Scottish Court of Session Decisions

[1] On 2 February 2000 the Respondents, acting through the Development Control Sub-Committee of their Planning Committee, granted two related applications by the Interested Party for conditional planning permission to erect a waste water pumping station at Cramond Esplanade, Edinburgh and to replace a storm sewage outfall pipe running from Cramond village to Cramond island.

[2] In raising the present petition for Judicial Review the Petitioners sought to have both grants of planning permission annulled. On the seventh day of the First Hearing before me, however, it was discovered that the Petitioners had never, in fact, objected to the outfall pipe application and in that situation their Senior Counsel was constrained to concede that the Petitioners had no title or interest to insist in the Petition quoad that application. Moreover, according to the petition, as framed, there were no less than eight separate grounds on which the Petitioners sought to attack the validity of the two planning grants. By the time of the First Hearing, however, it had been decided not to insist on three of these, being numbers 2, 3 and 8 of the grounds summarised in Statement XXVII of the Petition, and, again on the seventh day of the Hearing, Senior Counsel for the Petitioners eventually abandoned ground number 4 as well. I deal with the remainder in turn:-

[3] The complaint here is that neither application was intimated to the Scottish Ministers, thus precluding the possibility of its being "called in" by them. Under reference to the Schedule to the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 two arguments were advanced for the proposition that such intimation should have been made. I deal with each of these in turn:-

[4] In terms of this paragraph there should be referred to the Scottish Ministers any development which the planning authority considers to be a significant departure from an approved Structure Plan. In the present case the development was ex facie in conflict with the Green Belt policies of both the Structure Plan and the Local Plan and it could accordingly only be consistent with their joint requirements if the development could be shown to be "necessary" and if it could also be shown that no suitable alternative location for the development existed. This had not been done.

[5] I confess that, initially at least, I had some difficulty in following this submission insofar as the Report made by the Head of Planning to the Respondents (No 6/3 of Process) deals expressly with this matter as follows:-

My bewilderment was not lessened when the submission by Junior Counsel for the Petitioners came to be that, as matter of law, the Respondents were not entitled to rely on representations made by the applicants (now the Interested Party) on the "crucial matters" of necessity for the developments and/or the availability of suitable alternative locations. On the contrary, according to Junior Counsel for the Petitioners, before the Respondents could have been satisfied on these matters, they would have had to have obtained assurances from an "independent advisor" following on an "independent inquiry". Counsel accepted that the logic of this submission was that in any application involving a relaxation of Green Belt Policy a so called "independent report" would have to be obtained before planning permission could be granted. At the time it was made this submission seemed to me to be little short of nonsense and I am afraid that I remain of that opinion. It accordingly came as no surprise when Senior Counsel for the Petitioners departed from that submission and accepted that there was no such general rule. Senior Counsel went on to submit that the real complaint in the present case, as he saw it, was that the Head of Planning's Report - and thus, by inference, the sub-committee's deliberations - did not disclose a sufficient degree of "evaluation" of the representations in question. So far as that submission is concerned, I can quite see that a planning authority might not be entitled to accept as sufficient a bare assertion by the applicant on these so called "crucial matters" but, otherwise, the extent to which representations made by applicants are treated as credible and reliable must, it seems to me - and in agreement with the submission made by counsel for the Respondents - be a matter, largely, for the authority. In this connection I was referred to Trusthouse Forte Ltd v Environmental Secretary 1986 53 P.&C.R. 293 where the court was concerned with the obverse question of when a planning committee were entitled to assume that an alternative site for the proposed development could be found. I am, however, content to adopt what is said rather more generally by Mr Justice Simon Brown (as he then was) at p 301 of the report, namely that:

In the present case the applicants were statutory undertakers acting under the Sewerage (Scotland) Act 1968 and, in terms of section 62 of, and Schedule 7, to the Local Government Etc. (Scotland) Act 1994, the applicant authority was comprised of persons appointed by the Secretary of State for Scotland by virtue of their "knowledge or experience". What is more, it is clear from the Report (No 6/3 of Process) that those persons had applied their minds closely to what have been termed the "crucial issues" and had considered - only to discard - at least two suggested alternative sites for the pumping station, - an assessment which, according to an earlier part of the Report, Historic Scotland was, for its part, disposed to accept. In all these circumstances I am quite satisfied that the Respondents were, in turn, fully entitled to accept the applicants' representations on both so called "crucial matters" and that there is, correspondingly, no substance in this ground of attack.

The argument under para 16 of the Schedule
[6] In terms of paragraph 16(b) of the Schedule there must be referred to the Scottish Ministers any application involving development on land wholly or partly within the ownership of the planning authority in circumstances where:-

In the present case it is agreed that the pumping station was to be located on land wholly or partly within the ownership of the planning authority and the argument was - again as matter of law - that the objections received by the Respondents had to be regarded as comprising "a substantial body". In the submissions of Junior Counsel for the Petitioners this argument was, however, only advanced on the premise that, by virtue of section 3 of the Human Rights Act 1998, the phrase "substantial body" should now be "read down" so as to be given its "weakest" meaning (e.g. as meaning anything other than de minimis), and thus in a manner which, so far as possible, required applications to be notified. The reason for doing this - according to Junior Counsel for the Petitioners - was that, in terms of section 3 of the 1998 Act, primary legislation and subordinate legislation had now to be read and given effect in a way which is compatible with "Convention rights", and that that phrase, "Convention rights", meant all such rights as can be envisaged, in abstract, as arising in any circumstances. So read, the phrase covered all rights arising from what was now said to be a requirement for a planning authority to act as "an independent and impartial tribunal" in terms of Article 6 of the European Convention on Human Rights. The argument was doubtless put in this rather convoluted way because, at the time the Respondents were actually considering the provisions of paragraph 16, the Human Rights Act - and, in particular, sections 6 and 7 of that Act - were not yet in force. On no view, therefore, were the Respondents at the time actually required to comply with Article 6.

[7] Although this approach to the argument was supported by Senior Counsel I do not enter into its detail - and, in particular, the question of whether planning authorities are now subject to the requirements of Article 6 - because, in agreement with the submissions made on behalf of the Respondents, I am quite satisfied that the approach in question is without foundation.

[8] In the first place, it is far from clear to me that paragraph 16 could properly be regarded as having anything to do with the supposed obligation on the part of the planning authority to act as an independent and impartial tribunal. In particular, I do not see that the presence or absence of statutory objections - substantial or otherwise - can have any bearing on that matter. If the planning authority are obliged to act in accordance with Article 6 of the Convention it is difficult to see how, even in the absence of any statutory objection, they could ever deal with an application involving their own land without running the risk of a subsequent challenge from some quarter. Moreover, the provisions of paragraph 16 offer no guarantee that an application which is notified to the Scottish Ministers will in fact be "called in" by them. And, even if "reading down" paragraph 16 in the manner desiderated could be viewed as moving some way in the direction of Article 6, it seems to me that the sort of interpretation required by section 3 of the 1998 Act requires nothing less than full compatibility with the "Convention rights". Anything less than that will normally lead to a declaration of incompatibility under section 4.

[9] In the second place, I have the very greatest difficulty in comprehending the submission that section 3 of the 1998 Act can somehow be applied, in abstract, to any "right" and in any circumstance which those invoking its provisions choose to imagine. Indeed, I take leave to doubt whether it is even possible to interpret a statutory provision such as the present, at least in its finer detail, other than by reference to actual fact. In any event, it seems to me that a "right" derived from the Convention only becomes at all meaningful for purposes of compatibility when it crystallises round some actual claim or grievance on the part of the citizen.

[10] Thirdly, the Petitioners' approach seems to me to leave out of account that "the Convention rights" are defined by section 1 of the Act as meaning the rights and fundamental freedoms set out in certain enumerated Articles of the Convention and Protocols thereto and that section 1(2) of the Act provides that:

In my opinion these provisions make it clear that the interpretation provisions of section 3 are concerned, not with hypothetical "rights" in abstract, but with rights which will result from the relevant Articles taking effect for purposes of the Act. As stated above, the supposed obligation on the part of the Respondents to comply with Article 6 - and the tangible rights corresponding thereto - did not, on any view, come into effect until 2 October 2000; i.e. long after the date when the planning applications in question were actually processed.

[11] Fourthly, even if I am wrong as to the meaning and effect of section 1 of the 1998 Act, I am of opinion that this is clearly a situation in which it would be right to read the provisions of section 3(1) of the Act as being subject to the implied proviso that the section only applies when, following the commencement of the Act, actual rights deriving from the Convention are being claimed. Any other reading seems to me to lead to absurdity and would in any event offend against the presumption that legislation does not have a retrospective effect. Indeed, in the House of Lords, Lord Hobhouse of Woodborough has already disowned the proposition that section 3 can have that effect - Reg. v D.P.P., ex parte Kebilene 1999 2 W.L.R. 972 at p 1008.

[12] Lastly, - and I am here dealing with an additional argument advanced by counsel for the Interested Party - I am very doubtful whether, bearing in mind the definition of "subordinate legislation" contained in section 21 of the 1998 Act, the 1997 "Direction" even qualifies as "subordinate legislation" for the purposes of section 3. However, I do not find it necessary to enter into this last matter in detail, it being sufficient to rest my opinion on the various other heads of argument advanced by counsel for the Respondents and referred to above.

[13] Perhaps recognising his difficulties under the foregoing approach, Senior Counsel for the Petitioners advanced two further submissions in relation to paragraph 16, both independent of any alleged effect of the 1998 Act. First, he submitted that precisely the same meaning as that already contended for could be arrived at by applying the common law doctrine of "purposive construction". Second, he submitted that, while all the other letters of objection could properly be left out of account, no reasonable Planning Authority could regard the Petitioners' own objections (part of 7/15 of Process) as being other than a "substantial body of objections". In my opinion, however, both these subsidiary submissions also fall to be rejected. While it is true that paragraph 8 of the S.O.D.D. Circular 4/1999 envisages paragraph 16 as a mechanism for deciding planning applications "openly and fairly" it will be apparent from what I have already said that I do not regard paragraph 16 as being, of itself, in any way sufficient to elide the challenge (if otherwise open) that, in granting planning permission over its own land, the Planning Authority is acting as judge in its own cause. At best, therefore, paragraph 16 represents something of a compromise position and, as such, it lacks, in my opinion, the clear direction which might justify the sort of purposive construction for which Senior Counsel contended. Indeed, as Mr Martin, Q.C., for the Respondents, pointed out, one could argue that at least one purpose of the paragraph is that some applications involving Local Authority land should not be referred. For the rest, the phrase, "substantial body of objections", according to its normal sense, is clearly one of wide meaning and I am quite unable to say that the Respondents were unreasonable - let alone "Wednesbury" unreasonable - in taking the view that the single letter of objections lodged on behalf of the Petitioners, however detailed, did not constitute a "substantial body" for the purposes of paragraph 16. In this connection, I should note, for the record, that at no time during the Hearing did the Petitioners advance any argument based upon what was said to be the Respondents' "practice" in dealing with paragraph 16 as set out at pages 36E-37B of the Record.

[14] These grounds, in so far as insisted in, are to the effect that the Respondents' own consideration of the applications was flawed by reason of their alleged failure properly to evaluate the relevance of the Green Belt. Counsel were agreed that, albeit in a different context, this raised the identical argument to that advanced regarding paragraph 8(a) of the Schedule to the Town and Country Planning (Notification of Applications)(Scotland) Direction 1997 and I do not find it necessary, therefore, to add to what is said above in relation thereto. I would, however, comment that it is difficult to see how these grounds of challenge could ever have become material in so far as, if the argument were sound, the logic would be that the Petitioners should win on their first ground and the application should accordingly have been referred to the Scottish Ministers in the first instance.

[15] This ground of challenge is concerned solely with an alleged breach of the rules of natural justice in relation to the hearing which took place before the Respondents. That part of Ground 7 which, in the pleadings, refers to a failure to meet the "legitimate expectations" of the Petitioners was, in terms, not insisted in.

[16] The background to this ground of challenge is to be found in the Minutes of the Development Control Sub-Committee (No. 6/2 of Process) which reveals that when the two applications came up for consideration "Councillor Cairns indicated in terms of section 10 of the National Code of Local Government Conduct that he had a non-pecuniary interest" and "vacated the Chair...". The factual position was, however, further clarified at the hearing before me when a Joint Minute was lodged agreeing as accurate the terms of an affidavit by a Councillor Kate MacKenzie who depones therein that

So far as the pleadings themselves are concerned, the Respondents' position is summarised at p. 83E of the Record:-

[17] As to the law, parties were agreed, under reference to R. v. Secretary of State for the Environment & Another, ex parte Kirkstall Valley Campaign Limited [1996] 3 All.E.R. 304, that, since participation in a meeting was a matter of substance rather than of mere form, continued presence at a meeting might, but did not necessarily, involve continued participation. As was made clear in the Opinion of Mr Justice Sedley (as he then was), it was all a matter of circumstances. In the present case the Petitioners relied on three, and only three "circumstances" for the proposition that, despite the Respondents' assertions to the contrary, an inference of continued participation by Councillor Cairns could properly be drawn, thus leading to bias or, at least, an appearance of bias in the decisions arrived at.

[18] The first "circumstance" was that Councillor Cairns was the chairman of the applicant authority, East of Scotland Water, and also chairman of the Planning Sub-Committee. In the latter capacity, at least, he could be thought to have particular influence. I can see the force of this submission, in so far as it goes, but it seems to me that, at best, this "circumstance" could only lend colour to other suspicious conduct on the part of Councillor Cairns.

[19] The second "circumstance" was that the decisions in both applications were apparently arrived at by general assent rather than by individual voting. Reference was made in this connection to The King v Hendon Rural District Council, ex parte Chorley [1933] 2 K.B. 696 where, in such a situation, an interested councillor was held actually to have taken part in the vote. The case does not disclose the full circumstances in which that conclusion was reached but it seems highly unlikely that the councillor either declared any interest or in any way removed himself from the meeting in question. On the contrary, the argument seems to have been that, because no individual votes were taken, neither the interested councillor nor anyone else present had, in fact, voted. In my opinion, therefore, there is absolutely nothing in this case to suggest that the mere fact that a vote is taken by general assent is in some way a "circumstance" from which it can be inferred that a councillor who has declared an interest and who has removed himself from the immediate environs of a meeting should somehow be deemed to have continued to take part in that meeting's deliberations.

[20] The third, and last, "circumstance" prayed in aid by counsel for the Petitioners was Councillor Cairns' alleged failure to comply with paragraph 11 of the National Code of Local Government Conduct. Before dealing with this argument it is necessary to set out paragraphs 10, 11 and 12(a) of the Code:-

[21] The argument for the Petitioners was that Councillor Cairns had not withdrawn from the meeting in terms of paragraph 11. To that argument, however, - and again in agreement with the submissions made on behalf of the Respondents - there are, in my opinion, a number of answers. First, the "Code" is not, of course, itself legally binding and it follows, therefore, in my opinion, that again, at best, this "circumstance" could only lend colour to other suspicious conduct on the part of Councillor Cairns. No such conduct was suggested. Secondly, in light of Councillor Kate MacKenzie's affidavit and the Joint Minute of Admissions (both of which were lodged on the last day of the hearing before me) it seems highly likely that Councillor Cairns did, as matter of fact, withdraw from the meeting within the meaning of paragraph 11. He went to sit "where the councillors who are not members of the Sub-Committee normally sit." And, thirdly, even if by staying in the same room Councillor Cairns did not fully "withdraw" within the meaning of paragraph 11, it seems to me difficult for the Petitioners to make much of the point bearing in mind that in terms of paragraph 12(a) he would, indeed, have been entitled to remain, speak and possibly vote.

[22] In the result, I am quite satisfied that there is absolutely nothing in the three sets of "circumstances" - looked at either individually or collectively - from which an inference of actual or perceived bias in the proceedings of the Sub-Committee can be drawn. It follows that this last ground of attack, in common with the others, is, in my opinion, without foundation.

[23] What I have said so far is enough for disposal of the petition but, for the sake of completeness, I should record that, in the course of the debate before me, two other issues were ventilated. First, both the Respondents and the Interested Party insisted in their respective pleas of "No title and interest". I have already recorded that, as to the outfall pipe application, counsel for the Petitioners was in the end constrained to concede that these pleas should be upheld. For the rest, however, I was not persuaded that it would be appropriate to sustain the pleas. The argument was that the interest averred by the Petitioners in Statement 1 of the petition was essentially a commercial interest - namely that the Cramond Inn would lose its attractiveness to potential customers - and that this was not a proper planning consideration. Reference was made in this connection to paragraph 52 of NPPG 1 which was lodged as No. 7/18 of Process. I am bound to say that where, as here, a listed building happens to be an ancient Inn there is a question in my mind as to how far that guideline is truly applicable. But, in any event, in the hearing before me none of the parties regarded themselves as being very closely constrained by the pleadings, and in my opinion it is clear from the letter of objections originally lodged by the Petitioners (being the latter referred to above) that the Petitioners also have an interest to ensure that what were undoubtedly a sizeable number of planning objections were properly considered by the Planning Sub-Committee. Their title, as such, - so far as the pumping station application is concerned - was not impugned.

[24] Secondly, on the assumption that I was in favour of the Petitioners on any of their grounds of attack, counsel for the Interested Party, supported by counsel for the Respondents, sought to persuade me that, in the exercise of my discretion, I should still refuse relief. Reference was made in this connection to Malloch v Aberdeen Corporation 1971 S.C.(H.L.) 85, Regina v Monopolies and Mergers Commission, ex parte Argyll Group plc [1986] 1 WLR 763, King v East Ayrshire Council 1998 S.C. 182, and Uprichard and Others v The Fife Council and Another 31.3.00 (an unreported decision of Lord Bonomy). For my own part, however, I find the law in this area most conveniently summarised by Lord Justice Glidewell in Bolton Metropolitan Borough Council v Secretary of State for the Environment and Greater Manchester Waste Disposal Authority 1990 61 P. and C.R. 343 at pps. 352-3. In the present case counsel recognised that, if the Petitioners had been well founded on any one of their grounds of attack, it would have been impossible to conclude otherwise than that there was a real possibility that, but for the irregularity in question, the outcome might have been different. Accordingly, emphasis was placed on Head (7) of Lord Justice Glidewell's summary to the effect that, even where the judge has decided that he could hold a decision invalid, he was still entitled, in exceptional circumstances, not to grant relief. The principal circumstance relied on in this context was, I think, the consideration that, unless the proposed development were completed by the end of the year 2000, the Interested Party would be in breach of Regulation 4 of the Urban Waste Water Treatment (Scotland) Regulations 1994, which was itself designed to ensure compliance with the European Directive referred to in the Regulations. Suffice to say that, in my opinion, that consideration, on its own, would have been insufficient justification for exercising the court's discretion in the manner contended for. For the rest, I was not disposed myself to enter into any appraisal or re-appraisal of the merits of the applications, as I think may at one stage have been suggested by both Junior and Senior counsel for the Interested Party.

[25] In the final result I shall, of consent, sustain the first plea in law for the Respondents and the first plea in law for the Interested Party (being pleas of "No title and interest") quoad the planning application No. 99/1931 anent the replacement of a storm sewage outfall pipe running from Cramond Village to Cramond Island; and I shall also sustain the second plea in law for each of the Respondents and Interested Party to the effect of dismissing as irrelevant the petition as a whole.

[26] Before parting with this case I cannot help but notice that, in the course of preparation for the First Hearing, a Record running to no less than 110 pages was printed, numerous productions were lodged, and all this was followed up by each party lodging sizeable bundles of photocopied authorities. In the event, only a very small percentage of this overall material was looked at, thus giving the proceedings, to say the least, a somewhat "overblown" feel to them. Not being party to the full history of the case, it would, of course, be most unwise of me to seek to apportion blame - if, indeed, blame there be - for this unfortunate state of affairs. I would, however, express the hope that a moral is somewhere to be found and that similar situations can be avoided in the future.