Brodies' research on legal challenges to planning decisions in Scotland over the past 10 years has shattered some myths in a groundbreaking new report by Neil Collar, Head of Planning at Brodies. This is a unique study into the use of judicial review in Scotland which, for the first time, reveals the number of planning decisions challenged in the Scottish Courts, who these legal challenges are being brought by and their success rate.
Judicial reviews have been a hot topic in recent months, following the announcement by David Cameron of measures to limit "this massive growth industry in Britain" and, in Scotland, the unsuccessful legal challenge to the Aberdeen Western Peripheral Route and threat of legal challenge by Donald Trump in relation to the Aberdeen Bay Windfarm Project.
The study explodes several myths, most notably:
- 'Judicial reviews are a growth industry.' For planning cases in Scotland they are not. The total has remained relatively stable over the past decade, averaging just over six a year, despite some 40,000 planning applications in Scotland each year.
- 'Judicial review is a NIMBY's charter.' It isn't. Only about half of cases are brought by objectors to planning decisions and many of these are brought by commercial interests.
- 'Judicial reviews have a high success rate.' Almost 75% of cases decided by judges were unsuccessful and only 17 planning decisions have been quashed by the Scottish courts over the past decade. In contrast, there is a 45-55% annual success rate in England and Wales (according to First Title Insurance PLC).
While the number of planning decisions that have been quashed may be low, there is no doubt that judicial review has significant implications, both for developers - who may face lengthy delays of up to three years while their cases are decided - and for decision makers, for whom the threat of legal challenge acts as a positive incentive to comply with planning law.