Richard Anderson: 'Mora, taciturnity and acquiescence' mean the objection process will probably favour developers

The details are still being worked out but the main challenge is likely to be by way of judicial review. For such applications, a time limit (of three months) was introduced in England but not in Scotland. In what has been justified as a drive for "good administration", however, the Scottish courts appear to have taken steps to plug that gap.

They have done so by delving into the private law of Scotland and fishing out a common law concept with the slightly unwieldy title of "mora, taciturnity and acquiescence" – essentially meaning that there has been an undue delay – which they have dusted off and also applied in the field of administrative law.

Such a plea is necessarily protean, but a working example of its application in practice can perhaps be seen by the decision of Lord Eassie in the petition by Mr Devine and others for judicial review.

In that case, a couple applied for planning permission to erect a dwelling house near the beach at Lossiemouth in Morayshire. Moray Council decided to grant outline planning permission on 13 December, but a number of people in the Lossiemouth area, pointing to the development plan policy calling for the foreshore area there to be retained as public space, took objection.

They sent a letter of objection to the Council on 24 December. One objector also wrote to his local councillor on 25 January. No further steps appear to have been taken until a reply from the councillor (later described as "unhelpful" and simply enclosing a copy of the council minutes) was received on 3 April.

The objectors then met on 19 May, formed an action group, raised funds and prepared a petition. On 16 June, a public meeting was held and the petition was presented to Moray Council on 21 June.

A solicitor employed by the objectors indicated, after discussion with Moray Council, that the decision was unlikely to be revised.

The objectors then, led by Mr Devine, raised a Petition for Judicial Review on 31 July. Moray Council entered appearance and tendered a plea of mora, taciturnity and acquiescence. The case came before Lord Eassie.

Accepting that the need for prompt action may be greater in one context than another, Lord Eassie appears to have been influenced in this case by the fact that planning consents take immediate effect and might also have implications for other third parties.

And so he decided that there was a need for objectors to act with greater alacrity in planning matters. Lord Eassie was critical of the lapse of six weeks between the initial decision and the letter being sent to the councillor (and also that the letter did not contain any implication of legal challenge) and also viewed the period between that letter being sent on 25 January and the reply received on 3 April as one of delay or inactivity.

And he was critical of the fact that no immediate steps were taken by the objectors upon receipt of that reply.

He concluded that the delay was unreasonable in the circumstances and held that it allowed Moray Council (and any other interested third parties) to infer that those objecting to the grant of outline planning permission had by then acquiesced in the validity of the decision and as a result to have materially altered their positions. The petition was dismissed.

For those familiar with the process of gathering a consensus from the public, the above chronology might appear to be almost swift and to the traditional Scots lawyer, a case of almost indecent haste.

However, the above decision suggests – and, for aught yet seen, might turn out to be of even more significance under the new planning system – that if you have got something you want to say in planning matters then you ought to say it quickly or be prepared to forever hold your peace!

Richard NM Anderson is an advocate