Lord Justice Clerk

Act:  EG Mackenzie; Eversheds LLP

Alt:  Burnet; Balfour + Manson LLP

31 October 2013

Site Planning History

[1]        The applicants own a brownfield site comprising the south pier and associated vacant ground at St David’s Harbour, on the south west of Dalgety Bay.  The site had originally been developed as part of the harbour, which was constructed in 1752 and was of importance in the export of coal out of Fife in the 19^th and early 20^th centuries.  Originally, rail lines ran down to the pier.  There were dwelling houses and a pub in the vicinity.  However, these were demolished, apparently sometime before the Second World War.  The harbour operated latterly as a ship breakers yard.  Commercial operations ceased in or about 1980 and all the remaining buildings on the site were demolished.  The harbour itself became infilled.  The site, looked at in isolation, has been derelict since then and now consists of wild grass and similar vegetation covering the rubble foundation.  Meantime, Dalgety Bay, as a privately developed new town, has grown up around the harbour.  Relatively high density 3 and 4 storey flats of modern design surround the open space formerly occupied by the harbour on the northern boundary of the site.  The Fife Coastal Path runs along the site’s landward boundary.

[2]        The site has a significant recent planning history.  In May 1990, Dunfermline District Council granted outline planning permission to Tay Homes for the western expansion of Dalgety Bay.  That permission, which encompassed the area surrounding the harbour, included residential, commercial, leisure and recreational works, including a marina.  Shortly afterwards, a “masterplan” was approved by the Council for a multi-use village at the harbour, including flats, a café, restaurant, bar and shops.  However, the only detailed permission granted was to Tay Homes for the residential component of the development.  This component was completed in phases in advance of any commercial premises.  In due course, the Dunfermline and the Coast Local Plan (2002) identified the site for commercial and leisure use (policy CLR 5); any residential element being omitted, presumably because it had already been completed.

The site at present

[3]        The applicants’ first involvement in the planning history was when they applied for permission to build a restaurant/pub on the site; this being refused on 28 April 2003.  An appeal against that refusal was dismissed, after a public local inquiry, in July 2005, on the ground that the impact associated with the scale of the proposed development was unacceptable.  At that time, it was, however, accepted by the respondents that some development on the site should take place.  The only issue was its scale.

[4]        It was the respondents who, in February 2007, produced a planning brief for developers stressing the desirability of development to enhance the exceptional coastal location of the site as an identifiable feature from across the water and, as it was put, within the local context.  The conclusion of the brief was that it was appropriate to enhance the unique identity of Dalgety Bay by the creation of a quality urban environment on the site.  The brief proposed a mixed use development, including a corner building at the end of the pier for use as a café/bar, bistro, restaurant and/or pub, and a linear block for residential use further to the east towards the Tay Homes flats.  It was envisaged that these buildings would be no more than 2 storeys in height; thus below the level of the neighbouring flats.  Indicative schemes were illustrated in the brief.

[5]        The applicants sought outline planning permission for a commercial and residential development along the lines indicated in the planning brief.  The respondents failed to determine the application timeously and it was therefore made the subject of another public local inquiry in September 2007.  The respondents opposed only the residential part of the application.  They were content that the restaurant/pub at the end of the pier was appropriate.  In November 2007, the reporter allowed the appeal against the failure to determine the application and granted outline planning permission, with the commercial element being restricted to 600m­² and the likely number of flats being estimated at between 15 and 30. 

[6]        The reporter considered that the proposed development was supported by the approved Fife Structure Plan (2002) policies SS2, which encouraged the co-location of compatible land uses (including residential and small-scale leisure) on development sites in urban areas, and H6, which supported the re-use of brownfield sites for housing, even if the general housing requirement for Fife were exceeded.  Policy S6, in relation to commercial development, broadly supported development of the commercial element, given especially an apparent obvious demand at the locality for a commercial leisure facility.  The reporter considered that the application was supported by local plan policies BE2 (Development within Town and Village Envelopes) and CLR 1, 4 and 5 (Commercial Leisure Facilities).  The brownfield nature of the site appears to have been a significant feature in the mind of the reporter relative to the local housing policy (H3).

[7]        After his detailed consideration, the reporter expressed himself satisfied that:

“81      … any potentially significant matters of local environmental impact have been covered in the above assessment with regard to the development plan and other material considerations …  [T]he favourable considerations, overall, outweigh any conflict with the development plan and any other adverse matters.  This conclusion is subject to being able to devise and impose appropriate and necessary conditions.”

Outline planning permission was therefore granted subject to the resolution of a number of reserved matters.  It was specifically provided that an application for approval of the reserved matters be made within 3 years and the development commenced within 5 years (or 2 years from the detailed permission).

[8]        It is of some significance to note that, unusually, the reporter awarded the applicants the expenses of the inquiry on the basis that the respondents’ behaviour in resisting the residential component of the application had been unreasonable.  All that had been lacking, to support the application, in the local development plan had been a specific reference to residential as well as commercial leisure use.  The reporter held that had the respondents had proper regard to the aims and objectives of the plan, it could “not reasonably have been concluded that the aims and objectives would be prejudiced by the appeal scheme”.  The respondents’ delay in determining the application was also a factor.  In conclusion, having considered the planning history, the reporter stated that there had been “no sound planning grounds for refusing the planning permission sought”.

[9]        In June and October 2009 the applicants submitted applications for detailed planning permission for the erection of 27 flats, a restaurant/bistro and a lighthouse.  Those applications were refused and appeals against those refusals were dismissed on 11 October 2010.  In his letter refusing the applications, a different reporter accepted that the contents of the applications did not run contrary to the outline permission.  He accepted, as had been clear at the inquiry into the outline application, that any development would affect the vista from the existing flats.  The reporter considered that the plans for the installation of a decorative lighthouse at the end of the pier and the proposed bistro next to it were attractive and would contribute positively to the character of the area, the identity of its community and its relationship with the Firth.  What resolved the reporter to refuse the appeal was simply the siting of what were two blocks of flats, which were to be of between 3 and 4 storeys each.  These blocks, with little gap in between, obstructed the views not just from the other flats (which, it was accepted, was not a proper planning consideration) but from public vantage points, notably the coastal path. 

[10]      Meantime, in or about February 2010, the new proposed Dunfermline and West Fife Local Plan had been drafted.  In relation to the zoning for the site (proposal DGB 011), it was recorded correctly that it already had outline planning permission for commercial leisure and housing uses.  However, the proposal continued as follows:

“Should the planning permission remain unimplemented and expire the site should remain undeveloped and revert thereafter to greenspace.”

No reason was given in support of this proviso to the proposal.

[11]      The applicants’ agents submitted representations opposing the proposal in a letter dated 19 April 2010 which, leaving aside some of its more triumphal aspects, stated:

“This is an area of land that has historically been in commercial use.  The principle of development has been set out in the Development Plan since 1990 and the Reporter’s Decision of 6 November 2007 provides recent confirmation that this remains an acceptable location for development.  It is patently unreasonable to seek to revisit that principle when consent has so recently been granted.  The [respondents’] position is untenable and, given the content of the development brief … unworthy …

Our client won its planning appeal as recently as November 2007 with full costs …  Whilst the detail of the proposal is still to be resolved, the content of Scottish Planning Policy and the Structure Plan together with the planning history, indicates that were consent to lapse, it would be likely that a future planning application would be granted consent …”.

[12]      A group of reporters was appointed by the Scottish Ministers, in terms of section 19 of the Town and Country Planning (Scotland) Act 1997, to examine the draft plan in terms of the Town and Country Planning (Development Planning) (Scotland) Regulations 2008.  The regulations required (reg 20) the respondents to prepare a summary of “unresolved issues” relative to the plan and to:

“(2)(b) include, in the form set out in Schedule 4 –

(i)         a summary of each of the various issues …; and

(ii)        a statement of the reasons why [the respondents] did not modify the proposed plan in response to the issues raised in the representations …”.

They provided (reg 21) that the scope of any examination was “only” to assess the issues raised in unresolved representations.  There had been some 1,439 representations made in relation to 239 different sites.  The scale of the task for the respondents was accordingly considerable, as would be that of the reporters.

[13]      The respondents duly identified as an unresolved issue the applicants’ opposition to the site reverting to “open space” (sic) if planning permission lapsed.  Their reason for not accepting the applicants’ objection was stated to be:

“The site has significant planning history and was the subject of recent planning appeal.  The Draft Local Plan … maintains [the respondents’] position should the permission remain unimplemented.”

It is of note that Scottish Natural Heritage had not opposed the principle of development but, due to the site’s “sensitive location, design should be sympathetic to location and at an appropriate scale”.  The local community did not oppose development, other than in relation to the scale of the housing component.  Individual representations appeared sympathetic to at least the commercial element of the applicants’ plan.

[14]      The reporters set about their task, which involved examining 43 separate issues.  There was a series of unaccompanied site visits and, in relation to some issues (but not proposal DGB 011), the reporters requested further information, as they were permitted to do under regulation 22 at any stage of the examination.  There were two hearings on housing land strategy in November and December 2011.  Yet further information was sought up until 3 May 2012.

[15]      Meantime, on 28 February 2012, after detailed discussion of the design aspects of the proposed development had taken place between the applicants and the respondents’ planning officers in light of the reporter’s findings, a fresh application was submitted for the construction of 24 flats, a restaurant/bistro and a lighthouse.  The respondents again failed to determine the application timeously and the applicants appealed once more to the Scottish Ministers. 

[16]      On 3 May 2012, which as noted above was the same day as the reporters had ceased their ingathering of information, the applicants attempted to draw the new application to the attention of the reporters.  They stated that the support of the respondents’ planning officers for this application was inconsistent with the terms of the respondents’ proposal to allow the site to “revert to greenspace”.  Under reference to the Regulations, and to the relative planning circular (1 of 2009) the reporters declined to consider this new information.

[17]      On 11 June 2012, the reporters produced their examination report.  They noted, in relation to the proposal for the site, that:

“50      Site DGB 011 is a promontory of overgrown land adjoining a small harbour and new housing development [emphasis added].  The open nature of the site allows extensive views across the Firth …  It was designated as a commercial leisure facility site in the Dunfermline and Coast Local Plan as the site had permission for a pub/restaurant.  Two subsequent applications were dismissed on appeal …  Both … concerned the provision of 27 flats, a restaurant/bistro and a lighthouse.

51        … This is a sensitive coastal site, which may be overlooked from the new development and public vantage points including a coastal path.

…

52        The … outline planning permission has now lapsed.  In these circumstances I support the council’s proposal as a basis against which any future applications would be assessed.  No modification to the local plan is required.”

On 16 November 2012 the respondents formally adopted the Plan. 

[18]      On 30 January 2013, the Scottish Ministers dismissed the applicants’ appeal in respect of their fresh application for planning permission on the basis that it did not accord with the terms of the new Dunfermline and West Fife Local Plan, wherein the proposal, now read (pp 50-51) as follows:

Submissions
Applicants
[19]      The applicants sought an order quashing only the final sentence of the last column of the proposal and, as a fall-back position, the whole entry.  They founded upon the respondents’ failure to give reasons (reg 20(2)(b)(ii)) for their refusal to modify the Plan by removing the proviso complained of prior to its adoption.  It had been particularly important for the respondents to give proper planning reasons for this, given the earlier finding by the reporter in 2007 that no sound planning grounds had existed for refusing to grant outline planning permission for a commercial leisure and residential development.  The reporters had not noticed the respondents’ failure, nor had they sought out the respondents’ reasons (reg 22).  The reporters had thereby failed to have regard to national planning policy and guidance, which reinforced the need for proper reasons to be given (Scottish Planning Policy, February 2010; Planning Circular 1 of 2009).  The lack of reasons meant that the reporters could not have properly scrutinised whether the proviso was appropriate or not.

[20]      The applicants criticised the reporters’ refusal to have regard to the applicants’ fresh application for planning permission (cf Tesco Stores v Aberdeen City Council 2012 CSIH 81).  This new material had not been available when the applicants had first made representations against the draft Plan, but it was relevant to the unresolved issue.  The reporters appeared to have been under the erroneous impression that development of the site was no longer a live issue because the applicants’ planning permission had lapsed by the time of their examination when, in fact, it had not.

[21]      The reporters had had an erroneous and incomplete understanding of the planning history of the site.  They were mistaken in their belief that the reason for the designation of the site in the 2002 Plan was that the site had permission for a pub/restaurant (para 50, supra).  In fact, the relevant permission was not granted until 2007.  Thus, it was not clear that the reporters had been aware of, or had proper regard to, the fact that the outline planning permission had been granted relatively recently.  The reporters had also failed to have regard to several relevant considerations, notably that: the site is brownfield and, therefore, a priority site for development; the site has, historically, been in commercial use; a proposed restaurant, bar and housing at the site had been included in the “masterplan” in 1992; a bistro and housing had been included in the planning brief; and outline planning permission had been granted in November 2007 for commercial leisure and residential development.  Neither the respondents nor the reporters had addressed the applicants’ representations on those points.  As a result, the reporters had erred in considering that it was appropriate for the site to “revert” to “greenspace”; the site never having been greenspace in terms of its planning history. 

[22]      The reporters had failed to appreciate that, in principle, the site remained suitable for commercial leisure and housing development.  They had failed to explain the change in circumstances since that conclusion had been reached.  They had failed to have regard to the core principle underlying the planning system; that confidence was reinforced through the efficient and predictable preparation of plans (SPP, February 2010).

[23]      The reporters had failed to give adequate and intelligible reasons for their own recommendation that no modification to the Plan and, specifically, the disputed proviso, was required.  It was not clear what the reporters had meant by their reference to the site as a “sensitive coastal site” or why such a designation might require that there be no development.  The respondents had previously considered that development sympathetic to the coastal location was possible by ensuring high standards of design and environmental quality.  It was unclear what the reporters had meant by the site being “overlooked” from the “new development” (supra); the site could not overlook itself and the loss of a desirable private view from an existing housing area was not a material planning consideration.  In any event, that was not an issue that arose for consideration by the reporters and went beyond the proper scope of the examination (reg 21).

[24]      The proviso to the proposal ran contrary to another of the core principles underpinning the planning system; that planning constraints should be imposed only when necessary and proportionate (SPP, February 2010).  Any concerns arising from the sensitive coastal location of the site could be dealt with by way of sensitive and appropriate design.  At the very least, the reporters had to explain why this was not the case.  In any event, the reporters had erred in failing to consider whether the site should be allocated for development for commercial leisure use, even if it was not to be allocated for housing. 

[25]      The respondents’ failure to provide reasons in compliance with the statutory requirement could not be anything other than prejudicial (Wordie Property Co v Secretary of State 1984 SLT 345, LP (Emslie) at 348).  The applicants had suffered prejudice to the extent of owning a site which they wished to develop, but could not do so as a result of a proviso which had never been satisfactorily explained or justified.  Even when planning judgment was involved, the planning authority had to give adequate and intelligible reasons for its decision (Hallam Land Management v City of Edinburgh Council 2011 SLT 965, Lord Malcolm at 966).  It was not sufficient merely to recite a series of assertions and the duty to address and deal fairly with points raised by the parties was not elided in such circumstances (ibid).

[26]      On a plain and ordinary reading of the legislation, the 1997 Act and 2008 Regulations were not to be interpreted in a manner whereby a planning authority was prevented from modifying a plan if that were necessary to correct fundamental errors.  It had been open to the respondents to decide that their original decision was one that no reasonable council could have reached and that, notwithstanding the reporters’ recommendation to the contrary, the proposal could have been modified. 

Respondents

[27]      The respondents emphasised the importance of context and proportion when examining the reasons provided by the reporters who had been dealing with a plethora of issues and objections (Uprichard v Scottish Ministers [2013] UKSC 21, Lord Reed at paras 44, 46 and 48).  It would have been completely impractical for the reporters to have issued the equivalent of a full decision letter in respect of each of the large number of sites under examination.

[28]      Standing the reporters’ recommendation that no modification was required, the respondents had had no power to do anything other than to adopt the proposal (1997 Act, s 19(10)(a)(ii); Planning Circular No 1 of 2009).  The applicants ought to have sought judicial review at the stage of the reporters’ decision.  The respondents could hardly be criticised for their adoption of the Plan, as that adoption was inevitable. 

[29]      It had been too late to seek to include details of the fresh planning application in the reporters’ examination.  In any event, the planning officers’ support of the fresh application was irrelevant, as the reporters allowed for a detailed application to proceed so long as outline permission was extant.  The reporters had not relied on an erroneous impression that outline permission had lapsed.  Had they done so, the logical result would have been to delete the first half of the proposal relative to the existence of that permission.  In any event, the permission could no longer be implemented and had lapsed by the time that the respondents had adopted the Plan. 

[30]      It had been open to the applicants to judicially review the respondents’ lack of reasons at the time when they had originally been published.  The respondents had been obliged to publish those reasons (reg 20(3)(b)).  It had been a matter for the reporters whether they required any further information (reg 22; Planning Circular No 1 of 2009, para 72; Simson v Aberdeenshire Council 2007 SC 366, Lord Abernethy at para [23]).  Parliament had intended that there would be a “cut off” date for the ingathering of information, which in this case was at a point prior to the examination report being drafted (Tesco Stores v Aberdeen City Council (supra), Lord Carloway at para [25]). 

[31]      It was a matter of planning judgment whether development, for which outline permission had been granted, remained suitable in principle.  It was a relevant consideration that there had been support for development of the site from at least 1990 and none had taken place.  Drafting the new local plan required a fresh consideration of the whole area in terms of identifying the sites that were suitable for development.  There was no requirement that, once development had been approved in principle, it would always remain so upon any reconsideration.  The reporters were entitled to rely on the failure to develop the site as a significant factor (Tesco Stores v Aberdeen City Council (supra)), which was implicit in their reasoning.  The applicants had made a number of unsuccessful attempts to develop the site and had been aware of the proposed change to the local plan since 2009.  They had failed to devise a successful detailed planning application in the intervening years. 

[32]      The view of the reporters had been that, all attempts having failed, and considering the sensitive nature of the site in a prominent location on the promontory of the old harbour, development should no longer be supported and the site should be altered to greenspace.  Whilst the site had not been greenspace in planning terms, and so the word “revert” was not entirely apt, it was greenspace in physical terms, having been vacant since 1983.  It had been a material planning consideration to take account of the public views of the harbour site.  Whilst a desirable private view was not a material consideration, the whole setting of the harbour was relevant and it was of significance that it was overlooked by a significant number of residential units and public areas.

[33]      It had been clear to the reporters that the site had been designated for development.  The reporters were entitled to set out the planning history of the site in short form.  They did not need to make explicit references to core planning principles and government policy.  It was evident that the reporters had had proper regard to the 2010 detailed planning decisions. 

[34]      The change in the respondents’ policy, compared to that adopted in 2007, had been the result of the consultation process and the procedures by which the draft local plan had been developed, including discussions in committee.  That process and procedure had not been recorded in writing, but the process had nevertheless been transparent.  It was implicit in their reasoning that the reporters’ decision had been based on the sensitivity of the site and the length of time for which it had remained undeveloped.

Decision
[35]      There was no requirement for the reporters to have taken into account the material which the applicants sought to introduce after the respondents had lodged their reasons for not modifying the draft Plan in light of the applicants’ representations.  In Tesco Stores v Aberdeen City Council [2012] CSIH 81, the court explained that the statutory scheme, for examination of local development plans under the 1997 Act, involved a “cut-off date” at the point when the reporter had completed the examination.  That principle was sufficient to deal with the contention there that, at the point when they adopted the plan, the local planning authority (ie not the reporter) had failed to take into account their own knowledge of circumstances of which the reporter had been unaware.  The court was not suggesting that up until the completion of his report, a reporter is bound to consider any representations made. 

[36]      The statutory scheme is relatively clear.  The examination is to assess issues raised in unresolved representations; that is to say it commences after the point at which an objector to the proposed plan has already made his representations (Town and Country Planning (Development Planning) (Scotland) Regulations 2008, reg 21).  Indeed, it starts after these have been summarised by the local planning authority and that authority has given its reasons for not modifying the proposed plan in response to the issues raised in the representations (ibid, reg 20).  There is no scope for the submission of further representations introducing new matter or responding to the newly expressed reasons given.  The reporter is empowered to call for further representations or information, but that provision (ibid, reg 22) is not one which requires a reporter to consider any offers to provide additional material or submissions.  Quite the contrary, it is one which allows the reporter an option to request further material etc, no doubt normally in circumstances where he feels that what he has been presented with is incomplete. 

[37]      The court accordingly endorses, as a correct reflection of the statutory provisions, paragraph 72 of the Planning Circular 1/09 Development Planning that:

“There is no provision for those who have made representations or the planning authority/SDPA to submit any further material to the examination beyond this unless required to do so by the appointed person.  This important shift of emphasis reinforces the front-loading of the process, ensuring that the appointed person, the planning authority and other interested parties have the relevant information up-front to inform the examination of the plan.  It will be important too in meeting the requirements for strategic environmental assessment that full information on sites and alternative options is submitted early and not held back until the later stages of plan preparation or even the examination.”

In this case, the cut-off point had long since passed by the time the applicants sent their letter of 3 May 2012.  By then, in any event, the reporters had already taken their decisions on what additional representations they wished to hear, in terms of regulation 22. 

[38]      There are two material flaws in the planning process, which have resulted in the adoption of that part of the Local Development Plan which relates to the harbour site (now proposal DGB 010).  First, no reasons were given by the respondents for not modifying the proposed plan in terms of the applicants’ representations.  The provision of these reasons was a statutory requirement (reg 20(2)(b)(i)).  It is readily accepted that, in the context of the considerable exercise of summarising “unresolved representations” and supplying reasons, the local planning authority should not be criticised for doing so in a succinct, broad manner (see Uprichard v Scottish Ministers [2013] UKSC 21, Lord Reed at para 48).  Nevertheless, intelligible reasons have to be given, although in the particular circumstances here, that is not so much so that the applicants should know the reasons but so that the reporters could do so and thus understand the scope of the issue which they had to resolve.

[39]      The respondents’ explanation of their position was opaque.  All that is said is that “The Draft Local Plan … maintains [the respondents’] position should the permission remain unimplemented”.  That could be sufficient if it were possible to discern what the respondents’ position actually was.  Their former position, at the 2007 inquiry, was that commercial leisure, but not residential, development was appropriate for the site.  That inquiry had established that the respondents were wrong in relation to proper planning considerations and that a mixed commercial leisure and residential development was appropriate.  If the respondents wished to alter the reporter’s findings established at the inquiry, it was incumbent upon them to furnish some reason, preferably in the form of some material change in circumstances, for such an alteration.  That reason would have to provide some coherent justification not only for departing from the findings of the reporter as recently as 2007 but also as to why the respondents were no longer supporting the principle of development which they themselves had promoted in the planning brief of the same year and with which the applicants had at least attempted to comply.  In the absence of such a reason there is no apparent justification in planning terms for leaving an area of privately owned ground in amongst what is an urban development as, in effect, wilderness, especially in circumstances where it had formerly been the site of a bustling commercial harbour and remains what appears to be a prominent element in the local planning context.

[40]      The effect of this flaw in the respondents’ reasoning was, accordingly, that the issue before the reporters was not properly focused as it should have been in terms of regulation 20.  That flaw might have been cured by the reporters calling for more information in terms of regulation 22, but that was not done.  Thereafter, the second flaw, perhaps inevitably, emerged; that being the absence of an intelligible reason from the reporters as to why the principle of commercial leisure and residential development established in 2007 was no longer appropriate for the site.  Interpretation of the reporters’ reasoning is problematic.  Once again, it is recognised immediately that a sufficient reason for supporting the respondents’ position could be a very short one and state simply that the reporters agreed with the respondents’ position.  As the basis for an operative decision which will effectively bind the respondents relative to the adoption of the plan (1997 Act, s 19(10); cf Town and Country Planning (Grounds for Declining to Follow Recommendations) (Scotland) Regulations 2009), such a reason must leave the informed reader in no real and substantial doubt as to what the reason was and what the reporters did, and did not, take into account (Wordie Property Co v Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 349).  If the reporters intended simply to endorse the reasons of a planning authority, the validity of that endorsement depends upon the intelligibility of the authority’s own reasons.  As already observed, the reasons of the respondents here were inadequate.

[41]      The reporters provide an erroneous, or at least materially incomplete, narrative of the planning history of the site in stating that it was designated as “a commercial leisure facility site” in the 2002 local plan “as the site had permission for a pub/restaurant”.  Although the 2002 plan was not produced, it is not disputed, as narrated above, that the site was designated for commercial and leisure use for reasons unconnected with any permission for a pub/restaurant.  There was no suggestion that any such permission existed.  It was, of course, the case in 2007 that outline planning permission had been granted for a mixed commercial leisure and residential use.  It is perhaps a cause for concern that the establishment of this use, which must be regarded as a particularly important feature of the planning history of the site, is not specifically mentioned by the reporters.  However, the court is prepared to accept that the reporters must have been aware of the outline permission, given that it is referred to in the proposal itself and it is noted as a feature of the draft local plan.  Yet despite this and specific reference having been made to the refusal of the applications for detailed permission, the reporters provided no intelligible reason for holding the principle of commercial leisure and residential use to be reversible in the event that the existing permission was not implemented.   The court is prompted to wonder whether the reporters were aware of the content of the reporter’s 2007 decision letter.

[42]      Be that as it may, the reporters’ focus is on the sensitivity of the “coastal site”, which they state “may be overlooked from the new development and public vantage points”.  If the reference to the “new” development is the Tay Homes development, which it seems to be given the earlier reference to it (para 50, supra), then this is not a proper planning consideration and did not form part of the remit for examination.  Finally, it is accepted by the respondents that there was another error in the report where it says that outline planning permission “had now lapsed”.  At the time of the examination it had not lapsed, but nothing turns on this, given the conditional nature of the proposal as approved without modification.  By the time of that approval, it had lapsed. 

[43]      At the hearing on the application, and for the first time, it was submitted that the true reason for the respondents’ proposal was that, despite the long planning history, there had been a failure to present any acceptable detailed development scheme and that this had justified a change in use allocation.  However, that is nowhere expressed in writing and, furthermore, the court does not accept that there has been any significant degree of inertia since the principle of development of the site for commercial leisure and residential use was established in 2007.

[44]      The reasons given by the reporters are accordingly materially deficient.  The next issue is what effect that has.  In terms of section 238(2)(b) of the 1997 Act, if the court is satisfied that the interests of the applicant have been substantially prejudiced by the failure to comply with the requirements of the regulations (which it is), it may “wholly or in part quash the plan either generally or in so far as it affects any property of the applicant”.  The applicants invited the court to quash only that part of the proposal concerning reversion of the site to greenspace in the event of a non-implementation of the outline permission.  However, it is not appropriate to quash only part of the development status since that would, in this particular instance, leave that status as being that the site has outline planning permission for commercial leisure and housing use, which is technically incorrect.  The whole proposal will be quashed, leaving the site as “white space” in the development plan, but with the principle of development for commercial leisure and residential use having been established in late 2007 and lasting until November 2012.

[45]      Finally, as a matter of procedural propriety, without seeking to press the issue as a fundamental one of competency, the respondents submitted that it was questionable whether the present proceedings came too late in the planning process.  After all, the challenge is to the adoption of the proposal, yet the respondents had no option but to adopt it, once they had received the reporters’ findings.  It was said that the applicants could have challenged the lack of reasons now complained of by judicial review at the time they became known to them.  Whether such a review would have been competent, in the absence of exceptional circumstances, may be doubted.  The issue of reasons by both the respondents and the reporters formed part of the process leading up to the adoption of the local plan.  It is that adoption which can be made the subject of a statutory application under section 238 of the 1997 Act.  Prior to such adoption, there would at least be a question of whether judicial review was open to the applicants given the existence of an alternative statutory remedy.  What is certainly established is that, in terms of the statute, a challenge at this stage on the grounds of procedural irregularity, by means of a section 238 application, is competent.

[46]      For those reasons the order of the court is to quash the last four columns of the proposal DGB 010 on pages 50 and 51 of the Dunfermline and West Fife Local Plan adopted in November 2012; that is to say, the columns which include the words and entries for Use Class/type, Estimated Capacity etc, Lead agency and Status/development requirements etc.  Thus, the proposal now reads: