There is an error on page 187.   The 5% Stamp Duty Land Tax rate rate does not apply to non-residential property.  CCH has confirmed that they have amended the on-line version and that the next edition of  this publication will also include this correction.

Case considering the grant of planning permission for a wind farm at Fallago Rig in the Lammermuir Hills.  Due to the large capacity of the development, consent was required by the Scottish Ministers in terms of the Electricity Act 1989. Consent was granted by the Scottish Ministers by a decision letter in November 2010. In terms of the legislation that consent is also deemed to be planning permission for the development.

There were a number of interested parties who objected to the development leading to two public enquiries and what is described as voluminous correspondence.  The petitioners sought reduction of the decision letter on various reasons (including natural justice, ultra vires, unlawful conditions and inadequate reasons), however, the main thrust of their argument was bias.

The petitioners argued that, while it was quite lawful for elected representatives to be predisposed to renewable energy (it being Government policy to encourage the development and use of renewable energy from natural sources), it was not lawful to pre-determine an application which fits that policy without first considering the objections. In this case the petitioners argued that the government had made up their mind to bring about the conditions in which consent could be granted. They argued that the Government had had covert conversations with the MOD (which was the main objector to the development on the basis that the turbines could interfere with radar systems) and those conversations were successful as the MOD withdrew its objection. This, they argued, showed bias.

After detailed consideration of the authorities Lord McEwan looked to the test for bias in Porter v Magill (2002) in which Lord Hope came to the conclusion the test was:

“… whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that …” (the decision taker) “… was biased”

Lord McEwan took the view that the best guidance on the application of that test to a planning case was given in R (Lewis)v Redcar and Cleveland Borough Council (2009) which made it clear that a Minister’s position is different from someone holding a judicial or quasi judicial office:

“… the requirement made of such decision makers is not, it seems to me, to be impartial but to address the planning issues before them fairly and on their merits, even though they may approach them with a predisposition in favour of one side of the argument or the other. It is noticeable that in the present case no complaint is raised by reference to the merits of the planning issues. The complaint, on the contrary, is essentially as to the timing of the decision in the context of some diffuse allegations of political controversy. So the test would be whether there is an appearance of predetermination in the sense of a mind closed to the planning merits of the decision in question. Evidence of political affiliation or of the adoption of policies towards a planning proposal will not for these purposes by itself amount to an appearance of the real possibility of predetermination or what counts as bias for these purposes. Something more is required… ‘ unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision … “

After considering the documents and evidence, Lord McEwan found that, far from showing pre-determination on the part of the Minister, there was a great deal to indicate the opposite i.e. an open fair mind. He also failed to find that the conduct of the Minister could be criticised noting that “in the realm of administrative law there is nothing wrong with the decision taker meeting an objector.”

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Guidance on the Town and Country Planning (Environmental Impact Assessment) (Scotland) Regulations 2011. The Circular supersedes the guidance previously given in Circular 1/2003.

The Scottish Government, 1 June 2011

The Guardian newspaper reported today that there are 1600 fewer registered charities in England & Wales than there were a year ago.

HMRC launched 9,368 investigations into Inheritance Tax valuations over the last year and is actively targeting estates and beneficiaries say tax advisers UHY Hacker Young.

In instances where additional tax was payable, this averaged £24,600 per case.  Based on HMRC figures, approximately £70 million of additional tax was raised as the result of HMRC challenging the valuations of properties included in the estate of a deceased person in 2010.

HMRC has previously advised estate beneficiaries to obtain several property valuations and strongly recommends the engagement of a professional valuer or chartered surveyor.

First Minister Alex Salmond has asked a group of legal experts to look at the impact of the UK Supreme Court on Scotland’s legal system.

The First Minister has asked these legal experts to look at the roles of the High Court of Judiciary in Edinburgh and the UK Supreme Court in London, and to advise on possible options for reform.

The experts who were appointed to the expert group are Lord McCluskey, a former solicitor general; Sir Gerald Gordon, a former professor of Scots Law at Edinburgh University; Charles Stoddart, who has acted as interim Sheriff Principal; and Professor Neil Walker, an expert in constitutional law.  Their initial findings will be debated at the Scottish Parliament in time for the summer recess.

HM Treasury is looking to appoint a permanent Chair and Tax Director for Office of Tax Simplification.  Both positions are on a voluntary basis with expenses paid.  However an honorarium of £12,000 per annum will be paid to the Tax Director in recognition of their contribution to Government policy making.

Southern Cross, which operates across the UK, has announced that it is reducing its rent payments and cannot afford to meet its annual rental costs of £230million. Southern Cross has 98 care homes with around 4,000 elderly residents in Scotland.

HM Treasury’s consultation paper on the proposed 10 per cent inheritance tax charity relief is to be published on 9 June.

The UK Chancellor’s Budget proposal, which will come into effect in April 2012, will reduce the rate of inheritance tax from 40 per cent to 36 per cent, if at least 10 per cent of a person’s estate is given to charity.

In his recent Budget, the UK Chancellor announced his decision to abolish 43 tax reliefs.  This followed the independent Office of Tax Simplification’s (OTS) March 2011 report reviewing the number and complexity of tax reliefs in the UK tax system.  The original report identified 1,042 reliefs.

HM Treasury are now seeking additional evidence on the impacts of removing 36 of these reliefs, and comments on the transitional arrangements that might help to minimise these impacts.   The consultation can be found on the HM Treasury website and closes on 31 August 2011.

89 inheritance tax reliefs were identified in the interim report.   The consultation recommends that a full review of inheritance tax is undertaken rather than a separate review of the reliefs identified.