David Millar and five other petitioners who together were the proprietors of Coodham House in Symington, South Ayrshire, contended that a letter sent to a developer by South Ayrshire Council constituted an unlawful decision. The respondent’s position was that the letter was not a justiciable decision and the petitioners’ grounds of challenge were ill-founded.

The petition was considered by Lord Richardson, with the petitioners represented by O’Carroll, advocate, and the respondent by Byrne KC.

Standalone administrative decision

On 2 March 2004, the respondent granted planning permission for the development of the estate and grounds of Coodham House subject to 26 conditions. These included that the development must commence within five years of the date of permission. From 2005 to 2009, nine residential units were completed and sold, however these related to a second planning application granted in April 2006.

By letter dated 9 February 2024 to Hallbar Homes, a developer who wished to purchase the estate, a supervisory planner employed by the respondent, David Clark, advised that the permission remained extant as works to the house had commenced. In the letter, Mr Clark also stated that the extant permission was a significant material consideration that outweighed some principles of the Development Plan.

Mr Clark’s letter included an annex that provided, among other things, that the comments and advice in the letter “are made at officer level only and are strictly without prejudice to the eventual decision of the Council as Planning Authority with regard to any future applications (for this site)”. Nonetheless, the petitioners contended that the letter contained a standalone administrative decision.

Counsel for the petitioners submitted that the respondent had failed to take into account that there was no lawful commencement of the development prior to the 2004 permission lapsing in 2009. The respondent had also failed to take into account that the 2004 permission was not capable of implementation due to the other works that had since been performed on the site.

The respondent’s position was that the letter dated 9 February 2024 could not be relied upon, did not crystallise legal rights on the part of the petitioners and would not found legitimate expectations. It was not addressed to the petitioners but to the developer, and bore to be a pre-application response letter. No promise was made with sufficient clarity as to give rise to a claim to legitimate expectations.

Expressly caveated

In his decision, Lord Richardson began by addressing justiciability: “The letter dated 9 February 2024 was addressed to Hallbar Homes and was expressly stated to be written in the context of Hallbar Homes’ pre-application enquiry. As noted above, the letter was expressly caveated. This context is strongly indicative of the fact that the statements relating to the 2004 permission are not, as the petitioners contend, a binding decision as to the status of that permission which would directly affect not only Hallbar Homes but also the petitioners who are not even an addressee of the letter.”

He continued: “The petitioners’ arguments essentially elevate the respondent’s statements relating to the 2004 permission into an extra-statutory certificate of lawfulness of proposed use or development. As such, the petitioners’ argument fails for similar reasons to those which led Lord Hoffman to reject Reprotech’s arguments in R (Reprotech Ltd) v East Sussex County Council (2003).”

Turning to the argument on immediate legal effect, Lord Richardson said: “The legal effects which the petitioners point to arise not from what was said by the respondent in its letter but rather from the 2004 permission itself. It is the 2004 permission itself which, if extant, would have the effects pointed to by the petitioners. The petitioners’ contention presupposes that the letter of 9 February 2024 had the effect of in some way reviving the 2004 permission. Whereas, properly understood, the views contained in the letter do not, in themselves, alter or affect whether the 2004 permission is or is not extant.”

He concluded: “I accept the respondent’s argument that the letter dated 9 February 2024 falls a long way short of setting out a sufficiently clear and unambiguous promise or undertaking on the part of the respondent as would give rise to a legitimate expectation on the part of Hallbar Homes. Ultimately, I did not understand the petitioners to argue otherwise.”

The petition was accordingly refused, with the petitioners’ other grounds of challenge similarly rejected.