MILLER HOMES LIMITED AGAINST THE SCOTTISH MINISTERS

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 20

XA132/13

 

Lord Eassie

Lady Smith

Lady Clark of Calton

 

OPINION OF THE COURT

delivered by LORD EASSIE

in the appeal

by

MILLER HOMES LIMITED

Appellants;

against

THE SCOTTISH MINISTERS

Respondents:

Act:  Thomson QC, Burnett;  Shepherd & Wedderburn

Alt:  Wilson QC, Mackenzie;  Scottish Government Legal Directorate

10 March 2015

Introduction

[1]        This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 – “the 1997 Act” - against a decision of a reporter appointed by the Scottish Ministers to determine an appeal to them under section 47 of the 1997 Act against the refusal of the local planning authority to grant an application for planning permission.  The reporter dismissed the appeal and refused the planning permission which was sought. 

[2]        The application which was made by the appellants to the local planning authority – East Lothian Council – was for planning permission in principle for “residential development with landscaping, road improvements and associated works” at Ferrygate Farm, North Berwick.  The site lies immediately to the west of North Berwick.  It lies to the south of Dirleton Road.  On its eastern side it is bounded by a residential development forming part of North Berwick and by woodland.  To the south and west the site is bounded by farmland.  Its superficial extent is 10.29 hectares.  The site is in agricultural use, the land being “prime” agricultural land.  It is bisected by a roadway known as Gasworks Lane which runs roughly north – south thus dividing the site into an eastern and a western sector, the latter being larger than the former. 

[3]        By reason of changes in the relevant statutory development plan it is necessary to note some of the chronology of the making of the application and the appeal process.  The application for planning permission in principle was submitted to the local planning authority on 24 August 2012.  The officials of the authority submitted their report to the relevant committee of East Lothian Council on 9 April 2013.  The committee met on 23 April 2013 and their written decision refusing the application was issued on the following day, 24 April 2014.  At that point in time the statutory development plan consisted of (a) the Edinburgh and Lothians Structure Plan 2015, which had been approved by Scottish Ministers on 17 June 2004 and which had become operative on 21 June 2004; and (b) the East Lothian Local Plan 2008, which had been adopted by East Lothian Council on 28 October 2008.  Five of the six reasons for which the local planning authority refused the application on 24 April 2014 were based on provisions in the Edinburgh and Lothians Structure Plan 2015.  The sixth reason was couched in terms which referred to a policy set out in the local plan. 

[4]        Faced with the refusal of their application the appellants appealed to the Scottish Ministers and lodged their appeal statement with the directorate for planning and environmental appeals on 18 June 2013.  It addressed the reasons for refusal in terms of the Structure Plan and the East Lothian Local Plan.  However, on 27 June 2013 the Edinburgh and Lothians Structure Plan 2015 ceased to have effect.  It was replaced by “SESplan” – the Strategic Development Plan for Southeast Scotland, drawn up by the SESplan Strategic Development Planning Authority[1].  Consequently the five reasons for refusal which had been based on the Edinburgh and Lothians Structure Plan 2015 fell away.  In their appeal statement the appellants sought, to an extent, to anticipate the provisions of the SESplan.  A feature of the SESplan was that it did not identify any detail of housing land needs.  Instead, it relegated that detail to the provision – at some future date – of “supplementary guidance”.  The appellants therefore essayed an estimation of housing land requirement over a five year supply period.  The appellants identified a shortfall in the five year housing land supply for the whole of the SESplan area of land for the construction of some 22,176 homes.  Subject to one minor, immaterial correction in the figures, the local planning authority did not take issue with that estimation of the five year requirement for the SESplan area.

[5]        A further matter which arose after the local planning authority had issued its refusal was that the appellants stated in their appeal statement[2] that, for what they described as legal reasons, they could not obtain the access necessary to provide services into the area of the site that lay to the east of Gasworks Lane.  By reason of that difficulty in the provision of services, the appellants indicated that the section lying to the east of Gasworks Lane would be developed to create additional open space or parkland.  Whereas documents which had accompanied the application envisaged that 140 houses might be constructed on the site, the appellants then current intention was to proceed to construct 129 dwellings on the sector to the west of Gasworks Lane.

 

The reporter’s decision

[6]        After certain preliminary matters and a description of the site and the proposals, the reporter, in his decision letter, adverted first to certain aspects of the East Lothian Local Plan.  He wrote:

“10.  In East Lothian Local Plan 2008, the proposed development is not on one of the sites that are identified for new housing at North Berwick.  The appeal site is within the area defined as countryside.  The appeal proposal is not a kind of development that is permissible in the countryside in terms of the first paragraph of local plan policy DC1.  For these reasons, I find that the proposal is contrary to the local plan.

 

11.  Conflict with the local plan does not necessarily mean that the proposed development must be rejected.  The local plan requires review because it is now five years old.  In addition, the structure plan in force in 2008 has now been superseded by SESplan, which provides new strategic guidance for development planning in East Lothian.

 

12.  The Appellant says that the appeal site, in local plan terms, is countryside only because the plan is not up to date.  I do not accept this contention.  I find it possible that a review of the local plan might result in the appeal site being allocated for residential development but, as shown later in this decision notice, allocating the site for residential development is not an inevitable outcome of a review.”

 

[7]        The reporter next considered locational aspects of the SESplan strategy.  At paragraph 17 he concluded that the appeal site “is not a sustainable location, in that housing development on it would increase the number of relatively lengthy daily journeys to and from work made by car by North Berwick residents”.  He then considered the second of the three principle sections of the SESplan, namely “The Spatial Strategy”.  He sets out the following from the SESplan:

“18.  The SESplan Spatial Strategy (paragraph 18) includes the following.

 

The Strategic Development Plan Spatial Strategy…..builds on existing committed development, focusing further development along preferred corridors optimising connectivity and access to services and jobs.

 

…..further development will be focussed in thirteen Strategic Development Areas acting as the primary locations for growth and investment.”

 

North Berwick is not one of the areas within East Lothian identified as a “strategic development area”.  Having referred to paragraph 22 of the SESplan, which states that where possible new housing development is to be focussed on brownfield and across the strategic development areas the reporter found:

“21.  I find that the strategic development area element of SESplan indicates that North Berwick is not a priority location in the search for additional land for new housing development.”

 

A little later the reporter concludes:

“26.  My conclusion is that locational aspects of the SESplan strategy do not identify North Berwick as a place for significant additional new housing development.”

 

[8]        The reporter thereafter reviews the local plan strategy and at paragraphs 29 and 30 of his decision he states:

“29.  As already mentioned, the local plan requires replacement.  This does not mean that the plan no longer has any merit.  It appears to me that much of the strategy in paragraphs 1.25 and 1.26 of the plan accords with strategy in SESplan, and adds some weight to my conclusion that North Berwick is not identified as a location to which significant additional new housing is to be directed.

 

30.  This conclusion does not necessarily mean that the appeal should be dismissed.  As pointed out by the Appellant, SESplan strategy also addresses the need to ensure that there is an adequate supply of land for new housing, and consideration must be given to this.”

 

[9]        In the next section of his decision letter the reporter considers the matter of land supply for housing.  As we have already mentioned, both the appellants and the local planning authority were essentially at one concerning the shortfall in the five year land supply within the SESplan area.  At paragraph 41 the reporter observes that he finds nothing in the submissions to suggest that the effective land supply in East Lothian was adequate or that East Lothian was exempt from accommodating housing needs generated by the city of Edinburgh.  At paragraph 42 he concludes:

“42.  My conclusion is that there is a clear need to bring forward more land for new housing in East Lothian to achieve and maintain a five-year supply of such land.”

 

[10]      Under the heading “Addressing the shortfall”, the reporter then states:

“43.  The Appellant says that SESplan provides support for granting planning permission for sites such as the appeal site in the event of a shortfall in housing land supply - in this respect, policy 7 is the key policy.

 

44.  In SESplan, policy 7 is headed “maintaining a five-year housing land supply” and reads as follows.

 

Sites for greenfield housing development proposals either within or outwith the identified Strategic Development Areas may be allocated in Local Development Plans or granted planning permission to maintain a five years’ effective housing land supply, subject to satisfying each of the following criteria:

 

a.  the development will be in keeping with the character of the settlement and local area;

b.  the development will not undermine green belt objectives; and

c.  any additional infrastructure required as a result of the development is either committed or to be funded by the developer.

 

45.  I find that policy 7 has four criteria: need for extra land to maintain a five-year supply and the three listed criteria.  If all the criteria are met, permission may be granted.”

 

In order to put the reference by the reporter to Policy 7 having four criteria in a fuller context, we think it helpful to set out paragraph 116 and Policy 6 of the SESplan:

“116     LPAs may consider it appropriate to support new housing development on greenfield land outwith the thirteen identified SDAs, either when allocating land in LDPs, or in granting planning permission to maintain a five years’ effective housing land supply. In these circumstances, as set out in Policy 7, they should ensure protection for the character of existing settlements, should not undermine green belt objectives, and should avoid diverting investment in infrastructure from other priorities.

 

POLICY 6

HOUSING LAND FLEXIBILITY

 

Each planning authority in the SESplan area shall maintain a five years’ effective housing land supply at all times. The scale of this supply shall derive from the housing requirements for each Local Development Plan area identified through the supplementary guidance provided for by Policy 5. For this purpose planning authorities may grant planning permission for the earlier development of sites which are allocated or phased for a later period in the Local Development Plan.

 

[11]      Having identified four criteria, the reporter then proceeds to consider how each may or may not be satisfied.  We do not think it necessary to enter into the detail of that examination.  At paragraph 71 of his decision the reporter expresses his conclusion thus:

“71.  My conclusion is that the proposed development meets all of the criteria in policy 7 of SESplan.  This means that permission for the proposed development may be granted, but it does not mean that permission must be granted.  In deciding whether permission should be granted, all relevant provisions of the development plan and other material considerations must be taken into account.”

 

Broadly speaking what follows thereafter in the reporter’s decision letter are his reasons for reaching the decision to refuse the appeal.  Although the reporter considered a number of considerations, in essence there were two grounds or considerations which militated against allowing the appeal and granting the outline permission which was sought. 

[12]      The first of those reasons or considerations may by way of shorthand be referred to as the prime agricultural land issue.  The reporter’s reasons are based upon paragraph 5(d) of Policy DC1 of the East Lothian Local Plan.  At paragraph 74 to 77 of his decision letter the reporter writes:

“74.  The Council does find conflict between the proposed development and the local plan policy for prime agricultural land.  The Council’s sixth reason for refusal of planning permission says that the proposed development would result in the loss of prime agricultural land and that this would be contrary to part 5 of local plan policy DC1 and contrary to Scottish Planning Policy.  Loss of top-grade agricultural land is also a ground of objection in the representations.

 

75.  The Appellant says that North Berwick is constrained on all sides by countryside.  So far as the Appellant is aware, most, if not all, of this is prime agricultural land.  If housing requirements are to be met in East Lothian, it is inevitable that prime agricultural land will have to be used.  Provision of adequate housing is a key objective of strategic and national policy: protection of prime agricultural land is a lesser priority.

 

76.  I note that the local plan policy says that proposed development must minimise the loss of prime agricultural land.  This is not the same as saying that there must be no loss of prime land.  Rather, if prime land has to be developed, the amount of such land taken out of agricultural use must be the least possible.

 

77.  In the present case, the appeal site extends to some 10 hectares.  It was originally envisaged that 140 houses would be built on the site.  For legal reasons, it is now envisaged that 111 houses would be built.  This suggests to me that 111 houses could be built on a site of less than 10 hectares, if the site were free of constraints.  For this reason, I find that the proposed development does not minimise loss of prime agricultural land and so infringes local plan policy.”

 

[13]      The second principal matter or consideration prompting the refusal of the appeal is based largely on the spatial strategy of the SESplan, which directs housing development to sustainable locations and, in particular, brownfield sites or within the 13 strategic development areas.

[14]      Paragraphs 80 and 85 effectively set out the conclusions of the reporter on why the appeal should be refused for these two reasons:

“80.  The proposal infringes local plan policy regarding prime agricultural land.  I find that this is significant, especially as the policy accords with paragraph 97 of Scottish Planning Policy, which refers to minimising loss of prime agricultural land.

 

…

 

85.  I find that spatial aspects of development plan policy are firmly against the proposed development, while the local infrastructure and housing land supply aspects lend considerable support to the proposed development.  My conclusions are that, in the particular circumstances of the present appeal, the spatial aspects carry considerably more weight than the infrastructure and land supply aspects and that the proposed development is contrary to the development plan.”

 

The prime agricultural land issue

[15]      As already indicated, the reporter decided to refuse the appeal on the ground that the proposal infringed subparagraph (d) of paragraph 5 of Policy DC1 in the East Lothian Local Plan in respect that the development would not minimise the loss of prime agricultural land. 

[16]      Policy DC1 – headed “Development in the countryside and undeveloped coast” – is a lengthy statement of policy but we think it necessary to set it out in full:

“COUNTRYSIDE AND UNDEVELOPED COAST

 

Development, including changes of use, will be acceptable in principle within the countryside and undeveloped coast where it is directly related to agriculture, horticulture, forestry and countryside recreation.  Other business use will also be acceptable where it is of an appropriate scale and character for its proposed location in the countryside, it can be suitably serviced and accessed and there are no significant traffic or other environmental impacts.  Development will also be acceptable in principle in the following circumstances:

 

1 New Build

 

(a)  Leisure, tourism or infrastructure proposals, provided they have a clear operational requirement for a countryside location that cannot reasonably be accommodated within an existing urban or allocated area or, in the case of a proposed development within the undeveloped coast, that cannot be accommodated elsewhere and any potentially detrimental impact is outweighed by its social and economic benefits;

 

(b)  In the case of a new house, where the Council is satisfied that it is a direct operational requirement of an agricultural, horticultural, forestry or other employment use, and no appropriate existing building is available;

 

(c)  In the case of an employment, tourism or leisure use, an element of new build housing may be acceptable as enabling development where the Council is satisfied that (i) the wider public benefits of securing the primary use outweigh the normal policy presumption against new build housing in the countryside, and (ii) the enabling development is essential, it is the minimum necessary to achieve the primary use and it is not a substitute for normal development funding, including borrowing.  Enabling development may also be acceptable where it will fund the restoration of a listed building or other significant feature of the built or natural environment, the retention of which is desirable.  Any enabling development must not harm the setting of the listed building or other feature and meet the test of (c)(i) and (ii) above.  The Council will obtain independent advice on (c)(ii) above.  Where housing is acceptable on the grounds of enabling development it will not require to provide affordable housing.

 

2 Change of Use/Restoration of a Building

 

Consistent with the acceptable changes of use being the same as for new build uses (Part 1 above), the following requirements must be met:

 

(a)  The building stands substantially intact (normally to at least wallhead height) and requires no significant demolition.  In order to be satisfied that the existing structure is suitable for the change of use or the conversion, without significant demolition, the Council must be provided with credible evidence of the building's structural stability at the time of the planning application, and

 

(b)  The existing building is physically suitable for the proposed use and any extensions or alterations are compatible with and do not harm any significant architectural or historic features of the building and are in keeping with its size, form, scale, proportion, massing and architectural character;

 

(c)  In the case of a farm steading conversion, a limited amount of new build may be acceptable where (i) it reinstates a part of the original steading group demolished or altered by later development alien to its character and appearance, where there is clear physical and/or historic evidence of the original form, or (ii) it is a logical extension to an existing part of the steading that would provide a completeness to the steading's overall composition that is in keeping with its scale, form and character, and (iii) in all cases, the materials used on the exterior of the new buildings are sympathetic with those of the existing buildings proposed for conversion;

 

(d)  In the case of a change of use of a building to a house or houses, the existing building is worthy of retention by virtue of its architectural or historic character;

 

(e)  In the case of the change of use of agricultural buildings to housing, the change of use must involve the whole building group, and (in the case of a change of use to garden ground, any well-defined settlement boundary or landscaped edge must not be prejudiced, the area of the change of use must be small in scale and the terms of Policy DC1 Part 5 must be met).

 

3 Mineral Extraction

 

The operation must be consistent with the minerals policies of the local plan.

 

4 In the case of new build housing

 

(a)  Where satisfied that a new house is justified by an operational requirement, it will be a requirement that the applicant and, where different, the landowner enter into a Section 75 Agreement with the Planning Authority (i) to tie the proposed house to the business for which it is justified and (ii) to restrict the occupancy of the house to a person solely or mainly employed, or last employed, in that specific business, and their dependents.

 

(b)  Where a business or agricultural use that is not yet established seeks to justify an operational requirement for an associated house, the Council will either grant temporary planning permission for temporary accommodation, or condition any consent such that, in both cases, permanent accommodation will only be permitted once the Council is satisfied that the agricultural or business use is established and that permanent accommodation is justified.  In such situations the requirement for the above Section 75 Agreement will then apply.

 

(c)  Applications must be accompanied by a statement justifying the direct operational requirement for the house.  The Council may take independent advice as to this requirement.

 

5 In all cases

 

(a)  Having regard to its nature and scale, new development must be integrated into the landscape, reflect its character and quality of place, and be compatible with its surroundings;

 

(b)  New development must be sited so as to minimise visual intrusion and landscape impact within the open countryside or undeveloped coast, for example, by locating as part of an existing group of buildings, woodland or other well-contained setting, and by respecting and making use of the setting provided by landform or existing landscape features;

 

(c)  The proposal must have no significant adverse impact on nearby uses;

 

(d)  The proposed development must minimise the loss of prime agricultural land;

 

(e)  Account must be taken of the design policy framework contained in the local plan (refer to Chapter 13);

 

(f)  Suitable access and infrastructure is or can be made available;

 

(g)  Where an existing building is demolished, any proposals for a replacement building will be treated as new build and considered as such against Policy DC1.”

 

[17]      It is also important to note that in paragraph 79 of his decision the reporter says:

“79. The appeal proposal is contrary to the first paragraph of local plan policy DC1.  The local plan requires review because of its age and because there is new strategic guidance in the form of SESplan.  For these reasons, I attach only limited weight to the conflict with the first paragraph of policy DC1.”

 

[18]      Counsel for the appellants criticised the reasoning offered by the reporter in this branch of his decision.  In brief summary, counsel submitted that since the reporter had concluded, in paragraph 79 of his decision, that he could attach little weight to the first paragraph of Policy DC1 of the East Lothian Local Plan,  it was illogical and irrational for the reporter then to give crucial weight to subparagraph (c) of paragraph 5 of that policy.  Further, the reporter failed to appreciate that Policy DC1 in the local plan was based upon, and conformed to, Policy ENV3[3] of the Edinburgh and Lothian Structure Plan 2015.  The SESplan noticeably omitted any such policy.  In particular, the SESplan contained no provision requiring avoidance of the loss of prime agricultural land.  The reporter’s reliance on paragraph 97 of Scottish Planning Policy was misplaced; that document was not a development control tool but an indicator for strategic planning. 

[19]      For her part counsel for the respondent submitted, in summary, that while the SESplan contained no equivalent of Policy ENV3 of the former structure plan, that did not invalidate the East Lothian Local Plan.  The policy of protecting prime agricultural land from loss by development remained in the other policy documents, including paragraph 97 of Scottish Planning Policy.  It was possible to construe the reporter’s decision to the effect that, since the opening paragraph of DC1 had in his view less weight, the proposed development came within a wider category of exceptions or acceptable development but would yet require to satisfy paragraph 5(d).  And since the appellants could not build houses on the land to the east of Gasworks Lane, granting consent for the whole site, when the intention was only to build 111 houses (on the western sector) would not minimise the loss of prime agricultural land. 

[20]      In considering the competing contentions on this branch of the case we find it convenient to begin by considering the proper construction or interpretation of Policy DC1 of the East Lothian Local Plan.  The policy has, in our view, to be read as a whole.  The structure of the policy is that the opening (unnumbered) paragraph sets out the general acceptance of development, including changes of use, which is directly related to agriculture, horticulture, forestry and countryside recreation.  Other business use – seemingly not other forms of development – will be acceptable subject to certain conditions, broadly speaking appropriateness to a rural location.  Thereafter follow five numbered paragraphs.  The first numbered paragraph concerns “new build” – and it may be noted that new housing is subject it to its being an operational requirement of an agricultural, horticultural, forestry or other employment use.  Numbered paragraph 2 is concerned with change of use or restoration of an existing building; and paragraph n^o 3 relates to mineral extraction.  Paragraph n^o 4 is concerned with special conditions – largely section 75 agreements for new build housing.  Paragraph n^o 5 is headed “in all cases” and there then follow seven subparagraphs of which subparagraph (d) refers to minimising the loss of agricultural land.  In our opinion it is evident from the structure of Policy DC1 that the particular matters listed in the subparagraphs of paragraph n^o 5 only arise for consideration if the proposed development satisfies either the requirements of the opening, unnumbered paragraph, or one of paragraphs n^os 1, 2 or 3.  Not only is paragraph n^o 5 headed “In all cases”, which in our view looks in retrospect to the preceding provisions within the policy, but the very nature of the matters catalogued in the subparagraphs are such that they arise as subsidiary matters on the assumption that the development has otherwise passed through one of the gateways set out earlier within the Policy DC1. 

[21]      The reporter recognised[4] that the appeal proposal did not meet the requirements of the opening paragraph of Policy DC1.  It was no doubt unnecessary for him to say that it could not come within the criteria in paragraphs n^os 1, 2 or 3 of Policy DC1 since evidently it did not.  In those circumstances it is our view that one simply does not get to an examination of the subsidiary matters in paragraph n^o 5 of Policy DC1.  However the reporter treats one of those subsidiary matters as if it were a separate free-standing provision in its own right.   

[22]      In our view, the reporter appears thus to have misconstrued Policy DC1 and that misinterpretation appears to us also to be the source of the irrationality of which the appellants complain.  Having resolved, in paragraph 79 of his decision that, for the reasons which he gives, only limited weight might be attributed to the opening paragraph of DC1 it was not open to the reporter then to give to subparagraph (d) of paragraph 5 of Policy DC1 a weight or autonomy divorced from the rest of that policy. 

[23]      At one point in her submissions we understood counsel for the Scottish Ministers to suggest that the reporter may have decided that the appeal proposal did pass through some modified gateway, thereby opening up the terms of paragraph n^o 5 of Policy DC1.  We do not so read the decision; nor, if that were so, would it be right to apply the provisions of paragraph n^o 5, which are directed to a particular, limited class of development, to some wider undefined class.

[24]      We also think that the  misreading of Policy DC1 may be the source of the ambiguity or lack of clarity in the reporter’s decision which was identified in the discussion before us, namely whether the proposed development in its entirety was unacceptable as involving the loss of prime agricultural land; or whether it was simply unacceptable because the appellants had candidly advised that – at least for the present – they could not build houses on the area of the site lying to the east of Gasworks Lane.

[25]      In that regard it is to be borne in mind that, as counsel for the appellants pointed out, the application to the local planning authority was for planning permission in principle for “residential development with landscaping, road improvements and associated work”.  The documentation accompanying the application which illustrated the construction of 140 dwellings was clearly stated to be indicative.  Counsel on both sides were seemingly agreed that a grant of planning permission in principle would not specify a fixed number of dwellings (or even type of dwellings); and even if it did, a developer might yet choose to build some lower number of houses. The notion of a project minimising the loss of prime agricultural land may be understandable and practical in the case of, say, the construction of one or two houses required for agricultural employment in the sense that either some equally convenient non-prime agricultural land might be available; or the extent of the garden ground proposed for the dwellings might be manifestly excessive.  But the notion is difficult to apply in the context of an application such as the present for planning permission in principle for residential development of a substantial site.

[26]      In these circumstances we have come to the view that the reporter’s conclusion respecting the agricultural land issue is indeed vitiated by an error of law.  That conclusion formed an important part of his ultimate decision that the appeal should be refused.  We therefore consider that on this issue alone the appeal succeeds and that the decision falls to be quashed. 

 

The SESplan and spacial aspects issue

[27]      The other ground upon which the appellants contend that the reporter erred relate, put very broadly, to what is said to be a misinterpretation of the SESplan, leading in turn to the reporter’s conclusion that “spatial aspects of development plan policy are firmly against the proposed development” and that those spatial aspects carry considerably more weight than the infrastructure and land supply aspects[5].

[28]      In brief summary the argument, as we understood it, was to this effect.  The SESplan was structured in three sections, namely “The Vision”, “The Spatial Strategy” and “Framework for Delivery”.  The process within the SESplan was progressive; the first and second of those sections of the plan were directed to the identification of the strategic development areas and the elaboration of local plans.  The only section of relevance to the reporter’s decision was “Framework for Delivery”.  Within that section, Policy 6, it was submitted, imposed a duty on every local planning authority to maintain an effective five year housing land supply.  Having concluded, in the light of  the parties’ agreement (absent any supplementary guidance) on the extent of the shortfall in the SESplan area, that there was a clear shortfall in housing land supply in East Lothian, the reporter then required to give effect to Policy 7 of the SESplan. That policy required the grant of planning permission for any greenfield housing development proposal in East Lothian, irrespective whether the site lay within or without a strategic development area, provided only that the proposed development satisfied the three criteria enunciated in the text of Policy 7.  Having, in the present case, concluded that those three criteria were satisfied, it was then not open to the reporter to go back to section 2 of the SESplan and give effect to spatial strategy considerations, such as the fact that North Berwick was not within a strategic development area; nor was it open to the reporter to have regard to sustainability considerations, since those had already been taken into account in the exclusion of North Berwick from the status of being a strategic development area. 

[29]      We are not immediately persuaded that this contention is sound.  Apart from the general requirement to have regard to the development plan as a whole, paragraph 7 of SESplan does not appear to support the somewhat formalised or compartmentalised approach to the SESplan for which counsel for the appellants contended.  That paragraph says:

“The three sections of the SDP, including the SDP policies, are complementary and should be read in conjunction with each other.  Development proposals will be required to be in accordance with all policies in the Plan.  SESplan will consider the need for supplementary guidance giving further information or detail on matters where the need for this has been expressly identified in the plan, tied to specific policies.”

 

We are also conscious that by reason of the procedural course of the case, the reporter was not addressed on the argument now advanced by counsel for the appellants.  Since we have come to the conclusion that the first branch of the argument for the appellants succeeds and that the reporter’s decision must be quashed on that account we consider it appropriate to reserve our opinion on the issues raised in the second branch of the case.