Right to buy and the Planning Process
Tuesday, May 16, 2006
by
Murray Shaw
One of the most significant pieces of legislation passed by the Scottish Parliament has been the Land Reform (Scotland) Act 2003. Amongst other innovations, this created a right to buy in favour of community bodies. When the draft Bill was introduced, the right was excluded in relation to communities where the population was over 3,000. Without any real explanation this limit was amended and the Act was enacted with a limit of 10,000. The consequence of this was that very much more land was brought within the ambit of the Act – an issue that appears to have had little consideration in the proceedings before the Scottish Parliament.
While the Bill was under consideration, concern was expressed by a number of bodies about the relationship between the right to buy and the planning process. Bluntly there was concern that the right would be used to thwart the planning process.
The Act provided for an appeal against registration (or indeed the refusal to register an interest) to the Sheriff Court having jurisdiction over the land in question. The Act itself was absolutely silent about the nature of that appeal and whether in particular it was akin to a judicial review (with the consequence that the Sheriff could only consider whether or not the decision of the Scottish Ministers was reasonable or not) or to take the form of a fresh hearing.
The first reported decision on the legislation has now come out and is helpful in clarifying a couple of points. The decision is a decision of Sheriff McSherry in the case of Holmehill Limited v Scottish Ministers, the judgement being issued on 27 April 2006.
The case was an appeal by the community body against a refusal by the Scottish Ministers to register an interest. The application was actually made late and that is a significant factor in the Sheriff upholding the decision of Scottish Ministers.
One of the issues which was argued before him however was the nature of the appeal and whether in effect the appeal was akin to what the Sheriff termed an “open appeal”, in other words a complete re-hearing on the merits of the application or more limited in its scope. The Sheriff having considered similar rights of appeal under other legislation has come to the view that he is not entitled to effectively re-hear the whole issues with a view to substituting his decision (a fresh decision) for that of Scottish Ministers. Rather the nature of the appeal is rather more limited and in order to succeed the Appellant needs to show that either the decision was unreasonable or on a consideration of the merits “plainly wrong”. So far as unreasonableness is concerned the Sheriff appears to be of the view that the principles in judicial review applications are relevant which means any Appellant seeking to show that the decision was unreasonable has a high burden to discharge. Interestingly enough, the Sheriff indicated that even if he could effectively re-hear matters, he would not lightly reverse the decision of the Scottish Ministers, not least because such an approach would not “sit well with ensuring consistency of decision making throughout Scotland”.
Given the fact that the legislation provides that the decision of the Sheriff is final, the approach while understandable, is likely to cause a degree of consternation and concern. In fact, notwithstanding the provision in the legislation, an appeal to the Court of Session is probably possible but it is unlikely the Court of Session is going to treat any appeal to them as being some form of re-hearing of the application. In effect therefore, it will be difficult to challenge the approach of the Scottish Ministers so far as their assessment of the facts is concerned and the application of the law to those facts.
In reaching the decision to reject the application, the Scottish Ministers did so at least in part, on the basis that they had come to the view that having noted a number of references within the application “to preventing future development on the land to be registered” it appeared that the right to buy process “could be used to thwart the planning process”. Scottish Ministers therefore concluded that while issues were finely balanced it was not in the public interest to approve the application. This approach is directly relevant to a number of the concerns which were expressed about the Bill. The Sheriff held that given the guidance which has been issued the approach of the Scottish Ministers on this issue was correct. He did not hold that if they came to that view, they were bound to reject the application. To do so would have been counter to his views about the nature of his jurisdiction. What he did decide however was that such a view was relevant for Scottish Ministers to take into account in determining matters. This aspect of his judgement is likely to be of more comfort to those who have concerns about the legislation.
Given the issues decided in this case to use football terminology the outcome is a bit of a score draw (no matter which perspective you have on the legislation). It seems likely over the next few months that further decisions will be issued which may go some way to further clarifying legislation. Indeed the community body in this case clearly incurred significant expense in arguing their views. It will be interesting to see whether they seek to take the matter further.