Opinion
of Lord Macphail
in the
petition of
Burgon and Others [Petitioners] v Highland Council [Respondent]
for
Judicial Review of a decision of the Highland Council as the
planning authority
4th April 2007
This application for judicial review concerns
a decision by Highland
Council to grant planning permission. Mr
and Mrs Fraser originally sought permission to erect a "dwelling house" in the
grounds of their home. Following
objection, the description of the development was amended to a "residential
annexe/holiday letting unit" and planning permission was granted. The objectors applied to the Court of Session
to review the council's decision to grant the amended application. Lord Macphail dismissed the application.
Mr and Mrs Thomas
Fraser live with their daughter and son-in-law in "Ardlinnhe", a house in Achintore Road, Fort William. They
applied to the Highland Council, as the planning authority, for permission to
erect a dwellinghouse in the back garden of Ardlinnhe. It
was intended that Mr and Mrs Fraser should live in the new house, and that when
it was no longer required as a residence it should be available for holiday
letting. The neighbours on each side of
Ardlinnhe lodged objections to the application.
Mr and Mrs Fraser amended the description of the development from
"dwellinghouse" to "residential annexe/holiday letting unit". The amendment was not notified to the
objectors. The Highland Council granted
the application.
The objectors then
applied to the Court of Session for judicial review of the Council's decision
to grant the application. They argued
that the amendment of the description of the application should have been
intimated to them. They also submitted
that the development was still a dwellinghouse, and that there was a
presumption in the relevant development plan against the erection of additional
dwellings in established plots in Achintore Road. In
addition, they argued that the development involved the creation of a second
tier of building in Achintore Road, and that the ratio of buildings to land on
the plot would exceed the "indicative plot ratio" in the development plan. Finally, they maintained that even if the
development was correctly described as an annexe which was intended to be an
extension or improvement of the property, it failed to satisfy the guidelines
in the development plan relative to plot depth, the avoidance of significant
excavation, the privacy of neighbouring proprietors, and parking. They accordingly asked the Court to set aside
the Council's decision to grant planning permission.
Summary of Lord Macphail's Opinion in
relation to the council's decision:
ท
Lord
Macphail dismissed the application for judicial review. He held, first, that the Council had been
entitled to find that the amendment had not changed the substance of the
application; and that the objectors had not been prejudiced by the Council's
decision to proceed without notification of the amendment. He pointed out that the amendment had
restricted the scope of the application, the guidelines in the development plan
for dwellings and for extensions and improvements were the same, and the
specific objections that the objectors had already raised applied equally to
the amended application.
ท
Secondly,
Lord Macphail held that the Council had been entitled to accept that the
development was correctly described as a residential annexe/holiday letting
unit, and not as a dwellinghouse. The
council had found that it would be unsuitable for permanent residential
accommodation and had imposed conditions that it must not be used as a
permanent dwellinghouse but must be used either as holiday accommodation or as
ancillary residential accommodation incidental to the enjoyment of
Ardlinnhe.
ท
Thirdly,
Lord Macphail held that the Council had been entitled to find that the
development related well to the existing pattern of development in the section
of Achintore
Road
where Ardlinnhe is situated. He also
stated that the "indicative plot ratio" in the development plan was not
prescriptive and the departure from it was a matter of planning judgment within
the exclusive province of the Council.
ท
Finally,
Lord Macphail held that the objectors had failed to show that the Council's
decisions relative to plot depth, excavation, privacy and parking were
unreasonable.
ท
The
petition was accordingly dismissed.
NOTE
This summary is provided to assist in
understanding the Court's decision. It
does not form part of the reasons for that decision. The full report of the Court is the only
authoritative document.
The
full opinion will be available on the Scottish Courts website from 12.00 noon today at this location:
Media Contact Elizabeth Cutting
Public
Information Officer
Parliament
House
Edinburgh
0131
240 6854
07917
068173
[email protected]
|
OUTER HOUSE, COURT OF SESSION
[2007] CSOH 70
|
|
P278/07
|
OPINION OF LORD MACPHAIL
in the Petition of
(1) ALAN HARTLEY
BURGON and MURIEL BURGON and
(2) STEWART
CONNOLLY and LORNA CONNOLLY
Petitioners;
for
Judicial Review of
a decision by The Highland Council
ญญญญญญญญญญญญญญญญญ________________
|
Petitioners: P.J.D. Simpson; Paul &
Williamsons
Respondents: J.C. Lake; Biggart
Baillie
4 April 2007
Introduction
[1] This is a petition for judicial review of a decision by a
planning authority to grant planning permission. The Highland Council ("the
Council"), who are the respondents, granted an application by Mr and Mrs Thomas
Fraser for the erection of a building described as a "residential
annexe/holiday letting unit" in the garden ground to the rear of a house named
"Ardlinnhe" in Achintore Road,
Fort William.
Ardlinnhe belongs to Mr and Mrs Raymond Howat, and Mr and Mrs Fraser are Mrs Howat's
parents. At present they live with Mr and Mrs Howat in Ardlinnhe. It is
proposed that Mr and Mrs Fraser should live in the new building, and that when
it is no longer required as a residence it should be available for holiday
letting. The petition was served on Mr and Mrs Fraser and Mr and Mrs Howat, but
none of them has appeared.
[2] The
petitioners, who had objected to the application for planning permission,
reside on either side of Ardlinnhe. Achintore Road
is the name given to a part of the A82 road which runs down the east side of Loch
Linnhe south of Fort William.
There are no buildings in Achintore Road
between the road and the loch. On the landward side of the road there is a row
of properties between the road and an escarpment. Ardlinnhe stands between two
other properties. Immediately to the south is Westcourt, which is owned and
occupied by the first petitioners, and immediately to the north is Buccleuch,
which is owned and occupied by the second petitioners.
[3] I
have now heard counsel for the petitioners and for the Council at the first
hearing of the petition. The petitioners moved for reduction of the decision,
while the Council moved that the petition should be dismissed.
[4]
I shall begin by setting out the material provisions of the development plan
relative to the application. I shall then narrate the procedural history of the
application and the terms of the decision under review. Thereafter I shall
discuss the grounds on which the petitioners challenge the decision.
The development plan
[5] The
Town and Country Planning (Scotland)
Act 1997 provides by section 25:
"Where, in
making any determination under the planning Acts, regard is to be had to the
development plan, the determination shall be made in accordance with the plan
unless material considerations dictate otherwise."
Section 37 provides in part:
"(1) Where an
application is made to a planning authority for planning permission -
(a) subject to
sections 58 and 59, they may grant planning permission, either unconditionally
or subject to such conditions as they think fit, or
(b) they may
refuse planning permission.
(2) In dealing
with such an application the authority shall have regard to the provisions of
the development plan, so far as material to the application, and to any other
material considerations."
[6] The
development plan in the present case consists of the Highland Structure Plan
and the Lochaber Local Plan which is dated February 1999. Chapter 4 of the
Lochaber Local Plan (no 7/1 of process) is concerned with Fort
William. Paragraph 4.5.3 is
headed "Consolidation" and states:
"The Council
will encourage infill and consolidation of the built-up area consistent with
the following guidelines [ . . . ]
(f) OTHER
RESIDENTIAL AREAS - retention of the established character and amenity;
adherence to agreed guidelines for Achintore Road;
[ . . . ]"
At the hearing there was some
inconclusive discussion of the meanings of the expressions "infill" and
"consolidation". It appeared to be agreed that both were concerned with
building within the urban area of the town and that any distinction between
them was a fine one.
[7] The
agreed guidelines for Achintore Road
appear in a document entitled "Achintore Road,
Fort William:
Policy Review July 1993" published by the Planning Department of the
respondents' predecessors, the Highland Regional Council (no 7/2 of process).
The major part of the document is headed "Policy Review and Supplementary
Guidelines". Under the heading "Policy Review" there appear the following
passages which were discussed at the hearing:
"9. Further to
this analysis the principles set out in the Adopted Local Plan and subsequent
Alteration are reaffirmed or strengthened as follows;
INFILL - The
Council will encourage development of remaining gap sites primarily for
residential purposes. There will be a presumption against additional dwellings
where proposals would result in;
(i) sub-division
of established plots involving;
[ . . . ]
-
inadequate plot size [ . . . ]
[ . . . ]
-
loss of privacy/amenity to neighbouring occupiers;
(ii) sites to
the rear of existing properties or in other prominent, backland or elevated
positions. This need not preclude accommodation essential to operational needs
(e.g. staff facilities associated with existing hotels) where proposals adhere
to the supplementary guidelines below (see 10);
[ . . . ]
EXTENSION/IMPROVEMENT
- The Council will support extension or improvement of property for the purpose
of intensifying existing uses or activities subject to the guidelines below
(see 10).
In all cases,
proposals which constitute over-development or 'cramming', relate poorly to the
established development pattern or give rise to a traffic or public safety
hazard, will be resisted."
[8] Under
the heading "Supplementary Guidelines" the following passages were referred to:
"10. Further to
the above, new development proposals involving the alteration or extension of
existing properties should be consistent with the following advice;
DEVELOPMENT
Proposals should;
(a) maintain the
well-established linear street-form of single plot depth with properties held
to the foot of the escarpment, reinforcing the existing low profile elevation
to the lochside;
[ . . . ]
(c) relate well
to the landform, avoid significant excavation, cutting or other site work, and
generally restrict exposed under-building to a depth of 0.5 metres.
(d) not involve
the sub-division of existing residential plots to create new infill sites,
except where the spacing between buildings is sufficiently generous to allow
properties to sit comfortably in the overall development pattern. Any new
houses or extensions should show general consistency with the prevailing
separation distances (see schedule page 3) between properties; and
(e) accommodate
extensions or related ancillary buildings to the rear, where densities are
higher and plot widths narrower. Specifically, such proposals should be of a
scale and design appropriate to avoid prejudice to the privacy, daylighting and
aspect enjoyed by neighbouring occupiers. [ . . . ] Adherence to a rear
building line set back a minimum of 6 metres from the road and
1-1.5 storey
building height would be appropriate.
(f) incorporate
innovation in relation to new building, given the mix of existing styles. Extension
or modification of properties should be consistent with the character and scale
of the existing building, its materials and finishes; [ . . . ]
ACCESS
It is strongly
recommended that proposals incorporate;
[ . . . ]
(n) integral
parking and turning facilities within sites. Parking capacity should be
commensurate with the scale and nature of commercial uses, and a minimum of two
spaces should be provided within the curtilage of all new houses.
[ . . . ]"
[9] The
schedule consists of a table in which Achamore Road
is divided into six zones, and there is set against each zone a series of boxes
giving information about various matters including "possible development
potential" and "indicative plot ratio". Ardlinnhe is in zone 1, where the
possible development potential is described as "Restricted to extensions and
improvement of property" and the indicative plot ratio is "10-15%". The
indicative plot ratio is proportion which the "footprint" of the buildings on a
plot of ground, that is, the total area of the pieces of ground covered by the
buildings, bears to the area of the whole plot.
Procedural history
[10] Before making the
application upon which the Council made the decision under review, Mr and Mrs
Fraser had made an earlier application to the Council dated 4 July 2006 for planning permission to
erect a building described as a "dwellinghouse" in the grounds of Ardlinnhe.
The first and second petitioners objected to the application. One of the
Council's planning officers wrote to Mr and Mrs Fraser's agents on 18 August 2006 (no 6/14 of process)
referring to the petitioners' objections and continuing:
"This letter is
intended to summarise the responses of statutory consultees and request that
you consider amending the proposal such that consultees' concerns may be
addressed and Officer support can be forthcoming.
[ . . . ]
In terms of the
application details, there are some concerns with the style of development
proposed, particularly the description as a separate house and the orientation
of the new building. However, it appears that there may be an opportunity to
amend the design such that it more closely reflects the pattern of adjacent
development, internal parking/turning is simplified, and with alterations to
the window arrangements, overlooking concerns can be addressed. I would be
grateful if you could consider amending the proposal in line with the enclosed
sketch. Further, it is considered that an annexe to Ardlinnhe, allowing
ancillary residential use or holiday letting as originally discussed, would be
more appropriate for the site, particularly given its proximity to the main
house due to the overhead lines.
I would be
grateful if you could consider these suggestions and if you wish to amend the
scheme description or design, advise me accordingly. Procedurally, this will
necessitate the withdrawal of the current application and a re-submission."
[11] Thereafter, Mr and Mrs Fraser withdrew their application and
submitted the application dated 1
September 2006 (no 6/11 of process) which became the subject of the
Council's decision. Notwithstanding the planning officer's advice about the
description of the development, the new application again sought permission for
"erection of dwelling house". It was so described in the notification served on
the first petitioners. No notification was served on the second petitioners.
The first and second petitioners lodged objections to the new application (nos
6/6 and 6/7 of process). On 15
September 2006 the planning
officer sent an e-mail to Mr and Mrs Fraser's agents in these terms:
"You will recall
my letter of 18th August
2006 discussing the description of the proposed development. In
particular, I suggested that a residential annexe of Ardlinnhe with potential
for holiday letting in future would be more appropriate. The new application
has been submitted as 'erection of house', which changes the type of issues the
proposal will raise.
Is this your
client's intention or is this something that was overlooked and should be
amended?"
Thereafter the description of the
development was amended to "Residential annexe or holiday letting unit". The
amendment was not intimated to the petitioners.
[12] The application was dealt with in terms of the Council's
"Scheme of delegation and administration to headquarters and area committees
and sub-committees and officers" (no 6/17 of process). The scheme delegates to
the "Head of Development and Building Control/Area Planning and Building
Control Managers" the Council's statutory power under the Town and Country
Planning (Scotland)
Act 1997
"to grant (but
not refuse) planning applications [ . . . ] where:-
[ . . . ]
(iii) [ . . . ]
(c) the
application is one which the Officer concerned (in consultation with the Area
Planning Committee Chair and local Member) considers should be granted because
the application details are acceptable and/or suitable conditions can be
applied to resolve satisfactorily the issues raised by third party objection,
representation and consultees. This delegation does not apply to any
application that does not accord with the provisions of the Development Plan,
or where the proposals are of significant scale, or controversial in nature or
involve complicated issues of planning
policy or principle."
[13] The planning officer prepared a report on the application,
described as a delegated report (no 6/9 of process), and sent it to the two
councillors mentioned in paragraph (c) above. Following comments by one of the
councillors, Mr and Mrs Fraser's agents submitted on 27 October 2006 a revised plan showing the
proposed development 1000 mm further away from the first petitioners' property.
On 30 October 2006 the Area Planning and Business Standards Manager, to whom
the power to do so had been delegated,
decided on behalf of the Council to grant planning permission. It is agreed
that the decision was founded on the contents of the delegated report.
The decision
[14] The decision is no 6/10 of
process. So far as material, it is in the following terms. The development is
described as:
"Erection of
residential annexe/holiday letting unit
Site In Garden
Ground Ardlinnhe
Achintore Road Fort
William Highland."
The decision goes on to say that
the Council grant permission for that development in accordance with the plans
and the particulars given in the application, and subject to various conditions
including:
"(1) The
building hereby approved shall be used either as:
(a) holiday
accommodation, operated by the occupiers of the adjacent dwellinghouse know as
'Ardlinnhe', Achintore Road, Fort William, and shall not be occupied by any one
family, individual or group for more than three months in any one calendar
year, and shall be; [sic: the last
three words appear to be redundant] OR,
(b) ancillary
residential accommodation incidental to
the enjoyment of the adjacent dwellinghouse known as 'Ardlinnhe', Achintore
Road, Fort William; unless otherwise first agreed in writing by the Planning
Authority. For the avoidance of doubt the building shall not be used as a
permanent dwellinghouse.
Reason: In
accordance with the use as a residential annexe/holiday letting unit and by
reason of its siting, lack of curtilage and close proximity to the main
dwellinghouse, the property would be unsuitable for permanent residential
accommodation."
Submissions for the petitioners
[15] Counsel for the petitioners
posed the question whether the building shown on the design sketches should be
allowed to be built on the basis of the application for planning permission. He
submitted that the development was a new dwellinghouse. He referred to the
design sketches submitted with the application (nos 6/12 and 6/13 of process)
which not only describe it as "proposed dwelling house" but also show that it
is a 1.75 storey building with two bedrooms on the ground floor, one with a
bathroom and the other with a shower room, and a living room, toilet, and
dining and kitchen area on the first floor. Counsel said that it was obviously
capable of being inhabited as a self-contained dwelling, notwithstanding that
in their answers to the petition the Council had denied the petitioners'
averment to that effect. There was a presumption against such "additional
dwellings" in paragraph 9 of the Achintore Road Policy Review. It was not an
"extension" or "improvement" such as paragraph 9 said the Council would support.
The petitioners had made it clear in their objections to the application that
they were objecting to the erection of a dwellinghouse. The building could not
possibly be said not to be a dwellinghouse. The Council's view that the
development was not a dwellinghouse was a misinterpretation of the Policy
Review which was subject to review by the Court (City of Edinburgh
Council v The Scottish Ministers 2001 SC 957 at
962, paragraphs 13 and 14). The petitioners should have been notified of the
amendment, because the amended application was in substance different from the
application submitted (Walker v Aberdeen City Council 1997 SCLR 425 at
434C-E).
[16] Counsel made several criticisms of the delegated report (no 6/9
of process), recognising that it in effect provided the reasons for the
Council's decision to grant the application. First, he criticised a statement
in the report which commented on a
representation by the first petitioners that an extra house behind Ardlinnhe
would create an extra tier of houses in the line of properties in Achamore
Road. The report commented that the precedent for
second tier development was already established by a development behind
Buccleuch, the second petitioners' house, which had been "recently completed".
The report also referred to the building behind Buccleuch in its response to a
representation by the second petitioners that the proposed house and associated
parking would create an overdevelopment of the site. The report said:
"It is not
considered that the proposal would constitute over-development, with ample
undeveloped plot area and closely reflecting the pattern of adjacent
development, including [the second petitioners'] own rear development (owner's
accommodation)."
[17] Counsel observed that the existence of a building behind
Buccleuch had been pointed out to the planning officer by Mr and Mrs Fraser's
agents in a letter dated 21 September
2006 (no 6/16 of process). Counsel said that that building had not
been built after the date of the Policy Review, but had been there for some 130
years. He was able to point it out on an Ordnance Survey map dated about 1900
(no 6/20 of process). It had recently been refurbished, but its "footprint" or
size had not been altered in any way. It was not legitimate to rely on it as an
argument for overcoming the presumption against additional dwellings in the
policy review.
[18] Counsel also criticised the following paragraph in the report:
"This proposal
was originally submitted as 'Erection of house' [read 'Erection of dwelling
house'], but the applicant has clarified the proposed use as accommodation for
the owners of Ardlinnhe's elderly parents, with potential holiday letting once
family accommodation is no longer required. The development description has
been amended accordingly to 'Erection of residential annexe/holiday letting
unit'."
Counsel said that whether the
development was a dwelling could not depend on how the applicants proposed to
use it. The way it was used could not determine its nature. But even if the
proposed use was relevant, the applicants would in fact live in it as their
house. It would be a self-contained dwelling with its own water and drainage.
It could not be described as a residential annexe, because it would not be
ancillary to Ardlinnhe.
[19] Further, the report had failed to point out that the effect of
the amendment of the description of the development from "dwellinghouse" to
"residential annexe or holiday letting unit" had been that the application,
instead of facing a rebuttable presumption against additional dwellings, was
now supported by the Council subject to certain conditions. That was a material
fact which had not been taken into account.
[20] Counsel also criticised the consultation procedure under the
scheme of delegation. The councillors had not been given the proper
information, and accordingly the consultation was not adequate. The petitioners
believed and averred that the councillors were not aware of the effect of the
change in description, and that had they been aware of that issue, there would
have been a real possibility that a hearing would have been held on the
application.
[21] Counsel made further submissions on the assumption that the
Council had been entitled to regard the application as one for an extension or
improvement of property. He argued that the application failed to satisfy the
requirements of the guidelines in the Policy Review relative to plot depth,
excavation and privacy. He noted that there were disputes of fact in the
pleadings relative to these matters, and he submitted that if it were necessary
to inquire into them the case should be put out by order for consideration of
how those disputes should be resolved.
[22] On the subject of plot depth, counsel again referred to the
report's reference to the building behind Buccleuch. In referring to it, the
report had taken into account an irrelevant matter. It had also caused the
Council to proceed under a mistake of fact. In addition, the report had left
out of an account a relevant matter by omitting to state that the fact that the
development would create an extra tier of housing meant that the conditions in
the Policy Review on which the Council would support an extension or
improvement were not satisfied.
[23] Next, counsel referred to the petitioners' pleadings on the other
matters. The petitioners aver that "significant" excavation and cutting work,
which the Policy Review required to be avoided, would have to be done. That had
not been mentioned in the report, and accordingly a relevant matter had been
left out of account.
[24] The petitioners also aver that the scale and design of the
development would prejudice the privacy, daylight and aspect which they enjoy,
and that in that respect it does not conform to the guidelines. The development
would also exceed the
1-1.5 storey building height which
the guidelines regard as appropriate. Further averments are made to the effect
that the parking that would be available would be below the minimum standards
set by the respondents' policy on parking, and reference is made to the
respondents' publication, "Road Guidelines for New Developments".
[25] Counsel criticised a statement in the report that the
applicants had been on the housing list for a year, had not been offered
accommodation, felt that they must have their own accommodation and when they
had it, they would withdraw from the housing list. These were irrelevant
matters which the petitioners believed and averred had been taken into account.
[26] Counsel addressed me in some detail on the subject of the
indicative plot ratio of the development. The Policy Review states as the
indicative plot ratio "10-15%". The present plot ratio, said counsel, was about
19.5%. Once the development was constructed, it would be about 22.5%, which
would be a significant increase. That was a relevant consideration which had
not been mentioned in the report, and the petitioners believed and averred that
it had not been taken into account.
[27] Summarising his submissions, counsel submitted that the
decision should be reduced for three reasons. First, the development was a
dwellinghouse, not an extension or improvement. Secondly, it involved the
creation of a second tier of building. The presumption against it had not been
overcome. Thirdly, if the development went ahead, the indicative plot ratio
would be too high. If these considerations were not sufficient for reduction of
the decision, the case should be put out by order for discussion of the means
of resolving the factual disputes relative to significant excavation and
cutting work; privacy, daylighting and aspect; and parking.
Submissions for the Council
[28] Counsel for the respondents submitted that the petition should
be dismissed. First, it was for the Council to apply its own policy to the
facts of an application. They had a discretion to interpret their policy,
analyse the facts, and apply the one to the other. Counsel cited City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, Lord Hope of Craighead at 35G-36B, Lord Clyde at 43G-44G; City of Edinburgh Council v The Scottish Ministers 2001 SC 957, paragraph 13. The
petitioners had to say that the Council had attributed to the policy a meaning
which it could not reasonably bear: that was a high test.
[29] Secondly, counsel discussed the changes that might be made to
an application. A planning authority could impose conditions that restricted
the scope of what was granted to less than the applicant had sought. It could
also permit amendment of the application. The only limit on its powers arose
where the conditions or the amendment were such that substantial planning
issues were raised for the first time. The criterion was whether the
development was so changed that to grant it would be to deprive those who
should have been consulted on the changed development of the opportunity for
such consultation. Whether that criterion was satisfied was a matter for the
planning authority, and the Court could not interfere unless their decision was
manifestly unreasonable. Counsel referred to Bernard Wheatcroft Ltd v
Secretary of State for the Environment (1980) 43 P&CR 233 at 238-239,
241, and Walker v
Aberdeen City Council 1997 SCLR 425 at 434C-F, 435E-436C.
[30] Thirdly, counsel examined the decision (no 6/10 of process).
Permission had been granted for the erection of a "residential annexe/holiday
letting unit". That was what the applicants had applied for. Further, the
planning permission was conditional: the building could not lawfully be
occupied as a separate house: if that were to happen, it would be a breach of
the condition which would invite an enforcement notice. Even if the applicants
had not sought to change the description of the development, it would have been
open to the planning authority to impose that condition and reduce the scope of
the development (Bernard Wheatcroft Ltd).
While the Council had been correct to characterise the development as a
residential annexe/holiday letting unit, the question was whether the
petitioners had averred any factual basis for saying that the Council's
decision was unreasonable. The petitioners had not attempted to surmount that
hurdle. Their counsel had said that the issue for the Court was whether the
house should be built on the basis of the application, but that was the wrong
issue. The issue was whether the Council's decision was subject to challenge.
[31] Before turning to the petitioners' challenges to the decision,
counsel referred to the policy framework. He noted that in paragraph 9 of the
Policy Review the Council expressed support for the extension or improvement of
property such as the applicants proposed. When the Lochaber Local Plan referred
in paragraph 4.5.3(f) to "agreed guidelines for Achintore
Road" it was referring to paragraph 10 of the
Policy Review. Paragraph 9 had been somewhat superseded by the new Local Plan
six years later. But the approved development fitted into the scheme of
paragraph 9. The question for the Council had been whether the proposed
development fell within the category of an additional dwelling or an
extension/improvement, and the petitioners had not attempted to say that the
Council had been unreasonable in categorising it as the latter.
[32] The guidelines in paragraph 10 were relevant whenever there was
to be a development to the rear of existing properties in Achamore
Road, whether the development was an additional
house or an extension/improvement: the relevant sub-paragraphs of paragraph 9
both referred to paragraph 10. The Council had addressed all the supplementary
guidelines in paragraph 10 as to which an issue arose relative to the
application. In particular, the report
had considered (c), the development's relation to the landform and the
avoidance of significant excavation; (d), the general consistency with the
prevailing separation distances between properties; (e), the building height;
(f), the incorporation of innovation in relation to new building; and (n),
integral parking and turning facilities. No issues arose in relation to the
other sub-paragraphs of paragraph 10. The indicative plot ratio was not a
binding maximum, and the point was whether it could be said that the Council
had been wrong in not treating it as prescriptive.
[33] Counsel then analysed the petitioners' challenges to the
decision, which he characterised as procedural and substantive. As to
procedure, it had been said that the amendment should have been intimated to
the petitioners. But the test was whether the amendment had changed the
substance of the application and the petitioners had been prejudiced by the
failure to intimate it (Walker
v Aberdeen City Council). It was
said that they would have objected on the ground that the development was a new
dwelling; but they had already raised that ground in the objections they had
lodged. It was also said that they might have objected on the ground of the
need for significant excavation or cutting, and if they had done so, the
Council might have rejected the application. The degree of excavation or
cutting that would be necessary was a matter of dispute, although counsel
referred to photographs (no 7/4 of process) which appeared to show that it
would not be extensive. In any event, however, the requirement to avoid
significant excavation or cutting applied both to dwellings and to extensions
or improvements. The petitioners could not responsibly aver, and did not, that
the decision of the planning authority on that issue was unreasonable. The
petitioners' counsel had referred to the letter to the applicants' agents from
the planning officer (no 6/14 of process), but that was not a concession by the
Council that renotification to the petitioners had been necessary. (Counsel
observed in passing that the petitioners' averment in statement 9 that by that
letter the planning officer had queried the description of the development, was
incorrect: he had been giving advice, in accordance with his duty.)
[34] Counsel noted that statement 17 tended to suggest that the
councillors to whom the report had been sent had been misled by it into
thinking the decision on the application had to be taken under delegated
powers. It was accepted, however, that there was a standing authorisation for
such an application to be dealt with in that way. The suggestion that there
would have been a real possibility of a hearing was pure speculation. There was
no averred factual foundation for what was "believed and averred" in that
paragraph. Nothing in the Scheme of Delegation indicated that a hearing might
have been triggered.
[35] As to the substantive challenges to the decision, counsel
analysed the report (no 6/9 of process). It was not unreasonable for the report
to say that no development policy issues arose. The report analysed and
commented on the objections received from the petitioners. The second
petitioners had raised the issue of overdevelopment and the report considered
it. The report was concerned with the pattern of development, not with the age
of the second tier developments. In the "Comments" section, it noted the
amendment of the description of the development and the need for excavation. It
paid particular regard to the pattern of development, and the description of
the development behind Buccleuch as "recently completed" should not be taken
out of context. The report also considered the design and height of the
proposed building. It noted, further, that the building location had "been
carefully devised to limit landscape impact by limiting the extent of
excavation necessary and preventing the realignment of [read 'or']
undergrounding of existing overhead cables running across the south-east of the
site. The building level avoids the creation of an overbearing development."
Site access and parking issues had also been dealt with in the report. The
report concluded:
"Third party
concerns demonstrate a degree of local concern, but the issues raised are
either addressed by consultee responses or are not supported by an objective
assessment of the development.
Subject to
suitable conditions as recommended below, it is considered that the application
should be supported."
[36] Counsel submitted that while the report did not refer expressly
to the Local Plan or the Policy Review, it referred to the principal matters
that were relevant to the determination of the application, and that was all
that it was required to do (Bolton
Metropolitan District Council v
Secretary of State for the Environment (1995) 94 LGR 387 at 393-395).
[37] Counsel then examined the petitioners' averments in statements
20 to 27 of the petition. Statement 20 was founded on the proposition that the
application had been for a dwelling. But the question was, what was the decision?
Nothing in the petitioners' averments provided a basis for saying that the
Council's approach had been unreasonable. They had considered the issues
referred to by the petitioners: plot size or spacing, privacy and amenity, and
access.
[38] In statement 21 it was averred that esto the application was for an extension or improvement, it did
not "satisfy the criteria to obtain favourable treatment in terms of the policy
review." But the report did not state
that the application was to be favoured: it merely considered it in terms of
the Policy Review.
[39] Statement 22 contended that the development would not maintain
the established single plot depth, and referred to the report's description of
the building behind Buccleuch as "recently completed". The important point,
however, was that that building had been referred to as an example of the
pattern of development. It was also clear from the conditions attached to the
grant of planning permission that Ardlinnhe remained a single plot: there would
be no division of the plot, with the development on a separate plot behind the
existing house.
[40] Statement 23 complained that "significant excavation and
cutting work" would require to be done in order to construct the development.
But there was no averment, and no basis for any averment, that the Council's
decision that there would be no significant excavation,was unreasonable. Nor
was there any basis averred on which it could be maintained that there would be
significant excavation. Those averments were irrelevant.
[41] In statement 24 it was maintained that the scale and design of
the development would prejudice the privacy, daylighting and aspect enjoyed by
the petitioners. But these matters had been considered in the report, and there
was no basis for saying that the Council's decision was unreasonable. Those
averments were likewise irrelevant.
[42] The same applied to the averments in statement 25, which were
concerned with parking. It was said that the Council's policy as regards
parking standards required seven spaces, each of which should measure at least
5 metres by 2.5 metres, but the decision required only five spaces, each of
which would be 4.8 metres long. Counsel said that nothing had been said to show
that the Council's decision was unreasonable. It was obvious from the design
sketch no 6/12 of process that the spaces could easily be longer.
[43] Statement 26 complained of the statement in the report that the
applicants had been on the housing list for a year, had not been offered
accommodation, felt that they must have their own accommodation and when they
had it, they would withdraw from the housing list. It was obvious, said
counsel, that that was only narrative and the matters referred to were not
planning considerations. No factual basis had been stated for the matters
"believed and averred" in statement 26.
[44] Statement 27 was concerned with the indicative plot ratio. But
the indicative plot ratio was descriptive rather than prescriptive. It was
acknowledged that the ratio was already exceeded, and would increase if the
development proceeded. But that had been a matter for the Council to consider.
They had been entitled to conclude that the proposal would not constitute
over-development, that there was ample undeveloped plot area and that the
pattern of adjacent development would be closely reflected. Those averments
were also irrelevant.
[45] In summary, counsel submitted that on grounds of both relevancy
and fact none of the bases of challenge in the petition could be sustained, and
the petition should be dismissed.
Discussion
[46] It is important to identify accurately the matter for decision.
In my opinion the issue is not whether the building shown on the plans
submitted with the application for planning permission should be allowed to be
built on the basis of that application. The primary question must be whether
the Council's decision to grant the application, as amended, is so unreasonable
that no reasonable planning authority could have reached it. Other grounds of
challenge are focused in the petitioners' pleas-in-law:
"1. The
respondent having taken into account irrelevant considerations et separatim having failed to take into
account relevant considerations et
separatim having relied upon a factual basis that was subject to material
error in making the decision, the decision is to be reduced.
2. Separatim, the application having been
amended in a material respect, and the application as amended not having been
notified to neighbouring proprietors, the decision is to be reduced."
[47] It will be convenient to begin by examining the procedural
challenge to the decision which is stated in the petitioners' second
plea-in-law. The rules as to amendment of an application for planning
permission without notification to interested parties are stated by Lord
Macfadyen in Walker v
Aberdeen City Council 1997 SCLR 425 at 434-435. The test is whether the
amended application is for a development which is in substance different from
that to which the original application related. Further, whether an amendment
changes the substance of an application is a matter for the judgment of the
planning authority; and the court will interfere only if it can be said that
the planning authority's decision on the matter is perverse or unreasonable in
the administrative law sense. In addition, a party aggrieved by a perverse or
unreasonable decision must show that he has been prejudicially affected by that
unreasonable act.
[48] In my opinion the Council were entitled to hold that the
amendment in the description of the development, which is the amendment
complained of, did not change the substance of the application. The plans had
also been amended in detail, but the physical appearance of the proposed
building remained essentially the same. The change in the description had the
effect of restricting the scope of what was sought as regards the purpose of
the building. The guidelines in paragraph 10 of the Policy Review were the same
both for dwellings and for extensions and improvements, and the specific
objections the petitioners had already raised applied equally to the amended
application. In my view it cannot be said that the Council's decision to
proceed without further intimation was unreasonable. Even if I am wrong about
that, and the decision was unreasonable, I am not satisfied that the
petitioners were prejudiced by it. They had already made it clear in their
objections that they were opposed to the erection of a building with the
physical characteristics of the proposed development. The new objection mentioned
in the pleadings relative to the need for excavation is tentatively expressed,
and there is no adequate specification of it. In any event the avoidance of
significant excavation was a matter for the Council to consider, whether the
development was to be described as a dwelling or as an extension/improvement.
It follows that in my opinion the petitioners' second plea-in-law cannot be
sustained.
[49] The other procedural challenge in the pleadings, relative to
the use of the Scheme of Delegation, was not pressed at the hearing except in
so far as it was related to the alleged inadequacy of the information in the
delegated report, a matter which I shall discuss in the context of the
substantive challenges.
[50] I now consider the substantive challenges, taking the reasons
for reduction in the order in which they were finally presented. The first,
shortly stated, that notwithstanding the amended description, the proposed
development was still a dwelling, and there was a presumption in paragraph 9 of
the Policy Review against the erection of additional dwellings in Achintore
Road. In my opinion the Council were entitled to
accept that the development was correctly described as a residential
annexe/holiday letting unit, and not as a dwellinghouse. It is clear from the
terms of the first condition the Council attached to their grant of planning
permission that they had the distinction between the two types of development
plainly in view. The first condition was that the building must be used either
as holiday accommodation or as ancillary residential accommodation incidental
to the enjoyment of Ardlinnhe, the adjacent dwellinghouse, and they added for
the avoidance of doubt that the building must not be used as a permanent
dwellinghouse. They gave as their reason for imposing this condition that the
property would be unsuitable for permanent residential accommodation not only
by reason of its use as a residential annexe/holiday letting unit but also "by
reason of its siting, lack of curtilage and close proximity to the main
dwellinghouse". The Council's approach to the description of the development in
the application appears to me to be invulnerable to challenge on the ground
that it is unreasonable. They considered whether it should be used as a
dwelling and firmly concluded, for intelligible reasons, that it should not.
[51] The second challenge is that the development involved the
creation of a second tier of building. In my opinion that was a matter of
planning judgment within the exclusive province of the Council: the Court is
concerned only with the legality of the decision-making process (City of Edinburgh Council v
Secretary of State for Scotland, Lord Clyde at 44F-G).
I consider that the petitioners have placed disproportionate emphasis on the
allegedly material error in the report relative to the age of the building of
the property at the rear of Buccleuch. It may be that the writer of the report
mistakenly supposed that the building had been recently erected, although the
sentence "That development was recently completed" could mean that the
refurbishment had been recently completed, while the building itself had stood
on the site for many years. In any event, however, the report is clearly
concerned to assess not the existence of a single building, but the pattern of
development in the stretch of Achamore Road
in which the proposed building would be situated: the property behind Buccleuch
is cited only as an example of that pattern. That is clear when the sentence is
placed in its context:
"In assessing
the application, it is critical that the Planning Authority has regard to the
pattern of development hereabouts. The section of Achintore
Road close to Fort
William is generally linear
development parallel with the A82, with a substantial number of backland developments
to provide separate houses, ancillary accommodation, or letting accommodation.
The site to the immediate north of the application site (Buccleuch) is a good
example of such ancillary accommodation within the rear grounds. That
development was recently completed. In this regard, the current proposal
relates well to the pattern of development."
It appears to me to be impossible
to contend that that is an unreasonable view. Any error as to the age of the
building behind Buccleuch is in my view immaterial.
[52] The third ground of challenge was that if the development went
ahead, the indicative plot ratio would be too high. Although counsel were not
in agreement as to the precise figures, it is clear that the plot ratio would
be above the range of "10-15%" stated in the Policy Review. That range,
however, is no more than "indicative", that is, a pointer which gives some
notion of the ratio that is desirable. It does not prescribe a minimum or
maximum figure. Whether a ratio of above 15% should be permitted was a matter
of planning judgment for the Council to determine. It is true that the report
does not specifically refer to the indicative plot ratio, but it does refer to
the "building level". That was an issue in dispute, because the second
petitioners had objected that the house and associated parking would create an
over-development of the site (no 6/7 of process). The report considered this
matter in two places. First, in a direct comment on that representation by the
second petitioners, it said:
"It is not
considered that the proposal would constitute over-development, with ample
undeveloped plot area and closely reflecting the pattern of adjacent
development, including the objector's own rear development (owner's
accommodation)."
The report also observed:
"The building
location has been carefully devised to limit landscape impact by limiting the
extent of excavation necessary and preventing the realignment of [read 'or']
undergrounding of existing overhead cables running across the south-east of the
site. The building level avoids the creation of an overbearing development."
In my opinion that cannot be
criticised as an unreasonable approach to and determination of the disputed
issue of whether there would be too much building on the plot.
[53] It remains to consider the submissions made on the assumption
that the Council had been entitled to regard the application as one for the
extension or improvement of property. It was argued that the application failed
to satisfy the requirements of the guidelines in the Policy Review relative to
plot depth, excavation and privacy. The submissions relative to plot depth were
founded on the reference in the report to the building behind Buccleuch and on
the creation of an extra tier of housing. I have dealt with each of these
matters above. It need only be added that there will be no sub-division of the
Ardlinnhe plot.
[54] The submissions as to excavation are not supported by any
averment that the statement in the report that the extent of excavation would
be limited was unreasonable, or by any averment specifying sufficiently in what
way it would be "significant". The absence of such averments render this
complaint irrelevant.
[55] Similarly, the issues of privacy, daylighting and aspect were
considered in the report. Commenting on a complaint by the first petitioners
that they would be overlooked, the report observed:
"The amended
orientation, building position, window arrangements and existing vegetation
within the objector's control, combine to prevent overlooking of the objector's
property."
Before the application was
approved, the applicants' agents submitted a revised plan showing the proposed
building 1000mm further away from the first petitioners' property. Dealing with
a complaint by the second petitioners that they would suffer a substantial loss
of privacy, their property would be overlooked and the new building would
impact on daylight and sunlight at their property, the report commented:
"The near side
elevation of the annexe is 25m away from the front face of the objector's
owner's accommodation, which faces towards the application site. Indeed the
building design, orientation and style closely reflect the objector's own
development."
The petitioners aver that the
development would exceed the 1-1.5 storey building height which the guidelines
regard as "appropriate". The report deals with that issue in this way:
"The 1.75 storey
form combines with a narrow building span to create a well proportioned unit
which relates well to the heights of surrounding property."
In my opinion it is impossible to
hold that the views expressed in the report relative to privacy, daylighting
and aspect could not reasonably be maintained. The petitioners' averments on
these matters appear to me to be irrelevant.
[56] Lest it be thought that I have overlooked them, I refer to two
matters. First, I note that I take the same view of the petitioners' averments
about parking as of their averments about plot depth, excavation and privacy. I
also note that nothing turns on the paragraph in the report relative to the
applicants' names being on the housing list. That was plainly mere narrative
and was not relied on by the Council at the hearing as relevant to their
decision.
[57] On the whole matter I am satisfied that the report sets out the
Council's reasons for their decision to grant planning permission in sufficient
detail to enable the reader to know what conclusions they reached on the
principal important controversial issues. It was not necessary for them to
refer expressly to the Lochaber Local Plan or to the Policy Review. (Bolton MDC at 395.) In my opinion it cannot be said that they took into
account irrelevant considerations, or failed to take into account relevant
considerations, or that they made any material error of fact, or that their
decision is so unreasonable that no reasonable planning authority could have
reached it.
Result
[58] I shall accordingly sustain the first plea-in-law for the
Council, repel the pleas-in-law for the petitioners, and dismiss the petition.
