Grahams the Family Dairy Limited and MacTaggart & Mickel Homes Limited v The Scottish Ministers [2019] CSIH 3

A recent decision by the Inner House of the Court of Session considered whether the Scottish Ministers had failed to take into account a material consideration, or had taken account of an irrelevant consideration, when determining a planning appeal.

The Background

In September 2014, Grahams the Family Dairy and the housebuilder, MacTaggart & Mickel made an application to Stirling Council for planning permission for a housing development. The proposals were for 600 housing units together with associated development including a public park, commercial space and a new primary school. The proposed development was to be located in an area of green belt land between Bridge of Allan and Causewayhead.

Planning officers recommended that the application should be approved. While it was contrary to the Local Development Plan (LDP), they considered that there were benefits from the development which would outweigh its non-compliance with the LDP. Despite this recommendation for approval, Stirling Council decided to refuse to grant planning permission. The Council did not consider that the benefits of the proposed development outweighed its non-compliance with the LDP – particularly in relation to it being sited in an area of green belt land. The Council’s decision was taken in March 2016.

The Appeal

Thereafter, Grahams and MacTaggart & Mickel (the Appellants) appealed the Council’s decision to the Scottish Ministers (the Ministers). The Ministers resolved to determine the appeal themselves, rather than delegate the decision to a Reporter. This was on the basis that the proposed development was for over 100 residential units, and the delivery of good quality housing was a Scottish Government priority. A Reporter was appointed to examine and report on the appeal, and to make a recommendation to the Ministers.

The timing of the application for the proposed development, its determination by the Council and the appeal to the Scottish Ministers, coincided with the ongoing preparation of the new LDP for Stirling (which was approved in May 2018 and eventually adopted in October 2018). The emergence of the new LDP was a matter that the Reporter considered, and asked the parties to comment on its relevance and on whether there would be any prejudice to the new LDP if planning permission was to be granted for the proposed development.

On 1 June 2017, the Reporter recommended that the appeal be refused, and that planning permission should not be granted. The Reporter’s Report considered that the emergence of the new LDP was, amongst others, a principal issue in the determination of the appeal. The significance of the emerging LDP was relevant because there was an ongoing issue in the Stirling area – based on the original LDP – in relation to a shortfall in housing land supply. The Reporter understood that the emerging LDP would “properly address the shortfall”. That being the case, the Reporter considered that it would be prejudicial and premature for planning permission to be granted because it would affect the location of housing land and the provision of a sufficient 5-year supply of housing in the new LDP. In effect, the Reporter concluded that housing in the Stirling area should be planned for in the context of the emerging LDP; granting permission for a substantial housing development at that stage would have undermined the new LDP when it was adopted.

The Ministers’ Decision

The Reporter’s Report was passed to the Ministers in June 2017. A year later, on 18 June 2018, the Ministers issued their decision – dismissing the appeal and refusing to grant planning permission. The decision letter accepted the Reporter’s conclusions and recommendation and adopted his Report for the purpose of the decision. The decision letter did not give any further reasons for the Ministers’ decision.

However, between June 2017 and June 2018, the position in relation to the emerging LDP and how it addressed the shortfall in housing land supply, had changed. The new LDP was approved by the Council in May 2018. It had become clear that the new LDP had not provided the solution to the previous shortfall in housing land supply, but had also produced its own shortfall, of 169 homes.

The Legal Challenge

The Appellants challenged the Ministers’ decision to rely on the Reporter’s recommendation and to decide to refuse the appeal and the grant of planning permission. The Appellants argued that in reaching their decision, the Ministers had taken into account an irrelevant consideration – i.e. the Reporter’s conclusion that the new LDP would address the housing land shortfall, and that planning for housing would be better done under the new LDP. The Appellants also argued that the Ministers had failed to take into account a relevant and material consideration – i.e. that the new LDP process had been concluded and had not addressed or solved the issue of the shortfall in housing land supply. In summary, the Appellants argued that the Ministers’ decision was invalid because it had relied upon the Reporter’s conclusions which were now out of date, and had failed to take account of the material considerations which had emerged since the Reporter had issued his Report.

The Ministers’ position was the decision had not been taken entirely on the basis of the difference between the LDPs and the question of housing land shortfall. There were other considerations, including the impact on green belt land, and the presumption in favour of sustainable development set out in Scottish Planning Policy. The Reporter’s conclusions in the Report had not all been out of date at the time when the Minister’s issued their decision.

The Court agreed with the Appellants and accepted their arguments. It found that once the position had changed in relation to the new LDP, the fact that the Reporter had anticipated that it would address the housing land supply shortfall, ceased to be a material consideration and the Ministers ought to have reconsidered the planning balance. The period of time between the Reporter issuing his Report and the Ministers’ issuing their decision, had thrown up a material change in circumstances. Moreover, the change in circumstances – i.e. that the new LDP had itself produced a housing land supply shortfall – should have emerged as a new material consideration and been taken into account in the Ministers’ decision. The Court held that the Ministers’ had both failed to take into account a material consideration, but had also taken into account a consideration which ceased to be material, and was therefore irrelevant. This rendered their decision invalid and the decision to refuse the appeal was quashed.

Conclusions

This case is a further reminder about the importance for decision-makers of assessing all relevant or material considerations in the planning balance. Where the balance lies is a matter of planning judgment, but a failure to take a relevant consideration into account, or to take something into account which is irrelevant, can make the decision unlawful.

On a more practical level, the case highlights the problems which can arise from the length of time it can take for planning decisions to be taken, particularly in appeals to the Scottish Ministers. It may have been foreseeable that in the year between the Reporter finalising his Report, and the Ministers’ taking their decision, something would have changed, particularly in the context of planning policy, both nationally and locally. If there are delays of this nature, this case shows the importance of considering what might have changed in the meantime, and ensuring that this is reflected in the determination of an application or appeal.

This case looks at a decision taken by the Scottish Ministers, but the key points will be of relevance to planning authorities and local decision-makers too. If there is a delay between a recommendation being made and a decision taken, the decision-maker should be confident that the decision is being taken based on up to date and relevant information.