Miller Homes wins appeal against Scottish Ministers over reporter’s refusal of planning application

MILLERMiller Homes Limited has successfully appealed against the decision to refuse a planning application for a new residential development over the potential loss of environmental land.

Judges in the Inner House of the Court of Session quashed the decision after ruling that the reporter’s conclusion was “vitiated by error of law”.

The housebuilder appealed under section 239 of the Town and Country Planning (Scotland) Act 1997 against a decision of a reporter appointed by the Scottish Ministers to dismiss an appeal to them against the refusal of the local planning authority to grant an application for planning permission.

The application which was made by the developer to East Lothian Council was for planning permission in principle for “residential development with landscaping, road improvements and associated works” at Ferrygate Farm, North Berwick.

Judges heard that the reporter had refused the application after finding that the proposed development did not minimise loss of prime agricultural land and so infringed Policy DC1 in the East Lothian Local Plan and was contrary to Scottish Planning Policy.

However, in his decision the reporter stated the local plan required review because of its age and that there was new guidance in the form of the Strategic Development Plan for Southeast Scotland (SESplan). For these reasons, the reporter explained that only “limited weight” was attached to the conflict.

Nevertheless, he concluded that the proposal infringed local plan policy regarding the loss of prime agricultural land and that this was significant.

The reporter also found that that while the local infrastructure and housing land supply aspects gave considerable support to the proposed development, the spatial aspects of development plan policy were firmly against the proposed development.

Miller Homes argued that that since the reporter had concluded that he could attach little weight to the first paragraph of Policy DC1 of the East Lothian Local Plan, it was “illogical and irrational” for him then to give crucial weight to that same policy.

Further, it was submitted that the new SESplan contained no provision requiring avoidance of the loss of prime agricultural land and the reporter’s reliance on the Scottish Planning Policy was “misplaced”.

The judges allowed the appeal after ruling that the reporter appeared to have “misconstrued” Policy DC1 and that the “misinterpretation” was the source of the “irrationality” of which the appellants complained.

Delivering the opinion of the court, Lord Eassie said: “Having resolved, in paragraph 79 of his decision that, for the reasons which he gives, only limited weight might be attributed to the opening paragraph of DC1 it was not open to the reporter then to give to subparagraph (d) of paragraph 5 of Policy DC1 a weight or autonomy divorced from the rest of that policy.

“In these circumstances we have come to the view that the reporter’s conclusion respecting the agricultural land issue is indeed vitiated by an error of law. That conclusion formed an important part of his ultimate decision that the appeal should be refused. We therefore consider that on this issue alone the appeal succeeds and that the decision falls to be quashed.”

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