There have been a number of judicial developments in 2020/2021 which have the potential to significantly impact planning practice in Scotland. Last month at our Case Law Update webinar, we highlighted the seminal Scottish cases from the last year, and considered some of the most influential cases from England and Wales. A recording of the webinar can now be viewed on our website.
The first case we looked at was Hillside Parks Ltd v Snowdonia National Park Authority - which involved the tricky topic of overlapping planning permissions, and how the option to implement a prior permission can be lost.
We then considered Lambeth London Borough Council v Secretary of State for Housing, Communities and Local Government. In this case, the Court discussed the imposition of conditions on s42/s73 consents.
City of Edinburgh Council v Scottish Ministers also considered s42/s73 applications, but the main point of interest was the Court's refusal to accept the Council and Scottish Ministers' motion to allow the appeal. Instead the Court required the appeal to go ahead - and refused it. The case is a useful reminder that planning decisions are a matter of public law, of importance to the wider public, and not just the parties.
We then turned to MacIntyre v Scottish Ministers, in which the Court considered the status of Planning Circulars, and the regard to be had where they are inconsistent with legislation, concluding that, while Circulars can be material considerations, “…a Government Circular cannot supersede statutory provisions passed by the legislature, nor can it restrict, qualify or extend statutory provisions.”
Ogilvie Homes v Scottish Ministers is an interesting case relating to the interpretation of planning policy, and most importantly the principle of consistency in decision-making by planning decision-makers. Having had three different applications for a planning development refused by the local authority and by Reporters, in each case on different grounds, the Court acknowledged that the lack of consistency frustrated the developer's reasonable hopes of obtaining planning permission.
In Gladman Developments v Scottish Ministers, the Court considered the interpretation of 'Scottish Planning Policy', and, in particular, the 'presumption in favour of development that contributes to sustainable development'. The decision prompted proposals from Scottish Ministers to change the provisions of SPP. Those amendments came into force in December 2020, but are themselves currently under challenge.
We then looked at the case of Mactaggart & Mickel Homes Limited & Others v Inverclyde Council. An interesting case, challenging the Council's adoption of its Local Development Plan on the basis of flaws in the Examination Report, the Court cautioned against the use of 'safety valve' policies to address housing land supply issues, and ultimately quashed the 'Housing' Chapter of the LDP.
We then turned to a decision of the Information Commissioner, who concluded that E.ON UK was a 'public authority' for the purposes of the Environmental Information regime, and therefore was obliged to respond to requests for information. The decision may have wide-reaching implications for developers performing functions in our privatised economy which may at one time have been the reserve of the state.
Finally, we considered the case of Finney v Welsh Ministers. The case related to a s73 application for non-compliance with a planning condition restricting the tip-height of wind turbines, and concluded that variations could not be permitted which created a fundamental inconsistency between the description of development and the planning conditions. The case is giving rise to some real problems due to its conflict with the accepted approach following by many local authorities around the country.