Petition of Dr Morag Hannan for Judicial Review (Court of Session)

Factual and Procedural Background

On 15 April 2025 the Defendant's planning committee granted conditional planning permission for a 40 MW battery energy storage facility with associated infrastructure. The Plaintiff was a notifiable neighbour who objected. The Plaintiff sought judicial review seeking reduction of the decision on the ground that a member of the committee, Councillor A, did not attend the meeting and did not vote. It was averred that this non‑participation resulted from telephone advice given to Councillor A by the council's Monitoring Officer, Monitoring Officer, following a complaint from another councillor, Councillor B, alleging Councillor A had used the word "eyesore" at a community council meeting. Councillor A denies using that word in relation to the second application.

Background events in the record include an earlier 2024 planning application by the same promoters that was refused and dismissed on appeal in May 2025; the second application contained modifications and attracted many objections.

The opinion summarises the regulatory framework: the Ethical Standards in Public Life etc (Scotland) Act 2000 requires a Councillors' Code (2021 version cited), enforcement by the Commissioner for Ethical Standards in Public Life in Scotland and the Standards Commission for Scotland, and available sanctions including censure, suspension and disqualification.

Councillor A's affidavit describes two calls from Monitoring Officer on the morning of the committee meeting: the first informing Councillor A of the complaint; the second reporting that someone had heard a tape and that Councillor A had used the word "eyesore", that Councillor A had spoken strongly and might be said to have a predetermined position, and that a complaint to the Standards Commission might lead to penalties (warning to disqualification) and that "the bar is very low". Councillor A says he then decided not to attend the meeting, after also consulting other councillors; he says he was not told about the option of seeking postponement.

Legal Issues Presented

1. Whether the Defendant's decision to grant planning permission was vitiated by a procedural irregularity because Councillor A did not participate as a result of advice from the Monitoring Officer.
2. Whether the Monitoring Officer's communications amounted to misdirection, a breach of natural justice, a threat of disciplinary sanction, partiality, or otherwise wrongfully prevented participation.
3. Whether the Monitoring Officer had a duty to advise Councillor A of available options (for example, seeking an adjournment/postponement), such that omission to do so rendered the advice incomplete and unlawful.

Arguments of the Parties

Plaintiff's Arguments

• The Monitoring Officer's advice was incomplete and amounted to misdirection and a failure to meet the standard of natural justice.
• Councillor A was effectively threatened with professional disciplinary action and sanctions and was wrongfully prevented from participating.
• The Monitoring Officer failed to advise Councillor A of his options (for example, seeking postponement), which caused Councillor A to withdraw.
• Authorities cited in support included Kanda v Government of Malaya [1962] AC 322, R (Mansell) v Tonbridge and Malling Borough Council [2019] PTSR 1452, R (Berky) v Newport City Council [2012] 2 CMLR 44, R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83, Hartlands (NI) Ltd's Application for Judicial Review [2021] NIQB 94, and X, Petitioner 2022 SLT 157.

Defendant's Arguments

• The advice given by the Monitoring Officer was correct and did not preclude Councillor A from participating; Councillor A exercised his own judgment in deciding not to attend.
• There was no misdirection, no breach of natural justice and no duty on the Monitoring Officer to advise of options such as seeking postponement.
• The most comparable authority was Neath Port Talbot County Borough Council v Ware [2007] EWCA Civ 1359, where councillors were informed of difficulties but left to decide for themselves; other authorities cited included R (on the application of The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets and another [2025] UKSC 11 [2025] PTSR 700.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kanda v Government of Malaya [1962] AC 322	Fair hearing principle: a person must know the substance of the case against them.	Court held principle not applicable because no allegation against Councillor A was determined and no requirement to be told particulars arose at the stage in question.
R (Mansell) v Tonbridge and Malling Borough Council [2019] PTSR 1452	Errors in officers' reports vitiate decisions only if misdirection is material.	Not applicable here: no challenge to an officer's report and the Plaintiff conceded advice was correct.
R (Berky) v Newport City Council [2012] 2 CMLR 44	Cited as authority relevant to procedural fairness and decision‑making (as cited by Plaintiff).	Referred to among authorities supportive of Plaintiff's position; court did not treat it as determinative on the facts.
R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83	Appearance of bias/predetermination and the realities of elected decision‑making.	Court considered it addressed different issues (closed mind/predetermination) and was not directly relevant to whether non‑participation following advice vitiated the decision.
Hartlands (NI) Ltd's Application for Judicial Review [2021] NIQB 94	Contrast with Neath Port Talbot where there was held to have been pressure in Hartlands vitiating the decision.	Court noted Hartlands differed because there was pressure in that case; by contrast, here councillor was left to decide and no such pressure found.
X, Petitioner 2022 SLT 157	Natural justice issues where an allegation is determined against an individual.	Court held X inapplicable because no allegation was determined and no adjudicative process against Councillor A had occurred.
Neath Port Talbot County Borough Council v Ware [2007] EWCA Civ 1359	Where officers give correct advice and leave members to make their own decision, non‑attendance does not vitiate planning consent.	Court regarded this as most analogous and followed its reasoning: advice warned of difficulties but did not direct or disqualify; councillors exercised their own judgment.
R (on the application of The Spitalfields Historic Building Trust) v London Borough of Tower Hamlets and another [2025] UKSC 11 [2025] PTSR 700	Cited by Defendant among authorities on procedural/decision‑making standards.	Referred to by Defendant; court did not treat it as altering the conclusion from Neath Port Talbot comparison.
R v Flintshire County Council, ex parte Armstrong‑Braun [2001] EWCA Civ 345; [2001] 3 LGR 34	Change to standing orders that goes to the heart of democratic process can be unlawful.	Discussed in distinguishing cases where exclusion is imposed (Armstrong‑Braun) from cases where members choose not to participate.
R v Amber Valley DC Ex p Jackson [1985] 1 WLR 298	Principles on predisposition and when predisposition disqualifies participation.	Quoted in relation to R (Lewis) to explain limits of common‑law predetermination doctrine versus higher standards in the Councillors' Code.
Allanvale Homes (Prestwick) Limited, Petitioners [2026] CSOH 25	Recent consideration of errors in reports and material misdirection.	Cited by the court to confirm approach to Mansell‑type arguments; not directly applicable here.

Court's Reasoning and Analysis

Judge Lake began with the closest authority, Neath Port Talbot, and concluded the present facts are substantially similar: the Monitoring Officer informed Councillor A of a complaint and potential consequences but did not tell him he was disqualified or that he could not participate; Councillor A was left to exercise his own judgment. The Court emphasised that in Neath Port Talbot the absence of any direction or pressure and the correctness of the advice were decisive.

The Court contrasted Neath Port Talbot with Hartlands, where judicial review succeeded because there was pressure that effectively removed the councillors' autonomy. Armstrong‑Braun and Amber Valley were treated as addressing distinct circumstances where rules or changes excluded participation without the member's choice.

The Court noted the Councillors' Code (paras 7.4–7.5) imposes high standards (including not expressing views or formulating conclusions before the decision meeting), higher than common‑law predetermination principles addressed in R (Lewis) and related cases; but the present petition did not allege a breach of the Code that had been adjudicated, and the common‑law fairness principle in Kanda was inapplicable because no adjudication of the allegation occurred.

The Court accepted the parties' concession that the advice given was not wrong. The Plaintiff's complaint that the advice was incomplete (specifically that Councillor A was not told he could seek an adjournment) was rejected: the Court found no authority imposing a duty on a monitoring officer to advise a councillor of procedural options and relied on Standards Commission guidance showing monitoring officers may advise but not that they must list options. Accordingly, the omission did not render the advice unlawful or incomplete.

Given that Councillor A made his own decision not to attend and vote, and that the Monitoring Officer did not preclude or direct him, the Court found no procedural irregularity, no misdirection of law and no breach of natural justice on the facts presented.

Holding and Implications

Holding: DISMISSED — the petition for reduction of the Defendant's planning decision is refused and the remedies sought are dismissed.

Implications: The direct consequence is that the planning permission granted on 15 April 2025 remains in force. The Court did not find it necessary to establish any new authority or expand duties of monitoring officers; no new precedent altering the principles in Neath Port Talbot or the operation of the Councillors' Code was laid down.