Judicial Review by David Millar and others against South Ayrshire Council (Court of Session)

Factual and Procedural Background

This judicial review concerns a dispute over the development of the grounds of Coodham House, a category 'A' listed building located in Symington, South Ayrshire. The petitioners are the heritable proprietors of Coodham House. In 2004, the respondent granted planning permission (the "2004 permission") for substantial residential development within the estate grounds. The permission was subject to multiple conditions, including several that had to be fulfilled prior to commencement of development.

Subsequent to the 2004 permission, a 2005 permission was granted for a different development scheme involving Coodham House itself. Development works were carried out between 2005 and 2009, resulting in the sale of residential units. Further permissions were granted between 2009 and 2011 for various developments within the estate grounds, some of which have been implemented.

In 2024, the respondent issued a letter to a developer stating that the 2004 permission remained extant based on commencement of works to Coodham House. The petitioners challenged this letter as constituting a decision by the respondent that was unlawful. The respondent denied that the letter was a justiciable decision and defended the legality of its position.

Legal Issues Presented

1. Whether the letter dated 9 February 2024 from the respondent to the developer constitutes a justiciable decision capable of judicial review.
2. Whether, assuming the letter is a decision, that decision was unlawful on grounds including unreasonableness, irrationality, error of fact or law, and failure to consider material considerations.
3. Whether the 2004 planning permission was lawfully commenced, considering the conditions precedent and the application of the Whitley principle.
4. Whether the 2004 planning permission remains capable of implementation given subsequent developments on the site.

Arguments of the Parties

Petitioners' Arguments

• The letter of 9 February 2024 constitutes a standalone administrative decision as to the extant status of the 2004 permission, separate from pre-application advice.
• The decision had immediate legal effect, impacting the petitioners' rights and property values, and could be relied upon by developers to commence construction.
• The 2004 permission was not lawfully commenced because the suspensive conditions required prior to commencement were not fulfilled, invoking the Whitley principle.
• The works carried out were more consistent with the 2005 permission, not the 2004 permission.
• The 2004 permission cannot be fully implemented due to physical alterations on the land arising from the 2011 permission, as supported by the Hillside Parks case.

Respondent's Arguments

• The letter dated 9 February 2024 is not a binding decision but a pre-application advice letter addressed to the developer, containing an explicit caveat disclaiming binding effect.
• The letter does not confer legal rights or legitimate expectations and is not addressed to the petitioners.
• The proper statutory procedure for determining the lawfulness of development is via a certificate of lawfulness under sections 150 and 151 of the Town and Country Planning (Scotland) Act 1997, which was not followed.
• The email dated 3 May 2024 is a separate communication responding to queries and should not be conflated with the letter dated 9 February 2024.
• On the merits, the threshold for commencement of development is low, and the respondent's view that the 2004 permission was extant was a matter of planning judgment and not irrational or unlawful.
• The Whitley principle should not be applied rigidly; some conditions may not go to the heart of the permission, and enforcement action is now time-barred.
• The letter does not address implementation, and the Hillside Parks case supports a flexible approach to departures from planning permissions in multi-unit developments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Elmford Ltd v City of Glasgow Council (No 2) 2001 SC 267	Non-formalistic approach to identifying a justiciable decision in planning law.	Court considered that isolating a letter from its context was inappropriate; the letter was not a binding decision.
Wightman v Secretary of State for Exiting the European Union 2019 SC 111	Judicial review principles and formalities in administrative decisions.	Referenced for caution against procedural formalism but distinguished on facts.
William Grant & Sons Distillers Limited v Moray Council 2018 SLT 525	Low threshold for commencement of development under planning law.	Supported the view that minimal works can suffice to commence development.
Whitley & Sons v Secretary of State for Wales and Clwyd County Council (1992) 64 P&CR 296	Principle that development in breach of conditions may not constitute lawful commencement.	Applied to assess whether conditions precedent were fulfilled before commencement.
Trump International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74	Interpretation of planning conditions by an objective reasonable reader.	Used to interpret conditions in the 2004 permission as conditions precedent.
Greyfort Properties Limited v Secretary of State for Communities and Local Government [2010] EWHC 3455 (Admin)	Application of Whitley principle and exceptions thereto.	Informed analysis of whether conditions go to the heart of the permission.
Hillside Parks Limited v Snowdonia National Park Authority [2022] 1 WLR 5077	Effect of physical alterations on the ability to implement planning permissions.	Considered in relation to whether the 2004 permission could still be implemented.
R (Reprotech Limited) v East Sussex County Council [2003] 1 WLR 348	Distinction between officer opinions and juridical decisions in planning.	Supported the view that the letter was not a juridical act and thus not a decision.
R (on the application of Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840 (Admin)	Judicial caution in applying Whitley principle rigidly; distinction between conditions precedent and those going to the heart of permission.	Guided the court's approach to assessing conditions precedent and planning judgment.
R (on the application of Hammerton) v London Underground Ltd [2002] EWHC 2307	Exception to Whitley principle where enforcement action is unlawful or impossible.	Supported the view that development immune from enforcement may constitute lawful commencement.
Tesco Stores v Dundee City Council [2012] UKSC 13	Scope of planning judgment and grounds for judicial review.	Confirmed that planning judgment is challengeable only on irrationality or error of law.
R (Mansell) v Tonbridge and Malling Borough Council [2017] EWCA Civ 1314	Judicial review as appropriate remedy in planning decisions.	Clarified the nature of judicial review in planning context relevant to this case.
R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020	Distinction between judicial review and appeal in planning matters.	Emphasized limits of judicial review in challenging planning decisions.
Re Finucane's Application for Judicial Review [2019] HRLR 7	Requirements for establishing legitimate expectations.	Used to reject claim of legitimate expectation based on the letter and email.

Court's Reasoning and Analysis

The court first addressed whether the letter dated 9 February 2024 constituted a justiciable decision. It found that the letter was addressed solely to the developer in the context of a pre-application enquiry and contained explicit disclaimers that it did not bind the respondent or affect future decisions. The court held that the statements concerning the 2004 permission were expressions of opinion or advice rather than a binding determination. The letter did not confer legal rights or legitimate expectations, nor did it revive or alter the status of the 2004 permission itself.

Regarding the petitioners' challenge on lawful commencement, the court acknowledged the Whitley principle, which requires conditions precedent to be fulfilled before lawful commencement. The court accepted that some conditions in the 2004 permission were conditions precedent but emphasized that the principle is a judicial creation to be applied with caution and not rigidly. The court found that it was a matter of planning judgment whether these conditions went to the heart of the permission. It noted exceptions where development in breach of conditions may still constitute commencement, especially where enforcement is now time-barred.

On the issue of implementation, the court noted that the letter did not address whether the 2004 permission could still be implemented. Drawing on the Hillside Parks case, the court recognized that minor departures from the original permission do not necessarily invalidate the permission's continuing authority, especially for large multi-unit developments. Determining materiality of departures is a planning judgment.

Overall, the court concluded that the letter was not a decision subject to judicial review. Even if it were, the respondent's views were not shown to be irrational or unlawful. The petitioners failed to demonstrate error of law or that the respondent's planning judgment was perverse.

Holding and Implications

The court REFUSED THE PETITION, concluding that the letter dated 9 February 2024 did not constitute a justiciable decision and that, even if it did, the respondent's position was lawful and rational.

The direct effect is that the petitioners' challenge to the respondent's letter fails, and the respondent's view that the 2004 permission remains extant stands unchallenged in these proceedings. No new precedent was established, and the decision reaffirms the importance of statutory procedures for certificates of lawfulness and the exercise of planning judgment in assessing commencement and implementation of planning permissions.