Biggart Baillie Solicitors

Councillors' attitude as a ground of challenge

Monday, February 07, 2011

by Murray Shaw

A growth area in the Scottish Court System is the increasing number of judicial review cases.  Many of these relate to decisions in connection with asylum seekers.  Lord Gill in his report on civil justice raised the possibility that it might be necessary to seek leave before proceeding with a judicial review petition. 

Another area in which judicial review appears to play a more prominent part relates to challenges to planning decisions particularly those involving supermarkets.  It appears to be quite common for one supermarket granted planning permission to challenge a decision in favour of a rival.  Scottish cities apparently having become “saturated” with supermarkets, the battle ground now appears to have moved to smaller towns and communities in Scotland [click here to view - Supermarket Wars article].

The latest decision in this sequence was issued on 25 January 2011 and relates to a decision of Lord Malcolm involving a case brought by Tesco Stores Limited v Highland Council, with Asda being brought in as an interested party.  This concerned rival developments in the North of Scotland in Tain.

In effect Tesco had been granted a planning permission in Tain.  Asda were also granted planning permission and Tesco sought a judicial review (unsuccessfully) of that decision bringing judicial review proceedings against the Council and calling Asda in as an interested party. 

In effect both Tesco and Asda had interest in developing in Tain as did Robertson Properties Limited.  There were a series of applications (the details of which are not significant) and as a consequence of that the Council obtained its own retail assessment which confirmed that notwithstanding approvals which had been granted there was sufficient capacity over and above the existing capacity for the application made by Tesco (which was pending at the time of the report) for either the development proposed by Asda or Robertsons.  In fact Robertsons withdrew their application as did Asda and Tesco were granted full planning permission following upon an inquiry before Scottish Ministers.  That inquiry related to the refusal of reserved matters, Tesco having been granted outline planning permission.  Appeals against the refusal of reserved matters are rare, the principle of planning having been established.  However it appears that a number of Councillors were very active in opposing the grant of reserved matters. 

Asda then made a new application which the Council ultimately granted and it was that grant of planning permission which is the subject of the judicial review application.

The judicial review application essentially proceeded on two grounds:-

1. That the Asda site did not meet the sequential test; and
2. In essence that certain Councillors were motivated to grant the Asda application to stop the Tesco application being implemented.

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The first ground of challenge really relates to guidance from the Scottish Government which seeks to ensure that certain types of development including retail development should take place in town centres failing which on the edge of centre and only if there are no satisfactory sites in either of those locations outwith the town centre.  In effect it is hierarchical approach, albeit issues sometimes arise when developers argue that though there may be a site available in a preferred location in the hierarchy, that site for some reason is not suitable (typically it is too small).  There have been a number of cases on the sequential approach before the Scottish Courts though in reality each case will turn upon its own merits. 

The judge (Lord Malcolm) considered the proper application of the sequential approach and came to the view that it was not disregarded by the Council as Tesco argued, nor could he detect any error nor irrationality in its application (which resulted in the rejection of town centre as potential alternatives to the site identified by Asda).  He did indicate he had some sympathy with the argument that the sequential test while demanding a degree of flexibility, sites “higher” in the hierarchy should not simply be set aside because the developer has come up with a scheme which cannot be fitted into such a site.  Lord Malcolm did indicate however there were limits to the extent to which a developer should be expected to fit a development into a site in the “preferred position” in the hierarchy if that site properly could not accommodate the proposed development.

The case is really of interest because of the second ground of challenge.  Lord Malcolm noted that Counsel for Tesco was not “specific as to the exact nature or categorisation of their challenge”.  Apparently reference was made to concepts such as bias, perceived bias, pre-determination, fettering of discretion, taking into account of irrelevant considerations, breach of the rules of natural justice, unreasonableness and irrationality.  This suggests there was something of a “shotgun” approach.  In reality this ground of challenge related to the actions of Councillors. 

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Clients are often concerned about the role of Councillors and the extent to which they are subject to local pressures (though that is inherent in their role).  The code of conduct deals with planning issues specifically [click here to view - Councillors, Planning and the Code of Conduct article].  In England there appears to be desire to increase local power with the current government’s “localism agenda”.  The Scottish Government have the power to step in to planning matters, though they rarely use them.  Often the concerns are more perception than reality.

Lord Malcolm however approved an English case in 2009 R (Lewis) v Redcar & Cleveland Borough Council in which the court indicated the following principles:-

1. A decision maker should not be influenced by any pecuniary, proprietary or other personal interest;
2. In a legal challenge the court should consider whether a fair minded and informed observer would be left with the view there was a real possibility that the Planning Committee was biased and did not approach the decision with an open mind (though this test should be applied with caution – Councillors were allowed to have legitimate grounds to be pre-disposed to a particular outcome and to have freedom to express their opinions);
3. Given the nature of local government and the role of Councillors there should be clear evidence that there was such bias or a closed mind.
4. If Councillors have no pecuniary or personal interest they complied with their duties if they addressed the planning issues fairly and on their merits even though they may approach them with a particular pre-disposition.  Councillors must be prepared to change their minds and to remain open to any new arguments.
5. It will be easy to quash a decision if there is no substantial planning justification.  The reverse was equally true.
6. The test in relation to a challenge based upon pre-determination or bias is difficult to satisfy.

Having identified these criteria Lord Malcolm then applied them to the facts including reviewing the circumstances in relation to what appears to have been a fairly noisy and high-spirited Council meeting.  Having done that he came to the view that there were no grounds to overturn the decision.  That decision was reached despite the fact that one Councillor had made comments to the effect there were not enough Asdas in the Highlands and too many Tescos – a comment that appeared in the press. 

Developers are often concerned about the attitude of Councillors to applications and whether they have pre-conceived views.  This case appears to suggest that Councillors can quite legitimately have such views and that will not necessarily make a decision in which they are involved open to challenge providing the decision making process is approached in the correct manner.  Whatever concerns a developer may have this case suggests that it will have to be fairly extreme behaviour before the behaviour of Councillors will prove a ground of challenge in the absence of any overt procedural irregularity.

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