Slochy Woods campaigners hail 'David vs Goliath' court victory as housing development plans quashed
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THE Court of Sessions decision to quash planning permission for a seven-house development on the site of the former Portessie railway station has left campaigners jubilant.
Save Slochy Woodlands Campaign Group (SSWCG) were left feeling vindicated after the court ruled that the Moray Local Review Body (MLRB) decision to controversially overturn an earlier refusal of planning permission as one which "constitutes an error of law; is therefore ultra vires the 1997 Act; and must be quashed".
The court's decision was delivered by Lord Carloway, the court president.
The group believed that the thriving ecosystem at the site should be protected.
The application, submitted on behalf of Morlich Homes, was initially refused by planners in 2021 as it was deemed to run contrary to its environmental ENV5 designation and other policies which aim to "protect and preserve the characteristics of ENV areas".
However, the decision was overturned on appeal by the developer after the site was visited by a Scottish Government reporter from the Directorate for Planning and Environmental Appeals, who stated that while the site was "'mostly … covered in shrub and … boggy' and with no important habitat" development would "breach the natural limit of the village" and set a precedent.
However, arguments to the effect that the benefits of developing the site – principally high demands for housing in the area and delivering a boost to the roll of Portessie Primary School –won the day.
The Court of Session challenge was mounted by SSWCG member Robert Bruce, who was acting in an individual capacity.
Stephanie Lindsay, chairwoman of SSWCG, said: "As the chair of the Save Slochy Woodlands Campaign Group, today's judgment confirms that this is a site worth saving and fighting for.
"It also demonstrates to me that people power is real and can effect change. One voice can make all the difference and it is why we need to continue using our voices for those who cannot."
Hannah Moneagle, Director of the Grampian Community Law Centre's Climate Clinic and Legal Representative of the Save Slochy Woodlands Campaign Group, described the legal challenge as a case of "David vs Goliath".
She continued: "This was very much a case of David vs Goliath; a campaign which has spanned nearly two years to save a local greenspace and woodland during a climate emergency and a biodiversity crisis.
"In this case, the council’s Local Review Body granted the consent based on 'community benefit' being a material consideration and included housing and the impact on the school roll in this. The school roll would only have increased by three pupils as a consequence of the proposed luxury homes and this was not felt to be sufficiently material.
"Housing was also found not to be a material consideration because it had already been excluded from the council policy, and had been taken into account by the reporter when they recommended retaining the environmental designation. We are fully supportive of today’s decision and pleased for the Save Slochy Woodlands Campaign Group who have showed great tenacity throughout to help their community and the planet.”
A Moray Council spokesperson said the local authority were currently considering the best way forward.
“While it’s disappointing that the process of the Moray Local Review Body (MLRB) has been questioned, there is now an opportunity to revisit the matter and clarify the material considerations on this particular decision. How that process is taken forward for the MLRB will now be considered further and shared in due course.”
A spokesperson from Morlich Homes Ltd said: "We were disappointed to learn of the decision against Moray Council yesterday as we believed they had a robust defence for the action raised against them.
"We will continue to pursue alternative opportunities within the local area."
Buckie councillor Sonya Warren said: "It's my understanding that the decision of the MLRB has been quashed and that it'll come back to the MLRB for a further decision.
"I'm not sure the exact process for this as yet.
"However, as a member of the current MLRB, I don't feel it would be appropriate for me o comment at this time."
Fellow ward councillor Neil McLennan said: "As a new councillor I was not involved in the initial decisions nor any aspect of it thereafter and so there is limited comment I can make.
"The judgement is however noted and notable. I call on senior figures to bring forward an urgent report showing what can be learned from this judgment.
"Audit Scotland made clear recommendations before about Moray. Action is now needed to progress on issues raised there and any subsequent governance lessons. We need to ensure good governance, best value and the people of Moray being well served.
"This will be an important watching brief for me as councillors have an important scrutiny role. I hope anyone acting in good faith are not subjected to previously reported issues."
There was praise for the campaigners from North East Green MSP Maggie Chapman, who along with Banffshire and Buchan Coast MSP Karen Adam met with SSWCG in July 2021 at the beginning of their campaign.
She commented: "This is brilliant news.
"I'd like to congratulate all campaigners for their persistence and determination. I am so happy for the Save Slochy Woodlands campaign. They have inspired and given hope to many.
"This inspiration and gift of hope is so important to communities across Scotland facing environmentally damaging developments."
Ms Adam said she hoped the court victory "inspires other campaigners".
"Save Slochy Woodland is one of the first campaigns I was made aware of when I was first elected as an MSP in 2021," she continued.
"Although I was constrained with what I could practically do to support efforts as it was a live legal dispute, I offered my sincerest support to residents and campaigners when I met with them in July 2021.
"Slochy Woodlands is rich with biodiversity and has been a wildlife haven for locals with huge mental health and wellbeing benefits too.
"I’m delighted with the positive outcome that has arisen from this and would like to commend the efforts of the campaign. We seen the residents rallying together to do what’s best for their community. I hope this positive result inspires other campaigners as it displays how grassroots and community activism can hold real power to make change."
Mr Bruce's primary ground of challenge revolved around the MLRB failing to adequately explain why it had diverged from the view of its planning officer,a decision which the court judgement said "left the informed reader in real and substantial doubt as to what the reasons were [for this].
He also contended that the decision to grant permission was unreasonable and that the MLRB "misdirected themselves by considering whether the site had been correctly designated as an ENV5 green corridor".
The judgment went on to demolish the community benefit and school roll arguments in favour of granting planning permission.
"The reasons are encapsulated as 'community benefit'; there being two aspects to that, namely housing and school roll. These two aspects are expressed as cumulative. If one is wrong, the conclusion on benefit overall must be an error.
"The evidence before the MLRB was that the school roll would be increased by three pupils. It was not disputed that the roll was 117 pupils spread over the six primary school years. The MLRB were advised that the school roll would be steady for the next five years without the development. Such a small increase cannot be characterised as a 'material' consideration sufficient to contribute to a departure from the general principle that planning decisions ought to be made in terms of the development plan.
"Housing poses a problem of a different nature. At least one councillor said that the local community was 'screaming' for housing. He was entitled to express that view, but the reporter had found that the removal of this small site would not have an impact on the overall supply of housing in the Buckie housing market area. That is not surprising given the numbers involved."
