Planning & Environment

The Court of Session has recently issued a decision in relation to a statutory appeal made against the decision of a Reporter. The decision (available here) makes a number of interesting points about the extent to which quasi-judicial decision-makers can consider grounds which are not raised by the parties, as well as about reasons more generally.

Background

Aberdeenshire Council served an enforcement notice and stop notice on the landowner of Haddo Quarry, Aberdeenshire. The Council took action due to alleged processing of materials or minerals within the quarry, outwith the scope of ‘permitted development’, and that there was therefore a breach of planning control. The landowner and a partner contractor, PTM Plant Limited, appealed to the Reporter against the enforcement notice, maintaining that no breach of planning control had taken place.

The Reporter found against the appellants and in favour of the Council – primarily on factual grounds. The planning consultant who had represented the appellants (not the parties themselves) appealed the Reporter’s decision to the Court of Session in his own name.

Court of Session

Mr Taylor appealed under a number of grounds. The two most interesting were that the Reporter had:

  1. failed to identify and comment upon “the principal important controversial issue”, and that the decision had therefore left the appellant in “substantial doubt as to the reporter’s findings on fact and conclusions on the main issue”. This issue was in relation to the processing of material extracted upon the land in question. However, the appellant conceded that he had not, in fact, raised that issue with the Reporter but had given her the facts.
  2. not taken into account the applicability of various classes under the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (including in relation to land held or occupied together with agricultural and/or forestry land). Again this was not a matter that had been raised by the before the Reporter, but the appellant’s position was that even if it had not the Reporter was still required to consider it.

The Court, however, did not accept these arguments (or the others made by the appellant).

The Lord President delivered the Court’s decision. In it, he emphasised that while a reporter might have regard to “considerations which are obviously relevant but have not been expressly mentioned by the parties”, in general a reporter had to decide an appeal within the framework of the written grounds advanced by the parties. Failure to do so may open the reporter’s decision to being quashed. If the reporter had identified further legal issues or matters of fact, then further procedure would be required to give each party a “fair crack of the whip” and comment upon those additional issuesotherwise proceedings would have been conducted in a procedurally unfair manner. Ultimately, it was for the parties to put matters to the Reporter (or, indeed, the court) – it was not for the Reporter to go and seek out those matters.

As the additional grounds had not been raised before the Reporter, the Reporter could not have been expected to deal with them and could not be criticised for not doing so.

The Lord President also found that appellant was not at liberty to raise new matters in proceedings before the Court. An appeal to the Court could (generally speaking) only be made on matters of fact or law which had already been raised before the Reporter. Again, the Lord President emphasised that this was to permit each party a ‘fair crack of the whip’ and to ensure parties were not being asked to deal with new arguments which should have been raised at an earlier stage in the process.

Finally, the Court addressed itself to whether the Reporter had articulated the reasoning behind her decision sufficiently. It considered she had and emphasised that provided that the decision does not leave the informed reader in any “real and substantial doubt as to what the reasons for it were and what were the material considerations taken into account”, it would be unlikely that any criticism was made of its brevity. The decision in this case was not one to which any substantive criticism about reasoning could be attached.

This decision serves as a reminder that all relevant matters (whether of law or of fact) should, in a judicial/quasi-judicial process, be raised at an early a stage as possible. Failure to do so may mean that those arguments are not admitted at a later stage, even where they are relevant.

Douglas Waddell

Senior Solicitor at Brodies LLP
Douglas is a senior solicitor in Brodies Government, Regulation and Competition team. He has experience advising on a wide range of public law and commercial issues such as the powers and duties of local government, statutory interpretation, planning transactions, freedom of information and social housing litigation.
Douglas Waddell

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