Co-Operative Group (CWS) Ltd, Re Judicial Review [2008] ScotCS CSOH

OUTER HOUSE, COURT OF SESSION

[2008] CSOH 28

P1610/06

OPINION OF LORD MENZIES

in the petition of

Co-Operative Group (CWS) Limited

Petitioners;

for

Judicial Review of a decision by the Highland Council to grant planning permission to Tesco Stores Limited for a superstore at Wick

________________

Petitioners: Smith, Q.C, Simpson; Paull and Williamsons

Respondents: S Wollfe; Biggart Baillie

Interested Party (Tesco): Currie, Q.C., Munro; Semple Fraser LLP

20 February 2008

Introduction

[1] On 29 June 2005 the respondents registered an application for planning permission for a proposed Class 1 retail store, petrol filling station and associated car parking, servicing, access and landscaping on vacant land at Wick Airport, to the north of the vacant Caithness Glass Centre. The applicants were Tesco Stores Limited (hereafter "Tesco") and Highlands and Islands Airports Limited. The petitioners own and operate supermarkets in Wick and Thurso town centres. On 10 October 2005 the petitioners' agents lodged a holding objection to this application, and once Tesco's Retail Impact Assessment ("RIA") and Transport Assessment ("TA") were submitted a more detailed objection on behalf of the petitioners was made on 23 February 2006. In a report to the respondents' relevant committee (the Caithness Planning, Development, Europe and Tourism Committee - Development Control) dated 18 April 2006 the director of planning and development recommended approval of the application subject to conditions. At a meeting on 24 April 2006 the committee held a hearing to consider the application. At this hearing the agent for the applicants addressed the committee and answered questions, and an objector and certain officers of the respondents also spoke. The petitioners were not present nor represented at the meeting (although they were entitled to be so). At the end of the meeting the committee agreed to grant the application subject to conditions. Planning permission was issued on 28 April 2006. (On 21 July 2006 Tesco applied for variation of the consent to amend the proposals to form an eco-store. After some discussions, this application was granted on 21 September 2006. It is common ground between the parties that this variation falls to be considered along with the original grant, and that this does not materially affect the issues before me.)

[2] Following upon the issue of planning permission on 28 April 2006 Tesco acquired the site, and their contractors began work on the development on about 26 June 2006. An article appeared in the Caithness Courier newspaper dated 5 July 2006 reporting that the development had commenced, under the headline "Work Gets under Way on Wick Tesco Site". The present petition was served on 21 July 2006. On the application of the petitioners, the first hearing of this petition was reassigned from early October 2006 until June 2007; it was thereafter reassigned to early November 2007. Construction was completed and the store and filling station was opened for business on 27 November 2006. It has traded since then. Tesco aver that they have incurred building costs of £13.5 million and substantial stocking costs, and that they employ some 300 staff in the operation of the store.

[3] In this petition for judicial review the petitioners seek declarator that the decision to grant planning permission was ultra viries, and reduction of the decision and the planning permission. The arguments advanced before me fell under three broad headings, and it is convenient to set out parties' submissions under these headings. They are (i) the petitioners' attack on the way in which the respondents approached the decision (which was itself divided into retail considerations and parking considerations), (ii) the petitioners' title and interest to sue and (iii) mora, taciturnity and acquiescence. Before setting out these submissions however, it may be helpful to set out some of the statutory and policy framework to which reference was made in argument.

STATUTORY PROVISIONS AND POLICY GUIDELINES

[4] The Town and Country Planning (Scotland) Act 1997 provides, by sections 25 and 37, inter alia as follows:

"25. Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.

37(1). Where an application is made to a planning authority for planning permission -

(a) subject to sections 58 and 59, they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or

(b) they may refuse planning permission.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations"

The Structure Plan which was in force at the time of the decision was the Highland Structure Plan Written Statement (March 2001). The council's retailing aims were set out in paragraph 2.3.1 which provided inter alia as follows:

"Maximisation of accessibility to community facilities and services is a key objective of the Structure Plan. Shopping is an essential part of life for most people and access to a range of quality shops, particularly fresh food stores, makes an important contribution to the health of communities. It is important therefore that planning policies secure a pattern of shopping provision that is convenient to all sectors of the community. Equally it is important that the quality of provision meets the needs and aspirations of the communities served. Failure to do so can result in households travelling further to obtain goods and services which in turn makes them more expensive, and reduces local expenditure to the detriment to the local and regional economy. Retailing can also offer significant employment benefits. The Plan's strategic themes relating to accessibility to goods and services and consolidating the settlement hierarchy are particularly relevant to shopping provision. To meet the Plan's objectives and be consistent with the Structure Plan strategy, policies seek to encourage the highest level of shopping provision in each settlement, consistent with its potential shopping role and its catchment population."

[5] The relevant retailing policies included the following:

"Policy R1 Shopping Hierarchy
Development proposals which consolidate the shopping hierarchy and enhance the role of individual settlements as shopping centres will be supported.

Policy R2 Everyday Shopping Needs

Development which safeguards and enhances the local provision of facilities to meet everyday needs will be encouraged, and proposals which potentially undermine such provision will not normally be permitted.

Policy R4 Major Food Stores

In small and medium sized towns, food store provision will normally be located within town centres or within edge of centre locations. In the largest settlements, more localised provision will be encouraged where it is well related to existing and proposed housing. Where major food store proposals are adjudged to pose a potential risk to the vitality and viability of local services, the development will not normally be permitted."

(In support of policy R4, paragraphs 2.3.6 and 2.3.7 provided that

"In small and medium sized towns a town centre location would be most accessible to all households within the catchment. At the same time the development would reinforce the attractiveness of the town centre for local people and visitors alike. In certain circumstances, however, making a site available in the town centre may be problematic because of amenity or traffic congestion and alternative sites may need to be considered. Any new proposal for retail development must, however, demonstrate that the sequential approach to site identification has been followed....In the smaller and medium sized towns a further increase in the spread of food stores is possible, together with the enhancement of existing provision. In some cases upgrading of stores on existing sites may not always be possible and alternative sites may need to be found.")

"R5 Town centre shopping

Retail developments in town centres will generally be encouraged. Development proposals which are adjudged to undermine the vitality and viability of existing town centres will be resisted."

[6] The version of National Planning Policy Guideline 8 ("NPPG 8") which was extant at the time provided, in paragraph 45, inter alia as follows:

"Where a proposed development is not consistent with the development plan, it is for the developer to demonstrate why an exception to policy should be made. Such proposals should be rigorously assessed by the planning authority against the policies set out in this NPPG and should be refused if all the following considerations cannot be met. The proposed development should -

(a) Satisfy the sequential approach....

(c) Be capable of co-existing with the town centre without individually or cumulatively undermining its vitality and viability, if necessary supported by planning conditions limiting, for example, floor space or the range of goods sold or the level of car parking; and should not lead to changes to the quality, attractiveness and character of the town centre, affecting the range and types of shops and services that the town centre would be able to provide, or undermine leisure, entertainment and the evening economy..."

[7] Scottish Planning Policy 17 ("SPP 17") dealt with national maximum parking standards at paragraph 67, and provided inter alia as follows:

"... each council is expected to define a set of maximum parking standards for that council's area. However, for a small number of significant travel-generating land uses as set out in table 2, there is a national interest in ensuring that council parking standards are no less restrictive. These national standards apply to the whole of any development which breaches the size threshold and to all motor vehicle parking other than that provided for disabled people. If a council wishes to approve a development of a category and size set out in table 2, with less restrictive parking standards, they will have to refer the application to the Scottish Ministers under the Town and Country Planning (Notification of Applications)(Scotland) Amendment Direction 2003. The Scottish Ministers will then decide whether to allow the council to proceed or whether to call in the application for their own determination."

Petitioners' submissions in support of their attack on the way in which the respondents approached the decision

(a) Retail

[8] Senior counsel for the petitioners submitted that there was a strong theme running through NPPG 8 and the Structure Plan to protect town centres against threats from edge of town development such as the Tesco development in Wick. The director of planning and development conceded in his report to committee that the development did not strictly accord with the development plan, as it was located on the edge of town. In view of this, paragraph 45 of NPPG 8 required the respondents to carry out a rigorous assessment of the proposals against the policies set out in the NPPG and to refuse permission if the specified considerations could not be met. The director of planning and development summarised the assessment procedures and principals and made passing reference to NPPG 8 in section 7 of his report to committee, but critically he missed out any reference to the need for rigorous assessment. Senior counsel submitted that the respondents did not carry out a rigorous assessment of the proposal, and in doing so they failed to have regard to a material consideration. Without a rigorous assessment, the respondents had no proper basis in fact to make their decision. They were required by section 25 of the 1997 Act to have regard to all material considerations, and by failing to carry out a rigorous assessment they did not have regard to all material considerations. Counsel relied on the well known passage in Wordie Property Co Limited v Secretary of State for Scotland 1984 SLT 345 (particularly the opinion of Lord President Emslie at 347-348) and also on Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority 1990 61P & CR343 (particularly per Glidewell LJ at 352/3) and City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 (particularly per Lord Clyde at 44/5). Counsel submitted that there were five aspects of the development proposals which demonstrated that the respondents did not carry out a rigorous assessment, as follows.

(i) Discrepancies in the net floor space of the development

[9] In the supporting planning statement prepared on behalf of Tesco (of which the RIA formed part) it is stated at paragraph 1.6 that the net floor space of the proposed store would be 4,761 square metres. However, at paragraph 3.21 in the RIA it is stated that "the area for convenience sales would be around 2,300 square metres and the comparison sales area was likely to be around 1,400 square metres at the outset", giving a total net area of about 3,700. This equates approximately to the figure of 3,817 square metres net floor space in table 5 of the RIA; it appears that it was this smaller net floor space that was tested. In the planning permission granted by the respondents on 28 April 2006 there is no condition limiting the floor space of the store. In the report commissioned by the respondents from Halcrow Group Limited and dated August 2006 this is described as "an inconsistency that may be critical to impact calculations and it is not clear from the papers presented what floor space has been applied for or permitted." The findings of the report observed that "the consideration of the Tesco application was sound on policy matters in strategic policy terms, but as the use did not comply with Local Plan land use designation, NPPG 8 para 45 test should have been applied. This is the case, even if other material considerations led to a judgement that the balance of advantage lay with granting consent." The report concluded that the respondents' scrutiny of the RIA was less rigorous than it could have been. In a report prepared in May 2007 for the petitioners by James Barr commenting on the Halcrow report, the view is expressed that the difference in floor space equates to an additional turnover of between £4,000,000 and £7,700,000, which is described as "a significant and material difference between the two figures which will alter the predicted impacts." Counsel submitted that the actual net floor space itself was a material consideration, and it is clear that the respondents have not set a figure in the grant of planning permission nor considered this; they certainly did not assess this with rigour. They have therefore failed to have regard not only to the facts but also to the need to carry out a rigorous assessment.

(ii) Lack of analysis on the impact on Thurso town centre and local services

[10] Although the director of planning and development's report to committee contained an analysis of the impact of the proposal on the vitality and viability of Wick town centre, there was no such analysis of the impact on Thurso. When asked why Thurso should be relevant, counsel answered that it was a question of planning judgment as to where the assessment should be made. Both Wick and Thurso were categorised as sub-regional centres; it appeared from table 8 of the RIA that the percentage turnover change from Wick town centre and Thurso town centre was almost identical, and if Wick town centre was to be analysed, it made sense to analyse Thurso town centre as well. This point was the subject of comment in Halcrow's subsequent report, which also observed that there was no assessment of potential impact on rural shops and so no condition was attached to the planning permission granted to Tesco for contribution to a rural shop support fund which the respondents proposed to explore in terms of proposal R3 of the structure plan. Again this was indicative of a less than rigorous assessment.

(iii) Leakage of expenditure from the catchment area

[11] The respondents did not ask for evidence of leakage away from the catchment area. Tesco's consultants asserted in the RIA that there was leakage of expenditure to stores outwith the catchment area; this assertion was based on Tesco's experience in their stores in Dingwall and Inverness, but no hard evidence was provided to support this assertion. If they had been applying a rigorous assessment the respondents should have required such evidence to be produced.

(iv) The inclusion of Orkney and Shetland within the secondary catchment area
[12] The RIA included Orkney and Shetland in the secondary catchment area "as the store could be a major attractor for residents of the islands", although it conceded that the extent of the influence of the store on the islands was very difficult to predict as there was no available information to suggest whether many island residents shopped in either Thurso or Wick at that time. Nonetheless, in table 8 Tesco proceeded on the assumption that the store would have a total trade draw of almost £0.5 million from each of Orkney and Shetland. In their expanded letter of objection dated 23 February 2006 the petitioners' agents expressed significant concerns particularly about the inclusion of both Orkney and Shetland. The director of planning and development touched on this concern briefly in his report (at paragraph 7.5) but made no substantive comment about it himself, and did not require further justification from Tesco on the point. The subsequent report from Halcrow expresses doubts about the assumptions of trade draw from Orkney and Shetland. There was not a rigorous assessment of this point in the director's report, and it was fair to assume that in the absence of reference to it in the minutes of the council hearing the councillors themselves did not carry out a rigorous assessment.

(v) Tesco's estimates for convenience trade diversion do not stand up to scrutiny
[13] According to table 8 of the RIA, Tesco estimate that out of a total convenience turnover of £16,300,000, £9,600,000 would come from existing Tesco stores in Inverness and Dingwall, and only £1,760.000 would come from Wick itself. This was inherently improbable, and was the subject of specific objection in the petitioners' letter of 23 February 2006. This was critical to Tesco's leakage argument, and must proceed on the basis that customers are presently driving to Inverness or Dingwall from the catchment area and spending this money there. No evidence was sought by the respondents to support this proposition, and this was the subject of criticism in the Halcrow report. Moreover, at the time that the respondents were considering the application, they already had before them contradictory information, in the form of a supporting planning policy and retail statement on behalf of Asda Stores Limited for a proposed development at Thurso, which came to a different conclusion from the RIA. If the respondents had carried out a rigorous assessment of the present proposals, as they were obliged to do, this contradictory information would have inevitably caused them to require further information from Tesco in support of the figures in the RIA.

[14] Senior counsel for the petitioners submitted that if there had been a rigorous assessment on these five matters, there was a real possibility that the respondents' decision would have been different. Indeed, a rigorous assessment on any of these five matters might have resulted in a sufficiently material difference in retail impact that it might have caused a different decision. In support of this counsel referred me to the report by James Barr dated 29 May 2007 (number 6/38 of process).

(b) Parking
[15] Senior counsel for the petitioners submitted that this was another instance of the respondents failing to have regard to a material consideration, and but for this failure there was a real possibility that the application would have been notified to the Scottish Ministers; this failure therefore denied the petitioners the opportunity to have their objection considered by the Scottish Ministers. Although the petitioners did not object to the levels of parking shown on the proposals, by not having regard to this material consideration the respondents denied the petitioners the opportunity to have their retail objections considered by the Scottish Ministers.

[16] There were two sets of conflicting parking guidelines. The maximum guidelines were contained in SPP 17, which provided that if it was intended to allow parking over a particular threshold notification to the Scottish Ministers was required. The respondents' own guidelines provided for minimum parking provisions. These minimum guidelines provided a higher requirement than the maximum guidelines in SPP 17. The car park was originally proposed to have 520 parking spaces, including 24 spaces reserved for disabled persons. The gross floor space of the new store was stated to be 6,940 square metres. If table 2 in paragraph 67 of SPP 17 was applied as if the whole gross floor space was devoted to convenience sales, this would be acceptable (6940 ÷ by 14 = 496). However, the respondents ought to have had regard to the fact that only 60% (or thereby) of the store was devoted to convenience shopping, and the balance to comparison shopping. Applying the respondents' own guidelines (6/14 of process) without apportionment between the two types of retail would result in a requirement for 694 parking spaces. Applying the respondents' own guidelines and apportioning between the two would result in 482 car park spaces. SPP 17 was a material consideration to which the respondents were bound to have regard - see Lord Wheatley's unreported opinion in a petition for judicial review of a decision by the respondents at the instance of Carlton Clubs plc (unreported, 10 February 2004). The respondents' own guidelines were also a material consideration. The respondents had required other applicants for retail store development permissions to carry out a pro rata exercise, dividing floor area between convenience and comparison shopping - see paragraph 8 of a letter from Drivers Jonas to the respondents dated 4 October 2006 (No. 6/25 of process). In their answers to the present petition the respondents averred that at the material time it was not the policy of the respondents to undertake or require to be undertaken an exercise of apportioning or pro rating according to gross floor area to separate uses of a proposed development for the purposes of the application of parking maxima. None of the relevant policies requires any such pro rata exercise. However, counsel submitted that it was not apparent that the respondents, or any of their officers, had ever considered how to interpret SPP 17. Nobody had considered whether there was a case for reducing the respondents' guidelines which are applied in other cases. The guidelines themselves are a material consideration which affect the way in which the respondents ought to approach an application. Although counsel accepted that he could not argue that there was a need to apportion or pro rate, there was nothing to suggest that the respondents had given any consideration to this. They had accordingly failed to take account of a material consideration.

Submissions for the respondents on the petitioner's attack on the way in which they approached the decision

[17] Counsel for the respondents began by referring me to the decision of the House of Lords in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759, and particularly to the speech of Lord Keith of Kinkel at 764 and that of Lord Hoffmann at 780. The point which Lord Hoffmann was making was fundamental to her submissions, and is worth repeating here. He observed that the distinction "between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

[18] She submitted that what the petitioners were trying to do was to get the court to consider the merits of the respondents' decision, and to look into what are properly matters of planning judgment. In developing this theme, she made three propositions in law:

(a) The question of the weight to be given to material considerations is a matter of planning judgment exclusively for the planning authority, unless it lapses into Wednesbury unreasonableness. The petitioners do not rely on Wednesbury unreasonableness in this petition.

(b) The sufficiency of the material upon which a planning authority chooses to proceed is itself a matter for the planning authority. In support of this she referred me to the decision of an Extra Division in the petition of John Simson [2007] CSIH 10 (unreported).

(c) Interpretation of planning policy is also primarily a matter of planning judgment. If there is a range of meanings, and if a planning authority's interpretation is within the range of permissible meanings, the court will not interfere with that interpretation. This point was of particular relevance with regard to the parking issue, but also arose in the retail context in relation to the words "rigorous assessment".

It was important to remember that the policies themselves do not impose legal obligations, so their interpretation should not be approached in the same way as interpretation of statutes or documents which impose a legal duty. In support of this I was referred to the unreported decision of John Findlay [2006] CSOH 188 where Lord Hodge observed (at [30]):

"Statements of policy, such as National Planning Guidelines ... are not as a general rule intended to have legal effect. The meaning to be given to such documents is a question of fact, so long as the decision maker gives the words a meaning that is not perverse or irrational. As a result, misinterpretation of such documents does not of itself necessarily entail an error of law."

And at para [32]:

"Interpretation of policy documents is primarily a matter for the decision maker and not the court because in most cases it is not a question of law. This is principally because of the nature of the document, which does not of itself have legal effect."

[19] Counsel submitted that the petitioners were in error in proceeding on the basis that a rigorous approach was a legal obligation; it is not a legally enforceable duty, and there was no abstract standard by which it could be judged. NPPG 8 was simply guidance in a policy document, and whether a rigorous assessment was adopted is a matter of planning judgment. The only means by which the court could look at the quality of the respondents' assessment would be if it was attacked as Wednesbury unreasonable, but there is no such attack in the present petition. Counsel found support for this proposition, specifically in relation to NPPG 8, in the decision of the Second Division in Freeport Leisure plc v West Lothian Council 1998 S.C. 215 (particularly at page 221) and Virgin Cinema Properties Ltd v Secretary of State for the Environment [1998] 2 P.L.R. 24. The petitioners challenge the respondents' interpretations of both NPPG 8 and SPP 17, but they have no Wednesbury challenge, and their whole approach is misconceived. This argument applied not only to the petitioners' submissions with regard to NPPG 8 and SPP 17, but also to their submissions that the respondents did not interpret their own Structure Plan properly. The petitioners focussed on the provisions of policy R4 of the Structure Plan, but ignored policy R1. Where a planning authority make an assessment against a number of policies, there may be a tension between these policies, and it was a matter for the respondents' planning judgment to decide whether the need for consolidation in terms of policy R1 was of primary concern. The balance between policy R1 and policy R4 was a matter of planning judgment for the respondents.

[20] The report to the committee by the director of planning and development was not the only material before the committee. The committee had before it the RIA, the TA, several detailed letters of objection, and the oral evidence that was presented to it at the hearing, which lasted for about two hours. Moreover, members of the committee included local councillors who were entitled to have regard to their own knowledge of the area. The function of the director's report was merely to summarise the principal live issues; it did not (and did not need to) go into areas which have not been raised as issues or matters in dispute; for example the detailed interpretation of SPP 17, which was not raised in any of the objections and was not identified as an issue by the petitioners themselves. Counsel referred me to the decision of the House of Lords in Bolton Metropolitan District Council v Secretary of State for the Environment (1995) 94 L.G.R. 387, where it was held that there was no requirement for the Secretary of State in giving his reasons for a decision to refer to every material consideration, however insignificant, or to deal with every argument, however peripheral. If this was the case for the Secretary of State, a fortiori it applied to a report by a director of planning and development to a planning committee. The approach identified by John Rennilson in the last paragraph of his affidavit (No.7/14 of process) was the correct approach.

[21] Counsel submitted that this proposal met all the retail policies in the development plan, so the provisions of NPPG 8 were not engaged. In any event, the requirements of NPPG 8 have been met. The respondents' key strategic aims with regard to retail were to be found in paragraph 2.3.1 of the Structure Plan; essentially the aim was to ensure accessibility to goods and services and consolidate the shopping hierarchy. Conserving retail spending within the locality and consolidation of the hierarchy by high quality retail provision in the locality was how leakage of spending was reduced and unnecessary travel to Inverness avoided. The petitioners were therefore mistaken in looking at policy R4 in isolation - the respondents' key strategic aims also had to be borne in mind, and the weight to be attached to each of the retailing policies was a matter for the respondents. The sequential approach to site identification had been satisfied in this case. There was therefore no departure from Structure Plan policies. To the extent that there was any departure from the development plan, this related to the zoning of the site in question for industrial use in the local plan. Departure from a development plan on a non-retail issue did not bring paragraph 45 of NPPG 8 into play. The sequential test had been satisfied and there was no departure from the retail policies of the development plan such as to bring paragraph 45 of NPPG 8 into play. The Structure Plan post-dated NPPG 8, and nothing in paragraph 45 is not addressed by the respondents' approach - the mere zoning of a site as industrial in a local plan does not raise any issues which were not dealt with in consideration of Structure Plan policies. In any event, the report by the director of planning and development referred to NPPG 8 and considered all the matters which the policy guidance suggested should be considered at paragraphs 7.3 to 7.6. It was implicit in the Structure Plan policies that there was leakage of expenditure, and matters of leakage, accessibility, the vitality of the town centre and the sequential test were all covered in the RIA. The sufficiency of material before them was a matter for the respondents. As the director of planning and development put it in his report to committee, "the store ... should assist in bolstering Wick as a sub-regional centre. Retaining retail spend within the area is likely to enhance the vitality and viability of the town centre." The petitioners did not challenge this statement.

[22] The phrase "rigorous assessment" in paragraph 45 of NPPG 8 does not import a legal duty, nor does it amount to some abstract or legal standard; it falls to be read in its context and requires a qualitative judgment. The petitioners have not offered any interpretation of the phrase, but suggest a lack of rigour under reference to the Halcrow report. However, Halcrow does not provide the benchmark by which the phrase can be tested, and in any event the petitioners were not mounting an attack on the respondents for Wednesbury unreasonableness. The Halcrow report simply observed that the respondents' scrutiny of the RIA was less rigorous than it could have been, but made no attempt to define what amounted to a rigorous assessment. Even if all the factors relied on by the petitioners amounted to a deficiency, they do not amount to Wednesbury unreasonableness, and the petitioners' case is not analogous to anything contemplated by Glidewell LJ in the Bolton Metropolitan Borough Council case.

[23] Turning to the five detailed points of criticism made by the petitioners with regard to retail impact assessment, counsel only responded briefly as there was no attempt to present these as Wednesbury challenges. She responded as follows:

(i) Any alleged discrepancies regarding floor space within the RIA did not demonstrate any lack of rigour on the respondents' part. The respondents proceeded on the basis of table 5 in the RIA, and a figure of 3,817 square metres net floor space; this was broadly consistent with the figures shown at paragraph 3.21 of the RIA. She adopted the explanation provided on behalf of Tesco (on which see below).

(ii) With regard to the lack of analysis of impact on Thurso town centre or local rural services, this was a matter of planning judgment, and in the exercise of that judgment the respondents did not consider that it was necessary to analyse the impact on Thurso town centre. This would not meet the test for a Wednesbury challenge, if such a challenge had been mounted, nor does it demonstrate a lack of rigour in the assessment. Moreover, these matters had all been circulated to councillors before the meeting on 24 April 2006, and it was clear from Mr Pritchetts' affidavit (No.15/3 of process), that this was one of the matters discussed at the hearing.

(iii) With regard to the alleged lack of evidence regarding leakage away from the catchment area, the RIA dealt with Tesco's experience and feedback from customers. In any event, counsel reminded me of the decision in the petition of John Simson (referred to above - see particularly paragraph 23 of Lord Abernethy's opinion). This is a good example of the principle that it is for the respondents to decide how much information they need to enable them to assess and decide upon a planning application.

(iv) With regard to the inclusion of Orkney and Shetland in the secondary catchment area, this was a matter addressed in the director of planning and development's report to committee. Furthermore, it was for the members of committee to decide whether to proceed on this basis, and this was precisely the sort of area where members would bring to bear their own knowledge and experience of the locality to the issue.

(v) With regard to the petitioners' assertion that it was difficult to accept the trade diversion estimate, the same points as raised above applied. This was a matter for the respondents' planning judgment. The petitioners pointed to discrepancies between the RIA and the GVA report (No.6/40 of process), but again it was a matter of planning judgment for the respondents whether they should look at that report, which used very different methodologies from the RIA in this case. There was no attempt to set out a Wednesbury challenge in this regard, which was the only challenge which might competently have been made, and this point, whether alone or with others, did not demonstrate a lack of rigour in the respondents' assessment.

[24] Turning to the petitioners' challenge on parking grounds, no one (not even the petitioners) had made any objection, whether in writing or at the hearing, on parking grounds. Reference was made to SPP 17 in the TA. Counsel for the petitioners had accepted that the figure of 496 non-disabled parking spaces accorded with SPP 17 if there was no requirement to prorate between convenience and comparison floor space, and he also conceded that it could not be argued that the respondents were bound to prorate in terms of SPP 17. In order to bring this before the court the petitioners would have to aver that no reasonable council could interpret SPP 17 in the way advanced by the respondents - but counsel for the petitioners accepted that this was an interpretation which was properly open to a council. That was the end of the matter. There was no need for the report by the director of planning and development to consider alternative interpretations of SPP 17 when no such alternatives were advanced at the time and when no objections regarding parking had been made. As it was not a live issue, it did not need to be referred to in the report. It could not be inferred from the absence of any reference to SPP 17 in the report that no regard was given to it. It is clear from Mr Rennilson's affidavit (No.7/14 of process) that this was the subject of consideration.

[25] In any event, the petitioners cannot say that there would have been a different result if the application was referred to the Scottish Ministers in terms of paragraph 67 of SPP 17. The Scottish Ministers have a discretion whether to allow the respondents to proceed or whether to call in the application. Under the planning regime, the petitioners only have the right to make an objection and to have their objection taken into account; they have exhausted their rights regarding the retail issue, and the fact that the Scottish Ministers might have been the decision takers would not have caused any material change. The petitioners have accordingly suffered no prejudice in this regard, and the court should exercise its discretion to refuse the remedy sought in relation to parking. Some indirect benefit - what counsel referred to as a "side door" approach - was not enough; the petitioners have already exhausted their rights in the procedures which were followed, and they do not have a substantial interest in having this decision set aside (King v East Ayrshire Council 1998 S.C. 182, per the Lord President at page 194.)

Submissions for the interested party on the petitioners' attack on the way in which the respondents approached the decision
[26] Senior counsel for Tesco adopted the submissions for the respondents regarding the merits of the petitioners' attack on parking provision. He relied principally on his arguments on title and interest to sue and mora (on which see below) but made brief submissions on the merits of the petition with regard to retail issues. He submitted that the petitioners' five points amounted to no more than an attack on the planning judgment of Tesco's planning consultant who prepared the RIA and of the respondents, and that the attack was based largely on a report by James Barr which was obtained long after the event. This exemplified the point that the dispute was all about planning judgment. The petitioners' five points had no substance. He dealt with these in turn:

(i) With regard to the alleged discrepancies in net floor space, there were in fact no such discrepancies. The figure of 4,761 net square metres in paragraph 1.6 of the RIA included all floor space to which the public had access, including areas such as toilets and other areas not falling within retail floor space. The figures in paragraph 3.21 do not include such other areas of floor space, and related only to net retail floor space. The figures in table 5 for convenience and comparison floor space were the same as in paragraph 3.21, the total floor space of 3,817 being slightly larger because it included areas beyond the check out tills. There were accordingly no inconsistencies in the RIA figures, and this would have been readily intelligible to those who are used to reading retail impact assessments.

(ii) With regard to the criticism that there was no separate mention in the report to committee or the minutes of the committee of 24 April 2006 relating to the impact on Thurso town centre, senior counsel made two points. First, it was clear from reading the RIA that approximately the same impact was predicted for Thurso as for Wick (see paragraph 3.30 of No.6/4 of process). It would have been otiose for members to go through the same exercise for Thurso as was done for Wick. Second, and in any event, the petitioners did not get across the threshold of showing that this would have made any difference to the result (see Glidewell LJ's observations in the Bolton MBC case).

(iii) With regard to the alleged lack of rigour in not requiring Tesco to provide supporting evidence to back up their own experience regarding leakage from the catchment area, in order to succeed on this point the petitioners would have to persuade the court that no reasonable planning authority would have taken on trust statements made by Tesco in this regard. Not only was this a matter for the respondents' planning judgment, there was no attempt by the petitioners to advance such a case.

(iv) With regard to the inclusion of Orkney and Shetland in the secondary catchment area, the caveats made in paragraph 3.7 of the RIA were a complete answer to the point. If sales to residents of Orkney and Shetland were less than estimated, the result would not be a larger effect on Wick or Thurso, but simply a smaller turnover for this store. Again, there was no evidence to suggest that this factor played any significant part in the respondents' decision; moreover the petitioners would need to show Wednesbury unreasonableness in order to rely on this factor, and they do not suggest this.

(v) The petitioners' position regarding trade diversion estimates, and their reference to the GVA Grimley report (No.6/40 of process) amounts to no more than a criticism of the respondents' planning judgment, and even this criticism carries little weight because the two studies adopted different methodologies. That report was prepared in order to justify the granting of planning permission for an Asda store in Thurso; its conclusion was that there was ample capacity for such a store, not on the basis of any leakage to Inverness but on the basis that stores in Caithness were significantly over-trading. Both the GVA Grimley report and the RIA in the present case suggested that there was plenty of available spending in Caithness to enable further retail development. Accordingly, even on the basis of planning judgment, the criticism is ill-founded and it is not one which would have been likely to have swayed the council.

Response for the petitioners on their attack on the way in which the respondents approached the decision

[27] Senior counsel for the petitioners submitted that the respondents and interested parties had misconstrued the petitioners' case as an attack on planning judgment and that, because the petitioners were not arguing Wednesbury unreasonableness, their case was irrelevant. In fact the petitioners' case was essentially about the way in which the decision was taken - i.e. in a way which was not mindful of the requirement for a rigorous assessment. The petitioners' case was therefore based on a failure to take account of a material consideration. The petitioners infer that there was this failure (a) because the director of planning and development applied certain parts of paragraph 45 of NPPG 8 in his report but failed to mention the need for a rigorous assessment, and (b) because both the Halcrow and Barr reports suggest that there was a less than rigorous assessment. It was wrong to suggest, as the respondents did, that paragraph 45 of NPPG 8 only applied where there was a departure from Structure Plan policies - there were a number of issues in paragraph 45 which were Local Plan issues (e.g. industrial land zoning or particular sites) and the reference in paragraph 45 to the development plan means both the Structure Plan and the Local Plan.

[28] Both the respondents and the interested party argued that just because something was omitted in the director's report did not mean that it was omitted from the committee's considerations, and that the local members were entitled to rely on their local knowledge and what was said at the hearing. However, senior counsel suspected that the committee was not in the habit of dealing with major superstore proposals, and relied on their officers' advice on technical matters, and there was nothing in the minutes of the hearing to suggest that members had looked at these issues rigorously.

[29] What does a "rigorous assessment" mean? Counsel suggested a positive mental attitude, not to take statistics at face value and to test assumptions and ask for supporting evidence. He accepted that interpretation of policy was a matter for the planning authority, but in light of the five specific factors to which he had referred, the inference should be drawn that the respondents were not mindful of the requirement for rigorous assessment in paragraph 45 of NPPG 8. Returning to the five specific issues, he replied as follows:

(i) On floor space, the approach of the RIA, which included the concept of "net floor space" was unconventional. The failure to question this approach suggested that the respondents' assessment was less than rigorous, and there was a real possibility that this would have made a difference to their decision.

(ii) With regard to the lack of analysis of impact on Thurso town centre, the Halcrow report suggested that Tesco's calculations depended largely on attracting spend from Thurso, and it was likely that both sub-regional centres would sustain an impact. While it might be a matter for planning judgment as to what should be included in a planning officer's report, the crucial questions were (a) why not include Thurso in the analysis and (b) if the respondents were analysing this point rigorously, why did they not seek more information about the impact on Thurso.

(iii) Again with regard to leakage, counsel was not suggesting that there was Wednesbury unreasonableness on the part of the respondents; he was however seeking to draw the inference from the failure to insist on further evidence that they had not rigorously assessed the point.

(iv) With regard to the inclusion of Orkney and Shetland in the secondary catchment area, the point was made against the petitioners that if the islands were left out of the calculations, this would simply result in a smaller turnover for the Wick store. However if one aspect of the study is unreliable, this will tend to cast doubt on the other figures and other elements in the assessment. There was nothing in the minutes of the meeting on 24 April 2006 to suggest that councillors applied their local knowledge to this point.

(v) With regard to the point that the GVA Grimley study for the proposed Asda store in Thurso employed a different methodology, counsel submitted that it was a reasonable inference from this study that there was not a high level of leakage from Wick and Thurso.

[30] Counsel submitted that the argument that a degree of rigour could be found wanting on the part of the respondents does not meet Glidewell LJ's test of "real possibility" in Bolton MBC, but when one looks at the material as a whole, he submitted that that test was indeed met.

[31] Turning to the parking issue, counsel submitted that just because nobody had raised an objection about parking did not absolve the respondents of the need to consider SPP 17, which raised a matter of national interest. What the respondents were now saying fell to be contrasted with their position in the original answers to the petition, which gave rise to the inference that they did not have regard to SPP 17. Under reference to Mr Rennilson's affidavit (No.7/14 of process), counsel submitted that it was open to the court to order a further affidavit to clarify who (if anyone) considered the effects of SPP 17 and what the correct interpretation of paragraph 67 was. There was nothing to suggest that the respondents had sought to resolve the conflict between the maximum figure in the national guidelines and the minimum figure in the respondents' own guidelines.

Submissions for the interested party that the petitioners have no title and interest to sue
[32] Under reference to section 38 of the Town and Country Planning (Scotland) Act 1997, senior counsel for the interested party submitted that the obligation of the planning authority is to take into account any representations relating to a planning application which are received timeously. This defines the right which the petitioners have against the respondents - i.e. the right to have their objection considered. (D & J Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, per Lord Dunedin at 12/13). I was referred to Edgar Road Property Company LLP v Moray Council and Others [2007] CSOH 88, which contained (at paragraph [28]) a useful summary of authority on the point. That case was concerned with several of the same issues as the present case. In particular, Lord Carloway's observations at paragraphs [31] and [32] were relevant in the present context:

"... the purpose of the planning legislation is to benefit the community as a whole ... 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, that legislation has been, or will be, infringed ... 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."

In the present case, the limit of the petitioners' right was to have their objection dealt with by the respondents in a reasonable way. The petitioners therefore have no title in relation to the parking issue, because they made no objection in relation to parking and therefore had no right to be heard on it.

[33] With regard to the petitioners' interest to sue, senior counsel submitted that their interest was either their own individual commercial interest or based on NPPG 8, and these do not confer an interest to challenge the respondents' decision - Bondway Properties Limited v City of Edinburgh Council 1999 S.L.T. 127. Whatever might be the petitioners' title or interest in relation to retailing, they clearly did not have sufficient interest in having the parking guidelines properly applied - the relevant interest cannot be indirect, but must amount to a direct interest in having a particular policy applied. Title and interest go hand in hand, and no legal right of the petitioners has been infringed in relation to parking matters.

Response for the petitioners on title and interest to sue
[34] Senior counsel for the petitioners submitted that the petitioners had title to sue because of their retail objection lodged with the respondents before the decision. Title and interest run together. I was referred to Uprichard v Fife Council 2000 SCLR 949. The petitioners had an interest in having their objections considered in a certain way. Regarding the retail element, their objections ought to have been assessed in the context of a rigorous assessment. They had title to raise these proceedings as they were objectors. Their interest was in the way in which their objections were considered. Had the respondents had proper regard to material considerations, there was a real possibility that a different outcome might have resulted, namely a notification to the Scottish Ministers which might have resulted in the application being called in. I was referred to Scottish Old People's Welfare Council, Petitioners 1987 S.L.T. 179 (particularly at 186). In the present case the petitioners' interest in raising this petition was very closely related to the grounds on which they maintained that the decision was unlawful.

Submissions for the interested party on mora, taciturnity and acquiescence
[35] Senior counsel began with the observations of the Lord President (Lord Kinross) in Assets Co Limited v Bain's Trustees 1904 6 F. 692 at 705:

"I do not doubt that where, coupled with lapse of time, there have been actings or conduct fitted to mislead, or to alter the position of the other party to the worse, the plea of mora may be sustained. But in order to lead to such a plea receiving effect, there must in my judgment have been excessive or unreasonable delay in asserting a known right, coupled with a material alternation of circumstances, to the detriment of the other party."

[36] The courts have repeatedly emphasised the importance of prompt action in judicial review - e.g. Atherton v Strathclyde Regional Council 1995 S.L.T. 557, per Lord Cameron of Lochbroom at 558/559:

"Failure to take prompt action by way of judicial review may lead a court to infer from silence and inactivity that a person is acquiescing in a changed state of affairs, whatever it may be, in the field of administrative law. As was stated in Watt v Secretary of State for Scotland, judicial review is a process designed to give speedy consideration to problems which arise and where time is of materiality. In such a situation potential litigants should lose no time in raising proceedings otherwise they face the risk of a possibly successful plea of mora, taciturnity and acquiescence."

In England, it has been stated that a judicial review applicant must proceed with particular urgency where third party interests are involved - R v Secretary of State for Trade and Industry [1998] Env LR 415 (the "Greenpeace case"). Similar views were expressed, albeit in different language, in Singh v Secretary of State for the Home Department 2000 S.L.T. 533. In R (Burkett) v Hammersmith LBC [2002] UKHL 23 Lord Hope of Craighead observed (albeit obiter):

"It has repeatedly been acknowledged that applications in such cases should be brought as speedily as possible. Ample support for this approach is to be found in the well-known observations of Lord Diplock in O'Reilly v Mackman to the effect that the public interest in good administration requires that public authorities and third parties should not be kept in suspense for any longer period than is absolutely necessary in fairness to the person affected by the decision".

[37] In a Scottish planning case (on which Lord Carloway placed reliance in Edgar Road Property Company, supra) Lord Penrose observed in Pickering v Kyle and Carrick District Council, unreported, 20 December 1990 (at page 55):

"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."

[38] Against this legal framework, senior counsel turned to the circumstances of the present case. As noted above, planning permission was granted on 24 April 2006. The site was thereafter acquired and contractors were instructed on 26 June 2006. Publicity about the commencement of works on the development was given in the Caithness Courier of 5 July 2006. The petition was not served until 21 July 2006, about three months after planning permission was granted. I was referred to the petitioners' averment at statement 14 that they reasonably apprehended that the pre-commencement conditions would take a period of months to be satisfied. It appeared from this that the petitioners took a positive decision not to raise a petition for judicial review promptly after the granting of planning permission. The minute of the committee meeting on 24 April 2006, at which the decision was made, was a public document, and recorded that Tesco intended to be trading by Christmas. The petitioners are themselves supermarket operators and understand the commercial importance of acting quickly on a grant of planning permission. In these circumstances it was remarkable that there was not even informal intimation, of whatever kind, to Tesco that the petitioners were considering raising a petition for judicial review. Such informal intimation might conceivably amount to a circumstance favourable to the petitioners, but even this was absent in the present case. Although a lapse of three months might not amount to a lack of promptitude in some cases, in the context of a full grant of planning permission for a supermarket development it represented a significant delay. During that three month period Tesco acquired the site, instructed contractors and began development works, incurring significant expenditure.

Submissions for the respondents on mora, taciturnity and acquiescence
[39] Counsel for the respondents adopted the submissions made on behalf of the interested party in respect of mora, taciturnity and acquiescence, with only one qualification, namely that although a change of position or prejudice to a party may be a necessary constituent of the plea in a private law context, it was not necessary in a public law context. She referred me to the opinion of the First Division in Somerville v Scottish Ministers [2006] CSIH 52, 2007 SC 140, in which (at paragraph 94) the court referred to the passage quoted above from Lord Hope's speech in Burkett and observed:

"... while we are content to adopt it, we would emphasise that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea."

[40] In the present case the petitioners knew or could reasonably have known of the decision on 24 April 2006. They could have been represented at the meeting. The minutes of committee meetings are posted on the respondents' website. The petitioners did not seek any interim orders and gave no intimation to the respondents of their intention to challenge the decision.

Submissions for the petitioners on mora, taciturnity and acquiescence
[41] Senior counsel for the petitioners relied on Lord Hope of Craighead's observations in Burkett (supra) at paragraph 63 that:

"The important point to note for present purposes is that there is no Scottish authority which supports the proposition that mere delay ... will do. It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice."

The passage in Assets Co Limited v Bain's Trustees quoted above remains the basis of our law. The test in England is different for the raising of judicial review proceedings, which must be moved "promptly and in any event within three months ...". This required to be borne in mind when looking at the English cases - for example, in the Greenpeace case the court held that there was ample evidence to mount a challenge by way of judicial review after 21 November 1995, but the application was not made until 30 June 1997; it was not surprising that the court held that the petitioner had not applied "promptly" as required by order 53.

[42] By contrast, in the present case the petitioners were actively considering raising judicial review proceedings before they received the minutes of the meeting of 24 April 2006, but they were not in a position to act immediately. Their position was therefore different from the petitioners in the Greenpeace case. The plea requires there to be a delay in asserting a known right, in the knowledge that the holder of a planning permission proceeds with material operations in reliance upon the permission and so alters his position. The corollary of this is that the petitioners must be allowed a reasonable period in which to prepare their petition, even if other parties are relying on the decision. Senior counsel relied on Lord Penrose's observations in Pickering (supra) particularly at pages 55 and 56. It was necessary for the petitioners to satisfy themselves that they had a stateable case for judicial review, which took time. As soon as they were satisfied on this matter they raised these proceedings. When asked by the court why the petitioners did not give any intimation, however informal, to Tesco of the possibility of a challenge by judicial review, senior counsel replied that it was unlikely that this would have caused Tesco to change their actions.

[43] Senior counsel explained what had happened between the respondents' decision of 24 April 2006 and the petition being served on 21 July 2006. He told me that the petitioners discussed the case with their solicitors, but then had to instruct fresh solicitors as their previous solicitors had a conflict of interest. Senior counsel was instructed on 15 May, and gave preliminary advice and asked for certain items of factual information on 23 May. A consultation was held on 31 May, and between that date and 10 July various avenues of investigation were explored. On 15 June senior counsel gave advice as to the prospects, but this was qualified by certain assumptions which required to be validated. A statement was obtained in relation to these assumptions on 22 June from a retail expert, and on 26 June advice was received from a traffic expert. This advice required to be reconsidered and a further full statement from the traffic expert obtained on 6 July. Solicitors required to visit Wick to check the planning files on 5 July, and on 9 July senior counsel was asked to advise on the prospects of success. On 10 July the petition was drafted, but the petitioners themselves required to take a formal decision to proceed. This decision was taken on 19 July and the petition was served on 21 July. Senior counsel suggested that it was important to research the case thoroughly before it was raised, and there were logistical difficulties in doing so - his instructing solicitors were based in Aberdeen, the retail experts were based in Glasgow, and the planning file was in Wick. It was necessary to fully understand Tesco's RIA and explore its flaws before the petition was raised. Nonetheless, the petition was raised less than three months after the decision was made; this fell to be contrasted with the four and a half months which the respondents took to specify facts within their knowledge, when ordered to do so by the court.

[44] Senior counsel for Tesco had sought to construe the averments in statement 14 of the petition as indicating that the petitioners took a positive decision not to raise promptly the present petition, but in fact these averments were in response to averments on behalf of the respondents in answer 14. As was apparent from the history of preparations by the petitioners, there was no decision to delay the proceedings, and in any event there was certainly not an excessive or unreasonable delay. During the period of just under three months between the decision and the service of the petition, the respondents took no irreversible decisions. Although Tesco said that they acted to their prejudice by acquiring the site, the petitioners could not reasonably have anticipated this - there was a certificate on the planning application (No.6/1 of process) that no person other than the applicant was an owner of any part of the land to which the application related. There were several suspensive conditions which had to be purified before work began. These included provision and approval of a detailed specification of external materials; provision and approval of a fully detailed landscape plan; provision and approval of all boundary treatments; a revised layout plan; design of all surface water and flood prevention infrastructure and submission and approval of a scheme to deal with potential contamination on the site. As at 3 July 2006, which was the date of commencement of the development works, none of these conditions had been satisfied, and discussions on these matters continued between Tesco and the respondents until 14 July 2006 (see No.6/32 of process). On 7 July 2006 the respondents wrote to Tesco reminding them of the outstanding matters and requesting that the works on site should be suspended meantime. Tesco did not suspend the works. Approval of some of the matters which were the subject of conditions was not given until about the date of service of the petition, and other matters which were the subject of conditions were not approved until 26 September 2006. Against this background, senior counsel for the petitioners remained dubious that any notification from the petitioners that they were considering a challenge by judicial review would have made any difference to the outcome. In any event, it could not be said that any delay by the petitioners was excessive or unreasonable.

Response for the interested party on mora, taciturnity and acquiescence
[45] Senior counsel made four points in reply to the petitioners' submissions:

(i) All the authorities support the general principles enunciated in the Greenpeace case. This was not surprising - it was clearly in the interests of justice that petitions for judicial review should be raised without delay.

(ii) On 24 April 2006 the petitioners had the means of knowing what the decision was. Moreover, they had the report by the director of planning and development, to which most of their criticisms were directed. They therefore had the basis of their case on 24 April 2006.

(iii) With regard to the point made by senior counsel for the petitioners that, on the basis of the certificate attached to the planning application, the petitioners could not reasonably have foreseen that Tesco would acquire the site after planning permission was granted, it should be noted that the applicants on that form were not just Tesco, but also Highlands and Islands Airports Limited. Any developer (including the petitioners) would know that no supermarket developer would commit to purchasing a site without planning permission. On the basis of the Assets Co v Bain's Trustees test, all that is required is a simple change of position. The decision by Tesco to acquire the site was taken just before work started. Contractors moved onto the site on 1 July 2006, and the decision to acquire and to treat the purchase as unconditional was made shortly before that.

(iv) The point made on behalf of the petitioners regarding purification of conditions was simply a retrospective attempt to justify delay - it was clear from the chronological summary given on behalf of the petitioners that the existence of these conditions played no part in the elapse of time between the decision and the service of the petition. Anyone with experience of the planning system knows that there are always disputes between developers and planning authorities as to whether conditions have been complied with. The law required a potential petitioner to raise a petition for judicial review, or at the very least to give notice of the possibility of such a petition, without delay. There was no benefit to a potential petitioner by leaving an interested party second-guessing as to what might happen. If the petitioners had given notification of the possibility of a judicial review petition, Tesco would have required to undertake an appraisal as to what action they should take. They did not do this. Acquiring a property when no challenge is anticipated is quite a different matter from acquiring a property when there is a possibility of challenge. All that was required of the interested party to enable their plea of mora to be sustained was to show that they did in fact alter their position in reliance on the decision having been granted, before the petition was raised.

Discussion

(1) The petitioners' attack on the way in which the respondents approached the decision

[46] I prefer the submissions for the respondents to those for the petitioners. The matters which the petitioners seek to subject to judicial review are properly categorised as matters of planning judgment, rather than matters of law. In essence, their complaint with regard to the way in which the respondents approached retail issues was that they failed to make a sufficiently rigorous assessment of Tesco's proposals. They give five specific examples which, they say, indicate that the assessment was less than rigorous. However, they do not attempt to define what is a rigorous assessment. They do not specify precisely what the respondents should have done if they were carrying out a rigorous assessment. They do not specify what the effect on the respondents' decision would have been if a rigorous assessment (whatever that may be) had been carried out. They do not attempt to suggest that the respondents' interpretation of NPPG 8 was perverse or unreasonable - indeed, Wednesbury unreasonableness features nowhere in their case. Instead, they seek to argue that it is not necessary for them to do any of these things, because the respondents have simply failed to have regard to a material consideration, namely the terms of paragraph 45 of NPPG 8.

[47] It was not disputed before me that the terms of a relevant national planning policy guidance document are a material consideration. Counsel for the respondents did submit that paragraph 45 of NPPG 8 was not engaged in this case, because the proposed development was consistent with the retail policies in the Structure Plan; that being so, she argued that any inconsistency on other matters (e.g. the zoning) was not relevant when considering the guidance given in paragraph 45 of NPPG8. Although it may be argued that this is not a matter for me but for the respondents to decide, I do not consider that paragraph 45 can be construed in this way. The opening words of the paragraph make it clear that the paragraph applies not only where the development is not consistent with retail policies in the Structure Plan, but where it is not consistent with the development plan. This can only mean that the Structure Plan and the Local Plan taken together. I am reinforced in this view by the fact that the various considerations which are then listed (a) - (k) in paragraph 45 include matters which would normally be found in a Local Plan, and go well beyond retail policies in a Structure Plan - e.g. the loss of good quality industrial or business sites, the re-use of vacant of derelict land, and adverse effect on local amenity. I therefore proceed on the basis that NPPG 8 (including paragraph 45 thereof) is engaged.

[48] However, the interpretation of that policy is a matter for the respondents. Nowhere in the policy document is there a definition of the words "rigorously assessed", and it seems entirely appropriate that the interpretation of these words should be made by the planning authority (which has experience of assessing proposed developments against a variety of considerations) rather than by the courts. If a party seeks to challenge the interpretation of the planning authority, or seeks to argue that an assessment is not sufficiently rigorous, that party must be able to assert that no reasonable planning authority could have interpreted the policy in the way in which it was interpreted, or that no reasonable planning authority could have regarded a particular assessment as rigorous and meeting the policy guidance. In other words, a challenger must assert Wednesbury unreasonableness in such a situation. This is consistent with what Auld J (as he then was) stated in North Avon District Council v Secretary of State for the Environment and the Trustees of the congregation of Jehovah's Witnesses [1993] JPL761 (quoted in the Virgin Cinema Properties case at page 28):

"The test to be applied by the court was that it should only interfere when the decision maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify. There was ample authority in other areas of the law for this Wednesbury approach to the question."

This was amplified in the Virgin Cinema Properties case as follows:

"Since a planning policy does not confer rights or impose duties that are legally enforceable, I cannot see that it could ever be a matter for the court to determine its meaning as matter of law for the purpose of deciding an issue arising from the making of a planning application. The decision whether to grant or refuse planning permission is an administrative decision which is only susceptible of review on the well established principles of administrative law. Any conclusion that is formed by the decision maker as part of that decision can, in my judgment, be challenged only on Wednesbury grounds unless it is a conclusion of law. A conclusion on the meaning to be attached to a statute or a statutory instrument or a planning permission (which confers a legal privilege) is a conclusion of law, and a court can, accordingly, determine whether the conclusion is correct. A conclusion on the meaning of a planning policy, on the other hand, is a matter for the decision maker in the case. On review, the role of the court, in my judgment, is to say whether the decision maker has attributed to the policy a meaning which he could not reasonably have attributed to it or, in forming his conclusion, has taken into account irrelevant matters or disregarded matters that were relevant. The court thus determines the ambit of reasonableness, which is a matter of law."

This approach is entirely consistent with the observations of the Second Division in Freeport Leisure Plc v West Lothian Council, which was specifically concerned with interpretation of NPPG 8. It is also consistent with Lord Hodge's decision in the petition of John Findlay.

[49] The director of planning and development made reference in his report to committee to NPPG 8. There is nothing to support the suggestion that the committee did not have regard to NPPG 8. All that senior counsel for the petitioners can do is point to the five specific aspects on which he founds, and to suggest that the inference should be drawn from these that the respondents did not carry out a rigorous assessment. He relies on criticisms of the RIA made by other professional planners (in the Halcrow and James Barr reports), but these criticisms do not amount to an assertion that no reasonable planning authority could have regarded this as a rigorous assessment. "Rigorous assessment" is not an absolute term, and I do not consider that a court would be acting within its powers if it applied its own judgment as to whether an assessment was rigorous or not and then, having carried out that exercise, used it to infer that a planning authority had failed to have regard to planning policy guidance. To do so would be to usurp the function of the planning authority. In the absence of any attempt to argue Wednesbury unreasonableness, I consider that the petitioners' attack on retail issues is irrelevant. The proper approach to interpretation of policy, and the sufficiency of the material upon which a planning authority proceeds are, in my view, each matters for the judgment of the planning authority. I cannot infer in the circumstances of the present case that the planning authority failed to have regard to the policy guidance in NPPG 8. No purpose would be served by my analysing each of the five specific aspects raised by the petitioners: it may be that there is a legitimate range of judgments which can be exercised in relation to whether each of these is suggestive of a rigorous assessment or not. Unless it can be said (and the petitioners do not say this) that no reasonable planning authority could have regarded their assessment of each or all of these factors as rigorous, I cannot reopen the matter at this stage. At its meeting on 24 April 2006 the committee had before it the application and all supporting documentation (including the RIA and TA), written objections on behalf of the petitioners and others, and the director of planning and development's report. They held a hearing at which they heard arguments for and against the proposed development. They were referred to NPPG 8. It is not open to me at this stage to draw the inference on the material available to me that they failed to have regard to a material consideration.

[50] The foregoing remarks apply to the respondents' treatment of retail matters. A fortiori do they apply to their treatment of parking issues. Again, the petitioners' position is that the respondents failed to have regard to material considerations, and that if they had done so they would have notified the application to the Scottish Ministers, which would have given the petitioners the opportunity of having their objections considered by the Scottish Ministers. However, the petitioners made no objections to this application on parking grounds. They did not attend the committee hearing on 24 April 2006, and their written objections submitted earlier did not include any objection in relation to parking. Senior counsel for the petitioners conceded that there was no express requirement in SPP 17 to pro rate between convenience floor space and comparison floor space when considering parking provision. I consider that the respondents are correct in their submission that in order to bring this matter before the court the petitioners would have to allege that no reasonable planning authority could interpret SPP 17 as not imposing an obligation to pro rate. This was not the position of senior counsel for the petitioners, who accepted that it was an interpretation properly open to a planning authority that there was no requirement to pro rate. That is in my view the end of the matter. If there were two possible interpretations of SPP 17 properly open to the respondents, they cannot be criticised if they chose one of these. Moreover, in the absence of any objection raising the matter of parking provision or the correct interpretation of SPP 17, neither the director of planning and development nor the committee can be criticised for not having made express reference to this policy guidance. It cannot be inferred from the fact that no reference was made to this guidance (or the respondents' own parking guidance) that no regard was had to these considerations - these did not appear to be live issues and there was therefore no need for express reference to be made to them. As the House of Lords observed in Bolton MDC v Secretary of State for the Environment (1995) 94 LGR 387 in relation to the Secretary of State, he "had to have regard to all material considerations before reaching a decision, and then state the reasons for his decision to grant or withhold planning consent. There is nothing in the statutory language which requires him, in stating his reasons, to deal specifically with every material consideration. Otherwise his task would never be done. The decision letter would be as long as the inspector's report. He has to have regard to every material consideration; but he need not mention them all. ...To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden."

[51] As senior counsel for the petitioners conceded, on one interpretation of SPP 17 the proposed development complied with national planning guidance. Nobody raised the issue before the committee. I cannot infer, on the information before me, that the respondents failed to have regard to any material considerations in relation to parking provision when reaching their decision.

[52] It follows from the above that I do not consider that the petitioners have made out a relevant case for judicial review of the respondents' decision. I shall accordingly repel the plea in law for the petitioners and sustain the second plea in law for the respondents and the third plea in law for the interested party.

(2) Title and interest to sue

[53] Although arguments on title and interest are frequently run together, there is a distinction between the two. Lord Dunedin was not disposed to risk a definition of what constitutes title to sue in 1914, and I am no more disposed to do so in 2008. The respondents did not challenge the petitioners' title or interest to sue, but senior counsel for the interested party mounted a challenge under both title and interest. I think that it is fair to categorise his attack on the petitioners' title as being less whole hearted than his attack on their interest, and that his attack on their title with regard to retail issues was less vigorous than that with regard to parking issues. I need say no more with regard to retail issues than that the petitioners have qualified title by lodging objections on retail issues with the respondents before they made their decision. This is sufficient to create the legal relation between the petitioners and respondents which gives the petitioners a right, which they alleged the respondents infringed. Indeed, senior counsel for the interested party conceded that the petitioners may have established title with regard to a challenge on retail policies.

[54] However, he maintained that the policies were not conceived to protect individual traders, and the petitioners' interest with regard to retail matters was solely commercial. A community council might have an interest in challenging the respondents' decision on retail grounds, but (under reference to Bondway Properties) the petitioners do not have such interest.

[55] In light of my decision on the planning merits of this petition, the question of the petitioners' interest to sue on retail matters is perhaps academic. There does appear to be some tension between the reasoning in Bondway Properties Limited v City of Edinburgh Council and that in Uprichard v Fife Council. In light of my decision on the merits, I do not consider that it is necessary to resolve this tension or to consider the question of interest at length. However, it does appear to me that the petitioners have established sufficient interest to maintain the present challenge. No doubt a public body such as a community council has interest to challenge a decision such as this in the public interest, but the courts have not limited such challenges to public bodies: the authorities are littered with examples of competing developers seeking to challenge decisions of planning authorities in a locality in which they trade. Where, as in this case, a legal relationship has been created between the petitioners and the respondents by the petitioners' timeous lodging of objections to this application, and they have thereby acquired title to sue, I should be slow to determine that they have no interest in arguing that the respondents dealt with their objections improperly or (for example) failed to consider them at all, or held a hearing which they were prohibited to attend. Having raised objections to a proposal, in most cases the objector will not only have a title to challenge the decision on that proposal, but will have an interest to assert that the objections have not been properly dealt with according to the principles of administrative law. In the present case, although I have held that the petitioners case on retail issues is not relevant, that is a quite different matter from asserting that they have no interest to sue. There are of course cases which can be imagined in which a petitioner does indeed have no relevant legal interest to sue, but I do not consider that the retail aspect of this case is one of these. It is no doubt correct to state (as the version of NPPG 8 which was under consideration in the Bondways Properties Limited case stated) that it is not the function of the planning system to preserve existing individual commercial interests or to inhibit competition between retailers or between methods of retailing, but nonetheless it seems to me that a party carrying on business in a town centre may have sufficient interest in law to assert that a proposed development may adversely affect local amenity, or lead to the loss of good quality industrial or business sites, or have other significant environmental effects, and thereafter may have interest to challenge the decision if his objection is not given proper consideration. I therefore reject the argument for the interested party with regard to title and interest to sue on retail issues.

[56] However, matters are significantly different with regard to parking issues. The petitioners did not make any objections to the respondents on parking grounds. Nor did anybody else. There was no legal relationship between the petitioners and the respondents in this regard. Moreover, I can see no sufficient interest in the petitioners in asserting that the parking provision for the proposed Tesco store should be 496 spaces (or less) or 694 spaces (or more). This is not something which touches on the petitioners' interests, which is no doubt why they did not raise it as an objection. All that the petitioners suggest, by raising parking as an issue in the present petition, is the indirect interest that if the respondents had notified the Scottish Ministers of this application, the Scottish Ministers might have called in the application, and thereafter might have reached a different conclusion on the merits. This is not sufficient interest to qualify the petitioners to challenge the decision of the respondents on parking grounds.

[57] In the result, if it had been necessary for me to do so, I should have repelled the interested party's first plea in law and allowed the petitioners challenge to this decision to proceed on retail grounds, and I should have sustained the interested party's first plea in law in relation to parking grounds. Happily, in light of my decision on the substantive merits of the petition, it is not necessary for me to consider the practical consequences of such a disposal.

(3) Mora, taciturnity and acquiescence

[58] There was really no dispute between the parties as to the appropriate test to be applied regarding mora. The test laid down by the Lord President in Assets Co Limited v Bain's Trustees has the benefits of logic and simplicity, namely the requirement for "excessive or unreasonable delay in asserting a known right, coupled with a material alteration of circumstances, to the detriment to the other party". As is so often the case, the difficulty lies in the application of this simple rule to the circumstances of the particular case. However, in order to succeed in this plea it seems clear that the respondents must establish two points - (1) that the petitioners have delayed excessively or unreasonably in asserting their known right, and (2) because of the absence of challenge, the interested party have materially altered their circumstances. (There may be some doubt as to whether prejudice or reliance are necessary elements of the plea - Pickering v Kyle and Carrick District Council and R (Burkett) v Hammersmith LBC appear to suggest that they are, but in Sommerville v Scottish Ministers the First Division stated that they were not.)

[59] The thorny issue of whether prejudice and reliance are necessary, and if so, whether they have been made out in this case, falls to be answered only if the first element in the test has been met, namely whether the petitioners have delayed excessively or unreasonably in asserting their known right. I have not found this issue an easy one to determine. There are factors which count against the petitioners - (a) they are themselves operators of supermarkets and have been in receipt of planning permissions for development of superstores themselves, and they must appreciate the imperative of time which faces all such developers after planning permission has been granted; (b) they could have arranged to be represented at the meeting on 24 April 2006, and so would have known about the decision on that date; in any event, being supermarket operators in Wick and objectors to the proposal, they must have known about the decision very shortly afterwards; (c) they gave no intimation, however informal, to either the respondents or the interested party that they were considering challenge by judicial review until the present petition was served; and (d) there is little, if any, force in their argument that they presumed that Tesco already owned the site on the basis of the certificate attached to the planning application, because the application was in the joint names of Tesco and Highlands and Islands Airports Limited, and because they must surely have known that no superstore developer would acquire a site irrevocably before planning permission was granted. However, there are some factors in their favour - (i) the total period between the decision and the service of the petition was less than three months; (ii) on the basis of the chronology given to me by senior counsel for the petitioners there was no single lengthy period of unexplained delay, but rather it appears that the petitioners and their agents were seeking to obtain the expert reports and ascertain the factual basis necessary for them to have a reasonable prospect of success in this petition, and (iii) Tesco acquired the site and commenced works before several important conditions attached to the grant of planning permission had been purified, and were requested by the respondents to suspend the works until approval of the various matters which were the subject of conditions. If Tesco had waited until all the matters which were the subject of conditions had been approved, the petition would have been served several weeks before the works commenced, and perhaps before the site was acquired.

[60] It seems to me when considering these factors that not much credit attaches to either the petitioners or the interested party. There was nothing to prevent the petitioners from giving informal notification to Tesco that they were considering the possibility of challenge by judicial review. Of course, it is possible that Tesco might have chosen to proceed regardless, but some notification (however informal) would have been a factor in the petitioners' favour, and I can see no prejudice to them in not giving such notification. On the other hand, Tesco decided to proceed to acquire the site and commence development works some 2 1/2 months before the conditions attached to the grant of planning permission were purified. To some extent it might therefore be argued that the cause of any change in their circumstances was not delay on the part of the petitioners, but their own desire to make haste with the development.

[61] Weighing all the factors before me, I am not persuaded that a delay of rather less than three months between the making of the decision and the serving of this petition was unreasonable or excessive in all the circumstances of this case. In light of the explanations given by senior counsel for the petitioners as to the preparations and researches carried out on behalf of the petitioners in the relevant period, it is clear that the petitioners did not simply "sit on their hands" on this matter. They were actively assessing the prospects of success in a petition such as the present, and they were marshalling the material necessary in order to present this petition. I am unable to conclude that a period of 3 months between decision and service of the petition was, in the circumstances of this case, unreasonable or excessive. That being so, it is unnecessary for me to consider the consequences to the respondents or the interested party. I shall therefore repel the first plea in law for the respondents and the second plea in law for the interested party.

Decision
[62] In the result, I shall refuse the plea in law for the petitioners; I shall refuse the first plea in law for the respondents and the second plea in law for the interested party; and I shall sustain the second plea in law for the respondents and the third plea in law for the interested party. For the reasons given above, I shall dismiss this petition.

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE]
	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Co-Operative Group (CWS) Ltd, Re Judicial Review [2008] ScotCS CSOH_28 (20 February 2008) URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_28.html Cite as: [2008] CSOH 28, [2008] ScotCS CSOH_28

Scottish Court of Session Decisions