Biggart Baillie Solicitors

Planning Appeals & Deemed Refusal – A Surprising Decision?

Tuesday, April 07, 2009

by Murray Shaw

On 25 March 2009 the Court of Session issued a decision in the case of Vattenfall Wind Power Limited v Scottish Ministers.  The consequences of the decision are potentially far reaching.

The background to the case is that an application was made to Scottish Borders Council on 10 April 2003 for planning permission for a wind farm development.  The application was not determined and on 6 June 2008 the applicants (the appellants in this case) sought to appeal to Scottish Ministers against the failure of the planning authority to determine the application – a position often referred to as a “deemed refusal”.  In August 2007 (more than 4 years beyond the date by which the planning authority should have issued their decision), discussions took place about extending the timescale for the planning authority to issue a decision and eventually an extension up until 31 December 2007 was agreed between the applicant and the planning authority.  The applicant therefore considered that the appeal to Scottish Ministers in June 2008 was timeous (being within 6 months of 31 December 2007).

The Court of Session did not agree.  The court took the view that the right to appeal on the grounds of non-determination lasted for 6 months from the date upon which the statutory period for the planning authority to make a decision expired and that was the position irrespective of any agreement reached between the planning authority and the applicant. It is not clear whether the Court intended by referring to the statutory period to refer to the period for determination set out in the Regulations or that period as validy extended, i.e. extended before the expiry specified in the Regulations for the original decision and not respectively.  The latter appears logical, the former appears to be what the court said!  The period of 6 months is the current period to lodge an appeal, shortly to be reduced to 3 months.

While the facts in this case are unusual (to put it no higher) the decision itself may have far reaching consequences.  In terms of the new legislation the time period for determining a major application will be 4 months.  In complex cases 4 months may not be sufficient time to properly consider the position depending upon the nature of the application and an applicant in that situation may well grant a planning authority a significant extension to deal with matters.  The risk for the applicant is that the duration of any extension based on this case effectively “eats into” the period within which an appeal on the grounds of non-determination may be taken.  Indeed given that the period for lodging an appeal is to be reduced to 3 months, it may be difficult for the applicant to give the planning authority any meaningful extension if and to the extent they want to keep open the ability to appeal on grounds on non-determination.

There is clear case law to the effect that even if the right to appeal on grounds of non-determination is lost, there remains an obligation on the part of the planning authority to decide an application and obviously if the application is then decided against the applicants there would be a right of appeal in respect of the actual decision itself – see London & Clydeside Estates v Aberdeen District Council [1980] SC(HL)1.

In the Vattenfall case, the court appears to have left open the question of whether or not the obligation of a planning authority to determine an application is indeterminate.

This decision was in respect of an application which was accompanied by an Environmental Statement and in accordance with the 1999 EIA Regulations the original period to determine the application was 4 months.  That period of 4 months is in place of 2 months which otherwise was the relevant period in terms of the General Development Procedure Order (which was the prevailing order for the purposes of this application).  The wording in the new regulations which deal with appeals (the Town & Country Planning (Appeals) (Scotland) Regulations 2008 which come into effect on 3 August 2009) is slightly different from the wording in the 1992 Order.  The new drafting refers to an appeal being lodged 3 months from “the expiry of the period allowed for determination of the application” as opposed to the current drafting which provides for appeals to be lodged within “6 months of the appropriate period allowed under Article 14(2)”, Article 14(2) being that dealing with appeals.

The court in this case appear to have proceeded on the basis that the period allowed for the purposes of the 1992 Regulations was the period specified and not any other period agreed between the parties (in other words the applicant and the planning authority).  Given the slightly different wording in the 2008 Regulations, it is possible that a court could come to a different position if and when this issue is raised in the context of those Regulations.  Given, however, the firm views of the court in the Vattenfall case, there can be no certainty about that. 

The lesson for applicants and those acting for applicants therefore is to be very careful about the length of any extension agreed and certainly to make a decision about whether or not a deemed refusal is to be taken in good time to ensure that that right is not lost.

Back To Top

For more information, please contact Murray Shaw on 0141 228 8000 or email mshaw@biggartbaillie.co.uk