Taylor Wimpey UK Ltd argued that the reporter for the Scottish Ministers who considered the initial planning appeal had erred in refusing the appeal on the basis that the proposed development would lead to an unsustainable increase in the use of cars in the area.

The appeal was heard by the Lord President, Lord Carloway, along with Lord Pentland and Lord Boyd of Duncansby. J Findlay KC appeared for the appellants and Tim Haddow, advocate, for the respondent.

Tilted balance

The appellants had applied for planning permission to construct around one hundred houses at a site within a green belt area at Planetreeyetts Farm to the north of Kilmacolm. The local authority, Inverclyde Council, refused permission. An appeal was made to the Scottish Ministers, who appointed a reporter. The reporter considered that the development would harm the landscape character and setting of Kilmacolm and would lead to an unsustainable increase in the use of cars in the area.

It was concluded by the reporter that these adverse impacts outweighed the benefits of the development. On appeal to the Court of Session, the appellants argued that the spatial strategy for the area already envisaged the provision of a substantial number of new houses in the vicinity of Kilmacolm that would inevitably lead to an increase in the number of car journeys in the area, and thus the reporter erred in refusing the appeal on that basis.

Counsel for the appellants further submitted that the reporter had failed to take into account material considerations such as the need for housing in the area. She had misdirected herself when balancing the presumption in favour of development which contributed to sustainable development, as a development which would remedy a housing shortage would almost inevitably contribute to this.

For the respondents, it was submitted that the appellants’ arguments amounted to a disagreement with the weight which the reporter attached to various factors when applying the tilted balance. Whilst other developments may also generate unsustainable vehicle trips, the weight to be attached to that factor was inherently site specific and a matter of planning judgement.

Matter of planning judgement

Lord Carloway, delivering the opinion of the court, began by explaining the relevant case law: “In Wordie Property Co v Secretary of State for Scotland (1984), the Lord President (Emslie) explained that a planning decision taken by the respondents will be regarded as ultra vires if they have failed to take into account a relevant consideration. What is relevant will vary from case to case. It is for the decision maker to determine in the first instance what is relevant and material and what is not.”

He continued: “Unlawfulness will only arise if the decision to discount a particular factor is ultimately unreasonable in the sense of it being one that no reasonable decision maker could have made. That means, in the context of this case, that unlawfulness will be made out only if the reporter’s decision not to take account of the inevitable increase in traffic flow from any development of 100 additional houses around Kilmacolm involved a consideration which was ‘obviously’ relevant.”

Addressing whether the reporter had erred, Lord Carloway said: “[The reporter] determined that there was a shortfall in the 5-year housing supply. That meant that steps had to be taken to remedy that problem through the granting of permission on greenfield sites provided that each of the five criteria were met. Whether these criteria had been met was essentially a matter of planning judgement, albeit that a failure to have regard to a relevant factor may vitiate that judgement.”

He concluded: “Consideration of each development will be site specific. Each requires to be assessed against the existing development plans and Scottish Planning Policy rather than a proposed Local Development Plan which may be significantly modified. As already noted, this is the exercise which the reporter embarked upon and followed through. Her conclusions, which flowed from her reasoning on matters of planning judgment, cannot be faulted.”

The appeal was therefore refused.