Angus councillors will be asked today to stage a £100,000 gamble on defending a string of controversial planning decisions in the south of the county.
The Courier has learned a closed-doors report going before this afternoon’s meeting of the full council will deliver to elected members the “on balance” recommendation to proceed with the Court of Session defence of planning cases relating to Strathmartine Hospital, land on Victoria Street, Monifieth, and a greenfield site at Pitskelly Farm.
Last December, a special meeting of the council considered four south Angus applications approving the three which are now the focus of a judicial review request which, if contested, could delay a final decision on the projects until towards the end of 2015, or beyond.
The trio of approved plans involve 224 new homes for the derelict Strathmartine Hospital site on the edge of Dundee, Taylor Wimpey’s 350 to 400-house plan for The Grange in Monifieth and the 250-house and business park scheme at Pitskelly, Carnoustie.
Last month, an application for judicial review was made by joint petitioners Angus Estates (Carnoustie) LLP, Angus Estates Ltd and Hermiston Securities Ltd.
Confidential documents seen by The Courier reveal legal advice given to the council carries an air of confidence about winning the challenge to the Strathmartine and Monifieth approvals.
Legal counsel has described the Carnoustie situation as “more finely balanced”, bringing a warning that if the court decision falls against Angus Council it could leave it facing a six-figure bill.
Developer Angus Estates previously signalled its intention to call for a judicial review of what it described as the “truly bewildering” decision to approve the Pitskelly plan.
Along with Muir Homes, the developer has consent for a business park at Carlogie on the opposite side of Carnoustie but was angered by the removal of an adjacent housing site allocation from the local plan just days ahead of the special planning meeting.
The judicial review application was submitted to the Court of Session in early February and sources have now confirmed the content of Angus Council head of legal and democratic services Sheona Hunter’s recommendation to today’s full council in Forfar.
“As with any legal process, there can be no certainty on the outcome,” her report says.
“Counsel’s advice on the Strathmartine site and the Monifieth site is that although there remains some risk … the council’s case here is strong and our prospects for successfully defending these aspects are good.
“Counsel has advised that the challenge to the Strathmartine site and the Monifieth site can be dealt with as the parties raising the petition made no objection to those two planning applications.
“The position on the Pitskelly site is more finely balanced and carries more risk for the council in being able to successfully defend the decision taken. However, the advice from counsel is that there is a stateable case and a reasonable chance of defending the action.
“On this basis and, on balance, the recommendation from officers is for members to agree that the council take all action necessary to defend the judicial review of the decisions taken in respect of the three applications.”
The legal chief will tell councillors it is “extremely difficult” to estimate the chances of success and the costs incurred.
“Generally speaking, costs follow success and if the council were to succeed in its arguments it would seek recovery of all of the court costs from the other side,” she said.
Mrs Hunter said if the council loses, it will have to foot the petitioner’s bill as well as its own.
“Given the complexity of the planning arguments and the fact it may take up to three days to make these arguments in court, a reasonable estimate of the petitioner’s costs would be up to £60,000.
“Angus Council’s own counsel could be in the region of £40,000.”
“It is recommended on balance therefore that officers are authorised to continue defending the judicial review.”
A date for the judicial review has already been set aside for May 21 but if councillors decide to proceed with the defence it is likely that may be discharged in favour of having two or three consecutive days which the evidence may cover and the indication is that could be in September or October.