Good call?

The circumstances surrounding the Trump planning application, its consideration by the planning authority (Aberdeenshire Council) and the subsequent call-in by Scottish Ministers have caused considerable public interest. It is probably no exaggeration to say that this is the most controversial planning application to have been considered in Scotland in the last 30 years, even before one considers the arguments regarding the merits of the application itself.

The article by Peter Macari (Journal, June, 64) challenges the validity of the call-in decision, arguing in effect that because a “decision” had been made by the authority, ministers were not entitled to call the application in. That decision, as Mr Macari acknowledges, was a resolution passed by the committee which in effect had delegated powers to fulfil the role of the planning authority. A decision notice following on from that had not been issued at the time of the call-in.

I beg to differ and with respect to Mr Macari I do think there are other authorities and issues which are relevant to a proper consideration of matters.

I should make clear at the outset that the views I express are my own. I have been involved in assisting Aberdeenshire Council in relation to the Trump application, and appeared for them at the inquiry which recently concluded. Nothing I say in this article should be taken in any way to set out the views of the council either in relation to the call-in decision or indeed the merits of the application itself.

In his article Mr Macari correctly referred to s 46 of the Town and Country Planning (Scotland) Act 1997 and art 22 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992. In effect, as I understand his position, he argues that as a decision had been made, even though not formally communicated, ministers were no longer entitled to give a direction seeking to call in the application. I think that view is simplistic and ignores relevant authority as to what constitutes a “decision” for planning purposes.

Before I deal with that, I think it fair to suggest that notwithstanding the high profile and controversy which has surrounded the Trump application, there appears to be absolutely no reason why the applicable processes and procedures should be any different from those which apply to “run of the mill” decisions. I think it would be bad law to apply a set of rules and procedures to the Trump application simply because of its nature.

The English decisions

As Mr Macari correctly points out, the obligation on the planning authority in terms of the 1992 Order is to communicate its decision on the application in writing with reasons. There is a clear line of case law (not referred to by him) which suggests that what constitutes a decision is not the authority’s resolution but rather the notice of decision. This line of authority is referred to in some detail in Scottish Planning Law and Procedure, one of the textbooks Mr Macari cites. In para 11.46 the learned authors observe:

“Despite doubts by some commentators, case law appears to have established that it is the notice of the authority’s decision rather than the resolution of the authority which constitutes the grant or refusal of permission”.

The paragraph refers to a number of (English) cases which support that proposition. Woolf J (as he then was) in R v West Oxfordshire District Council [1986] JPL founds on a dictum of Lord Denning that “The grant is not made when the County Council resolve to give permission. It is only when the Clerk on their authority issues the permission to the applicant” (Slough Estates v Slough Borough Council [1969] 2 Ch 315).

There appears to be no reason in principle why the position should be different north of the border.

Mr Macari suggests that the decision by Scottish Ministers to call in the application once the planning authority had passed a resolution, but before the consequence of that resolution had been communicated, was unprecedented. I agree with that and our views are borne out by the report from the Parliament which Mr Macari refers to. While unprecedented, given the case law just referred to I do not think it was unlawful.

It is fair to say that none of the cases cited in the section from Scottish Planning Law and Procedure referred to above relate to circumstances in any way similar to the Trump case; rather they are concerned with fairly uncontentious applications.

Practical view

It does seem to me that there is a degree of logic in the position adopted by the courts to date. It is only once a decision has formally been communicated that the applicant is clear about the decision, and more importantly the reason for it, with a view to considering whether they might wish to challenge that decision. Furthermore there may be significant delays between a resolution to grant planning permission and the decision notice being issued.

For example, it is fairly common practice for planning authorities to resolve to grant planning permission subject to certain matters being dealt with, typically a s 75 agreement. There may be significant delays between the date of the resolution and the s 75 agreement being concluded and registered. Over the intervening period circumstances may change. It seems to me appropriate that the authority should have the power to review its decision in light of those changed circumstances. If its resolution was in effect the final word (whenever it was communicated), that possibility would no longer appear to exist.

The date of a planning permission may also be significant for purposes such as the application of relevant time limits. Council resolutions need to be approved and may be varied. Reference to a decision notice provides certainty.

Contrary authority

Some support for the proposition that the planning authority’s resolution in effect constitutes the decision, whether communicated or not (Mr Macari’s position), may be drawn from the decision of Lady Clark in a judicial review petition, Simpson v Aberdeenshire Council [2006] CSOH 49; 2006 GWD 18-384. The petitioner unsuccessfully sought to challenge the grant of planning permission for a small wind energy development. A resolution had been passed by the relevant committee of the council in June 2004, delegating authority to grant planning permission to the Head of Planning & Building Control. The grant was subject to the negotiation of a s 75 agreement. The actual decision notice was dated 22 July 2005 (following registration of the s 75 agreement). Mr Simpson’s application for judicial review was initiated 12 weeks or so after the date of the decision notice.

The respondents argued that the case should be dismissed on the basis inter alia of delay. While the petition failed on the merits, Lady Clark (in comments which were probably obiter) made clear that she did not accept an argument for the petitioner that the decision (resolution) of June 2004 was not challengeable by judicial review. While this part of her decision is not particularly detailed, it seems to me that implicit in her comment must have been a view that this decision by the planning committee had some effect and was challengeable even though the formal decision notice was not issued for a considerable time thereafter.

The case concerned an application for judicial review and it might be argued that for that purpose the resolution is critical. None of the cases referred to above which justify the proposition that it is the decision notice rather than the resolution which is critical, were apparently cited to Lady Clark. Her views were approved by Lord Abernethy in the Inner House (2007 SC 366), though the other judges do not deal with the issue. Again however there is no detailed citation of the authorities referred to above.

In my view therefore Mr Macari is mistaken to the extent that he argues that Scottish Ministers were not entitled to call in the application. It does seem to me that there is good and clear judicial authority (which is understandable and in my view correct) that it is the decision notice which is critical rather than the resolution to grant planning permission.

Open to review

Even if that is the position, that does not necessarily mean of course that the Scottish Ministers’ decision is beyond challenge. In my view the decision to call in an application is not one which is specifically susceptible to challenge in terms of the 1997 Act. It is however a decision open to judicial review. Any aggrieved party therefore who could show title and interest could have sought to challenge the call-in decision. That challenge could have been because the decision was illegal (though for the reasons outlined above I do not think it was), or was unreasonable (in a judicial review sense).

It is notoriously difficult, I accept, to succeed in any application for judicial review in relation to planning matters. A good example can be seen in a decision of the late Lord Macfadyen, SHBA Ltd v Scottish Ministers, 13 December 2001. In effect SHBA sought to challenge a decision by ministers not to have an examination in public into the Glasgow & Clyde Valley Structure Plan 2000. Lord Macfadyen had little difficulty in reaching the conclusion that the decision was not open to challenge, given the significant onus which lay on the petitioner in such applications. That case strikes me as a relevant example of the difficulties, albeit what was challenged was a decision not to act rather than a decision to act.

In conclusion therefore, my own view is that Scottish Ministers were entitled to issue a direction calling in the application at the time they did, and that decision was consistent with judicial views that it is not the resolution of the relevant planning authority which is relevant but rather the notice of that decision. For the reasons outlined above, however, if that view is correct, that does not necessarily mean that the actions taken by Scottish Ministers were beyond challenge.

In his article Mr Macari makes some comments about why ministers may have acted the way they did. In effect the question may be whether they acted reasonably, though as the inquiry has taken place that question for all practical purposes is probably academic. No doubt the views on such an issue may well be coloured by the views one holds in relation to the application itself – an entirely separate issue.

Murray Shaw is a partner in Biggart Baillie LLP