Calmac Developments Limited v. Dumfries and Galloway Council, 18 September 2015 – reduction of settlement boundary and effect on housing development

Background
Outer House case considering a planning appeal[1] arising out of Dumfries and Galloway Council’s adoption of the Dumfries and Galloway Local Development Plan 2014 (the 2014 LDP).

Calmac owned the Woodland’s House Hotel, situated between Woodlands and Newbridge to the north-west of Dumfries, and also had an interest in promoting a small scale housing development around the hotel.

Prior to the adoption of the 2014 LDP[2] the hotel (and Woodlands and Newbridge) lay within the settlement boundary of Dumfries. However, as a consequence of the adoption of the 2014 LDP the settlement boundary changed and the hotel then fell outside the boundary meaning that an application for the development around the hotel would be dealt with under different and, it was argued, more restrictive housing policies.

When, what was to become the 2014 LDP, was published as a Proposed Local Development Plan Calmac had made representations[3] to the Council regarding the proposed plan. However, a reporter (appointed to resolve unresolved representations) recommended that no modification be made to the plan in the area of Calmac’s property.

Arguments
Calmac appealed on the basis that the reporter had failed to consider its representations regarding the change in the Dumfries settlement boundary. Further, it contended that the reporter had failed to take account of a representation that Newbridge should have been reclassified as a village in the event the settlement boundary was moved (which would have resulted in less restrictive housing policies applying to the proposed development).

Decision
Lord Turnbull rejected those arguments and refused the appeals.

It was found that, although the representations made by Calmac regarding the position of the Dumfries settlement boundary had included a statement that Newbridge was not designated as a village (and went on to show that more restrictive housing policies would apply as a result), it did not suggest that the absence of the designation was incorrect or inappropriate.  As such, when considering Calmac’s representations, it was only necessary to provide reasons relating to the placement of the Dumfries settlement boundary. The reasons given by the Council and reporter in that respect (that the decision had been taken by identifying an appropriate and defensible boundary for the settlement of Dumfries, identifying a landscape buffer and reaching the conclusion that the housing needs of the area were otherwise met) were held to be an exercise of understandable planning judgement and, as such, were adequate.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

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[1] Under s238 of the Town and Country Planning (Scotland) Act 1997.

[2] Under the Nithsdale Local Plan 2006.

[3] As they were entitled to do under s18 of the Town and Country Planning (Scotland) Act 1997.

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