Why is the planning process so important?
Robert Bruce v Moray Council [2023] CSIH 11, published last week, is an important decision for our ever-more-complicated planning system. It endorses aspirations for simplicity of principle, clarity of thought and brevity of expression, all much to be welcomed. Planning jargon, and ever longer submissions, reports and decisions are not yet in their death throes, but this case may hasten their demise, and at the same time elevate both official and public understanding of Planning as an art and as a science.
In delivering the Opinion of the Court, the Lord President underlined three important considerations. These are sometimes lost in the microscopic scrutiny of detail in which we all have to engage.
The first of these is the participative (sic) and democratic nature of the planning process, generously allowing not only for the expression of views and challenges by affected persons, groups and communities, but also the need for the clear understanding and evaluation of local needs and wishes by decisionmakers, who should be slow to dismiss them.
In this regard, the Inner House re-emphasised the open door for participants and litigants who can demonstrate a proper interest to seek review of a decision (in this case, of a Local Review Board). That interest can be established if the litigant has “played a part in the process” and demonstrated a “genuine concern” or can show a “sufficient local connection” leading to the challenge. The ratio of Axa General Insurance, etc [2011] UKSC 46, per Lord Reed JSC at [170] is alive and well. With the arrival of NPF 4, and the zealous tone of the Scottish Government’s relentless determination to homogenise local planning, this can only become more important.
The second point of emphasis is that an adopted Local Plan binds those who have adopted it without qualification. Absent material considerations amounting to “sound planning reasons”, allowing it to be set aside in any particular case, it should be followed. The Local Plan is not a smörgåsbord from which participants can pick and choose the tasty bits, as the mood of the moment takes them. “Material considerations” must be clearly identified as such, and not as merely as a passing preference.
Thirdly, as many bruised advocates know, a “reasons challenge” must show clearly that reasons brought under review in a Court are neither proper nor adequate ones. Reasons challenges were described by Sullivan LJ in Newsmith [2001] EWHC 74 as a “particularly daunting task”. Mere disagreements with the exercise of informed planning judgment will not suffice, however studiously or passionately the views are expressed.
A planner, Board, Committee or a Court and their advocates must “grasp the intellectual nettle of the disagreement.” (Lord Carloway at [30]) A decisionmaker’s reasons disclosing what was or was not taken into account must leave the reader in “no substantial doubt” and be “intelligible…”, even if the reasons are brief. (Wordie Property v SoS 1984 SLT 345 per Lord President Emslie at 348). Conciseness on its own is not a ground of challenge.
The facts of this case need not be examined here. The importance of Bruce, echoing the 700 year old spirit of his eponymous ancestor, is that the case has blown oxygen into the vibrant and dynamic character of today’s planning process. This kiss of life is welcome, and vital to a modern democracy, underpinning all economic growth and many social advances. Constructive and creative Planning for people and places should be the concern of all of us. It is not simply a bureaucratic management system, nor is it the preserve of those who dwell in ivory towers.
JDC 27 February 2023
