Cosmopolitan Hotels Ltd had applied for planning permission in principle for residential development at a site adjacent to the Erskine Bridge Hotel. It petitioned the Outer House of the Court of Session for reduction of the decision on the basis that the recommendation the respondent acted upon contained a material error.

The petition was heard by Lord Tyre. Armstrong QC appeared for the petitioner and Burnet QC for the respondent.

Valued woodland

The respondent had been in the final stages of devising a new Local Development Plan. On 9 March 2021, the council’s communities, housing and planning policy board resolved to authorise the modification of the proposed LDP in line with various recommendations by reporters appointed by the Scottish Ministers. One of these recommendations included the removal of the site owned by the petitioner from the list of sites allocated for residential development.

The site was considered by reporters following the receipt of an objection to its allocation for housing. In particular, concerns were raised about the loss of trees at the site, which had been identified as a Site of Interest for Natural Conservation. A previous planning application for the site, dated 13 November 2020, had been rejected by the respondent on the basis that it would break an existing wildlife corridor and remove valued woodland.

The reporter took the decision of November 2020 to be the council’s up-to-date view on the principle of housing development at the site and based on this and the shortcomings in developing the site made the recommendation for its removal from the list. Counsel for the petitioner contended that this reasoning was flawed, and that a decision on a planning application could not be taken as changing the settled view of the council on a development plan allocation.

It was submitted for the respondent that the application for judicial review was incompetent, based on section 237(1) of the Town and Country Planning (Scotland) Act 1997. The appropriate procedure in the challenge of the validity of a plan was, per the 1997 Act, to be found in section 238, and any other form of legal challenge was excluded by statute.

Clearly within scope

In his decision, Lord Tyre began: “The purpose of the application is to challenge the validity of the proposed local development plan in so far as it applies to the site, and it therefore falls squarely within section 237(1)(a). The basis of the challenge is that there was a flaw in the decision-making process, but the challenge is to the validity of that part of the plan.”

He continued: “Equally, the petitioner’s complaint falls clearly within the scope of section 238(1), which permits an application to the Court of Session by any person aggrieved by a local development plan on the ground that it is not within the powers conferred by Part II of the 1997 Act.”

Lord Tyre concluded: “The logical position, if the petitioner were to present a successful application under section 238, would appear to be to rewind to the Board’s consideration of the reporter’s recommendations in relation to the site, which is, in effect, the result that the petitioner is attempting to obtain by its application for judicial review. However, [this] would be a matter for the discretion of the Council. I should add that this outcome appears to me to be in accordance with sound public policy.”

The petition was therefore ruled as incompetent and dismissed.

Exercise of judgement

In a postscript addressing the merits of the petitioner’s challenge, Lord Tyre noted: “The officials were, in my opinion, entitled to reach [their] conclusion. The reporter’s decision to remove the site from allocation for residential development, with the effect of leaving it as part of a transitional area with housing as one possible use, was in substance an exercise of planning judgement.”

He added: “No error on the part of the reporter that would have entitled the Board to decline to make the recommended modification has been demonstrated. It follows that no unfairness or procedural impropriety was caused by the officials’ decision not to draw the petitioner’s representation to the attention of the Board.”