Duntiglennan Fields: Court of Session case hinges on single bullet point

A Court of Session hearing on July 15 marked the culmination of years of battles between residents and politicians against housing developers wanting to put homes on Duntiglennan Fields above Duntocher.

The six-hour virtual hearing repeatedly came back to a handful of paragraphs and figures within hundreds of pages of public housing policies covering the west of Scotland.

Duntiglennan Fields was not mentioned once. The near unanimous opposition by residents and elected politicians was not relevant to this appeal, nor were any concerns about the location or its impact on the area.

Barratt Homes applied to build houses in the fields. They then appealed to the Scottish Government because West Dunbartonshire Council (WDC) was taking too long to consider it.

The council then rejected the planning application and approved a local development plan that opposed homes in the greenbelt land.

But the government’s planning reporter then decided the 100 homes could go ahead because Clydebank had a short-term private housing shortfall. The reporter said the council was required to approve the housing under a regional document called Clydeplan.

Councillors instructed council bosses to appeal. That lead to last week’s hearing in front of Lord Carloway, Lord President of the Court of Session, sitting with Lord Menzies and Lord Turnbull.

Lord Carloway is pictured in his office in Parliament House, Edinburgh. 1st December 2010. Picture by JANE BARLOW.

In Clydeplan, West Dunbartonshire Council area has a defined target of how many homes are needed for social housing.

For private housing supply, Dumbarton and the Vale is its own area. But Clydebank doesn’t exist as a separate area in Clydeplan.

Instead, Clydebank is part of the Greater Glasgow North West (GGNW) housing sub-market area, which includes East Dunbartonshire and part of Glasgow.

The planning reporter who granted the appeal for Barratt Homes, said Clydebank’s need for private homes was a fundamental part of GGNW.

That regional need - and a temporary Clydebank shortfall in housing before Queens Quay homes are built - is enough to “trigger” a requirement that Duntiglennan Fields homes are approved.

The council’s QC told the Court of Session that the reporter’s conclusion was “perverse”. He referred to the Clydeplan’s columns and itemised requirements.

Duntiglennan Fields have repeatedly had bids from developers

In the first column of policy eight, the third bullet point requires “a minimum of five years effective land supply at all times” for both a local authority area and the sub-market area. If not, then the second column requires a council to “take steps to remedy any shortfalls”.

Douglas Armstrong QC said: “Just because the reporter concludes in relation to Clydebank there is a shortage, that cannot be a justification for them going to the second column of policy eight and assessing the site against various criteria. That’s not the trigger or activation point.”

He pointed out the Clydeplan doesn’t use the word “Clydebank” because the town is part of the wider sub-market of GGNW.

Mr Armstrong said Scottish Ministers now “accepted there was an error” by the reporter over a handful of words in parentheses. That bit, in turn, was “the only basis for the reporter’s finding”.

And he said the reporter’s interpretation, if followed, could have potentially “far reaching consequences” for the Clydeplan.

Mr Armstrong said it was an “irrational argument” that a shortfall in the “small geographical” area of Clydebank meant there was a shortfall overall across the GGNW area.

He said: “The reporter has misinterpreted policy eight, or if not, has not set out a basis why he would conclude there was a shortfall in the GGNW area.

“No party suggested a shortfall in Clydebank meant there was a shortfall in the overall GGNW area. That would be perverse.

“The reporter is accepting he has no factual basis; Scottish ministers are accepting that the parentheses point is an error.”

He further said it was “devoid of logic”.

There are two parcels of land in the Duntiglennan Fields application

Paul Reid, QC for Scottish Ministers and the planning reporter who approved the Barratt Homes bid, told the court: “If there is a shortfall in the Clydebank area, is that sufficient to trigger policy eight in the Clydeplan? That’s answered by whether we are taking a literal approach or a more purposeful approach.”

He said if the court accepted the Clydeplan should be interpreted literally, then the appeal should succeed. If not, then the appeal should fail.

Lord Carloway said the problem was Clydeplan linked Clydebank with north-west Glasgow.

Mr Reid replied: “If we have to shut our eyes to what Clydebank should contribute because of an over-supply in GGNW and West Dunbartonshire, then there will never be a trigger.

“I accept I run into difficulties on a literal and strict reading, but the Ministers defend what the reporter did.”

Lord Carloway said: “I understand the argument, but it strikes me as you could look at various districts, whether towns or villages, and if you can identify a shortfall in those areas, then it’s enough to trigger policy eight, and I’m struggling with that.”

Mr Reid said it was “not fair” for the council to accept there was a housing shortfall in their local development plan, but then claim a reporter’s decision based on that was “perverse”.

James Findlay QC, acting for Barratt Homes, said there was “nothing perverse” with the decision by the planning reporter.

He said: “Someone has to grapple with how the demands of the housing sub-market are met.

“The approach taken by reporters is not inconsistent with policy eight.”

Mr Findlay said the reporter had applied a level of detail that policy eight didn’t help with.

Lord Carloway said they would issue a decision “as soon as we can”.

No copies of submissions to the court by the council, government or Barratt Homes were available to the Post before or after the hearing.