In the case of Taylor v The Scottish Ministers  CSIH 2, the Court of Session has expanded the class of people who may bring procedural challenges against planning decisions to include agents. While reforms to introduce third party rights of appeal against the substance of planning decisions have now been removed from the emerging Planning (Scotland) Bill, the Courts continue to empower third parties to challenge the way planning decisions are made on the basis of existing law.
The Town and Country Planning (Scotland) Act 1997 enables applicants for planning permission to lodge appeals in certain circumstances. Typically, this happens when an application is refused consent, when consent is granted but subject to onerous planning conditions or when the planning authority misses deadlines for reaching a decision. Planning appeals are considered either by a Local Review Body or by the Scottish Ministers through the Department for Planning and Environmental Appeals, depending on the nature and scale of the applications concerned. These appeals are the last chance a disappointed applicant has to challenge the planning merits of a decision, i.e. what the planning authority decided. However, it is possible to raise a legal challenge on procedural grounds, i.e. how the planning authority made its decision. Such a procedural challenge is made in the hope that the authority will be forced to take its decision again - that following the correct procedure the second time around will lead the authority to reach a different, more favourable, conclusion.
While only the person who submitted the application can lodge a planning appeal, any person can raise a procedural challenge in the Courts if they can show they have legal “standing” entitling them to do so. Procedural challenges of planning decisions are primarily made in the Courts under powers provided by Section 239 of the 1997 Act (which shares characteristics with, but is distinct from, the common law judicial review process). Under Section 239, a party will have standing if he can show he is a “person aggrieved”. The Courts have historically applied broad interpretations to this wording and have considered persons aggrieved to include, for example, active objectors to a planning application and landowners with property interests in the affected development site.
In Taylor, the Court endorsed this approach to interpretation, holding that an agent had standing to challenge a planning enforcement notice decision. Brian Taylor was appointed as land agent for both the proprietor of Haddo Quarry and the separate contractor engaged to carry out works there. In addition to acting as agent, his work included giving advice on the planning aspects of proposed works. Works took place at the quarry and were subject to an enforcement notice served by the planning authority on the basis they did not comply with planning law. Taylor appealed to the DPEA against the enforcement notice on behalf of his clients but was unsuccessful. Taylor then sought to lodge a procedural challenge against the DPEA’s appeal decision in the Courts.
The Scottish Ministers attempted to block Taylor from bringing the case on the basis that he was not a “person aggrieved” for the purposes of Section 239. The Court dismissed the Scottish Ministers’ argument and allowed Taylor to bring the case, stating: “As an agent involved in the planning procedures, he may well have a financial interest in the outcome of the appeal. As someone involved actively in planning processes, he cannot be considered a mere busybody; he is rather a person with a proper interest in ensuring that the rules of planning law are properly applied. Furthermore his consultancy work gives him a clear interest in ensuring that the rules of planning law are properly defined. All of these are matters that may be raised in the present case.”
This case underlines the judiciary’s willingness to give generous interpretations to statutory planning provisions in order to uphold the principles of public law.
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The matter in this publication is based on our current understanding of the law. The information provides only an overview of the law in force at the date hereof and has been produced for general information purposes only. Professional advice should always be sought before taking any action in reliance of the information. Accordingly, Davidson Chalmers LLP does not take any responsibility for losses incurred by any person through acting or failing to act on the basis of anything contained in this publication.