RECLAIMING MOTION IN THE PETITION OF ST ANDREWS ENVIRONMENTAL PROTECTION ASSOCIATION LIMITED FOR JUDICIAL REVIEW
EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 22
P807/14
Lord Drummond Young
Lady Clark of Calton
Lord Malcolm
OPINION OF THE COURT
delivered by LORD MALCOLM
in the reclaiming motion
in the petition of
ST ANDREWS ENVIRONMENTAL PROTECTION ASSOCIATION LIMITED
Petitioner and reclaimer;
for
Judicial Review of a decision of Fife Council of 16 May 2014 to grant planning permission in principle for the erection of a secondary school with associated facilities at land to the north of Pipeland Farm, Largo Road, St Andrews
Respondents:
Petitioner and reclaimer: Findlay; Gillespie Macandrew LLP
Respondents: Armstrong QC; Balfour + Manson LLP
18 March 2016
[1] On 16 May 2014 Fife Council, acting as planning authority, granted planning permission in principle for a new secondary school and associated facilities, including playing fields, (the proposed new Madras College) on land owned by Hermiston Securities Limited to the north of Pipeland Farm, Largo Road, St Andrews. The applicant was the property services department of the council, acting on behalf of the council as education authority. The decision gave the go ahead for a major development in the green belt and on prime agricultural land, and thus was contrary to the terms of the development plan. The proposal to build at Pipeland has proved controversial, and came after many years of local debate as to the best way forward in respect of the acknowledged need for new and better secondary school facilities in the area.
[2] The St Andrews Environmental Protection Association Limited (the petitioner), with the benefit of a protective expenses order, has raised a petition seeking judicial review of the grant of planning permission. The objects of the petitioner include the advancement of the environmental protection of St Andrews. The petition notes that on 20 March 2014 the North East (Fife) planning committee recommended that the application be refused in the interests of, amongst other things, protecting the countryside, the green belt and prime agricultural land to the south of St Andrews. The committee considered that there was insufficient evidence that no other site was available for the new school; that the proposal was contrary to local plan policies; and that no material considerations justified setting them aside. In so acting the committee rejected the planning officer’s recommendation for conditional approval.
[3] The application then came before the full council which, after considering the planning officer’s favourable report and the planning committee’s recommendation to refuse the application, granted planning permission in principle, subject to a number of conditions. The reasons given for making this decision noted that the new secondary school development was contrary to the development plan. Significant weight was placed on the need for the school and the “lack of a suitable, available, alternative site” within the environs of St Andrews; a phrase taken from advice set out in national planning policy regarding development in the green belt. The reasons continued:
“There is overwhelming evidence set out over a significant period of time that the existing two secondary school buildings that make up Madras are not providing an appropriate environment for the delivery of the secondary education curriculum for St Andrews and the North East Fife settlements that make up the school catchment for Madras. The various documents and assessments submitted with the application along with the description of the school requirements set by the executive committee of Fife Council in December 2012 indicate that there are very few areas of land large enough within the vicinity of St Andrews that could deliver an appropriate replacement school. The school requirements (a single site facility) also rendered the option identified within the local plan (North Haugh) as unsuitable. Of those sites that are large enough only the Pipeland site is both suitable and available within a reasonable time scale that would ensure that progress on the replacement school commenced within the next 12 months. Ultimately, the determination has been made on the basis of whether an alternative site is suitable for the proposed development, not whether the proposed development can be altered or reduced so that it can be made to fit an alternative site. The weight attached to this matter is considered to be sufficient to set aside the terms of the development plan in this regard.”
[4] There was no question as to the landscape impact of the development within the green belt. A large, high building, with associated car and bus parks, would have an unavoidable urban context that could not respond to the green belt landscape setting nor follow the height and form restrictions placed on the adjacent hospital building in 2004. Given the pupil numbers, the scale of the school building could not be reduced and the playing fields necessarily resulted in the creation of flat platforms. There would be major intrusion in respect of personal privacy and amenity. So far as other issues, such as traffic and transport, natural heritage and contaminated land were concerned, the view was taken that they could be adequately addressed by conditions imposed upon the planning permission. Following upon the decision the Scottish Ministers intimated that they did not intend to call in the planning application.
[5] The requirements for the new school identified by the executive committee as education authority in December 2012 included that the new school should, “where possible”, be able to deliver all aspects of the curriculum and the extended curriculum on a single site, and “if possible” be afforded the space to maximise flexibility as the demands and requirements of the curriculum develop and change. The committee also wanted to avoid a lengthy decant of pupils while the new school was being built, and agreed that the council should not settle for a school that would be second or third best in its pursuit of a replacement Madras College. The committee concluded that Pipeland is the only site, of several which had been considered, which meets the key criteria of availability, affordability, flexibility and deliverability. It would also avoid decant arrangements.
The submissions before the Lord Ordinary
[6] Before the Lord Ordinary the petitioner contended that the planning officer’s report and the full council’s decision treated the education authority’s criteria as if they were overriding planning requirements. There was no balancing of educational and planning considerations in respect of Pipeland and the alternative sites. The decision to rule out the local plan site at North Haugh as too small ignored the possibility of combining it with the current playing fields at Station Park. The two sites are contiguous, although separated by a major road, namely the A91. Any concern as to a split site is easily addressed by, for example, the construction of an underpass.
[7] For the planning authority it was submitted that it was fully entitled to conclude that Pipeland was the only site which would meet the requirements for the proposed development. Reference was made to the report to the December 2012 executive committee which, in respect of North Haugh, drew attention to the need for an underpass, and also for an access road, something which could be delayed given the time scale for a proposed distributor road. The report also pointed to certain constraints which were said to render the North Haugh site “undevelopable for use as a secondary school”. It was noted that previous negotiations with the university (which owns the land) had proved unsuccessful.
The Lord Ordinary’s decision
[8] The Lord Ordinary refused the application for judicial review. His reasons can be summarised as follows. The planning authority did not overlook the possibility of North Haugh being used in conjunction with the playing fields at Station Park. It was referred to as a split site. In the circumstances that was neither perverse nor erroneous, given the separation by a major A class road. As to the complaint that the education authority’s requirements were treated as determinative of the no other suitable site issue, the Lord Ordinary considered it obvious that there are likely to be disadvantages if a school is made up of a number of campuses situated on sites remote from each other. However, a careful reading of the planning officer’s report showed that the North Haugh site was not ruled out only on the basis that it is a split site. Nor could it be said that no consideration was given to the disadvantage of having the school buildings located at North Haugh, with the playing fields across the road at Station Park, or to any other factor (paragraph 33). The Lord Ordinary quoted the planning officer at paragraph 2.6.21 of the report:
“The provision of sports pitches on the same site as the school building itself is a key outcome of the ‘single site’ expectation. Physical education is part of the curriculum and providing the facilities next to the building thus reducing pupil and staff travel time to the playing pitches is the main impact of this decision. The decision to discount any site not large enough to have the playing pitches on the single site rules out North Haugh…”
[9] The Lord Ordinary accepted that the degree of disadvantage resulting from the split site would be less than where the sites were remote from each other. However, he observed that “it does not follow that the disadvantage at North Haugh/Station Park would not be significant”. The councillors were better placed than the court to determine that matter. The split site was not the only factor. The planning officer’s report (paragraph 2.6.22) stated that the North Haugh site did not have the space which might be necessary for a developing curriculum in the future.
[10] The view was taken that the council’s decision was made for the reasons set out in the planning officer’s report of 20 March 2014. These did not include any reference to issues concerning the availability or otherwise of the North Haugh site. The Lord Ordinary stressed that the court cannot enter into the planning merits of the matter. “If the North Haugh/Station Park was unsuitable then it mattered not a jot that development on it would be more consistent with the development plan than development at Pipeland”. The weight to be attached to the disadvantage of the site being split and too small for future development were for the judgment of the planning authority.
[11] The Lord Ordinary advised that, had he been persuaded that the decision was unlawful, he would have granted decree of reduction. He would not have accepted a submission that there was no real possibility of the council, if and when reconsidering the matter, coming to a different decision.
The submissions to this court
[12] The Lord Ordinary’s decision is now the subject of this reclaiming motion (appeal). For the petitioner, Mr Findlay repeated the submission that the planning report and the planning authority erred in treating North Haugh/Station Park as a split site, and in failing to carry out a proper planning balancing exercise before concluding that Pipeland is the only suitable site. Reference was made to section 25(1) of the Town and Country Planning (Scotland) Act 1997 and to various decided cases, including R (on the application of Langley Park School for Girls Governing Body) v Bromley LBC [2010] P & CR 10, especially Sullivan LJ at paragraphs 52/53. Mr Findlay stressed that the judicial review has to be carried out under reference to the reasons given by the planning authority, not those made on earlier occasions by the education authority when ruling in or ruling out the various possible locations considered for the new school. The reasons given by the planning authority were lifted straight from the conclusions in the planning officer’s report. Reference was made to the “requirements” for the new school, even though the education authority had expressed only preferences, for example, “where possible” to have a single site. They were treated as determinative, and thus there was no assessment of whether the planning disadvantages of the Pipeland site outweighed any educational advantages flowing from it; nor whether any disadvantages of another site outweighed the benefits which would flow from avoiding development in the green belt. The planning authority required to address these matters before it could conclude that development on the green belt was necessary and justified. The report foreclosed the planning assessment which the planning authority was required to carry out. It did this by, in effect, advising that the decisions taken by the education authority resolved the key planning issue, namely whether the need for a new school justified building on the green belt.
[13] The report diverted the authority from, amongst others, the site allocated as an option for a new school in the local plan, and steered the planning authority away from the obvious solution of an underpass or bridge linking North Haugh and Station Park. While similar criticisms could be made in respect of other sites, the failings on the part of the planning authority could be illustrated by the lack of any consideration as to whether the disadvantages of the North Haugh/Station Park site, whether viewed as a split site or not, were of such moment as to justify the serious harm flowing from development at Pipeland. It was not a matter of the planning authority having weighed up the relevant material considerations and come to a balanced decision in terms of section 25 of the Act. This exercise simply never took place.
[14] For the planning authority, under reference to Tesco Stores Ltd v Dundee City Council 2012 SC (UKSC) 278, Mr Armstrong QC submitted that the decision of the education authority that Pipeland is the only suitable site, reached after a long and extensive process of statutory consultation, was a material consideration in favour of the proposal. There was only one application before the council. It was not “a beauty contest”. The desire is to have the playing fields “next to” the school buildings. There is an urgent and pressing need for the school. North Haugh consistently scored close to the bottom of the sites considered by the education authority. Based on the information in the environmental statement, the education authority is of the opinion that North Haugh is not developable as a secondary school. In any event, it is considered that it is not available in the short term. Counsel made extensive reference to the environmental statement and to documents relating to the education authority’s search for a new site. There would be no guarantee of success in respect of any exercise of compulsory purchase powers, should such be needed. At one time a site at Kilrymont had been promoted, but, as a split site, it did not attract the support of parents.
[15] Mr Armstrong submitted that the guidance in Tesco at paragraphs 24 and 37/38 had been followed. The planning report did not rule out other sites. It and the planning authority simply gave the views of the education authority overriding weight, as they were entitled to do. Reference was made to Lord Clyde’s speech in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 at pages 44/5.
[16] If it was a reasonable reading of the planning report that it was Pipeland or nothing, Mr Armstrong accepted that the report would be misleading. He also agreed that it is reasonable to conclude that, in rejecting North Haugh/Station Park, the planning authority was of the view that it was a split site, not a single site. However, this would remain the position even if an underpass was constructed, because the playing fields would not be adjacent to and overlooked by the school buildings.
[17] If the court was against him on the main issue, Mr Armstrong submitted that it did not follow that the court should grant the remedy of reduction. The case could be put out by order for discussion in light of the specific terms of the court’s decision.
[18] In reply, Mr Findlay drew attention to the terms of Planning Advice Note 82 which provides guidance in cases, such as the present, when the council has an interest in the proposed development. He referred to paragraphs 28/9 of the Tesco decision. Even on their own terms, the education authority’s “requirements” were not absolute, but no flexibility had been demonstrated by the planning authority. No document discussed the underpass joint site possibility regarding North Haugh/Station Park. The view that the playing fields had to be beside the school buildings was proposed for the first time by Mr Armstrong in the course of the hearing. It was unlikely that the pitches at Pipeland would be “next to” the school buildings.
[19] With reference to the various reasons given in earlier documents for rejecting a particular site, the focus should be on the reasons adopted by the planning authority for its decision. They did not include any alleged problems concerning the “developability” of the North Haugh site. The environmental statement provided information to the planning authority for the purpose of assisting it in its own assessment, not as a substitute for such an assessment. Much of Mr Armstrong’s submission proceeded upon the mistaken assumption that the environmental statement could be read as forming part of the reasons for the planning decision.
[20] As the affidavits before the court demonstrate, to suggest that the North Haugh site is not available is a hotly contested issue, but, as the Lord Ordinary correctly noted, this question did not feature in the reasons for the decision under challenge. The petitioner “concentrated its fire” on the planning report and the reasons given for the grant of planning permission. Some sites had been withdrawn from consideration as being unavailable, but the North Haugh/Station Park site was not amongst them.
Case law
[21] The City of Edinburgh Council decision, so far as relevant, addressed the proper approach to the enhanced status of the development plan. This is now set out in section 25(1) of the 1997 Act, which provides that, where regard has to be made to the development plan, a planning determination shall be made in accordance with it, unless material considerations indicate otherwise. It was stressed that the planning decision remained one of judgment for the decision‑taker, whose assessment as to the weight to be given to the relevant material considerations would not be subject to review, unless it could be categorised as irrational or perverse. It was re‑affirmed that matters of planning judgment are for the planning authority, not the court.
[22] Tesco Stores considered a question arising in the context of the sequential approach to site selection for new retail developments. The Dundee local plan provided that out of centre developments would be permitted only if no suitable site was available within, or failing that, on the edge of the city centre. The planning authority gave permission to Asda for an out of centre superstore on the basis that it was justified by certain material considerations. Tesco argued that the authority had misinterpreted the policy by proceeding upon the basis that “suitable” meant “suitable for the development proposed by the applicant”. It should have been understood as covering sites “suitable for meeting identified retail deficiencies in retail provision in the area”. As a result the planning authority failed to appreciate the extent of the conflict between the proposal and the development plan. The authority treated the nature and scale of the proposed development as definitive when assessing whether another suitable site was available. A site was available in Lochee, but had been ruled out as being too small for Asda’s requirements. The Lochee site afforded 1.45 hectares. The application site extended to 6.68 hectares.
[23] The UK Supreme Court held that the planning authority had been correct to construe the policy as directing attention to a suitable alternative site “for the proposed development”. That was the ordinary meaning of the words used in the policy (Lord Reed at paragraph 25). This was subject to the qualification that the sequential approach required “flexibility and realism from developers and retailers as well as planning authorities” (paragraph 28). This resolved the concern that otherwise a developer could ride roughshod over the policy by ensuring that the proposal was of such a scale and nature as could not be accommodated in a city centre or edge of city centre location. Where appropriate a retailer should be prepared to adjust or subdivide its proposal so that it could fit within the centre, and also demonstrate that this had been fully addressed. It would be “an oversimplification to say that the characteristics of the proposed development… are necessarily definitive for the purpose of the sequential test” (paragraph 29).
[24] Lord Reed was satisfied that a flexible approach had been adopted. The Lochee site was far smaller than the applicants required. The car parking facilities were inadequate. “In accepting that assessment, the (planning authority) exercised their judgment as to how the policy should be applied to the facts; they did not proceed on an erroneous understanding of the policy” (paragraph 30). In any event there was no prospect of any other development of the application site (the former NCR facility on the Kingsway), nor of any development elsewhere which could deliver equivalent planning and economic benefits. Any decision other than approval of the application was “implausible” (paragraph 31).
[25] Mr Armstrong submitted that this decision provided strong support for the lawfulness of the grant of planning permission at Pipeland. Though relating to the sequential approach to the location of retail developments, not to development in the green belt, the case did concern a policy similar in its terms to that applied by the council. However we do not understand the decision in Tesco Stores as providing any confirmation of Mr Armstrong’s proposition that the council was entitled to give “overriding weight” to the applicant’s criteria for the new school. Lord Reed emphasised that the planning authority must be satisfied that a flexible approach has been demonstrated by the developer before proceeding with an out of centre site. The underlying rationale is that, when considering the sequential test, the retailer is expected to take on board the preference for a centre or edge of centre site, and do all that can reasonably be expected of it to comply with the planning objective of avoiding out of centre retail development. It is that objective which is to drive both retailers and planning authorities when assessing whether there is a suitable site which is consistent with local and national planning policy. This assessment cannot be side-stepped by the planning authority under reference to the applicant’s requirements (or preferences) for the attributes of the development site.
[26] While of course allowed to have regard to the information submitted along with the application, the planning authority must critically and thoughtfully ponder the whole matter for itself – not simply accept the assurances and previous decisions of the developer. It seems clear that the Lochee site was always a non‑starter, thus Tesco’s attempt to thwart its rival’s proposal was always doomed to failure. However, if one thinks of a case where there are a number of alternative sites which are realistic possibilities, there is nothing in Lord Reed’s judgment to suggest that the planning authority can delegate the assessment to the developer, with it being given carte blanche as to the criteria to be applied. On the contrary, an exercise of planning judgment on the part of the planning authority concerning the application of the policy and the sequential test is required. Similar comments can be made in respect of a decision as to whether a development in the green belt is justified on the basis of the absence of an alternative urban location.
[27] In the Langley Park case, a girls school objected to proposals designed to provide new and better facilities for a boys school by relocating the buildings on the existing site. The problem was that the new buildings involved a substantial intrusion into Metropolitan Open Land (MOL), the London equivalent of green belt, and which is entitled to a similar level of protection. Other less intrusive options for the siting of the new buildings had been considered by the applicant, but the development proposal was adopted largely because it minimised disruption to the school’s activities during the construction phase. It was preferred by the education authority as the optimum layout solution for the new school in “educational, operational, environmental and planning terms”.
[28] The planning report offered little or no assessment of the impact of the proposal on the openness and visual amenity of the MOL. The girls school had relied upon an option scheme whereby the MOL would not be affected. However, in the report to committee, the advice was that, in effect, this scheme need not be considered. The proposal before the committee should be “considered on its merits”. Furthermore, given the educational need “on balance it may be considered acceptable”.
[29] In the reasons given for the grant of planning permission, the members noted the objection based on the less intrusive option for the new school, however “the application… did not contain that option”. Thus attention was focused only on the acceptability or otherwise of the proposal before the committee. No consideration was given to whether the damage to the MOL could be avoided by requiring the applicants and the education authority to work up proposals based upon the other scheme. The harm done to the MOL was judged to be overcome by the educational need for the new school.
[30] In a judicial review application brought by the objecting school, the process leading to approval was criticised as having failed to grapple with the central issue, namely whether the claimed educational benefits meant that the particular impact on openness was inevitable, or whether they could be achieved with less harm to the MOL. The court agreed that the decision was “seriously flawed” and quashed the permission. At paragraphs 52/53 Sullivan LJ said:
“52. The starting point must be the extent of the harm in planning terms (conflict with policy etc.) that would be caused by the application. If little or no harm would be caused by granting permission there would be no need to consider whether the harm (or the lack of it) might be avoided. The less the harm the more likely it would be (all other things being equal) that the local planning authority would need to be thoroughly persuaded of the merits of avoiding or reducing it by adopting an alternative scheme. At the other end of the spectrum, if a local planning authority considered that a proposed development would do really serious harm it would be entitled to refuse planning permission if it had not been persuaded by the applicant that there was no possibility, whether by adopting an alternative scheme, or otherwise, of avoiding or reducing that harm.
53. Where any particular application falls within this spectrum; whether there is a need to consider the possibility of avoiding or reducing the planning harm that would be caused by a particular proposal; and if so, how far evidence in support of that possibility, or the lack of it, should have been worked up in detail by the objectors or the applicant for permission; are all matters of planning judgment for the local planning authority. In the present case the members were not asked to make that judgment. They were effectively told at the onset that they could ignore (whether the injury could be avoided or reduced by alternative siting within the application site), and did so simply because the application for planning permission did not include the alternative siting for which the objectors were contending, and the members were considering the merits of that application.”
[31] There are obvious parallels between the Langley Park case and the present. Sullivan LJ stated that the members should have assessed the nature and degree of harm arising from the proposal; the nature and urgency of the need; the scope for alternatives which “could sensibly satisfy the need”; and “the extent to which the feasibility of such alternatives had been demonstrated (ie the weight which could be afforded to them)”. This did not happen because other options had been “ruled out” as not part of the planning application (paragraph 55). Having diverted the committee from considering whether the planning harm could be avoided or reduced by alternative siting of the buildings, the report was “misleading”.
[32] It was contended that any failures should not cause the court to quash the decision since the other option was impracticable, and this on the basis that the pupils and staff would have nowhere to go while the new school was being built. Sullivan LJ noted that the reasons given for the planning decision did not endorse that point of view. “Primary importance” had been given by the applicants to minimising disruption to the school during the redevelopment process, something which pointed to locating the new buildings away from the existing school. At paragraphs 60/61 his Lordship said:
“60. It is readily understandable that the (applicant), and perhaps the respondent in its capacity as local education authority, would accord overriding importance to this factor. The respondent was not, however, considering this application for planning permission in its capacity as the local education authority. It was considering the application as the local planning authority, and was under a statutory duty to determine the application in accordance with the development plan… unless material considerations indicated otherwise… As the local planning authority, the respondent’s priority in accordance with policy G2 was to ensure that any injury to the openness and visual amenity of the MOL was, if not avoided, then at least minimised as far as possible.
61. The ‘impracticability’ submission is premised on the priority accorded by the (applicants) to the objective of minimising disruption to the existing school. Siting the new buildings on the open part of the site would obviously meet this objective. The objectors were contending that siting the new buildings on the built up part of the site would better meet the policy imperative of not injuring the openness of the MOL. Whether there was a tension between the (applicants’) objective and the policy imperative, and if so how it should be resolved, eg by requiring the boys school to accept more than ‘minimum disruption’ and/or the use of more than the ‘absolute minimum’ of temporary teaching accommodation during the construction process, are matters for the respondent to determine as local planning authority. Since the report had not begun to engage with these issues, it is understandable that the members did not regard them as any part of the ‘merits’ of the application which they had to determine. For these reasons I am not persuaded that relief should be refused on the ground of ‘impracticability’”.
Discussion and decision
[33] There is, and has been for some time, a clear need for a new location for Madras College, ideally on a site not only big enough to encompass all the buildings and associated facilities, including playing fields, but also with room for possible expansion in the future. Over many years various possible locations have been studied, consulted upon, and assessed. In choosing its preferred site, the education authority applied its key criteria, which, understandably, focused on educational priorities, not planning considerations. In due course it applied to the planning authority for permission to erect the new school on a site which is in the green belt and on prime agricultural land. The proposal is contrary to the development plan, and thus, in terms of section 25 of the Act, can be approved only if justified by sufficiently weighty material considerations. In this regard, national planning policy advises that such a development might be approved on the basis of proven need and the absence of a suitable and available alternative site.
[34] The planning authority was satisfied that appropriate conditions could regulate many important environmental and other impacts at Pipeland, for example regarding traffic and residential amenity. Nonetheless, the fact of development in the green belt could not be avoided or mitigated. Given the admitted need, the key issue, which has proved to be very controversial, was whether the school had to be located at Pipeland, or whether it could and should be directed elsewhere with lesser or no adverse environmental consequences. The focus of much of the objections rested on the site identified in the local plan for a new school campus, namely North Haugh. Nonetheless, before the planning authority a number of others sites remained “in the running” as potentially suitable locations.
[35] In these circumstances, the task for the planning authority was a relatively complex one. Assuming that it was satisfied as to educational need, and that non-green belt impacts at Pipeland could be addressed by appropriate conditions, it then had to assess the respective merits and demerits of the other sites as compared with the merits and demerits of Pipeland. The preferences and requirements of the applicant were relevant factors, but by no means decisive. Any applicant developer, whether for retail, housing, or an educational development, will be influenced, perhaps primarily influenced, by its own interests. The role of the planning authority is to reflect and safeguard the wider public interest in the proper planning of development in the area, including appropriate protection and conservation of the environment. This is where the question of the suitability of alternative sites comes into the picture. Given the acknowledged significant harm caused by development at Pipeland, if, in the opinion of the planning authority, a satisfactory alternative could be found which is consistent with the development plan and causes significantly less environmental harm, that would be a clear reason for refusal of the current application. There would be no material consideration of sufficient weight to overcome the inconsistency with the development plan. A judgment has to be made by the planning authority – it cannot be delegated to the applicant, even where the applicant is the council itself as education authority. It is for the planning authority to determine, on the basis of all the relevant information before it, whether there is a suitable and available alternative location for the new school, and in particular one which should be pursued with a view to avoiding the inconsistency with the development plan and the resultant environmental damage. The developer may offer its own views, and the planning officer tender advice and recommendations, but the planning authority must address and apply its mind to the issue.
[36] As the Lord Ordinary observed, the planning authority did not reject the North Haugh/Station Park site on the basis that it was not available. This particular issue has generated heat in the press and elsewhere, with the university being very keen to correct any impression that it is not prepared to negotiate regarding the sale and purchase of this site. In the circumstances we do not require to express a concluded view on this question, but on the face of it, it seems difficult to rule out the North Haugh/Station Park site on the grounds of non‑availability – not least given the fall back of compulsory purchase powers in respect of the site identified in the local plan.
[37] It would appear that the factor which weighed with the planning officer and the planning authority was the separation of the North Haugh/Station Park site by the A91, and thus the apparent conflict with the education authority’s desire to locate all the facilities on a single site. The reference is “would appear” because nowhere is there a specific reference to North Haugh/Station Park as a split site. Nonetheless, during the hearing it was accepted that when, for example, mention is made of the North Haugh site in paragraph 2.6.21 of the report, this comprises a development straddling both the North Haugh and Station Park locations. Were it otherwise, one would have to conclude, contrary to the view of the Lord Ordinary, that this possibility had been overlooked – something which seems inherently unlikely – and would, in itself, amount to a failure to have regard to a relevant factor.
[38] In the course of discussion, counsel for the planning authority drew attention to other factors which, from time to time, had been taken into account when assessing North Haugh. However, we agree with Mr Findlay that attention should be concentrated on the reasons given by the planning authority for its decision. In any event, for present purposes, it is sufficient to note that at paragraph 2.6.21 the planning report states that the inability to have the playing fields on a single site “rules out” North Haugh, Strathtyrum, Langlands, University Playing Fields and Petherum Bridge.
“The primary impact of this decision is the immediate removal of the North Haugh from the list of suitable alternatives. Regardless of the detailed case expounded by objectors it is primarily this fact that precludes the North Haugh from being an acceptable site”.
This was part of the reasoning which led to the instruction at paragraph 2.6.33 that the Pipeland site “must be considered the only available and suitable site”. The author added that “significant weight” was being attached to “this fact” in the determination of the application and the assessment of the development against all the policies of the development plan. This thinking was carried through into the reasons issued with the decision notice: “School requirements (a single facility) also rendered the option identified within the local plan (North Haugh) as unsuitable”.
[39] The criticism was that the planning authority was presented with, and accepted the education authority’s decision as determinative of the judgment which it was required to make. (Though much of the discussion at the hearing focused on the North Haugh site, similar comments could be made in respect of other sites, all of which were “ruled out” for reasons of non‑conformity with the education authority’s criteria.) We consider that there is merit in this criticism. Not only must the planning authority apply its own mind to the question of alternative suitable sites, it must do so having regard to planning considerations. Thus, for example, as to North Haugh/Station Park, the question is not – does it meet the education authority’s requirements? The question is – does its existence mean that a proposal in the green belt and contrary to the development plan ought to be refused? This involves a consideration of factors such as – how significant are the concerns being expressed about the North Haugh/Station Park site? Are they sufficient for its rejection as an alternative site? Are they of such weight and importance as to justify the harmful consequences of development at Pipeland? Put in this way, if, as is accepted, the A91 issue can be addressed by a bridge or underpass, the planning authority must assess whether it is proper to “rule out” North Haugh/Station Park on the grounds that, at present, it is not a single site. Accepting that, even with an underpass or bridge, there will be a degree of separation of the school buildings and the playing fields, does this render it “unsuitable” in the sense intended by national planning policy? In the context, “unsuitable” is to be construed as a site which cannot reasonably be expected to be developed for the new school. It does not mean inconsistent with the applicant’s wishes. Were it otherwise, any developer could set out the parameters for the planning authority’s consideration and thereby exclude alternative locations which, in the balancing exercise required of the planning authority, should be brought into the overall picture. None of this is to say that the developer’s criteria are to be ignored, but, when judging whether other possible locations should result in refusal of a proposal contrary to the development plan, they cannot be given the decisive weight plainly afforded to them in the planning report and by the planning authority.
[40] We accept the submission that the planning authority has been led into this error by the terms of the planning report. For example, at paragraph 2.6.9 reference is made to Pipeland having been identified as:
“The only suitable site which meets the established criteria identified for Madras College (ie to deliver all aspects of the curriculum and the extended curriculum on a single site and is the only site available which also avoids the necessity of a decant arrangement)”.
Incidentally it is clear that this last point is factually incorrect – see paragraph 2.6.20. However, even if it was accurate, again the question would arise as to whether a decant was a price worth paying to avoid development in the green belt.
[41] It is hard to avoid the impression that the full council was being instructed that, given all the work done by the education authority over many years, the important decisions had already been taken, and that it was Pipeland or nothing – see, for example, the discussion under the heading “Is the choice of site clear?” at paragraph 2.6.9. At paragraph 2.6.12 it was observed that the objections were “essentially seeking to question the decision making process that culminated in the executive committee decision of December 2012”. The full council was told that it had no power to overturn that decision, the “necessary scrutiny” having taken place at the scrutiny committee on 8 January 2013. That was a “documented and limited decision and directly relates to the council’s role as the applicant in this case”. It was stated that any challenge to the executive committee must follow a different route.
“In any planning application assessment the planning authority would not have the locus to question the decisions of the applicant and expect their assessment to result in the applicant choosing a different site. The planning authority has the task of deciding if the proposed development is acceptable at the site chosen”.
[42] In our opinion the planning authority has adopted an erroneous approach similar in nature to that discussed in Langley Park at paragraphs 52/3. Any councillor reading the report would reasonably assume that if there was to be a new school, it had to be at Pipeland. Paragraphs 2.614 to 2.633, would be read as no more than an explanation for the advice that only Pipeland is a suitable site and the only one “worthy of consideration against the restrictive policies of the development plan”. The planning authority was diverted from the planning judgment which it required to carry out if properly exercising its jurisdiction. The full council was effectively told that it should ignore the issue as to whether the green belt could be protected by using an urban site, because the applicant had already considered the matter and its decision was determinative. Thus the councillors were put in the position that if they wanted a new Madras College, and that had been a pressing need for many years, they would have to sanction development at Pipeland.
[43] The heavy reliance on the Tesco Stores decision is misconceived. It confirmed that the balancing exercise inherent in the decision the planning authority had to carry out in weighing alternative sites could not be delegated to the developer. It is of course legitimate for a planning officer in a planning report to present a recommendation to a planning authority. That happens on a daily basis. Here the report goes into quite different territory, and has led the authority into a failure to discharge its duty. It follows that the reclaiming motion will be allowed, the decision quashed as unlawful, and the whole matter remitted for reconsideration.
Postscript
[44] When a council is both applicant and planning authority, it will not always be easy for planning officers, councillors and others to separate and safeguard its planning jurisdiction from its interest in the proposed development. It is this danger which is addressed in Planning Advice Note 82. Amongst other things it stresses (paragraph 19) that the authority’s corporate decision to support development “must not take precedence over the need for a proper and fair planning assessment; nor should the authority’s wish to proceed to a certain timetable.” We are not suggesting that any conscious decision was taken to give priority to the council’s decision as education authority to build at Pipeland; we merely wish to emphasise the importance of constant vigilance against the obvious risks inherent in a council adjudicating upon its own application.