Agent entitled to challenge planning decision as an ‘aggrieved person’, judge rules in dismissing preliminary objection to appeal

Lord Drummond Young held that the appellant Bryan Taylor, who traded as Grampian Soil Surveys, had an “interest” to appeal an enforcement notice served on his clients John Ross, the proprietor of a quarry, and PTM Plant Ltd, a contractor in relation to works at the quarry, dismissing a preliminary objection by the Scottish Ministers to the competency of the appeal.

The judge also cautioned against the “excessive use of preliminary objections” by public bodies, on the basis of standing or other factors, to appeals by private individuals in cases that may have an “important bearing” on public law.

The court heard that Mr Taylor had been appointed to give advice about the planning aspects of proposed works involving the extraction of minerals from the Haddo Quarry in Tarves, Aberdeenshire and had been in correspondence with Aberdeenshire Council after the local planning authority alleged that there had been unauthorised extraction and exploration of minerals from the site.

Mr Taylor’s position was that the activities carried out did not require specific planning permission, or that the work fell within the expression “permitted development”, but the council served an enforcement notice.

An appeal to a reporter appointed by the Scottish Ministers was dismissed and Mr Taylor appealed to the Court of Session, on the grounds that, inter alia, the reporter failed to identify the principal controversial issue in the appeal and her decision was in “direct conflict” with the Town and Country Planning (General Permitted Development) (Scotland) Order 2011.

The Scottish Ministers objected to the competency of the appeal, arguing that as Mr Taylor had acted as agent of Mr Ross and PTM Plant in the appeal to the reporter and did not participate in the proceedings for his “personal interest”, he did not qualify as a “person aggrieved” in terms of section 29(1) of the Town and Country Planning (Scotland) Act 1997, which was required in order to challenge the decision.

Refusing the note of objection to the appeal, the judge held that Mr Taylor had a “sufficiently arguable case” that he was a “person aggrieved”.

The UK Supreme Court decision in Walton v Scottish Ministers 2013 SC (UKSC) 67 suggested that that expression should be given a “wide meaning”, and that there was “no need for any direct pecuniary interest” to be an “aggrieved person” for the purpose of challenging a planning decision.

In a written opinion, Lord Drummond Young said: “It is enough to have a bona fide interest in the outcome of the decision, whether through indirect effects… or through an active interest in the environment, for example by taking part in local environmental organisations. Furthermore, Walton emphasises the importance of the rule of law in public law decisions. It is one of a number of recent cases (including the recent decision in Wightman v Secretary of State for Exiting the European Union, [2018] CSIH 62) that place stress on the proposition that government must in a civilised society be conducted in accordance with the law, and a major function of public law remedies is to achieve that result. Procedural niceties should not stand in the way of due observance of the rule of law, and enforcing the rule of law is a vital function of the courts.”

The court noted that Mr Taylor had been involved in the preceding planning procedures that resulted in the enforcement notice and stop notice served by Aberdeenshire Council, as an agent for the proprietor of Haddo Quarry and the company that was carrying out operations there.

His status as an agent tended to demonstrate that he had a “pecuniary interest” in the outcome of the planning processes, which would give him “an interest to sue” in the traditional private law sense of that expression.

In addition, he submitted that his planning consultancy work was dependent on his being able to express reasonably accurate opinions on the application of the law to particular cases. That depended on the proper application of the rules of planning law, which gave him a “specific professional interest” to ensure that planning procedures were conducted in accordance with the law.

“In my opinion,” Lord Drummond Young continued, “the foregoing factors give the appellant a clear interest to present this appeal, at least for the purposes of the note of objection lodged by Scottish ministers. As an agent involved in the planning procedures, he may well have a financial interest in the outcome of the appeal. As someone involved actively in planning processes, he cannot be considered a mere busybody; he is rather a person with a proper interest in ensuring that the rules of planning law are properly applied. Furthermore his consultancy work gives him a clear interest in ensuring that the rules of planning law are properly defined. All of these are matters that may be raised in the present case.”

The judge concluded: “I should observe that it has become commonplace for public bodies, whether the Scottish Government or local authorities, to raise preliminary objections at an early stage to appeals to the Court of Session by private individuals on the basis of standing or other factors. I do not doubt that in some cases such a course is entirely justified. Nevertheless, it is important that excessive use of preliminary objections should not be used to prevent the court from hearing substantive argument in cases that may have an important bearing on questions of public law, questions relating both to what the law is and to how it should be applied in a particular case. I would reiterate the renewed emphasis on the importance of the rule of law in public law decisions, and the fundamental principle that all forms of government, by any public body, must be conducted in accordance with the law. For that reason I would caution against the excessive use of preliminary objections to cut down appellate litigation.”