De minimis Loss of Ancient Woodland under NPF4 Policy 6(b)(i) Can Be Outweighed; Adequate Reasons May Be Supplied by a Report of Handling

De minimis Loss of Ancient Woodland under NPF4 Policy 6(b)(i) Can Be Outweighed; Adequate Reasons May Be Supplied by a Report of Handling

Introduction

In [2025] CSOH 102 (Outer House, Court of Session), Lord Cubie dismissed a judicial review petition brought by Ms Roseanna McPhee challenging Perth and Kinross Council’s decision to grant planning permission for a brewery, tap room, and associated development at Ferry Road, Pitlochry, adjacent to an area of ancient woodland and close to Bobbin Mill, a location of cultural significance to the Gypsy Traveller community. The developer was Wasted Degrees Holdings Limited.

The dispute had an unusual procedural history. An earlier grant of permission (5 June 2024) had been reduced by joint minute after the Council conceded it had failed to consider ancient woodland impacts under National Planning Framework 4 (NPF4). Following reconsideration, the Council granted permission again on 12 February 2025, attaching conditions and relying on a Report of Handling (RoH) which assessed woodland and equality concerns.

The petition advanced two principal grounds:

  • Adequacy of reasons: It was argued the decision notice contained no reasons and that the Council had failed to lawfully explain a departure from the development plan (which includes NPF4) in light of NPF4 policy 6(b)(i) on ancient woodland.
  • Public Sector Equality Duty (PSED): It was contended the Council failed to fulfil its duties under section 149 of the Equality Act 2010 in relation to Gypsy Travellers living nearby, including by not making reasonable enquiries and failing to assess potential harassment risks associated with a tap room/public house next to a site of cultural importance.

Summary of the Judgment

The Court refused the petition. On reasons, Lord Cubie held that while the decision notice was brief and formulaic, it could be read together with the RoH. Taken as a whole, the reasoning was adequate. The RoH explicitly acknowledged that NPF4 policy 6(b)(i) was engaged because of a loss to ancient woodland, but assessed the impact as de minimis within the wider Bobbin Mill woodland, emphasised removal of dead and invasive species, retention of other trees, compensatory planting, and conditions for pre-works review, method statements, and post-development reporting (conditions 5–7). The Council was entitled, as a matter of planning judgment, to depart from NPF4 policy 6(b)(i) because the minor non-compliance was outweighed by material considerations, including economic benefits.

On the PSED ground, the Court held the Council had due regard to equality matters in context. The petitioner’s concerns were raised and considered in the RoH (including fears of harassment, noise and air pollution). The PSED is fact-sensitive, non-delegable, and does not mandate an equality impact assessment in every case, nor a specific consultation beyond what is needed to understand relevant impacts. The Council’s balancing of considerations, including equality concerns, was within its discretion; there was no legal error.

Detailed Analysis

Precedents Cited and Their Influence

The Court’s treatment of the adequacy of reasons relies on a longstanding line of authorities:

  • Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345: Reasons must deal with the substantial questions intelligibly, but need not address every point.
  • City of Edinburgh Council v MDN 2011 SC 513: Reasons are read as a whole.
  • South Buckinghamshire DC v Porter (No 2) [2004] 1 WLR 1953 at [36]: Reasons must be intelligible and adequate; address principal controversial issues; the required detail depends on context.
  • Moray Council v Scottish Ministers [2006] CSIH 41; 2006 SC 691: Courts accept concise reasoning; reasons are addressed to a knowledgeable readership.
  • R (Siraj) v Kirklees MBC [2010] EWCA Civ 1286: Where members follow officers’ recommendations, a brief summary of reasons is often adequate; if they depart, fuller reasons may be required.
  • R (Trashorfield Ltd) v Bristol CC (2014 WL 979032), Morge v Hampshire CC [2011] UKSC 2, R v Mendip DC ex p Fabre (2000) 80 P&CR 500, Oxton Farms/Samuel Smith (1997 WL 1106106), R (Zurich Assurance) v North Lincolnshire [2012] EWHC 3708 (Admin): Collectively emphasising that officers’ reports are central, addressed to a knowledgeable readership, and should be read fairly as a whole rather than with undue exactitude.

On PSED, the Court relied on:

  • R (Bracking) v SSWP [2013] EWCA Civ 1345 (with cross-references to R (Brown) [2008] EWHC 3158 (Admin), R (Elias) [2006] EWCA Civ 1293, R (Hurley & Moore) [2012] EWHC 201 (Admin), R (Meany) [2009] EWHC 559 (Admin), R (Domb) [2009] EWCA Civ 941): Setting out the core principles—due regard is a rigorous but context-sensitive duty of the decision-maker; it is non-delegable and should be evidenced, but there is no rigid requirement for an equality impact assessment.
  • Hotak v Southwark LBC [2016] AC 811: The weight and extent of due regard is highly fact-sensitive.
  • R (Jewish Rights Watch) v Leicester CC [2019] PTSR 488: In some contexts it can be justified not to advert expressly to s.149 if equality issues clearly have no bearing on the decision.
  • Gartmore House v LLTNPA [2022] CSIH 56; 2023 SC 105: In planning inquiries, the reporter should address equality issues raised, but not embark upon an “inquisitorial frolic.” It is sufficient to weigh the specific equality concerns advanced.
  • McLean v Aberdeen City Council 2025 CSIH 13: Not every public decision requires an equality impact assessment; judicial review focuses on actions with substantive legal consequences and the recording of due regard is helpful but not universally mandatory.

The petitioner relied on Bruce v Moray Council 2023 SC 197 to argue that reasons must appear in the decision notice and cannot be supplemented by other documents. Lord Cubie declined to adopt that “over puristic or legalistic approach,” aligning instead with Moray Council v Scottish Ministers and Siraj, permitting reliance on the RoH where the committee follows the officer recommendation and the documents are read together.

The Court’s Legal Reasoning

Adequacy of reasons and use of the Report of Handling

The decision notice’s “Justification” was acknowledged to be brief and formulaic: it stated that material considerations justified departure from the development plan and there were no material reasons for refusal. The Court accepted that brevity alone is not fatal where the decision is properly contextualised by the RoH and the committee followed the officer’s recommendation.

The RoH’s executive summary and paras 101–118 supplied the substance: the central development area was not ancient woodland; there would be some loss at the eastern periphery which engaged NPF4 policy 6(b)(i), but the effect was assessed as minimal; the works included removal of dead and invasive species; a number of trees would be retained; compensatory planting and robust conditions would protect and enhance the woodland’s ecological condition. This demonstrated why the Council considered the minor breach acceptable and why other material considerations (including economic benefits) justified permission.

Crucially, Lord Cubie rejected the contention that the court is confined to the decision notice in all circumstances. He described that as an “over puristic or legalistic approach” which would unduly restrict proper understanding of the decision-making process and overstate the court’s role in supervisory jurisdiction. Where, as here, members adopted officers’ reasoning, a concise notice read with the RoH was lawful and adequate.

NPF4 policy 6(b)(i) and “de minimis” loss of ancient woodland

NPF4 policy 6(b)(i) states that development proposals “will not be supported” where they will result in any loss of ancient woodland or adverse impact on their ecological condition. The RoH accepted there would be loss and therefore that the policy was engaged. However, the Court endorsed the Council’s assessment that the loss and effects were de minimis within the wider woodland context, particularly given the ecological improvements associated with removing dead and invasive species, and compensatory planting. Conditions 5–7 (pre-site meeting, method statement for removal of diseased trees/soil, and post-development reporting) were integral to the decision structure and formed part of the reasoning matrix.

Importantly, Lord Cubie held it is “not a contradiction in terms” to identify a de minimis departure from policy 6(b)(i) and still lawfully conclude that material considerations justify permission. In other words, NPF4’s “will not be supported” language does not operate as an absolute veto in the statutory scheme; departures remain possible where the decision-maker lawfully exercises planning judgment to weigh material considerations and explains that exercise with adequate reasons.

Weight and material considerations

The Court reaffirmed the orthodox position: what amounts to a material consideration is a matter of law, but the weight to be given is a matter of planning judgment for the democratically accountable decision-maker. Provided the decision-maker identifies the policy conflict and the material considerations supporting a departure—and does not misunderstand policy—the court will not reweigh merits. Here, the economic and other benefits were clearly identified in the RoH as the reasons for granting permission notwithstanding minor non-compliance with NPF4 policy 6(b)(i).

PSED compliance and scope

On PSED, the Court accepted that Gypsy Travellers are a protected group (race) and that the petitioner’s concerns—including the risk of harassment by patrons at a nearby tap room—were serious. However, it drew a firm distinction between the significance of the issues to the petitioner and the scope of the PSED in a routine planning decision. The equality duty is to have “due regard”; it is context-sensitive, non-delegable, and must be exercised with rigour and an open mind, but it does not require an equality impact assessment in every case, nor a bespoke inquiry or further consultation where the relevant information is already available and has been considered.

The Court noted:

  • The RoH recorded and addressed the petitioner’s equality-related concerns (paras 122–127) as part of the holistic planning assessment.
  • The Council questioned the petitioner at the June 2024 committee meeting, and her objections were before the Council when it reconsidered the matter.
  • There is no universal requirement to cite the Equality Act expressly in the ultimate decision, provided the substance of due regard is apparent; a specific reference at RoH para 42 reflected that PSED formed part of the overall consideration.
  • The Court will not rely upon policy and guidance documents (such as EHRC guidance) that were not before the decision-maker to impose additional procedural obligations in judicial review.
  • Not every equality concern is “core” to planning merits; the alleged harassment risk was not said to arise from an act of the Council, and planning controls (including conditions) addressed relevant environmental concerns.

On that basis, the PSED ground failed. The Council had sufficiently addressed the equality issues raised, balanced them, and reached a lawful planning judgment.

Impact and Practical Implications

This decision matters for three reasons: the treatment of NPF4 policy 6(b)(i), the approach to adequacy of reasons (decision notice plus RoH), and the scope of the PSED in routine planning decisions.

1) NPF4 policy 6(b)(i) is not an automatic veto

Although framed in absolute terms (“will not be supported”), NPF4 policy 6(b)(i) sits within the statutory scheme that still requires determination in accordance with the development plan unless material considerations indicate otherwise. Lord Cubie’s analysis confirms:

  • Decision-makers may lawfully depart from policy 6(b)(i) where the woodland impact is demonstrably de minimis, mitigation/compensation is secured by conditions, and other material considerations (e.g., economic benefits) outweigh the conflict.
  • The greater the loss or ecological harm, the harder it will be to justify departure; conversely, meticulous evidence that effects are minimal, mitigated, and offset will be critical.
  • The reasoning should clearly record that policy 6(b)(i) is engaged, identify the extent and nature of impact, and explain why material considerations justify departure.

2) Adequacy of reasons: decision notices can be brief if the RoH is adopted and is clear

The judgment reinforces that a concise or formulaic decision notice can be legally adequate when read with an RoH that is comprehensive and adopted by the committee. Practical pointers:

  • Where the committee follows the officer recommendation, courts are more likely to treat the RoH as the source of the reasons; brief notices are acceptable if the RoH covers the principal controversial issues.
  • Authorities should ensure the RoH explicitly addresses policy conflicts, sets out the balancing of material considerations, and links mitigation/conditions to the identified harms.
  • Objectors challenging reasons should be ready to demonstrate that, even read together, the notice and RoH fail to explain the decision on the main controversies or reveal a misunderstanding of policy.

3) PSED in planning: due regard is contextual; explicit equality impact assessments are not routinely required

The Court clarifies that, in planning cases:

  • Due regard must be evident in substance; specific citation of s.149 is not always necessary.
  • No general duty to conduct fresh outreach to objectors if their equality concerns are already present, understood, and addressed in the materials before the decision-maker.
  • Decision-makers should record equality concerns raised, explain how they were weighed, and, where appropriate, secure conditions to mitigate any relevant impacts.
  • Equality guidance not before the decision-maker will not, without more, found a successful JR—recording and addressing the actual equality issues raised in the process is key.

Complex Concepts Simplified

  • Development plan and material considerations: In Scotland, planning decisions must generally accord with the development plan (which includes NPF4) unless other material considerations indicate otherwise. Material considerations are factors that are legally relevant (e.g., economic benefits, environmental impacts, mitigation).
  • NPF4 policy 6(b)(i): A national policy that says development will not be supported if it results in any loss of ancient woodland or adverse impact on its ecological condition. Courts will still permit a lawful departure where the impact is de minimis and outweighed by other considerations, if explained with adequate reasons.
  • De minimis: A legal term meaning so minor or trivial that the law does not regard it as significant. Here, it refers to a very small extent of loss/impact within a larger woodland context.
  • Decision notice vs Report of Handling: The notice is the formal grant of permission. The Report of Handling is the officers’ report laying out assessment, policy analysis, and recommendations. If the committee follows the recommendation, the RoH can supply the detail behind a brief notice.
  • Public Sector Equality Duty (PSED): Requires public bodies to have due regard to the need to eliminate discrimination, advance equality of opportunity, and foster good relations (Equality Act 2010, s.149). It does not always require an equality impact assessment or separate consultation; the duty is fulfilled if the decision-maker’s materials show a genuine, rigorous, and context-appropriate consideration of equality impacts.
  • Conditions as mitigation: Planning permissions often include conditions to manage or mitigate impacts (e.g., tree protection plans, method statements, post-development reports). Conditions can be central to the reasoning that a development’s impacts are acceptable.
  • Reduction/quashing and reconsideration: A previous grant was reduced (quashed) because ancient woodland was not properly considered. The authority then reconsidered the application, this time addressing woodland impacts and imposing conditions.

Conclusion

Lord Cubie’s decision in Petition of Roseanna McPhee provides two important clarifications in the Scottish planning context:

  • On reasons: Decision notices may be concise. Courts will read them alongside the Report of Handling where the committee adopts the officer recommendation. Adequacy turns on whether the main controversies are intelligibly addressed when documents are read together.
  • On NPF4 policy 6(b)(i): Even with the robust wording “will not be supported,” a departure can lawfully be justified where the loss to ancient woodland is de minimis, ecological enhancements and compensatory planting are secured, and other material considerations outweigh the conflict—provided that is clearly reasoned.

On the PSED, the Court confirms that due regard is a practical, context-sensitive obligation. It does not invariably require an equality impact assessment or bespoke, additional enquiries where the equality issues have been raised, recorded, and weighed as part of the planning assessment. The Council’s consideration of the petitioner’s concerns, set within the broader policy framework and secured by conditions, was sufficient to discharge the duty.

Overall, the judgment reinforces a pragmatic approach to both adequacy of reasons and equality compliance in planning, while giving practical guidance on how to handle NPF4’s ancient woodland policy when the real-world effects are demonstrably minimal and responsibly mitigated.

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