UK: Damages For Wrongful Planning Actions?

Last Updated: 5 February 2010
Article by Murray Shaw

Planning is a subject which can stir up considerable controversy and result in entrenched views which are diametrically opposed to each other. The Scottish Government believes that early engagement between parties may resolve issues but accepts that even that process will not resolve all differences. For example, in the Planning Advice Note entitled "Community Engagement" (PAN81) it expressly recognises this when it states "Better engagement cannot, however, guarantee that everyone gets the decisions or outcomes they desire... There will always be cases where differences cannot be resolved".

Certain types of development seem to cause particular controversy. Supermarket developments, as well as causing concern to neighbouring occupiers, often raise significant commercial issues. Developments which impact upon the landscape and designated areas understandably stir up considerable objections – the Trump application in Aberdeenshire is a good example of that where a considerable number of objections were made prior to the Inquiry being held and many objectors continue to this day to try and stop the development going ahead. Even more local developments can have an effect and result in trenchant objection. Many people only interface with the planning system when a neighbour proposes a development which impacts directly upon them – for example the extension which blocks out sunlight.

Under the planning system in Scotland there may in some instances be a requirement to consult with interested parties before a development proposal is formally the subject of a planning application given the pre-application consultation procedures which apply to national and major developments. Even however where there is no mandatory need to consult, good practice suggests that this is a worthwhile process.

The first formal point however at which objections can be made is after a planning application has been lodged. There are no criteria which require to be met by an objector in making an objection but if an objection does not relate to proper planning considerations it should not in reality be given any real weight. Sections 25 and 37 of the Town & Country Planning (Scotland) Act 1997 (as amended) require the authority to have regard to the provisions of the Development Plan and objections therefore which are predicated upon provisions in the Development Plan are likely to have the greatest relevance.

If planning permission is refused the applicant has a right of appeal. If planning permission is granted however objectors have no right of appeal. This position is somewhat controversial and there was considerable pressure upon the Scottish Government to include third party rights of appeal in the Planning Bill which eventually became the Planning Act in 2006. They declined to do so.

Any objector therefore who wishes to challenge the grant of a planning permission has to do so by way of an application for judicial review. That is a significant undertaking involving material expense especially in relation to large projects. In the recent challenge to part of the National Planning Framework the costs of the judicial review application for the parties were estimated in total to be in excess of £150,000 – a consideration the court took into account in making a protective costs order. The costs may be a deterrent thought it is noticeable that a number of challenges to the grant of planning permission come before the Scottish Courts each year. While there is no analysis of these available just looking at the case reports suggests that particular types of development such as supermarkets and wind farms seem to cause more of these challenges that other types of development.

In the Scottish Courts a judicial review application typically will take a number of months to hear – 8 to 9 months is a reasonable estimate though that period will vary from case to case and will be affected by the complexity and significance of the issues involved as well are more prosaic issues such as the availability of particular Counsel instructed for the application. If a project is delayed considerable costs can result from such a challenge. Is the party so delayed (by inference the "successful" party in terms of the outcome of the judicial review process) entitled to claim damages? The English Court of Appeal have recently issued a decision on this issue.

The decision came out on 18 December 2009 and involved Land Securities plc who took proceedings against a number of parties for damages as a consequence of judicial review proceedings which were brought by those parties against Westminster City Council in respect of a permission granted to Land Securities. The challenge related to arrangements which were made in respect of affordable housing where the development proposed an over provision of affordable housing with the intention that this over provision might be used as a "credit" in respect of other developments where the appropriate or necessary provision might not be capable of being provided.

The Defendants in this action (who previously brought the judicial review application) obtained advice from Senior Counsel before embarking on that judicial review process. That advice was to the effect that the "credit" arrangement was not lawful. A copy of the Opinion was made available to Land Securities. Discussions took place but no agreement was reached with the consequence that a judicial review application was made against the Council once planning permission had been granted. That judicial review application was settled (drafted) by Senior and Junior Counsel and unconditional leave to proceed with a judicial review petition was given by a High Court judge. In England leave is a pre-requisite to proceeding with a judicial review petition – the position is not the same in Scotland though Lord Gill in his recent report suggested that leave should be a requirement here. At the time leave was granted a notice of objection had been filed in relation to the judicial review application setting out the grounds upon which Land Securities opposed the application (and presumably leave being granted for the application). Land Securities challenged whether the parties bringing the judicial review application had sufficient interest to do so and also argued they had no realistic prospects for success. These issues did not prevent the grant of leave.

It appears subsequently that the application for planning permission was reviewed and an alternative arrangement made in respect of affordable housing with the consequence that the judicial review application was withdrawn. The period between the judicial review application being lodged and it subsequently being withdrawn was some 7 months or so.

Against this background Land Securities brought an action for damages based upon the alleged abuse of the civil process. It was argued for them that the dominant purpose in bringing the judicial review proceedings was not to prevent the development but to bring pressure to bear to achieve certain commercial objectives including Land Securities assisting the Defenders in the court action (the parties who had brought the application for judicial review) to relocate to new premises. The losses were estimated to be £17m. Reference was made in the proceedings to meetings which had taken place prior to the judicial review application being lodged where Land Securities contended that requirements for a financial payment or windfall were raised with them. Before the court it was argued that using judicial proceedings where the predominant purpose was to obtain some collateral advantage beyond the proper scope of the proceedings resulted not only in a right to have the action dismissed (struck out) but also resulted in a claim for damages.

The action was unsuccessful at first instance and the decision issued in December was that of the Court of Appeal reviewing the position. It equally dismissed the action. In doing so the court reviewed the case law much of which is historic and concluded that the right to damages in relation to civil cases was limited to three well recognised heads, and this case did not fall into any of them. The court pointed out that there was no authority where judicial review proceedings had been involved as a basis for a claim of this type; noting that in such proceedings the court had given permission for the action to proceed and there was in any event a public interest in subjecting public actings to review. It appeared on the facts that the court also accepted the view of the judge at first instance that any financial motive was not "sufficiently collateral" to make the judicial review proceedings any abuse of process. In particular Lord Justice Etherton observed:- "What in my judgement emerges clearly from the authorities is the tort is not committed by a person who institutes proceedings with a genuine interest in, and an intention to secure, their successful outcome, even if the Claimant's motives are mixed and they hope they might also achieve an objective not itself within the scope of the proceedings.".

While the judges were unanimous Lord Justice Moore-Bick commented that he did not see why judicial review proceedings should necessarily not found a claim for damages as an abuse of process in certain circumstances but that he thought in practice it was unlikely that they could in fact do so. He pointed to the need for leave and equally the nature of the proceedings themselves which in essence were intended to ensure that a public body acts properly albeit in doing so that might serve a private interest of a particular party. Against that background he thought it unlikely that judicial review proceedings could ever properly found a basis for an action for damages for abuse of process. The third judge, Lord Justice Mummery, supported the other two judges but in particular commenting upon what he described as the special nature of judicial review proceedings suggested that this in itself probably made it difficult to see how these could ever properly form the basis for such an action. Again he referred to the fact that leave was required, the procedures and nature of the proceedings.

The decision is clearly interesting but the impression given is that the court had little difficulty in reaching the conclusion reached.

From a Scottish perspective the critical issue is whether or not the same decision would result here. The process in relation to judicial review is very different before the Scottish Courts. While the essential nature of the proceedings is the same, there is no requirement for leave and no early scrutiny of the action. Issues often arise about whether or not the party bringing the application has title and interest to do so and if they do not the action will be dismissed. The recent case of Forbes v Aberdeenshire Council & Trump International before Lady Smith is a good example of that. While she was only dealing with a claim for initial orders she made clear that she did not think the Petitioner had title nor interest and that the case was a weak one.

There appears to be no case in Scotland dealing with a possible claim for damages as a result of an alleged abuse of process resulting from the wrongful institution of judicial review proceedings. It is clear in Scotland that Scots Law does recognise a claim for damage for the abuse of process. The Stair Encyclopaedia suggests (under reference to authority which is mainly Victorian) that to be actionable the party bringing the action must show that the action was raised "maliciously and without probable cause". It goes on to say that want of probable cause does not result just simply because the original claim was groundless but rather on the basis that the proceedings did not have any realistic chance of success at all. The examples given appear to be cases where the position was self evident. Judicial review applications must be brought in the Court of Session and in framing the Petition Counsel obviously has to be satisfied that there is stateable action as would any Solicitor Advocate dealing with the cause. It is likely therefore be difficult to show "any lack of probable cause". So far as malice is concerned it is suggested that this will be established if it can demonstrated the action was raised for vexatious reasons rather than on the basis of protecting an alleged interest though the Stair Encyclopaedia does observe that malice may well be inferred if there is a lack of probable cause.

It does appear that the basis for an action in Scotland for abuse of process may be different from that in England – it is notable that Stair Encyclopaedia does not refer to the English authorities. There are significant differences in relation to the judicial review process in Scotland in comparison to the process in England and arguably some of the safeguards that were referred to by the court in the Land Securities case do not exist (such as the need for leave).

While it is highly unlikely the Scottish Courts would entertain such a claim, the Land Securities case, while of interest, may be of limited relevance to the position in Scotland. In the right circumstances there may well be grounds for testing the law in this area particularly in relation to circumstances where the issue in reality may be more of a commercial issue than challenging the decision of a public body.

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

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

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (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

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’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.


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.


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 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.


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.


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.


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.


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

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

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

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