13 March 2023

LSA wins first planning appeal case

Legal Services Agency has successfully appealed a decision which granted planning permission for a luxury housing development on woodland at Portessie in Moray.

In November 2021, Moray Council’s Local Review Body granted planning permission for a proposal to build seven houses on Slochy Woodlands near Buckie. Planning permission had been refused by the Council at an earlier date.

Had it gone ahead, the development would have resulted in the loss of Slochy Woodlands. The Save Slochy Woodlands Campaign Group was established by people living nearby who objected to the loss of their local greenspace.

Our client grew up near Slochy Woodlands and continues to use them as an adult. He is a member of the Campaign Group ‚Äď and he instructed Legal Services Agency to appeal the decision to the Court of Session.

Planning authorities are required to make their decisions in line with the local development plan unless there are ‚Äėmaterial considerations‚Äô to the contrary. The proposal in this case was contrary to the local development plan policy on preserving green corridors.

The Local Review Body decided that the proposal was an ‚Äúacceptable departure‚ÄĚ from the local development plan based on ‚Äúcommunity benefit‚ÄĚ in terms of housing and the school roll.

The Court of Session found that the decision constituted an error of law and quashed the decision.

The Court explained that a small increase of 3 pupils was not a material consideration (paragraph 34), and that housing could not be a material consideration because it had been excluded as a reason for departing from the open space policy in the local development plan and had also been taken into account when the local development plan was written (paragraph 37).

This is an important decision for our client, the Portessie community and for Legal Services Agency as our first planning appeal case.

Legal Services Agency’s Ben Christman was solicitor for our client. We are grateful to Scott Blair who represented our client as counsel in this case and Laura McDonagh/Drummond Miller who acted as our Edinburgh agents.

This case was referred to LSA by the Environmental Rights Centre for Scotland (ERCS). The ERCS is a charity which assists members of the public and civil society to understand and exercise their rights in environmental law and to protect the environment. The ERCS refers environmental/planning law cases to LSA where clients require representation in court actions and where the client is eligible for legal aid.

Read the decision in full here: 2023csih11.pdf (scotcourts.gov.uk)