| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
| | [2014] CSIH 24 |
Lady Paton Lord Bracadale Lord Clarke | XA30/13 OPINION OF THE COURT delivered by LADY PATON in the appeal by PATERSONS OF GREENOAKHILL LTD Appellants; against (FIRST) THE SCOTTISH MINISTERS (SECOND) SOUTH LANARKSHIRE COUNCIL Respondents: under section 239 of the Town and Country Planning (Scotland) Act 1997 _______________ |
Act: Connal QC (sol ad); Pinsent Masons LLP
First respondents: J Wolffe QC, Burnett; Solicitor Scottish Government Legal Directorate
Second respondents: Sir Crispin Agnew QC; Simpson & Marwick
27 February 2014
Introduction
[1] The appellants wish to extract sand and gravel at Overburns Farm, Lamington, Biggar, in the Clyde Valley. Their proposal involves wet-working, namely progressively digging out the minerals and covering the excavation with water, over a period of 10 years. They made a planning application to the second respondents. By a decision notice dated 28 March 2012 the second respondents refused the application. The appellants appealed to the first respondents in terms of section 47 of the Town and Country Planning (Scotland) Act 1997. David Buylla was appointed as the reporter. Inquiry sessions were held on 12-13 and 16 and 19 November 2012.
[2] By a decision notice dated 9 January 2013 the reporter refused the appeal. The reporter set out the main issues in the appeal in paragraph 1 as follows:
· whether there was a need for the proposal;
· the proposal's landscape impact;
· the proposal's visual impact;
· cumulative landscape and visual effects;
· impact on ecology and biodiversity;
· impact on the water environment;
· impact on prime quality agricultural land;
· implications for the amenities of neighbouring residents and the wider community;
· impact on the road network; and
· consequences for tourism and recreation.
The reporter considered each issue. He reached conclusions favourable to the appellants' development in respect of every issue except landscape impact and visual impact. Ultimately, in paragraphs 178 and 179, he stated:
"178. I have concluded that within South Lanarkshire there is not an identified land bank of permitted quarries that is capable of meeting the identified need for sand and gravel over the next ten years. This, and the economic benefits for the local area that are predicted to arise, are considerations in favour of allowing the appeal.
179. However, taking all matters into account, these benefits of the scheme do not outweigh the significant adverse landscape and visual effects that would arise, both during operations and, most significantly, following restoration, and the consequent conflict with the development plan."
[3] The appellants appealed to the Court of Session in terms of section 239 of the 1997 Act.
Relevant issues in the appeal
[4] While the appeal contained 12 questions of law, the relevant issues were focused by senior counsel for the appellants as follows. The reporter had -
· failed to keep in mind the overriding and imperative nature of the need for minerals.
· erred in his interpretation and application of planning policies ENV4 and ENV29.
· erred in his interpretation and application of planning policy MIN2.
· reached a decision which was perverse or "Wednesbury unreasonable".
· failed to use the opportunity to resolve matters by imposing conditions.
Extracts from planning policies
[5] During the appeal, the following planning policies were referred to:
"Scottish Planning Policy (SPP)
... LANDSCAPE AND NATURAL HERITAGE
125. Scotland's landscape and natural heritage are internationally renowned and important, underpinning significant industries such as the food, drink and tourism industries, and are a key component of the high environmental quality which makes Scotland an attractive place in which to live, do business and invest. Improving the natural environment and the sustainable use and enjoyment of it is one of the Government's national outcomes. Planning authorities should therefore support opportunities for enjoyment and understanding of the natural heritage.
126. Planning authorities should take a broader approach to landscape and natural heritage than just conserving designated or protected sites and species ...
127. ... The European Landscape Convention defines landscape as an area, as perceived by people, whose character is the result of the action and interaction of natural and/or human factors, and makes it clear that all landscapes require consideration and care ...
131. Landscapes and the natural heritage are sensitive to inappropriate development and planning authorities should ensure that potential effects, including the cumulative effect of incremental changes, are considered when preparing development plans and deciding planning applications ... there will be occasions where the sensitivity of the site or the nature or scale of the proposed development is such that the development should not be permitted. Statutory natural heritage designations are important considerations where they are directly or indirectly affected by a development proposal. However, designation does not necessarily imply a prohibition on development ...
MINERALS
225. An adequate and steady supply of minerals is essential to support sustainable economic growth. The mineral industry provides raw material for construction, manufacturing, agriculture and other sectors. Continuity of supply to meet demand depends on the availability of land with workable deposits having planning permission for extraction ...
227. Planning authorities should ensure a landbank of permitted reserves for construction aggregates of a minimum 10 years extraction is available at all times in all market areas. Where market areas for construction aggregates extend across local authority boundaries, authorities should work together to ensure an adequate supply of minerals can be provided. This is particularly important in the city regions ...
National Planning Framework for Scotland
69. Adequate supplies of minerals must be available to the construction industry if Scotland's infrastructure investment plans are to be realised and housing and business needs met. The identification of appropriate local sources of material will be particularly important in the Central Belt, where demand is likely to remain significant. Sourcing minerals locally reduces the distances over which they have to be transported ...
Glasgow and The Clyde Valley Strategic Development Plan (June 2011)
4.60 Aggregate minerals, both hard rock and sand and gravel, are essential to sustainable economic growth and development of the city-region. Within the plan period to 2035, there are sufficient hard-rock operational reserves to meet demand: however, consented reserves of sand gravels are constrained beyond the first ten year period of the SDS into the longer-term, post-2021. As a result additional locations will be required across the city-region to ensure that distances from source to market are, where possible, reduced.
South Lanarkshire Local Plan policy ENV4 and ENV29
Natural and Built Heritage Designated Sites
ENV4
Protection of the Natural and Built Environment Policy
The Council will assess all development proposals in terms of their effect on the character and amenity of the natural and built environment in accordance with National Planning Policy Guidance 14: Natural Heritage. In addition, the Council will seek to safeguard sites defined in Table 9.1 'Hierarchy of Natural and Built Heritage Sites' ensuring that they are conserved and where appropriate enhanced.
Development which could affect areas of international importance will only be permitted where an assessment of the proposal indicates that it will not adversely affect its conservation interest and integrity. Proposals that would affect the relevant interest for which the site is designated will only be allowed if there is no alternative solution and there are imperative reasons of over riding public interest and may require referral to higher level authorities.
In areas of national importance development will be permitted where the objectives of the designation and the overall integrity of the area can be shown not to be compromised. Any significant adverse effects must be clearly outweighed by social or economic benefits of national importance.
In areas of local/regional importance development which would affect these areas will only be permitted where the integrity of the protected resource will not be significantly undermined ...
Regional Scenic Areas and Areas of Great Landscape Value
ENV29
Regional Scenic Areas and Areas of Great Landscape Value Policy
Within the Regional Scenic Area and Areas of Great Landscape Value, development will only be permitted if it satisfies the requirements of policies STRAT 3-6 (as appropriate) and can be accommodated without adversely affecting the overall quality of the designated landscape area.
Within and outwith these areas, in providing for new development, particular care shall be taken to conserve those features which contribute to local distinctiveness, including:-
· the setting of settlements and buildings within the landscape
· the pattern of woodland, fields, hedgerows and tree features, particularly where they define/create a positive settlement/urban edge
· special qualities of river corridors
· historic landscapes; and
· skyline and hill features, including prominent views ...
South Lanarkshire Adopted Minerals Local Development Plan 2012 (MLDP) policy
MIN2
...3 Protecting the Environment
General protection of the environment ...
Environmental protection hierarchy
3.3 South Lanarkshire contains a diverse range of environments ranging from urban areas to remote rural areas. Each of these distinct areas has a variety of characteristics which require varying levels and types of protection ...
3.4 The Council has therefore identified a hierarchy of natural and built heritage sites where different degrees of protection will be applied. These are described below.
Category 1 sites
3.5 These sites are all protected at an international level through International or European Directives as a result of their rarity, fragility or biodiversity. Development which will adversely affect the integrity of these sites will not be permitted ... For the avoidance of doubt, the first paragraph of Policy MIN2 will also apply to any minerals development which will adversely affect the integrity of any internationally protected site which is outwith the Council's administrative area ...
Category 2 sites
3.8 Category 2 sites are all considered to be environmental resources of national importance ... shown on the environmental constraints map. These sites and buildings have the potential to be particularly sensitive to development. A rigorous assessment is therefore required to manage minerals development proposals on or adjacent to these sites, following which any development that is considered to have an adverse impact on these sites after the implementation of any mitigation measures will only be permitted if there is an overriding need for the minerals to serve markets of national importance ...
Category 3 sites [with which this appeal is concerned]
3.11 Category 3 sites are considered to be environmental resources of local importance and whilst they are not as important as those resources within Category 2, they are nevertheless sensitive to development and significant impacts thereon require careful consideration. The same process requires to be undertaken as in the case of nationally important resources (paragraph 3.8) but in this case the markets need only be of regional or local importance (although of course markets of national importance would also satisfy the requirement). Only a "significant adverse impact" on a Category 3 site shall be considered to be an 'adverse impact' for the purposes of Policy MIN2(b) ...
Policy MIN2
Environmental protection hierarchy
Category 1, 2 and 3 sites
The Council will seek to protect important natural and built heritage sites and features as listed in Table 3.1 from the adverse effects of minerals development. Development which will adversely affect the integrity of Category 1 sites following the implementation of any mitigation measures will not be permitted.
Development which will adversely affect Category 2 and 3 sites following the implementation of any mitigation measures will only be permitted if:
(a) there is an overriding need for the minerals to serve appropriate markets, and
(b) it is shown that the adverse impact of the proposed development can be mitigated to an acceptable degree, and/or
(c) the proposed development will result in a net improvement to the Category 2 or 3 site.
The distinction to be drawn between Category 2 and 3 sites is that for Category 2 sites the appropriate markets referred to in (a) above, must be of national importance, whereas for Category 3 sites they may be of regional or local importance only. In addition, the adverse impact for Category 3 sites referred to in (b) above, will be evaluated as a 'significant adverse impact' ..."
Submissions for the appellants
[6] Senior counsel for the appellants submitted that the appeal should be allowed, and the matter remitted to another reporter for re-determination. The appellants had been successful in the majority of the issues considered by the reporter. In other words, carrying out a balancing exercise, the proposal largely met the necessary conditions. When carrying out that exercise, the reporter had not properly taken into account the fact that, out of a range of very significant issues, the appellants had been successful on virtually all.
The need for minerals
[7] When considering the need for minerals in paragraphs 5 to 28 of the decision, the reporter misunderstood or understated the way in which the policy background should be interpreted. The Scottish Planning Policy (SPP) set down a national policy on a range of topics. It provided an overarching approach, which the reporter must apply: paragraphs 225 and 227 of the SPP. Paragraph 69 of the National Planning Framework for Scotland was also relevant, as was paragraph 4.60 of the Clyde Valley Strategic Development Plan. When the reporter carried out the ultimate weighing-up exercise, he had to remind himself that the need for minerals was overriding (not just one of a range of considerations) and was expressed in the SPP in imperative terms. The reporter had failed in that respect, and had reduced the need for minerals to a mere "factor" or "consideration". The very fact that he juxtaposed the minerals policy (paragraph 178 of his decision) with the less imperative consideration of the creation of new employment (paragraph 177) showed that he had treated the need for minerals as a mere consideration, and not as an overriding imperative national planning policy which should have been given a greater weight in the balancing exercise.
Policy ENV4 and ENV29
[8] In paragraphs 66 to 71 of his decision, the reporter took the view that the first paragraph of ENV4 imposed a "first requirement" which had to be met. He concluded that the appellants' proposals satisfied the following three paragraphs, but not the first paragraph. Senior counsel submitted that that interpretation was wrong. The first paragraph was merely introductory: the next three paragraphs provided the operative provisions and the test, with a hierarchy of requirements. The reporter correctly referred to (and quoted from) high level policy (SPP): but neither SPP nor its predecessor National Planning Policy Guidance 14 (NPPG14) laid down any "tests" to be passed. As the reporter had misinterpreted policy ENV4, his decision was wrong. He had in effect created a test which had to be passed, when there was no such test.
[9] Further, in relation to policy ENV29, both policy ENV4 and ENV29 were pursuant to the higher level national policy SPP: but while ENV4 was a general policy, policy ENV29 related specifically to landscape. If the high level policy (SPP) was satisfied, it was difficult to see how landscape damage could trump the high level policy view. The reporter should therefore have said that while there would be some damage to landscape, the planning proposal nevertheless passed the test.
Policy MIN2
[10] In paragraphs 72 to 73 of his decision, the reporter erred in his interpretation of policy MIN2. The reporter concluded that policy MIN2 imposed a stricter test for Category 2 and 3 sites than for Category 1 sites. In the reporter's view, one looked at the "impact" of the development in Categories 2 and 3, whereas one looked at the "impact on integrity" for Category 1. Category 3 was the category of least importance. It was illogical to construe the policy as in effect imposing a stricter test for the least important category. Senior counsel submitted that the correct interpretation of MIN2 would be one consistent with the whole policy background, and invited the court to read in the phrase "the integrity of" when applying policy MIN2 to a Category 3 site such as the present. At the inquiry, the appellants' witness, when giving evidence, had confirmed that the test was one of "integrity". The witness for the Council had not suggested that that view was erroneous. In closing submissions, counsel had acknowledged that all the policies were to do with integrity. Thus there had been no divergence in interpretation until the reporter decided to take a different and stricter approach. The correct approach to the application of policy MIN2 was to look for the impact on integrity. There was no such impact in the present case. Accordingly the reporter ought to have found that the appellants passed the MIN2 test.
[11] There were two further short points relating to MIN2. Subparagraphs (b) and (c) were linked by "and/or": yet in paragraph 73 of his decision, the reporter did not go beyond subparagraph (b). Moreover in paragraph 74, the reporter seemed to prefer and adopt a stricter test (namely, that although the integrity of the site was not undermined, yet the proposed development had adverse effects on the character and amenity of the landscape): but there was no legal basis for preferring the stricter test (cf paragraph 3.17 of the MLDP). These errors were also misdirections, but they became unnecessary to the appellants' argument if the appellants were correct in their main criticism of the application of MIN2.
Decision perverse or "Wednesbury unreasonable"
[12] In relation to the court's role in interfering with decisions such as planning decisions, reference was made to Lord Carnwath's Administrative Law Bar Association Lecture of 12 November 2013, footnote 21 (an observation that, rather than identifying a decision as attracting the pejorative adjective "irrational", one might prefer the formulation "My goodness, that is certainly wrong"), and pages 18-19 ("the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take"). In the present case, the appellants had attained significant favourable conclusions in relation to the need for minerals, national policy, community impact and tourism, the short-term nature of the project (10 years), the workings being under water, and the machinery involved being limited - rather akin to farm machinery. This otherwise suitable project, which had passed all the tests, was to be rejected, largely because of the landscape and visual impact of what could be seen from a hill (Tinto Hill) some distance away. That outcome should provoke a "Goodness me" response, leading to a re-examination of the final paragraphs 178 and 179. While it was not necessary for the reporter to repeat everything in the final paragraphs, it was curious that there was no mention of the improvement which restoration works would make to the site's conservation value (paragraphs 117 and 120 of the decision). It was necessary to give an indication of what the reporter was ultimately taking into account.
Failure to resolve matters by imposing conditions
[13] What had attracted the reporter's attention was the shape of part of the wet workings once finished - in particular, a straight line, and a 90 degree corner (paragraphs 56-58 and 180 of the decision). The reporter had misdirected himself on the appropriate test as to whether he could and should use a condition to deal with that issue. The proper question was whether a revisal to an application for planning permission would be regarded as "in substance different" (Walker v City of Aberdeen Council 1998 SLT 427 at page 431E). No reasonable reporter would conclude that a condition altering or softening the straight line and 90 degree corner resulted in "an entirely different proposal". Reading the decision as a whole, the reporter's concern could have been dealt with by a condition.
Conclusion
[14] If the reporter had erred in law in any respect, his decision should be quashed and the matter remitted to the reporters' unit for discussion on further procedure.
Submissions for the first respondents (The Scottish Ministers)
[15] Senior counsel for the first respondents invited the court to refuse the appeal. This court was concerned with the legality of the reporter's decision, and not with the merits or with planning judgment (Lord Hoffmann at page 780F-G of Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759; Lord Reed at paragraph [19] of Tesco Stores Ltd v Dundee City Council 2012 UKSC 278; Narden Services Ltd v Secretary of State for Scotland 1993 SLT 871 at page 875). The decision of 9 January 2013 had been made by an expert who had been called upon to exercise his planning judgment in areas where there was room for disagreement (Sullivan J at paragraphs 7-8 of R (Newsmith Stainless Ltd v Secretary of State for Environment, Transport and the Regions) [2001] EWHC Admin 74).
[16] The reporter had acknowledged the need for minerals. He had also made findings about the landscape and visual impact, which findings were not impugned. How he then dealt with those competing considerations was quintessentially a matter of planning judgment. The basis of his decision was clear and intelligible, and insofar as the appellants sought to rely to any extent upon inadequacy of reasons, such an argument (if advanced) should be rejected. Because there had been findings favourable to the appellants (for example, it was accepted that there would not be an adverse impact for the community) it did not follow that such a finding was a positive argument in favour of the planning development. The ultimate question in reaching a decision was: what were the matters which favoured the development in planning terms, and what were the matters which were against the development. The decision had to be read as a whole.
The need for minerals
[17] No issue was taken with the need for minerals set out in paragraphs 5 to 28. The appellants' criticism was that when the reporter drew all the threads together, he did not adequately reflect the question of need for minerals. But read as a whole, paragraphs 5 to 28 clearly recognised the importance of that need. Paragraph 178 referred back to the earlier passage. Moreover paragraph 24 further emphasised just how important the need for minerals was.
Policy ENV4 and ENV29
[18] The reporter was correct in his construction of Policy ENV4. The ordinary reading of the passage demonstrated that the first sentence was a separate requirement additional to what was set out in the rest of the policy. Also the reporter's construction was consistent with national policy (SPP paragraphs 125 to 127). National policy did not support an approach which involved protection only of certain areas: national policy relating to care for the environment went beyond conservation of designated sites (paragraphs 127, 131). "Integrity" was a sub-category or a particular type of concern.
[19] When construing policy ENV4, the first sentence was to be taken as the leading requirement. It was followed by three specific policies, the third of which was relevant in the present case. Just because a development which would significantly undermine the integrity of the protected resource was not permitted, that did not mean that everything else would be permitted. In particular, even if its integrity would not be undermined, it did not follow that there would not be landscape impacts in local parts of a designated area. Thus, when applying policies ENV4 and ENV29 to the information and evidence before him, the reporter was entitled to conclude that "despite its adverse landscape and visual impacts ... the proposal would not harm the integrity of the SLA [significant land area] or its overall quality and would therefore comply with these aspects of development plan policy. The conflict with the first requirement of Policy ENV4 would however remain." It would be a strange result if the first sentence prevented development in a site lying outside an SLA, but not a development within an SLA.
Policy MIN2
[20] The reporter's view was that in relation to Category 3 sites, the policy referred to development "which will adversely affect" a Category 3 site. He was correct in his view. In the context of Category 3 sites, the appellants invited the court to read in the words "the integrity of" after the word "affect". But there was nothing to support such a reading in. Paragraphs 3.8 and 3.11 of the South Lanarkshire Adopted Minerals Local Development Plan (MLDP) emphasised that proposed developments such as minerals extractions could have a significant impact on the environment, and required careful consideration. Policy MIN2 reflected the European Directive which absolutely prohibited development which would adversely affect the integrity of a Category 1 site. But so far as Category 2 and 3 sites were concerned, policy MIN2 clearly referred to "adverse impact" (cf paragraphs 3.8 and 3.11): there was no mention of integrity. Again therefore it did not follow that, because a development was not prohibited completely as a result of the European Directive concerning integrity, anything else would be allowed.
[21] As for the criticism that the reporter did not deal with sub-paragraph (c), in the circumstances of this particular case, that sub-paragraph had no practical application. If the development failed sub-paragraph (b), it followed logically that there could not be a net improvement to the Category 3 site. But in any event, even if the reporter's reasoning was flawed (which was not conceded) there would be no practical difference in the outcome had sub-paragraph (c) been considered.
[22] Finally, it was said that the reporter erred in "preferring" the stricter regional test in policy MIN2, rather than the test in the local plan (paragraph 72 of the reporter's decision). But it was not a question of "preferring" one policy over another. If the reporter had correctly construed policy MIN2, as he had, then that policy fell to be applied, and the proposal's compatibility with it assessed.
Perversity or "Wednesbury unreasonableness"
[23] The reporter's decision was made on the basis of the information placed before him, and his site visits. His key findings concerning landscape impact and visual impact (paragraphs 64 and 98) were not challenged, and indeed could not be, given his careful consideration of the facts. It was a matter for planning judgment whether adverse landscape and visual impacts outweighed the need for minerals. The reporter took into account positive benefits such as biodiversity, benefits to tourism and the creation of jobs. When the reporter summed up at paragraphs 178 and 179, he prefaced his conclusion with the words "taking all matters into account" (which included everything he had discussed and concluded before). There was no merit in the allegation of perversity.
Conditions
[24] In paragraph 180, the reporter addressed his mind to the possibility of imposing conditions. He had also considered conditions or alterations to the development landscaping earlier in his decision (for example, paragraphs 44 to 45, 56 to 57). He had been entitled to reach the view he did on the question of conditions. Walker v City of Aberdeen Council 1998 SLT 427 was concerned with a different issue (namely whether approval could be given for an amended application without re-notification). It could not be correct that a reporter was in some way obliged to see what could be done by way of conditions. In any event, the reporter did in fact consider the possibility of imposing conditions, and reached a view on that matter. That decision could not be criticised.
Conclusion
[25] The appeal should be refused.
Submissions for the second respondents (South Lanarkshire Council)
[26] Senior counsel for the second respondents invited the court to refuse the appeal. All of the arguments presented on behalf of the first respondents were adopted. Only some further short points were made.
[27] If the appeal were to be allowed, the reporter's decision should be quashed, and the matter remitted back to a pre-hearing at the reporters' unit. Parties would then be able to clarify what was accepted, what was not accepted, and whether the whole inquiry should be carried out de novo.
[28] In relation to policy MIN2: it was suggested that the second respondents had accepted that the integrity of the site was a relevant issue for all the policies in MIN2. If that had occurred, it had been inadvertent. Reference was made the submissions made to the reporter (volume 2, tab 18, page 18/6). Any such assumed concession was withdrawn. The construction of MIN2 advanced by senior counsel for the first respondents was accepted and adopted.
[29] In relation to the linkage of sub-paragraphs (b) and (c) by the words "and/or" and the criticism that the reporter, in paragraph 73 of his decision, had not dealt specifically with sub-paragraph (c), the reporter had clearly been aware of the three subparagraphs, as he referred to "the three criteria in Policy MIN2". The only features suggested as being within sub-paragraph (c) had been enhancement of ecology and biodiversity, and the reporter had these in mind also as he dealt with that enhancement (and the net improvement in the site's conservation value) in paragraph 120 of his decision. But because of the decision which he had reached in respect of sub-paragraph (b), sub-paragraph (c) was never in issue. The submissions of the first respondents were again adopted.
[30] Finally, in relation to the possibility of imposing conditions (paragraph 180 of the decision), this planning application had been one to which the Environmental Impact Assessment (EIA) Regulations applied: cf paragraphs 30 and 31 of the decision. There were publicity requirements arising from those regulations. Accordingly there was a serious question whether the application could be amended without complying with the EIA publicity requirements. The reporter had therefore properly taken into account not only planning law but also the EIA Regulations when deciding that it would be inappropriate to seek to amend the scheme by conditions.
Final reply for the appellants
[31] Senior counsel for the appellants agreed that if the appeal was successful, the reporter's decision should be quashed and the case remitted back to the reporters' unit for a pre-hearing. It might be that certain matters would not have to be revisited.
[32] It was accepted that regulation 48(5) of the Habitats Regulations prohibited any development if the integrity of the site was adversely affected. However the appellants' submissions were consistent with the Habitats Regulations: a proposed plan would be permitted only after checking that the integrity of the site was not adversely affected.
[33] The appeal should be allowed, and the reporter's decision quashed.
Discussion
[34] The reporter notes the main issues in the appeal as set out in paragraph [2] above. Thereafter he deals with each issue in order. In a clear and well-written text, he records that he took into account the information made available to him and information gathered during site visits, applied the relevant planning policies, and reached a conclusion in respect of each issue. Finally, in paragraphs 178 and 179, he refers back to his previous reasoning, findings and conclusions, and draws them together in a weighing and balancing exercise, applying his planning judgment in order to reach an overall conclusion.
[35] The appellants challenge his reasoning and conclusion, as set out in paragraphs [6] to [14] above. We deal with each argument in turn.
A failure to keep in mind the overriding and imperative nature of the need for minerals
[36] We are not persuaded that the reporter's decision demonstrates a failure to keep in mind the overriding and imperative nature of the need for minerals. The reporter's decision must be read as a whole. In paragraphs 5 to 28, the need for minerals is clearly acknowledged; the sources and capacities for the provision of minerals are examined and found to be wanting; and the clear conclusion is reached that an overriding local or regional need for minerals has been demonstrated. As the reporter put it in paragraphs 24 and 28:
"24. Taking all of the evidence into account, I conclude that in order to maintain a 10 year land bank for sand and gravel in accordance with SPP and the development plan, there is a need for additional mineral extraction capacity, with which this proposal would assist. This is an important consideration in favour of allowing this appeal, which I have taken into account when considering the benefits and disbenefits of the scheme ...
28. Given the conclusion I have set out above that there is not a demonstrated 10 year land bank of permitted reserves for construction aggregates, and the importance of South Lanarkshire sand and gravel quarries in supplying the entire central belt, I am satisfied that the requirement of Policy MIN2 to demonstrate an overriding local or regional need for the mineral has been demonstrated ..."
[37] Later in his decision, at paragraph 178, the reporter specifically refers back to the fact that there is no identified land bank of permitted quarries capable of meeting the identified need for sand and gravel over the next ten years. That is a reference back to paragraphs 5 to 28 and to the conclusion that "an overriding local or regional need for the mineral" had been demonstrated. Reading the decision as a whole it cannot, in our view, realistically be suggested that the reporter overlooked, or lost sight of, the overriding and imperative nature of the need for minerals. In the result, the appellants' submission on this matter fails.
An incorrect interpretation of, or approach to, policies ENV4 and ENV29
[38] In our opinion, the reporter's interpretation of policies ENV4 and ENV29 was correct. Policy ENV4 is a national policy, focusing upon care for the environment, and going beyond conservation designated sites (cf SPP paragraphs 125-127). The first sentence of policy ENV4 is indeed a leading requirement. It is in the following terms:
"The Council will assess all development proposals in terms of their effect on the character and amenity of the natural and built environment in accordance with National Planning Policy Guidance 14: Natural Heritage. In addition, the Council will seek to safeguard sites defined in Table 9.1 'Hierarchy of Natural and Built Heritage Sites' ensuring that they are conserved and where appropriate enhanced."
[39] That leading requirement is followed by three specific policies, the third one of which is relevant in the present case, namely:
"In areas of local/regional importance, development which would affect these areas will only be permitted where the integrity of the protected resource will not be significantly undermined [emphasis added]."
[40] "Integrity" is a particular subcategory or type of environmental concern. The fact that development will "only" be permitted if the integrity of the protected resource will not be undermined does not mean that, once it is shown that the integrity will not be affected, the development will be permitted no matter what other adverse effects it might have on the environment. Thus the reporter was correct in his reasoning in paragraph 71 when he stated:
"I agree with the appellant that the aim of Policy ENV29 and the second aspect of Policy ENV4 is to ensure that development proposals do not undermine the integrity and overall quality of the designated landscape as a whole, rather than to protect individual sub-areas or key characteristics within the designated area. The Upper Clyde Valley and Tinto SLA is a designation that covers a significant land area, from many parts of which the appeal proposal would be entirely screened. Therefore, despite its adverse landscape and visual impacts (which I have discussed above), the proposal would not harm the integrity of the SLA or its overall quality and would therefore comply with these aspects of development plan policy. The conflict with the first requirement of Policy ENV4 would however remain."
[41] We agree with counsel for the respondents that it would be strange if the first sentence of policy ENV4 prevented the development within a site lying outside a significant land area, but permitted such a development within a site lying inside a significant land area, on the view that the SLA was exempt from the leading requirement set out in the first sentence. As for policy ENV29, its whole focus is the quality of the designated landscape area. The reporter was entitled to have regard to the adverse landscape and visual impact rather than relying solely upon the high level policy (SPP).
[42] Accordingly we are not persuaded that the reporter erred in his construction or application of ENV4 or ENV29.
An incorrect interpretation of Policy MIN2
[43] The submission of senior counsel for the appellants in effect invited this court to read in the words "the integrity of" between the words "adversely affect" and "Category 2 and 3 sites". However not only is the language of MIN 2 clear and precise, but also there is nothing in the context of MIN 2 which would support such a reading-in. Category 1 sites are protected by an international European Directive, brought into effect in the United Kingdom by the Conservation (Natural Habitats etc) Regulations 1994. Regulation 48(5) of the 1994 Regulations specifically provides that development on such sites ("European sites") will not be permitted where the integrity of the site is adversely affected. But there is no such absolute prohibition in relation to Categories 2 and 3 sites. The provisions and policies relating to Categories 2 and 3 are different, with different goals, and are applicable even when the integrity of the site is unaffected. Thus the conclusion that the integrity of the site is unaffected does not mean that the development should be permitted, no matter what landscape, visual or other detriments might follow. We therefore agree with counsel for the respondents that the reporter did not err in this respect.
[44] As for sub-paragraphs (a), (b) and (c): while sub-paragraphs (b) and (c) are indeed connected by the words "and/or", sub-paragraph (c) is entirely theoretical in the particular facts of this case. The reporter was entitled to conclude that the adverse impact of the proposed development could not be mitigated to an acceptable degree. That conclusion superseded sub-paragraph (c) on the facts as, logically, a site in which the adverse impact of the proposed development cannot be mitigated to an acceptable degree is, by definition, a site which has not benefited from a net improvement to the site. While the reporter acknowledged a net improvement to the ecology and biodiversity of the site, those were only two features of the site and the reporter had to have regard to all the features, were the development to take place (cf paragraph [2] above). In any event, even if the reporter's approach on this particular matter was erroneous (which we do not accept), it would make no practical difference in the circumstances of this case, as the outcome, had sub-paragraph (c) been considered, would not have been any different: cf dicta of Lord Reed in Tesco Stores Ltd v Dundee City Council 2012 UKSC 278, at paragraph [31]:
"[31] ... an error by the respondents in interpreting their policies would be material only if there was a real possibility that their determination might otherwise have been different ..."
[45] As the reporter has, in our opinion, correctly interpreted the policy MIN2, he has simply applied it as being relevant to the application before him. He has not "preferred" the policy. It is our view therefore that any criticisms of the reporter under this head are unfounded.
A perverse or Wednesbury unreasonable decision
[46] The reporter took into account all the information placed before him, together with information gathered from site visits. He reached inter alia the conclusions set out in paragraphs 64 and 98 as follows:
"64. In conclusion, I find that the proposal would have a significant adverse effect on the landscape character of this part of the Clyde Valley and some of the surrounding upland areas, both during extraction operations and following restoration ...
98. My conclusion on the visual impact of the proposed development is that it would cause significant adverse effects on a number of important viewpoints both during the operational period and after restoration. As the latter effects would be permanent they must carry significant weight in my overall assessment of the proposal's benefits and disadvantages."
Neither of those conclusions has been challenged.
[47] The reporter then had to consider, as a matter of planning judgment, whether the significant adverse effect upon the landscape character of the area, and the visual impact (including the significant adverse effects on a number of important viewpoints) outweighed the acknowledged overriding need for minerals. He had to do so, taking into account the fact that the Scottish Planning Policy emphasises the importance of landscape and heritage.
[48] When the reporter summarised matters in paragraphs 178 and 179 (set out in paragraph [2] above), he was referring back to all the main issues he had considered, including:
Paragraph 120: net improvement in respect of ecology and biodiversity
Paragraph 176: benefit to tourism
Paragraph 177: creation of jobs.
[49] We are not persuaded that the reporter, in his final weighing up of all the main issues, omitted or forgot about these positive factors such that his decision could be characterised as perverse or Wednesbury unreasonable because he, for example, failed to take into account factors which ought to have been taken into account. On the contrary, reading the decision as a whole, it is clear that he took all the positive factors into account in the final weighing up, and then, exercising his planning judgment as he was entitled to do, concluded that the positive factors were outweighed by the negative factors: cf the observations of Sullivan J in R (Newsmith Stainless Ltd) v Secretary of State for Environment, Transport and the Regions [2001] EWHC Admin 74 at paragraphs 7 and 8:
" 7. ... where an expert tribunal is the fact finding body, the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.
8. Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task. It might be thought that the basic principles set out above are so well known that they do not need restating. But the Claimant's challenge in the present case, although couched in terms of Wednesbury unreasonableness, is, in truth, a frontal assault upon the Inspector's conclusions on the planning merits of this Green Belt case."
In our opinion, in the circumstances of this case, the perversity or "Wednesbury unreasonable" argument does not succeed.
A failure to resolve matters by imposing conditions
[50] Contrary to the submission advanced on behalf of the appellants, we are satisfied that the reporter addressed his mind to the possibility of imposing conditions. In paragraph 180 of the decision, the reporter noted:
"180. The appellant has suggested that areas of concern could be addressed by conditions which would have the effect of amending the proposal. However, I must consider the scheme that is before me and I do not accept that it would be appropriate to seek to amend the scheme by conditions when the extent and the implications of those changes are unknown and would be likely, given the significance of the adverse landscape and visual effects, to create an entirely different proposal with consequential implications for other issues such as biodiversity, all of which would be likely to require fresh environmental assessment."
[51] In our view, the reporter was entitled to be cautious in his approach to suggested conditions when there might be EIA publicity requirements, and moreover the reporter did not have sufficient material before him to enable him to assess the repercussions or consequences of such conditions, for example, in relation to issues such as biodiversity. We are not persuaded that the reporter erred in this respect.
Conclusion
[52] For the reasons given above, we have concluded that the reporter did not err. We refuse the appeal.