Dairy firm and housebuilder win appeal over Bridge of Allan housing development

Lord Carloway
Lord Carloway

A family dairy company and a housebuilder who challenged a Scottish local authority’s refusal to grant planning permission for a new housing development on green belt land have successfully appealed against the decision.

The Inner House of the Court of Session allowed the appeal by Graham’s The Family Dairy and McTaggart & Mickel Homes over plans for a 600-home development, nursery school, neighbourhood centre and public park located between Bridge of Allan and Causewayhead.

The Lord President, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that the appellants were appealing against a decision of the Scottish Ministers on 18 June 2018 dismissing an appeal against a decision by Stirling Council to refuse planning permission for the development. 

The primary issue was whether the respondents failed to take into account a relevant consideration or took into account an irrelevant one, notably in connection with the outcome of a local development plan process, which had occurred between the date of a reporter’s recommendation to the respondents and their decision which was taken about a year later.

The court was told that in March 2016 the council refused planning permission on the basis that the benefits of the development would not outweigh the disadvantages arising from non-compliance with the local development plan (LDP).

The appellants appealed and a reporter was appointed, who considered that the new development plan would address the local housing shortfall before any new housing to be built on the site if the appeal were allowed, and the respondents accepted the reporter’s conclusions and recommendations in full and upheld the decision.

However, it emerged that after the report had been submitted in June 2017 but before the respondents issued their decision, the new LDP which was approved in May 2018 had in fact identified a housing shortfall.

The appellants argued that the respondents erred by failing to take into account that the new LDP had been approved for adoption with the housing land supply shortfall of 169 units - a position not anticipated by the reporter - and failed to take into account that the actual shortfall could be as much as 897 homes. 

In reaching his recommendation, the reporter had taken into account that, when the new LDP was in place, there would be no shortfall, thus the respondents’ contention that the reporter’s reasoning had not proceeded on the basis that any shortfall would be remedied was “incorrect”. 

Allowing the appeal, the judges ruled that the respondents failed to take into account a relevant material consideration and also took into account an irrelevant consideration.

Delivering the opinion of the court, the Lord President said: “In arriving at his conclusion, the existence of an ongoing LDP process, which the reporter anticipated would satisfactorily address the housing land supply shortage, was a material consideration not only on the prematurity point but also in his assessment of the correct planning balance. 

“Once that consideration had ceased to be part of the equation, it was incumbent upon the decision maker to re-calibrate the balance and determine where the scales came to rest in a situation in which not only had that consideration ceased to be material but also a new LDP had produced a housing land supply shortage in respect of which there was no apparent solution. This itself became a new material consideration. 

“It may be correct to say that there was a shortage both at the time of the report and the point of the decision. The difference, and it was an important one to the reporter, was that at the time of the report it was anticipated that the shortage would soon be resolved. At the time of the decision, there was no resolution in sight.

“The respondents therefore failed to take into account a relevant material consideration; that the LDP process had been practically completed and produced a housing land supply shortage for which no solution was offered. They purported to take into account an irrelevant consideration; that there was an ongoing LDP process which would resolve the shortage in the relatively short term. For both of these reasons, the appeal must be allowed.”

© Scottish Legal News Ltd 2020

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