PlanningBlog – Brodies LLP

Penny Uprichard, a resident of St Andrews, is becoming a frequent litigant in planning cases. Her recent legal challenge to the Fife Structure Plan is her third.

It only took Lord Uist just 5 paragraphs to dismiss her case (here), but those paragraphs are significant for future legal challenges by objectors.

Uprichard’s objection to the structure plan proposed modifications was rejected by the Scottish Ministers. She claimed the reason given was inadequate. That reason consisted of one sentence.

Lord Uist held that the reason should not be viewed in isolation. It must be considered in context and against the background of the statutory process for the making of the structure plan. The Council had already provided a reasoned justification in the plan. The Ministers’ reason therefore met the legal requirement to be adequate, proper and intelligible.

One can sympathise with the Scottish Ministers who had to give reasons to 187 objections. However, Lord Uist’s decision introduces an unfortunate element of uncertainty, since we can no longer rely on the reason given, but have to interpret it in context. Surely that undermines its intelligibility?

Unfortunately for objectors, Lord Uist didn’t stop there. Even if the reason was deficient, he did not consider Uprichard’s interests “to have been substantially prejudiced”.  In his view, the fact that she, in her capacity as a resident of St Andrews, was displeased with the reason given does not mean that she is prejudiced or that her property has been affected.

Reading between the lines, Uprichard’s prejudice case was thin. There is a real difficulty here. The strategic nature of structure plans, and their successors the strategic development plans, will make it difficult for objectors to show prejudice. And if they can’t challenge the strategy in the courts, there is a danger that the local plan process is “a done deal”, since the law requires the local plan to comply with the structure plan (and the local development plan to comply with the strategic development plan). Yes, the strategy is not site specific, but often it refers to a very specific area, so it is fairly clear which sites the strategy envisages being allocated for development.

And, finally, Lord Uist said that he wouldn’t have quashed the structure plan anyway because of the disruption to the development plan which would have ensued. There would be no up to date development plan for St Andrews for some time, which would be a disproportionate consequence of any prejudice suffered by the applicant. One suspects the judge felt that Uprichard’s planning case had been given a fair crack of the whip, and that it would be disproportionate to quash the plan just because the reasons for rejecting her objection were poorly expressed.

So – a firm thumbs down for Uprichard, and difficult hurdles for objectors to clear in the future when challenging a structure or strategic development plan in the courts.