Wright, Johnston & Mackenzie Solicitors

Reporter’s authority to request information from outside third parties at Appeal

A relatively little-known provision of the Town and Country Planning (Scotland) Act 1997 provides a useful means of obtaining information during an Inquiry which might not otherwise be forthcoming.

S.265 (4) provides that

“Subject to subsections (5) and (6), the person appointed to hold the inquiry may, on the motion of any party to it or of his own motion, serve a notice in writing on any person requiring him to attend at the time and place set forth in the notice to give evidence or to produce any books or documents in his custody or under his control which relate to any matter in question at the inquiry.”

The only basis on which such a request can be lawfully refused is that the information is subject to privilege (e.g. because it contains solicitor/client communications) or is otherwise confidential. Failure to comply with such a request is a criminal offence punishable by a fine, or imprisonment of up to 3 months. The request can be made to ‘any party’ – not just parties to the Inquiry. The request could be made at any stage of the process from the point where an Inquiry is fixed.

The person receiving the request can decline to provide the information or give evidence if they can demonstrate that the information is subject to privilege or is confidential. There is however no general right to withhold the information simply because it is commercially sensitive.

This has the potential to be a useful tool where a party has information central to your case at Inquiry which they might otherwise be reluctant to provide voluntarily. At a recent inquiry under s.36 of the Electricity Act where we acted for the developer of the proposed wind farm, the Reporter was persuaded to issue a request under the corresponding provisions applicable to Inquiries held under the 1989 Act (s.205 of the Local Government (Scotland) Act 1973) to a neighbouring wind farm developer, asking them to provide information about wind speed data and noise levels from their development. The information was subsequently produced.

The key will be persuading the Reporter that the information is required to enable a matter at issue in the Inquiry to be determined. Assuming you can overcome that hurdle it is a useful provision of which to be aware.

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National Planning Policy Framework

Of interest to our English clients and those considering development within England, will be the NPPF published at the end of March, which immediately replaced 44 previous PPS’s, PPG’s, Minerals Planning Guidance, Circulars and Letters to Chief Planning Officers.

The key change from the draft is that the final version removes the policy which provided for a default “yes” to sustainable development proposals. The presumption in favour of sustainable development is still retained however and applies unless any adverse impacts of a development would “significantly and demonstrably” outweigh the benefits. The NPPF also seeks to define sustainable development more clearly. Unlike the draft which appeared to place most weight on economic growth, the final version stresses that economic, social and environmental roles should not be undertaken in isolation as they are “mutually dependent”.

One of the issues in the draft NPPF which caused controversy was changes to the way the five-year housing land supply calculation was to be carried out. Local authorities must produce and update annually, a supply of specific deliverable sites sufficient to provide five years’ housing supply against plan requirements, with a buffer of 5%. The draft included a requirement for a buffer of 20%. The final plan has changed this so it will only apply where there has been “persistent under delivery” to provide housing by councils against their targets. In addition, councils can now make allowance for “windfall sites” (unforeseen sites) if they have compelling evidence that such sites have become available.

It is early days, but some people are interpreting the 20% to mean that councils will have to find 20% of land on top of their 5 year land supplies. The key consideration really is whether these steps will help deliver an increased supply of new housing or not, or whether by recognising and providing steps to compensate for under delivery, the NPPF is effectively sanctioning under delivery. This may be exacerbated by the allowance for windfall sites as is possible to envisage a situation where a council would now plan for under delivery, or perhaps over rely on windfall sites rather than allocating sufficient sites and maintaining a consistent buffer of available sites.

Depending on council’s reactions, we may see more appeals being allowed on the grounds that the 20% buffer is needed, the need to release more sites and/or the presumption in favour of sustainable development.

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Planning and Nuisance - Davis v. Tinsley

It is well established that compliance with conditions attached to a planning consent would not bar a claim for nuisance. The recently settled case of Davis v. Tinsley explores the relationship between planning and nuisance where a wind farm was operating within permitted noise limits as imposed by condition.

The case involved a nuisance claim brought by Mr & Mrs Davis in relation to an eight turbine windfarm on the grounds of noise. From the date of operation of the windfarm, the Davis’s complained of a “hum” sound from the turbines and a “thump” sound from the turbine blades through the air which they claimed interrupted their sleep, despite their property being just over 1km away.

The claimants did not object at the time to the application, so it may suggest that they genuinely were affected by the noise. The claimants made a number of complaints and so an independent investigator was appointed who produced a number of reports which concluded that there could be no statutory nuisance claim under the Environmental Protection Act (the noise did not meet the test that it was of such a level that was “prejudicial to health or a nuisance”) so the claimants raised a nuisance claim under the common law.

The claim was made on two bases:

- that the ES assessed different turbines from those that were constructed (this was done as a minor amendment but no plans were submitted to the council providing details)
- that the noise condition was not sufficient

It is difficult to draw conclusions as to the likely strength of either party’s case simply because they chose to settle rather than progress on to a conclusion. One inference is that the developers thought that the claimants had a reasonable case. However, it may be that even a very slight chance of the claimants succeeding may have been something the developers did not want to risk because of the possible wider implications for the industry. The case does still illustrate some practical issues which are of use for developers to bear in mind. The action was claimed against both the developers and also the landowners - which is permissible in an action of nuisance under the common law, a point worth noting for landowners entering into option agreements. No background noise monitoring was carried out at the claimants’ property, but rather the ES considered average background noises at a nearby location. This is a point worth noting for developers.

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Planning consultations

In a statement to Parliament Planning Minister Derek Mackay has just announced a number of new consultations (available on the Scottish Government’s website) as part of the continuing reform of the planning system. The consultations include:

Fees for Planning Applications – This consultation seeks views on new fee structures for planning applications, and whether increases in planning fees should be accompanied by improvements in planning service by councils.

Development Plan Examinations - This consultation seeks views on how the revised examination process for development is operating and seeks view on a range of options to improve the process.

Development Delivery - The purpose of this consultation is to seek views on the current processes in delivering development, and on options to aid the delivery of development and infrastructure.

Amendments to non-domestic elements of permitted development - Extending permitted development rights to some areas of non-householder development.

Miscellaneous Amendments to the Modernised Planning System - This explores various issues such as pre-application consultation, neighbour notification, the advertisement of planning applications, and approval of matters specified in condition.

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Supermarket Wars - Sequential Test

It is worth mentioning the case of Tesco Stores Ltd v. Dundee City Council where the Supreme Court explored the issue of the sequential test for retail. The sequential test is set out in Scottish Planning Policy 2010, and was also found in SPP8. The test is a hierarchy for the siting of retail development. As stated in SPP 2010, the sequential approach requires that locations are considered in the following order: a) town centre; b) edge of town centre; c) other commercial centres identified in the development plan; and then d) out of centre locations that are or can be made easily accessible by a choice of transport modes. It is clear from the wording of the rest of the policy that sites lower down the hierarchy should only be considered where those higher up the hierarchy are not suitable or available.

This begs the question as to what level of “flexibility and realism” (SPP 2010, para. 63) is required from developers considering alternative sites. Does the developer require simply to consider whether their proposed development as designed would be able to be accommodated in the town centre, or does the developer require to go further than this by looking at whether the basic development they wish to build could be modified to fit into the town centre.

The argument led by Tesco was that there might be a sequentially better site where, albeit the exact design envisaged by Asda could not be developed, a supermarket of some description suitable to meet Asda’s needs could nonetheless be developed.

The Supreme Court accepted that SPP 2010 makes it clear that developers need to be flexible, but recognised that this did not require developers to do anything beyond the need to show that they have given consideration to alternative sequentially preferable sites and assessed whether the development could be accommodated in a different form on those sites. When bringing forward out-of-centre sites developers need to show that they have rejected alternatives sites only after reasonable consideration and having been reasonably flexible.

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