Judicial review in Scotland provides a legal route for challenging the lawfulness of decisions, actions or failures to act by public bodies.
It can be relevant to individuals, businesses, developers, landowners and organisations affected by decisions made by public authorities, including decisions connected with planning, development and other regulatory matters.
Judicial review is not generally an appeal on the merits of a decision. Instead, the court considers whether the decision-making process was lawful and whether the relevant public body acted within its legal powers.
The Court of Session is Scotland’s supreme civil court, and its Outer House deals with judicial review proceedings.
What Is Judicial Review in Scotland?
Judicial review is a court process used to challenge the lawfulness of a decision or action by a public body.
It can potentially apply where a public authority has:
- Acted outside its legal powers
- Applied the law incorrectly
- Failed to follow a required legal procedure
- Failed to take relevant considerations into account
- Taken account of irrelevant considerations
- Acted unfairly in circumstances where procedural fairness is required
- Made a decision that is otherwise unlawful
The purpose of judicial review is to examine the legality of the decision-making process rather than simply reconsider whether the decision was the right one.
Which Decisions Can Be Challenged?
Depending on the circumstances, judicial review may be relevant to decisions or actions by:
- Local authorities
- Planning authorities
- Scottish Ministers
- Government bodies
- Regulatory authorities
- Public agencies
- Other bodies exercising public functions
Whether judicial review is available will depend on the nature of the decision, the statutory framework governing it and the circumstances of the case.
Judicial Review and Planning Decisions in Scotland
Judicial review can be particularly relevant to Scottish planning and development matters.
For example, a developer, landowner or other interested party may consider judicial review where there is an arguable legal error in the way a planning decision was made.
Potential issues can include:
- The planning authority misunderstanding its legal powers
- Failure to follow the required statutory procedure
- Failure to take relevant planning considerations into account
- Taking an irrelevant consideration into account
- Procedural unfairness
- A decision being affected by an error of law
However, judicial review should not be treated simply as another form of planning appeal.
Where a planning decision has a specific statutory appeal or review route, it is important to establish whether that route applies before considering judicial review.
What Are the Grounds for Judicial Review in Scotland?
A judicial review claim must be based on a recognised legal ground for challenging the decision.
Error of Law
A public body may have made an error in interpreting or applying the law governing its decision.
Acting Beyond Legal Powers
A public authority must operate within the powers given to it by legislation or other applicable law.
A decision made outside those powers may be open to challenge.
Procedural Impropriety
Public bodies must comply with applicable statutory procedures and other procedural requirements.
A failure to follow a legally required procedure may provide grounds for judicial review.
Failure to Consider Relevant Matters
A decision-maker may be required to consider particular matters when exercising its powers.
Failure to take a legally relevant consideration into account may be relevant to a judicial review.
Unfair Decision-Making
In appropriate circumstances, procedural fairness may form part of the legal requirements governing a public decision.
Whether a particular process was legally unfair will depend on the facts and the legal framework applicable to the decision.
What Is the Time Limit for Judicial Review in Scotland?
Time limits are particularly important in judicial review proceedings.
The Scottish Courts and Tribunals Service’s current guidance states that the time limit for lodging a judicial review is three months from the date of the decision or action.
This makes it important to obtain legal advice promptly after receiving the decision or becoming aware of the relevant action.
The applicable rules and any specific statutory provisions should be checked in each case.
How Does Judicial Review Work in Scotland?
Judicial review proceedings are dealt with in the Court of Session under Chapter 58 of the Rules of the Court of Session.
The process can involve several stages.
Initial Legal Assessment
The first step is generally to establish whether there is an arguable legal basis for challenging the decision.
This involves examining:
- The decision being challenged
- The relevant legislation
- The decision-making process
- Correspondence and supporting documents
- Applicable policies and guidance
- The available alternative appeal or review mechanisms
- The applicable time limit
Preparing the Petition
A judicial review is initiated by a petition.
The Scottish Courts and Tribunals Service provides a specific Form 58.3 – Petition for Judicial Review.
The petition sets out the decision or action being challenged and the legal grounds relied upon.
Permission to Proceed
Judicial review proceedings are subject to a permission stage.
The court considers whether the case should proceed before substantive judicial review proceedings take place.
Substantive Hearing
If permission is granted, the court considers the legal issues raised in the judicial review.
The Court of Session’s Outer House generally deals with judicial review proceedings at first instance.
What Can the Court Do?
The remedy available will depend on the circumstances and the legal basis of the challenge.
A successful judicial review may result in the court granting an appropriate remedy in relation to the unlawful decision or action.
The precise remedy will depend on the case, the decision being challenged and the powers available to the court.
Judicial review therefore does not necessarily mean that the claimant will receive the decision they originally sought. The legal consequences of a successful challenge depend on the circumstances.
Judicial Review vs Planning Appeal in Scotland
It is important to distinguish judicial review from a planning appeal.
A planning appeal or review mechanism is generally concerned with the planning decision within the statutory planning framework.
Judicial review focuses on the lawfulness of the decision-making process.
This distinction can be particularly important for developers and landowners considering whether to challenge a planning-related decision.
Before starting proceedings, professional advice should be obtained on the appropriate legal route.
Why Legal Advice Is Important
Judicial review proceedings are subject to strict procedural requirements and time limits.
An early assessment can help establish:
- Whether judicial review is potentially available
- Whether another statutory remedy should be used
- The relevant deadline
- The legal grounds for challenge
- The documents and evidence required
- The appropriate remedy
- The potential costs and risks of proceedings
Early advice can also help prevent a potentially important deadline from being missed.
How Charrette Law Can Assist With Judicial Review in Scotland
Charrette Law provides legal and planning advice for individuals, landowners, developers and businesses dealing with complex planning and public law matters.
Our assistance can include:
- Initial assessment of a public decision
- Reviewing planning and regulatory decisions
- Identifying potential grounds for challenge
- Advising on judicial review procedures
- Reviewing relevant documents and decision-making processes
- Advising on alternative appeal or review mechanisms
- Assisting with planning-related legal challenges
- Coordinating with appropriate litigation specialists where required
If you believe a public authority has made an unlawful decision affecting your property, development or interests, obtaining advice at an early stage can be important.
FAQs About Judicial Review in Scotland
What is judicial review in Scotland?
Judicial review is a legal process for challenging the lawfulness of decisions, actions or failures to act by public bodies.
Can I use judicial review to challenge a planning decision?
Potentially, but judicial review is concerned with the legality of the decision-making process rather than simply whether the planning decision was correct on its merits. The appropriate challenge will depend on the circumstances and any available statutory appeal or review route.
How long do I have to bring a judicial review in Scotland?
The Scottish Courts and Tribunals Service currently states that the time limit for lodging a judicial review is three months from the date of the decision or action. Specific circumstances and applicable legislation should be considered when calculating the deadline.
Which court deals with judicial review in Scotland?
Judicial review proceedings are dealt with in the Court of Session, with the Outer House handling cases at first instance.
Can a judicial review change a public authority’s decision?
A successful judicial review can result in the court granting an appropriate remedy in relation to an unlawful decision or action. The outcome depends on the circumstances and the remedy available in the particular case.
Speak to Charrette Law About Judicial Review
If you are considering challenging a public authority decision in Scotland, early legal advice can help you understand the available options, applicable time limits and potential grounds for challenge.
Charrette Law can assist with planning, property and public law matters and help you assess the appropriate route for challenging a decision.
Contact Charrette Law to discuss your circumstances and obtain professional advice on judicial review and related planning matters.
