Contested call

No resident of our fair land may feign ignorance of the application by Donald Trump for a world-class golf resort, etc near Aberdeen.

Holyrood’s Local Government Committee held an inquiry into First Minister Alex Salmond’s involvement in the Donald Trump golf resort application, subsequently describing it as “cavalier” and showing “exceptionally poor judgement”.

One of the inquiry’s main findings was that the decision to call in the application after the decision of Aberdeen Council, but before the issue of the decision letter, was competent, albeit unprecedented.

The situation which arose was that the planning committee of Aberdeenshire Council had in public session refused the application, but before its decision was reduced to writing, thus triggering the appeal period, John Swinney MSP called in the application under s 46 of the Town and Country Planning (Scotland) Act 1997. This section empowers the Scottish Ministers to give directions requiring any such applications are as mentioned in s 34(2) of the Act to be referred to them instead of being dealt with by planning authorities.

The crucial date

In dealing with the process of calling in and subsequent procedure, the inquiry concluded: “Applications can be called in by Scottish Ministers at any point during a planning authority’s consideration of that application, up to the date at which the authority formally records a decision on the grant or refusal of planning permission.” Article 22 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992, as amended, requires that the decision be made in writing, that it states the reasons for the authority’s decision and, where permission is refused or granted subsequent to conditions, includes a notice setting out the applicant’s right of appeal. It is suggested that this written intimation is required to give a commencement date to the appeal period.

The committee’s report goes to state: “The date on which planning permission is deemed to be granted or refused is not necessarily the date on which the local authority reaches its decision. Section 37(4) of the Act states that the effective date is the date on which the ‘…planning authority’s decision bears to have been signed on behalf of the authority.’ This is normally taken to mean the date on which the decision notice is sent to the applicant.”

The important words are of course “effective date’’. However it is suggested that the fact that the Trump application was verbally refused, and advertised as refused on the council website, is sufficient factual evidence of the determination of the application. Of course it cannot be said to have an “effective date”, because it is not reduced to writing, but the application is logically and rationally determined. You simply cannot ignore this white elephant in the room!

Good call?

The issue therefore which is open for debate, in the absence of precedent and a full and logical explanation in the inquiry’s report, is whether or not the Scottish Ministers can call in for determination an application which has been verbally determined at local level by Aberdeenshire Council.

This is an important question, given the position advanced by the inquiry. That inquiry was not a judicial inquiry and therefore its finding does not hold the force of law. In the absence of any explanation the point is worthy of further discussion. At the end of the day it would not bode well for the Scottish Government if they spend public funds on a planning inquiry which is based on an illegal premise. Whilst of course the Scottish Ministers can appoint a reporter and set a date for a public inquiry, that would not by itself cure an initially flawed call-in.

We need not for present purposes be concerned with the pros and cons of the application. The question arising here is whether or not the planning inquiry reporter can make recommendations which can thereafter be considered and given legal effect one way or the other by the Scottish Ministers. If on the one hand the unprecedented decision to call in the application in the face of a verbal decision is correct, there is no problem. However, if the position adopted by the ministers is legally incorrect, the Scottish Government will end up with egg all over its executive face.

In such a controversial situation the matter could surely be put beyond doubt by the Solicitor General on behalf of the Scottish Government giving chapter and verse as to why the call-in is perfectly acceptable. The UK Government recently did so with the Attorney General’s opinion concerning the Iraq War, albeit that was a far more important issue than the localised issue which we have here – notwithstanding its importance in the eyes of some members of the Scottish Government.

Local democracy may to some extent have been interfered with by the intervention of the Scottish Government, and concern has been voiced at the late intervention.

Natural silence

The inquiry used the phrase “unprecedented” in relation to the call-in. That is exactly what it is, since there are simply no cases of an application having been called in by either the Scottish Government or the UK Secretary of State after a decision, verbal or written, has been made.

There may be a lack of precedent, but what do textbooks on the subject and their learned authors say regarding call-in?

In Neil Collar’s book on Planning (2nd ed), he indicates at para 5.77 that the Scottish Ministers have power to direct that an application be referred to them for decision instead of being determined by the planning authority. “Determined” obviously means “decided”, and hence we go round the bonfire once more as to when something is actually determined. The government by its very nature should not be seen to split hairs, and its decision should be transparent and beyond reproach. The Trump application was decided. It was therefore determined. All that had to happen was written intimation to commence the appeal period.

Mr Collar also suggests that the call-in power is in general only applied to applications which raise issues of national significance. The Trident issue is of national significance; renewable energy is of national significance; but there might be some difficulty in categorising a golf resort as being of national significance. Nowhere in Mr Collar’s text is there any reference to calling-in after determination and the issuing of a verbal decision. It is not found in the text because it is simply beyond comprehension and therefore the situation was probably never envisaged.

One other leading book is Scottish Planning Law and Procedure by Rowan-Robinson, Young, Purdue and Farquharson-Black, which runs to some 800+ pages. The learned authors refer to the ability of the Scottish Ministers to call in under s 46, referred to above. The text on the subject of call-ins deals with the celebrated case of County Properties Ltd v The Scottish Ministers 2000 SLT 965, but nowhere is there to be found any discussion about a call-in after determination, written or verbal. Again, I suggest that the reason for this is that it is illogical, irrational and contrary to common sense to do so, and that is why the texts referred to are silent on the matter. For the Scottish Ministers to suggest that the call-in is perfectly legitimate in the circumstances defies comprehension and basically scrapes the barrel of reasonableness. On the face of it their decision appears to be a manipulation of the planning system and an abrogation of the government’s duty to uphold the rule of law.

Between the lines

The question remains, at what point are the Scottish Ministers excluded or prohibited from calling in? A call-in after a verbal decision has been made but before it is issued in writing supports the suggestion that the Scottish Ministers may lack the necessary impartiality which should be a feature of all planning applications. Applications should be dealt with on their merits, rather than by mob rule or popular demand.

The legal profession has been strangely silent, but there is no precedent either in case law or in any textbook which supports what the Scottish Ministers have done. What ministers have succeeded in doing is sending out a message to the effect that if they don’t like something, they are going to change it, and if necessary they will shelve the rule of law so that they can deal with it in any manner they see fit.

In conclusion therefore we appear to be faced with a rather sordid state of affairs, and an attempt to shoehorn the required decision into a planning inquiry procedure which is flawed and illegal. It is a lawyer’s duty to protect the public from the excesses of government, and at the same time ensure that the rule of law is upheld at all times. To allow such behaviour by the Scottish Ministers to go unchecked and without complaint, and to cloak the present circumstances with a bald “competent, albeit unprecedented”, is simply not good enough.