(First Division, Inner House) ED appealed from the adoption of a supplementary guidance (SG).
Held: The appeal succeeded. The First Division upheld three of the four grounds of appeal advanced. First, the court upheld the submission that the Authority had failed to comply with national policy on the use of planning obligations, holding that it was a fundamental principle of planning law, which was reflected in the Circular, that a condition attached to the grant of a planning permission, whether contained in a planning obligation or otherwise, must fairly and reasonably relate to the permitted development. The First Division accepted the distinction, which the reporter had drawn, between the sharing of costs among developments which had cumulatively required a particular investment in transport infrastructure on the one hand and the funding of a basket of measures, not all of which were relevant to every development. The court referred to the original Table 7.2 and held that many of the planned developments had no impact at all on several of the proposed infrastructure interventions. It added: ‘. . this applies to both Elsick and Blackdog relative to a number of the interventions. In respect of others the impact is de minimis’. The result was that the additional sentence in the SG about complying with the guidance in the Circular, which was added at the request of the Scottish Ministers, could not prevent the obligation to contribute to the Fund, in which contributions were pooled, from breaching the Circular. The First Division also upheld Elsick’s submission that there was no rational basis for relying on Table 3 of Appendix 2 of the SG (ie the revised table 7.2 of the CTA) to support the contention that a particular intervention was made necessary by reason of either a particular development or the cumulative effect of it along with other developments.
Judges:
Lrd Carloway
Citations:
[2016] ScotCS CSIH – 28, 2016 GWD 19-347
Links:
Statutes:
Town and Country Planning (Scotland) Act 1997 75, Planning etc (Scotland) Act 2006
Jurisdiction:
Scotland
Cited by:
Appeal from – Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Company Limited SC 25-Oct-2017
The court was asked whether, anticipating substantial growth, a local authority had power to attach to permissions for development conditions intended to recover sums for pooled fund for infrastructure development.
Held: The appeal failed. . .
Lists of cited by and citing cases may be incomplete.
Planning
Updated: 01 October 2022; Ref: scu.564408