Planning & Environment

The Court of Session has upheld the decision by Moray Council to vary the planning permission for the Springfield Retail Park in Elgin, from bulky goods to non food retail (Robertson Property Limited v Moray Council).

This is the latest in a series of failed legal challenges: Dundee, East Kilbride, and Tain.

The approach taken by the Court is familiar from those previous cases: the application of the sequential test is a matter for the planning judgment of the decision-maker, and the court will be reluctant to intervene; also, the committee report has to be read as a whole.

Points of interest:

  • the committee hearing was an opportunity to discuss and challenge the contents of the committee report, so the petitioners could not complain to the Court about an alleged misdirection in the committee report, which they had not mentioned at the committee hearing
  • the committee were entitled to proceed on the basis that they had sufficient information and knowledge about alternative locations, without insisting that a separate analysis of these be carried out by the applicant
  • it makes sense for cumulative retail impact to be assessed on the basis of committed developments, for which planning permission has been granted, rather than trying to factor in developments for which permission might be granted in the future
  • it is undesirable for the court to construe comments by councillors in the somewhat microscopic manner reflected in the petitioner’s’ argument
Neil Collar