Scottish Court of Session Decisions

[1] The motion as enrolled was for interim suspension of the two decisions of the respondents dated 2 February 2000 specified in paragraph 2 of the petition. I heard submissions on behalf of the petitioners, the respondents and East of Scotland Water on Tuesday 18 April and continued consideration of the matter until today, Wednesday 19 April. Before addressing me on the terms of the motion, Mr Abercrombie, Q.C., counsel for the petitioners, sought and was granted leave to amend the petition in terms of the minute of amendment, (No. 10 of process). The principal petition should be amended in terms of the minute of amendment today. Mr Abercrombie also restricted the motion to the interim suspension of the decision of the respondents to grant planning permission for the erection of the waste water pumping station at Cramond Esplanade.

[2] Counsel for all parties were agreed that the approach which I should adopt is to determine whether there is an issue to try in this case, and if so, whether the balance of convenience favours the grant or refusal of the motion for interim suspension of the decision which is now sought to be reviewed. Mr Sutherland, counsel for the respondents also conceded that in determining whether there is an issue to try, I must accept as fact the averments of the petitioners. However, he wished it to be clear that he did not accept that the proposed development was a waste water treatment plant or that the Environmental Impact Assessment (Scotland) Regulations 1999 or the Environment Assessment (Scotland) Regulations 1988 applied in this case. Mr Menzies, Q.C., counsel for East of Scotland Water adopted Mr Sutherland's submissions in this regard. I would pause at this stage to express the hope that the respondents and East of Scotland Water will lodge detailed answers to the petition as amended as soon as possible and in any event sufficiently far in advance of the hearing fixed for 8 and 9 June to identify matters which are not in dispute and to enable counsel properly to focus their arguments at the first hearing. In making that observation, I would not wish any criticism by me of counsel to be implied.

[3] I will now consider the first question before me. That question is whether the averments of the petitioners disclose an issue to try. Mr Menzies submitted that the petitioners failed to pass this test and he and Mr Sutherland dealt with the applicability of various regulations. I have considered these submissions carefully and while I have reservations about the application of the Environmental Impact Assessment (Scotland) Regulations 1999 or of the Environmental Assessment (Scotland) Regulations 1988 in this case, I do not think that it would be appropriate for me to express any concluded view without fuller argument which was not possible within the time constraints of a motion roll hearing. In view of the terms of the letter dated 27 March 2000 from Historic Scotland (No. 9/3 of process), I also have reservations about the suggestion by the petitioners that the alternative site identified by the petitioners to the east of the application site would be a suitable location for the pumping station. The last paragraph of that letter indicates that it is highly unlikely that scheduled monument consent would have been granted for the construction of the pumping station at that location. I note that scheduled monument consent has been granted for the site for which planning permission was granted by the respondents. Moreover, I have reservations that the application of paragraph 8 of the schedule to the Town & Country Planning Notification of Application (Scotland) Direction 1997 is of any assistance to the petitioners because that paragraph only requires mandatory notification to Scottish ministers of any development which the planning authority considers to be a significant departure from a structure plan or local plan approved by the then Secretary of State. The planning authority is the respondents. Despite all of these reservations and others which I do not think it necessary to elaborate upon, I have reached the conclusion that there is an issue to try, at least in respect of the alleged failure of the respondents to comply with Section 50B of the Local Government (Scotland) Act 1973 as amended and also in respect of the alleged failure of the respondents to comply with paragraph 16 of the schedule to the 1997 direction. In the absence of full submissions it appears to me that there is a prima facie case to answer in respect of these two matters. I do not consider it necessary or appropriate to express any opinion about other complaints within the petition which were not developed in argument. In conclusion it will be apparent that I am satisfied that there is an issue to try.

[4] The remaining question for me is to determine where the balance of convenience lies. The petitioners accept that the principle of this development is desirable but wish the pumping station to be located elsewhere. The purpose of the interim suspension is to preserve matters until the end of the hearing on 9 June. The petitioners invited me to respect the public interest of ensuring that the planning process observes the correct procedures. They also rely upon the suggestion of a temporary solution referred to in the fax from Mr Ewart to Mr Collier dated 18 April (No. 6/27 of process). The petitioners also maintain that failure, prior to 31 December 2000, to complete the works necessary to secure compliance with the Council Directive concerning urban waste water management, (91/271/EEC) will not result in financial penalties for the respondents or East of Scotland Water. Moreover, they point to the fact that East of Scotland Water entered into the construction contract when they knew that the petitioners were challenging the respondents' decision to grant planning permission. A delay of two months will not be prejudicial. On the other hand, East of Scotland Water maintain that the overriding public interest lies in their implementing the Directive 91/271 by 31 December 2000. There is no guarantee that an extension for implementing the Directive will be granted. In any event it is in the public interest to cease at the earliest opportunity the discharge of untreated sewage into the Forth and River Almond except in storm conditions. Any delay in completing the construction and engineering work will prolong an unsatisfactory situation from the viewpoint of public health. The water authority may be exposed to claims for damages if people sustain injury as a result of the continued discharge of untreated sewage beyond 31 December 2000. They also maintain that the petitioners' estimate of a 2 month delay is optimistic. It is more likely to be well into the summer before a decision is reached. Moreover the estimated delay ignores the inevitable consequence that work will not be completed within the timescale of the Directive and may even be delayed well into next year allowing for construction to take place within the periods which would cause least disruption to the environment and the S.S.S.I. The water authority also point out that the contract has been let. The contract price is 4.3 million pounds with monthly payments of £450.000. If work requires to stop, the contractors will have claims in excess of £100,000 per month. Preparatory works were commenced on 3 April, having been intimated to the petitioners on 29 March. The public car park adjacent to the petitioners' property has been resurfaced as part of the preparatory works, resurfacing having commenced on 3 April. No action was taken by the petitioners to stop that work. Stripping of top soil commenced on 17 April. £50,000 has already been spent on preparatory works in addition to £600,000 already spent on the project. The temporary works referred to in the fax (no. 6/27 of process) will require planning permission and, as Mr Sutherland pointed out, would create a nuisance from the point of view of smell.

[5] I have considered the competing submissions and have reached the conclusion that the considerations in support of the work continuing far outweigh suspending work pending a final decision of the court. I consider that the timescale of 2 months is optimistic and ignores the prospect of any appeal. Even if 2 months is a realistic estimate of the delay which would be occasioned to the work, the consequences of such a delay are unacceptable in my opinion. I consider that the public interest will be served by the timeous compliance with the Directive which can only be achieved if work is allowed to proceed at the present time. By such compliance, the discharge of untreated solids into the surrounding water courses will be stopped and a discharge of other untreated sewage will be restricted to overflow conditions. Any risk to public health will be minimised. If work was suspended, the risk to public health would continue and the water authority would require to pay substantial damages to the contractors in respect of a project which the petitioners support in principle. By refusing this motion, the work can proceed in a planned way within specified timescales which will minimise the temporary damage inevitably caused to the environment and the S.S.S.I. by construction and engineering work. Even if the petitioners are ultimately successful, the respondents will require to consider the application afresh in the light of the court's decision. After such consideration, planning permission could be granted retrospectively. If that occurred the desired improvement to urban waste water treatment would have been achieved at the earliest opportunity by allowing the work to proceed meantime. However, even if retrospective planning permission were not granted, the respondents would require to decide what enforcement action to take including the removal of the building. In all the circumstances I consider that the balance of convenience favours East of Scotland Water being allowed to continue with their construction and engineering works and I will accordingly refuse the motion.