A disappointed appellant may consider a legal challenge to the appeal decision as the next stage in their struggle to obtain planning permission. It can be difficult for the appellant to look beyond the outcome of the court case, but an important question is what might happen if the court agrees that the appeal decision is flawed and must be quashed. The case will be remitted to the same decision-maker who refused the original appeal. That decision-maker, having corrected whatever legal flaw was confirmed by the court, may be free to again refuse the appeal. The appellant runs the risk of winning the battle but losing the war; having spent their time and money in producing a judgement that may be of interest to planning lawyers but that does not result in a planning permission.
This risk is illustrated in the recent outcome of Bancon Developments Limited’s application for planning permission for a housing development in Aberdeenshire.
Bancon Developments Limited v The Scottish Ministers
In May 2009 Bancon applied for full planning permission for a 27 house development near Banchory. In October 2009 the application was refused by Aberdeenshire Council and Bancon appealed to the Scottish Ministers. In January 2010 a Reporter refused the appeal following written submissions and a site visit.
Bancon lodged a statutory appeal with the Court of Session, and in August 2011 Lord Bannatyne upheld the legal challenge, quashing the Reporter’s decision and remitting the case to a new Reporter. However, on 17 February 2012 a different Reporter again dismissed the appeal and refused planning permission. Two years after the original decision the appeal has again been refused.
The Particular Issue
The case concerned the acceptability of a proposed pedestrian link into the housing development. Bancon's application proposed an informal link into the site and which the Council had found to be inadequate. Both parties made written submissions on whether this particular access, which it was accepted could not be formalised, was adequate. However, the appeal decision stated that the proposed link was "only the least beneficial of three potential informal links" and was contrary to relevant local plan policies.
The Court held that the Reporter had introduced a new issue into the appeal. The narrow issue between the parties had been the acceptability of the proposed access link; not the acceptability of this access when compared to two potential alternative links. Bancon could not reasonably have foreseen that this new issue would arise and had not been given any opportunity to make representations on the matter. Presumably the Reporter had engaged in some comparative exercise in the course of his site visit. The Court held that this was contrary to natural justice and to the requirements of the Town and Country Planning (Appeals) (Scotland) Regulations 2008 which provide that parties must be given an opportunity to make representations on new evidence the Reporter proposes to take into consideration. As Lord Bannatyne observed, Bancon had not been given a "fair crack of the whip" and the appeal decision must be quashed.
The new appeal decision upheld the refusal. The new decision takes account of further submissions by the parties on the acceptability of access links, particularly in light of two further planning permissions that had been granted since the original appeal. However, the Reporter found that continuing difficulties with access arrangements and the proposed layout required refusal of planning permission.
The General Issue
Whether to pursue a legal challenge is never an easy decision. Considerations will include assessment of what, if any, legal flaws can be identified, the potential prejudice arising from these flaws, the likelihood of a success, and the financial cost and time involved. Each of these matters involves an assessment of risk. But the disappointed appellant must also look beyond the court case and assess whether even a successful result will achieve their ultimate objective. In considering a legal challenge it should be borne in mind:
(i)
| that the Court is concerned only with the lawfulness of the decision and decision-making process. It is not concerned with the planning merits of the case and will not substitute its own decision for that of the original decision-maker. |
(ii)
| that the ultimate success of the legal challenge requires two decisions to be made. First, the statutory appeal or judicial review must quash the original decision. Secondly, the re-determined appeal must grant planning permission |
(iii)
| that success with one decision need not lead to success in the other. Are there substantial planning reasons justifying the refusal of planning permission which will remain notwithstanding a successful legal challenge on a particular legal point? Or might the subject-matter of the legal challenge encourage a different decision, for example through identifying a substantial misinterpretation of relevant planning policy by the decision-maker? Was the decision so finely balanced that a new Reporter might grant permission? Do material considerations that have arisen since the original decision make the grant of planning permission more or less likely? |
(iv)
| that sometimes there may be a quicker and cheaper way to address the refusal. For example, and subject to the provisions of section 39 of the Town and Country Planning (Scotland) Act 1997, the applicant may consider revising the development proposals and re-applying to the local planning authority. |
Of course there are many reasons why a party might wish to challenge a planning decision. Different considerations may apply where the challenge is by an objector or commercial rival and is directed at the grant of planning permission. But the Bancon case illustrates the risk of winning a victory in Court only to be denied planning permission.
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