Decision-making in the planning process continues to be a complex issue. The process has been regularly challenged in the Scottish Courts through statutory appeals and judicial review, and for many years in Scotland there was a very low success rate for parties bringing such proceedings. Courts implied that they did not want to be used as a further appeal mechanism. Many challenges had identified "interesting issues" with regards to decision-making, but the courts determined that they were within the discretion of the decision-maker.
However, recently there have been a number of court cases where the process has been subject to criticism and decisions have been quashed. In one case, a shortened form of reporting was found to lack sufficient reasoning to demonstrate compliance with the legal framework imposed by planning legislation. The courts have also criticised decision-makers for failing to reconcile conflicting evidence. Last year the Inner House of the Court of Session (the Scottish equivalent of the Court of Appeal), in the case of Aberdeenshire Council v The Scottish Ministers, had the opportunity to re-consider issues associated with the manner in which the statutory presumption in favour of the development plan should be applied. In this particular case the Reporter found that the development did not conform to the development plan. In the subsequent assessment of material considerations, the Reporter had used aspects of the development plan that favoured the development proposal as a justification for departing from the development plan.
In 1998 The City of Edinburgh Council v The Secretary of State for Scotland case was determined in the House of Lords. The judgements examined the recently introduced presumption in favour of the development plan and set out a staged approach, which might be appropriate to ensure the application of the statutory test. This included identifying the relevant provisions of the development plan; interpreting them by carefully looking at the aims and objectives; and finally considering whether or not the proposals accorded with the development plan. Next, the relevant material considerations should be reviewed to determine whether these warrant a departure from the development plan. This approach was then set forth in SPP1 as "the approach to deciding applications".
However the House of Lords judgement was not set out as a prescriptive set of rules that had to be followed. In reading the judgements one cannot claim that the two-stage test was the only means by which the statutory presumption could be applied. Again, the Aberdeenshire case does not provide a prescriptive approach, but the Court stressed the importance of not confusing an assessment against development plan and material considerations. This had been confused in this particular instance and as a consequence the decision was quashed.
The case demonstrates that the courts are still prepared to intervene where they consider that the relevant provisions of statute are not being appropriately applied. It is therefore important for decision-makers to be very clear about which legal framework is relevant, ensuring the applicable legal tests or presumptions are identified and implemented. The decision-making process can become very complicated in larger projects where the presumption of the development plan has to be considered along with other statutory tests such as those relating to conservation areas, listed buildings and certain aspects of nature conservation law.
Development management continues to be a complex process but the identification and application of the right legal framework is essential. It is much easier to defend decisions where the appropriate legal tests have been identified and applied. In most instances the application of the correct legal test is absolutely critical to the decision-making process and the Courts will not provide much latitude. In many other aspects of decision-making, the decision-maker will have discretion, and in that instance the Court will give the decision-maker much more support, provided that it is reasonable.
It is important that all those who are involved or take decisions have proper training and that the organisation in question have procedures in place to give appropriate advice. All too often reports to planning committees fail to properly set out important aspects of the legal framework. This leaves many planning decisions open to subsequent legal challenge.
Colin Innes is a partner specialising in planning law at leading UK law firm Shepherd and Wedderburn LLP.