Vatenfall Windpower Ltd v Scottish Ministers

2 April 2009

The appellants had applied for planning permission for the construction of a windfarm. The application had been made on 10 April 2003. On 31 October 2007 the appellants and the planning authority agreed to extend the period for consideration of the planning application until 31 December 2007. The planning authority did not reach a decision on the planning application by that date. Article 23(2) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 allows an applicant six months to bring an appeal against deemed refusal of a planning application. On 6 June 2008 the appellants lodged an appeal against deemed refusal. The appeal was thus brought within six months of the period agreed on 31 October 2007. The Scottish Ministers refused to consider the appeal, contending that deemed refusal of the application had occurred in 2003 and that an appeal had required to be brought within six months of that time.

The appellants appealed to the Court of Session. They contended that because section 47 of the Town & Country Planning (Scotland) Act 1997 allowed an applicant and planning authority to agree to continue the period for consideration of an application "at any time", this meant that such an agreement could be reached, as here, a number of years after the original application and that that created a fresh right of appeal with a fresh six-month time limit. The Second Division refused the appeal and accepted the argument advanced by the respondents that even if the applicant and planning authority could validly agree to continue the time for deciding an application that did not revive a lost right of appeal or did not bring into being a further right of appeal. Thus, where there has been a deemed refusal of a planning application, an applicant has six-months to bring an appeal. An agreement between the applicant and the planning authority to extend the period for considering the planning application entered into after the end of the six-month period does not revive a lost right of appeal. Nor does it create a fresh right of appeal.

Alastair Duncan of Axiom Advocates represented the Scottish Ministers.

http://www.scotcourts.gov.uk/opinions/2009CSIH27.html