![20/04/2015
2
Initial Objection (2)
• Points to consider in formulating objection
– Does application comply with LDP, SPP, NPF3 etc –
• s. 25 determination in accordance with LDP unless material
considerations indicate otherwise.
– Is EIA required or adequate?
• Are there flaws or inaccuracies in EIA
– What legal requirements arise & have they been complied
with; eg
• Habitats Directive “Appropriate Assessment”
• CAR Regulations
• Management of Extractive Waste (Scotland) Regulations 2010
– What evidence or Reports should be presented with
objection.
25 April 2015 Agnew of Lochnaw 4
Initial Objection (3)
• Failure to raise an issue may preclude raising it
later in an appeal or judicial review
– Sustainable Shetland v Scottish Ministers [2015] UKSC
4
• “[34]Their difficulty is that their suggestions are
unsupported speculation, and were not raised by anyone in
the representations on this proposal — whether by the
expert bodies or anyone else. … If SNH (or indeed the
appellants) had thought it necessary or appropriate to call
for designation of further areas or other special measures
under art.4(2), they could have raised that as an issue, and
the developers would have had an opportunity to address
it.”
25 April 2015 Agnew of Lochnaw 5
Methods of Appeal (1)
• Application refused
– Developer can appeal to Scottish Ministers ‐ s. 47
– TCP (Appeals) (Scotland) Regs 2013
• Consideration by DPEA Reporter
– Determination without further procedure
– Further procedure required [Pre‐exam hearing]
» Written submissions
» Hearing Session
» Inquiry Session
» Inspection of land
– Appeal from Reporter’s decision to Court of Session
• Error of Law or Procedural unfairness
25 April 2015 Agnew of Lochnaw 6](https://image.slidesharecdn.com/kiohbextrbadzsfu6u1n-signature-40707bc8f8045d2f29bc178f5870af59b43ebeec8fb2558ad9f484163128f4ca-poli-150511190303-lva1-app6891/85/Challenging-a-planning-application-2-320.jpg)
![20/04/2015
3
Method of Appeal (2)
• Application granted
– Objector’s only option is judicial review
• Breaches planning democracy!!!
• Judicial review
– Cannot review the merits of the decision
• Court cannot investigate the facts
– Can only Challenge on grounds of
• Error of Law
• Procedural unfairness
– Bring promptly [3 month rule]
• mora, taciturnity & acquiescence
25 April 2015 Agnew of Lochnaw 7
Judicial Review Challenges ‐ Statistics
• Brodies Research ‐ http://tinyurl.com/onojt8f
– 64 challenges 2003 to 2012 [40,000 applications]
– Only 17 planning decision have been quashed;
– About 50% brought by objectors;
– 27% success rate [England 45%/55%]
• Cases brought by objectors have very low rate of
success – 7%.
– Challenges by applicant/planning authority/commercial
objector success 33%/30%.
25 April 2015 Agnew of Lochnaw 8
Judicial Review (1)
• Wordie v S of S for Scotland 1984 SLT 345 at
347/8
– A decision of the Secretary of State is ultra vires if:
• improperly exercised the discretion confided to him.
• based upon a material error of law
• taken into account irrelevant considerations or
• has failed to take account of relevant material
• No proper basis in fact
• decision, or any condition imposed is so unreasonable that
no reasonable Secretary of State could have reached or
imposed it.
25 April 2015 Agnew of Lochnaw 9](https://image.slidesharecdn.com/kiohbextrbadzsfu6u1n-signature-40707bc8f8045d2f29bc178f5870af59b43ebeec8fb2558ad9f484163128f4ca-poli-150511190303-lva1-app6891/85/Challenging-a-planning-application-3-320.jpg)
![20/04/2015
4
Judicial review (2)
• Error of law
– Got the law wrong
– Took into account irrelevant material
– Failed to take into account relevant material
– Legitimate expectation
– Human rights
– Improper purpose
– No proper factual basis for decision
– Decision unreasonable
25 April 2015 Agnew of Lochnaw 10
Judicial Review (3)
• Planning judgment
– Tesco Stores v S of S for the Environment [1995] 1
WLR at p 780:
• "If there is one principle of planning law more firmly
settled than any other, it is that matters of planning
judgment are within the exclusive province of the local
planning authority or the Secretary of State.“
– Weight to be given to any material consideration is a matter
for decision maker – challenged only as Wednesbury
unreasonable
– Court decides what is a material consideration
25 April 2015 Agnew of Lochnaw 11
Judicial Review (4)
• “there is room for reasonable people to hold differing
opinions as to which is to be preferred.”
• Wednesbury unreasonable
– “so unreasonable that no reasonable authority could ever have
come to it”
• Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223 & Wordie.
– “unreasonableness verging on an absurdity” –
• R v Hillingdon LBC ex p Puhlhofer [1986] 1 AC 484
– “a decision which is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had
applied his mind to the question to be decided could have
arrived at it”
• CSU v Minister for the Civil Service [1985] AC 374
25 April 2015 Agnew of Lochnaw 12](https://image.slidesharecdn.com/kiohbextrbadzsfu6u1n-signature-40707bc8f8045d2f29bc178f5870af59b43ebeec8fb2558ad9f484163128f4ca-poli-150511190303-lva1-app6891/85/Challenging-a-planning-application-4-320.jpg)
![20/04/2015
5
Judicial Review (5)
• Procedural impropriety
– Fair hearing (Art 6)
• Bias
– Porter v Magill [2002] 2 AC 357 “The question is whether the fair‐minded
and informed observer, having considered the facts, would conclude that
there was a real possibility that the tribunal was biased.”
• Equality of opportunity to be heard
– Failure to comply with statutory requirements
• Eg service and advertisement or other statutory procedure
– Breach of Natural Justice
• Reliance on facts known to decision maker
• Seeing one party alone
• Refusing to listen to a party
– Inadequate Statement of Reasons
25 April 2015 Agnew of Lochnaw 13
Judicial Review (6)
• Statement of Reasons
– “Secretary of State must give proper and adequate
reasons for his decision which deal with the
substantial questions in issue in an intelligible way.
The decision must, in short, leave the informed reader
and the court in no real and substantial doubt as to
what the reasons for it were and what were the
material considerations which were taken into
account in reaching it.”
• Wordie Property v Secretary of State for Scotland 1984 SLT
345
• South Buckinghamshire District Council v Porter (No. 2)
[2004] 1 WLR 1953
25 April 2015 Agnew of Lochnaw 14
Judicial Review (7)
• Orders available to Court
– Interim orders – risk of damages
– Reduce the decision of the decision maker
• Court’s judgement will give guidance on law etc
– Remit to decision maker to remake decision
• Danger is decision maker might remake the same
decision but get the procedure etc correct so decision is
then unchallengeable.
– Refuse an order because on remit decision maker
bound or very likely to make same decision.
25 April 2015 Agnew of Lochnaw 15](https://image.slidesharecdn.com/kiohbextrbadzsfu6u1n-signature-40707bc8f8045d2f29bc178f5870af59b43ebeec8fb2558ad9f484163128f4ca-poli-150511190303-lva1-app6891/85/Challenging-a-planning-application-5-320.jpg)
![20/04/2015
7
Protective Expenses Order (1)
• Rule 58A
– Applies to
• EIA Directive 2011/92/EU
• PPC Directive 2008/1/EC
– Available to (i) Individual, (ii) NGO
– 58A.2(4)
• “where the court is satisfied that the proceedings are
prohibitively expensive for the applicant; it must make a
protective expenses order.”
• £5000 liability; £30,000 recoverable from decision maker –
subject to review.
25 April 2015 Agnew of Lochnaw 19
Protective Expenses Order (2)
• “prohibitively expensive”
– Narrowly construed in Scotland
• Friends of Loch Etive [2014] CSOH 116
• John Muir Trust [2014] CSOH 17
– Appears to be more widely construed in England
– Quaere
• Is Rule 58A and narrow approach to “prohibitively
expensive” compatible with Aarhus Convention?
25 April 2015 Agnew of Lochnaw 20
Appeal procedure
• Preparation for Appeal
– Read ‐ TCP (Appeals) (Scotland) Regs 2013
• Make sure DPEA have you as a party
– What points are you taking in appeal
• Factual; legal etc
– Evidence required
• Witnesses [Precognitions]
• Productions [Liaise re producing joint bundle]
– Hearing or Inquiry Statement
25 April 2015 Agnew of Lochnaw 21](https://image.slidesharecdn.com/kiohbextrbadzsfu6u1n-signature-40707bc8f8045d2f29bc178f5870af59b43ebeec8fb2558ad9f484163128f4ca-poli-150511190303-lva1-app6891/85/Challenging-a-planning-application-7-320.jpg)
Challenging a planning application
- 1. 20/04/2015 1 Challenging a Planning Application By: Sir Crispin Agnew of Lochnaw Bt QC Westwater Advocates Planning policy & LDP • Importance of Planning Policy & Local Development Plan (LDP); TCP (Sc) Act 1997: • S. 25 Status of development plan – (1) Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination is, unless material considerations indicate otherwise— (a) to be made in accordance with that plan, and (b) if the development in question is a national development, to be made in accordance with any statement under section 3A(5) NB: Therefore very important to get involved with objecting to NPF, SPP and LDP when they are being made. 25 April 2015 Agnew of Lochnaw 2 Initial Objection (1) • Importance of initial objection – Best chance of getting planning application refused • give it best shot • Importance of making all your points or adopting other objections & presenting decision maker with your evidence – S. 38A “Pre‐determination hearings” • National developments; major development contrary to LDP – If application refused, developer has to appeal and then you get a consideration by a Reporter • An objector can then present full evidence – Legal advice taken at this stage is often worth “twice” that taken at later stage. 25 April 2015 Agnew of Lochnaw 3
- 2. 20/04/2015 2 Initial Objection (2) • Points to consider in formulating objection – Does application comply with LDP, SPP, NPF3 etc – • s. 25 determination in accordance with LDP unless material considerations indicate otherwise. – Is EIA required or adequate? • Are there flaws or inaccuracies in EIA – What legal requirements arise & have they been complied with; eg • Habitats Directive “Appropriate Assessment” • CAR Regulations • Management of Extractive Waste (Scotland) Regulations 2010 – What evidence or Reports should be presented with objection. 25 April 2015 Agnew of Lochnaw 4 Initial Objection (3) • Failure to raise an issue may preclude raising it later in an appeal or judicial review – Sustainable Shetland v Scottish Ministers [2015] UKSC 4 • “[34]Their difficulty is that their suggestions are unsupported speculation, and were not raised by anyone in the representations on this proposal — whether by the expert bodies or anyone else. … If SNH (or indeed the appellants) had thought it necessary or appropriate to call for designation of further areas or other special measures under art.4(2), they could have raised that as an issue, and the developers would have had an opportunity to address it.” 25 April 2015 Agnew of Lochnaw 5 Methods of Appeal (1) • Application refused – Developer can appeal to Scottish Ministers ‐ s. 47 – TCP (Appeals) (Scotland) Regs 2013 • Consideration by DPEA Reporter – Determination without further procedure – Further procedure required [Pre‐exam hearing] » Written submissions » Hearing Session » Inquiry Session » Inspection of land – Appeal from Reporter’s decision to Court of Session • Error of Law or Procedural unfairness 25 April 2015 Agnew of Lochnaw 6
- 3. 20/04/2015 3 Method of Appeal (2) • Application granted – Objector’s only option is judicial review • Breaches planning democracy!!! • Judicial review – Cannot review the merits of the decision • Court cannot investigate the facts – Can only Challenge on grounds of • Error of Law • Procedural unfairness – Bring promptly [3 month rule] • mora, taciturnity & acquiescence 25 April 2015 Agnew of Lochnaw 7 Judicial Review Challenges ‐ Statistics • Brodies Research ‐ http://tinyurl.com/onojt8f – 64 challenges 2003 to 2012 [40,000 applications] – Only 17 planning decision have been quashed; – About 50% brought by objectors; – 27% success rate [England 45%/55%] • Cases brought by objectors have very low rate of success – 7%. – Challenges by applicant/planning authority/commercial objector success 33%/30%. 25 April 2015 Agnew of Lochnaw 8 Judicial Review (1) • Wordie v S of S for Scotland 1984 SLT 345 at 347/8 – A decision of the Secretary of State is ultra vires if: • improperly exercised the discretion confided to him. • based upon a material error of law • taken into account irrelevant considerations or • has failed to take account of relevant material • No proper basis in fact • decision, or any condition imposed is so unreasonable that no reasonable Secretary of State could have reached or imposed it. 25 April 2015 Agnew of Lochnaw 9
- 4. 20/04/2015 4 Judicial review (2) • Error of law – Got the law wrong – Took into account irrelevant material – Failed to take into account relevant material – Legitimate expectation – Human rights – Improper purpose – No proper factual basis for decision – Decision unreasonable 25 April 2015 Agnew of Lochnaw 10 Judicial Review (3) • Planning judgment – Tesco Stores v S of S for the Environment [1995] 1 WLR at p 780: • "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State.“ – Weight to be given to any material consideration is a matter for decision maker – challenged only as Wednesbury unreasonable – Court decides what is a material consideration 25 April 2015 Agnew of Lochnaw 11 Judicial Review (4) • “there is room for reasonable people to hold differing opinions as to which is to be preferred.” • Wednesbury unreasonable – “so unreasonable that no reasonable authority could ever have come to it” • Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 & Wordie. – “unreasonableness verging on an absurdity” – • R v Hillingdon LBC ex p Puhlhofer [1986] 1 AC 484 – “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” • CSU v Minister for the Civil Service [1985] AC 374 25 April 2015 Agnew of Lochnaw 12
- 5. 20/04/2015 5 Judicial Review (5) • Procedural impropriety – Fair hearing (Art 6) • Bias – Porter v Magill [2002] 2 AC 357 “The question is whether the fair‐minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.” • Equality of opportunity to be heard – Failure to comply with statutory requirements • Eg service and advertisement or other statutory procedure – Breach of Natural Justice • Reliance on facts known to decision maker • Seeing one party alone • Refusing to listen to a party – Inadequate Statement of Reasons 25 April 2015 Agnew of Lochnaw 13 Judicial Review (6) • Statement of Reasons – “Secretary of State must give proper and adequate reasons for his decision which deal with the substantial questions in issue in an intelligible way. The decision must, in short, leave the informed reader and the court in no real and substantial doubt as to what the reasons for it were and what were the material considerations which were taken into account in reaching it.” • Wordie Property v Secretary of State for Scotland 1984 SLT 345 • South Buckinghamshire District Council v Porter (No. 2) [2004] 1 WLR 1953 25 April 2015 Agnew of Lochnaw 14 Judicial Review (7) • Orders available to Court – Interim orders – risk of damages – Reduce the decision of the decision maker • Court’s judgement will give guidance on law etc – Remit to decision maker to remake decision • Danger is decision maker might remake the same decision but get the procedure etc correct so decision is then unchallengeable. – Refuse an order because on remit decision maker bound or very likely to make same decision. 25 April 2015 Agnew of Lochnaw 15
- 6. 20/04/2015 6 CJEU Approach? (1) • EIA Directive 2011/92/EU (Amd ‐2014/53/EU) – 11(1) Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned … have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions • Quaere – Does “planning judgement” approach in Judicial Review comply with requirement to be able to challenge substantive legality of decision? 25 April 2015 Agnew of Lochnaw 16 EU Approach ? (2) • C‐258/11 Sweetman v An Bord Pleanala – So far as concerns the assessment carried out under Article 6(3) of the Habitats Directive, it should be pointed out that it cannot have lacunae and must contain complete, precise and definitive findings and conclusions capable of removing all reasonable scientific doubt as to the effects of the works proposed on the protected site concerned … It is for the national court to establish whether the assessment of the implications for the site meets these requirements. 25 April 2015 Agnew of Lochnaw 17 EU Approach ? (3) • C‐2/07 Abraham v l’aéroport de Liège‐Bierset – Whether EIA required • “39 It is for the national court to establish that the competent authorities correctly assessed whether the works at issue in the main proceedings were to be subject to an environmental impact assessment.” • Quaere – Is Sweetman and Abraham guidance from CJEU that “planning judgement” approach of UK courts is in breach of EU law? 25 April 2015 Agnew of Lochnaw 18
- 7. 20/04/2015 7 Protective Expenses Order (1) • Rule 58A – Applies to • EIA Directive 2011/92/EU • PPC Directive 2008/1/EC – Available to (i) Individual, (ii) NGO – 58A.2(4) • “where the court is satisfied that the proceedings are prohibitively expensive for the applicant; it must make a protective expenses order.” • £5000 liability; £30,000 recoverable from decision maker – subject to review. 25 April 2015 Agnew of Lochnaw 19 Protective Expenses Order (2) • “prohibitively expensive” – Narrowly construed in Scotland • Friends of Loch Etive [2014] CSOH 116 • John Muir Trust [2014] CSOH 17 – Appears to be more widely construed in England – Quaere • Is Rule 58A and narrow approach to “prohibitively expensive” compatible with Aarhus Convention? 25 April 2015 Agnew of Lochnaw 20 Appeal procedure • Preparation for Appeal – Read ‐ TCP (Appeals) (Scotland) Regs 2013 • Make sure DPEA have you as a party – What points are you taking in appeal • Factual; legal etc – Evidence required • Witnesses [Precognitions] • Productions [Liaise re producing joint bundle] – Hearing or Inquiry Statement 25 April 2015 Agnew of Lochnaw 21
- 8. 20/04/2015 8 CONTACTS Clerk Sheila Westwater sheila.westwater@westwateradvocates.com 0131 260 5700 Deputy Clerks Christina Ballantyne christina.ballantyne@westwateradvocates.com 0131 260 5641 Jane Morrison jane.morrison@westwateradvocates.com 0131 260 5828 www.westwateradvocates.com 25 April 2015 Agnew of Lochnaw 22