Jordanhill Community Council v Glasgow City Council [2018] CSOH 11

A judgment by the Court of Session last month looked at the actions of Glasgow City Council (the "Planning Authority") in relation to its decision to grant planning permission in principle for a housing development to be built at the Jordanhill campus of the University of Strathclyde (the "Development").

Jordanhill Community Council (the "Community Council") brought a petition for judicial review against the Planning Authority’s decision to grant planning permission in principle for the long-running proposal. The Community Council challenged the decision on the basis that the Planning Authority, when making its decision, had not properly carried out its statutory duty under the Town and Country Planning (Scotland) Act 1997 (the "1997 Act") by failing to take into account material considerations and by proceeding on an incorrect factual basis. The Community Council argued that these failings arose as a result of the length of time between the Glasgow City Council Planning Committee (the "Planning Committee") making a resolution to grant planning permission in 2013, and the planning permission in principle being granted in January 2017.

In her decision, Lady Wolffe dismissed the Community Council’s arguments, ruling in favour of the Planning Authority.

The Background

The application for the Development was first submitted to the Planning Authority in 2011. The Planning Authority advertised the application as being potentially contrary to the development plan – particularly in relation to the use of green space – and as affecting a listed building.

In 2013, the Planning Committee resolved to grant planning permission in principle subject to various planning conditions and the completion of two agreements under Section 75 of 1997 Act.

Following the completion of the Section 75 Agreements, the Planning Authority granted planning permission in principle for the Development in January 2017.

The Community Council challenged this decision. It argued that there had been a material change in circumstances between the Planning Authority’s policies and position in 2013, as compared to the circumstances when the decision was made in 2017. In particular, the Planning Authority’s policy in relation to green space and traffic and transport had changed in the intervening period. That being the case, the application should have been referred back to the Planning Committee to be determined again, in accordance with the development plan and material conditions at the relevant time – January 2017. By failing to do so, the Community Council submitted that the Planning Authority had failed to take account of a material consideration when reaching its decision.

The Challenge

The focus of the Community Council’s challenge was on the Planning Authority’s use of plans to identify green space connected to the Development. Such green space being an area the housing developer had committed not to build upon. The areas identified as green space in the materials used by the Planning Committee to reach its resolution in 2013, were no longer identified as such by the time the decision was made in 2017. In the Community Council’s view, this constituted a material change which ought to have required the application to be remitted back to the Planning Committee.

It was agreed between the parties that, as a general principle of decision-making, where a new factor arises between the resolution to grant planning permission and the planning permission being issued, the application ought to be referred back to the planning committee where this new factor could be regarded as a material consideration. If choosing not to refer an application back, a planning officer must be satisfied that the planning authority is (1) aware of the new factor, (2) has considered it in relation to the application and (3) that even if it was to reconsider the application, the planning authority would reach the same decision. If a planning officer cannot be satisfied that these three parameters apply, yet does not refer the application back to the planning committee, it will be a breach of the planning authority’s statutory duty.

Under this argument, reference was made to the Leckhampton criteria (derived from the case of R (Leckhampton Green Land Action Group) v Tewkesbury Borough Council); such criteria being the converse of the three parameters referred to above.

It was the position of the Community Council that this applied in relation to the question of green space. The application ought to have been referred back to the Planning Committee. The Community Council also submitted that the same criteria should have been assessed in respect of matters relating to traffic impact and public transport provision, which it considered were materially different to the position which had been considered in 2013. These too were material considerations which ought to have been taken into account by the Planning Committee before the planning permission was issued.

The Planning Authority argued that these matters were not a change of circumstances which were sufficiently material to merit being referred back to the Planning Committee. Furthermore, the Development has planning permission in principle – such matters relating to green space, traffic and transport provision, would require to be assessed at the later stage in the planning process, under an application for approval of matters subject to condition.

The Decision of the Court

Lady Wolffe dismissed the Community Council’s Petition.

The Court held that the Leckhampton criteria did not apply. The Community Council had not demonstrated that the changes in green space provision, and changes to transport provision and traffic impact, were sufficiently material so as to be considered new material.

However, the Court went further and highlighted that even if the Community Council had been successful in demonstrating that there had been a material change in the policies and matter relating to green space, traffic and transport between 2013 and 2017, it would still not have been enough to engage the third aspect of the Leckhampton criteria – i.e. there would still have been no real possibility that the Planning Committee would have reached a different decision even if this subject matter had been drawn to its attention before the planning permission was issued in 2017.

There had been no error in law in not remitting the application back to the Planning Committee and the Planning Authority had not left a material consideration out of account when issuing the planning permission in principle.

Commentary

There were various matters under consideration in this case. As the history to the case shows, this is an application for a Development which has been many years in the planning, with considerable opposition to the proposals. The time between the resolution to grant planning permission in principle in 2013, and the decision notice finally being issued in 2017, is accounted for by the time taken to conclude the two required Section 75 Agreements. For large developments, with considerable levels of public interest, it is not uncommon for it to take many months, or even years, for Section 75 Agreements to be concluded.

With most Section 75 Agreements being handed over to lawyers to conclude, it is important for all parties involved to be conscious of the length of time the negotiations are taking, and to remain aware of the changes to the Planning Authority’s policies being made during that time. If there have been changes, a judgment has to be made by a planning officer as to whether the criteria requiring a re-consideration of the an application are met.