Outer House case considering a petition brought by Sustainable Shetland for judicial review of the Scottish Minister’s decision to grant planning permission to Viking Energy Partnership for a 103 turbine wind farm development on a site of approximately 50 square miles on mainland Shetland.

When considering the relevant statutory provisions[1], it was discovered that Viking did not hold a licence to generate electricity. On a construction of the provisions, Lady Clark found that it was not open to the Ministers to grant consent for the building of the wind farm to persons who were not licence holders or exempt persons[2] in terms of the legislation.

Lady Clark also concluded that there was merit in Sustainable Shetland’s argument that there had been a failure on the part of the Ministers to take proper account of their obligations under the Wild Birds Directive 2009[3], finding that they had failed to properly engage with the directive in any meaningful way when reaching their conclusion.

However, Lady Clark rejected Sustainable Shetland’s arguments relating to the need for a public enquiry finding that, on reading the Ministers’ decision letter as a whole, the Ministers had considered that they had sufficient information to come to a conclusion without holding a public enquiry and Sustainable Shetland had failed to demonstrate that the Ministers were not entitled to reach that conclusion.

The full judgement is available from Scottish Courts here.

(NB: See appeal to Inner House  and further appeal to the Supreme Court here. See also related decision in relation to intervention by interested parties and Trump International v Scottish Ministers).

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Petition for Judicial Review in which Mr McGinty sought reduction of the National Planning Framework for Scotland 2 (NPF2) to the extent that it designates a new power station and transportation hub at Hunterston. Mr McGinty’s argument was that the Scottish Ministers had not complied with their obligations relating to notice and consultation with regard to the proposed development.

Outer House decision
In the Outer House Lord Glennie found that, although Mr McGinty (a bird watcher living 5 miles from the proposed development) had title to raise the action, he did not have “a real and legitimate interest to protect” or a “real and practical” interest to bring the proceedings. Lord Glennie also found that Ministers had not been shown to have failed to comply with their notice and consultation requirements.

Inner house decision
The Inner House has refused an appeal. It was unable to conclude that the Minister’s statutory requirements on publicity had not been fulfilled (finding that advertising in the Edinburgh Gazette was sufficient to comply with the requirement that the plans be advertised in a newspaper circulating in the area). It also found that the consultation period had not been obviously inadequate and noted, when considering the adequacy of the consultation documents, that as NPF2 was at a more general/higher level of qualifying plans, there was less need for a comprehensive environmental report. (On the basis a specific environmental impact assessment would still be required before the project actually proceeded).

However, in coming to its conclusions, the court did find that Mr McGinty had sufficient standing to raise the action holding that, the fact that the matter was one of public interest and Mr McGinty shared his interest with many other Hunterston residents, did not prevent him relying on that interest as an individual in order to complain.

“We have yet to consider the specifics of the petitioner’s challenge but applying the approach now desiderated by the Supreme Court, it may not be permissible to dismiss it as that of a mere busybody. He lives in an area which he has good reason to believe may be affected by a specific sort of development which will have an adverse impact on a specific coastal environment, about which he avers he is knowledgeable and in which he pursues a specific leisure activity which is of importance to him, as it is of importance to many others. He wished to make representations on the very matter which would have been relevant to the environmental assessment which the respondents were obliged, by both domestic and European law, to carry out. Accordingly, at least at this stage of the examination of the question, it appears that it can be said that the petitioner has standing to bring these proceedings.”

The full judgement is available here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Issue
Outer House case in which property developers sought to appeal a decision of a reporter appointed by the Scottish Ministers. The reporter had refused an appeal by the developer of Perth & Kinross Council’s decision to reject a planning application for a mixed use development (initially including 1800 and latterly 1500 houses) adjacent to Huntingtower and Ruthvenfield in Perthshire.

The developers’ challenge was based on grounds of irrationality in various forms but also raised the issue of the significance to be attached to an emerging local plan as a material consideration when making planning decisions.

Background
The Perth area local plan (adopted in March 1996) included the developers’ site as a long-term development site. However, the Council refused permission for the development on 4 January 2012 on the basis that it did not comply fully with the development plan. On 10 January a decision was made to amend a new and emerging development plan (not yet adopted) so as to remove the developer’s site from the proposed housing allocation. As a result, the emerging local plan, which was published in January 2012, did not include the developers’ site within the housing allocation.

On 12 September 2012 the Scottish Minister’s reporter refused the developer’s appeal of the Council’s refusal of planning permission. The reporter found that the emerging local development plan was a material consideration and the conflict between it and the developer’s application was sufficient to justify refusing the permission (and thus departing from the adopted existing local plan).  The developer argued (amongst other things) that the reporter had been wrong to do so and also that the decision to remove the developers’ site from the housing allocation in the emerging plan (on 10 January 2013) was simply a consequence of the Council’s rejection of the developers’ planning application (on 4 January).

Decision
Lord Glennie refused the appeal. The reporter had been entitled to consider whether the emerging local development plan was a material consideration. The developer’s site was of a scale and importance such as to make it of major significance in the development of West/North West Perth. That being so, the fact of the emergence of the local development plan was a material consideration. In such circumstances, while recognising the statutory priority given to the plan-led planning process (i.e. the existing development plan), it was legitimate, when assessing the weight to be afforded to that consideration, to take into account the benefits to the public interest of the wider planning framework of the statutory local development plan process. The reporter found these factors to be of sufficient weight to outweigh the provisions of the existing development plan and her decision had made it clear that she had approached the issue in that way.

Lord Glennie also noted that the reasons for removing the developers’ site from the emerging local development plan (other than the simple refusal of the developer’s application on 4 January) had been before the reporter and that her reference to them had made it clear she had taken account of them.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer house case concerning a planning application made by Archid in October 2009 to convert an office on Thomson Street in Dundee into a residential building.

Background
Archid received a notice dated 1 December 2009 advising that Dundee City Council had granted planning permission for their development on 26 November 2009. The notice also contained the reasons for the decision and, although the notice purported to grant the permission, the reasons appeared to be justifications for a refusal of permission. Archid then applied for and were granted (on 18 March 2010) a building warrant in connection with the works.

However, on 11 May 2011, Archid received a second notice (also dated 1 December 2009) from the Council advising that planning permission for the works had in fact been refused on 26 November 2009 and that an incorrect decision notice had been issued[1]. The covering letter also stated that the Council’s Enforcement Officer had visited the site, asked that all works cease and that the site be restored to its original condition.

Arguments
Archid sought judicial review. They argued that, having issued their original decision notice, the Council could not thereafter just ignore it and issue a new decision letter refusing the permission. Until the planning permission was revoked or modified in accordance with the statutory procedure[2] (which provides protection for the applicant in respect of work already carried out and provides a separate review process[3]) or reduced by an order of the court, the permission stood.

The Council argued that the person within the planning department who sent out the first notice had had no authority to do so. His authority extended only to giving notice of decisions taken to grant or refuse planning permission. The decision taken by the Council was to refuse permission. In those circumstances he had no authority to give notice that permission had been granted. It followed, they contended, that the first notice was simply a nullity and could be ignored.

Decision
Lord Glennie took the view that the presumption expressed by the maxim omnia praesumuntur rite esse acta (“all things are presumed to have been done duly and in the usual manner”) was applicable with the consequence that the first notice was presumed to be validly made and to have legal effect unless and until reduced following a court process.

 “An interested member of the public should be able to rely upon a notice issued by a public authority as having been issued correctly and with the appropriate authority; that is all the more pertinent in the case of a document granting planning permission, since the grant of planning permission runs with the land, and may be relied on by persons who were not party to the original application or privy to any correspondence or telephone communications passing between the applicant and the authority.”

The validity of the second notice depended on the status of the first notice (at the time the second was issued). The first notice being valid, the Council could not[4] then correct it as the Council was functus (i.e. having discharged its duty, the Council could not then review its own decision.).  Also it could not simply ignore it and make another order, because then there would be two conflicting orders in respect of the one matter. Lord Glennie therefore concluded that the first notice was valid and that the second notice was ultra vires (i.e. outwith the Council’s powers) and had to be reduced.[5]

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering an appeal from the Outer House in which a residents group challenged decisions made by East Renfrewshire Council (1) to grant planning permission and (2) to confirm fulfilment of a planning condition relating to drainage, in respect of a proposed development at Ayr Road in Newton Mearns.

The residents group had applied for a protective costs order (which puts a cap on a party’s liability for the expenses of the court action.) Protective costs orders can be granted where the issues raised are of general public importance and where the applicant has no private interest in the outcome of the case. However, in the Outer House, Lord Tyre refused the application on the basis that the issue was one of local community interest rather than general public importance.

The Inner House refused the appeal. After noting that the residents group could fairly be characterised as an association of local residents whose primary objective was the safeguarding of their respective private interests, the court came to the conclusion that the issue was not one of general public importance:

“What is challenged, in the sense of being sought to be reduced, is a planning permission for a relatively modest development. Any increased risk of flooding is of importance to all the individuals who fear that their properties may be affected. In a sense it is true to say… that flooding is a matter of public concern and that in the event of an incident of flooding public services are engaged. None of that makes what is in issue here a matter of general public importance. The interests involved are predominantly local and predominantly private. There may be applications for judicial review where the issues raised are at once local and yet of general public interest. This is not such an application.”

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House case in which the liquidators of Scottish Coal sought directions from the court in respect of several disused open cast mining sites owned by Scottish Coal.

The sites were subject to onerous statutory obligations aimed at controlling land use, protecting the environment, habitats and birds and ensuring public safety. The sites were also subject to obligations under planning legislation requiring restoration of the sites, the cost of which was estimated at £73m.

The liquidators sought directions as to whether they could abandon or disclaim:

1. the sites, thereby transferring ownership to the Crown; and
2. the statutory licences/permits authorising Scottish Coal to carry out its industrial activities (and imposing the obligations on Scottish Coal).

The Scottish Environment Protection Agency (SEPA) and Scottish Natural Heritage (SNH) were represented in court and argued that it is not possible for liquidator to do so as, under Scots law:

a)    there is no power to abandon the ownership of land; and
b)    ownerless land is an impossibility.

No authority could be found supporting the idea that an owner could abandon land in Scotland. However, after considering Roman Dutch law[1] and the German Civil Code[2], Lord Hodge found[3] that it may be possible for an owner to abandon land[4] and circumstances may arise when, on a disclaimer by the Crown, land becomes ownerless.

But, whilst the liquidators generally have power to disclaim property, where the company’s use of the land is governed by statutory permits, his ability to disclaim would depend upon the terms of the statutory provisions and the permits.

In this case the decision depended on whether the court took a wide interpretation (as argued for by SEPA and SNH) or a narrow interpretation (as argued for by the liquidators) of the relevant legislation[5]. Lord Hodge came to the conclusion that the Scotland Act 1998[6] required him to take a narrow interpretation leading to the conclusion that the liquidators could disclaim the sites and release themselves from the obligations.

The full judgement is available from Scottish Courts here.

(NB: see Inner House decision here)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case in which the Cairngorms Campaign and others applied to the court for reduction of a decision by the Cairngorm National Park Authority to adopt the Cairngorm’s National Park Local Plan. In particular they complained about the adoption of development policies in the Local Plan which made provision for developments at Nethy Bridge (40 dwelling houses and business units),  Carrbridge (up to 117 dwelling houses), An Camas Mòr  (1,500 dwelling houses) and Kingussie (300 dwelling houses).

In the Outer House Lord Glennie rejected the campaigner’s arguments finding that, in adopting the Local Plan, the Park Authority had neither acted unlawfully or illegally (in the Wednesbury sense – i.e. it had not reached a decision that no reasonable person in that position properly informed of the facts could have reached) nor had it failed to give adequate reasons for its decision, the reasons given for the decision being clear. In coming to his decision, Lord Glennie also rejected a number of more specific arguments made by the campaigners.

The campaigners argued that Lord Glennie had erred in law by failing to appreciate what was necessary in terms of the  “appropriate assessment” required  under  the Conservation (Natural Habitats etc) Regulations 1994 (implementing Habitats Directive 92/43/EEC) when assessing the implications of the Local Plan on the Park’s conservation objectives. They contended that a far more detailed assessment should have been made at the point the Local Plan was approved.

This argument was rejected by the Inner House which agreed with the decision of Lord Glennie. Although referred to as an appeal, it was appropriate to consider the campaigners’ action on judicial review grounds. Taking that approach, the Park Authority’s appropriate assessment could not be said to be one which no reasonable authority would have produced in the circumstances. It was, therefore, open to the Authority to adopt a Local Plan which relied on that assessment.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case relating to the compulsory purchase of land required for the Borders Railway. At the centre of the case were certificates of appropriate alternative development issued to developers with an interest in the land (in terms of s25 of the Land Compensation (Scotland) Act 1963). Section 25 certificates specify the classes of development for which the land would be suitable if the compulsory purchase does not go ahead. In this case the certificates stated that planning permission would have been granted for various residential and business developments if the compulsory purchase did not go ahead. Network rail argued that the certificates should have stated that planning permission would only have been granted for the development for which the land was to be compulsorily acquired (i.e. the Borders Railway) which would have reduced the compensation payable to the developers and  appealed to the Scottish Ministers on that basis. However, when they failed to comply with the Ministers’ Reporters’ request for documentation (the certificates and applications) within the time limit, the Reporter concluded that Network Rail’s appeal was deemed to have been withdrawn. Network Rail then made a further appeal to the court.

On a construction of the Reporter’s correspondence with Network Rail, it was found that the documents had been requested and time limits imposed (there was argument to the effect that the Reporter had indefinitely suspended the time limits) in line with the legislation.

In terms of the relevant legislation (the Land Compensation (Scotland) Development Order 1975), the applicant required to “furnish” the reporter with the documents within the time limit. Network Rail contended that, although the documents had not been sent to the Reporter, they had been available on the planning authority’s website and should be treated as being “furnished” in terms of the legislation. However that contention was rejected by the court:

“The court is not satisfied that the placing of material on a website, without something more, is sufficient to amount to the “furnishing” of that material to another for the purposes of statutory interpretation. There may be circumstances in which such information may be furnished by, say, providing a hyperlink to a website, where it has been made available, or uploading the information to a particular website at the request of the intended recipient. Where a party does nothing, however, there is no act which might be construed as “furnishing” the information to anyone. The [Reporter] cannot be expected to seek out the information required … on the basis that it may or may not be in the public domain.”

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering an appeal by North Lanarkshire Council under s239 of the Town and Country Planning (Scotland) Act 1997.  It concerns a planning application by Shore Energy in respect of a waste management and renewable energy plant at Carnbroe near Coatbridge. The Council refused permission for the plant despite a recommendation by planning officials that the proposal be accepted. However, Shore Energy appealed to the Scottish Ministers against the refusal of planning permission. After an inquiry, reporters appointed by the Scottish Government granted planning permission subject to conditions. The Council then appealed to the court under s239.

The crux of the dispute was the relative weight given to local planning and environmental considerations, on the one hand, and national environmental objectives on the other. The Council’s reasons for rejecting the proposals indicate that priority had been given to local considerations whereas the reporters’ decision had treated the national need as a material consideration and regarded local considerations as subordinate to it.

Lord Stewart had refused the appeal in the Outer House and the Inner House refused a further appeal agreeing that the Council had failed to show that the reporters’ decision had been invalid. The court was not persuaded (1) that the reporters’ Decision Notice disclosed anything other than a correct understanding of the Scottish Government’s waste management policy (which had been amended  the day before the inquiry) and (2) that the reporters required to identify any geographical area other than Scotland (as a whole) as being relevant to their considerations.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Petition for judicial review of a decision by Highland Council to grant planning permission for a development of 64 houses at Resaurie near Inverness.

The petitioners (who lived nearby the proposed development) had two main arguments:

1. In making its decision, the Council should have had regard to the increased risk of ground water flooding to the petitioners’ property and other properties on the boundary of the site.
2. The Council should also have had regard to a change of planning policy (in the interval between the resolution to grant consent and the formal grant) which introduced a requirement to take a precautionary approach to flood risk.

The petition was refused by Lord Pentland in the Outer House and an appeal to the Inner House was also refused. The court found that the issue of groundwater had been before the Council when they took their decision to grant planning permission and it could not be argued that they failed to take account of it.  Issues of groundwater flooding had been considered and addressed by the professionals advising the developers, and had been fairly put before the Council. (The court also noted that the weight to be attached to a relevant consideration is a matter for the decision-maker, provided that he does not act unreasonably.)

With regard to the change of planning policy, although the Inner House disagreed (“with some hesitation”) with Lord Pentland’s finding that there had been no material change to the planning policy, it found that the amendments made had been slight and amounted to mere fine tuning. The court had also been told that the Council’s planning officer had considered the terms of the planning policy and reached the view that both the developer and the Council had in fact taken a precautionary approach in relation to the proposed development. The court did not consider that the planning officer could be said to have erred in reaching that conclusion.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.