Gypsy Traveller resident of Pitlochry loses challenge against grant of permission for brewery near ancient woodland

About this case:

• Citation:
  [2025] CSOH 102
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Cubie

Roseanna McPhee, who was a member of the Gypsy Traveller community along with others in her local area, sought review of the decision by Perth and Kinross Council having objected on the grounds of potential harassment by patrons of the taproom and the detrimental impact on ancient woodland. The respondents contended that reference could be made to the Report of Handling for the application to support its reasons, and the Public Sector Equality Duty was not engaged.

The petition was considered by Lord Cubie in the Outer House of the Court of Session, with K Springham KC and S McPhee, advocate, appearing for the petitioner and A Burnet KC and D Blair, advocate, for the respondent.

Fatal to procedure

By application of 18 October 2023, Wasted Degrees Holdings Limited applied to Perth and Kinross Council for planning permission for brewery, tap room, storage, vehicle access, parking and associated components at land south of Council Cottages, Ferry Road, Pitlochry.  The proposed development would involve the removal of established trees in an area of ancient woodland, with the petitioner’s home at Bobbin Mill, an area of historic interest to the Gypsy Traveller community, located less than 100 metres from the site.

In a previous petition for judicial review, the respondent conceded that it erred in law by failing to consider whether the proposed development would result in the loss of ancient woodland, and the decision was reduced in terms of a joint minute. However, a fresh application was made and granted following reconsideration in February 2025.

The petitioner submitted that the respondent’s reasons for its decision were inadequate and did not deal with a departure from the development plan including the National Planning Framework 4, under which it was provided that proposals would not be supported where they would result in any loss of ancient woodland. The absence of reasons in the decision notice, which only provided conclusions, was fatal to the procedure. An additional challenge was advanced based on the respondent’s failure to comply with the Public Sector Equality Duty.

For the respondent it was submitted that the council had considered the woodland issues in its Report of Handling, and that the tree officer’s conclusion was that the vegetation on the edges of the woodland hosted non-native invasive species and dead trees. It was legitimate to take account of that material. In respect of the PSED, it was acknowledged that the petitioner and other residents of Bobbin Mill shared the protected characteristic of race, but the actions complained of were not acts to which the PSED applied.

Over puristic approach

In his decision, Lord Cubie said of the provided reasons for the decision: “The approach apparently contended for by the petitioner, that the observer is restricted to only the decision letter, is an over puristic or legalistic approach; I cannot accept that the interested observer is confined, as a matter of law, to a passive or even inert state; knowing or suspecting where the answer may lie, but unable for want of a precise trigger in the stated reason, or justification, to look at other material.”

He added: “The petitioner having raised the issue of ancient woodland must be regarded as informed; there is a detailed analysis of the woodland. Although the reference to material considerations could have been more detailed, the de minimis affect upon the ancient woodland, the condition of the relevant trees and the steps taken to preserve are sufficient for the purposes of providing a lawful decision. The reasons given while brief and making reference to the Report of Handling are adequate.”

Considering the PSED, Lord Cubie noted: “The petitioner [is] to be commended for [her] work in keeping the rights and protected characteristics of the Gypsy Traveller community in the public consciousness; the material provided was interesting, important and even chastening, but the concern of the court is with its relevance to the judicial review of an application for planning permission. The issue of PSED cannot eclipse what is a routine application for planning permission which happened to be close to a Gypsy Traveller site.”

He concluded: “Important as the matters raised are to the petitioner and her family, what the court is dealing with is a planning application for the development of a brewery and tap room. The concerns expressed are not core to the consideration of a planning application. The perceived increase in risk was not as the respondent points out said to be as a result of any actions by the respondent. The issues raised so far as relevant to the application have been addressed and considered to be satisfactorily addressed in line with national and local planning policy.”

The petition was therefore refused in respect of both grounds of challenge.