KNOWLEDGE

When is the permission of the court required to challenge a planning decision?

MortonFraser_Douglas Milne
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Douglas Milne
Partner
PUBLISHED:
17 February 2021
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There are two procedures available to a party who seeks to challenge a planning decision in Scotland by way of an application to the Court.  Both routes involve an application to Scotland’s Supreme Court, the Court of Session in Edinburgh. 

A challenge to a decision of a local planning authority is taken by way of a petition for judicial review.

A challenge to a decision by the Scottish Ministers (for example, following an appeal to Ministers against a refusal by the local planning authority) is taken by way of an application for statutory review.

This broadly reflects the position in England, with Government planning decisions also being subject to a statutory review procedure.

However, in England, both procedures – judicial review and statutory review – require the High Court to have granted permission before the application can proceed.  The position is different in Scotland.

In Scotland, the procedural rules regarding judicial review were changed quite significantly in 2015. 

Since 2015, in addition to introducing a three-month time limit from the date of the decision within which the petition for judicial review must be lodged with the Court, a challenge can only proceed if the applicant [section 27B of the Court of Session Act 1988]:

“can demonstrate sufficient interest in the subject matter of the application”; and

“the challenge has a real prospect of success”.

Before 2015, permission was not required to proceed with a petition for judicial review.  Also, there was no strict time limit within which a petition had to be lodged with the Court.

Some key differences remain in planning challenges between Scotland and England.

Unlike in England, Scotland still has no equivalent permission requirement for an application for statutory review.

Further, the statutory provisions in England regarding permission to proceed with an application for judicial review are more detailed than in Scotland.

Section 31 of the (English) Senior Courts Act 1981 contains a provision which is not repeated in the Scottish legislation.  The 1981 Act provides that when considering whether to grant permission to make an application for judicial review, the High Court:

“may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and … must consider that question if the defendant asks it to do so”. 

and

“If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave”.

The 1981 Act allows the court to disregard this requirement to refuse to grant leave for reasons of exceptional public interest.  

In Scotland, while the Court of Session can refuse to grant relief despite grounds for judicial review having been established following a full hearing on the merits of the application, the Court of Session Act 1988 does not contain a statutory direction to refuse permission to proceed on this basis. 

However, this would not prevent the Scottish Court from refusing to grant permission on the basis that there is no real prospect of success of the Court being persuaded to grant relief for this reason.

Although the Scottish test in judicial review of there being “a real prospect of success” might be thought to be a higher bar than that in England of there being “an arguable case”, in practice the test in both jurisdictions appears to be one of whether a case is arguable in the sense that it gives rise to a realistic prospect of a successful review. 

The English Civil Procedure Rules provide a helpful commentary which could fairly be said to reflect practice in Scotland as well as in England:

“Permission will be given where the court is satisfied that the papers disclose that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with the parties and all the relevant evidence…  The purpose of the requirement for permission is to eliminate at an early stage claims which are hopeless, frivolous or vexatious and to ensure that a claim only proceeds to a substantive hearing if the court is satisfied that there is a case fit for further consideration.  The requirement that permission is required is designed to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending although misconceived”. [the White Book’s 2018 commentary, 54.4.2]

In practice, the requirement in Scotland to obtain permission has been a low threshold for challengers to meet.

This article formed part of our Litigation in Scotland Report 2021 - to view the complete report click here.

 

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