1. This is an application for determination of a question of disputed compensation under the Land Compensation (Scotland) Act 1963 and the Land Clauses Consolidation (Scotland) Act 1845. The applicants own the Craibstone Estate where they operate a rural college. At the date of vesting the land comprised 208 ha. The respondents have compulsorily acquired 32.9 hectares for the purpose of the construction of the Aberdeen Western Peripheral Route. Some 42.6 hectares of the retained land was allocated in 2012 in the local development plan for housing. The date of vesting is 11 January 2013. The applicants contend that but for the compulsory acquisition, they could have developed an additional 320 units on the acquired land.
2. The respondents contend that the statutory scheme was an essential element in the allocation of the retained land for housing in the local development plan. With reference to s.110(4) of the Roads (Scotland) Act 1984 they contend that the increase in value of the applicants’ retained land exceeds the value of the acquired land and the amount of the applicants’ claim for disturbance. Thus they maintain that the applicants’ claim has no value on the basis of set-off for betterment due to the scheme. We refer to the plan in the Appendix to this Opinion, which overlays the works upon the acquired land and also overlays the local plan designation for housing upon the retained land.
3. We carried out an unaccompanied site visit on 16 October and a preliminary hearing on 28 October and 7 following days. The agreed issues for the preliminary hearing were as follows:-
(1) Whether in the no-scheme world the retained land would have been allocated for housing development or have received planning permission for such development as at the date of vesting.
(2) Whether in the no-scheme world the acquired land would have been allocated in the development plan or have received planning permission for 320 houses (or some other lesser number of houses), in addition to any planning permission or allocation on the retained land as at the date of vesting.
(3) In the event that the acquired land would not have been allocated for housing development in the development plan or would not have received planning permission for such development at the date of vesting in the no-scheme world, would there nevertheless have been a hope of achieving such allocation and/or planning permission for any form of development in the future.
(4) In the event that the retained land would not have been allocated for housing development in the development plan or would not have received planning permission for such development at the date of vesting in the no-scheme world, would there nevertheless have been a hope of achieving such allocation and/or planning permission for any form of development in the future.
(5) Whether in the scheme world the retained land and/or the acquired land would have been allocated for housing development, have received planning permission for such development or had a hope of achieving an allocation and/or planning permission for such development in future as at the date of vesting.
4. At the hearing the applicants were represented by Mr Alasdair Burnet, advocate, instructed by Brodies LLP. The respondents were represented by Ms Ailsa Wilson QC and Ms Laura-Anne van der Westhuizen, advocate, instructed by Anderson Strathern LLP.
5. The applicants led four witnesses, namely, Clive Richardson MSc, James Welch FLI, Donald Stirling MSc and Rachel Gee MRTPI. Mr Richardson is a chartered building surveyor and had been head of property and estates for the applicants between 2003 and 2019. Mr Welch is a chartered landscape architect and with his current practice, namely Optimised Environments Ltd (“OPEN”) and previously with the practice EDAW had advised the applicants and their developers since 2005. Mr Stirling is a principal transport consultant employed by Fairhurst since 2005 and has advised the applicants since 2015. Ms Gee is a chartered town planner employed by Clarendon Planning and Development Limited and has advised the applicants since 2015. She had previously worked under the company name of Lauriston Planning. Mr Welch, Mr Stirling and Ms Gee were led as expert witnesses.
6. The respondents led the evidence of Jason Gillespie, MICE, MCIHT; Euan Barr MCIHT and Gillian Baillie MRTPI. Mr Gillespie is a chartered engineer with Systra Limited which is a firm of consulting engineers and transportation planners. Systra Limited is a principal consultant for Transport Scotland. Mr Gillespie has been responsible for input to Transport Scotland for development proposals at Craibstone and other development proposals in and around Dyce and the Aberdeen area. His evidence was mainly factual in nature. Mr Barr is a divisional director of Jacobs UK Limited with experience in the Aberdeen Western Peripheral Route and appeared as an expert witness on transport matters. Ms Baillie is a chartered town planner and divisional director at Jacobs UK Limited, with experience in the Aberdeen Western Peripheral Route and appeared as an expert planning witness.
The 1963 Act provides:
“13.— Disregard of actual or prospective development in certain cases.
(1) …, no account shall be taken of any increase or diminution in the value of the relevant interest which, in the circumstances described in any of the paragraphs in the first column of Part I of Schedule 1 to this Act, is attributable to the carrying out, or the prospect, of so much of the development mentioned in relation thereto in the second column of Part I of that Schedule as would not have been likely to be carried out if—
(a) (where the acquisition is for purposes involving development of any of the land authorised to be acquired) the acquiring authority had not acquired and did not propose to acquire any of that land; …”
Para 1 of Schedule 1 provides:
“DESCRIPTION OF DEVELOPMENT
Case Development 1. Where the acquisition is for purposes involving development of any of the land authorised to be acquired. Development of any of the land authorised to be acquired, other than the relevant land, being development for any of the purposes for which any part of the first-mentioned land (including any part of the relevant land) is to be acquired.”
The 1984 Act provides:
“110.— General provisions as to acquisition of land…
(4) In assessing the compensation payable in respect of the compulsory acquisition of land by a roads authority under powers conferred by … this Act, the Lands Tribunal for Scotland—
(a) shall have regard to the extent to which the remaining contiguous land belonging to the same person may be benefited by the purpose for which the land is authorised to be acquired; …
and the Land Compensation (Scotland) Act 1963 shall, in its application to a compulsory acquisition by a roads authority…, have effect subject to the provisions of this subsection.”
Horn v Sunderland Corporation  2 KB 26
Pointe Gourde Quarrying and Transport Co v Sub-Intendent of Crown Lands  AC 565
Wilson v Liverpool Corporation  1 WLR 302
Portsmouth Roman Catholic Diocesan Trustees v Hampshire County Council (1980) 40 P. & C.R. 579
James Miller and Partners Ltd v Lothian Regional Council (No.2) 1984 SLT (Lands Tr) 2
Director of Buildings and Land v Shun Fung Ironworks Ltd  2 AC 111
Leicester City Council v Leicestershire County Council (1995) 70 P. & C.R. 435
City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33
Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment, Transport and the Regions  2 AC 307;  QB 1144
Waters v Welsh Development Agency  1 WLR 1304;  EWCA Civ 924
Esso Petroleum Company Limited v Secretary of State for Transport  R.V.R 351
Spirerose Ltd v Transport for London  1 WLR 1797
Persimmon Homes (Midlands) Limited and others v Secretary of State for Transport  UKUT 126
Steel v Scottish Ministers 2015 S.L.T. (Lands Tr) 81
Kennedy v Cordia (Services) LLP  UKSC 6
JS Bloor (Wilmslow) Ltd v Homes and Communities Agency  UKSC 12;  1 All ER 817
Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Co Ltd  UKSC 66
Rowan Robinson and Farquharson-Black, Compulsory Purchase and Compensation: The Law in Scotland (3rd Ed)
7. The AWPR was completed in 2019. It is the A90 special road bypass around the City of Aberdeen. It extends the from Stonehaven junction to the south to the Blackdog junction to the north of the city. There are three sections known as the Fastlink, the Southern Leg and the Northern Leg. The AWPR includes various junctions to the main corridors into and out of Aberdeen. The present case concerns the vicinity of the Craibstone Junction with the A96 in the north-west of the city, which is part of the Northern Leg. Further north, by means of a separate statutory scheme but simultaneous construction process, the dual carriageway has been extended north of Blackdog between Balmedie and Tipperty.
8. Aberdeen City Council (ACC) and their predecessors have had an aspiration for a bypass around Aberdeen since the 1950s. A route known as the City Bypass was identified in the 1970s. Another route was identified in the 1980s involving a Cross Country link as it was described. In the 1990s Grampian Regional Council developed information for various routes including a route from the south from the A90 at Charleston to the A96 at Dyce Drive, which was known as the western leg or Western Peripheral Route (WPR). In the 2000s NESTRANS identified a northern leg for the WPR that linked the A96 with northern areas of the city and the north-east. They promoted the MTS following a STAG appraisal which proposed a package of transportation measures, including the WPR for which there were three route options.
9. On 19 March 2003 there was a ministerial announcement that the WPR would be promoted as a trunk road in partnership between the Scottish Executive, ACC and AC. Thus Scottish Ministers endorsed the MTS and confirmed funding for the WPR. Consultants were appointed to refine the indicative route. At this point the WPR was actively pursued. In 2005, Scottish Ministers confirmed the route of the WPR which was renamed the AWPR. After further appraisal work the preferred alignment was announced on 2 May 2006.
10. Draft Roads Orders were made by Scottish Ministers on 14 December 2006. Draft compulsory purchase orders were made on 25 September 2007 and 1 May 2008. A public local inquiry was held between September and December 2008. The reporters submitted their report on 30 June 2009 advising that the proposal was generally acceptable. Scottish Ministers decided to make the relevant orders on 21 December 2009. The Special Roads Orders and Compulsory Purchase Orders (the CPOs) were made on 11 March 2010. A legal challenge to Scottish Ministers’ decision was made in 2010. The challenge was finally dismissed by the Supreme Court in October 2012.
11. A General Vesting Declaration for the Craibstone land was made on 29 November 2012. Parties are agreed that the date of vesting for present purposes is 11 January 2013.
12. According to the Modern Transport System (MTS p14) in 2003, the AWPR is described as:
“…the key single element of the MTS … a facilitating project which allows other parts to be implemented.”
“The key roles of the WPR are to enable through traffic to bypass Aberdeen, which in turn allows for prioritisation for buses, cycles and pedestrians within the urban area. It also improves peripheral movements around the city, improving access to Park & Ride sites and relieving heavily used, unsuitable rural roads. It will improve accessibility to existing and planned employment locations and open up possibilities for future land release. Finally it will transform accessibility of freight and business service movements to and from the north and west of Aberdeen.”
13. According to Transport Scotland’s background statement to the public inquiry (paragraph 7.5, dated July 2008) the specific objectives of the scheme, with reference to Scottish Government policy, were:
- “improve access to and around Aberdeen to improve transport efficiency and support the industrial areas in the city and the area to the north and west of Aberdeen (Economy and Employment);
- Provide traffic relief (including the removal of long distance heavy goods vehicle traffic) on the existing congested A90 route through and to the south of Aberdeen (Environment and Accessibility);
- Reduce traffic on urban radial routes reducing noise and air pollution and creating opportunities for pedestrianisation in the City Centre (Environment and Accessibility);
- Provide access to existing and planned park and ride and rail facilities around the outskirts of the City encouraging modal shift (Integration);
- Increase opportunities to maximise bus lanes and other public transport priority measures (Integration); and
- Improve road safety over a wide area through the reduction of traffic on local roads (Safety).”
At that time the programme anticipated the scheme to be open for use in late 2012.
14. The applicants own the Craibstone Estate and operate the rural college there. The college was formerly operated by the North of Scotland College of Agriculture and subsequently the Scottish Agricultural College. The estate includes veterinary laboratories, research fields, classrooms, farm buildings, nursery buildings and other education and research facilities. The buildings and centre of the estate lie to the south of the A96 trunk road, and the main access is approximately 600m west of the edge of Bucksburn which itself represents the urban edge of the city. The applicants own more land to the north of the A96. They also own various parcels of land to the west and south of the central part of the estate, with which we are not concerned. The buildings are situated on the retained land. Prior to the construction of the AWPR, the retained and acquired parts of the applicants’ land essentially comprised a triangle, with the A96 running to the north-east, a minor road the C89C running to the west and the south-eastern boundary broadly following a burn. The land is undulating and a significant feature is the large number of mature trees.
15. The main pre-scheme access for the applicants’ site is at the east corner where there had been a small roundabout on the A96, with an arm leading to Dyce Drive and the airport, industrial and employment areas to the north. This is the Craibstone access/ Dyce Drive/ A96 junction (“the Craibstone access”). There is a secondary left in, left out, access to the A96 further to the west, where there is also an underpass to the applicants’ veterinary centre to the north of the A96. There was also access at the west via the C89C road, distributing to the south and north onto the A96 at the Marshall junction.
16. The effect of the construction of the AWPR is that the land at the west of the triangle has been bisected, and the north portion of the triangle has also been taken for the link road to the A96. This is in the form of a large roundabout, known as Craibstone Junction (not to be confused with the Craibstone access junction above described.) The existing buildings on the site remain in situ. There is no longer access to the C89C from the retained land.
17. The large Craibstone Junction roundabout is part of a grade separated junction between the AWPR and the A96. It has a link called the Airport Link Road, leading to Dyce Drive and the airport. This link was constructed outwith the scope of the statutory works, although was facilitated by them. The much smaller Craibstone access roundabout has been upgraded to a large signalised junction, which we understood was part of the scheme works. There is a park and ride facility on the north side of the A96, which like the airport link was constructed outwith the scope of the statutory works, but is part of a wider transport network.
18. ALP 2008 did not identify an alignment for the WPR, although provided that the council would assist in refining and safeguarding a final alignment. Craibstone Estate was designated in the greenbelt in terms of policy 28, which was a strict policy. Other higher education and research institutions such as Robert Gordon University at Garthdee and the nearby Rowett Institute at Stoneywood, having previously been situated in the greenbelt, were identified as “Existing Community Sites and Facilities” under policy 45. This was a less strict policy, as we shall discuss later.
19. The 2009 structure plan set a significant population increase target of 40,000 by 2030 for Aberdeen and Aberdeenshire, and an associated ambitious housing allocation for the provision of 72,000 houses. A high forecast scenario for population growth was used. The structure plan identified three strategic growth areas (SGAs) as the focus for future development. These centred on Aberdeen and the main public transport routes. The areas were said to be relatively narrow as being up to 5 km wide, with the aim of being highly accessible to public transport. The three SGAs were Aberdeen City, a lengthy south to northwest corridor between Laurencekirk to Huntly along the A90 and A96, and a northern corridor on the A90 between Aberdeen and Peterhead. The applicants’ site fell within the Aberdeen SGA, albeit with Craibstone also being situated close to the start of the A96 part of the corridor leading to Huntly.
20. The structure plan strategy required around 50% of the new housing development to be accommodated within the Aberdeen City SGA. The plan acknowledged that more than half of the required development there would have to take place on greenfield sites. Schedule 1 of the plan identified allowances for the Aberdeen City SGA of 12,000 houses on greenfield land between 2007 and 2016, 5,000 houses between 2017 and 2023, and 4,000 houses between 2024 and 2030. There was a build target of 2,500 new homes per annum by 2014 and 3,000 new homes per annum by 2030. This represented a very considerable increase in output upon previous allocations in NEST 2001. Substantial employment land allocations were also made on the SGAs. The plan acknowledged a requirement to invest in the existing and new infrastructure.
21. The 2012 ALDP complied with the 2009 structure plan by making substantial allocations of housing land. Various sites were identified along corridors to the south, west, northwest and north of the city.
22. The applicants’ retained land was allocated for housing as site OP29 Craibstone South. There is an allowance of 750 houses for the period between 2007 and 2016, and a further 250 for the period between 2017 and 2023, a total of 1,000. The local plan also allocated the adjacent Rowett South site as OP30 for a total of 1,940 houses phased over a longer period to 2030. The OP 30 site is in turn adjacent to Bucksburn. The local plan further allocated a site OP31 Greenferns Landward for a total of 1,500 houses also phased to 2030. This site is adjacent to, and lies to the south of the OP30 site. The combined area would create a continuous settlement along the south of the A96 between Bucksburn and Craibstone. The combined area was therefore allocated a total of 4,400 houses. The area became known as the Newhills Expansion Area and amounts to a westward expansion of Bucksburn and the city.
23. ALDP 2012 was applicable at the vesting date. The route of the AWPR was safeguarded under policy T1, and the land to be acquired from the applicants also remained in the greenbelt. There is a possible question over the exact CPO plot boundaries falling within the LDP designations, which we will not seek to determine here.
24. The identification of the above sites had followed a “call for sites” by ACC in early 2009 from developers and landowners. The council’s assessment comprised a “transport framework” and a “development options assessment”. The first stage of the transport framework involved dividing 126 bid sites into eight separate areas around the city as potential “directions for growth” options. A “guide” document by ACC dated October 2019 showed results of the assessment. One of the aims was to identify “the most sustainable and accessible locations for development…” The A96 between Dyce and Bucksburn was considered as a direction for growth option under “Area C”. The assessment was based upon existing and proposed transport provision, focussed on sustainability and included all modes of transport. Area C included the applicants’ site and what was to become the Newhills Expansion Area and produced the highest (i.e. most favourable) score.
25. The second stage of the transport framework occurred later and related to the emerging development plans for the City and the Shire. A cumulative transport appraisal was commissioned from consultants by NESTRANS, who reported in July 2010. The study looked at the main corridors into Aberdeen, including the A96, and assessed them in terms of time lost to congestion. The consultants used a “strategic multi-modal transport model (Aberdeen Sub Area Model)” (ASAM). The report had a base year of 2010, Scenario 0 for 2023 with committed infrastructure only, Scenario 1 for “high growth” to 2023 representing the full aspirations of the structure plan + committed infrastructure and Scenario 2 to 2023 for “medium growth” + committed infrastructure. Scenario 1 included the major development allocation sites in Aberdeen and Aberdeenshire, including the applicants’ site / Newhills Expansion Area and included proposed employment sites at the Dyce Drive area and the airport. The “committed infrastructure” included infrastructure specified in the structure plan such as the AWPR, Haudagain roundabout improvements and a third Don crossing. It also included an A96 to airport link road.
26. It can be seen from the study (e.g. fig 5.1) that the “committed infrastructure” made significant improvements to travel times at Bridge of Don and the Haudagain roundabout. The report mentions that this is not surprising as the AWPR, third Don Crossing and Haudagain improvements would all be expected to benefit that section of the network. With reference to the A96, the comparison between base and S0 shows almost no improvement. With the S1 and S2 developments, the report states:
“5.5.10 With the introduction of a major access point connecting with the AWPR, coupled with the closeness of large development sites, the A96 corridor will likely experience a considerable rise in traffic levels over time …
5.5.11 The increased road and junction capacity associated with the AWPR is forecast to lead to a reduction in congestion levels in the short term. However, with the level of development located close by and also further west along the A96, the modelling indicates that the road network would come under increased pressure and potentially lead to higher delays than currently experienced.”
27. The CTA then considered transport interventions to combat or mitigate the potential impacts associated with the development plan. These involved road and public transport based measures, over and above those already committed, which the model tested. The interventions included capacity improvements at the Craibstone access/ Dyce Drive/ A96 junction. The report concluded that a general reduction in congestion could be achieved by 8.5% across “the whole area.” With reference to figs 7.1 and 7.2 the report stated at 7.2.6:
“Compared to the basic development plan scenario (2023: S1) the level of improvement to traffic conditions with the package is considerable, particularly for the A96 corridor, where overall congestion returns to present day levels.”
28. In parallel with the transport framework, ACC undertook an assessment of the 126 bid sites under the development options assessment in October 2009. This considered each site against non-transport planning criteria. From this, a shortlist of 19 sites were identified as suitable for development. This included the Craibstone site which, for the purpose of the assessment, included the retained land to the south of the A96 and other of the applicants’ land to the north of the A96. The south land was bid for housing and the north land was bid for employment uses. The recommendation stated that the site was “desirable”. The assessment stated:-
“Essentially two sites in one development option. The college is in well wooded grounds and not visible from the A96 so development here is likely to be relatively unobtrusive. This could provide an attractive and well sheltered living environment provided the steeper slopes and potential flooding areas are avoided and the tree and woodland areas are maintained and enhanced. A good mix of development at a reasonable scale is proposed and its proximity to employment land opportunities in the area will help place less reliance on the car. Nevertheless public transport links will need to be improved as buses using the A96 will not be readily accessible to people living up the hill in the southern part of the site. … Development on the western side of the WPR, which runs through the site, should be avoided as it would be severed from the main part of the settlement. Land safeguarded for the WPR should not be zoned. Noise issues from the airport and surrounding roads would have to be addressed as would flooding issues.”
29. The report proceeded to discuss the applicants’ northern site, which was seen as desirable for employment uses. The adjacent Rowett North and South sites belonging to the University of Aberdeen were also assessed. The north site was assessed as desirable as employment land. The eastern portion of the south site was also recommended as desirable for housing. The Greenferns Landward site was also discussed, in which one section was recommended as desirable for development. The 19 shortlisted sites were described as “the sites which emerged as the most suitable locations for development through the assessments.”
30. The applicants’ site was considered through a Main Issues Report and was included in a draft local development plan, which was subsequently examined in public by a DPEA reporter. The 2012 ALDP was adopted by the council in February 2012.
31. At Table 6 the LDP provided for the Craibstone South and other allocations. Paragraph 2.25 states:
“Substantial land allocations have been made in the Dyce/Bucksburn A96 corridor close to Aberdeen Airport, which is one of the gateways to the Energetica corridor. The proposed AWPR will provide benefits in this area with a junction proposed at the A96. In addition a Park and Ride site is already proposed in this area along with a new access road into the Dyce Drive area. The proximity of housing and employment land allocations opens up the opportunity for people to live close to places of work.”
32. The LDP contained a policy I1 – “Infrastructure, delivery and developer contribution”. This stated:-
“Development must be accompanied by the infrastructure, services and facilities required to support new or expanded communities and the scale and type of developments proposed. Where development either individually or cumulatively will place additional demands on community facilities or infrastructure that would necessitate new facilities or exacerbate deficiencies in existing provision, the Council will require the developer to meet or contribute to the cost of providing or improving such infrastructure or facilities.
Infrastructure requirements relating to Masterplan Zone sites and other allocated sites outwith the Masterplan Zones are set out in Appendices 4 and 5. …”
33. The Newhills Expansion and Dyce Drive area is included as masterplan zone 4. Appendix 4 specifies infrastucture requirements for masterplan zones. Zone 4 has a requirement for an access from employment sites on to a new Dyce Drive link road. There is also a requirement for a road connection from the existing roundabout at A96/Dyce Drive (i.e. the Craibstone access) through the masterplan area and to Kepplehills Road to the south. The policy I1 refers to a Local Development Plan Action Programme and an Infrastructure and Developer Contributions Manual.
34. Paragraph 3.4 further states:-
“The Action Programme will be updated on an ongoing basis and revised versions will be formally published on the Council’s website every two years. The provision of infrastructure is fundamental to the deliverability of a development proposal and in many circumstances development will not be allowed to proceed if the infrastructure and service improvement requirements cannot be met.”
Paragraph 3.5 states:-
“We will consider whether the provision of necessary infrastructure either on or off-site can be achieved through the use of conditions attached to the grant of planning permission. Where this cannot be achieved we will seek a fair and proportionate financial contribution towards supporting infrastructure through a Planning or other legal agreement …”
35. The 2012 ADLP also contained a policy CF1 “Existing Community Sites and Facilities.” This is the successor of policy 45 in the 2008 ALP. The policy states:-
“Existing further education and research institute sites shall be used mainly for these purposes. Proposals for new or extended uses of these types on these sites will be supported in principle. Where land or buildings become surplus to current or anticipated future requirements, alternative uses which are compatible with adjoining uses and any remaining community uses, will be permitted in principle. Large sites or sites in sensitive locations will be subject to a Planning Brief or Master Plan.”
36. ACC produced an Aberdeen Local Development Plan Action Programme (ALDPAP) dated 18 May 2012. This listed 11 masterplan zones including zone 4 for Newhills Expansion Area and Dyce Drive, and indicated that Masterplans would be expected to identify and reflect the infrastructure requirements. The document indicates for the OP29, 30 and 31 sites it was important for developers in masterplan zone 4 to work together to produce a development framework. Elsewhere the ALDPAP lists infrastructure projects of “city wide significance”. These included the AWPR and Haudagain roundabout improvements which are described as having Transport Scotland and ACC as the lead agency. Also mentioned were the third Don crossing, the A96 Chapel Brae Park and Choose and A96 to Dyce Drive/Aberdeen Airport link road for which projects ACC is described as the lead agency. It also mentions developer contributions and a Strategic Transport Fund.
37. Also in 2012 supplementary planning guidance was approved known as “Delivering Identified Projects Through a Strategic Transport Fund 2012”. This supplementary guidance was wider than the local transport fund scheme which we shall come on to discuss. The strategic transport fund required developer contributions proportionate to the scale of new development. It was subject to legal challenge and quashed by the Inner House on 29 April 2016, which decision was upheld by the Supreme Court on 25 October 2017 in Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Co Ltd.
38. So to summarise thus far, at the vesting date of 11 January 2013, the 2012 ADLP was in place. This safeguarded the to be acquired land for the AWPR and allocated 42.6 ha of the applicants’ retained land for 1,000 houses under reference OP29.
39. The 2014 Strategic Development Plan (ACSSDP 2014) was approved by Scottish Ministers on 28 March 2014, replacing the 2009 Structure Plan.
40. A development framework document for the Newhills Expansion Area was duly provided as part of a masterplanning process. This was put together by the applicants’ design team, led by OPEN and was intended to comply with local plan requirements. It became formal statutory supplementary guidance by ACC in 2015. It coincided with an application for planning permission in principle by CALA and the applicants for a residential development of approximately 700 houses and others submitted in April 2014. The development framework set out the planning and development context for the OP29, OP30 and OP31 sites. In connection with the AWPR the design team stated at 1.5.5 (p10):-
“The current Aberdeen Local Development Plan allocation allows for the delivery of 2500 new homes within the 2007-2016 Plan period across the OP29, OP30 and OP31 sites. As such the principle of residential development has been established through said allocations and there is no requirement within the ALDP for the upfront delivery of the AWPR, prior to build-out of residential units. However the development will be located in close proximity to the AWPR, which will bring benefits such as a new grade separated junction proposed on the A96 and as discussed above, upon completion, it will alleviate pressures on the surrounding road network. There is capacity on the existing network prior to the scheduled completion of the AWPR in 2018. The ongoing strategic modelling will identify where this capacity is and what improvements need to be made to use them. Unfortunately with such a large scale it would not be possible to deliver all the association infrastructure requirements upfront as the outlays would be excessive.”
41. At 2.4.1 the framework document discusses the SRUC buildings to be retained or to be retained temporarily. At 4.3 it discusses residential capacity in OP29 and discusses under “Scenario 2” that there was a constraint in the form of a green space network which would require the retention of 20.26 ha leaving a developable area of 21.64 ha from the OP29 site in the applicants’ control. It was considered that it would not be possible to retain SRUC buildings and also deliver 1,000 housing units, although it would be possible to retain certain SRUC functions and provide 700 units. The document also discusses landscape features and landform in some detail. It deals with sustainable methods of transport including pedestrian, core path and strategic routes, cyclists, active travel and public transport. There would be two primary schools and a health centre on the Newhills wider area. At paragraph 5.3.7 an access strategy states that prior to 2018 and any of the listed major highway improvements, development at Craibstone and Rowett South can commence utilising existing access. This included the Craibstone access/Dyce Drive/A96(T) roundabout from Craibstone. At paragraph 5.4 the document stated:-
“Transport modelling. A traffic modelling exercise is currently being undertaken to identify the impact of all the developments in the A96 corridor to the north west of the city. The modelling will inform a strategy which will determine the form, timing, funding, delivery mechanism and the phasing of the necessary improvements to the A96 corridor. The detailed Masterplan(s) will determine design, mitigation and final layout of the Rowett South and Craibstone South sites adjacent to the A96 once the junction strategy and necessary improvements have been determined for the corridor.”
42. Fairhurst prepared an “A96 Access Strategy” to support the development framework for Newhills Expansion Area. The report is dated May 2014. This modelled various junction scenarios on the A96 corridor, including the Craibstone access/ Dyce Drive/ A96 junction. We understood that this work was, in effect, superseded by ACC’s own access strategy.
43. In May 2015 transport consultants SIAS produced a Dyce Option Testing report for ACC. This involved more traffic modelling, using an updated model known as S-Paramics. A certain amount of “matrix manipulation” was required to use existing ASAM data in this model. The study tested various scenarios for developments in the Dyce area and A96 corridor, including employment land and the Newhills Expansion Area development. Amongst other things it tested a “do-minimum” scenario – i.e. for various years to test the impact of development in association with only committed infrastructure projects. These included the AWPR, an Aberdeen Airport link road and, amongst others, a new signalised junction between the A96 and Dyce Drive (i.e. the Craibstone access). The study concluded that the “do-minimum” infrastructure alone would be insufficient to accommodate the predicted levels of traffic. Testing indicated (paragraph 6.2) that an A96/ Dyce Drive grade separated interchange would be required should development proceed. Various grade separated junction configurations were tested (4.4.3; 4.4.5), and according to the report ACC were content with the results.
44. OPEN proceeded to produce a masterplan for Craibstone Estate dated July 2015 which was a development of the Newhills framework document. It was also prepared to support of the application for planning permission in principle. We understood the masterplan was adopted as supplementary guidance by ACC. The document follows a decision by the applicants to vacate the Craibstone Campus. The masterplan was provided to show how the concept for Craibstone could be developed to meet the requirements of both the applicants and the ALDP 2012. The document states that analysis and capacity testing by engineers and architects from CALA indicated that approximately 700 residential units, if developed in a sustainable manner sensitive to the character of the estate, would be the most appropriate scale of development which was deliverable on the basis of current market conditions. CALA’s stated view was that the densities required to meet the LDP target of 1,000 homes was not deliverable given the greater than expected AWPR land take. The document discusses the land capacity of the estate. It notes the buildings to be retained or retained temporarily, noting that one of the main buildings namely the Ferguson Building would be only retained temporarily. The document provides an illustrative plan. The masterplan includes an area marked by yellow dashes as:
“…extents of corridor required for A96 infrastructure works. ACC to provide further detail for review and refinement of the Masterplan.”
The yellow dash area surrounds the Craibstone access roundabout at the A96 and Dyce Drive, and includes land to the north and south of the A96 (i.e. much of which we understood to be in the ownership or control of the applicants) as well as other areas to the east. The document also states at 4.9.3 (p52):-
“The A96 Dyce Infrastructure Corridor. Without the final proposals or mitigation measures known at this stage the proposals presented in this document do not reflect the proposed A96 infrastructure works. It is anticipated the final proposals will include mitigation measures and will allow for the layout to be reviewed accordingly as part of future Detailed Applications/MSC. The Detailed Applications/MSC must include detail analysis including 3d visuals, sections and visual assessment to ensure an appropriate response to the location.”
45. The 2014 planning application was approved in May 2017. The permission was subject to a legal agreement under s75 of the 1997 Act. Condition 27 limited the development to no more than 200 occupied residential units prior to the Dyce/Craibstone section of the AWPR being opened to traffic, without agreement of the planning authority. The reason was said to be to restrict the scale of the development in order to minimise the interference with the safety and free flow of traffic on the trunk road. Other conditions referred to the Craibstone masterplan.
46. The planning application had been supported by a transport assessment by Fairhurst dated March 2014. The study concluded, amongst other things, that the Craibstone access/A96/Dyce Drive roundabout was at capacity prior to the inclusion of the Craibstone development traffic. However, with the exclusion of certain “rat running” traffic which would be eliminated as a result of the proposals, and with the reduction in traffic due to the redundant use of existing buildings, the performance of the junction to a no-net detriment situation allowed for up to 200 units to be accommodated at the site. The report also noted that upon completion of the AWPR, the Craibstone access roundabout would be replaced by a full signal controlled crossroads as part of the AWPR infrastructure package. Analysis of a signalised version of this junction indicated that all of the Craibstone development could be accommodated for AM and PM peak periods at 2025. The conclusion of the assessment was accepted by the authorities and the number of housing units was thus initially limited to the 200 units.
47. During the planning application process, ACC contacted Fairhurst on 2 March 2015 regarding the S-Paramics model being used to assess the impact of developments upon the local road network. ACC’s Dyce modelling indicated a need for road network improvements estimated at £65m. Agreement was reached that the contribution level required towards local road improvements from developers would be £3,500 per trip during peak hours. The local road improvements contribution required for the Craibstone development – based on a 600 not 1,000 house development – would amount to £2.751m on the basis of 786 trips being generated in weekday peak hours. A s.75 agreement was eventually entered into between ACC, the applicants and CALA in March/May 2017. This included a local transport fund contribution of £3,135 (index linked) per housing unit erected. Clause 14.1 provided that the Council would be permitted to use the contribution for the provision of a grade separated A96/Dyce Drive junction (i.e. the Craibstone access), dualling of the road between Dyce Drive to Argyle Road and modification of signals timing at the A96-Dyce Drive junction. Various other contributions were provided for in the agreement, including an “A96 improvement total” of £98,000 which, in terms of Clause 13.7, was to be used by ACC to provide junction or capacity improvements on the A96.
48. We were also shown an earlier minute of agreement between ACC and the University of Aberdeen relating to the OP30 land, dated August 2016. The University were required to contribute to the local transport interventions fund (i.e. the same fund totalling £65m) at the rate of £4,480 in respect of each house erected. Part 4A of the agreement provides for the “proposed interventions” with a cost estimate. These included a grade separated junction on the A96 at Dyce Drive estimated at £11m and dualling of Dyce Drive from the A96 to the Airport junction, amongst others.
49. An updated CTA was produced in November 2017 to assist an update to the strategic development plan for NESTRANS. It provided a baseline date of 2017; i.e. prior to the delivery of the AWPR. It discussed the earlier modelling carried out in 2010, and with a 2017 baseline considered various scenarios as might emerge in 2023 and 2032.
50. We now attempt to summarise the main points spoken to by the witnesses in evidence and their written reports. Given the very extensive material – for example two planning reports are 70 and 50 pages long respectively – we shall attempt to avoid discussing these in excessive detail.
51. The applicants in their written evidence had presented a “scenario whereby the AWPR is absent, but there is another similar transportation measure in place e.g. another western peripheral route around Aberdeen.” It became apparent early on in the hearing that this scenario was not being insisted upon. It also became apparent that the applicants were placing little reliance upon a supposed design solution for the Craibstone access roundabout being presented by Fairhurst, no doubt in the light of many detailed criticisms in the written evidence of Jacobs. We mention these matters here as they have a bearing on certain later procedural submissions by the respondents.
52. Mr Richardson produced a witness statement by which he discussed the applicants’ history and estate strategy. The college had made a business transformation plan in 2004 which involved disposing of surplus land at Auchincruive, Ayrshire and at Craibstone. Large reductions in campus areas were recommended. This meant a developer partner was required to help develop the surplus areas. Ultimately in late 2005 CALA were selected as developer and a formal agreement was entered into in 2006. Much of Mr Richardson’s evidence discussed the views of CALA as stated in the latter’s “Stage 1 -Expression of Interest” for the Craibstone campus site made in a detailed submission dated 25 April 2005, and a “Stage 2 proposal” dated 23 September 2005.
53. CALA’s assessment in the stage 1 submission was that, unlike some housing sites, Craibstone was not reliant upon the completion of AWPR. The council required to maintain a 5 year land supply, which was under significant pressure, and it was likely that sites not reliant upon the AWPR would be required. The site was considered for the purpose of creation of a new community, not a suburban extension. There were precedents for releasing land for housing which had had institutional uses in the greenbelt. It was felt that Craibstone could be promoted relatively quickly as there was a “fairly compelling” case for the early release of Craibstone land. The stage 1 expression of interest also stated:-
“The proposed AWPR fundamentally alters the Estate’s context by redefining its relationship to the existing urban edge. Those parts of the SAC landholding which are located to the west of the new road, and comprising agricultural or forestry uses are considered to have limited development potential in the short to medium term. They may however provide important, potential recreational resources to support the potential land uses to the east of the bypass. The AWPR will establish a new gateway to the City where it meets the A96, and this will change the physical context of those parts of the landholding which are located to the east of the junction, by relating the Estate to the urban edge rather than the open countryside. This contextual change, together with the major development proposals to the north of the A96 in the emerging Local Plan, underpin the case to examine the role that the Craibstone Estate can play in the future planning of the City …”.
54. In the stage 2 proposal CALA viewed the AWPR “as an opportunity and not a constraint to the development of the subjects.” They referred to discussions with ACC planning officers who had admitted that the site had not been considered for future development simply due to the ongoing education use. Officers admitted that the single largest employment proposal within Aberdeen in the then local plan, for which there was all agency support, was the nearby Dyce Drive proposals. Officers saw this as critically important to the longterm economic prosperity of the City which was coupled to the AWPR and interchange on the A96. At some point “the penny appeared to drop” with the officers as to the potential for housing to the south of the A96 to supplement the economic and transportation investment at Dyce Drive, namely the proposed Park & Ride scheme there. Reference was also made to the lack of a backup should a scenario unfold which leads to delays in the local plan or sites being recommended for deletion by a reporter. It followed that release of land for housing at Craibstone complimented the Dyce and AWPR proposals. A forthcoming local plan inquiry was anticipated in January 2006. It was clear that the AWPR to the immediate west of the subjects would form a longterm defensible urban boundary for Aberdeen and it was the position of ACC that no future development should breach this line. The concept which CALA were intending to promote was a “Craibstone Village” with links to the proposed Park & Ride site as well as direct links to the A96 and proposed AWPR.
55. The stage 2 submission accepted that the AWPR would have a major impact on access to the proposed development site. It was also thought likely that the AWPR and the new A96 grade separated junction would reduce the level of traffic onto the Craibstone / A96/ Dyce Drive roundabout, particularly if the AWPR link road connected into the Dyce Drive industrial estate. In addressing traffic impact it was considered that the existing roundabout could be geometrically enhanced.
56. As matters took their course the early release of land for housing proposed by CALA for a standalone development did not occur. It became necessary to promote development through the local plan in conjunction with the other Newhills Expansion Area sites. The current proposal for 700 houses on the retained land assumed most of the campus and other working buildings would be demolished, including the central Ferguson building.
57. Mr Welch spoke to his witness statement and report of 11 September 2019. This included a comparison of the “with-scheme” Craibstone masterplan and a “no-scheme” alternative masterplan showing additional houses which could have been developed but for the AWPR scheme. Essentially the latter added a further 320 houses to the proposed 700 “with-scheme” proposed houses. CALA’s requirements and landscape considerations had informed a reduction in capacity of the OP29 site from 1000 to 700 houses. The original 1000 figure had been arithmetical based upon the size of the site.
58. The landform of the site comprised certain ridges, slopes and mature woodland. These features assisted him in designing where the additional housing could have gone in the no-scheme world. The features are explained in EDAW’s diagrams as appendix 2 to CALA’s stage 1 document. This landform allowed him to design additional housing areas “One,” “Two,” “Three,” ”Four’” and “Five” in the alternative masterplan. Essentially the new housing was designed around the ridge lines and woodland. The western boundary, instead of the AWPR, moved westwards to the minor road C89C with reinforced planting.
59. By 2012 it had become apparent that the Council wanted masterplanning for the whole of the Newhills Expansion Area. The three sites were linked and would share facilities in the form of primary schools and a health centre. Nevertheless he was of the view that the Craibstone site could have proceeded in isolation, since it was of the same distance to the A96 as the other two sites and was nearer the Dyce employment land. He understood that other local plan sites had greenbelt boundary features not dissimilar to that proposed in the no-scheme C89C.
60. Mr Stirling produced and referred to a written witness statement and spoke to Fairhurst reports of January 2016 and September 2019 which had been prepared for the compensation claim. He also produced a rebuttal report of October 2019 and a supplementary witness statement in response to certain reports by Jacobs.
61. The 2016 report had tested the existing signalised roundabout at the Craibstone access/Dyce Drive/ A96 junction using predicted traffic flows from the 1000 proposed houses. A colleague had carried out the modelling but he was aware of the assumptions being used. The model identified and tested a mitigation solution for improving the performance of the roundabout, which principally appeared to comprise new lanes and other markings on the existing structures. The report also concluded that the site was well connected to existing sustainable transport networks. The underlying LinSig modelling was based upon 2013 observed flows and thus assumed the absence of the AWPR. The study also assumed a limited amount of cumulative impact in the form of additional committed development, i.e. limited to developments identified as having permission to proceed in advance of the AWPR. These included a business park known as ABZ1, phase 1 of the Aberdeen International Business Park (AIBP) and 175 units of the Rowett South residential site.
62. The 2019 Fairhurst report added a further chapter dealing with wider traffic impacts beyond the Craibstone access/ Dyce Drive/ A96 roundabout junction. It concluded that mitigation solutions for the A96 corridor identified and designed to accommodate the predicted levels of traffic arising from the AWPR completion and local development plan development, could have been adapted to accommodate the higher level of development at the Craibstone site in the absence of the AWPR. The study did not look as far east as the Haudagain junction.
63. Using data from the earlier Fairhursts A96 Access Strategy study, it was shown in figures 201 and 202 that completion of the AWPR was predicted to increase the A96 eastbound flow between the Craibstone junction and the Sclattie Park roundabout (further to the east) in the AM peak by approximately 70%, and the PM peak eastbound flow by 60%. The methodology and the 60% figure was challenged by Mr Barr, and while Mr Stirling did not defend the 60% figure, he did not accept the criticism of his methodology. The PM peak westbound flows between the same points increased by up to 20% from pre-AWPR levels. The conclusion was that the impact of the AWPR could be identified as resulting in increases to peak period flows rather than the reduction which might be anticipated.
64. With regard to Mr Barr’s “true like for like” comparison between AWPR and no AWPR, this in fact showed a reduction in westbound AM traffic without the AWPR, not a marginal increase as stated. The with AWPR scenario showed a 13% increase in eastbound traffic on the A96 east of the Dyce Drive access, which supported the Fairhurst position. The Jacobs figures showed a very large increase in traffic westbound west of the Dyce Drive junction on both scenarios which required an explanation.
65. As identified mitigations derived from the earlier Fairhurst A96 access strategy study were sufficient to accommodate the Craibstone and Newhills developments in the presence of increased flows resulting from the AWPR completion, it was reasonable to conclude that similar mitigations could have been implemented in a no-scheme world to accommodate full development. A no-scheme world would “result in traffic flows continuing to be to and from Aberdeen with Dyce Drive and Aberdeen Airport being a key attractor, rather than a bias to and from the AWPR at the Craibstone junction which saw increases in traffic demands east of the junction as drivers reroute journeys away from the existing network to take advantage of the higher speed links.” The figures showed, with some exceptions, greater traffic post-AWPR than pre-AWPR on the A96 corridor. He explained in general terms post AWPR drivers would be attracted to go west in order to go south, i.e. westbound traffic would be generated along the A96 (through the Craibstone access) to the AWPR in order to turn south. On the other hand the figures showed a decrease in delay causing right-hand turn manoeuvres made by westbound traffic at the Craibstone/A96/Dyce Drive junction, since it was easier for post scheme traffic to go to the airport by carrying on straight through the junction in order to use the new airport link road. There would be more traffic eastbound, which would divert to the A96 from other “spokes” of Aberdeen via the AWPR.
66. It was noted that a developer contribution from the applicants of £2.751m for local road improvements had been agreed with ACC. This was based on the outputs from the Dyce S-Paramics model. A base of 600 dwellings was agreed by ACC instead of 700 on the basis that there would be a net reduction in traffic flows resulting from the loss of remaining SRUC land uses. Mr Stirling was asked if he agreed with a statement by Mr Gillespie (acting for Transport Scotland) concerning ACC’s Dyce Drive corridor study. The package of mitigation measures under consideration had an estimated capital cost of £65m, including a grade separated junction for the existing Craibstone access/Dyce Drive/A96 junction, and dualling of Dyce Drive. These and others had been identified as necessary for the delivery of development in the with AWPR scenario. Mr Stirling agreed with Mr Gillespie’s view, albeit expressed by Mr Stirling in more emphatic terms, that these or similar improvements could have improved the performance of the existing network in the no AWPR world.
67. The ASAM model used in the CTA showed “Time Lost to Congestion within Key Areas of the Network” to be almost unchanged between the actual 2010 measurement and a 2023 “Do Minimum” scenario, which latter scenario included the effect of the AWPR. It was accepted that the latter did not include allocated development and the relevant section of his report was incorrect in this respect. The report did not however identify junctions to the east of the Craibstone access/ Dyce Drive/ A96 junction as major sources of delay.
68. The SIAS (now Systra) Dyce options testing report confirmed that a significant amount of the Craibstone and Rowett South traffic would route to the Dyce Drive and Aberdeen Airport area, minimising impacts on the A96 corridor. As regards the wider local plan developments, he emphasised that the report stated that “even with the proposed interventions (i.e. including the AWPR), a high level of delay is forecast throughout the network.” He pointed out that the delivery of post-AWPR development would result in improvements at the Craibstone access/ Dyce Drive/ A96 junction and at Wellheads Drive which would be required in any event as they are designed to deal with local traffic issues. He anticipated that a signalised crossroads junction at Dyce Drive, similar in configuration to that constructed as part of the AWPR works, and in replacement of the signalised roundabout junction, would have been required. This would have been contributed to by all developers whose developments were determined to have a traffic impact at that junction.
69. Mr Barr’s “Test 1” and “Test 2” of the Fairhurst mitigation proposal was not a fair comparison, since it added all 2012 ALDP development traffic and updates to 2016. The Fairhurst study was designed to exclude impacts of developments which required the AWPR to be in place. In the no-scheme world the developments added by Jacobs would have required to contribute to an alternative mitigation solution. The “Test 2” modelling showed major grade separation improvements to the A96/A947 junction resulted in longer queues at the Craibstone access/ Dyce Drive/ A96 junction because the traffic was no longer delayed en route. This scenario would be expected to result in a different solution being identified and was not the basis on which the Fairhurst assessments were completed.
70. Mr Stirling accepted his figures (fig 103 in revised 2019 report) showed that Craibstone development traffic would increase traffic flows to other junctions on the A96, including the A96/947 Bucksburn roundabout (17% increase eastbound) and the Haudagain junction (12% increase southbound) in the AM peak hour. The Haudagain roundabout had not been modelled in earlier studies as it was to be upgraded by Transport Scotland separately. As it was a key strategic location with significant congestion for many years, he did not think it appropriate for new developments to contribute to a mitigation solution there.
71. Mr Stirling did not expect, in his experience, to be required to carry out detailed modelling for the purpose of local plan allocations. In the event that his modelling and mitigation in the 2016 report required to be revisited in the light of a roads authority’s criticisms (which requirement he did not seriously dispute) in the real world there would have been further opportunity to do so.
72. Ms Gee referred to her witness statement and report of August 2019, updating an earlier report of January 2016. In her opinion in the no-scheme world the 2009 structure plan would have pursued the same development targets and spatial strategy. The Scottish Government’s “Firm Foundations” discussion document of 2007 sought new building of 35,000 houses per year across Scotland. In the opinion of the Scottish Government this was both achievable and necessary in order to reverse declining affordability. Population estimates had been factored in to the housing requirement figure. ACC had produced a statutory local plan monitoring statement in September 2009. In this document ACC interpreted the foregoing as a recommendation, which equated to a 40% increase in house building. Apportioning the increase to the structure plan area resulted in an allocation figure with an output of some 3,000 dwellings per annum. This would require a significant increase in housing allocations on greenfield land to accommodate the requirement. All of this was independent of the AWPR project.
73. It was logical to have the SGAs in the same location in the no-scheme world. Relevant planning policy sought to reduce the need to travel, which meant allocation of sites along the main transport corridors, and this was the case irrespective of the AWPR. Given the importance of Aberdeen city to the north east of Scotland, it was inherently logical to retain the Aberdeen city SGA. The applicants’ site was on a main transport route and in the main economic centre of the north-east where it was possible to improve public transport along the corridor. It could also be seen from the target dates in the structure plan – i.e. greenfield sites for 12,000 houses in the period 2007 to 2016, that by the time of the adoption of the local plan in 2012 the requirement to allocate sites had become urgent.
74. The transport appraisal showed the area which included the applicants’ site as coming out top as the most sustainable and accessible location for development. Transposing the logic of the assessment to the no-scheme world, Area C would still be the best or one of the best areas even if the A96 remained a trunk road. The local plan allocation process would not require the same level of detail for junction/access assessments and proposed mitigation measures as would be the case in a planning application. Transport information at the allocation stage would be high level. Equally the outcome of the development options assessment would not have been much different in the no-scheme world, although the greenbelt boundary would have been the C89C road not the AWPR. The landscape evidence supported this approach and in her opinion the C89C could form a defensible green belt boundary. The adjacent Rowett south site had a defensible boundary in the form of existing hedgerows and topography of Brimmond Hill. The applicants had been looking to develop redundant and underused property and so would have been likely to enter the bid process in the no-scheme world. The allocation at Craibstone fulfilled the sustainability criteria promoted by SPP by reducing the need to travel and prioritising sustainable travel and transport opportunities.
75. Even without a specific housing allocation, there was a high potential for Craibstone to be granted planning permission. The subjects could have been covered by policy CF1, being the successor to Policy 45, which allows for redevelopment and reuse of surplus facilities. It was no longer appropriate for institutional sites to be designated as greenbelt in terms of SPP paragraph 162. As at January 2013 there was sufficient policy justification for a grant of planning permission in principle, subject to site specific design and landscaping considerations.
76. The housing allocations in the local plan were based on gross, not the net area of the site and it was normal for figures to change in the planning process.
77. It was accepted that to allocate Newhills in the local plan some understanding would have been required of the road network, but she interpreted Mr Gillespie’s evidence that it would be feasible to meet local plan infrastructure requirements through developer contributions in the no-scheme world. In her experience mitigation could be achieved in 99% of cases, as she put it. She did not see the logic in not improving the Haudagain roundabout in the event that there was no AWPR. The improvements would be more important than ever in that scenario. It would be appropriate to mitigate any impact of the applicants’ development through contributions towards the cost of the Haudagain roundabout in the no-scheme world. Her understanding was that the Fairhurst A96 study had been superseded by assessments for the council. She had not been aware of £65m total developer contribution being sought by ACC prior to 2015.
78. Her understanding was that the Park & Ride (or “Choose”) facility at Dyce had been safeguarded in the local plan for “transport”. She did not understand that it was situated on land provided as part of the AWPR scheme.
79. Mr Gillespie spoke to his witness statement. Transport Scotland had expressed concern by letter dated 11 December 2009 as to the deliverability of the large number of new housing on the A90 and A96 corridors in the emerging local plan. The main issues report had allocated 16,500 homes in these areas. Their concern related to the deliverability of this amount of housing and the ability of the existing strategic road network to accommodate the additional growth “particularly prior to the delivery of the AWPR.”
80. Mr Gillespie also highlighted a Scottish Government representation to the 2012 local plan examination and a response by the planning authority to the effect that should the AWPR not be delivered, “it is likely that the development plan would require to be reviewed.” He also drew attention to a conclusion by the reporter that the AWPR was a necessary part of the structure plan’s vision. He also highlighted a letter by Transport Scotland to ACC on 8 April 2011 to the effect that the inclusion of all largescale greenfield sites identified in the local plan would require to be reviewed should the AWPR not be delivered, not just a site at Countesswells which was under discussion. The AWPR was considered to be an integral part of the development plan.
81. Mr Gillespie explained in his opinion that a “pre-AWPR scenario” should be distinguished from a “no-AWPR scenario.” If it was known that the AWPR was a committed development, Transport Scotland could meantime take a more flexible approach in dealing with development along the trunk road corridor.
82. Mr Gillespie also pointed out that development at Dyce Drive, to the north of the A96 had a planning history. Development sites identified in the 2012 LDP had previously been allocated for development in the 2008 local plan and the Dyce Drive planning brief in 2004. Planning applications dated back further still.
83. It was noted from a meeting in 2006 that there had been discussion about development in the Dyce area for many years but that nothing was happening. This appeared to be because respective landowners had been unable to work together. It was discussed that the AWPR with its links to Dyce Drive was integral in supporting development since it would provide relief to the local trunk road network. The levels of congestion on the A96 between Dyce Drive and Haudagain roundabout were noted as a constraint to Dyce Drive development. Transport Scotland wanted a single over-arching solution for mitigation along the A96 corridor to which all developments would contribute. He also referred to a study in 2007 commissioned by Scottish Enterprise to the effect that the junctions along the A96 were congested and if left unmitigated would be a constraint to development pre-AWPR.
84. Turning to the Craibstone site, he referred to a meeting with consultants representing CALA on 1 March 2007. Transport Scotland believed that there was little reserve capacity at the Craibstone access/Dyce Drive/A96 junction and this would be a major issue if development were proposed while the A96 was still a trunk road; i.e. pre AWPR. It was Transport Scotland’s position that if CALA proposed to bring forward the site it would require to be considered alongside the existing development proposals at Dyce which could impact upon the A96. Nothing further happened regarding Transport Scotland’s involvement at the time; thus Mr Gillespie inferred that the applicants had concluded it was preferable to promote their development through the local plan process rather than as a standalone planning application.
85. Mr Gillespie had assessed the 2014 Fairhurst transport assessment in support of the Craibstone planning application. The study confirmed that the access junction was congested and that additional development traffic would exacerbate the situation and require mitigation. The assessment made the case for a pre-AWPR cap of 200 dwellings, on the basis that existing rat-running through the site would be removed, and this was accepted by Transport Scotland. The assessment had not made a case for more than 200 dwellings, but had it done so the question of mitigation would have arisen in the context of the desirability of interim improvements on a part of the network soon to be altered by the AWPR.
86. Turning to the Rowett South development, Transport Scotland considered a planning application in 2014-15. They required an alteration to the existing A96 access, and agreed with the applicant that 175 dwellings could be completed prior to completion of the AWPR on the basis that this would not result in a material impact on A96 junctions.
87. In an application relating to the Rowett North site for permission for a new conference centre, hotels (350 beds maximum) and others, a condition was imposed restricting further development “until such time as the mechanism and programme for the delivery of ACC’s Dyce Corridor mitigation package has been agreed by the Planning Authority in consultation with Transport Scotland.” The phasing referred to would have been after the opening of the AWPR and so the AWPR could not be decoupled from these requirements.
88. In the no-AWPR world he was clear that Transport Scotland would wish developments to be considered in a cumulative context. Impacts from the developments would require to be considered on the wider A96 network, not just the access junction, as had been demonstrated by a number of studies. A similar assessment exercise to that which was undertaken for the with-AWPR scenario would have been required.
89. He noted that the Council’s Dyce Drive corridor study identified a package of measures with an estimated capital cost of £65m. This included grade separation of the Craibstone access/ Dyce Drive/ A96 junction and dualling of Dyce Drive which had been identified as necessary for development in the with-AWPR scenario. He stated:
“…It is therefore reasonable to speculate that these, or similar, improvements could also have improved the performance of the existing network in a No-AWPR scenario and mitigated the impact of proposed development.”
90. The 2019 Fairhurst report did not consider cumulative impacts or look at the wider impact of development on the A96 corridor. This approach would likely have been rejected by Transport Scotland had it been brought forward in support of a planning application.
91. In the “with-AWPR” scenario the A96 was de-trunked. The AWPR would take on the function of the strategic route around Aberdeen, so we inferred from his evidence there would no longer need to be a trunk road through Aberdeen itself. De-trunking meant reduced speed limits were possible and that the current signalised crossroads at the Craibstone access/ Dyce Drive/ A96 junction, constructed as part of the scheme, could be used. Reduced speed limits and signalised junctions were not desirable on trunk roads and the current arrangement was therefore much less likely to be approved in the no-scheme world. He accepted there were precedents for signalised roundabouts on trunk roads elsewhere in Scotland, in which capacity related to the size of the roundabout.
92. He indicated that the ongoing improvements for the Haudagain roundabout were phased for after the construction of the AWPR. These improvements were identified in the 2012 ALDPAP. They are very substantial involving a new corridor bypassing the roundabout between North Anderson Drive and the A96, thus allowing north/ south traffic on the A92 (formerly the A90) travelling via the Persley Bridge freer access through the roundabout. The works would be more challenging in the no-AWPR world because the traffic at the roundabout would be heavier.
93. In the no-scheme world there would be many factors at play. For example other large local plan developments were less dependent on trunk roads, e.g. Countesswells on the A944 corridor. On the other hand Transport Scotland would have some concern about the Grandhome development site (4,700 houses to 2023, total of 7,000 to 2030) which promoted a new junction on the former A90 trunk road (now the A92). This site would be benefited by the Haudagain improvements.
94. In principle, Transport Scotland would seek no net detriment solutions for developments and would require cumulative impact assessments.
95. Mr Barr spoke to a witness statement, a transport report dated 10 September 2009, a rebuttal transport report dated 11 October 2019 and a supplementary transport report dated 24 October 2019.
96. Mr Barr’s transport report made criticisms of the 2016 Fairhurst Transport Report. In his opinion there should have been an updated scoping discussion preceding the 2016 report to agree a study area based on a no-scheme approach. The Fairhurst study had not taken account of committed developments which would have occurred after the completion of the AWPR. There was also general growth to consider during the years of building out the development, which had not been taken into account. Only one junction had been assessed, namely the Craibstone access junction and not other junctions on the A96 corridor. The majority of the applicants’ development traffic would travel east along the A96 and through the Haudagain roundabout, which is known to experience significance queuing.
97. The Craibstone access / Dyce Drive/ A96 roundabout already had, according to the 2016 Fairhurst study, observed flows in 2013 of two-way traffic on the east link of 2574 and 3206 vehicles for the AM and PM peaks respectively. The 2014 Fairhurst report acknowledged that the roundabout was already over capacity in 2013. Other data showed that the sites identified in ALDP 2012 for development, namely the employment sites in the Dyce Drive area to the north of the A96 and also the Rowett South housing site, would add a large number of trips. Assuming 70% of the new traffic moved east along the A96, the additional flows would be 4688 and 3984 AM and PM respectively in the no-scheme world. That represented more than a 100% increase in 2-way traffic. This had not been factored in to the study.
98. The mitigation solution proposed for the signalised roundabout added a third lane to the circulating carriageway. There appeared to be a lack of stacking space for one lane, which risked traffic being blocked should more than two vehicles attempt to queue at the internal stoplines.
99. Without the AWPR he concluded that allocations in the LDP would have been limited to traffic levels which could have been accommodated by the A96 and surrounding road network.
100. In the rebuttal report Mr Barr considered that previous studies had not included the Haudagain roundabout because it was known that the AWPR would be delivered and detailed modelling had been made on that assumption. Traffic flows would differ without the AWPR. We also understood him to mean that without the AWPR a certain traffic flow would continue to use the (former) A90, A96 and Haudagain roundabout. Some 45,000 vehicles passed through the roundabout each day and with the AWPR in place that figure would be reduced to 37,000, representing a 20% improvement. He maintained there would be a corresponding 10% improvement on the A96 traffic level. The Haudagain roundabout showed the greatest improvement of all the other affected infrastructure on account of the AWPR. It would be challenging to upgrade the roundabout in the absence of the AWPR. Mr Stirling’s figures showed that the applicants’ development would increase flows on one arm of the Haudagain roundabout by 12%.
101. He criticised Mr Stirling’s conclusion based on figures 201 and 202, pointing out that figure 202 did not show an AWPR related 60% eastwards PM peak increase on the A96. He also criticised the Fairhurst model which, in his opinion, did not represent a “like for like” comparison, since the “before” and “after” scenarios did not take account of predictable changes in travel patterns.
102. Instead Mr Barr set out what he considered to be a true “no-AWPR scenario”, which equated to a “2018 do minimum scenario,” and a “2018 do-something scenario” which is the “with-AWPR scenario” based on the ASAM model. (This piece of evidence is potentially confusing because the SIAS “do minimum” scenario in the Dyce Option study, discussed earlier in this Opinion, did include the AWPR and other interventions.) Without the AWPR in place traffic travelling to Dyce via (the then) A90 North Anderson Drive would proceed through the Haudagain roundabout and west along the A96 and thus to Dyce. This traffic would be expected to continue to increase with committed developments. This was shown in a figure A1 where comparison between base and the 2018 no-AWPR scenario was said to show some increases on AM peak westbound and PM peak eastbound. The increases (if that is what they are) were described as marginal and small respectively.
103. The “with AWPR” scenario showed some increases in A96 traffic compared with the “no AWPR” scenario as a result of the AWPR attracting traffic to Dyce and elsewhere from other parts of Aberdeen. In particular eastbound traffic towards the city would increase with the AWPR in the AM peak, and increase westward in the PM peak. Equally there would be reductions westward in the AM peak and more significant reductions eastward in the PM peak. It was incorrect for Fairhurst to conclude that the AWPR increased peak flows.
104. In the no AWPR world the traffic flows would be different. Modelling would require to assess these different flows in order to ascertain appropriate mitigation designs. This had not been done so there was no evidence to support the conclusion that similar mitigation to those presently designed would operate in the same manner in the no AWPR world.
105. The reference by Mr Stirling to option “2023 S0” in the CTA as showing almost no change in time lost due to congestion (Fairhurst fig 2), and including allocated development, was incorrect. In fact the “2023 SO” “do minimum” scenario did not include committed development. Mr Barr also noted a passage in the 2017 updated CTA which states:
“The future year modelling continues to highlight a number of benefits associated with committed infrastructure, with decongestion benefits identified in central Aberdeen, as motorists choose to travel via the AWPR. This change in traffic movements would also focus considerable traffic volumes in and around AWPR access junctions, which are also located close to some new development sites.”
106. He accepted however that figure 5.1 in the CTA (fig 2 in Fairhurst 2019 report) only showed small improvements to the performance of the A96 as a result of the AWPR and other committed improvements. It appeared that any advantage accruing to the A96 corridor was relatively less than the advantage to be provided to other corridors. He accepted that further infrastructure improvements in conjunction with high and medium development growth scenarios (fig 7.1 of CTA and fig 4 of updated CTA) showed traffic levels returning to base levels.
107. Turning to the Dyce Option testing report it could be concluded that the distribution of development traffic extracted from the ASAM model should differ depending upon whether the relevant scenario included the AWPR or not. The applicants had not attempted to use the Dyce S-Paramics model to assess the impact of the Craibstone development at other affected junctions. He accepted that “in theory” in the no-scheme world it was possible for grade separation at the Craibstone access to accommodate all the Newhills development being undertaken.
108. Mr Barr carried out an assessment covering the Dyce area in the no AWPR scenario. As we understood it, he used ASAM outputs in the Dyce S-Paramics model with a year 2026 as an interim date for local plan development growth. He carried out “Test 1” on the Fairhurst proposed mitigation design at the Craibstone access/Dyce Drive/A96/ roundabout. He also carried out a “Test 2” which additionally looked at the A96/A947 Bucksburn roundabout and upgrade. The tests also assumed a signalised roundabout linking the A96 to the airport to the west of the Craibstone access. These tests showed that despite the applicants’ proposed mitigation solution there would still be severe queues on the A96 and its approaches.
109. The AM peak on the A96 westbound had a high right hand turn flow to Dyce Drive which conflicted with and took priority over oncoming traffic to Aberdeen. It was recognised that a significant upgrade was required to the Craibstone access roundabout even under the changes brought about by the AWPR. Intuitively it was difficult to see how retaining the roundabout was feasible with the development pressures in the area.
110. He considered that he had demonstrated that the main driver of traffic growth was not the AWPR on this section of the A96 but the scale of planned development along the corridor.
111. In the supplementary report Mr Barr received further data from the applicants which allowed more detailed examination of the LinSig model used by Fairhurst. The LinSig inputs appeared to overestimate the length of multiple lane provision approaching the Craibstone junction. The traffic flows should also have been converted into passenger car units (PCUs) since the raw data would have included a number of longer vehicles. The conversion would increase traffic flows by 15%. The method of assigning flows to routes was one which leads to higher capacity being calculated than the method recommended by the LinSig software developers. There were also issues as to how the turning geometry was applied to the model and the setting of correct “cruise times” between stop lines. These were “corrected” and when the model was rerun with the proposed Fairhurst mitigation + 1,000 house development it showed the access junction’s capacity was exceeded by approximately 20%. This confirmed his earlier concerns. There was also an issue regarding the correct peak time at the location. He accepted that in the real world traffic modelling between developer and roads authority was an iterative process.
112. Ms Baillie produced a witness statement, a planning report dated May 2019 and a rebuttal planning report dated October 2019.
113. Ms Baillie considered that the AWPR scheme influenced the decision to progress with a high growth scenario in the 2009 structure plan. The growth strategy was based on a high growth population scenario and the actual housing allowance exceeded the stated requirement by 30%. The high growth scenario would not have been realistic as a strategy since it could not be achieved without exacerbating the existing transport related problems that were constraining new development. The structure plan indicated there was only a total “requirement” of 56,000 houses in the whole period to 2030. Only after taking account of the Government’s aspiration to increase new house building did that figure become 72,000 across the city and the shire. The “Firm Foundations” document represented an aspiration, not firm policy. The higher target was intended to help stimulate the economic growth of the city and not simply to meet expected or probable population growth.
114. She referred to the earlier NEST 2001 structure plan which referred to the importance of the AWPR around Aberdeen, being described as central to the delivery of many essential elements of the overall strategy.
115. Reference was also made to the Dyce Drive planning brief 2004. Paragraph 9.3 of the development brief states:-
“Surface access links to Aberdeen will be significantly improved by the plans the Scottish Executive has announced to support construction of the Aberdeen Western Peripheral Route. This will ease congestion on the A96, which provides the principal road corridor linking the airport to the city centre and its wider catchment area. The A96(T) is frequently congested at peak times and a new bypass should enable more reliable bus journey times from the city centre to the airport.”
116. She interpreted the brief to the effect that the AWPR was considered by the council to be a fundamental element in delivering a range of future development and associated infrastructure within the vicinity of the airport, Dyce Drive and the surrounding area. In this context the AWPR could be viewed as a catalyst for economic growth, alleviating constrained transport networks and freeing up land for potential development.
117. She highlighted a passage from ALP 2008 at paragraph 1.2.2:-
“The WPR is not intended as a development access road and an important function of a free-flowing bypass of Aberdeen would be to reduce the disadvantages of travel time for the economy of north Aberdeenshire. However the expected relief of traffic conditions on many roads in Aberdeen would help to release capacity for development within the city. However the certainty of the WPR provides the opportunity for longer-term consideration of sites around the City, allowing new sites to be accessed and released dependent on their meeting the strict criteria for sustainable development. It is vital that the allocations to 2010 set out in this Local Plan take into account the opportunities that the WPR brings into play to ensure allocations in the nearest time horizon do not prejudice the long-term picture for possible development and the needs of future generations. The content of this plan will inform the design of the WPR and the location of its junction.”
118. Ms Baillie had discussed a no-AWPR scenario with the local development plan team leader of ACC. A minute of a conference call on 4 September 2018 was produced. It had not been signed-off by ACC, but Ms Baillie indicated that she had received an email from the officer confirming that he was content with it. The officer in question, Mr Andy Brownrigg, indicated that the high growth scenario in the structure plan was made on the assumption that the AWPR would be built. It was doubtful that the level of growth would have been proposed without the AWPR. Elsewhere the minute indicates that limitations to development pre-AWPR were largely addressed through the application process rather than made explicit in the ALDP 2012. Further on, with respect to Craibstone, the council had tried to focus development into urban areas. The council needed to find 36,000 houses:
“and the key question is really whether that extent of housing would have been sought in the ACSSP without AWPR or a similar infrastructure scheme. If they had only required to find land for 1,000 – 2,000 homes (similar to previous local plans) it would likely have been different. He stated that bids for housing allocation are like beauty contests in that the Council would assess bids and tick the ones at the top of the list. Bids with high numbers of houses had a good chance of success … if there had been no infrastructure built then the council might have looked at different forms of spatial strategy including smaller sites, a new settlement, or a dispersal strategy to other areas outside of the City (e.g. Inverurie and Ellon). These strategies would have helped facilitate infrastructure improvements through developer contributions.”
She acknowledged that Inverurie and Ellon, being within the Shire, were locations outside ACCs remit.
119. Reference was also made to an earlier email from Mr Daniel Harrington, a senior planner on behalf of the same team, to the District Valuer on 12 August 2013. Ms Baillie quoted at 4.3.30 of her main report:
“without the AWPR the current strategy, focussing half the growth in Aberdeen, would be different.”
120. Not all the context was quoted in her report. The full section in question is discussing the structure plan and states:
“The overall requirement for housing land is based on population projections. This overall requirement was not influenced by the AWPR. The strategy for how to deliver this requirement was prepared with the knowledge that the AWPR would be going ahead. It is possible (our emphasis) that without the AWPR the current strategy, focussing half of the growth in Aberdeen, would be different.”
121. The email goes on to state that the LDP had complete control over where and how to allocate the greenfield housing allowance and employment land:
“There would remain a requirement to allocate the land required by the Structure Plan should there have been a decision not to progress the AWPR, but our choice of sites may have been different.”
122. Other sections in the email stated that an allocation of employment land at Kingswells would probably have been made in any event, to meet a need in the A944 corridor, but probably would not have been any larger than what was allocated. An area of land at Loirston – we think including a large allocation of housing land – was said to rely less on the AWPR. The memo also makes the point that for developments to go ahead they are required to carry out transport assessments:
“Because in most cases, the AWPR will free up road capacity in the City, it is likely that the detriments caused by development will be less onerous to overcome than they would be in the absence of the AWPR.”
123. The email also makes the point that employment sites such as Dyce and Kingswells would benefit greatly from the AWPR because easy access would make them attractive, but it was probably not possible to quantify the extent of this.
124. Ms Baillie drew attention to the ALDP examination process. In connection with Issue 15 relating to OP29 the planning authority stated in a response:
“Development must be accompanied by transport infrastructure improvements of a level commensurate with the scale and impact of development and sufficient to support new or expanded communities. Aberdeen City Council, Aberdeenshire Council, the North East Scotland Transport Partnership and the Scottish Government are all committed to the delivery of the AWPR. Should the AWPR not be delivered, it is likely that the development plan, comprising the proposed Local Development Plan and Structure Plan/ Strategic Development Plan (SDP) as appropriate would require to be reviewed.”
125. She also drew attention to the conclusions of the local plan reporter in his report of December 2011 in connection with the Newhills Expansion Area:-
“Concerns are expressed about the impact of this level of development on the existing infrastructure. I agree that the Aberdeen Western Peripheral Route (AWPR) will be an essential element in ensuring that the road network can accommodate the extra traffic generated of the area including transport routes.”
126. She also quoted from the 2010 CTA. Paragraph 5.2.8 states:
“The AWPR is anticipated to provide additional capacity to cater for future traffic growth across the strategic network. However due to the scale of growth, the ability for travellers to access existing local and regional networks will become significant in maintaining sufficient levels of accessibility in and around new development areas. Subsequently, new infrastructure or services may be required to accommodate/ mitigate these increasing demands.”
127. Paragraph 5.5.11 states:
“The increased road and junction capacity associated with the AWPR is forecast to lead to a reduction in congestion levels in the short term. However, with the level of development located close by and also further west along the A96, the modelling indicates that the road network would come under increased pressure and potentially lead to higher delays than currently experienced.”
128. Ms Baillie concluded that the levels of growth first proposed in the ACSSP 2009 could not be supported in the absence of the AWPR, or that a spatial strategy promoting significant development in corridors to the north and west of the city could be delivered without resulting in significant adverse travel impacts within the city and across the wider north west region. The AWPR acted as a key driver for economic growth in the region which has, in part, led to the creation of employment and investment opportunities and subsequent population growth with a resultant increase in demand for housing. She doubted that there would have been a push for growth towards the Craibstone area and certainly not to the same extent in terms of the promotion of the Newhills Expansion Area without the impetus of the AWPR.
129. She accepted that there was a prospect that the applicants’ land could have been identified as a community facility given the existing educational use on the site. Housing could have been considered a suitable alternative use for surplus land under a policy CF1. It was possible that in the no-scheme world a development restricted to 200 houses being an agreed no-net detriment figure could have been achieved. However the core area of the land was within the retained land, and was better located than the acquired land for housing development. Whether an argument for housing at Craibstone based on policy CF1 would have an influence in a larger allocation for the whole site, would depend upon the context and whether a larger development area was viable. There would have been issues with a stand-alone village style development. The access to sustainable forms of transport to the north of the A96 was not ideal and could be compromised by the need for future grade separation of the access junction.
130. She thought it was optimistic to argue that all infrastructure improvements could be covered by developer contributions. Developers were likely to have an adverse reaction to funding a grade separated junction should their land be remote from it. She was surprised that the s.75 agreements with the council did not appear to require land to be reserved for grade separation. This would particularly be the case in the no-scheme world if a third party, Transport Scotland, were ultimately to be responsible for its construction. At the time of allocation in the local plan, there would need to be an understanding of infrastructure requirements in terms of location and scale, albeit not to the extent of a detailed design. One would expect that if grade separation were to be a possibility, the planners would be mindful of the position of Transport Scotland. She also highlighted that the area reserved for infrastructure in the Craibstone masterplan might be too little to accommodate a grade separated junction, if one compared the reserved area with the actual size of the AWPR grade separated interchange to the west. The reserved area might result in some of the adjacent houses being lost due to the proximity with potential grade separation infrastructure.
131. She accepted that she had not considered alternative sites. That would have been a collaborative process with input from landowners and not something any one person could do. Landowners and developers would not necessarily have bid for the same sites to be allocated in the no-scheme world. However she accepted that the eight areas assessed in the transport framework included nearly all the land around the edge of the City.
132. The Park & Ride project had an historic permission since 2000 and had not always been linked to the AWPR. She understood that the Craibstone Park & Ride land was partly on the periphery of CPO land taken from another applicant.
133. On the face of it the respondents were required to pay the open market value for the land taken as at the date of acquisition. The respondents were contending that they were not due to pay compensation because the applicants’ retained land had benefited from the scheme. Reference was made to A1P1 of ECHR guaranteeing the right to peaceful enjoyment of property. There was a high burden upon the respondents to demonstrate why the deprivation was justified without payment of compensation. It was for the respondents to justify their assertion that no compensation was due on the basis of betterment. The respondents required to establish, on balance of probability, in the no-scheme world, that the retained land would not have been allocated for development in the LDP. In this connection it should be noted that the main purposes for which the AWPR was promoted did not include providing access to development land. On the face of it the best guide to the situation in the no-scheme world would be to look at the with-scheme world.
134. On the other hand it was accepted that the position may be different as regards the acquired land; i.e. it was for the applicants to establish value in the no-scheme world. They had established on the evidence that on balance in the no-scheme world the retained land would have been allocated for housing in the LDP. There was no reason to suppose the acquired land would have been treated differently. In any event the applicants’ land would have had a hope of planning permission in the no-scheme world.
135. The respondents’ evidence at its highest only demonstrated that things would have been “different” in the no-scheme world. They had not tried to demonstrate the extent to which this would have been the case. Their comments appeared to regard only the applicants’ site and not consider how the no-scheme world would have existed in relation to any other potential housing sites. No comparative analysis of potential housing allocations in the no-scheme world had been carried out by the respondents. The evidence indicated that the applicants’ land would have been in a relatively more advantageous position compared to other sites in the no-scheme world.
136. Much of the respondents’ evidence had focussed upon the level of detail submitted by the applicants, in particular, relating to transport evidence. The criticisms assumed a level of detail required in order to justify the grant of a planning permission or even to satisfy a suspensive condition attached to the grant of detailed planning permission. The respondents had not addressed what was actually required in the scheme world to allocate land in the LDP, which was the more appropriate comparison.
137. Reference was made to ss.12, 13 and 14 of the 1963 Act and s.110(4) of the 1984 Act. It was accepted that in principle compensation should be paid on the basis of open market value as a willing seller might realise, and that in assessing value, any effect on the value of the acquired land due to development proposed by the scheme should, in general, be disregarded on the Pointe-Gourde principle.
138. In terms of s.14 and s.110(4) it falls to the respondents to demonstrate that increase in value of the remaining land would not have occurred but for the scheme: James Miller and Partners Limited v Lothian Regional Council; Rowan Robertson paragraph 11.04.
139. It was a question of fact for the Tribunal to identify the extent of the scheme. But only the compulsory purchase and the proposal underlying it should be disregarded: Fletcher Estates (Harlescott) Ltd v Secretary of State for Environment.
140. In applying the Pointe Gourde principle, reference was made to Lord Nicholl’s six “pointers” in Waters v Welsh Development Agency at paragraph 63:-
(1) The Pointe Gourde principle should not pressed too far. The principle is soundly based but it should be applied in a manner which achieves a fair and reasonable result.
(2) A result is not fair and reasonable where it requires a valuation exercise which is unreal or virtually impossible.
(3) A valuation result should be viewed with caution when it would lead to a gross disparity between the amount of compensation payable and the market values of comparable adjoining properties which are not being acquired.
(4) When applied as a supplement to (s.13 of the 1963 Act) the principle should be applied by analogy with the provisions of the statutory code.
(5) Normally the scope of the intended works and their purpose will appear from the formal resolutions or documents of the acquiring authority. But this formulation should not be regarded as conclusive; and
(6) When in doubt a scheme should be identified in narrower rather than broader terms.
141. Emphasis was made upon the third pointer. The application of the scheme should not allow a gross disparity between the value of the applicants’ acquired land and the value of the adjoining South Rowett land, which had not been acquired but which was allocated for housing in the local plan. Reference was also made to the sixth pointer.
142. The assessment of underlying policies, and the assessment of their significance in the no-scheme world was pre-eminently a matter for the Tribunal: JS Bloor (Wilmslow) Limited v Homes and Communities Agency at paragraph 36.
143. Under reference to ss.22(5) and (6) of the 1963 Act, it was submitted that the AWPR was the special road extending from Stonehaven in the south to Blackdog in the north, with an east-west arm to the vicinity of Cove in the east. The scheme did not include other proposed transport interventions identified by NESTRANS or the CTA just because they were part of a larger plan for the future of the area. For present purposes the scheme comprised the plots of land specified in the CPOs.
144. Reference was made to Aberdeen City and Shire Strategic Development Planning Authority v Elsick Development Co Ltd for the proposition that it was unreasonable to expect individual developers to undertake very complicated and expensive transport assessments on the wider strategic transport network in order to identify the interventions and justify the level of contributions that one of them should be required to make. An individual developer should be limited to a requirement to assess the interventions in the more immediate area and offering to contribute to interventions in the wider area which the authority have identified, provided there is more than a de minimis effect from the proposed development upon the wider area. There was no reason to doubt that in the no-scheme world similar arrangements would be forthcoming to help fund the mitigation necessary for the A96 corridor, including if necessary making a contribution to the Haudagain roundabout improvements.
145. In identifying the scheme there was no evidence to suggest that it included the Balmedie to Tipperty dualling which was subject to a separate CPO and separate inquiry. It was a separate project, only linked through a construction contract with the AWPR. It was on the Aberdeen to Peterhead SGA corridor. The structure plan specifically mentioned the AWPR and Haudagain roundabout in the context of vital infrastructure projects for this corridor. By contrast the AWPR was not mentioned in the context of either the Aberdeen City or Huntly to Laurencekirk SGA.
146. The applicants further submitted that the Tribunal should resist any temptation to expand the influence of the scheme by taking account of the large number of other transport interventions which have, or will be undertaken in the scheme world, just because they are linked in some way with the AWPR.
147. The Haudagain roundabout was a committed development under a separate project. Mr Stirling had explained that none of the transport assessments which had been required to support developments in the A96 corridor in the with-scheme world had been required to consider the network east of the Bucksburn roundabout. There was ample evidence to show that the Haudagain improvements were a separate project being listed as of city wide significance. Although there was evidence that the improvements had been timed to occur after completion of the AWPR, there was no indication that the Haudagain improvements could not be undertaken in the absence of the AWPR. Mr Barr had not produced detailed evidence as to the effect of the applicants’ site upon the Haudagain roundabout or, despite his involvement in the Haudagain improvements, that it would not be possible to carry these out in the no-scheme world. Mr Barr proceeded on a familiar theme that various matters “would have been different” in the no-scheme world, but without going on to attempt to assess these differences in the context of allocation of the retained land in the LDP. It may have been more challenging, as Mr Gillespie indicated, for the Haudagain improvements to be carried out after the completion of the AWPR, but that did not mean they could not be carried out in the no-scheme world. On the contrary there would be more pressure and incentive to improve the Haudagain roundabout in the no-AWPR world. There was no reason to suppose that developer funding would not have been forthcoming for Haudagain improvements if such were required to enable development to go ahead.
148. Mr Gillespie had indicated that the Haudagain improvements would be more important to other major sites such as the allocation in the LDP for Grandhome, the importance to which was also mentioned by Ms Gee. The Haudagain improvements and the third Don Crossing were specifically mentioned as improvements in addition to the AWPR which would bring benefit to the Bridge of Don/Grandhome direction for growth area in the LDP. By contrast although the AWPR was mentioned in relation to the Dyce, Bucksburn and Woodside direction for growth in the LDP, which includes the applicants’ site, no mention was made of the Haudagain roundabout in the same context. Even if the Haudagain improvements should be disregarded in the no-scheme world that would not necessarily make the applicants’ site less likely to receive an allocation if the same restriction prevented the development of the single largest housing development in the LDP, namely, Grandhome.
149. Turning to the landscape, capacity and master planning evidence there was nothing to suggest there was any reason to regard the acquired land as different from the retained land in planning terms in the absence of the AWPR. In the scheme world the acquired land was safeguarded for the route of the AWPR but this was an artificial construct. There was no dispute that in the no-scheme world the acquired land and retained land would be treated as one landholding and one allocation in any LDP.
150. Mr Welch’s evidence to the effect that there was capacity on the acquired land for the additional 320 houses was not disputed. The figure as he explained was based on the relatively low density housing proposed by CALA in the with- scheme world. The only area of dispute appeared to be whether his layout would comply with development plan policies if not accompanied by the wider Newhills Expansion Area. He indicated that the site could have been promoted independently of the Newhills Expansion Area. The proposed layout could be accommodated without the need to remove any of the existing woodland and was laid out in a way to make development self-contained and unobtrusive. Ms Gee confirmed that the C89C road would provide a defensible greenbelt boundary.
151. Even without a specific housing allocation there was potential for the acquired land and retained land to be allocated or granted planning permission on the basis of policy CF1 of the LDP. The Rowett North site had been allocated as a community facility and, as we understood it, now had a zoning for employment use. The applicants had been actively looking to reduce their landholdings and it was not seriously disputed that if a CF1 policy applied, the applicants would be in a strong position to seek planning permission for at least 200 houses. In this event, it was submitted that an allocation or permission for the rest of the applicants’ site might be better placed in the no-scheme world.
152. Turning to the transport evidence it was submitted that subject to the provision of suitable mitigation measures, there was no reason to conclude that any traffic issues on the local network or at the Craibstone access would have prevented development in the no-scheme world.
153. Dealing firstly with the Craibstone access, and the criticisms from Mr Barr, Mr Stirling acknowledged that his proposed design may not have satisfied a roads authority if it had been relied on in support of a detailed planning application or in compliance with a suspensive condition. In the real world a traffic assessment would be an iterative process between developer and roads authority. It was acknowledged that in order to accommodate all the proposed development in the area it was likely that a more sophisticated design for the junction was likely to be required, but the applicants would be only one of a number of developers required to make a contribution to its provision.
154. The respondents had not properly addressed the issue of allocation in the LDP from a transport point of view, since they had focussed on the possible grant of planning permission. The level of detail required for a LDP allocation was very different to the standard required to obtain planning permission. In the with-scheme world the retained land had an allocation on the basis of a submission made in response to the planning authority’s call for sites as considered through the main issues report, the draft LDP and the examination of the draft LDP by a DPEA reporter. The submission did not contain anything like the sort of detail relating to transport issues which the respondents have sought to require of the applicants in the proceedings. The masterplanning for the Newhills Expansion Area was only drafted after the allocation in the LDP and at that stage it was noted that a traffic modelling exercise was being undertaken. There followed the masterplan in relation to Craibstone Estate and eventually the grant of planning permission in principle itself subject to a s.75 agreement to secure developer contributions.
155. In the with-scheme world there had been extensive consideration of junction improvements for the access. The s.75 agreements in relation to the Craibstone and Rowett South sites imply that a grade separated junction is feasible and is proposed at this location at an estimated cost of £11m. The Craibstone developers of the retained land are making a contribution to the local transport fund in the sum of £2.7m.
156. Nor were the applicants required in the with-scheme world to produce a detailed transport assessment over a wider area. It could not be inferred that in the absence of the AWPR the necessary infrastructure for development in Aberdeen would not be provided. There was no evidence that developers generally would not be in a position to fund the necessary infrastructure. As Mr Brownrigg appears to have reported, if there was a ‘beauty contest’ the larger sites would win, and that would apply in relation to transport issues. There would be a cumulative approach for the relatively large number of developers in the area to provide the resources. It is clear from what happened in the with-scheme world that mitigation measures on a local or slightly wider range would have been possible. There would be a particular impetus to improve the Craibstone access/Dyce Drive/A96 junction for workers travelling from Aberdeen City to work in the Dyce Drive area. Equally there would be impetus to make necessary improvements to release the development potential of the area. The applicants owned land both to the north and south of the A96 to the west of the junction which could be used.
157. Moreover Mr Barr had accepted that any advantage to the A96 corridor on account of the AWPR was comparatively less than the advantage to other corridors on the network. This was consistent with the transport framework assessment showing that Area C was rated as the best direction for growth area and benefited only little by the introduction of the AWPR by one point in the calculation.
158. The fact that the AWPR has increased traffic going towards the city in the AM peak did not appear to be taken on board by Ms Baillie. This would make the applicants’ site relatively more attractive in traffic terms in the no-scheme world. Also, the applicants’ site could not increase the westward flow of traffic from the city towards the employment land at Dyce Drive given its geographical location. There was no reason to doubt that the junction could not be given adequate capacity given the Dyce Drive options study. If there were concerns about traffic congestion on the A96 travelling out of the city towards Dyce Drive, the applicants’ site had the comparative advantage that it was the nearest and probably only residential site from which it would be realistic to expect workers to walk to the Dyce Drive employment land.
159. Mr Barr had commented extensively on the mitigation measures totalling £65m to support development of the LDP sites within Dyce. It was notable that he did not produce any evidence to suggest that a similar approach could not have been taken in the no-scheme world. The CTA showed that the introduction of the AWPR did little to improve congestion times on the A96 corridor, but with other mitigation measures, the impact of additional development traffic could be set-off completely. The additional mitigation measures were the dominant factor, not the AWPR.
160. Mr Barr’s own figures showed westward flows were alleviated by the AWPR with workers travelling to work at Dyce Drive being the dominant traffic flow in the area, and being able to avoid most of the A96 corridor. In the no-scheme world the applicants’ development would produce traffic going in the opposite direction to the main problematic flows. This and the proximity of the employment land meant the applicants’ site would have a comparative advantage over other potential sites.
161. Mr Barr’s detailed criticisms of the Fairhurst reports had not indicated that similar mitigation proposals to those assessed in the with-scheme world would not work in the no-scheme world. If in the no-scheme world the more problematic flows are towards the applicants’ site in the AM peak and not into the city, it is difficult to see how the applicants’ site would increase these problems. A new grade separated junction at the relevant access to accommodate both Craibstone access traffic and employment land traffic, which is acceptable in the with-scheme world, would presumably be equally acceptable in the no-scheme world. In the absence of the AWPR land would still have been required to be found for new housing and transport mitigation measures would also have been required accordingly.
162. Turning to the planning evidence it was submitted that the applicants’ evidence demonstrated that, on balance of probability, the acquired land and retained land would have been allocated for housing or mixed used development in the no-scheme world development plan. At the very least, potential purchasers at the date of vesting would have regarded the land as having good prospects of achieving such an allocation or permission in the future.
163. The applicants relied upon the evidence of Ms Gee. The housing targets in the structure plan were primarily influenced by the Scottish Government’s policy to promote a generous land supply for housing which was not significantly influenced by the bringing forward of the AWPR. In the with-scheme world through ACC’s development options assessment report and the transport framework, the Dyce, Bucksburn and Woodside A96 growth corridor, which included the applicants’ site, was identified as being the most sustainable and logical location for future development and expansion of the city. The factors in favour of the Newhills Expansion Area still applied in the absence of the AWPR. It is likely that the applicants’ site would still have been allocated for at least 1,000 houses on the acquired land and retained land. The number of houses in the LDP is of less importance than the area covered by the allocation.
164. Ms Baillie’s evidence had indicated that one of the stated purposes of the AWPR was to improve access to and around Aberdeen to improve transport efficiency and support industrial areas in the city and in areas to the north and west of Aberdeen. She had assumed that if the AWPR had not been in existence, that goal would not have been achieved and there would have been a lower growth assumption leading to an allocation of fewer houses. However, at least one of the council officers with whom she had discussed the matter, disagreed with her position that the housing targets in the structure plan were influenced by the AWPR. The main driving force behind the high growth forecast in the structure plan was Scottish Government policy, not the AWPR.
165. Even if there would have been lower growth targets for housing, the respondents had not assessed the applicants’ site on its own merits or carried out an assessment of the comparative advantage of all potential sites in the no-scheme world. The respondents indicated that such was too big an exercise for one person to carry out, but if that is the respondents’ position, they cannot criticise the applicants for not carrying out such a detailed exercise. In the no-scheme world the A96/Dyce corridor remained the natural and logical direction and location for development. Basic principles of sustainable development and the integration of land use and transport would still apply. The A96 was still a major transport artery into the city in the absence of the AWPR. The airport and industrial and employment land around it were still located in the Dyce Drive area in the no-scheme world. A housing site close by would allow sustainable modes of transport to work. The site fitted into the landscape and contained identifiable and appropriate boundaries and involved the use of established woodland rather than open fields. The applicants’ site could have been progressed either as part of the wider Newhills development or as a standalone allocation or consented site.
166. It was submitted that even at a local level the applicants’ site had a comparative advantage over its fellow Newhills Expansion Area sites. Rowett South consisted of open fields with no significant woodland cover. Craibstone was close to the employment land and there was access to it by foot via the existing underpass. There was a core path running through it. There was no challenge to Fairhurst's assessment of the non-vehicle assessment of the advantages of the applicants’ site.
167. The council would be under pressure to comply with the structure plan housing requirements.
168. In general terms the evidence before the Tribunal in relation to the no-scheme world supported the applicants’ position that the retained land would have enjoyed a comparative advantage over other housing sites allocated in the LDP. There was no logic to suggest that the housing allocations would not be focussed on the same SGAs in the no-scheme world. There would also be an attraction to allocating sites in the A96 corridor around Dyce Drive as the combined developer contributions from both the employment land and housing sites would lead to economies of scale and the prospect of being able to finance very significant improvements in the transport corridor similar to those proposed in the with-scheme world. Alternatively the applicants’ site might have been promoted as a standalone site under policy CF1.
169. If it were found that the retained land would have been allocated for housing in the no-scheme world, the statutory assumption in favour of planning permission being granted would imply that the retained land should be assumed to have planning permission in the no-scheme world. In any event the respondents had failed to show that increase in value of the retained land through its allocation in the LDP was due “solely” to the AWPR. There was no basis on which to assert that betterment had been established in order to set-off the increased value of the retained land against the value of the acquired land.
170. The indicative allocation for an additional 320 houses on the acquired land was a conservative estimate of the numbers that might be accommodated there since it was based on the relatively low density housing proposed and promoted by CALA. Mr Welch’s evidence was unchallenged. It could be inferred from the landscape and masterplanning evidence of the applicants that the local planning authority would have granted planning permission in principle for the retained land and acquired land at the date of vesting. In the real world it is likely that the respondents’ criticisms of the applicants’ transport evidence would have led to further discussions. The Tribunal should not draw any conclusion as to a lack of detail on transport matters without considering the level of detail as would have been required in the no-scheme world. The planning permission and s.75 agreement in the with-scheme world demonstrated an expectation that a junction solution would be possible for the Craibstone/Dyce Drive/A96 junction and that further developer contributions had been made available. There was no reason to think that similar arrangements would not have been reached in a no-scheme world.
171. In any event there would have been a hope of achieving planning permission on both the acquired land and retained land in the no-scheme world, based on the possibility of an allocation for housing in the local plan.
172. Counsel first referred to legal issues. The valuation exercise would be carried out under rule 2 of s.12 of the 1963 Act. Reference was made to what is described as one of the most intractable problems namely the Pointe-Gourde principle or the “no-scheme rule”. Here it was necessary to identify the statutory rules and assumptions, as understood by case law. Reference was made to the approach of Carnwath LJ (as he then was) in Waters v Welsh Development Agency in the Court of Appeal, which was subsequently approved in the House of Lords. It was noted that the provisions providing for betterment in terms of s.110(4) of the 1984 Act indicated that the 1963 Act would only have effect subject to the provisions of s.110(4). Reference was also made to the well-established principle of equivalence in Horn v Sunderland Corporation.
173. Counsel referred to ss.13 and 14 of the 1963 Act. S.13 contains the statutory requirement that in certain specified circumstances set out in Schedule 1, any increase or decrease in the market value of land associated with the land being acquired shall be disregarded in assessing compensation. The acquisition here fell into case 1 of Schedule 1. It was less than clear whether the word “development” in relation to case 1 was to be given a wide meaning. With reference to Lord Carnwath’s reasoning in paragraphs 68-78 of his above opinion, it was permissible to rely on the Pointe-Gourde principle in cases where Schedule 1 was not apposite to cover the specific issue in a claim for compensation. Reference was also made to a concise statement of principle of the Pointe-Gourde rule, quoted by Lord Carnwath, from a passage of Lord Nicholls in Director of Buildings and Land v Shun Fung Ironworks Ltd at 135H:-
“A landowner cannot claim compensation to the extent that the value of his land is increased by the very scheme of which (the compulsory acquisition) forms an integral part. … A loss in value attributable to the scheme is not to enure to the detriment of the claimant. … The underlying reasoning is that if the landowner is to be fairly compensated, scheme losses should attract compensation but scheme gains should not. Had there been no scheme those losses and gains would not have arisen.”
174. It followed that any higher value that might be achieved for the acquired land if consideration was given to the acquiring authority’s particular need for the land and any consequential increase in the value of the acquired land entirely due to the need for the land for the scheme that underlies the acquisition, should be left out of account.
175. Turning to s.14, the respondents did not consider this to be relevant. The section dealt with betterment in the value of contiguous or adjacent land, but the question of betterment was to be expressly dealt with in roads cases as the present under s.110(4) of the 1984 Act on account of the express wording of the latter.
176. The case of James Miller & Partners Ltd v Lothian Regional Council did not expressly justify the proposition that it must be “demonstrated” that the increase in value of remaining land would not have occurred but for the scheme. This was a gloss provided by the authors of the relevant text book. The basic question posed by the Tribunal could be translated by analogy as to whether the development of the applicants’ housing development on the contiguous land would still have been likely to have been carried out but for the compulsory acquisition for the purpose of constructing of AWPR. As put by the Tribunal, this was a “question of fact to be judged upon the balance of probabilities and in no way depends upon statutory assumptions as to planning permission.”
177. There was a causative link between the purpose of the scheme and the extent to which the contiguous land may be benefited. There was a line of authority from the Lands Tribunal in England specifically relating to the English equivalent of s.110. The cases were Persimmon Homes (Midlands) Ltd & Others v Secretary of State of Transport, which took account of the decision Transport for London v Spirerose Ltd (in administration); Esso Petroleum Co Ltd v Secretary of State for Transport; Portsmouth Roman Catholic Diocesan Trustees v Hampshire County Council and Leicester City Council v Leicestershire City Council. The Upper Tribunal in Persimmon Homes took a narrow approach such that the nature of the benefit could be taken into account only if directly referable to the purpose for which the land was acquired, as opposed to the benefit merely being an indirect effect of the purpose. In discussing Leicester City Council The Upper Tribunal said at para. 109:-
“…the only material factor preventing the full implementation of residential planning permission on the retained land was the non-availability to traffic of the link road that was the purpose for which the land was authorised to be acquired. The relevant planning policies for new housing were at all material times dependent upon the construction of the link road. Until that road was completed the planning permissions were subject to a condition limiting the development of the retained land …”.
178. The removal of the embargo upon the construction and occupation of 170 additional dwellings in Leicester City Council was “clearly and directly dependent upon the construction and opening to traffic of the balance of the link road to secure an adequate capacity connection”. Thus the value of the retained land was benefited by the purpose, namely, the provision of the link road, and by statute the Tribunal was required to have regard to the extent of that benefit. On the other hand in Persimmon Homes the Upper Tribunal did not consider that there was:
“such a clear and direct dependency between the value of the retained land and the purpose of the acquisition in the current reference. The relevant planning policies did not depend upon the provision of the bypass (although we think that they were influenced by the prospect of it) and the planning permission that was granted … was capable of implementation in respect of the retained land whether or not the bypass proceeded. The grant of planning permission on the retained land was not attributable to the additional capacity provided by the bypass.”
179. It was submitted that the relevant facts were almost entirely on all fours with the findings made in the Leicester City Council case.
180. In the present case there was no evidence that the same scale of housing development allocated for the Newhills Expansion Area could be accommodated without the AWPR and the applicants’ submission ran counter to the numerous background papers to the AWPR, the structure plan, the LDP, the MTS and the LDP transport framework, and also the supporting texts and policies of both structure plan and the LDP. Moreover, as a standalone allocation without the AWPR, the applicants could not overcome the probable objection from the trunk roads authority in the no-scheme world.
181. As in the Persimmon Homes case the issue of a clear and direct dependency between the value of the retained land and the provision of the AWPR to allow for full implementation of either a planning permission for 1,000 houses or an allocation in the LDP could be demonstrated by the evidence. The applicants had failed to establish there was sufficient capacity on the A96 corridor and the “improved” Craibstone access /Dyce Drive/A96 roundabout. The evidence from Mr Gillespie indicated that in the no-scheme world the A96 would remain a trunk road and if it could not be demonstrated there would be no net detriment as at 2013 it was probable that the trunk roads authority would object. This position was supported by the terms of condition 27 of the planning permission which limited development to 200 houses in advance of the Dyce /Craibstone section of the AWPR being open to traffic.
182. Reference was also made to the Tribunal President’s observation in Esso Petroleum:-
“The purpose of the provision is, in my judgement, clear. It is to bring into account the increase in value of the claimants retained contiguous land arising from the scheme so that this can be settled against the value of the land taken. Such increase in value falls to be determined as at the valuation date in the light of all the factors that bear on it at that time …”
This passage has a bearing upon the relevance of local transport interventions that had not been identified as at the valuation date but upon which the applicants sought to place an ever increasing reliance during the preliminary proof. The respondents’ witnesses had demonstrated the inter-dependency between the transport strategy which at its heart provided for the AWPR and the housing policies and allocations. In addition it could be seen that the AWPR provided a robust greenbelt boundary.
183. It was submitted that in order for the applicants to succeed for the alleged loss of development value of the acquired land, it was for the them to demonstrate that they could have overcome any sustainable objection by the trunk roads authority to the allocation of Craibstone for up to 1,000 units, either as a standalone development or as part of a 4,000 allocation within the Newhills Expansion Area. It was misconceived to argue that the respondents had to prove the reverse. For the betterment argument the respondents had to establish there was a clear and direct dependency between the value of the retained land and the purpose of the compulsory acquisition of the acquired land.
184. It was submitted on the basis of Mr Gillespie’s evidence that the trunk roads authority would have required the planning authority to demonstrate through transport modelling such as the 2010 CTA that there was sufficient capacity for proposed new development plan proposals. In the event that development was coming forward through an application for planning permission, the trunk roads authority would expect in a no-scheme world a transport assessment from the applicant demonstrating no net detriment both in respect of the access junction as well as the remainder of the A96 corridor. If this was not satisfactory the trunk roads authority would object. The onus was on the applicants to demonstrate there would have been sufficient capacity on the A96 corridor and existing roundabout as modified by the Fairhurst mitigation solution as at the valuation date, in order to establish the premises upon which their claim for loss of development value was based. There was no similar evidential burden on the respondents for the purposes of betterment.
185. Counsel noted that the applicants were no longer making a case for an alternative scheme, not using the applicants’ land. In any event s.22(6) of the 1963 Act meant that the Tribunal was obliged to assume there would not have been a WPR meeting the same or substantially the same need as the AWPR in the no-scheme world.
186. It was submitted that in respect of s.24 of the 1963 Act, there were no special assumptions to be made in relation to the acquired land. Reference was made to Spirerose and Steel v Scottish Ministers on the matter of hope value.
187. In the with-scheme world, the respondents accepted that at the valuation date, there were good prospects of planning permission being granted at some point in the future on the basis of the allocation in the LDP. However, compliance with development plan policies and SPP (2010) policies would have to be demonstrated, as well as the Newhills development framework of 2014 and the Craibstone masterplan of 2015 together with development of an access strategy onto the A96 which would be acceptable to the roads authority. The planning authority would also require to be satisfied that the requirements of policy T2 of the LDP (managing transport impact of development) could be met.
188. Under reference to Waters v Welsh Development Agency it was for the Tribunal to identify the extent of the scheme and its purpose. There was a long established principle that Parliament could not have intended the acquiring authority to pay compensation of a larger amount than the owner could reasonably have obtained for his land in the absence of use of the relevant statutory power. The principle of disregarding the scheme was to separate from the market value of the land any enhancements in value attributable solely to the presence of the acquiring authority in the market as a purchaser of the land in exercise of its statutory powers.
189. Reference was made to the second of Lord Nicholls’ “pointers” that a valuation exercise which is unreal or virtually impossible is not fair and reasonable. It would be unreal to ignore the fact that the AWPR scheme included in the Craibstone access at the Craibstone/Dyce Drive/A96 junction. With reference to the fifth pointer there was no reason to doubt that the new junction was part of the scheme.
190. There was no evidence to support Mr Richardson’s position that the reduction from 1,000 to 700 units on the OP29 site had been due to an unexpected amount of land being taken. Although the second CPO increased the amount of acquired land, for mitigation of adverse environmental effects, the timing did not fit the idea that the applicants would not have well known the extent of land being taken at the time of the 2010 bidding process. The subsequent development framework document made it clear that the reduction in housing was due to CALA’s preference on density.
191. Counsel listed the numerous documents which indicated the purpose and nature and extent of the scheme and emphasised that the appraisal process concluded that an integrated package of measures was an important element which in turn provided the greatest reduction in traffic congestion. The STAG analysis indicated that the route could enable access to new development sites with enhanced transport connections and that development opportunities arising from the route would create opportunities to improve land use by bringing housing and industrial areas closer together.
192. Counsel raised a procedural issue. She observed that the applicants’ case had altered during the hearing. They had abandoned an “alternative scheme scenario” and also jettisoned the mitigation solution identified in the 2016 Fairhurst report. During the hearing the applicants had relied upon s.75 agreements which had been entered into in order to rely upon the delivery of other local transport measures which had not featured in the 2016 and 2019 Fairhurst reports. The respondents’ primary position was that there was no evidence that any of the local transport measures could take the place of an alternative to the AWPR scheme. But their secondary submission was that if the Tribunal was minded to entertain any of the alternative scenarios, in fairness the respondents should be provided with an opportunity to lead evidence as to why it could not be assumed that any of those measures could be delivered in the absence of the AWPR and be sufficient to open up the Newhills Expansion Area for the allocation of 4,000 houses.
193. Turning to issues of credibility and reliability, it was observed that Ms Gee and Mr Stirling adopted their written evidence at the outset of their evidence-in-chief without making clear what aspects of their evidence were no longer being advanced or addressing the implications of their not doing so. Mr Stirling had made a considerable number of concessions without hesitation concerning Mr Barr’s criticisms and it was submitted that no reliance could be placed on his evidence as to the wider impacts on the network and other areas of his evidence.
194. Ms Gee’s evidence lacked credibility in that by implication she had carried out a s.25 assessment without considering all the policy provisions for and against the proposed development and material considerations. She had sought to advance a different reason for the imposition of condition 27 in the Craibstone planning permission. There was no evidential basis that the development plan would have contained the same high growth scenarios which she relied upon. Unlike the respondents’ witnesses, the applicants’ witnesses had failed to consider material facts. Reference was made to Kennedy v Cordia (Services) LLP.
195. In the with-scheme world the AWPR route was already safeguarded in the LDP under policy T1 which applied to the acquired land. The retained land had been allocated by the LDP for the provision of up to 1,000 houses over two phases under OP29 as part the Newhills Expansion Area. At the date of vesting the planning application for the development of 700 houses on the retained land had not been submitted. The acquired land (with the possible exception of CPO plots 4301, 1011 and 1016) had also been allocated within the greenbelt. However, at the date of vesting there had not been a grant of permission, nor was the Newhills development framework or the Craibstone masterplan in place which would have been prerequisites for the grant of planning permission. It was therefore unlikely that permission would have been granted for the 1,000 units. The allocation would reduce the risks of not securing planning permission but the valuation at the vesting date should be approached on the basis of hope value.
196. Turning to the no-scheme world, it was not open to the Tribunal simply to rewrite history. Assumptions required to be tested and to be fair and reasonable. It would be unfair to assume that transport mitigation measures specified in the LDP and other transport studies, predicated as they were on the delivery of the AWPR, would necessarily come forward as at the valuation date in the no-scheme world. The applicants’ case had not made robust assumptions in this regard.
197. It was the respondents’ position that the AWPR scheme was an essential prerequisite to the allocation of the retained land for housing development. In the absence of the scheme it was unlikely that the retained land or any part of the applicants’ subjects would have been allocated for housing development at the date of vesting or have received planning permission. The MTS-STAG appraisal and the 2008 Regional Transport Strategy were of particular importance. It was artificial to look at only parts of the 2009 structure plan and ALDP 2012 which evolved alongside the AWPR and conclude that they would still have been placed in the no-scheme world. One could not selectively pick from documents which post-dated the date of vesting.
198. Returning to the planning evidence it was illogical for Ms Gee to rely on an “alternative” scheme which assumed there was a clear need for the scheme, and then to argue that in the absence of an alternative scheme or the AWPR scheme, a spatial strategy would nevertheless have been the same. Ms Gee also relied upon the 2016 Fairhurst transport report, which contained a number of deficiencies, elaborated upon by Mr Barr. The applicants’ proposed mitigation did not have sufficient capacity, the assessment relied upon an assessment of the Craibstone access /Dyce Drive/A96 junction in isolation despite impacts at other key junctions, account had not been taken of changes in traffic patterns and flows as would occur in the no-scheme world, or changes resulting from other committed infrastructure across the wider area and failed to adopt a reasonable forecast year for assessment. The study also failed to take account of a reasonable construction period and growth in background traffic. The LinSig models provided by Fairhurst to Jacobs confirmed in Mr Barr’s opinion that the proposed mitigation would not accommodate the traffic from the applicants’ development. The “corrected” results showed that the junction would exceed its practical capacity by 20% in both the AM and PM peaks, which confirmed Jacobs’ previous concerns. The applicants did not seek to dispute Jacobs’ findings in their evidence. Instead the applicants suggested that even though the mitigation solution proposed by Fairhurst would not work, another solution could be found.
199. It followed there was no evidence before the Tribunal to enable them to conclude that in the absence of the AWPR scheme the Newhills Expansion Area or Craibstone site would have been deliverable in terms of the transport network, or what the cost of implementing the relevant measures might be. The applicants had not led transport evidence to this effect and a significant number of the observations had been made by the planning expert, Ms Gee, rather than a transport witness and moreover the applicants placed heavy reliance upon Mr Gillespie’s evidence which required to be read in context.
200. It could be seen that the applicants now appeared to be relying upon a potential grade separated junction at the Craibstone access/Dyce Drive/A96 junction. Nowhere in any of the applicants’ reports or statements was there any suggestion that such a junction would be required as mitigation in the no-scheme world, or that such a junction could be implemented. Mr Stirling had simply agreed with the list of 12 interventions referred to in Schedule 4A of the s.75 agreement between ACC and the Rowett Research Institute of August 2016, with cost estimates of £65m, including grade separation at the Craibstone roundabout with an estimated cost of £11m. Mr Gillespie’s observation, quoted above, should be read in the context that Mr Gillespie was unable to speculate on what the scale of the development proposals in the area was, or whether network improvements could have been identified to accommodate the impacts of developments along the A96 corridor. Mr Gillespie was in, his own words, speculating. There was no evidence before the Tribunal that a grade separated solution was feasible or deliverable in the absence of the AWPR, or what the cost of such a junction might be. There was also the evidence by Mr Gillespie as to the difficulties of the A96 remaining a trunk road operating at 70mph, and Ms Baillie’s evidence that land would be required for the upgrade and there was no evidence as to the extent of the land-take required.
201. Returning to the procedural point, in the event that the Tribunal intended to consider the possibility of a grade separated junction being delivered at the relevant access, then the respondents would propose to lead further evidence. This would relate to the costs, including additional land costs, drainage, utilities etc, the significantly higher design standards required for a trunk road, as well as equivalent projects elsewhere whose cost estimates which might be substantially higher than the £11m quoted in the s.75 agreement. It was also the case that the Haudagain roundabout improvements might have differed in the no-scheme world, since not only was there the point about ease of construction but Ms Baillie had also indicated that the design solution may have been different in the no-scheme world. The respondents ought to be allowed the opportunity to provide further evidence in relation to that matter also.
202. Mr Stirling and Ms Gee had both suggested that the level of detail required in a transport assessment is less when promoting a site for allocation by the LDP as opposed to a planning application requiring to be supported by a full transport assessment. But Ms Baillie was correct in pointing out that in relation to the allocation of land there still had to be understanding of what infrastructure would be in place and an understanding of the general scale and location of changes. Transport Scotland as a consultee in the preparation of the development plan could potentially object through representations to a proposed spatial strategy if it was considered there was insufficient capacity on the trunk road network.
203. Turning to the Scottish Government’s Firm Foundations report, relied upon by Ms Gee, this was only a discussion paper and did not set out Scottish Government policy. In effect it was a consultation paper. Ms Gee’s evidence that the SGAs would have been the same in the no-scheme world was that these were the main routes into Aberdeen, i.e. to the main city in the north east and would generally comply with SPP. This amounted to a selective piecemeal approach which ignored the inter-connection between land use, planning and transport strategy.
204. On the contrary it was highly likely that the retained land would not have been allocated for housing development at the date of vesting. There was a close relationship between spatial land use and transportation strategies and the scheme played an important role as an enabling project for the wider package of transport improvements. Increased certainty and confidence in the delivery of the scheme influenced the high growth scenario in the 2009 structure plan. Without the scheme “low growth” or “probable” growth scenarios would have been more likely. Transport and infrastructure constraints would have needed to be addressed by developer contributions rather than by a publicly funded strategic transport project which would have altered the scale and location of housing proposals brought forward by developers. The scheme was a key element in the Dyce/Bucksburn/Woodside direction for growth area in the ALDP 2012. In the absence of the scheme it was unlikely that the direction for growth areas to the north and west of the City would have been taken forward as this would have exacerbated the existing transport related problems.
205. The retained land was undeveloped green field land and not well served by existing facilities with limited access to public transport and was separated from existing urban areas of Aberdeen. It did not follow that the exclusion of the applicants’ land from the greenbelt on the basis of SPP (2010) as a major existing educational and research use meant that the land would be allocated for development. In terms of policy CF1 alternative use compatible with adjoining uses might potentially be permitted. This would involve issues as to the scale of the development, the transport impacts, and the likelihood that the roads authority would object to any application on the basis that the applicants had not demonstrated that 1,000 houses could be accommodated on the retained land in terms of traffic impact. The foregoing criticisms also applied to the applicants’ case for development on the acquired land in the no-scheme world. There would be cumulative impacts resulting from the additional 320 houses. It followed that there would not have been any hope of achieving either an allocation or planning permission in the no-scheme world.
206. At best in the no-scheme world there would have been a restriction of 200 houses in any planning permission in respect of the retained land. The remainder would have likely been retained in the greenbelt. As the retained land was better located for housing than the acquired land, which is more remote from the city, it is unlikely that this allocation would have extended to the acquired land.
207. In assessing the value of the acquired land, it is necessary to consider the statutory disregard of s.13 of the 1963 Act. S.13 is one of a number of provisions which seek to embody the Pointe-Gourde or “no-scheme” rule; that is the rule that compensation for compulsory acquisition is to be assessed disregarding any increase or decrease in value solely attributable to the underlying scheme of the acquiring authority. The wording of s.13 is difficult, but its equivalent has been elucidated by the Supreme Court in J S Bloor (Wilmslow) v Homes & Communities Agency. Lord Carnwath said at :
“Section [13 of the 1963 Act] (headed ‘disregard of actual or prospective development in certain cases’) has been treated by the courts as a statutory but not exhaustive embodiment of the Pointe-Gourde principle (see Waters at  – ) … It provides:
‘(1) … no account shall be taken of any increase or diminution in the value of the relevant interest which, in the circumstances described in any of the paragraphs in the first column of Part 1 of the First Schedule to this Act, is attributable to the carrying out or the prospect of so much of the development mentioned in relation thereto in the second column of that Part as would not have been likely to be carried out if –
(a) (where the acquisition is for purposes involving development of any of the land authorised to be acquired) the acquiring authority had not acquired and did not propose to acquire any of the land; …’
Part 1 of the First Schedule sets out in tabular form a number of “cases” with the corresponding “development”, the prospect of which is to be left out of account. The first case is:
‘Where the acquisition is for purposes involving development of any of the land authorised to be acquired.’
The corresponding development is:
‘Development of any of the land authorised to be acquired, other than the relevant land, being development for any of the purposes for which any part of the first-mentioned land (including any part of the relevant land) is to be acquired.’ (emphasis added)
Although this paragraph in terms applies the statutory disregard to land “other than” the “relevant land”, that is the land subject to acquisition, the Pointe-Gourde rule has been treated by the court as requiring the same approach to be applied also to the subject land itself (see Camrose v Basingstoke Corpn  1 W.L.R. 1100, Waters at .”
208. The effect of this is that any increase in value of the land acquired from the applicants on account of the prospect of development of any of the land authorised to be acquired for purposes of the scheme, is to be ignored. This point was uncontroversial.
209. We also note that the compensation statutes have been interpreted to mean that compensation cannot be given for increase in value entirely due to the scheme, as opposed to cases where a premium value was pre-existent to the scheme: Waters, Lord Nicholls at  and . It follows, we think, that regard should be had to increases in value which would have accrued in the absence of the scheme, i.e. to consider what can fairly and reasonably be established in the no-scheme world.
210. Bloor is also an illustration of a case where there was a need to consider “life in at least two parallel universes”: the “cancellation assumption” universe and the “disregard the scheme” universe: paragraphs  and . The cancellation assumption relates to assumed planning permissions (ss.22-24 of 1963 Act) and, in terms of case law, is based upon a notional cancellation of the scheme solely in respect of the acquired land on the date of the notice to treat or equivalent. In the present case parties do not rely upon any assumed planning permissions under ss.22-24 and, correctly in our opinion, did not seek to approach the case on the assumption of a cancellation of the scheme on the vesting date.
211. What we are dealing with here is a disregard in terms of s.13. This means that we are entitled to regard the underlying planning policies as potentially relevant to the prospect of development in the no-scheme world, and to look at the pattern of development on the ground and history of the identification of the land for substantial development: Bloor para . Bloor also notes the principle that the statutory planning assumptions are not exclusive (para ) and that it is well established that the application of the Pointe-Gourde rule may itself result in changes to the assumed planning status of the subject land: para.. Again these points were not controversial.
212. Turning to the issue of betterment of the retained land, we agree that s.110 of the 1984 Act applies, and not s.14 of the 1963 Act for the reasons advanced by the respondents. The CPOs were made under the 1984 Act, so in terms of s.110(4) the provisions of the 1963 Act are “subject” to s.110(4). In our opinion this means that for present purposes s.110(4) supersedes the similarly intended but differently worded s.14 of the 1963 Act.
213. We refer to the series of English Tribunal decisions upon the equivalent to s.110(4). These were Esso Petroleum Co Ltd v Secretary of State for Transport, Portsmouth Roman Catholic Diocesan Trustees v Hampshire County Council, Leicester City Council v Leicestershire County Council and Persimmon Homes (Midlands) Ltd and Others v Secretary of State for Transport. It seems fair to point out that the Tribunal have taken a fairly narrow view in the past of what is meant by “benefit to remaining land attributable to the purpose for which the land is acquired.” In Portsmouth Roman Catholic Diocesan Trustees the President said:-
“The kind of benefit to which the Tribunal is required to have regard is, in my opinion, one which is directly referable to the purpose for which the land is authorised to be acquired, such as where the coming of the road will provide access to the retained land of a new or improved kind (including the creation of a frontage to a widened highway), which benefit increases the value of that land. It appears to me that the grant of planning permission by the local planning authority in respect of the green [retained] land was an indirect effect of the purpose for which the land taken was acquired; it was too remote. A fortiori is this so where, as in the present case, the planning permission was granted in pursuance of a policy which was itself referable to the purpose for which the land taken was acquired.”
214. Portsmouth was distinguished in Leicester City Council where land was acquired for the construction of a link road. The construction of the link road was “the purpose for which the land is authorised to be acquired”. The value of land retained by the claimant was benefited by that purpose. Planning permission had been issued for the development of the retained land but the development was restricted until enhanced highway capacity was made available. The purpose for which the land was acquired was fairly understood to provide that enhanced capacity. The retained land benefited from this and the Tribunal applied the relevant set-off provision.
215. More recently, in Persimmon Homes, as quoted by the respondents in their argument, the Upper Tribunal did not think there was a “clear and direct dependency” between the value of the retained land and the purpose of the acquisition. The bypass formed an obvious boundary for the village, without which the developers would probably have put forward a significantly smaller site and obtained a permission over a smaller area. Planning policies may have been influenced by the prospect of the bypass. But the fact the bypass would provide a means of enclosure for the village was successfully argued not to be the purpose of the acquisition. The Tribunal expressly concluded that the planning policies did not depend upon the provision of the bypass, and the grant of planning permission on the retained land was not attributable to the additional capacity provided by the bypass. But the type of incidental planning benefit which accrued was not one which, in the light of Portsmouth, could be taken into account. Accordingly the contiguous lands were not benefited by the purpose for which the land was authorised to be acquired in the necessary sense.
216. The Upper Tribunal in Persimmon Homes were necessarily taking a view on the state of the no-scheme world. But they were also taking a view as to the extent of the purposes of the scheme. The kind of planning benefit – the fact of enclosure of the village resulting in expansion in a particular direction being regarded as the most sustainable option – was not the purpose of the acquisition and fell to be disregarded. The result was that the authority could not set-off for benefit the fact that over 100 houses were permitted on retained land which would not have been permitted in the no-scheme world. On the face of it, the applicant was compensated for more than he lost, contrary to the principle of equivalence. If we have correctly understood their reasoning, we would think the Tribunal were driven to such an unattractive conclusion because it was not possible to interpret the scheme purposes more broadly.
217. The applicants accepted that the onus was upon them to establish market value in terms of s.12 of the 1963 Act, and that meant establishing the value they sought in the light of the statutory disregard of s.13 in respect of the acquired land. The respondents were more reserved as to their position for establishing betterment for the retained land but they did accept it was for them to establish a clear and direct dependency between the value of the retained land and the purpose of the acquisition. It seems to us that by implication this is likely to create a foray into the no-scheme world since if this proposition is correct, namely, that there is a clear and direct dependency between enhanced value and acquisition, it would follow that there would have been no increased value had there been no acquisition for the scheme. We agree that in James Miller & Partners Ltd v Lothian Regional Council, the Tribunal did not expressly comment upon the matter of onus. But we think the textbook commentary (Rowan Robinson 3rd ed, para 11-04) “… it must be shown that the increase in value of the remaining land would not have occurred but for the scheme …” is a fair analysis of the approach taken. The Tribunal expressly set out that the acquiring authority was making the case for set-off for betterment, and that this was a question of fact to be judged upon balance of probability.
218. We would seek to identify the scheme and its purposes. In general terms, the scheme is the provision of the peripheral bypass on the route now embodied by the relevant special road and compulsory purchase orders. In general terms the purposes of the scheme can fairly be taken from the specific objectives stated to the public inquiry as quoted earlier (Lord Nicholls’ fifth pointer). It is clear that, for example, the scheme includes the steps taken to connect the bypass with the existing road network, such as the Craibstone Junction linking the bypass with the A96. We consider that it also includes the signalised junction at the Craibstone access/Dyce Drive/A96 junction further east, not least because the land for that work was covered by the first of the CPOs (CPO sheet 10, report of inquiry paragraph 4.6), and was no doubt intended to facilitate the link to the bypass itself by improving the free flow of traffic there. The respondents emphasised the integrated nature of transport policy and the fact that the AWPR was part of a wider and connected network which the AWPR was intended to facilitate. While that is no doubt the case, it is clear to us that many “related” road improvements, e.g. the airport link road from the Craibstone Junction, the dualling of Dyce Drive, the Haudagain roundabout improvements and others were all separate projects and listed as such in the planning documents. We heard, for example, that the Haudagain roundabout improvements required separate CPOs. The Park & Ride schemes were also separately listed in the planning documents, and land for the Dyce Drive Park & Ride scheme (but not yet the AWPR) had been reserved in ALP 2008. We do not think it is open to us, or indeed would be fair, to consider such projects as part of the AWPR scheme.
219. We think it is fair to infer that at some point in the past the with-scheme world and no-scheme world would have diverged. A bypass had been under discussion for many years. Ms Gee’s evidence confirms that funding for the WPR was confirmed by Scottish Ministers in 2003, prior to which time the route was not being actively pursued. Since then the history shows that the WPR was actively pursued. Ms Baillie in discussing the Dyce Drive planning brief of 2004 makes the case that the scheduled AWPR became a catalyst for economic growth in the region.It seems to us appropriate therefore to treat 2003 as the date when the planning and development landscape started to change in the light of the forthcoming construction of the AWPR.
220. All the witnesses had made considerable effort in preparing their statements and reports and gave their evidence conscientiously. We are inclined to accept that a number of Mr Barr’s criticisms of Mr Stirling’s 2016 mitigation study are valid, and conclude that the study would not have been acceptable to a roads authority as a transport assessment had it been presented in the real world. In fairness to Mr Stirling, he had been given a number of “pre-scheme” assumptions to work with for the purposes of the litigation, which he had not questioned. He had not run the model himself and some of the original data could not be found, which meant that certain of Mr Barr’s more technical criticisms could not be fully tested. Otherwise Mr Stirling accepted the weaknesses of the study without hesitation. The opposing planning witnesses each presented remarkably detailed reports, but on matters of judgement came to quite different conclusions. We are mindful that these witnesses were bringing their own perspectives to bear. On reflection we have concern that some of the planning related evidence and traffic assumptions did not tie up very satisfactorily in either parties’ evidence, and we shall deal with this point below. Subject to the foregoing, we are not disposed to make any adverse findings as to credibility and reliability.
221. It seems to us that the first question is whether the 2009 structure plan housing allowances would have been different in the no-scheme world. The 2009 structure plan refers to a housing “requirement” of 56,304 houses for periods between 2007 - 2030, and proceeds to make an “allowance” for 72,000 houses for those periods to be provided for in the City and Shire local plans. The 56,304 figure was based upon population forecasts in which a “high scenario” was taken for population growth. The accompanying text (paragraph 4.11 et seq) refers to a falling population which would have a significant effect on the economy if not redressed and thus states a need to grow the population. Nowhere in the text under “population growth” is there a reference to infrastructure constraints.
222. The increase between “requirement” and “allowance” is explained. According to the underlying text (4.16 et seq) the housing allowance is
“needed to help deliver this increase in new homes and allow development at the rates targeted in this plan. This takes account of the Scottish Government’s desire to see a 40% increase in new house building across Scotland, as well as forecasts of population and households through to 2030. In line with Scottish Planning Policy, this plan provides a generous supply of land for new housing …”
It seems to us that the generous approach was partly intended to ensure that the “requirement” would be met. Also, we accept Ms Gee’s evidence that the 40% increase in new house building derives from the Scottish Government’s Firm Foundations report of 2007. It is correct to observe, as Ms Baillie points out, that it is a discussion document, but equally the document uses emphatic terms when setting out the government’s position e.g. p 13 “we believe that increasing the rate of new supply to at least 35,000 per year by the middle of the next decade is both achievable and necessary if we are to reverse declining affordability.” The document also points out that the per capita rate of building would be far ahead of that for which the UK government is aiming in England. The evidence before us suggests that the 40% figure was treated as a “recommendation” by officials, as can be seen by the Aberdeen Local Plan monitoring statement of September 2009 (paragraph 3.34), who would no doubt have been mindful of the fact that the structure plan would need to be approved by Scottish Ministers (s.13 1997 Act).
223. Ms Baillie’s theme to the contrary is that the AWPR acted as a key driver for economic growth in the region “which has, in part, led to the creation of employment and investment opportunities and subsequent population growth with a resultant (our emphasis) increase in demand for housing”(paragraph 8.1.5 main report). While that comment may be correct as far as it goes, we think the evidence suggests a broader picture more the other way around; i.e. there was a strong pre-existing housing requirement. A relevant passage (paragraph 4.12) of the structure plan states that population growth is necessary in order to grow the economy, i.e. not the other way round. The “requirement” figure stated in the structure plan is said to represent an increase in housebuilding from current levels (paragraph 4.14), and includes a period for 2007 – 2016, i.e. already starting two years before the plan was approved. The structure plan makes no reference to the AWPR in the context of the demand for housing and it is clear that the generous allocations were based upon planning policies applicable across Scotland. SPP (2010, paragraph 71) similarly exhorts allocating a generous supply of land for housing in the development plan to give flexibility for the continued delivery of new housing in the event of unpredictable changes. Those preparing the forthcoming LDP would no doubt have been aware of that.
224. The Harrington/ ACC development plan team email to the district valuer of 12 August 2013 indicates that the overall requirement for housing land in the structure plan was not influenced by the AWPR. This is unfortunately at odds with Ms Baillie’s minute of the conference call with Mr Brownrigg (of the same team) of 4 September 2018 stating that “it is doubtful that level of growth would have been proposed without the AWPR”. The latter was prepared some 5 years later, and given the apparent conflict we would be inclined to prefer the earlier email written in the words of the planners themselves, particularly as it appears there was an element of internal collaboration in its preparation. In the above circumstances we consider that while it is certainly possible the figures would have been different, the evidence suggests on balance that it is more probable the structure plan housing allocation figures would have been similar in the no-scheme world.
225. The next question is whether the spatial strategy of the structure plan - i.e. the provision of the three SGAs - would have been different in the no-scheme world. The policy was intended to make housing, employment and services highly accessible by public transport (paragraph 3.7 et seq) and were accordingly centred on Aberdeen City and the main public transport routes. We see no reason why that approach would necessarily change absent the AWPR. We agree with Ms Gee that continuing to place emphasis on Aberdeen City would have been logical in the absence of the scheme. Absent a convenient peripheral route it seems to us that it would be logical to direct development as close to the city as possible.
226. It can be seen that of the three SGAs in the structure plan, the only one whose relevant text mentions the AWPR is the Aberdeen to Peterhead corridor. The relevant passage (paragraph 3.9) describes the AWPR as a vital infrastructure project and expressly provides that development in the southern part of the (Aberdeen to Peterhead) corridor will be limited until the infrastructure is in place. Given the pre AWPR severe queuing shown by the CTA (fig 5.1 for Bridge of Don and Haudagain in comparison with other corridors) and major AWPR related improvements anticipated for the (former) A90 north-south corridor, the above structure plan analysis is no doubt correct. The structure plan explaining the SGA for Aberdeen City does expressly mention other projects, namely improvements to the Haudagain roundabout and a third Don Crossing, but these are separate projects. The AWPR is not mentioned in the context of enabling the SGA for Aberdeen City and so the text appears to distinguish the Aberdeen to Peterhead SGA. Ms Baillie considered the apparent difference of emphasis in the structure plan wording to be insignificant, but we are inclined to disagree because the above traffic evidence provides a firm basis for a distinction. So, absent the AWPR, it seems fair to say that the rationale for promoting the Aberdeen City SGA would be less likely to be affected than the Aberdeen to Peterhead SGA. While the evidence indicates that it is possible without the AWPR the strategy of focusing half of the growth in Aberdeen would have been different (Harrington email 12 August 2013), on balance we consider this to be a possibility, not a probability.
227. The LDP required to be consistent with the structure plan: s.16(6) of 1997 Act. ALDP 2012 had control over where and how to allocate the structure plan’s greenfield housing allowance and employment land in Aberdeen. The Harrington email indicates the choice of sites may have been different. According to the Jacobs’ minute of 4 September 2018 potentially a different local spatial strategy could have included the provision of smaller sites, a new settlement or a dispersal strategy to areas outside the city such as Inverurie and Ellon. But again the evidence does not suggest that these were any more than possibilities. The difficulty with a strategy involving smaller sites would be, if we are correct that the structure plan allocations would have been similar, that there would still need to be provided sites for a large total number of houses. The minute indicates that in the with-scheme world, bids with a high number of houses had a good chance of success, and no reason is given why that view might require to change. There is no suggestion where another new settlement might have been found; it seems to us that the Countesswells site for example to the west of Aberdeen was already provided in the LDP. That allocation represented a large new community there of 3000 houses and 10 ha employment land. And a dispersal strategy to locations in the shire such as Ellon and Inverurie would not necessarily help meet the target since these locations are already expressly allocated in the SGAs for growth, with Ellon being subject to the vicissitudes of the north/ south A90 corridor as already discussed. So from a local spatial perspective, we are unable to conclude that an “enlarged” (i.e. to include the acquired land as well as the OP29 retained land) applicants’ site would probably have been considered less attractive for development in the no-scheme world.
228. We think it follows from what we know of the with-scheme world that an enlarged applicants’ site as part of the Newhills Expansion Area would have been involved in a no - scheme LDP bid process. The appellants’ business transformation plan of 2004 had shown them to have a large amount of surplus land (paragraph 5.36 – “Aberdeenshire” per incuriam being a reference to Craibstone) and they had proceeded to appoint developers to find uses for it. We have no reason to think that the other OP30 and OP31 Newhills Expansion Area sites would not similarly have been involved in making bids, with each site having relatively few existing uses by 2014: fig 8 of Newhills Development Framework. Looking at the transport framework guide, which portrays the eight directions for growth corridors, it can helpfully be seen where all the bid or “development options” sites in fact lay in the with-scheme world (Appendix 1). It is fair to say that these are very extensive, surrounding as they do the majority of the urban fringe of Aberdeen. In fact one can almost say there are few areas around the urban fringe which were not bid sites. We think that in seeking to assess how the applicants’ site would have fared in a bid process in a no-scheme world, the process which existed in the with-scheme world is a reasonable place to start.
229. It seems to us likely that the applicants’ enlarged site would ultimately have been promoted as part of a Newhills Expansion Area. We are conscious that in ACC’s development options assessment report (i.e. non-transport related issues), the sites were looked at separately. But the evidence suggests that CALA in the with-scheme world had to change their tactics from promoting a standalone development to promoting a development as part of a wider framework. Masterplanning and developer interaction was an approach which the authorities encouraged under the LDP and ALDPAP policies: i.e. by insisting upon a development framework and requiring developer contributions to overall infrastructure improvements.
230. We think it is fair to infer from Ms Gee’s evidence that the applicants’ site, along with the other Newhills Expansion Area sites, would have still fared well in an equivalent development options assessment in the no-scheme world. Development on the applicants’ site would be relatively unobtrusive due to the topography. There were good core path connections. We understood that public transport links were regarded as capable of improvement since the site was close to the A96 corridor. The site was close to major employment areas at Dyce and Kirkhill, although the assessment also describes the site as essentially a standalone settlement. We accept Mr Welch and Ms Gee’s evidence that a defensible greenbelt boundary could be created in the absence of the AWPR by using the C89C road and reinforcement planting. This point would probably have been accepted by the planners whom, we were told, had accepted similar greenbelt boundary features elsewhere. The Rowett South site, though more visible, was on the urban edge of Aberdeen and was well related to the existing development at Bucksburn. Although not expressed in the options assessment report, the applicants’ site once associated with the Newhills Expansion Area would have formed part of an extension to the urban edge of Aberdeen. We do not think the planners would have failed to note this point. As discussed in the 2008 minute, the planners tried to focus development into urban areas which, in effect, would include Craibstone as part of the Newhills Expansion Area.
231. In one potentially significant respect, however, we think that the applicants’ bid would have been weaker in the no-scheme world. This is a point which is somewhat double edged for both parties and neither party emphasised in their submissions. The options testing recognised the sustainability of the development “…and its proximity to employment land opportunities in the area will help to place less reliance on the car…” This was a reference to the proposed employment areas in and around Dyce Drive in particular. It will be recalled that proximity to the proposed employment land there was described as the “penny drop” moment in the discussions between CALA and the planning officers in 2005.
232. Ms Baillie’s report drew attention to the Dyce development brief of 2004. It would appear that historically (and prior to 2004) ACC had been prepared to grant planning permission for employment land extending to some 70 ha at Dyce, to the north of the A96 and roughly opposite the applicants’ Craibstone South site. This included much of a masterplanned area, and judging the development brief plan for ourselves, appears to include a good deal of the ALDP 2012 zone 4 areas subsequently allocated for employment land development. The brief narrates that road traffic capacity has been a major constraint to the release of land at Dyce but that “the situation will now be significantly improved by the proposed Western Peripheral Route”(paragraph 7.1). We note the comments by the development planners (Harrington email 12 August 2013) that the employment sites at Dyce Drive will benefit greatly from the AWPR. To us this makes sense because access to the Dyce Drive area will be much easier via the AWPR coming from the west since there will only be one junction to cross – i.e. the new link road at Craibstone Junction to the airport, or which failing the Craibstone access/ Dyce drive/ A96 junction, rather than having to proceed from the east through Aberdeen and the busy and at times congested A96. As the planners indicate, this ease of access would be attractive to employers and businesses. It is fair to point out that congestion on the A96 was not the only reason for lack of development activity at Dyce Drive – Mr Gillespie indicated there had been a historical reluctance by respective landowners to work together. Nevertheless we consider that Ms Baillie’s comment is fairly stated that the AWPR could be viewed as a catalyst for economic growth there (main report 4.3.13 et seq).
233. It follows that while it is very possible and logical that the new Dyce Drive employment areas would still have been supported by ACC in the no-scheme world, including perhaps by making similar allocations in ALDP 2012 (and indeed ALP 2008) as in fact were made, it is less likely that the developments would have been deliverable or fully deliverable. Much would depend, we think, how much other major programmed improvements (e.g. Haudagain, third Don crossing) would have improved access to and along the A96 corridor. The governing factor would not be the availability of planning permission, which the evidence shows ACC had in principle been prepared to grant even prior to 2003, but the deliverability of employment sites in terms of market interest, by developers willing to contribute to necessary local infrastructure improvements. But in any case, we feel it has to follow that less weight would have been given to the sustainability argument for the applicants’ site for the reasons discussed above.
234. It was accepted that in the no-scheme world the applicants would likely have been able to have their educational use site removed from the greenbelt (SPP 2010, paragraph 162) and, since their property was surplus to requirements, to be able to make a case under policy CF1 of the LDP for other uses. It seems to us that a fairly persuasive case could have been made for an allocation of up to 200 houses upon the footprint and in the vicinity of redundant buildings. This was not seriously challenged. Of course such a position would only take the applicants so far in seeking a housing allocation for the whole of their “enlarged” site. As we have indicated, we think that ACC’s policies were more in favour of a comprehensive area development with the rest of Newhills, rather than for a standalone site. But in the context of ACC requiring to find greenfield sites for a large number of houses, and with the OP30 site potentially being able to make a similar case, the CF1 argument may have been regarded as another factor in the applicants’ favour.
235. Turning to ACC’s transport appraisal, direction for growth Area C – the Dyce/ Bucksburn/ A96 corridor which included Craibstone – was regarded as the “most sustainable and accessible location for development” (p1 October 2009 study and App 3). The scoring methodology has an “existing” score and “potential” score with the latter taking account of future improvements. The “existing” position and “potential” effects of the AWPR are taken into account in the “trunk roads” score box. It can be seen that some sites have a relatively larger score improvement in the “potential” AWPR trunk road score – e.g. areas E, F and G. Area C only gains one point with the benefit AWPR. The next highest scoring site was Loirston/Cove area H. This also benefited from the AWPR, but like area C only to the extent of one point. Without the AWPR area C would have scored 19 to area H’s 13. Allowing for the fact that this was a “corridor” study, not a specific site study (and Craibstone South is only on one side of the A96), we think it is not unfair to extrapolate the information in this way to give some indication how the exercise would have resulted in the no scheme world.
236. In general terms the CTA analysis indicated that the imposition of the AWPR (along with the Haudagain roundabout improvement and others) upon the road network benefits the A96 corridor relatively little compared with the other main corridors into Aberdeen: this can be seen from figs 5.1 and 7.1. This fact was accepted by Mr Barr. Again this supports the proposition that the applicants’ site was in a relatively strong position for allocation in the no-scheme world and we accept Ms Gee’s evidence to this effect.
237. We are conscious that Transport Scotland, as the trunk roads authority, had concerns as to the amount of development including housing development on the A90 and A96 corridors as provided by the structure plan and the LDP. In the no-scheme world this would presumably have remained the case because the former A90 (i.e. the main south/ north route through Aberdeen via Anderson Drive and the Haudagain roundabout) and the A96 would have remained trunk roads. Mr Barr’s view of the matter was that it was not the AWPR which was the main driver of traffic growth on the relevant section of the A96 but the scale of planned development along the A96 corridor (rebuttal report 5.1.6). We infer that this statement is based upon the assumption of high and medium growth scenarios arising from the with-scheme Dyce Drive developments proposed in the LDP: see generally assumptions set out in the CTA (Appendix B).
238. But the planning related evidence discussed above suggests a significant question mark over the deliverability of the Dyce Drive employment land proposals in the absence of the AWPR. It is only logical to infer that the extent of potential development related A96 congestion faced by a Craibstone/Newhills development would have been less in the no-scheme world. For example Mr Barr’s evidence (table 1 of main report) indicates that the amount of development traffic generated in the vicinity of Craibstone largely relates to the Dyce Drive area employment sites with perhaps only about one-fifth of that traffic relating to Rowett South housing (we are unclear if the table includes Craibstone related traffic as well) and four-fifths relating to employment. A more detailed table in the Dyce option testing report of 2015 (table 2.1) referring to the overall residential development has proportionately even more development traffic attributable to the proposed employment land as opposed to housing.
239. It seems to us therefore that on the transport evidence the respondents in particular have maintained a somewhat inconsistent approach. In the light of Ms Baillie’s evidence the heavy weighting of employment land development traffic upon the relevant junction and corridor is questionable. For example, much was made of the fact that the Dyce options testing concluded (paragraph 6.2) that a grade separated interchange would be required at the Craibstone access/ Dyce Drive/ A96 junction in the future, but that is on the basis of the above employment related developments proceeding to a substantial extent. On the evidence we are far from clear that this conclusion is reasonable in the no-scheme world.
240. The evidence does not allow us to assess to what extent there would have been less employment-related development traffic in the no-scheme world in terms of the studies, although it seems fair to infer from Ms Baillie’s evidence that the reduction may well have been significant. None of the studies (apart arguably from Mr Stirling’s whose mitigation chapter we do not rely upon for other reasons) attempted to assume a no-scheme world whereby a reduced attraction factor was expressly applied to the employment land. All we can conclude is that the progress of the Newhills housing development would have likely been somewhat easier in the eyes of the trunk roads authority in terms of the assumed amount of development traffic, albeit more questionable in the eyes of the policy planners from the sustainability point of view.
241. The evidence does indicate that an upgraded junction would be required to accommodate the Newhills development at some stage in its development. In this context we note that the Grandhome allocation (7,000 houses by 2030) may require a new junction i.e. a new junction on the (former) A90 trunk road in a no-scheme world. This was a concern to Mr Gillespie. His evidence implies, and is consistent with our experience, that all else being equal a trunk roads authority would be more likely to have concerns as to a new junction on a trunk road as opposed to an upgraded one. So on this point the applicants’ site may have a comparative advantage.
242. The respondents argued that the applicants had not demonstrated a workable traffic mitigation solution in the no-scheme world to enable the development to go ahead. The respondents have demonstrated, we think, that the Fairhurst mitigation scheme provided in their 2016 report would have been insufficient to deal with the trips generated by the Newhills Expansion Area and other committed and assumed deliverable LDP developments within an appropriate timeframe. The study would not have been acceptable to a roads authority as a transport assessment. However this does not take matters very far. It was apparent that nothing like the same kind of assessment is required in practice for an LDP allocation as is required for the approval of a planning application or the purification of a suspensive condition on transport matters. Only in the latter cases is the authority likely to require the testing of a specific junction design demonstrating a no-net detriment solution.
243. In the present case it did not appear that any form of detailed junction analysis was undertaken for the LDP developments until the Dyce option testing for ACC in 2015, more than 3 years after the adoption of the LDP. The transport appraisal which fed into the local plan comprised the 2010 CTA which was a fairly high level appraisal. The ASAM model looked at the impacts which would be brought about by the scale of development proposed by the structure plan and emerging local plans upon the main Aberdeen transport corridors. Although it lists the main development sites (Appendix B), and looked at improvements at Craibstone access (table 6.2) we understood it essentially to be a corridor overview analysis as opposed to a detailed site by site junction analysis. There is no evidence to suggest that the type of detailed assessment which the respondents have criticised, albeit somewhat successfully, would have been required in the no-scheme world in order for a LDP allocation to be made.
244. We accept that the A96 would have remained a trunk road in the no-scheme world. Thus the trunk roads authority might potentially have taken a rather less flexible view of development mitigation, as Mr Gillespie put it, than was the case in a “pre‑scheme” world. In that event we are prepared to accept the respondents’ evidence to the effect that some general understanding of the future network and position of Transport Scotland would have been required at the time of the LDP allocation, albeit that the evidence suggests that a detailed junction study would not have been required in practice. In other words those preparing the LDP would have wanted some comfort that the allocation was likely to be feasible in principle from a transport perspective. We are mindful of the comments by officials (Harrington email 12 August 2013) that in many cases, absent the AWPR, detriments caused by development would have been more onerous to overcome than they would have been otherwise. However, in fairness this comment related to the point of a transport assessment being made at the later stage of a planning application.
245. For the no-scheme world there is no evidence from any witness to the effect that the Craibstone access junction would have been deemed unworkable at the point of allocation in the LDP of the Newhills Expansion Area. Mr Stirling and Ms Gee thought that a solution could be found and if necessary the matter could be dealt with by suspensive conditions and via developer contributions to the relevant authority, as had occurred in the with-scheme world. We think their response was somewhat intuitive, but on the evidence of how the bid sites were actually selected – i.e. without detailed junction assessment, we doubt anything more than a fairly intuitive view would have been required. Without repeating the exact wording of Mr Gillespie’s evidence, as we interpret his position he did not foresee any obstacle which would prevent an improved junction solution being found and, equally, this appeared to be something of an intuitive position by him. And as we have indicated, it is clear that much of the loading upon the junction shown by the studies is due to development traffic generated by the Dyce Drive employment land allocations, which we think may over-estimate traffic generation in the no-scheme world.
246. It can be seen from the Craibstone masterplan (p22) that a large area of ground marked by a yellow dashed line was set aside for A96 infrastructure works on all sides of the old access roundabout. We bear in mind that the applicants are or were owners of land to the northwest and southwest of the access roundabout (Craibstone North and South sites), and that the University of Aberdeen are or were owners of land to the northeast and southeast (Rowett North and South sites). As the masterplan implies, those parties would no doubt need to cooperate in providing infrastructure land for the purposes of the Newhills Expansion Area development. Even at the date of the masterplan in 2015, it would appear from the accompanying text that a worked-up junction solution had not been produced (“ACC to provide further detail for review and refinement”).
247. One of the grade separated junction diagrams (fig 4.22) in the Dyce option testing report of May 2015 shows a design reducing the landtake required which does not, on the face of it, extend beyond (or at least much beyond) the areas marked by the yellow dashed line. ACC appear to have been content with the design. Even if more land were to be required outwith the yellow dashes, if for example Transport Scotland were to require a higher specification junction in the no scheme world, the applicants and University of Aberdeen appear to have had more land if that were necessary, albeit perhaps at the sacrifice of net developable land. In other words there is no reason to conclude that in the no-scheme world a grade separated junction could not physically be constructed at the site access. Indeed the opposite conclusion would be surprising given that ACC have proceeded to levy developer contributions via s.75 agreements for the purpose of funding a future grade separated junction there. That said, we agree with Ms Baillie’s comment that it is a little surprising that the infrastructure land was not also reserved in the relevant s.75 agreements, and we would have expected this to be the case if a third party like Transport Scotland were to have remained responsible for the trunk road in the no-scheme world.
248. So looking at the matter in the no-scheme world, we would be inclined to think that a broad and somewhat intuitive approach at the time of allocation in the LDP would have shown that there was considerable land available at the junction and that a mitigation solution was likely to be feasible. The weight of evidence suggests that an adequate improved access would have been viewed as possible in principle, although the evidence does not extend to the working-up of details of a viable specific design. In this we accept that a signalised crossroads junction as exists at present would have been unlikely to satisfy the trunk roads authority for the reasons given by Mr Gillespie. However, given the anomaly in the use of the Dyce Drive employment trip generation figures in the studies we have discussed above, we cannot exclude the possibility, at least at this stage of the proceedings, that a large signalised roundabout would not have been acceptable as mitigation (or interim mitigation) even at the later stage of a planning application being determined. We are conscious that Mr Stirling thought that a signalised roundabout junction would have required to have been replaced (paragraph 4.29 of witness statement), but this concession was made in the context of the other LDP developments proceeding, i.e. without questioning whether the Dyce Drive employment land proposals were likely to be viewed as deliverable in the no-scheme world. We are equally conscious that an allocation in the LDP would not amount to a guarantee that the housing sites would be deliverable in terms of funding the cost of infrastructure.
249. Turning to the wider area (but our comments are still intended to include the Craibstone access) ACC in the with-scheme world have progressed major infrastructure programs for the A96 and Dyce Drive area, and beyond. In 2012 the CTA assumed a baseline (“2023 SO”) involving completion of a number of committed programs (paragraph 3.4) which included the AWPR, the Haudagain roundabout improvements and the third Don crossing. The study then added the proposed LDP development traffic (“2023 S1” and “2023 S2”), and then added a further package of transport interventions (“2023 S1 Package”). These (fig 7.1) show A96 traffic reducing to pre LDP development levels. The “new” interventions are listed in tables 6.1 and 6.2 and include capacity improvements at the Craibstone access/ Dyce Drive/ A96. By 2015-16 ACC had identified a program of “local transport interventions” (e.g. as listed in schedule Part 4A to s.75 agreement for the OP30 site), and a methodology was established by which developer contributions would be calculated and sought from various relevant developers under such agreements.
250. The question is whether this approach is likely to have been followed in the no-scheme world. Mr Stirling’s evidence (2019 report 5.2.7) was that with the AWPR increasing traffic flows on the A96, it was reasonable to conclude that similar mitigations could have been implemented in a no-scheme world. Mr Barr’s evidence (rebuttal report 3.2.21) was that the applicants had not proved this because in the no-scheme world the traffic flows would be different. It is true that there are predicted increases and decreases of flows in certain directions as between with and without AWPR scenarios (e.g. Mr Barr’s fig A1). The picture is not simple, but looking at Mr Barr’s figures for ourselves the total amount of traffic in the area of Craibstone does not appear radically different between with-scheme and no-scheme scenarios. Mr Barr did not go on to suggest that the differences in flows would be likely to result in a radically different design of junction to those contemplated in the with-scheme world. The evidence suggests that the traffic growth in the area was being driven by the amount of development there, not by the AWPR as such, and it has been shown that the growth can be accommodated. So we do not see why a broad view at the time of LDP allocation would have been likely to show mitigation to have been technically unfeasible. Moreover, as we have already indicated, we are not convinced that the Dyce Drive related development traffic would have been assumed in the no-scheme world to have been at the sort of levels assumed by the various studies. So if anything a mitigation solution in the no-scheme world may have been technically easier to identify, albeit with potentially fewer developers willing to fund it. Beyond this the evidence does not allow us to make detailed findings on the matter. It seems to us that the whole matter of junction and corridor improvements, their nature and extent and potential cost and deliverability, is a “future” scenario which would require to be assessed by the hypothetical purchaser doing due diligence at the vesting date in 2013.
251. So, in principle we agree with Mr Stirling, supported by Ms Gee, and as alluded to by Mr Gillespie, that an approach similar to the with-scheme world would have been likely. ACC had a policy of seeking developers in the area to work together with a view to finding common solutions, paid for by developer contributions. The alternative of allowing individual iterative developer led mitigations was not attractive.
252. Our understanding is that the Haudagain improvements were mainly or entirely a Scottish Government project. The evidence indicates that it was a separate project from the AWPR. The project is referred to throughout the structure plan text and was no doubt considered to be an important component of the policies. The roundabout is part of the main south/ north route through Aberdeen on the (former) A90, and its western arm is the A96 leading northwest. The improvements will allow A96 bound traffic to divert from the A90 to the A96 prior to reaching the roundabout, and vice versa. North/south traffic will be able to proceed through the roundabout free of A96 traffic. The structure plan (p26) describes it as one of a number of measures to deal with congestion and allow growth in and to the north of the city.
253. One of the main aims of the AWPR was, of course, to remove south / north (and vice versa) traffic through Aberdeen. So, absent the AWPR, it seems to us that the Haudagain roundabout improvements would have been all the more important for relieving congestion. We cannot comment upon whether the design would necessarily have been the same without the AWPR, but we think it would be unreal to assume that the project would have been unnecessary in the no-scheme world. The evidence indicates that the Haudagain improvements were phased to commence after the completion of the AWPR, since the consequential removal of traffic would make the improvements easier to implement. However there was no evidence, and we are not prepared to accept any implication, that the Haudagain improvements would not have progressed without the AWPR. The AWPR was delayed for many years and without it there would have been the opportunity to carry out the Haudagain improvements much earlier, i.e. before the addition to the network of further naturally occurring traffic growth.
254. The Haudagain improvements were assumed in the background modelling of the CTA. We understood this was also the case in the Dyce Drive S-Paramics modelling, although they are not expressly discussed there. There was no suggestion that the costs covered by the s.75 agreements involved any form of clawback for the Haudagain improvements, which payments were calculated on the basis of the modelling. The improvements were assessed at a strategic level in the knowledge of the delivery of the AWPR, and sought to address significant traffic issues at the roundabout. It did not appear that individual developers were required to have their impacts on the roundabout assessed on an ad hoc basis, although the critical decision making period for the improvements, 2008-2010, may have roughly coincided with early work on the LDP.
255. Nevertheless, the evidence does indicate that the Newhills Expansion Area would have had an impact upon the Haudagain roundabout. It follows that the development may potentially have utilised capacity only made free by the improvements. This conclusion could apply in both the with-scheme and no-scheme worlds. The evidence suggests that no levy was made upon developers in the with-scheme world because the improvements were a strategic project dealing with a wider problem. Nevertheless the implication from Mr Barr’s evidence is that this matter might have been reviewed in the no-scheme world. We would prefer to have heard more as to Transport Scotland’s practice in similar cases to guide us in this part of the case. So with some hesitation we conclude that the evidence does not presently allow us to come to a view whether, in the above scenario, Transport Scotland would have required to design different roundabout improvements to take account of no-scheme development traffic and/ or in some way would have sought a contribution, perhaps via ACC from the applicants in the no-scheme world. We consider this would also be a matter for the hypothetical purchaser doing due diligence to assess at the valuation date.
256. Drawing the threads together, we think that the applicants’ land (acquired and retained) had a less strong case for allocation in the LDP in the no-scheme world than the retained land had in the with-scheme world. With the Dyce Drive proposed employment land becoming more viable on account of the AWPR, the applicants’ site benefited by a sustainability factor in being situated close to the employment land. That factor would be diminished somewhat in the no-scheme world. But there would still have been a reasonable and persuasive case to be made. The nearby Dyce, Kirkhill, Stoneywood Park and Wellheads employment areas have existed around the airport since well before 2003 and so there would still have been a sustainability case in principle. As we have indicated, the other non-AWPR committed infrastructure improvements might have added to the attraction of growth of employment land in the area. And in any event the fundamental planning strengths of the applicants’ enlarged site would have remained in the no-scheme world, namely its proximity to the urban edge (via combination with the OP30 site), its proximity to the important A96 corridor and its ability to integrate well with the landscape, all against a background of ACC being urgently required to find sites for a very large number of houses on greenfield land. We do not think the transport evidence justifies a conclusion that the applicants’ land (acquired and retained) would have failed to be allocated to the LDP for housing because of a lack of detailed transport mitigation information, and a broad view would have shown that there was enough land for an improved access junction, whatever form that junction would have taken. Other improvements along the corridor could, in principle, be funded by developer contributions. So looking at the matter as best we can, and where possible by looking at how the Newhills Expansion Area would have compared with other sites and other corridors in the no-scheme world, we think the applicants’ site (acquired and retained land) would still probably have been allocated for development along with the Newhills Expansion Area.
257. Standing back and looking at whether this conclusion is reasonable, we note that it would avoid the risk of gross disparity between the amount of compensation payable and the market value of comparable adjoining property not being acquired - i.e. the retained OP29 land and the Rowett South OP30 site. This is consistent with Lord Nicholls’ third pointer in Waters for the application of the Pointe Gourde principle.
258. That said, we do not think it follows that the applicants’ enlarged site would have been granted planning permission as at the date of vesting. The evidence shows that ACC’s policies required the approval of a Newhills development framework and a Craibstone masterplan. These matters took until 2015 to be completed, and permission itself was not granted until 2017 and even then still with a restriction on numbers until relevant junction improvements were carried out. So a planning application made at the vesting date would probably have been regarded as premature.
259. As we have said, we think on balance the retained land would have been allocated in the LDP for housing whether or not the AWPR proceeded as a project. It follows that we do not need to consider applying the sort of reasoning which the Tribunal applied in Persimmon Homes. However the respondents made a discrete argument that, in line with Leicester City Council, there was a clear and direct relationship between the embargo of more than 200 units and the completion of the AWPR. We would review the evidence on this point.
260. In the with-scheme world the planning permission granted in 2017 for Craibstone for 700 houses was restricted, under condition 27, so that the proposed development would be limited to no more than 200 occupied houses until the opening of the Dyce/Craibstone section of the AWPR. We refer to the background chapter of this opinion dealing with the planning permission. Fairhurst’s March 2014 study had indicated that there would be no net detriment at the Craibstone access/Dyce Drive/ A96 roundabout on account of the prevention of existing “rat-running” traffic to allow for 200 units at Craibstone. There was also a reduction in trips due to the existing use being rendered redundant. It was anticipated that the completion of the AWPR would involve the full signal controlled crossroads as part of the AWPR infrastructure package which would then be able to accommodate all the Craibstone development traffic. The Fairhurst position, or at least the conclusions were accepted by Mr Gillespie for Transport Scotland, thus leading to the agreed planning condition being imposed. It was only the new AWPR related junction which was needed in advance to provide the necessary capacity. There was the additional s.75 agreement requiring contributions to other road improvements being carried out by ACC, but which were payable later according to specified timescales.
261. On the face of it, it would follow that the applicants’ development of the retained land in the with-scheme world did benefit from the construction of the new junction, and at the cost of the respondents. However in the light of our above findings the matter may not be as simple as that. In the no-scheme world, the type of junction which was actually built was, on Mr Gillespie’s evidence, unlikely to be acceptable. In the with-scheme world an at grade junction would only have been an interim solution, and for aught yet seen this might also have been the case in the no-scheme world. With the benefit of the LDP allocation for the acquired and retained land in the no-scheme world, the applicants may contend that they themselves would have been prepared to create a new improved access or at least contribute to the cost of one. Those costs, it might be argued, should not be double counted with the “benefit” of the existing junction. This complex matter was not fully focussed before us, and indeed was not formulated in the agreed questions, so we do not wish to embarrass the subsequent stage of the case by attempting legal analysis here. We reserve this matter.
262. Turning to the respondents’ procedural arguments we should point out that parties’ pleadings said relatively little about transport issues, apart from the respondents making the case that the new access junction constituted betterment. The issue of allocation in the LDP was a long agreed issue for the hearing. The detail of parties’ cases, as is often the case, came to be set out in the lodged reports. The reports were timetabled so there was sufficient time after lodging for rebuttal reports and witnesses statements. Fairhurst’s report of September 2019 (paragraphs 5.27 and 5.28) made the case that it was reasonable to conclude that similar mitigations to those in the with-scheme world could have been made in the no- scheme world, and that in the no-scheme world the developer contributions would be calculated in a way similar to the contribution required of the applicants of £2.75m in the with-scheme world. There was subsequent and further evidence in the form of the s.75 agreements to the effect that this was intended to cover some of the cost of a grade separated junction estimated at £11m. A rebuttal report to the Fairhurst 2019 report was produced with the relevant section being paragraph 3.2.21, and Mr Gillespie, led by the respondents, made certain relevant comments. It seems to us that the applicants’ evidence was fairly presented, and indeed was not objected to, alluding to the sort of approach by the relevant authorities as might have been anticipated in the no-scheme world at the date of vesting.
263. However we do not think the procedural matters really arise at this stage. We do not think it appropriate for us here to attempt detailed findings as to the nature, extent, cost or deliverability of junction and corridor mitigation measures as might have been properly anticipated at the date of vesting. This was not the focus of the questions before us. Moreover, the models appeared to have made assumptions about the deliverability of the Dyce Drive area development land and consequent traffic growth which may or may not have been realistic in the no-scheme world. These will be matters for the hypothetical purchaser (and his technical advisers) doing due diligence to address in the next phase of the case.
264. Question 1. We answer this question in the affirmative to the extent that in the no- scheme world the retained land would have been allocated for housing development in the LDP as at the date of vesting.
Question 2. We answer the question in the affirmative in that we find the acquired land would have been allocated in the LDP for 320 houses, in addition to the allocation on the retained land. We infer that the LDP allocation to periods would have remained similar for an enlarged site, i.e. the first 750 houses would have been allocated to the first period and the remainder would have been allocated to the second period.
Question 3. Superseded.
Question 4. Superseded.
Question 5. We answer the question in the affirmative. It is uncontroversial (subject possibly to small clarification of certain CPO plot boundaries) that at the date of vesting the acquired land was located within the greenbelt and was safeguarded for AWPR use under LDP policy T1. The retained land was allocated for housing over two phases under zoning OP29.
265. For avoidance of doubt this decision is intended to be a decision for the purposes of s.11 of the Tribunal and Inquiries Act 1992 and the Lands Tribunal for Scotland Rules 2003.
Appendix - Plan