PlanningBlog – Brodies LLP

Hi

This is a guest blog by Emma Gilpin of  Brodies’ Public Law Litigation Team who worked on this case with our own Robert Seaton.

There was success in the Court of Session for Argyll and Bute Council (represented by Brodies) last week when Lord Doherty refused a petition for judicial review of a decision to grant outline planning permission for a housing development. His full opinion can be found at: http://www.scotcourts.gov.uk/opinions/2010CSOH122.html.

The petitioner was (as is often the case) a rival applicant for planning permission. In this case, however, there was an agreement between the petitioner and the successful applicant which meant that the petitioner had a commercial interest in the permission being granted.

The challenge focused mainly on the issue of provision of affordable housing; the council had provided for this by including a negative suspensive condition and the petitioner argued, for a variety of reasons, that the council had not adequately secured affordable housing provision. In particular the petitioner argued that, as the successful applicant did not own the land, the council ought to have secured a s75 agreement in order to ensure that the affordable housing provision would be met. The petitioner also argued that the council had wrongly put too much focus on this interest in dealing with his objection.

Lord Doherty rejected these arguments and held that the council had clearly had regard to all material considerations including the need to make provision for affordable housing. The fact that the individual did not own the site did not mean that use of a negative suspensive condition was inappropriate; what was appropriate depended on the particular circumstances and in this case adequate provision by making the grant subject to such a condition.

The decision is quite short and is worth a read for those interested in the issue of affordable housing provision and planning conditions.

Emma  says – “Catch me on the Brodies web site under Public Law and watch out for the soon to be launched Brodies’ Public Law blog. The Planning Team will have to up their game!”