Niall McLean and Paul Scott look at the implications for developers of the recent changes to judicial review procedure north of the border
“When is my planning permission safe?” is a question often asked by property developers in the early stages of a development. However, recent changes to judicial review procedure in Scotland should give developers and investors greater certainty that their projects will be safe from legal challenge.
Judicial review is a type of court procedure used to challenge the decisions of public authorities. If no other statutory right of appeal exists, judicial review can be used to challenge the grant of planning permission. For example, where a local authority has granted planning permission and an objector wishes to challenge that decision. Until recently the rules for judicial review in Scotland and England were quite different, as there was no formal time limit for raising judicial review proceedings in Scotland. This meant developers could face a legal challenge weeks or even months after getting planning permission. Developers faced with objections were then left with a dilemma as to whether to implement their permission knowing they might face a challenge at a later date.
What’s new?
Since 22 September 2015 there have been two key changes to judicial review procedure in Scotland that will affect property developers:
- the introduction of a three-month time limit to apply for judicial review; and
- a new requirement for the court to give permission before the application can proceed.
The court can extend the time limit, but there are likely to be strong arguments that can be made to prevent challenges being brought outside the three-month period. The expectation is that, as it is a statutory time limit, the courts will apply it strictly.
Equally important is the introduction of a permission stage. This gives the court an early opportunity to reject challenges where they have no “real prospect of success”. Unlike in England, there will be no automatic right to an oral hearing to decide whether or not permission is granted. An oral hearing will be restricted to 30 minutes and is only likely to take place when the court is considering refusing permission. This may be an attempt to prevent parties from front-loading challenges and turning the permission stage into a full hearing on the merits of a case.
However, it will often be difficult for the court to reach a view on the prospects of success without hearing the full case, especially where a planning decision is being challenged. The courts have said that for a case to have a real prospect of success it should be arguable. If that is how the test is applied in practice, it is unlikely to be a high hurdle for many types of challenge.
Practical considerations
The changes introduced will be of great relief for developers and investors in Scotland, who will now have a greater degree of certainty in judging the potential risk and timescales associated with, in particular, the potential challenge to planning permissions by aggrieved parties. That increased certainty will allow parties greater comfort in committing to terms in conditional contracts that are based on a specific date following the approval of planning permission.
The permission stage will also provide some protection from spurious challenges, and while the hurdles may not be significant at present, the permission stage, and the additional costs involved in legal and court fees, may be sufficient to deter those without a strong claim.
The changes introduced will also have implications for third parties seeking to challenge decisions. Using the example of planning permission, the new process will lead to aggrieved parties having to be much more organised, including through closely monitoring the planning decision, and making sure that their best arguments are lined up for the permission stage. By way of example, a retailer seeking to delay the implementation of a competing scheme may have previously relied on the relative ease, and open-ended period, within which the challenge could be brought. However, that retailer will now have to carefully monitor the progress of the application, and ensure that thorough preparation is in place even for the permission stage of proceedings.
Added comfort
These long-awaited changes should provide comfort to the property industry that Scotland continues to be a good place to do business. Providing greater certainty in this important part of the process will improve the attractiveness of Scotland as a place to invest in the face of competition from the rest of the UK.
The changes will take several months to bed in. Once the first challenges under the new procedure are brought, they will give an indication as to how the changes have affected the judicial review of planning decisions in Scotland. While the changes are important, there will continue to be differences between the law and practice in Scotland and England, so expert advice will be still be required before bringing or defending a challenge.
Niall McLean is an associate and solicitor advocate in Brodies’ public law and regulation team; Paul Scott is managing director of Scott Hobbs Planning
