Petitioner: Campbell, QC; bto

Respondent: MacKenzie, Solicitor Advocate; Shepherd & Wedderburn LLP

Interested Party: McKay; DWF Biggart Baillie

20 December 2013

Summary
[1] This opinion relates to a reclaiming motion brought by the petitioner and reclaimer against the interlocutor of the Lord Ordinary dated 4 June 2013. The Lord Ordinary refused the prayer of the petition in which the petitioner had sought reduction of a decision of the respondents dated 18 April 2012 which granted planning permission to the interested party to construct 44 houses and 14 flats on land in Newton Mearns adjacent to land owned by the petitioner and reclaimer. On part of said land there was built Fa'side House, a B listed property with an access drive of mature trees.

[2] There were two grounds of appeal for the petitioner and reclaimer but senior counsel in the event did not insist upon the second ground. Accordingly we deal only with the first ground of appeal which criticised the approach of the Lord Ordinary on the basis that he failed to recognise that the respondents had not taken account of a key requirement in their own planning brief and thus failed to take account of a material consideration namely, "delivery of protection of the existing tree boulevard along the access to Fa'side House". The respondents' failure was described as a material omission which vitiated their decision.

Factual background

[3] The Lord Ordinary set out the factual background in his opinion. In summary he stated:

"[4] The physical context of the petitioner's property so far as material to these proceedings is as follows: the petitioner and his family live in Fa'side House. That house is reached by a drive which runs from Ayr Road to the house, from a point on the south carriageway of Ayr Road about 20 meters west of the Malletsheugh roundabout to the house itself, a distance of about 400 metres in all. The drive is flanked on both sides by mature trees, the tree belt. To the immediate east of the drive and the eastmost line of trees lies a 10 metre strip, which is in the ownership of the petitioner. The 10 metre strip is physically part of the land, in that it lies in the same field. The land itself lies to the east of the strip.

[5] The background to the decision was this: In August 2011 when the petitioner became aware that the interested party was making a planning application for a residential development on the land he intimated to the respondents formal opposition to the application citing six grounds of opposition. Only one of these grounds is of relevance to the present proceedings and that was in the following terms:

'The proposed development would inevitably, for safety reasons, require the removal of the trees alongside our driveway (the tree belt) with a further loss of amenity in the area - and specifically in relation to the approach to one of a limited number of listed buildings in Newton Mearns'".

[4] The Lord Ordinary made reference to the Ayr Road planning brief dated June 2011 ("the planning brief"). He summarised that document (9 of the Appendix) which is fundamental to the submissions on behalf of the petitioner and reclaimer. The planning brief set out the proposals for the land referred to in the planning brief. The proposals included residential development and "reinforcement of the green belt through creation of a 'green' corridor along the southern boundary of the site" (paragraph 1.6). It was noted that,

"the site is located in a relatively prominent location when viewed from Ayr Road, being located in the edge of the urban area, and set against the backdrop of the adjacent Right of Way and tree belt ...". (Paragraph 2.2).

Having reflected on the prominent location and the importance of existing tree belts, the planning brief stated that development should deliver inter alia "protection of the existing tree boulevard along the access to Fa'side House" (paragraph 2.10).

[5] The Lord Ordinary also made reference to various planning policies and the report on handling which provided a context to the respondents' decision making.

Submissions on behalf of parties in the reclaiming motion

[6] The oral submissions made to the court were consistent with the written notes of argument lodged on behalf of the parties and were also reflected in the submissions recorded by the Lord Ordinary. It is unnecessary to record the oral submissions in detail.

[7] The principal submission made by senior counsel for the petitioner and reclaimer was to the effect that there had been failure by the respondents in their decision-making to take account of a key requirement contained in their own planning brief. He submitted that this was a failure to take account of a material consideration which, if properly understood and applied, would have made a difference to the decision of the respondents. Reference was made to Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345; Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343; Tesco Stores Limited v Dundee City Council 2012 SC (UKSC) 278. In developing this submission which was fundamental to the reclaimer's case, senior counsel criticised the approach of the Lord Ordinary on the basis that the Lord Ordinary had failed to identify the correct question and had therefore fallen into error in his approach.

[8] Senior counsel referred in detail to the planning brief (9 of the Appendix) under reference to various documents which explained the history and the site plan. He emphasised that the planning brief stated that development should "as a minimum" deliver "protection of the existing tree boulevard along the access to Fa'side House". He submitted that the planning brief recognised the particular importance of the existing trees and that the protection was intended to be for the viable life of the trees so that they did not pose a danger following construction. He submitted that if the relationship of the trees to the proposed development was properly understood, it was obvious that there was a risk for the safety of the houses and their occupiers in proposing to locate these "within the fall area" of the existing tree boulevard. Senior counsel echoed submissions he had made to the Lord Ordinary based on a document which was not before the planning committee of the respondents. This was recorded by the Lord Ordinary in paragraph [21] of his opinion. This emphasised, in general terms, the risk of storm damage and debris even for healthy trees. Senior counsel submitted that it was obvious from the plans, the documents produced and simple calculation that the gardens of the proposed houses within the development are located sufficiently close to the line of trees that those trees pose a real danger to the back gardens and to persons in the gardens, or perhaps in extreme wind event to the houses themselves.

[9] As counsel developed his submission, it became clear to us that the principal risk to the trees, contended for by counsel, was that the reclaimer as landowner, would have no alternative but to fell the trees if the development proceeded because of the risks involved for which the reclaimer as landowner would be responsible. Senior counsel accepted that the legal obligations of a prudent landowner would include taking reasonable care to maintain and check the trees and that this might include, for example, planned felling of diseased trees and other maintenance work. Counsel submitted, however, that this would not be sufficient to avoid the obvious dangers which might occur in the event of a destructive storm. He submitted that any conclusion that such a risk was trivial was wrong. The risk was obvious and easily avoided by adherence to the respondents' own guidance in their own planning brief. That guidance was a material consideration. It should, as a matter of law, have been taken into account in the decision-making process. The respondents' failure to do so was a material omission which vitiated the decision.

[10] Both the solicitor advocate for the respondent and counsel for the interested party supported the approach of the Lord Ordinary and submitted that the Lord Ordinary was entitled to refuse the prayer in the petition for judicial review.

[11] On behalf of the respondents, the solicitor advocate submitted that there had been no specification or explanation of the safety reasons that "inevitably" required the removal of the trees along the driveway. Reference was made to the expert arboricultural report prepared by the respondent (18 of the Appendix) and the report prepared on behalf of the petitioner (12 of the Appendix). The solicitor advocate submitted that there was no significant factual dispute about the condition of the trees along the driveway. It was accepted that, as for any trees, risk exists but such risk can and ought to be properly managed.

[12] It was submitted that both the respondents and the Lord Ordinary had regard to the planning brief. The planning brief does not specify a safe set-back distance or any particular design. It is not intended to be prescriptive or overly restrictive. It is plain from the history of the planning considerations that the planning brief was taken into consideration by the respondents and, in particular, consideration was given by the respondents to the existing trees along the driveway. Specific protective measures were specified by the respondents in condition 11 to protect the trees from the danger posed by the proposed development during construction. Such danger included damage, for example, to tree roots which might adversely affect the trees even after construction works were completed. Condition 11 recognised that the long term welfare of the trees was important in reaching a decision which had proper regard to the planning brief.

[13] Counsel for the interested party submitted that it was plain from the history that the planning brief design objective in relation to the trees was part of the overall decision-making process. The relevant design objective of the planning brief had not been left out of account. The planning brief provided no specification about a particular design or set-back or "fall back" distance. These matters were all matters to be considered by the respondents as planning authority. The criticisms made by senior counsel for the reclaimer about the decision-making was really an attack on the merits of the decision-making in circumstances where the petitioner had never raised in his objection that there should be a different design or particular set-back distances.

Discussion

[14] The general legal principles were not in dispute. It was accepted as a general principle that failure to take account of a material consideration which, properly understood and applied, would have made a difference to the respondents' decision would be liable to render the decision unlawful.

[15] We consider that the issue raised on behalf of the petitioner and reclaimer is the narrow issue that the respondents failed to take account of their own planning brief in the decision making in the present case. Senior counsel for the petitioner and reclaimer was critical of the Lord Ordinary for failing to identify that issue as the correct legal issue to be determined and counsel submitted that error led to the wrong conclusions by the Lord Ordinary. We consider this criticism to be unfounded. It is plain from paragraph [53] of the opinion that the Lord Ordinary correctly identified the legal issue, as submitted by the petitioner. The Lord Ordinary stated:

"On the basis of the argument as it developed before me the first issue for the court is this: have the respondents left out of consideration a material planning consideration, namely: the following part of its own planning brief which states that one of the design objectives is this: 'protection of the existing tree boulevard along the access to Fa'side House'".

Having addressed the legal issue, he considered in paragraph [55] the factual circumstances of the case and the underlying bases of the argument presented on behalf of the petitioner to the effect:

"that because of the proximity of certain of the houses... to the tree belt the petitioner would require to cut down all of the trees in the tree belt because of the significant risk of damage to their properties or injury to the occupiers of the said properties arising from the fall of said trees, or material parts thereof".

The Lord Ordinary then dealt with the various submissions on behalf of the parties against the factual background relating to the planning brief policies and the report on handling set out earlier in his opinion. The Lord Ordinary was drawn into some discussion about the factual issues which strictly may be unnecessary in the light of the legal issue he required to address. But taking into account the detailed submissions about factual matters which were made to him, we consider that understandable.

[16] We do not accept that the respondents did not have regard to the material consideration in question, namely the content of its planning brief and in particular the statements in that document which addressed the need to protect "the existing tree boulevard along the access to Fa'side House". In the Report of Handling (10 in the Appendix at page 9) there is express reference to the planning brief and its objectives, including the aforementioned need to protect the tree boulevard. As was pointed out, on behalf of the interested party, it should be noted that the planning brief itself said nothing about required set-back distances between the trees and the garden ground of the proposed development.

[17] In our opinion the reclaimer's complaint was, in essence, not that the respondents had failed to have regard to the objectives of the planning brief but that they had failed to reach a conclusion that the proposed development would, in some material way, offend the said objectives. The letter of objection, asserted "the proposed development would inevitably for safety reasons require the removal of the trees". It was submitted that was because of the risk of wind throw from the trees damaging the gardens and houses, comprising the proposed development, and possibly causing injury to occupiers of the property themselves, or visitors thereto. It was further submitted that should have been obvious to the respondents as a matter of planning judgment.

[18] We are not persuaded to accept the submissions advanced on behalf of the petitioner and reclaimer. Senior counsel was unable to point to any evidence before the respondents to support his general contention about the effect of the proposed development on the trees. Nor could he demonstrate, by relevant evidence, any risk posed by the proposed development of such a kind as to result inevitably in the removal of the trees. The risks which were contemplated by the respondents, which might affect the trees, were addressed in their imposition of condition 11. In that situation there is no basis, to support the reclaimer's position in law that the respondents had failed to take into account a relevant consideration or had acted irrationally. The criticism of the respondents' decision in our opinion relates to the merits of that decision and in particular to matters in respect of which the respondents reached conclusions which they were entitled to reach. The reclaimer, as owner of the trees in question, will continue to have obligations in relation to their management, which a reasonable and prudent landowner owes to his neighbours, particularly as in the present case, where there is an existing right of way adjacent to the trees.

[18] For the reasons expressed, we refuse the reclaiming motion.