When the Government, Councils and public bodies are making decisions about things that affect our lives they are often bound by procedures for making such decisions. These procedures exist to prevent arbitrary decisions by people in power and to safeguard democratic decision-making.
The planning system has a large body of complex procedure to which Councils are bound, for example, they must consult on planning applications and take comments into account. Much of this procedure is in legislation and a large body of case law has helped to interpret this law (although new legislation continues to be published).
Where the proper procedure is not followed by public bodies there is a Right of Appeal. Under the planning system people can appeal to two bodies.
The Scottish Public Services Ombudsman can and does consider administrative defects of planning authorities, this is important however often not actually what people want to look at. The Ombudsman receives many ‘deflected’ appeals, in other words complaints about the way something was administered, which end up being phrased in a certain way because a person cannot appeal on the merits of the decision, and so the Ombudsman end up looking at shadow issues rather than substantive ones.
The second alternative route of Judicial Review is available, however this is costly, intimidating and, like the Ombudsman, Judicial Reviews look only at whether proper procedure was followed and not the merits of a case. In order to take a Judicial Review you require both the finance to pay for legal representation plus any potential damages should you loose the case, and for the Court to hear your case you must have ‘standing’ i.e. a real and legitimate interest in the case. ‘Standing’ has traditionally been interpreted as having a personal financial interest in the case but a recent action by Friends of the Earth Scotland has finally opened up this narrow interpretation allowing the potential for cases to be taken in the public interest in Scotland, in other words by NGOs and people with a non-financial interest in the outcome. This is a big step forward but the costs of taking a case to court remain a very large impediment to accessing the courts for real and legitimate reasons (see below for more).
At Planning Democracy we recently gave a presentation to the Scottish Committee of the Administrative Justice & Tribunals Council (who review the administrative justice system in Scotland) as part of their research into areas of law where the Right of Appeal is inaccessible or inappropriate. Our experience of supporting Marco McGinty in his judicial review of the National Planning Framework has given us insight into the financial, legal and social difficulties of taking a Judicial Review in Scotland.
We advocated for a cap on legal costs for cases taken in the public interest, for the rules on who can and can’t take a case to court to be widened when the case is in the public interest and asked the AJTC to look in more depth at the adequacy of the Right of Appeal in the Scottish planning system suggesting there is a need to consider alternatives to Judicial Review such as environmental/planning tribunals or environmental courts where planning cases could be heard.
We have also put these arguments forward to the Government as part of its consultation on Protective Expenses Orders and will be meeting with them later this month. Read our submission arguing that finance is not the only thing that stops people taking Judicial Review – social norms, complex relationships within a community, livelihoods and threats to sue all play their part too.