The Court of Session has held in the recent decision of Bancon Developments Ltd v The Scottish Ministers that a failure to afford appellants in planning appeals an opportunity to respond to new evidence was contrary to natural justice and a breach of the Town and Country Planning (Appeals) (Scotland) Regulations 2008.

The case concerned an appeal against refusal for development of 27 houses with an access road in Banchory, Aberdeenshire.  The application had been refused because of the inadequacy of the proposed access road.  During the course of the appeal, the Reporter considered two other alternatives to the proposed access road.  As these alternatives were superior to the proposed access road, he upheld the refusal.

Bancon appealed to the Court of Session on the basis that consideration of the two alternative access roads was a brand new matter, and it had not reasonably foreseen this as something which would arise in the course of the appeal.  The Town and Country Planning (Appeals) (Scotland) Regulations 2008 provide that Reporters must afford parties an opportunity to comment on new evidence as part of the appeal procedure.  Bancon submitted that the alternative access roads were effectively new evidence which they had not had the opportunity to comment upon: they had not been given ‘a fair crack of the whip’.  This was contrary to natural justice and a breach of the Appeal Regulations.

The Scottish Ministers defended the Reporter's decision and argued that the alternative proposals were matters which Bancon ought to have reasonably foreseen, and so they were not ‘new evidence’.

The Court upheld Bancon’s appeal.  The issue between Bancon and the planning authority, when the matter was originally considered, was confined to the inadequacy of the proposed access road.  No question was raised between parties as to other access roads being more appropriate.  The Reporter had therefore considered new evidence.  The Reporter’s decision was quashed and Bancon’s appeal is now to be considered afresh.