• Issue 45

  • Mar 2019

The Source

Airthrey Kerse Court Ruling

Last month the Court of Session overturned the decision by Scottish Ministers to refuse planning permission for 600 homes, a new primary school and a public park at Airthrey Kerse, Bridge of Allan, Stirling.

Graham’s The Family Dairy alongside Mactaggart and Mickel Homes lodged the initial planning application in 2014 which was then rejected by councillors in March 2016 despite Officers recommending approval in light of a substantial shortfall in housing land. Councillors refused planning permission on the loss of green belt, flooding concerns and on the grounds that the development would run counter to the local development plan.

Graham’s Dairy then lodged an appeal in April 2016 (PPA-390-2043). This was then called-in and dismissed by the Minister in June 2018 in line with the recommendation of his Reporter, made in June of 2017.

In June 2018 Graham’s Dairy lodged an appeal to the Court of Session. This appeal was submitted on the grounds that the Scottish Ministers failed to take account of relevant considerations, mainly regarding housing land supply, and the LDP examination process. This principally related to the time which passed between the recommendation of the Reporter in 2017, and the decision of the Minister in 2018. They argued that the Scottish Ministers relied wholly on the Reporter’s recommendation that approving the appeal would prejudice the outcome of the LDP examination which could, at the time of the Report be reasonably expected to address any shortfall.

However, this recommendation was made in June 2017 and by the time the decision was issued in June 2018 by Scottish Ministers, the LDP examination had concluded and the LDP was to be adopted with a shortfall remaining.

In his decision Scotland’s most senior judge, Lord Carloway, the Lord President, said that Ministers failed to take into account a relevant material consideration – that the LDP process had been practically completed and as a result produced a housing land supply shortage for which no solution was offered.  Lord Carloway also said the Ministers took into account an irrelevant consideration – that there was an ongoing LDP process which would resolve the shortage in the relatively short term. This became irrelevant as the LDP process was completed between the recommendation of the Reporter and the decision of the Minister.

In quashing the decision Lord Carloway strongly criticised Minsters’ approach; “The respondent’s wholescale adoption of the reporter’s reasoning betrays a somewhat careless approach to decision making or at least the provision of adequate reasons”.

The appeal will be re-determined in due course, and the approach of the appellant, council, DPEA and Ministers will be interesting to follow.

It highlights the current glacial pace of determination of both applications and appeals in the planning system. Scotland is facing a deficit of 80,000 homes and the Government wants to see 23,000 new homes a year to meet the needs and demands of a growing country. Set in that context, that a development of 600 homes plus infrastructure, originally recommended for approval by Officers is still in planning limbo after more than four years is a damming indictment of the current state of the system, and it remains to be seen how the current planning reform agenda will address this.

The appeal decision PPA-390-2043 can be found at: https://www.gov.scot/publications/planning-decision-ppa-390-2043/

The Court of Session Decision can be found at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csih3.pdf?sfvrsn=0