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OUTER HOUSE, COURT OF SESSION [2007] CSOH 193 |
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XA121/06 |
OPINION OF LORD MACPHAIL In application under The Town and
Country Planning ( By Applicants: Against CITY OF Respondents: ญญญญญญญญญญญญญญญญญ________________ |
Applicants: Dean of Faculty (Martin,
Q.C), J. Mure; Biggart Baillie
Respondents: D. Armstrong Q.C., Burnet;
Solicitor for City of
Introduction
[1] This
is an application under section 238 of the Town and Country Planning (
Statutory provisions
[2] The Act provides for the
preparation of local plans, the holding of an inquiry for the purpose of
considering objections to a local plan, and the adoption of the plan by the
planning authority (sections 11, 15 and 17).
The Town and Country Planning (Structure and Local Plans) (Scotland)
Regulations 1983 (SI 1983, No 1590) ("the Regulations") provide by regulation
35(1) that the planning authority must consider the report of the inquiry and
decide whether or not to take any action as respects the plan in the light of the
report and each recommendation contained in it; "and the authority shall
prepare a statement of their decisions, giving reasons therefor."
[3] Section 238(1) of the Act, read short, provides that if any person aggrieved by a local plan desires to question the validity of the plan on the ground (a) that it is not within the powers conferred by Part II of the Act, or (b) that any requirement of any regulations made under the Act has not been complied with in relation to the adoption of the plan, he may make an application to the Court of Session. Section 238(2)(b) provides that the Court, if satisfied that the plan is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of any such regulations, may wholly or in part quash the plan either generally or in so far as it affects any property of the applicant.
The facts
[4] Chapter 3 of the Plan (no
6/4 of process) deals with the environment of Rural West Edinburgh and sets out
a number of policies and proposals. One
section of the chapter is headed "Flood Risk and Surface Water
Requirements". It is there explained
that identified areas of importance for flood control are shown on the
Proposals Map, and that the areas identified are currently of value for water
storage in the event of flooding and are not currently occupied by built
development (paragraph 3.81). It is also
said that these areas "are indicative only, representing the best available
current information on the extent of land that is of value for flood water
storage" (paragraph 3.82). The policy
relative to flooding, entitled "Policy E45: Flooding", is then set out. It includes the following:
"2. Areas of importance for flood control
Within identified areas of importance for flood control, or any other area of value for the storage of flood water, there will be a presumption against development that will significantly reduce its water storage capacity, including landraising and flood prevention measures, unless:
(a) it can be demonstrated that adequate compensatory water storage can be provided; and
(b) proposals for provision of such compensatory water storage are submitted with the planning application.
If acceptable in principle, the implementation of compensatory water storage will be secured through planning condition or legal agreement."
[5] The
finalised Plan designated the applicants' site as an area of importance for
flood control. The site is known as
19-20 East Mains of Ingliston,
"
[6] It is convenient to interpolate here a few extracts from Planning and Flooding, Scottish Planning Policy 7 (SPP7), published in 2004 (no 7/9 of process), which sets out the Scottish Executive's planning policy on new development and flooding. The glossary includes the following:
"Flood plain - the generally flat areas adjacent to a watercourse or the sea where water flows in time of flood or would flow but for the presence of flood prevention measures (also called the geographical flood plain). The limits of a flood plain are defined by the peak water level of an appropriate return period event. See also Functional Flood Plain."
"Functional flood plain - the areas of land where water flows in times of flood which should be safeguarded from further development because of their function as flood water storage areas."
Paragraphs 16-18 of the text of SPP7 deal with development on functional flood plains. They state in part:
"16. Functional flood plains store and convey flood water during times of flood. These functions are important in the wider flood management system. New development on the functional flood plain will not only be at risk itself, but will add to the risk elsewhere. Cumulative effects will arise from proposals which individually may seem of little consequence. For planning purposes the functional flood plain will generally have a greater than 0.5% (1:200) probability of flooding in any year.
17. Built development should not therefore take place on functional flood plains. [ . . .]"
The reporters' report (no 6/5 of process) also includes the following definitions at paragraph 7.28:
"Flood prevention measures: works including walls, new channels, embankment and flood water storage areas. Usually components of a flood prevention scheme (see below).
Flood prevention scheme: a scheme of flood management measures under
the Flood Prevention (
[7] The respondents' written response to the applicants' objection was as follows (no 6 of process, appendix 8):
"Not accepted. This land is prone to flooding (despite the limited existing defences) and provides valuable flood water storage. Policy E45 does not preclude the development of such sites, subject to compliance with other policies of the plan and compensatory water storage being provided."
[8] An inquiry for the purpose of considering the applicants' objection and other objections was held before two reporters between November 2004 and April 2005. The reporters heard evidence and submissions on behalf of the applicants and the respondents. They considered the applicants' objection in chapter 7 of their report (no 6/5 of process). It is clear from their account of the evidence and submissions relative to the applicants' grounds of objection and the respondents' response that the parties were at issue on a number of matters. The reporters say at paragraph 7.26:
"Most of the submissions and evidence relating to this objection focus on the various definitions and policy approaches to minimising flood risks; on the appropriate flood status of the objection site; and whether it should be treated as a site of importance for flood control, in that it may contribute to reducing flood risks downstream."
[9] It
is apparent from the following paragraphs of the report that one focus of
controversy was a bund, or embankment, which had been constructed to protect
[10] The reporters set out their conclusions in paragraph 7.33 of their report in the form of bullet points. They are (numbers supplied):
"1. The inclusion of this site in the local plan as an area of importance for flood control is based on the assumption that it stores water during periods of high water levels in the Gogar Burn, and is hence part of the functional flood plain.
2. That assumption appears to be based primarily on the two flooding events that occurred during 2000.
3. The height that the water reached during the worst of those two events is disputed. The Council's case is based on an indication by a member of the hotel staff several weeks after the event occurred, and after the hotel had been redecorated. However it appears to have been a 1:80 or 1:100 year event, rather than a 1:200 year event.
4. The Council accepts that the protective bank along this part of the Gogar Burn has a general height level (following some repair work) slightly below the level of a 1:200 year event. This seems to confirm the objector's evidence that the flooding was caused by breaching of the bund, forming gaps through which the water poured.
5. Now that the bund has been repaired, including maintenance to ensure an even ridge height, to achieve protection approaching the level of a 1:200 year event, the objection site should not suffer flooding from smaller events. It could be improved to achieve a full 1:200 level of protection.
6. In these circumstances, the site would not flood in events that are less serious than the 1:200 event, and thus does not form part of the functioning [sic: read 'functional'] flood plain.
7. The bund that protects the site was built in the first instance to accommodate the new Turnhouse airfield. It does not have the characteristics of an agricultural flood embankment either in terms of the purpose for its construction or the level of protection that it offers.
8. For these reasons, we conclude that the site is not part of the functioning [sic: read 'functional'] flood plain.
9. If it is assumed that the site forms part of the functional flood plain, the modelling indicates that withdrawal of this storage capacity would be likely to raise the water level in the downstream section of the Gogar Burn by about 100mm during a 1:100 year event. This would affect the section of the burn passing through the airport, but would have no noticeable effect on the River Almond, which lies immediately to the north. No evidence was presented to suggest that this difference in water level would be likely to cause problems in the airport section of the burn, nor on the implications during a 1:200 event.
10. We conclude that even if it is accepted that the site forms part of the functional flood plain, it has not been demonstrated that it has significant water storage function where removal would be likely to cause significant problems downstream.
11. We conclude that the designation as an area of importance for flood control should not apply to the objection site.
12. We reach no conclusion as to whether this should apply to other land to east and west, as this land is not the subject of this objection, nor do we have comparable evidence for these additional areas. However it may be that the Council has sufficient information to conclude that the adjoining areas should also be omitted from the area of importance for flood control, for reasons of consistency.
13. We note the objector's view that local plan policy E45 requires revision in the light of more recently published executive policy and advice on planning for flooding. We consider this to be a matter for the Council to consider, as it goes beyond the immediate objective of this objection.
[11] The reporters' recommendations were in these terms:
"7.34 The designation of the 068/03 objection site [the applicants' site] as part of the area of importance for flood control under policy E45 should be deleted.
7.35 The Council should consider whether policy E45 and the supporting text require revision in the light of revised Scottish Executive guidance on planning and flooding published during 2004."
[12] The respondents, having received the inquiry report, were
required by regulation 35(1) of the Regulations to consider it and "prepare a
statement of their decisions, giving reasons therefor." They produced a report
dated
"3.16 A number of objections related to land south
of the Hilton Hotel at
[13] In the annexed "Statement of Reasons" the reporters' recommendations, the respondents' decisions and their reasons are set out in tabular form. Opposite recommendation 7.34 (that the designation of the applicants' site as part of the area of importance for flood control under Policy E45 should be deleted) the respondents' decision is stated as "Not Accept Recommendation - No Change to Plan". The reason is stated in these terms:
"The Council has
carefully considered the Reporters' recommendation in 7.34. However, it maintains its view that the
Ultra vires
[14] I shall now consider the
parties' submissions on each of the applicants' challenges to the
decision. The first was that the
decision was ultra vires the respondents.
[15] Counsel for the applicants founded on Wordie Property Co Ltd v
Secretary of State for
[16] Junior counsel for the respondents submitted that there was evidence that the site would flood in a 1 in 200 year event, and that that was a key event in deciding whether it should be designated as a functional flood plain. It could not be said that there was no proper basis in fact to support the decision. The respondents' decision was clearly not unreasonable: it was in line with Scottish Planning Policy. Senior counsel submitted that the respondents had been entitled to maintain their position. The issue at the inquiry had been whether the site should be designated as part of the functional flood plain. That was a matter of planning judgment, just as much as whether the site was part of the green belt. The respondents' view that the functional flood plain would generally have a greater than 0.5% probability of flooding in any year was consistent with the planning judgment of the Scottish Executive in SPP7. The applicants did not say that that should not be followed. The facts were not disputed: that in a 1:200 event the water level would be higher than the bund and the site would flood.
[17] I shall state my views on these submissions after I have considered the parties' arguments on the applicants' second ground of challenge, which was that the respondents' reasons for rejecting the reporters' recommendation were inadequate.
Adequacy of reasons
Submissions for the applicants
[18] I was afforded a generous citation of authority on the topic of the nature of the reasons required for the fulfilment of the statutory duty imposed by regulation 35(1) and comparable provisions. For the proposition that reasons must be proper, adequate and intelligible, and must deal with the substantial points that have been raised, junior counsel for the applicants referred to In re Poyser and Mills' Arbitration [1964] 2 QB 467 at 478 cited in Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153 at 165, Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 and Mirza v City of Glasgow Licensing Board 1996 SC 450 at 457. On the duty to consider the recommendations with an open mind, counsel cited Miller v Wycombe District Council [1997] JPL 951, Bainbridge v Hambleton District Council (1999) 80 P & CR 61 at 71 and Hall Aggregates (South Coast) Ltd v New Forest District Council (1996) 72 P & CR 567. On the degree of particularity required, counsel cited Miller, Save Britain's Heritage, Bainbridge, Oxford Diocesan Board of Finance 1998 PLCR 370 at 381-382 and Pyrford Properties Ltd v Secretary of State for the Environment (1977) 36 P & CR 28 at 34. For discussions of reasons where the matter is essentially one of planning judgment, reference was made to Welsh Development Agency v Carmarthenshire County Council (1999) 80 P & CR 192 at 202, Oxford Diocesan Board of Finance at 381 and Peel Investments (North) Ltd v Bury Metropolitan Borough Council (1999) PLCR 307 at 319-320. Stirk v Bridgnorth District Council (1996) 73 P & CR 439 was referred to for the propositions that the planning authority must deal with points raised by the reporters, and that, as in effect both advocate and judge, the authority were under a particular duty to weigh the issues thoroughly, conscientiously and fairly. Peel was also cited for the latter proposition. Finally, the statement of reasons had to be looked at in the context of the documentation in which it arose, and not in vacuo: Save Britain's Heritage at 167.
[19] Junior counsel for the applicants submitted that the respondents' statement of decisions did not address a number of issues. It did not provide any factual basis for the respondents' failure to accept the reporters' recommendations and did not explain why they were being rejected. It did not address the question whether the bund was a flood prevention measure rather than an agricultural flood embankment. Nor did it address the question why the flooding had occurred in 2000: the reporters had considered that to be an important matter, and had preferred the evidence for the applicants. Whereas the reporters had concluded, for stated reasons, that the site was not part of the functional flood plain, the respondents had simply maintained that it was. The respondents had failed to deal with the significance of any water storage function of the site: that had been a significant element in the reporters' conclusions. And the respondents had not grappled with the question of how much of the site should be affected if they rejected the reporters' recommendations. The report had taken the issues raised by the applicants to a new level of detail and understanding, and the respondents were required to take a decision as to whether to accept the recommendation. It was impossible to know, from a reading of their decision, what they had had in mind.
[20] Counsel submitted that where detailed technical evidence had been heard and the respondents did not accept the reporters' recommendations, a higher standard of reasoning was required than that provided by the respondents. Counsel founded on three principles. First, the reasons should be proper, adequate and intelligible (Poyser and Mills' Arbitration; Wordie Property Co Ltd). The respondents' reasons did not deal with the substantial points raised by the reporters and did not explain why their findings had been ignored.
[21] Secondly, the lack of reasons made it legitimate for the Court to conclude that the respondents had not approached their decision with a sufficiently open mind (Miller; Bainbridge; Hall Aggregates). In their pleadings the respondents said that the reporters had made approximately 180 recommendations and the Statement of Decisions addressed 96 of these, of which the respondents accepted 89, partly accepted 4 and did not accept 3. Counsel observed that one would therefore expect the respondents to have considered the matters which they did not accept openly and fairly and to have provided reasons to justify their maintaining their original position (Stirk).
[22] Thirdly, while terse reasons might be sufficient in some circumstances, they were not so here. This was not a case of purely discretionary planning evaluation or judgment. Even if it were, the respondents had failed to explain the basis on which they had reached their judgment.
[23] Counsel then addressed the question whether the interests of
the applicants had been substantially prejudiced by the respondents' failure to
comply with the statutory requirement to give reasons. He submitted, first, that the reasons were so
inadequately expressed as to raise a substantial doubt as to whether the
decision had been taken within the powers conferred by the Act (Save Britain's Heritage at 167). Secondly, parties were entitled to expect that
the reporters' findings would be considered, and reasons given for departing
from them, before a decision was taken to subject their land to a particular
policy (Miller at 955-956). Thirdly, until the recommendations were
properly considered, there must be substantial uncertainty as to whether they
would be accepted (Hall Aggregates at
577). Fourthly, the applicants were
entitled to such reasoning as would enable them to understand whether there
were reasonable grounds for a challenge to the decision (The
[24] Lastly, counsel addressed a submission in the respondents'
pleadings that even if their decision were ultra vires or their reasons
insufficient, the Court should exercise its discretion not to quash part of the
Plan. The discretion is conferred by
section 238(2)(b) of the Act which provides that if the Court is satisfied that
the plan is outside the powers of Part II or that the applicant's interests
have been substantially prejudiced by the failure to comply with any statutory
requirement, the Court "may" wholly or partly quash the plan. Counsel submitted that the discretion should
be exercised only in exceptional circumstances:
[25] On the issue of the adequacy of the respondents' reasons, the learned Dean of Faculty submitted that the respondents' decision had not been a pure value judgment. Even if it had been, reasons must nevertheless be given (Peel Investments at 319-320). In an extreme case a planning authority might be entitled merely to repeat its previous statement of a pure value judgment (Welsh Development Agency at 201), but that was not the position here. The question of how much potential for flooding there was with the bund in its present state was a pure question of fact. The reporters had made a finding of fact and the respondents had adhered, without more, to the stance they had previously expressed without addressing the substantial points raised by the reporters (Bainbridge at 68-70). There was nothing to indicate that they had undertaken a re-examination of the matter or had obtained additional information which might explain their reasons. When considering part 2 of Policy E45 the question was not whether flooding had occurred in any area in any particular circumstances, but what was the consequence of flooding and whether the area had value for the storage of flood water: that was apparent from paragraph 3.82. The definition of "functional flood plain" in SPP7 made the same point: it was an area of land which had value because of its function as a flood water storage area.
[26] Turning to the respondents' reasons for their decision, the
Dean commented that the first sentence, which stated that the respondents had
carefully considered the recommendation, was not a reason. The second, in which the respondents maintain
their view that the site is part of the functional flood plain, suggested that
they had not grappled with the issues.
The reporters had raised a series of issues relevant to the decision
whether the land was of importance for flood control. There was no explanation of why the
respondents maintained their view having regard to these issues. There was nothing to indicate that the
extracts from the submissions, precognitions and technical reports which the
respondents' counsel now founded on at the hearing of the application had
formed the respondents' view. The third
sentence, which viewed the site as agricultural land providing significant
flood storage capacity, disagreed with the reporters' views. The fourth sentence, which referred to
protection primarily to
[27] The reporters' conclusions in paragraph 7.33 had addressed three matters. First, whether the land would flood on a 1:200 year event: they concluded that the bund approached the appropriate level. Secondly, the significance of the land for water storage: they concluded that it had no significant water storage function. Thirdly, the effect on the water level downstream if the site did not provide water storage: there would be no significant effect, and no significant problems, downstream. To justify a departure from the reporters' recommendation, all three matters would have had to be addressed in the respondents' reasons. It was not appropriate for the respondents to put forward a complicated explanation at the hearing of the application and provide a gloss on the general statement in the purported reasons.
[28] On the issue of prejudice, the Dean submitted that the designation of land as an area of importance for flood control was a significant burden which left the applicants in a state of uncertainty as to the material considerations in favour of the designation. The SEPA map was only a potential material consideration. The Dean did not accept the suggestion by the respondents that the effect of the designation was minimal. On the principle of Wordie and Mirza, the reasons were so deficient that they could not have been other than prejudicial to the applicants. There were no grounds upon which the Court could in its discretion refrain from quashing the decision. The applicants sought only the quashing of that part of the Plan which related to the site, and there had been no significant third party interest at the inquiry in the status of the site.
Submissions
for the respondents
[29] Counsel for the respondents
accepted that it was the respondents' duty to provide reasons for their
decision which were proper, adequate and intelligible to the person who would
receive them and which did not through any deficiency cause prejudice to the
person concerned. The test was whether
in all the circumstances of the case the applicants had been substantially
prejudiced by any deficiency in the reasons.
The reasons should be looked at in context, and the knowledge of the
person taking the challenge was a relevant consideration. The reasons must be substantially wrong or
inadequate: brief reasons could be acceptable as perfectly clear, and reference
could be made to other documents (Westminster
City Council v Great Portland Estates
plc [1985] 1 AC 661 at 672-673). The
single question was whether the interests of the applicant had been
substantially prejudiced by the deficiency of the reasons given: Save British Heritage at 167; J Sainsbury plc v Secretary of State for
[30] Counsel then referred to aspects of the background to the case in order to indicate the applicants' level of understanding of the issues and assess whether in the particular circumstances of the case the applicants had suffered substantial prejudice.
The applicants had been present at the inquiry and had been aware of the respondents' statement of their case prior to the inquiry and the precognitions of their witnesses. They had heard the witnesses' oral evidence and the submissions of counsel. The question whether a site was part of a functional flood plain was a planning judgment; and the respondents' planning judgment was that the site would form part of a functional flood plain in a flood in a 1:200 year event. That judgment had been based on the guidance in SPP7, and the reporters' conclusions had not given proper reasons for departing from that guidance. It had always been the respondents' position that a functional flood plain should be viewed as an area that would be affected by flood in a 1:200 year event. That was clear from the precognition of their witness Sarah Hartop (no 7/5 of process, paragraph 7.7A) and from the reporters' summary of the respondents' position in paragraph 7.32 of their report (no 6/5 of process). The key issue was whether the area would flood in a 1:200 year event. Given the acceptance on all sides that it would do so, it had been reasonable for the respondents to make a planning judgment that the storage capacity of the site should be protected by their policy. That was in accordance with SPP7. The apparent contradiction referred to in the final sentence of the respondents' reasons was the main reason why they disagreed with the reporters' findings. The respondents' position relative to the definition of "functional flood plain" was apparent from the submissions of their counsel at the inquiry (no 7/7 of process, paragraphs 2.2.6 and 2.3). The evidence had been that the protection afforded by the bund was slightly below that required for a 1:200 year event. Counsel referred to the submissions by the Dean of Faculty at the inquiry (no 7/8 of process, paragraphs 36, 38 and 48) and to technical reports (nos 7/16 and 7/14 of process) and plans (no 7/13 of process) which had been before the inquiry. The respondents had been entitled to conclude that the site formed part of the functional flood plain and to reject the reporters' recommendation for that reason. Their reasons had been brief, but they had been proper, adequate and intelligible to the applicants. They were not to be looked at in vacuo, and the interests of the applicants had not been prejudiced by any deficiency in them. The additional information which had been available at the inquiry had confirmed that the site would flood in a 1:200 year event.
[31] In these circumstances the reasons given were sufficient for the applicants. The fact that the respondents had not changed their mind did not mean that they had had a closed mind. It was evident that they had considered the reporters' findings carefully. Terse reasons were appropriate in a decision on what was primarily a matter of planning judgment and the interpretation of planning policy on flood prevention. The applicants had been fully aware of all the evidence led at the inquiry and of the respondents' view of the significance of the findings having regard to the nature of the site.
[32] On the issue of prejudice, the respondents' counsel
distinguished the circumstances in Wordie. Here, the degree to which development would
be inhibited would depend on the extent to which an applicant could overcome
the presumption in part 2 of Policy E45.
If the applicant were to show that there was no water storage capacity,
the presumption would not apply. If the
position was that there was only a small amount of water storage capacity, the
applicant would only have to demonstrate that adequate compensatory water
storage could be provided. The same
applied to the effect of the SEPA map.
Those matters could be best assessed when a planning application came
forward, rather than in the abstract.
The degree of prejudice would be rather minimal. There were other constraints on the
development of the site: it was in the green belt. The SEPA map was a relevant consideration
because any planning application would have to be assessed by SEPA. The fluidity of the proposals for the
development of
[33] Finally, counsel submitted that even if prejudice had been
established, the Court should in the exercise of its discretion refuse to quash
the Plan. If the Plan were to be
quashed, the respondents would have to return to the start of the planning
process and reconsider the matter: South
Northamptonshire District Council v
Charles Church Developments Ltd [2000] PLCR 46. Other parties, such as SEPA and the British
Airports Authority, might have to become involved. It could not be said that they had no
interest because they had not appeared at the inquiry. The Court should also take into account that
members of the public also had an interest in a local plan:
Discussion
[34] I consider first the
applicants' submissions as to the adequacy of the respondents' reasons. The question I have to resolve is set out in
a passage in the speech of Lord Bridge of Harwich in Save Britain's Heritage at 167 which was accepted by an Extra
Division in J Sainsbury plc at 1395:
"The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given."
In The Fairfield Partnership Lindsay J defined the purpose that was intended to be served by the giving of reasons. He said (at paragraph 43):
"In my judgment that purpose, at any rate where, as in the case before me, an objector's objections fail, is the giving to that objector (available also to others) its reasons for its decision to such an extent at least as is sufficient to indicate to the objector whether or not reasonable grounds exist for a challenge to the decision under the relevant machinery for challenge [ . . . ] Unless he gives reasons at least to that extent an applicant is prejudiced and, indeed, the test can be put as a single test as to whether the interests of an applicant have been substantially prejudiced by reason of the deficiency of the reasons given - Save Britain's Heritage at 167 per Lord Bridge. The type of reasons which are likely to preclude any reasonable challenge will greatly vary from case to case and, in particular, as between, at one end of a spectrum, decisions wholly of fact and, at the other end, questions that may be called ones of planning judgment."
[35] In my opinion the matters in issue in the present case were matters of fact, or were in any event at the "fact" end of the spectrum of the issues which may arise in an inquiry such as this and not at the "planning judgment" end. The applicants maintained that the site was not part of the functional flood plain provided that the bund was properly maintained. They said that the bund provided protection approximating to the 1:200 year risk, and that it was a flood protection measure and not an agricultural flood embankment. They gave an explanation of why the site had flooded in 2000. They contended that the site did not perform any valuable flood control function because allowing it to flood would have an insignificant effect on the flood risk up and down stream. The respondents stated that if the bund were to be slightly higher to match the level for a 1:200 year event, and were not to be regarded as an agricultural flood embankment, the protected land would not be part of the functional flood plain: however, the bund was slightly below the level for a 1:200 year event, and it was an agricultural flood embankment. The respondents pointed to the flooding in 2000 and claimed that the site was part of the functional flood plain and was of importance for flood control.
[36] These were all issues of fact, or of opinion closely based on matters of fact. The conclusions which the reporters were required to reach were findings or evaluations relative to existing or potential factual matters, and not findings dependent upon aesthetic taste or other subjective opinion which were incapable of elaboration or effective rebuttal. The reporters in their conclusions began by noting that the inclusion of the site in the local plan as an area of importance for flood control was based on the assumption that it stored water during periods of high water levels in the Gogar Burn and was hence part of the functional flood plain. They observed that that assumption appeared to be based primarily on the two flooding events that had occurred during 2000. They considered the evidence about the flooding and appeared to accept that the flooding had been caused by breaching of the bund. They found that the bund had been repaired, including maintenance to ensure an even ridge height, to achieve protection approaching the level of a 1:200 year event, and accordingly the site should not suffer flooding from smaller events. They said that the bund could be improved to achieve a full 1:200 level of protection. They considered whether the bund was a flood prevention measure or an agricultural flood embankment. They explained that it had been built to accommodate the new Turnhouse airfield and that it did not have the characteristics of an agricultural flood embankment either in terms of the purpose of its construction or the level of protection that it offered. The reporters went on to consider whether the site had any significant water storage function and, after considering the evidence, decided that it had not. They noted, in particular, that there was no evidence that withdrawal of its storage capacity would be likely to cause problems in the airport section of the Burn.
[37] Those conclusions were, in my view, clear and firm, and based on a careful assessment of the evidence which had been led. The reporters' sixth bullet point is not entirely clear: "In these circumstances, the site would not flood in events that are less serious than the 1:200 event, and thus does not form part of the functioning [read 'functional'] flood plain." No doubt they could have put the matter in plainer words, but their conclusions must be read as a whole. It is sufficiently obvious that they did not regard as of great significance the fact that the bund did not achieve a 1:200 level of protection, and that they attached weight to their finding that the site had no significant water storage function. The latter finding was clearly the point of critical importance, because it was obvious from paragraphs 3.81 and 3.82 and part 2 of Policy E45 that the areas designated as of importance for flood control were considered to be of value for water storage in the event of flooding. It was also clear that a 1:200 level of protection was not an absolute requirement: paragraph 16 of SPP7 states, "For planning purposes the functional flood plain will generally have a greater than 0.5% (1:200) probability of flooding in any year." The essential characteristic of a functional flood plain appears from the definition of that expression in the glossary: "the areas of land where water flows in times of flood which should be safeguarded from further development because of their function as flood water storage areas" (emphasis supplied).
[38] In the view of the reporters, accordingly, the applicants had succeeded in establishing their contentions on the significant issues of fact between the parties. The respondents were required by regulation 35(1) to consider the report, make a decision as to each recommendation, prepare a statement of their decisions and give reasons for their decisions. It was, in my opinion, their duty to demonstrate that minds had been applied to the recommendation and the findings which led to it by giving specific consideration to the conclusions in paragraph 7.33 (cf Miller at pages 955-956). Thus, if they were minded not to accept the recommendation which followed upon the reporters' conclusions, it was incumbent upon them to address those conclusions seriously and explain why they disagreed with them. If the recommendation was to be rejected, the applicants were entitled to know why.
[39] The respondents, however, set out their reasons thus. First, they stated that they had carefully
considered the reporters' recommendation.
That, of course, is not a reason; and it is unfortunately not apparent
from what follows. They began by simply
reiterating their view that the site was part of the functional flood
plain. They did not explain why they
rejected the reporters' view that it was not.
They then asserted that the site should be viewed as agricultural land
providing significant flood storage capacity.
They did not discuss the reporters' analysis of the evidence on this
important point. They did not comment on
the reporters' finding that the bund did not have the characteristics of an
agricultural flood embankment. They then
claimed that the designation was a small but significant component of their
flood prevention scheme which was designed to give 1:200 year protection
primarily to
[40] In my opinion the respondents' reasons fail to deal with the substantial points which in the reporters' view had been established by the applicants. The respondents neither express reasons for disagreeing with the reporters' conclusions nor give any reasoned explanation for ignoring them. The reader is left with the unfortunate impression that the respondents have been content to adhere, without further thought, to a stance which they have previously expressed (cf Oxford Diocesan Board of Finance at 381-382). It is nothing to the purpose, in my view, for counsel at the hearing in this Court to point to passages in the evidence or submissions which might support the respondents' stance: it was the respondents' statutory duty to speak for themselves in their reasons.
[41] I now consider the applicants' submission that the respondents' decision is ultra vires. In my opinion this submission must be sustained on the short ground that the decision is one for which a factual basis is required, and it has not been shown that there is any proper basis in fact to support it (Wordie at 348).
Prejudice
[42] In my opinion the
respondents' failure to comply with each of those statutory requirements has
substantially prejudiced the applicants because they do not know whether there
are any reasonable grounds for a challenge to the decision (The Fairfield Partnership at paragraph
43) and because, until the recommendation is properly considered, there must be
substantial uncertainty as to whether it will be accepted (Hall Aggregates at 577). It
may be assumed that the designation of the site as of importance for flood
control is of significance, since SPP7 states at paragraph 17 that built
development should not take place on functional flood plains. I am unable to find that any conclusions may
be drawn from the indicative SEPA map, about which I did not hear full
argument.
Discretion
[43] I shall not exercise my
discretion not to quash the relevant part of the Plan. It cannot be said that the same result would
have followed if the respondents had considered the recommendation
properly. Any possibility that others
may have an interest in that part of the Plan cannot outweigh the importance of
securing that the recommendation is given proper consideration.
Result
[44] I shall therefore quash the
Plan in part by deleting the site known as 19-20 East Mains of Ingliston,