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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Edgar Road Property Company LLP v. Moray Council [2007] ScotCS CSOH_88 (29 May 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSOH_88.html Cite as: [2007] CSOH 88, [2007] ScotCS CSOH_88 |
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OUTER HOUSE, COURT OF SESSION [2007] CSOH 88 |
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P6/07 |
OPINION OF LORD CARLOWAY in the petition of EDGAR ROAD PROPERTY COMPANY LLP, Petitioners against MORAY COUNCIL, First Respondents and BRITISH LAND
COMPANY PLC Second Respondents for Judicial Review of
a decision of the first respondents to allow the sale of open class 1
non-food goods from Units 2a, 2b and 2c at Springfield Retail
Park, Edgar Road, Elgin ________________ |
First Respondents: Upton;
Morton Fraser W.S.
Second Respondents: Currie Q.C., Munro; Semple Fraser LLP
29 May 2007
1. Planning Context and
Facts
[1] The city of
"There is a presumption against approval of ... out-of-centre developments unless the developer can demonstrate either that the proposal would only (sic) comply with the Moray 2000 development plan retailing strategy, including provisions within individual town plans, or justify a departure from them. That demonstration will have to include consideration of alternative sites within and closer to the defined town centres, and the likely effect on their viability and vitality. In so doing, developers will be particularly, but not exclusively, required to give consideration to the following:
i) the demand for additional retail provision and the likely impact upon the existing types of retailing in the town centre ... likely to be affected. The Council will seek a formal Retail Impact Assessment where there is likely to be an adverse impact."
"Since 1980, the council has
operated a policy of accommodating appropriate out-of-centre retailing at
Proposals for non-food or bulky-goods retailing to take up the approved floor area will be welcomed. Development proposals which would change the character of the retail park, as described in the preceding paragraph will be subject to policy L/R6."
The designated area consists of
land to the north of Edgar Road, upon which an ASDA superstore operates as
unrestricted Class 1 permission, in terms of the Town and Country Planning
(Use Classes) (Scotland) Order 1997 (SI 1997 No. 3061). It sells about two thirds food and one third
non-food items, including clothing. The
area also consists of two parcels of land to the south of the Road. On the eastern portion, B&Q are
established, selling household and DIY goods.
The second respondents own the western portion. In about 1988 the second respondents
obtained planning permission (6/2) for the erection of the second phase of
their
"The sale of goods shall be restricted to household goods (such as carpets, furniture and electrical goods) and bulky DIY items of the type sold in retail warehouses and all items ancillary to the foregoing".
The second respondents built their
retail park. Ultimately, after further
approved planning changes, it consisted of three units, two of which were
subdivided. Homebase and General George
traded from Units 1a and 1b and Currys from Unit 3. Internacionale, Carpetright and Texstyle
World traded from Units 2a, 2b and 2c. Each of the Unit 2 sub-division has a
floor space of 926m2,
totalling about 30% of the second respondents' 9,165m2
[3] The
petitioners own a site on the north side of
[4] As
matters stood in mid 2005, the
[5] The
relevant statutory provisions on the notification of planning applications are
contained in the Town and Country Planning (General Development Procedure) (
[6] The
second respondents' application met with no opposition at all. It was accompanied by a detailed submission
by the firm of surveyors presenting it (6/6). Part of this submission was a "Retail
Analysis" (para 5.0 et seq),
which predicted minimal impact (0.64%) on the town centre as a consequence
of the proposed variation. There were
further discussions about impact between the surveyors and the first respondents'
planning officials (7/2). In due
course, the officials tendered a report on the application to the planning
committee (6/7). This outlined the
proposal, the site and the planning history.
Appended to it, the various relevant Development Plan policies,
including L/R6 and RET
"... Policy L/R6 accepts the
principle of out-of-centre retail development where this represents a
neighbourhood scheme or is ancillary to an existing business. The
As defined in the Development Plan and the Edgar Road Retail Policy, this area is established as a retail development. The proposed variance to allow for food retail does represent a departure from the Edgar Road Retail policy, but this is considered to be acceptable and a precedent is already established by the nearby Asda store."
This passage contains a glaring error, since the application was for non-food goods and not for a food consent. The fact that it was for non-food goods is made clear in the description of the proposal at the start of the same report. The copy of the report in process contained a handwritten insertion mark between "for" and "food" and, again handwritten, the words "Robertson also (Sawmills site)" after "Asda store". It was explained, and not contradicted, that the error in the report had been corrected orally at the committee meeting. In that respect it would have been correct to say that there was precedent for open Class 1 non-food goods at both ASDA and the Sawmills site.
[7] On
"the application had been advertised as a departure to which no objections had been received and therefore, were the Committee minded to approve the application, a Hearing would not be required. After consideration the Committee agreed to approve the application ..."
No reasons for the approval were minuted. There was no need for such reasons to be given. According to the petition, it was not until around 20 June that the petitioners became aware of the variation. This occurred when a potential tenant, a national clothing retailer, withdrew from negotiations with the petitioners in favour of locating in the second respondents' unrestricted unit. The petitioners aver that the "marketability, and therefore the value, of the petitioners' retail development have been compromised on account of" the approval of the variation.
[8] On
"... [the petitioners] have decided to make a formal complaint rather than go down the Court route. They are anxious that the working relationship of the parties can be conserved, which would be jeopardised by a Court Process".
What they sought was revocation of the approval.
[9] By letter dated 10 November (6/10), the first respondents eventually replied to Mr Robertson's letter of 22 August. They detailed the history of the application and accepted that the findings at the previous local inquiries had been material considerations. The decision to approve the variation was explained as follows:
"The application was recommended for approval and Committee were advised that if minded to approve the application, a departure hearing would not be required as no objections were received on the application following notification and advertisement procedures.
The application was an amendment to a previous planning permission ... and it was considered acceptable for the applicants to define the site around the three units which were the subject of the application and the correct neighbour notification was carried out accordingly.
The application was supported by
the submission of a Retail Assessment regarding the impact on the viability and
vitality of
The first respondents stated that they would not be revoking the approval.
[10] The petitioners' law agents responded by letter dated 28 November
(6/11). They described the explanation
as "entirely inadequate" and repeated, at some length, the petitioners'
complaints before ending with a request for a "full response" within seven
days, which failing action would follow.
At the same time (6/12), they brought the matter to the attention
on the Scottish Executive. Meantime, Mr Robertson
had discussed the matter with another councillor, Mr Sim. According to Mr Robertson, Mr Sim
too had seemed surprised that the approval had been granted at a meeting which
he had attended. The first respondents
replied twice to the letter of 28 November. First, on 30 November (6/13) they said
that they would respond to the petitioners' complaint by 5 January. Secondly, on 11 December (6/16) they did
respond stating that their earlier replies had covered the relevant issues. They pointed out that if the petitioners'
criticisms were well founded then "there are judicial remedies which are
available". They repeated that the first
respondents would not be revoking the permission. On
[11] There is no suggestion that the second respondents were aware of the exchange of correspondence between the petitioners and the first respondents. The second respondents aver that, after the approval, they:
"launched a marketing campaign to identify open class 1 non-food retailer demand for units ... undertook redevelopment and refurbishment of the park with a view to new lettings and engaged in extensive negotiations with existing and prospective tenants".
They aver that "Substantial costs
have been incurred in this process". The
detail of the work done by the second respondents is set out in two
letters (7/3 and 7/4) from the land agents instructed to market the Unit. These agents had quickly identified a
significant number of interested national retailers and conducted negotiations
to lease units with at least two of these, including a clothes retailer. Conditional agreements had been reached. They progressed plans, including further
planning applications, which the petitioners received notification of in
October 2006, to redesign and re-divide Unit 2 into four outlets and to
extend it by creating a fifth (7/6).
The costs of this have been in excess of £57,000. They negotiated with the three existing
tenants to relocate, one of these to one of the smaller units with the other
two leaving the
2. Submissions
(A) MORA, TACITURNITY AND ACQUIESCENCE
[12] The second respondents opened the hearing. They maintained that any right which the petitioners had to seek the remedy of reduction of the decision was barred by mora, taciturnity and acquiescence. Mere delay was not enough, but delay plus acquiescence and prejudice, in the sense of a material alteration of position, barred the claim (R (Burkett) v Hammersmith and Fulham LBC [2002] 1 WLR 1593, Lord Hope of Craighead at paras 61-63; Assets Co v Bain's Trs (1904) 6 F 692, Lord President (Kinross) at 705; Atherton v Strathclyde Regional Council 1995 SLT 557, Lord Cameron of Lochbroom at 558; Singh v Secretary of State for the Home Department 2000 SLT 533, Lord Nimmo Smith at para 11). The petitioners had been aware by June that the second respondents were actively seeking tenants. In the context of retail warehouse development, the delay thereafter was unreasonable. The second respondents had materially altered their position and incurred substantial costs on the strength of the variation and would be prejudiced were reduction to be granted. They had engaged in a marketing campaign, incurred expense, paid a large sum to a tenant and proceeded with further planning applications.
[13] The first respondents founded upon the terms of the letter from the petitioners of 21 September (supra), which expressly stated that the petitioners had decided not to go down the route of court proceedings. This amounted to a "waiver" of their right to do so and no prejudice on the part of the first respondents was required. For the plea to succeed, it was sufficient that the first respondents had conducted their affairs on the basis that the right to proceed to court had been abandoned (Bell: Stair Memorial Encyclopaedia sub nom "Personal Bar" para 1630, following Armia v Daejan Developments 1979 SC (HL) 56, Lord Fraser of Tullybelton at 69). The first respondents had conducted their affairs on the basis that court proceedings would not follow, in that they had been induced to make a full and candid response to the petitioners' complaint in their letter of 10 November (supra). Since there was no mention of "waiver" in the first respondents' pleadings, they offered to amend to include this as a specific plea-in-law.
[14] The petitioners maintained that the length of time, which it had taken to raise the petition, could be satisfactorily explained. Acquiescence could not be inferred from silence and there was insufficient material to demonstrate that the petitioners ought to have been aware of any significant prejudicial actings by the second respondents. For the plea to be sustained, the actings had to be such as indicated that the petitioners had truly abandoned their right to challenge the decision (Hanlon v Traffic Commissioners 1988 SLT 802, Lord Prosser at 805; Pickering v Kyle and Carrick District Council, unreported, 20 December 1990, Lord Penrose at pp 53-55; Atherton v Strathclyde Regional Council (supra) and Uprichard v Fife Council 2000 SCLR 949, Lord Bonomy at 955-956, 959). The correspondence demonstrated that the petitioners had acted in a manner consistent with their seeking revocation of the consent. Although the petitioners, as developers themselves, would have been aware that the second respondents would proceed to negotiate with tenants after the variation had been obtained, they would not have been aware of the detail of the discussions or the stage which they had reached. The petitioners had objected to the second respondents' planning applications to sub-divide and to extend Unit 2. The petitioners could not have anticipated that the second respondents would have proceeded to conclude tenancy agreements in advance of a decision on these applications. The second respondents had not specified how their various costs were divided relative to the lodging of the petition. The petitioners suspected that there would be a claw-back provision in relation to the payment to the "downsizing" tenant. The petitioners had also not reached concluded bargains with the other two tenants of Unit 2.
(B) TITLE AND INTEREST
[15] Both respondents pleaded that the petitioners had no title and interest to bring the proceedings. The second respondents maintained that the petitioners had made no serious attempt to set out their title and interest in the petition. The petitioners were founding upon planning policies intended to protect the town centre, yet their development was no closer to the town centre than that of the second respondents. At its highest, the petitioners' complaint was that the marketability and value of their development had been adversely affected by the variation. However, title in a planning context required to be derived, in the case of an objector, from a statutory right to object. The petitioners accepted that there had been no obligation to notify them and therefore they had no title to raise the petition (Simpson v Edinburgh Corporation 1960 SC 313, Lord Guest at 315-316). Title and interest could not be derived from mere injury to commercial interests. There had to be some legal right which had been infringed or denied (Bondway Properties v City of Edinburgh Council 1997 SLT 127, Lord Philip at 131-132, following D & J Nicol v Dundee Harbour Trs 1915 SC (HL) 7, Lord Dunedin at 12-13; Bett Properties v The Scottish Ministers 2001 SC 238, Lord MacFadyen at paras 17, 18 and 36).
[16] The first respondents adopted the second respondents'
submissions, but added three remarks. First,
the petitioners' submissions on title and interest (infra) had left their averments behind. Secondly, the petitioners had not been in
existence when the application had been made.
Thirdly, the petitioners had failed to make representations at the
appropriate time. It was accepted that
the petitioners had been given all the notification that they had been entitled
to. They could have made representations
under and in terms of section 38 of the Town and Country Planning (
[17] The petitioners submitted that they did have title and interest
to sue because of three matters. First,
they were members of the public who, as major developers, had a strong interest
in the Development Plan. They had an
interest in seeing that the Development Plan was adhered to. In particular, they had an interest in seeing
that the character of the
(C) REDUCTION
[18] The averments in the petition are somewhat rambling and
repetitious in content. The task of
focusing the relevant points of substance was left to oral argument at the
hearing. The lack of focus in the
written pleadings was reflected by a plea-in-law of the vaguest kind, which
reads "The respondent having acted unlawfully as averred in the petition, the
decision should be reduced". Under
reference to the well known dicta of
the Lord President (Emslie) in Wordie
Property v Secretary of State for
Scotland 1984 SLT 345 (at 347) and Glidewell J in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990)
61 P & CR 343 at 352, the petitioners attacked the planning
merits of the decision to approve the variation. Their starting point was section 25 of
the 1997 Act, which provides that planning decisions "shall be made in
accordance with the [development plan] unless material considerations indicate
otherwise". The first respondents'
decision had failed to apply that test or to have regard to material
considerations. The approval had been
contrary to L/R6. It would change
the character of the retail park in terms of the RET
[19] The committee should have considered both the impact of the variation on its own and in conjunction with other developments, including the Sawmills site . The committee may not have been made aware of the first respondents' earlier position at the public local enquiries that only one development out of the Sawmills and Auction Mart sites ought to proceed. As the first respondents had argued that position, it was remarkable that it had not been mentioned to the committee when it was being asked to allow further development by virtue of the variation. The affidavit of Mr Robertson concerning his conversations with councillors confirmed their lack of awareness of the issues. In addition, the report had not made any reference on the impact on bulky goods retailers, who might be forced to relocate from the second respondents' retail park, nor had it referred to the convention in planning practice to allow an approved development to become established before granting a further application for a similar development. Finally, the application had been defective because it was a variation of a permission granted in respect of the whole of the second respondents' retail park, yet the map attached to the application "red-lined" only Unit 2.
[20] The first respondents submitted that the approval had been in
accordance with the Development Plan. In
terms of the specific RET
[21] The first respondents' line at the public local inquiry relative to the Auction Mart site was not relevant to the approval of the variation. The reporter's concern had been in relation to the phasing of development at two different sites. Here, what was involved was the relaxation of a planning condition in respect of a small part of an established site. The planning committee had within it a wealth of knowledge and experience concerning the sites and the applications. The suggestion that the decision had been made in ignorance of these matters was artificial. Mr Robertson's affidavit did not suggest that either councillor had been unaware of the first respondents' position at the previous inquiries. There was no evidence that, in arriving at the decision, the committee had taken into account any irrelevant considerations or failed to take account of relevant ones. There was no convention of the type referred to by the petitioners. In any event it was not suggested that this convention was applied in Moray. Finally, the "red-line" point was misconceived. In terms of paragraph 3(c)(i) of the 1992 Order (supra), an application required to be accompanied with a plan sufficient only to identify the land to which it related. That provision had been complied with.
[22] The second respondents were content to adopt the submissions of
the first respondents. The planning
committee had had a similar composition for a number of years and its members
were interested specifically in the situation in
3 Decision
(A) MORA,
TACITURNITY AND ACQUIESCENCE
[23] There have been a number of attempts in the recent past to persuade the Court that delay in bringing judicial review proceedings should of itself operate as a bar, having regard to the need for certainty and efficiency in certain fields of administrative law, notably planning (see Pickering v Kyle and Carrick District Council (supra) at 50); Uprichard v Fife Council (supra) at 955). It is recognised that the principles of mora, taciturnity and acquiesce, as they have been developed in private law fields such as contract, do not sit entirely easily in the arena of public administration (Pickering v Kyle and Carrick District Council (supra) Lord Penrose at 53). Perhaps because of this, the Court has occasionally ventured to suggest that the determination of whether a plea of mora is made out in the context of judicial review is a matter for the court's discretion having regard to a variety of factors, including the need for sound administration (Uprichard v Fife Council (supra), Lord Bonomy at 956). The Court does appear to have approached the matter from that angle at times (Atherton v Strathclyde Regional Council (supra), Lord Cameron at 559). However, although the idea of the Court's decision on the plea being one of discretion was floated during the hearing in this case, it was, quite correctly, not pursued by any party. The decision is not a discretionary one but one involving the Court determining whether the party founding upon it has established that the plea is applicable on the facts presented.
[24] The common law principles surrounding the plea remain broadly
intact. Mere delay is not enough. There must be the additional elements of
taciturnity and acquiescence (Assets Co
v Bain's Trs (supra), Lord President (Kinross) at 705, followed in Singh v Secretary of State for the Home Department (supra), Lord Nimmo Smith at 537; R (Burkett) v Hammersmith LBC
(supra), Lord Hope at 1613). Lord Penrose's analysis in
"The essence of the plea ... is that the person or persons having a legitimate ground of challenge refrain from exercising the rights which flow from that ground of challenge, or from intimating an intention to exercise those rights, in circumstances in which, to their knowledge, the holder of a planning permission proceeds with material operations in reliance upon the permission, and so alters his position that there would be loss or other form of prejudice to him if the permission were to be reduced".
This is a relatively restrictive test and perhaps more so than the one applied by Lord Prosser in Hanlon v Traffic Commissioner (supra at 805), where he addressed the "reasonableness" of the delay. For present purposes, however, I will proceed upon the basis that it is an accurate reflection of the current law.
[25] So far as the first respondents' position is concerned, the petitioners' letter of 21 September (supra), stating that they had "decided to make a formal complaint rather go down the Court route" does not amount to a waiver of their right to use that route subsequently, depending on how matters developed. Read in context, the letter is no more than an intimation of the petitioners' then intention so far as resolving the dispute was concerned. Furthermore, the first respondents do not appear to have approached the contents of the letter as meaning that no court proceedings would ever be raised. Rather, as their letter of 11 December (supra) makes clear, they were of the view that judicial remedies remained open to the petitioners. The first respondents certainly provided a detailed response to the petitioners after receipt of the letter of 21 September, but that is what would be expected of a responsible local authority. There is no basis for supposing that this response was prompted by a promise not to sue. In addition, even although the first respondents offered to amend by including a plea-in-law relative to waiver, that plea could not properly have been sustained in the absence of averments specifically founding upon the letter, whose contents were explored only in oral argument.
[26] Apart from indulging in correspondence with the petitioners, the first respondents do not appear to have acted in any way to their own prejudice as a result of the petitioners' failure to raise judicial proceedings. From about June, some three months after the approval, they were aware of the petitioners' concerns and it would have been difficult for them to plead some form of bar on the petitioners' part given the nature of the petitioners' letters. In short, the first respondents have not made out their pleas of mora, taciturnity and acquiescence or waiver and these pleas will therefore be repelled.
[27] The second respondents' position is different. The petitioners are developers themselves, also engaged in retail warehousing. They would have been aware that, once approval for unrestricted Class 1 non-food goods use had been granted, the second respondents would set about marketing the relevant part of their site on that basis and would incur substantial expense in so doing. From at least June, the petitioners were aware that the second respondents were marketing their site and, apparently, engaging with potential tenants. They would have been aware that contracts of lease would be likely to be negotiated. By about October, they were aware of the second respondents' applications for planning permission to modify and extend Unit 2. During this period from June until the end of the year, the second respondents appear to have been busy proceeding on the basis of the approval. They acted accordingly in incurring significant expense. Although the degree of expenditure, after the variation came to the notice of the petitioners, may not be as great as the totals set out in the letter from the land agents, it has still been considerable in terms of both time and money. Reduction of the variation would accordingly cause the second respondents substantial prejudice. At no point, during the six month period from June until the end of the year, does it appear that the petitioners ever intimated to the second respondents that they were challenging the approval and might take legal proceedings to reduce it. In these circumstances, the test for mora, acquiescence and taciturnity described above has been made out and. The second respondents' plea must be sustained accordingly.
(B) TITLE and INTEREST
[28] Title and interest both require to be present in order to
permit a party to pursue an application for the reduction of an administrative
decision. In general, title is concerned
with whether that party is in some legal relationship, which creates a right
which the decision has denied or infringed (D & J
Nicol v Dundee Harbour Trs (supra) Lord Dunedin at 12-13;
followed in the Outer House cases of Air 2000
v Secretary of State for Transport (No 2) (supra) Lord Clyde at 338; Bondway Properties v City of
Edinburgh Council (supra) and Bett Properties v Scottish Ministers (supra),
Lord Macfadyen at para 36). "Legal
relationship" has to be construed broadly in this context. Interest is normally a separate element from
title (Scottish Old People's Welfare
Council, Petitioners (supra) Lord Clyde
at 184; cf Bondway Properties v City of
[29] Looking first at title, the framework within which town and
country planning operates is exclusively statutory. The relevant statutes, notably the Town and
Country Planning (
[30] There is no formal right of objection given to specific persons in the planning process. Rather, there are provisions which permit the making of Regulations governing the way in which applications are to be publicised (s 34). As already noted, there are both Regulations and Directives which specify the manner in which neighbours are to be notified of applications and the way in which certain applications are to receive wider publicity, such as newspaper advertisement. Any person, whether a neighbour or not, may then make representations to the planning authority covering any matter. The planning authority is under a statutory duty "to take into account" any timeous representation (s 38). Because of that, any person who might have made material representations will normally have a title to pursue an action for reduction of any decision, where the required notification and advertisement has not been not carried out and he has thereby been deprived of his right to lodge such representations. Since the requisite publicity is aimed at affording him an opportunity to make such representations, it is not difficult to conclude that a failure to notify or advertise amounts to a breach of a statutory duty owed to that individual. In that way, whether or not there required to be direct notification to the person as a neighbour is not the test. Title to challenge a decision because of lack of appropriate notice is a well known concept. Success will not depend on a definitive examination of the merits of the decision and it may suffice if it can be said that the intended representation would have contained a material consideration which could have resulted in a different decision.
[31] The requirements of notification and advertisement in the planning context have altered considerably since Simpson v Edinburgh Corporation (supra) and parts of Lord Guest's analysis based on the absence of neighbour notification (at 317) are no longer valid. Nevertheless, Lord Guest's view (at 316) that the planning acts are a "public code for planning and development and use of land ... not intended primarily for the protection or benefit of individual proprietors" is still a sound one. Continuing to follow Lord Guest's reasoning, the purpose of the planning legislation is to benefit the community as a whole (cf the duty to individual members of the public in Scottish Old People's Welfare Council, Petitioners (supra) Lord Clyde at 185). In order to have a title to enforce the terms of that legislation in the manner attempted by the petitioners, a party requires to show that some right of his, conferred by, or in the context of, that legislation has been, or will be, infringed.
[32] The petitioners' challenge is not based upon any infringement of a right conferred upon them by the legislation but simply upon the planning merits of the decision. But that decision does not affect any of the petitioners' rights or any of their legal relationships. At the time of the decision, they were not in any legal relationship, however loosely defined, with either of the respondents. They may have been in such a relationship while their own application was being considered, but that relationship expired when the petitioners obtained their own open Class 1 non-food permission. The decision upon the second respondents' application has had no legal effect upon that. All that can be said is that there is a planning permission which may have, as an indirect consequence, an adverse effect on the value of the petitioners' site (cf the direct effect in Air 2000 v Secretary of State for Transport (supra) Lord Dervaird at 700). Decisions, planning or otherwise, with that type of indirect effect on a person's property are taken by government, local and national, on a regular basis without conferring upon that person a title to challenge such a decision by judicial review. The fact that a party has been, or may be, "closely affected" by a decision is not sufficiently precise to provide a useful test on title.
[33] Furthermore, in the administrative context, before a party can
have a title to challenge a decision on its merits, it is first necessary for
him to have been a party to that decision making process. Having failed to enter the planning process
at the appropriate stage by representation, a party cannot make a failure to
take account of what he might have said in a representation a ground of
challenge in a legal process. Had the
petitioners entered the planning process by tendering a representation, they
would thereby have acquired a right to have the representation taken into
account. A failure by the planning
authority to deal with a representation in a reasonable manner may well provide
grounds for a review (Patmor v City of Edinburgh DLB 1987 SLT 179,
Lord Jauncey at 495 following Black
v Tennant (1915) 1 F 423, Lord Adam
at 436; both referred to in Hollywood
Bowl (Scotland) v Horsburgh (supra Lord Osborne at 244). But the petitioners did not make such
representations and they cannot circumvent the proper route for planning
decisions by attempting to make the same representations directly to the Court. It may be that this analysis differs slightly
from the approach of Lord Macfadyen in Bett
Properties v Scottish Ministers (supra at para 19), where he leaves
open the possibility of challenges, other than those based on procedural
defects, even where the proper opportunity to challenge has been spurned. However, it is in accord with the line taken
by Lord Osborne, albeit in the licensing context, in
[34] The failure to make representations does appear to have a bearing on title rather than fall into the category of "failure to exhaust remedies", even if such categorisation may be of little import. In any event, in so far as such a failure is concerned, although the first respondent offered to amend by inserting a relevant plea-in-law, that plea could not have been sustained in the absence of supporting averments. For similar reasons, no argument based upon the concept of "legitimate expectation" could have been sustained in the absence of any mention of it in the petitioners' pleadings. Form 58.6 of the Rules of Court requires a petitioner to state the grounds upon which he challenges the decision of the respondent. The petition is supposed to contain in brief compass "the legal argument with reference to enactments or judicial authority upon which it is intended to rely". It may be accurate to say that in recent times the provisions of the Rules in this respect have been more "honoured in the breach than the observance". However, the Court must impose some limits on the extent to which oral argument is permitted where there is not an inkling of the argument in the pleadings.
[35] In any event, there does not appear to be any element of
"legitimate expectation" present. As Lord Reed
points out in his discussion of the topic in the Scottish Planning Encyclopaedia
(para A.5052 under reference to Lord Clyde in The Miller Group, Petitioners (supra
at pp 3-4) following Lord Fraser in Attorney General of Hong v Ng
Yuen Shiu (1983) 2 AC 629 at 638), "a legitimate expectation
imposes on the decision-maker a duty to act fairly (in a procedural sense)". Planning policies are usually statements of a
general nature. They may be departed
from if material considerations so dictate.
They do not normally give rise to any "legitimate expectation" in a
legal sense on the part of any person that the application of another will
follow a particular procedural path or even that the outcome will be in
accordance with general planning policies.
In this particular case, given that the petitioners had themselves
obtained an open Class 1 non-food goods permission for their own retail
park, which is now being seen as an extension to the
[36] Turning to the separate issue of interest, the general interest of the petitioners to challenge the decision might be said to be reasonably apparent. They say that the value of their site has been diminished by the first respondents' decision and there seems to be little challenge to that contention, although the degree of damage to the petitioners may not, as yet, be clear or certain. Their averments of damage, if proved, would permit them an interest to challenge that decision in certain circumstances. However, when the grounds for the challenge are looked at, even fleetingly, it can be seen that what the petitioners are doing is relying on policies designed to protect the viability and vitality of the town centre. The petitioners have no interest, so far as can be seen, in protecting the centre of Elgin from a commercial or any other point of view. They are not individuals concerned to protect the amenity or facilities of the centre. They do not operate in the centre. In short, they have no interest in seeking to enforce the planning policy upon which they rely. The interest element of the respondents' pleas will also be sustained since the petitioners have no interest to pursue a reduction based upon a failure to consider policies designed for the protection of others, if not simply the community as a whole.
(C) REDUCTION
[37] The test for whether the first respondents' decision falls to be reduced on its merits is set out by the Lord President (Emslie) in Wordie Property v Secretary of State for Scotland (supra at 347-348). It is whether the first respondents have: (i) misdirected themselves on the law; (ii) taken into account an irrelevant consideration; (iii) failed to take into account a relevant consideration; (iv) proceeded upon a misunderstanding of fact; or (v) reached a decision which no reasonable planning authority could have reached. It is of considerable advantage if a petitioner in a judicial review process can determine which of these categories he is founding upon, separate the averments in his written pleadings accordingly and make his position clear in his pleas-in-law. The petitioners' second plea-in-law of "the respondent having acted unlawfully" is so vague as to be almost meaningless and incapable of being sustained to any purpose.
[38] On the other hand, the petitioners' oral submissions were clear. They first maintained that the petitioners
had failed to apply the statutory provision (supra) whereby planning decisions "shall be in accordance with the
[development plan] unless material considerations indicate otherwise". The second respondents' application was in
accordance with the development plan. Their
site was part of the
[39] The policy also states that: "proposals which would change the
character of the retail park, as described in the preceding paragraph will be
subject to policy L/R6". However,
that paragraph records the existence of the ASDA store, which has a permission
to sell Class 1 food and non-food goods.
ASDA is part of the
[40] Even if policy L/R6 had potentially applied, it would have had to have been borne in mind that the second respondents were seeking a variation of an existing permission and not attempting to create new retail outlets. It that respect, their application was quite different from, and required a different approach to, the proposed development of the Auction Mart site. The first respondents' position about phased and sequential development at the public local inquiry into that site has little relevance to the second respondents' application for a variation at an established retail park.
[41] The report to the first respondents' planning committee was
relatively short. However, its brevity
has to be seen in the context of what was an unopposed application for the
relaxation of a condition. The report
made reference to the most important aspect of the application, namely that it
was supported by the
[42] The report had appended to it extracts from the Development Plan setting out the relevant policies, including L/R6. It was adequate for its purpose. There was no need for it to refer to the retail impact study, since that study revealed there to be no significant impact on the city centre. No doubt, had the issue been raised, the study could have been circulated. But in the absence of that issue being raised, there was no point in advising the planning committee of a negative. Finally, in so far as the report is concerned, there is no reason to suppose that the planning committee had in mind only its contents before reaching its decision. On the contrary, this committee, no doubt like many others, had been dealing in detail with out-of-centre retail warehousing for some years. It would almost certainly have been well versed in the issues of town centre protection and related matters. So far as the technical point about the "red-lining" of the site boundaries, the plan attached to the application for variation was entirely adequate for its purpose of identifying the site in terms of the regulation (supra).
[43] In summary, the first respondents appear to have addressed themselves to the correct question of law by looking at whether the application was in conformity with the Development Plan. They do not appear to have taken into account any irrelevant consideration or failed to take account of a relevant one. The facts before them were accurate and they reached a reasonable decision to allow the variation. There is therefore no basis upon which the first respondents' decision can be reduced on grounds relative to its merits. I will therefore: (i) allow the petition to be amended in terms of the first respondents' motion to add two new pleas-in-law (2. waiver; and 3. failure to exhaust remedies); (ii) sustain the first plea-in-law for the first respondents and the first and second pleas-in-law for the second respondents; (iii) repel the first and second pleas-in-law for the petitioners and the second, third and fourth pleas-in-law (as amended) for the first respondents; and (iv) refuse the prayer of the petition contained in the third statement of fact.