Scott Blair

Mr Blair acted for the successful appellant, Mr Dunlop for the council.

A developer wished to build seven homes on a site at the former railway station in Portessie. The planning officer recommended refusal of the consent on the basis that the LDP had designated it as part of an ENV5 Green Corridor, and where departure from the LDP under policy EP5 was permitted for essential infrastructure, but which specifically did not include housing. Notwithstanding this the developer appealed and the board allowed that appeal on the basis that there were material considerations in terms of a boost to the school roll (three pupils) and there was a need for housing. This was expressed in terms of cumulative “community benefit.” The board thereby considered that with reference to s.25 of the 1997 that they were entitled to depart from the recently adopted LDP.

The appellant had not objected to the application nor was he aware of the board process until after their decision was announced. The appellant joined a local campaign group set up after the decision of the board which sought to challenge the decision. Many local people maintained that the site formed part of. Slochy Woods which was a well -used area used for recreation and walking. The appellant had a history of using the site. He brought an application under s. 239 of the Town and Country Planning (Scotland) Act 1997.

Of note the court held that the appellant was a “person aggrieved” and so had title to bring the challenge notwithstanding that he had not participated in the objection process. This is important as it indicates that the court is prepared to take an increasingly liberal view of this test. In that regard the Lord President, delivering the opinion of the court stressed that there had been objections by others before the board based on environmental grounds. It was important that the appellant was a member of a campaign group whose existence was solely based on stopping the development and where members of the group had made objections. To this it was added that he had “demonstrated a genuine concern about what he contends is an illegality in the grant of consent” relating to the departure from the LDP.

The court also held that the reasons for the departure were adequate in the sense of intelligibility. Whether they were substantively lawful reasons was a different matter. It held that they were not.

The court did not consider that an increase of three pupils was could not be characterised as a “material” consideration sufficient “to contribute to a departure from the general principle that planning decisions ought to be made in terms of the development plan.” That was sufficient to undermine the cumulative finding of community benefit.
Nor did housing suffice. The LDP had been arrived at after an inquiry reporter had made a finding in the development plan process that the removal of this small site from availability for housing would not “have an impact on the overall supply of housing in the Buckie Housing Market Area.” Also of importance was the relevant policy specifically excluded housing as a potential exception. Under reference to Aberdeenshire Council v Scottish Ministers 2008 SC 485 (at [40]) housing could not be used to overcome the enhanced status afforded to an LDP under s.25 where (i) it has been specifically excluded as a sufficient reason under EP5 and it had already been taken into account by the reporter when the LDP had been arrived and adopted by the council.

The decision of the board was therefore unlawful and was quashed. The case will no doubt hearten environmental campaigners on both the test of person aggrieved and the significant weight to be afforded to LDPs which are framed in a way to avoid or minimise housing developments on Green sites.