Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 147
XA146/12	OPINION OF LORD ARMSTRONG in APPEAL under Section 239 of the Town and Country Planning (Scotland) Act 1997 by THE TRUSTEES OF THE LATE MRS HILDA JANE (or JOHANNA) CAROLINE PILKINGTON (otherwise MRS HILDA CAROLINE PILKINGTON) Appellants; Against a decision of a reporter appointed by the Scottish Ministers, dated 12 September 2012 ________________

Appellants: Martin QC, Turner; Pinsent Masons LLP

Respondents: Burnett; Scottish Government Legal Directorate

Interested Party: Findlay; Turcan Connell

3 September 2013

Introduction

[1] This is an appeal to the Inner House of the Court of Session, in terms of the Rules of the Court of Session, chapter 41, which, by interlocutor of the Inner House, dated 19 February 2013, was remitted to the Outer House for a hearing. The appeal is brought under the Town and Country Planning (Scotland) Act 1997, section 239, against a decision of a reporter appointed by the Scottish Ministers in relation to a planning appeal.

[2] The appellants are the developers. The respondents are the Scottish Ministers. The interested party comprises the trustees of the John Dewar Lamberkin Trust. The reporter's decision of 12 September 2012 ("the decision") which the appellants are now contesting refused an appeal by the appellants to the respondents against a decision of Perth and Kinross Council ("the planning authority"), dated 4 January 2012, to refuse planning permission in principle for a mixed-use development including the construction of 1,800 (latterly 1,500) houses, a school, leisure, retail and office facilities and associated development at land known as Almond Valley, adjacent to Huntingtower and Ruthvenfield, Perthshire ("the appeal site").

[3] Although the challenge to the decision is based on grounds of irrationality in various forms, it also raises the issue of the significance, if any, to be attached to an emerging local development plan ("LDP") as a material consideration in the context of planning decisions.

The history of the appeal site

[4] The Perth area local plan was adopted on 4 March 1996 and included the appeal site as a long-term development site. In the course of the future plan-making process, the Enterprise and Infrastructure Committee of Perth and Kinross Council, on 23 June 2004, decided not to include the appeal site within the draft proposed new local plan. In terms of the main issues report, published in September 2010, the appeal site was included but was not the planning authority's preferred option. It was not prioritised for short term development, but rather it was limited to 150 houses until 2024. Instead an alternative site at Perth West was prioritised for the development of 1,500 houses.

[5] By a report, dated 24 November 2011, it was recommended to the Development Control Committee of Perth and Kinross Council, which met on 7 December 2011, that there should be approval of the application to develop the appeal site on the basis that it was considered to comply with the development plan and that there was no other material consideration such as to justify a departure from it.

[6] Notwithstanding that, having considered the report, the planning authority refused the application, by decision dated 4 January 2012, on the basis that it did not fully comply with the development plan. In particular, the application was said to be contrary to Policy 1 of the Perth area local plan 1995 in that the area of the proposed site was larger than the area zoned as the relevant opportunity site in the local plan and contrary to Policy 2 in that the proposed site adjoined the village of Almondbank. In the event, by her decision dated 12 September 2012, the reporter found that the planning authority's concerns in relation to Policies 1 and 2 could have been addressed by the imposition of an appropriate planning condition, to which the appellants were agreeable, to limit the development of the proposed site. She found that had such a planning condition been put in place the application would have accorded with the development plan.

[7] At the time of the planning authority's decision, dated 4 January 2012, the appeal site, in addition to being an area allocated for housing in the development plan was also one allocated for housing in the emerging proposed LDP. A report by the Executive Director (Environment of Perth and Kinross Council), dated 21 December 2012, seeking approval of the proposed LDP, in which the appeal site was included within the proposed housing allocation, and of its publication for representations, was considered at a special council meeting of Perth and Kinross Council on 10 January 2012. At that meeting the council approved the proposed LDP but subject to an amendment to remove the land of the appeal site from the proposed housing allocation and instead to insert an employment site. Another site, Perth West, previously identified in the LDP main issues report as having a capacity comparable to that of the appeal site, was added back into the proposed LDP together with another site, Berthapark, both as long-term strategic sites for housing.

[8] The proposed LDP was published in January 2012 and, as a result of the council decision, did not include the appeal site within the proposed housing allocation.

Legal principles

[9] The parties were broadly in agreement as to the applicable law in relation to which I was referred to a number of well-known authorities to the following effect.

[10] In the consideration of an application for planning permission there is a presumption that the development plan will govern the decision unless there are material considerations which indicate that the provisions of the plan should not be followed. If the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan, it should be refused unless there are material considerations indicating that it should be granted. However, there remains flexibility in the system. Thus, where for example a particular policy in a development plan is seen to be outdated or superseded by more recent guidance and material considerations indicate that the development plan should not be followed, a decision contrary to its provisions can properly be made. In this context, the decision-maker must (i) identify the provisions of the development plan, (ii) make a proper interpretation of them, (iii) consider whether the proposed development accords with the development plan, (iv) identify all other material considerations which are relevant to the application and (v) having assessed the weight to be given to each, decide whether there are considerations of such weight that the development plan should not be accorded priority. How that exercise is carried out in practice is a matter for the decision-maker, acting within his power in the particular circumstances of each case (City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, per Lord Clyde at 43E-45F).

[11] Whether a matter is a material consideration is a question of law. The weight to be given to any material consideration is a question of planning judgment. Matters of planning judgment are the exclusive province of the local planning authority, or, in this case, the reporter. The court must be concerned only with the legality of the decision-making process and not with the merits of the decision (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, per Lord Hoffman at 780F-H).

[12] Although a reporter is required to have regard to all material considerations, he is not required, in stating his reasons for the decision made, to deal specifically with every material consideration. He must state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the principal important controversial issues (Bolton Metropolitan District Council and Others v Secretary of State for the Environment [1996] 71 P&CR 309, per Lord Lloyd at 313-4). Reasons given must be proper, adequate and intelligible and must deal with the substantial points raised (In re Poyser and Mills' Arbitration (1964) 2 QB 467). The informed reader should be left in no real and substantial doubt as to what the reasons for the decision were and what were the material considerations taken into account in reaching it (Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345, 348).

[13] A decision letter should not be judged by a needlessly exacting standard involving detailed textual analysis and criticisms. The reporter's decision does not require an elaborate philosophical exercise and nor does it require a consideration of every issue raised by the parties. So long as his reasons are intelligible and adequate, a reporter is entitled to express them concisely (Moray Council v Scottish Ministers 2006 SC 691, 699).

[14] In considering the adequacy of reasons given for a decision, it is necessary to take into account the nature of the decision, the context in which it is made, the purpose for which the reasons are provided and the context in which they are given. The adequacy of the reasons given should be considered on the basis that they are addressed to persons who are familiar with the background and issues (Uprichard v Scottish Ministers and Another [2013] UKSC 21 per Lord Reed at paragraphs 44 and 46).

[15] Whenever a planning decision is challenged on the ground of failure to give reasons, the question for the court is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given. That will arise where the reasons raise a substantial doubt as to whether the decision was taken within the powers of the Act (Save Britain's Heritage v Number 1 Poultry Ltd and Others [1991] 1 WLR 153 per Lord Bridge, 166H-167F). Reasons should enable disappointed developers to assess their prospects of obtaining some alternative development permission and allow an understanding of how the policy or the approach underlying the grant of planning permission may impact on future applications (South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, at paragraph 36).

[16] As to the concept of irrationality, generally, I was referred to Wordie Property (supra) at 347, 8; Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1047D-F; and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, at 230 and 234.

Submissions for the parties

[17] Counsel for each party provided written submissions, the detail of which I do not repeat here. The arguments set out in them are reflected in what follows. I have taken the written submissions presented to me, together with the submissions made by counsel at the bar, fully into account.

Submissions for the appellants

[18] Considerable emphasis was placed on the plan-led nature of the planning system in Scotland and the position of the development plan as being critical to planning considerations. In that regard, I was referred to the Scottish Government's paper: Scottish Planning Policy, February 2000, at paragraphs 8 and 25, City of Edinburgh Council (supra) at 43E-H, Tesco Stores Ltd (supra) at paragraph 18, and the terms of sections 37(2) and 25(1) of the 1997 Act. Against that background, the criticisms levelled against the decision were set out under six heads, subject to some overlapping of the subject matter of each.

[19] The appellants submitted that in each case the reasons set out in the decision were deficient because of failure to take into account relevant considerations, the taking into account of irrelevant considerations, inadequacy, the making of conclusions without a factual basis and irrationality.

The emerging LDP

[20] In the decision, the reporter found that the emerging LDP was a material consideration and that the appeal proposal's conflict with it justified departure from the extant development plan. Senior counsel for the respondent characterised this issue as a critical one and, on the basis that the respondent was wrong in that regard, determinative of the appeal.

[21] It was submitted that the reporter's decision was irrational since the existence of an emerging LDP was not of itself a reason to refuse planning permission. Reference was made to Arlington Securities Ltd v Secretary of State for the Environment and Crawley Borough Council [1989] 57 P&CR 407 at 411. Since the proposed LDP had no formal status within the planning system prior to adoption, to take it into account was contrary to the government's plan-led policy. To place weight upon it in preference to the provisions of the relevant adopted local plan was contrary to the terms and spirit of section 25 of the 1997 Act.

[22] It was conceded that there were circumstances in which a proposed LDP might be a material consideration. Reference was made to Annex A to the Scottish Government's Planning Circular 4/2009: Development Management Procedures. At paragraph 3 of Annex A, the first of two tests to be employed in determining whether a consideration is material and relevant is described in these terms:

"It should serve or be related to the purpose of planning. It should therefore relate to the development and use of land".

It was submitted that the test was met only where there was a relevant underlying planning consideration.

[23] It was submitted that the removal, from the housing allocation of the proposed LDP, of the land of the appeal site, which had hitherto been intended to make a significant contribution to the land supply, was done without prior consideration and with no reason given within the minutes of the meeting of 10 January 2012. Whereas the appeal site had the potential to provide short-term development, other sites such as Perth West and Berthapark, added as long-term strategic areas, where not expected to be capable of development before 2020. It was submitted that the removal of the appeal site from the proposed LDP was no more than a consequence of the refusal of planning permission by the planning authority, dated 4 January 2012.

[24] Since, as the appellants asserted, the appeal site had been removed from the proposed LDP purely as a consequence of the decision to refuse planning permission, a decision found by the reporter to be flawed, the content of the proposed LDP, to the extent that it did not include the appeal site, was not based on a relevant planning consideration and should not therefore be considered a material consideration. In such circumstances the reporter was wrong to conclude that the proposed LDP was a material consideration.

[25] Under reference to paragraph 5 of Annex A to Planning Circular 4/2009, which expressly includes a proposed LDP as a consideration which might be considered material in planning terms, emphasis was placed on the effect of the guidance. It did not necessarily follow that a proposed LDP must be a material consideration. The matter had to be determined in the context of each case. In the present case, the circumstances of the removal of the appeal site from the proposed LDP were such that, for the purposes of the appeal, no weight should be attached to the emerging plan.

[26] It was recognised that in the decision the reporter made reference to other reasons for the removal of the appeal site from the proposed LDP. It was said that there was insufficient specification in the decision in that regard, so that the appellants were left in doubt as to what these reasons might be.

[27] While it was recognised that in the report, dated 24 November 2011, prepared for the meeting of the Development Control Committee on 7 December 2011, there was reference to a history of flooding at the appeal site, both SEPA and the Council's Flood Risk Officer had been satisfied with the revised flood risk assessment then in place. That being so, it was submitted that flooding did not amount to a relevant underlying planning consideration which could have justified the removal of the appeal site from the proposed LDP. If the proposed LDP was a material consideration, it was irrational on the part of the reporter to give it weight in circumstances where the removal of the appeal site from it was not based on a relevant planning consideration.

[28] It was submitted that in circumstances where the removal of the appeal site from the proposed LDP had been recent, where there were representations both for and against the appeal site's removal from the proposed LDP and where it was acknowledged that modifications to the emerging plan might be proposed before it was submitted for examination, the reporter had failed to give adequate reasons for attaching sufficient weight to the proposed LDP such as to justify departure from the adopted local plan.

[29] It was submitted that the reporter had been wrong to come to the conclusion that the proposed LDP represented "the settled view" of the planning authority in circumstances where there was no factual basis to support that. Under reference to paragraphs 53-55 of the Scottish Government's Planning Circular 1/2009: Development Planning, it was said that since the substitution of Perth West for the appeal site constituted a significant change to earlier strategy, representation would be expected and that accordingly the proposed LDP as it stood at the time of the decision was susceptible to change and could not be considered to be the planning authority's "settled view". In circumstances where the decision by the council on 10 January 2012 to remove the appeal site and to substitute Perth West had been contrary to the recommendation of the report by the Executive Director (Environment), it was incumbent on the reporter to set out in her reasons why she had accorded the proposed LDP such weight.

Prematurity

[30] In justifying departure from the provisions of the development plan, the reporter determined that it was a material consideration that the appeal proposal was premature with respect to the emerging proposed LDP.

[31] At paragraph 9 of the decision, the reporter found that the proposed LDP had reached an advanced state of preparation. The council's development plan revised scheme, issued in January 2012, fixed December 2014 as the likely date of adoption of the proposed LDP. It was submitted that given the inherent uncertainties in predicting the time-scale of the progress of such an emerging plan, the reporter had no proper basis on which to consider prematurity as a relevant material consideration.

[32] Further, against the background of the extant adopted local plan remaining in force pending adoption of the proposed LDP, to characterise applications as premature relative to an emerging plan would have the effect of inhibiting development. In circumstances where section 16(1)(a)(ii) of the 1997 Act required LDPs to be prepared at intervals of no more than five years, such approvals would have the potential to frustrate development for periods of years. Such an approach would be contrary to the policy of a plan-led system. Reference was made to an appeal decision notice, dated 3 February 2012: Planning Appeal Reference PPA-390-2010 at paragraphs 83-90, as an example of a planning appeal in which a reporter had afforded little weight to the provisions of a draft proposed LDP. It was submitted that the reporter in the present case had given no adequate reasons for, in effect, delaying development pending adoption in the future of the emerging LDP in circumstances where the precise timing of the progress of the proposed LDP remained uncertain.

[33] Under further reference to the decision in Arlington (supra), in response to the submissions for the respondent, it was submitted that the case could be distinguished from the present appeal in that, unlike the position in the present appeal, the proposed development in Arlington did not have the support of inclusion in the extant local plan. Similarly, again in response to submissions for the respondents, it was submitted that the decision in Clarke Homes Ltd v Secretary of State for the Environment and East Staffordshire District Council [1993] 66 P&CR 263 was not in point. That was a case in which, again unlike the present case, the appeal proposal was not covered by the local plan and in which the decision pre-dated the innovation of the statutory presumption in favour of the development plan. In the present case, the appeal proposal did have the support of the development plan and the presumption under section 25 applied.

[34] It was submitted that evidence before the reporter, from Mr Peter Marshall, as to the timing of progress of the proposed LDP did not figure in the reporter's decision and that it must be inferred therefore that she had ignored it. In any event, the timetable for the emerging LDP on which the reporter had placed some reliance could not be a reason for affording it weight.

[35] The assertion by the interested party that problems in relation to access to the site at Perth West were being overcome was not in accordance with the appellants' understanding. It was said that, on the contrary, significant access issues remained and were to be ventilated at a hearing session to be held in the near future. On that basis, for the purposes of the emerging LDP, the ability to access Perth West, the substituted alternative to the appeal site, remained a real issue.

Road Infrastructure

[36] In the context of a perceived need for road improvements at the A9/A85 interchange, necessary to enable development at the appeal site or the alternative sites of Perth West and Berthapark, whereas the planning authority lacked the funds to put in place the necessary infrastructure, the appellants were in a position to fund it and had offered to do so. It was submitted that approval of the alternative sites would not produce the necessary funding. The reporter had failed to take account of the fact that, as reflected in the minute of the special council meeting on 10 January 2012, it was not expected that the alternative sites would be capable of delivering development before 2020. It was said that there was no basis in fact for the reporter's conclusion that other means of funding might be available. It was submitted that the development of Perth West would require even more new infrastructure in relation to access than the appeal site. Those submissions had been made to the reporter. To attach little weight to the material consideration of the offer of funding by the appellants was irrational.

[37] Further, the reporter's observation that there were no agreements in place nor anything else in the evidence before her to suggest that it could be guaranteed that the appeal proposal, if approved, would provide the funding or land necessary for the necessary road works within a short time-scale, amounted to an irrelevant consideration. The reporter had erred by failing to assess the provision of funding by the appellants as a positive material consideration.

Investment

[38] Under reference to Land Securities Group PLC v Scottish Ministers and Others 2007 SC (HL) 57, it was submitted that changes in planning policy and local plans should not be made in an arbitrary way such as might prejudice developers who invest on the basis that a sequential approach (paragraph 12 of NPPG 8) will be followed. Where a decision was taken to depart from policy and not to apply a sequential approach, reasons should be given for doing so (see Lord Rodger at paragraphs 22, 25 and 29). In circumstances where the appellants had invested in the appeal site, it was submitted that the reporter failed to give appropriate weight to that material consideration. Further, in the decision the reporter made no reference to that issue.

Housing land supply

[39] It was submitted that on the basis that only the appeal site could provide the necessary new infrastructure required for the A9/A85 interchange, only the appeal site could deliver the five-year supply of housing land anticipated in the adopted local plan. The reporter had failed to take account of that material consideration. Although there was evidence before her that there was no present or reasonably foreseeable difficulty in the effective five-year supply being achieved, she had failed to take account of the potential impact of change to the current economic climate.

Double Dykes caravan park

[40] Although there had been evidence on this topic in one of a number of meetings held in relation to potential material considerations, it was accepted that the issues surrounding the caravan park did not comprise a material consideration and would not have been determinative of the appeal. The matter was raised before me as an example of evidence in relation to which no reference had been made in the decision. It was submitted that where the reporter had made reference to "other reasons", (in fact the reference was to "other matters"), those should have been specified. That was because developers required to know how to approach planning applications in the future.

Respondents' submissions

The proposed LDP
[41] It was submitted that the reporter was entitled to consider the proposed LDP to be a material consideration and to attach the weight to it which she did. In terms of paragraph 5 of Annex A to Planning Circular 4/2009, it was open to her, in the context of the appeal proposal to determine that the emerging plan was a material consideration. The degree of weight to be afforded to it required recognition that there were representations for and against the removal of the strategic site and an assessment of the stage reached in the progress of the proposed LDP. Insofar as the latter was concerned, paragraph 55 of Planning Circular 1/2009, read properly, meant that following publication the proposed LDP was to be taken to represent the planning authority's "settled view". In the present case, the proposed LDP had been published on 30 January 2012.

[42] The decision, Planning Appeal Reference PPA-390-2010, was merely an illustration of how a reporter in another case had treated the issue in relation to the particular facts and circumstances prevailing. The decision was fact specific to that particular case and was not binding as a judicial authority. The decision had to be considered in its own context. In that case, the progress of the proposed LDP was not as far advanced as in the present case. The proposed LDP had not yet been published, there was an expectation of future modifications and accordingly it could not be regarded as the planning authority's "settled view". Contrary to the position in the present appeal, the emerging LDP had supported the appeal proposal. The reporter in that case had, however, adopted the correct approach by determining that the key issue in relation to the matter was whether the effect on the LDP preparation process of allowing the appeal would be contrary to the public interest.

Prematurity

[43] In support of the reporter's decision to view the prematurity of the appeal proposal relative to the emerging LDP as a material consideration, the respondents relied on the decision in Arlington Securities (supra) and Clarke Homes (supra).

[44] Although in Arlington Securities, the court had recognised that an emerging local plan was not in itself a reason to refuse planning permission, it was also acknowledged in that decision that where a development was of significant size and importance, it was in the public interest that its implications ought to be investigated and considered by the local plan process. The risk of prejudice and error which could arise if a decision were made without that process being undertaken could outweigh the prejudice caused by delay (see Nicholls LJ at page 413).

[45] In Clarke Homes, an appeal against a decision that a proposal was so substantial that to allow the appeal at that time would pre-empt decisions about the scale and location of new development which ought properly to be taken in the context of the emerging development plan, the court had acknowledged that prematurity, where the scale of a development would have a significant effect on the planning process, was a valid reason for refusal within the powers of the Act (see Rose LJ at page 271).

Road infrastructure

[46] It was not accepted that the appeal site was the only development which could deliver the necessary infrastructure. There had been evidence before the reporter to contrary effect, viz.: the proposed development was not essential for the necessary improvements to the current transport network; planning permission for the necessary improvements had already been granted; costs and potential delivery mechanisms had been identified; and a number of funding models explored, including, in addition to a developer contributions model, a public private development company model and a private development company model; there was confidence that a viable solution would be identified and agreed.

Investment

[47] The facts and circumstances under consideration in Land Securities Group (supra) were to be distinguished from those of the present appeal. That case, which involved the development of Ravenscraig, was concerned with national planning policy which favoured development in town centres and required that only if no such site was available should others be considered. The present appeal was not concerned with a town centre.

[48] In any event, what the relevant legislation had put in place was a presumption in favour of the provisions of the development plan which could be outweighed by material considerations. The planning history of the appeal site disclosed that it had not always been the preferred option. The appellants were always aware that their proposals might not be approved.

[49] Since the matter was not a principal issue in the determination of the appeal, there had been no requirement on the reporter to refer specifically to it.

Housing land supply

[50] The planning authority had indicated that there was no present or reasonably foreseeable difficulty in relation to the effective five-year housing supply. The proposed LDP, at page 63, paragraph 4.3.8, indicated that there would be a sufficient and effective supply of housing land available for at least five years and the reporter was entitled to conclude that, as a result of the need for the necessary road improvements, the new LDP was likely to be adopted before the appeal site could be developed.

Double Dykes caravan park

[51] This was not a key issue in the determination of the appeal, it was not, in effect, a matter of dispute between the parties and was recognised as a matter to be taken into account at the master plan stage.

[52] It was not required of the reporter that every consideration should be set out in the decision. In any event, even if left out of account, there was no real possibility that this issue would have made any difference to the decision (Bolton Metropolitan Council v Secretary of State for the Environment and Others (1991) 61 P & CR 343, 354). It could not be said that the lack of a reference to the issue in the decision would cause prejudice to the appellants (Save Britain's Heritage (supra), at 167E).

Submissions for interested party

[53] The interested party adopted the submissions for the respondents. As to the requirement for adequacy of reasons, reference was made to the summary of authoritative guidance set out by Lord Browne in South Bucks District Council and Others v Porter (No 2), (supra), at paragraphs 24-36.

[54] It was submitted that there had been evidence before the reporter that the requirements for a comprehensive planning assessment of the development of the western side of Perth were such that it was best tested through the final stages of the LDP process. In circumstances where there was a need to formulate a spatial strategy for Perth for the next 20 years, the reporter had been entitled to take the view that to approve the appeal site at that time would be to ignore the importance and benefit of the plan-making process in determining the best outcome.

Discussion

[55] It was common ground amongst the parties that the issues of the significance of the proposed LDP and prematurity were closely linked. It is clear that in terms of paragraph 5 of Annex A to Planning Circular 4/2009 the reporter was entitled to consider whether the proposed LDP was a material consideration. In doing so, I accept that she required to have regard to the context of the case. However, I do not accept that the circumstances of the removal of the appeal site from the proposed LDP are such that it can be said that the proposed LDP, to the extent that it does not include the appeal site, is not based on relevant underlying planning considerations and therefore does not meet the first of the two tests set out in paragraph 3 of Annex A to the planning circular.

[56] In my view, the appellant's criticisms of the manner of the appeal site's removal from the proposed LDP do not represent the whole picture. Whilst the merits of that planning decision are not a matter for me, I do recognise that the reasons for it, quite distinct from what formed the appellant's appreciation of the matter, were set out at paragraph 3.7 of Paper Apart - Note of Response/Matters which was before the reporter. These reasons were stated to be:

"Susceptibility to flooding in areas not covered by the Almondbank Flood Mitigation Scheme;

The Almondbank Flood Mitigation Scheme cannot be relied upon as funding is not secured;

Loss of natural drainage in a flood plain;

Other constraints in the development; and

The significant effect of development on the character and amenity of the area."

I consider that these were matters that the reporter was entitled to take into account and that the reference by her to these reasons for the removal of the appeal site from the proposed LDP is sufficient to ensure that the informed reader is not left in doubt as to what she has taken into account.

[57] Whilst I can understand, from the appellants' perspective, the disappointment and indeed the dissatisfaction which no doubt resulted from the decision taken on 10 January 2012, I do not accept, given the history of the appeal site, that amongst the potential alternatives it was always the preferred option. Properly understood, the decision to remove the appeal site should be seen in that context. Those matters are set out in the decision at paragraphs 7 and 8. In the light of these facts, I do not accept that the removal of the appeal site from the housing allocation of the proposed LDP was no more than a consequence of the refusal of planning permission.

[58] The reporter required to consider the significance of the proposed LDP as it stood at the time of her decision. In determining that the proposed LDP was a material consideration and assessing the weight to be attached to it, by reference to the stage reached in the plan-making process, she was following the approach adopted by the reporter in Planning Appeal Reference PPA-390-2010 relied upon by the appellants. Further, in so doing, given the relevant stage reached within the plan-making process relevant to the present case, I am satisfied, on a proper reading of paragraphs 53-55 of Planning Circular 1/2009 that, following publication, the reporter was entitled, for the purposes of her decision, to consider the proposed LDP to be the planning authority's "settled view".

[59] The reporter dealt specifically with the issue of prematurity at paragraphs 10‑15 of the decision. At paragraph 9, she took account of the anticipated date of adoption of the proposed LDP. She was entitled to carry out a balancing exercise, taking into account the provisions of the extant development plan and both the content and the progress of the emergence of the proposed LDP. I accept that the appeal proposal was of a scale and importance such as to make it of major significance in the development of West/North West Perth. That being so, I consider that the fact of the emergence of the proposed LDP was a material consideration. In such circumstances, while recognising the statutory priority given to the plan-led planning process, I find that it was legitimate, when assessing the weight to be afforded to that material consideration, to take into account the benefits to the public interest of the wider planning framework of the statutory LDP process (Arlington Securities Ltd (supra); Clarke Homes Ltd (supra)). In the context of the application of section 37(2) and section 25(1) of the 1997 Act, the reporter found these factors to be of sufficient weight to outweigh the provisions of the adopted development plan. The decision makes it clear that the reporter has approached this issue in that way. I find that she was entitled to do so and did not err in that regard.

[60] In relation to the content of the decision bearing on these matters, I find that the reporter has not erred in the respects contended for by the appellants.

[61] The reporter dealt with the issue of road infrastructure at paragraphs 18-21. Although she found the appellant's offer to provide the necessary funding to be a material consideration, she attached little weight to it. That was a matter for her to decide in the exercise of her discretion on the evidence before her. There was evidence before her of express satisfaction, against the background of alternative potential funding schemes, that a viable solution would be identified and agreed. I consider that the references in paragraph 20 to the absence of binding legal agreements and any guarantee, on the evidence, of delivery by the appellants, are to be construed in the context of the likelihood of that being achieved within a short time-scale relative to delivery by any other scheme in the context of the progress of the emerging proposed LDP. Since the timing of delivery in terms of any planning condition imposed, subject to implementation before the commencement of development, would be entirely a matter for the appellants, that was a relevant consideration in the determination of the degree of weight to be attached. I consider that the evidence available to the reporter in relation to the issue of the provision of funding for the necessary roadworks was a sufficient and relevant basis for the rationale set out in the reasons she has given.

[62] The reporter addressed the appellant's submissions in relation to the housing land supply at paragraph 16 and 17. Although she considered the matter to be a material consideration, she attached little weight to it. That too, was a matter for her in the exercise of her discretion on the basis of the evidence before her. There was evidence before her that development of the appeal site was not essential in order to maintain an effective five year supply of housing land. In my view, in that regard, she was entitled to reach the view which she did.

[63] Amongst the criticisms levelled at the decision, it was said to be inadequate in that no reference was made in it to the issues raised concerning development investment or the Double Dykes caravan site. It was asserted that where an issue was raised it was incumbent on the reporter to deal with it in the body of the decision. I reject that submission. The reporter does not require to give reasons in relation to every issue raised (Moray Council (supra) at 699). As stated by Lord Bridge in Bolton (supra) at 314:

"What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the 'principal important controversial issues'. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

In my assessment, the reporter would have been entitled to take the view that neither of these two issues constituted a principal important controversial issue. On that basis, I do not consider their absence from the content of the decision to be of significance. The history of the appeal site was such that the appellants must have been aware of the commercial risks, and in particular the real possibility of failure to obtain planning permission, involved in their investment. I find that the reporter was entitled to identify the principal important controversial issues to be those which she has addressed in the decision.

[64] The appellants submitted that it was not clear, because of the lack of specification in the decision, that a proper balancing exercise in relation to the weight to be attached to the relevant material considerations had in fact been carried out. In my view, that argument is flawed since it appears to be predicated on the false assumption that every detail of the reporter's decision-making process relevant to the appeal should be recorded. It is recognised that in such appeals a close textual analysis of the decision is not appropriate. As Sir Thomas Bingham MR (as he then was) put it in Clarke Homes Ltd (supra) at 271-2:

"the central issue .... is whether the decision of the Secretary of State leaves room for genuine as opposed to forensic doubt as to what he has decided and why. This is an issue to be resolved in a straight forward down-to-earth reading of his decision letter without excessive legalism or exegetical sophistication."

[65] In the decision, the reporter has expressly stated at paragraph 23 that she has considered all other matters raised before her. I note that within the guidance set out by Lord Clyde in City of Edinburgh Council (supra), in relation to the five stage approach to such decisions, it was recognised that the precise procedure employed in going about that process is entirely a matter for the reporter (see page 45C-F). On the basis of what is now settled as to the requirements of such a decision, I am not persuaded that it can be inferred from the content of the decision that there was a failure in that respect.

[66] On the basis of the evidence before the reporter, I do not find the decision to be flawed as the appellants suggest. Rather, having due regard to the requirements placed upon her, and the tests by which the decision is to be judged, I find the reasons set out in the decision to be proper, adequate and intelligible. I do not consider that, in the context of the appeal to the Scottish Ministers, the respondents were left in a material doubt or otherwise prejudiced by the decision. I find that the reporter has not failed to take into account relevant considerations, has not taken into account irrelevant considerations, has stated reasons which are adequate and not perverse, and that the decision is not so unreasonable that no reasonable reporter, properly directed on the law, could have reached it.

[67] A subsidiary argument was urged upon me by the respondents to the effect that, as a matter of discretion, any error in the decision would be material only if it could be said that there was a real possibility that the decision might otherwise have been different. Reference was made to Tesco Stores Ltd v Dundee City Council 2012 UKSC 13, at paragraph 31. In the light of my decision, it is unnecessary for me to consider that submission and I reserve my opinion in that regard.

Decision

[68] I am not persuaded by the submissions for the appellants. Rather, I favour the arguments put forward for the respondents and the interested party. I am satisfied that the decision was within the powers of the 1997 Act. The Appeal proposed 19 questions of law for the opinion of the court. I answer them all in the negative. It follows that I am bound to refuse the appeal. I reserve all questions of expenses.