Council’s attempt to revoke planning permission reduced
21 August 2013
Archid v Dundee City Council  CSOH 137
Lord Glennie has reduced a purported decision notice, issued by Dundee City Council, which sought to substitute a refusal of planning permission in circumstances where the Council had previously issued a decision notice granting planning permission for a development.
The petitioners applied for planning permission to convert an office building in Dundee into a residential dwelling. A decision notice was issued to the petitioners, by the Council, informing them that their application had been granted. The petitioners duly proceeded with the development.
When the development was nearing completion, the Council issued a second notice to the petitioners. The second notice had the same date as the first notice. This was not the date that the second notice was issued on. It informed the petitioners that their application for planning permission had been refused. The Council contended that the original decision notice was issued in error and did not reflect the decision that had been taken in relation to the petitioner’s application. In these circumstances, the first notice was of no legal effect.
The petitioners contended that the first notice, granting planning permission, remained valid unless and until it was revoked in terms of the underlying statutory scheme (which included a right to compensation) or was otherwise set aside by a court order. This was upheld by the Court. Lord Glennie held that the decision to issue the second notice was unlawful and duly reduced the purported refusal of planning permission. Lord Glennie held that:
“...a decision issued by a planning authority, however bad it may be for any number of reasons, is to be treated to be valid unless and until reduced or otherwise declared invalid by order of a competent court.”
The decision is likely to be of significant interest to developers and local authorities. Where a local authority contends that a planning decision has been issued in error, a Court order will be required to set aside the allegedly defective decision notice. The defective notice cannot be unilaterally revoked by the planning authority and a new notice issued in substitution.
John MacGregor, of Axiom Advocates, acted for the petitioners in successfully challenging the Council’s actions.
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