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.
Planning TV: Designing Liveable Cities (Video)
