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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bellway (Scotland) Ltd & Ors v Stirling Council & Anor [2008] ScotCS CSIH_42 (08 July 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSIH_42.html Cite as: [2008] ScotCS CSIH_42, [2008] CSIH 42 |
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EXTRA DIVISION,
INNER HOUSE, COURT OF SESSION |
|
|
Lord Eassie Lord Reed Lord Carloway |
[2008] CSIH42 XA211/06 OPINION OF THE COURT delivered by LORD CARLOWAY in the appeal by BELLWAY ( Appellants against (First) Respondents ________________ |
First Respondents:
Second Respondents: D
1. The
Legislative Framework
"(1)
The structure plan for any district shall be a written statement
(a)
formulating the planning authority's policy and general proposals in respect of
the development and other use of land in that district...,
...and
(c)
containing such other matters as may be prescribed.
...
(3) A structure plan
for any district shall contain or be accompanied by such diagrams,
illustrations and descriptive matter as the planning authority think
appropriate for the purpose of explaining or illustrating the proposals in the
plan, or as may be prescribed, and any such diagrams, illustrations and
descriptive matter shall be treated as forming part of the plan".
Section 10 provides for the approval of
structure plans "in whole or in part and with or without modifications or
reservations" by the Scottish Ministers. Section 11 states that:
"(3)
A local plan shall consist of-
(a) a written
statement formulating in such detail as the planning authority think
appropriate the authority's proposals for the development and other use of land
in that part of their district or for any description of development or other
use of such land ...,
(b) a map
showing those proposals, and
(c) such
diagrams, illustrations and descriptive matter as the planning authority think
appropriate to explain or illustrate those proposals, or as may be prescribed,
and shall contain such matters as may be prescribed".
[2] In dealing with the relationship
between a structure plan and a local plan, section 13 provides that:
"(1) A planning
authority shall keep under review any local plan adopted by them, or approved
by the Secretary of State, and may at any time make proposals for the
alteration, repeal or replacement of that plan.
(2) In complying with subsection (1) the planning
authority-
(a) shall
have regard to any information and any other considerations which appear to
them to be relevant or which may be prescribed, and
(b) shall
secure that any proposals conform generally to the structure plan as is stands
for the time being (sic), whether or
not it has been approved by the [Scottish Ministers]".
Section 15 permits a planning
authority to hold a local inquiry in order to consider any objections to a
local plan or proposals to alter such a plan.
Section 17 permits the planning authority to adopt the plan or proposals
to alter it, after consideration of any objections. But where there is a structure plan approved
by the Scottish Ministers:
"the planning authority shall not adopt any plan or
proposals which do not conform to that structure plan".
[3] Under
section 238, a person aggrieved by a structure or local plan or any alteration
to such a plan can apply to the Court of Session questioning its validity on
the basis that it is not within the powers conferred by the Act or that a
requirement of the Act or Regulations under the Act has not been complied
with. The section continues by stating
that the Court may "wholly or in part quash the plan or...the alteration", if it
determines the application to be well founded.
[4] The
Town and Country Planning (Structure and Local Plans) (
"9. (1) A structure plan shall contain or be
accompanied by a diagram, called a key diagram, showing so far as the planning
authority may think practicable the policies and general proposals formulated
in the written statement.
...
(3) No diagram contained in, or accompanying, a
structure plan...shall be on a map base.
...
10. In the case of any contradiction between the
written statement and any other document forming part of the structure plan,
the provisions of the written statement shall prevail."
[5] Guidance is
given to local planning authorities by the Scottish Ministers in the form of
Planning Advice Notes. PAN 37 (revised 1996) deals with "Structure
Planning". It states:
"3.
Structure plans set out the strategic framework for the use of land and make an
important contribution towards achieving sustainable development. They should provide:-
·
a framework for
the promotion of development and regeneration through private and public sector
investment
·
a strategic
approach to conserving and enhancing the quality of the natural and built
environment
·
the basis for
decisions on planning applications and appeals which
individually or cumulatively raise issues of more than
local significance
·
the context for
local plans
Essentially
structure plans should contain the land use planning policies and proposals
which coordinate the requirements for development land with the protection of
the environment at the strategic level.
...
44.
The written statement must set out in a clear, concise and coherent manner the
overall planning strategy together with the related policies, proposals and
recommendations; this should be supported by sufficient reasoned justification
to understand the context in which these have been formulated. Where further background explanation is
required, plan users should be referred to the report of survey or, if
appropriate, technical papers.
...
46.
The key diagram should indicate the spatial implications of the strategy. It
should show the general location of key policies and proposals, the scale of new
development...These should be cross referenced to the written statement. It is
not the function of the key diagram to identify individual sites or define
precise boundaries; this should be reflected in the notation. Supplementary
diagrams and illustrations can, however, be used where they help clarify or
explain a particular issue".
[6] PAN 49 (1996)
deals with "Local Planning". In relation to justifying variations from
structure plan policy when preparing a local plan, it states:
"28.
Any apparent variance...with a structure plan approved by [the Scottish
Ministers] requires careful explanation and justification...Bearing in mind the
requirement for conformity with an approved structure plan, any conflict must
be resolved before the local plan is adopted".
2. The
Clackmannanshire and
[7] The Structure
Plan was approved by the Scottish Ministers in March 2002. It addresses the
amount of new housing required for the first respondents' district. It has a
section on "Locational Strategy" which seeks to guide development to
sustainable locations. It is divided
into a Core Area, Rural Villages Area and Upland Area. The Structure Plan seeks
also to concentrate the majority of new development within the Core Area
(2.5.3). Whilst acknowledging that specific sites will be identified on a Local
Plan, it recognises the need to provide "some further locational guidance"
(para 4.3.17). Before embarking further upon the content of the Structure Plan
it is convenient to reproduce "Figure 2.2 Locational Framework" (which is
similar but not identical to an unnumbered document of the same name on the
previous page), in order to give context to the Proposals and background text.
This Figure is accompanied by a Table (Fig 2.3) which describes
the various areas. Stirling East is said to include Springkerse, Bannockburn
Interchange/Corbiewood, Cowie, Fallin, Plean and
[8] The Structure
Plan divides the allocation of new houses between the Core Area and the Rural
Centres. It continues (para 4.3.18):
"Whilst a moderate level of growth is
anticipated to come forward in a number of settlements as indicated in Table
HP2 the majority is to be delivered through a major growth area, which may be
in the form of a completely new community".
Table HP2 is in the following, amongst other, terms:
|
Proposal HP2: The New Local Plans
should make provision for the new housing land requirement as indicated
below. |
|||
|
Housing
Area |
Settlement/Area |
New Requirement |
|
|
|
2003-2008 Phase 1 |
2008-2017 Indicative Phase 2 |
|
|
and Bridge of Allan |
0 |
50 |
|
|
St Ninians, Cambusbarron |
300 |
100 |
|
|
Villages Area of Search for Major Growth |
300 |
50 circa 2500 |
|
Under the sub-heading "Stirling's
Major Growth Area", the Plan states (para 4.3.21):
"The
area of search for this is indicated in Fig. 2.2 and includes a broad swathe of
land sweeping round from the River Forth to the east of
Critically, the Plan then
sets out Proposal HP3 as follows:
"Proposal HP3:
Within the area identified as 'Stirling
East' on Fig 2.2 and on the Key Diagram as 'Search Area for Major Growth' the
Council will identify, through an Alteration to the Local Plan, the proposed
Major Growth Area...In the selection of a Local Plan site(s)...the Council will be
guided by a number of key principles including-
·
Avoiding urban
sprawl and coalescence between existing communities in the area, including
where appropriate, the designation of new areas of Green Belt.
·
Achievement of
accessibility by ...sustainable transport links to
·
Traffic management...
·
Provision for
appropriate local facilities...
·
Clear urban
design principles...
·
Optimal
densities, including open space and landscaping...
·
Achievement of a
range and mix of house types...
·
Opportunities to
achieve mixed use and local employment...
·
The potential to
link in with the Council's social inclusion and urban regeneration priorities...
·
Optimising the
potential to achieve all of the above whilst minimising the environmental
impact of the development and its impact on the landscape setting of
In order to complete the picture, the relevant part of the
Key Diagram, described as the "strategic vision" identifying "those areas that
need to be protected and enhanced, and those core areas to which growth will be
directed" (para 2.6.1), is reproduced.
Of significance on this and Figure 2.2 is the representation
of the M9 motorway (annotated only on Fig 2.2) running around the north of
Plean almost at right angles to the M80, which it joins at the Pirnhall
Interchange. The sketch of the "Search
Area", and of Stirling East on Figure 2.2, show a southern boundary extending
south of both Plean and the M9, but not including land immediately to the east
of the M80 south of Pirnhall.
3. Background
to the Structure Plan (1999 - 2002)
[9] An important
component of the appellants' submissions was the history behind the Structure
Plan. The starting point for this was a
report by David Tyldesley and Associates titled "Stirling Landscape Character
Assessment", dated March 1999, commissioned initially by Scottish Natural
Heritage but ultimately contributed to also by the first respondents. This focussed on the likely need for a
substantial new settlement of houses and how to balance the various planning
considerations in selecting an appropriate site. As its title suggests, the report proceeds
upon a primarily landscape perspective. It identified two areas of search for
the new settlement, both to the north of the M9 between Plean and
Pirnhall. However, it did stress that
this was purely from a landscape point of view and that the report was just one
element contributing to the overall search (para A.1.5). A meeting between the
first respondents' officials and various housebuilders took place on 1
September1999. The Minutes of this
Meeting, which were attached to the copy of the Tyldesley report lodged for the
purposes of the present appeal (for reasons which were not made clear), had a
sketch plan appended to them titled "Options for Major Growth". This plan
specified no options to the south of the M9.
[10] A Background
Report to the Structure Plan was completed in August 2000. In the context of housing development, this
Report recognised the limitations, in planning terms, of the areas of Stirling
North and Stirling West in terms of green belt and preserving the overall
setting of
"
......
4.190
East
The
Major Growth Area
4.191
Proposal HP3 sets out Stirling Council's criteria to be applied to the proposed
Major Growth Area. This approach is
taken in order to demonstrate an integrated and innovative approach to
accommodating a large proportion of the area's housing requirement, given
current infrastructure and environmental constraints..."
[11] The Finalised
Plan, also dated August 2000, was submitted for approval during that month. The
background text was broadly as noted above but Proposal HP3 in its original
form had started:
"The Council will identify, through an
Alteration to the Local Plan, a location for the proposed Major Growth Area..."
The first key principle had
read:
"The
avoidance of urban sprawl and coalescence between existing communities in the
area will be a primary consideration, including where appropriate, the
designation of new areas of Green Belt".
[12] In a report
dated October 2000, the appellants' advisors (Barton Willmore) recognised that
Figure 2.2 was only indicative and included land to the south of the M9 (para
3.4). The report contained a map on which their understanding of the extent of
Stirling East and the Area of Search (Drawing 9515/1) was marked. This included
significant land to the south of the M9, although not as far as
Durieshill.
[13] In their
comments dated November 2000, Barton Willmore drew attention to the failure of
the first respondents to cross reference the draft Key Diagram with the written
statement (para 2.29). They suggested that the Structure Plan should be more
explicit in stressing the indicative nature of boundaries shown on the Key
Diagram (para 2.31)
[14] It was the
Scottish Ministers who, in approving the Structure Plan, modified HP3 by clarifying
that the search area was within the area identified as "Stirling East" on Fig
2.2 and on the Key Diagram as "Search Area for Major Growth". They also tempered the first key principle by
deleting the description of it as "a primary consideration".
4. The
[15] A report for
the first respondents prepared by a multidisciplinary team of consultants, led
by EDAW, on the concept of a Major Growth Area and the identification of a
site, was completed in May 2002. It defined the search area as essentially the
whole of Stirling District south of the
[16] In June 2002,
the first respondents proposed an alteration (Alteration 1A) to their Local
Plan. It referred to the Core Area
consisting of Stirling West, Stirling East and Stirling North. Stirling East was defined as:
"including
Springkerse/Broadleys, Bannockburn Interchange/Corbiewood, Cowie, Fallin
(including Bandeath), Plean and
A locational diagram (Fig 2, excerpted from the more
extensive Fig 1) identified the Core Area and its three components of Stirling
North, East and West. Stirling East was shown with a southern boundary running
eastwards from the Pirnhall roundabout and skirting along the southern edge of
the M9, before detouring southwards to envelope Plean. It did not show that
boundary meeting the M80 south of Pirnhall or that area encompassing any
significant portion of land south of the M9 between Plean and the M80.
[17] In January
2004, the first respondents produced a consultative draft proposed further
alteration (Alteration 2), this time specific to the Major Growth Area. The
accompanying diagram (which was on a map base) showed the area of search as
encompassing not only the land between the M9 and the Forth, east of
Bannockburn and encompassing the villages of Fallin and Cowie, but also a
significant area south of the M9 (including Plean) forming a triangle between the
M9, the M80 and the district's southern boundary with Falkirk. It is within
this map area that the competition between the developers has arisen. The appellants' site at
[18] The selection
issue came before the first respondents' Environment Committee on
"4.9.1
On balance both the proposals can fulfil the requirements of HP3 and the
related Structure Plan criteria as indicated in the summary tables in the
Background report.
4.9.2
The proposals are only half a mile apart and in most instances compare quite
closely. The exceptions to this is (sic)
in relation to:
HP3(1)-
urban sprawl/coalescence where Durieshill achieves better policy compliance;
HP3(2),
TR1 and TR2 on accessibility/sustainable transport, where
HP3(10)
where West Sauchenford is more preferred in terms of environmental impact but
less preferred than Durieshill in terms of protecting the setting of Stirling
and its historic views.
4.9.3
The decision must then come down to the relative weight that should be given to
these criteria. In essence the choice lies in considering whether the issues of
landscape setting and coalescence outweigh those of sustainable transport and
impact on local landscape character/quality. Added to this there is also a
degree of uncertainty for the Sauchenford site as to the scope to deliver an
appropriate green belt with sufficient land area remaining to achieve
appropriate densities".
The officials did not make any recommendation to prefer one
site over the other. The first
respondents decided that the second respondents' site at Durieshill was the
preferred option.
[19] The first
respondents' decision led to the publication in November 2004 of the finalised
plan for "Alteration 2:
"Introduction
8.0
An area to the south east of
...
Delivering
a New Village
...
HP1
Durieshill New Village Proposal
To
progress, in partnership with other agencies and the private sector, delivery
of a new village to include circa 2500 houses along with the necessary
infrastructure and facilities, on land as identified on the proposals map".
The revised location map (Fig 2) confirmed the boundaries of
Stirling East as now extending into the triangle.
[20] In the context
of the consultation exercise, which followed, a planning officer of Clackmannan
Council wrote to his counterpart with the first respondents (letter dated 15
February 2005) expressing concern at the selection of the Durieshill site on
the basis that the site "extends beyond the Area of Search, identified in the
Structure Plan Key Diagram and Figure 2.2 in the approved Structure Plan". The appellants lodged objections to the
proposed alteration upon the same basis.
5. Local
Inquiry (October - December 2005) and Report (June 2006)
(a) COMPATIBILITY
WITH THE STRUCTURE PLAN
[21] An Inquiry was
held on the objections to the local plan Alteration 2 between October and
December 2005. The appellants'
submissions included the following:
"The starting point is Proposal HP2 which has
'a requirement' within the Stirling Core Area at
It
is therefore fundamental to the objections before this Inquiry that the extent
of the area of Stirling East and the Search Area for Major Growth be
identified. This is because if a site is
within these areas it may conform to the Structure Plan, if it is not so
located, the site can be, and should be, considered no further as it does not,
and cannot conform. If the site is
outside the area the Local Plan cannot be adopted if it promotes such a site to
provide the requisite 2,500 houses, as the Local Plan would not conform to the
Structure Plan.
The
text at 4.3.21 makes clear beyond any doubt, even taken in isolation, that the
area extends to the M9 (being to the S.E.) and to Plean. Accordingly even on
that basis alone any proposal to the south of the M9 would not accord with the
Structure Plan. If there is any doubt as
to which motorway is referred to, the background report confirms that the M9 is
the "outer limit" to the EAST Stirling Area...However a further consideration of
the terms of 4.3.21...confirm this is not a fanciful notion but is based on sound
planning considerations namely to reduce the need to travel and to promote safe
convenient and integrated cycle, pedestrian, public transport and road network
infrastructure. The M9 is a barrier to
such requirements. The Pirnhall
roundabout is an even greater barrier...
The
terms of the Structure Plan (fairly read) put this issue beyond any doubt.
However, consideration if it be needed is provided by a fair and objective
evaluation of Figure 2.2 Locational Strategy and Diagram.
(i)
Figure 2.2
This
is not plan based and indeed is diagrammatic. However what is clear is that
Stirling East is wholly within the Core Area.
...
(ii)
Key Diagram
...an
identical conclusion can be drawn in relation to the key diagram...
(iii)
The
...the
terms and diagrams of the Structure Plan confirm beyond doubt that Durieshill
lies outwith the area of search. However consideration of Alteration 1A takes
the matter beyond any reasonable or reasoned debate...
Figures
1 and 2...clearly show that the Core Area and Stirling East have a southern
boundary in a line between the Pirnhall roundabout and Plean and clearly
exclude the Durieshill site. There is no other possible interpretation".
In her report of June 2006,
the Reporter concluded:
"14.4
From Regulation 9(3) [of the 1983 Regulations] and the advice in the PAN [37],
I conclude that structure plans are meant to be strategic documents and that
the key diagram (and the other figures in the plan) are not meant to be on a
map base or to be site specific and that they should not define precise
boundaries. However, they should show the general location of key policies and
proposals.
...
14.7
It is apparent from figure 2.2 Locational Framework; from the unnumbered figure
on page 5 of the structure plan, also called Locational Framework, and from the
key diagram itself that features such as roads have been drawn in a
diagrammatic fashion. They have not been
drawn to replicate the features as they are found on an Ordnance Survey Map.
14.8
The locational strategy divides the structure plan area into three: the Core
Area, the Rural Villages Area and the Upland Countryside Area. Shaded zones representing these areas are
shown on the two locational framework figures and the key diagram. Just as the roads are shown diagrammatically
on these drawings, the shaded zones also appear to be diagrammatic. They do not, for example, follow the edges of
the upland areas precisely. Instead they give a general indication of the
location of the three different policy areas.
...
14.11
I conclude that both figure 2.2 and the key diagram of the structure plan are
indicative, that they do not define precise boundaries and that they give the
general location of key policies and proposals. As such, they accord with
Regulation 9(3) and advice in PAN 37.
14.12
The council has explained that the northern boundary of the Stirling East area
on both figure 2.2 and the key diagram does follow the River Forth and that
this boundary on the figure and key diagram is therefore intended to represent
a geographical feature. The river has
been drawn less indicatively than other features, for example, the meanders
have been shown in some detail. Other features on the figure and the key
diagram, such as the M80 and M9 and other roads, although they are geographical
features in reality, are shown diagrammatically. The figure and the key diagram
are therefore inconsistent in this respect, as they show the roads indicatively
but the river more realistically. To my
mind, this factor has had the effect of confusing what should be a relatively
simple issue. Nevertheless, whatever the alleged shortcomings of figure 2.2 and
the key diagram, the structure plan has been approved by Scottish Ministers in
this form.
14.13
The Stirling East area on figure 2.2 and the 'Search Area For Major Growth' on
the key diagram appear to be the same.
The area is shown on both figure 2.2 and the key diagram with its
southern boundary lying between the diagrammatic representation of the M9 and
that of the M80, to the south of the M9.
This seems to indicate that Stirling East is intended to include land to
the south of the M9.
14.14
As well as being shown on figure 2.2 and the key diagram, Stirling East is
described in the table at figure 2.3.
There is a list of places under the heading of Stirling East in this
table. The other strategic locations in
the table also contain a list of places. However, it is apparent that the list
of places is not exhaustive... Consequently, I do not attach any significance to
the omission of the Durieshill location from the list of places under Stirling
East in figure 2.3.
14.15
In paragraph 4.3.21...the area of search is described as follows: 'The area of
search for this is indicated in Fig. 2.2 and includes a broad swathe of land
sweeping round from the River Forth to the east of Stirling right round to
Plean and the motorway in the South East'.
It is not clear from this description whether the motorway referred to
is the M9 or the M80, although I note that the M80 lies to the south of
Stirling and the M9 lies to the south east, which would suggest it is the M9.
14.16
...the Background Report...describes the area as follows: '...Its outer limits are
defined by the River Forth to the North and the motorway (M9) in the
South'. This appears to be unambiguous.
However, both the text of paragraph 4.3.21 of the structure plan and the
Background Report include Plean within the area of search, which lies to the
south of the M9.
14.17
In the Stirling Council Local Plan Alteration 1A...the council interpret the
structure plan locational strategy in figures 1 and 2. Both figures are on a map base and are to
scale...
14.18
Figure 2...shows mainly the Core Area and, within it, Stirling East, Stirling
North and Stirling West. The south west
boundaries of the Core Area and Stirling East coincide and are shown just to
the north of the Pirnhall interchange.
The line marking the boundaries follows the M9 to the south east, but
lies slightly to the south of the motorway.
At the point where the M9 crosses the A9, the line doglegs to the south
west to include Plean and then continues in a south easterly direction to the
council boundary.
14.19
The council claims that the interpretation of the Core Area and Stirling East
as shown on figures 1 and 2 of alteration 1A was an error. The error was made because the first
alteration was prepared in June 2002 to deal, amongst other things, with all
the housing land requirements set out in the structure plan apart from the
major growth area, which would be covered in a second alteration to the local
plan. The council officers were
concentrating on that purpose and not on the major growth area...
14.21
It is entirely possible that the council did make an error in the first
alteration in relation to figures 1 and 2 and the locational strategy. Preparing a local plan, even one that is an
alteration and not a complete plan, is a complex process. However, I can understand objectors' frustration
that this explanation for the boundaries on the plans in the first alteration
appears to be post-rationalisation on the council's part. In this regard, I note that the Durieshill
site would lie almost entirely outwith the Core Area and Stirling East areas
identified on figures 1 and 2 of the first alteration to the local plan.
14.22
However, whatever the truth of the matter, the point is now of no more than
academic interest. Alteration 1A is a
finalised local plan and has not yet been adopted. It is not part of the statutory development
plan. In any event, alteration 2A
deletes figures 1 and 2 of the finalised alteration 1A and substitutes
replacement figures showing the Core Area and Stirling East which cover all of
the land between the M80 from the Pirnhall interchange southwards to the
council boundary.
14.23
In conclusion on the structure plan area of search, I note objectors' concerns
that the Durieshill major growth area is not located within the Stirling East
area. Transferring the area shown on structure plan figure 2.2 and the key
diagram to a map base would appear to support the premise that at least some of
the Durieshill site lies outwith the area.
However, Regulation 9...and PAN 37 are very clear that structure plan
figures and diagrams are not on a map base and are not intended to define
precise boundaries. For these reasons, I
conclude that the area defined as Stirling East on figure 2.2 and as the search
area for major growth on the key diagram does not define the precise boundaries
of the Stirling East area and it is not intended that the area shown on the
figure and the diagram should be transferred to a map base.
14.24
Regulation 10...refers to the reconciliation of contradictions in structure
plans. It states that in the case of any
contradiction between the written statement and any other document forming part
of the plan, the provisions of the written statement shall prevail. However, on the one hand the written
statement appears to imply that the southern boundary of the search area is the
M9, but on the other, the area includes Plean, which lies to the south of the
M9. In these circumstances, I do not consider that the written statement
clarifies the issue.
14.25
As the boundaries on figure 2.2 and the key diagram are indicative and are not
meant to define precise areas and as the southern boundary of Stirling East
appears to include land to the south of the M9, I conclude that the Durieshill
site can be interpreted as lying within Stirling East on figure 2.2 and within
the search area for major growth on the key diagram, albeit that it lies on the
southern margins of these areas".
(b) COALESCENCE AND OPTIMAL DENSITIES
[22] The reporter
proceeded to consider the comparative merits of the sites. One issue was the manner in which they met
the criterion of avoiding urban sprawl and coalescence. Another, separate if
related, issue was whether the sites could cope physically with the requirement
of building the 2,500 houses with ancillary facilities, including open space
(the "density" issue). The appellants' site at
"I
am writing to confirm that in addition to the land currently under your control
I own 140 acres to the east of the
The appellants had initially lodged a number of different
site layout plans (BBH 01, with variations BBH 02-04, BBH 57). These were
designed to show that the site could cope with the density requirement. The
appellants lodged a further plan (BBH 56a) which had an additional hatched area
attached to the eastern boundary of the appellants' site as presented at the
inquiry. This area extended to the M9
almost immediately to the north of Plean. Although not entirely clear, it may
be the 140 acres referred to in the letter.
[23] The appellants
made submissions in the context of coalescence with
[24] The second
respondents had made much of the potential of the appellants' site to produce
coalescence and urban sprawl. They had submitted
that were there to be any suggestion that the development might shift eastwards
into the hatched area on plan BBH 56A, there would be a heightened prospect of coalescence
with Plean and Cowie. On the separate
issue of density, the second respondents attacked the appellants' assurances of
the existence of extra land. In
particular, they submitted (Submissions p 65):
"The
position...is perplexing. On the one hand,
[the appellants] went to the trouble of producing BBH56 and BBH 56A to
demonstrate how much extra land they had, or could potentially have, within
their control and led evidence to support the possibility of residential
development to the north of the diverted A9...and to the south and east of the
Sauchenford Holdings....
On
the other hand [the appellants' planning expert] was great pains (sic) to
assure us that there was no intention to develop these areas or the land shown
in BBH 56A. Why then did they go to such lengths to tell us that these
possibilities existed? ...what more evidence could we possibly ask for that [the
appellants] acknowledge that their site is squeezed? And what is absolutely
clear is that there is no possibility of expansion in any other direction".
[25] The reporter
concluded in relation to the appellants' site that, in terms of the site
location plans, there was inadequate space between the western boundary of the
site and the urban edge of
"...would
increase the risk that urban sprawl and coalescence between
[26] On density,
the reporter examined the appellants' plans (eg BBH57) and noted that a total
of 85.45 hectares would be available for housing. At a density of 30 houses per hectare,
this could produce 2,563 houses. However, the hectares included land needed for
roads and open space. She considered
that the achievement of "optimal densities" at the site "may well be an issue"
(para 14.147) and that the amount of open space might be reduced to an
unacceptable level. In short, she held that the appellants' site only partly
met the criterion relative to optimal densities, including open space (para
14.148).
[27] Both
Durieshill and
"15.4
The Durieshill site should be confirmed as the site to meet
On
[28] In March 2007,
a consultative draft Structure Plan "3rd Alteration Towards 2025"
was published. In it, Figure 2.2 shows
Stirling East now extending south of the M9 and east of the M80. It contains an
added remark that:
"In order to emphasise the indicative nature
of Figure 2.2, and reflect the fact that the areas identified do not follow any
precise physical boundaries, it is proposed simplify (sic) the style of this figure".
Figure 2.3 is amended by adding "Durieshill" to the specific
settlements in Stirling East. HP3
becomes HP4 as follows:
"Stirling Council will support the
masterplanning and delivery of the new village at Durieshill for 2500 houses
and all associated facilities, as detailed through Alteration to the Stirling
Local Plan..."
The Key Diagram is also altered to show the new Durieshill
Village (HP4) in part of the Core Area, now extending in a similar fashion.
6. Submissions
(a) APPELLANTS
[29] The appellants
seek an order from the Court quashing Local Plan Alteration 2 in terms of
section 238 of the 1997 Act. In so doing, they first maintained the position
which they had adopted at the local inquiry. At the risk of unnecessary
repetition, this was, in essence and as noted above, that, on a proper
construction of the Structure Plan, the Alteration is contrary to its terms in
so far as it designates land to the south of the M9, and hence Durieshill, as
in Stirling East or the Search Area. Reference was made to the position in
[31] In the event
that there was any doubt about the correct interpretation, the background
circumstances could be looked at. Three
out of the nine circumstances preceded the Structure Plan and were of
particular importance. First there was the Tyldesley Report and its
identification of land to the north of the M9 only as areas for the search.
This was clearly for landscape reasons, and the Durieshill area had been
excluded because of those. Secondly, there was the Background Report (para 4.190)
which made it clear that the motorway boundary, ultimately referred to in
paragraph 4.3.21 of the Structure Plan, was the M9 and that this was the
outer limit of Stirling East. Thirdly there was the Options for Major Growth
sketch plan attached to the Minutes of the meeting with the house builders,
which had no sites south of the motorway.
[32] A fourth
factor was the tightening of HP3 by the Scottish Ministers, whereby a specific
area "within" Stirling East was identified. Fifth, the Key Diagram designated a
wedge of the land to the east of the M80, south of Pirnhall, as "
[33] The appellants
had a second and separate ground of appeal.
This was that, in reaching her conclusion on optimal densities, the
reporter had failed to take into account the letter from the owner of Plean
Farm. The existence of this letter produced a flexibility to the western
boundary. The second respondents had
also raised the issue of additional land and it had been considered in the EDAW
report. The reporter had not made any mention of the letter in her conclusions.
She had not agreed with the submissions of the second respondents; simply not
dealt with them, as she was required to do given that it was a material
consideration (Bolton Metropolitan
Borough Council v Secretary of State
for the Environment (1991) 61 P & CR 343, per Glidewell J's analysis at
pp 352-353; cf "main issue" in South
Bucks District Council v Porter (No
2) [2004] 1WLR 1953, Lord Brown of Eaton-under-Heywood at para 36).
(b) FIRST
RESPONDENTS
[34] The first
respondents moved the Court to refuse the appeal. They intimated that, were the Court to quash
the Alteration, they would feel obliged to return to the very beginning
("square one") of the Alteration process having regard to the dicta of Hidden J in South Northamptonshire District Council v Charles Church Developments (2000) PLCR
46 (at 53-54) (see also First Corporate
Shipping v North Somerset Council
[2001] EWCA Civ 693, Buxton LJ at para 37). This appeared to be at least an
oblique indication that success for the appellants would not result in their
site being preferred. Rather, the third alteration of the Structure Plan
designating Durieshill in any event would be progressed.
[36] There were two
questions. First, was the reporter's
interpretation of the location of the "Major Area of Growth" as including
Durieshill one which the Structure Plan was capable of bearing. This was a
matter of law. Secondly, was it reasonable. Structure plans were strategic
policy documents. They were not site
specific and were never intended to be so.
They provided a strategic framework to assist planning authorities to
identify specific sites that met local needs and priorities. The overriding priority was sustainable
development. The Plan specifically stated
that Figure 2.2 was "indicative" only (para 2.5.8). The only boundary fixed by a physical
feature was that along the
[37] Paragraph
4.3.21 used the word "includes" when referring to the broad swathe of land
sweeping down to the motorway, suggesting that the area was not confined to
that swathe. This was consistent with
the Key Diagram, which took in an area to the west of Plean. The text was clear and unambiguous and the
reporter had come to the correct decision as regards the inclusion of
Durieshill. It could not be said that
her decision was "perverse" or unreasonable.
She was correct in describing the content of the locational plan in
Alteration 1A as academic. The first respondents had not been considering the
present issue when promoting Alteration1A.
Cranage Parish Council v First Secretary of State (supra) guarded against a local authority
maintaining two different positions at different times. That was not the case here. It was only when
Alteration 2 came to be considered that the extent of the Search Area became an
issue. The letter from Clackmannanshire was simply the view of an official and
there had been no objection from Clackmannanshire to Alteration 2.
[38] In relation to
the second ground of appeal, the boundaries of the appellants' site, as
objectors, were those marked and stated on their plans. The site did not
include the extra ground referred to in the letter from the owner of Plean
Farm. The appellants had not adduced any
evidence about the suitability of this extra land to accommodate development.
The appellants' submissions contained no reference to developing their land
differently than as shown on their carefully prepared layout plans. The
reference to the additional land had not been made in the context of optimal
densities, but only relative to effectiveness in terms of PAN 38. The reporter did have the letter before her
and it was for her to give it such weight as she deemed appropriate. She
referred to the plan BBH 56A, which included the hatched area, but that area
was not part of the appellants' site. She was not required to deal with every
scrap of information put before her, provided she dealt with the material
points and gave adequate reasons for doing so. Even if she had failed to do so,
her conclusion about Durieshill being the most suitable site would have stood,
given the criteria upon which it and
(c) SECOND
RESPONDENTS
[39] The second
respondents adopted the submissions of the first respondents except in relation
to the consequences of quashing the Alteration. In supporting the reporter's
decision, it was stressed that, in terms of the legislation and planning
guidance, structure plans dealt with the general and the strategic rather than
the specific. If a structure plan were to set a boundary then it should clearly
state that it was doing so (see eg R ( on
the application of Satnam Millenium) v
Warrington Borough Council (supra)).
It was clear that Figure 2.2 and the Key Diagram were indicative only. It was clear also that Plean and an area
south of the M9 were in Stirling East and the Search Area.
[40] There was no
need to consider background material, unless there were an ambiguity, which
there was not. In any event, the proposition that it was only at a late stage
that land south of the M9 had been considered by the first respondents as
meeting the Structure Plan requirements was not borne out by the background
documents and had not even been the view of the appellants' advisors in the
years prior to the inquiry, notably as early as 2000.
[41] Consideration of the land to the east of
the site would have called into question coalescence with Plean, as the
reporter had observed. The land to the east had only been used in the context of
the arguments on effectiveness. At no
stage did the appellants attempt to amend their site or present evidence on the
suitability of the additional land for development. Indeed, it was said that it was not their
intention to develop this land. The appellants
had also not used the EDAW report in relation to this land. Even if the
reporter had considered that expansion to the east would have assisted in achieving
optimal densities, the second respondents' site would still have succeeded as
it still met more of the criteria stipulated in HP3.
7. Decision
(a) COMPATIBILITY
WITH THE STRUCTURE PLAN
[42] The issue is a
straightforward one. It is whether the adoption of Alteration 2 to the
Local Plan, and in particular the approval of the second respondents' site at
Durishill as the Major Growth Area, is inconsistent with the description of the
search area in the Structure Plan, in terms of Proposal HP3, as "the area
identified as 'Stirling East' on Fig 2.2 and on the Key Diagram as 'Search Area
for Major Growth'...".
[43] It is not
possible to fault the reasoning of the reporter which resulted in her
conclusion that the site does indeed lie within the search area. She correctly takes as her starting point the
principle that structure plans are intended to be strategic documents; not ones
defining sites or boundaries. They should, however, show the general location
of key policies and proposals. This much
is clear from the terms of the legislation, including the Regulations, and is
emphasised in the Planning Advice Notes.
The principle applies equally to any diagrams or illustrations forming
part of a structure plan as it does to the text. It is specifically provided
that any diagram is not to be on a map base. If it were otherwise, a structure
plan would risk becoming site specific and boundary defining. That would unduly
constrain planning authorities when looking at the type of detailed proposals
needed in local plans.
[44] In determining
the issue, the reporter was bound to consider, along with the text of the
Proposal, what was illustrated on both Figure 2.2 and the Key Diagram in order
to see what general area was covered respectively by the terms "Stirling East" and
the "Search Area". This is because Proposal HP3 specifically defines these
areas in terms of these two diagrams. The reporter did this and has correctly
borne in mind the indicative nature of both of the areas as drawn on the
diagrams. She has also accurately identified the two diagrams as referring to
the same area. Her stress on the diagrams' indicative nature was of particular
importance in relation to the edge at which the Core Area (where development
was to be permitted) ends and the Upland Areas (where it was to be restricted)
begins. The reporter made a particular point of noting that the shaded zones,
which divide these areas, do not geographically (or perhaps more accurately,
topographically) define to any substantial extent the physical edges of "
[45] The reporter
was bound to take into account also the text of the Structure Plan supporting
the Proposal in so far as it assisted in identifying the extent of Stirling
East and the Search Area. In particular,
paragraph 4.3.21 is of particular significance as is also the mention of named
villages as within Stirling East in Figure 2.3. The reporter looked at the
diagrams in the context provided by the text. Having identified a potential
ambiguity about which motorway was being referred to in the text, she resolved
it by considering material, notably the Background Report, which is
specifically mentioned in the Structure Plan. There is no general difficulty in
principle about looking at extraneous material where it assists to clarify the
terms of a structure plan or to identify general areas described in a structure
plan. But a considerable degree of caution may have to be applied when looking
at historical material. It is, after all, the structure plan as adopted and
approved which is important and upon which planners and others will rely. The
final state of the plan may have resulted in the terms of past drafts or
background papers being entirely, or at least largely, irrelevant or of
marginal or peripheral significance.
[46] Given their
strategic or general nature, neither the wording of the text nor the
definitions on an accompanying diagram of a structure plan can usefully be
dissected by close and anxious scrutiny of, respectively, the language used or
the lines drawn. This has been recognised implicitly by the reporter in her
approach to both text and diagrams. When
the text is looked at, it talks, somewhat lyrically, about a "broad swathe"
"sweeping" from the
[47] In all these
circumstances, the reporter was entitled to come to the view that Durieshill
fell within the search area described in Structure Plan Proposal HP3.
Therefore, the first respondents were also entitled, following upon her
recommendation, to adopt Alteration 2 as being in conformity with the Structure
Plan.
[48] Although that
perhaps brings to a close the appellants' submissions on this part of the appeal,
it would not do proper justice to their arguments to end there without further
remark. Like the reporter, it would be
difficult not to feel a degree of sympathy for the appellants' position if the
diagrams alone were looked at and it could be established that persons actually
did consider the M9 as a southern boundary of Stirling East etc. It is clear at least in that regard that the
first respondents' officials, when drawing up Alteration 1A, had taken the view
that Stirling East (or perhaps more accurately the Core Area) did not extend to
the eastern boundary of the M80 south of Pirnhall. It is worth stating the
obvious to observe that the terms of structure plans, however vague, are
important in that they do provide a base upon which developers in particular,
but also conservationists, can plan their own strategies and invest
accordingly. But in this case, it does appear clear that the appellants' own
advisors did not regard the Structure Plan as creating a boundary at the M9, at
least in the years up to its adoption.
Ultimately, the terms of Figure 2 "Locational Strategy" in Alteration 1A
can be seen as only of historical, if not purely academic, interest in the
absence of any suggestion that the first respondents ever actively promoted the
idea that the southern boundary of Stirling East was the M9. The material produced does not support such a
case. Rather, the contrary appears to be true.
(b) RELEVANT AND
MATERIAL CONSIDERATION
[49] Although there
are dicta suggesting that a different
test might now be employed by the Courts, it is sufficient for present purposes
to proceed upon the traditional basis that if a reporter is shown to have
failed to take into account a relevant material consideration then her
recommendation would be vitiated as a matter of law. Coalescence with
[50] The only context
in which the appellants relied upon the letter in their submissions to the
reporter was that of effectiveness for housing development in terms of
PAN 38. The possibility of
including land at Plean Farm in the appellants' proposed development does not
appear to have been advanced in submissions, or examined in evidence, as part
of the appellants' case in relation to the Structure Plan criteria of achieving
optimal densities or avoiding coalescence. There is no reason to suppose that
the reporter ignored the content of the letter or the presence of the hatched
area on plan BBH 56a. She was however
entitled to consider the appellants' site as it was presented to her, and not to
embark upon a consideration of a somewhat amorphous idea of moving the
development eastwards, into land owned by a third party; an idea which had not formed part of the
appellants' proposal as presented to the inquiry and had not been properly
examined. In short, the content of the
letter, as reflected by the hatched area, did not become a relevant
consideration so far as the question of optimal densities was concerned.
Furthermore, even if it had, compliance with that criterion would still not
have resulted in the appellants' site being preferred over that of the second
respondents, given the problem of potential coalescence. In that respect, the
consideration did not become a material one either in the context of the
ultimate decision.
[51] For all of
these reasons, this appeal must be refused.