OGILVIE HOMES LIMITED AGAINST THE SCOTTISH MINISTERS

Factual and Procedural Background

This appeal arises from the refusal by the Scottish Ministers' reporter of an appeal against North Lanarkshire Council's refusal to grant planning permission for a proposed development of nine detached two-storey houses on approximately 0.99 hectares of land in the Westerwood area of Cumbernauld. The appellant, a house builder, had previously submitted two applications for development on the same site, both refused for reasons including road safety and environmental concerns related to trees and bats. The current appeal challenges the reporter’s interpretation of relevant local development plan policies, particularly DSP4 and HCF1, and the failure to properly consider prior planning decisions relating to the site.

Legal Issues Presented

1. Whether the reporter erred in the interpretation of policy DSP4 (Quality of Development) of the North Lanarkshire Local Development Plan (LDP) 2012, particularly regarding its application to the proposed development.
2. Whether the reporter misapplied policy HCF1 part B concerning the protection of community facilities shown on the proposals map.
3. Whether the reporter failed to properly account for previous planning decisions covering the same site and adequately justify any departure from them.

Arguments of the Parties

Appellants' Arguments

• The reporter misinterpreted DSP4 by treating it as a policy to determine whether development should occur on the site, rather than as a policy focused on the quality of development once the principle of development is accepted.
• DSP4 requires an appraisal of the site’s character and features, which the appellants had properly provided, and the development met the quality criteria under parts 2 to 4.
• The reporter incorrectly treated part 2 of DSP4 as a prohibition against development rather than a safeguard to be applied in context.
• The reporter erred in interpreting policy HCF1B as applying to the entire site, whereas only part of the site (area 1) was designated as a community facility on the proposals map.
• The reporter failed to give proper weight to earlier planning decisions on the same site, which had been made in the same policy context and had not found the development contrary to DSP4 or HCF1 except for specific issues no longer relevant.

Respondents' Arguments

• The key issue was whether the need to preserve the site as a valued community facility outweighed the factors favoring development, a matter of planning judgment properly exercised by the reporter.
• Policy DSP4 addresses not only design but how development fits into the community, including ensuring adequate provision and protection of open spaces and green networks.
• Area 2, although not formally designated as a community facility, was rightly considered by the reporter as a valuable local asset meriting protection.
• The reporter was entitled to place limited weight on previous planning decisions, which had been refused on different grounds and did not guarantee consent if those were addressed.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the structure and purpose of the North Lanarkshire LDP policies DSP1 to DSP4, clarifying that DSP4 concerns the quality of development rather than the principle of whether development should occur. The reporter erred by using DSP4 as a basis to refuse development on grounds that the site should remain open space, which is outside the scope of DSP4. The court noted that the appellant had complied with DSP4 part 1 by producing a site appraisal and that the development met the quality criteria under parts 2 to 4, including architectural standards.

The court found the reporter misinterpreted policy HCF1 by applying it beyond the designated community facility area, treating an undesignated area as a protected community facility without basis in the LDP. This was a clear policy misapplication.

Furthermore, the court stressed the importance of consistency in planning decisions. Although previous decisions are not binding, a reporter must explain reasons for departing from them. The reporter failed to adequately explain why his decision differed materially from previous reporters’ decisions on the same site and issues, undermining the reasoning of the refusal.

Holding and Implications

The court ALLOWED the appeal and quashed the reporter’s decision dated 22 January 2020.

The direct effect of this ruling is that the refusal of planning permission on the basis of the reporter’s interpretation of policies DSP4 and HCF1, and his treatment of previous planning decisions, is overturned. No new precedent was established; the decision clarifies the proper interpretation and application of the relevant local development plan policies and the necessity for planning decision-makers to provide clear reasoning when departing from prior decisions.