The risk of legal challenge (judicial review) is often discussed. Recent Court of Session decisions on planning cases suggest the risk is less significant than might be thought.
Recent decisions
In 2022 only 4 planning cases were decided by the Court of Session. None were successful. All involved the same broad issue of whether the exercise of planning judgment involved a legal error.
Report to planning committee
Previous court decisions indicate that reports to planning committee "are not to be read with undue rigour". In Edinburgh Crematorium Ltd v East Lothian Council, it was held that neither of the two matters highlighted by the objector did in fact bear upon the decision that the Committee reached, so the report had not materially misled the Committee.
Scottish Ministers
Two challenges to decisions by the Scottish Ministers failed as ultimately being no more than criticism of the amount of weight placed on key issues. That is a matter of judgement, which is not a valid ground for legal challenge.
In Sinclair v Scottish Ministers, the Ministers had decided to grant planning permission for 2 wind farms in the Orkney Islands, contrary to the recommendation from their reporters (often a controversial situation). The Court rejected the allegation that there was an error of fact in the Ministers' reasoning.
NLEI Ltd v Scottish Ministers involved challenge of the refusal by the Ministers to grant section 36 consent for the North Lowther wind farm, which followed the reporter's recommendation. The Court agreed with the decision of the Lord Ordinary that errors in the reporter's report made no difference to the recommendation or decision.
Enforcement
In Gibb v Scottish Ministers, the Court rejected the challenge as seeking to re-open matters concerning the merits of the case. In light of the photographic evidence, his site visit and other information, the reporter was entitled to reject the appellant's contentions on the use of the containers. The reporter did not require to pose further questions to the appellant. The reporter considered the appellant's photographs and other materials and, as he was entitled to do, rejected either their provenance or relevance or both.
Comment
It is clear from these cases, and the two refused so far this year, that it is very difficult to persuade the Court that there is a legal flaw in a planning decision. Experience in previous years (2019, 2021) suggests it is unusual to have no successful challenges; however, it is possible that the Court has quashed a decision(s) without publishing a judgment.
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