Planning History is not History

Scotland

Background

Ogilvie Homes Limited (“Ogilvie”) recently succeeded in a statutory appeal against the decision of a Reporter to refuse planning permission for a residential development in Cumbernauld on appeal. The proposed development was for the construction of nine detached two storey houses, with seven houses in the main area of the development and a further two houses in another area separated by a road.

Prior to lodging the application in question, Ogilvie had twice previously sought planning permission to develop the site. The first of these applications was in 2015, where they proposed a development of 11 houses. This original proposal included the same elements as the most recent application but with the addition of two further houses in another area separated by another road. Planning Permission was refused by the planning authority on the basis that it was contrary to policy DSP4 parts 3(a) and (f) and there were concerns about access and the road layout. On appeal, the Reporter concluded that the proposal was in accordance with these provisions of DSP4. However, the appeal was still refused on traffic grounds.

In February 2017, Ogilvie lodged a second application for the same eleven houses with a revised roads layout and arrangement with a view to resolving the traffic concerns which resulted in refusal of the previous proposal. The planning authority again refused permission on the basis that it was contrary to DSP4, despite the Reporter’s conclusions. On appeal, the Reporter stated that he had regard to the earlier appeal decision. However, he refused the appeal on the basis that the revised proposal would not protect landscape features under other provisions of DSP4. The revised layout would have resulted in the removal of trees which the Reporter concluded made a valuable contribution to the character and amenity of the area. In an ecological report that was not available to the previous Reporter, it was also noted that the trees due to be felled had “the greatest potential for bats”.

The most recent application in question was lodged in July 2019 and removed the houses in one of the separate areas which contained the landscape feature which formed the basis for the second refusal.  The planning authority again refused permission on the basis of adverse impacts on amenity. A third Reporter then proceeded to refuse the appeal in January 2020 and in doing so, reached his own view that the proposal was, overall, contrary to DSP4.

Arguments

In summary, Ogilvie submitted that the reporter had failed to properly interpret and consider the relevant DSP4 and HCF1 policies properly for the following reasons:

  1. Part 1 of DSP4 only required the submission of an adequate appraisal and did not set out criteria for the assessment of proposals as the Reporter had interpreted it.

  2. Part 2 of DSP4 required consideration of whether it was appropriate in the context of the proposal to safeguard or enhance existing rights of way or features of natural or historic environmental interest, which the Reporter did not do.

  3. Part 4 of DSP4 required consideration of whether adequate provision had been made for landscape open space and links to and enhancement of open spaces and green networks, which the Reporter did not do.

  4. The main area of the development was not a “community facility” for the purposes of policy HCF1B of the local development plan (“LDP”), contrary to the Reporter’s approach.

Ogilvie also argued that the previous appeal decisions, made in the same policy context, were material considerations which the Reporter failed to take into account.

In summary, the Scottish Ministers argued that the appeal essentially turned on whether the Reporter was entitled to conclude that the need to preserve what he considered to be a valued community facility was outweighed by the factors supporting the approval of the development. It was argued that these were matters of planning judgment on which the Reporter took a view that was reasonably open to him, and the courts should not interfere with that judgment.

It was also argued that the previous planning appeals had been refused on different grounds and the weight to be attached to previous planning decisions was a matter for the Reporter and he was entitled to place no weight (or very little weight) on them. The Scottish Ministers also argued that the previous decisions gave no indication that consent would be forthcoming if the issues identified in those decisions were resolved.

Decision

The Inner House held that there were three errors with the Reporter’s decision. First, it found that the purpose of policy DSP4 was to ensure that proposed developments were of sufficient quality and it was not concerned with whether or not there should be any development on the site. The Reporter therefore erred in using policy DSP4 to find that there should be no development at all.

Secondly, it was concluded that the Reporter was not entitled to find that the main area of the development was a “community facility” in terms of the LDP just because a particular area is regarded by the community as “an important asset for the community in its own right”. Community facilities, including the separate area in which the 2 houses were located as part of the development, were identified and coloured yellow in the plans forming part of the LDP. The main area of the development was not coloured yellow so it was not open to the Reporter to find that it was a community facility for the purposes of HCF1B.

The third error was one which the Inner House stated was “perhaps of greatest concern in the general context of the planning process”. That error was the failure of the Reporter to take proper account of the previous planning decisions and to explain why different conclusions were reached.

The court reiterated that, although reporters are not legally bound by previous decisions, it is still important for them to have regard to the decisions to ensure a level of consistency in their decision making and should they wish to base their decision on entirely different reasoning than was previously stated, they should clearly justify why. It is not sufficient to acknowledge the previous decisions and state that the proposal was being reconsidered on its merits.

Comment

This case provides an important reminder on two key issues of planning law.

First, it emphasises that the interpretation of planning policies is a matter of law and that the courts have a role in deciding what planning policies mean and therefore how they should be applied. Planning authorities, Reporters and the Scottish Ministers must therefore consider carefully what the wording of a policy means, and what they are being asked to do, before exercising their planning judgment in assessing whether a proposal complies with the policy.

However, the clear statement from the Inner House on the role of planning history in planning decisions is likely to be of greater significance. The court suggested that developers would, not unreasonably, expect or at least hope that approval would be forthcoming if they submit a revised proposal which resolved the issues identified in a previous proposal.

It is important, as a matter of public policy, that decision makers have regard to the principle of consistency in decision-making. Planning authorities, Reporters and the Scottish Ministers will need to have regard to previous planning decisions when determining any proposals and have proper reasons for not following the conclusions of those decisions. If not following the previous decisions, they will need to explain the basis on which they are departing from or distinguishing that decision.

Article co-authored by Celine Skinner.