Introduction

The case of (FIRST) GRAHAM'S THE FAMILY DAIRY AND OTHERS IN THE PETITION OF ELAN HOMES SCOTLAND LTD FOR JUDICIAL REVIEW ([2021] CSOH 74) adjudicated by the Scottish Court of Session on July 21, 2021, underscores pivotal developments in Scottish planning law and procedural fairness. The petitioners, including Graham's The Family Dairy (Property) Limited, Mactaggart and Mickel Homes Limited, and Elan Homes Scotland Limited, sought judicial review against the Scottish Ministers' decisions to amend the Scottish Planning Policy (SPP) following a consultation process. Their challenge primarily centered around the alleged unlawfulness of the consultation process, asserting that it was procedurally unfair and misleading, thereby influencing the legitimacy of the policy amendments.

Summary of the Judgment

The court examined whether the Scottish Ministers conducted the consultation process lawfully when amending the Scottish Planning Policy- Finalised Amendments-December 2020 ("the Finalised Amendments") and Publishing Planning Advice Note 1/2020 ("PAN 1/2020"). The petitioners presented seven grounds of challenge, primarily alleging that the consultation was unfair due to insufficient evidence and misleading assertions about the impact of the proposed changes.

Lord Clark, delivering the judgment, found in favor of the petitioners on Ground 1, determining that the consultation process was indeed so unfair as to be unlawful. The court emphasized that consultees were not provided with adequate information or evidence to make informed responses, particularly regarding the implications of the Finalised Amendments and PAN 1/2020 on planning decisions. Consequently, the court granted a decree of reduction of these policy amendments.

On the remaining grounds (Grounds 2-7), which involved arguments of irrationality in various aspects of the Scottish Ministers' decision-making process, the court concluded that these did not meet the stringent criteria required to be deemed irrational under the Wednesbury standard. Thus, those challenges were dismissed.

Analysis

Precedents Cited

The judgment extensively referenced key precedents to delineate the boundaries of lawful consultation and the standards of rationality in administrative decision-making:

• R (Moseley) v Haringey LBC [2014] UKSC 56 - Established the importance of fairness and transparency in consultation processes.
• R (Inspector of Taxes) v Board of Inland Revenue [1990] 1 AC 324 - Defined the Wednesbury standard for irrationality.
• R (West Berkshire DC) v Secretary of State for Communities and Local Government [2016] 1 WLR 3923 - Clarified the principles of fairness in administrative proceedings.
• Gladman Developments Ltd v The Scottish Ministers [2020] CSIH 28 - Served as a critical reference regarding the interpretation of SPP (2014).

These precedents collectively reinforced the necessity for public bodies to conduct consultations that are transparent, evidence-based, and provide sufficient information for consultees to form informed opinions.

Legal Reasoning

The crux of the court's legal reasoning rested on the principles of procedural fairness and the prohibition of unlawful consultations:

• Material Fairness: The court evaluated whether the consultation process was materially unfair to the petitioners by assessing if they were denied the opportunity to provide informed responses.
• Evidence and Analysis: A significant factor was the absence of substantial evidence or analysis in the consultation documents, leading to the assertion by the Scottish Ministers that the changes would have no impact on planning decisions, which the court found to be misleading.
• Reasonable Reader Standard: The judgment emphasized that the consultation documents must be clear and comprehensive from the perspective of a reasonable reader, ensuring that stakeholders can engage effectively.
• Interim Nature of Amendments: While the amendments were presented as interim measures pending the adoption of National Planning Framework 4 (NPF4), the court scrutinized the justification and execution of these changes.

Ultimately, the court determined that the consultation process failed to meet the required standards of fairness and transparency, rendering it unlawful.

Impact

This judgment has far-reaching implications for Scottish planning law and administrative procedures:

• Heightened Scrutiny of Consultations: Public bodies must ensure that consultation processes are robust, evidence-based, and transparent, providing stakeholders with all necessary information to form informed opinions.
• Reaffirmation of Procedural Fairness: The decision underscores the judiciary's role in upholding procedural fairness, ensuring that policy amendments do not bypass essential consultation standards.
• Influence on Future Policy Amendments: Scottish Ministers and other public authorities will need to meticulously design and execute consultation processes to avoid similar legal challenges.
• Clarification of Wednesbury Standard: The judgment reinforces the rigorous application of the Wednesbury standard for irrationality, setting a higher bar for challenging administrative decisions.

In essence, this judgment acts as a cautionary tale for public bodies, emphasizing the imperative of conducting thorough and transparent consultations when amending policies that significantly impact stakeholders.

Complex Concepts Simplified

Judicial Review

Judicial review is a legal process through which courts examine the actions or decisions of public bodies to ensure they comply with the law. It primarily assesses whether decisions are lawful, rational, and procedurally fair.

Wednesbury Unreasonableness

Originating from the case Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223, this term refers to a standard of review where a decision is so unreasonable that no reasonable authority could have made it. It's a threshold test for irrationality in administrative law.

Procedural Fairness

Procedural fairness ensures that decision-making processes are fair and unbiased. It typically includes the right to be heard, the right to know the case against you, and the right to respond.

Material Consideration

In planning law, a material consideration is a factor that a decision-maker must consider when making a decision. It can be either in favor or against a proposal, influencing the final decision.

Development Plan

A development plan outlines local authorities’ policies for land use and development within their jurisdiction. It serves as a framework for making planning decisions to ensure sustainable development.

Conclusion

The judgment in (FIRST) GRAHAM'S THE FAMILY DAIRY AND OTHERS IN THE PETITION OF ELAN HOMES SCOTLAND LTD FOR JUDICIAL REVIEW serves as a landmark decision reinforcing the necessity for lawful and fair consultation processes in Scottish planning policy amendments. By finding the consultation process unlawful due to its unfairness and misleading assertions, the court has set a precedent that emphasizes transparency, evidence-based policymaking, and the protection of stakeholders' rights in administrative procedures.

Public bodies, particularly those involved in policy formulation and amendments, must heed this judgment by ensuring that all consultations are comprehensive, transparent, and provide sufficient information for meaningful stakeholder engagement. Failure to do so not only risks legal challenges but also undermines the foundational principles of democratic governance and sustainable development.

Moving forward, this decision will undoubtedly influence how Scottish Ministers and other public authorities conduct policy consultations, ensuring alignment with judicial expectations of fairness and rationality. It reinforces the judiciary's role as a guardian of administrative propriety, ensuring that public bodies remain accountable and operate within the bounds of the law.