Planning & Environment

In the Grahams Dairy case, the Scottish Ministers took 1 year to decide to follow the recommendation from the reporter to dismiss the appeal against refusal of planning permission for a 600 house development.

The Court of Session quashed the Ministers’ decision, for failing to take account of the housing land supply situation at the time of their decision.

Overview

  • What counts are the material considerations when the decision is made
  • If there is a material change in circumstances prior to the decision, the parties should be given an opportunity to comment on the significance of the change, before the decision is made

Background
The Ministers refused the Grahams Dairy appeal on 18 June 2018. The decision letter stated they accepted the reporter’s conclusions and recommendations and “adopt them for the purpose of their own decision.” The letter gave no further reasons.

The reporter’s report was dated 1 June 2017, just over a year before the Ministers issued their decision.

The appeal reporter had anticipated that the emerging LDP would provide an effective 5 year supply of housing land. However, when the new LDP was approved in May 2018 (almost a year after the reporter’s report), it confirmed a shortfall of 169 units.

Court decision
The Court held that, in adopting the reporter’s conclusions and recommendations, the Ministers had both failed to take into account a material consideration (the 169 unit shortfall), and taken into account an irrelevant consideration (what had been the ongoing LDP process which was anticipated to resolve housing land supply issues).

The Court also criticised the reasons given by the Ministers:

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provision of adequate reasons; since it adopts a ground for refusing permission (prematurity) which was, on any view, no longer valid.

Comment

This decision of the Court of Session is a straightforward application of established principles and does not say anything new.

Ironically, it might have been the delay since receiving the report which encouraged the Ministers to issue the decision without seeing fresh submissions from the parties.

Next steps
The appeal must be redetermined by the Scottish Ministers. They will presumably seek submissions from the parties on all material changes in circumstances since the report was completed. Whether that results in a different decision, ie. a grant of planning permission, remains to be seen.

Neil Collar

Neil Collar

Partner at Brodies LLP
Neil is a partner at Brodies LLP and consistently rated as one of Scotland’s leading planning lawyers. He is well known for both his planning inquiry advocacy and his advisory work. Neil has a particular interest in renewable energy developments.
Neil Collar