Judicial Review and Planning - 2019

Seven planning judicial reviews were decided by the Court of Session in 2019, which is slightly lower than average (our 2018 Report discusses trends for the previous 15 years).

Successful challenges

Three legal challenges were successful, which is unusually high. All three were brought by developers. After the original decision was quashed by the Court, the cases had to be redetermined:

• Persimmon succeeded in having the original refusal converted into a grant of permission, which is unusual
• Graham's the Family Dairy were refused, again
• Gladman await a fresh decision from the Scottish Ministers

Legal issues

The 7 cases involved a variety of issues:

• Role of Reporter - in an appeal, the onus is on the parties to raise all the issues, and the Reporter is not under a duty to investigate whether there are other issues (Taylor v SM)
• Change of circumstances - account has to be taken of any change in circumstances between the date of the Reporter's report and the decision (Graham's The Family Dairy v SM)
• Sequential test - the issue is not whether the development could be changed to be made suitable for an alternative site (No Kingsford Stadium v Aberdeen City Council)
• Up to date view - the reporter was wrong to conclude the local development plan was the most up to date view of the council on the site, rather than the site planning brief (Persimmon v SM)
• Housing land supply - failure to identify, and justify, the preferred methodology for assessing housing supply (Gladman v SM)
• Local review body - the Regulations give discretion whether to hold a site visit (Ahmad, Appellants)
• Setting of listed building - not necessarily a requirement for the planning officer to visit the listed building (Liddell v Argyll & Bute Council)

Who can challenge

The Court confirmed that "person aggrieved" can include the planning consultant involved in the project (Taylor v SM). Maybe 2020 will be the year of the planning consultant litigator....!