UK: Planning Challenges - An Uphill Struggle

Last Updated: 12 October 2011
Article by Murray Shaw

The decision of Lord Brailsford in Marco McGinty v Scottish Ministers [2011] CSOH163 has caused considering press comment.  It will be interesting to see whether or not the case is appealed. 

Mr McGinty was the beneficiary of a protective costs order.  This was the second case to come before the Scottish Courts recently where the petitioner has the benefit of such an order but had been unsuccessful.  Clearly the fact that such as order is made is no guarantee of success.  The other case (Challenges & European Law) is under appeal to the Inner House of the Court of Session with a hearing due to take place in December 2011. 

In the McGinty case, Lord Brailsford was clearly troubled by the fact that preliminary pleas were not dealt with before a substantive hearing on the merits.  Preliminary pleas under Scots Law are essentially legal issues (capable of being dealt with in isolation) which may be determinative of a matter, thereby avoiding the need for a full hearing.  In this case the preliminary pleas were to the effect that Mr McGinty had no proper title or interest to bring the action and separately that the right to bring the action had been lost by delay (a plea more properly known under Scots Law as mora, taciturnity and acquiescence).  As will be seen below, Lord Brailsford upheld both of these pleas so not only did Mr McGinty lose on the merits, Lord Brailsford was of the view that the delay in bringing the action was a bar to the action succeeding and separately Mr McGinty had insufficient title and interest to bring the action. 

Counsel for both parties at the hearing before Lord Brailsford wanted there to be a full hearing on all aspects of the case rather than a hearing limited to these preliminary pleas.  The approach of Counsel appears to have been different however.  Counsel for Mr McGinty suggested that the arguments in relation to the preliminary pleas could only properly be seen in the context of the wider issues.  Counsel for the Scottish Government appeared to have accepted that certain issues in respect of the preliminary pleas could be dealt with in isolation but nonetheless felt it appropriate to go ahead with the full hearing. 

Lord Brailsford was clearly troubled by this with reference to unnecessary waste of expense and use of court time.  Expense of course is a particularly relevant consideration where the costs of Mr McGinty had been capped with a consequence that what the Scottish Government (as the successful party) can actually recover is limited.  It will be interesting to see whether this issue has more prominence going forward when a Scottish court is considering whether or not to make a protective costs order. 

The McGinty case was really a challenge to the National Planning Framework 2 (NPF2), a key planning document in Scotland.  In effect what Mr McGinty was challenging was the designation of Hunterston for a new power station and transmission hub as a national development.  National developments have particular significance in the planning hierarchy.  As they are in effect identified in NPF2 this means that the principle of the development is not up for debate in relation to any inquiry process.  It is also likely that national developments will be those which are in reality prioritised by the Scottish Government so far as resources and spending is concerned. 

Briefly, Hunterston did not feature in the draft NPF2 which was consulted on in the early part of 2008.  From a summary of the case Hunterston it appears emerged during the consultation process.  Mr McGinty's argument was that given that background there was a failure to properly consult and a failure to assess the project in an environmental context having regard to a European Union Directive which has been implemented in Scotland through the Environmental Assessment (Scotland) Act 2005.  It appeared to be common ground that the Act had correctly implemented the Directive. 

There was in fact a supplementary assessment for environmental purposes in respect of Hunterston which was apparently advertised in the Edinburgh Gazette – a legal "newspaper".

In effect Mr McGinty argued that due to the failure to properly consult and assess the Hunterston project, the designation of Hunterston in terms of NPF2 should be set aside or alternatively the whole of NPF2 should be set aside.  While Mr McGinty was unsuccessful it appears that if he had been successful probably the first of these would have been the correct approach to take – there appears to be little justification for setting aside the whole of such an important document simply because of a failure in relation to one aspect of it. 

While in effect the case could have been determined on the preliminary basis given Lord Brailsford's approach to these (see below), he did look at the substantial merits and ruled against Mr McGinty in relation to these.  Section 16 of the 2005 Act requires notice to be given of the preparation of an environmental report prepared for the purposes of that Act.  That notice is to be given "in at least one newspaper circulating the area to which the plan or programme [which is being assessed] relates".  Lord Brailsford took the view that advertisement in the Edinburgh Gazette satisfied that requirement.  Part of the case for Mr McGinty was that that publication is not readily available and not widely known.  The view that Lord Brailsford came to was that this was a recognised method in Scots Law of publishing formal and legal notices.

That may be correct but it is certainly not a means by which members of the public will normally become aware of programmes and plans of the sort that we are concerned with here.  It is fair to suggest the Edinburgh Gazette has a limited readership.  It is interesting to note that Section 16(4) requires publication in at least one newspaper (it appears there was only one newspaper advertisement here).  Sub-section 4 also suggests that the purpose of that is to "ensure that the contents of the notice are likely to come to the attention of the public – (a) affected or likely to be affected by; or (b) having an interest in the plan or programme".  It must be debatable as whether publication in the Edinburgh Gazette is likely to ensure that the contents of the notice come to the attention of the public as required.  While it is fair to say that Lord Brailsford's opinion was buttressed by reference to the fact that the supplementary assessment in relation to Hunterston appeared on relevant websites and equally Lord Brailsford dealt with the issue of more general publication in the local newspaper (he did not see this as necessary), there may yet be further discussion on this issue.  Certainly if a purposeful approach is taken (following the approach in the European Courts particularly in respect of environmental matters) advertisement in the Edinburgh Gazette is unlikely to achieve the purpose behind the legislation. 

As noted above Lord Brailsford also dealt with the issues of the preliminary matters already referred to. 

The first of these related to an issue which has caused considerable debate in Scots Law over the last 2 or 3 years, namely the issue of title and interest.  It has been considered, for example, in relation to the Trump development (see Forbes v Aberdeenshire Council [2010] COSH10Trump Golf Proposal) and equally in relation to the litigation concerning the legislation in relation to damages for asbestos related conditions (AXA General Insurance Limited v The Lord Advocate [2011] SLT439).  The AXA case has been appealed to the Supreme Court and the decision is awaited.

Lord Brailsford appears to have acknowledged that the Scottish judges have taken different approaches to title and interest recently albeit approaches that are possibly reconcilable.  He appears to have adopted the approach of Lord Emslie in the AXA case.  Lord Emslie suggested that any interest must be genuine and if the interest was remote, tenuous, academic or theoretical then that would not justify court action.  He accepted (as did Lord Brailsford) however that if the action related to a public law issue then title and interest should be approached on a different (more related) basis. 

It will be interesting to see whether the Supreme Court in the AXA case take a different and more generous view in relation to matters.  It may yet be the case that issues of title and interest in Scots Law will have to be revisited by the European Courts were there are issues of European Law (particularly for example in relation to environmental matters).  The European Courts (particularly in the context of matters within the ambit of the Aarhus Convention) are likely to take a very broad and purposeful approach to matters.

In the McGinty case Lord Brailsford held that Mr McGinty did not have title and interest having regard to the relevant facts including the extent to which he actively made use of the land which is likely to be developed if the Hunterston proposal goes forward.  He lives 5 miles away and accordingly to Lord Brailsford his use of the site was limited.  Again this approach is likely to be controversial. 

The second preliminary issue is whether there had been a delay in bringing the action.  It appears that there was a period of 7 weeks between Mr McGinty actually becoming aware of the Hunterston proposal and his action being brought before the court.  The real issue here was whether that was the relevant period or whether the relevant period was the period between the Hunterston proposal being published (to the extent it was) and the action being brought by Mr McGinty before the Scottish Courts.  Lord Brailsford took the view that where there has been compliance with the relevant legislation (as he held there was here), then the test was an objective one – in other words the test based upon the true factual position not when Mr McGinty became aware of the proposal.  The consequence of this was that there had been, in his view, undue delay in bringing matters forward (such as to preclude the action). 

It will be interesting to see whether this case is appealed though that raises further issues in respect of costs. 

This case does illustrate the difficulties that any petitioner has in bringing challenges in planning matters before the Scottish Courts.  The approach of the courts in relation to issues such as title and interest does appear to be a fairly restrictive one.  Should any case involving such issues in the Scottish Courts end up before the European Courts it will be very interesting to see whether the approach taken by the Scottish Courts is upheld.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.