Taking forward key issues in Scottish planning at this year’s SPEL conference

On 19th September 2019, we welcomed speakers and delegates to Edinburgh for the 29th Scottish Planning and Environmental Law Conference.

Before we began, the conference was invited to pause to remember and reflect on the life and achievements of Robert (Roy) Martin QC, who sadly passed away earlier this year. Roy was a long-time supporter and friend to the SPEL conference and a great addition to our speaker line up on many occasions. Everyone connected with SPEL would like to extend our condolences to Roy’s family and his colleagues at Terra Firma Chambers.

The conference brought together planners, planning lawyers, researchers and others who work in the field of planning, housing, development and infrastructure in Scotland for a day of discussion and debate around some of the key issues facing Scottish planning today and in the future.

Set to the backdrop of the most recent Scottish planning bill, the day focused broadly on two themes: the approach to housing, land value and infrastructure delivery;  and the impact of the community empowerment agenda. As in previous years, themed discussion topics were supplemented by the always well-received case law updates from conference sponsors and planning and environmental law specialists Terra Firma Chambers.

The day began with some brief reflection from our keynote speaker, Keith Winter, Executive Director, Enterprise and Environment, Fife Council. Keith considered his years in the profession, and the great steps planning has taken from its earlier years. He also posed some interesting questions for delegates and other speakers alike about the potential for the future of planning, discussing “positive planning”; placemaking; the challenges of needing to meet both local and national level expectations and meeting the challenges that face the next generation of planners – such as climate change – head-on.

Photo Copyright Rebecca Jackson

Housing, infrastructure and land values are all key topics for planners, and we spent the mid-morning session discussing all three. In the day’s longest session, panellists grappled with big topics for planning including whether the delivery of housing and infrastructure is becoming any easier; if more housing should (or could) be allocated to housing; how infrastructure will be funded in the future and whether we should be paying more attention to delayed sites which have already been granted approval.

Panellists brought a wealth of experience and perspectives to the discussion, with contributions from Taylor Wimpey, Homes for Scotland, Scottish Futures Trust, Lichfields, Renfrewshire Council and the Scottish Land Commission. The wide-ranging discussions on the supply and allocation of land for development, the implication of development for infrastructure and how multiple partners – not just planners – need to work together in order to create wonderful places where communities can live and work.

Photo copyright Rebecca Jackson

The afternoon session was dominated by discussions of community empowerment in planning and what opportunities and challenges the community empowerment agenda in Scotland could bring for the profession. A panel discussion which brought a refreshing range of perspectives was well received by an audience of delegates who were eager to ask questions and respond to comments from the panel, which included Nick Wright, from Nick Wright Planning; Pippa Robertson, director of Aurora Planning; Dr Calum MacLeod, Policy Director from Community Land Scotland and Antony McGuiness, Forward Planning team leader from West Dunbartonshire Council.

Panellists grappled with the challenges of aligning local place plans, local outcome improvement plans and local development plans; how community-led action can help address inequality and improve outcomes at a local level for communities and how integrating community and spatial planning is working in practice at the moment. The discussions proved to be one of the most successful of the day, with many delegates commenting on the value of the discussions to their own professional work.

Photo copyright Rebecca Jackson

The final session of the day explored the implications of the new planning act and its potential for delivering strategies which put place at their heart and enhancing the delivery of sustainable development projects across Scotland. Panel members included Stefano Smith, Director of Stefano Smith Planning and former Convenor of RTPI Scotland, Jacqueline Cook, Head of Planning at Davidson Chalmers Stewart LLP and Pam Ewen, Chief Officer of Planning at Fife Council and the Junior Convenor of Heads of Planning Scotland.

The conference provided an opportunity for reflection about the future of planning in Scotland and how practitioners from many different professions – not just planning and planning law – will have to come together to ensure that opportunities are seized upon.

And while it was widely acknowledged that the current model is far from perfect, and more exploration is needed to understand the potential and the application of the new planning legislation which has been introduced in recent years, it’s clear that there is willingness among the profession to learn lessons and to apply knowledge and determination to the current planning landscape to promote and develop planning in Scotland in the years to come so it can fully deliver for Scotland’s communities.

We would like to thank our speakers, those who attended and our sponsors, and hope to see you all next year!

If you enjoyed this article you may also like to read:

Follow us on Twitter to find out what topics have been interesting our research officers, or search #SPEL2019 for more insight into the conference day. Delegates can get in touch for copies of presentation slides where available.

We publish Scottish Planning and Environmental Law Journal every two months. More information on the journal and how to subscribe is available here.

Scottish Planning and Environmental Law conference is a ‘huge success’

SPEL Conference 2018 banner

Last week, we welcomed delegates and speakers to the 2018 Scottish Planning and Environmental Law (SPEL) conference in Edinburgh, sponsored by Terra Firma Chambers.

Delegates and speakers came from organisations across Scotland to discuss and debate the current state and future opportunities for planning and environmental law in Scotland.

Should we just scrap planning altogether?

The conference was kicked off in typically thought provoking style by Greg Lloyd, Professor Emeritus at Ulster University, and visiting professor at Wageningen University in the Netherlands. Professor Lloyd delivered this year’s keynote and took the opportunity to challenge delegates and other speakers to consider what might happen if the current planning system were to be abolished altogether, to clear the way for a new and more fit-for-purpose planning system.

The creation of a new way of planning has, Professor Lloyd argued, the potential to better align community needs and other areas of policy like land and taxation, as well as creating opportunities for a more functional system, not as bogged down in process, where communities can come together to help make decisions about planning in their local area.

This “utopian vision of the future of planning” could potentially allow planning to ‘catch up’ with other services given that currently it is a 1950s model which has been shaped and adapted to allow us to “get by” rather than being reformed to suit new and changing planning needs. This new way, he argued, could be achieved if we are bold enough to take the leap away from the constraints and barriers presented by the “old” system.

Community empowerment and community right to buy: what are the implications for planning law?

Mark Lazarowicz and Pippa Robertson from Terra Firma Chambers and Aurora Planning respectively, navigated delegates through the complex waters of community right-to-buy, with Mark setting the scene and outlining some of the key elements to legislation and policy which have helped to shape community empowerment, including discussions around “relevant authorities”; “subjects of transfer”; and the “activation and implementation of community right-to-buy”. Pippa followed this with a discussion around community empowerment in relation to right-to-buy, and how this can be used to bring land back into active use.

The Planning Bill and funding infrastructure

Archie Rintoul, former chief valuer in Scotland, gave what many found to be a frank and insightful discussion of the issues around infrastructure development. Continuing on a similar theme after lunch, Russell Henderson from RPS explored the role of transport policy, and in particular sustainable transport. In both sessions there was further discussion of the importance of facilitating and accommodating new infrastructure, while recognising the growing responsibility to be aware of environmental factors, in part through the development of sustainable development measures for transport.

Following Russell, Laura Tainsh from Davidson Chalmers outlined the basis for, and the potential implications of, the Landfill Tax Ban, including an exploration of what the Bill may mean for those who work within the waste sector, and the potentially significant environmental impacts that the landfill ban may have when it is introduced in 2021.

The conference also included timely discussion of the progress of the Planning Bill and case law updates from Terra Firma, informing delegates of the latest developments in recent key cases.

Planning’s role in promoting inclusive economic growth

The conference was closed by RSA Scotland’s Lesley Martin who discussed how planning can help to promote inclusive economic growth. She questioned how the implementation and translation of the planning bill into practice will impact on inclusive growth in towns and cities.

Economic growth within places, she argued, can be driven through effective planning, and inclusive planning processes can in turn help to create inclusive economic growth. The planning bill is, she suggested, a symbol and an opportunity to provide an ambitious statement of the potential of wiser policy approaches. Planning is not merely about controlling or enabling development – it is an example of how the way we think and behave more generally impacts on inclusive growth in our towns and cities.

Summing up

This year’s SPEL conference sought to explore some of the wider implications of the Planning Bill for Scottish planning and the environment. By covering a range of topics the conference sought to highlight some of the key challenges and implications that the Bill may pose to the profession and to practice. The speakers were brought together to provide a range of perspectives and to help frame these issues for delegates and raise points for discussion and debate – and there was certainly plenty of that!

We would like to thank our speakers, those who attended and our sponsors, and hope to see you all next year!


We publish Scottish Planning and Environmental Law Journal every two months. More information on the journal and how to subscribe is available here.

We also blog regularly on planning and environmental issues … why not read one of our other recent articles:

October 2017 issue of SPEL Journal (Scottish Planning & Environmental Law) out now

As the recent Scottish Planning and Environmental Law conference showed, there are a number of external pressures affecting the planning system at the moment. These include the uncertainty around Brexit, the drive to achieve energy targets, and demographic changes impacting on housing supply and demand. Understanding how economic and social factors affect policy and decision-making is important, especially as we await the Planning Bill from the Scottish Government.

A key resource for planners and planning lawyers at this time is the Scottish Planning and Environmental Law Journal. Filled with commentary and analysis from leading professionals, lawyers and academics, the journal explores current developments and case law, and is published every two months.

October 2017 issue

The October 2017 issue has just been published and includes articles focusing on:

  • Community engagement with the planning system
  • Planning policy in relation to battlefields
  • Review of old mineral planning permissions

It discusses the Scottish Government’s programme for 17-18 and potential matters of interest within it of interest to planning and environmental lawyers. The latest statistics on planning authorities’ performance and the annual review of the Planning and Environmental Appeals Division of the Scottish Government are also examined.

Key court cases examined in the October 2017 edition include:

  • Trustees of the Grange Trust v City of Edinbrugh Council – Discussion of two pertinent issues in roads law
  • Wildland Ltd and The Welbeck Estates v the Scottish Ministers – Wind farm consent and impact on Wild Land Area

There is also discussion of differences in Scottish and English planning policy in relation to when presumption in favour of sustainable development applies.

A long tradition of supporting the professions

SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country.

Written by a wide range of subject experts, SPEL Journal includes accessible commentary on topical subjects and current issues; details of new legislation and significant court cases; expert comment on key planning appeal decisions, government circulars and guidance; as well as notes about ombudsman cases and book reviews.

SPEL Journal is read by decision makers in Scottish planning authorities, planning law practices, planning consultancies, architects, surveyors, civil engineers, environmental managers and developers across Scotland. It is also valued by many practitioners outside of Scotland who need to keep abreast of developments.


An annual subscription to SPEL Journal is £145. For further details or a sample copy, please contact Christine Eccleson on 0141 574 1905 or email christine.eccleson@Idoxgroup.com.

Getting to grips with planning law and with neighbourhood planning … New books in our library

Anyone who reads our blog will know that our research team care about supporting the use of evidence in practice, whether that’s in social services, in housing, or in planning. And one of the unique resources we have to help do this is our very own library!

Created over forty years, there are more than 60,000 books and reports in the library collection, as well as hundreds of different journal titles. Our members can borrow any book from our collection via a postal loan service – offered free as part of the organisational membership subscription to our Idox Information Service.

While quick reads – such as the briefings written by our own team – will always be popular given the pressures on people’s time, there’s still a place for real books. Many organisations use membership of our service as a way to support their staff’s CPD – whether that’s informal personal development or supplementary support for staff doing formal courses or degrees.

Supporting professional CPD

We’re regularly adding new books to our collection and two that caught my eye recently are in the field of planning. We’ve a lot of members who work in planning across the UK, including the RTPI (Royal Town Planning Institute) themselves, and as a profession, planners commit to maintain and develop their expertise through Continuing Professional Development.

Using our book loan service is one way that our members can access new publications and stay up-to-date with current thinking in their sector.

  • Localism and Neighbourhood Planning

Neighbourhood planning was one of the rights and powers introduced under the Localism Act of 2011, and was expected to offer ” a new way for communities to decide the future of the places where they live and work”. Six years on, a new book edited by Sue Bronhill and Quintin Bradley, reflects on whether neighbourhood planning has succeeded in increasing democratic engagement with the planning system.

In particular it examines how localism has played out in practice, especially given the legal and technical skills that are required in planning. As well as exploring the situation in England, the book also looks at how multi-level governance is being applied in the other parts of the UK and in countries such as Australia and France.

It raises interesting questions about whether neighbourhood planning has changed the institutional structure of planning and the power relations involved. It also asks whether an even more progressive form of localism within planning might emerge.

  • Essential Guide to Planning Law

With the planning systems and law devolved within the UK, a book which provides an overview of how practice differs in each nation is much needed. This book covers all the core areas, from development management, planning conditions, planning control and enforcement. It also addresses the planning arrangements in specialist areas such as minerals planning, waste planning and marine planning.

The book serves as a useful reminder of how and why planning decisions are made, and the legal frameworks that underpin planning practice.

The Idox Information Service

As Dr Mike Harris, Deputy Head of Policy and Research at the Royal Town Planning Institute, has said, it’s important that the planning profession is able to access and use evidence and research.

“Research and theory can help to lift the perspective of practitioners beyond the day-to-day demands of the job, to provoke reflection and discussion about the wider social purposes and values of planning. It can also help us better to defend planning from those who would seek to erode it further.”


Our members include policy makers and practitioners from organisations including local authorities, central government, universities, think tanks, consultancies and charities. They work in challenging environments and often need evidence to inform service delivery or decision-making.

Get more information on membership here or contact us to arrange a free trial of our service for your organisation.

Latest developments in Scottish planning and environmental law

spel-177The next year is going to be a busy one for planning in Scotland, judging by the Scottish Government’s Programme for Scotland 2016-17.  The dual priorities of modernisation and increasing housing delivery are shaping policy direction, but it is in the courts that real-world issues affecting implementation and delivery of policy are addressed.

The Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country.

A key part of our remit is to provide commentary on significant case law. We also provide a forum for consideration of issues affecting the planning system, from the point of view of solicitors, planners and academics.

Reflecting on recent case law

Key court cases examined in the October 2016 edition include that perennially thorny topic of wind farm consents.

Firstly, the quashing of Stronelairg wind farm consent was overturned by the Inner House. This decision, which included the comment that ‘Creating images from different angles on the surrounding landscape does not provide the public with any information not already readily known and understood,’ may prompt discussions among planning authorities, statutory consultees and applicants about how visualisations and photomontages should be treated.

Secondly, the successful challenge of four offshore windfarm approvals by the RSPB highlights the difficulty for the Government and environmental stakeholders of achieving a balance between a commitment to realising the full potential of renewable energy in Scotland (including off-shore) at the same time as appropriately protecting the marine environment. Finding that necessary balance appears to be proving hard even in relation to projects where the appropriate environmental impact assessment has been carried out.

Other cases covered in October’s SPEL include:

  • Public sector equality duty as a relevant planning consideration [LDRA Ltd & Others v Secretary of State for Communities and Local Government & Others] – This decision is a reminder that protected characteristics have a wide scope and points to an onus being placed on decision-makers to demonstrate that the requirements of s149 of the 2010 Act have been considered.
  • ‘Community focused’ renewables planning permission quashed [R (on the application of Peter Wright) v Forest of Dean District Council and Resilient Energy Severndale Ltd]. This case focused on whether a financial contribution in the context of a wind turbine development may be taken into account in granting planning permission. The decision is in line with previous case law but as Karen Hamilton of Brodies LLP notes “If policy ‘encouragement’ of community schemes is to persist then a clearer path should be laid out to enable participating developers to be credited for their efforts“.
  • Liability of roads authority for injuries to cyclist [Robinson v Scottish Borders Council]. Whereas English courts have been reluctant to impose liability on highway authorities, this judgment found that the hazard would have been apparent to a roads authority of ordinary competence, using reasonable care.

The journal also includes commentary and articles on topical issues and policy developments.


Written by a wide range of subject experts, SPEL Journal includes accessible commentary on topical subjects and current issues.

An annual subscription to SPEL Journal is £145. For further details or a sample copy, please contact Christine Eccleson, SPEL Journal’s Advertising Manager, on 0141 574 1905 or email christine.eccleson@Idoxgroup.com.

Going underground: in London, basement digging is a cheaper way to property expansion – but councils are getting tough on “iceberg homes”

ANTHONY_SALVIN_-_11_Hanover_Terrace_Regent's_Park_London_NW1_4RJ_est (1)

London’s Hanover Terrace, where Damien Hirst is planning an ambitious basement extension to his 19th century villa. Image by Spudgun67 via Creative Commons

 “It was the newly dug three-storey basement that had the guests buzzing. Below the cinema, gym and spa (complete with sauna, pool and massage table) sprawled an enormous six-car garage. But how did the vehicles get down there? Our host, an American who worked in finance, was only too happy to demonstrate: The cars were lowered down by a custom-built automobile elevator built into the parking pad in the side garden.”
Maclean’s 29 July 2015

Basement conversions and extensions are making a big noise in London. In 2001, the Royal Borough of Kensington and Chelsea received 46 planning applications for basement conversions. By 2013, that figure had soared to 450 applications. Rising house prices in the capital are making basement conversions more attractive, mostly to super-rich owners. The expansions can add millions to the value of their already expensive properties, and for those needing additional space a conversion can be cheaper than moving home.

But the trend to build down is not universally popular. Some conversions have hit the headlines because ambitious projects by rich and famous owners have triggered objections from their rich and famous neighbours:

  • in 2015, Jon Hunt, founder of Foxtons estate agency, won a legal battle with his neighbours (the French Embassy) to build an enormous basement to house his classic cars (the Embassy plans to challenge the ruling)
  • in 2013, Daimler-Benz heir Gert-Rudolf Flick got permission for a two-storey basement beneath his £30 million house in South Kensington. More than 50 local residents, including the cellist Julian Lloyd Webber, had objected to the construction plans, which they described as “entirely selfish”
  • last year, Queen guitarist Brian May launched a campaign to ban “iceberg homes” that can occupy more space below ground than the original property above

The bad feeling caused by these subterranean grand designs has spawned a new type of nimby – the “numbing” (Not Under My Bloody Idiot Neighbour’s Garden). Disgruntled neighbours’ concerns include:

  • the disruption caused by traffic, plant and equipment
  • the effects on the structural stability of nearby buildings and roads
  • the noise generated during construction (an experience described by Brian May as “an instrument of torture”)

The role of planning

Beyond the headlines, it’s planning authorities who have to deal with applications for basement extensions and to consider the implications.

Conversions of existing cellars don’t always require planning permission, unless the external appearance of the building is altered, for example by adding a light well. However, excavating the ground under a building to create a new basement may require planning permission, and these are the types of projects that can ignite disputes. As Westminster City Council’s 2014 planning guidance observes, with admirable understatement: “basement development is often contentious…”

Rewriting the rules on basement digging

In 2014, the rising tide of concerns prompted the Royal Borough of Kensington and Chelsea to revise its policy on basement development. The new policy restricts the extent of basement excavation to no more than under half the garden or open part of the site and limits the depth of excavation to a single storey in most cases.

Westminster City Council has moved to make similar changes to its basement extension policy, as has Richmond Council. As well as acknowledging residents’ concerns about noise and disruption, councils are anxious to address the wider environmental impact both during and after basement development. Westminster’s policy notes that:

“The uses associated with basement spaces may be more energy intensive due to additional requirements for lighting, ventilation and pumps, particularly where underground rooms house swimming pools and media rooms.”

Even if planning permission is not needed for basement development, the changes must comply with building control rules on fire safety, ventilation and structure. Neighbours affected by basement projects should also be aware of their legal position:

The only way is down?

The number of planning applications for domestic basements in London may have more than tripled since 2011, but a sharp deceleration in the rate of growth last year indicates that the trend may have peaked. As more boroughs tighten the conditions imposed on basement development, building costs are likely to rise and planning processes may be prolonged.

For some owners, however, thousands of pounds in additional costs is a drop in the ocean. Last month, artist Damien Hirst overcame council objections to extend the basement of his home in Westminster. Once the work is complete, it could more than double the value of his historic mansion, making it worth £100 million.

Hot topics in Scottish planning and environmental law

spel feb headerThe Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country.

Our latest edition of SPEL includes articles focusing on:

  • Outcomes of the 2015 UN Climate Change Conference
  • The practical experience of delivering Planning Permissions in Principle
  • Wild land maps and their impact on planning law and policy
  • Hut development and the planning system – a significant shift.

Key court cases examined in the February edition include:

  • Sally Carroll v Scottish Borders Council – A wind turbine case which has clarified the role of Local Review Boards.
  • Stewart Milne Group Ltd v The Scottish Ministers – An appeal against refusal for residential development, which further consolidates the position adopted by the Supreme Court in Tesco Stores Ltd v Dundee City Council [2012].
  • The John Muir Trust v The Scottish Ministers – Wind farm consent has been reduced, as a result of the processes followed in the case for consideration of responses from consultative bodies.

SPEL was launched in 1980 as ‘Scottish Planning Law & Practice’, to be a journal of record of Scottish planning. When it became apparent that the emerging field of environmental law was strongly linked to land use planning, the name of our journal changed to reflect this.

Written by a wide range of subject experts, SPEL Journal includes accessible commentary on topical subjects and current issues; details of new legislation and significant court cases; expert comment on key planning appeal decisions, government circulars and guidance; as well as notes about ombudsman cases and book reviews.

SPEL Journal is read by decision makers in Scottish planning authorities, planning law practices, planning consultancies, architects, surveyors, civil engineers, environmental managers and developers across Scotland. It is also valued by many practitioners outside of Scotland who need to keep abreast of developments.


An annual subscription to SPEL Journal is £145. For further details or a sample copy, please contact Christine Eccleson, SPEL Journal’s Advertising Manager, on 0141 574 1905 or email christine.eccleson@Idoxgroup.com.

The changing landscape of planning: Scottish Planning & Environmental Law Conference 2015

spel conference image 2By Morwen Johnson

This year’s SPEL Conference is on Thursday 17 September in Edinburgh, and we’re finalising an insightful programme. In a fast moving economic and political environment, the last 12 months has witnessed many developments which impact on the planning system. This year’s conference will provide a space for the planning and environmental law community to discuss and debate these.

Key topics

Key issues to be explored include planning issues around unconventional gas. Public controversy in the UK over fracking has received considerable news coverage in the last few months. Just two weeks ago, the shale gas firm Cuadrilla announced it was to appeal against the decision by Lancashire County Council to refuse permission to drill and frack at two sites in the county (Little Plumpton and Roseacre Wood on the Fylde Coast). The Scottish Government also announced in January a moratorium on granting planning consents for unconventional oil and gas developments, including fracking, while further research and a public consultation are carried out. We’re bringing together representatives from the legal and business viewpoints at the conference to explore the implications.

Another hot topic is how the planning system can ensure the delivery of housing land. Neil Collar from Brodies LLP wrote in the last issue of Scottish Planning and Environmental Law Journal about how planning authorities and developers both have a role to play. From a practitioner point of view, he highlighted that local planning authorities need to address development promotion – not just identifying sites in in plans but taking a proactive approach to delivery, for example addressing issues such as multiple ownership or infrastructure requirements at an early stage. The SPEL Conference will explore this in more depth.

As usual we’ll also be reflecting on national planning policy, and the programme of planning modernisation. We’ve been running the SPEL conference for nearly 20 years and in this time it has gained a reputation for being a forum for open and critical debate about the operation of the planning system in Scotland.

Conference programme

The programme features a broad range of speakers, bringing perspectives from the private sector, local government planning, academia and central government to bear on the issues.

Confirmed key speakers include:

  • Professor David Adams, Ian Mactaggart Chair of Property and Urban Studies, University of Glasgow
  • David Leslie, Acting Head of Planning and Building Standards, The City of Edinburgh Council
  • Nick Wright, Nick Wright Planning and due to be Convenor, RTPI Scotland in 2016
  • Maurice O’Carroll, Advocate, Terra Firma Chambers
  • Alasdair Sutherland, Advocate, Terra Firma Chambers

We’re also delighted that Gordon Steele, QC, will be chairing the conference for us.

If you’re interested in planning or environmental law in Scotland then SPEL Conference 2015 is the perfect chance to hear about the latest developments and network with others.


The 2015 Scottish Planning and Environmental Law Conference is on 17 September at the COSLA Conference Centre, Edinburgh.

The full conference programme and booking form are available here.

Morwen Johnson is the Managing Editor of Scottish Planning and Environmental Law Journal.

Who decides and interprets planning policy … planners or lawyers?

Image from Flickr user Sebastian Niedlich, licensed for reuse under a Creative Commons License

Image via Flickr user Sebastian Niedlich, licensed for reuse under a Creative Commons License

By Morwen Johnson

Nathalie Lieven QC, barrister at Landmark Chambers, spoke at the RTPI’s 2015 Planning Convention on the shifting relationship between planners, policymakers and lawyers. Nathalie regularly appears at public inquiries and planning challenges in the High Court, appearing for both developers and local authorities.

Discussing the massive upsurge in litigation in planning, personified in the creation of the Planning Court in 2014, Nathalie suggested there had been a power grab by lawyers over the planning system in the last few years. She highlighted two main reasons: the decision of the Supreme Court in Tesco v Dundee City Council [2012] UKSC 13, and the introduction in England of the National Planning Policy Framework (‘NPPF’).

Recent shift in power

Prior to the Tesco case, interpretation of planning policy was seen as the task of the decision-maker. Cases only went to court if this interpretation was seen as ‘unreasonable’. This approach makes sense if you consider that planning policy tends not to have the level of semantic detail that is expected in law, and is also a recognition that application of policy can be different in different contexts.

The Supreme Court ruling however was that interpretation of policy in the case was a matter for the court and policy should be interpreted objectively. The aim may have been to create intellectual clarity and better decision-making, but the ruling has coincided with the introduction of NPPF, which is in some parts obscurely worded and also contradictory. With many development plans out of date, NPPF has become the critical determining document in planning appeals.

Particularly in residential housing appeals, the system now relies on both the interpretation of words in the NPPF and also previous rulings by High Court judges as to what the words mean. In respect of development planning, plans now get limited scrutiny and the role of the court also becomes more important. In the short-term therefore, power over planning decisions has shifted to the centre, in marked contrast to the Westminster government’s support for localism and devolution.

The role of the court is creating, in Nathalie’s words “a straitjacket for decision-makers, which limits their ability to apply policy flexibly”.

How local authorities can regain the balance of power

She suggested however that it is worth remembering that in the Tesco case, the Supreme Court was careful to say that the issue related to the application of policy to a given set of facts, rather than interpretation of policy generally.

Planning authorities can therefore turn the ruling to their advantage by drafting planning policies in a hard-edged way. As policies need to be applied in a consistent and objective way, the clearer the development plan, the less room for appeal.


Morwen Johnson is Managing Editor of the Scottish Planning and Environmental Law Journal, which is published by Idox.

More information on the journal and how to subscribe can be found here.

February issue of SPEL Journal (Scottish Planning & Environmental Law)

spel feb 2015The Knowledge Exchange publishes a bi-monthly journal covering all aspects of planning and environmental law in Scotland. SPEL Journal (Scottish Planning & Environmental Law) launched over 30 years ago and is one of the leading information sources on land use planning and environmental legislation across the country.

The latest edition of SPEL includes articles focusing on:

Key court cases examined in the February edition include:

  • Secretary of State for Communities and Local Government v Venn – Aarhus and Protective Costs Orders
  • The John Muir Trust v The Scottish Ministers  – Protective Expenses Order
  • South Lanarkshire Council v Coface SA  – Liability for restoration payment
  • Hallam Land Management Ltd v The Scottish Ministers  – Housing supply and education infrastructure

SPEL was launched in 1980 as ‘Scottish Planning Law & Practice’, to be a journal of record of Scottish planning. When it became apparent that the emerging field of environmental law was strongly linked to land use planning, the name of our journal changed to reflect this.

Written by a wide range of subject experts, SPEL Journal includes accessible commentary on topical subjects and current issues; details of new legislation and significant court cases; expert comment on key planning appeal decisions, government circulars and guidance; as well as notes about ombudsman cases and book reviews.

SPEL Journal is read by decision makers in Scottish planning authorities, planning law practices, planning consultancies, architects, surveyors, civil engineers, environmental managers and developers across Scotland. It is also valued by many practitioners outside of Scotland who need to keep abreast of developments.

An annual subscription to SPEL Journal is £145. For further details or a sample copy, please contact Christine Eccleson, SPEL Journal’s Advertising Manager, on 0141 574 1905 or email christine.eccleson@Idoxgroup.com.