A criticism that continues to be leveled at the planning system in Scotland, is that it does not give third parties the right to appeal the grant of a planning permission. During recent planning reforms there was much debate about third party rights of appeal against the approval of planning applications. Ultimately the Parliament decided that it was not appropriate. In the absence of such a right of appeal, the planning and judicial systems in Scotland offer only one remedy to an aggrieved third party: judicial review of the planning authority's decision.
A judicial review allows the Court of Session to exercise its supervisory jurisdiction, in this circumstance to ensure that the planning authority has acted fairly, reasonably, and within its powers. If the court decides that the planning authority has failed to act in this manner, they may quash the decision at issue in the judicial review.
However, not every third party has the right to challenge a planning permission. Only those who have title and interest are recognised by courts as legitimate challengers.
What is title and interest?
In general, title and interest is a test which must be satisfied by the petitioner (the person raising a judicial review) which establishes that they are entitled to raise a judicial review. If a petitioner fails to establish title and interest, it will naturally follow that their judicial review must fail. This can, understandably, cause a great deal of frustration amongst third party challengers.
In the circumstances where the planning authority has clearly taken an illegal decision, the court will be powerless to quash the decision if the petitioner fails to establish that he or she has title and interest to seek a judicial review.
In planning terms, the court has described title as being a legal relation which gives a person a right which the planning authority either infringes or denies. Title can be conferred in different ways depending upon the nature of the judicial review. In a judicial review into a planning matter, title would most commonly be conferred upon a third party in the event that they made representation to a planning application under section 38 of the Town and Country Planning (Scotland) Act 1997. Section 38 confers a right on a person to have their representation properly considered and it is this statutory provision that creates the legal relation.
If a third party fails to make any representation to the planning application, but subsequently raised a judicial review in relation to the planning authority's decision, the judicial review may fail on the basis that the requirements of title had not been met. The exception to this would be the circumstance in which a third party should have been notified of the planning application, but was not. This procedural failing would, in itself, be a ground for judicial review.
Furthermore, a third party only has title to seek a judicial review of a planning authority's decision on grounds that reflect the terms of their representation and cannot seek a judicial review on broader grounds. The lesson is clear for anyone prepared to challenge the grant of a planning permission all the way to court: ensure that any representation made to the planning authority at the application stage is comprehensive and covers all grounds which could be relied upon in any future judicial review.
The court has described interest as being satisfied if the petitioner has "sufficient interest". In planning terms sufficient interest is established by the applicant, the planning authority and any notifiable neighbours.
However, this is not an exhaustive list and other third parties may be able to establish sufficient interest, such as local community interest or heritage groups. It is important to note that where title can be established objectively by establishing if a legal relation exists, interest can be more subjective and, as such, can be a limiting factor on third parties seeking judicial review. The courts have noted that planning legislation does not intend to create interest which gives the public a general right "as policemen of the planning system" to ensure that the system is properly implemented.
Third parties with a commercial interest (commonly rival retailers) in a planning permission may seek judicial review of the planning authority's decision. The court has accepted that commercial interest may be sufficient to establish interest, although it will not confer title upon a third party.
How to prevent failing on title and interest
In a democratic society it may seem contrary to justice to deprive any person of the right to challenge the decision of a planning authority if that decision appears, on the face of it, to be unlawful. As many would-be petitioners discover, the cost of going to court acts as a sufficient filter to prevent the courts being crowded with those whose grounds of challenge are simply NIMBY considerations, without further limiting the rights of others to raise valid challenges.
However, to prevent failing on the grounds of title and interest it is essential for a third party opposed to a planning application to submit comprehensive representations to the planning authority. Advice should be sought to ensure that all possible grounds of challenge are covered. The courts have recently re-affirmed interest as a limiting factor on petitioners seeking judicial review and this will also be a paramount consideration for third parties seeking judicial review.
The future of title and interest
In his recent civil law reforms, Lord Gill proposes the abolition of title and interest, replacing it with a single test which will require the petitioner to demonstrate that they have a sufficient interest in the subject matter of the proceedings. Every judicial review will also be subject to the court granting leave to proceed. This will only be granted if the court is satisfied that the petition has a real prospect of success.
Interestingly, a change in relation to expenses has also been proposed. Where cases raise significant issues of public interest, Lord Gill recommends that the court has the power to make special orders to restrict the petitioner's liability for expenses regardless of success.
Taken together, these reforms may at once streamline the system and open up access to the courts by dispensing with title requirements and limiting the financial burden on petitioners.