Environmental campaigners win appeal against decision to build new school on green belt

Environmental campaigners have successfully challenged a Scottish council’s decision to grant planning permission for a new secondary school on green belt land following an appeal.

The Inner House of the Court of Session ruled that the planning authority adopted an “erroneous approach” by effectively treating a planning committee’ report as “determinative” and therefore failed to discharge its duty.

Lord Drummond Young, Lady Clark of Calton and Lord Malcolm heard that in May 2014 the respondent Fife Council, acting as planning authority, granted planning permission in principle the proposed new Madras College and associated facilities, including playing fields, on land to the north of Pipeland Farm, St Andrews.

The controversial decision gave the go ahead for a major development in the green belt and on prime agricultural land, and thus was contrary to the terms of the development plan, but came after years of local debate as to the best way forward in respect of the acknowledged need for new and better secondary school facilities.

The petitioner, St Andrews Environmental Protection Association Limited, with the benefit of a protective expenses order, raised a petition seeking judicial review of the grant of planning permission.

The North East (Fife) planning committee had recommended that the application be refused in the interests of, among other things, protecting the countryside, and in so rejected the planning officer’s recommendation for conditional approval.

The application then came before the full council which, after considering the planning officer’s favourable report and the planning committee’s recommendation, granted planning permission in principle, subject to a number of conditions.

Significant weight was placed on the need for the school and the “lack of a suitable, available, alternative site” within the environs of St Andrews; a phrase taken from advice set out in national planning policy regarding development in the green belt.

The reasons continued: “There is overwhelming evidence set out over a significant period of time that the existing two secondary school buildings that make up Madras are not providing an appropriate environment for the delivery of the secondary education curriculum for St Andrews and the North East Fife settlements that make up the school catchment for Madras.”

It added that there were “very few areas of land large enough within the vicinity of St Andrews that could deliver an appropriate replacement school” and that the school requirements of a single site facility also rendered an alternative option identified within the local plan at North Haugh as “unsuitable”.

Before the Lord Ordinary the petitioner contended that the decision to rule out the site at North Haugh as “too small” ignored the possibility of combining it with the current adjacent playing fields at Station Park across the A91, and any concern as to a “split site” could be easily addressed by the construction of an underpass.

The Lord Ordinary refused the application for judicial review after ruling that the planning authority did not overlook the possibility of North Haugh being used in conjunction with the playing fields at Station Park.

However, the criticism was that the planning authority was presented with, and accepted the education authority’s decision as determinative of the judgment which it was required to make.

For the petitioner, counsel repeated the submission that the planning report and the planning authority erred in treating North Haugh/Station Park as a split site, and in failing to carry out a proper planning balancing exercise before concluding that Pipeland is the only suitable site.

The reasons given by the planning authority were lifted straight from the conclusions in the planning officer’s report and thus there was no assessment of whether the planning disadvantages of the Pipeland site outweighed any educational advantages flowing from it; nor whether any disadvantages of another site outweighed the benefits which would flow from avoiding development in the green belt.

It was argued that the report “foreclosed the planning assessment which the planning authority was required to carry out” by, in effect, advising that the decisions taken by the education authority resolved the key planning issue, namely whether the need for a new school justified building on the green belt.

The appeal judges ruled that the planning authority was “led into error” by the terms of the planning report, which stated that Pipeland was the “only suitable site” which met the established criteria identified for Madras College (i.e. to deliver all aspects of the curriculum and the extended curriculum on a single site and is the only site available which also avoids the necessity of a decant arrangement).

Delivering the opinion of the court, Lord Malcolm said: “It is for the planning authority to determine, on the basis of all the relevant information before it, whether there is a suitable and available alternative location for the new school, and in particular one which should be pursued with a view to avoiding the inconsistency with the development plan and the resultant environmental damage.

“It is hard to avoid the impression that the full council was being instructed that, given all the work done by the education authority over many years, the important decisions had already been taken, and that it was Pipeland or nothing…

“The planning authority was diverted from the planning judgment which it required to carry out if properly exercising its jurisdiction. The full council was effectively told that it should ignore the issue as to whether the green belt could be protected by using an urban site, because the applicant had already considered the matter and its decision was determinative.”

He added: “It is of course legitimate for a planning officer in a planning report to present a recommendation to a planning authority. That happens on a daily basis. Here the report goes into quite different territory, and has led the authority into a failure to discharge its duty. It follows that the reclaiming motion will be allowed, the decision quashed as unlawful, and the whole matter remitted for reconsideration.”