James Findlay QC and Alasdair Sutherland scored a landmark victory for Grahams the Family Dairy and MacTaggart & Mickel Homes in an appeal before the Inner House of the Court of Session against a decision of the Scottish Ministers to refuse planning permission for a major development at Airthrey Kerse, Bridge of Allan.
In June 2018 the Scottish Ministers dismissed an appeal against Stirling Council’s decision to refuse planning permission for a green belt development to deliver a £20 million dairy, 600 homes, a new primary school and a public park on the grounds that it would run counter to the local development plan and result in the loss of a significant area of sensitive greenbelt. The Ministers’ decision was made over a year after receipt of their reporter’s conclusions and recommendations.
The primary issue was whether the respondents had failed to deal properly with the fact that their reporter’s conclusions and recommendations were based upon his expectation that the emerging local development plan would cure the shortage of effective housing land supply in the Stirling Council area, whereas by the time the Ministers took their decision the emerging plan had been adopted with a housing land supply shortfall. In their decision, the Ministers simply adopted their reporter’s reasons and conclusions, which included that it would be premature to grant permission before the emerging plan had been adopted, without any modification or further explanation.
The appellants argued that the Ministers had failed properly to take account of the change in circumstance and had failed properly to explain the reasons for their decision, and their decision was therefore unlawful. The court agreed. Delivering the Opinion of the Court, the Lord President, Lord Carloway, ruled that the Scottish Ministers’ decision had ‘failed to take into account a relevant material consideration; that the LDP process had been practically completed and produced a housing land supply shortage for which no solution was offered. They purported to take into account an irrelevant consideration; that there was an ongoing LDP process which would resolve the shortage in the relatively short term. For both of these reasons, the appeal must be allowed.’
This is a landmark decision for the proper planning of housing development in Scotland. The court recognised the importance of the presumption in favour of sustainable development where there is a shortage in effective housing land supply, and for the first time in a Scottish decision recognised and applied the so called “tilted balance” that applies in those circumstances.
The full decision can be viewed by following the link.
