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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 156
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P1248/06
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OPINION OF LORD REED
in the cause
LERWICK PORT
AUTHORITY
Petitioners;
for
Judicial Review of
a decision by
THE SCOTTISH
MINISTERS
Respondents:
ญญญญญญญญญญญญญญญญญ________________
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Petitioners: Dunlop, Q.C.; C. Kelly;
Digby Brown
Respondent: Dean of Faculty; Poole; Solicitor
to the Scottish Executive
4 September 2007
Introduction
[1] Shetland
Islands Council wish to construct a road bridge, and associated roadworks, to
connect mainland Shetland to the island
of Bressay. They have had a bridge designed, and have
applied for statutory consents in respect of that design. The proposal is controversial: Lerwick Port Authority (the petitioners), and
a number of businesses operating in the port, oppose the proposal on the basis
that the implementation of the present design will prejudice the future
operation of the port, and the businesses located there. Their concern arises from the fact that the
bridge, as presently designed, will span the northern entrance to the port,
with its supporting piers standing on the seabed. The petitioners maintain that the bridge will
interfere with navigation, as the central piers are located too close together
to allow sufficient space for the safe navigation of the larger vessels which
currently use the port, or which can be expected to use the port in the future.
[2] In
order to construct the bridge, the Council require planning permission. As explained below, there was at the material
time more than one way in which they could obtain such permission. One possible method was to notify the
Scottish Ministers (the respondents) of their intention to carry out the development. On receiving such notification, the
respondents had the power to require the Council to apply to them for planning
permission, or alternatively to decide not to do so, with the consequence that
the respondents would be deemed to have granted planning permission. In the event, the Council notified the
respondents of their intention to carry out the development. Subsequently, the Council also notified the
respondents of a relatively minor related proposal, concerned with
roadworks. By letters dated 15 May 2006 the respondents decided
not to require the Council to make an application for planning permission in
respect of either proposed development, with the consequence that planning
permission was deemed to be granted.
[3] Those
decisions are challenged in the present proceedings on grounds which can be
summarised as (1) failure to have regard to material considerations, (2)
unreasonableness, (3) failure to follow the respondents' policy and (4) failure
to give reasons. The court was invited
by the parties to determine these matters on the basis of the pleadings, the
submissions and the documents to which reference was made.
The legal background
[4] It
is convenient at this stage to say something about the legislation which forms
the background to the present proceedings.
Much of that legislation, so far as relating to planning, has been repealed
or amended since the decisions in question were taken. It is however discussed below as it stood at
the relevant date.
Planning legislation
[5] In general, under section 28(1)
of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"),
"planning permission is required for the carrying out of any development of
land": how that provision applies to a proposed structure much of which is in or
over the sea is discussed below. Under
section 29(1) of the 1997 Act, there are two principal ways in which planning
permission may be granted:
"(a) by
development order,
(b) by the planning authority
(or, where this Part so provides, by the Secretary of State) on application to
the authority in accordance with regulations or a development order".
In that provision, as in the other
provisions to which I shall refer, the reference to the Secretary of State
should now be understood as a reference to the respondents.
[6] In
relation to the first of these methods of obtaining planning permission - by
means of a development order - the relevant provisions are contained in the
Town and Country Planning (General
Permitted Development) (Scotland) Order 1992 (S.I. 1992 No 223), as amended
("the GPDO"). In particular, regulation
3, read with Part 11 of Schedule 1, grants planning permission for a defined
class of development (class 29), subject to specified conditions:
"Class 29 -
(1) Development authorised by -
(a) a
local or private Act of Parliament or of the Scottish Parliament;
(b) an
order approved by both Houses of Parliament or of the Scottish Parliament; or
(c) any
order made under section 14 or 16 of the Harbours Act 1964, which in each case
designates specifically the nature of the development authorised and the land
upon which it may be carried out.
(2) Development is not permitted
by this class if it consists of or includes -
(a) the erection, construction,
alteration or extension of any building, bridge, aqueduct, pier or dam; or
(b) the formation, laying out or
alteration of a means of access to any road used by vehicular traffic,
unless the prior approval of the
planning authority in respect of the detailed plans and specifications is first
obtained.
(3) The prior approval referred
to in sub-paragraph (2) shall not be refused by the planning authority or
granted subject to conditions unless they are satisfied that-
(a) in any case (other than the
provision of works carried out to a dam) the development ought to be and could
reasonably be carried out elsewhere on the land designated specifically in the
said Act or order; or
(b) the design or external
appearance of any building, bridge, aqueduct, pier or dam would injure the
amenity of the neighbourhood and is reasonably capable of modification to avoid
such injury."
[7] In
relation to the second method of obtaining planning permission - by means of an
application to the planning authority - particular provisions apply to the
development by local authorities of land in respect of which they are the
planning authorities. In relation to
such development, section 263(1) of the 1997 Act provides that the provisions
specified in Part II of Schedule 18, including section 28, are to have effect
"subject to such exceptions and modifications as may be prescribed by
regulations". Under section 263(2),
"such
regulations may in particular provide for securing -
(a) that
any application by such an authority for planning permission to develop such
land, or for any other consent required in relation to such land under those
provisions, shall be made to the Secretary of State and not to the planning
authority".
[8] The
relevant regulations at the material time were the Town and Country Planning
(Development by Planning Authorities) (Scotland)
Regulations 1981 (S.I. 1981 No 829), as amended ("the 1981 Regulations"). Regulation 3 provides:
"Application of Part III of Schedule 19 to the Act
3. In relation to the development
by local authorities of land in respect of which they are planning authorities,
the provisions of the Act specified in Part III of Schedule 19 to the Act,
shall have effect subject to the exceptions and modifications prescribed in
these regulations."
The reference in that regulation to
the provisions specified in Part III of Schedule 19 to the Town and Country
Planning (Scotland) Act 1972 ("the 1972 Act") has now to be construed as
referring to the provisions specified in Part II of Schedule 18 to the 1997
Act, by virtue of section 2(4) of the Planning (Consequential Provisions)
(Scotland) Act 1997.
[9] Regulation
4, so far as material, provides:
"Publicity for development
4.-(1) Where a local authority require planning permission for development
which they propose to carry out in the area in respect of which they are the
planning authority and which is not granted by a development order, they shall
publish a notice in a local newspaper circulating in the locality of the land
which they propose to develop, stating-
(a) their
intention to carry out the development described in the notice;
(b) the
address and time at which plans of the proposed development may be inspected,
and
(c) that
representations may be made in writing to the planning authority within 21 days
of the date of publication of the notice.
(2) Before publishing a notice
under paragraph (1) of this regulation the planning authority shall-
(a) give the requisite notices in
writing for the purposes of section 24 of the Act (notification of applications
to owners and agricultural tenants) to all persons who were, at the date of
service of the notice, owners of the land or the tenants of any agricultural
holding comprised in the land, in the forms prescribed by a development
order; and
(b) carry out such consultations
as would have been required by a development order had an application for
planning permission for the development described in the notice been made to
them under Part III of the Act; and
(c) comply with such requirements
of any development order and of any direction given by the Secretary of State
thereunder as would have had to be complied with by an applicant were an
application for planning permission made to the planning authority for the
development proposed."
The effect of these provisions is
to require the planning authority to publicise their intention, to notify
owners and agricultural tenants, and to carry out consultations, in the same
way as if an application for planning permission had been made (the references
to section 24 and Part III of the 1972 Act being now construed as referring to
section 35 and Part III of the 1997 Act).
[10] Regulation 5, so far as material provides:
"Deemed permission for development
5.-(1) On
the expiry of-
(a) the period of 21 days
beginning with the date on which the notice required by regulation 4 of these
regulations was published . . . where no representations against the proposed
development have been made to the planning authority (whether in response to
such notices or otherwise), planning permission for the development described
in the notice shall . . . be deemed to have been granted by the Secretary of
State on that date."
[11] Regulation 6, so far as material, provides:
"Notification and applications to the Secretary of State
6.-(1) Where-
. . .
(c) representations
against a development described in a notice published in terms of regulation 4
of these regulations have been received by the planning authority (whether in
response to such a notice or otherwise),
the planning authority shall, on
the expiry of the period referred to in regulation 5(1) of these regulations,
give notice to the Secretary of State in the form set out in the Schedule to
these regulations of-
(i)
their intention to carry out the development described
in the notice,
(ii)
any consultations carried out by them,
(iii)
any representations received by them,
. . .
and the Secretary of State may
require the planning authority to make an application to him for planning
permission for the development described in the notice served upon him.
. . .
(3) If, on the expiry of 28 days
from the receipt by the Secretary of State of the notice referred to in
paragraph (1) of this regulation (or such longer period as the Secretary of
State may, during the said month or any period so extended, notify in writing
to the authority) the Secretary of State does not require the planning
authority to make an application to him for planning permission in respect of
the development described in that notice, planning permission for the
development so described shall be deemed to have been granted by the Secretary
of State.
. . .
(5) An application for planning
permission made under paragraph (1) above shall be deemed to be an application
referred to the Secretary of State under section 32 of the Act and the
provisions of that section shall apply to the determination of the application
by the Secretary of State."
[12] In relation to regulation 6(1), the form of notice set out in
the Schedule to the 1981 Regulations states that the planning authority intend
to develop land of which they are the planning authority, in accordance with
the enclosed plans, and also states the nature of the proposed
development. The form continues:
"A site plan of the land is also
enclosed along with copies of all the representations which have been made to
the authority objecting to the proposed development and the planning
authority's observations thereon.
The [name of planning authority] have consulted with every authority,
person and body with whom a planning authority are required to consult before
dealing with an application for planning permission, and the Schedule hereto
contains brief particulars of such consultation . . ."
In relation to regulation 6(5), the
reference to section 32 of the 1972 Act should now be construed as referring to
section 46 of the 1997 Act, which is concerned with planning applications which
are called in by the respondents. Under
that provision, the planning authority are entitled to a hearing before a
person appointed by the respondents before the application is determined, but
there are no other material requirements of a procedural nature.
[13] It will be noted that planning permission is deemed to be granted
by virtue of regulation 6(3) without the necessity of any decision by the respondents:
it is the absence of a positive decision to require that an application be made
which results in the deemed grant. That position
is altered where, as in the present case, the Environmental Impact Assessment (Scotland)
Regulations 1999 (S.S.I. 1999 No 1), as amended ("the 1999 Regulations") are applicable. Those regulations are discussed below in the
form in which they stood at the date of the decision complained of.
[14] The 1999 Regulations provide that, for certain categories of
development, an applicant for planning permission must supply the planning
authority with an environmental statement.
Such an application for planning permission is described as an "EIA
application". The environmental
statement must be publicised, and publicly available, and representations may
be made in response to it. The
environmental statement, and the responses to it, must then be taken into
consideration by the planning authority when a decision on the application is
made. Where such an application has been
determined by a planning authority, the authority are required under regulation
21 to inform the respondents, specified consultation bodies and the public of
their decision, and must make available for public inspection a statement
containing, amongst other matters, the main reasons and considerations on which
the decision is based.
[15] The relevant provisions of regulation 21 of the 1999
Regulations are in the following terms:
"Duties to inform the public and the Scottish
Ministers of final decisions
(1) Where an EIA application is
determined by a planning authority, the authority shall-
(a) in writing, inform the
Scottish Ministers and the consultation bodies of the decision;
(b) inform the public of the
decision (and of where the statement referred to in sub-paragraph (c) may be
inspected), by publishing a notice in a newspaper circulating in the locality
in which the land is situated, or by such other means as are reasonable in the
circumstances; and
(c) make available for public
inspection at the place where the appropriate register (or relevant section of
that register) is kept a statement containing-
(i) the content of the decision
and any conditions attached thereto;
(ii) the main reasons and
considerations on which the decision is based;
and
(iii) a description, where
necessary, of the main measures to avoid, reduce and, if possible, offset the
major adverse effects of the development.
(2) Where an EIA application is
determined by the Scottish Ministers, they shall-
(a) notify the relevant planning
authority and the consultation bodies of the decision; and
(b) provide the authority with
such a statement as is mentioned in paragraph (1)(c).
(3) The relevant planning
authority shall, as soon as reasonably practicable after receipt of a
notification under paragraph (2)(a), comply with sub-paragraphs (b) and (c) of
paragraph (1) in relation to the decision so notified as if it were a decision
of the authority."
[16] A modified version of this scheme applies where the development
is proposed by the planning authority themselves. Under regulation 22(5), the planning authority
are required to prepare an environmental statement. Under regulation 24(2), the authority must
include information about the environmental statement in the notice published
under regulation 4(1) of the 1981 Regulations:
"The notice to be so published
shall contain, in addition to the information specified in regulation 4(1) of
the 1981 Regulations, a statement-
(a) that
an environmental statement has been prepared;
(b) that copies of the
environmental statement may be inspected and acquired at the same address and
times as the plans of the development may be inspected;
. . . and
(d) that representations may be
made in writing to the planning authority within 4 weeks of the date of
publication".
Provision is also made for the
consultations carried out under regulation 4(2)(b) of the 1981 Regulations to
be supplemented by consultation of the specified consultation bodies on the
environmental statement.
[17] Regulation 25 of the 1999 Regulations provides:
"Granting of planning permission to planning authority
25.-(1) No planning permission shall be deemed to have been granted under
regulation 5(1) of the 1981 Regulations where, if the development were the
subject of an application for planning permission, it would be an EIA
application.
(2) Where paragraph (1) applies,
the provisions of regulation 6 of the 1981 Regulations shall apply as if the
development were one of the classes of case specified in paragraph (1) of
regulation 6 of the 1981 Regulations.
(3) When complying with the
provisions of regulation 6 of the 1981 Regulations in respect of a development
to which paragraph (1) of this regulation applies, the planning authority shall
accompany their notice of intention to develop with a copy of the environmental
statement and the Scottish Ministers shall consider the environmental statement
and issue a decision as to whether or not to require the planning authority to
make an application to them for planning permission and shall state in their
decision that they have considered the statement."
It follows from paragraphs (1) and
(2) that all proposed developments for which a planning authority require
planning permission (which is not granted by a development order) and which
would otherwise be the subject of an EIA application must be notified to the respondents
under regulation 6 of the 1981 Regulations, whether representations are made
against the development or not.
Paragraph (3) is particularly important in the present case: its effect,
when read with regulation 6(3) of the 1981 Regulations, is considered below.
[18] Regulation 26 of the 1999 Regulations provides:
"Intimation of decision
26. Where the Scottish Ministers
decide under regulation 25(3) that the planning authority are not required to
make an application to them for planning permission, they shall take the steps
described in paragraph (2) of regulation 21 and the authority shall comply with
paragraph (3) of that regulation."
Roads legislation
[19] The
construction of road bridges over navigable waters is dealt with by section 75
of the Roads (Scotland)
Act 1984 ("the 1984 Act"). In
particular, section 75(3) provides:
"(3)
Provision may be made by a scheme under this subsection-
(a) made by a local roads
authority and confirmed by the Secretary of State . . .
for the construction, as part of
a public road (other than a special road) of a bridge over or a tunnel under
any specified navigable waters."
The expression "specified navigable
waters" means such navigable waters as may be specified in the scheme: section
75(7). In relation to procedure, section
75(4) provides that Parts II and III of Schedule 1 to the 1984 Act (i.e.
paragraphs 9-18) are to have effect.
[20] Paragraphs 9 and 10 of Schedule 1 require that notice of the
proposed scheme should be advertised and also served on the relevant navigation
authority, with a period allowed for the lodging of objections. In the event that an objection is received
and is not withdrawn, the respondents are required by paragraph 11 to cause a
local inquiry to be held. That
requirement is however subject to paragraph 19, which is concerned with schemes
and orders which are subject to special parliamentary procedure. In relation to that procedure, section 76 is
relevant. In particular, section 76(4)
provides:
"(4) If an objection to an order
or scheme proposed to be made ... is duly made in accordance with Schedule 1 to
this Act by
(a) any navigation authority on whom notice is
required to be served under ... paragraph 10 of that Schedule
. . . on the ground that the
bridge or tunnel is likely to obstruct or impede the performance of their, or
as the case may be, its functions under any enactment, or to interfere with the
reasonable requirements of navigation in the waters affected by the order, and
the objection is not withdrawn, the order shall be subject to special
parliamentary procedure and Part IV of that Schedule shall have effect for the
purposes of the application of the Statutory Orders (Special Procedure) Act
1945 to the order."
Part IV of Schedule 1 comprises
paragraph 19, which modifies in certain respects the application of the
Statutory Orders (Special Procedure) Act 1945 ("the 1945 Act"). In particular, paragraph 19 provides:
"In relation to a scheme or order
to which this Schedule applies which is subject to special parliamentary
procedure-
. . .
(b) any inquiry required by
paragraph . . . 11 above . . . shall, if the Secretary of State so directs, be
held by commissioners under the Private Legislation (Procedure) (Scotland) Act
1936; and any directions so given shall
be deemed to have been given under section 10 of the said Act of 1945."
The effect of the 1945 Act, prior
to the entry into force of the Scotland Act 1998, was to require that an order
which was subject to special parliamentary procedure should be laid before
Parliament by a Minister and brought into operation in accordance with the
provisions of the Act. Those provisions
required that, in the event that there were objections to the order being made
or confirmed, the Minister should direct an inquiry to be held by commissioners
under the Private Legislation Procedure (Scotland)
Act 1936.
[21] The application of these provisions has been modified in
consequence of the establishment of the Scottish Parliament. Section 94 of the Scotland Act applies where
an earlier statutory provision has the effect of requiring any order to be
subject to special parliamentary procedures; and section 76(4) of the 1984 Act is
such a provision. By virtue of section
94(2), the provision is to have effect as if it required the order
"(a) to be
confirmed by an Act of the Scottish Parliament, or
(b) (as the case may be) to be
subject to such special procedure as may be provided by or under such an Act".
[22] This matter is further addressed by the Scotland Act 1998
(Transitory and Transitional Provisions) (Orders subject to Special
Parliamentary Procedure) Order 1999 (S.I. 1999 No 1593) ("the 1999
Order"). That Order provides, by article
3, that its provisions are to be treated for the purposes of section 94(2)(b)
of the Scotland Act as special procedure provided by or under an Act of the
Scottish Parliament (since no issue is taken in these proceedings as to the vires of that provision, I need not consider
the scope of the powers to make delegated legislation conferred by the Scotland
Act). Article 6 of the Order provides
that if an objection is made to a special procedure order, it is not to take
effect unless it is confirmed, with or without amendments, by an Act of the
Scottish Parliament. The Bill for such
an Act has to be introduced either by the applicant for the order or by the
respondents, and is to be treated as a Private Bill for the purposes of the
standing orders of the Parliament. In
that regard, the relevant standing orders (contained in Chapter 9A of the
Standing Orders of the Scottish Parliament) provide that such a Bill is to be
considered by a Private Bill Committee, which can either itself hear the
evidence of the promoters and objectors, or can have the evidence heard by an
assessor who reports to the Committee.
It appears from the parties' submissions that in practice, in a case
such as the present, the evidence is likely to be heard by an assessor, who can
be expected to be a member of the respondents' Reporters Unit, i.e. the body of
persons who normally conduct inquiries under planning legislation. After consideration by the Committee, the
Bill (with or without amendment by the Committee) goes before the Parliament
for a decision as to whether it should be passed (with or without amendment).
Statements of policy and practice
[23] It is also relevant to note certain documents published by the
respondents or their predecessor, containing statements of policy and practice,
to which reference was made in the course of the argument.
Scottish Planning Policy 1
[24] Scottish Planning Policy 1
("SPP1"), The Planning System, states
at paragraph 65, under the heading "The Role of the Scottish Executive in
Development Control":
"The Scottish Ministers have a
general power to intervene in planning applications. Since 1996 the number of planning
applications notified has risen but the number of applications called in by the
Scottish Ministers for determination has remained fairly static at 25-30 each
year. Planning decisions are primarily a
matter for planning authorities and intervention by Ministers is generally only
in circumstances where a proposed development raises an issue of national
importance, or where proposals represent a significant departure from the
approved structure plan for an area and/or national planning guidance. Ministers may also intervene where it is
considered that a planning authority has failed to give full consideration to
local objection. A substantial volume of
objections is not, however, in itself sufficient grounds to call-in a planning
application. Similar considerations apply in relation to developments by planning
authorities" (emphasis added).
Circular 4/1997
[25] Circular 4/1997, Notification
of Planning Applications, states:
"14. When considering NIDs
[notices of intention to develop] which are submitted to him under Regulation 6
of the Development by Planning Authorities Regulations 1981 the Secretary of
State will, in deciding whether to call for a formal application from a
planning authority, continue to consider each case individually. He will make a presumption against calling
for a formal application where the proposed development either:-
a.
accords with the adopted or approved local plan for the area; or
b.
has not attracted a significant body of objections.
15. The only situation in which
these general presumptions will not apply is where the NID is linked to a
Compulsory Purchase Order (CPO). The
Secretary of State may call in such a NID, if the CPO is to be the subject of a
public local inquiry, to enable the planning aspects of the proposal to be
considered alongside the case for compulsory purchase.
16. When planning authorities
submit NIDs which are in accordance with the terms of the adopted Local Plan
for the area, they should draw this to the Secretary of State's attention and
quote the terms of the policy or policies of the Plan with which their
proposals comply."
Planning Advice Note 75
[26] Planning Advice Note 75
("PAN 75"), Planning for Transport,
states at paragraphs 56-57:
"56. It is a requirement of the
Scottish Executive that all transport related projects which require its
approval or for which it provides funding shall be appraised in accordance with
the Scottish Transport Appraisal Guidance: STAG (except for projects which were
before Scottish Ministers before July 2001).
57. It is recommended to local
authorities and consultants that STAG is used for the appraisal of transport
projects for which they have responsibility.
It should be used by all organisations developing transport projects or
policies for all types and sizes of transport planning exercises, from the
development of a rural bus scheme to a multi-modal corridor study."
The factual background
[27] In order to proceed with the
bridge proposal, the Council required to obtain a variety of statutory
permissions and orders. Under planning
legislation, in particular, they required planning permission. They decided to seek to obtain such
permission by following the procedure laid down in the 1981 Regulations. In view of the scale of the proposed
development and its potential effects on the environment, the Council also
required to prepare an environmental statement.
Since the proposed bridge passed over navigable waters, the Council also
required to promote a roads scheme.
Other consents and orders, including a compulsory purchase order, were
also required.
[28] In December 2003 the Council published a notice of intention to
develop ("NID 1"), in accordance with regulation 4 of the 1981
Regulations. At the same time, they
provided information relating to the environmental statement, as required by
regulation 24 of the 1999 Regulations.
Representations were made in response to NID 1, and in response to the
environmental statement, by a number of interested parties, including the
petitioners.
[29] In their representations in response to NID 1, the petitioners
wrote:
"4. The objectors ... believe the
proposed development is likely to obstruct or impede the performance of their
functions as Harbour Authority ... and/or to interfere with the reasonable
requirements of navigation over the waters, namely Lerwick
Harbour ...
Matters of concern include the
absence in the Application and supporting drawings or plans of precise details
of the location and dimensions of the bridge, including supporting pillars, in
relation to the navigation channel ... In addition, the width of its central span, as
proposed, would be insufficient to permit safe maintenance and future
development of the navigation channel.
No details are given of the Hydrological study and Hydrodynamic modelling
study referred to in the Environmental Impact Assessment and the effect of the
proposed development on the harbour and vessels using same during both the
construction and post construction periods.
In respect of dredging it may not
be possible to dredge at all post-construction or if dredging is possible the
costs are likely to increase substantially.
In any event no information is provided as to how pier foundations are
to be constructed or the protection of same from future dredging of the
channel.
5. Since the lodging of the
Application Shetland Islands Council have agreed the extent of the intrusion of
the construction causeways (which may partly become a permanent feature) on the
90 metre navigational channel. The
extent of the intrusion is 19 metres.
If the construction causeways are
temporary this will involve the closure or partial closure of the navigation
channel for an estimated period of up to 92 weeks during the construction phase
which will greatly disrupt harbour activities.
If the construction causeways are
not removed but rather partially retained as rock islands to support the
pillars then the width of the channel will be permanently restricted and the
speed of the water flowing through same will be greatly increased.
The two main consequences which
arise are that the channel will become less safe from the point of view of
navigation, the size of vessel which will be able to use same will be
reduced. Furthermore, the speed of the
tidal flow is likely also to have an adverse effect on larger and also on smaller
vessels not having the power to negotiate the constricted channel.
The effects of the altered tidal
flow will not be limited to the navigational channel itself. The undoubted eddies which will be created in
the vicinity of the construction causeways will further increase any
frustrations or difficulties experienced as a result of the increase in tidal
flow rate. This may cause difficulties
in berthing vessels such as reefers at, for example, the pier at the premises
of Shetland Catch Ltd."
[30] In their representations in response to the environmental
statement, the petitioners wrote:
"(i) The indicated width of the
bridge span over the navigational channel is insufficient and in particular
insufficient to accommodate its future development. The minimum width needs to be 160 metres
measured between the inner edges of the foundations adjacent to said
channel. This objection presupposes
pre-dredging of the navigational channel by the applicant. If this is not intended to take place then
the minimum 160 metre width referred to will almost certainly need to be
increased in order to accommodate potential future development.
...
(iii) It is stated in the ES that
the 'piers will rise directly from the water or from man made islands designed
to protect their bases from ship collision for a vessel up to 5,000 tonnes in
weight and moving at 4m per second.' The
vessel design weight is too low. Present
and predicted future vessel size is/will be significantly greater than 5,000
tonnes and provision requires to be made for this ...
(iv) ... No consideration has
been given to the effects of the bridge on navigation of vessels except in
relation to air draft. This gives rise
to serious actual and potential concerns regarding likely difficulties ..."
In supplementary representations,
the petitioners wrote:
"[T]he bridge, if built in accord
with the plans as submitted with SIC's planning application and as described in
the ES, will cause partial blockage of the [navigation] channel".
[31] On 13 May 2004
the Council gave notice to the respondents of their intention to carry out the
development described in NID 1, in terms of regulation 6 of the 1981
Regulations. Notice was given in the
form set out in the Schedule to the 1981 Regulations, and stated that the
Council were enclosing "copies of all the representations which have been made
to the Authority objecting to the proposed development and the Planning
Authority's observations thereon". The
documents enclosed with the notice, so far as material, included the following:
(1) The environmental statement.
This described the planning context of the bridge proposal, and set out
an appraisal of the proposal against structure plan and local plan policies,
with cross-references to other sections of the statement where more detailed
information could be found about particular topics.
(2) A report dated 4 May
2004 submitted to the Council's Infrastructure Committee by an
official in their Infrastructure Services Department. One of the purposes of this report was to
review the objections to the NID and the environmental statement. Copies of the objections were included in an
appendix to the report. The principal
points raised in each letter of objection were summarised in a further
appendix. Key issues were identified,
including the impact on navigation. A
chapter of the report was devoted to each key issue. The chapter concerned with the impact on
navigation reported on the issues raised by the petitioners, including the
position of the piers in relation to existing and proposed navigation channels,
the impact of the bridge on the future dredging of the channel, the impact of
the bridge on users of the port, the impact of the piers on tidal flow, and the
design of the piers for ship impact. It
then set out in detail the response of the Council's "bridge team" in relation to
each of those issues.
(3) A report dated 7 May
2004 submitted by the Council's planning officer to the Council's
Planning Sub-Committee, which incorporated the report and appendices which had
been submitted to the Infrastructure Committee.
It advised that the planning officer considered that the NID 1 proposals
complied with the development plan, and referred in that regard to the
assessment contained in the environmental statement.
(4) A minute of the meeting of the Council's Planning
Sub-Committee on 7 May 2004. The minute records that the meeting was
addressed by the Council's head of planning, and by the petitioners'
chairman. It appears from the minute
that much of the discussion at the meeting was concerned with the petitioners'
objections. Curiously, the decision
taken at the meeting is not recorded, but it appears that the sub-committee
must have passed a motion which was made that they should agree to Option 1 in
the planning officer's report and to paragraph 4.3 of the report. Option 1 was to "decide that the scheme
should proceed in the current form in which case the NID and EIA and associated
papers must be referred to the Scottish Ministers for consideration". Paragraph 4.3 was a statement that "the
proposals comply with the SIC Structure Plan and Local Plan policies as
assessed in the Environmental Impact Assessment".
[34] On 18 June 2004
the Council published a second notice of intention to develop ("NID 2"),
relating to proposed roadworks at the approach to the mainland end of the
bridge. It was common ground, at the
first hearing of the present petition, that the development in NID 2 was
intended to resolve a problem which would otherwise result from the roadworks
proposed in NID 1. It appears that NID 1
envisaged the construction of an embankment to the proposed approach to the
bridge, which would block the access road currently used by vehicles going to
and from the premises of Lerwick Fish Traders Ltd and Shetland Catch Ltd. NID 2 was designed to provide an alternative
means of access.
[35] By letter dated 22 June 2004 the respondents notified the Council
that they were not to be required to make an application for planning
permission in respect of the development described in NID 1, and that planning
permission for the development was accordingly deemed to have been granted by
the respondents, by virtue of regulation 6(3) of the 1981 Regulations. The petitioners applied for judicial review
of the respondents' decision.
[36] On 2 July 2004
the petitioners made representations against the development proposed in NID 2.
[37] On the same date, the Council published notice of a roads
scheme, as required by paragraph 9 of Schedule 1 to the 1984 Act. The notice was served on the petitioners, as
the navigation authority having jurisdiction over the waters affected, as
required by paragraph 10. The
petitioners submitted objections to the scheme to the respondents, in
accordance with paragraph 11. The scheme
consequently became subject to special parliamentary procedures, as previously
explained.
[38] In August 2004 the Council gave notice to the respondents of
their intention to carry out the development described in NID 2, and of the
representations which they had received.
[39] Later in 2004 the petitioners received reports which they had
commissioned from marine consultants on the channel access requirements for
marine traffic and the navigational impact of the proposed bridge. The consultants recommended that the
petitioners' current dredging proposals should be revised so as to create a
navigation channel which was wider and differently orientated. The petitioners amended their dredging plans
in accordance with the consultants' recommendations. As a result, the proposed location of one of
the central piers of the bridge now stood within the proposed navigation
channel.
[40] In February 2005 the petitioners applied to the respondents for
a harbour revision order under section 14 of the Harbour Act 1964. The purpose of the proposed harbour revision
order was to authorise the petitioners to undertake land reclamation works
using materials derived from the proposed dredging. The petitioners maintain in their pleadings
that the documents submitted in support of the application for the harbour
revision order described the extent of the proposed dredging. Although the averment is not formally
admitted, it does not appear to be in dispute.
[41] On 28 June 2005 this court reduced the decision which the respondents
had taken on 22 June 2004 not to require the Council to make an application to
them for planning permission in respect of NID 1, the respondents having
conceded, in a joint minute of admissions, that their decision was invalid by
reason of their failure "(a) to make reference in the decision to an
environmental statement; and (b) to
provide their main reasons and considerations, as are required by the (sic) Regulations 25(3) and 21(2) of the
[1999 Regulations]".
[42] In August 2005 the Council lodged an application for judicial
review of the present petitioners' decision to revise their dredging
proposals. The respondents were convened
as respondents to that application. The
application was presented after the present petitioners had entered into a
contract for the carrying out of the dredging work, and shortly before the work
was due to begin. The work was prevented,
for the time being, by an order granting interim interdict.
[43] During August 2005 the respondents also wrote to the parties
who had submitted representations in respect of NID 1, including the
petitioners, asking whether they had any new evidence or information which they
considered ought to be taken into account before a fresh decision letter was
issued (following the quashing of the initial decision). In response, letters were sent to the
respondents on behalf of the petitioners, Lerwick Fish Traders Ltd, Shetland
Catch Ltd and the Shetland Fish Producers Organisation, amongst others.
[44] The petitioners responded first by letter dated 12 August 2005,
adopting the terms of an earlier letter sent by their solicitors, Anderson
Goodlad, to the Office of the Solicitor to the Scottish Executive. In that letter, the petitioners' solicitors
had written, in connection with the first application for judicial review:
"1 Matters
of national planning importance
The fact is that at the very
least, the objections tendered timeously by the Authority to Shetland Island
Council ("SIC") do canvass and set out matters of greater than local importance
. . .
The Board of the Authority is
responsible for a major harbour, constituted and regulated under national and
local parliamentary legislation. Its
activities do not just have local significance, but also have to deal with
international shipping; dredging and
pollution . . .
2 Whether Ministers should now require a planning application
This power is discretionary, as the Petition recognises, but it is
axiomatic that any discretion exercised by Ministers in a case such as this
must be fully informed. We have
difficulty in seeing how such a decision can be said to be fully informed
without some qualitative analysis of the objections of the Port Authority, and
a critical examination of SIC's reasons for wishing to develop this bridge.
If Ministers called for a
detailed planning application, then these issues, and many others of equivalent
importance, would have to be examined by SIC, and the ES would have to be
brought up to date. You will have
observed that it is now 15 months or so out of date. Then, and then only, would Scottish Ministers
have sufficient relevant and contemporary information before them to make an
informed decision . . ."
[45] In a further letter, dated 14 September 2005, the petitioners' solicitors wrote:
"[T]here is one area of extreme
importance which we consider should be explored at this stage, namely the
inter-relationship between [NID 1] and [the roads scheme].
Our client Authority have
objected to both NID 1 and the Road Scheme as well as various other
applications by SIC in connection with the Bridge. The procedure in respect of objections to NID
1 are governed by Planning Legislation.
However, the objections by LPA, as the relevant navigation authority, to
the Road Scheme are governed by Special Parliamentary Procedure as set out in
the Roads (Scotland)
Act 1984.
Given that both applications deal
with inter alia the construction of a
bridge between Lerwick and Bressay over the navigable waters of Lerwick
Harbour, it is submitted that it
would be wholly inappropriate for the Scottish Ministers to consider
determining NID1 without a Public Local Inquiry."
[46] In a third letter, dated 30 September 2005, the petitioners'
solicitors raised an issue relating to section 57 of the 1997 Act, which is not
material to the present proceedings, and added:
"It goes without saying that we
maintain all our earlier objections including by letter to NID 1 ... Our earlier objections to NID 2 are also
maintained."
[47] In a fourth letter, dated 10 October 2005, the petitioners'
solicitors observed that the bridge project would fall within the scope of
class 29 of the GPDO in the event that the roads scheme were to be approved by
an Act of the Scottish Parliament, and argued that the submission of NID 1 and
NID 2 constituted an application for "prior approval" within the meaning of
class 29.
[48] By letter dated 15 May 2006 the respondents notified the
Council, for the second time, that they were not to be required to make an
application for planning permission in respect of NID 1, and that planning
permission for the development was accordingly deemed to have been
granted. By a further letter of the same
date, the respondents notified the Council in similar terms in respect of NID
2. These are the decisions which are
challenged in the present proceedings.
[49] In the decision letter relating to NID 1 ("the decision
letter"), the respondents wrote:
"1. I refer to Shetland Islands
Council's letter and enclosures of 13 May 2004 providing formal notice, under
regulation 6(c) of the above (1981) Regulations, of the intention to carry out
the above mentioned development.
2. As you are aware, this
Department indicated, on 22 June 2004, that your Council was not to be required
to make an application for planning permission in respect of this proposed
development in terms of regulation 6(3) of the above Regulations, and that
planning permission for the development, as described in the notice, was
accordingly deemed to have been granted by the Scottish Ministers.
3. That decision was, however,
subsequently the subject of a petition for Judicial Review brought before the
Court of Session by Lerwick Port Authority.
The Scottish Ministers thereafter indicated that they intended to
concede the petition . . . [The] Scottish Ministers' decision of 22 June 2004 was thereafter reduced
by the Court on 28 June 2005. The decision of the Scottish Ministers, set
out in the letter of 22 June 2004,
now, therefore, falls to be determined anew.
4. As part of this process, by
letter of 5 August 2005, the
Scottish Ministers asked all parties whom they were aware of having expressed
an interest in this proposal, whether they had any new evidence or information
which they considered ought to be taken into account before a fresh decision
letter was issued.
. . .
6. Specific issues raised by
Messrs Anderson Goodlad, on behalf of the Lerwick Port Authority, included
arguments relating to perceived deficiencies in the Environmental Statement
(ES) that accompanied the Notice of Intention to Develop (NID), particularly
that the ES did not take into account their objections; that they were not consulted; that they did not know whether the
Scottish Ministers had taken into account
their objections; and that the ES was
out of date and should now be updated.
It was further argued that it would be inappropriate for Ministers to
determine the NID without the holding of a public local inquiry as such an
inquiry is likely to be held to determine the associated Roads Scheme; that neither of the NIDs promoted by Shetland
Islands Council are necessary because Section 57 of the Town and Country
Planning (Scotland) Act 1997 ('the 1997 Act') comes into play in that a
separate authorisation (for the Roads Scheme) is required, and that such
authorisation may include a direction that planning permission is deemed to be
granted; and that, once the Roads Scheme
is authorised, permitted development rights would automatically be granted for
the construction of the bridge and associated roads by virtue of Class 29 of
the Town and Country Planning (General Permitted Development) (Scotland) Order
1992 ('the GPDO').
7. The correspondence from Iain
Smith Solicitors, on behalf of the Lerwick Fish Traders, is critical of
Shetland Islands Council's procedures, particularly with regard to the choice
of route and the impact this will have on their client's business, whilst the
response from the Shetland Fish Producers refers to the Lerwick Port
Authority's proposal to dredge a wider channel.
The response from DWS on behalf of Shetland Catch Ltd raises the issue
of a tunnel as an alternative crossing and expresses concern about Shetland
Islands Council's procedures, impact on local business etc.
8. The Scottish Ministers have
carefully considered all of the correspondence received from parties. In doing so they have had particular regard
to the content of the ES submitted with the NID, including whether it is
sufficiently up to date to enable them to reach a decision as to whether or not
they should require Shetland Islands Council to make a planning application to
them for the development described above.
9. The Scottish Ministers acknowledge that
almost two years have elapsed since the issue of the letter of 22 June 2004 and, as such, they have
considered whether it is necessary or appropriate for Shetland Islands Council
to be required to submit a new ES.
Having considered the ES and the representations from the parties the
Scottish Ministers are of the opinion that a new ES is not necessary. In reaching this view they are satisfied that
the development proposal before them has not changed since the submission of
the NID; that an environmental
assessment has been properly carried out;
and that, in their opinion, the information contained in the ES is
sufficient and relevant to enable them to give proper consideration to the
possible environmental effects of the proposed development. In this respect the Scottish Ministers are
satisfied that none of the correspondence received from parties since the issue
of the letter of 22 June 2004
identifies any specific issues (other than the issue of wider dredging
proposals - which is dealt with below) that is not adequately addressed in the
ES. In particular they note that the ES
summarises the findings of a feasibility study which addressed the question of
alternative types of crossing, including tunnel options, as well as different
locations for a crossing. The conclusion
of that study was that the preferred option was a fixed high level bridge
located at Point of Scatland, and full reasons for reaching that conclusion
were provided.
10. The Scottish Ministers have also had regard
to the points made by the Lerwick Port Authority to the effect that the ES, as
submitted, does not take into account the Lerwick Port Authority's objections
and that they were not consulted. The
Scottish Ministers are satisfied, however, that the Port Authority is not a
statutory consultee within the meaning of the Environmental Impact Assessment (Scotland)
Regulations 1999, as amended, and that there is no legal obligation for an ES
to take their views into account.
11. The Scottish Ministers have also addressed
the further points made by the Lerwick Port Authority about the associated
Roads Scheme and the provisions of Section 57 of the 1997 Act and Class 29 of
the GPDO.
12. Firstly the Scottish Ministers have noted the
suggestion that it would be inappropriate for them to determine this NID
without the holding of a public local inquiry as such an inquiry is likely to
be held to determine the associated Roads Scheme. The Scottish Ministers are not aware of any
legal obligation which would require them to take such action in these
circumstances.
13. The Scottish Ministers note that the GPDO
provides that certain types of development, which would otherwise be subject to
a requirement to obtain planning permission under the 1997 Act, benefit from
permitted development rights. In a case
under Class 29, permitted development rights are secured by prior authorisation
of the development by a local or private Act or any order of the Scottish
Parliament. However, where the proposal
falls within Class 29(2)(a), which applies to the 'erection or construction of
a bridge', permitted development rights do not
automatically apply without further prior approval of the planning authority.
14. Under regulation 10 of the Town and Country
Planning (Development by Planning Authorities) (Scotland)
Regulations 1981, the planning authority would require to obtain that prior
approval from the Scottish Ministers.
However, in the opinion of the Scottish Ministers, a NID can not be
treated as an application for prior approval in terms of Class 29 in the way
suggested by the Lerwick Port Authority's agents. The Scottish Ministers are not aware of any
legislative provision that would effectively 'convert' the NID in this way, nor
are they aware of any provision that would oblige the Scottish Ministers to
treat the NID as an application for prior approval. Moreover, the effect of a decision on a NID
is the grant of deemed planning permission which, in the opinion of the
Scottish Ministers, is not the same as a grant of prior approval of
development, which otherwise has permitted development rights.
15. In any event, notwithstanding the line of
argumentation that authorisation under Section 57 may include a direction that
planning permission is deemed to be granted, the Scottish Ministers are of the
view that once a planning application, or in this case a NID, has been referred
to them it must be determined, whether or not it was necessary in the first
place. The only alternative would be for
the application, or NID, to be withdrawn, and your Council has not indicated
that it would wish to take such action.
Accordingly the Scottish Ministers are of the view that it is incumbent
on them to reach a decision on the NID as referred to them.
16. Each of the issues raised by the other
parties have (sic) also been
carefully considered by the Scottish Ministers, but they are satisfied that
they do not, individually or collectively, raise matters sufficient to require
Shetland Islands Council to make a planning application to them for the
development described above. In
particular, and with reference to the comments made on behalf of Lerwick Fish
Traders and Shetland Catch Ltd, the Scottish Ministers are satisfied that
Shetland Islands Council have progressed this NID in an appropriate manner and
have had regard to all relevant issues including the choice of crossing and the
likely impact on local businesses. The
Scottish Ministers are of the view that it would be inappropriate for them to
comment on the Lerwick Port Authority's proposal to dredge a wider
channel; this is currently the subject
of a legal challenge by Shetland Islands Council.
17. Accordingly, as required by Regulation 25(3)
of the Environmental Impact Assessment (Scotland) Regulations 1999, as amended,
the Scottish Ministers hereby affirm that they have considered the
environmental statement accompanying the above mentioned Notice of Intention to
Develop and have decided that Shetland Islands Council is not to be required to
make an application for planning permission in respect of this development in
terms of Regulation 6(3) of the Town and Country Planning (Development by
Planning Authorities) (Scotland) Regulations 1981. In reaching this decision the Scottish
Ministers have satisfied themselves that the content of the ES is sufficient
and relevant to enable them to consider the possible environmental impact of
the proposed development; that, in
promoting the proposed development, Shetland Islands Council has complied fully
with the terms of the 1981 Regulations and have had regard to all relevant
issues; and that neither the proposed
development, or the manner in which it has been promoted and progressed, raises
any issue of significance sufficient to warrant the Scottish Ministers'
intervention.
18. Planning permission for the development as
described in the NID is accordingly hereby deemed to have been granted by the
Scottish Ministers.
19. This letter may be regarded as the statement,
in terms of Regulation 21(1)(c)(i) and (ii) of the Environmental Impact
Assessment (Scotland)
Regulations 1999, as amended, by the Scottish Ministers of their decision with
regard to the above mentioned NID and their reasons and considerations on which
the decision is based. For the reasons
given above, the Scottish Ministers do not consider that a further statement in
terms of Regulation 21(1)(c)(iii) is necessary in this case. All relevant mitigation measures are
adequately dealt with in the Environmental Statement."
[50] On 20 June 2006
the first hearing of the Council's application for judicial review of the
present petitioners' decision to revise their dredging proposals began. It continued during June and July 2006, with
subsequent hearings By Order during November and December 2006. On 12
January 2007 the application was refused: Shetland Islands Council v Lerwick
Port Authority [2007] CSOH 06. The
interim interdict was recalled. The Council
did not appeal.
[51] In April 2007 the respondents made the harbour revision order
sought by the petitioners.
A preliminary point: the limits of planning law
[52] Before considering the grounds on which the respondents'
decisions are challenged, it is necessary to mention a preliminary point. One of the grounds of challenge which was
advanced in the petition for judicial review, but withdrawn in the course of
the argument, concerned the extent to which the proposed development fell
within the scope of planning controls.
The issue is nevertheless relevant to a consideration of some of the
remaining grounds of challenge: it is
necessary to understand what planning law is concerned with in order to decide
what may or may not be a relevant consideration, and whether powers have or
have not been exercised reasonably.
[53] As previously explained, planning permission is required for
the carrying out of any "development of land", under section 28(1) of the 1997
Act. The term "development" is defined
by section 26(1) as meaning
"the carrying out of building,
engineering, mining or other operations in, on, over or under land, or the
making of any material change in the use of any buildings or other land."
In relation to the term "land",
section 277(1) provides:
"'land' includes land covered
with water and any building as defined by this section."
[54] In Argyll and Bute
District Council v Secretary of State
for Scotland 1976 S.C. 248 it was held that the term "land", as used in the
1972 Act (which included the same definition as is now contained in section 277
of the 1997 Act), did not include the seabed below low water mark. The correctness of that decision was not
questioned in the argument before me, and it is in any event binding upon me.
[55] In the light of that decision, the respondents' approach to the
limits of planning jurisdiction, as it was explained to me, is as follows. Planning control does not extend to areas of
the seabed lying below low water mark.
Accordingly, operations on or under the seabed, including the building
of structures fixed to the seabed, are not ipso
facto within the scope of planning control.
On the other hand, a structure which is attached to land is itself land,
by virtue of the principle of accession, except insofar as the structure lies
below low water mark. In the present
case, the part of the proposed bridge which lies across the sea will be
attached to land at either end, and will therefore itself be land, by virtue of
accession. That part of the bridge
therefore requires planning permission, as much as the parts which are to be
constructed on land. The only parts of
the bridge which lie beyond the scope of planning control are the parts which
lie below the level of the sea at low water mark, i.e. the lower parts of the
piers and their foundations. In support
of this approach, reference was made to the discussion of accession in Gordon, Scottish Land Law (2nd edition)
at paragraphs 4-17 to 4-18 and 5-03, which is concerned with the circumstances
in which moveable property becomes heritable by accession to land, and
therefore becomes the property of the owner of the land. Reference was also made to cases concerned with
the law of valuation for rating, where questions had arisen whether particular
subjects located on or over the seabed were heritable and therefore rateable (there
being no doubt that the jurisdiction of the rating authority extended beyond
low water mark). The cases cited
included Forth Railway Bridge Co v Assessor of Railways and Canals in Scotland
(1890) 1 Poor Law Mag. 147, Dunoon
Commissioners v Hunter's Trustees
(1895) 22 R. 379, Leith Docks Commissioners
v Magistrates of Leith 1911 S.C.
1139, Christie v Magistrates of Leven 1912 S.C. 678 and Assessor for Glasgow v RNVR
Club (Scotland) 1974 S.C.67.
[56] As I understand the respondents' approach, the construction of a
part of the bridge such as a supporting pier is to be regarded as the carrying
out of an operation on land within the meaning of section 26(1) of the 1997 Act,
and therefore as the development of land within the meaning of section 28(1); the "land" in question being the land above
low water mark on each of the landward sides of the bridge, and the
construction of the pier being regarded as an operation on that land because,
once constructed, the pier will be treated under the law of property as an
accession to that land. That analysis is
however restricted to the part of the pier which rises above the level of the
sea which is equivalent to the low water mark on the shoreline: the part of the pier below that level is
excluded from planning control, following the Argyll and Bute District Council case.
[57] Although counsel for the petitioners expressed scepticism about
this analysis, they did not invite the
court to reject it or to proceed on any other basis. In the circumstances, it would be
inappropriate for me to express any opinion as to the correctness or otherwise
of the respondents' theory. I require
however to consider whether, according to their own theory of the ambit of
planning law, the respondents have acted lawfully and reasonably.
The grounds of challenge
[58] A large number of grounds of
challenge were advanced in the petition for judicial review. These became more focused in the course of
the argument, and were ultimately summarised as being (1) failure to have regard
to material considerations, (2) unreasonableness, (3) failure to follow the
respondents' policy and (4) failure to give reasons. I shall consider each of these in turn. I would however observe that they are not
entirely discrete, but overlap to some extent.
[59] The grounds of challenge are all concerned with the decision in
respect of NID 1. On behalf of the
petitioners, it was submitted that, if that decision were reduced, the decision
in respect of NID 2 should also be reduced, since NID 2 was supplementary
to NID 1. On behalf of the
respondents, on the other hand, it was submitted that each decision had to be
considered separately: the decision in respect of one proposed development was not
automatically vitiated by a flaw in the decision in respect of another proposed
development, even where the proposals were related to one another. Reference was made to Pilkington v Secretary of
State for the Environment [1973] 1 W.L.R. 1527 at page 1531 per Lord Widgery C.J. I do not require to resolve this question: in
the light of my conclusions in respect of the challenge to NID 1, as
explained below, the consequential challenge to NID 2 does not arise.
Failure to have regard to
material considerations
The submissions for the
petitioners
[60] On behalf of the
petitioners, it was submitted that the 1981 Regulations existed in recognition
of the fact that local authorities would from time to time wish to carry out
development themselves. At such times,
local authorities required to obtain planning permission. Plainly, a local authority could not obtain
that permission from themselves: nemo iudex in sua causa. The authority must therefore apply to the
respondents for such permission, as envisaged by section 263 of the 1997 Act. The 1981 Regulations allowed for an
abbreviated way of proceeding, in that the respondents could decide not to
require the making of an application for planning permission. It was the substance of this decision which
mattered, not its form. The effect of
the decision was to put the local authority in the position of a developer with
planning permission. Counsel for the
respondents suggested that, if the respondents did not require an application
to be made, the planning merits of the proposal were decided by the local
authority. That was not how matters
worked in reality: if the respondents decided not to require an application,
there was no adjudication of the merits of the proposal at all. Nothing in the 1981 Regulations required the
local authority to consider the planning merits of their proposal, and their
conflict of interest meant that it was not in any event feasible for them to do
so. It followed that the respondents'
role was not simply a check on the actings of the local authority.
[61] The bridge proposal did
not appear to benefit from any presumption against requiring an application,
under Circular 4/1997. In particular,
although the circular requested local authorities to draw the attention of the
respondents to conformity with the development plan, that was not done in the
letter of 13 May 2004. Although the environmental statement
contained an assessment of conformity with the development plan, the only
policy specifically relating to a bridge was designed to safeguard land in
locations where it might be required for future bridges. Objections were made to the proposal on the
basis that it did not conform to the development plan, as was clear from the
material submitted by the Council to the respondents. The element of the proposal which was of
greatest concern to the petitioners and other objectors - the location of the
piers in the Sound of Bressay - was not in the plan. The respondents' decision letter did not in
any event mention the plan. It was not
possible to discern that that factor had influenced the respondents' decision.
[62] On any view, the proposal was not straightforward. That there were objections that a public body
would be hindered in the fulfilment of its statutory responsibilities could not
be other than a material consideration.
The court should infer from the decision letter that the petitioners'
initial objections (concerned with navigation) were not taken into
consideration by the respondents. They
were not referred to in the decision letter: the issues which were listed in paragraph 6, and
discussed in subsequent paragraphs, derived entirely from the letters sent by
the petitioners' solicitors from August 2005 onwards. The initial objections also required to be
considered. The decision letter bore to
be a statement of the "reasons and considerations on which the decision [was]
based". The respondents appeared to have
decided that navigation issues were best left to be dealt with under the roads
scheme. They were not entitled to adopt
that approach. The navigation issues
bore directly on the safety of the proposed structure (because of the risk of
collision by ships), and on the operation of the harbour and its future
development. The respondents could not
properly leave those planning issues to be resolved under the roads legislation. Reference was made to Gateshead Metropolitan Borough Council v Secretary of State for the Environment (1996)
71 P.&C.R. 350 and to Di Ciacca v
Scottish Ministers 2003 S.L.T. 1031
at pages 1040-1044. Unlike in the Gateshead case, the
respondents could not be satisfied that the issues would be determined by an
expert body. Nor could they be satisfied
that the same decision would be taken under the roads legislation as a planning
authority would take.
[63] Even if the role of the respondents was limited to checking the
way in which the Council were dealing with the objections, that examination
would have revealed that the objections had not been resolved. If the respondents had taken into account the
navigation objections and the petitioners' dredging requirements, they could
not have failed to appreciate that there existed a significant dispute as to
whether the bridge proposal should go ahead.
In such circumstances, the only reasonable course was to require that an
application for planning permission should be made. It was difficult to envisage a situation more
deserving of the active involvement of the respondents than one where two
public bodies were in disagreement about a major infrastructure project in
their area.
[64] The respondents took their decision in the knowledge that the
petitioners were maintaining that their implementation of their statutory duties
would be frustrated by the building of the bridge. The existing state of the navigation channel
was unsatisfactory. In order for the
harbour to be developed, in accordance with the petitioners' statutory duties,
dredging was necessary. To deal with
this matter on the basis that it was sub
judice was to fail to have regard to a material consideration, namely the
need for dredging work. There would have
been no difficulty in having regard to the need for such work, and to the petitioners'
contention that that work would be jeopardised by the building of the
bridge. The relevant factor was not
whether the implementation of particular dredging proposals would render impossible
the implementation of planning permission to build the bridge, but whether the
bridge proposal was consistent with the proper maintenance and development of
the harbour. Reference was made to Land Securities Group plc v North Lanarkshire Council 2005 S.L.T
849. The present case was
distinguishable, in that the petitioners' decision that dredging was necessary
in the area in question was a material planning consideration, whatever the
outcome might be of the proceedings for judicial review of the petitioners'
decision to undertake such dredging.
The
submissions for the respondents
[65] On behalf of the
respondents, it was submitted that a decision taken by the respondents under
regulation 6(1)(c) of the 1981 Regulations was not a determination of the
planning merits of a proposed development.
The 1981 Regulations established a special procedure, which applied only
when a planning authority had decided to proceed with development. They did not have to make an application for
planning permission unless the respondents decided to require them to do
so. If there were no objections,
planning permission was deemed to be granted under regulation 5(1). Even if there were objections, planning
permission was deemed to be granted under regulation 6(3), unless the
respondents decided to require that an application be made. That procedure reflected the role of the planning
authority, and their political accountability.
In deciding whether to require that an application be made, the respondents
were not determining a planning application;
nor did they have to deal with objections to the NID as if they were
determining a planning application to which objections had been made.
[66] The respondents had a substantial amount of material before
them, which had been submitted with the NID.
It was clear from that material that the decision to submit the NID had
been taken by the Council's planning committee, following debate. The respondents were able to see what
material had been before the planning committee, and to form a judgment as to
the manner in which the Council had decided to proceed with the NID, the
procedures which had been followed, and what had been taken into account. The report before the committee had in
particular narrated the background to the proposal, and had set out the
objections to it (including those relating to navigation, and those relating to
alleged conflicts with the development plan), together with responses to the
objections. The environmental statement,
which was referred to in the report and had been available to the committee,
and had been submitted to the respondents, also dealt with these issues.
[67] In deciding whether to require a planning application to be
made, the respondents followed the approach set out in paragraph 65 of SPP1 and
in paragraphs 14-16 of Circular 4/1997.
The proposed development was not considered to raise an issue of
national importance; nor were the proposals
considered to represent a significant departure from the structure plan or
national planning guidance; nor was it
considered that the planning authority had failed to give full consideration to
objections. Although a compulsory
purchase order would be required, there were no current plans for any inquiry
to be held in respect of any such order.
In those circumstances, on the basis of the material submitted to them,
the respondents did not consider it necessary to require a planning application
to be made. That was a decision which
was reasonably open to them. In taking
that decision, the respondents had considered the petitioners' objections. The respondents' general approach was
reflected in the terms of the last sentence of paragraph 17 of the decision
letter.
[68] The decision letter had not discussed the issues raised by the
petitioners in their objections, but only those raised in the correspondence
which had passed following the quashing of the respondents' initial
decision. The fact that the latter
issues had been discussed reflected the unusual course which events had taken,
with the respondents contacting objectors and inviting the submission of
supplementary observations. That
procedure had no statutory basis, and the respondents had dealt in the decision
letter with the issues raised in that correspondence in greater detail than the
legislation required. The original
objections had remained before the respondents and had been considered.
[69] In that regard, junior counsel for the respondents said that it
was accepted that such navigation issues as the effect of the proposed
development on access to the harbour, and the risk of collision between ships
and the piers of the bridge, were relevant to planning. They were issues which had to be considered
by the authority dealing with the planning merits of the proposal. Reference was made to Harwich Harbour Conservancy Board v Secretary of State for the Environment [1975] 1 Lloyd's Rep.
334. The respondents did not however
require to address the merits of the navigation issues raised by the
petitioners. They merely had to satisfy
themselves that those issues, and the way in which the Council had dealt with
them, did not require that a planning application be made to the respondents. The respondents were also entitled to have
regard to the fact that the navigation issues would receive further
consideration under the roads scheme procedure, which would require a private
Act of the Scottish Parliament. It was
not a question of delegating planning powers to another body: such cases as Gateshead and Di
Ciacca were not in point. Those
cases were concerned with the exercise of a power to determine a planning
application, whereas the present case was concerned with a power of a different
nature. In exercising their discretion
under regulation 6 of the 1981 Regulations, the respondents were entitled to
have regard to the existence of another statutory regime if its existence was
relevant to their exercise of their judgment.
[70] Junior counsel for the respondents also accepted that the
petitioners' revised dredging proposals, and the circumstances which had given
rise to those proposals, were relevant to planning, and were therefore relevant
to the respondents' decision, inasmuch as the respondents had to consider
whether the planning authority had given consideration to the matter and
whether the proposals raised an issue which warranted requiring the planning
authority to make a planning application.
When the decision letter stated, in paragraph 16, that "each of the
issues raised by the other parties have also been carefully considered by the
Scottish Ministers", those issues included the revised dredging proposals:
although not raised by the petitioners, the issue had been raised by another
objector, as was noted in paragraph 7.
The fact that the respondents had not considered it appropriate to
comment on the proposals, since they were the subject of current legal
proceedings, did not mean that the proposals had not been considered. They were included in the issues of which the
respondents had said, in paragraph 16, that they were satisfied "that they do
not, individually or collectively, raise matters sufficient to require Shetland
Islands Council to make a planning application"; and they were amongst the issues of which the
respondents said, in paragraph 17, that they had "had regard to all relevant
issues". The possibility that the
dredging proposals would be carried out, rendering any deemed planning
permission in respect of NID 1 impossible of implementation, was not in itself
a reason for requiring a planning application to be made. Reference was made to the Pilkington case.
[71] These submissions were qualified to some extent by senior
counsel for the respondents, who said that the navigational issues and dredging
proposals might conceivably be planning considerations, but that they had been
put forward by the objectors, primarily at least, as matters bearing on
navigation and (in that respect) on operational aspects of the port. Although navigational issues might have land
use consequences, the regime which was designed to address the principal
concern of the petitioners - the impact of the bridge on navigation - was that
established by the roads legislation.
The petitioners' position as navigation authority was specifically
recognised and protected under that legislation. Whether dredging could take place as the
petitioners proposed was a background fact.
If the Council's challenge to the petitioners' dredging proposals had succeeded,
that would have removed one practical difficulty in the way of implementing the
development described in the NID. If, as
had happened, the Council's challenge was unsuccessful, the practical
difficulty remained, although there also remained uncertainty as to whether the
petitioners' proposals could be implemented (as they required statutory and
other consents). The position was
different from that in the Land
Securities case, where it had been argued that the planning authority
should have awaited the outcome of a challenge to an amendment of the structure
plan. The development plan was of critical
importance to a decision whether to grant planning permission, whereas the
judicial review proceedings in relation to the dredging proposals merely bore
on the practical prospects of implementing any planning permission.
Discussion
[72] The submissions on behalf of
the petitioners appear to me to be based on a misunderstanding of the function
of the respondents under the 1981 Regulations, and indeed a misunderstanding of
the nature of the planning system. The
starting point of the petitioners' argument is that a planning authority cannot
properly "adjudicate" on the planning merits of a development which they wish
to undertake, because of a conflict of interest which would offend against the
maxim nemo iudex in sua causa. Therefore, the argument runs, the respondents
are bound to adjudicate on the planning merits;
and that is in substance, if not in form, their function under the 1981
Regulations.
[73] It is important to understand at the outset that planning is an
administrative function. This point was
explained by Lord Clyde in R (Alconbury
Ltd) v Secretary of State for the
Environment [2003] 2 AC 295 at pages 343-344:
"The functions of the Secretary
of State in the context of planning may conveniently be referred to as 'administrative',
in the sense that they are dealing with policy and expediency rather than with
the regulation of rights. We are
concerned with an administrative process and an administrative decision. Planning is a matter of the formation and
application of policy ... Members of the administration may be required in some
of their functions to act in a judicial manner in that they may have to observe
procedural rules and the overarching principles of fairness. But, while they may on some occasions be
required to act like judges, they are not judges and their determinations on
matters affecting civil rights and obligations are not to be seen as judicial
decisions."
Lord Clyde also observed (at page
345):
"It does not seem to me correct
to say of the Secretary of State that he is iudex
in sua causa, at least in any strict sense of that expression. He is, as I have already sought to explain,
not strictly a judge. Moreover the cause
is not in any precise sense his own.
No-one is suggesting that he, or the officials in his department, have
any personal financial or proprietary interest in these cases. The concern of the Secretary of State and his
department is to manage planning and development in accordance with the broad lines
of policy which have been prepared in the national interest."
Lord Clyde's observations
concerning the Secretary of State apply equally, mutatis mutandis, to a local planning authority. It is also relevant to note Lord Hoffmann's
explanation in the same case, at pages 325-326, of the nature of accountability
for planning decisions. In short, such
decisions, which depend on a judgment as to what the general interest requires
(locally or nationally, as the case may be), are entrusted by Parliament to
democratically elected bodies, accountable to the electorate. The role of the courts, in relation to
administrative decisions, is (in general terms) confined to ensuring that they
are taken reasonably and for a proper purpose, in accordance with a fair
procedure and within the powers conferred by Parliament.
[74] A decision as to whether planning permission ought to be
granted for a proposed development does not therefore involve an adjudication,
but a decision as to what the public interest requires. There is no a priori objection to a planning authority's taking a decision in
respect of a proposal in which that local authority (as distinct from the
individuals involved) have a financial or other interest: on the contrary, it
is common for planning authorities to deal with such proposals. The local authority may, for example, have an
interest in the land involved, or the development may be by a joint venture in
which the authority have an interest.
[75] The 1981 Regulations are concerned with one particular
situation in which the local authority have an interest in the development:
namely, the situation where the local authority propose themselves to carry out
the development. The Regulations create
a special form of procedure for such cases; but it is a procedure under which
the planning authority retain a considerable measure of responsibility for
decision-making. Where the local
authority propose to carry out development in the area in respect of which they
are the planning authority, regulation 4 applies. The planning authority have to give
notifications, carry out consultations and comply with other procedural
requirements, as if an application had been made to them for planning
permission. If they still intend to
proceed with the proposal, they then have to publish a notice in accordance
with regulation 4(1). If no objections
are received within 21 days, planning permission is then deemed to have been
granted. The argument that this
procedure does not involve a proper consideration of the planning merits of the
proposal, or that there is an unresolved conflict of interest between the local
authority's interest as planning authority in the proper planning of their
area, and their interest as, for example, education authority, in an adequate
provision of schools for their area, or as housing authority, in an adequate
provision of housing, appears to me to be misconceived. Planning is concerned with the use of land in
the public interest. If a local authority
decide to adopt a proposal to undertake a development, that decision will reflect
their assessment of how the land in question should best be used in the public
interest; and they are democratically accountable for that decision.
[76] In the event that objections are made in response to the publication
of the notice under regulation 4, the planning authority are then required by
regulation 6(1) to notify the respondents of their intention to carry out the
development, together with any consultations which they have carried out and
any representations which they have received.
The respondents then have 28 days (or such longer period as they may
notify to the planning authority) to consider whether to require the planning
authority to make an application to them for planning permission. If the respondents do not so require the
planning authority within the relevant period, planning permission is deemed to
have been granted.
[77] This procedure does not involve the respondents' determining
whether planning permission should or should not be granted for the proposed
development: it would make no sense for such a determination to be made in
advance of a planning application being received. Any decision taken by the respondents under
regulation 6 is therefore not of that character. Under regulation 6(1), the respondents are
given a discretionary power, not to decide whether planning permission should
or should not be granted, but to require the planning authority to make an
application to them for planning permission.
The considerations which are relevant to the exercise of that discretion
are those which bear on the question whether the local authority's proposal
should, without further inquiry, obtain the benefit of deemed planning
permission under regulation 6(3), or whether the respondents should themselves
determine the planning merits of the proposal de novo. The relevant
considerations therefore include such matters as whether the planning authority
appear to have given consideration to the consultations carried out by them and
the representations received by them, whether the proposal raises an issue of
more than local significance, and whether the proposal is consistent with
policies which the respondents have themselves issued or approved (e.g. in the
form of a structure plan or national planning guidance).
[78] The 1999 Regulations alter the procedures under the 1981
Regulations in certain respects, in order to implement the requirements of
Council Directive 85/337/EEC on the assessment of the effects of certain public
and private projects on the environment, as amended by Council Directive
97/11/EC and Directive 2003/35/EC of the European Parliament and the Council. I note that there was no suggestion in the
argument in the present case that the regulations had failed fully or
accurately to implement the directive.
[79] In terms of article 1(1), the directive applies to public as
well as private projects. Article 1(2)
defines the term "developer" as including the public authority which initiates
a project; and the expression
"development consent" is defined as meaning "the decision of the competent
authority or authorities which entitles the developer to proceed with the
project". Article 2 requires Member
States to adopt all measures necessary to ensure that, before consent is given,
projects likely to have significant effects on the environment are made subject
to an assessment with regard to their effects.
In accordance with article 8, information gathered pursuant to the
environmental impact assessment must be taken into consideration in the
development consent procedure. Article
9(1) provides:
"When a decision to grant or
refuse development consent has been taken, the competent authority or
authorities shall inform the public thereof in accordance with the appropriate
procedures and shall make available to the public the following information:
- the content of the decision and
any conditions attached thereto,
- having examined the concerns
and opinions expressed by the public concerned, the main reasons and
considerations on which the decision is based, including information about the
public participation process,
- a description, where necessary,
of the main measures to avoid, reduce and, if possible, offset the major
adverse effects."
These requirements are reflected in
the 1999 Regulations, the provisions of which relating to development by
planning authorities were summarised above.
In particular, regulation 25(3) requires the respondents to issue a
decision when complying with the provisions of regulation 6 of the 1981
Regulations in respect of a development where, if the development were the
subject of an application for planning permission, it would be an EIA
application. Regulation 25(3) makes it
clear that the character of the decision remains unchanged: it is "a decision as
to whether or not to require the planning authority to make an application to
[the respondents] for planning permission".
In making that decision, the respondents are required by regulation
25(3) to consider the environmental statement.
Under regulation 25(3), as under regulation 6(1) of the 1981
regulations, the respondents do not determine, either in form or in substance,
whether planning permission should or should not be granted.
[80] The petitioners' submission that their initial objections,
relating to navigation, were not taken into consideration is based on an
inference drawn primarily from the fact that those objections were not
expressly discussed in the decision letter.
The adequacy of the reasoning of the decision letter, and in particular
the question whether it met the requirements of the 1999 Regulations, is
discussed below. Leaving that matter to
one side for the moment, the inference which the petitioners seek to draw does
not appear to me to be reasonable, when the character of the decision taken by
the respondents is understood.
[81] Since the respondents were not determining a planning
application, it was not to be expected that they would address the objections
in order to explain why, in their judgment, those objections should not
prevail. The reasons stated in paragraph
17 of the decision letter - that the respondents had satisfied themselves that
the content of the environmental statement was sufficient to enable them to
consider the environmental impact of the proposed development; that the Council had complied with the 1981
Regulations and had had regard to all relevant issues; and that "neither the proposed development,
or (sic) the manner in which it has
been promoted and progressed, raises any issue of significance sufficient to
warrant the Scottish Ministers' intervention" - reflect the issues which, as
explained earlier, it is to be expected would be uppermost in the respondents'
consideration. The decision letter also
addressed in detail the points which had been made by objectors during the
non-statutory consultations which had taken place following the quashing of the
respondents' initial decision; but it would, to my mind, be perverse to infer
that the respondents must therefore have overlooked the issue of navigation
which had figured so prominently in the material submitted to them, including
the petitioners' objections.
[82] The petitioners' submission that the respondents had decided to
leave navigation issues to be resolved by the Scottish Parliament when dealing
with the roads scheme has to be examined with care. As already explained, the respondents were
not determining a planning application, and there was accordingly no question
of their deciding that planning permission could be granted on the basis that
navigation issues would be satisfactorily resolved by the authority dealing
with the roads scheme. The cases of Gateshead and Di Ciacca are therefore not in
point. The question which the respondents
had to decide was whether it was appropriate to require the Council to make an
application to them for planning permission.
In deciding that question, the respondents had to consider (amongst
other matters) how the Council had dealt with the objections to the
development, and whether the objections raised any issue of such significance
that a planning application should be required.
In that regard, it was not in my opinion immaterial that the proposed
development could not proceed unless the roads scheme were to be approved by
the Scottish Parliament - the source, since the Scotland Act, of the powers
conferred on the respondents in relation to planning - following a procedure
which required specific consideration to be given to the reasonable
requirements of navigation. The
existence of that procedure provided an additional check that the petitioners'
concerns would be carefully considered, by a body able to determine, with
greater democratic legitimacy than any other body within Scotland,
where the public interest lay.
[83] The petitioners' submission that the respondents failed to have
regard to the revised dredging proposals, since they declined to comment on
them in the decision letter, appears to me to rest on a non sequitur. It is not
difficult to understand why the respondents were of the view, as they stated in
paragraph 16 of the decision letter, that it would be inappropriate for them to
comment on proposals which were currently the subject of an application for
judicial review. It does not follow that
the proposals, or the petitioners' view that a wider channel was required, were
ignored. It is apparent from paragraphs
7 and 9 of the decision letter that the respondents had the dredging proposals
under their consideration; and I have no
difficulty, in that context, in accepting the submission on behalf of the
respondents that the "issues" to which paragraphs 16 and 17 referred included
those relating to the dredging proposals.
[84] The petitioners' final submission under this heading was that,
if the respondents had taken into account the navigation objections and the petitioners'
dredging requirements, they could not have failed to appreciate that there
existed a significant dispute between two public bodies, and would therefore
have been bound to require that a planning application be made. The final step in this argument again appears
to me to involve a non sequitur. The existence of a dispute between the
planning authority and another local public body does not entail that the only
reasonable decision open to the respondents under regulation 6 of the 1981
Regulations is to require that a planning application be made.
Unreasonableness
The submissions for the petitioners
[85] On behalf of the petitioners, it was submitted that the
respondents knew that the bridge proposal could not go ahead without the roads
scheme being approved, in accordance with the 1984 Act. They knew that the approval of the roads
scheme would necessitate procedure of the Scottish Parliament, which would
involve an inquiry at which the objections of the petitioners and others would
be heard. That followed from section
76(4) of the 1984 Act, paragraph 19 of Schedule 1 to the same Act, the 1999
Order and the Standing Orders of the Scottish Parliament. A decision-maker who had heard evidence was
better informed than one who had not. If
the roads scheme withstood that inquiry, the question of planning permission
would ipso facto be dealt with,
subject only to a minor residual discretion.
That was because the approval of the roads scheme by an Act of the
Scottish Parliament would bring the proposed development within the scope of
class 29 of the GPDO. The decision on
the roads scheme would be taken in the light of all the factual information
which had emerged at the inquiry, and would render the NID academic: if the
roads scheme were refused, the bridge proposal would be at an end; and if the roads scheme were approved, either
in its original form or subject to amendments, the effect would be to grant
planning permission under the GPDO, subject to the approval of some minor aspects.
[86] In these circumstances, it was Wednesbury unreasonable to proceed at this stage to determine the
question of planning permission in the Council's favour. To do so created a perception that the
respondents approved of the proposal to build the bridge. What the respondents ought instead to have
done was to have used their power under regulation 6(3) of the 1981 Regulations
to defer a decision on the NID until after the conclusion of the Parliamentary
proceedings. That would have enabled the
Council and the petitioners to bring their dispute before the Parliament on
level terms. Instead, the Council would
be able to go into the Parliamentary procedure with the advantage that the
respondents had already determined that the project could have planning
permission.
The
submissions for the respondents
[87] On
behalf of the respondents, it was submitted that it was not unreasonable for
the respondents to take a decision on the NID, notwithstanding that the roads
scheme provided an alternative route to obtaining planning permission. There was no rule requiring decisions under
the 1981 Regulations to await the outcome of other statutory proceedings which
might be involved. Regulations 5(1) and
6(3) carried the contrary implication.
The respondents had a responsibility to deal with applications which
were made to them, and to do so without undue delay. Reference was made to the Opinion of Lord
Hodge in the Land Securities case at
paragraphs 20 and 22. Even now, there
was no roads inquiry on the horizon: how long were the respondents supposed to
wait? It was common for the carrying out
of development to depend on a number of matters falling into place, of which
the obtaining of planning permission was only one. It was common, in particular, for other
statutory consents to be required. The
fact that such other matters remained outstanding did not mean that a planning
application, or a notice of intention to develop, could not properly be dealt
with. The fact that a planning
permission might never be implemented, if other necessary consents were not
obtained, was beside the point. An
applicant for planning permission did not require to demonstrate that he had
obtained or would obtain the other consents which he required, or even that he
owned or controlled the land in question.
Although it was possible that the outcome of the proceedings under the
1984 Act might be inconsistent with the implementation of the deemed planning
permission obtained under the 1981 Regulations, there was no reason why there
should not be planning permissions which were inconsistent with one another, or
a planning permission which was in practice impossible of implementation. Reference was made to the Pilkington case, and to Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985]
1 AC 132 at page 144 per Lord
Scarman.
[88] The prospect of a roads inquiry did not mean that the
respondents, rather than the planning authority, were the appropriate body to
determine the planning merits of the development described in the NID. The respondents' decision would not cause any
prejudice to the proceedings in respect of the roads scheme. The approach adopted in cases such as Gateshead was premised on a
recognition that the decision of a planning authority (or, in this case, of the
respondents exercising planning powers) did not constrain the subsequent
decision of a different body acting under a different statutory regime. The making of the harbour revision order
sought by the petitioners demonstrated that the respondents had considered the
petitioners' proposals on their merits, without being constrained by the
existence of planning permission for the development described in the NID. It had not been suggested on behalf of the
petitioners that the existence of the deemed planning permission would inhibit
them in placing their case before the assessor appointed to hold the inquiry
under the Private Bill procedure, or would inhibit the assessor in reaching his
or her conclusions.
Discussion
[89] I do not find the petitioners' submissions
in relation to this matter persuasive.
The respondents had been notified of a proposed development in
accordance with the 1981 Regulations.
They were under a duty to issue a decision, by virtue of regulation
25(3) of the 1999 Regulations. It is not
suggested by the petitioners that, in reaching that decision, the outcome of
the eventual proceedings in respect of the roads scheme would be a material
consideration. The argument that, by awaiting
the end of the Parliamentary proceedings, the respondents would be able to take
account of all the factual information which had emerged at that inquiry,
appears to ignore the fact that the respondents already had before them all the
material which the 1981 and 1999 Regulations required them to have. The possibility that a negative decision in
respect of the roads scheme might make it impossible in practice to implement
any deemed planning permission arising under the 1981 Regulations appears to me
to be beside the point: the respondents' decision as to whether to require a
planning application to be made to them is concerned with the question whether
a proposed development may be permitted without further inquiry, not with
whether such a development will or must take place. As Lord Scarman observed in the Pioneer Aggregates case at page 144,
planning permission is "a permission that certain rights of ownership may be
exercised but not a requirement that they must be". The possibility that a positive decision in
respect of the roads scheme might be capable of giving rise to a different planning
permission, under class 29 of the GPDO, appears to me equally to be no reason
why a decision should not be taken in respect of the proposal notified under
the 1981 Regulations. As Lord Scarman
also observed (ibid.),
"It is, of course, trite law that
any number of planning permissions can validly co-exist for the development of
the same land, even though they be mutually inconsistent".
That again follows from the fact
that planning permission is, as the term implies, a permission, not a
requirement.
[90] There would in my opinion require to be particular
circumstances before it could be said that a planning authority, or the
respondents exercising their planning powers, required to await the outcome of
an application for some other statutory consent required by the developer. It is a common situation for a developer to
require not only planning permission but also other statutory consents, for
example under roads, sewerage, environmental or licensing legislation. It is not the practice for the planning
process to await the outcome of the other statutory procedures, or vice versa. If such a practice were introduced, the
result would be, at best, delay; if the
other statutory decision-makers adopted the same practice, the result would be
an impasse.
[91] Finally, the contention that the respondents' decision not to
require the making of a planning application will place the petitioners at an
unfair disadvantage when the roads scheme is considered appears to me to lack
any foundation. I see no reason to
suppose that either an assessor drawn from the Reporter's Unit, and as such
familiar with planning law and practice, or the relevant committee of the
Scottish Parliament, will be prejudiced against the petitioners' case merely
because the respondents did not think it appropriate to exercise their power to
intervene under the 1981 Regulations.
The respondents' decision does not impose any constraint upon the evidence
which can be presented in relation to the roads scheme, or upon the decision to
be taken in respect of that scheme. The
presumption, in the absence of evidence to the contrary, is that public
authorities will perform their functions properly. If the petitioners consider that there is any
danger that the significance of the respondents' decision may be misunderstood,
that is something which they can address in their presentation to the assessor.
Failure to follow policy
The submissions for the petitioners
[92] On behalf of the petitioners, it was submitted that the
Council's proposal to build a bridge over Lerwick
Harbour was a transport related
project which required the approval of the respondents. The project had not been appraised in
accordance with STAG. In reaching a
decision which was equivalent to a grant of planning permission, the
respondents had therefore acted contrary to their own policy as expressed in
paragraph 56 of PAN 75. Their decision
was therefore unreasonable.
[93] The petitioners rejected the contention that there was no need
to conduct a STAG appraisal as this was not a project for which the respondents
provided approval. It was the substance
of the decision which mattered. The
result of the respondents' decision was that the Council had planning
permission for the bridge. This was
therefore a project for which the respondents were providing approval. The
petitioners also rejected any contention that the absence of an objection
drawing attention to STAG relieved the respondents from the need to take it
into account. It was not the
responsibility of an objector to draw the attention of the respondents to their
own policy.
[94] The respondents had now produced certain documents as evidence
that an exercise similar to a STAG appraisal had taken place. It was not suggested that all of those
documents were before the respondents at the time of taking the decision: they
bore on the argument that no remedy should be provided in respect of any
failure by the respondents. The onus lay
on the respondents to demonstrate that the failure made no difference. They had not discharged that onus. The documents did not demonstrate that
anything equivalent to a STAG appraisal had been carried out.
[95] In the course of the argument, counsel for the petitioners
accepted that they were unable to point to any relevant difference between STAG
and the earlier guidelines, derived from the Scottish Office document Travel Choices for Scotland: Local Transport
Strategies (1991), to which the respondents referred in their submissions.
The
submissions for the respondents
[96] On behalf of the respondents, it
was submitted that paragraph 56 of PAN 75 had no bearing on the respondents'
decision not to require a planning application to be made, since that decision
did not involve their "approval" of the project. The project did not require the respondents'
approval. It was a project for which the
local authority had responsibility, falling within paragraph 57.
[97] The project had in any event been appraised in accordance with
earlier guidelines which, like STAG, had their source in the document Travel Choices for Scotland: Local Transport
Strategies. That document had been
followed by the issue of a document entitled Preliminary Guidance, which had been taken into account by the
Council in its Local Transport Strategy
2000-2003. The latter document set
out the Council's approach to the appraisal of transport projects, and
described it as reflecting "the latest government criteria used in appraising
trunk road schemes". The environmental
statement set out the overall aim of the Local
Transport Strategy, and stated that "the bridge proposals broadly complement
the key objectives of the strategy". The
environmental statement contained a brief appraisal of the proposal's conformity
with the policies set out in the Local
Transport Strategy.
[98] The Council had commissioned a feasibility study by consulting
engineers, which was received in 1999.
It contained a technical appraisal of various options for a fixed link
between mainland Shetland and Bressay.
The Council had then commissioned a study of the socio-economic impact
of a bridge, which was received in 2000.
The Council had then received a report from their principal engineer in
February 2001, which summarised the findings of the two earlier studies, and
set out an appraisal of the proposal in accordance with the Local Transport Strategy. The feasibility study and the socio-economic
study were referred to in the May 2004 report to the Council which was
submitted to the respondents with the NID.
[99] The petitioners had not identified any deficiency in this
appraisal, or any substantial difference between this appraisal and appraisal
under STAG. If there had been a failure
to comply with paragraph 56 of PAN, the petitioners had not been prejudiced,
and should therefore be refused a remedy.
[100] The respondents were not in any event obliged to follow PAN
75. They were exercising a discretion,
and the question was whether they had done so reasonably.
Discussion
[101] A departure by a public authority
from a published statement of policy may have a variety of legal consequences,
depending on the circumstances. It will
not however ordinarily render the decision unlawful on the ground of
unreasonableness: a public authority is ordinarily entitled to depart from a
policy (unless it has created a substantive legitimate expectation that the
policy will be followed), and may indeed be bound in some circumstances to
consider doing so (British Oxygen Co Ltd v
Board of Trade [1971] AC 610). The petitioners' submission that, since the
respondents' decision was inconsistent with paragraph 56 of PAN 75, it follows
that the decision was unreasonable, is therefore in my opinion fallacious.
[102] I am not persuaded in any event that the respondents' decision
was inconsistent with the statement referred to. In this respect, again, the petitioners'
submission appears to me to be based on a misapprehension of the nature of the
decision taken by the respondents under the 1981 Regulations. As explained earlier, the respondents were
deciding whether it was appropriate to require that an application should be
made to them for planning permission.
They were not determining a planning application. Their decision not to require the making of
an application did not imply that they approved of the proposed development: it only meant that they did not consider that
the proposal, or the manner in which it had been dealt with, required their
intervention.
Failure to give reasons
The submissions for the petitioners
[103] On behalf of the petitioners, it
was submitted that the respondents' duty to give reasons stemmed from the 1999
Regulations: under regulation 21(1)(c), they were obliged to make available a
statement containing the main reasons and considerations on which the decision
was based. That duty was not confined to
purely environmental matters. In the
first place, that was not what the regulation said. In the second, any decision to grant planning
permission was likely to involve a balancing of factors, such as environmental
as against economic or social. To
require only the environmental factors to be addressed could result in the
presentation of an inaccurate account of the decision-making process, which
obscured some of the key factors in the decision.
[104] The reasons given must be proper, intelligible and adequate: South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953; Wordie
Property Co Ltd v Secretary of State
for Scotland 1984 S.L.T. 345; Di Ciacca v Scottish Ministers at pages 1036-1038. In the present case, the reasons were
inadequate in three respects. First, in
relation to the petitioners' objections relating to navigation, the decision
letter did not reveal whether the respondents' approach was (a) that the
objections were not material considerations, or (b) that they were material but
could be dealt with during the roads scheme proceedings, or (c) that they were
considered not to relate to the application, owing to the view taken of the
extent of planning jurisdiction. Since
these were matters central to the petitioners' plans for the implementation of
their statutory duties, the fate of these objections was important to
them. In addition, where there were
other proceedings to follow, it was important to the petitioners to know the
view which had been taken of these matters by the respondents. Secondly, the reasons were inadequate in
relation to the petitioners' dredging requirements, for similar reasons. Thirdly, the reasons were inadequate in
relation to the failure to require a STAG appraisal: a departure from a mandatory requirement,
when dealing with an EIA application, should be explained.
[105] It was accepted that the failure to provide adequate reasons for
a decision of this nature did not result in the quashing of the decision: R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920; Chief
Constable, Lothian and Borders Police v Lothian
and Borders Police Board 2005 SLT 315 at pages 334-335. The court should grant a declarator and put
the case out for hearing By Order to discuss the form of any further order
which might be necessary.
The
submissions for the respondents
[106] On behalf of the respondents,
it was submitted that the 1981 Regulations did not impose any obligation upon
the respondents to give reasons for their decision not to require an application
for planning permission to be made. It
was clear from regulation 6(3) that no decision need be issued at all.
[107] The extent to which that position was altered by the 1999
Regulations was limited. Those
regulations were intended to implement Directive 85/337/EEC. Article 9 of the Directive required that the
public be informed of "the reasons and considerations on which the decision is
based", but only "where the Member States' legislation so provides". The obligation to give reasons therefore
derived from national, rather than European, law (counsel did not refer to the
amendment of Directive 85/337/EEC by Directives 97/11/EC and 2003/35/EC,
regulation 21(1)(c) of the 1999 Regulations reflecting the terms of Directive
97/11/EC in particular). Regulation
25(3) of the 1999 Regulations merely required the respondents to consider the
environmental statement, to issue a decision, and to state in their decision
that they had considered the environmental statement. In regulation 21(1)(c), the "decision" was
the decision referred to in regulation 26, namely the decision that the
planning authority were not required to make an application to them for
planning permission. The "main" reasons
and considerations to which regulation 21(1)(c) referred must be those relating
to the environmental effects of the development: it was solely with those
effects, rather than any other aspects of the proposed development, that the
1999 Regulations were concerned. Alternatively,
regulation 21(1)(c) should be interpreted as requiring that reasons be given
which adequately explained why the development could proceed in the light of
the environmental information provided, and thus made it clear that the
environmental information had been properly taken into account. The fact that the respondents' decision
letter had to some extent given reasons relating to non-environmental aspects
of the proposed development did not mean that the adequacy of those reasons
could be challenged, if there was no duty to provide such reasons. Reference was made to Gallacher v Stirling Council
2002 S.L.T. 94.
[108] The petitioners did not challenge the adequacy of the reasons
given in relation to environmental matters.
Even in relation to other matters, the reasons given adequately explained
the respondents' decision. Reference was
made to City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 at pages 49-50 per
Lord Clyde, and to Moray Council v Scottish Ministers 2006 S.C. 691 at
paragraphs 28, 31-32 and 35 per Lord
Justice-Clerk Gill. The revised dredging
proposals, in particular, had been noted in paragraphs 7 and 9 of the decision
letter. The points made about the roads
scheme were noted in paragraphs 11 and 12.
Paragraphs 16 and 17 explained the respondents' approach. So far as STAG was concerned, even if that
was relevant to the respondents' decision, there was no need to deal with the
matter in the decision letter. The duty
to give reasons did not extend to a matter of that kind; and, in any event, no objection relating to
STAG had been made.
[109] If there was any inadequacy in the reasons given, the petitioners
had not in any event been prejudiced. As
to the need for prejudice, reference was made to South Bucks District Council v Porter
(No 2) and to Chief Constable,
Lothian and Borders Police v Lothian
and Borders Police Board at page 335.
It was only if the reasons dealt inadequately with environmental matters
that prejudice would not require to be demonstrated: Berkeley v
Secretary of State for the Environment [2001] 2 AC 603. In the absence of prejudice, the petitioners
had no interest which would warrant the granting of a remedy.
Discussion
[110] Regulation 21(1)(c) of the
1999 Regulations requires that, "where an EIA application is determined", there
shall be made available for public inspection a statement containing "the main
reasons and considerations on which the decision is based". The word "decision", in that context, refers
to the determination of the application:
it is not restricted to particular aspects of that decision, such as the
possible effects of the development on the environment. That being the meaning of the word
"decision", there is no reason why the expression "the main reasons and considerations
on which the decision is based" should be construed as referring only to
certain aspects of the reasons for the decision. In particular, although the 1999 Regulations
are concerned with the assessment of environmental impact, it does not follow
that a duty to give reasons in that context should be confined to environmental
matters. The determination of an EIA
application does not depend solely on the environmental impact assessment: that
assessment is merely one of the considerations to be taken into account when deciding
the planning application in question. As
the petitioners submitted, it would be unrealistic to expect reasons to be
given which addressed only environmental factors, and left out of account the
other aspects of the public interest which had been material to the decision.
[111] Under regulation 26, read with regulation 21(2), the respondents
are required, where they "decide ... that the planning authority are not
required to make an application to them for planning permission", to provide
the planning authority with "such a statement as is mentioned in [Regulation
21(1)(c)]": in other words, a statement containing "the main reasons and
considerations on which the decision is based".
In that context, the word "decision" in regulation 21(1)(c) refers to
the decision described in regulation 26.
The statement must therefore contain the main reasons and considerations
on which the decision, that the planning authority are not required to make an
application to the respondents for planning permission, is based. There again appears to me to be no basis for
construing the word "reasons" as referring only to certain aspects of the
reasons for that decision. Like the
determination of an EIA application, the decision taken under regulation 6 of
the 1981 Regulations, as modified by regulation 25(3) of the 1999 Regulations,
does not depend solely on a consideration of the environmental statement; and to confine the statement of reasons to
environmental matters would be unrealistic, and in all probability
impractical. I therefore reject the
respondents' submission as to the scope of the reasons which must be given.
[112] In considering the adequacy of the reasons given in the present
case, it is necessary to bear in mind the nature of the decision which required
to be explained. As Lord Bridge observed
in Save Britain's Heritage v Number One Poultry Ltd [1991] 1 W.L.R.
153 at page 167, in a dictum cited by Lord Brown of Eaton-under-Heywood in the South Bucks case at page 1962, "the
degree of particularity required will depend entirely on the nature of the
issues falling for decision". Unlike
most of the authorities cited by counsel, this case is not concerned with the
determination of a planning application.
The respondents were not, in particular, deciding whether the petitioners'
objections should be accepted or rejected: the issues in dispute between the Council
and the petitioners were not issues which the respondents were called on to
determine. The only issue which the
respondents required to determine was whether to exercise their discretion to
require the planning authority to make an application for planning
permission. As explained above, their
decision turned on such considerations as whether, in the light of the material
placed before them (including the environmental statement), the proposed
development raised an issue of national importance, and whether the planning
authority had failed to give consideration to objections. The respondents did not require to address
the merits of the issues raised by the petitioners in their objections, or to
decide the extent to which those issues would be material considerations in the
event that a planning application were to be required.
[113] The decision letter explained in detail the respondents' view of
most of the issues which had been raised in the non-statutory correspondence
following the quashing of their initial decision. The "main reasons" for the current decision
were explained succinctly in paragraphs 16 and 17. It was explained, in particular, that the
respondents had satisfied themselves that the content of the environmental
statement was sufficient to enable them to consider the possible environmental
impact of the proposed development; that
the planning authority had complied with the requirements of the 1981
Regulations and had had regard to all relevant issues; and, crucially, that "neither the proposed
development, or the manner in which it has been promoted and progressed, raises
any issue of significance sufficient to warrant the Scottish Ministers' intervention". That statement of reasons, although brief,
explained clearly why the respondents did not consider it appropriate to
require that a planning application be made to them.
Conclusion
[114] In the foregoing circumstances,
the petition is refused.
