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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Perth & Kinross Council v Secretary Of State For Scotland & Anor [1998] ScotCS 52 (4 November 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/52.html Cite as: 1999 SC 144, 1999 SLT 1095, [1998] ScotCS 52

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The appellants challenge the decision of a reporter appointed by the first respondent in which he sustained the second respondents' appeal against the refusal by the appellants' predecessors of outline planning permission for the erection of a trunk road service area (TRSA) and granted such permission, subject to certain conditions.

The site to which the planning application related consisted of 3.2 hectares of arable land at Broxden Farm on the southwest side of Perth and abutting the Broxden roundabout. That roundabout provides a junction for the M90 spur (which gives access to the Edinburgh/Perth motorway and the Perth southern bypass), the A9 from Stirling (which links with the M9 from Glasgow), the A93 (from the centre of Perth)

and the A9 from the north. The TRSA would comprise a petrol filling station, an HGV service area, a restaurant, a travel lodge, a tourist information centre, a picnic area, and car and HGV parking areas. Other facilities to be provided would be free parking and toilets, facilities for disabled persons, telephones, a cash dispenser, local safety information, rescue services and 24 hour opening every day of the year.

The reporter's decision letter, which was addressed to the second respondents and dated 23 December 1996, followed upon the public inquiry which was held by him in October and November 1996. In the letter he summarises the cases which were submitted to him at the inquiry by the second respondents, the present appellants and certain party objectors. At the outset of his conclusions he states in para. 67:

In the present appeal the arguments of parties were directed essentially to the second of these "determining issues", which the reporter discussed at paras. 80-87 of his conclusions.

At the time of the inquiry before the reporter the development plan, so far as relating to the appeal site, comprised the 1998 Tayside Structure Plan, which had been approved by the first respondent in July 1989, and the Perth Area Local Plan, which had been adopted by the appellants' predecessors on 4 March 1996. The first respondent had also issued for consultation certain proposed modifications to the finalised 1993 Tayside Structure Plan. That plan was finally approved by the first respondent, subject to certain modifications, on 14 March 1997. During the discussion before this court little was said about the terms of the two structure plans to which I have referred. It may be noted in passing that the reporter took the view that the first was outdated and ambiguous, and that emphasis should be placed on the second which the first respondent had proposed should be modified so as to adopt NPPG 9 as the yardstick for the assessment of new roadside services in Tayside. The reporter reached the view (at para. 79) that the proposed development fully respected the guidance provided by that policy document and there were no grounds for refusal of consent on the basis of the first "determining issue".

Parties were, however, in dispute as to the way in which the reporter had dealt with two provisions in the Perth Local Plan. The first was policy 69, which appears as one of the general policies relating to roads and transport. The policy stated:

In the section of the local plan relating to the landward area, policy 38 is in similar terms, in this case relating to facilities on or adjacent to the A9, M90 and A90, with one stated exception which related to a facility at Horn Farm, Inchmichael, which lies between Perth and Dundee. These statements of policy were introduced after the inquiry into the local plan which was completed in late 1994, in order to bring the policy of the local plan more closely in line with the structure plan framework and the then draft NPPG 9.

In para. 82 the reporter noted that at the time of the inquiry into the local plan the then reporter had found that an identifiable and overriding need for a roadside service facility on the western outskirts of Perth had not been demonstrated, given the presence of motorway service areas at Kinross and Stirling and planning permissions that had been granted for TRSAs at Inchmichael and Aberuthven. However, he considered that there had been an inaccuracy relating to Aberuthven for which, as he had already stated in para. 76, no formal planning consent had been issued. He also noted that since the time of the inquiry NPPG 9 had been formally issued (in March 1996); the categorisation of NPPG 9 of the A9 between Stirling and Perth had been corrected from "non-core trunk road" to "core trunk road"; and "considerable design work (including three indicative layouts) has been undertaken at Broxden (together with an updated analysis of need undertaken as part of this inquiry)". Thereafter in paras. 83-87 he discussed whether there was "an identifiable and overriding need" for the proposed development at Broxden. Mr. Campbell, who appeared for the appellants, did not accept that the reporter had identified such a need or shown it to be overriding and, if so, the factors which justified such a conclusion. However, I consider that it is reasonably plain from what the reporter said in para. 87 - to which I will require to refer in more detail later in this opinion - that he was satisfied that the test was met. It appears from that discussion that the criteria against which he assessed the proposed development were whether the appeal site had a strategic location; whether there were significant traffic flows at that point; whether there was a viable alternative to the appeal site; what was the impact of the development on nearby communities; and any wider planning benefits.

Mr. Campbell emphasised that the onus lay upon the second respondents to demonstrate that the test of "an identifiable and overriding need" had been met. He maintained that in dealing with policy 69 the reporter had imported considerations which were relevant only to the application of NPPG 9. The effect on bypassed communities, with which the reporter had already been concerned in dealing with NPPG 9, was irrelevant so far as concerned policy 69 since the appeal site was in Perth and not to the north of Inveralmond roundabout. Further, there was no necessary connection between the traffic which converged on the Broxden roundabout and the traffic which was going north. The traffic at the Broxden roundabout did not enable any conclusion to be drawn as to the propensity of drivers to divert to local communities north of the Inveralmond roundabout. In any event in dealing with NPPG 9 at para. 78, the reporter had failed to appreciate that it was not concerned with diverting drivers to bypassed communities but in seeking to reduce the number of drivers who would be discouraged from doing so. The second respondents had failed to show that the test had been met.

For the first respondent Mr. Tyre pointed out that the expression "an identifiable and overriding need" had not been defined in the plan, and plainly called for the exercise of a planning judgment. It involved determining whether there was a need for the site to be used for the provision of a roadside service facility; and, if so, whether that need outweighed factors which were relied upon in opposition to the proposed development. Mr. Tyre pointed out that it was a general policy of the plan, as set out in para. 3.31, that:

The reporter had been entitled to take into account the various criteria which he had used in assessing the proposed development. There was no good reason to suppose that the effect on by-passed communities to the north was irrelevant. In any event this was of no moment since his conclusion (at para. 84) was that there would not be a significant impact. It did not matter whether the reporter had disposed of a particular factor as a matter of relevancy or as a matter of fact. In para. 78 his remarks should be understood as directed to pointing out the relatively small number of drivers who would on any view be interested in diverting to local communities.

I am satisfied that the reporter's conclusions in regard to policy 69 were not affected by any irrelevant consideration. The conclusion which he reached was one which he was entitled to do on the information which was before him. In these circumstances I am satisfied that this particular criticism of his decision is not well-founded.

I turn next to the other provision of the local plan to which the appellants referred in attacking the decision of the reporter. Under the heading of "Business Uses" proposal 9 states:

Among the sites which are listed is the following

The appeal site forms part of this site, amounting to approximately 10% of the total area.

At the inquiry the present appellants clearly founded on this proposal and maintained that the proposed TRSA would not be a compatible use (para. 50). Although the reporter's account of the second developers' case does not expressly say so, it is reasonably clear that this was in dispute. There was also a dispute as to whether the proposed TRSA would meet the requirement for high quality landscape in proposal 9; and as to whether it could satisfy various criteria for "business uses" in policy 48 (paras. 31, 35 and 51). However, for present purposes the critical point is the allocation which I have quoted above, in the light of the terms of section 18A of the Town and Country Planning (Scotland) Act 1972, as amended (since the relevant time replaced by section 25 of the Town and Country Planning (Scotland) Act 1997). Section 18A provides:

At this point it is necessary for me to set out the full terms of para. 87 to which I referred earlier. The reporter there stated:

It is tolerably clear that the earlier part of this paragraph, perhaps down to the words "there are no grounds that would justify the refusal of planning consent", should be understood as directed to the terms of policy 69; and accordingly, as I have already held, the reporter should be understood as saying that he was satisfied that the test of "an identifiable and overriding need" had been met in the case of the appeal site. The reporter then went on to refer to the allocation of the appeal site in the local plan, which must be a reference to proposal 9. The fact that he referred to that plan as allocating it for "other uses" and that there was, in his view, warrant for "setting aside" the provisions of the development plan plainly indicate that he considered that the proposed development involved a departure from proposal 9. It was at one stage argued by Mr. Tyre on behalf of the first respondent, by reference to what he said in paras. 88 et. seq., that the reporter should be understood as saying that the proposed development was compatible with the local plan. However, it is clear that these paragraphs are concerned with the third "determining issue", namely whether the development proposed would adversely affect the amenity of the area. It can be seen that he reached the conclusion that the development would satisfy the design criteria set out in NPPG 9 and that the amenity of the area adjoining the appeal site would not be adversely affected.

How then, did the reporter approach the present case, having regard to the requirements of section 18A? In the face of a provision of a development plan to a contrary effect it would not be adequate merely to say that a proposed development was considered to be "appropriate". As Lord Clyde observed in City of Edinburgh Council v. Secretary of State for Scotland 1998 SC (HL) 33 pages 43-44:

Lord Clyde also stated at page 44:

In the present case the only explicit reference which the reporter made to section 18A is in the last sentence of the paragraph in which he stated that he considered that there had been "a material change in circumstances at Broxden since the local plan was adopted and that this change warrants the provisions of the development plan being set aside".

However, there are two difficulties which are created by the terms in which the reporter had expressed himself. Firstly, he does not identify what is the material change of circumstances to which he refers. It was suggested by Mr. Tyre that he should be understood as referring back to para. 82 in which he states that various events had happened since the inquiry into the local plan, namely, as I have stated above, the fact NPPG 9 had been issued formally, the allocation of the A9 in NPPG 9 had been corrected and design work and an updated analysis of need had been undertaken. This would mean that in para. 87 the reporter should not have referred to a change of circumstances since the local plan was adopted but to what had happened since the inquiry into that plan. Further, his reference to circumstances "at" Broxden would require to be read more generally as those relating to that site.

Even if I make both assumptions in favour of the interpretation put forward by Mr. Tyre, I am not satisfied that it disposes of the difficulty. In particular it is not easy to see why taken individually or collectively the various events which had happened since the time of the inquiry into the local plan could reasonably constitute material considerations indicating that the allocation contained in the local plan should not be followed.

Secondly, and more fundamentally, it is not possible to see whether the reporter has identified and assessed the various considerations on either side of the question whether a development which is incompatible with proposal 9 should nonetheless be permitted. There is no assessment of the effect which any such departure would have on the remaining proposals. In saying that I do not overlook that in dealing with the third "determining issue" he reached the conclusion that development would not have an adverse effect on the amenity of the area. However, that is only one of a number of possible factors, and in any event the reporter's treatment of it is not tied in to his consideration of section 18A which is mentioned only in para. 87. There is no balancing of considerations on either side. If Mr. Tyre is right, the reporter has displaced the allocation in the local plan on the strength of a number of events which happened since the inquiry into that plan. However, the reporter gives no explanation as to the significance of these factors. It is difficult to understand how the mere fact that NPPG 9 was formally issued in March 1996 could have this effect; the same comment applies both to the correction of the allocation of the A9 Stirling to Perth road in that policy document and to the fact that design work and an updated analysis of need had been undertaken, presumably by or on behalf of the second respondents.

Under the statutory provisions the reporter was bound to give reasons for his decision. As the Lord President (Emslie) pointed out in Wordie Property Company Limited v. Secretary of State for Scotland 1984 S.L.T. 345 at page 348 this entails that the decision-maker:

In Save Britain's Heritage v. No. 1 Poultry Limited [1991] 1 W.L.R. 153, Lord Bridge of Harwich at pages 166-167 elaborated upon the proposition that the reasons for a planning decision should be proper, intelligible and adequate. At page 167 he emphasised that the degree of particularity which was required depended on the nature of the issues in the particular case, and that a deficiency in reasons would only afford a ground for quashing a decision if the court was satisfied that this had given rise to substantial prejudice. As one of the examples he gave the case of an opponent of development whose interests might be substantially prejudiced by a decision to grant permission in which the planning considerations from which the decision was based, particularly if they related to planning policy, were not explained sufficiently clearly to indicate what, if any, impact they may have in relation to the decision of future applications. In City of Edinburgh Council v. Secretary of State for Scotland Lord Clyde at page 50 said:

In the present case Mr. Campbell maintained that the decision of the reporter should be seen as putting the local plan in doubt.

In the present case I consider that the reporter has not provided proper, intelligible and adequate reasons for departing from the allocation of the appeal site, as part of the larger area at Broxden south, to purposes other than those which were the subject of the second respondents' application for planning permission; and that the effect of that failure on his part was to cause substantial prejudice to the appellants. It should, of course, be understood that in the present case it was not argued that there was insufficient evidence before the reporter to enable him to arrive at the conclusion which he did. Further, there is no suggestion that he misunderstood or misrepresented the legislation, the development plan or the submissions which were made before him. The deficiency in the present case relates to reasons for his decision, which are such as to make it impossible for the reasonably well informed reader to determine whether he has disposed of the issues before him in a manner which is in accordance with the legislation and by the proper exercise of his discretion as to the weight to be attached to the relevant factors.

In these circumstances I am satisfied that the appeal should be allowed; and the decision of the reporter quashed.