Axiom succeeds for respondents in judicial review

Dan Byrne KC

The case concerned the development of a category A listed property in South Ayrshire: Coodham House. By the end of the 20th century, the property had fallen into a state of disrepair. In March 2004, permission was – granted subject to 26 conditions – for the property to be converted into 12 residential units. Additionally, permission was granted for 41 houses to be constructed within the estate and grounds of the house.

In 2022, the estate and grounds of Coodham House were marketed as a development opportunity. A potential developer submitted a pre-application enquiry to the respondent local authority in 2023 and, in February 2024, an officer of the local authority advised the developer by letter that in their view the 2004 planning permission remained extant.

The petitioners, the heritable proprietors of Coodham House, challenged the contents of the respondent’s letter to the developer. The petitioners first argued that the February 2024 letter constituted a decision and was thus susceptible to judicial review. Secondly, the petitioners challenged the decision on the basis that it was unreasonable, irrational, based on errors of fact and law, and that the respondent had failed to consider material considerations when issuing its decision. The respondent’s position was that the February 2024 letter was not justiciable and that the petition should be refused.

Lord Richardson refused the petition, holding that the February 2024 letter was not susceptible to judicial review. The statements made by the respondent in the letter dated February 2024 could not be relied upon by the petitioners, did not affect their legal rights, and did not give rise to legitimate expectations. Additionally, the letter was caveated by an express disclaimer that it did not constitute a decision, but rather a reflection of the respondent’s view at the pre-application stage. The letter was not intended to provide an extra-statutory process for certifying development as to hold otherwise would run counter to the procedure under the Town and Country Planning (Scotland) Act 1997.

Read the judgment here.