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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bett Properties & Anor v Scottish Ministers & Ors, Re Application For Judicial Review [2000] ScotCS 246 (6 September 2000)
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Cite as: [2000] ScotCS 246
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OUTER HOUSE, COURT OF SESSION

P7/14E/99

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD MACFADYEN

in the Petition of

(FIRST) BETT PROPERTIES AND (SECOND) THE SCOTTISH METROPOLITAN PROPERTY PLC

Petitioners;

against

(FIRST) THE SCOTTISH MINISTERS (SECOND) DUNDEE CITY COUNCIL (THIRD) SAINSBURY'S SUPERMARKETS LIMITED and (FOURTH) SCOTTISH ENTERPRISE TAYSIDE

Respondents:

for

Judicial Review

 

 

 

________________

 

Petitioners: Hodge, Q.C.; McGrigor Donald

Second Respondents: Menzies, Q.C. Dundee Legal Services

Third Respondents: Martin, Q.C., Ross; Steedman Ramage

Fourth Respondents: Murphy, Q.C.; Bennett & Robertson

 

6 September 2000

Introduction

[1] This petition, as originally presented, sought to bring under review a decision of the first respondents, the Scottish Ministers, declining to call in an application for planning permission by the third respondents, Sainsbury's Supermarkets Limited ("Sainsbury"). The petition has, however, been substantially adjusted, and as it now stands the decision which the petitioners seek to bring under review is a decision of 25 October 1999 by the Development Quality Committee of the second respondents, Dundee City Council ("the Council"), resolving to grant planning permission in respect of the Sainsbury application, subject to their entering into an agreement under section 75 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). Although that decision was taken by the Development Quality Committee, I shall refer to it as the Council's decision.

The Chronology of Relevant Events

[2] It is convenient to begin with a summary in chronological order of the events which form the background to the Council's decision of 25 October 1999 and to the present application, and on which reliance was placed in argument by one or more of the parties.

  1. On 12 January 1999 the petitioners applied to the Council for outline planning permission for development of a site ("the petitioners' site") situated north of Arbroath Road, Broughty Ferry. The application ("the petitioners' application", No. 6/1 of process) was for development of a superstore (4879 m2 gross), a petrol filling station, associated car parking, servicing and public transport facilities and associated road improvements along Arbroath Road including dual carriageway, roundabouts, pedestrian crossing and landscaping. The petitioners' application was allocated the reference number D23803. The location of the petitioners' site is shown outlined in red on the plan No. 7/4 of process.
  2. On 18 February 1999 the fourth respondents, Scottish Enterprise Tayside ("SET") applied to the Council for outline planning permission for development of a site ("the SET site") situated north-east of Claypotts junction, Broughty Ferry. The application ("the SET application", No. 6/18/2 of process) was for development of a food superstore, industrial units, a fast food restaurant, a petrol filling station, car parking, access and road improvements. The SET application was allocated the reference number D23864. The location of the SET site is shown outlined in red on the plan No. 7/1 of process and outlined by a broken dark blue line on the plan No. 7/4 of process. In addition, No. 7/1 of process shows, outlined in light blue, "adjoining land in Scottish Enterprise ownership". As may be seen from No. 7/4 of process, the SET site is not far distant from the petitioners' site.
  3. on 19 May 1999 the petitioners appealed to the first respondents under section 47(2) of the 1997 Act in respect of the Council's deemed refusal of their application, i.e. their failure to determine it within the prescribed time. The appeal is No. 6/5 of process.
  4. On 24 May 1999 the SET application was considered by the Council's Development Quality Committee, and was refused. The decision notice issued on 27 May 1999 (No. 6/18/44 of process) stated:

"The reasons for refusal are:-
  1. the application is contrary to the Dundee Local Plan 1998, Employment Uses Policy EU2, as this application site is located within an area identified as prime industrial estate,
  2. the application is further contrary to Employment Uses Policy EU2 as this development will encourage the generation and requirement for customer vehicle traffic,
  3. the application is contrary to National Planning Policy Guideline 17 as this development is not best suited for choice of transport and access is dependent predominantly by car and is not convenient for walk in trade and public transport routes,
  4. the application is contrary to National Planning Policy Guideline 8 and that the development is not capable of co-existing with local shopping centres without undermining their vitality and viability. It also conflicts with the Council's policy for industrial estates and would as a consequence lead to the loss of quality industrial or business sites,
  5. the application would have a serious effect on the traffic impact into an already overworked and over stretched road system at Claypotts and as a consequence cause local residents loss of amenity through increase in noise and air pollution".
  1. On 3 August 1999 a pre-inquiry meeting was held in respect of the petitioners' appeal. It was agreed that the inquiry would commence on 2 November 1999. It was stated on behalf of SET, who were represented at the meeting, that they wished to keep their options open about participating in the inquiry.
  2. On 10 September 1999 the reporter, in light of the fact that SET had by then intimated that they intended to be heard at the inquiry, required them to submit a statement of case within fourteen days.
  3. On 14 September 1999 Sainsbury applied to the Council for outline planning permission for development of a site ("the Sainsbury site") located north-east of Claypotts junction. The application ("the Sainsbury application", No. 6/18/46 of process) was for a mixed use development including a food superstore, industrial units, a fast food restaurant, a petrol filling station, car parking and formation of a new access road. The Sainsbury application was allocated the reference number D24269. The location of the Sainsbury site is shown outlined in red on the plan No. 7/2 of process, and outlined in light blue on the plan No. 7/4 of process. As may be seen from the latter plan, it incorporates the entirety of the SET site, as well as much of the land referred to in the SET application (plan No. 7/1 of process) as "adjoining land in Scottish Enterprise ownership", and adjoins at one point the petitioners' site.
  4. On 21 and 22 September 1999 the Sainsbury application was advertised as, respectively, a "bad neighbour" development and a development contrary to the development plan. Statutory neighbour notification was also carried out. Objections or representations made within the statutory period of three weeks after such notification and advertisement require to be taken into account by the planning authority in determining an application for planning permission (section 38(1) of the 1997 Act). The petitioners made no objection to or representations concerning the Sainsbury application within that period, or at all before the meeting referred to in paragraph (12) below.
  5. On 22 September 1999 under cover of a letter (No. 6/11 of process, page 2) SET submitted a statement of case (No. 6/12 of process) in respect of the petitioners' appeal. In the covering letter they stated:

"In light of the Reporter's decision in relation to the involvement of [SET] in the Inquiry, we have concluded that it would be more helpful to the Reporter for [SET] to lodge an appeal in relation to our own proposals ... This will allow the Reporter to widen the scope of the Inquiry, and for there to be some certainty regarding the competing proposals which he needs to address.

We have therefore, today (under separate cover), submitted an appeal in respect of the application for Claypotts ...

We would also wish to advise you that [Sainsbury have] submitted (on 14 September) a fresh planning application for the site at Claypotts. This application is referred to in the enclosed Statement of Case and has the full support of [SET]."

In the letter covering the appeal against refusal of the SET application, SET requested that their appeal be conjoined with the petitioners' appeal.
  1. On 29 September 1999, in response to a request from the reporter for the petitioners' views on SET's proposal that their appeal be conjoined with the petitioners' appeal, the petitioners' planning consultant confirmed that the petitioners had no objection to that course, but added:

    2. "SET also now wish to refer to a recently submitted planning application on their Appeal site in their evidence. That application which is at the instance of [Sainsbury] relates to a foodstore development on the SET site which we understand is substantially the same as the SET development with the exception of the access arrangements. In these circumstances we respectfully suggest that the Sainsbury Application should be called in and determined at the same conjoined Inquiry. We now formally so request."

    The petitioners' appeal and the SET appeal were thereafter conjoined.

  2. On 5 October 1999 the first respondents declined the petitioners' request that the Sainsbury application be called in.
  3. On 22 October 1999 the petitioners presented this petition in its original form, seeking reduction of the first respondents' decision of 5 October and interdict against the Council from granting the Sainsbury application.
  4. On 25 October 1999 the Council's Development Quality Committee approved the Sainsbury application, subject to the conclusion of a section 75 agreement and certain conditions. The minute recording the decision is No. 6/18/104 of process. The petitioners did not attend, or seek to make representations at, that meeting.
  5. On 22 November 1999 the Council, in reliance upon the decision of 25 October, made representations to Angus Council against the inclusion in the latter authority's draft Local Plan of provision for a food store close to the boundary of the areas of the two authorities, and in response to those representations Angus Council removed that provision from their draft Local Plan.
  6. On 25 November 1999 the diet for the first hearing of the petition was fixed for 11 May 2000.
  7. On 15 December 1999, after answers to the petition had been lodged by the Council, the petitioners were granted commission and diligence for recovery from the Council of documents in their hands relating to the SET and the Sainsbury applications.
  8. On 22 February 2000, on the petitioners' motion opposed by Sainsbury, a period of twenty eight days for adjustment of the petition and answers was allowed.
  9. On 23 March 2000 the petitioners adjusted the petition so as to seek, instead of reduction of the first respondents' decision not to call in the Sainsbury application and interdict against the Council from granting that application, the remedies now sought, namely declarator that the Council's decision of 25 October 1999 was ultra vires, and suspension of the purported grant of planning permission.

 

The Issues

[3] At the first hearing, the debate was opened by Mr Hodge for the petitioners, who advanced submissions in support of the proposition that the Council's decision of 25 October 1999 approving (subject to the conclusion of a section 75 agreement) the Sainsbury application was unreasonable, and thus ultra vires, and should therefore be reduced. On behalf of the Council, Mr Menzies advanced submissions in support of the Council's third plea-in-law, that the petitioners had no title or interest to bring the petition, as well as responding to Mr Hodge's submissions on the merits of the petition. On behalf of Sainsbury, Mr Martin first submitted that the petition (as adjusted) was incompetent, secondly submitted that the petition should be dismissed on account of the petitioner's delay in prosecuting it, thirdly adopted and reinforced Mr Menzies' submissions on title and interest, and finally responded to Mr Hodge's submissions on the merits. On behalf of SET, Mr Murphy adopted the submission of Mr Menzies and Mr Martin on title (but not interest) and on the merits. He did not maintain SET's plea of mora, taciturnity and acquiescence. Mr Hodge then replied to the various submissions made on behalf of the respondents.

[4] In the result, therefore, four issues were discussed at the first hearing and require to be determined, namely -

  1. the competency of the petition (as adjusted);
  2. the effect on the petition of the alleged delay in proceeding with it;
  3. the petitioners' title and interest to bring and insist in the petition; and
  4. whether or not the Council acted unreasonably in making the decision it did on 25 October 1999.

 

Competency

[5] In advancing his submission that the petition was incompetent, which he did expressly with hesitation, Mr Martin began by drawing attention to the contrast between the remedies originally sought in statement 4 of the petition as presented and the remedies now sought in statement 3 of the petition (as adjusted). He pointed out that the decision which the petitioners now sought to bring under review had not been taken when the petition was presented. He did not submit that it was incompetent to alter a petition to take account of circumstances which occurred after its presentation. He did submit, however, that where the substantive purpose of the original petition was abandoned, and the only purpose of the altered petition was to challenge something that had not happened when the petition was presented, it was possible to advance the submission that the adjusted petition was incompetent. The first hearing was fixed as a hearing into the challenge to the validity of the decision of the Scottish Ministers not to call in the Sainsbury application. It was when that was the only subject matter of the petition that the commission and diligence for recovery of the Council's records relating to the SET and the Sainsbury applications were granted. At the time that diligence was granted, it was a fishing diligence. It was not until 21 March 2000, when the petitioners' adjustments were intimated, that the challenge to the Council's decision of 25 October was first advanced. In part Mr Martin based his submission on the traditional distinction between amendment and adjustment. He conceded that amendment of the petition was competent (Maxwell, The Practice of the Court of Session, page 442). He pointed to Rule of Court 58.9(2)(b)(v), which contemplated the possibility, in a petition for judicial review, of an order for the giving of further specification in the petition. However, an alteration to the remedies sought in the petition required, he submitted, amendment rather than adjustment. The point was taken because, if the petitioners had moved for leave to amend, the court would have had a discretion to allow the amendment proposed or not, whereas, once adjustment was allowed, the court had no control over the alterations that the petitioners might make. If it had had to deal with a motion by the petitioners to amend some five months after the petition was presented, the court might well have refused leave to amend.

[6] Mr Hodge, in submitting that there was no incompetency in the adjusted petition, reminded me that the form of a petition for judicial review was laid down in Rule of Court 58.6(1) and Form 58.6. That form contemplated that notice of the remedies sought would be given by way of averment in the statement of facts, and that the court would not be confined to granting the orders specifically sought in such averments (see also Rule of Court 58.4(b)). Given that innovation upon traditional procedure, it could not be said that alteration of the averments about the remedies sought could not competently be made by adjustment. The flexibility of the procedure was commented upon by Lord President Rodger in King v East Ayrshire Council 1998 SC 182 at 196D-E:

"Judicial review is a flexible procedure and the court can, of course, take account of new matters and grant different remedies from those which are originally sought. In an appropriate case that could be done even at a late stage ...".

In the present case the petition had begun as in part a challenge to the validity of an apprehended decision by the Council. The interim interdict sought had been refused as premature. There was therefore nothing unfair about the petition proceeding as a challenge to the actual decision which the Council had then made. This hearing had been fixed in November 1999, after the Council's decision had been made. There had been agreement to the sisting of the inquiry pending the application for judicial review. The court had been told, when the motion for a period of adjustment had been made, of the nature of the alteration to the petition that the petitioners sought to make. In all these circumstances there was no incompetency in the adjusted petition.

[7] In my opinion Sainsbury's plea to competency falls to be repelled. The procedure for judicial review specifically innovates upon traditional procedure by making the statement of the remedies sought a matter for averment, and by providing that the court is not to be constrained by the terms of the averments made in that connection from making such order as it thinks fit. In my view it follows that the traditional distinction between adjustment of averments and amendment of the prayer (or in an action, the conclusions) has no application in relation to a petition for judicial review. Once answers have been lodged, adjustment is available as a procedure for alteration of the terms of the petitioners' pleadings. The court retains, in my view, ample power to protect respondents from prejudice occasioned by inappropriate use of adjustment by the petitioner, but that does not go to the competency of adjusting to alter the remedy sought. As Lord Rodger pointed out in King, the procedure is flexible, and the court can grant remedies other than those originally sought. In King, the remedy ultimately sought was one that could have been sought, but was not, at the outset (196D), whereas in the present case the remedy now sought is against a decision that had not been taken when the petition was presented. The change which the petitioners have made in the remedies that they seek seems to me, however, to be an unsurprising reaction to the change of circumstances brought about by the Council's decision of 25 October. It is not, in my view, a change which cannot be accommodated by adjustment within the deliberately flexible procedure laid down for petitions for judicial review. I shall therefore repel Sainsbury's first plea-in-law.

Delay

[8] Sainsbury's third plea-in-law is in the following terms:

"The petition being barred by mora, taciturnity and acquiescence separatim delay it should be dismissed."

Mr Martin pointed to the facts that the decision which the petitioners now seek to challenge was taken on 25 October 1999 and that the first formal notice that they gave of that challenge was by adjustments intimated on 23 March 2000. There had thus, he submitted, been a delay of roughly five months between the decision complained of and the formal expression of a challenge to its validity. He cited the opinion of Lord Bonomy in Uprichard v Fife Council (31 March 2000, unreported). In that case (at paragraph [14]) Lord Bonomy recorded that the respondents' submissions had been in three parts. First, it had been submitted that "in certain areas of administration, of which planning was one, where administrative certainty was important, any delay which tended to undermine the good order of sound administration was sufficient on its own to bar challenge". Secondly, it had been submitted that delay (in that case of nineteen weeks) in the knowledge that operations were being undertaken by the developer on the faith of the grant of planning permission led to an inference of acquiescence, which had not been rebutted. Thirdly, it had been submitted that the delay, in conjunction with the prejudice that would be suffered by the developers if the grant were quashed, was such as to bar the proceedings. Having considered various authorities bearing on the discretion available to the court in England to refuse leave to proceed with an application for judicial review on the ground of delay, Lord Bonomy said (at paragraph [17]):

"While I can find assistance in the English approach in identifying relevant factors to be taken into account in the exercise of my discretion, it would be wrong for me to give the very fact of the passage of time any particular weight. The weight to be given to the passage of time will depend on the period involved and the particular circumstances of the case, including the nature of the administrative decision involved, the lack of activity and/or notice on the part of the petitioners indicative of a continuing challenge and the circumstances surrounding that, and the prejudice to the developer."

Mr Martin submitted that Lord Bonomy had been wrong to decline to give weight to the mere fact of delay. In the planning context, delay of more than six weeks, the statutory period for appeal, was significant. Reference was also made to paragraphs [21] and [22] of Lord Bonomy's opinion. In the event, Lord Bonomy sustained a plea of mora, taciturnity and acquiescence in view of the combined circumstances of the petitioners' delay, their apparent acquiescence in the grant of planning permission, the disruptive effect which the late challenge, if successful, would have on good administration, and the prejudice which the developers would suffer. In the present case, Mr Martin submitted, the Council's representation to Angus Council about the provision in their development plan for a superstore, and Angus Council's reaction to that representation, illustrated the impact of the late challenge on good administration. Mr Martin also referred to King v East Ayrshire Council, in which Lord President Rodger (at 196C) said:

"It is recognised that the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision for any longer than is absolutely necessary in fairness to the person affected by it."

In that case a new ground of attack on the validity of the decision of an education authority to close a school, advanced ten months after the proceedings for judicial review began and over a year after the school was closed, was rejected. Reference was also made to R v Ceredigion County Council, ex parte McKeown [1998] PLCR 90, per Laws J at 91, and Singh v Secretary of State for the Home Department 2000 SLT 533 per Lord Nimmo Smith at 536F. In the latter case, Lord Nimmo Smith held that mere unreasonable delay did not per se bar proceedings for judicial review, but Mr Martin sought to distinguish that case on the basis that there was there no equivalent to the parallel in planning cases with the statutory time limit for appeal. Mr Martin accepted that in the present case the only actings which could be said to have taken place in faith of the decision of 25 October were the representations to Angus Council. Nevertheless, he submitted that the delay had been such that the petitioners should not be permitted to proceed. He submitted that the petitioners' failure to proceed with their challenge to the validity of the decision of the Scottish Ministers not to call in the Sainsbury application constituted acquiescence on their part.

[9] Mr Hodge submitted that there was no basis in the circumstances of this case for the plea of mora, taciturnity and acquiescence. The Council had been aware since November that their decision of 25 October was to be challenged. The only actings on which Mr Martin founded, the representation to Angus Council about its draft Local Plan, had taken place in knowledge that the petitioners sought to maintain that it was unreasonable to grant the Sainsbury application. It was a telling consideration that the Council had put forward no other actings on their part in reliance upon the decision. They had delayed proceeding with the contemplated section 75 agreement in knowledge of the dependence of the present process. The fact that the petitioners had not maintained their challenge to the validity of the decision of the Scottish Ministers not to call in the Sainsbury application was of no significance, given that the petition, as originally framed, had sought to challenge not only that decision but also, prospectively, the Council's decision on the Sainsbury application. So far as the argument based on pure delay was concerned, Mr Hodge submitted that it was unnecessary in this case to determine whether pure delay could bar proceedings for judicial review, because here there was no relevant delay. The petitioners had announced their intention of proceeding with the petition on 2 November. The diet for the first hearing had been fixed on 25 November. The proceedings therefore could not have proceeded to a conclusion faster than they did. In order to recast their pleadings in light of the decision taken by the Council on 25 October the petitioners had required to obtain and consider the documents in the hands of the Council relating to the SET and Sainsbury applications. The report by the Director of Planning dealing with the Sainsbury application had appeared to be misleading in its treatment of the differences between that application and the SET application. It was, however, important that a public authority should not be accused of unreasonableness without a proper basis in fact (Lothian Borders and Angus Co-operative Society Limited v Scottish Borders Council 1999 GWD 6-316). It was therefore necessary for the petitioners to recover the Council's files to see what further information had been available. That had required commission and diligence. In reality the Council's decision to grant the Sainsbury application had been under active challenge since it was made. There had therefore been no unreasonable delay.

[10] In my opinion, Sainsbury's third plea-in-law falls to be repelled. Mr Hodge was, in my view, right in submitting that it was unnecessary in this case to decide whether mere delay could be sufficient to bar proceedings for judicial review (although I agree with Lord Nimmo Smith in Singh at paragraph [8] and Lord Bonomy in Uprichard at paragraph [16] that there is no Scottish authority which supports the proposition that mere delay, without other circumstances of the sort that would relevantly support the plea of mora, taciturnity and acquiescence, can do so). In the present case, in my view, there have been neither unreasonable delay nor circumstances that would support the first branch of Sainsbury's third plea-in-law. The petition was originally presented when the Scottish Ministers had declined to call in the Sainsbury application. The focus of the complaint at that stage was twofold, namely first that that decision was unreasonable, and secondly that it would be unreasonable on the part of the Council to grant that application. Three days after the petition was presented, the Council made its decision in favour of granting the Sainsbury application. The focus of the petition therefore plainly had to be changed, if it was to proceed. In my view it remained clear throughout that the petitioners intended to proceed. The first hearing was fixed on 25 November 1999 to take place on 11 May 2000. It cannot, in my view be said that the petitioners acted unreasonably in seeking better information by commission and diligence before adjusting the petition. There was no submission made on behalf of Sainsbury that they were prejudiced by the fact that the adjustments came when they did in March. At the first hearing they were able to respond fully to the petitioners' submissions. Unlike Uprichard in which the developer went ahead with substantial expenditure in faith of the planning permission (see per Lord Bonomy at paragraph [19]), there is no suggestion in this case that Sainsbury acted in faith of the decision of 25 October. On the contrary, the contemplated section 75 agreement has not been completed. The development has not begun. The only actings relied upon, the representation by the Council to the Angus Council, seem to me to be of very much less significance, and were in any event undertaken in knowledge of the dependence of a petition challenging the reasonableness of making a decision to grant the Sainsbury application. I am satisfied that in the circumstances of the present case there is no sufficient basis for a plea of mora, taciturnity and acquiescence. Even if mere delay can bar proceedings for judicial review, on which point I reserve my opinion, there has in my view been no such delay in the present case as could justify that result.

Title and Interest

[11] All three compearing respondents plead that the petitioners have no title to challenge the validity of the Council's decision of 25 October 1999, and the Council and Sainsbury (but not SET) also plead that they have no interest to do so. Mr Menzies submitted that the general rule is that a person who perceives that he has sustained commercial disadvantage as a result of a grant of planning permission in favour of another has no title or interest on that account either to bring a statutory appeal against that grant or to bring it under review by recourse to the supervisory jurisdiction of this court. The fact that the petitioners made no timeous objection or representation in respect of the Sainsbury application meant that they had no title to challenge the Council's decision, because section 38 of the 1997 Act only required the Council to take into account in determining the Sainsbury application any representations received within the period prescribed under section 34(1)(h).

[12] In support of his submission Mr Menzies cited Asda Stores Limited v Secretary of State for Scotland 1999 SLT 503. That case was concerned with competing applications for planning permission for superstore developments in Stirling District. The structure plan provided that a further superstore in the district could not be supported, but an amendment had been submitted providing that an additional superstore would be supported. The petitioners and a consortium of Stannifer Developments Limited and J. Sainsbury plc ("Stannifer/Sainsbury") submitted applications relating to adjoining and partly overlapping sites. The Regional Council called the applications in, and decided to refuse the petitioners' application and grant the Stannifer/Sainsbury application, subject to notification to the Secretary of State (which was required because the application involved significant departure from the unamended structure plan). The petitioners appealed to the Secretary of State, who decided to determine the appeal himself on the ground that it had significant implications for the proposed amendment to the structure plan that had been submitted to him. The Secretary of State declined, however, to call in the Stannifer/Sainsbury application. The petitioners sought to subject that decision to judicial review on the ground inter alia that it was irrational of the Secretary of State to decide to determine the petitioners' appeal himself for the reason stated, yet refuse to call in the competing application. In the Inner House it was held that the Secretary of State's decision was not irrational because (1) the petitioners' appeal and the Stannifer/Sainsbury application were not related in any material way, and a decision as to how one procedure should be handled did not of itself affect the other, and (2) the petitioners, as unsuccessful applicants, had no right of appeal against the grant of the Stannifer/Sainsbury application, even though the applications were in direct competition with each other. The prejudice that the petitioners suffered as a result of the grant of the Stannifer/Sainsbury application was of a sort inherent in the planning process in the absence of a right of appeal against the grant of a rival application, and therefore did not support a case of procedural unfairness. Mr Menzies cited, in particular, two passage in the opinion of Lord Coulsfield, the first at 509K:

"In my view there can be no question of saying that the Secretary of State's decision not to call in the [Stannifer/Sainsbury] application was irrational in the sense in which that term is used in administrative law. It is possible that a person considering what happened in a broad way, without attending to the details of the planning process, might feel that it was surprising that one applicant should be refused planning permission on the ground that his proposal was contrary to the structure plan, while another was granted planning permission despite the structure plan, the structure plan itself being under review at the time. In my opinion, however, any such feeling of surprise arises as a consequence of looking at separate procedures as if they were related, whereas on the proper approach they are not related in any material way and a requirement or decision as to how one procedure should be handled does not of itself affect another. An unsuccessful applicant has no right of appeal against a grant of planning permission made in favour of a successful applicant, even if the applications are in direct competition with each other and even if the successful application has to be notified to the Secretary of State";

and the second at 510H:

"There remain the arguments based on procedural fairness ... The difficulty about that part of the petitioners' case is that, one way or another, the petitioners have to find a reason for saying that it is procedurally unfair not to give them a further opportunity to contest the question whether or not the [Stannifer/Sainsbury] application should be granted in preference to theirs; in other words, they must find a reason for obtaining the very right of appeal which the legislation denies to them. The prejudice of which the petitioners complain arises from the grant of planning permission to their competitors, who may secure a commercial advantage by proceeding with their project ahead of any project for which the petitioners may ultimately obtain permission. Prejudice of that kind, however, is inherent in the planning process, in the absence of any right of appeal against a grant of planning permission in favour of a rival applicant and I do not think that the fact that prejudice has occurred is a pointer to any unfairness in the way in which the petitioners' application has been dealt with."

Mr Menzies also made reference to passages in the opinion of Lord Caplan at 259A and 259D-G, and 261B.

[13] Mr Menzies submitted that in order to qualify an interest to seek review of the Council's decision the petitioners required to show that they had suffered prejudice. He referred in that connection to my own decision in Walker v City of Aberdeen Council 1998 SLT 427, and in particular to the following passage in my opinion (at 432D):

"Counsel for the city council was, in my opinion, correct in submitting that it was not enough for the petitioner simply to show that the planning authority had acted unreasonably ..., and that it was necessary for the petitioner also to show that he had been prejudicially affected by that unreasonable act. That is so, in my view, because unless the petitioner has been prejudiced by the unreasonable decision, he has no interest to challenge it."

The only prejudice upon which the petitioners founded was the sort of commercial disadvantage that, as Lord Coulsfield pointed out in Asda Stores, was inherent in the planning system when a rival application was granted.

[14] Mr Martin adopted Mr Menzies submissions and added to them. His submission was that since the petitioners had made no representations against the Sainsbury application, within the time limit contemplated in section 38(1), they had no title to seek judicial review of the Council's decision on that application. That point was one of pure title. The fact that there was pending a conjoined inquiry into the petitioners' deemed refusal appeal and the SET appeal did not alter the position. The dependence of the conjoined inquiry might (arguably, although he did not concede the point) support the petitioners' interest, but could have no effect on title. In Uprichard title had not been disputed, because the petitioners in that case had made timeous representations against the application. Moreover, it was not enough to support the petitioners' interest that the decision resulted in incidental commercial prejudice to them. Their interest was no more than to have their own application dealt with fairly and in accordance with the law. Reference was made to Bondway Properties Limited v City of Edinburgh Council 1999 SLT 127. In that case the holders of outline planning permission for a city centre leisure development sought judicial review of a grant of detailed planning permission for a similar development on the edge of the city centre. It was contended that the grant proceeded on reports which failed to have adequate regard to NPPG8 (Revised), in that there had been a failure properly to assess the remaining potential for such development in the city centre, which should have been given preference. It was held inter alia that NPPG8 (Revised) was not directed at the protection of individual commercial interests and the petitioners accordingly had no interest to sue. I note that in that case it was conceded that the petitioners, as applicants for detailed planning permission in respect of the city centre site, had title to sue (131I, 132F), and that the argument on which the respondents succeeded related to the petitioners' interest to sue.

[15] Mr Hodge for the petitioners argued that, in maintaining that the petitioners had both title and interest to seek judicial review of the Council's decision of 25 October 1999, he did not found on their status as commercial competitors of Sainsbury or SET. He sought to found on the petitioners' status as appellants in an appeal to the Scottish Ministers which was conjoined with the SET appeal. He acknowledged that the petitioners had not objected to or made representations in respect of the Sainsbury application, but submitted that section 38 did not confine the Council to taking account only of representations made within the timescale contemplated in that provision. The petitioners had made application on 29 September 1999 to have the Sainsbury application called in for consideration along with the SET appeal, but what was of more significance was that the petitioners were parties to the conjoined appeals. SET had asked for that conjunction, and had at the same time intimated that they wished to make reference to the Sainsbury application. SET were thus seeking to rely not only on their own application but also on the Sainsbury application in support of the proposition that development of the Claypotts site should be given planning permission. Asda Stores was distinguishable, because there the question was whether it was fair and reasonable of the Secretary of State to refuse to call in the Stannifer/Sainsbury application to enable the competing applications to be considered together, whereas here the issue of competition between the petitioners' site and the Claypotts site was already before the Scottish Ministers by virtue of the SET appeal. It was material that SET had sought, in that context, to rely on the Sainsbury application. The petitioners' complaint was that the conjoined inquiry into the petitioners' appeal and the SET appeal had been subverted by the unreasonable actings of a party to those appeals, the Council, in granting the Sainsbury application. The petitioners had suffered real prejudice as a result of those actings. If they had known that the Council would grant the Sainsbury application, they would have had to think long and hard about agreeing to the conjunction of their appeal with the SET appeal. Their proposal and the proposals by SET and Sainsbury in respect of the Claypotts site were competitors not merely in commercial terms, but also in planning terms. It was not merely the case that development of both the petitioners' site and the Claypotts site was impracticable in commercial terms. The grant of planning permission to Sainsbury in respect of the Claypotts site prejudiced the petitioners' application in planning terms. The grant of the former permission would have a material impact on the likelihood of the grant of permission in respect of the latter.

[16] Mr Hodge cited the classic statement of the law on title to sue contained in the speech of Lord Dunedin in D. & J. Nicol v Dundee Harbour Trustees 1915 SC (HL) 7, where his Lordship said (at 12):

"By the law of Scotland a litigant, and in particular a pursuer, must always qualify title and interest. Though the phrase 'title to sue' has been a heading under which cases have been collected from at least the time of Morison's Dictionary and Brown's Synopsis, I am not aware that anyone of authority has risked a definition of what constitutes title to sue. I am not disposed to do so, but I think it may fairly be said that for a person to have such title he must be a party (using the word in its widest sense) to some legal relation which gives him some right which the person against whom he raises the action either infringes or denies."

Mr Hodge referred also to Clyde and Edwards on Judicial Review § 10.05 in which the following observations are offered:

"The legal relationship which provides the title may be of a contractual character or of a much wider and less formal kind. ... But in many cases the obligation to comply with the law carries with it a right on the part of anyone affected to challenge a failure in such compliance."

The circumstances from which Mr Hodge sought to derive the petitioners' title to challenge the Council's decision of 25 October 1999 were that the petitioners were appellants in a planning process (the conjoined appeals) which was to be the subject of an inquiry conducted by a reporter; the Council were parties to that process as respondents; and they (the Council), by acting in a way which the petitioners sought to show was in the circumstances unreasonable, had prejudiced the proper disposal of the petitioners' appeal. One party to the appeal process had, by unreasonably granting the Sainsbury application, undermined the fair determination of the petitioners' appeal. In Mr Hodge's submission, unreasonable actings on the part of one party to an appeal which rendered that appeal pointless conferred on the other party title to challenge those unreasonable actings. The petitioners, he submitted, had a proper interest in ensuring that their appeal was properly determined. Asda Stores was readily distinguishable, because in that case there was no conjoined appeal. Mr Hodge accepted that in general an unsuccessful applicant has no right of appeal against a successful competing application, but submitted that that was not the nature of the petitioners' case. They were challenging the Council's decision, not as the favourable disposal of a competing application, but as an unreasonable step which undermined the fair disposal of their own appeal.

[17] It is, in my view, clear that the statutory scheme regulating town and country planning affords no right of appeal against a grant of planning permission to the unsuccessful applicant in a competing application. It does not follow, however, in my view, that there are no circumstances in which an unsuccessful applicant may be entitled to bring proceedings for judicial review of the decision of the planning authority in favour of the successful applicant. There are cases (of which Uprichard is an example) in which title to bring proceedings for judicial review has been conceded in favour of a party who has made timeous representations against the ultimately successful application. I see no reason why such title should not be recognised in cases where the maker of such representations happens to be the applicant in respect of a competing application. It would, however, in my view be going too far to conclude that such title can only be recognised where representations against the successful application have been timeously made in terms of section 38(1) of the 1997 Act. It is not, in my view, difficult to figure a case in which no representations have been made because a procedural irregularity has deprived the potential objector of the opportunity of making such representations. In such a situation, it seems to me, the thwarted objector may well be entitled to challenge by judicial review the acts or omissions that prevented him from making timeous objection. It therefore seems to me to be important not to express too widely rules excluding title to bring proceedings for judicial review against the grant of a competing application for planning permission. The present petitioners cannot claim title to bring this petition on the ground that they are objectors to the Sainsbury application who made timeous representations under section 38(1), but the fact that they have made no such representations does not in my view per se demonstrate that they have no such title. That fact removes one possible basis on which they might claim title, but does not exclude the possibility that they may validly claim title on another basis.

[18] It is, in my view, clear that the mere fact that a petitioner for judicial review of a grant of planning permission is a competing applicant for planning permission will not be sufficient to confer title to seek such review. In the present case the petitioners' application and the SET and Sainsbury applications are clearly competitors. It is matter of admission (although the language of the various respondents' admissions varies) that the applications are mutually exclusive, in the sense that there is no scope for development of a retail foodstore on more than one of the competing sites. As between the SET and Sainsbury applications that is a consequence of the substantial overlap between the sites. As between the SET and Sainsbury applications on the one hand and the petitioners' application on the other it is a consequence of the proximity of the respective sites. The incompatibility, in my view, goes beyond mere commercial incompatibility, in the sense that no developer would proceed with a superstore on one site if there was already one on the other. There is also, in my view, incompatibility in planning terms, in the sense that development of two superstores so close to each other would have unacceptable planning consequences. If, however, the petitioners relied only on those considerations as the basis for title to challenge the grant of permission in favour of Sainsbury, there would in my view be substance in the plea of no title to sue.

[19] It seems to me that the question which falls to be determined in the present case is whether the existence of the conjoined appeal, in which the petitioners and SET are appellants, and the Council are respondents, is sufficient to give the petitioners title to challenge the validity of the Council's decision of 25 October 1999, not as a mere favourable decision on a competing application, but as a step by the Council which undermined the fair determination of the petitioners' appeal. If that question is to be answered in favour of the petitioners, it seems to me that there are two hurdles which they must surmount. They must show that the Council's decision to grant the Sainsbury application was one which no reasonable planning authority would in the circumstances have taken. But they must also, in my view, show that the decision was one which was prejudicial to the interests of the petitioners, not merely in the commercial sense that the grant of permission in favour of Sainsbury adversely affected the prospect that the petitioners' appeal, if successful, would open the way to a commercially viable development, but in the planning sense that in a way which infringed the petitioners' rights it undermined and rendered pointless the conjoined appeal, pending before the Scottish Ministers, to which the Council as well as the petitioners and SET were parties. It is, in my view, important to recognise that the petitioners must succeed on both of those points. If the Council's decision cannot be said to have been unreasonable, it cannot be challenged by the petitioners, however much it may have prejudiced the petitioners' position, whether in planning terms or merely in commercial terms. If, however, the decision was unreasonable, I am of opinion that the petitioners may have title to challenge it. Their title is to challenge it, not as a decision in favour of a competitor, but as a decision by a party to their pending appeal which undermines that appeal and renders it pointless. Whether that challenge is well-founded on its merits remains to be considered, and I do not consider that it would be sound to hold ab ante that the petitioners have no title to make it. I am of opinion that this is a case in which the question of title and the question of the merits are so interdependent that it is appropriate to reserve the decision on title until the merits have been examined.

[20] In reaching that conclusion I have had regard to Asda Stores. Although that case was relied upon by the respondents in support of their plea of no title to sue, the decision was not concerned with a plea of no title, but with the merits of an allegation that it was unfair or irrational to refuse to call in a competing application, so that it could be considered along with the decision under appeal. I do not regard Asda Stores as vouching the proposition that the present petitioners can have no title to insist in this petition. The involvement of the Council in the conjoined appeals as respondents in my view places them in the sort of legal relation with the petitioners that was contemplated by Lord Dunedin in D. & J. Nicol. As a result their title to challenge the validity of the Council's decision of 25 October 1999 will, in my view, depend on whether the grounds of challenge founded upon demonstrate an infringement of that legal relation.

[21] I am of opinion that the question of whether the petitioners have a proper interest to insist in this petition must also be reserved until the merits have been examined. Mr Menzies' argument against the petitioners' interest to sue turned on the proposition that mere commercial disadvantage was not the sort of interest that the law recognised in the planning context. As I have indicated, however, I do not consider that the interest which the petitioners seek to protect in this process is a mere commercial interest in not having a competitor's application succeed. Their interest is in not having their own appeal process subverted. Mr Martin, as I noted him, accepted that the petitioners have an interest to have their own application determined fairly and in accordance with the law. That, it seems to me, is the interest which they seek to protect by challenging as unreasonable the Council's decision to grant the Sainsbury application. If they are right in their contention that the Council's decision on the Sainsbury application undermines their right to a fair disposal of their appeal, their interest is in my view clear. Their interest, however, it seems to me, stands or falls with the merits of their challenge to the decision of 25 October 1999.

 

Unreasonableness

[22] Mr Hodge submitted that the Council's decision of 25 October 1999 was unreasonable on what he said were two separate but related grounds. The first ground was, in summary, that it was unreasonable of the Council, when the principle of development on the competing sites was in issue in the conjoined appeals by the petitioners and SET, to make a decision in favour of another application in relation to one of the competing sites while the conjoined appeals remained in dependence before the Scottish Ministers. The second ground was that, given the reasons stated by the Council for refusal of the SET application, it could be seen that they had been led into granting the Sainsbury application by inaccurate and misleading information which drew distinctions between the Sainsbury and SET applications which did not truly exist. There was in the circumstances no rational explanation for the grant of the Sainsbury application despite the refusal of the SET one.

[23] In support of the first of those grounds Mr Hodge cited James Aitken & Sons (Meat Producers) v City of Edinburgh District Council 1990 SLT 241. In that case an application had been made for planning permission for a housing development on land next to that occupied by the petitioners. The petitioners objected to the application. The planning authority did not deal with the application timeously and the applicants appealed to the Secretary of State in respect of the deemed refusal of their application. A reporter was appointed to conduct the appeal. The appeal proceeded by way of written submissions. In due course the reporter issued his decision refusing the appeal. While the appeal was pending the applicants lodged a further application for planning permission, which was described as a "duplicate application". The petitioners objected to that application too. After some amendment of the second application, it was granted, some ten days before the reporter made his decision on the appeal. The petitioners sought judicial review of the decision granting the second application. They argued inter alia that the planning authority had acted unreasonably in granting the second application while the first was under appeal. That submission was upheld. Lord Dervaird recorded the petitioners' submission in the following terms (at 242K):

"... the petitioners contended that ... it was plainly unreasonable for the local planning authority to come to a view on that matter [the principle of housing development on the site in question] in the present case before they could have the benefit of the views of the Secretary of State on the very issue of principle involved. It was the duty of the local planning authority in regard to any planning application to have regard to all material considerations. By acting as they did they deprived themselves of access to what would have been, on any view, a very material consideration, namely the view of the Secretary of State in relation to that issue of principle. There was no suggestion in the present case that there had been any alteration in circumstances relating to the principle of housing in the locality nor any other ground put forward which would suggest that circumstances had so altered as to affect the views which would be appropriate. So to act as they had done in the circumstances of the present case was to act in a way that no reasonable authority would have acted and to render the decision one which should be quashed."

Having recorded that the planning authority argued that it did have regard to the material consideration that the issue of principle was before the Secretary of State for his consideration, Lord Dervaird expressed the following opinion (at 243B-E):

"In my opinion it is clear that the action of [the planning authority] in proceeding to dispose of the second application while the appeal in relation to the first application was as yet undecided, was unreasonable in the sense in which that word is used in the Wednesbury case ... To say that the first respondents had regard to the material consideration that the matter was before the Secretary of State on appeal is, in my opinion, a travesty. That the appeal on the first application was before the Secretary of State could only be a material factor in relation to the second if the outcome of that appeal was material to the deliberations of the district council in relation to the application before them. Otherwise it had and could have no materiality in relation to this matter at all. In these circumstances, to come to a determination in, what I was invited to hold was, the knowledge that a material matter was not yet available for their consideration which would focus on the issue of principle raised by both applications ... was in my opinion, to act in a manner in which no reasonable authority charged with the duties under the planning Acts would have acted."

[24] Mr Hodge also referred to two further cases in which the line of authority which began with James Aitken was further developed. The first of these was Trusthouse Forte (UK) Limited v Perth and Kinross District Council 1990 SLT 737. In that case there were over a period of time five applications for planning permission which were in substantially the same terms. The planning authority granted planning permission on the fifth application while an appeal against refusal of the second application was pending. The reporter subsequently granted planning permission on the appeal, but subject to restrictive conditions. Lord Kirkwood, in holding that the planning authority's grant of planning permission in respect of the fifth application was unreasonable, said (at 741D-H):

"Approximately two weeks after the public inquiry [into the second application] had been held, the district council decided to grant the fifth application. It granted that planning permission in spite of the fact that the same issue was before the Secretary of State's reporter and had been the subject of a two day public inquiry at which the interested parties, including the district council and the various objectors, had been represented and had had the opportunity of making their submissions to the reporter. ... In the particular circumstances of this case I have reached the conclusion that the appeal to the Secretary of State in relation to the second application had reached such an advanced stage that it was unreasonable for the district council to grant the fifth application at the time it did, particularly as that grant of planning permission effectively rendered abortive the proceedings which had taken place at the two day public inquiry and the planning permission granted by the Secretary of State's reporter. I am reinforced in the conclusion which I have reached by the views expressed by Lord Dervaird in [James Aitken]. It seems to me that once the public inquiry had been held, all the interested parties had had an opportunity of making submissions to the Secretary of State's reporter and the reporter's decision letter was awaited, the outcome of the appeal had become a material consideration to which the district council had to have regard when it considered the fifth application."

The second further case was Pickering v Kyle and Carrick District Council (Lord Penrose, 20 December 1990, unreported). The petitioners were objectors to a proposed housing development. Two successive applications for planning permission were refused as not being in accordance with the local plan. Those decisions were appealed to the Secretary of State, a reporter was appointed and a date was fixed for a public inquiry. Shortly before the inquiry was due to take place, the applicants lodged a third application. The appeals were sisted. The third application was then granted and the appeals were abandoned. The petitioners sought to challenge the decision to grant the third application. For the planning authority it was argued that as a matter of law it was only after the issue of principle had been surrendered to the Secretary of State for decision, i.e. after evidence had been led and closing submissions made in the inquiry, that it became unreasonable for the planning authority to determine a duplicate application. Lord Penrose rejected that submission. He said:

"In my opinion there are no rules which can properly be elaborated by reference exclusively to the stage proceedings may have reached. ... The fact that there has been an appeal, and the fact that there may have been representations will not be sufficient in themselves to inhibit the local authority from proceeding to grant a fresh application. But the issues raised in the appeal or in the representations may well have that effect."

His Lordship noted that in James Aitken there was nothing to indicate that Lord Dervaird was influenced by the stage reached in the appeal proceedings; rejected a submission that Lord Kirkwood in Trusthouse Forte was properly to be construed as having formulated the rule contended for; and concluded that:

"it cannot be an answer to an otherwise clear case of Wednesbury ... unreasonableness to say that the appeal has not reached some particular stage at which parties had closed their cases before the Secretary of State or his reporter. The question must be one of circumstances in the truest and broadest senses."

[25] Mr Hodge submitted that on a proper application of that line of authority it was, in the circumstances of this case, unreasonable on the part of the Council to grant the Sainsbury application while the joint inquiry into the petitioners' appeal and the SET appeal was pending. The petitioners' appeal was in respect of deemed refusal, but the SET appeal was against a decision to refuse the SET application. The reasons for refusal identified issues relating to retail impact and compliance with NPPG8, and traffic impact and compliance with Local Plan policies and NPPG17. These were points which bore on the acceptability in principle of a superstore development in the area in question. The petitioners' appeal and the SET appeal had been conjoined, because the sites were mutually exclusive, and raised the same points of principle. As a result of the conjunction of the appeals, disposal of the petitioners' appeal had been delayed. There was local opposition to all three proposals, and thus parties interested in the matter other than the applicants and the Council. In those circumstances to grant the Sainsbury application without waiting for the outcome of the conjoined inquiry was a course that no reasonable planning authority would have followed.

[26] Mr Hodge then turned to the second aspect of his argument on unreasonableness. Although he submitted that in the circumstances the dependence of the conjoined appeals was sufficient to render the decision in favour of the Sainsbury application unreasonable, irrespective of whether the Sainsbury application was materially different from the SET application, he advanced the further argument that, in so far as the Council had sought to justify that decision by reference to such differences, some of the alleged differences did not truly exist, and the others (such as they were) were dwarfed by the striking similarities. There were no such differences as would render reasonable the Council's volte-face. In developing that submission, Mr Hodge embarked on an examination of the Sainsbury application in comparison with the SET application. The report of the Director of Planning and Transportation on the Sainsbury application (No. 6/10 of process), after reminding members of the Council of the dependence of the conjoined appeals, contained the following passage (at page 33):

"The current application, which is the subject of this report, is materially different from that previously submitted by [SET] in that:-
  1. the current applicant is the intended operator of the food superstore, Sainsbury's Supermarkets Ltd, rather than [SET].
  2. the current application site is some 7 hectares in area, which is more than two hectares larger than the previous application site which was 4.67 hectares.
  3. the current application site includes a foodstore providing 5671 square metres of gross floor area as opposed to the previous application for 5120 square metres.
  4. the proposed vehicular access and egress arrangements for the current application are significantly different to that in the previous application in that they involve the creation of a new junction onto Arbroath Road and the closing off of Tom Johnstone Road.
  5. the current application expressly excludes the provision of any concession units within the foodstore whereas the previous application made provision for a sub-let unit.
  6. the current application includes the provision of 5 industrial units providing 2787 square metres of gross floor area as opposed to the previous application for 3 industrial units providing the same floorspace."

Mr Hodge relied upon commentaries on that passage in the report provided in affidavits by the petitioners' planning consultant, Philip John Pritchett (No. 6/20 of process) and their transportation consultant, Neil Stewart (No. 6/21 of process). The points which they made (numbered to correspond with the points made in the report) can be summarised as follows:

  1. There was no difference in the intended operator. The SET application proposed Sainsbury as the operator of the superstore. In any event the identity of the operator was not a material consideration for planning purposes.
  2. There was nothing in the reasons for refusal of the SET application that related to site size. There was no reason to regard the additional area, which was not to be occupied by built development, as a material aspect of the Sainsbury application. In any event the additional area was shown outlined in blue on the plan relating to the SET application (No. 7/1 of process).
  3. The SET application was refused in part because of the impact it would have on the vitality and viability of local shopping centres. Prima facie a larger store would have greater impact. There was nothing in the report to indicate why the fact that the store proposed by Sainsbury was larger changed the planning case for the better. If the change in size was material, there should have been a request for a retail impact assessment, but there was none.
  4. The transport impact assessment produced in connection with the SET application included in site access options both the closure of Tom Johnstone Road (see No. 6/18/5 of process, page 10 and Figure 4.1) and the creation of a new junction onto Arbroath Road (Figure 4.1).
  1. The presence of a concession unit in the SET proposal was not mentioned in the reasons for refusal. It was not treated as a material consideration in the report on that application. The unit contemplated was, in any event, only 186 square metres out of 5120, viz. 3.6%, and so could not have constituted a material factor. Mr Hodge augmented that response by submitting that if the presence of the sublet unit had been seen as a difficulty in the SET proposal, that could have been overcome by a condition against such a unit.
  2. The industrial floorspace in the two applications was identical. The applications were in outline. There was no indication in the reasons for refusal of the SET application that the fact that the industrial floorspace was proposed in three units was regarded as material. Nor was there any indication in the report on the Sainsbury application that the proposed division of the industrial floorspace into five units was material.

The differences identified in the report thus either did not truly exist or were of no materiality, and afforded no basis for departing from the reasons which had led to the refusal of the SET application.

[27] Mr Menzies submitted that it could not be affirmed that no reasonable planning authority could have reached the conclusion that the Sainsbury application was materially different from the SET application, or that no such authority would have taken a decision on the Sainsbury application that the Council did take on 25 October 1999. He emphasised that the issue was not whether the court, if taking the decision, would have reached a different conclusion from the one reached by the Council. The court could only interfere if the Wednesbury test of unreasonableness was satisfied. In that connection he referred to the well known and trenchantly expressed reformulation of that test in the speech of Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 347 at 410. He referred also to the related point made in the speech of Lord Hoffmann in Tesco Stores Limited v Secretary of State for the Environment [1995] 2 All ER 636, where his Lordship said (at 657f-h):

"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. 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.

The distinction between whether something is a material consideration and the weight which it should be given is only one aspect of the fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision."

Mr Menzies related that point to the James Aitken line of authority by citing Henderson v Argyll and Bute Council 1998 SLT 1224. In that case an application was made for planning permission to build a coffee shop incorporating a craft shop in a conservation area. The application was refused, and the applicants appealed to the Secretary of State. They then made a further application in respect of the same site for planning permission to build a coffee shop on a smaller scale and without a craft shop. Before the appeal was determined, the planning authority granted the second application, subject to certain conditions designed to minimise the impact on the conservation area. An individual who had objected to both applications sought reduction of the permission granted in respect of the second application, arguing that the outcome of the appeal was a material consideration that ought to have been taken into account in determining the second application. It was held that the planning authority had been entitled to take the view that the two applications were materially different, and were not bound to await the outcome of the appeal before determining the second application. Lord MacLean (at 1229F-H, 1229K, and 1230B-C) said:

"Another way of posing the fundamental question is to ask whether, in the circumstances of the case, not to await the decision of the Secretary of State's reporter on the appeal was to act in a manner in which no reasonable authority ... would have acted. The resolution of the question must depend upon a comparison of the two applications for planning permission, viewed broadly and not, as it were, weighed in too fine a scale. I do not think that counsel for the first respondents was well founded when he said that only if the two applications were to be regarded as identical or virtually identical, could the planning authority be considered to have acted unreasonably in making its decision and not awaiting the outcome of the appeal. ...

[I]f there is an absence of any material difference between the applications, the planning authority would act unreasonably if it proceeded to decide the later application while the earlier application was under appeal. ...

It seems to me that it was open to the planning committee in [the] circumstances, bearing all the considerations in mind which were advanced before them by the planning officer, to take the view which they obviously must have taken, that they were dealing with an application that was materially different from the first application which had been refused. In my opinion, therefore, the outcome of the appeal against the refusal of the first application for planning permission was not a material consideration which the first respondents ought to have awaited and taken into account before reaching the decision on the second application."

Mr Menzies submitted that whether the decision on the pending conjoined appeals was a material consideration in relation to the Sainsbury application depended inter alia on whether there were material differences between that application and the applications under appeal, and that was a matter of planning judgement for the Council. Mr Menzies also submitted that another factor bearing on whether it was reasonable to decide the Sainsbury application without waiting for the outcome of the conjoined appeals was the stage they had reached at the material date. In both James Aitken and Trusthouse Forte the appeals had reached a stage at which all that remained to happen was the issue of the decision. Here the conjoined appeals had not, at the date of the Council's decision, reached inquiry.

[28] So far as the differences between the SET and the Sainsbury applications were concerned, Mr Menzies relied on an affidavit (No. 7/11 of process) by Gordon Stewart Reid, the planning officer who dealt with the Sainsbury application. Mr Reid drew attention to the fact that in addition to the passage at page 33 of No. 6/10 of process quoted in paragraph [26] above, that report also dealt at pages 45 and 46 with differences between the proposals and how the changes met points raised in the reasons for refusal of the SET application. Mr Menzies accepted that the identity of the applicant was not a material planning consideration. Mr Reid maintained that the report had not suggested that it was. So far as the increase in site area was concerned, Mr Reid maintained that the extra land was of strategic importance. It was required for the re-siting of the restaurant, and for the formation of the new access road to Arbroath Road. It was also necessary to allow for accommodation of a flood plain. The third condition attached to the decision in favour of the Sainsbury application required a flood impact assessment. That had now been carried out and confirmed that the additional land was required to permit relocation of the industrial units so as to accommodate the flood plain. Mr Menzies accepted that the flood protection measures had not been mentioned before the committee, and that the changes required in light of the flood impact assessment post-dated the decision of 25 October. So far as the increase in the size of the foodstore was concerned, Mr Reid maintained that it was a material difference, and said that the retail impact of the proposal had been examined in the case put forward by Sainsbury, and that it was considered that there was scope for a foodstore of the proposed size in the area. As Mr Menzies put it, the larger store met the shortfall in retail provision better. Mr Reid also made the point that the provision of a bus link proposed by Sainsbury helped to address concerns about viability and vitality. So far as access arrangements were concerned, Mr Reid pointed out that the new access to Arbroath Road was within the application site for the Sainsbury application, whereas the reference to such an access in the documents relating to the SET application was as an option only, and was outwith their application site. From the Council's point of view, it was preferable to have the access provided within the application site, thus avoiding the need for a Grampian condition (Grampian Regional Council v City of Aberdeen District Council 1984 SLT 197). The question of the concession unit in the SET application had been raised by objectors and the local member before the committee, and the exclusion of such a unit from the Sainsbury application had been a response to that concern, and was therefore a material change. Mr Menzies submitted that Mr Hodge was in error in suggesting that any perceived difficulty about the inclusion of a concession unit in the SET proposal could have been overcome by a condition. A condition could not competently exclude a material part of a development for which application had been made (Scottish Planning Encyclopaedia, paragraph A.4027) As regards the industrial floorspace, Mr Reid pointed out that the report acknowledged that both applications proposed the same aggregate amount. The change from three to five units was thought likely to yield greater employment advantage. The requirement for five units to be completed before the opening of the foodstore was part of the proposed section 75 agreement. Despite seeking to answer point by point, in the way that I have summarised, the challenge put forward by Mr Hodge to the materiality of the changes, Mr Menzies submitted that it was not for the court to seek to resolve the differences of planning opinion between Mr Pritchett and Mr Stewart on the one hand and Mr Reid on the other. It could not

[29] Mr Martin concentrated in his submission in posing the question: what precisely is the nature of the material consideration, in terms of section 37(2) of the 1997 Act, that is said to arise from the dependence of the conjoined appeals, and is said to have rendered it unreasonable on the part of the Council to grant the Sainsbury application? It was not, he suggested, the mere dependence of the appeals. Nor was it the fact that evidence would be led at the joint inquiry. The outcome of the appeal perhaps came closest to constituting a material consideration. If so, the imminence (or lack of imminence) of the appeal decision was material. It was important to notice, however, that the decision of the Scottish Ministers on the appeals would be no more than the exercise of an administrative decision-making power by a statutory authority distinct from the local planning authority. It was questionable, he submitted, whether an exercise of decision-making discretion by one authority in one case could constitute a material consideration for the purpose of the determination of another case by a different decision-making body. Every case depended on its own individual merits. In James Aitken it had been a matter of concession that the dependence of the appeal (and therefore its outcome) was a material consideration for the determination of the second application (see Trusthouse Forte at 741B). In the present case no such concession was made by Sainsbury. Reference was also made to City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 at 45B, and to Asda Stores at 510D. It could not be said, in the circumstances of the present case, that by proceeding to determine the Sainsbury application without awaiting the outcome of the conjoined appeals the Council had ignored a material consideration.

[30] In responding to the submissions made on behalf of the Council and Sainsbury, Mr Hodge recognised that there would ordinarily be a presumption that the members of the Council had acted regularly, and therefore that in deciding to grant the Sainsbury application they had proceeded on information that led them to the conclusion that the circumstances of that application were different from those of the SET application that they had refused a few months earlier in ways that justified the change of view. In the circumstances of this case, however, there was little room for such a presumption. Given the misleading and inaccurate identification of differences between the two applications in the report by the Director of Planning and Transportation (No. 6/10 of process), and the absence of anything material in the identified differences to alter the view expressed in the reasons for refusal of the SET application, it was for the Council to explain why the volte-face had occurred. That they had failed to do. The points made in the report at pages 45 and 46, to which Mr Reid referred in his affidavit, in so far as not already dealt with, were not new. For example, the points made in paragraphs 1 and 2 on page 45 had been made in the corresponding report in relation to the SET application (see No. 6/4 of process, page 66). So far as the bus link was concerned (paragraph 3), that too had been raised in relation to the earlier application and the applicants had said they would discuss the matter with the bus company. The issue of the sublet unit was not mentioned in paragraph 4. There was no evidence to support the suggestion in paragraph 5 that the road junction alterations would improve traffic flow through the surrounding road system. The flood plain point was not identified in the way now put forward at the time of the decision. It had been mentioned in exactly the same terms in No. 6/4 of process (page 67) as in No. 6/10 of process (page 42).

[31] Mr Hodge also drew attention to the time scale within which the Sainsbury application had been processed. The pre-inquiry meeting in respect of the petitioners' appeal took place on 3 August; statements of case were due by 31 August, productions by 5 October, and precognitions by 19 October; and the inquiry was due to commence on 2 November. Within that three month period, the Sainsbury application was presented and determined in less than six weeks. That was undue haste, particularly in light of the dependence of the conjoined appeals.

[32] It is, in my opinion, necessary to examine with some care the proper scope of the principle illustrated in the line of authority comprising James Aitken, Trusthouse Forte, Pickering and Henderson, in order to determine when the challenge to the reasonableness of a grant of planning permission pending a related appeal will be available and when it will not. The cases all have in common certain features, namely:

  1. that an application was made for planning permission to develop a particular site;
  2. that that application was refused or deemed to be refused, and an appeal to the Secretary of State (now the Scottish Ministers) was taken against such refusal;
  3. that while the appeal was pending a further application was made by the same party to develop the same site;
  4. that before the appeal was determined, the later application was granted; and
  5. that the grant of planning permission was challenged by a party who had objected both to the application under appeal and to the one which was granted.

Against that background it seems to me that a number of points may be made.

  1. It seems to me to be clear that if a challenge to the validity of a grant of planning permission is to be made on the basis of this line of authority, there must be pending at the time of the grant an appeal into another application for planning permission in respect of the same site. The argument could not in my view arise if the appeal and the grant did not relate to the same site. It is, in my view, interesting to note that in the present case the comparison which Mr Hodge sought to make was between the SET application and the Sainsbury application, not between the petitioners' application and the Sainsbury application. That seemed to me to be tacit recognition of the fact that the line of argument could only arise where the decision under challenge and the pending appeal related to the same site. In formulating the point in that way I do not mean to say that the application site and the appeal site would have to be identical. Some variation in site boundaries could be accommodated. The inclusion of extra land in the site for the second application, or the exclusion from it of some land that had been included in the appeal site, would not necessarily exclude the application of the principle. It would, in my view, be a matter of degree. It would, however, be a significant extension of the argument, going far beyond the existing authorities, if it were held to be available in a case in which the site in respect of which permission was granted was not at least in part the site in respect of which the appeal was pending.
  2. For the argument to be available, the application in respect of which permission was granted need not be identical with the application which was the subject of the pending appeal, but the charge of unreasonableness may be resisted it the application which was granted was materially different from the application in respect of which the appeal was pending (Henderson per Lord MacLean at 1229F-L). What degree of difference between the applications will suffice to defeat the charge of unreasonableness may be a matter of considerable difficulty. Henderson was, perhaps, a clear case.
  3. The argument is available where the appeal was against a deemed refusal, as well as where the planning authority had actually made a decision to refuse permission (James Aitken, where the appeal was against a deemed refusal).
  4. There is no fixed requirement that the appeal process should have reached any particular stage before the argument becomes available; in particular, it is not the case that the argument only becomes available once the appeal has reached the stage that all evidence has been led and all submissions made, leaving only the decision to be taken (Pickering). That does not mean, however, that the stage which the appeal has reached is of no relevance. That consideration is part of the whole circumstances which fall to be taken into account in deciding whether the charge of unreasonableness has been made out.
  5. Although in all the cases the applicant in the duplicate application was the same as the applicant in the application under appeal, I do not consider that the argument is only available when that is so. It seems to me that since planning permission is not personal, but effeirs to the land, there is no need for the two applications to be by the same applicant. In any event, it is clear in the present case that SET and Sainsbury are allies rather than competitors in seeking permission for the development of a superstore on the Claypotts site.
  6. The existing authorities do not vouch the availability of the argument to any party other than one who has objected to both applications.

[33] James Aitken and Trusthouse Forte proceeded on the basis that the unreasonableness of the planning authority's decision to grant the subsequent application pending the appeal lay in failure to take into account a material consideration, namely the outcome of the appeal. That, too, was the way in which the point was formulated by the petitioners in the present case. In my view, however, there is a danger of artificiality in analysing the nature of the unreasonableness in that way. It seems to me that it may in some circumstances be possible to say simply that the planning authority acted unreasonably, having first decided to refuse permission, in then, when the parties concerned were proceeding through the statutory appeal process against that decision, deciding differently on a second application in broadly the same terms. It is not in my view impossible to figure circumstances in which it might be said not to be unreasonable to grant a duplicate application pending an appeal into the refusal of an earlier application. I have in mind, for example, the situation where a second application is granted very shortly after a deemed refusal appeal is taken and before there had been time for any material progress to me made in the appeal process. It seems to me that the proper approach is to bear in mind that unreasonableness is always a matter which depends on consideration of the whole circumstances of the case (Trusthouse Forte per Lord Kirkwood at 741B; Pickering per Lord Penrose).

[34] Leaving aside for the present, therefore, first the question of whether the charge of unreasonableness can be resisted on the ground that the Sainsbury application was materially different from the SET one, and secondly the question whether the fact that the petitioners are a party to the joint inquiry into their own appeal and the SET appeal enables them to challenge the reasonableness of the grant of the Sainsbury application, I am of opinion that the Council's decision to grant the Sainsbury application without waiting for the outcome of the SET appeal was prima facie unreasonable. The two applications were in relation to what was in substance the same site. They were, on a broad view of the matter, applications of the same nature. It could reasonably be said, formulating the matter in the way in which it was formulated in James Aitken and Trusthouse Forte, that the outcome of the appeal would be a material consideration bearing on the issue to be decided in the Sainsbury application. The joint appeals had proceeded a material distance through the preliminary procedure prior to the joint inquiry. The joint inquiry was not far in the future. Moreover, there was in my view some force in Mr Hodge's submission that there was, about the Council's decision on the Sainsbury application, an air of untoward haste. Thus far, therefore, it seems to me that there is merit in the petitioners' contention that the decision of 25 October was unreasonable.

[35] A considerable part of the argument which I heard was concerned with whether or not there were material differences between the Sainsbury application and the SET application. That issue might be relevant in two ways. In the first place, it was part of the basis of the petitioners' contention that the Council acted unreasonably in granting the Sainsbury application. If the Sainsbury application was not materially different from the SET one, it was argued, it was irrational on the part of the Council, having refused the latter in May, to grant the former in October. Secondly, it was part of the basis on which the Council sought to meet the charge of unreasonableness so far as founded on the James Aitken line of authority. If the Sainsbury application was materially different from the SET one, it could not be said to be unreasonable to grant it pending the appeal (Henderson). For reasons which I shall explain later, my decision does not turn on whether the Sainsbury application was materially different from the SET one. It is, however, appropriate that I should indicate briefly the view which I reached on that issue. It seemed to me that in broad terms there was a very substantial similarity between the two applications. The similarities were, as Mr Hodge submitted, much more striking than the differences. The list of differences set out in the report by the Director of Planning and Transportation (No. 6/10 of process, page 33; c.f. paragraph [26] above) was in my view open to a number of valid criticisms. The first point, the identity of the operator, is not a planning consideration and in any event, both applications contemplated that Sainsbury would be the operator. The second point, the increased size of the site, is certainly a difference, but its materiality seems to me to be reduced by the fact that the extra ground had been identified in the SET application as being in Scottish Enterprise's ownership, and there is no explanation of why the increase in site size improves the planning case. Equally, there is no explanation of why the third point, the increase in retail floorspace, is material to the acceptability of the proposed development. The fourth point was in my view rightly characterised as misleading. No doubt the closure of Tom Johnstone Road and the formation of a new junction to Arbroath Road were not positive proposals in the SET application, but they were identified in the site access options discussed in the transport impact assessment (No. 6/18/5 of process). The fifth point, about the sublet unit, is no doubt correct according to its terms, but there is nothing in the documents to show that that matter had been regarded as having any material bearing on the decision to refuse the SET application. The sixth point, about the provision of five instead of three industrial units, offers no explanation of why the number of units is material when the total of industrial floorspace is unchanged. Of the five numbered paragraphs at pages 45 and 46 of No. 6/10 of process, the first two identify points that were identified in relation to the SET application, the fifth goes over the ground already covered in the fourth point on page 33, and the other two seem to me to be largely matter of argument rather than changed circumstances. Looking at the matter as a whole, I do not find it at all surprising that the petitioners took the view that there was no clear explanation of what constituted the material differences between the SET application and the Sainsbury one, and that it was not clear on the documents why the Council had seen fit to grant the Sainsbury application when it had refused the SET one only five months earlier. In the end of the day, however, the Council's position did not depend on the Director's report alone, but in part on additional material provided by Mr Reid in his affidavit and summarised in paragraph [28] above. On the whole material put b

Title Revisited

[36] As I have already indicated, however, my decision does not turn on that matter. It seems to me that the petitioners' case could only succeed if they could show that in deciding the Sainsbury application without awaiting the outcome of the conjoined appeals the Council had acted in a way that infringed that legal relation between the Council and the petitioners that constituted the foundation of the petitioners' claim to title to bring this petition. The critical issue thus, in my view, arises at the interface between the question of title and the question of the merits of the allegation of unreasonableness. As I have noted above, in all of the cases in which a grant of planning permission on a duplicate application pending an appeal has been held to be unreasonable, the petitioner has been a party who has been in terms of section 38(1) of the 1997 Act an objector to both applications. The petitioners therefore seek to break new ground by arguing that, despite not having made themselves party to the SET application or to the Sainsbury application, they are nevertheless entitled to challenge the reasonableness of the grant of planning permission in favour of Sainsbury because of their status as parties to the conjoined appeals. Mr Hodge accepted that the fact that the petitioners were unsuccessful applicants in an application that was in commercial and planning terms in competition with the Sainsbury application did not entitle them to challenge the validity of the permission granted to Sainsbury. It is implicit in that concession that if there had been only two applications, the petitioners' application and the Sainsbury application, the petitioners would have been unable to mount the challenge to the validity of the decision of 25 October 1999 that they do in the event seek to mount. It would not have been unreasonable on the part of the Council, the petitioners' application in respect of their site having been appealed in respect of deemed refusal, to grant the Sainsbury application in respect of the Sainsbury site without awaiting the outcome of the petitioners' appeal. The petitioners' case is periled on the proposition that the conjunction of the SET appeal, concerned as it is with substantially the same site as the Sainsbury application, with their appeal enables them to challenge the reasonableness of the Council's decision on the Sainsbury application. It is no doubt correct that the Council were a party to the petitioners' appeal, and remain a party to the conjoined appeals. I am prepared to accept (as I have indicated in paragraph [20] above) that that makes the petitioners "party to some legal relation" with the Council (D. & J. Nicol). What remains to be seen is whether it can be said that in the circumstances that legal relation gives the petitioners "some right" which the Council's decision of 25 October "either infringes or denies". In my view it does not. The conjunction of the SET appeal with the petitioners' appeal was, in my view, no more than a matter of administrative convenience. Since two appeals relating to adjoining sites and to applications of a broadly similar nature were pending at the same time before the Scottish Ministers, it was no doubt regarded as administratively convenient to hold a single public inquiry into both. I do not consider, however, that it would be right to hold that the taking of that administrative or procedural step conferred on the petitioners any rights in a question with the Council which they did not otherwise have. If, as was accepted, the petitioners would have had no basis for challenging the reasonableness of the grant of planning permission in favour of Sainsbury if their own appeal had been the only one pending at the time of the grant, I do not see why the conjunction of the appeals should be regarded as altering that position. If it had been unreasonable of the Council to grant the Sainsbury app

Result

[37] For the reasons given in paragraph [36] above, I find that the petitioners have no title to sue in respect of this petition. Had I decided otherwise on that point, I would in any event (for the reasons mentioned in paragraph [35] above) not have been persuaded that the Council had acted unreasonably in regarding the Sainsbury application as materially different from the SET application, and in therefore proceeding to grant the former while the appeal into the latter was pending. In the event, however, I regard it as appropriate to dispose of the matter as one of title.

[38] I shall accordingly -

  1. repel Sainsbury's and the Council's respective first pleas-in-law (competency);
  2. repel Sainsbury's third plea-in-law (mora, taciturnity and acquiescence et separatim delay) and SET's second plea-in-law (mora, taciturnity and acquiescence); and
  3. sustain the Council's third plea-in-law and Sainsbury's second plea-in-law (each so far as relating to title) and SET's first plea-in-law, and on that account dismiss the petition.

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