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Law and change: Scottish legal heroes
Law and change: Scottish legal heroes

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3.2.1 Legitimate expectations

A tension may arise in practice. Suppose a public authority operates a policy or procedure consistently, but a change of circumstances means that there is a need to modify the policy or procedure. Or suppose the decision-maker misunderstands the extent of their legal powers and offers to an applicant a benefit (for example, planning permission) for which the applicant is not qualified under legislation.

In this kind of situation someone affected by the decision can have a legitimate expectation that because the policy or procedure has been operated in such a way in the past, that this will continue in the future. Equally, if the authority has promised someone in particular a benefit, it may (depending on the circumstances) be unfair to break that promise, even if there are public interest grounds for breaking it.

The key to resolving these tensions is to strike a balance between the public interest, for example, in changing the policy, and the private interest in maintaining it. Where a legitimate expectation has arisen, a public authority can still frustrate that expectation if any overriding public interest requires it. Whether a legitimate expectation has arisen, and whether it can be overridden, will depend upon a number of factors, such as:

  • Were the words or conduct (the ‘promise’ or ‘representation’) which gave rise to the expectation clear and unequivocal?
  • Did the person promising the benefit have the legal power to grant it, or was it ultra vires?
  • Who made the promise and how many people stood to benefit by it?
  • Did the person(s) to whom the promise was made take action in reliance upon it which has placed them in a worse position than they would have been if they had not taken that action?