Housing Development Cannot Override ENV5 Designation under Policy EP5: Analysis of [2023] CSIH 11: Scottish Court of Session

Introduction

The appellate case, Robert Bruce against Moray Council ([2023] CSIH 11), adjudicated by the Scottish Court of Session's Inner House, centers on the proposed residential development on land designated as ENV5: Green Corridors in the Buckie area. Robert Bruce, representing the Save Slochy Woodlands campaign group, appealed against the Moray Local Review Body's (MLRB) decision to grant planning permission for seven detached houses. The primary contention revolves around whether housing can be permitted on land protected under Policy EP5 of the Local Development Plan (LDP), which restricts changes in land use from designated open spaces to anything other than open space, excluding housing.

Summary of the Judgment

The Court examined the legality of the MLRB's decision to approve residential development on land designated as an ENV5 Green Corridor under Policy EP5. The policy explicitly prohibits housing development on such designated land except for essential community infrastructure (excluding housing) or site-specific opportunities. The appellant argued that the MLRB's decision lacked adequate reasoning and unlawfully prioritized housing over environmental designation. The Court concluded that housing cannot be considered a material consideration to override the ENV5 designation under Policy EP5, thereby quashing the MLRB's decision.

Analysis

Precedents Cited

The Judgment references several key precedents to support its analysis:

R (Bates) v Maldon DC [2019] EWCA Civ 1272 and Wordie Property Co v Secretary of State for Scotland for Scotland 1984 SLT 345 were cited to emphasize the necessity of adequate reasoning in planning decisions.
City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 highlighted the proper procedure for determining departures from the development plan.
Aberdeenshire Council v Scottish Ministers 2008 SC 485 established that certain material considerations cannot override the status given to the development plan by section 25 of the Act.
NLEI v Scottish Ministers [2022] CSIH 39 and South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953 reinforced that reasons for planning decisions need not be overly elaborate as long as they are adequate and intelligible.

These precedents collectively underscore the importance of adhering to established planning policies and ensuring that any deviations are legally justified with appropriate reasoning.

Legal Reasoning

The core legal issue was whether housing could be deemed a "material consideration" justifying a departure from Policy EP5, which restricts changes in use of ENV5 designated land to non-residential purposes. The Court analyzed:

Policy Interpretation: Policy EP5 clearly states that only essential community infrastructure (excluding housing) or site-specific opportunities identified in the settlement statement could override the ENV5 designation.
Material Considerations: The appellant argued that housing need and the minor increase in the school roll presented sufficient material considerations. However, the Court found these insufficient as Policy EP5 explicitly excludes housing as an exception.
Adherence to Development Plan: The Court emphasized that section 25 of the Town and Country Planning (Scotland) Act 1997 mandates that planning decisions align with the development plan unless outweighed by material considerations. Housing, being excluded from such exceptions in Policy EP5, could not override the environmental designation.
Procedural Compliance: The Moray Council had correctly incorporated the reporter's recommendation to maintain the ENV5 designation in the revised LDP. The MLRB failed to provide adequate justification for departing from this established policy, rendering their decision unlawful.

The Court concluded that the MLRB's consideration of housing as a material consideration was in direct conflict with the explicit exclusions outlined in Policy EP5, thereby constituting an error of law.

Impact

This Judgment reinforces the supremacy of local development plans in guiding planning decisions, especially regarding environmental designations. By explicitly ruling that housing cannot be a material consideration to override ENV5 designations:

Strengthens Environmental Protections: Environmental designations within local plans receive heightened protection, limiting the scope for development that contradicts these protections.
Limits on Local Authorities: Local Review Bodies and councils are constrained from prioritizing housing development over environmental policies unless other specified exceptions apply.
Clarifies Material Considerations: The Judgment provides clarity on what constitutes material considerations, emphasizing that certain policy exclusions must be respected unless legally overridden.
Guidance for Future Cases: Future planning appeals will reference this case when determining the legitimacy of using housing as a justification against environmental designations within development plans.

Overall, the Judgment upholds the integrity of local development policies and ensures that environmental considerations are not easily overridden by competing interests.

Complex Concepts Simplified

ENV5 Green Corridor

ENV5 refers to "Green Corridors," which are routes like old railway lines used for walking, cycling, or horse riding, connecting different areas within a town to surrounding countryside or parks. These corridors are part of a designated network aimed at preserving open spaces and environmental integrity.

Policy EP5

Policy EP5 is a specific guideline within the Local Development Plan that governs the use of land designated under environmental categories like ENV5. It restricts development that would change the land use from open space to anything else, with very limited exceptions.

h3>Material Considerations

In planning law, material considerations are factors that a planning authority must take into account when deciding whether to approve or refuse a development proposal. These can include economic, social, and environmental factors. However, certain policies explicitly exclude specific considerations (like housing in Policy EP5) from being treated as material in overriding designated land use.

Section 25 of the Town and Country Planning (Scotland) Act 1997

Section 25 mandates that planning decisions must follow the development plan unless there are material considerations that justify a departure. This ensures that local policies set in development plans carry significant weight in planning decisions.

Conclusion

The appellate decision in Robert Bruce against Moray Council [2023] CSIH 11 serves as a pivotal affirmation of the primacy of local development plans in Scottish planning law. By unequivocally stating that housing cannot be used as a material consideration to override an ENV5 Green Corridor designation under Policy EP5, the Judgment fortifies environmental protections and limits the scope for residential developments that contravene established local policies. This ruling not only clarifies the boundaries of material considerations in planning appeals but also ensures that environmental sustainability remains a paramount concern in urban and rural development. Stakeholders, including developers, local authorities, and community groups, must now navigate the planning landscape with a reinforced understanding of the constraints imposed by local environmental designations.

Housing Development Cannot Override ENV5 Designation under Policy EP5: Analysis of [2023] CSIH 11