As highlighted in our July Spotlights, last month saw the Court of Session quash amendments to Scottish Planning Policy (SPP) made in December 2020 (along with PAN 1/2020 that was published at the same time), on the basis that the consultation process that preceded these was considered to be so unfair as to be unlawful (Graham’s The Family Dairy and another v Scottish Ministers  CSOH 74). Other grounds of challenge to the amendments, asserting irrationality on the part of the Scottish Ministers in making them, were not however upheld. We have previously shared our views on the amendments proposed during the consultation process in our blog, ‘Presumption is our natural and original malady’, but what about the consultation process itself – what was it that caused the Court of Session to conclude that it was unlawful, and what can we learn from this?
In Scotland, the judicial review process is intended to ensure that those upon whom decision making powers are conferred do not exceed or abuse those powers, and that they do not fail to perform the duty which has been delegated or entrusted to them. To this end, there are three broad grounds under which judicial review might be sought, these being:
- illegality – that the decision maker made an error in law, or made a decision that was not within their legal power to make;
- irrationality – that a decision was so unreasonable that no reasonable decision maker could have reached it, or it was made in bad faith; and
- procedural impropriety – that the decision making process was not followed properly, did not comply with the rules of natural justice, or was otherwise manifestly unfair.
Importantly, the Court of Session will not look at the merits or otherwise of a particular decision, but will consider only whether it was made legally, rationally and properly.
In the case of the Court’s decision on SPP, the key issues can be summarised as follows:
- although the consultation document on the proposed amendments described these as being clarifications of a technical and procedural nature, and stated that they would have no impact on the outcome of planning decisions, there was a lack of evidence to support this assertion and, in the view of the Court, the amendments were considered to in fact be substantive and potentially wide-reaching in terms of their impact;
- the statement with regards to there being no impact was likely to have affected responses to the consultation, with it considered that reasonable readers may have decided either not to respond to the consultation, or to have given a response that was largely or partly predicated on the absence of any impact;
- although there was a good level and range of responses to the consultation, this did not alter the Court’s assessment of how consultees may have responded had they been given the required information on the potential impact; and
- as consultees were not put into a position properly to consider and respond to the consultation request, the consultation process was materially misleading and unfair, albeit not intentionally so.
So, what happens now?
On the basis of the Court of Session’s decision, the Scottish Ministers could simply repeat the consultation process in a way that makes the potential impacts of the proposed amendments clear, and then remake the amendments. As such, and as often happens in judicial review cases, the petitioner may have won the battle but ultimately still lose the war. There has not though been any announcement made on this as yet.
Meantime, for us, the biggest takeaway from the Court’s decision in this case is the importance of ensuring consultation processes are fair, in terms of which the decision highlights that:
- what fairness requires will turn on the circumstances of each consultation process, including, for example, who is being consulted and the extent to which they could be expected to understand the issue(s);
- consultation documentation must be read and examined in the spirit of the purpose for which it is produced, from the standpoint of a reasonable member of the public or reasonable reader; and
- consultees must be told enough, and in sufficiently clear terms, to enable them to make an intelligent response, with consultation being unfair and unlawful if the proposer fails to give sufficient reasons for a proposal.
At the same time though, the decision does also make it clear that courts will not lightly find that a consultation process is unfair. Which itself seems fair.
On which, to find out about how aurora planning can assist you in any aspect of the planning process (whether related to the fairness of it or otherwise), please visit www.auroraplanning.co.uk or email firstname.lastname@example.org. And to receive future blogs and updates by email, please click here.
Thanks for reading!
Pippa and Maggie