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Council Wins Railfreight Appeal


29/08/16


The Inner House of the Court of Session ruled that the Scottish Ministers failed to give “proper, adequate and intelligible reasons” for overturning a reporter’s recommendation that permission for the proposed development of the Mossend International Railfreight Park (MIRP) in Bellshill should be refused.


Lady PatonLady Smith and Lord Drummond Young heard that in October 2013 the interested parties, Peter D Stirling Ltd and the Trustees of the I D Meiklam Trust, applied to the appellants, North Lanarkshire Council, for planning permission for the expansion of Mossend railhead, which included additional rail sidings and the development of a freight terminal known as Mossend International Railfreight Park.

In September 2014 the local planning authority refused planning permission for the proposed development and the applicants, the interested parties, appealed to ministers against the refusal.


Exercising powers under paragraph 3(1) of schedule 4 to the Town and Country Planning (Scotland) Act 1997, the ministers directed that they would determine the appeal themselves rather than having the decision made by a reporter appointed by them.

A reporter was appointed to make recommendations and his report dated 5 May 2015 concluded that the proposed scheme would not be in accordance with the development plan, and that material considerations that supported the development did not carry sufficient weight to justify the granting of planning permission.

For that reason the report recommended that the appeal should be dismissed and that planning permission in principle should be refused.

However, Scottish Ministers did not support the reporter’s recommendation and in a decision letter dated 3 August 2015 they upheld the appeal and granted planning permission in principle.


The council appealed to the Court of Session against that decision under section 239 of the 1997 Act, which, in subsection (5)(b), permits the court to quash an order or action “if satisfied that the order or action in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by failure to comply with any of the relevant requirements in relation to it”.

The appellants submitted that the Scottish Ministers had “failed to give proper, adequate and intelligible reasons for their decision”.

The appeal judges ruled that the ministers’ “short decision letter” did not contain “proper and adequate reasons” for reaching a conclusion that was contrary both to the reporter’s recommendations and the provisions of the Strategic Development Plan and Local Plan.

In particular, the ministers “failed to explain why they disagreed with the reporter on a number of critical issues”.

The court observed that ministers had “largely ignored” a number of serious concerns raised by the reporter, including the “damage to the green belt” and the “adverse impact” on nearby residential developments.

“Likewise, the reporter’s indication that the economic benefits of the proposed development should be treated cautiously appears to have been ignored in the decision letter,” the judges added.


Ministers also failed to address the “real prospect of closure of the Freightliner terminal and potentially a risk to other facilities in central Scotland” if Mossend was given the go-ahead.

Delivering the opinion of the court, Lord Drummond Young said: “For the foregoing reasons we are of opinion that the reasoning in Scottish Ministers’ decision letter does not meet the standard of intelligibility required for a decision overturning the clear and reasoned recommendations of the reporter.

“We consider that it could not be said the informed reader would be ‘in no real and substantial doubt’ as to what the reasons for the decision were, and in particular as to what the material considerations were which were considered to overcome the statutory presumption in favour of the provisions of the development plans.

“No doubt the decision maker is entitled to confine the letter to the determining issues, but in the present case no attempt is made to address a number of issues, arising out of the development plans and Scottish Planning Policy, which were highlighted by the reporter but appear to have been departed from, and indeed largely ignored, in Scottish Ministers’ final conclusions. These included the green belt, the impact on local housing, and the effect on other actual or potential rail freight facilities in central Scotland.

“We accordingly hold that Scottish Ministers failed to give proper, adequate and intelligible reasons for their decision to allow the appeal by the interested parties. For that reason we will allow the present appeal and quash the decision of Scottish Ministers.”