Uprichard v Scottish Ministers & Anor (Scotland) [2013] UKSC 21

A St Andrews resident challenged Scottish Ministers' approval of the Fife Structure Plan, arguing their statement of reasons failed to answer her landscape-capacity objection. The Supreme Court dismissed the appeal, holding the reasons, read as a whole and in context, were adequate under section 10(10) of the 1997 Act.

Facts

The appellant, Mrs Uprichard, a resident of St Andrews, objected to Fife Council’s strategic proposals for the town contained in the Fife Structure Plan 2006-2026, believing they would cause irreversible damage to the town’s landscape setting. She objected at every available stage: by representations to the Council under section 8(1) of the Town and Country Planning (Scotland) Act 1997 (“the Act”), by objection to the finalised plan submitted to the Scottish Ministers, and by objection to modifications proposed by the Council and by the Ministers under regulation 18 of the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983.

Lord Reed set out the statutory scheme. A structure plan under section 7(1)(a) is a written statement formulating the planning authority’s policy and general proposals; regulation 6 requires the plan itself to contain a reasoned justification of those policies and general proposals. Lord Reed adopted the description of a structure plan given by Lord Justice Clerk Gill in the Inner House ([2011] CSIH 59; 2012 SC 172, para 23):

“A structure plan is that part of the statutory development plan that sets out the overall strategy on which development in the relevant area will be based… These policies are carried through in more detailed and site-specific ways in local plans and are ultimately implemented in ad hoc decisions on planning applications.”

The Council had commissioned the Grant report (2003), a landscape capacity assessment which found only limited areas (around 20-25 hectares) capable of development without damaging the landscape. The finalised plan nonetheless identified St Andrews as an “economic driver”, with land for 1,200 houses (later 1,000), a 10ha science park and a 10ha general business park, while stating at paragraph 4.5 that the local plan would set out “how, where and the extent to which St Andrews should grow”. The Ministers’ strategic environmental assessment acknowledged the potential for significant adverse landscape effects and concluded that expansion would require careful site selection and mitigation at local plan level.

Approving the plan with modifications in May 2009, the Ministers published schedules of reasons. Reason 33 summarised objections as asserting that “St Andrews is at its landscape capacity” and answered that the Grant study “indicates that some scope for further development to the west of St Andrews exists subject to mitigation”. The appellant applied under section 238(1)(b) of the Act to quash the plan. The Lord Ordinary (Lord Uist) refused the application and the Inner House refused a reclaiming motion, also finding her liable in expenses to Fife Council.

Issues

(1) Whether the Ministers complied with their duty under section 10(10) of the Act to “give such statement as he considers appropriate of the reasons governing his decision” when approving the structure plan with modifications, in particular whether reason 33 adequately addressed the appellant’s landscape objection. (2) If not, whether her interests had been substantially prejudiced for the purposes of section 238(2)(b). (3) Whether the Inner House erred in its award of expenses against her, having regard to the spirit of the Aarhus Convention.

Arguments

The appellant argued that the Ministers had misrepresented her objection. She had never contended that there was no landscape capacity whatsoever, but that the available capacity was inadequate to accommodate development on the scale proposed. Having “set up a straw man”, the Ministers knocked it down by observing that some scope existed; that was no answer, since the Grant report supported her case. She was substantially prejudiced because it was not apparent whether the Ministers had grappled with the impossibility of fitting the proposed development into the roughly 22 hectares identified as developable, leaving substantial doubt whether the decision was within powers (citing Save Britain’s Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153). On expenses, she complained that the Inner House had held against her a failure to disclose capital which the court had never requested, and a failure to apply for a protective expenses order when no established procedure then existed.

Judgment

The Supreme Court (Lord Reed giving the sole judgment, with which Lord Hope, Lord Kerr, Lord Carnwath and Lord Carloway agreed) dismissed the appeal.

Lord Reed held that the adequacy of reasons depends on the nature of the decision, its context, and the purpose for which reasons are given. Since it is the planning authority which must justify the plan’s policies under regulation 6 and section 7(2), the Ministers’ section 10(10) duty “cannot be intended to require them to provide a justification for the policies and proposals in the structure plan”. The reasons also fell to be read as addressed to persons familiar with the background and issues.

He endorsed the approach in Edwin H Bradley & Sons Ltd v Secretary of State for the Environment (1982) 47 P & CR 374, where Glidewell J applied the test in In re Poyser and Mills’ Arbitration [1964] 2 QB 467 (reasons must be proper, adequate and intelligible and deal with the substantive points raised), guidance accepted by Lord Scarman in Westminster City Council v Great Portland Estates plc [1985] AC 661.

Crucially, Lord Reed emphasised proportionality. The Ministers had received over 2,700 objections:

“If the Ministers were to be expected to address, line by line, every nuance of every matter raised in every objection, the burden imposed in such circumstances would be unreasonable.”

It was therefore legitimate to group objections by general tenor and organise them by chapter. As to the alleged misrepresentation, Lord Reed noted that the phrase “at its landscape capacity” appeared in the appellant’s own letter at the forefront of her landscape points.

He accepted that reason 33 did not address the broader point that the scale of development would damage the landscape setting, but held that reason 33 did not stand alone. Reasons 4, 5, 6, 17 and 22 together explained that the plan provided an appropriate level of environmental protection, that the strategy was consistent with government policy, that the housing allocation reflected projected growth, that the business proposals suited the town’s academic profile, and that the local plan would “articulate the strategic land allocation which can be accommodated subject to mitigation and landscape enhancement”. Although the Ministers might have spelled out the tension between economic growth and landscape protection and its resolution at local plan level, those matters were explained in the structure plan itself. Read together, the reasons gave an intelligible explanation, “especially to a well-informed reader such as the appellant”.

On prejudice, Lord Reed added that, read with the strategic environmental assessment (which acknowledged landscape risks and envisaged their resolution through the local plan), the reasons raised no doubt that the Ministers had failed to take account of a material consideration.

On expenses, the Court held the Inner House was entitled to treat as relevant her failure to seek a protective expenses order, the procedure having been clearly indicated by Lord Glennie in McArthur v Lord Advocate 2006 SLT 170; the adequacy of information about her means was a matter for the Inner House’s assessment and not open to re-argument.

Implications

The decision confirms that the Ministers’ reasons duty on approving a structure plan is distinct from, and narrower than, the planning authority’s duty to justify the plan’s policies. Reasons must be read as a whole, in context, and against the plan and accompanying assessments, and are addressed to informed readers. Where objections are numerous, grouping them by general tenor and responding in broad terms will not, without more, breach the duty.

The judgment is significant for planning practitioners and objectors: challenges based on reasons at the strategic plan stage will be difficult where the plan itself allocates detailed landscape and siting judgments to the local plan process. It also confirms that failure to seek a protective expenses order may properly count against a litigant later invoking Aarhus-type concerns.

The postscript carries wider institutional significance. Lord Reed observed:

“This appeal turned on the construction of particular documents. Although of importance to those affected by the outcome, the appeal did not on examination raise any arguable point of law of general public importance. It was not an appropriate use of the time of this court.”

Echoing G Hamilton (Tullochgribban Mains) Ltd v Highland Council [2012] UKSC 31 and Wilson v Jaymarke Estates Ltd 2007 SC (HL) 135, he reminded Scottish counsel that the certification requirement under Practice Direction 1.2.25 is the primary safeguard against abuse of the unusual right of appeal without leave from the Inner House.

Verdict: The appeal was dismissed. The Supreme Court held that the Scottish Ministers had complied with their duty under section 10(10) of the Town and Country Planning (Scotland) Act 1997 to give reasons, so that no ground arose under section 238 to quash the structure plan; the appellant’s challenge to the Inner House’s award of expenses against her was also rejected.

Source: Uprichard v Scottish Ministers & Anor (Scotland) [2013] UKSC 21