5th Report, 2008 (Session 3)

Planning Application Processes (Menie Estate)

Remit and membership

Remit:

To consider and report on (a) the financing and delivery of local government and local services and planning; and (b) housing, regeneration, anti-poverty measures and other matters (apart from sport) falling within the responsibility of the Minister for Communities and Sport.

Membership:

Alasdair Allan
Bob Doris
Patricia Ferguson
Kenneth Gibson (Deputy Convener)
Johann Lamont
David McLetchie
Duncan McNeil (Convener)
Jim Tolson

Committee Clerking Team:

Clerk to the Committee
Martin Verity

Senior Assistant Clerk
Jane-Claire Judson

Assistant Clerk
Ian Cowan

Committee Assistant
Fiona Sinclair

Planning Application Processes (Menie Estate)

The Committee reports to the Parliament as follows—

introduction

1. An application for outline planning permission for a proposed development at the Menie Estate near Balmedie was submitted to Aberdeenshire Council on behalf of Trump International Golf Links (Scotland) by their agents SMC Jenkins & Marr on 27 November 2006 (“the Trump application”).¹

2. The proposed development included two 18 hole links golf courses; a golf clubhouse; a golf academy; golf maintenance building and caddy shack; a short game area and driving range; a 450 unit resort hotel, conference centre and spa; 36 golf villas; 950 holiday homes; staff accommodation; parking areas; access roads and two future private residential housing areas for 500 houses in total.²

3. The proposed development was inconsistent with certain policies and proposals in both the Aberdeen and Aberdeenshire Structure Plan 2001-2016 and the Aberdeenshire local plan for the area. Part of the championship golf course would be built on the UK-designated³ Foveran Links Site of Special Scientific Interest and the residential part of the proposal was located in an area defined as not allocated for housing.⁴

4. The application was considered first by Aberdeenshire Council’s Formartine Area Committee at its meeting of 20 November 2007, where councillors voted to support outline planning permission subject to 62 conditions. Under the Council’s Scheme of Delegation, and in accordance with its normal procedures, the application then required to be referred to the Council’s Infrastructure Services Committee.

5. Aberdeenshire Council’s Scheme of Delegation (as at 17 May 2007) made provision for the delegation of the Council’s statutory and other functions to Committees. Under the Scheme, the Council’s Infrastructure Services Committee was empowered to exercise the Council’s statutory functions under planning legislation to consider applications for planning permission where the development was in conflict with Council-wide policy and the relevant Area Committee was minded to approve the development.⁵

6. The Infrastructure Services Committee refused the grant of outline planning permission for the proposed development at its meeting of 29 November 2007, on the casting vote of the Committee Chair, following a tied vote.⁶ The Council’s Standing Orders provide that where there is an equality of votes, the Chair of the meeting shall have a casting vote.⁷

7. The decision of the Committee was competent in terms of the Council’s Standing Orders and, in terms of the Council’s Scheme of Delegation, represented the final decision of the Council in terms of planning law.

8. On 4 December 2007 the Scottish Ministers announced that they would “call-in” the application for their own decision, under powers granted by Section 46 of the Town and Country Planning (Scotland) Act 1997. At this point Aberdeenshire Council had not yet issued a decision letter refusing the application.

9. The decisions of Aberdeenshire Council and subsequent actions of the Scottish Government and the First Minister gave rise to considerable public interest and controversy.

10. For example, by 5.00pm on the day before the Infrastructure Services Committee meeting, the Council had received 2008 letters of representation in support of the proposal and 1115 objections.⁸ The First Minister, in his oral evidence, told the Committee that he had received 959 letters and emails on the subject.⁹

11. The Royal Town Planning Institute’s Scottish Executive Committee wrote to the Cabinet Secretary for Finance and Sustainable Growth, John Swinney, on 12 December 2007, to say—

“…the handling of this case has raised a number of matters of principle. Members of the Institute have expressed concerns that the manner in which this case is handled should not appear to damage the integrity of the planning system. They stress the need to ensure that procedures are transparent, respected, and clearly understood by all those involved. Members of the Institute are concerned that the approach to scrutiny of this case should be politically impartial and according to planning law and planning policy.”

12. Questions, both oral and written, were asked in the Parliament during December and there was extensive media coverage from the date of the Infrastructure Services Committee decision onwards.

13. Against this background, the Local Government and Communities Committee, at its meeting of 19 December 2007, agreed to take evidence on all aspects of the Scottish Government’s handling of the planning application for the Menie estate in Aberdeenshire and to examine the decision-making process of ministers and officials, the legal advice relied upon and the transparency of their actions.

14. As a consequence of the decision to call in an application once it had been refused and the reported actions of the First Minister and the Chief Planner meeting the developer after the decision to refuse was made and before the proposal was called in, some MSPs and others were concerned about the important balance of interests which needs to be considered in the planning system.

15. Oral evidence was taken by the Committee at its meeting of 16 January 2008 from the Chief Executive of Aberdeenshire Council, Alan Campbell; the Scottish Government’s Chief Planning Officer, Jim Mackinnon; the Cabinet Secretary for Finance and Sustainable Growth, John Swinney MSP; the First Minister, Alex Salmond MSP; and accompanying officials. The Committee took further oral evidence from Alex Salmond and John Swinney on 23 January.

16. On 30 January, the Committee heard from Roger Kelly, Convener, and Alistair Stark, past Convener, of the Royal Town Planning Institute in Scotland. Finally, the Committee took evidence on 6 February from George A Sorial, Managing Director of International Development and Assistant General Counsel, Trump Organisation and from Neil Hobday, Project Director in Scotland, Trump International Golf Links.

17. Aberdeenshire Council and the RTPI also made written submissions. The Committee is grateful to all those who gave written and oral evidence.

18. The Committee is of the view that the written and oral evidence which it has received, subsequent correspondence, answers to Parliamentary Questions and Ministerial statements have helped to illuminate the decision making process during the Scottish Government’s handling of this application and that this has been helpful to Parliamentary scrutiny.

19. The Committee notes that additional information, in response to requests for information under the Freedom of Information Act, is still to be published by the Scottish Government at the time of publication of this report.

the planning framework

Legislative and administrative framework

Legislation
20. Two key pieces of legislation govern the operation of the planning system:

Town and Country Planning (Scotland) Act 1997 (c.8) (“the 1997 Act”): This Act is the basis for the planning system and sets out the roles of the Scottish Ministers and local authorities with regard to development plans, development control and enforcement.

Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (c.9): This Act is mainly concerned with the designation and protection of listed buildings and conservation areas.

21. The Planning etc. (Scotland) Act 2006 was an amending Act and the 1997 Act, although substantially amended, remains the principal piece of planning legislation. Most of the provisions of the 2006 Act are yet to be enacted, meaning that the Trump application was effectively processed under planning legislation largely unchanged since the enactment of the 1997 Act.

22. The Committee notes that at all levels the planning process should be both clearer and simpler for all participants and recognises that the implementation of the Planning etc (Scotland) Act 2006 seeks to achieve this.

23. While many of the provisions of the 2006 Act are still to be enacted, the culture change signalled by the legislation is already being developed. Critically, planning should be development plan led, the process should be transparent and the key role of early engagement with the local community in promoting a shared understanding of development proposals should already be prioritised.

Policy
24. The Scottish Government publishes a series of policy documents, known as Scottish Planning Policies (SPPs), on nationally important land use and other planning matters. Older examples of these documents are known as National Planning Policy Guidelines (NPPGs).

Circulars
25. Circulars provide mainly procedural guidance along with interpretation of legislation.

Advice
26. The Scottish Government produces a series of Planning Advice Notes (PANs) which provide advice, principally aimed at local authority planners, on good practice and other relevant information.

Scottish Ministers and the Ministerial Code

27. Scottish Ministers approve Structure Plans and, in doing so, ensure that they are consistent with national policy. Ministers also ensure that local plans are in line with national policy during their preparation, although local plans are adopted by planning authorities.

29. The full Scottish Ministerial Code is published on the Scottish Government’s website at http://www.scotland.gov.uk/About/14944/684

30. The Code includes a section on ministerial involvement in planning cases, stating that—

“Ministers are free to make their electorate’s views about constituency matters known to the responsible Minister by correspondence, by leading deputations or by personal interview, provided they make clear that they are acting as their electorate's representative and not as a Minister. “¹⁰

31. It goes on to say—

“It is particularly important to bear in mind that any attempt to influence the Minister taking a decision on a planning case, other than through the proper channels, could imperil the decision.”¹¹

32. The Code summarises actions which Ministers can take, in representing their electorate’s views on planning cases as follows—

“(a) They may write to the Minister responsible for taking a decision on a planning application arguing against/in favour of a particular course of action. But in so doing they should make it clear that they are representing their electorate or are acting at the request of a particular group or person;

(b) There is no reason why Ministers should not express agreement with the views of a particular group or person when submitting representations in connection with a planning application;

(c) Such expressions of personal opinion should, however, be restricted to those cases in which Ministers find it "unavoidable to express a view". In such cases Ministers should ensure that they follow the procedures set out at paragraph 6.8 above;

(d) Where, however, the determination of a planning application will lead to, or will implicitly involve, other decisions in which the Minister making representations is involved then that Minister should not make any comment of his or her own;

(e) Ministers may attend public meetings; they may make representations to a planning authority; they may argue a constituent's case at a public local inquiry; and they may take a personal position. But their role must be consistent with (a) to (c) above. They may not take a personal position in respect of cases under (d) above; and

(f) Any broadcasts or contributions to press articles should be cleared with the responsible Minister (see paragraph 8.11).”¹²

33. In addition the Code includes a section on planning specifically aimed at the Planning Minister, which states:

“One of the basic tenets of the planning system is that, in the interests of natural justice, decisions are based on an open and fair consideration of all relevant planning matters with the same information being available to all interested parties. Accordingly, Ministers, and in particular the Planning Minister, must do nothing which might be seen as prejudicial to that process, particularly in advance of the decision being taken. Action that might be viewed as being prejudicial includes (i) taking a decision, or being part of the decision-making process, in respect of an application which falls within the Minister's constituency; (ii) expressing an opinion publicly on a particular case which is, or may subsequently come, before the Minister for decision; (iii) meeting the developer or objectors to discuss the proposal, but not meeting all parties with an interest in the decision; or (iv) commenting on decisions once they have been issued, other than in terms of what has appeared in the decision letter or, in the case of structure plan approvals, any accompanying explanatory annexes.” ¹³

Power to call-in planning applications

Legislative basis
34. Section 46 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) allows Scottish Ministers to direct that any planning application, or particular class of planning application, be referred to them for their decision.

Scottish Government Policy
35. The 1997 Act provides that Scottish Ministers have the power to direct a planning authority to refer any planning application to them for their decision at any point up until a decision letter is issued to the applicant. This process is known as ‘calling-in’ an application.

36. The Scottish Government has chosen to establish a clear policy framework governing the exercise of this power. Scottish Planning Policy 1, as amended by Planning Circular 5/2007, states:

“In the main, local authorities are the planning authorities for their areas and, as such, it is right that they should be responsible for making decisions about the future development of their communities.

Scottish Ministers have a general power to intervene by calling in planning applications for their own determination - whether or not an application has previously been notified to them. Ministers will, however, continue to respect the important role of planning authorities in making planning decisions, and will exercise this power to intervene in the process only where they consider such action necessary.

There can be a number of reasons why Ministers may choose to call in a planning application, and this will depend very much on the individual circumstances of the case. Circumstances where Scottish Ministers may intervene include:

• Where the proposal raises issues of national importance that would require a decision to be made at a national level.
• Where the planning authority proposes to grant planning permission against the advice of relevant national advisers (e.g. SNH, SEPA, HSE, Transport Scotland etc.), and where Ministers have not been convinced by the authority's justification for doing so.
• Where the proposal conflicts significantly with national planning (or other national) policy.
• Where Ministers are concerned that the planning authority's assessment and decision has not properly or fully justified a departure from the development plan.
• Where Ministers consider that there has been insufficient attention paid to legitimate planning concerns expressed by consultees and/or local people. (The existence of a substantial number of objections is not, in itself, sufficient grounds to merit call-in.)
• Where the planning authority's consideration of the proposal might be seen to have been influenced by a conflict of interests. (Further advice is given in Planning Advice Note 82: Local Authority Interest Developments.)

This list is not exhaustive, but is intended to give a flavour of the types of situations where Scottish Ministers may become involved in deciding planning applications. It will not necessarily follow that a proposal which might appear to fall within any of the circumstances noted above will definitely be called in by Scottish Ministers. In reaching their conclusions, Ministers will take into account other factors, such as any demonstrated need or urgency for the development, or the likely prospects for the proposal to ultimately be granted planning permission.”

37. It should be noted that, with the exception of the first point, the grounds for call-in are predicated on a local authority’s approval of an application. The first point could apply to a refusal but only if the application raises issues of national significance.

38. Scottish Ministers also have a quasi-judicial role in the planning system, deciding on the grant of planning permission for called-in applications and for planning appeals. When a planning authority refuses planning permission or grants planning permission subject to conditions the applicant has a right of appeal to the Scottish Ministers within six months of the issue of the decision notice.

“Issues of National Importance”
39. There is no definition, in either legislation or policy, as to what constitutes an “issue of national importance”. It is up to Ministers to decide whether a development raises issues of national importance.

“National Developments” and “Developments of National Significance”

40. A development which raises issues of national importance should not be confused with a “national development”, sometimes referred to as a “development of national significance”.

41. The new Planning etc. (Scotland) Act 2006 (“the 2006 Act”) establishes a three tier hierarchy of developments:

• National Developments (Developments of National Significance)
• Major Developments
• Local Developments

42. The reason for introducing this hierarchy was described in the Policy Memorandum that accompanied the Planning etc. (Scotland) Bill as follows:

“Applications for proposed developments identified as falling within one of the designated categories (national, major, local and minor) will, during the development management process, be subject to different procedures for submission, processing and determination depending on the category in which they fall. The aim is to allow for a more proportionate approach by focusing engagement and scrutiny on the more complex development management issues, while at the same time seeking to streamline and speed up those processes, where possible.”

43. The 2006 Act also requires that all national developments are listed in the National Planning Framework.

44. The National Planning Framework is currently being reviewed. The Scottish Government recently published “National Planning Framework for Scotland 2: Consultation Draft”, which identifies nine large scale infrastructure projects as national developments. This list may change before the final version of the National Planning Framework is complete.

45. It is important to note that the provisions of the 2006 Act relating to the hierarchy of developments are yet to be enacted and do not apply to the Trump application. As such, the Trump application is neither a national nor a major development, as defined in the 2006 Act.

46. In evidence to the Committee¹⁴ the Chief Planner confirmed that, were the provisions of the 2006 Act in force, the Trump application would have been considered a major development rather than a national development. Scottish Ministers will retain the power to call-in all types of planning application, including major developments, following the enactment of the 2006 Act. Indeed, it is likely that at least some major developments will raise issues of national importance.

Process of call-in and subsequent procedure

47. Applications can be called-in by Scottish Ministers at any point during a planning authority’s consideration of that application, up to the date at which the authority formally records a decision on the grant or refusal of planning permission. Article 22 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992, as amended, requires that the decision notice be made in writing, that it states the reasons for the authority’s decision and, where permission is refused or granted subject to conditions, includes a notice setting out the applicant’s right of appeal.

48. The date on which planning permission is deemed to be granted or refused is not necessarily the date on which the local authority reaches its decision. Section 37(4) of the Act states that the effective date is the date on which the “…planning authority’s decision bears to have been signed on behalf of the authority”. This is normally taken to mean the date on which the decision notice is sent to the applicant.

49. After an application is called-in, the Scottish Ministers effectively become the planning authority for that application. This means that Scottish Ministers are required to ensure that issues such as neighbour notification and public consultation are carried out as required by legislation. In practice, as most applications are only called-in once the planning authority is minded to grant permission, much of this work will already have been carried out. Such administrative tasks and general management of the application process following a call-in are handled by Scottish Government planning officials.

50. Just as local authorities rely on their planning staff to consider a planning application and make recommendations, so Scottish Ministers rely on an independent Reporter working for the Directorate of Planning and Environmental Appeals, formerly the Scottish Executive Inquiry Reporters Unit (SEIRU), to examine the merits of a called-in application. The Reporter considers the application, prepares a report setting out their conclusions and recommends whether Scottish Ministers grant the application unconditionally, grant the application subject to conditions or refuse the application. The report is then submitted to Scottish Ministers who subsequently issue their decision, which does not have to follow the Reporter’s recommended course of action.

51. A called-in planning application is not automatically the subject of a public inquiry. Scottish Ministers must allow a public inquiry into any called-in application if this is requested by the applicant or the relevant planning authority. However, if no such request is made then it is up to Scottish Ministers to decide whether the Reporter appointed to consider the application will do so through written submissions, an informal hearing or full public inquiry.

52. The call-in system can only work when Scottish Ministers are aware of all the planning applications submitted to planning authorities which might meet their criteria for call-in. To ensure that all such applications are brought to the attention of Ministers, planning authorities are required to formally notify Scottish Ministers where they are minded to grant planning permission for certain types of application, e.g. development contrary to development plans, development on green belt land or industrial, petrochemical or business developments covering more than 100 hectares. Local authorities are not required to notify applications they are minded to refuse.

53. Once Scottish Ministers have been notified, they have 28 days to decide whether to call-in the application or return it to the planning authority for their own decision. Scottish Ministers can extend the 28 day period for as long as it takes them to reach a decision on whether to call-in an application.

54. Scottish Ministers call-in very few applications each year, given that planning authorities deal with over 40,000 applications annually, as shown in Table 1 below.

Table 1: Number of Applications Called in by Scottish Ministers1

55. The Committee understands that the Menie estate application is the only one which was called in after a decision to refuse the application was made by a planning authority but before the authority issued the decision notice.

Code of Conduct for Members of the Scottish Parliament

56. In answer to questions asked at First Minister’s Question Time on 13 December 2007, in relation to the Trump application, and in his oral evidence to the Committee, the First Minister drew the attention of members to the Code of Conduct for Members of the Scottish Parliament.¹⁵

57. The Code, published by the Scottish Parliament on 4 May 2007, provides a set of principles and standards for MSPs.¹⁶

58. The particular section to which the First Minister referred reads:

“Duty as a representative

3.1.5 Members should be accessible to the people of the areas for which they have been elected to serve and to represent their interests conscientiously.”

Aberdeenshire Council’s Scheme of Delegation

59. At the time of considering the application for the proposed development at the Menie estate, the Aberdeenshire Council operated a Scheme of Delegation which had been adopted on 17 May 2007. Under this Scheme, the Council delegated various powers to Committees of the Council.

60. The scheme provided, inter alia, that:

“When such functions, services, undertakings or other matters are delegated to a Committee, the Committee shall have the power to exercise the function as the Council could have exercised it had there been no delegation; provided that it shall be competent for a Committee in relation to any matter, instead of taking a decision, to make a recommendation to the Council in which event the matter shall be decided by the Council after consideration of the Committee’s recommendation.”¹⁷

61. In particular, the delegation to the Infrastructure Services Committee, stated:

To exercise, with the exception of matters properly delegated to officers of the Council, the statutory functions of the Council under Planning and Building Control legislation to consider applications for planning permission, building warrant and listed building consent where the development concerned is in conflict with Council-wide policy and the relevant Area Committee is minded to approve the development.

sequence of events

62. It appears to the Committee that the following is an outline of the series of events which took place since the first time that a proposed development at the Menie estate was mooted in 2003, until 12 December 2007, the date of a special meeting of Aberdeenshire Council.

63. The information in the following table is taken from Answers to Parliamentary Questions (in which case the PQ number is footnoted), the statement made by the Cabinet Secretary for Finance and Sustainable Growth on 20 December 2007, the written evidence provided by the Chief Executive of Aberdeenshire Council, oral evidence (in which case the Official Report reference is footnoted) or information reported in the media.

consideration of the planning proposal by Aberdeenshire council

64. According to the written evidence submitted by the Chief Executive of Aberdeenshire Council, in view of what he described as the national standing of the proposal, Aberdeenshire Council arranged a meeting with Jenkins and Marr⁸⁷ and the Chief Planner, Jim Mackinnon, to acquaint him with the issues concerning the proposal which was held in January 2006. The note of the meeting highlights that while “the principle of a golf course and tourism related resort was a good fit with the inward investment goals of SDI and the need to diversify the economy of the Aberdeen area, due process must be followed by Aberdeenshire Council and the Scottish Executive to ensure that there is a clear audit trail including a transparent and rigorous consideration of the issues”. The need for the applicants to “liaise closely with environmental agencies to ensure that all the relevant issues are addressed” was also noted. Reference was also made to the fact that should the Council be minded to approve the application, it would require to be referred to the then Scottish Executive.

65. For administrative purposes Aberdeenshire Council is split into six geographical blocks, each of which is covered by an ‘area committee’. Area committees are responsible for many Council functions within their geographic area, including the consideration of applications for planning permission “…against which material objections have been lodged or which are recommended for refusal by officers or which, in the opinion of officers, raise issues of local significance for the area, provided the development concerned is not in conflict with Council-wide policy”.

66. In addition to the six area committees, Aberdeenshire Council has six subject committees. These include the Infrastructure Services Committee, which, at the time Aberdeenshire Council was considering the Trump application, was required to “…consider applications for planning permission, building warrant and listed building consent where the development concerned is in conflict with Council-wide policy and the relevant Area Committee is minded to approve the development”.

67. The Chief Executive of Aberdeenshire Council stated in his written submission that following the validation of the application and at all times during the processing of the application, information relating to the application was available on the Council’s website and updates on the processing and timescales involved in reporting the application to Committee were publicly available.

68. He said that the Planning Service met with the applicant and their agent on many occasions and letters were sent on 11 May 2007, 7 June 2007 and 8 August 2007 raising issues on which the Planning Service wished clarification or which had been raised by consultees. Meetings were also held with Scottish Natural Heritage to ascertain if there was any means by which its objection could be removed or ways in which the applicant could mitigate against the impact on the Site of Special Scientific Interest. Extensive discussions also took place with Transport Scotland with regard to access onto the Trunk Road in particular.

69. The Chief Executive stated that the principal planning issues in relation to the planning application were firstly, that the golf course, described in the application as the Championship Golf Course, affected part of a Site of Special Scientific Interest and was considered under Council policies related to wildlife, landscape and land resources, area of landscape significance, coastal planning, nature conservation, biodiversity and sustainability. Secondly, the residential part of the proposal was located in an area defined as countryside and not allocated for housing and was considered under Council policy relating to housing in the countryside. The relevant Development Plan comprises the Aberdeen and Aberdeenshire Structure Plan 2001 – 2016 and the Aberdeenshire Local Plan 2006.

70. Following an extensive process of consultation, which resulted in many submissions and representations of both support and objection, the application was placed on the agenda of the Formartine Area Committee meeting of 18 September 2007. That meeting deferred any consideration of the proposal pending a public hearing and site visit.

71. The site visit and public hearing took place on 27 September 2007. The written submission from the Chief Executive indicates that the public hearing took place in the evening at Balmedie Primary School and was very much in the context of an information gathering exercise. A large number of parties contributed to the event, a comprehensive note of which was later made available to both the Formartine Area Committee and Infrastructure Services Committee. Members of both the Formartine Area and Infrastructure Services Committees were invited to the site visit and hearing.

72. The Formartine Area Committee decided that it was minded to grant permission for the Trump development, at its meeting on 20 November 2007, after prolonged debate and two divisions. The Scheme of Delegation required it to refer the application to the Infrastructure Services Committee for their decision. This was due to the fact that the development would conflict with Council-wide policy, i.e. policies in both the local and structure plans.

73. The Chief Executive told the Committee that the application, having been considered by the Formartine Area Committee, required to go to the Infrastructure Services Committee. The Area Committee always knew this.⁸⁸ The application could not have been referred to the Full Council without going through the Infrastructure Services Committee.⁸⁹

74. The Infrastructure Services Committee considered the application at its meeting of 29 November 2007. After extensive debate and two divisions, a tied vote of 7 for and 7 against resulted in the Chair using his casting vote in favour of refusal. The Chief Executive, in his written submission, states that this was fully in accordance with the Council’s Standing Order 17(d), which states “Where there is an equality of votes, the Chair of the meeting shall have a casting vote.” In oral evidence, he confirmed that there is no further guidance to Chairs on the use of the casting vote.⁹⁰

75. He told the Committee—

“There is no such convention. It is interesting to speculate on that because some organisations hold that the convention in use of a casting vote is to vote for the status quo. However, that raises all sorts of questions about what the status quo would have been. Would it have been the Formartine area committee's decision? Would it have been to allow no development, because that is what is currently on the site? Sometimes it has been assumed that the officials' recommendation might be the one that would be approved. Even if there was a convention, it would be quite difficult to have applied it in this context without there being some element of controversy or review. There is no such convention.”⁹¹

76. Under the Scheme of Delegation, it would have been competent for the Infrastructure Services Committee Committee, had it wished to do so, to have decided not to make a decision on the application but to make instead a recommendation to the Council, in which event the matter would have been decided by the Council. However, this was not an option that was considered by the Committee on this occasion.

77. The Infrastructure Services Committee was entitled to take the decision to refuse planning permission and in taking that decision it acted in accordance with the Council’s Standing Orders and with its Scheme of Delegation.

78. After the decision of the Infrastructure Services Committee, the decision letter was not issued immediately. The Chief Executive said in his oral evidence that this was not unusual and it was usually a couple of weeks before a decision notice was drawn up and issued.⁹²

79. However, the Chief Planner, in his oral evidence, said that a decision letter can be issued quite quickly. He said that he could have written one in ten minutes.⁹³ He accepted, though, that, on 4 December, he could have waited another 24 hours.⁹⁴

80. The RTPI, in its evidence, told the Committee that decision letters would normally be written within a couple of days of the decision being made.⁹⁵

81. Moves to requisition a Special Meeting of the Council started almost immediately. Very strong views were developing, both for and against the application.⁹⁶ The Chief Executive’s evidence states that an Opinion of Senior Counsel was sought as to whether the Full Council could properly reopen the matter for further debate. By 4 December, the Council had a clear view of what the advice was likely to be,⁹⁷ and the Opinion was obtained on 5 December 2007. It indicated that, as the Scheme of Delegation currently stood, there appeared to be no legitimate way for the Council to reopen discussion on the merits of the decision.

82. George A Sorial said to the Committee that he had not been able to get any clear guidance on certain procedural matters from Aberdeenshire Council officials.⁹⁸ He described the environment at Aberdeenshire Council as chaotic, in which the Trump representatives had completely lost faith.⁹⁹

83. It was not, he told the Committee, clear that the decision of the Infrastructure Services Committee meant that the process was over. There was a lot of rhetoric to the effect that the Council might have been able to overturn the decision. Even on the Monday (3 December), no one, he said, could give him an answer on whether a decision of the full Council would have any force of law.¹⁰⁰

84. According to the written evidence of the Chief Executive, he received a phone call from the Scottish Government’s Chief Planner at around 3pm on 4 December. The conversation referred to whether the Council had exhausted its processes in regard to the application and the Chief Executive confirmed that legal advice was indicating that this was the case within the terms of the existing Scheme of Delegation.

85. At approximately 3.45pm, there was a further phone call from the Chief Planner indicating that the Scottish Government was considering calling-in the application. The Chief Executive states in his written submission that this was the first time that call-in had been referred to. At approximately 4.00pm a third phone call from the Chief Planner was received confirming that Scottish Ministers had directed that the application be referred to them and that the written Direction intimating the call-in was being prepared. The Chief Executive states in his submission that at this time the Decision Notice arising from the meeting of 29 November had not by then been issued or even drafted.

86. The Committee notes that the Chief Executive of Aberdeenshire Council, with over 30 years' public service, was not aware of the option of call-in before the decision notice had been issued.

87. The Committee notes that there is no indication that the Chief Planner asked, during these conversations, whether the Decision letter had yet been signed. The official minute of the meeting makes no reference to such a question being asked.¹⁰¹

88. The call-in meant that in effect the Scottish Ministers became the planning authority for the application.

89. George A Sorial of the Trump Organisation stated that the Committee inquiry had caused a delay in the process, although he adduced no evidence to support this view.¹⁰² On the contrary, the Committee stresses that the call-in process is entirely a matter for determination by the Scottish Ministers. The Committee has no locus in the determination of the application. The process and timescale that are to be followed are a matter for Ministers and are not affected by the Committee's deliberations.

90. Aberdeenshire Council discussed the issue of the application at a Special Meeting on 12 December 2007. The Council agreed to amend the Scheme of Delegation, so that future applications for planning permssion of regional or national importance would be considered by the full Council; it agreed that it supported the grant of planning permission for the Trump application, subject to conditions; and, on an emergency motion, it voted to replace the Chair of the Infrastructure Committee.

91. This Committee notes, however, that the Council’s agreement to support the application is not relevant in terms of planning law. The Council, as planning authority, had in effect made its final decision when its Infrastructure Services Committee agreed to refuse the application on 29 November.

92. In his written submission, the Chief Executive stated that—

“Aberdeenshire Council accepts that this proposal is one of national scale. Given the wide powers available to the Scottish Government the decision to call-in the application was considered to be properly within the powers of the Scottish Government. While such planning matters are not routine or everyday, the Chief Executive did not regard the process which the Chief Planner followed as being irregular in the way in which some observers have suggested.”¹⁰³

93. The Chief Planner told the Committee that the circumstances of the application were “one in a million.” ¹⁰⁴

94. In his oral evidence to the Committee, Alistair Stark of the Royal Town Planning Institute in Scotland said that it was a situation in which a Council had properly reached a decision by its own procedures at that time. That had been immediately followed by statements made by Aberdeenshire Councillors outside the planning process that appeared to contradict the properly made view of the Council’s Planning Committee. He described this as a “political decision with a small p.”¹⁰⁵

events subsequent to Infrastructure Services Committee’s decision

Alex Salmond’s meeting with Trump Organisation on Monday 3 December 2007

95. In oral evidence, Alex Salmond said that the Trump organisation issued a statement on 16 December which said that—

"On the advice of their legal counsel, meetings were requested with local MSP Alex Salmond and the Government Chief Planner Jim Mackinnon, which are clearly permissible and do not violate Scottish law or Ministerial rules. The purpose of those meetings was to seek clarification about legally available options relating to the procedural aspects of the planning process as no clear guidance had been provided by the local government officials."¹⁰⁶

96. It was put to Alex Salmond in questioning that it was rare for him to set up a meeting for developers with the Chief Planner within 24 hours. Alex Salmond did not contest this assertion.¹⁰⁷

97. In response to questions during oral evidence about his use of a Ministerial car, when meeting representatives of the Trump organisation on 3 December, Alex Salmond said—

“A special adviser was helping me in national engagements on both 3 and 4 December, and on 3 December I was dropping him off in Milltimber, which I think is where his parents' house is, and which is near the Marcliffe hotel. I knew that I would be doing that and that is why, as the permanent secretary indicated, the use of the ministerial car was perfectly in order, under the circumstances.”¹⁰⁸

98. In a Written Answer to a Parliamentary Question, further detail was provided as follows—

99. Alex Salmond said that, during the meeting, the Trump Organisation was uncertain about the routes ahead. The bulk of the meeting was taken up by his (Alex Salmond’s) opinion on what he detected about Aberdeenshire Council’s wish to revisit the decision that the Infrastructure Services Committee had made. They spoke about the appeal process.¹⁰⁹ Alex Salmond said in his oral evidence that he thought that the Trump representatives were uncertain about the process of appeals.¹¹⁰

100. However, in oral evidence to the Committee, George A Sorial confirmed that the Trump organisation had a wide spectrum of advice on any issues that might conceivable arise. He said—

“There was never any issue relating to our not understanding our options.”¹¹¹

and—

“We were aware of the possibility of appealing from the outset.”¹¹²

101. He said that the discussion at the meeting with Alex Salmond was strictly about procedure.¹¹³ They were focussed on whether procedurally it would be possible for the full Council to overrule the Infrastructure Services Committee.¹¹⁴

102. Alex Salmond said that he had asked the Trump representatives why they did not just appeal the decision. He said that they responded that they thought that they were in a position of great reputational damage. They did not want to be seen to be in a position of appealing over the heads of the local community.¹¹⁵

103. However, in his oral evidence to the Committee, George A Sorial said that the organisation did not appeal because it did not have the time to wait and it had other development opportunities available to it.

104. He went on to say that the proposals had overwhelming public support. He had seen polls showing between 80% and 90% support. They had been shocked by the decision.

105. George A Sorial accepted that they did have a degree of reputational damage. ¹¹⁶ He told the Committee, however, that the decision not to appeal had nothing to do with contempt for the process; it was simply that they had many opportunities elsewhere.¹¹⁷

106. Alex Salmond said that the question of call-in was never discussed at the meeting of 3 December. He was not aware that it was an option.¹¹⁸

107. He told the Committee that the Trump representatives had said that they wanted to request, directly, a meeting with the Chief Planner, Jim Mackinnon. Alex Salmond did not know whether, following Aberdeenshire’s decision, someone from the planning department could still meet the developer. Therefore he phoned Jim Mackinnon at the close of the meeting.¹¹⁹

108. George A Sorial told the Committee that he did not find it unusual that the Chief Planner was able to meet him at short notice. He said—

“If a chief planner is not ready at a moment's notice when they might lose a £1 billion investment for their country, what are they doing occupying that position? That is what they are there for. I do not find any of that to be unusual.”¹²⁰

Chief Planner’s meeting with Trump Organisation on Tuesday 4 December 2007

109. As a result of the phone call the previous evening, described in the “Sequence of Events” above, the Chief Planner and the Head of Planning Decisions Division met George A Sorial and Neil Hobday of the Trump Organisation in Victoria Quay, Edinburgh at 2.20pm on Tuesday 4 December 2007. The Chief Planner said to the Committee that he wanted to ensure that the Trump representatives were clear about the routes they could follow. He told the Committee that he was not there to negotiate or to say “We would prefer it if you appealed.”¹²¹

110. George A Sorial told that Committee that he advised the Chief Planner that he had just finished the meeting with Ann Faulds and he wanted to hear his explanation of the procedural aspects of a call-in. George A Sorial confirmed to the Committee that it was he who had raised the matter of call in.¹²²

111. George A Sorial told the Committee that Jim Mackinnon explained in detail the appellate route and the call-in route.¹²³

112. Gorge A Sorial told the Committee that they were not aware that call-in was an option before 4 December.¹²⁴ By the time of their meeting with the Chief Planner, their solicitors, Dundas and Wilson, had fully explained the call-in procedure and they were also aware that it was still possible for the application to be called in.¹²⁵

113. He said to the Committee that the Trump Organisation—

“did not ask for the application to be called in – it just happened to us”.¹²⁶

114. George A Sorial further said that at some point during the meeting, the Chief Planner telephoned Ann Faulds of Dundas and Wilson to ask what her understanding was of the Trump organisation’s reluctance to appeal and the position with Aberdeenshire’s Standing Orders.¹²⁷

115. George A Sorial told the Committee that he did not recall the telephone call taking place. However, in a subsequent email to the Committee he said that while he did not remember the specifics of the discussion, to the best of his knowledge,Ms. Faulds subsequently reported to him that Mr. Mackinnon asked why the Trump Organization did not want to pursue an appeal. Ms. Faulds confirmed their position on an appeal, which he had already explained in evidence to the Committee.

116. He went on to say that Ms.Fauldsalsoconfirmedher viewthat the Council's Standing Ordersprecluded any review of the Infrastructure Committee's decision by the Full Council. Finally, Ms. Faulds confirmed her view that the Minister could call in an application up until the final notice was issued by the Council.

117. He did recollect discussing the three options with Ms. Faulds at the meeting between the Trump representatives and Ann Faulds at their meeting on December 4, 2007, which, he said,reinforced their decision not to pursue an appeal, because the process was long and expensive,and that they would be better off proceeding with another investment opportunity.¹²⁸

118. During the meeting between the Chief Planner and the representatives of the Trump organisation, at around 3.00pm, the Chief Planner telephoned the Chief Executive of Aberdeenshire Council for an update on the Council’s consideration of the planning application. During this call the Chief Planner indicated that representatives of the Trump Organisation were present in his office. The Chief Executive told the Committee in his oral evidence that he was surprised that the Chief Planner had them in his room.¹²⁹ The Chief Executive asked that they leave for the duration of the call, which they did.¹³⁰

119. The Chief Executive told the Committee that he would have regarded it as irregular if they had stayed.¹³¹ The Chief Planner told the Committee that he did not regard it as irregular to have called when the Trump representatives were in the room.¹³²

120. The call took place at around 3.00pm. The Chief Executive confirmed that legal advice was indicating that the Council had exhausted its processes.¹³³ It looked as if the council could not resolve the matter in a way that was unchallengeable.¹³⁴ The Council was heading towards a situation in which it believed that it could not revisit the decision.¹³⁵ The call lasted 5, 6 or 7 minutes.¹³⁶

121. The Committee notes that the official minute of the meeting between the Chief Planner and representatives of the Trump Organisation makes no reference to either of the above-mentioned telephone calls taking place.

Process of making the decision to call in

122. The Chief Planner told the Committee—

“I have been a practising planner for 33 years. I estimate that, during my career, a million planning applications have been determined in Scotland. Never though, in my professional experience, have I been aware of a development—widely reported as a billion-pound development—in relation to which a local authority resolved to refuse planning permission but many councillors who had been excluded from the decision-making process wanted the decision to be reversed. In addition, a broad cross-section of public opinion had expressed significant concerns about the way in which Aberdeenshire Council handled the application. The circumstances of the application for the Menie estate were, literally, one in a million. No circulars or internal procedure notes cover the circumstances.”¹³⁷

123. He said that he had thought over the options during the weekend of 1-2 December 2007 and felt that it would be a strange appeal by the Trump Organisation, with the Council formally refusing planning permission, but supporting the development at appeal. He formed the view that the simplest approach, which would give certainty to all parties and interests on the process to be followed, was to call in the application.¹³⁸

124. The Committee notes that this was prior to any request to meet the Trump Organisation, or to discussing the matter with the Cabinet Secretary for Finance and to Mr Salmond’s meeting with the Trump Organisation on 3 December.¹³⁹

125. The Committee notes, however, that this explanation was not relied on by the Cabinet Secretary for Finance and Sustainable Growth, John Swinney, in his statement of 20 December 2007. He said in his statement that “the purpose of call in on this occasion is to provide enhanced scrutiny of a planning application which raises issues of national importance and has been the subject of widespread public interest. The recommendation to call in was based on a number of factors. The nature and scale of the proposals, and their potential impact on important natural heritage resources clearly raised issues of national importance.”

126. The Chief Planner told the Committee that he wanted to recommend that course of action to ministers before there was any prospect of a decision letter going out. Had such a notice gone out, it would not have been possible to call in the application. He said that he did not want “an even more farcical situation in which a decision notice was going out just as the Scottish Government was issuing a direction. That would have been the worst of all possible worlds.”¹⁴⁰

127. He said that a decision letter could have been issued quite quickly - “in 10 minutes”, and therefore he decided that action had to be taken quickly.¹⁴¹

128. He subsequently acknowledged to the Committee, however, that he had not asked the Chief Executive, during the telephone conversation with him, whether the letter was ready to be signed. He said to the Committee that it was “pretty clear that it was not.” He accepted that it would have been possible to have waited another 24 hours.¹⁴²

129. The Chief Executive, in his oral evidence, said to the Committee that such decisions normally take a couple of weeks to send out.¹⁴³

130. The Committee notes that the Chief Planner would have been aware that the Council’s legal opinion on whether the Infrastructure Services Committee’s decision could be reversed would not arrive until the following day.¹⁴⁴

131. In the early afternoon¹⁴⁵ (UK time) of Monday 3 December, the Cabinet Secretary for Finance and Sustainable Growth spoke with the Chief Planner, from the USA, about the Trump Organisation’s application for planning permission.¹⁴⁶ The call lasted 5 or 6 minutes.¹⁴⁷ The Cabinet Secretary asked for an update on the situation, asked for the Chief Planner’s opinion and asked him what options existed.¹⁴⁸ The Chief Planner explained that he had become increasingly convinced that early call-in would provide certainty to all the parties.¹⁴⁹

132. On Tuesday 4 December, after the meeting with the Trump representatives described above, which would have finished some time after 3.00pm, the Chief Planner and Head of Planning Decisions Division agreed to recommend to Ministers that the Trump Organisation’s application be called-in for ministerial decision.¹⁵⁰

133.Before the Cabinet meeting of that day¹⁵¹, at around 3.45pm or 3.50pm¹⁵², the Chief Planner telephoned the Cabinet Secretary for Finance and Sustainable Growth and recommended that the Trump Organisation’s application be called-in. During the call, the Chief Planner told the Cabinet Secretary that he had ascertained from Aberdeenshire Council that it was unlikely that the Council’s standing orders would allow the planning application to be reconsidered by the Council.¹⁵³ The Cabinet Secretary agreed that the application should be called-in.¹⁵⁴

134. Members of the Committee put it to the Cabinet Secretary that there was a contrast between the scrutiny of the application over a period of time by two Committees of Aberdeenshire Council and the decision made by the Cabinet Secretary to call in the application after two five-minute conversations with the Chief Planner.

135. The Cabinet Secretary said that he had had time to reflect on the option of calling-in the application after the telephone call from the chief Planner on Monday 3 December and the conversation recommending call-in on Tuesday 4 December.¹⁵⁵

136. He also said, in response to questions from the Committee, that it was perfectly possible for Ministers to consider issues without seeing everything on paper. He was perfectly able to have discussions with the Chief Planner, understand the issues that he set out to him and the points that were being considered. It was, he said, not particularly exceptional.¹⁵⁶

137. He said that he took the decision in the context of the knowledge and experience he had gained since he had become a Minister, his understanding of the issues and the way in which Ministers exercise responsibility on planning matters.¹⁵⁷ He confirmed that he knew that it was possible to call in an application during the period between the date of a planning authority’s meeting and the signature or delivery of the decision letter.¹⁵⁸ The Committee noted that the Cabinet Secretary had experience of only one other planning case since the election and had only taken over responsibility for the Menie application in October.

138. He told the Committee that the application itself was not the question which he was addressing; the question was whether further consideration should be given to the planning application. He said that he took the decision that further consideration should be given to it.¹⁵⁹ He denied that he called the application in because that was the only way in which it would come to his desk for consideration. He said that the context in which the decision took place was that the overwhelming majority of the members of the Aberdeenshire Council felt that the application had not been given full and proper consideration by the Council.¹⁶⁰ He went on to say—

“I thought that the planning system was in danger of falling into disrepute because of the contradictory positions being adopted within Aberdeenshire Council.”¹⁶¹

Committee’s comments on the decision making process

139. The Committee accepts the evidence that the decision making process of Aberdeenshire Council was appropriate and valid, and that the decision of the Infrastructure Sub Committee, albeit highly controversial, was both competent and represented the decision of the Council under its then Scheme of Delegation.

140. However, the Committee has serious concerns about the course of events involved in the Scottish Government’s decision making process from the time of the refusal of planning permission by Aberdeenshire Council on 29th November 2007 until the Ministerial call in of the application on 4th December 2007.¹⁶²

141. These concerns surround a) the intervention of the First Minister; b) the Chief Planner’s meeting with the Applicants c) the decision making process of the Cabinet Secretary for Finance and d) the disparity between the ostensible grounds for the call in and the actual reasons.¹⁶³

142. The Committee notes in particular that the reasons given in the advice note to the Cabinet Secretary for Finance and Sustainable Growth of 4 December 2007 which recommended call-in were not the reasons given by him in his public statement of 20 December 2007 or to the Committee, and the reasons given by him in his statement of 20 December and to the Committee do not feature in the advice note given to him by Planning officials.¹⁶⁴

143. The Committee recognises that, both in terms of the Ministerial Code and of the quasi-judicial nature of the planning process, it is vital for Ministers to avoid imperilling the decision or exposing their actions to judicial challenge.

144.The Committee is strongly of the view that there should be an accurate audit trail of arrangements leading to key decisions by Ministers.

145. The Committee finds it difficult to accept that there was no connection between the First Minister facilitating a hastily arranged meeting for the Trump Organisation with the Chief Planner, the Trump representatives raising the option of a Ministerial call in at that meeting, and advising they were not going to appeal, the telephone call to the Trump legal consultants during that meeting and the Ministerial call in less than an hour later.¹⁶⁵

146. The Committee also notes the evidence suggesting that there appeared to be little, if any, difference in timescale or procedure between an appeal by the applicants and a call in by Ministers. They accepted, however, that this may not have been the perception or expectation at the time of the Trump representatives.

147. The Committee also wishes to reiterate that the timetable and process undertaken by Ministers following the call in is not affected by the Committee Inquiry, and that the Committee has no jurisdiction over, nor influence on, these matters.

148. The Chief Executive of the Aberdeenshire Council quite properly sought legal opinion as to whether it was competent for the Council to reconsider the decision of its Infrastructure Services Committee. The content of that legal opinion was not known until 4th December and subsequently received in writing on 5th December. Until this issue was resolved, it would have been premature for the Council to issue a decision notice in respect of the application which is why none was issued.

149. The meeting of Aberdeenshire Council on 12th December also recommended that a hybrid process combining written submissions and a hearing should apply to the subsequent consideration of the application by Scottish Ministers following the call-in. Aberdeenshire Council did not recommend that a local public inquiry be held. The Committee also notes that it took Aberdeenshire Council only 8 days to come to a view about the appropriate process which should now apply, whereas it has taken 85 days for Scottish Ministers to come to a different conclusion.

150. The Committee recommends that Local Authorities review their schemes of delegated authority on planning schemes.

151. Aberdeenshire Council followed its own procedures and was entitled to follow the course of action it did. Aberdeenshire Council has since changed its scheme of delegation with a view to ensuring that the full Council will be able to decide on major planning applications.¹⁶⁶

152. The Scheme of Delegation is entirely transparent and understandable. The Committee does not accept that the process was chaotic.

Grounds for calling in the application

153. The Chief Executive of Aberdeenshire Council told the Committee that the application was always likely to be called in. It was contrary to the structure plan and to its local plans because of the intrusion on the SSSI, because of the housing element¹⁶⁷ and because of its scale.¹⁶⁸

154. The Chief Planner also told the Committee that there was a clear expectation that, by virtue of their nature, scale and location, the proposals at Menie estate would have to come before the Government, either as a notified application if it had been approved or as an appeal if it had been refused.¹⁶⁹

155.The Chief Planner told the Committee that, in his view, this project was “major”. “National developments”, within the hierarchy of the planning process, are, he said, essentially infrastructure developments in the fields of transport, energy and environmental infrastructure. He said that “major” developments are essentially speculative applications of a scale which requires agreement with the planning authority about how to handle them.¹⁷⁰

156. John Swinney, in his oral evidence, drew a distinction between the reason for the call-in and the context in which the decision was made. He said that the call-in letter of 4 December made it clear that the Scottish Ministers gave the direction in view of—

“the proposal raising issues of importance requiring scrutiny at national level.”¹⁷¹

157. He said that the context of the decision made on 4 December was that one Council Committee had supported the application and one had refused it, and the overwhelming majority of Council members were excluded from the process but were making it obvious that they wanted to be involved in it. He said that—

“We believed, on the basis of information from council members, that the council was likely to express support for the application, which it did in its discussion on 12 December. However, in that situation, we could have faced an appeal by the Trump Organization for which the council could send officials to a planning inquiry to justify a refusal while the council also made the case for endorsement and approval. As I am mindful of the need to protect the planning system's integrity, I felt that the way to resolve the situation was to ensure that ministers could provide for greater consideration of the application.”¹⁷²

158. John Swinney said that there was a danger to the integrity of the planning system as a result of the scenario which they faced.¹⁷³ He said that his view of the events was that it was likely that Aberdeenshire Council would be pointing in two directions and that the planning system would be perceived in a very poor light as a consequence.¹⁷⁴

159. The Committee notes, however, that the decisions made by the Formartine Area Committee and then by the Infrastructure Services Committee were not, in some way, opposites. Having been supported by the Area Committee, the application, which was contrary to the Council’s Development Plan, required to be referred to the Infrastructure Services Committee. The decision of the Infrastructure Services Committee, in terms of planning law, was the final decision of the Council even though the planning decision notice had still to be issued.

160. The Chief Planner said that the application had not been called in earlier, because the clear practice of the Scottish Government, the former Scottish Executive and the former Scottish Office was to let planning applications run their course.¹⁷⁵

161. John Swinney told the Committee that—

“The application was properly considered by Aberdeenshire Council. When the stage was reached at which the consideration process could potentially have undermined the integrity of the planning system in Scotland, ministers exercised their right to call in the application.”¹⁷⁶

162. It is evident from the position of the Chief Planner and the Cabinet Secretary that they were fully aware of the process by which a decision was to be reached and that under such a process it was possible for the majority of members to be excluded from the decision making process.

163. Mr Swinney acknowledges that the application was properly considered.

164. The Chief Planner said that call-in would not have been possible after the decision notice on the refusal had been issued.¹⁷⁷ The Council expected that if it turned down the application, then it would be the subject of an appeal. It had not been anticipated that the application would be called in after rejection, but before the decision notice had been issued.¹⁷⁸ When the Council checked the position, it came to the view that the situation was legal and regular, although it was not within the normal experience.¹⁷⁹

165. According to the Royal Town Planning Institute there are around 50,000 planning applications every year, the Scottish government is notified of about 300 or 400 every year and about 10% of those are called in for determination.¹⁸⁰

166. The representatives of the RTPI told the Committee that they did not recollect a case where Ministers had called in an application after a decision had been made but before the decision letter had been written.¹⁸¹

Committee’s comments on the decision to call in the application after the relevant Committee of the Council had decided to reject the application, but before the decision letter had been issued

167. The Committee accepts that the decision to call in the application after the decision of the Infrastructure Services Committee but before the issue of the decision letter was a competent one, albeit unprecedented.

168. The Committee is very concerned at the disparity between the stated and apparent reasons for the call in and the actual reasons. They are particularly concerned that the Cabinet Secretary failed to explain the actual reasons for the call in his statement of 20th December 2007 or at any time prior to giving evidence to the Committee, or to recognise that such a disparity might be an issue.¹⁸²

169. The Committee notes that the real reasons for calling in the application, as stated by the Cabinet Secretary, were a) the desire to retain the potential for the substantial investment by the Trump Organisation in the development, b) the fact that the Trump organisation had indicated that they would not be appealing, c) the belief that the planning system in Scotland would be perceived in a very poor light d) the view that Aberdeenshire Council might face an award of expenses in an appeal process.¹⁸³

170. The Committee also takes the view that none of these reasons were valid reasons for Ministerial call-in in terms of the planning legislation.¹⁸⁴

171. The Committee is concerned that the unprecedented decision to call in after a refusal can only suggest that Ministers were unhappy with the refusal and this runs the risk of creating an impression of bias by Ministers on the matter – a perception which is not raised by a call in prior to decision, or by an appeal by applicants.¹⁸⁵

172. The decision by the Cabinet Secretary to call-in the application in circumstances in which it had been rejected by the planning authority was unprecedented. The Committee is surprised that such an unprecedented decision was taken on the back of two short telephone conversations with the Chief Planner, the latter call being the one in which this course of action was recommended. The Committee rejects the view that this decision was time critical. It notes that the power to call in the application only subsisted until such time as the decision notice was issued by Aberdeenshire Council. It was suggested in evidence by the Chief Planner that this created a degree of urgency since such a notice could be issued, unbeknown to the Scottish Government, in 10 minutes. It was later accepted by the Chief Planner that he could have waited another 24 hours. However all of this is contradicted by the evidence of the Chief Executive of the Council who said that it could have taken up to a fortnight and by the fact that until the Council received its legal opinion from Senior Counsel it would not have issued a decision notice anyway as it may have been advised that it was indeed competent for the Council to review the decision of the Infrastructure Services Committee. It is noteworthy that in the telephone conversation which took place between the Chief Planner and the Chief Executive of the Council on 4th December no request was made for information as to the timing of the issue of the decision notice which is surprising given the subsequent reliance placed on this timing as a reason for the speed with which the call-in decision was made by the Cabinet Secretary.¹⁸⁶

173. If a call-in of this application was justified on the grounds that it was of national importance at the time it was made, then the application was equally of national importance when it was submitted. Indeed the Scottish Government was fully aware of its significance both in economic terms and in respect of the planning issues which would arise from the location of the SSSI and the housing component of the proposal. The application was not called-in because Scottish Ministers expected it to be approved and accordingly their subsequent consideration of it would have been in the context of an approval rather than a rejection. When the application was rejected by the Council as planning authority, the application was called in during the legal window of opportunity which existed prior to issue of the decision letter because if it had not been called in then the application would have “died” given the refusal of the Trump Organisation to appeal. In the opinion of the Committee that is the real reason for the call-in and subsequent explanations or justifications are ex post facto rationalisations of the decision. This is borne out by the terms of the advice note to the Cabinet Secretary of 4 December 2007.¹⁸⁷

174. The Scottish Government quite properly attaches great importance to economic development and the Trump Organisation’s proposal for a major development on this scale in the North East was clearly of interest to it as it was to the previous administration. It was also properly concerned about the reputational damage to Scotland as a place for major inward investment. It can be difficult to reconcile these goals with the operation of the planning system in which ministers are required to perform a quasi judicial role.

175. The Committee believes that greater efforts