Local review bodies must adopt de novo approach confirms Inner House

Local review bodies (“LRBs”) were introduced to the Scottish planning system by the reforms under the Planning (Scotland) Act 2006. Applicants can require LRBs to review cases where an application for planning permission for local development has been determined by a planning officer by virtue of a scheme of delegation under section 43A of the Town and Country Planning (Scotland) Act 1997 (“the 1997 Act”). LRBs are committees of the planning authority made up of at least three local councillors.

When proposing the introduction of LRBs, the Scottish Government stated that local authorities were best placed to take decisions on local matters and a key benefit of LRBs would be that the vast majority of appeals would be decided quickly and locally.

However, LRBs have not been universally welcomed. For example, critics of LRBs have argued that they are not impartial and do not carry out an independent fact finding exercise equivalent to that previously undertaken by a Reporter on an appeal to the Scottish Ministers. It has been suggested that, rather than investigating the facts and merits of the proposal, they merely undertake a review the planning officer’s decision.

The Sally Carroll v Scottish Borders Council case is the first time there has been judicial consideration of LRBs and the recently issued Opinion of the Inner House of the Court of Session provides guidance on the approach that should be adopted by LRBs.

Background to the Case

The case concerns a proposed development of two wind turbines with ancillary equipment. An initial application was refused by a planning officer in 2010 and by the LRB in 2011 on the basis that the development was “contrary to the Development Planconsistent with the Development plan”. However, the application was resubmitted and, despite being refused by the planning officer, planning permission was granted by the LRB in March 2013 on the basis that the development was now “”. The applicant was an interested party to the action.

The March 2013 decision of the LRB was subject to a statutory appeal, which was refused by the Outer House of the Court of Session. The recently issued Inner House Opinion concerned the appeal of the Outer house decision.

Arguments

The principal issue in the case related to the much debated point about whether an LRB was required to consider a proposal afresh on a review (i.e. a de novo consideration), as a Reporter would do on appeal, or whether it could conduct a more limited review. The Scottish Ministers stated their view in July 2011 that LRBs should adopt a de novo approach, although this is the first time it has been considered by the courts. The appellant argued that the statutory regime was capable of being interpreted in accordance with EU and human rights legislation provided it allowed for a de novo approach, but the approach taken in this case was a more limited review which did not satisfy this requirement.

The appellant also advanced a number of other arguments, including:

• The LRB’s decision was ultra vires as it failed to take into account its own technical guidance note which was a material consideration.
• The LRB was required to balance significant adverse impacts of the development against the overall economic benefits but there was a lack of adequate findings on these issues to allow an informed reader to understand the reasoning of the LRB.
• There was a breach of natural justice due to (i) not conducting a fair hearing or allowing a reasonable opportunity for the appellant to make representations and (ii) a failure to carry out a site visit.
• The LRB did not provide proper and adequate reasoning in their decision. The appellant argued that, where a de novo approach is undertaken, the LRB is required to make its own findings in fact (or adopt findings as an equivalent to its own findings). It was argued that it was not sufficient to glean matters from other documents.

Inner House Decision

The Inner House concluded that an LRB is required to approach matters de novo and “apply its collective mind afresh to the materials which were before the appointed person, together with any further materials or information properly before it”. The Court confirmed that what was required was no greater or lesser scrutiny than is required for an appeal to the Scottish Ministers. In the circumstances of the case, the Court was satisfied that a de novo approach had been taken. The Court took the view that it did not need to consider the issue of compatibility with EU and human rights legislation as the appellant was not seeking to challenge the statutory provisions and it was concluded that a de novo approach was followed.

In relation to the technical guidance note, the Court found that it was not of itself a material consideration. However, of greater importance was the conclusion that the Court would look at whether or not there would be a different outcome if the guidance note had been taken into account. It was found that there would not be a different outcome in this case, as the substance of the guidance note was considered through other matters that were taken into account.

The Court also rejected the appellant’s arguments on natural justice. The legislation provides that it is for the LRB to determine what, if any, further procedure is required and this was not a situation where the LRB heard from the applicant but not objectors. On the lack of site visit, the Court said this was not a requirement in every case and local councillors are different from Reporters as they may be taken to be familiar with the site. It is therefore likely that Reporters would need greater justification for not holding a site visit when determining planning appeals.

In dismissing the appellant’s arguments on the lack of proper and adequate reasoning, the Court referred to long-established principles on this matter. A decision-making body is entitled to confine itself to the determining issues and, provided the reasons are intelligible and accurate, express its reasoning concisely. It should be borne in mind that the reasons are for the benefit of “the informed reader, who is aware of the procedural and evidential background and the issues”. Of particular relevance to LRBs is the conclusion that an LRB does not need to rehearse or repeat those findings of the original officer with which it agrees.

Comment

If there was any doubt prior to this case as to whether LRBs should be taking a de novo approach, the Inner House judgment should have now put the issue to bed. It seems clear that LRBs should be taking a de novo approach to all reviews and looking at all the materials afresh. It will not be sufficient to simply consider whether the planning officer’s decision was reasonable in a Wednesbury sense.

The judgment was not entirely positive about the LRB’s process. It stated that the decision letter, although not unlawful, was “not a model of clarity or an example of best practice”. When issuing its decision letters, it would be advisable for LRBs to at least:

1. explicitly acknowledge which findings of the planning officer they are accepting and adopting; and
2. where they reach a different conclusion from the planning officer, provide detailed reasons for the departure.

Now there is some clear guidance from the courts, it would be a good time for planning authorities and LRBs to review their practice and procedures to ensure they are complying with the approach endorsed by the Inner House.

co-author Grace Smith.