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Petition of Roseanna McPhee for Judicial Review of a decision by Perth and Kinross Council (Court of Session)

Smart Summary

Anonymized Summary of Judicial Review Decision

Factual and Procedural Background

This opinion concerns a petition for judicial review of the Respondent's grant of planning permission for the construction of a brewery, tap room and related works at a site in The City, adjacent to The Cottages on Ferry Road. Company A submitted the planning application on 18 October 2023. The proposed site included an area at or adjacent to land described as ancient woodland and involved removal of established trees with compensatory replanting proposed.

The Petitioner resides at a nearby location referred to in the decision as Residence, which is of historic and cultural significance to the Gypsy Traveller community; the Petitioner and other residents at Residence identify as Gypsy Travellers. The Petitioner objected to the proposal on a number of grounds, including potential harassment of local Gypsy Traveller residents by patrons of the proposed tap room and detrimental impact on ancient woodland.

The Respondent originally granted planning permission on 5 June 2024. The Petitioner sought judicial review of that decision arguing, among other things, that the Respondent failed to consider the potential detriment to ancient woodland. The Respondent conceded unlawfulness on that ground and the earlier decision was set aside in terms of a joint minute.

The Respondent reconsidered the application and on 12 February 2025 again granted planning permission. The present petition challenges that later decision on two principal bases: (1) alleged inadequacy of reasons for departure from the development plan (specifically in relation to ancient woodland) and (2) alleged failure to comply with the Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 in respect of Gypsy Traveller residents.

Legal Issues Presented

  1. Whether the Respondent's decision notice and the material adopted by it (including the Report of Handling) provided adequate, intelligible reasons for a departure from the development plan in relation to the protection of ancient woodland (NPF4 policy 6(b)(i)).
  2. Whether the Respondent complied with its Public Sector Equality Duty (PSED) under section 149 of the Equality Act 2010 in the exercise of its functions when granting planning permission, taking account of the interests of local Gypsy Traveller residents.

Arguments of the Parties

Petitioner's Arguments

  • The decision notice contained no substantive reasons: it provided conclusions but not adequate reasons explaining the departure from the development plan, specifically the decision's treatment of NPF4 policy 6(b)(i) concerning loss of ancient woodland.
  • The Report of Handling could not be relied upon to supply reasons that were absent from the decision notice; even reading the Report of Handling, the informed reader would be unable to understand what material considerations justified departing from the NPF4 policy.
  • Reference to authority requiring intelligible and adequate reasons (as cited in the petition) supported the contention that the absence of reasons in the decision notice was fatal.
  • On the PSED, the Respondent failed to have due regard to eliminating discrimination, advancing equality and fostering good relations under section 149: it did not carry out reasonable enquiries into the impact of siting a public house next to a culturally significant traveller site, did not sufficiently consider the risk of harassment identified by objectors, and did not demonstrate a rigorous, substantive assessment informed by guidance (including technical guidance from the equality body and other materials).
  • Because Gypsy Travellers share the protected characteristic of race, the decision required substantive and documented consideration of the PSED, which the Petitioner submitted was not done.

Respondent's Arguments

  • The reasons were adequate when read as a whole: the decision letter, together with the Report of Handling (including the tree officer's consultation response), set out the assessment of ancient woodland, concluded that loss would be limited or de minimis, and referred to compensatory planting and conditions to address tree works.
  • The officer's Report of Handling addressed paragraphs specifically dealing with potential ancient woodland loss and concluded the non-compliance with NPF4 was relatively minor and outweighed by other material considerations (notably economic benefits). The planning committee followed the officers' recommendation, making it legitimate to rely on the report for a succinct decision letter.
  • Regarding the PSED, the Respondent accepted that the Petitioner and other residents share the protected characteristic of race and contended that it had had due regard to equality matters during processing of the application. The Report of Handling addressed concerns about effects on the traveller community (including noise and air pollution) and the Petitioner had opportunities to make representations; the weight to be given to equality considerations was within the Respondent's planning judgment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court in This Opinion
Local Authority A v Appellant [2004] 1 WLR 1953 Requirement that reasons must be adequate, intelligible, deal with substantive issues and enable an informed reader to understand conclusions on principal controversial issues. The court relied on this authority to frame the adequacy test for reasons and applied it to conclude that, read with the Report of Handling, the decision provided adequate reasons.
Individual A v Local Authority B 2023 SC 197 Principle that reasons, however brief, must be given and one cannot necessarily look beyond the decision letter for reasons. The court acknowledged the authority but held that reference to the Report of Handling was legitimate in the present context and that reasons were adequate when read with that report.
Local Authority B v Government [2006] CSIH 41; 2006 SC 691 Acceptance that reasons should be read as a whole and that concision of reasoning is often appropriate. Cited to support the proposition that concise reasons can be adequate and that the report to committee is an important document informing the reasons.
Judicial-review claimant A v Local Authority C [2010] EWCA Civ 1286 Guidance on the circumstances in which fuller reasons may be required, particularly where members depart from officer recommendations. Used to justify that a brief decision letter may be adequate where members follow officer recommendations and there is no indication of disagreement.
Company A v Government Department 1984 SLT 345 Original articulation that reasons need only deal with substantial questions in issue in an intelligible way. Applied to underline that reasons need not address every possible consideration and should be read holistically.
Local Authority D v Individual B 2011 SC 513 Principle that reasons should be read as a whole and context matters. Referred to in support of reading the decision and the Report of Handling together.
Company C v Local Authority E 2014 WL 979032 Summary of legal principles concerning material considerations, planning judgment and limits of judicial review. Cited for the proposition that planning merits are for the decisionmaker and judicial review focuses on process.
Company D v Local Authority F [2007] EWHC 1714 Observations on adequacy of reasons and surrounding circumstances. Endorsed as helpful authority for considering how briefly reasons may be expressed.
Company E v Local Authority G [2006] EWHC 1604 Commentary relevant to member/officer dynamics and reasoning obligations. Referenced to support the approach that reports may suffice if members follow officer recommendations.
Company F v Local Authority H (1997) 1997 WL 1106106 Statement that criticisms of officers' reports will not usually merit review unless they significantly mislead the committee on material matters. Applied to the present case to support the view that the Report of Handling was not misleading and the committee followed officers' advice.
Company G v Local Authority I [2012] EWHC 3708 Reports must be read fairly and not subjected to excessive textual exegesis. Used to justify a fair reading of the Report of Handling rather than demanding overly detailed analysis.
R v Local Authority J ex parte Individual C (2000) 80 P&CR 500 Officer expertise and judgment in preparing reports for members. Referred to when assessing the role and weight of an officer's report in committee decision-making.
Judicial-review claimant B v Government Dept [2013] EWCA Civ 1345 Modern exposition of PSED obligations: duty is non-delegable, must be exercised in substance, with rigour and open mind, and requires recording of steps taken. Central to the court's analysis of whether the Respondent discharged its PSED; the court used the authorities summarized there to assess whether the Respondent had given due regard.
Judicial-review claimant C v Government Dept [2008] EWHC 3158 Principles on the quality of consideration required under equality duties and the need for substantive assessment. Relied upon by both parties; the court used its principles to evaluate whether the PSED had been properly considered in substance.
Company H v Home Department [2007] EWHC 199 Importance of recording steps taken to meet statutory equality requirements. Referred to as supporting the view that evidential recording of steps is an important element of demonstrating discharge of PSED.
Company I v Department of Health [2005] EWCA Civ 154 Decision maker cannot be taken to know what officials know; focus on what the decision maker actually took into account. The court applied this to examine whether decision-makers personally had due regard to equality issues.
Individual D & Individual E v Local Authority K [2008] EWHC 2062 Duty to assess risk and extent of adverse impact and to gather relevant information where necessary. Cited in the PSED discussion to illustrate the duty to assess and, where material, to acquire relevant information.
Organisation A v Local Authority L [2019] PTSR 488 Context-sensitive approach to the PSED: sometimes matters in section 149(1) need not be adverted to if they are irrelevant to the decision. Used to support the proposition that the extent of regard depends on context and relevance to the decision at hand.
Individual F v Local Authority M [2016] AC 811 Supreme Court guidance that the extent of 'due regard' is fact-sensitive and depends on what is appropriate in all the circumstances. Cited to underscore that the weight and extent of PSED consideration are fact-sensitive and not prescriptive.
Individual G v Local Authority N [2011] PTSR 565 Parliamentary intention behind equality duties and the need for greater awareness of legal consequences. Referenced in broader discussion of the purpose and sensitivity of PSED obligations.
Claimant H v London Councils [2011] EWHC 448 Range of regard expected under PSED from high to low depending on context. Cited to explain that 'due regard' may range from high to low depending on factual circumstances.
Local Authority O v Organisation B [2013] EWHC 211 Instances where it may be appropriate for a decision-maker not to advert to PSED if irrelevant to the action. Used to support that not every decision requires detailed equality analysis where the matters appear to have no bearing.
Company J v National Park Authority [2022] CSIH 56; 2023 SC 105 Examples of how PSED operates in the Scottish planning context and the balance between inquiry and reliance on submissions made to decision-makers. Applied as a comparator: the court noted that, where the decision-maker addresses the specific problems raised by objectors, there is no need for an inquisitorial inquiry beyond the material before the decision-maker.
Individual H v Local Authority P 2025 CSIH 13 Recent Scottish Inner House observations on the operation of section 149 and context sensitivity of equality assessments. Referred to as fortifying the court's approach that not every decision requires an equality impact assessment and that context matters.
Association A v Local Authority Q [2014] EWHC 348 Emphasis on prudence and caution when intervening in decisions made by democratically accountable planning bodies. Used to remind the court of the limited scope of intervention in planning judgments.
Company K v County Council [2011] UKSC 2 Planning decisions involve planning judgment and weight to be given to material considerations is for decision-makers. Applied in support of the proposition that weight is a matter for the planning authority, not the court.
Company L v Government Dept [2003] 2 AC 295 General principle that planning decisions are for democratically accountable decision-makers. Referenced in the discussion of the limited role of judicial review in substituting judicial assessment for planning judgment.
Claimant I v Local Authority R [2011] EWHC 1840 Caution against imposing unnecessarily high standards on officers' reports. Relied on to support a pragmatic approach to the sufficiency of the Report of Handling.
Claimant J v Local Authority S [2009] EWHC 559 Distinguishing general regard from specific, conscious regard to statutory equality criteria. Used to emphasise that a general consideration of equality is not the same as a specific, documented assessment where required.
Claimant K v Local Authority T [2011] EWCA Civ 1586 Approval of the distinction between general and specific regard to equality obligations. Cited in the PSED analysis to show accepted limits of the duty.
Claimant L v Local Authority U [2009] EWCA Civ 941 Officials must be rigorous in enquiring and reporting to decision-makers about matters material to PSED. Referred to in assessing whether officials had adequately reported equality-related concerns to the decision-makers.
Individual I v Government (Taylor v Scottish Ministers (No 2)) Limits on inquisitorial duties of decision-makers; decision-makers reach recommendations based on submissions rather than conducting independent inquiries. Used as an example that decision-makers are not required to undertake an inquisitorial examination beyond the material put before them.
Police Chief v Police Board [2005] CSOH 32; 2005 SLT 315 General principle: in judicial review it is generally inappropriate to advance arguments based on material not available to decision-maker. Applied to reject reliance on documents or detailed arguments that were not part of the decision-making materials.
Individual J v Organisation C 2008 ETZ4 (WR) Employment tribunal judgment referenced by Petitioner as supporting background on discrimination experienced by Gypsy Travellers. Cited by the court as part of the petitioner's factual material but not determinative of PSED compliance in the planning context.
Local Authority V v Government Dept [2008] EWCA Civ 148 Judicial review is concerned with events having substantive legal consequences and not every administrative detail. Referred to in context of explaining limits of judicial review of planning decision-making.
Individual K v Local Authority W [2022] EWCA Civ 457 Observation that section 149 does not mandate production of an assessment at any particular moment. Used in support of the court's view that not all decisions require a formal equality assessment at a specified stage.

Court's Reasoning and Analysis

The court proceeded in two linked strands of analysis: (A) adequacy of reasons for departure from the development plan on the ancient woodland issue; and (B) compliance with the PSED.

A. Adequacy of Reasons

  1. The court reviewed established principles on reasons: reasons must deal intelligibly with the substantial questions in issue and be read as a whole; concise reasons can be adequate; the context in which a decision is made matters (including whether members follow officer recommendations).
  2. The Petitioner argued that the decision notice contained only conclusions and no reasons, and that the Report of Handling could not fill the absence of reasons on the decision notice. The court considered authorities cited by both sides, including the leading tests for adequacy.
  3. The court rejected an overly puristic rule that confines the interested reader strictly to the decision letter. It concluded that, in the circumstances of this case, reference to the Report of Handling was legitimate and appropriate because the committee had followed the officers' recommendation and there was no indication that members disagreed with the report's reasoning.
  4. The Report of Handling (specifically paragraphs identified in the report) expressly addressed the presence and extent of ancient woodland, noted that the core of the proposal did not contain trees while accepting peripheral ancient woodland at the eastern edge, and concluded that loss would be limited; it recommended conditions (including compensatory planting and tree protection measures) which were imposed as conditions on the permission.
  5. Read together, the decision letter and Report of Handling provided an intelligible account of the material considerations, the assessment of the woodland, the balancing exercise (economic and other benefits against a minor woodland impact), and the conditions intended to mitigate harm.
  6. The court therefore held that the reasons were adequate: the informed reader would not be left in real and substantial doubt as to why the Respondent decided as it did. The petitioner's challenge on this ground failed.

B. Public Sector Equality Duty (PSED)

  1. The court accepted that the Petitioner and other residents at Residence are members of a group sharing the protected characteristic of race (Gypsy Travellers), and that the Respondent was under a duty to have due regard to the matters in section 149.
  2. The court summarized established law on the PSED: the duty is non-delegable, must be exercised in substance, with rigour and an open mind, and is context-sensitive as to the extent of regard required; it is generally inappropriate to rely on material that was not before the decision-maker.
  3. The court examined the Report of Handling and the material placed before the Respondent. The Report of Handling addressed the petitioner's equality concerns (including potential for harassment and pollution effects) and placed those matters within the planning balancing exercise; the petitioner had opportunities to make representations and was active in the process.
  4. Given the context—a routine planning application where the contested concerns were not central planning criteria and where the Report of Handling specifically considered those concerns—the court concluded that the Respondent had given due regard in a manner appropriate to the circumstances. The court observed that the PSED does not always require a separate equality impact assessment or an inquisitorial duty to acquire further material where the matters have been addressed and recorded in the decision-making materials.
  5. The court therefore dismissed the PSED challenge, concluding that the Respondent's consideration of equality matters was sufficient in substance and recorded in the materials before the decision-makers.

Holding and Implications

Holding: The court refused the remedies sought by the Petitioner. The court's core rulings are summarized as follows:

CORE RULING: The petitioner's challenges to the February 2025 decision on the grounds of (a) inadequacy of reasons in relation to departure from the development plan concerning ancient woodland, and (b) failure to comply with the Public Sector Equality Duty under section 149 of the Equality Act 2010, were dismissed. The Respondent's decision stands.

Implications:

  • Direct effect on the parties: The Respondent's grant of planning permission (12 February 2025) is affirmed for the purposes of this judicial review; the court refused the remedies sought by the Petitioner and reserved expenses for later determination if not agreed by the parties.
  • On legal principles: The court reiterated and applied established authorities concerning (i) the adequacy of reasons (allowing concise reasons when the officer's report supplies context and members follow recommendations) and (ii) the context-sensitive operation of the PSED (the duty requires substantive regard appropriate to the circumstances and documented consideration where material). The decision does not purport to establish new legal principle but applies existing authorities to the facts.
  • No fresh precedent was laid down; the court emphasised the limited supervisory role of judicial review in planning matters and the importance of reading decision letters and officers' reports as a whole.

Note: All names, locations and identifying references in this summary have been anonymized and mapped to generic placeholders used consistently throughout this document. The summary is based exclusively on the material contained in the provided opinion.

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Petition of Roseanna McPhee for Judicial Review of a decision by Perth and Kinross Council (Court of Session)

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Petition of Roseanna McPhee for Judicial Review of a decision by Perth and Kinross Council (Court of Session)
(Nov 5, 2025)