Scottish Court of Session Decisions

Pursuer: Lake QC; Maclay Murray & Spens LLP

Defender: Wilson QC; Allan McDougall

21 December 2012

[1] The first petitioner is an individual, the second petitioners are a company incorporated under the Companies Acts. The petitioners are the developers of a site at Barbachlaw Farm, Wallyford, Musselburgh for which planning permission was granted in 2004 for the erection of a greyhound stadium, formation of vehicular access, associated parking and associated works. The respondents are East Lothian Council, the planning authority for East Lothian for the purposes of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). The respondents are the planning authority in relation to the planning permission which constitutes the subject matter of this petition. In the present petition the petitioners seek to reduce a decision of the respondents dated 23 February 2011 to refuse to grant planning permission in principle, pursuant to an application made to them with reference 10/00341/PPM and to suspend ad interim the decision of the respondents dated 23 February 2011 to refuse to grant planning permission.

[2] The relevant background can be stated briefly. On 23 December 2004 the respondents granted planning permission for the erection of a greyhound stadium, formation of vehicular access, associated parking and associated works on land at Barbachlaw Farm, Wallyford, Musselburgh. The planning permission was granted following execution by the respondents and other parties, including the second petitioners, of an agreement in terms of section 75 of the 1995 Act. In 2005 the second petitioners commenced building and engineering works intended to implement the planning permission granted in 2004. For reasons which are not germane to the present application the second petitioners were unable to complete these works. After various discussions between the petitioners and the respondents, the details of which are again not relevant for the purposes of the present petition, a further application was submitted by the first petitioners to the respondents seeking planning permission to carry out residential development on the land which had constituted part of the 2004 permission. This second application was lodged in March 2010 and was given the reference 10/00341/PPM by the respondents. On 23 February 2011 the respondents refused to grant planning permission in principle in terms of that application. On 20 May 2011 the petitioners submitted an appeal under section 47 of the 1997 Act to the Scottish Government Directorate for Planning and Environment Appeals against the said decision of 23 February 2011. The present petition was subsequently raised in which the petitioners seek to reduce the respondents' said decision dated 23 February 2011. When the matter called before me at first hearing I was informed that the appeal to the Scottish Ministers in terms of section 47 of the 1997 Act was on hold pending the outcome of this application for judicial review. I was further informed that the respondents insisted on their first plea-in-law, that the petition was incompetent by reason of the petitioners' failure to exhaust an alternative remedy, that is by the appeal, as was in fact taken, under section 47 of the 1997 Act. In these circumstances it was, as I understand it, agreed by parties that the issue of the competency of the present petition was a preliminary matter of potentially determinative effect. In these circumstances it was deemed appropriate to deal with the preliminary issue in isolation.

[3] There was no dispute as to the relevant statutory background. Section 47(1) of the 1997 Act provides:

"Where a planning authority -

(a) refuse an application for planning permission or grant it subject to conditions ...

the applicant may appeal to the Secretary of State against the decision."

Section 47A of the 1997 Act provides:

"(1) In an appeal under section 47(1), a party to the proceedings is not to raise any matter which was not before the planning authority at the time the decision appealed against was made unless that party can demonstrate -

(a) that the matter could not have been raised before that time, or

(b) that its not being raised before that time was consequence of exceptional circumstances.

(2) Nothing in subsection (1) affects any requirement or entitlement to have regard to -

(a) the provisions of the development plan, or

(b) any other material consideration."

Section 48 of the 1997 Act provides:

"(1) On an appeal under section 47 the Secretary of State may -

(a) allow or dismiss the appeal, or

(b) reverse or vary any part of the decision of the planning authority (whether the appeal relates to that part of it or not), and may deal with the application as if it had been made to him in the first instance.

...

(5) In relation to an appeal to the Secretary of State under section 47 -

(a) sections 33, 37(1) to (3), 38(1) to (3), 41(1) and (2) and 42 and Part 1 of Schedule 3 shall apply, with any necessary modifications, as they apply in relation to an application for planning permission which falls to be determined by the planning authority, ...

(6) The decision of the Secretary of State on such an appeal shall be final."

[4] The petitioners' position was that in determining the 2010 application the respondents had failed to have regard to material factors. As a consequence of that failure the decision of February 2011 should be reduced and the petitioners' application considered de novo. Against that statutory background the submission of the petitioners was that it was unclear whether the Scottish Ministers, even if allowing the appeal against the refusal of the 2010 planning application, would order that any new hearing of the application be heard de novo. The petitioners had apparently sought assurance from the Scottish Ministers on that point but, for whatever reason, had not been provided with the assurance they sought. It was accepted by counsel for the petitioners that if the Scottish Ministers had been prepared to give such an assurance, their position in regard to the respondents' preliminary plea would be difficult to uphold. In any event, notwithstanding the language of section 47(1) and 48(6) of the 1997 Act the jurisdiction of the court was not necessarily ousted.

[5] The respondents' submission was that the Secretary of State's decision in relation to an appeal was final and that in terms of section 237(1)(f) and (3)(b) of the 1997 Act the jurisdiction of this court to entertain a judicial review in the circumstances of the present application was ousted by statute. The provisions of section 47(1) of the 1997 Act made it explicitly clear that the petitioners in the present action had a valid right of appeal against the refusal of the 2010 planning application. That right had been exercised. It was only after that right had been exercised to a conclusion could there be any possibility of a judicial review: Bellway Limited v Strathclyde Regional Council 1979 SC per Lord Brand 92 at 97; Ingle v Ingle's Trustee 1999 SLT 650 Opinion of the Court at 654E, 655A.

[6] It is clear that as a general proposition "... judicial review is not available if there is an alternative means of relief open to the application" (Judicial Review, Clyde and Edwards at paragraph 12.01). This general proposition is reflected in the terms of Rule of Court 58.3. The rationale behind the principle is clear, judicial review is an equitable remedy and, for the proper administration of justice, should not be utilised where other provisions have been provided to ensure that appropriate relief is available for a person legitimately aggrieved by a decision. In the present instance the statutory language is, in my view, relatively clear and it is plain that the intention of the legislator was to oust the jurisdiction of the court. I accept, as was submitted by counsel for the petitioners, that in circumstances where the decision-maker, in this case a planning authority, stepped wholly outwith its jurisdiction there might be the possibility of judicial review. The availability of judicial review in a circumstance such as that would be in accordance with the general principle that the rule of law requires that this court exercise a supervisory jurisdiction to ensure compliance by decision-makers with statutory provisions. The circumstances of the present application are not in that category. In the present instance the decision-maker has acted in a way which the petitioner maintains is wrong in that there was a failure to take into account material considerations. I see no reason why the petitioners' complaint cannot be raised in the appeal which, as is accepted, can be made to the Secretary of State under the provisions of section 47 of the 1997 Act. The petitioners' real complaint insofar as I can determine is that the Secretary of State would not, in advance of such an appeal hearing, give assurances that the matters which the petitioner complains of would be considered in any appeal. I accept that as a matter of statutory language the petitioners' concern is justified. The language of the relevant statutory provision is permissive. In my view that is of no materiality. The legislature have deliberately vested the Secretary of State with a discretion as to what matters are considered in an appeal of this sort. That matter is therefore one for the Secretary of State. In the event that the Secretary of State declined to have regard to the factors which the petitioners say constitutes an error and, further, the Secretary of State reached a decision on that basis then, no doubt, there would remain an avenue for judicial review. Until such time I consider the present application to be premature.

[7] It follows from the foregoing that I will uphold the respondents' plea-in-law and dismiss the petition.