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Bryan-Heaney-0005_prvThe Supreme Court is currently hearing an appeal from the Inner House of the Court of Session, Second Division, in the case of Uprichard v The Scottish Ministers [2011] CSIH 59, 2012 SC 172.  The hearing started today, and will continue tomorrow.

Background

The town of St Andrews in Fife is famous wee place.  It is known to nearly everyone for being the location for the opening scene of Chariots of Fire, oras “the home of golf“, or being where Wills met Kate.

The suggestion in the Fife Structure Plan 2006-2026 (approved by an Order of the Scottish Ministers dated May 2009) that 1,000 houses, a bypass and a business park could be added to the town of 6,500 houses, in order to make St Andrews an “economic driver for Fife” did not appeal to many of the residents of the ‘Auld Grey Toon’.  

The start of the dispute

During the consultation period for the proposals one of the residents, Penny Uprichard, sent a letter of objection.  This contained a number of objections to the proposals in the plan, but in particular, she objected to the proposed development for the area referred to in the plan as “St Andrews West”.

At the end of the consultation period, a finalised structure plan was published, along with (a) a schedule of reasons for making certain modifications to the original plan and (b) a schedule of reasons for not making other, certain modifications that had been suggested during the consultation period.

In response to the objections about the development in St Andrews West, the finalised plan stated that “scope for further development to the west of St Andrews exists subject to mitigation.”  This was “reason 33” for not making modifications to the original plan.

Penny Uprichard took her objections to the finalised structure plan (which included, but were not limited to, the decision about development in St Andrews West) to the Court of Session by way of application under section 238 of the Town and Country Planning (Scotland) Act 1997 (the “Act”).

The application

Section 238 gives the Court a power, rather than a duty, to set the plan aside, in whole or part, where substantial prejudice is caused to an applicant by the plan being “outside the powers conferred by … [the] Act”, or by failure to comply with relevant requirements or regulations.  These are very narrow grounds for review and success only opens the door to the Court’s discretion to set the plan aside.

Ms Uprichard’s application was unsuccessful in the Outer House of the Court of Session ([2010] CSOH 105).  On appeal to the Inner House she narrowed her grounds to a contention that reason 33 (as set out above) was inadequate for the decision that was ultimately made (the “Reasons Challenge”), and the finalised plan was therefore in breach of Regulation 6 of the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 (the “Regulations”).

The law

The law on what constitutes giving adequate reasons for decisions made by a public body is well-settled.  The Lord Ordinary and Inner House rejected Penny Uprichard’s Reasons Challenge on the basis that, read in context, the reason for not modifying the original plan to take her objections into account was entirely intelligible and well supported by material.

In any event, even if there had been a breach of the Regulations, neither the Lord Ordinary nor Inner House would have quashed the finalised structure plan, in whole or in part, because that would have frustrated the overall policy embodied in the plan and stopped local plans being developed and implemented.

The case before the UKSC

Because the Supreme Court still doesn’t publish the case papers in advance of hearings, I do not know what the grounds of appeal are or what arguments will be advanced before the UKSC.    But, if the appeal has been made to simply reargue the Reasons Challenge, the Supreme Court probably won’t take long to deal with it in favour of the Respondents.

The panel hearing the appeal is to be made up of Lord Hope, Lord Kerr, Lord Reed, Lord Carnwath and, sitting for the first time as an Acting Judge of the Supreme Court, the recently appointed Lord Justice-Clerk, Lord Carloway.  He will be part of a panel reviewing the decision of a Division chaired by his predecessor in that post, Lord Gill, who is now the Lord President of the Court of Session, the most senior judge in Scotland.