In consequence of flaws in the consultation process, the Court of Session has reduced the Amended Scottish Planning Policy (SPP) issued by the Scottish Ministers on 18 December 2020, and the associated PAN 1/2020 – Graham's The Family Diary [2021] CSOH 74.
Although the case is about housing land supply, the legal challenge succeeded on a narrow procedural ground.
Law on consultation
The catch-22 for a public body performing consultation is that, unless there is specification as to the matters to be consulted on, that body has to determine how to carry it out, including the manner and extent of the consultation, subject only to review by the court if there is "clear unfairness".
Previous court decisions provide general principles to be taken into account.
Flawed consultation
The Amended SPP was issued by the Ministers after consideration of responses to the consultation document they issued in July 2020.
The unfairness identified by the Court lay in the impact assessment issued by the Ministers in association with the consultation document. It stated there would be no impact from the proposed changes. As the Court said, a reasonable reader would take that assertion and rely on it. That reader might have decided not to respond at all to the consultation or may have given a response that was largely or at least partly predicated on accepting that assurance.
The flaw arose from the failure to make clear to the reader what the Ministers were comparing in reaching that conclusion.
Gladman 2
The problem was how the Ministers applied the court decision in the Gladman 2 case.
In that case the Court set out the correct interpretation of the SPP provisions on the guiding principles to sustainability and the operation of the tilted balance.
The July 2020 consultation document mentioned the Gladman 2 decision as one of the reasons for proposing the amendments – "raises a number of issues about the current wording of the policy that we now believe require clarification."
The judge stated that the assertion of no impact was apparently based on a comparison between the proposed amended policy and how it was understood that reporters had approached matters pre-Gladman 2.
However, the consultation did not say that was the comparison and also failed to state that the impact on future decisions which would otherwise have followed Gladman 2 was not considered.
The judge held that it was incumbent on the Ministers, when making the comparison and concluding on impact at the time of the consultation to make clear to the reader what it was comparing in reaching that conclusion. As that was not done, the reasonable reader did not know what was being compared.
Overall the consultation paper mis-represented the nature of the proposed changes. The judge noted the consultation paper described the changes as clarification, or technical and procedural; in contrast, the judge described them as substantive and potentially far-reaching.
The judge was perhaps influenced by an internal Scottish Government memorandum which was released as part of the court process. That memorandum stated that the Gladman 2 decision was "at odds with our view of the meaning and application of several aspects of the SPP", and "we also disagree with the technical approach of calculating the 5 year land supply, and have concerns [about] that the application of the 'residual approach' …".
Irrationality by Scottish Ministers
The Petitioners challenged various other aspects of the decision by the Ministers:
- Misconstruing of the court's opinion in Gladman 2
- Errors in considering changes to calculation of 5 year effective housing land supply
- Material flaws in the Finalised Amendments Impact Assessments
- Fairer Scotland Duty Assessment
On these aspects, the judge stated that, while criticisms on points of detail were legitimately made, the rigorous test for irrationality was not satisfied.
Comment
This decision is another example of how, for the law, "It ain't what you do, it's the way that you do it". It wasn't the consultation itself that was the problem, it was how the consultation paper was framed.
It also shows how it's not just about the prejudice to the party who brought the legal challenge – the legal test here was about the reasonable reader.
Although the Ministers noted there was a good level and range of responses to the consultation, the judge clearly considered consultees might have responded differently if the nature of the proposed changes had been presented properly.
The Petitioners might be disappointed not to have won their arguments on the housing land supply and other policy/ evidence issues, rather than on the narrow procedural point. However, they succeeded in getting the Amended SPP and PAN quashed. The debate on housing land supply policy approaches will presumably now be dealt with in the draft NPF4 and subsequent consultation.
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