EDINBURGH CREMATORIUM LTD AGAINST EAST LOTHIAN COUNCIL [2022] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2022] CSOH 79

P1040/21

OPINION OF LORD RICHARDSON

in the cause

EDINBURGH CREMATORIUM LIMITED

Petitioner

against

EAST LOTHIAN COUNCIL

Respondent

and

CREMATORIA MANAGEMENT LIMITED

Interested Party

Petitioner: Findlay KC; Brown; Shepherd and Wedderburn LLP

Respondent: Thomson KC; Anderson Strathern LLP

Interested Party: Armstrong KC; Gillespie MacAndrew LLP

21 October 2022

Introduction

[1]

On 5 October 2021, the Planning Committee of the respondent, East Lothian Council,

passed a resolution to grant an application for planning permission made by the interested

party for the erection of a crematorium building and associated works at land at Old

Craighall, Musselburgh, East Lothian. The reasons for the grant of permission were

contained in the Report to the Planning Committee which was prepared by the first

respondent's Executive Director of Place. Also on 5 October 2021, the respondent issued its

Decision Notice granting planning permission.

[2]

In the present proceedings, the petitioner seeks the reduction of the respondent's

resolution and decision on a number of grounds.

The application process

[3]

On 28 April 2021, the interested party submitted an application for planning

permission to the respondent. In support of the application, the interested party also

produced a planning statement dated April 2021. Paragraph 3.4 of the Planning Statement

provides as follows:

"The [East Lothian Local Development Plan] contains no specific policies relating to

crematoria. However, from discussions with the Council we are aware that there is

generally considered to be a need for a facility in East Lothian. Indeed, the

Crematorium Need Report submitted with this application confirms that to be so."

Paragraph 3.7 provides further:

"Given that there is no site specifically allocated for a crematorium in East Lothian,

the Council indicated during pre-application discussions that it required a

Crematorium Needs Report."

The Planning Statement goes on to summarise the conclusions of the Need Report which

was submitted along with the Planning Statement.

[4]

The Planning Statement concluded (at paragraph 3.42) that the proposals were

supported by the Development Plan.

[5]

In its pleadings, on the basis of paragraph 3.7 of the Planning Statement, the

petitioner contended that during pre-application discussions the respondent had indicated

to the interested party that it required to submit the Need Report with its application. This

was disputed by both the respondent and the interested party. Having considered the email

correspondence between those representing the interested party and the respondent's senior

planner dealing with the application, I can find no reference to a Need Report ever having

been formally requested by the respondent. In this regard, I consider that it was notable that

the respondent made no reference to a Need Report in its lengthy reply, sent on

25 September 2020, to the interested party responding to the latter's pre-application enquiry.

This email concluded as follows:

"In conclusion the proposed development may be able to be supported subject to

you taking into consideration all the above points and being able to satisfy the

Council that the proposed crematorium would meet the objectives of Proposal MH3

in relation to job creation and economic benefit...

You will appreciate that the content of this email is an expression of officer opinion

only which is based on a desktop study and is given without prejudice to any

decision taken by the Council in respect of any future application for planning

permission."

[6]

Equally, it was also apparent to me that during the pre-application correspondence,

the issue of the need for a crematorium had formed part of the discussion between the

interested party and the respondent. In the event, as senior counsel developed the

petitioner's submissions, I understood that the petitioner did not rely, for its argument, upon

the Need Report having been formally required by the respondent.

[7]

The Need Report submitted by the interested party was entitled "The Need for a

Crematorium to Serve East Lothian and the Surrounding Communities". The Need Report

proceeded on the basis that in demonstrating the need for a new crematorium it was

necessary to consider both quantitative and qualitative factors. Section 2 of the report then

set out the considerations said to be used to assess these factors. Section 3 of the report

assessed these factors against the current crematoria provision in neighbouring council areas

namely: Mortonhall Crematorium, Warriston Crematorium, Seafield Crematorium and

Houndwood Crematorium. Warriston and Seafield are owned and operated by the

petitioner. Mortonhall is owned and operated by the City of Edinburgh Council. Section 4

of the report considered the interested party's proposal and Section 5 set out the report's

conclusions.

[8]

Along with the Need Report, the interested party also submitted an Employment

Land Review and Economics Benefits Assessment prepared by Savills.

[9]

On 11 June 2021, the petitioner lodged with the respondent an Objection Statement in

respect of the interested party's application. Within the Objection Statement, the petitioner

set out a series of criticisms of the Need Report and the factors, both quantitative and

qualitative, referred to by it (see Sections 2 and 3). The petitioner also set out in the

Objection Statement reasons why it contended that the application was not complaint with

the policies contained in the Local Development Plan.

[10]

The City of Edinburgh Council also provided the respondent with a detailed

commentary dated 8 June 2021 of both the Need Report and the Economic Benefits

Assessment. In particular, the Council responded to 45 statements made in the Need

Report. The Council's commentary highlighted what were said to be errors in both of these

documents together with setting out reasons why certain contentions advanced within them

were wrong.

The report to the Planning Committee

[11]

The report to the respondent's Planning Committee in respect of the interested

party's application comprises 17 pages. For present purposes, the material parts of the

report are as follows. The report begins with a section summarising the application. That

section finishes with a consideration of The Town and Country Planning (Environmental

Impact Assessment) (Scotland) Regulations 2017 and concludes as follows (on page 3):

"On 23 April 2021 the Council issued a formal screening opinion to the applicant.

The screening opinion concludes that it is East Lothian Council's view that the

proposed development is not likely to have a significant effect on the environment

such that consideration of environmental information is required before any grant of

planning permission. It is therefore the opinion of East Lothian Council as Planning

Authority that there is no requirement for the proposed development to be the

subject of an EIA."

The report then, at page 4, notes that 13 written objections have been received to the

application. The report goes on to summarise the main grounds of opposition. This

summary includes the following:

" there are other crematorium [sic] within 5 miles and therefore there is no need for

this one;

...

current crematoria in Edinburgh and the Lothians have sufficient capacity and

facilities to meet need and demand;

the location for the proposed crematorium is not the best or most convenient for

East Lothian residents, would not be sustainable development and had been chosen

for commercial benefit..."

The report does not contain any reference either to the petitioner's Objection Statement or, in

particular, to the detailed criticisms it made of the Need Report. In both its pleadings and in

submissions, the respondent stated that all of 13 written objections (including the

petitioner's Objection Statement) were available to the members of the Planning Committee.

Although this was not admitted by the petitioner, I did not understand it to be disputed.

[12]

On pages 4 and 5, the report sets out a planning assessment containing the relevant

policies of the respondent's Local Development Plan which were considered to be applicable

to the application.

"The application site is allocated for employment uses by Proposal MH3 of the

adopted East Lothian Local Development Plan 2018. Proposal MH3 states:

`Approximately 5ha of land at Old Craighall Junction South West is allocated for

employment uses. A design solution for this site that conforms to the Council's

Development Brief will be required. Any development here is subject to the

mitigation of any development related impacts, including on a proportionate basis

for any cumulative impacts with other proposals including on the transport network

and on air quality as appropriate. Policy EMP1 applies.'

Policy EMP1 states that within areas allocated for business and employment, uses

within Use Classes 4, 5 and 6 of the Town and Country Planning (Use Classes)

(Scotland) Order 1997 are supported. Other employment generating uses may also be

supported in these locations subject to the town centre first principle (policy TC1)

and provided there would be no amenity conflicts or other unacceptable impacts.

Proposals to redevelop employment sites or premises for other employment

generating uses will only be supported where the uses proposed do not prejudice or

inhibit the activities of a nearby employment use.

Proposals must not adversely affect amenity and must be able to co-exist

satisfactorily with existing or proposed uses on the site and in the surrounding area.

Policy TC1 of the adopted East Lothian Local Development Plan 2018 states that a

sequential 'town centre first' approach will be applied where appropriate to retail,

commercial leisure, office and other development proposals that would attract

significant footfall."

[13]

On pages 5 and 6, the report refers to the Need Report submitted by the interested

party and set out a summary of it together with extensively quoting the conclusions of that

report. The Planning Committee report also makes reference at this point to what is

described as "crude example of sustainability" which has also been taken from the Need

Report. Thereafter, the report refers to the Economic Benefits Assessment submitted by the

interested party.

[14]

On page 6, the report also refers to the comments submitted by the City of

Edinburgh Council as follows:

"In their response, CEC question the conclusions in the applicant's submitted The

Need for a Crematorium to Serve East Lothian and the Surrounding Communities'

report, informing that that the proposed crematorium may have a negative impact

on Edinburgh's crematoria in terms of jobs and revenue. Their response also

questions the findings of the applicant's submitted Economic Benefits Assessment.

It should be noted that commercial competition is not a material consideration in the

determination of a planning application."

[15]

The report then continues on pages 6 and 7 as follows:

"The use of the site as a crematorium would not be anticipated to attract significant

footfall. It is aimed at people attending the building for scheduled services and

would not have an active frontage or regular incidental visitors. The site was

identified by the applicant as a preferable location due to the size, location and

ability to run the crematorium to full requirements. The crematorium use of it would

not prejudice or inhibit the activities of any nearby employment use.

The use of the site as a crematorium would not be of such a scale as to result in a

significant depletion of the Council's supply of allocated sites for 4, 5 and 6 uses to

the detriment of the economy of East Lothian.

The Council's Economic Development Team Manager advises that the East Lothian

Community Planning Economic Development Strategy 2012-22 was adopted by East

Lothian Council on 9 October 2012 and the mid-term refresh was concluded

December 2018. Economic development is a key priority for East Lothian and is at

the forefront of The East Lothian Partnership Plan 2017-27. The Economic

Development Strategy 2012 to 2022 is a reflection of the priority placed on economic

development and acts as a guiding framework for future activities.

The Economic Development Team Manager raises no objection to the proposed

development. He notes that the applicant's submitted information informs that the

proposed development could result in additional capital investment in East Lothian,

supporting some 57 construction jobs and 6 permanent jobs once operational and

that it could be likely to support other local businesses within its supply chain, e.g.

grounds maintenance and horticulture and florists. The Economic Development

Team Manager advises that the proposal supports the goals and objectives of the

Economic Development Strategy 2012- 2022 to increase the proportion of East

Lothian residents working in and contributing to East Lothian's economy and to

provide high quality employment pathways for East Lothian's workforce.

On the above considerations and that the proposed crematorium would be an

employment generating use, the proposed development would not be contrary to

Proposal MH3 or Policy EMP1 of the adopted East Lothian Local Development Plan

2018."

[16]

Finally, for present purposes, on page 13 the report said the following:

"At its meeting on Tuesday 27 August 2019 the Council approved a motion declaring

a Climate Emergency. Thereafter, at its meeting on Tuesday 3 September 2019 the

Council's Planning Committee decided that a report on the actions to be taken to

reduce the carbon emissions from the building and from the completed development

should be required on relevant applications for planning permission.

The applicant has submitted a Sustainability Statement report advising that the

proposed crematorium building would meet the requirements of section 6 of the

Scottish Building Regulations with suitable LZCGT (Low and Zero Carbon

Generating Technologies) deployed to provide 15% reduction in emissions via

LZCGT. This includes placing an emphasis on passive design strategies at site and

building level to minimise the proposed development's overall energy demands. A

low carbon and renewable technologies appraisal has been completed and it is

anticipated that solar photovoltaics would be the most suitable for delivering low

carbon solutions for the building. The effective measures required to reduce carbon

emissions will be secured through the subsequent building warrant process. In order

to further reduce carbon emissions, it would also be prudent to require proposals for

the provision of new car electric charging points and infrastructure for them. This

could be secured by a condition imposed on a grant of planning permission for this

proposed development."

Thereafter, the report recommends the grant of planning permission subject to certain

conditions.

The further objection

[17]

By email dated 4 October 2021, the petitioner's representatives circulated a note of

further objection to the members of the Planning Committee together with a copy of the

petitioner's original Objection Statement. The reason that the petitioner did this is set out in

the email itself namely, that the Committee Report did not properly explain petitioner's

objection or the planning policies that apply to the application.

Submissions for the petitioner

[18]

Senior counsel for the petitioner moved me to uphold the petitioner's first plea in

law and to reduce the resolution of the respondent's Planning Committee and the Decision.

The petitioner challenged the decision on three grounds all arising from the report to the

Planning Committee.

[19]

He submitted (on the basis of Mansell v Tonbridge and Malling Borough Council

[2017] EWCA Civ 1314, [2018] JPL 176 at paragraph 42) that unless there is evidence to suggest

otherwise, it may reasonably be assumed that, if the members followed the officer's

recommendation, they did so on the basis of the advice that he or she gave. In this case, he

did not understand there to be any such evidence. By reference to the same authority, he

submitted further that the report should not be approached with undue rigour, but with

reasonable benevolence bearing in mind that they are written for councillors with local

knowledge. It was important to appreciate that there was no evidence of any other advice

having been given to the Planning Committee such as how to approach the Need Report.

[20]

Turning to the report itself, Mr Findlay submitted that it was apparent that the

author had structured the section entitled "Planning Assessment" on page 4 by setting out

each policy, reaching a conclusion and then moving on to the next policy. Reading the

report in this way, it was apparent that the author, having set out Proposal MH3, Policies

EMP1 and TC1 at the bottom of page 4 (quoted at paragraph [12] above), had then discussed

the issues arising in respect of these policies before reaching a conclusion in relation to these

policies at the top of page 7 of the report (quoted at paragraph [15] above). It followed,

Mr Findlay submitted, that on a fair reading, the author of the report had taken account of

the Need Report. After all, the reference to the Need Report made up a page and a half of a

13 page document. Further, there was no suggestion from the report, Mr Findlay noted, that

either the issue of need or the Need Report itself was an immaterial consideration.

[21]

Thereafter, the author of the report turned to the adopted Development Brief MH3

and considered issues relating to various design policies before reaching a conclusion in

respect of those policies on page 8 using, Mr Findlay pointed out, the same "On the above

considerations..." formulation. The author of the report then adopted the same approach in

respect of a number of other issues including Public Health and Environmental Protection;

Transport; Infrastructure and Flooding; and Coal Mining. There was no section drawing

everything together, the report simply moved immediately after the Planning Assessment to

its Recommendation section which was that the planning permission be granted subjected to

certain undernoted conditions.

[22]

On this basis, Mr Findlay submitted that the author had taken the Need Report into

account. He acknowledged that the report did not set out why this had been done.

However, he suggested that one explanation for this might be found in the wording of

Policy EMP1 (quoted above at paragraph [12]). A crematorium did not fall within Use

Classes 4, 5, and 6. Accordingly, such an employment generating use could be supported

provided it was consisted with the town centre first principle (policy TC1) and "provided

there would be no amenity conflicts or other unacceptable impacts. Proposals to redevelop

employment sites or premises for other employment generating uses will only be supported

where the uses proposed do not prejudice or inhibit the activities of a nearby employment

use." Mr Findlay argued that the fact that the policy required consideration of whether

other nearby employment uses were prejudiced might explain why the author of the report

had considered the issue of need and the Need Report. In other words, if it was necessary to

consider whether any additional employment arising from a proposed development was

effectively cancelled out by job losses resulting elsewhere, that could explain consideration

of the need for crematoria. This was, he argued, a perfectly sensible approach.

[23]

Mr Findlay accepted that this was suggestion was conjecture. In this regard,

Mr Findlay was careful to make clear that he was not arguing that the issue of need was a

"necessary material consideration" in the sense discussed, for example, in R (on the

application of Samuel Smith Old Brewery Tadcaster) v North Yorkshire County Council

[2020] UKSC 3, paragraphs 29 to 32. Rather, he was contending that it was a consideration to

which regard was had because it arose in the context of the particular planning application.

As such, it was not essential for the success of its argument for the petitioner to be correct

that the reason the issue of need was referred to in the report was the possible connection to

the wording of EMP1.

[24]

However, he accepted that it was critical for both the first and second ground of

challenge advanced by the petitioner that the Need Report had been considered by the

author of the report to the Planning Committee. The court should ask itself why there was a

reference to the Need Report in the report.

[25]

Mr Findlay then turned to the detail of the Need Report itself. He acknowledged

that at paragraph 1.4 the document stated:

"The application site is an allocated employment site, and the proposed use is

therefore compliant with planning policy, notwithstanding that, this needs reports

sets out further justification as to the need for a new crematorium, in addition the

need for a new crematorium has been acknowledge by representatives of East

Lothian Council." (Emphasis added).

This was unsurprising given this was the approach adopted in the application. What was

important was how the Need Report was treated in the report to the Planning Committee.

He highlighted that the Need Report considered both quantitative and qualitative factors.

He also drew my attention to the conclusions in section 5 the majority of which had been

copied at pages 5 and 6 of the report to the Planning Committee. In this regard, Mr Findlay

also noted the reference at paragraph 4.15 of the Need Report to a "crude example of

sustainability" which had also been copied into the Planning Committee report.

[26]

Mr Findlay accepted that there was neither reference to nor engagement with the

wording of Policy EMP1 which he had referred to as a suggested explanation for the

reference to the Need Report in the Planning Committee report.

[27]

Next, Mr Findlay drew my attention to the Planning Statement which had been

submitted by the interested party. This made reference to the Need Report which had been

submitted with it. In particular, Mr Findlay highlighted paragraphs 3.4 and 3.7 of the

Planning Statement (which are quoted above at paragraph [3]).

[28]

Again, Mr Findlay accepted that these references to the Need Report did not appear

to be in the context of Policy EMP1.

[29]

Overall, he submitted that the Planning Statement seemed to be somewhat confused

in that when one looked at the conclusions in Section 4, it was contended that the proposed

development was supported by the development plan (paragraph 4.1). But, even in this

section there was further reference to the Need Report (at paragraph 4.6). In any event,

Mr Findlay's submission was that the Planning Statement represented background and

context to subsequent the treatment of the Need Report by the Planning Committee.

[30]

Mr Findlay also referred to the Economic Benefits Analysis which had also been

submitted by the interested party. He emphasised that both the petitioner and the City of

Edinburgh Council had taken issue with details of that analysis.

[31]

In relation to the City of Edinburgh Council, he drew my attention to the response

which the council had submitted. This contained, Mr Findlay submitted, a very detailed

paragraph by paragraph rebuttal of the Need Report together with a similar exercise in the

respect of the Economic Benefits Assessment. Mr Findlay drew my attention to the way in

which this response had been dealt with in the report to the Planning Committee (quoted

above at paragraph [14]). Mr Findlay submitted that this was not an accurate summary: the

Council's response went beyond questioning the conclusions of the Need Report on the

basis of the negative impact on Edinburgh's crematoria. However, having thus

characterised the Council's response, the author of the report had then dismissed it on the

basis that commercial consideration is not a material consideration in the determination of a

planning application.

[32]

Mr Findlay also drew my attention to the Objection Statement which had been

submitted on behalf of the petitioner. He highlighted that the document contained detailed

challenges to both the qualitative and quantitative assessments contained in the Need

Report.

[33]

He highlighted one point in respect of paragraph 3.10 of the Objection Statement.

This paragraph set out a criticism of the claim made in the Need Report that the proposed

crematorium would be more environmentally friendly that the existing crematoria. This

paragraph contended that when the additional gas used to heat the furnaces at the proposed

new crematoria was considered, additional CO

of the order of 840 to 1188 tonnes per week

would be used. Mr Findlay advised me that it had come to his attention in preparation for

the hearing that this calculation was in error and the correct figure should be much lower -

of the order of 1 tonne per week.

[34]

He accepted that the Objection Statement had challenged the contention that the

proposed development was supported by the Local Development Plan and that this

challenge had been based on the applicability of the town centre first principle (Policy TC1).

[35]

As to the Further Objection submitted by the petitioner, this had been sent around

lunchtime the day before the meeting of the Planning Committee. It contained a summary

critique of the report. There was no express averment by the respondent that it had been

taken into account. Mr Findlay drew my attention to it for two reasons. First, it highlighted

the petitioner's dissatisfaction of the treatment of issue of need and the Need Report.

Second, it pointed up the absence of any advice from the respondent's planning officer on

the issue of need. If, as was now being contended by the respondent, irrelevant, one might

have expected the committee to be informed of this.

[36]

Turning to the approved minutes of the Planning Committee meeting on 5 October

2021, Mr Findlay drew my attention to the fact that a number of the members of the

committee are recorded as having referred, in general terms, to the need for a crematorium

in East Lothian. Mr Findlay was careful to be clear that he was not seeking to make much of

the discussion of need at the committee meeting. He was highlighting it as consistent with

the submissions which he had made in relation to the report.

[37]

As to the law, Mr Findlay doubted that there would be any significant disagreement

as to the legal principles to be applied to the challenges the petitioner raised.

[38]

He referred to paragraph [42] of the judgment of Lord Justice Lindblom in Mansell

(above at [19]) as to the correct approach to be taken to challenges, as in the present case,

based on a planning officer's report. On this basis, he submitted that the question for the

court was whether, on a fair reading of the report as a whole, the officer had materially

misled the members on a matter bearing upon their decision, and the error had gone

uncorrected before the decision was made. In this regard, he highlighted following passage:

"Where the line is drawn between an officer's advice that is significantly or seriously

misleading misleading in a material way and advice that is misleading but not

significantly so will always depend on the context and circumstances in which the

advice was given, and on the possible consequences of it. There will be cases in

which a planning officer has inadvertently led a committee astray by making some

significant error of fact (see, for example R. (on the application of Loader) v Rother

District Council [2016] EWCA Civ 795), or has plainly misdirected the members as to

the meaning of a relevant policy (see, for example, Watermead Parish Council v

Aylesbury Vale District Council [2017] EWCA Civ 152). There will be others where the

officer has simply failed to deal with a matter on which the committee ought to

receive explicit advice if the local planning authority is to be seen to have performed

its decision-making duties in accordance with the law (see, for example, R. (on the

application of Williams) v Powys County Council [2017] EWCA Civ 427). But unless

there is some distinct and material defect in the officer's advice, the court will not

interfere."

[39]

In particular, he drew my attention to the penultimate sentence of the passage. He

submitted that although it was not directly analogous, it represented a similar situation to

the present case. Here, the report had dealt with the Need Report. However, it had given

no guidance on the disputes surrounding the Need Report and, to that extent, the Planning

Committee were unguided. By way of illustration of this type of situation, albeit in a

different (and much more complex) factual situation, l Mr Findlay also referred to R (on the

application of Midcounties Co-Operative Limited) v Forest of Dean District Council & Ors 2015

EWHC 1251 at [96], [99] and [101]. In relation to the approach to reports, Mr Findlay also

referred to Regina (Morge) v Hampshire County Council [2011] 1 WLR 268 at paragraph [36].

[40]

Finally, Mr Findlay referred to the judgment of Mr Justice Dyson (as he then was) in

R v Hambleton District Council Ex parte Somerfield Stores Limited (1999) 77 PCR 475. He did so

because of observations made on the issue of need:

"The starting point is that it is a fundamental general principle within the planning

process that an applicant does not have to justify an unobjectionable proposal. The

purpose of the planning process is to regulate development in the public interest, so

as to prevent, as far as possible, harm to interests of acknowledge importance. It is

not part of the planning process to prevent development which does not harm those

interests. I did not understand Mr Newberry to take issue with any of these broad

propositions. They find clear expression in paragraph 36 of PPG 1 (1997), viz.:

"owners of land and property expect to be able to use or develop their land as they

judge best unless the consequences for the environment or the community would be

unacceptable"....

That is not to say that, as a general proposition, need is never a material

consideration. An applicant may raise need as an issue in order to outweigh some

planning objection to his proposal, and to justify a departure from the Development

Plan."

[41]

Against this background, Mr Findlay was able to set out the petitioner's three

grounds of challenge relatively shortly.

[42]

First, Mr Findlay submitted that it was apparent from the report to the Planning

Committee that the issue of need and the Need Report (and to a lesser extent the Economic

Benefit Assessment) had been treated as a material consideration. Or, at least, that was how

it had been presented to the Planning Committee. The Planning Committee had never been

told that need was not a material consideration. However, the way in which the issue had

been presented to the Planning Committee was unlawful because a wholly one-sided picture

of it had been presented to the committee.

[43]

Second, the petitioner challenged the treatment of the response of the City of

Edinburgh Council in the report to the Planning Committee. Despite the detailed

commentary that was provided by the Council in relation to both the Need Report and the

Economic Benefits Assessment, the sole point made in the report was:

"It should be noted that commercial competition is not a material consideration in

the determination of a planning application."

[44]

There was no dispute that this was correct as a statement of law. The point made by

the petitioner was that, left in isolation, this created a misleading impression. As such, this

second ground of challenge reinforced the first.

[45]

The third ground was that the report to the Planning Committee had simply failed to

deal with the points raised by the petitioner concerning CO

emissions in particular at

paragraph 3.10 of the Note of Objections and in the Further Objections. As was noted above

(at paragraph [33]), Mr Findlay had identified that there was an error in this paragraph and

that the CO

which it was estimated would be generated the proposed development was

greatly overstated by the petitioner. However, Mr Findlay submitted that the fact that this

error had apparently gone undetected by the respondent highlighted his point. In other

words, the fact that the respondent had not noticed this emphasised that the respondent had

simply had no regard to the points made by the petitioner in relation to emissions.

[46]

Mr Findlay submitted that, as such, the report to the Planning Committee was again

misleading and in error. It was apparent from the report (at page 13) that the issue of

emissions was of significance. However, the Planning Committee had been misled by the

report failing to mention let alone address the issues raised by the petitioner.

[47]

For each of these grounds, Mr Findlay moved me to reduce the grant of planning

permission.

Submissions for the respondent

[48]

Senior Counsel for the respondent moved me to dismiss the petition.

[49]

He began by setting out what he described as the planning context to the

respondent's decision.

[50]

The interested party's application was for a crematorium. The Local Development

Plan did not contain any specific policies relating to crematoria. Accordingly, the first

question which arose was what is the allocated use of the site? The answer to this question

could be found in Proposal MH3 which, in turn, referred to Policy EMP1. Policy EMP1

specified that the site was allocated for employment uses (quoted above at paragraph [12]).

Crematoria did not fall within Use Classes 4, 5 or 6 of the Town and Country Planning (Use

Classes) (Scotland) Order 1997. The next two sentences of the policy are as follows:

"Other employment generating uses may also be supported in these locations subject

to the town centre first principle (policy TC1) and provided there would be no

amenity conflicts or other unacceptable impacts. Proposals to redevelop

employment sites or premises for other employment generating uses will only be

supported where the uses proposed do not prejudice or inhibit the activities of a

nearby employment use."

[51]

Mr Thomson submitted, contrary to the petitioner's argument, that only the first of

these sentences was relevant. The second sentence had no application in the present case

because the proposed development was not a proposal to redevelop. The proposal was for

the crematorium to be built in a green field site.

[52]

On this basis, Mr Thomson submitted that the initial planning issues in determining

whether Policy EMP1 supported the development were: first, did the proposed

development generate sufficient employment; and second, was it struck at by either policy

TC1 or were there other amenity impacts or other unacceptable impacts. If those issues were

addressed satisfactorily in respect of the proposal, then a presumption in its favour arose

from the Local Development Plan. If the two issues were not addressed, then the

application would not accord with Policy EMP1, it would be contrary to the Local

Development Plan and the interested party would require to identify other material

considerations to justify the application.

[53]

Approaching matters on this basis, one could see, Mr Thomson suggested, why

applicants might, at the outset of an application, pursue two avenues of attack: first, seeking

to argue that their proposed development was supported by the Local Development Plan;

and, second, suggesting, in the alternative, that there was some other compelling need for

the development of the site in question. Until an applicant discovered the local authority's

view as to whether or not the proposed development was supported by the Local

Development Plan, it was prudent to have a fall-back position. He submitted that it was

apparent from the documents submitted that the interested party had adopted this type of

approach in the present case. It was for this reason that the interested party had prepared

and submitted both the Need Report and the Economic Benefits Assessment. At this stage,

the interested party did not know whether or not the respondent considered that the

proposal was supported by the Local Development Plan.

[54]

Mr Thomson submitted that the planning context was underpinned by the primary

applicable statutory provisions. In this regard, Mr Thomson drew my attention to sections

25 and 37 of the Town and Country Planning (Scotland) Act 1997. First, section 37(2)

provided:

"37.

Determination of applications: general considerations.

(1) Where an application is made to a planning authority for planning permission--

(a) subject to [sections 27B(2) and 59(1)(b)] 1 , 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.

..." (Emphasis added)

[55]

This section then set the context for section 25(1) which provided:

"25

Status of development plan

(1) Where, in making any determination under the planning Acts, regard is to be had

to the development plan, the determination is, unless material considerations

indicate otherwise-- (a) to be made in accordance with that plan,..." (Emphasis

added)

[56]

Mr Thomson also drew my attention to paragraph 32 of the Scottish Planning Policy

which provides:

"Development Management

32. The presumption in favour of sustainable development does not change the

statutory status of the development plan as the starting point for decision-making.

The 1997 Act requires planning applications to be determined in accordance with the

development plan unless material considerations indicate otherwise. Proposals that

accord with development plans should be considered acceptable in principle and

consideration should focus on the detailed matters arising."

[57]

Against the background of these statutory provisions, Mr Thomson then turned to

the decision of the House of Lords in City of Edinburgh Council v Secretary of State for Scotland

1998 SC(HL) 33 and, in particular, the speeches of Lord Hope (at 35G to 36G) and

Lord Clyde (at 43D to 45F). This case had considered the statutory predecessors of

sections 25 and 37 and discussed how the provisions should be approach. In this regard,

Mr Thomson drew my attention to a passage of Lord Clyde's speech (at 36C to G) where he

said the following:

"Counsel for the Secretary of State suggested in the course of his submissions that in

the practical application of the section two distinct stages should be identified. In the

first the decision-maker should decide whether the development plan should or

should not be accorded its statutory priority; and in the second, if he decides that it

should not be given that priority it should be put aside and attention concentrated

upon the material factors which remain for consideration. But in my view it is

undesirable to devise any universal prescription for the method to be adopted by the

decision-maker, provided always of course that he does not act outwith his powers.

Different cases will invite different methods in the detail of the approach to be taken

and it should be left to the good sense of the decision-maker, acting within his

powers, to decide how to go about the task before him in the particular

circumstances of each case. In the particular circumstances of the present case the

ground on which the reporter decided to make an exception to the development plan

was the existence of more recent policy statements which he considered had

overtaken the policy in the plan. In such a case as that it may well be appropriate to

adopt the two-stage approach suggested by counsel. But even there that should not

be taken to be the only proper course. In many cases it would be perfectly proper for

the decision maker to assemble all the relevant material including the provisions of

the development plan and proceed at once to the process of assessment, paying of

course all due regard to the priority of the latter, but reaching his decision after a

general study of all the material before him. The precise procedure followed by any

decision-maker is so much a matter of personal preference or inclination in light of

the nature and detail of the particular case that neither universal prescription nor

even general guidance are useful or appropriate."

[58]

Mr Thomson also made reference to the decision of the Extra Division in

Aberdeenshire Council v Scottish Ministers 2008 SC 485. His reason for referring to this case

was that it dealt with the issue of so-called "double-counting" of material considerations. In

other words, the situation in which a factor is considered both in the context of determining

whether the proposed development accords with the Development Plan and also, thereafter,

in deciding whether there are material considerations which nonetheless justify the

proposal. Addressing this issue, the court noted at paragraph [40]:

"Having considered all that was said in the House of Lords and the submissions

advanced to us by counsel for the parties we have to say that, while we do not think

that a material consideration justifying departure from the development plan has

necessarily to take the form of some later planning guidance, we nonetheless think

that there is much force in all that has been said in the argument for the appellants.

It appears to us that a material consideration such as to override the presumption, or

enhanced status, given to the development plan by sec 25 of the Act must normally

be external to the factors included in the overall ponderation of matters in the

elaboration of the development plan policy. In essence, were the decision-taker

entitled to effect a personal selection of a factor, or some factors, in that overall

ponderation while ignoring others and treat that selection as the basis for a `material

consideration' which elided the responsibility placed upon him by sec 25 of the Act,

the provisions of sec 25 would be much weakened, if not emasculated, and would be

in effect little more than a mere statutory exhortation."

[59]

Mr Thomson also referred to a number of authorities concerning challenges to

reports to Planning Committees. First, he referred to a passage from R v Mendip District

Council Ex parte Fabre (2000) 80 P&CR 500 at 58:

"Whilst planning officers' reports should not be equated with inspectors' decision

letters, it is well established that, in construing the latter, it has to be remembered

that they are addressed to the parties who will be well aware of the issues that have

been raised in the appeal. They are thus addressed to a knowledgeable readership

and the adequacy of their reasoning must be considered against that background.

That approach applies with particular force to a planning officer's report to a

committee. Its purpose is not to decide the issue, but to inform the members of the

relevant considerations relating to the application. It is not addressed to the world at

large but to council members who, by virtue of that membership, may be expected to

have substantial local and background knowledge. There would be no point in a

planning officer's report setting out in great detail background material, for example,

in respect of local topography, development planning policies or matters of planning

history if the members were only too familiar with that material. Part of a planning

officer's expert function in reporting to the committee must be to make an assessment

of how much information needs to be included in his or her report in order to avoid

burdening a busy committee with excessive and unnecessary detail."

[60]

Mr Thomson also referred to the decision of the Court of Appeal in R v Selby District

Council, Ex parte Oxtons Farms and another [2017] PTSR 1103. In particular, he drew my

attention to the following passages from, respectively, the judgments of Lord Justices Pill

and Judge (as he then was):

"It is important that those who make determinations under the planning Acts are

familiar with sections 70(2) and 54A of the 1990 Act and apply the test imposed by

Parliament. It follows that a planning officer reporting to and advising council

members who are to make a relevant decision must keep the test in mind in the

information and advice he provides and in the manner in which he provides it.

Clear-mindedness and clarity of expression are obviously important. However that

is not to say that a report is to be construed as if it were a statute or that defects of

presentation can often render a decision made following its submission to the council

liable to be quashed. The overall fairness of the report, in the context of the statutory

test, must be considered" (at page 1110) and

"From time to time there will no doubt be cases when judicial review is granted on

the basis of what is or is not contained in the planning officer's report. This reflects

no more than the court's conclusion in the particular circumstances of the case before

it. In my judgment an application for judicial review based on criticisms on the

planning officer's report will not normally begin to merit consideration unless the

overall effect of the report significantly misleads the committee about material

matters which thereafter are left uncorrected at the meeting of the planning

committee before the relevant decision is taken" (at page 1111)

[61]

The subsequent decision in Mansell (above) referred to by Mr Findlay did not dilute

the significance of these passages. In this regard, Mr Thomson referred to a passage from

the judgment of the Chancellor of the High Court, Sir Geoffrey Vos at paragraph [63]:

"An appeal will only succeed, as Lindblom L.J. has said, if there is some distinct and

material defect in the report. Such reports are not, and should not be, written for

lawyers, but for councillors who are well versed in local affairs and local factors.

Planning committees approach such reports utilising that local knowledge and much

common-sense. They should be allowed to make their judgments freely and fairly

without undue interference by courts or judges who have picked apart the planning

officer's advice on which they relied."

[62]

Mr Thomson also submitted that care needed to be taken in relation to those

authorities which had been referred to by Mr Findlay which arose out of retail cases such

as Midcounties (above at paragraph [39]). The reference to need in retail cases had to be seen

in the particular context of those cases where it was relevant because the proposed

development was not supported by the Local Development Plan.

[63]

Considering the chronology of documents leading up to the Decision, Mr Thomson

drew my attention to the email from the respondent's Senior Planner to the interested

party's representative dated 25 September 2019. This email made reference to the

respondent's approval of a motion declaring a climate emergency on 27 August 2019.

Mr Thomson emphasised that this declaration did not override the grant of a planning

application. Rather this motion required developers to submit, with their applications,

details of the steps to be taken to minimise and reduce carbon emissions.

[64]

In relation to the Further Objections, Mr Thomson advised that this document had

not been sent to the Planning Officer who had prepared the report to the Planning

Committee. He further informed me, and I did not understand it to be in dispute, that the

Planning Officer only became aware of the Further Objections when the present proceedings

were raised by the petitioner.

[65]

As to the meeting of the Planning Committee itself, Mr Thomson submitted that it

was important to distinguish between, on the one hand, the general, high level, awareness of

the lack of a crematorium in East Lothian and, on the other, the issue for a need for a

crematorium at the particular site with which this application was concerned. In respect of

the first of these, it was apparent that the respondent's officers had been aware of this for

some time and, indeed, had had, at one time, their own proposal to address this. This

general awareness formed part of the background knowledge of the members of the

respondent's Planning Committee.

[66]

As to the second, Mr Thomson submitted that this would only have arisen in the

event that the proposed development did not accord with Policy EMP1. However, in

preparing the report to the Planning Committee, the Planning Officer had concluded that

the proposed development was consistent with Policy EMP1.

[67]

In terms of the background knowledge of the committee, Mr Thomson highlighted

that the members of the Planning Committee would also have been aware that the

population of East Lothian across all age groups was predicted to increase which would

increase demand for all community services. This was apparent from paragraph 1.22 of the

Local Development Plan.

[68]

Turning to the report to the Planning Committee itself, Mr Thomson noted that the

author begins with a section setting out the details of the proposed development. The next

section, starting on page 3, is headed "Development Plan". Mr Thomson noted that the

author commences this section by correctly identifying section 25 of the 1997 Act (quoted

above at paragraph [55]) and then setting out the relevant policies. The author also

identifies two material considerations at the foot of page 3 the first being the respondent's

Development Briefs Supplementary Planning Guidance and the respondent's Sustainable

Drainage Systems Supplementary Planning Guidance. The author then summarises the

issues identified in the written objections received.

[69]

The next section is entitled "Planning Assessment", this begins with the author

setting out Policy EMP1 and Policy TC1. At this stage, the author refers to the Need Report

and the Economic Benefit Assessment. Mr Thomson highlighted two points in relation to

this reference. First, it was apparently out of context. It had no obvious place in this section.

What was said about neither the Need Report nor the Economic Benefit Assessment

appeared to be relevant to the two planning policies set out at the beginning of the section.

Second, the author of the report to the Planning Committee had made no assessment of or

comment on these documents. This contrasted with the approach of the author in other

parts of the report where he considered it necessary to give advice to the Planning

Committee.

[70]

Mr Thomson accepted that the author's treatment of the Need Report and the

Economic Benefit Assessment was an oddity but no more than that. The fact remained that,

because the author concluded that the proposed development was supported by Policy

EMP1, neither the Need Report nor the Economic Benefit Assessment was relevant. Had

that conclusion not been reached, the position would have been very different. But, as

Mr Thomson put it, that tipping point had never been reached.

[71]

Turning back to the report, the author then addressed two consultation responses

(from the City of Edinburgh Council and the respondent's Economic Development Team

Manager) before coming to the conclusion in respect of Proposal MH3 and Policy EMP1. In

relation to the treatment of the first response, Mr Thomson submitted that the author had

provided advice in respect of the treatment of commercial competition. The author of the

report had then gone on to consider issues arising from Policy EMP1, namely the question of

footfall (which related to Policy TC1) and the issue of prejudice or inhibition of nearby

employment uses (which related to the second sentence of Policy EMP1).

[72]

The remainder of the report was in Mr Thomson's submission uncontroversial.

Mr Thomson pointed out that the presumption is that unless there is evidence to suggest

otherwise, it may reasonably be assumed that, if the members followed the officer's

recommendation, they did so on the basis of the advice that he or she gave. This was also

stated expressly in the Decision notice itself.

[73]

On this basis, Mr Thomson's submissions in respect of the three grounds of appeal

were as follows.

[74]

In respect of Ground 1, this was materially unfounded. The respondent had never

called for the Need Report albeit one could understand why the interested party have

prepared one as a "Plan B". More importantly, in light of the conclusion that the proposed

development was supported by Policy EMP1, need was not a material consideration and

was not relevant either to Policy EMP1 or to the planning assessment. Properly construed,

there was no basis in the report to the Planning Committee for the assertion which lay at the

heart of this ground: namely, that need had been treated as a material consideration.

Accordingly, there had been no requirement for the report to address the disputes in respect

of the issue of need.

[75]

As to Mr Findlay's argument that the issue of need was relevant to a consideration of

Policy EMP1, Mr Thomson noted that this argument had not been set out by the petitioner in

either its pleadings or its Note of Argument. However, Mr Thomson submitted that this

argument straightforwardly failed because, despite what he described as the petitioner's

valiant efforts, need was simply not relevant to Policy EMP1. As he had submitted, the

second sentence of Policy EMP1 simply did not apply because the Proposed Development

was not a re-development.

[76]

In respect of the second ground, Mr Thomson dealt with it in passing. The

respondent's answer to the first ground applied equally to this ground.

[77]

In respect of the third ground of appeal, Mr Thomson submitted that the issues of

emissions had been dealt with adequately in the final paragraph of the Planning

Assessment on page 13 of the report to the Planning Committee (quoted above at

paragraph 16). The declaration made by the respondent on 27 August 2019 was not

intended to be and did not constitute an over-ride of the planning process. Mr Thomson

pointed out that, at present, there are no policies which regulate the primary uses of land in

respect of the CO

emissions. Within the present planning framework, there was no power

to refuse planning permission because CO

was being produced. Accordingly, from a

planning perspective, the way in which the report dealt with the issue was appropriate.

[78]

Accordingly, for these reasons, Mr Thomson submitted that there was nothing

materially wrong with the report to the Planning Committee and that the tests provided for

in Selby (above at paragraph [60]) and Mansell (above at paragraph [19]) for such challenges

were not nearly met. He invited me to conclude both that the report did not materially

mislead the Planning Committee and that neither the Resolution nor the Decision should be

reduced.

Submissions for the interested party

[79]

Senior counsel for the interested party, in a short submission, also moved me to

dismiss the petition. He formally adopted the submissions made by Mr Thomson on behalf

of the respondent. The only issue which he addressed me on at any length was the issue of

the genesis of the Need Report. He emphasised that, as was apparent from the terms of the

Need Report (at paragraph 1.4), it had been prepared as fall-back position with the primary

positon being that the proposed development was consistent with the Local Development

Plan. This position was also set out in the Planning Statement prepared by the interested

party.

[80]

In summary, the interested party did not consider that, in the event that the

proposed development was supported by the Local Development Plan, need was a material

consideration. The interested party had never advanced this position. Mr Armstrong was at

pains to make clear that the interested party had at no point made the connection between

the Need Report and Policy EMP1 which had been put forward by Mr Findlay.

Reply by the petitioner

[81]

In a short reply, Mr Findlay contended that the respondent's analysis, while coherent

in itself, did not address the "oddity" of the reference to the Need Report in the report to the

Planning Committee. He pointed out that the author of the report appeared not to have

taken the same approach as Mr Thomson to the second sentence of Policy EMP1 because, far

from being irrelevant (as Mr Thomson contended), the author had chosen to include a

conclusion that "The crematorium use of it would not prejudice or inhibit the activities of

any nearby employment use." Accordingly, Mr Findlay submitted further that the author

may have considered the Need Report. This was not just in relation to the second sentence

of EMP1 but could have been relevant to EMP1 more generally. The issue of need, while not

necessarily a material consideration, could still have been relevant to Policy EMP1 in the

context of employment generation.

Decision

[82]

Having had the benefit of lengthy and detailed submissions from the parties, I

consider that the dispute before me essentially turns on the relatively narrow issues of

whether the report to Planning Committee materially misled the committee in respect of the

two matters highlighted in the three grounds of appeal: namely, first in its treatment of the

Need Report and the Economic Benefits Analysis (including the comments on those

documents provided by the City of Edinburgh Council); and, secondly, in relation to the

issue of CO

emissions.

[83]

In the case of both of these matters, the petitioner's complaint is that the author of the

report set out a one-sided view. First, the content of the Need Report and Economic Benefits

Analysis were referred to in the report but the committee was not provided with the detail

of the criticisms of those documents provided both by the petitioner and the City of

Edinburgh Council. Second, the report simply did not deal with the points raised by the

petitioner in respect of the emission of CO

2..

[84]

The parties were agreed that the approach to be taken challenges based on the

content of a planning officer's report was set out in the cases of Selby (above at paragraph 60)

and Mansell (above at paragraph 19). For present purposes, I derive the following

propositions from those cases:

Planning officers' reports to planning committee are not to be read with undue

rigour, but with reasonable benevolence, and bearing in mind that they are written

for councillors with local knowledge (Mansell at [42](2)).

Planning officers require to keep in mind the test imposed by Parliament in terms of

sections 25(1) and 37(2) of the Town and Country Planning (Scotland) Act 1997 in the

information and advice provided and in the manner in which it is provided (Selby at

page 1110).

The question for the court will always be whether, on a fair reading of the report as a

whole, the officer has materially misled the members on a matter bearing upon their

decision, and the error has gone uncorrected before the decision was made. Minor or

inconsequential errors may be excused. (Mansell at [42](2))

Unless there is evidence to suggest otherwise, it may reasonably be assumed that, if

the members followed the officer's recommendation, they did so on the basis of the

advice that he or she gave (Mansell at [42](2))

[85]

On this basis, it follows that in order for the report to the Planning Committee to

have been materially misleading, it would need to have misled the committee on a matter

which bore upon their decision. As there is no evidence to suggest otherwise, I proceed on

the basis that the members of the Planning Committee reached their decision on the basis of

the advice they received in the report.

[86]

Further, the assessment of the matters which bore upon the decision of the

Committee has to be seen through the prism of the test imposed by Parliament by

sections 25(1) and 37(2) of the Town and Country Planning (Scotland) Act 1997. In other

words, applications are to be determined in accordance with the Development Plan unless

material considerations indicate otherwise. In the case of this proposed development, the

author of the report concluded that it was accordance with Policy EMP1 of the Local

Development Plan. This was the basis for the recommendation reached in the report that

permission be granted subject to conditions.

[87]

Adopting this approach, it is apparent to me that neither of the two matters

highlighted in the grounds of appeal did in fact bear upon the decision that the Planning

Committee reached.

[88]

In the case of the Need Report and the Economic Benefits Assessment (together with

the City of Edinburgh's comments on those documents), these simply did not, either in law

or in fact, bear upon what was the critical question: namely, whether the proposed

development was in accordance with the Local Development Plan.

[89]

As a matter of law, the issues raised by the Need Report and the Economic Benefit

Analysis did not bear on the question of whether the proposed development was in

accordance with the Local Development Plan. As the report correctly identified, that

question fell to be determined by a consideration of Policy EMP1. Neither the Need Report

nor the Economic Benefits Analysis were directed towards or addressed the issues raised by

Policy EMP1.

[90]

In this regard, I was not persuaded by Mr Findlay's suggestion that the Need Report

and the Economic Benefits Analysis might bear upon the final sentence of Policy EMP1

"Proposals to redevelop employment sites or premises for other employment generating

uses will only be supported where the uses proposed do not prejudice or inhibit the

activities of a nearby employment use." I agree with Mr Thomson that as it involves a green

field site, this sentence simply does not apply to the proposed development. Furthermore, I

consider that it is significant, as Mr Findlay conceded, neither the Need Report nor the

Economic Benefits Assessment make any direct reference either to Policy EMP1 or the issues

raised by that policy. Furthermore, neither document was deployed in that context by the

interested party in the course of the application process.

[91]

Notwithstanding this legal analysis, I accept that it would have been open to the

author to attach significance to the Need Report and the Economic Benefits Analysis in the

context of the recommendation he was making. Accordingly, it is necessary also to consider

the report from this perspective. Albeit, in doing so, I continue to bear in mind the statutory

test arising from the 1997 Act as the authorities noted above indicate that both the author of

the report and its readers should.

[92]

Approaching the report on this basis, I consider that, as a matter of fact, read with

reasonable benevolence, as the authorities require me to, it cannot be said that either the

Need Report or the Economic Benefits Analysis were treated by the author as bearing upon

the Planning Committee's decision. In reaching this conclusion, I acknowledge that the

author of the report has devoted some space to setting out and summarising, in particular

the Need Report, and to a lesser extent, the Economic Benefits Assessment.

[93]

However, I consider that it is important to see the reference to the Need Report and

the Economic Benefits Analysis within the context of the section of the report in which they

are made. The reference to these documents is contained in the section entitled "Planning

Assessment" and immediately follows the author having identified the relevant parts of the

Development Plan: namely, Proposal MH3 and Policies EMP1 and TC1 which required to be

considered in accordance with section 25(1) of the 1997 Act. Thereafter, that section contains

reference to the Need Report, the Economic Benefits Analysis, the responses from the City of

Edinburgh Council and the respondent's Economic Development Team manager before

reaching the conclusion that the proposed development would be an employment

generating use and, therefore, not contrary to the Local Development Plan.

[94]

In this context, it is significant that within this section the analysis of the author is

confined solely to the issues raised in relation to the question of the compatibility of the

proposed development with the Local Development Plan. Notably, the author provides

neither analysis of nor advice in respect of either the Need Report or the accompanying

Economic Benefits Analysis.

[95]

In light of these considerations, ultimately, I do not consider that, properly

construed, the report does link either the Need Report or the Economic Benefits Analysis to

its conclusion that the proposed development was not be contrary to the Local Development

Plan and, hence, the overall recommendation of the report. It follows that I do not consider

that the report materially misled the Planning Committee in respect of the matters raised in

the first two grounds of appeal.

[96]

In relation to the third Ground of Appeal, again, the principal difficulty for the

petitioner in seeking to argue that the report is materially misleading is demonstrating that

the author's failure to highlight or address the point made by the petitioner concerning

emissions was a matter bearing on the decision of the Planning Committee.

[97]

In the event, I consider that this difficulty is insuperable for the petitioner. I do not

consider that the report was materially misleading in failing to mention or address this point

precisely because it did not bear upon the Committee's decision.

[98]

As the report noted, on 23 April 2021, the respondent had issued a screening opinion

to the interested party setting out the respondent's view that the proposed development was

not likely to have a significant effect on the environment such that consideration of

environmental information was required before any grant of planning permission.

[99]

The report also notes the respondent's declaration of a climate emergency on

27 August 2019 which decided that a report on the actions to be taken to reduce carbon

emissions from the building and the completed development should be required on relevant

applications for planning permission. The report then goes on to record that the interested

party had submitted a Sustainability Statement report which complied with that

requirement. This was a reasonable exercise of planning judgment by the respondent.

[100]

Against this background, in the context of a proposed development which accorded

with the Development Plan, I agree with the respondent that no further information or

advice required to be given to the Planning Committee.

Order

[101]

Accordingly, in these circumstances, I will repel the petitioner's pleas in law and

dismiss the petition. I will reserve all questions of expenses in the meantime.

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> EDINBURGH CREMATORIUM LTD AGAINST EAST LOTHIAN COUNCIL [2022] ScotCS CSOH_79 (21 October 2022) URL: http://www.bailii.org/scot/cases/ScotCS/2022/2022_CSOH_79.html Cite as: [2022] ScotCS CSOH_79, [2022] CSOH 79

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