Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 68
P255/13	OPINION OF LORD TYRE in Petition of THE NEWTON MEARNS RESIDENTS FLOOD PREVENTION GROUP FOR CHEVIOT DRIVE Petitioners; for Judicial review of decisions of East Renfrewshire Council ________________

Petitioners: JD Campbell QC, Motion, Solicitor Advocate; bto

Respondent (East Renfrewshire Council): Mackenzie, Solicitor Advocate; Shepherd & Wedderburn

Interested Party (Stewart Milne Homes Limited): M McKay; DWF Biggart Baillie

1 May 2013
[1] This application for judicial review came before me for determination of a motion by the petitioners for a protective expenses order in their favour.

[2] The petitioners are an unincorporated association constituted on 7 February 2013 with the following objects:

"To protect properties in Cheviot Drive and properties along the downstream watercourse ('the watercourse') to the Shawlinn Burn, Newton Mearns from flood risk including changes to drainage, land form or development on the Ayr Road site, Newton Mearns, west of Cheviot Drive and east of Faside Lodge ('the site')."

According to its constitution, anyone over 18 years of age who supports the purposes of the Group and has no potential conflict of interest may be admitted to membership. Election to the Group's committee is, however, restricted to members whose property adjoins the site, the watercourse or a culvert from the watercourse. At the present time the Group has two office bearers, a third having died between the date of its formation and the hearing of the motion with which this opinion is concerned, and two residents with "observer status" having no liability for the Group's debts.

[3] In these proceedings the petitioners seek a number of orders including, in particular, the quashing and reduction of two decisions by the respondent, the first being a decision dated 21 March 2012 to grant planning permission to the interested party for the construction of 64 houses on a greenfield site lying to the south of Ayr Road and to the west of Cheviot Drive, Newton Mearns, and the second being a decision dated 2 November 2012 to confirm as fulfilled a condition concerning drainage arrangements which had been imposed when planning permission was granted.

[4] The factual background to the petition may be summarised as follows. The site in respect of which planning permission was granted by the respondent consists of a rectangular field of approximately 4.8 hectares. The topography of the site forms a hollow which slopes down from the north, the west and the south. The lowest area of the site is therefore towards the middle of its eastern side, where it is bounded by the rear of houses on the west side of Cheviot Drive. There is no defined watercourse within the site but there is a spring to the rear of 10 Cheviot Drive. The watercourse from this spring enters a pipe running under the garden of 10 Cheviot Drive and the road itself. Thereafter the watercourse runs for some distance through residential and other properties, sometimes in an open channel and sometimes in pipes, until it discharges into the Shawlinn Burn. The planning brief produced by the respondent for development of the site included the following observation (paragraph 2.18):

"The site effectively forms a low lying basin with a natural catchment and drainage path through the site towards the eastern boundary. Any proposal should seek to reduce the existing flood issues experienced by adjacent properties and consideration should be given to the use of a SUDs [i.e. sustainable urban drainage system] pond/attenuation system that incorporates a wetland area within the proposed landscape and open space requirements."

The brief also stated (paragraph 6.2):

"The incorporation of Sustainable Urban Drainage principles will be mandatory. The developer will be required to undertake a full Drainage Impact Assessment for the site. The assessment should demonstrate that the proposal will have no adverse impact upon existing drainage infrastructure."

[5] The application submitted by the interested party in respect of which planning permission was granted by the respondent included a SUDS feature consisting of a wetland area designed to detain but not permanently hold water draining from the site, and also a compensatory storage area designed to ensure that the flood water storage provided by the existing site (in its undeveloped state) was maintained, and that cumulatively with the SUDS detention basin the discharge to the watercourse referred to earlier was limited to a pre-development greenfield run-off rate. Construction of the compensatory storage area would require the formation of an embankment behind some of the houses in Cheviot Drive.

[6] When the respondent granted planning permission for the interested party's development, the following condition (10) was imposed:

"Prior to commencement of works further details of the land drains within plots 29-41 and the maintenance regime for this land drain and the compensatory flood storage area into which it drains shall be submitted in writing and approved by the Head of Environment (Planning, Property and Regeneration). Thereafter the agreed details shall be fully implemented."

In a letter dated 2 November 2012, the respondent made reference to various documents submitted by the interested party and confirmed "...that the information submitted is acceptable and therefore the requirements of condition 10 of the above planning application have been fulfilled".

[7] The petitioners consider that the flood prevention measures detailed in the interested party's application are inadequate to obviate or minimise the risk of flooding by water from the site. In their petition they aver as follows:

"54. In the circumstances, the respondent has granted the planning permission, and has discharged condition 10 in a manner which is ultra vires the powers contained in [the Town and Country Planning (Scotland) Act 1997]. The respondent has granted the planning permission and discharged condition 10 which will, if implemented together, fail to control the passage and flow of water downstream of the site in a manner which will minimise the risk of flooding. The development of the proposal is likely to cause flooding in certain conditions of runoff and rainfall, and the floodwater thus generated cannot be contained by the SUDS detention basin as it is presently designed and authorised.

55. Separatim the planning permission has been granted by the respondent following their omitting from their decision a material and significant consideration, namely the capacity of the SUDS detention basin as designed, to accept, attenuate and safely discharge runoff water in a manner which will obviate or in any event minimise the risk of flooding at the petitioners' homes downstream of the site. In all the circumstances the planning permission and the discharge of the drainage condition are unlawful and fall to be quashed."

In the course of submissions, counsel for the petitioners indicated that, in practical terms, the petitioners' concerns were, firstly, that flooding of properties adjoining the watercourse would be caused by increased runoff flowing into it from the site and, secondly, that the embankment supporting the compensatory flood storage area might fail, causing flooding to certain properties in Cheviot Drive.

Protective expenses order: the criteria
[8] It is important to note at the outset that the petitioners' motion for a protective expenses order was not presented under the recently-enacted Chapter 58A of the Rules of the Court of Session. On 4 August 2011 the interested party requested the respondent to adopt a screening opinion for the purposes of the Environmental Impact Assessment (Scotland) Regulations 2011, ie an opinion as to whether the proposed development required the carrying out of an environmental impact assessment (EIA). The respondent issued an opinion stating that no EIA was required. On 5 March 2012 Dr Michael Bradnam, a supporter of the petitioners, wrote to the Scottish Ministers to request a screening direction in respect of the proposal. The Scottish Ministers responded on 9 March 2012 that they were satisfied that the issues raised by Dr Bradnam did not call into question the validity of the respondent's opinion that no EIA was required, and declined to issue a screening direction. Neither of those decisions has been challenged or is subject to challenge in the present proceedings. The consequence is that the decisions by the respondent with which this petition is concerned are not subject to the public participation provisions of what is now Directive 2011/92/EU of the European Parliament and Council (the codification of Council Directive 85/337/EEC as amended by Directive 2003/35/EC requiring member states to give effect to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters). The present motion does not therefore fall within the scope of Chapter 58A.

[9] It follows, as was ultimately common ground among the parties, that the petitioners' motion falls to be determined by reference to what might be termed the "common law" criteria, without any need to consider the additional or qualifying principles which would apply if this were a case falling within the public participation requirements of the directly-effective 2011 Directive, and which informed the decisions of the courts in cases such as R (Garner) v Elmbridge Borough Council [2010] EWCA Civ 1006 and R (Edwards and Pallikaropoulos) v Environment Agency Case C-260/11, 11 April 2013 (ECJ). The starting point, it was agreed, was still the statement of principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 by Lord Phillips of Worth Matravers MR at paragraph 74:

"(1) A protective costs order may be made at any stage of the proceedings on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."

It was also a matter of agreement among parties that I should adopt the approach to the Corner House principles that was approved by the Court of Appeal in Morgan and Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, that is to apply them "flexibly" and, with particular reference to the third of Lord Phillips' criteria above, not to regard a private interest as a disqualifying factor but rather to treat its weight or importance in the overall context as a flexible element in my consideration.

[10] For guidance as to evaluation of the importance of the issues raised, the solicitor advocate for the respondent referred to the following observations by Smith LJ in R (Compton) v Wiltshire Primary Care Trust [2009] 1 WLR 1436 at paragraphs 75-77:

"75. ... First, there is no absolute standard by which to define what amounts to an issue of general public importance. Second, there are degrees to which the requirement may be satisfied; some issues may be of the first rank of general public importance, others of lesser rank although still of general public importance. Third, making the judgment is an exercise in which two judges might legitimately reach a different view without either being wrong.

76. In my view, the Corner House case does not define what is an issue of general public importance. It provides some examples of the type of issue which will be of general public importance (see para 60 of Buxton LJ's judgment) but it does not seek to define or limit the field to issues of that nature. In particular, the Corner House case does not say that only issues of national importance will qualify. It does not, and could not, say how publicly important the issues have to be or how general the public importance has to be.

77 During the hearing, there was some discussion about the meaning of the word 'general' in the context of 'general public importance'. As Buxton LJ says, it must add something to mere 'public importance'. In some cases, the answer is easy. For example, if the case will clarify the true construction of a statutory provision which applies to and potentially affects the whole population, the issues are of general public importance. But if the issue is of public importance and affects only a section of the population, it does not in my view follow that it is not of general public importance, although it will not be in the first rank of general public importance. [Counsel for the defendant] accepted that a local issue might be sufficiently 'general' to be of general public importance but submitted that one could not decide whether it was so merely by taking a headcount of the numbers of people who would be affected by the decision of the court. He may be right although he did not explain how the general importance of a local issue was to be assessed. It seems to me that a case may raise issues of general public importance even though only a small group of people will be directly affected by the decision. A much larger section of the public may be indirectly affected by the outcome. Because it is impossible to define what amounts to an issue of general public importance, the question of importance must be left to the evaluation of the judge without restrictive rules as to what is important and what is general."

The examples mentioned by Buxton LJ to which Smith LJ referred above were (i) elucidation of public law by the higher courts, (ii) matters of significant importance to a general class such as the body of taxpayers, and (iii), overlapping with (ii), misbehaviour by a department of state in handling policies that are of general application. In R (Young) v Oxford City Council [2012] EWCA Civ 46, Richards LJ considered that an application for judicial review of a grant of planning permission for re-development of a university campus raised a matter which was "... of essentially local community interest rather than one of general public importance".

Arguments for the parties
[11] Counsel for the petitioners submitted that each of the Corner House criteria was satisfied in the present case. The petition raised a matter of great importance to the community in which the interested party's development was to be sited. The effect of flooding could be severely damaging to a number of members of the community. Its minimisation was clearly a matter of public importance. Those potentially affected constituted the "public" for the purposes of assessing whether the first criterion was met. The respondent had failed to carry out an adequate assessment of risk, and the public interest required the matter to be resolved by these proceedings. It was not disputed that members of the Group had a private interest but they were also invoking a public interest in prevention of flooding. As regards financial resources, a letter from a law accountant was produced with an estimate of the likely expense of these proceedings both before and at a first hearing. It also required to be noted that the first hearing had been estimated to last three days. An affidavit by one of the two office-bearers stated that both office-bearers were retired individuals of modest means. The Group had funds available to it amounting in total to around £12,000. If the motion were to be refused the petition could not and would not proceed. As regards the exercise of the discretion referred to in the third of the Corner House principles, it could not be said at this stage that the petition had no real prospect of success.

[12] On behalf of the respondent it was submitted that the Corner House criteria were not met. This was a local issue concerning fears of flooding at a particular location. There were no issues which the public interest required to be resolved; the respondent, the interested party, SEPA and Scottish Water were all confident that there was no increased flooding risk. The petition was driven by the private interests of a small group of property owners. The creation of the Group was simply a device to try to secure a protective expenses order. As regards financial resources, the estimate of cost provided by the law accountant was not disputed. There was, however, insufficient information before the court regarding the resources available to the petitioners to enable an assessment to be made as to whether it was fair and just to make an order. The petition had no real prospect of success. It was likely to be found to be barred by mora, taciturnity and acquiescence. In any event the petition sought to challenge the merits of the planning decision and raised no issues requiring the exercise of the supervisory jurisdiction of the court.

[13] Counsel for the interested party largely adopted the submissions on behalf of the respondent. This was a matter of local community interest only. Even the local community council had not submitted a response to the planning application. Most of the objections (relating to drainage or otherwise) had been received from residents of Cheviot Drive. The case was analogous to R (Young) v Oxford City Council. The private interest of members of the petitioners should be regarded as a material consideration. With regard to financial resources, the petitioners should be ordained to provide fuller details of their resources before any order was made. The test to be applied in the exercise of the court's discretion was whether the proceedings were "prohibitively expensive" for the petitioners (ie the Aarhus Convention test) because there was no material difference between this test and application of the Corner House criteria. On the matter of prospects of success, the court should take account of the reassurances provided to the petitioners by SEPA and Scottish Water.

Decision
[14] I am in no doubt that the petitioners' motion falls to be refused. I find it convenient to address the first three Corner House criteria together. In my opinion the circumstances of this case do not satisfy the requirement of "general public importance". I agree with the submission by the respondent and the interested party that the present issue is appropriately described as essentially one of local community interest. As it appears to me, the issues raised in the petition are of importance only to a small number of individuals resident in Cheviot Drive or in properties adjacent to the watercourse who claim to be at increased risk of flooding as a consequence of development of the site with what they perceive to be inadequate flood prevention measures. Clearly such a risk is a matter of considerable importance to those individuals, but that does not, in my view, render the issue one of public importance, far less of "general" public importance as required by the first criterion. No important point of law or of principle is raised. No large section of the public who may be indirectly affected has been identified. There is no issue which the public interest requires to be resolved. In my opinion the petitioners may fairly be characterised as an association of local residents whose primary objective is the safeguarding of their respective private interests. Whilst, as I have said, the third Corner House criterion requires to be applied flexibly and not as an absolute bar to an applicant with a private interest, I regard the extent to which this petition is motivated by private interest as highly material to the question whether the court should, in exercise of its discretion, grant the order sought. I reject the submission by counsel for the petitioners that the matter should be regarded as being of general public importance on the basis that the "public" for present purposes should be taken to be the community in which the development is to be located. It seems to me, having regard to the guidance from the English case law to which I have referred, that that is too narrow a restriction to fulfil the requirement of "general" public importance.

[15] For these reasons alone I would not regard it as fair and just to make a protective expenses order in the petitioners' favour. I am, however, confirmed in this view by an assessment of whether the petition has a real prospect of success. Any view on prospects of success which I might reach at this stage is necessarily a preliminary one, based only upon the material placed before me in the context of the hearing of this motion. Nevertheless, I consider that I am entitled, under the third Corner House principle, to have some regard to my preliminary view in exercise of my discretion. Although I am not convinced, on the basis of the arguments presented to me, that the respondent has such a strong case based on mora, taciturnity and acquiescence as to render the petitioners' prospect of success very poor, I am not, on the other hand, persuaded that this petition raises any matter that is amenable to the supervisory jurisdiction of the court. I have quoted above (paragraph 7) the petitioners' formulation of the issues as set out in paragraphs 54 and 55 of the petition. Counsel for the petitioners elaborated on this by explaining that the respondent's decisions were said to be ultra vires because it granted planning permission, and discharged condition 10, when it knew or ought to have known that the flood protection proposals were inadequate and disconform to standards, as a result of the respondent relying upon professional advice which the petitioners assert was wrong. In my opinion the formulation in the petition, and this elaboration, afford a strong indication that the petitioners are seeking to challenge the merits of the respondent's decisions rather than raising any issue for judicial review. That being so, I am not, as presently advised, satisfied that this petition would have a real prospect of success.

[16] As regards financial resources, it was ultimately a matter of agreement among parties that because my discretion in relation to the amount of any expenses "cap" was not limited to the figures specified in rule of court 58A.4, I would require more information concerning the petitioners' available resources before I could reach a decision as to what order, if any, to make, were I minded on the basis of non-financial considerations to make an order. Had it been necessary, I would have ordained the petitioners to provide fuller details of the resources available to them than the bare statements in the petition that the office-bearers are of "modest means", owning their homes, with mortgages and "the normal range of domestic commitments". I would add for completeness that as regards the other side of the coin, namely the estimated cost of the proceedings, I considered production of the letter from the law accountant to be an entirely appropriate method of vouching. However, in view of my opinion with regard to the application to the present case of the other elements of the Corner House principles, further investigation of the petitioners' resources is not needed.

[17] The motion is refused.