Judge warns against "excessive use of preliminary objections" to appeals
Public bodies should not employ "excessive use of preliminary objections", on the basis of standing or other factors, to appeals by private individuals in cases that may have an important bearing on public law, a Court of Session judge has stated.
In a decision given last September but only published this month, Lord Drummond Young, sitting in the Inner House, ruled that Bryan Taylor, who traded as Grampian Soil Surveys, had an interest to appeal an enforcement notice served on his clients John Ross, the proprietor of a quarry, and PTM Plant Ltd, a contractor in relation to works at the quarry.
Mr Taylor gave advice about the planning aspects of proposed works involving the extraction of minerals from the quarry, and had corresponded with the local authority in relation to the works prior to service of the notice.
An appeal to a reporter was dismissed and Mr Taylor appealed to the Court of Session, based among other points on the reporter's failure to identify the principal controversial issue in the appeal and her decision being in conflict with the relevant legislation. The Scottish ministers objected to the competency of the appeal as Mr Taylor had acted as agent of Mr Ross and PTM Plant in the appeal to the reporter and did not participate for his personal interest, and did not qualify as a "person aggrieved" as was required in order to challenge the decision.
Refusing the note of objection to the appeal, Lord Drummond Young said Mr Taylor had a "sufficiently arguable case" that he was a "person aggrieved". The Supreme Court decision of Walton (2013) suggested that that expression should be given a wide meaning. There was no need for any direct pecuniary interest to be an "aggrieved person" for the purpose of challenging a planning decision. "It is enough to have a bona fide interest in the outcome of the decision, whether through indirect effects... or through an active interest in the environment, for example by taking part in local environmental organisations. Furthermore, Walton emphasises the importance of the rule of law in public law decisions... government must in a civilised society be conducted in accordance with the law, and a major function of public law remedies is to achieve that result. Procedural niceties should not stand in the way of due observance of the rule of law, and enforcing the rule of law is a vital function of the courts."
Mr Taylor had been involved in the preceding planning procedures, and "his status as an agent does tend to demonstrate that he had a pecuniary interest in the outcome of the planning processes. That would give him an interest to sue in the traditional private law sense of that expression. In addition, he submitted that his planning consultancy work was dependent on his being able to express reasonably accurate opinions on the application of the law to particular cases. That depended on the proper application of the rules of planning law, which gave him a specific professional interest to ensure that planning procedures were conducted in accordance with the law.
"In my opinion the foregoing factors give the appellant a clear interest to present this appeal, at least for the purposes of the note of objection lodged by Scottish ministers."
The judge added in conclusion: "I should observe that it has become commonplace for public bodies, whether the Scottish Government or local authorities, to raise preliminary objections at an early stage to appeals to the Court of Session by private individuals on the basis of standing or other factors. I do not doubt that in some cases such a course is entirely justified. Nevertheless, it is important that excessive use of preliminary objections should not be used to prevent the court from hearing substantive argument in cases that may have an important bearing on questions of public law, questions relating both to what the law is and to how it should be applied in a particular case. I would reiterate the renewed emphasis on the importance of the rule of law in public law decisions, and the fundamental principle that all forms of government, by any public body, must be conducted in accordance with the law. For that reason I would caution against the excessive use of preliminary objections to cut down appellate litigation."