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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lothian Borders & Angus Co-Op Society v Scottish Borders Council & Ors [1998] ScotCS 106 (18 December 1998)
URL: http://www.bailii.org/scot/cases/ScotCS/1998/106.html
Cite as: [1998] ScotCS 106, [1999] 2 PLR 19
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OPINION OF LORD MILLIGAN in the Petition of LOTHIAN BORDERS & ANGUS CO-OPERATIVE SOCIETY LIMITED (FORMERLY KNOWN AS LOTHIAN AND BORDERS CO-OPERATIVE SOCIETY LIMITED) Petitioners; against (FIRST) SCOTTISH BORDERS COUNCIL First Respondents; and (SECOND) TRINITY INVESTMENTS LIMITED Second Respondents and (THIRD) NICODENT LIMITED Third Respondents:
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18 December 1998
The petitioners apply for judicial review of a decision by the first respondents (SBC) to grant conditional planning permission under that council's reference 96/781/G dated 16 July 1997 to the second respondents (Trinity) for a proposed supermarket development at Currie Road, Galashiels. The site concerned is within the town of Galashiels and very close to Gala Water and on the east side of it. The petitioners have a supermarket store which they opened in 1983 on the other side of Gala Water. By arrangement with the then local authority the petitioners financed the construction of a foot bridge across Gala Water for the use of customers to their premises and in particular to give access to car parking facilities on the east side of Gala Water which could be used by customers if the car park immediately adjacent to the petitioners' supermarket was full or if they preferred to use the facilities on the east side of the river. In 1992 the petitioners applied for outline planning permission to extend their supermarket and this was granted. They agreed with BRC to excamb land to protect the line of a proposed road bridge over Gala Water. The exchange also enabled the petitioners to supply the necessary additional parking for their extension. This exchange was completed by February 1995 and the petitioners' extension opened in September 1995, providing a total net sales area of 25,000ft² on one floor. Meanwhile, since about 1994 BRC had been in discussion with Trinity about their proposed supermarket development at Currie Road, the site with which this petition is concerned. On 30 March 1996, missives were concluded between BRC and Trinity for the sale to Trinity of council land which comprised part of the application site. BRC had used emergency powers to enter into these missives and the transaction was challenged by a petition for judicial review by the present petitioners. In the result, new missives were entered into between BRC and Trinity superseding the missives challenged and the petition was dismissed as unnecessary, with the petitioners being awarded their expenses having regard to what had happened. Trinity submitted a planning application for use of their Currie Road site as a supermarket on 11 October 1996. The petitioners objected to consent being granted on the grounds that it would conflict with the Local Plan and would be mutually exclusive with the petitioners' plans for linkage of its car park and Currie Road. On 12 May 1997, BRC approved the Trinity application subject to non-intervention by the Secretary of State. On 14 July 1997 the Secretary of State indicated that he was not calling in the application for determination. Planning consent was given to Trinity on 16 July 1997. In December 1997 an application was made by the petitioners for interdict to prevent implementation of Trinity's planning permissions. This was refused and on 9 January 1998 the present petition was lodged. The SBC reference for the planning permission sought to be reduced in this petition is 96/781/G dated 16 July 1997.
Mr Brailsford, for the petitioners, said that this application for review was primarily concerned with the status and position of the relevant development plan. It was, accordingly, appropriate at the outset to put the development plan in context. He referred first to the terms of Section 12(1) of the Town and Country Planning (Scotland) Act 1947. He said that Section 12(1) of the 1947 Act gave an importance in consideration of planning applications to development plans which was subsequently reduced by observations by Lord Guest in the case of Simpson v Edinburgh Corporation 1960 S.C. 313. In that case, concerning development proposals in George Square, Edinburgh, Lord Guest said (at page 318):
"Section 12 ... obliges the local authority, in dealing with applications for planning permission, to 'have regard to the provisions of the development plan so far as material thereto and to any other material considerations'. It was argued for the pursuer that this section required the planning authority to adhere strictly to the development plan. I do not so read this section. 'To have regard to' does not, in my view, mean 'slavishly to adhere to'. It requires the planning authority to consider the development plan, but does not oblige them to follow it. In view of the nature and purpose of a development plan ... I should have been surprised to find an injunction on the planning authority to follow it implicitly, and I do not find anything in the Act to suggest that this was intended. If Parliament had intended the planning authority to adhere to the development plan, it would have been simple so to express it. If a glossary of the phrase 'to have regard to' is to be sought in the Act, it is to be found in Sections 4 and 19, where it is plain that 'having regard to' in that context does not mean 'to follow implicitly' but means 'having in view'."
Mr Brailsford said that the wording of Section 12(1) of the 1947 Act was repeated in Section 26(1) of the Town and Country Planning (Scotland) Act 1972. He said that in response to acceleration of the departure from town centres of retailing and the growing development in the 1980s of out of town shopping centres Section 58 of the Planning and Compensation Act 1991 introduced a new Section 18A of the 1972 Act to attempt to redress the balance affected by Lord Guest's observations and to protect threatened town centres in particular. The current statutory position was that Section 25 of the Town and Country Planning (Scotland) Act 1997 was enacted in the same terms as Section 18A of the 1972 Act. Section 25 of the 1997 Act provides:
"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."
It is to be noted that Section 37(2) of the 1997 Act has the same wording as Section 12(1) of the 1947 Act with regard to general considerations in determination of planning applications namely:
"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."
Accordingly, development plans now have a status enhanced in the legislation mentioned and this was recognised in the recent case of City of Edinburgh Council v Secretary of State for Scotland 1998 S.L.T. 120, in particular in the speech of Lord Clyde in which he referred to the legislative developments mentioned. Lord Clyde said (at page 127B):
"If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given."
Mr Brailsford next referred to national planning policy guidelines, the introduction to which stated that they were "intended to guide authorities, professionals and the public" (January 1994). Paragraph 21 explained that the structure plan and the local plan together made up the statutory development plan for an area. Paragraph 23 states:
"Taken together, structure and local plans should ... provide:- a strategy to guide the location of development for 10 to 15 years; firm guidance on the future use of land and pattern of development for the first 5 years of the plan; the incentive of identified opportunities for development and redevelopment; control by indicating standards to be achieved in new development; ways to conserve and enhance the urban and rural environment and protect the diversity of the natural and cultural heritage."
Paragraph 25 provides for the need for clarity in planning and for consistent decision-making, policy monitoring and review on a regular basis. In terms of paragraph 39, the adopted local plan, together with the approved structure plan, form the first point of reference in preparing for decisions in planning applications. "Where decisions are taken which conflict with or are inconsistent with the policies contained in up to date structure and local plans, strong reasoned justification should be given for so doing". There is recognition in paragraph 40 of the need for flexibility to reflect changes in circumstances. Mr Brailsford said that the relevant local plan became available in draft in 1991 and that between 1991 and 1995 there was a discussion period with regard to that plan. In the press release by Trinity with regard to their application of July 1996 there was reference to negotiations having taken place over two years prior to that. Accordingly, at the time the local plan was being formalised the issue of the site concerned was something which was before the council and should have been addressed in terms of paragraph 41 of the 1994 guidelines to "ensure that structure and local plans have addressed current and emerging land use and environmental issues and that they contain robust policies for the promotion and control of development". Paragraphs 42 to 44 inclusive provided guidelines for departure from the provisions of the structure and local plan. Paragraph 42 related to the relevance of other material considerations, the two principal tests governing whether a consideration is material or not for planning purposes being (1) that it should serve or be related to the purpose of planning, namely guiding the development and use of land in the public interest, and (2) it should fairly and reasonably relate to the particular determination. Paragraph 43 recognised that in practice the scope of other material considerations is "fairly wide" and "falls to be determined in the circumstances of individual cases". Paragraph 44 recognised that precise rules cannot be laid down for governing the balance to be struck between development plans and other material considerations, while providing general guidance as to the principles to be borne in mind. These include the requirement of "sound reasons" for refusing planning permission and "compelling reasons" for departing from the provisions of relevant plan policies.
Mr Brailsford said that national planning policy guidelines had been issued for retailing in March 1997. These were still in draft form but had not been revised. Reference was made in paragraph 2, in the introduction, to the Government's "commitment to town centres", having a role in terms of paragraph 1 of "sustaining and enhancing town centres". The need for a sequential approach by planning authorities in selecting sites for new retail development was set out in paragraph 9. First preference should be for town centre sites, followed by edge of centre sites, followed only then by out of town centre sites. That town centres should be the first choice for new retailing developments was affirmed in paragraph 33.
Mr Brailsford next referred to the Scottish Office Development Department Circular 12/1996. This set out Government policy with respect to the use of agreements made under Section 50 of the Town and Country Planning (Scotland) Act 1972, now superseded by Section 75 of the 1997 Act. Paragraph 5 stated:
"A planning authority should not ... treat an applicant's need for planning permission as an opportunity to obtain a benefit, financial or environmental, which is unrelated in nature, scale or kind to the development proposed ... The presence or absence of extraneous inducements or benefits should not influence the decision of a planning authority on an application for planning permission; unacceptable developments should never be permitted because of the offer of unrelated benefits. Equally planning authorities should not be influenced by offers of inducements to refuse applications for planning permission."
Paragraph 10 emphasised the need for planning agreements to be related to the development being proposed and paragraph 11 to planning agreements being related in scale and kind to the proposed development. Paragraph 11 stated:
"... Developers may, for example, reasonably be expected to pay for or contribute to the cost of infrastructure which would not have been necessary but for the development. The effect of such infrastructure investment may be to confer some wider benefit but payments should be consistent with the scale of the proposed development. Attempts to extract excessive contributions to infrastructure costs from developers or obtain extraneous benefits are, therefore, to be strongly discouraged. For example, developers should not be asked to fund local road improvements unless the need for these improvements arises wholly or substantially from the proposed development."
In a press release issued on 3 July 1996, SBC announced that a major retail development was proposed for the Currie Road area of Galashiels. The total value of the contract works was stated as being in excess of £6.5 million and the road works element amounted to over £1 million. Accordingly, the road works element was about 15% of the total cost of the development. It appeared that BRC were getting realignment of Station Brae and a new bridge and realignment of Currie Road and two roundabouts. The old railway bridge in Station Brae would be removed. It appeared that road works which were not necessary for the development were to be financed by the developer. Accordingly, there was a disproportionate benefit to BRC in the respect of the excess of financing of road works by the developer.
Mr Brailsford next turned to the specific grounds of challenge of the planning permission in issue. The first ground of challenge was that, in considering the Trinity application, SBC had failed to have regard so far as could be determined to all aspects of the provisions of the development plan which are relevant to Trinity's application. He referred to the report to the Planning and Development Committee of SBC dated 12 May 1997 with regard to Trinity's application. This report identified Strategic Policy E42 as the relevant structure plan policy and to Ettrick and Lauderdale Local Plan. Policies 23, 33 and 75 and proposal RT.3 as the relevant local plan policies. The Scottish Borders Structure Plan 1991, approved in November 1993, E.42 stated:
"The regional council will encourage the development of food retailing outlets within town centres and will encourage the early completion of supermarkets in Kelso and Jedburgh."
In the Ettrick and Lauderdale Local Plan 1995, adopted in July 1995, policy 23 stated:
"In existing industrial areas there will be a presumption in favour of industrial development and the retention of existing uses. The Regional Council will encourage firms to develop and expand in these areas."
In this connection, part of the site in issue is zoned for industrial use. In paragraph 3.14 of the local plan written statement it is stated:
"The 1988 Household Survey into the shopping patterns of the Borders' population indicated that Galashiels had the largest shopping catchment area in the Borders, both in terms of area and population served ..."
In paragraph 3.15 it is stated:
"It is important that a reasonable range of shopping provision is maintained in the settlements in Ettrick and Lauderdale. The Regional Council intends to support the existing level of shopping provision in towns and villages throughout the District, and encourage a greater range of provision through redevelopment and rehabilitation initiatives."
Policy 33 stated:
"The Regional Council will encourage the development of food retailing outlets in existing town centres and in appropriate edge of town centre locations. Similar developments at edge of town locations will be resisted. Proposals should meet the following criteria: (1) Adequate car parking can be provided on site; (2) Adequate access and servicing can be provided; (3) The proposal is sensitively designed; (4) The proposal is of a type and scale appropriate to local needs."
Policy 75 stated:
"The Regional Council will encourage the maintenance of the existing variety and mix of uses that exists in town centres and villages, particularly shopping, business and residential uses."
Proposal RT.3 stated:
"A road link from Currie Road to Paton Street will be provided to further improve traffic flows in the town centre."
Mr Brailsford said that while these policies and proposals had been identified to the committee others in the plan relevant to the application had not been reported to the committee. In particular policy 18 stated:
"In established residential areas there will be a presumption in favour of retaining existing uses. To protect the amenity and character of these areas any development should meet the following criteria: (1) Appropriate form of development for a residential area; (2) Appropriate scale of development for a residential area; (3) No unacceptable increase or noise; (4) Not visually intrusive."
There was no residence on the footprint of the proposed food store but part of the site was within an area zoned as residential. The second reference to policy missing from the report to the committee related to policy 94. This stated:
"The Regional Council will continue its efforts to ensure that existing off street car parking is retained, and the provision of additional spaces is pursued where possible. On site parking for new and redevelopment schemes will normally be required."
The proposed development involved loss of 134 public car parking spaces in the Currie Road car park. This was a free long term parking facility. A new car park was proposed for the supermarket premises but this would be separated from the town centre by the road and roundabout developments. The impression given to the committee in the report was that there would be a benefit so far as car parking was concerned but this was not the case. The loss of car parking had been identified in technical memoranda but no attempt was made to address this matter in the report. A further reason why the matter of car parking was highly relevant to the committee's consideration of the application was the matter of use by customers of the petitioners of the Currie Road car park. This was necessary use so far as the petitioners were concerned and BRC were aware of this. The availability of car parking at the Currie Road car park was a factor in allowing consent for the extension to the petitioners' premises. The third matter upon which the report to the committee was inadequate was that of traffic impact analysis. It was clear from internal memoranda that more information was required in order to report properly to the committee on the matter of traffic impact analysis. Traffic impact analysis was represented to the committee as being a background matter. The committee were not made aware as they should have been of a critical report lodged by consultants instructed by the petitioners relating to traffic impact analysis. The committee were given the impression that necessary further investigation was being conducted with regard to traffic impact analysis. So far as the petitioners were aware no such further analysis was ever carried out. In the whole circumstances, the decision sought to be reduced was bad for these reasons alone.
Shortly before the resumed hearing of this application on 27 October 1998, SBC lodged an affidavit from Mr Paul Gregory, SBC's director of planning and development, and an affidavit from Mr Bruce Rutherford, SBC's head of network management in the technical services department. At the resumed hearing, Mr Brailsford said that these affidavits were helpful in throwing light on the factual background but they raised matters relevant to submissions already made. In the course of his affidavit, Mr Gregory explains that the earliest consultations with the general public, councillors, neighbours and the consultees took place on the basis of the submitted Plan 2 which was lodged with the council and registered on 11 October 1996 with the Trinity application for full planning permission. This plan referred to a food store of 40,500ft², together with a petrol filling station. He says that it was imperfect in a number of ways as well as being deficient in some detail. Trinity were informed of the many concerns which had been identified at a meeting on 11 February 1997 attended by BRC officials and they were invited to reconsider whether to adjust their plans as a consequence. An amended Plan 2A was lodged on 7 March 1997 offering "considerable improvements" compared with the submitted Plan 2. The size of the food store was increased by 4,150ft². Outstanding issues requiring clarification were identified and on 26 March 1997 Plan 2B was lodged and this was the plan considered by the committee when it met on site to inspect the Currie Road proposal on 28 April 1997 and at a subsequent meeting of the planning and development committee on 12 May 1997, when the Trinity application was approved in principle, and also on 9 June 1997 when the committee approved the conditions attached to the Trinity application. Plan 2B reduced the gross floor area of the store to 33,750ft². In Mr Gregory's view, outstanding matters lying in the path of submission to the planning and development committee for determination were satisfied by Plan 2B. He says that there was also some room to spare within the site to meet circumstances which could arise when a detailed application came in. Mr Gregory describes the committee's site visit on 28 April 1997 and then the planning and development committee meeting on 12 May 1997. At this meeting, Plans 2, 2A and 2B were pinned one above the other so that the changes in plans could be described. Outstanding issues would be covered by conditions, including off-site junction improvements. Conditions to deal with outstanding issues were duly drafted and reported on to the committee at their meeting on 9 June 1997. Mr Gregory explains that the road realignments proposed were required as part of the superstore proposals. He says that:
"By fortunate chance and circumstance, ... the private interest coincided with the public need."
The application was advertised as a potential departure from the development plan and was processed over a period of seven months and, as well as public advertisement, involved extensive consultation with affected parties, such as the local health centre, which adjoins the site, the residents in the immediate neighbourhood, the holding of a public meeting on 11 March 1997, the receiving of wider representations and their careful consideration and referral to the Secretary of State for Scotland, primarily because of the council's potential financial interest in the development site. The fact that the Secretary of State had decided not to call in the Trinity application for any reason, having been sent the relevant reports and background papers in relation to the applications, appeared to Mr Gregory to indicate that the Secretary of State was satisfied with the departure and notification procedures followed by the council.
In his affidavit, Mr Rutherford states that the technical services department was invited to comment on Trinity's proposals following registration of their planning application. Various concerns were expressed pending processing of the traffic impact analysis by Goodson Associates, Consulting Engineers. Due consideration was subsequently given to the traffic impact analysis undertaken by Halcrow Fox on behalf of the petitioners. The content of each analysis was satisfactorily accommodated in the final proposals in Plan 2B. Following approval in principle by the committee of the application on 12 May 1997, technical services' concerns were resolved by the proposed inclusion of conditions in relation to public car parking spaces, off-site road junctions, parking management, filling station details and underpass details. The committee duly approved the conditions on 9 June 1997. The decision to grant planning approval had taken cognisance of all technical services' observations.
In reviewing the affidavits in detail, Mr Brailsford submitted that SBC should have re-advertised Trinity's proposals following the respective changes made in Plan 2B in particular. The public meeting to discuss the application was on 11 March 1997 when Plan 2A would be available but not Plan 2B. The test for requirement of re-advertisement was concerned with need for re-notification, in particular whether failure to re-advertise would deprive those with a legitimate intent of the right to be consulted. This will arise if there is a material change in the proposals (Wheatcroft Limited v Secretary of State for the Environment and Another [1980 43 Property and Compensation Reports p.233]). Forbes J. said (at page 241):
"The true test is, I feel sure, that accepted by both counsel: is the effect of the conditional planning permission to allow development that is in substance not that which was applied for? Of course, in deciding whether or not there is a substantial difference the local planning authority or the Secretary of State will be exercising a judgment, and a judgment with which the Courts will not ordinarily interfere unless it is manifestly unreasonably exercised. The main, but not the only, criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation ..."
Mr Brailsford accepted that the factual circumstances in that case were clearly distinguishable from the present case but submitted that on the principles applied by Forbes J. in that case there should have been re-advertisement in the present case.
Mr Brailsford next said that Mr Rutherford's approach in his affidavit was incorrect in respect that he appeared to relate the present application to one involving outline planning permission with reserved matters. The present was clearly an instance of a grant under Section 58 of the Town and Country Planning (Scotland) Act 1997. Clear implications with regard to size of the development were involved. Where are the plans for external buildings? How are such buildings to get planning permission? In any event, neighbours could be very interested in the provision of external buildings, in particular visually and with regard to noise.
Reverting to the affidavit of Mr Gregory, Mr Brailsford criticised the absence of mention of conditions 1, 4, 5, 6, 9, 15, 16, 20, 21 and 22. Conditions 1 and 6 were of particular importance.
Reverting to the submissions which he made at the previous hearing, Mr Brailsford said that it was still not clear that the committee had access to all relevant material so far as traffic impact analysis was concerned. In particular it was not clear that they had access to the whole Ryden report. If not, that absence could have materially affected their attitude to the application. This was of particular significance with regard to the requirement to be satisfied that there was no town centre site preferable to the edge of centre Trinity site.
Mr Brailsford submitted that if a planning authority is considering an application concerning land in which it has a pecuniary interest it has to be particularly scrupulous in the way in which it deals with that application. He referred to the case of Steeples v Derbyshire County Council (1985 1 W.L.R. 256). In that case, a county council owned an area of park land which they proposed to develop as a leisure centre with recreational facilities. They undertook by agreement with a company who was to manage the development that they would undertake to use their best endeavours to obtain outline planning permission, with a financial penalty if they failed to use such best endeavours. The planning committee were not informed of the financial arrangements but the owner of adjoining land was held to have a proprietary interest to challenge the grant of permission and to have sound grounds for doing so in that the grant made, while fairly and properly made, had not been in accordance with natural justice, because a reasonable man, not present when the decision was made and unaware that it had in fact been fairly made, but aware of the terms of the council's agreement with the company, would think that there was a real likelihood that the agreement had had a material and significant effect on the planning committee's decision to grant permission (Webster J. at page 288F). In the present case, the planning authority had a pecuniary interest. The petitioners were not in a position to define the benefit but they could say that there was a benefit. Webster J.'s test for valid challenge of the grant of planning permission of what a reasonable man in the defined circumstances would consider was satisfied in the present case and the planning permission should be reduced on that account.
A further legal basis for challenge arose, in Mr Brailsford's submission, because BRC have acted in a way which involves a clear departure from the standards which a planning authority must apply. They had adopted a partisan approach to the Trinity application. They had ceased to be arbiters and had "descended into the pit". He referred to the case of R. v Teesside Development Corporation e.p. William Morrison Supermarket plc and Redcar and Cleveland B.C. (1998 J.P.L. 23). This was a decision of Sedley J. in 1997. The case represented a development of the law in judicial review and the approach of the Courts with regard to how planning authorities deal with applications when they are considering in the context of policy an application for development which they perceive has a general benefit for the area in which they are concerned. The corporation owned a site alongside a dock on the south bank of the River Tees. The site was in an urban development area and the corporation had the development control powers for the area. The site was the subject of an extensive development proposal package for residential and commercial purposes, which was to include a major food retail outlet. Large scale retailing use was specifically excluded in the Cleveland Structure Plan in the area in which the site was situated. The broad issue which arose was whether the corporation, in seeking to carry out its functions, had departed from its duty of objectivity and approached the planning application in an unacceptably partisan way. Specifically, it is was alleged that they had failed to appreciate the meaning and effect of the relevant structure plan and local plan policies and that a series of errors of fact were of sufficient importance to have been capable of making the difference in a case as problematic as that one was. There was factual error with regard to declared intentions of Asda, the operators of an existing smaller store and prospective operators of the planned store, and to the status of objections lodged by a local joint strategy committee which were marginalised by the corporation. The application for judicial review was granted. Mr Brailsford said that he recognised the factual differences between that case and the present but he founded on the approach applied in that case involving the requirement to act objectively and in particular to be seen not to be partisan. In the Teeside Development Corporation case Sedley J. had been "driven to the conclusion that there has been in the present case a pervasive departure from the requirement of the law that a planning authority must evaluate an application objectively and without pre-judgement of its merits" (at page 44). In the present case, what BRC had done was throughout the whole process allowed themselves to favour the Trinity application for their own ends. In their desire to grant the Trinity application they had ignored or avoided national and local policy and had failed to follow policy guidelines by properly evaluating the application. They had taken into account irrelevant considerations and quite clearly failed to regard relevant considerations. As a result of their partisan approach they had sought to impose conditions, such as Condition 6, which were not properly conditions, and conditions such as Conditions 1, 2 and 3 which were not apt to be made conditions. It followed that their whole process was tainted. The petitioners had established the grounds for reduction set out in their petition. Accordingly, the first and second pleas in law for the petitioners should be sustained and decree of declarator and reduction pronounced accordingly.
Mr Hodge, for SBC, submitted that the petition should be dismissed, sustaining the pleas-in-law for SBC. A number of preliminary legal and factual matters arose. The first legal point concerned the limited nature of grounds of judicial review. He referred to Wordie Property Company Limited v Secretary of State for Scotland 1984 (S.L.T. 345), and to what was said by the Lord President (at page 347) as to the law being well settled and as to there being little dispute as to the scope of such appeals. In particular, a decision will be ultra vires if it is based upon a material error of law going to the root of the question for determination; if the decision-maker has taken into account irrelevant considerations or has failed to take into account relevant and material considerations which ought to have been taken into account; if there is no proper basis in fact to support it where it is one for which a factual basis is required; or if it is so unreasonable that no reasonable person in the position of making such a decision could have reached it. The second point of law related to application of Section 25 of the Town & Country Planning (Scotland) Act 1997. Application of that section involved matters of planning judgment and the Court would not interfere unless there had been the necessary irrationality to invite interference. He referred to the case of City of Edinburgh Council v Secretary of State for Scotland (1998 S.C. 120, per Lord Clyde at page 126 and per Lord Hope at page 122). The third point in law was that the test for unreasonableness was a high one. He referred to C.C.S.U. v Minister for Civil Service (1985 AC 374) and to the definition therein by Lord Diplock (at page 410) of "irrationality" as meaning,
"... 'Wednesbury unreasonableness' (Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948 1 KB 223)). It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
There was no basis for a case of irrationality here. The fourth point in law was that there is a built in protection in the planning system where a local authority has a beneficial interest. This built in protection involves reporting to the Secretary of State to give the Secretary of State the opportunity to intervene. After due reporting of the matter to the Secretary of State, the Secretary of State had decided not to intervene in the present case.
Mr Hodge then turned to a number of factual points involving "salient features". The first was that SBC as planning authority wished to encourage food store development in Galashiels, as had its predecessor Borders Regional Council. This was on account of evidence of leakage of expenditure from the Borders and independent expert advice thereon. Thus, in the Local Plan Written Statement at paragraph 3.14, following the comment that the 1988 Household Survey had indicated that Galashiels had the largest shopping catchment area in the Borders, there was the comment that there was a significant loss of shopping expenditure in Ettrick and Lauderdale to centres outside the region, primarily Edinburgh. This loss was particularly apparent in non-food shopping. The second factual point was that town centre sites had been identified as potential developments as long ago as 1991 but notwithstanding this retailers had not taken up these sites for development. The council was concerned that sites had been identified but they had not been taken up. The third factual point was that the Nicodent site, which was wholly within the town centre, qualified as first according to the sequential test in choice of alternative sites. In the report to the planning committee about this site its entitlement to be preferred was highlighted by the director of planning. The Trinity site was treated as an edge of centre site where 60% of its area was within the town centre. The fourth point in fact was that in terms of policy 33 of the Local Plan Written Statement development of food retailing outlets in both existing town centres and in appropriate edge of town centre locations was encouraged. The fifth point of fact was that industrial use on the bulk of the Trinity site had ceased when the application was put forward. Industrial use was not easily revivable. It was not suggested otherwise in the submissions for the petitioners.
Mr Hodge then turned to points concerning the chronology of events in the submissions for the petitioners. He observed that the Nicodent site was slightly smaller than the area involved in the Trinity application. He said that in February 1994 a report had been obtained from Rydens on the prospects of the available sites obtaining planning permission. In March 1994, there had been an interim report by Rydens assessing the potential of the town centre to attract developers into the town. By way of clarification, he said that it was now clear, in the light of Mr Gregory's affidavit, that the assertion that the new road layout was not needed for the proposed store's requirements was wrong.
Mr Hodge turned next to the policy framework. He referred to the terms of Section 25 of the Town & Country Planning (Scotland) Act 1997. He said that the guidance from the House of Lords post-dated the guidelines founded upon for the petitioners. The weight to be given to development plan policies in particular planning applications was a matter for the planning authority in terms of that guidance. Central government planning guidance was only a material consideration and could not be set up against the legal rules applicable in a judicial review. The planning committee in the present case were clearly properly alerted to all relevant considerations, in particular those arising from the terms of Section 25. This was clear from the terms of the report of the meeting of 12 May 1997. It was made very clear that if only one site was to be chosen then this should be the Nicodent site. The guidelines founded upon by the petitioners were material considerations to be taken into account but only that. The weight to be given to them was a matter for the planning authority as the decision maker. The appropriate issue had been put fairly and squarely by the Director of Planning to the committee so that they could properly decide the matter which they required to decide. It was very significant that the Secretary of State had chosen not to call in the application concerned, his right to do so involving an appropriate "safety net" in the circumstances of a case such as the present where the council in reporting the matter recognised that they had a pecuniary interest. The circular 12/1996 with regard to road works reflected revised guidance following recent judgments including, in particular, the case of Tesco Food Stores v Secretary of State for the Environment (1995 1 WLR 759). In that case, the Secretary of State had decided that a developer who had agreed to fund a link road in full at a cost of £6.6 million, if granted planning permission for a superstore, should not be granted planning permission in respect that the relationship between the funding of the link road and the proposed food store was tenuous and could not be treated as a reason for granting the developer planning permission. The House of Lords held that the weight to be given to such an obligation was a matter entirely within the discretion of the decision maker and since the Secretary of State had given it full and proper consideration his decision could not be challenged. Lord Keith said (at page 770A):
"An offered planning obligation which has nothing to do with the proposed development, apart form the fact that it is offered by the developer, will plainly not be a material consideration and could be regarded only as an attempt to buy planning permission. If it has some connection with the proposed development which is not de minimis, then regard must be had to it. But the extent, if any, to which it should affect the decision is a matter entirely within the discretion of the decision maker and in exercising that discretion he is entitled to have regard to his established policy."
Lord Hoffmann said (at page 780F):
"Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision making process. This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principal 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."
On the facts, to create a roundabout at the north-east side of the site Station Brae bridge had to be removed because it was necessary to get Station Brae onto a level with Currie Road. To create a car park entirely on the east side of Currie Road, Currie Road had to be realigned. To create a link between the town centre and Currie Road close by the food store the Gala Water Bridge envisaged was required. Accordingly, it could not possibly be said that the council were unreasonable in considering the proposed road works to be related to the development. The petitioners themselves in their pleadings maintained that the link road was to be the main access for the new food store. Furthermore, it was said by the petitioners that the traffic impact assessment did not refer to the link road realignment. Accordingly, it was not necessary for the development. The proper test was not one of necessity but of adequate road servicing of the development.
Mr Hodge then turned to the specific grounds of challenge by the petitioners. He said that the alleged failure to consider all aspects of the development plan amounted to an alleged failure to consider two local plan policies. These were policies 18 and 94. So far as policy 18 was concerned, the council officials and the committee were entitled to form the view that the policy was not relevant to the application and did not require to be specifically referred to. This was so because only part of the planning application site was covered by housing policy and this comprised a wooded slope on the east side of the site. It amounted to about 13% in area of the site and was at the back of the site. There were no flats or residential accommodation within the area of the application site. Most importantly, the slope could not be built on. The trees on the slope would not be altered in any way by the proposed development. There was no development whatsoever on the slope proposed. In any event, the councillors were appraised of the question of residential amenities so far as the Trinity application was concerned. Councillors were briefed on the residential amenity situation. The conclusion was that it was not a problem for residents. Indeed, the edge of town centre site was an unusually good site in such a situation, having very little impact at all on amenity.
So far as policy 94 was concerned, it was clear that the policy considerations for car parking were appreciated by officials and committee alike. What had been said about car parking on behalf of the petitioners related essentially to matters of judgement. What had not been pointed out was that out of 312 car parking spaces to be available at the proposed store 64 were in excess of strict requirements for a food store such as that proposed. Indeed, reports by the technical services director dated 3 December 1996 and 27 March 1997 related to the situation before reduction of the size of the store to 33,750ft² so that his comments were outdated. This is demonstrated by the affidavit of Mr Rutherford. The real issue was whether there was a parking problem created by this proposed development. If there was, then policy 94 should have been drawn to the specific attention of councillors but this was not the case. It was clear from the affidavits that the allegation that material matters relevant to the application were not properly put before the committee was not well founded.
So far as alleged failure to have regard to the petitioners' use of the Currie Road car park was concerned, there had been no such failure. The matter had been put to the committee in the report on proposed supermarket development in Galashiels by the director of planning and development on 12 May 1997 and in the report on the Trinity superstore proposal itself. As a matter of fact, the petitioners have 231 spaces as compared with the 233 theoretically required by present council standards, which are open to relaxation as elsewhere.
The third ground of challenge had involved alleged failure to have due regard to traffic problems identified in the traffic impact assessment and by the director of technical services. The fatal flaw for the petitioners so far as this ground of challenge was concerned was they are reliant solely on reports from the technical services department, the traffic impact assessment obtained by themselves apart. Regard also required to be paid to the affidavits now lodged and these demonstrated five points:- (1) the size and configuration of the store had changed over time whereby car parking requirements and traffic flows were reduced; (2) the department of technical services' report of 27 March 1997 predated consideration of Plan 2B; by 12 May 1997 officials in the technical services department were satisfied of three things:- (i) traffic impact assessments results involved over-provision in traffic terms for the smaller store; (ii) the methodology urged by the petitioners' consultants would not have led to a different conclusion; (iii) the junction improvements required to alleviate results shown by the traffic impact assessment were practicable and could be carried out by the council on highway land and funded by the developer; (4) the planning conditions agreed between the planning department and the technical services department at the meeting on 20 May 1997; (5) at the meeting of 9 June 1997 councillors approved the conditions including Conditions 7, 8 and 10 to 14 inclusive.
The fourth ground of challenge related to alleged failure on the part of the planning department to put the Ryden report before the planning committee. This alleged failure had not been averred. It was not an issue. The members of the committee did not require to have every document put before them. The committee had been appropriately briefed by the planning department. The material consideration was the conclusion of such a report and this is what the director of planning had put before the committee.
Mr Hodge then turned to what he described as additional grounds of challenge. In what had been said about the sequential test there had been no attempt to refer to the answers for SBC in answer 12. The weight to be attached to the sequential test was a matter for the planning authority. A proper reading of the reports before the committee makes it clear that the sequential test was explained to the committee. What the committee decided in the event was that the Trinity application was to be granted in addition to that for the Nicodent site. In the report to the committee of 12 May 1997 by the director of planning and development at paragraph 4.8 there was very specific reference to the Trinity store at Currie Road ranking second in the Government's "sequential test", for the proposed building sits outside the town centre boundary. It was then stated that, "however, the entire development site (encompassing the replacement roads, associated car parking, filling station, etc., as well as the proposed building) sits astride the defined boundary for the town centre, with the greater part within it." It was said to be an edge of centre site, although it spans the boundary. It was pointed out to the committee that in addition to the sequential test they could legitimately consider transport and traffic improvements, uncertainties in Section 9 with regard to Ryden's advice, the Trinity site being as close to the town centre focus as the Nicodent site and the proximity of the Trinity site to the bus station. Under the heading "site suitability" on page 10 of the relevant application paper for members of the committee it is specifically stated that:
"the main issue surrounding the location of the supermarket building is its position outside the boundary of the town centre. This fact requires careful consideration as to whether more appropriate locations exist that are wholly within the town centre. If these are sufficiently attractive and available, it could point to a clear case for refusal."
Mr Hodge then turned to the neighbour notification and re-advertisement submission made for the petitioners. Under reference to the Bernard Wheatcroft case in 1980 he said that the clear test was whether there was a change in substance, not whether there was a material change. Whether there was a change in substance was a matter for the planning authority. The Court could intervene only if the planning authority's decision on the matter was irrational. He referred on this matter to the judgment of Forbes J. in the Bernard Wheatcroft case (at pages 239 to 241 inclusive). He also referred to the case of Walker v City of Aberdeen Council (1998 S.LT. 427). That case involved challenge by judicial review of the grant of outline planning permission to a university to develop a university campus. In that case Lord Macfadyen held that, where the application had been altered from an original proposal for an entire university campus with a total gross floor area of 85,000m² to one for only 15,000m² of gross floor area, confined to one part of the site, the test for the need for re-notification and re-advertisement was whether "the amended or revised application is for development which is in substance different from that to which the original application related" (at page 431F). While size may be a relevant consideration the main consideration was the nature and extent of the difference in planning terms between the original and the amended proposal. In the circumstances of that case it could not be said that no reasonable authority would have failed to regard the revisal as altering the substance of the proposal. He dismissed the petition. In the present case, the size of the store had been reduce from 40,500ft² as originally proposed to 33,000ft² as now proposed. There had been minor changes with regard to highway proposals and alterations within the site. There was now to be one roundabout rather than two within the site. There was now the creation of an emergency access for tankers going to the petrol filling station. There was to be a pedestrian underpass rather than a pedestrian crossing. The actual effect of changes was to reduce parking requirements and to reduce traffic impact. The council were entitled to reach the view that there had not been a change in substance.
Mr Hodge next referred to the procedure adopted by SBC in the present case. He said that it was normal practice in applications for judicial review for a public authority to set out its position in pleadings under reference to documents lodged and SBC had lodged detailed defences to the allegations of illegality in their answers to the petition. Affidavits from Mr Gregory and Mr Rutherford had been lodged prior to the resumption of the hearing at the end of October to deal with matters of detail raised by the petitioners in the course of the earlier hearing. What S.B.C. had done accorded with normal and proper practice.
Mr Hodge next turned to submissions concerning planning conditions and to what Mr Hodge described as the "conspiracy theory". He said that so far as external plant buildings were concerned these could involve buildings such as an electricity sub-station or pumping store but separate planning permission would be needed anyway for such buildings. It had been suggested that the supermarket could be positioned anywhere "within the area shown on the submitted plan". There was some flexibility within the footprint of the building shown on the plan but not outside that footprint. Condition 2 was required because there might be slight differences in detail of positioning according to who the operator of the store turned out to be. Very importantly, the permission granted was not in law or form an outline planning permission. The council always envisaged that determination of the Trinity application would not, if granted, allow Trinity to develop a food store then and there. There would have to be a further application, without reserved matters. The committee were informed in terms of the explanatory paper before them at their meeting on 12 May 1997 (at page 3):
"No elevations nor detailed plans of the building have been submitted, and these will form the subject of a future detailed application. The plans submitted of the building will vary in accordance with the specific operator chosen."
It was explained to the committee that in determining the matter they were not, if they granted the application, giving consent to a food store here and now. Condition 21 of the grant for example, states:
"Details of all signage, lighting and any provision for CCTV within the site to be submitted for the approval of the Planning Authority as part of the detailed planning application."
The new application would be a Section 58 application. While Mr Rutherford in his affidavit refers to permission being detailed concerning roads and outline concerning a food store, Mr Rutherford's views on the nature of the application were not material to the present issue. Planning is not a field in which technical rules of procedure are appropriate and the planning authority must simply deal with the application procedurally in a way which is just to the applicant and objectors in all the circumstances. (Inverclyde District Council v Secretary of State for Scotland 1982 S.C. [H.L.] 64, especially per Lord Keith at page 73). Thus, it was fair to the prospective developers and the objectors alike to require a further Section 58 application.
Mr Hodge turned finally to make submissions on the case law. With reference to the Steeples case, that case involved circumstances very different to those in the present case. In that case the council were held contractually bound to take all reasonable steps to obtain the grant of outline planning permission. If they failed to do so and this resulted in the termination of the agreement they were bound to pay a very substantial sum by way of liquidated damages. In the present case the council had no such obligation to obtain planning permission for Trinity. There was no suggestion that the sale of land by the council to Trinity precluded the council from giving proper consideration to the planning application. In any event, the procedure whereby the application was reported to the Secretary of State provided protection against misjudgment by a planning authority in this field. Reference was next made by Mr Hodge to the case of R. v Sevenoaks District Council, e.p. Terry (1985 3 A.E.R. 226). He said that he was not founding on the facts in that case but only what was said on the matter of possible bias by a planning authority. Glidewell J. referred to the Steeples case (at page 230J) and thereafter said (at page 233B):
"Of course, the council must act honestly and fairly, but it is not uncommon for a local authority to be obliged to make a decision relating to land or other property in which it has an interest. In such a situation, the application of the rule designed to ensure that a judicial officer does not appear to be biased would, in my view, often produce an administrative impasse. In my judgement, the correct test to be applied in this present case is for the Court to pose to itself the question: had the district council before 5 January 1982 acted in such a way that it is clear that, when the committee came to consider Fraser Wood's application for planning permission, it could not exercise proper discretion? Of course, in asking that question, it may appear that the answer is 'Yes', even though an individual councillor says quite genuinely and honestly that he personally was able to approach the decision without bias. But, if the answer to the question is 'No', it is in my judgement neither necessary nor desirable for the Court to go further and consider what the opinion of a reasonable man would be. Insofar as this formulation differs from that adopted by Webster J. in Steeples v Derbyshire C.C., I respectfully disagree with him."
Accordingly, it was for the challenger to show that the council had acted in such a way that it was clear that, when the committee came to consider Trinity's application for planning permission, it could not exercise proper discretion. This had not been shown. So far as the Teeside Development Corporation case was concerned Sedley J. said (at page 30):
"... the council were providing advice to the developer such as one would expect from a responsible expert advising a client on the best way of promoting a planning proposal."
In the present case the committee had a balanced and conscientious report from the director of planning. The present case was clearly distinguishable from the situation in the Teeside Development Corporation case.
On the whole matter, Mr Hodge submitted that the pleas-in-law for SBC should be sustained and the application for judicial review dismissed.
Mr Connal, for Trinity, submitted also that the petition should be dismissed. The present was the fifth petition involving this issue concerning this site. All the others had been dismissed on various grounds. In the present petition, the first plea-in-law for Trinity was that the petitioners had no title and interest to pursue the present petition and the petition should be dismissed on that account. The position of the petitioners as parties entitled to statutory neighbour notification did not give the petitioners an unqualified entitlement to challenge the resulting planning permission on any ground, whether or not such ground be included in their objections. The interest of commercial competition did not give them the right to challenge. There was no entitlement on the part of the petitioners to challenge a decision basing their challenge on a wish to support any particular facet of the planning system, national or local. Further, it may be necessary for the petitioners to indicate prejudice in relation to the ground argued. Mr Connal referred to the Simpson case and in particular to what was said by Lord Guest (at page 317):
"I have no doubt that, in certain circumstances, ownership of property may give a party an interest, but he must, in my view, in the present case, qualify a patrimonial interest in the sense that some right of his, conferred by the Act of 1947, is being contravened. ... the pursuer in the present case has no right under the Act of 1947 to object to the grant of planning permission. ... I am unable to find any indication in the Act of 1947 that the pursuer has a title to enforce this aspect of planning control. I hold therefore that the pursuer has no title to sue."
It was suggested that now that a neighbour is entitled to notification it follows that that neighbour has title and interest but all that had changed since the case of Simpson in 1960 was that the right of notification gave a right to make representations to the planning authority. It gave a limited right to intervene. It did not provide a Court remedy for a neighbour who has cause to believe that the decision has been taken by the planning committee after misrepresentation by a planning official, for example. There was no right to intervene because the petitioner was a commercial competitor. The sequential argument was very much a commercial matter. Mr Brailsford intervened at this point to make it clear that he did not challenge the proposition that a mere commercial interest did not supply the necessary title and interest to sue. Mr Connal said that there had been little attempt to show alleged prejudice. The first plea-in-law for Trinity should be sustained.
Mr Connal next referred to the third plea-in-law for Trinity, which is that the petitioners are barred by mora, taciturnity and acquiescence from proceeding with the present petition and it should be dismissed on that account. In applications for judicial review concerning planning consents there are particularly good reasons for requiring promptness. In such a case, little prejudice to the holder of the consent need be shown and indeed such little prejudice may be inferred. In the present case, the grant of permission had been on 16 July and the present petition was lodged only in January 1998. Mr Connal referred to the unreported case of Harold Pickering and another v Kyle and Carrick District Council and another, a decision of Lord Penrose on 20 December 1990. Lord Penrose said (at page 22):
"Mere delay on the part of an objector to present an application for judicial review will not suffice, any more than in other contexts. The essence of the plea, in my opinion, is that the person or persons having legitimate grounds 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."
Mr Connal accepted that there had been no physical operations undertaken in the present case. He next referred to the case of Perfect Swivel Limited v City of Dundee District Licensing Board (No.2) (1993 S.L.T. 112), a decision of Lord Abernethy, where, in the context of licensing, Lord Abernethy expressly reserved his opinion as to whether mere acquiescence without any alteration on the part of the respondents of their position would be sufficient (page 113). The next case referred to was that of Carlton v Glasgow Caledonia University (1994 S.L.T. 549), another decision of Lord Abernethy, but again not dealing with a planning matter. That case related to a two-year delay in challenge of refusal to allow appeal by a student to an academic appeals committee. Lord Abernethy observed that, had the application otherwise been relevant, the delay in presenting the petition might well have led to its being barred by mora, taciturnity and acquiescence on the part of the petitioner. The circumstances, however, are very different to those in the present case. Mr Connal next referred to an unreported opinion of Lord MacLean in the petition of Ronald McIntosh, the opinion being dated 21 January 1998. This concerned an application for judicial review of a decision to refuse to discharge a planning agreement by Aberdeenshire Council under Section 50 of the Town and Country Planning (Scotland) Act 1972. The delay in that case was seven years. Lord MacLean held that he would have sustained the plea to mora, taciturnity and acquiescence had it been necessary for the purposes of dismissing the petition. In that case, parties were agreed as to the applicability in that context of what was said by Lord Prosser in Hanlon v The Traffic Commissioner (1998 S.L.T. 802 at page 805):
"There would only be such bar when there was conduct on the part of a party indicating that he had truly abandoned an objection open to him in law; that this had occurred when he was in knowledge of the full circumstances giving rise to his right to object; and that his conduct had been relied upon and produced a material change of circumstances."
Mr Connal then referred to the case of Richard Swan and others v Secretary of State for Scotland (1998 S.C.L.R. 763). In that case, judicial review was sought on the grounds that the Forestry Commission had decided not to require an environmental assessment where that was required under a European Council Directive. In the particular circumstances of that case, which are very different to the present circumstances, it was decided that the Lord Ordinary was wrong to have sustained the mora plea arising from the eight months' delay concerned. Mr Connal also referred to three English cases. The first of these was R. v Swale Borough Council and another, e.p. Royal Protection for the Protection of Birds (1991 P.L.R. 6). That case did involve an application for judicial review of planning permission. Simon Brown J. said (at page 23):
"Let me say at once that I have concluded without hesitation that there was here on the facts undue delay in making this application. Crucial to this judgement is an appreciation of the particular decision here subject to challenge. This was a grant of planning permission. Of its nature it directly affects at least one third party (the developer) and very usually, as here, others, too, through subsequent contractual relationships. The delay concerned in that case was just within the three month limit prescribed by RSC Ord 53, Rule 4. While this was so, the Court could still bar the application on the grounds of undue delay if the particular circumstances of the case warranted such a ruling."
In the case of R. v Bristol City Council, e.p. Anderson (9 March 1998) Collins J. said (at page 15):
"These attempts to quash planning permissions which have been granted must be brought promptly. Normally, it will be necessary for them to be brought within a much shorter period than the three months which is the maximum allowed."
He cited a passage from the judgment of Laws J. in R. v Ceredigion County Council, e.p. McKeown (6 June 1997), in which he said:
"I find it nearly impossible to conceive of a case in which leave to move for judicial review will be granted to attack a planning permission when the application is lodged more than six weeks after the planning permission has been granted. I can see no rhyme nor reason in permitting the common law remedy of judicial review to be enjoyed upon a timescale in principle more generous to an applicant than Parliament has seen fit to fix in relation to those who desire to challenge a refusal of permission or its grant subject to conditions ..."
Collins J. agreed with what was said by Laws J. Mr Connal submitted that Trinity's third plea-in-law should be sustained.
On the merits of the case, Mr Connal adopted what had been said by Mr Hodge. The Trinity site was partly in and partly outside the town centre. There was nothing inherently illogical in saying that this was a good site for a supermarket. Weighing of the planning considerations was for the planning authority. It was wrong to scrutinise documents such as reports to committee as if these were conveyancing documents. For successful challenge of a grant there must have been a flaw in the process. It was necessary to set out a clear basis for an allegation of a serious wrongdoing. The criticism being made must be one such as to invalidate the exercise of determination of the planning application. Not every flaw will suffice. The flaw founded upon must undermine the decision in a real sense. No physical action could be taken without the local authority's approval because of the terms of Condition 19. Mr Connal referred to the case of Bonnes v West Lothian District Council (1997 S.L.T. 398), a decision of Lord Osborne. That case involved an application for judicial review of a planning authority decision to grant planning permission for an extension to a neighbouring house. The petitioners sought a proof of fact in order to establish alleged inadequacy of information before the planning authority. This particularly related to the question of sunlight to neighbouring properties and the district council contended that they were well aware of the fact that this was a material consideration and that full enquiry was carried out and full consideration given to all the material before them. It was held, inter alia, that the planning authority having gone some way beyond what might have been done in a more normal case, and having the material before them that they did, it was impossible to say that the decision of the planning authority was unreasonable, and no purpose would be served by factual enquiry. The petition was dismissed. Lord Osborne said (at page 403):
"The ground upon which the Courts will review the exercise of an administrative discretion is an abuse of power - e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity, or unreasonableness in the Wednesbury sense - unreasonableness verging on an absurdity ... Where the existence or non-existence of a fact is left to the judgement and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."
Further support for the heavy onus on a party seeking judicial review of the grant of planning permission on the contention that there were deficiencies fatal to that decision in the information placed before the planning committee was to be found in the opinion of Lord Marnoch in the petition of Freeport Leisure plc (dated 31 July 1998).
Mr Brailsford, in reply, founded upon the apparent disagreements as to what the status of the grant in issue was. The application had been for full planning permission, namely an application under Section 58 of the 1997 Act. However, the views expressed by Mr Gregory and Mr Rutherford in their affidavits and the terms of Condition 21 combine to raise doubts as to just what the status of the grant was. It was, however, clear that before anything could be constructed there would require to be a further application for full planning permission. He accepted that this matter had not been canvassed in the pleadings. He said that it arose out of the affidavits. In responding to the submissions of Mr Hodge he referred to what was said by Lord Clyde in the City of Edinburgh Council case (at page 127G-H), where he said:
"In the practical application of Section 18A it will obviously be necessary for the decision maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse."
Mr Brailsford referred to the Secretary of State's policy with regard to calling in only applications of national interest. It appeared that of some 130 notifications per year only some 18 to 20 were called in and 50% of these related to national road issues. So far as leakage of retail trade from the Borders to, especially, Edinburgh was concerned it appears that the leakage so far as food sales were concerned was very small. He accepted that 60% of the site was within the town centre but the remaining 40% was zoned for industrial use, whatever the difficulties about actually achieving such use might be. The petitioners had not been given a proper opportunity to bid for the car park to be sold by SBC to Trinity. This could only be because SBC were actively supporting Trinity. SBC had not taken proper account of the petitioners' car parking requirements.
So far as the petitioners' grounds of challenge were concerned, SBC had not properly considered the point about part of the site being zoned for residential use. Officials required to identify the relevant policy and, only after doing so, did the opportunity to demonstrate that it should not apply arise. The car parking position had not been properly explained to the committee in the background information supplied. In that the Nicodent site was a more difficult site to develop than the Trinity site an easy way to ensure that the Nicodent site would not be developed was to grant permission for the Trinity site. In the circumstances, there had not been proper application of the sequential rule. There had been no retail impact assessment of the position if the application was granted. Concerning the matter of neighbour notification, and accepting that the correct test related to change in substance so far as re-notification was concerned, there had been change in substance involved in the alterations made by Trinity to their proposals.
Mr Brailsford said that there were a number of factors which emerged throughout the whole process which would enable a reasonable person such as the petitioners to form the view that the local authority preferred the position of Trinity and were concerned to ensure that the Trinity development succeeded. He accepted that this could be the situation without there having been any legality. The factors which caused these suspicions to arise were, firstly, the missives concluded by using emergency powers; secondly, the failure of the judicial review relating to those missives being due only to SBC having entered into a new contract; and, thirdly, the law agents of the petitioners having asked if the petitioners could tender for the car park ground and being deprived of the opportunity to do so. He was not saying that it was necessarily improper to act in this way but it was so in the particular circumstances of this case. Another factor which could reasonably raise suspicions was that most planning authorities refuse to deal with duplicate applications if the applicant had already appealed another application made to the planning authority. In the present case Trinity had lodged two applications for competing sites. Furthermore, the petitioners had offered to contribute to the bridge over the Gala Water. These were the factors which were relied upon by the petitioners as indicative of "conspiracy".
So far as Mr Connal's submissions were concerned on the matter of title and interest, the petitioners were notifiable neighbours and as such qualified on that basis. Thus in the Scottish Planning Encyclopaedia (Volume 1 at A.5024), the author, now Lord Reed, states:
"The absence of a statutory right of objection or appeal (where such a right is conferred upon persons other than the petitioner) is generally an indication that the petitioner has no title to challenge the decision. For example, since the introduction of the neighbour notification process it has been accepted that notifiable neighbours have a title to sue, whereas previously a neighbour had no title to challenge a grant of planning permission. Similarly, the absence of a statutory right to challenge a decision to call in an application has been treated as indicating that the petitioners had no title to challenge the decision by judicial review. It would however be incorrect to give the impression that the Court adopts a restrictive approach to the issue of title to sue: in practice, the Court is, on the whole, not easily persuaded that a member of the public has no title to challenge the actings of a public body."
In any event, the petitioners have a title and interest to sue in protecting the development plan so far as town centre sites are concerned. It was accepted that a mere commercial interest would not found the necessary title and interest.
With regard to Mr Connal's submissions on the matter of mora, taciturnity and acquiescence, delay was not a preliminary plea known to the law of Scotland. The English doctrine of undue delay had a different basis and there were strict provisions with regard to time. English authority was of no material assistance. The Scots doctrine of mora is flexible and varies with circumstances. In judicial review it is necessary to act promptly. In judicial review regarding planning consents there are good reasons for promptness being required. There was a need for a party relying on mora to show "little prejudice". However, it was important in applying these general rules to the present case that Trinity could not show prejudice at all. Further planning application was required before any development could proceed and it was difficult to see how there could have been prejudice in this situation. Mr Rutherford in his affidavit had pointed out that there was still land acquisition to be completed. Most importantly of all, the petition for judicial review of the Secretary of State's decision not to call in the application was sisted pending an Inner House decision in the Asda case on 3 December 1997. This petition was lodged on 9 January 1998. In the particular circumstances of this case there had not been undue delays to substantiate the plea of mora, taciturnity and acquiescence taken by Trinity.
In reply, Mr Hodge said that the point now sought to be made by the petitioners in relation to Section 58 of the 1997 Act and the status of the grant made was not a point which arose out of the affidavits lodged as had been suggested for the petitioners. There was nothing to prevent SBC granting Section 58 permission for roads external to the site and permission for building a food store within the footprint contained in Plan 2B. There was no statutory bar to this being done. There was no case law prohibiting it. There were practical reasons why it was desirable. If there had been a grant for a food store only in outline then the council would have been faced with acceptability of a food store within the site outline boundary but leaving it to be placed anywhere on the site. It was very important that councillors would have a clear idea where the supermarket was to be before granting permission. The subsequent application required will place in issue the principal development. It does not involve ignoring the permission already granted. The planning permission granted is, realistically, less valuable than an outline planning permission would have been. It was a permission eminently suitable for meeting the particular circumstances of the particular case. So far as the alleged "conspiracy" was concerned, the submissions for the petitioners overlooked the fact that sales of land would be dealt with by the estates department, the negotiation of missives by the legal services department, matters concerning roads by the technical services department and planning matters by the planning department including the director of planning. In the whole circumstances, the petition should be dismissed.
On the whole matter, I accept the submission of Mr Hodge, adopted by Mr Connal, that the petition should be dismissed. In the course of the proceedings, Mr Hodge reserved SBC's position in respect of parts of the submissions made on behalf of the petitioners not covered by the pleadings for the petitioners. It was suggested by Mr Brailsford, for the petitioners, that in some respects at least such new submissions were justified by the contents of the affidavits lodged for SBC immediately prior to the resumption of the hearing at the end of October. In the result, I conclude that the petition should be dismissed, pleading questions apart. A very late contention for the petitioners, whether its lateness be justified or not, related to the very nature of the grant actually made. It is clear from the actual terms of the grant that the application resulted in detailed grant so far as road works external to the site are concerned but comprised only permission in principle for the development of the proposed food store, the store building to be within the footprint for that building contained in Plan 2B. In the circumstances of the case, it seems to me eminently sensible that the matter should have been dealt with in that way. So far as the external road works were concerned, it being possible to deal with the grant of planning permission on the basis of detailed permission it clearly was sensible that that should happen. Fixing of the detail of road works where this is achievable is clearly of assistance to all parties to whom the detail of the road works is of material practical significance. Such parties inevitably include Trinity and any potential operator of the proposed food store. They also include the council themselves. As matters stand, no actual food store can be constructed until detailed planning permission therefor has been obtained. The appearance of the proposed store will not be known until such detailed planning application is dealt with but the planning committee have agreed in principle to a store being built within the footprint on Plan 2B so that, again, while the details of positioning of the store may generally be less important to interested parties than the road layout, nevertheless a matter has been determined that would not be determined by outline planning permission, namely that any store must be built within the footprint on Plan 2B. The detailed layout of any proposed store will no doubt be influenced by the identity of the operators of such store. In this whole situation, it seems to me also eminently sensible that the committee have dealt with the scope of permission granted in relation to the store site itself in the way which they have. In any event, no prohibition against their proceeding in this way has been identified in the course of the discussion and in my view there is no substance in the contention that the grant is in some way unlawful, whatever disagreement there might be among officials in putting a name tag to its nature.
I have recorded in some detail the very full and careful submissions made in this case for the petitioners, SBC and Trinity respectively. I have found it appropriate in this case to do so chronologically because of the developments which occurred in the course of the hearing, in particular the lodging of the affidavits from Mr Gregory and Mr Rutherford. In accepting Mr Hodge's submissions, I reject firstly the ground of challenge which alleged that in considering the Trinity application SBC failed to have regard so far as could be determined to all aspects of the provisions of the development plan which are relevant to Trinity's application. As Mr Hodge pointed out, this ground of challenge essentially focused on two local plan policies, policies 18 and 94. So far as policy 18 is concerned, it appears that the only part of the planning application site covered by a housing policy is a wooded slope on the east side of the site which is not, and cannot, be built upon. It further appears that it has trees on it and there is no development whatever proposed on the slope. In the circumstances, this did not require specific reference. Councillors were apparently appraised of questions of residential amenity concerning the Trinity application, including the effect of external road works. So far as policy 94 is concerned, the whole position with regard to car parking was apparently explained to the committee. Mr Rutherford dealt with this matter in his affidavit. It appears also that the committee were made aware of the car parking position so far as usage by the petitioners' customers was concerned.
So far as the petitioners' challenge of the decision on the grounds of failure to have due regard to all relevant aspects of traffic impact assessment is concerned, it seems to me clear that the petitioners' position was based very much on the content of reports of the director of technical services. I agree with Mr Hodge's analysis of the position on the whole information now available, including the affidavits lodged for SBC. In particular, it seems to me that the committee were adequately briefed on the traffic impact assessment aspect of the application and, furthermore, that there is no proper basis for the suggestion that the committee were misled by any official on this matter. I also agree with Mr Hodge that, similarly, there is no proper basis for the allegation, one of those not averred incidentally, that the committee were not adequately briefed on the matter of the Ryden report.
A substantial attack was sought to be made upon the decision on the basis that the requirements of the sequential test were not properly raised and applied in dealing with the application. In my view, upon a proper reading of the reports before the committee the sequential test was placed adequately before them. So far as application of that test was concerned, the weight to be attached to the test was very much a matter for the committee in the particular circumstances of the particular case. Such a consideration as difficulty in achieving retail development on a particular town centre site or advantage of an edge of town centre site, such as that in issue, or of being close to a bus station are examples of factors which it would be perfectly proper for the committee to take into account in deciding the weight to be attached to the sequential test in the particular circumstances of the particular case.
Nor do I consider that there was substance in the point taken about alleged need for re-advertisement. In particular, I agree that the proper test is one of "change of substance" and not whether there has been a "material change" or "substantial change", the latter two tests being tests which could be satisfied by merely quantitative change without change in substance. Indeed, Mr Brailsford accepted this expressly in the course of the hearing. Applying that test, I am satisfied that the decision not to re-advertise was one which was within the proper discretion of SBC and, accordingly, I do not consider that there is a sound basis for this ground of challenge either.
Nor do I consider that the general allegation which attracted the label of "conspiracy theory" during the hearing and which was presented both as an independent ground of attack and as colouring other points taken has been shown to have any substance. In particular, I accept Mr Hodge's submission that neither any such conspiracy itself nor the suggested improper motive appeared to be related to the extent to which the applicants undertook to meet the cost of external road, bridge and underpass works, the impropriety arising from the costs concerned allegedly not being required substantially for the development, it not being in issue that they were not required wholly for the development. It seems to me that they were clearly substantially required for the development whatever the position would be if there was no development.
On the whole matter in my opinion this application for judicial review fails for the reasons submitted by Mr Hodge.. In the circumstances, it is unnecessary to deal formally with the points raised by Mr Connal relating to title and interest of the petitioners and mora, taciturnity and acquiescence. However, I record my view that I do not consider that either is well founded in the circumstances of this case. It seems to me that the petitioners have title and interest to make this application as notified neighbours both with regard to points which directly affect them, such as car parking, and any point of alleged unlawful dealing with the application in the public interest. On the matter of mora, taciturnity and acquiescence, put briefly, I consider that the chronology of events explained by Mr Brailsford, taken together with absence of any special prejudice, invalidates this ground of challenge to the application.
In the whole circumstances, I sustain the pleas-in-law for SBC and the second, fourth and fifth pleas-in-law for Trinity and repel the pleas-in-law for the petitioners.
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OPINION OF LORD MILLIGAN in the Petition of LOTHIAN BORDERS & ANGUS CO-OPERATIVE SOCIETY LIMITED (FORMERLY KNOWN AS LOTHIAN AND BORDERS CO-OPERATIVE SOCIETY LIMITED) Petitioners; against (FIRST) SCOTTISH BORDERS COUNCIL First Respondents; and (SECOND) TRINITY INVESTMENTS LIMITED Second Respondents; and (THIRD) NICODENT LIMITED Third Respondents; ________________
Act: Brailsford Q.C. Dundas & Wilson
Alt: Hodge Q.C., Spier A & W M Urqhuart (First Respondents) Connal McGrigor Donald (Second Respondents) Martin Q.C. Semple Fraser W.S. (Third Respondents) 18 December 1998 |