Bova & Anor v The Highland Council & Anor [2013] ScotCS CSIH_41 (03 May 2013)

Bova & Anor v The Highland Council & Anor [2013] ScotCS CSIH_41 (03 May 2013)

The planning authority did not fail to have regard to any material consideration regarding groundwater flooding or the possible presence of an aquifer, as these matters were addressed in expert reports and considered by the authority. The change in national planning policy from 'erring on the side of caution' to 'precautionary approach' was not a substantive change and did not amount to a new material consideration requiring reconsideration of the decision. The authority's decision was not vitiated by error of law or fact.

Citation
[2013] ScotCS CSIH_41
Parties
Petitioners and Reclaimers: Paul Bova and Carol Christie; Respondents: The Highland Council; Interested Party: BDW East Scotland Limited
Jurisdiction
Scotland
Judgment Date
03 May 2013
Procedural Posture
Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Refusal of Petition
Outcome
Appeal dismissed; petition refused.
Legal Topics
Judicial Review of Planning Decisions, Material Considerations in Planning, Flood Risk Assessment, Precautionary Principle in Planning Policy, Delay and Acquiescence in Judicial Review
Administrative Law Planning Law Environmental Law Judicial Review of Planning Decisions Material Considerations in Planning Flood Risk Assessment Precautionary Principle in Planning Policy Delay and Acquiescence in Judicial Review

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2
Sign in to unlock

Parties

Paul Bova and Carol Christie

Petitioners and Reclaimers

The Highland Council

Respondents

BDW East Scotland Limited

Interested Party

Procedural Posture

Judicial Review / Appeal (reclaiming Motion) From Lord Ordinary's Refusal of Petition

Legal Issues

  1. 1 Whether the planning authority failed to have regard to a material consideration (risk of groundwater flooding and aquifer presence) in granting planning permission
  2. 2 Whether a change in planning policy requiring a 'precautionary approach' to flood risk was a new material consideration to which the authority was bound to have regard before granting permission

Ratio Decidendi

The planning authority did not fail to have regard to any material consideration regarding groundwater flooding or the possible presence of an aquifer, as these matters were addressed in expert reports and considered by the authority. The change in national planning policy from 'erring on the side of caution' to 'precautionary approach' was not a substantive change and did not amount to a new material consideration requiring reconsideration of the decision. The authority's decision was not vitiated by error of law or fact.

Court Disposition

Appeal dismissed; petition refused.

Orders

  • Refusal of petition for judicial review
  • Upholding of Lord Ordinary's interlocutor repelling petitioners' plea-in-law and sustaining respondents' pleas