PlanningBlog – Brodies LLP

Well done to BBC Four for ”Tales from the National Park” on Sunday night (available on iplayer until 16 Nov).

A whole hour on whether the Loch Lomond Park Authority would give permission for Scotland’s first goldmine at Cononish, near Tyndrum.

It provided an intriguing insight into how the local community felt badly let down by the planning system when the initial application was refused.

Planning at the coalface ….

Contrary to the views of certain politicians, the Human Rights Act is concerned with more than prisoners’ voting rights and Bolivian cats. Human rights arguments inevitably come into play where land is acquired under compulsion, and rightly so.  But what about affected landowners living next to a scheme who don’t have land acquired? 

Part 1 of the Land Compensation (S) Act 1973 allows compensation to be claimed by landowners affected by noise, dust and other impacts caused by the use of public works (such as road and rail schemes), even where no land has been acquired from the claimant. Claims are limited to cases where the claimant’s property is devalued as a result, and various other qualifying tests must also be met. The recent case of Thomas v Bridgend County Borough Council concerning the equivalent English legislation provides a sharp reminder that Convention Rights are wide reaching, and may allow the courts to take an interventionist approach when interpreting other legislation to ensure those rights are upheld.

The Thomas case concerned  a bypass constructed in connection with a new housing estate.  Under the English Land Compensation Act (the LCA), a claim may only be made if the road in question is adopted at the date when it first comes into public use, or is subsequently adopted within 3 years of that date.  In Thomas, delay by the developer in bringing the road up to adoptable standard meant that this test was not met. Despite this, residents within the Estate pursued claims for compensation against the local roads authority, Bridgend CBC due to noise and other nuisance caused by traffic. The Council defended the claims on the basis of the 3 year rule.

In a bold move, the Court of Appeal allowed the claims. The LCA was to be read in such a way as to be consistent with Convention Rights – in particular the right to peaceful enjoyment of possessions. In assessing whether any interference with that right by the Council  was proportionate (and accordingly lawful), the availability of compensation was important. The effect of the 3 year rule was to deny any remedy to the residents in a manner described by the court as “absurd” and “bizarre”.  Accordingly the court felt able to reject the Council’ s case even though that approach required some creative reading of the LCA. 

The 3 year doesn’t apply in Scotland.  What’s significant in this case is the freedom which the court had to look beyond the letter of seemingly plain legislation to bring about a result which would square with the Convention. 

The moral of this story has much wider application than schemes of public works and compulsory purchase, but acquiring authorities should certainly take note when budgetting for potential liability under a new  project.  That compensation bill could be higher than expected…

New permitted development rights for householder development from 6 February 2012:

• More clarity – eg. specific rights for decking, extensions, porches and access ramps.
• More generous PDR for extensions, and freestanding buildings (although there are cases of what’s given with one hand being taken away with the other)
• Hardstandings – must be porous or run-off to be directed to permeable or porous area or surface
• Less PDR in conservation areas – eg. no PDR for extensions or fences and walls.
• PDR introduced for flats – minor improvements or alterations, but not enlargement, or adding balconies and roof terraces, or altering dimensions of windows or door openings
• Classes 6A (solar PV and solar thermal equipment on houses and flats) and 6B (free standing solar) are being deleted – it’s not clear if that’s because they are included in some of the more general new rights. Hopefully the circular which is due to be published in December will clarify that.

It’s worth remembering that if work which was previously PDR is refused planning permission, there is a statutory right to claim compensation from the planning authority, provided the planning application was submitted within 12 months of the removal of the PDR.

Dawn have failed in their challenge to South Lanarkshire Council’s decision to grant planning permission to JHAG for a development including a superstore at Redwood Crescent, East Kilbride. Dawn’s planning permission appeal for their superstore proposal at West Mains Road, East Kilbride has also failed. The end of a saga? We’ll see.

Lord Drummond Young’s decision strongly supports planning authorities:

• applying the sequential approach is an exercise of planning judgment
• it can only be challenged on ground of perversity or irrationality, even if interpretation of what Scottish Government guidance means is involved
• because Dawn’s site and JHAG’s site were sequentially equal, the Council were entitled to disregard Dawn’s site in considering the JHAG application
• the Council were also entitled to reject the relevance of Dawn’s site on the basis that the JHAG development was too big to be accommodated on it – the Scottish Government guidance refers to flexibility, which indicates that a planning authority may take the view that the larger scale of development is appropriate even though a smaller development could be situated on a more central location
• in the circumstances there was no unfairness in deciding JHAG’s application without waiting for Dawn’s to catch up

This is the latest in a line of decisions from the Court of Session indicating that the sequential approach is a judgment call for planning authorities. Good news for planning authorities, but they will still need to deal with retail applications carefully.

My wife dragged me to Newcraighall Village at the weekend on a shopping expedition. Little did she know that it’s part of a planning cause celebre.

Following a change in the law, reporters’ recommendations following local development plan examinations are (almost) binding. As a developer said to me, that’s fine, until the reporter recommends taking your site out of the plan.

It’s interesting to muse on the difference it would have made if the new law had applied to the City of Edinburgh local plan. The issue was sites to fulfil the requirement in the structure plan for 400 houses in Edinburgh’s Urban Fringe. The Council proposed 2 sites in Newcraighall. The reporters recommended that the capacity of those sites be reduced, and 2 further sites at Dreghorn and Burdiehouse be allocated. The councillors did not accept the recommendation, and retained the allocation of the 2 sites in Newcraighall.

Since then the Court of Session quashed the allocation of the Newcraighall sites (Hallam Land case); and planning permission appeals have been successful for the Burdiehouse and Dreghorn sites; and the Council is processing planning applications for the Newcraighall sites.

The Council adopted the local plan in January 2010. One Court of Session case and two planning appeals later, and the reporters’ recommendations have broadly been implemented. That’s two developers who would have preferred reporters’ recommendations to be binding.

One to watch is the North Lanarkshire local plan. The reporters have issued an interim conclusion that additional effective housing land is needed in the Cumbernauld housing sub market area, and have contacted parties seeking their views on the 39 sites which have been suggested to the reporters.

Very informative as usual (link). What caught my eye:

• 45% success rate for all appeals – wow! But the Review speculates that in the current economic climate only the stronger appeals will be submitted.
• success rates vary dramatically between authorities – ignoring those with less than 5 appeals, 9 authorities had more than 50% of appeals upheld against them, the worst being West Dunbartonshire which lost all 6 appeals. East Dumbartonshire, Falkirk, Scottish Borders, and West Lothian all lost more than 70% of their appeal cases. I wonder how many were decisions contrary to recommendation? The star authority is South Lanarkshire, which only lost 2 out of 12 appeals.
• awards of expenses are still difficult to obtain, with only 33 out of 85 claims by appellants being successful 
• Court of Session appeals – of 13 cases disposed of, 6 were conceded by DPEA, 1 reporter’s decision quashed, 3 upheld, and 3 appeals withdrawn - a particularly bad year, but the Review doesn’t tell us why
• planning permission appeals – only 282 received, compared to 777 in 2009-10, which is partly due to the introduction of local review bodies
• types of development - housebuilding appeals are well down, as are hotels. Major retailing is much the same. Wind energy appeals are down almost 50%, but that’s maybe because sub 20MW developments decided under delegated powers are appealed to LRBs.

Another one for Robert’s philosophy corner – what is “new evidence”?

In the recent Bancon case, the Court of Session agreed with the appellants that the reporter had determined the appeal on the basis of new evidence, gathered on the site visit, without the appellants being given an opportunity to make representations.

The written submissions had focused on the narrow issue of the inability to formalise a proposed pedestrian and cycle linkage, whereas the reporter went on to consider whether the link was the most favourable of 3 informal routes which were available.

The Court acknowledged this was a relevant matter for him to consider, but fairness required him to give the parties an opportunity to make representations on that matter, since the parties had not provided evidence on the 2 other possible routes.

It’s a reminder that, irrespective of how abbreviated the appeal procedure might be, there is still an overriding requirement for fairness. The parties must be given a “fair crack of the whip”.

Anyone who’s read the Hitchhiker’s Guide to the Galaxy knows that public notices relating to planning are advertised by the Council by being displayed in the bottom of a locked filing cabinet in an unlit disused basement lavatory with a sign on the door saying “Beware of the Leopard”. That doesn’t reflect reality of course. Does it? Well, there are shades of the hitchhiker in the recent decision of the Court of Session in the Hunterston case.

The objector fronting the challenge, Marco McGinty, argued that there was insufficient notice of the public consultation on designation of the Hunterston development in NPF2. McGinty had not made any representations on Hunterston’s designation, because he did not know about the consultation on it or its strategic environmental assessment (SEA) – he’d not seen any notice of it.

Notice of the consultation was published only in the Edinburgh Gazette (hardly a top seller in North Ayrshire) and on the Scottish Government’s planning website. Six weeks were allowed for responses. The Edinburgh Gazette notice of the consultation didn’t name the Hunterston development (or any of the other candidate national developments) specifically. No local newspaper had carried the notice – and it appears they didn’t pick up the story.

There were only 26 responses in total (regarding all 52 candidate national developments), and none from a member of the public in the Hunterston area. This can be contrasted with the ongoing application for the Hunterston power station, which has attracted nearly 20,000 objections.

Nonetheless Lord Brailsford decided that the consultation procedure adopted by the Scottish Ministers complied with the legal requirements. McGinty’s challenge was also rejected for lack of interest to sue, because he lives five miles from the site and only sometimes visits it for pleasure and exercise.

Furthermore, Lord Brailsford considered that, to succeed, McGinty should have made his challenge promptly after the consultation on candidate national developments appeared in September 2008. He actually challenged in September 2009. Although this was only seven weeks after he’d first learned of the inclusion of Hunterston, it was too late.

One of the underlying objectives of the planning reforms (and the SEA legislation) was to involve local people more in the decisions which affect them and their communities, particularly those with significant environmental effects. In this context, some might think that the Scottish Government’s consultation left something to be desired. But since the Court of Session didn’t, the moral of this story is if you want to stay informed about what’s happening in your neighbourhood, keep taking the Edinburgh Gazette, have a stick to beat off the leopard (and for hitchhikers, always know where your towel is).

See our renewablesblog for more about the SPICe briefing.

I was chairing a conference on section 75s last week. A speaker expressed concern about the relative lack of publicity for applications to modify section 75s.

Virtually every section 75 is entered into in connection with an application for planning permission. That application is notified to neighbours, often advertised, and sent to statutory consultees for comment. If it is for a national or major development, there is a requirement for pre-application consultation.

The Scottish Government planning policy states that a section 75 should be only sought where it is necessary to make the proposed development acceptable in planning terms.

Given this very significant role in the grant of a planning permission, it is surprising that an application to modify a section 75 only has to be notified to the owner of the land and any other person against whom the section 75 is enforceable - no requirement to notify neighbours, the community council, or any person who made representations in response to the planning application.

This means that the nature of a development can be fundamentally altered with very little publicity. Already we have the example of a non-food retail unit being opened up to food retail use, by using the variation procedure.

This is hard to square with Aarhus and human rights.