[2013] CSOH 148



in the Petition of



for Judicial Review of an award of expenses by a reporter appointed by the Scottish Ministers, dated 12 September 2012


Petitioners: Martin QC, Turner; Pinsent Masons LLP

Interested Party: Burnett; Scottish Government Legal Directorate

3 September 2013

[1] The petitioners are developers of land known as Almondvale, adjacent to Huntingtower and Ruthvenfield, Perthshire. The Scottish Ministers have responded to the petition as an interested party. The petitioners applied for planning permission in principle for a mixed use development including the construction of 1,800 (latterly 1,500) houses and associated development. The application was considered by the relevant committee of Perth and Kinross Council ("the planning authority") on 7 December 2011 and refused by decision dated 4 January 2012. The petitioners appealed to the interested party under section 47 of the Town and Country Planning (Scotland) Act 1997. The reporter, appointed by the interested party to determine the appeal, refused planning permission in terms of a decision dated 12 September 2012.

[2] The petitioners subsequently appealed against that refusal under section 239 of the 1997 Act. (The decision in respect of that appeal, heard in conjunction with this petition, is to be found as 2013 CSOH 147.) Before the reporter, the petitioners made a claim for expenses under the terms of the 1997 Act, in respect of the appeal under section 47. By a Claim for an Award of Expenses Decision Notice, dated 12 September 2012 ("the expenses decision"), the reporter declined to make an order for expenses. The petitioners now seek reduction of the expenses decision.

The legal framework
[3] Section 265(9) and section 266(2) of the 1997 Act empower the Secretary of State to make an order as to the expenses of the parties in respect of proceedings before a reporter. The decision whether to make an award is pre-eminently a discretionary one. Some guidance is to be found in the Scottish Government Circular 6/1990: Awards and Expenses in Appeals and other Planning Proceedings and in Compulsory Purchase Order Inquiries. Before an order can be made, three conditions must be satisfied, viz.: (i) the claim must be made at the appropriate stage of the proceedings (that is, for the purposes of this case, at the time of the presentation of the party's final written submissions), (ii) the party against whom the claim is made must have acted unreasonably, and (iii) the unreasonable conduct must have caused the party making the application to incur unnecessary expense either because it should not have been necessary for the case to have come before the Secretary of State for determination or because of the manner in which the party against whom the claim is made has conducted his part of the proceedings.

[4] The reporter found the first two conditions to be satisfied, the latter on the basis that by refusing to grant planning permission for the reason that a planning condition which could be put in place so as to render the application not in conflict with the local plan could be challenged and possibly overturned, in circumstances where the petitioners had indicated a willingness to accept such a planning condition, the planning authority had acted irrationally. As regards the third condition, the reporter found that even if the proposed planning condition had been approved, the likelihood was that the application would have been refused for other reasons, thereby necessitating, in any event, an appeal with its associated costs.

[5] It was a matter of agreement between the parties that in assessing the adequacy of the expenses decision, in this context, the normal public law principles apply. Provided the reporter has taken the conditions and guidance set out in the circular into account and has directed himself accordingly, a decision to refuse an award of expenses is susceptible to challenge only on grounds of unreasonableness (R v Secretary of State for the Environment, ex parte North Norfolk District Council [1994] 2 PLR 78, 84; Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, 230 and 234; Wordie Property Company Ltd v Secretary of State for Scotland 1984 SLT 345, 348). For the propositions that the decision must leave the informed reader in no real and substantial doubt as to what the reasons for it were and what material considerations were taken into account in reaching it, that the adequacy of the reasons given in any case has to be considered on the basis that they are addressed to persons who are familiar with the background and the issues giving rise to the decision, and that the degree of particularity required for reasons to be adequate will depend entirely on the nature of the issue falling for decision, I was referred variously to the following authorities: Wordie Property Company Ltd (supra); In re Poyser and Mills' Arbitration [1964] 2 QB 467, 478; Uprichard v Scottish Ministers and Others [2013] UKSC 21 at para 46; Save Britain's Heritage v Number 1 Poultry Ltd and Others [1991] 1 WLR 153, 167.

Submissions for the parties
[6] The arguments were in relatively short compass. As in the substantive appeal, counsel for each party provided written submissions, the detail of which I do not repeat here. The arguments set out in them are reflected in what follows. I have taken the written submissions presented to me together with the submissions made by counsel at the bar, fully into account.

Submissions for the petitioners
[7] Such costs as had been incurred had been brought about by the unreasonable decision of the planning authority which could not be supported. The planning authority's reason for refusing the application had been incorrect. Under reference to section 43(1)(d) and section 43(1A)(a)(iii) of the 1997 Act, no other reasons for refusal had been given in the refusal decision dated 4 January 2012. In the absence of any other stated planning ground for refusal, planning permission should have been granted. Had it been granted, there would have been no need for a subsequent appeal and therefore no cost would have been incurred.

[8] The reporter had erred in reaching a different conclusion. The reference at paragraph 8 of the expenses decision to "additional concerns" may have been made with the risk of flooding in mind. If so, there was no factual basis on which any concern in that regard could be considered relevant. Even if such a concern was relevant, it was not a reason set out in the decision notice dated 4 January 2012. If such "additional concerns" had been considered to be relevant by the reporter, she had failed to specify in the expenses decision her reasons for reaching that conclusion.

[9] Under reference to paragraph 7 of circular 6/1990, a partial award of expenses was not appropriate because the entirety of the planning authority's decision had been found to be unreasonable. In terms of the expenses decision, none of the reasons giving rise to the appeal were supportable. All of the cost incurred was referable to that being the case.

[10] The reporter's decision that no expenses had been unnecessarily incurred as a result of the unreasonable conduct of the planning authority was irrational. There was no factual basis set out in the expenses decision to support the view that, in any event, an appeal would inevitably have been made to the interested party and that expense would inevitably have been incurred as a result. The reporter had in effect gone about a hypothetical exercise as to whether the application would have been refused by the planning authority for other unstated reasons. To refuse the application on that basis was unreasonable. The expenses decision was ultra vires. Insofar as the reporter had taken into account the removal of the appeal site from the housing allocation of the proposed local development plan, it was illegitimate to do so for the reasons advanced on behalf of the petitioners in the substantive appeal under section 239. Since all three conditions set out in paragraph 5 of Circular 6/1990 had been met, an award of expenses should have followed.

Submissions for the interested party
[11] The reporter was entitled to consider what decision the planning authority would ultimately have reached if it had been accepted that the planning condition in contemplation was appropriate. In circumstances where the onus lay on the petitioners to demonstrate to the reporter that an appeal under section 47 would not have been necessary, the reporter had not been persuaded of that having regard to other factors which she was entitled to take into account.

[12] Although the petitioners maintained that if there had been other reasons before the planning authority supporting refusal, they should have been set out in the decision notice dated 4 January 2012, that did not follow. Because the planning authority had decided that the application was contrary to the local plan, (a conclusion with which, putting to one side the issue of the proposed planning condition, the reporter agreed), it was unnecessary to refer to any material considerations supporting refusal in the decision. Rather, what one would expect to see recorded in circumstances where the proposal did not accord with the local plan, following the approach set out by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, having regard to the statutory presumption in favour of the development plan, would be material considerations indicating that the application should be granted. In this case there were none. In such circumstances, it could not be assumed, because there were no material considerations referred to in the decision as indicative of refusal, that there were none considered by the planning authority. In circumstances where the planning authority had considered that the application was in accordance with the development plan, it would have required then to consider any material consideration which had the effect of outweighing that.

[13] The reporter had been entitled to put herself in the position whereby there had been no unreasonable conduct and to consider what would have been the planning authority's decision in the event that the proposed planning condition had been approved. It was within her discretion to come to the conclusion that the application would nevertheless have been refused, an appeal rendered necessary and associated costs incurred.

[14] In deciding that the planning authority would have refused the application in any event, the reporter stated at paragraph 5 of the expenses decision:

"The committee report clearly refers to other material considerations to be taken into account and I find that the council had reasonable planning grounds for reaching its decision that the proposal was contrary to the local plan."

At paragraph 8, she states:

"From the note of the committee meeting provided by the appellants (the petitioners), it is clear that additional concerns were raised about the appeal proposal at the meeting and other reasons why it could have been refused."

I take the committee report to which reference is made to be the report by the Development Quality Manager, submitted to the Development Control Committee of Perth and Kinross Council for the purposes of the meeting held on 7 December 2011. Clearly it was before the reporter. On that basis, I consider that the reference at paragraph 5 of the expenses decision to local opposition based on valid planning reasons is to be considered in the context of the detail of 175 representations against the appeal proposal set out in the committee report. I attach weight to the fact that the committee report had been produced by the petitioners.

[15] Additionally, in paragraph 8, the reporter refers to what was a special meeting of Perth and Kinross Council, the full council, held on 10 January 2012, at which significant changes were made to the proposed local development plan which hitherto had included the petitioner's proposal within the intended housing allocation. A note entitled Paper Apart - Note of Response/Matters, which was before the reporter, made reference to reasons, given at the council meeting on 10 January 2012, for the removal of the housing element of the land concerned in the petitioner's proposal as follows:

"Susceptibility to flooding in areas not covered by the Almondbank Flood Mitigation Scheme;

The Almondbank Flood Mitigation Scheme cannot be relied upon as funding is not secured;

Loss of natural drainage in a flood plain;

Other constraints in the development; and

The significant effect of development on the character and amenity of the area."

In the event, at that council meeting, the decision was taken to remove the petitioners' proposed development from the housing allocation of the proposed local plan. It would appear therefore that at that time there were other concerns in relation to the appeal proposal in addition to any concerning flooding.

[16] I consider that, in the exercise of her wide discretion in relation to this matter, in determining whether unnecessary expense had been caused as a result of the relevant unreasonable conduct, the reporter was entitled to put herself in the shoes of the planning authority in the hypothetical situation of the proposal having been considered to be in accordance with the local plan by virtue of the approval of the proposed planning condition. Since at that stage the planning authority would have required to consider whether there were any considerations indicating that refusal was appropriate which were sufficiently material as to outweigh the priority of the local plan, I consider that she was entitled to assess what material considerations, in that regard, would have been considered by the planning authority in that event.

[17] The expenses decision is to be judged in the context in which it was made and through the eye of the informed reader. To the extent that the factors set out in it are described at paragraphs 5 and 8 by reference to the committee report produced by the petitioners, I cannot find that the content of the expenses decision is such as to leave the petitioners in any real and substantial doubt as to what it was that had formed the reporter's reasoning. I find that on the evidence of the content of the committee report, the reporter was entitled to consider that there were relevant material considerations which the planning authority would have taken into account in determining whether the provisions of the development plan were outweighed. It was within her discretion to assess the appropriate weight which would have been given to these material considerations. That was a matter for her and I cannot find that she erred in the exercise of that discretion.

[18] While that is a sufficient basis for my decision, I consider further that, given the short time-scale between the decision of 4 January 2012 and the meeting of the full council on 10 January 2012, it was not unreasonable to allow for the fact that the adverse factors set out in Paper Apart - Note of Response/Matters were themselves indicative of the likelihood of refusal by the planning authority. Given the short time-scale involved, it would not be unreasonable to infer that the matters recorded as being of concern at the meeting on 10 January 2012 would also have been known to the planning authority at the time of its decision refusing the application.

[19] For these reasons, I favour the submissions for the interested party in preference to those of the petitioner. I find that the reporter has not acted ultra vires and that the reasons stated in the expenses decision are indeed adequate, based on facts found by her and not the result of the taking into account of irrelevant consideration. I therefore repel the petitioners' pleas-in-law and dismiss the petition. I reserve all questions of expenses.