A very disappointing outcome to the Cairngorms legal challenge
Tim Ambrose, Autumn 2012
Members will justifiably have been wondering what was the outcome to the legal challenge mounted by The Cairngorms Campaign and others, and supported by the SWLG, to the housing policies of the Cairngorms National Park Authority as set out in the Local Plan – a challenge which was generously supported financially by many members last autumn.
The Case was heard in the Court of Session by Lord Glennie over four days from 10 to 13 January 2012, and his Opinion or judgement was issued on 21 September 2012. At 180 pages, it is a long read: Lord Glennie acknowledged that “.. this Opinion is considerably longer than I would have wished it to be, and it has taken longer to produce than I had hoped.”
You may read the full Opinion here, and in setting out the background law so clearly, Lord Glennie’s exposition is a very useful primer on much of the environmental and planning law relevant to Scotland’s wild land.
But to cut a long Opinion short – he rejected all the arguments put forward by The Cairngorms Campaign, and upheld the right of the CNPA to support very large housing developments in the National Park, including in particular its support for an entire New Town at An Camas Mor, on the opposite side of the River Spey to Aviemore.
Inevitably, any legal argument tends to end up focussed upon the wording of documents, and the procedures adopted in taking a decision, rather than the merits of the decision itself. The Challenge was a formal Appeal under S238 of the Town and Country Planning (Scotland) Act 1997 to the decision by the CNPA to adopt the Cairngorms National Park Local Plan, and specifically to four development policies proposed in that Local Plan – an allocation for 40 houses at Nethy Bridge, an allocation for 117 houses at Carrbridge, an allocation for up to 300 houses in Kingussie and an allocation for up to 1500 houses with associated infrastructure to form a New Town at An Camas Mor on a greenfield site of Ancient Woodland and lowland heath on the banks of the River Spey.
We believe that it is almost self-evident that the protection of the landscape and wildlife which should be guaranteed in a National Park should include (at least) the exclusion of huge new housing estates and the construction of a New Town, and that a National Park Authority should strongly reject such proposals from land-owners and commercial developers, not encourage them! But this is what the Cairngorms National Park Authority is doing.
From the outset, the conservation bodies were aware that they had high hurdles to overcome. One of the main weapons in the CNPA’s legal armoury was the following quote from Lord Hoffman:
“If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgement are within the exclusive province of the local planning authority or the Secretary of State.” (Tesco Stores v Secretary of State for the Environment  1 WLR 759 at page 780).
Against this, the Cairngorms Campaign put forward several separate arguments – some specific to the particular sites and their circumstances, and some which applied to the Local Plan overall, and some based upon procedural failings. These included the CNPA’s failure to give “greater weight” to its obligation to “conserve and enhance the natural heritage”, its failure to make an adequate “Appropriate Assessment” under the Habitats Regulations, its failure to have sufficient regard to further obligations under the Habitats Directive, failure to have sufficient regard to the very critical findings of the Independent Reporters, failure to give adequate reasons for over-ruling such criticisms, and relying upon the existence of planning permissions which pre-dated the National Park, rather than reconsidering these afresh.
These arguments, and others, were put most cogently, in writing and in person, by our senior counsel, Sir Crispin Agnew of Lochnaw, QC, ably supported by our solicitors, R+ R Urquhart, led by partner Jamie Whittle, supported by Drummond Miller. From the various questions raised by Lord Glennie during the Hearing it was clear that he was fully appreciative of their strengths and implications. However, after his detailed and lengthy consideration, Lord Glennie found that they fell short of over-turning the CNPA’s right to propose and support such extensive housing developments in the Cairngorms, and that the CNPA’s assurances of strict conditions to govern any actual developments are sufficient safeguard of the protected areas.
Obviously, this is extremely disappointing to all the conservation bodies and supporters who have been involved with the challenge for much of the last two years, but more importantly it highlights how the Scottish model for National Parks offers completely inadequate protection for the landscape and biodiversity in the face of aggressive plans for housing and other development, even in the heart of a National Park. It seems this could not happen in England or Wales, where the National Parks were set up under a tighter legal framework, and where the Sandford principle is agreed to apply – ie that if there is a conflict between the interests of public enjoyment (tourism) and conservation, then “priority must be given to the conservation of natural beauty.” (Lord Sandford, 1974).
To understand the problem for conservation in Scotland, one must look at the legislation under which National Parks were set up here. The National Parks (Scotland) Act 2000 defines four National Park “Aims” which the Park Authority must try to achieve collectively in a co-ordinated way, and it is crucial to understand these. They are:
(a) to conserve and enhance the natural and cultural heritage of the area,
(b) to promote sustainable use of the natural resources of the area,
(c) to promote understanding and enjoyment, (including enjoyment in the form of recreation) of the special qualities of the area by the public, and
(d) to promote sustainable economic and social development of the area’s communities. (my emphasis in each case)
Further, it is provided that if it appears to the Authority that there is a conflict between the first Aim and any of the others, then the Authority “shall give greater weight to “ the first Aim – ie to conserve and enhance. Lord Glennie considered these words and pointed out that even the obligation to give greater weight to the first aim does not guarantee that it will be followed – the CNPA can still decide that housing is more important and push it through.
Incidentally, the CNPA obviously regards the construction of a New Town as being “sustainable” economic development, and this is legally unchallengable as the word “sustainable” in this context appears to be so flexible as to be effectively meaningless. You or I might believe that “sustainable” means being able to keep on doing the same thing year after year without damaging the environment, so that building a New Town or a large housing estate on a pristine natural site is completely unsustainable, but this is not so in planning law.
It is fair to say that many conservationists have been very suspicious of the concept of National Parks, and particularly concerned by the Scottish model since they were introduced here, and this case has highlighted the wisdom of their concerns. With the legal obstacle now removed, the CNPA and the developers are likely to try to move swiftly to start work on these housing projects. To comply with the Habitats Directive and other requirements of building in such a sensitive area, the CNPA has set out many conditions with which the design and building work will have to comply. After winning this case largely upon the strength of these future conditions and assurances, many will be watching very closely to make sure that they are fully met.