Proposals for procedural reform of the Scottish Courts system have been underway for some time, and a number of these were brought into effect on 22 September 2015.
These included the introduction of new rules on the judicial review procedure in Scotland, with key changes which will have a direct impact on the risks associated with legal challenges.
The most significant change is the introduction of a time limit for bringing a judicial review challenge. A challenge must now be brought within three months from the date on which the grounds for bringing the action arose.
For planning permissions, this means that such challenges must be brought within three months of the planning authority’s decision to issue the permission. While this introduces a welcome element of certainty to the planning process in Scotland, the new rules will allow the Court to make an exception to this time limit in certain cases, and extend the period for raising a judicial review if it would be “equitable” to do so, having regard to the circumstances of that particular case.
A real prospect of success
A new “permission” stage of the judicial review process is introduced, as a preliminary to consideration of the application. At this initial stage, the Court will either grant or refuse permission to proceed with the judicial review. To make that decision, the Court will consider two things: first, whether the applicant has “sufficient interest” in the subject matter of the application; and second, whether the application for judicial review has a “real prospect of success”. If permission to proceed is refused, or only granted on certain conditions, the applicant can request a review of that decision at an oral hearing, but must do so within 7 days of the decision.
The new rules do not apply to challenges to planning appeal decisions taken either by the Scottish Ministers or a local review body, which are already subject to a strict six week time limit.
Certainty and uncertainty
The introduction of the three month timescale will give some welcome comfort to developers, for whom the previous absence of a time limit resulted in a state of uncertainty as to when a grant of planning permission could be regarded as free from the risk of a judicial review challenge. Although the Court has the discretionary power to allow a challenge to be raised after expiry of the new three month period, it remains to be seen how strict the Court will be in applying the time limit. Of course, the equitability test must be met, but this will always be coloured by the specific circumstances of the planning permission, and the nature of the particular challenge. Good reason for the delay in making an application would have to be shown, or the Court would have to be satisfied that refusal of an application made after expiry of the three month period would result in an injustice.
The exact standard that will be applied by the Court in addressing the “real prospect of success” test will depend not on whether the applicant has merely a potentially arguable case, but on whether the arguments have a realistic expectation of a successful outcome, in the context of the nature and significance of the issue that is to be argued.
Despite current uncertainties around how the Court will apply the new rules, the introduction of a three month time limit is to be welcomed, and the "permission" provisions should help to eliminate the more vexatious applications that have, until now, taken up court time and delayed beneficial development.