature of the issues raised.

In the Hallam case the comments of Lord Malcolm are clear however. In relation to one of the sites allocated by the Council the Reporters were concerned about the possibility of mine workings. They accordingly suggested a prudent approach. The Council in response to that indicated that they understood there was no material problem. Lord Malcolm simply saw this as no more than assertion and in the absence of any justification accordingly inadequate. In relation to the other site while the reasons given by the Council for rejecting the Reporters' recommendations were more extensive again in his view they lacked sufficient reasoning and did not provide any basis or justification for the statements made. In particular he thought that the approach of the Council when contrasted to the careful and detailed treatment of the issue by the Reporters (as he termed in), were no more than a series of "glib and unsubstantiated assertions" – a trenchant comment.

Having reached those views Lord Malcolm then had to decide what the consequence was. It appeared that Counsel for Hallam and for the Council thought that the whole relevant part of the Local Plan should be quashed with the process in respect of that part of the Local Plan repeated afresh and from the beginning. Counsel for a third party submitted that the court should simply quash the relevant part of the Adopted Plan.

Lord Malcolm contrasted the position between Section 238 of the Town & Country Planning (Scotland) Act 1997 (the relevant section here) from that under Section 239 which related to other orders, decisions and directions made under the Act. In relation to these it was clear that if quashed it would then for the local authority to decide what action should be taken. The question he in effect posed was why the position should be different under Section 238 with the consequence that the entire process should be quashed. Successful challenges are rare and there has been little debate in Scotland as to the effect of a successful outcome. This is more than an academic matter – the potential effects for the Council are significant.

Lord Malcolm considered English authority on the issue (which supported the views put forward by Hallam) but came to the conclusion that he should only quash the relevant part of the Local Plan and not the process that led to that part of the Local Plan. He made the point that arguably a relatively insignificant issue could result in the whole process being quashed even though the whole process was not in itself tainted. Indeed in this case it appeared to be the position that nothing prior to 1 October 2009 (when the Committee reached the relevant decision which was in effect being challenged) was objectionable and he thought it odd according if the court sought to set aside all that had gone before even when there was no complaint in relation to that. He also thought that the wording of the Act only entitled him to quash the relevant part of the Local Plan (i.e. the end document) rather than the process which resulted in that because it was not the process itself which was referred to in Section 238.

Given the consequences of this decision it is likely that Edinburgh Council will consider whether the decision should be appealed. The issue of what steps were available to Lord Malcolm is also one that is likely to result in further debate and/or discussion.

All in all an interesting case – if the robust approach of Lord Malcolm is followed maybe the prospects for successfully challenging a planning authority will be better than they appear to have been heretofore.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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