Analysis: Aberdeen City and Shire at the Supreme Court

Terra Firma’s Roy Martin QC and Alasdair Burnet have been successful in resisting an appeal to the UK Supreme Court by the Aberdeen City and Shire strategic development planning authority against the Inner House’s decision to quash its adoption of statutory supplementary guidance implementing its Strategic Transport Fund (“STF”). Terra Firma’s Alasdair Sutherland also acted for the authority.

The judgment examines the issues of:

The STF proposed that all new developments within the appellant’s area would make contributions to the STF, which would then be used to fund a number of strategic public transport “interventions” to relieve the anticipated pressure on public transport services and roads resulting from increased development. The developer of a major new residential area at Chapelton of Elsick was obligated to contribute to the STF in accordance with the guidance under the terms of a s.75 agreement. The developer successfully argued that data published by the SDA showed that the impact of its development on many of the proposed interventions to be funded by the STF was either zero or de minimis.

The supplementary guidance was therefore unlawful and contrary to national planning policy as it required the respondent to make contributions that would be used to support interventions unrelated to its particular development. The Inner House allowed the developer’s appeal and quashed the supplementary guidance. The Supreme Court has upheld that decision and made general comments on the nature of the correct tests to be applied when considering the lawfulness of the imposition of planning obligations and planning conditions.

The Supreme Court has confirmed inter alia that it is not lawful to restrict the commencement of development by planning obligation until the developer undertakes to make a financial contribution towards infrastructure which is unconnected with the development of the site If such a planning obligation were lawful, an authority could use an application to extract benefits which are unrelated to the proposed development .

The STF scheme was not unlawful because it did not comply with the Scottish Government Circular on the use of Planning Conditions and Obligations. The Circular was simply a material consideration which was required to be taken into account but not necessarily followed .

The scheme was unlawful because, the opt-out did not make the scheme voluntary in any real sense and (1) the use of the developer’s contribution to the pooled Fund on infrastructure with which its development has no more than a trivial connection means that the planning obligation is not imposed for a purpose related to the development and use of the burdened site as required by s75, and (2) an authority is not empowered to require a developer to enter into an obligation which would be irrelevant to an application for permission as a precondition of the grant of that permission

The Court noted that if planning authorities in Scotland wish to establish a local development land levy similar to Community Infrastructure Levies in England in order to facilitate infrastructure for development it requires new legislation to empower them do so .