Bancon Developments Ltd v The Scottish Ministers [2011] ScotCS CSOH_137 (17 August 2011)

Bancon Developments Ltd v The Scottish Ministers [2011] ScotCS CSOH_137 (17 August 2011)

The Reporter breached the principles of natural justice and Regulation 12 of the 2008 Regulations by deciding the appeal on the basis of a new issue (the comparative adequacy of pedestrian links, including a south-eastern link not part of the application) and by relying on new material evidence from the site visit without affording the appellants or the planning authority an opportunity to make representations. This deprived the appellants of a fair opportunity to address the determinative issue and resulted in substantial prejudice.

Citation
[2011] ScotCS CSOH_137
Parties
Appellant: Bancon Developments Limited; Respondent: Scottish Ministers
Jurisdiction
Scotland
Judgment Date
17 August 2011
Procedural Posture
Planning Appeal (statutory Review) / Court of Session (outer House) Opinion on Appeal
Outcome
Appeal allowed; Reporter's decision quashed
Legal Topics
Natural Justice, Procedural Fairness, Planning Permission Appeals, Statutory Interpretation, Material Considerations in Planning, Site Visit Evidence
Administrative Law Planning Law Judicial Review Natural Justice Procedural Fairness Planning Permission Appeals Statutory Interpretation Material Considerations in Planning +1 more

Case Brief

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Parties

Bancon Developments Limited

Appellant

Scottish Ministers

Respondent

Procedural Posture

Planning Appeal (statutory Review) / Court of Session (outer House) Opinion on Appeal

Legal Issues

  1. 1 Whether the Reporter breached natural justice by deciding the appeal on a new issue without giving parties an opportunity to make representations
  2. 2 Whether the Reporter breached Regulation 12 of the Town and Country Planning (Appeals) (Scotland) Regulations 2008 by taking into account new evidence from a site visit without affording parties an opportunity to comment
  3. 3 Whether the Reporter made a material error of fact in his assessment of pedestrian access routes

Ratio Decidendi

The Reporter breached the principles of natural justice and Regulation 12 of the 2008 Regulations by deciding the appeal on the basis of a new issue (the comparative adequacy of pedestrian links, including a south-eastern link not part of the application) and by relying on new material evidence from the site visit without affording the appellants or the planning authority an opportunity to make representations. This deprived the appellants of a fair opportunity to address the determinative issue and resulted in substantial prejudice.

Court Disposition

Appeal allowed; Reporter's decision quashed

Orders

  • The decision of the Reporter dated 6 January 2010 is quashed.
  • The matter is remitted for reconsideration in accordance with the law.