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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Uprichard & Ors v Fife Council & Anor, Re Application For Judicial Review [2000] ScotCS 90 (31 March 2000)
URL: http://www.bailii.org/scot/cases/ScotCS/2000/90.html
Cite as: 2000 SCLR 949, [2001] Env LR 122, [2000] ScotCS 90
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OUTER HOUSE, COURT OF SESSION |
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OPINION OF LORD BONOMY in the petition of MISS PENELOPE UPRICHARD AND OTHERS Petitioners: against (FIRST) THE FIFE COUNCIL, (SECOND) ST ANDREWS BAY DEVELOPMENT LIMITED Respondents:
For Judicial Review of a purported decision of the Fife Council on 7 July 1999 to grant planning permission under the Town & Country Planning (Scotland) Act 1997 to St Andrews Bay Development Limited in respect of the proposed development at Kingask Estate, St Andrews ________________ |
Petitioners: Lord Mackay of Drumadoon, Q.C., McKenzie, C MacLean;
Drummond Miller, W.S.
Respondents: Reid, Q.C., Webster; Balfour & Manson (for First Respondents)
Martin, Q.C., Drummond; Fyfe Ireland, W.S. (for Second Respondents)
31 March 2000
The Parties
[1] The six petitioners are private individuals who live in and around St Andrews. They are opposed to the development at Kingask Estate, St Andrews for which the Fife Council, first respondents, granted planning permission to St Andrews Bay Development Limited, second respondents, on 7 July1999. The grant is subject to 33 conditions and to an agreement in terms of section 75 of the Town and Country Planning (Scotland) Act 1997. The development approved is "erection of hotel, conference centre and related accommodation, steading spa, leisure clubhouse and facilities, golf clubhouse, ancillary facilities, two golf courses and landscaping at Kingask Estate, by St Andrews". The application was submitted on 2 March 1999. The petitioners each lodged written representations opposing the application. These were principally to the effect that the built part of the development would be a blot on the landscape and that the development would give rise to traffic problems. The application was one of three for golf related developments being processed and considered simultaneously by the Council. The Council had also dealt with earlier similar applications in respect of Kingask, and had granted outline permission for one. All these applications aroused controversy in and around St Andrews.
The Issues
[2] Although they might be described as "objectors", the petitioners have no right under the Town & Country Planning (Scotland) 1997 or any other statutory provision to appeal against the decision to grant the application. They seek by this petition to have the planning permission quashed. They do so on four grounds:
(1) The Council erred in law by not requiring the developers to provide an environmental statement under The Environmental Assessment (Scotland) Regulations 1988 (S.I. 1988, No. 1221);
(2) The Council erred in law by failing to comply with their duties under the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 by failing to consider whether the development involved a significant departure from the approved Structure Plan, thus requiring notification of the application to the Secretary of State/First Minister, and by failing to notify him of the application as one involving a development affecting a Site of Special Scientific Interest in relation to which Scottish Natural Heritage have recommended conditions which the Council did not propose to attach to the planning permission. The purpose of notification is to enable the Secretary of State/First Minister to consider whether he should take action in relation to the application;
(3) The Council erred in law and exercised their discretion in an unreasonable manner by granting the application without having due regard to the development plan in accordance with their duty under section 25 of the Town and Country Planning (Scotland) Act 1997;
(4) The Council failed to give clear and intelligible reasons for their determination of the application, including whether or not it was in accordance with the development plan, and thus acted in a way which was unfair to the petitioners.
The first two are the principal broad heads under which the decision is attacked. The third and fourth grounds were presented by Lord Mackay of Drumadoon QC for the petitioners as bolstering his principal submissions, particularly the second one about the failure to notify the First Minister of the application.
[3] The Council and the developer both plead that the petitioners lack title and interest to bring the proceedings. In addition they both contend that the petition should be refused for mora. This First Hearing was at large. I shall, however, deal with these preliminary contentions of the respondents first.
Interest to Bring Proceedings
[4] While the respondents plead absence of both title and interest, both Mr Reid QC for the first respondents and Mr Martin QC for the second respondents invited me to determine only the question of interest. The broad submission was that, while it is doubtful that the petitioners have title, if they do, they do not have sufficient interest because they are not directly and prejudicially affected by the decision to grant planning permission. The petitioners were perfectly entitled to make representations about the application. So long as these were lodged timeously and raised relevant issues, the planning authority was bound to take them into account. That might arguably give the petitioners title to bring these proceedings, but in the absence of averments that the planning authority failed to take account of their representations they did not qualify any interest to bring the proceedings. The petitioners were in no different position from any member of the public and that was borne out by their averments. The Court was not faced with an actio popularis, such as one to vindicate a public right of way, but with proceedings at the instance of members of the public, challenging the exercise of a statutory duty. Albeit the exercise of the statutory duty could have triggered procedures involving public consultation in a different form from that undertaken and notification of the application to the Secretary of State/First Minister, the petitioners stood in no different position from any other members of the public. There was no question in this case of bad faith on the part of the respondents which might raise different issues. The application had raised considerable public interest in the locality. There was opposition to and support for the application. The petitioners aver that they are aggrieved by the determination, but that meant no more than that they did not like the result. Their other averments and the terms of their affidavits placed them in no different position from a wide section of the public - they lodged written representations, the third petitioner spoke against the development at the meeting of 7 June and, as persons who used the Fife Coastal Path and are from time to time in the vicinity of the development site, they are adversely affected. Their reference to traffic impact was to something that could affect anyone who happened to be passing. The petitioners reside between 2.5km and over 5km from the site. That should be contrasted with the definition of neighbours upon whom intimation of a development is required in terms of article 2 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (S.I. 1992, No 224) as those resident within 90m of the proposed development if they have a boundary within 4m of the development. The petitioners have no contractual, delictual, patrimonial or status interest affected by the determination. Planning control was designed to regulate development in the public interest. The statutory scheme for regulation of planning was not intended to confer new rights on members of the public that would constitute an interest to litigate with the planning authority or developer. Members of the public did not have a general right, as policemen of the planning system, to see that it was properly implemented. The right about which a member of the public might have an interest to litigate was limited to his own particular involvement in the process of considering and determining the particular application. There were no averments that any environmental issue that the petitioners sought to raise or could identify was not considered. There were no averments that their representations were not taken into account by the Council.
[5] While I agree with counsel for the respondents that the averments about the pleasure the petitioners find in the landscape around the application site, and their averments about their connection with the locality, supplemented by affidavits, do not give them an interest the law recognises to challenge a planning decision, albeit they consider that the development permitted might affect their amenity, the petitioners also aver that their representations were not considered in the context in which the first respondents were bound to consider them. I acknowledge that the petitioners do not claim that the first respondents failed to have regard to their representations. The petitioners made representations about the detrimental impact of the proposed development on the landscape and views of the landscape. It was accepted at all hands that the landscape is a feature of the environment. In paragraph 10 of the Petition the petitioners claim that the first respondents acted illegally in granting the application by failing to require an environmental statement under the 1988 Regulations. The plain implication of their averments is that they were entitled to have their representations considered in the light of environmental information properly produced and consulted upon in terms of these Regulations and that that did not happen. In addition in paragraph 11 of the Petition they assert that there was a failure on the part of the first respondents to consider whether the application fell to be notified to the Secretary of State/First Minister because it involved a significant departure from development plan policies, including a policy against development which would have a detrimental visual effect on the landscape of an area of great landscape value which all were agreed the application site fell within. Notification could of course lead to the Secretary of State calling in the application for determination by him, which is what the petitioners maintain he should have had the opportunity to consider. I do not consider that it is of any significance that the petitioners, as lay persons in the planning process, did not point out in their representations that notification was an issue. The obligation of the planning authority to consider whether the development constitutes a significant departure from the Structure Plan arises whether or not it is raised in representations. Nor does it matter, for determination of the issue whether the petitioners have an interest to bring the proceedings, that the question whether the development would have a detrimental effect on an area of great landscape value is one for the planning judgment of the Council. That bears on the merits of the petition and not on the issue whether the assertion of a failure to comply with a duty under the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 gives the petitioner an interest to challenge the decision to grant planning permission. In my opinion the petitioners have an interest to challenge the grant because they aver that the particular representations which they made related to matters which they aver should have been dealt with and considered under materially different procedures as a matter of law.
[6] A number of authorities were cited and contrasting submissions made on them. However, I do not read any of these authorities as indicating that in circumstances such as the present there is no interest to sue. I am satisfied that the petitioners have a material interest in a real issue in the case such as to qualify an interest in law to bring these proceedings. They thus appear to me to fall within the test summarised by Lord Clyde in Scottish Old People's Welfare Council, Petitioners, 1987 S.L.T. 179 at 186J to 187A.
[7] The authority principally relied upon in support of the respondents' submission that the petitioners had to aver that they had been directly and prejudicially affected by the decision to grant planning permission was Walker v City of Aberdeen Council 1998 S.L.T. 427. That case relates to the challenge by a person holding a notifiable interest in neighbouring land to the grant of planning permission where, although he was notified of the original application, he received no notice of a substantially revised application before it was determined. The case was decided against him on two grounds: (1) that it was not unreasonable for the planning authority to regard the revised application as not altering the substance of the proposal; and (2) that the planning authority had not misdirected themselves about the nature of the revised application. Having dealt with the first of these two grounds, Lord Macfadyen said this at p.432D:-
"There is, in my view, an additional reason for rejecting the petitioner's first argument. 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 in not treating the revisal as altering the substance of the proposal, 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. In the present case it seems to me that one aspect of the argument put forward by counsel for the respondents, to the effect that the petitioner suffered no prejudice by the regional council's failure to consult, is well founded ... although the petitioner was not re-consulted, AbGAG and the Community Council were, and both took the opportunity to put forward additional points in light of the revisal. ...It therefore seems to me that on that basis there is much force in the contention that the point which the petitioner would have wished to make against the revised proposal was before the Committee of the Regional Council, and must be taken to have been considered by them. I appreciate that if the petitioner had been reconsulted he might have made the point in a more sophisticated or more persuasive way, but I consider that the matter must be viewed broadly. I am not persuaded that the petitioner has demonstrated that he suffered prejudice by reason of the failure on the part of the Regional Council to notify him of the revisal to the application."
In the particular circumstances of that case prejudice was plainly an important factor in determining whether the decision should be quashed. In that connection I can quite see that the fact that other parties have made the same point is relevant to the question whether the Court, having found that there was a procedural irregularity, should quash a decision, since rewinding the proceedings to enable the petitioner to make submissions would add nothing to the material available to the decision making body. However, where a person has title to litigate, I find it difficult to see that his interest should depend on the actings or non-actings of third parties which by coincidence relate to issues on which he wishes to make representations. Questions of title and interest are, in my opinion, generally preliminary issues to be determined on the basis of averment and not an assessment of the merits of the case. No doubt there will be cases in which it is necessary to explore the merits at least to some extent to determine the question of interest. However, it is not clear to me that Lord Macfadyen was considering interest in the sense of interest qualifying a petitioner to bring proceedings at all. It appears to me that he was using the term in the same sense as it was used in King v East Ayrshire Council 1998 S.C. 182 at 194C to H to describe the Court's inherent jurisdiction to refuse to grant decree of reduction of administrative decisions where no practical result will be achieved. In delivering the Opinion of the Court and in adopting views variously expressed in the House of Lords and agreeing "... that when asked to grant decree of reduction of an administrative decision it is relevant for the court to consider whether the person seeking reduction has a substantial interest in having it set aside" the Lord President was considering the Court's inherent discretion to refuse a remedy rather than the interest necessary to qualify a right to bring proceedings.
[8] The other authorities cited are of marginal relevance. In Bondway Properties Limited v City of Edinburgh Council 1999 S.L.T. 127 the issue was whether the commercial interests of a competitor prospective planning applicant were protected by planning guidelines, and the decision depended on the terms of the guidelines. The real issue may in any event have been one of title rather than interest. Lardner v Renfrew District Council 1997 S.C. 104 concerned the interpretation of the words "person aggrieved" in section 232 of the Town and Country Planning (Scotland) Act 1972, a quite distinct issue from the one before me. Parties were ultimately agreed that South Lanarkshire Council v Secretary of State for Scotland 1997 S.L.T. 961, about the irrelevance of rights of way in development sites to planning issues, had no bearing on the dispute between them. Pollock v Secretary of State for Scotland 1993 S.L.T. 1173 related to the strict effect of the six week time limit in section 231(1) of the Town and Country Planning (Scotland) Act 1972 as preventing any later application to the Court in any form even by an adjacent landowner who did not receive the notice he should have and remained ignorant of the determination of a planning application until the six weeks had expired. His petition for judicial review was dismissed as incompetent.
[9] Mr Martin advanced two additional points. Only the second was supported by Mr Reid.
[10] Certain documents emanating from a body called the "Review Funding Association" referred to the Association as the potential petitioners. The documents did not indicate the connection if any between the association and the present petitioners. That was a rather disingenuous submission since the affidavit of the first named petitioner indicated a clear connection between the petitioners and the Association. Mr Martin submitted that the question mark over the true identity of the petitioners ought to be weighed by me against the petitioners in determining the question of interest. I do not see this as relating to the question of interest. It seems to me that the only point to which the activity of such an association might be relevant is that of expenses.
[11] His further point was that the failure of the petitioners to seek interim interdict or interim suspension of the development meant that by their own deliberate act they were contributing to the detrimental effects of which they were complaining because rapid progress was being made with the construction works. As a result, he submitted, their interest to bring the proceedings diminished by the day. That also should be weighed against them in determining whether they had sufficient interest to proceed. I reject that submission since I consider the question of interest has to be determined as at the date the petition is presented, unless a change in circumstances occurs to deprive the petitioners of their interest. I am thinking of the possibility that a petitioner, whose interest depended upon his title to property, might dispose of it. I do not consider that the failure to seek suspension of the construction work gives rise to a change in circumstances of the kind that would deprive a petitioner of his interest following upon the presentation of his petition.
[12] In my opinion the petitioners have demonstrated sufficient interest to bring these proceedings and I turn now to the question of the time taken to do so.
Mora
[13] The petition was raised nineteen weeks after the application was determined. The successful applicant for planning permission may commence his development immediately upon the grant of permission. Where a "party aggrieved" can challenge an order or decision under sections 237 to 239 of the Town and Country Planning (Scotland) Act 1997 - and that includes an objector challenging a determination of an application by the Secretary of State - the time limit for applying to the Court of Session is six weeks. Where similar orders or decisions are challenged on similar grounds by petition for judicial review there is no statutory time limit.
[14] There were three aspects to the respondents' submission. In the first place it was 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. That applied in this case. The second aspect was that the delay involved 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 on the material before the Court had not been rebutted. The third aspect was that the delay, when taken with the prejudice that would undoubtedly be suffered by the second respondents were the grant to be quashed, was such as to bar the proceedings. It was also part of this submission that all three aspects arose in this case.
[15] There was no dispute from the petitioners that delay and acquiescence or delay combined with prejudice were each proper bases for the Court to refuse a remedy. The petitioners contended that there was no basis for an inference of acquiescence and that there was not such delay and prejudice as to warrant refusing the petition. On the other hand, Lord Mackay for the petitioners submitted that any rule that delay leading to administrative uncertainty barred proceedings, that could be derived from English authority, did not apply in Scotland.
[16] While such a rule may be desirable, there is no Scottish authority in which a petition for judicial review has been refused on the ground of delay alone in the absence of acquiescence or prejudice. Indeed, while the Court in opinions delivered by the Lord President in King v East Ayrshire Council and Swan v Secretary of State for Scotland 1998 S.C. 479 has recognised that judicial review proceedings ought normally to be raised promptly, the Court also made it clear in these cases that the decision whether or not to allow the petition to proceed on account of delay should be made in the light of the circumstances in which time was allowed to pass. That one of the circumstances to be taken into account is the public interest in good administration is plain from the opinion in King at p. 196C-D as follows:-
"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 the decision for any longer than is absolutely necessary in fairness to the person affected by it (O'Reilly v Mackman [1983] 2 AC 237 at 2808 to 2818 per Lord Diplock)".
In the light of these authorities I have decided to consider the delay in the context of all the surrounding circumstances to determine whether the petitioners should be barred from taking these proceedings. The circumstances which I consider relevant to the determination of this issue include actual and potential adverse effects upon good administration, factors indicating acquiescence, and the actual and potential prejudice to the second respondents.
[17] That is a discretionary exercise quite different from the task undertaken by the Courts in England where leave to apply for judicial review is sought. The rules that apply there are usefully summarised in the speech of Lord Goff of Chieveley in R. v Dairy Tribunal ex parte Carswell [1990] A.C. 738 at 747 as follows:
"It follows that, when an application for leave to apply is not made promptly and in any event within three months, the Court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers that there is such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of relief sought would be likely to cause hardship or prejudice... or would be detrimental to good administration."
That rule has been applied quite strictly on occasions as by Laws J., as he then was, in R. v Ceredigion County Council, ex parte McKeown [1998] 2 PLR 1, and R. v Secretary of State for Trade & Industry, ex parte Greenpeace Ltd [1998] EnvLR 415. That is because of the prominent place given to delay in the English rules. That other factors can play an important part in the decision can be seen from R. v Essex County Council ex parte Tarmac Roadstone Holdings Ltd [1998] P.L.C.R. 56 (another judgment of Laws J.); R. v Bristol City Council ex parte Anderson [1998] E.G.C.S. 44; R. v Breckland District Council, ex parte Budgeons Stores Ltd [1999] J.P.L. 85; R. v Sevenoaks District Council, ex parte Wickham [1998] J.P.L. 1145; and R. v Leicester City Council & W M Morrison Supermarkets Plc & Powergen UK Plc, ex parte Safeway Stores [1999] J.P.L. 691. 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.
[18] A calendar of crucial dates between 7 July when the application was granted and 17 November when the petition was presented is set out in the affidavit of the first named petitioner. She and other supporters of the petition initially took no action since the local Community Council were considering raising proceedings. Having taken legal advice, by 3 August the Community Council were in a position to make a decision not to proceed, largely on the ground of cost. Immediately thereafter the first named petitioner took active steps by instructing the solicitor who had been acting for the Community Council to act for her. His instructions included seeking expert evidence and submitting further instructions to counsel. Counsel's revised opinion was obtained by 17 September. The time between then and 16 October was taken up by seeking answers to certain questions from the planning authority, instructing counsel to advise on title and interest, raising funds, and allowing time for supporters to consider their position before committing themselves to the petition. Counsel was instructed to draft the petition on 16 October. There was a consultation with senior counsel on 10 November, and the revised petition was presented on 17 November.
[19] Along with that calendar of events and the surrounding explanatory circumstances a number of other factors have to be considered. Although it was well known that many around St Andrews held strong views against the development and were not likely to have been converted to supporters overnight, there was no material presented to me to indicate that the petitioners gave notice to the respondents that they intended to challenge the grant. When the campaign to raise funds went public on 18 October, the second respondents quickly became aware of it and were quoted a few days later in the local newspaper in terms designed to discourage support and referring to the progress being made with construction work. By then substantial work had been done on site. By the time the petition was presented work valued in excess of £1 million had been completed. One month later the works completed amounted to well over £1.5 million. There was some dispute over the date on which the second respondents began work. They claimed to have done so on the day permission was granted. However, there was agreement that work of significance began about 6 September and that the petitioners knew about it. The result of a successful petition would be to halt the development in its tracks pending further consideration of the application and its possible grant in a different form or refusal to the obvious prejudice of the second respondents and their employees.
[20] Were the application ultimately to be refused, an issue would arise over the partially built development. While some submissions were made about the complications which would arise were the building to be completed and in established use before the petition was determined, it was not seriously suggested that the development was so far advanced. However, there would be a partially completed development which had been constructed on the faith of an ex facie valid planning grant. There are provisions in section 71 of the Town and Country Planning (Scotland) Act 1997 for an order to be made for the removal of such a development. No counsel appeared to have practical experience of the operation of that provision. For present purposes it is not necessary to give detailed consideration to how it might apply. What matters is that there is the potential for further cost being imposed upon the developers. Even if the issue of removal of the works were never to arise, there would plainly be expense incurred in protecting the partially built development pending further consideration of the application. That there should be these consequences is certainly not consistent with good administration. Even if this petition had been determined in January in favour of the petitioners, the disruptive consequences would have been such as to give a clear picture of a system lacking proper control over planning. Pending determination of the outstanding application, and perhaps for much longer depending on the decision made, there would be a development in limbo, a real blot on the landscape. That is clearly contrary to the public interest in good administration. The public interest in good administration includes the administration of the general planning system in relation to other applications which might be affected by the decision made in this one. An example was given of an application which is affected by the decision in this case. On the same day as the present application was granted an application for a not dissimilar development at Scooniehill was refused. A fresh application for development on that site has been made. It has to be considered in the light of the determination of the application for Kingask. When the Kingask application was granted, the planning officials' firm recommendation was against granting the application of Scooniehill. Lord Mackay pointed out that there may well be a number of grounds on which that application could be refused, quite apart from the impact of the Kingask development. The fact remains that the grant of Kingask and its impact on the locality, eg. on traffic, may well be a material consideration to be taken into account in relation to any other application in the St Andrews locality. The issue for me is not whether there are in fact applications of a similar nature being so affected but the potential for disruption to the good administration of the planning process by the change in status of the grant presently under challenge.
[21] Lord Mackay invited me to bear in mind that the petitioners are lay persons involved in a highly technical process. However, it should be noted that there is no evidence that any expert opinion other than a legal one had to be obtained or was obtained before proceeding. The petitioners were involved over a lengthy period of time in resisting a number of applications to develop this site and were steeped in the issues involved, in particular the impact on the landscape. I was also invited to bear in mind that an application to the Court of Session under sections 237 to 239 of the 1972 Act, for which there is an absolute time limit of six weeks, can be made in a more abbreviated form than is normally expected of a petition for judicial review. Even if that is correct, no more is required for a petition than a clear statement of the grounds in which the decision made is challenged. In practice that may be in more detailed form than an application under sections 237 to 239, but the exercise required is basically the same. I was also reminded that an unsuccessful applicant for planning permission has six months in which to appeal. I found that time limit of little significance since it relates to a completely different situation in which there is no question of development occurring unless the appeal is successful. Lord Mackay also pointed out that it could be said in this case that the second respondents contributed materially to the circumstances which give rise to the challenge to the decision because they failed to provide an environmental statement. They had not provided one. They had apparently agreed with the first respondents that one was not necessary prior to putting in the application - see Answer 7 for the second respondents - and they had presented environmental information to the first respondents in a variety of documents which did not satisfy the terms of the Regulations. The submission was that the second respondents did not have clean hands on the matter. Since prejudice to the second respondents is a factor to be taken into account, I accept that the part they played in the planning process must also be placed on the scale. However, it is difficult to see that that point can have much bearing on the question in issue, viz whether there was delay in bringing the proceedings and what the consequences were.
[22] In my opinion the fundraising, which was not apparently embarked upon until 18 October, and the obtaining of legal advice, which was spread over a considerable period of time in which no significant additional information came to light, do not satisfactorily explain the lapse of time before the proceedings were brought, particularly the period between the beginning of August and 17 November. These are the principal factors relied upon to explain the passage of time. I do not consider that the petition was presented promptly. Between 3 August and 18 October there was no public indication given of an impending challenge. Thereafter a further month elapsed before the petition was presented. Meanwhile substantial works were being undertaken on site to the knowledge of the petitioners. The second respondents were entitled to proceed with the development on the faith of a valid grant of planning permission. The success of any petition presented so long after the event as this one was is bound to have a significant adverse impact on the good administration of planning control in the St Andrews area which must have been obvious to the petitioners because of the view they have always held about the material impact the development at Kingask was likely to have on the whole area. For these reasons I consider that the delay in bringing the proceedings is such that when it is combined with the petitioners' apparent acquiescence in the grant, the disruptive effect that such a late challenge would have in good administration if successful and the prejudice to the second respondents of bringing the proceedings so late, that this is a case in which it is appropriate to sustain the plea of mora and dismiss the petition.
[23] Since the petitioners' challenges to the decision were debated at some length over six days I shall now deal with these.
Environmental Statement
(a) The Regulations
[24] When the application for planning permission was being considered the Regulations in force in Scotland governing the obligations of developers and planning authorities in relation the provision of information about the likely impact on the environment of certain developments were The Environmental Assessment (Scotland) Regulations 1988. These implemented in Scotland the United Kingdom's obligations to give effect to European Union Council Directive 85/337/EEC of 27 June 1985. The Regulations placed a responsibility for performing the duties arising from the Directive upon local planning authorities. The relevant provisions of the Directive setting out the scheme are these:
"Article 1
1. This Directive shall apply to the assessment of the environmental effects of those public and private projects which are likely to have significant effects on the environment.
.....
Article 2
1. Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue inter alia, of their nature, size or location are made subject to an assessment with regard to their effects......
Article 3
The environmental impact assessment will identify, describe and assess in an appropriate manner, in the light of each individual case and in accordance with Articles 4 to 11, the direct and indirect effects of a project on the following factors:
- human beings - fauna and flora,
- soil, water, air, climate and the landscape.
- the inter-action between the factors mentioned in the first and second indents,
- material assets and the cultural heritage.
Article 4
1 Subject to Article 2(3), projects of the classes listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.
2 Projects of the classes listed in Annex II shall be made subject to an assessment, in accordance with Articles 5 to 10, where Member States consider that their characteristics so require.
...
Article 5
1 In the case of projects which, pursuant to Article 4, must be subjected to an environmental impact assessment in accordance with Articles 5 to 10, Member States shall adopt the necessary measures to ensure that the developer supplies in an appropriate form the information specified in Annexe III...
2 The information to be provided by the developer in accordance with paragraph 1 shall include at least:
- a description of the project comprising information on the site, design and size of the project,
- a description of the measures envisaged in order to avoid, reduce and, if possible, remedy significant adverse effects,
- the data required to identify and assess the main effects which the project is likely to have on the environment,
- a non-technical summary of the information mentioned in indents 1 to 3.
....
Article 6
1 Member States shall take the measures necessary to ensure that the authorities likely to be concerned by the project by reason of their specific environmental responsibilities are given an opportunity to express their opinion on the request for development consent. Member States shall designate the authorities to be consulted for this purpose in general terms or in each case when the request for consent is made. The information gathered pursuant to Article 5 shall be forwarded to these authorities. Detailed arrangements for consultation shall be laid down by the Member States.
2 Member States shall ensure that:
- any request for development consent and any information gathered pursuant to Article 5 are made available to the public,
- the public concerned is given the opportunity to express an opinion before the project is initiated.
...
Article 8
Information gathered pursuant to Articles 5, 6... must be taken into consideration in the development consent procedure."
[24] It was not suggested to me that the United Kingdom had failed to give full effect to the Directive. The parts of the 1988 Regulations, as amended by The Environmental Assessment (Scotland) Amendment Regulations 1994 (S.I. 1994, No 2012) and The Environmental Assessment (Scotland) Amendment Regulations 1997 (S.I. 1997, No. 1870) which are relevant to the argument are these:
Regulation 2
2 In these Regulations, unless the contrary intention appears -
...
'environmental information' means -
(a) any environmental statement required to be provided under these Regulations,
(b) any representations made by any authority, body or person required by the Regulations to be invited to make representation (or consulted), and
(c) any representations duly made by any other person about the likely environmental effects of the proposed development;
'environmental statement' means such a statement as is described in Schedule 3.
...
Schedule 3
ENVIRONMENTAL STATEMENT
1 An environmental statement comprises a document or series of documents prepared by the applicant providing, for the purpose of taking into consideration environmental information in respect of a proposed development, the information specified in paragraph 2 (referred to in this Schedule as 'the specified information').
2 The specified information is,
(a) a description of the proposed development, comprising information about the site and the design and size or scale of the proposed development;
(b) the data necessary to identify and assess the main effects which that development is likely to have on the environment;
(c) a description of the likely significant effects, direct and indirect, on the environment of the proposed development, explained by reference to its possible impact on -
A. human beings;
B. flora;
C. fauna;
D. soil;
E. water;
F. air;
G. climate;
H. the landscape;
I. the inter-action between any of the foregoing;
J. material assets;
K. the cultural heritage;
(d) where significant adverse effects are identified with respect to any of the foregoing, a description of the measures envisaged in order to avoid, reduce or remedy these effects; and
(e) a summary in non-technical language of the information specified above.
3 An environmental statement may include, by way of explanation or amplification of any specified information, further information on any of the following matters:-
(a) the physical characteristics of the proposed development, and the land-use requirements during the construction and operational phases;
.....
(g) ....
...
4 Where further information is included in an environmental statement pursuant to paragraph 3, a non-technical summary of that information shall also be provided.
Regulation 4
4.-(1) In this Part of these Regulations, unless the contrary intention appears -
...
'annex 1 application' or 'annex 2 application' means an application for planning permission ... for the carrying out of development of any description mentioned in Schedule 1 or Schedule 2 respectively, not being exempt development.
Regulation 6
6.-(1) This Regulation applies to -
(a) an annex 1 application; or
(b) an annex 2 application where the proposed development shall be likely to have significant effects on the environment by virtue inter alia of its nature, size or location.
(2) The planning authority, the Secretary of State or a reporter shall not grant planning permission in respect of an application to which this Regulation applies unless they have taken into consideration environmental information in respect of the proposed development and state in their decision that they have done so.
(3) Subject to any direction by the Secretary of State, for the purposes of paragraph (1)(b) the planning authority shall decide whether the proposed development or development would be likely to have significant effects on the environment by virtue inter alia of its nature, size or location."
"Regulation 12
12 In respect of an application for planning permission, the person to whom it would fall to grant planning permission shall on receipt of the application or appeal consider whether it is one to which Regulation 6 applies.
Regulation 13
13.-(1) Where a planning authority consider that an application is one to which Regulation 6 applies and the application is accompanied by an environmental statement, they shall within four weeks beginning with the date of receipt of the application notify the applicant in writing of their view and that article 10 of the general development order shall have effect as if there were substituted for the reference to a period of two months in paragraph (5) thereof a reference to a period of four months.
(2) Where the Secretary of State considers that an application is one to which Regulation 6 applies and the application is accompanied by an environmental statement, he shall notify the applicant in writing of his view.
Regulation 14
14.-(1) Subject to paragraph (4), where the planning authority consider that an application for planning permission is an application to which Regulation 6 applies, but it is not accompanied by the required environmental statement, they shall within four weeks beginning with the date of receipt of the application or such longer period as the parties agree in writing, notify the applicant in writing -
(a) of their view with reasons therefore;
(b) that in their view without taking into consideration environmental information in respect of the proposed development they may not grant planning permission;
(c) of their view that he should provide an environmental statement; and
(d) of any authorities, bodies or persons mentioned in Schedule 4 whom they have consulted.
(2) The applicant may within four weeks beginning with the date of notification -
(a) inform the authority in writing that he will provide the required environmental statement; or
(b) apply to the Secretary of State in accordance with Regulation 9 for a direction as to whether consideration of environmental information is required.
...
Regulation 16
16.(1) In an application to which Regulation 6 applies, when the applicant or appellant submits an environmental statement he shall serve on any party who holds a notifiable interest in neighbouring land a notice in the form set out in Schedule 5 (or in a form substantially to the like effect) stating -
(a) that the environmental statement may be inspected in the office of the planning authority for the period of four weeks from the date of the said notice;
(b) the address at which copies of the environmental statement may be acquired;
(c) the cost of a copy of the environmental statement; and
(d) that representations may be made.
(2) The parties holding a notifiable interest in neighbouring land and the owners, lessees and occupiers of the land.
...
(5) When an environmental statement is submitted, the planning authority or the Secretary of State, as the case may be, shall publish as soon as possible a notice (containing similar information to that required to be included in a notice served in accordance with paragraph (1)) in a newspaper circulating in the locality in which the neighbouring land it situated and in the Edinburgh Gazette.
...
Regulation 17
17 Where an environmental statement is provided in relation to an application for planning permission, the applicant or appellant shall ensure that a reasonable number of copies of the environmental statement are available at the address named in his notices under Regulation 16 as the address at which copies may be obtained.
Regulation 18
18.-(1) Where a planning authority receive an environmental statement relating to an application to which Regulation 6 applies, they shall -
...
(c) consult the authorities, bodies or persons mentioned in Schedule 4 about the environmental statement and inform them that they may make representation.
...
Schedule 4
BODIES TO BE CONSULTED
1. Any adjoining planning authority where the proposed development is likely to affect land in their area.
2. ...
3. The Countryside Commission for Scotland.
4. The Health and Safety Executive.
5. The Nature Conservancy Council.
6. ...
7. The River Purification Authority for the area in which the proposed development is situated.
8. The Secretary of State.
Regulation 20
20.-(1) For the purpose of calculating the period of time which elapses before the planning authority give notice to the applicant of their decision on an application for planning permission under article 10(5) of the general development order, no account shall be taken of any period falling between the date of receipt of the application and the occurrence of such of the events specified in paragraph (2) as may be applicable to the case.
(2) The events mentioned in paragraph (1) are -
...
(b) the receipt by the planning authority of an environmental statement relating to the application....
(3) Where a planning authority in determining an application for planning permission take into consideration environmental information relating to that application, article 10 of the general development order shall have effect as if -
(a) there were substituted for the reference in paragraph (5) thereof to a period of two months, a reference to a period of 4 months;
(b) there were substituted for the reference in paragraph (3) thereof to a period of 14 days, a reference to a period of 28 days; and
(c) in paragraph 3(b) thereof, there were a reference to whichever of the following dates is later -
(i) the date on which a notice in accordance with article 7(5) of the general development order was published by the planning authority, or
(ii) the date on which a notice in accordance with Regulation 16(4) was published.
..."
[26] The effect of Regulation 12 is that, whenever an application is made for planning permission, the planning authority must decide whether Regulation 6 applies because the development falls within paragraph (1)(a) or (1)(b). In most instances that decision will be easy, either because the development plainly falls outwith the provisions of either Schedule 1 or Schedule 2, or falls plainly within a category in Schedule 1. The construction of a dwellinghouse plainly falls outwith the terms of either Schedule. On the other hand Schedule 1 relates to major developments with clear environmental implications such as oil refineries, power stations, chemical installations etc. In some instances the decision will be a difficult one and that applies to certain decisions under paragraph (1)(b). Regulation 6(1)(b) applies to a development falling within the categories listed in Schedule 2, where that development "shall be likely to have significant effects on the environment by virtue inter alia of its nature, size or location." In Schedule 2 the final category of development to which that test must be applied is "other projects", and within that category falls "hotel complex". If a decision is made that a development falls within Regulation 6, then the developer is so informed in terms of Regulation 14 and must provide an environmental statement if he wishes the application to proceed further. Should the decision be that the application is not one to which Regulation 6 applies, then the application should be processed in the normal way within the normal time limits and without further application of these Regulations thereto. The planning authority might of course insist upon obtaining further information from the developer on any particular environmental issue that arises in the course of consideration of the application, but that would be done in accordance with the general powers of the authority.
(b) The Decision Not to Require an Environmental Statement
[27] In his submissions for the planning authority, adopted by Mr Martin, Mr Reid conceded that within four weeks of the receipt of an application for planning permission the authority were bound to decide one way or another whether to require an environmental statement. He insisted that that is a one-stage question. The question to be asked in relation to an application for a development which might fall within Schedule 2 is: "Is this a Schedule 2 application which is likely to have significant effects on the environment?". While I agree that that is the question which must be answered, within that question are two separate issues, the determination of either of which can give an answer to the question. Exactly what has been decided depends, therefore, on the approach that is taken to these issues. A planning authority could decide that an application was not an annexe 2 or Schedule 2 application at all, and could therefore answer the question without considering the environmental impact of the development. On the other hand the planning authority could decide to deal with the question of environmental impact first. If the answer to that issue was that the proposed development was not likely to have any significant effect on the environment, then it would not be necessary to determine whether the application fell within any of the categories of Schedule 2. Indeed Regulation 6(3), in its substantially amended form, seems to require that particular question to be addressed in relation to every potential annexe 2 application. Its original terms were:-
"(3) Subject to any directions by the Secretary of State, for the purposes of paragraph (1)(b), a proposed development shall only be taken to be likely to have significant effects on the environment by virtue inter alia of its nature, size or location where the applicant and the planning authority accept that this is the case.
[28] Against that background I found it unhelpful to be told by Mr Reid and in the first respondent's Answers, after a catalogue of the environmental material which the first respondents had before them, that "they did not require the second respondents to provide a statutory environmental statement. That was a view the first respondents through their officials were in the circumstances entitled to reach". While the first respondents' counsel very helpfully guided me through all the significant environmental material they had before them, the first respondents have pointedly failed to say that it was an assessment of the likely impact on the environment that led to the decision. On what I have been told on behalf of the first respondents it is as likely as not that the decision not to require an environmental statement was taken because the application was not considered to be one which fell within a category listed in Schedule 2. The high point of the first respondents' case on this issue in both submission and pleadings, is: "The matter was considered and a view was taken by experienced officials not to require an environmental statement."
[29] The first question for me to determine in this chapter is whether a decision was made by or on behalf of the planning authority whether to require an environmental statement, at any stage after the lodging of the application, but in particular within the four weeks immediately thereafter. For a number of reasons I find it impossible to determine that issue on the information presently available to me. As I have already said, the basis of the decision has not been explained. The decision is not recorded anywhere. It was the practice of the authority not to record decisions not to require an environmental statement. Mr Reid was not able to say whether the decision was made after one meeting or several meetings. The decision was made by officials. He explained that, in the absence of any record, it was not possible to say definitively which officials were involved or on what basis the decision was made. He maintained that it did not matter who the officials were who made the decision. Nevertheless he advised me that Mr Rae, the Director of Planning, and Mr Birrell, the Area Planning Manager (East), were party to the decision. There may also have been others involved. While Mr Reid was not prepared to accept my suggestion that he was presenting the decision as having "evolved", he did not identify any point at which the decision was made.
[30] Lord Mackay referred to a number of documents which, he submitted, suggested that no decision had been taken within the relevant period. In relation to an earlier application for the same site there was reference in a January 1999 Minute of the Eastern Area Development Committee to an environmental statement being the exception in a case involving a golf course development. The same minute also indicated that none had been required in relation to that application because more than enough environmental information had already been obtained. These statements, said Lord Mackay, indicated that the wrong test for requiring an environmental statement had been applied, and on that erroneous basis a determination not to require one had been made prior to the submission of the application presently being considered. In my opinion these references add fuel to the fire of doubt surrounding the question, standing the information present available. He pointed also to Answer 7 for the second respondents, the Answer dealing with this part of the petitioners' case, in which the second respondents rely upon an agreement made with the planning authority that an environmental statement was not necessary but that a landscape assessment and ecological assessment should be carried out. That agreement must have been reached prior to the present application being submitted since the Landscape and Visual Appraisal which resulted is dated October 1998 and the Addendum thereto is dated December 1998, both pre-dating the present application. Mr Martin submitted that the reference to that earlier agreement did not provide a basis for concluding that later consideration was not given by the developers to the question whether they should produce a statement when they submitted the application, and by the planning authority to the question whether they should require one when the application was lodged. That was almost to suggest that the agreement referred to in Article 7 was irrelevant to the question I have to determine. If that is the view of the second respondents, I am left to wonder why the agreement was referred to at all. Mr Martin could not explain that. The first respondents make no reference to the agreement in their Answers. Mr Reid did not seek to dispute that there was such an agreement, nor to explain it. On 15 October 1999 Mr Birrell wrote to Councillor Melville who had raised with him a number of questions about the environmental impact assessment. In that letter he said this:-
"I have spoken to the planning officers involved in the preliminary discussions with the developer prior to any planning application being submitted and I have also consulted the relevant files. The various assessments which were made concluded that the key impacts associated with the Kingask Proposal would relate to landscape, environment and traffic although it was not felt that either individually or cumulatively these impacts would have a significant effect on the environment.
Although no EIA was specifically requested detailed discussions were held with the developer's consulting team and relevant parties to ensure that the 3 issues identified above in particular were adequately covered by supporting information and analysis...
The proposal at Kingask was not an Annex 1 project (where EIA is compulsory) and it was not considered to be an Annex 2 project taking into account the guidance given in Government Circular (13/1998) and Planning Advice Note 43 on golf courses and associated developments. In addition it did not involve a nationally designated landscape site and the SSSI (site of special scientific interest) was excluded from the site. The proposal also involved some 'reserved matters' from the previous outline planning application."
Quite apart from indicating the distinct possibility that the decision not to require an environmental statement was made prior to the submission of the application, that letter does not even make it clear that Mr Birrell was involved in the decision. For all these reasons I cannot be satisfied on the material presently before me that a decision not to require an environmental statement was taken during the relevant period. The submission for the petitioners went further, and was to the effect that no such decision was made between the submission of the application and its determination on 7 July. The respondents do not contend that any decision was made during the period after four weeks from the date of submission of the application, and there is accordingly no issue between the parties in relation to the period after 30 March.
[31] Lord Mackay laid weight on two documents whose tendentious nature tended to indicate that they were prepared for the purposes of this case. One sets out the case for believing that the council's scheme of delegation authorised the officials to make the decision. The other sets out the factors to which the planning authority through their officials had regard in arriving at their decision. Neither states that a decision was consciously taken by officials. I do not consider that they assist since they may well have been written to deal with issues other than the question whether a decision was taken during the relevant period.
[32] Counsel for both respondents submitted that the existence of doubt about whether a decision was made was insufficient for the petitioners to succeed. It was for them to establish positively that the decision was not made. There was no onus on the planning authority to establish that it was. I do not consider the matter to be one of onus. I am invited by all parties to try to determine the issue in the light of the pleadings, the documents, including affidavits, and the submissions. Any doubt could be resolved in a number of ways, including ordering the production of affidavits or appointing proof at a second hearing were it necessary to decide the point to determine the merits of the petition. Whether it would be necessary or indeed appropriate to resolve the issue will depend on the view I form on the other arguments in the case to which I now turn.
(c) Had Officials Power to make Decision
[33] Separately Lord Mackay submitted that the officials had no power to make the decision. The first respondents' scheme of delegation gives the Head of Planning power to determine all planning applications which comply with the Council's planning policies and in respect of which no relevant representations or objections have been submitted. He also has power to determine whether any representation or objection made in response to a planning application is a relevant representation or objection for planning purposes. It was not disputed that the power to make a decision whether to require an environmental statement was not specifically delegated. It was Lord Mackay's contention that the scheme of delegation was not written in terms which delegated the statutory duty to determine that question. Under
reference to R. v Powys County Council, ex p Andrews [1997] Env.L.R. 170 and R. v St Edmundsbury Borough Council, ex p Walton [1999] Env.L.R. 879, he submitted that the decision was one for the Council to make unless it had been specifically delegated to officials. In Powys County Council there was specific delegation of the power to make the decision whether an application was a Schedule 1 application under the Regulations to the Director of Architecture and Planning following consultation with "the Chairman and Vice Chairman and other members of the committee which the Chairman deemed appropriate." The failure of the Director to consult before making the decision led to the determination by Jowitt J that the decision was made without the power to make it. In St Edmundsbury the power had not been specifically delegated. In determining that the decision, having been made by a planning officer, was unlawful, Hooper J. said this at p. 884:
"There can be no doubt that the decision whether or not to require an applicant to submit an environmental statement is an important one. That decision having been made... the more rigorous procedures of the ... Regulations come into play. If the local authority wishes to delegate the ... decision to an officer, it must formally do so. It having not done so, Mr Fuller's decision must be quashed unless ... this Court were to exercise its discretion not to do so."
For reasons to which I shall return, both judges decided to exercise their discretion not to quash the decision. In both cases the Court was considering the equivalent English Regulations which are on this matter not materially different from the Scottish Regulations. On the strength of these authorities Lord Mackay submitted that the officials of the planning authority were not entitled to make the decision whether or not to require an environmental statement. Their decision should accordingly be quashed with the effect that the planning authority had failed to discharge their statutory duty.
[34] The respondents' answer was to rely on what they submitted was the long-established and judicially recognised rule that power to act on behalf of an authority may be delegated by practice. In Dalziel School Board v The Scotch Education Department 1915 S.C. 234 it was decided that powers conferred upon the Department by statute could, in accordance with the settled practice of the Department, be exercised by the Vice President without the knowledge or concurrence of the other members of the Department. The case related to an appeal by a schoolteacher to the Department against her dismissal by the education authority. Following the lodging of the appeal the Secretary of the Department intimated that, as a result of inquiries made, the Department were of opinion that the dismissal was not reasonably justified and that it was their intention, in the event of further action on their part being necessary, to attach to the resolution of dismissal the condition that the Board pay the teacher a sum equivalent to three months salary. In reply the Board intimated that they adhered to their resolution to dismiss her. In reply to that the Assistant Secretary of the Department wrote to the Board that the Department in exercise of their statutory powers attached that condition to the resolution dismissing the teacher. The Board contended that the duty of ordering an inquiry into dismissal and of deciding thereupon fell to be discharged by the Department, which was a Committee of the Privy Council, and not by officers thereof. The Department's response was that their business was conducted by the Secretary of the Department acting by and under the directions of the Vice President in accordance with the practice invariably followed since 1885. After reviewing the duties of the Department to administer education in Scotland under the Education (Scotland) Act 1872 and the conduct of the business of the Department through officials since 1885, Lord Dundas said this at p.244:-
"It seems to me, therefore, to be reasonably clear that the Department might, if they thought fit, competently leave the general conduct of their business to their secretary acting by and under the direction and authority of the Vice President, and, if this had been formally done, eg, by a minute or resolution of the whole members, I do not think such a step could have been challenged as being contrary to the intent of the letter of the statute. The defenders aver that, in accordance with their uniform practice since 1885, the business of the Department has been conducted in this way. The pursuers' counsel argued, and I agree, that no practice could make that legal which was illegal as being contrary to the statutes; but I do not see that this method of conducting the business, if it might competently have been authorised by a formal resolution, could not with equal competency be sanctioned informally by the tacit practice of the Board."
Lord Mackenzie at p. 247 said:
"The difficulty is to find out how upon record the defenders bridge over the hiatus between section 21 which speaks of the Department doing something, and uses such language as 'if as the result of such inquiry they are of opinion that the dismissal is not reasonably justifiable, they shall communicate such opinion to the School Board' and the defenders' statement 2, which sets out that the opinion complained of is the result of the labours of a single individual. I have come to the conclusion that the only feasible way, in this case, of getting over the difficulty, is to hold that there has been tacit delegation by the Department to one of their number. ...In my opinion it would have been competent for the members of the Department to have delegated in express terms, by minute or otherwise, the duty entrusted to them ... to the Vice President. If they could have done so expressly, then, in my opinion, they could by practice impliedly sanction such a delegation."
Although the Answers for the planning authority rely upon their scheme of delegation as the basis for the matter being determined by officials, Mr Reid invited me to view their averments in the light of the opinions in Dalziel School Board. He acknowledged that there were circumstances, and this case might well be one, in which the decision whether to require an environmental statement would be a difficult one. On the other hand in many cases it will be simple. However, he submitted that the difficulty or otherwise of the decision to be made was not the determining factor. He therefore invited me not to follow the opinion of Hooper J. in St Edmundsbury. He pointed out that Dalziel School Board was not cited in that case and that it had not been suggested to me that a similar rule existed in England.
[35] In addition to St Edmundsbury Lord Mackay relied on the clear statement of the Court of Appeal in Western Fish Products Ltd v Penwith District Council & Anr. [1981] 2 AllER 204 at 219B-H that formal delegation of authority to planning officials is essential, failing which they have no power to perform duties entrusted by statute to the authority. Again Mr Reid made the point that Dalziel School Board and Scottish practice were not considered. Lord Mackay further submitted that the requirement of established practice rather begged the question of the point at which it can be said that such implied authority exists. In any event, he submitted, existence of such a practice rendered the statutory provisions being considered in the English cases and the equivalent Scottish provisions redundant and would be inconsistent with them. They authorised a local authority to "arrange" for the discharge of their functions by delegation, which obviously required that the authority be given in advance of the function being discharged. The difficulty for Lord Mackay was that Dalziel School Board has stood unchallenged for 75 years. With a view to distinguishing it, he suggested that its application was restricted to the work of central government by bodies which were not the creature of statute. However, he was bound to recognise that the Scottish Education Department was constituted by statute under which it was composed of members of a committee of the Privy Council, and that the appointment by the Queen of the Secretary of State for Scotland as Vice President was provided for by statute. There is also no indication in the Opinions that they were not intended to apply to administration generally.
[36] I agree with Mr Reid that neither the importance of the particular decision to be made nor the identity of the decision making body as an organ of central government is the determining factor. The question is a mixed question of fact and law whether the power to make the decision was delegated to the officials who made it. It is plain on the authority of Dalziel School Board that the power to make a decision about the information to be furnished to an authority in the course of their consideration of an application can be tacitly or impliedly delegated to officials by established practice. It is not necessary to classify the act or decision as "procedural" before it is capable of such delegation. It is sufficient if the act or decision is one ordinarily made by an official in the ordinary course of processing an application. In this case it was agreed that the decision whether or not to require an environmental statement has to be made in relation to every planning application submitted. The procedure and timetabling of the application depends on the decision made. The Council's own scheme of delegation must be read in the light of the opinions in Dalziel School Board. In terms of that scheme the Head of Planning, and therefore officials acting under his authority, are authorised to determine all non-controversial planning applications. They accordingly have specific delegated authority to take all decisions along the way in relation to such applications, and that must include the decision whether or not require an environmental statement. There is also delegated to the Head of Planning authority to determine whether any representation or objection in relation to a planning application is a relevant representation or objection for planning purposes. Where one arises, he is bound to report the application to the Council. In my opinion any practice of the planning authority whereby decisions whether or not to require an environmental statement are made by officials acting under the authority of the Head of Planning is entirely consistent with that scheme. Both the opinions in Dalziel School Board and the terms of the scheme are entirely consistent with the statutory provisions governing the arrangements local authorities including planning authorities may make for the discharge of their functions through officials. There is no reason why delegation by established practice cannot co-exist with formal delegation, especially since it is the very fact that the power can be formally delegated that enables it to be delegated by practice. The relevant provisions of the Local Government (Scotland) Act 1973 are these:-
"56(1) Subject to any express provision contained in the Act or any Act passed under this Act, a local authority may arrange for the discharge of any of their functions by a committee of the authority, a sub-committee, an officer of the authority or by any other local authority in Scotland.
(2) Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority.
64(1) Subject to provisions of this Act, a local authority shall appoint such officers as they think necessary for the proper discharge by the authority of their functions..."
[37] The final question is whether the facts of the case bear out the contention that delegation was implied by established practice. In Dalziel School Board that was established by averment which was not contradicted. In the present case, as I have already explained, the question of implied or tacit delegation is not the subject of averment. I was advised by Mr Reid that the practice followed in relation to every application was that at official level a decision was made whether or not to require an environmental statement. In the difficult cases, such as the present, a number of officials would discuss the question before making the decision. That established practice had been followed in this case. As with the question whether a decision was made at all by officials, I find the information presented to me an unsatisfactory basis for determining the issue whether an established practice existed and was followed in the present case. Had the matter been the subject of clear averment the position might have been different, since the Court could well have confidence in a clear assertion made on behalf of a local authority at an early stage in the proceedings. However, what has emerged is an argument not heralded in the pleadings based on a rule about established practice which was not referred to in the document which appears to be the Council's own view of the effect of its scheme of delegation as sufficient in itself to delegate the necessary authority. This is a further matter, about which, if it had to be determined, the Court would require further evidence.
[38] A decision will be a valid decision where it is made at official level in accordance with an established practice of leaving such decisions to officials, the particular official or officials varying according to the circumstances of the decision, where the decision is plainly one that could be delegated in terms of the Local Government (Scotland) Act 1972 and where it is consistent with the scheme of delegation made by the authority.
(d) Irrationality
[39] On the assumption that a decision not to require an environmental statement was validly made, Lord Mackay further submitted that that decision was one that no planning authority or official thereof with delegated power acting reasonably would have made. He relied on a number of documents. A number of these were not compiled until after 30 March 1999. Initially Lord Mackay suggested that a decision to require an environmental statement could have been made at any time up until the application was determined. That is, however, not the case. The decision had to be made by 30 March. Any document compiled thereafter is accordingly relevant to this issue only insofar as it is indicative of material available to the decision maker or which ought to have been within the knowledge of the decision maker by that date.
[40] The material available prior to March included a Landscape and Visual Appraisal prepared by Land Use Consultants on behalf of the developer in October 1998 and an Addendum thereto compiled in December 1998. I was advised that these were prepared for an earlier application which was similar to the development which is the subject of this petition. It was Lord Mackay's submission that it was inconceivable for any official who read these documents to say that the proposed development would not be likely to have significant effects on the environment. The October document concluded that there would be significant landscape and visual effects varying from minor to major. The latter included the change to certain views due to construction of the proposed hotel and the initial scale of the effect on the daytime view from St Andrews Walkway over the first two years, and the loss of the existing agricultural landscape character. Some of the effects are described as beneficial in nature. The impact of the development on the landscape and views is considered in some detail. The document pointed out that the loss of the agricultural landscape would be tempered by the creation of a new landscape in its place, and proceeded to identify the potential for additional mitigation of adverse effects of the proposed development by additional planting, and by paying particular attention to the design of lighting to reduce the effect on night views from St Andrews and to the detailed design of the clubhouse building and the surroundings to mitigate the impact of the development on the Coastal Hills landscape character type area.
[41] The Addendum reflected modifications in the proposed design of the scheme resulting in changes in its landscape and visual effects and set out an assessment of the resultant landscape and visual effects, including:
"1.4 Construction and operation of a hotel and golf course will have significant effects on the landscape character of the site. These are likely to be both adverse and beneficial in nature. "
The Addendum also noted significant reduction in the scale of change by omitting part of the buildings and associated planting to reduce the impact on the Coastal Hills landscape character type. The reduction was considered to be of significance. However the conclusion was:
"1.7 Overall, however, based on the loss of the existing agricultural landscape, the change in character is considered to be an adverse effect of major significance. As subsequent paragraphs describe, this effect will be tempered by creation of a new landscape in its place.
...
In relation to visual effects the conclusion was:
"1.24 The revisions to the proposed development therefore have reduced the scale of adverse visual effects associated with the scheme. In particular, they reduce the prominence of the hotel building itself, reduce the closure of views along the open coastal hills and provide more effective integration with existing woodland and other structural elements of the existing landscape. These changes, including the introduction of mature planting, will therefore reduce the effects on initial views of the development, which will further diminish adverse effects as the landscape matures.
1.25 The scale of the effect on the daytime view from St Andrews Walkway is initially judged to be of major significance and adverse in nature. The scale of this effect is predicted to decrease to moderate after two years when all landscape works have been completed. After 25 years, the effect is predicted to be of no significance. The adverse effects on other viewpoints are considered to be of a lesser magnitude."
[42] Lord Mackay then pointed to a recent affidavit of David Harold Tyldesley, an experienced landscape architect and chartered town planner, who provided a strategic landscape and visual appraisal of the impact of the proposed development at Kingask to the first respondents on their instructions on 28 May 1999, as a clear indication that any planning official acting reasonably would have required an environmental statement. In the affidavit at page 3 Mr Tyldesley said this:-
"I concluded and reported to the Council that the Kingask Landscape Unit was one of the least sensitive of landscape units in the St Andrews Local Plan Area for accommodating golf course developments. I also reported that the Kingask proposal, as then being considered, would have a significant adverse effect on landscape character owing to the scale and location of the new built development and too formalised landscape design."
That statement appears to put the Kingask proposal plainly among those for which an environmental statement ought to be required. Strangely on page 4 Mr Tyldesley went on:-
"Given that the Kinggask development proposal had been submitted to the Fife Council at the time when the 1988 Regulations and associated Government policy applied, I would not have expected a formal, statutory environmental impact assessment to have been either required by the Council or offered by the applicants. This is on the basis that the development proposal would not have been considered to have been significant in terms of the interpretation of the Regulations at that time."
While that last sentence appears to relate to the significance of the development proposal and does not mention its likely impact on the environment, I assume that it was to the likely environmental impact of the development proposed that Mr Tyldesley meant to refer. If that was his view in relation to the application as it stood when he drafted the report, it is very odd that he should have described the impact of the proposal in the terms in which he did on page 3. He is familiar with the language of the Regulations. He does not appear to have used language loosely in the affidavit. Its terms simply reflect the words he used on page 10 of his report. Lord Mackay pointed out that the subsequent report to the Committee which determined the application made no mention of any modifications to the proposal to qualify that assessment, and the grant of planning permission gave no indication that any material modifications of the proposal would or could be insisted upon.
[43] The petitioners presented an affidavit of Mark Turnbull, another landscape architect with experience of landscape and environmental assessment. In it he expresses views on matters of law such as the status of any guidance from the Secretary of State in interpreting the Regulations. Under reference to Mr Tyldesley's report and the Appraisal and Addendum by Land Use Consultants he concludes that the expert advising the Council and the consultants advising the developer expressed clear views which brought the application plainly within the scope of Regulation 6 as an annexe 2 application where the proposed development would be likely to have significant effects on the environment by virtue inter alia of its nature, size or location.
[44] In all these circumstances, submitted Lord Mackay, the decision not to require an environmental statement flew in the face of reason and was unreasonable in the Wednesbury sense.
[45] Weight was also laid on a letter dated 31 March 1999 from Scottish Natural Heritage objecting to the proposed development. In that letter their view was expressed thus:-
"SNH consider that the development as proposed will result in a total change to the existing landscape character and introduce a substantial amount of new development into the open coastal landscape. ... The proposed development will result in significant and adverse visual and landscape impacts. These impacts comprise loss of existing landscape character, adverse impact on the landscape setting of St Andrews, erosion of the landscape quality associated with the AGLV and proximity of the development to the coast and associated adverse impact on people's experience of the landscape and views from the coastal footpath."
It is difficult to lay any weight on this objection since it was submitted after the expiry of the four week period. However, earlier letters dated 26 November 1998 and 15 January 1999 had been submitted in relation to earlier proposals by the same applicants for the same site. In both letters SNH expressed the view that the location, scale and nature of the proposed development would have a significant adverse visual and landscape impact. Until the letter of 31 March was submitted the earlier letters were not documents to which the Council were bound to have regard. They were material in their possession in relation to an earlier application which had a bearing on the question and issue. They are, however, a make-weight in respect of this matter. The same applies to a letter dated 14 June 1999 from Historic Scotland in which they expressed concern that the development would introduce a significant change in character to the landscape setting of St Andrews because of the replacement of agricultural land with golf courses and the introduction of large new buildings, two of which would have an impact upon the wider landscape and views from St Andrews and the coastal path.
[46] In reply Mr Reid emphasised the high hurdle that must be leapt to satisfy the test of "irrationality". He reminded me that, if an issue is debatable or there is room for differing views, then irrationality cannot be established. In Regulation 6 the words "significant effects" and "likely", words of broad import, had been used deliberately to make it clear that the question was one of fact and opinion for the decision maker on a matter on which views might in certain circumstances differ widely. The developer, who was professionally advised, did not submit an environmental statement. Land Use Consultants who advised the applicants apparently did not consider one should be lodged. However, I am bound to observe that in Answer 7, to which I referred earlier, the second respondents state that they consulted with the planning authority on the question whether an environmental statement should be prepared and that it was following agreement that one was not necessary that Land Use Consultants were instructed. It is difficult, therefore, to make anything of their view or lack of it on the particular question whether an environmental statement ought to have been required. Mr Tyldesley's subsequent conclusion in his affidavit was that under the 1988 Regulations one was not required. Scottish National Heritage at no stage suggested that one should be obtained, although they did in relation to an application for a similar development at Scooniehill at a meeting of the Strategic Development Committee of the planning authority on 17 June at which the present development was also considered. No body mentioned in the documents before the Court, other than the local Community Council, suggested that an environmental statement should be obtained. No-one had complained that he was disadvantaged by the lack of one. Fourteen other public bodies made representations to the planning authority about the application at one stage or another and none had suggested an environmental statement. Indeed one of these bodies, the St Andrews Preservation Trust Ltd, of which certain of the first petitioners are trustees, did suggest an environmental statement in respect of another golf course related development at Feddinch at the same meeting. Mr Reid submitted that the lack of suggestion that an environmental statement should be obtained was not surprising, given the thorough scrutiny the application received from the planning authority in the light of the wealth of information obtained and publicly available for perusal and the extent of public discussion that took place.
[47] Mr Reid relied also on a report prepared by the Parr Partnership in February 1999 for the developer and submitted to the Council. They are a partnership of architects and town planning consultants. In the report certain issues in relation to the landscape and the location of the buildings were addressed and a concluding view was expressed as follows:-
"7.1 Every effort has been made in the development of the design principles to achieve a project which will fit well within the landscape... The development is situated almost two and a half miles from the nearest viewpoints in St Andrews and with the landscaping measures proposed and the materials used the hotel development itself will be barely visible."
That was material the decision maker was entitled to take into account. In relation to Mr Turnbull's affidavit Mr Reid pointed out that Mr Turnbull recognised at paragraph 9 that it was a matter of judgment whether a development was likely to have significant environmental effects.
[48] In relation to the contents of the Land Use Consultants' Appraisal and Addendum Mr Reid's principal submission was that they related to a spent application and were irrelevant to the present one. However, even assuming that they could be applied to the present application, the principal factor to be gleaned from them was that Land Use Consultants did not recommend an environmental statement. That was the obvious conclusion to be drawn from the fact that none was submitted. It followed that the word "significant" was not used in these reports in the sense of the Regulations. In any event it was plainly recognised in the Addendum at 1.7 that the change in character of the agricultural landscape and the adverse effect thereof would be tempered by the creation of a new landscape in its place. The same applied in paragraph 1.10 where it was said that the overall adverse effect on the landscape of major significance caused by the change in character through loss of farm land and its replacement with the golf course and associated buildings would be off set partially by the creation of a new landscape and in the long term the creation and maturation of a new landscape would produce a positive effect of major importance. A similar point was made in relation to the view from St Andrews as follows:-
"The change in the view from St Andrews is initially judged to be adverse and of major significance. This judgment is based largely on the perceptible change in the character of the view from agricultural to developed recreational taking place during the construction stage. Upon completion, however, due to the planting of mature trees, this effect will be reduced. As the woodland matures, the effect will still be significant but the perception of change and the prominence of built elements will be reduced".
All of that, said Mr Reid, pointed to Land Use Consultants' conclusions pointing towards the view that an environmental statement was not necessary. Mr Martin adopted these submissions.
[49] In my opinion it is difficult to see that these references by Mr Reid make any real dent in the general thrust of the Land Use Consultants' Appraisal and Addendum which is plainly to the effect that the development is likely to result in significant effects on the environment by virtue inter alia of its nature, size or location. The real question is the context in which "significant" was used in the reports. Of the experts, whose opinion might be relied upon, Mr Turnbull was the only one who expressed the view that an environmental statement ought to have been provided or required. Having expressed that view, however, he went on to acknowledge that all issues which would have been likely to give rise to significant environmental effects were considered. What was particularly striking about Mr Turnbull's opinion was that, having subjected all the material before the Council to detailed scrutiny, he was unable to identify any relevant issue which had not been addressed. He does identify issues on which his opinion differs from those compiling reports and he points to what he considers to be omissions and deficiencies in the opinions expressed and advice given, such as the failure of Land Use Consultants to assess the effect of the development on the overall policy objectives of the AGLV. However, he does not identify any environmental issue which was not brought to the attention of the planning authority and sufficiently identified in the course of the planning process to enable the public to make comment thereon. Against that background the question for the Court is whether there was room for the decision maker to determine that the development was not likely to have a significant effect on the environment. "Significant" plainly means something more than "not totally insignificant". There must be a threshold of significance which ought to trigger a requirement for an environmental statement.
[50] To identify the threshold Mr Reid turned to guidelines issued by the Secretary of State and now the responsibility of the Scottish Executive. While the guidance did not have the force of law, the planning authority were bound to have regard to it in considering applications. The relevant guidelines are contained in a S.D.D. Circular No 13/1988 dated 12 July 1988. The crucial guidance is in paragraph 19 as follows:-
"19 In general terms the Secretary of State's view is that EA will be needed for Annex II projects in 3 main types of case:-
19.1 for major projects which are of more than local importance;
19.2 occasionally for projects on a smaller scale which are proposed for particularly sensitive or vulnerable locations;
19.3 in a small number of cases, for projects with unusually complex and potentially adverse environmental effects, where expert and detailed analysis of those effects would be desirable and would be relevant to the issue of principle as to whether or not the development should be permitted."
It was Mr Reid's submission that in light of that guidance it could not possibly be said that the decision not to require an environmental statement was irrational. He referred to paragraphs 27 and 29 and examples in Annex C as indicating that fairly high thresholds required to be reached before an environmental statement was required. There is no doubt that in general terms the thresholds indicated are fairly high. However, it is difficult to relate them to the present case since the examples given generally concern developments involving nuisance and pollution rather than altered landscape and views of the landscape. From a review of the guidance Mr Reid drew support for the submission that "significant" means "high" or "major". That would explain why there was an apparent but illusory contradiction in Mr Tyldesley's affidavit between his use of "significant" and his conclusion. His conclusion related to "significant" in the sense of the Regulations as they should be understood in the light of the guidance. If that is truly the case it is difficult to understand why a three point scale of high, medium and low was used in Mr Tyldesley's report. It seems to me the answer lies elsewhere. In his report Mr Tyldesley looks at two separate issues, viz. "Effects on the Landscape" and "Visual Effects". He grades the effects, both adverse and beneficial, according to the three point scale. In the end, however, the question he has to answer is whether the development is likely to have significant effects on "the environment". That seems to me to involve an overall assessment of the results he has noted in relation to "the environment" which is a far broader concept than either of the two individual features of the environment he was considering in the initial grading exercise. It is thus understandable how Mr Tyldesley could have reached the conclusion he did. However, the difficulty with my analysis and that of Mr Reid is that both are really speculative. When Mr Tyldesley wrote his report, the time for making the decision whether or not to require an environmental statement was already past. He was unlikely in these circumstances to make the point in his report that one was required. His affidavit appears to be an attempt to rationalise the use of language which was possibly somewhat loose, bearing in mind that the application was to be determined under the old Regulations. He reported on the basis of full information available at 26 May 1999 and in particular on the basis of full landscape details in respect of the Kingask proposal. On the strength of the information presently before me it is not at all clear to me why he should consider the impact on the environment of specific proposals already before the Council as planning authority in the light of Regulations not in force in Scotland, albeit similar Regulations came into force in England in March 1999.
[51] The two striking elements in Mr Reid's submission which make it impossible for me to decide that no decision maker acting reasonably could have decided not to require an environmental statement are the absence of such a suggestion from any source other than the Community Council, in particular the absence of any suggestion from the St Andrews Preservation Trust which made such a suggestion in relation to another similar application, and the terms of the Scottish Office guidance. In the light of these factors it could not be said that the decision maker so deciding was acting irrationally. I appreciate that the various parties commenting did in most instances make their comments after the four week period had expired. They made their comments, however, in circumstances in which I would have expected them to either suggest an environmental statement or complain of the absence of one. The bodies were mostly bodies with a particular interest in either buildings or the environment or both, such as the Architectural Heritage Society of Scotland, The Scottish Civic Trust, The Association for the Preservation of Rural Scotland and various tourist boards, in addition to those I have already mentioned.
(e) Discretion
[52] Recognising the possibility that I might, as I have done, find against the respondents in respect of one or other of the branches of the argument about the environmental statement, Mr Reid submitted that, since the failure to require the environmental statement had no practical effect, I ought to exercise my discretion to refuse the petition. Lord Mackay maintained that I did not have such discretion in the face of a failure to comply with a specific obligation introduced in Regulations to give effect to a duty imposed by a European Directive. Since counsel were agreed that in general the Court has a discretion to refuse a remedy to which a party would otherwise be entitled on judicial review if that would achieve substantial justice between the parties, the first question was whether the combined effect of the Directive and the Regulations was to remove that discretion in respect of the decision whether or not to require an environmental statement. That question has now been considered by the Court of Appeal in England, and may yet be considered by the House of Lords, in Berkeley v Secretary of State for the Environment and Fulham FC [1998] Env.L.R. 741. The Secretary of State had failed by simple omission to require an environmental statement which he ought to have required. It was decided, following a review of English and European Court of Justice authority, that the inherent discretion in the Court to refuse to quash a decision, if the objectives of the legislation were in substance achieved by the procedure followed, was not limited by the Directive 85/337 EEC, the Directive in issue in this case. While that decision was made in an application under section 288 of the Town and Country Planning Act 1990, the procedure followed was the equivalent of judicial review in relation to an identical decision to that presently under consideration. Following a review of the authorities Pill LJ, with whom Nourse and Thorpe LLJ. concurred, concluded thus:
"The Court must be satisfied that the objectives of the Directive are met. However, the Court retains a discretion, notwithstanding the absence... of ... a statement ..., to decline to quash a decision if the objectives are in substance achieved by the procedure followed. These objectives include the provision of appropriate information in a comprehensible form, making the public aware of the environmental implications of a project, giving an opportunity to the public to express opinions about it, and the decision-maker taking account of opinions expressed and making an overall assessment when reaching a conclusion.
While an environmental statement should of course be provided in the form required by... the Regulations, it is legitimate upon a section 288 application to have regard to all the circumstances. I am satisfied that Community law does not require the elimination of the discretion available to an English Court under section 288(5)(b) of the 1990 Act."
[53] I agree with that view that the Court retains an inherent discretion to not quash a decision where there has been a failure to follow correct procedure under Regulations but their aims and objectives have nevertheless been achieved in substance. Berkeley and authorities referred to therein were considered by Lord Nimmo Smith in WWF-UK Ltd & Another v Secretary of State for Scotland [1998] Env.L.R. 632. While not dealing directly with the question of discretion to refuse a remedy Lord Nimmo Smith did consider the aims and objectives of the Directive and at page 712 and 713 said this:-
"I would respectfully adopt Pill LJ's summary in Berkeley of the objectives of the Directive as including the provision of appropriate information in a comprehensible form, making the public aware of the environmental implications of a project, giving an opportunity to the public to express opinions about it, and a decision maker taking account of opinions expressed and making an overall assessment when reaching a conclusion. This appears to me to be consistent with the approach of the European Court of Justice in Grosskrotzenburg at p.42 and 43, the main requirements of which were the provision of specific information by the developer, on the basis of which the public were made aware of the environmental implications of a project and had an opportunity to express an opinion. These two passages appear to me to be no more than a reflection of what is normally understood of the process of public consultation in any particular issue. ....
The lack of substance to the petitioners' submission appears to me to be demonstrated by the inability of counsel for the petitioners to point to any material provision of the section 50 agreement and Draft VMP (Visitor Management Plan) on which there had not been public consultation at an earlier stage. The situation in the present case appears to me to be a fortiori of that in Grosskrotzenburg and Berkeley, in each of which cases the Court had regard to the substance of the information which was made available to the public, even if not in the form specified in the EA Directive or in Regulations implementing it."
I respectfully agree with the statement by both Lord Nimmo Smith and the English Court of Appeal of the aims and objectives of the Directive. The next question for me is whether these have been so satisfied in this case by the process that was followed that it would be appropriate for me to refuse the remedy sought.
[54] Even if, as appeared to be the view of all counsel, there is an onus on the respondents to demonstrate that the aims and objectives of the Directive have been achieved, a convenient starting point for consideration of the factual position is the submissions for the petitioners on the failings of the procedure that was followed. The submission based on the affidavit of Mr Turnbull went no higher than that the provision of an environmental statement might have resulted in the disclosure of further evidence of environmental impact. I have already noted Mr Turnbull's concession that all issues which would have been likely to give rise to significant environmental effects were identified in the course of the process. Mr Turnbull's complaint is that the reports available to the Council did not assess the effect of the development on the overall policy objectives of the AGLV in which it is located nor the effect on the character of St Andrews and its landscape setting. There are a number of other minor criticisms. Yet it is plain that the fact that the development was located in an AGLV was recognised throughout the process of determining the application. The impact on landscape and views was considered in detail as illustrated by the reports quoted above, and that the Council were alert to the importance of the effect of the development on the character of St Andrews and its landscape setting was recognised by Mr Turnbull in his affidavit. In the end he concludes that, had an environmental statement been required, there would have been two beneficial effects. The first was that a wider consultation and longer consultation period might have resulted in responses which identified the deficiencies in the assessment of the impact of the development on the AGLV and the character of St Andrews and its landscape setting. The second benefit was that environmental information would have been presented in a systematic form, including a non-technical summary, enabling the findings of studies and mitigation measures proposed to be more readily understood by non-experts and decision makers. Indeed the Scottish Office guidance provided that the statement should be prepared on a realistic basis without undue elaboration. The argument was that the additional publicity associated with an environmental statement and the provision of one in such a form might well have brought the issues meaningfully to the attention of a wider public and therefore provided more response. What I regard as most significant is that Mr Turnbull does not give any indication that either benefit would have resulted in any practical effect. The application was controversial and widely known to be a burning issue in the area. It is no more than speculation to suggest that further responses might have been received. Mr Turnbull, as a distinguished expert in the field, does not hint at what additional information might have come to the authority from the approach he had in mind to the assessment of the impact of the development on the AGLV and the effect on the character of St Andrews and its landscape setting. While I accept Lord Mackay's submission that it is not for Mr Turnbull to provide the equivalent of an environmental statement to show what would have happened. I consider that the Court is entitled to expect some indication of the practical result that might have followed from the assessment he had in mind. Mr Turnbull recognises that the AGLV and the character of St Andrews and its landscape setting were issues of which the planning authority were aware. With his expertise and experience Mr Turnbull was in a far better position than the public in general to identify relevant issues. He has identified none that were not considered. He was also better placed than the public in general to comment on the quality of the material presented to the Council. He was critical in a number of areas but only on matters in respect of whi
[55] Mr Reid pointed to the procedure actually followed, the material presented to the Council, the opportunity given for further public comment on the material, the orderly presentation of the material and the careful consideration of all material available leading to the decision. I am persuaded by his submission that nothing of substance was lost to the first respondents by the failure to require an environmental statement. In my opinion the aims and objectives of both the Directive and the Regulations were achieved. Any breach was of form and not of substance. The procedure followed made no substantial difference to the quantity or quality of environmental material available to the first respondents. The failure to require the environmental statement accordingly made no difference to the adequacy of the assessment of the environmental issues surrounding the proposed development.
[56] The aims and objectives of the Directive and Regulations are four in number. I have a brief comment to make about each.
[57] The first objective is the provision of appropriate information in comprehensible form. The petitioners make no complaint about the form in which the material was available nor do they suggest that there was any difficulty presented to them in understanding and commenting on any issue.
[58] The second objective is making the public aware of the environmental implications of the development. Great public interest in St Andrews has been aroused by this and other similar applications. There has been widespread interest throughout the community over a considerable period in a number of proposals because of their perceived impact on the surrounding countryside. It is abundantly plain that the public were aware of the potential environmental implications.
[59] The third objective is to give an opportunity to the public to express opinions about a development. In this case many opinions were expressed both for and against in the course of the planning process and there was a public meeting on 17 June. The fact that the proposed development was well known to the public led to many representations being made and a large attendance at the meeting.
[60] The fourth objective is that the decision maker should take into account the opinions expressed and make an overall assessment when reaching a conclusion. All views expressed on environmental issues, including those expressed at the meeting, were placed before the planning authority for its consideration. Before the Strategic Development Committee, which actually made the decision, met on 7 July, the Development Committee for the East Area in which the development is located met on 29 June. Their views were made known to the Strategic Development Committee. The minutes of the meeting of 17 June disclose that a number of submissions were made in relation to this application and these were wide-ranging on environmental issues and were not confined at all to the question the meeting was called to consider, viz, any question of departure from the development plan. Following that and the East Area Development Committee Meeting referred to above, the Director of Planning prepared a report for the Strategic Development Committee Meeting of 7 July addressing all relevant issues including impact on the landscape. Over a number of paragraphs a whole variety of views expressed by various bodies were summarised. The Director then summarised the main arguments for and against the development expressed in a total of 319 representations. Included were the factors particularly referred to in the petitioners' submissions, viz visual intrusion into the AGLV and impact on the character of St Andrews and its landscape setting. The key planning and policy issues raised were summarised. Reference was made to studies previously done and available to the Committee. The key planning and policy issues identified include the visual and environmental impact of the proposed development on the designated Area of Great Landscape Value and the setting of, and approaches into and out of, St Andrews, transport impacts on the local road network of St Andrews and surrounding area including construction traffic, and the economic impact of the development on employment and tourism prospects for the local economy. Thereafter reference was made to various development plan policies relevant to the proposed development. When the decision to grant the application was made at the meeting of the Strategic Development Committee it was by 12 votes against 5 for an amendment that the application be refused on grounds that the development would by virtue of its size and location detrimentally affect an area of great landscape value and adversely impact on views on the coastal footpath, that the development would adversely affect landscape immunity, reduce the quality of the environment and the landscape setting of St Andrews and that the development would create unacceptable traffic congestion in and around St Andrews, reduce road safety and affect adversely residential amenity.
[61] It is in the light of these considerations that I am of the opinion that the decision was made in light of a consideration of all relevant environmental issues and that the requirement upon the developer to provide an environmental statement would not have resulted in additional material of any significance being made available to the first respondents. It follows that nothing would be gained by quashing the decision made and requiring the reprocessing and reconsideration of the application in the light of an environmental statement.
Failure to Notify The Secretary of State/First Minister
[62] On two grounds the petitioners maintained that the application should have been notified to the Secretary of State or First Minister. In the first place they maintained that the application had to be notified because it involved a development which was a significant departure from the development plan. Paragraph 1 of the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 is in the following terms:
"Where any planning authority proposes to grant planning permission for any development falling within the schedule to this Direction, it shall send the Secretary of State ... a copy of the application and plans."
The relevant terms of the Schedule are these:
"8.(a) Any development which the planning authority considers to be a significant departure from a Structure Plan approved by the Secretary of State under section 7(1) of the Town and Country Planning (Scotland) Act 1972.
10. Development affecting:
(i) a Site of Special Scientific Interest ...
where Scottish Natural Heritage on being consulted by the planning authority has indicated that the development will adversely affect such a site and has advised against granting planning permission, or has recommended conditions which the planning authority do not propose to attach to the planning permission."
The petitioners maintained that the first respondents not only failed to notify the Secretary of State/First Minister on both grounds but also that they did not even consider under paragraph 8(a)the question whether approving the development involved a significant departure from the development plan.
[63] I shall deal first of all with the Site of Special Scientific Interest and the position of Scottish Natural Heritage. The case made on record was that Scottish Natural Heritage had informed the Council that the proposed development would adversely affect such a site and had advised against granting planning permission. Lord Mackay departed from that case because it could not be said that in their various letters Scottish Natural Heritage had indicated that the development would adversely affect the site. He presented what he described as a "variation" of that case to the effect that Scottish Natural Heritage had recommended conditions to be attached to the planning permission granted. While the point was not taken by counsel for the respondents, it seems to me that the short answer to this point is that paragraph 10 applies only where Scottish Natural Heritage has indicated that the development will adversely affect such a site. I consider that qualification applies both in the situation where it is claimed that SNH advised against granting planning permission and also where it is suggested that they recommended conditions. Since they did not indicate that the development would adversely affect the site, in my opinion paragraph 10 did not apply.
[64] On the point which was actually debated, I have also come to the conclusion that paragraph 10 did not apply. Where conditions are the issue, the question of notification only arises if it can be said that SNH are recommending conditions which should be attached to the grant of planning permission. While Lord Mackay maintained that the terms of the letter from SNH dated 31 March taken along with their earlier letters in respect of previous applications amounted to recommending conditions which were not fully reflected in the conditions imposed in the grant, I am unable to read the letters as making any such recommendation. In the letter of 31 March in particular there is reference to what SNH "hope" may happen and to their "wish" to be consulted. Thereafter they attended the hearing in June at which the question whether development would involve a departure from the development plan was considered in relation to a number of parallel applications. Again they expressed the wish to be consulted. I do not therefore consider that paragraph 10 of the Schedule applied.
[65] That leaves the question of departure from the development plan. Since the Local Plan has not been approved by the Secretary of State/First Minister, the development plan for this purpose is the Structure Plan. There are four Structure Plan policies referred to in paragraph 11 of the Petition. Two of them relate to issues I have already addressed, namely the obtaining of an environmental statement and the site of special scientific interest. No additional submissions were made by Lord Mackay on these policies in relation to the question of departure from the development plan and no issue arises in respect of these policies in considering the case in paragraph 11. That leaves two policies which Lord Mackay maintained the authority should have realised would be departed from substantially if the application were granted. The first of these is Policy ED13 in the following terms:
"There is a presumption against development which would permanently remove or reduce the quality of prime agricultural land. ... In considering planning applications for the development of prime land, due regard will have to be paid to the views of the Scottish Office Agricultural and Fisheries Department."
No question arose of a reduction in the quality of prime agricultural land. The question was one of the permanent removal thereof. Parties were agreed that permanent removal arose only in relation to the built part of the development. I was advised that it is the policy of the Scottish Office Agriculture and Fisheries Department, now presumably the Scottish Executive Rural Affairs Department, that where the built part of the proposed development involved less than 10 hectares as this one did it was unobjectionable. Lord Mackay maintained that that was irrelevant since the policy relates to the permanent removal of any prime agricultural land. I do not agree that this policy can only be read that way. The policy is a presumption against development having due regard to the views of the Department. It does not seem to me that it would necessarily be a significant departure from that policy to approve an application which includes an element of permanent removal of agricultural land within the range which the Department regard as entirely acceptable. The problem with the Council's position is that the briefing papers for the various meetings make no reference to the 10 hectares guidance, and the report by the Head of Planning and other officials for the decision making meeting on 7 July identifies the development plan as one of the "determining issues" in relation to the application and includes as one of the factors affecting the development plan that the application involves development on prime quality agricultural land without any qualification as to area. The matter is put this way in relation to the development plan:-
"It is a matter of fact that this planning application does involve development on prime quality agricultural land, constitutes development in the countryside, is sited within a coastal location and also located within an Area of Great Landscape Value. This suggests that there are a significant number of issues to be debated and considered before we can arrive at a position where the terms of development planning policies should be over-ridden ..."
That passage was plainly written on the basis that to grant the application would involve some departure from the development plan.
[66] The other policy is E11 in these terms:
"The strategy of the Structure Plan does not support development within Areas of Great Landscape Value (AGLVs) which will have a detrimental visual effect on the landscape."
Whether a development will have a detrimental visual effect on the landscape is a matter of judgment and opinion. The commentary on the policy provided that designation as an AGLV does not imply that no development should be allowed, since adverse visual impacts may often be removed by sensitive design and screening. However, the commentary went on to indicate that exceptions may only be allowed where the developer can demonstrate an overriding need for the development on national or regional grounds which cannot be accommodated elsewhere. It was Lord Mackay's submission that there was no evidence in the documents that the question of an overriding need and the absence of any other place where it might be accommodated had been addressed. He maintained that there was no foundation for the statement in the circular letter, sent after the determination of the application to all who had made representations explaining the Council's position in relation to the development plan, that the policies in the development plan when read in their full context provided reasoned justification for approving acceptable and appropriate development of a tourist and recreational nature.
[67] Mr Reid, supported by Mr Martin, countered by pointing to the Minute of the meeting at which the decision was made. The defeated amendment moved refusal on a number of grounds, the first of which was "that the development would by virtue of its size and location detrimentally affect an area of great landscape value." That was simply the final of many occasions on which the issue was considered. Because the application had been considered as one which potentially involved departure from the development plan, it had been considered at a departure or potential departure hearing on 17 June along with other applications. In the report prepared for councillors attending the meeting all the policies referred to by the petitioners in the Structure Plan and related policies in the unapproved Local Plan were drawn to the attention of the members of the planning authority. Representations made that the development contravened development plan policies were recorded in the document. The potential of the development to impact upon the AGLV was mentioned a number of times. In the end it was a matter for the judgment of the planning authority. They had to make their judgment in the light of the recommendation of the East Area Development Committee that it should be refused. Mr Reid invited me to read the final advice given by the Head of Planning,
"Support for this proposal does not require the abandonment of planning policies. I recommend planning consent should be granted subject to planning conditions under Section 75 Agreement"
as being advice to the Committee, for them to consider, that a significant departure from the development plan policies would not be involved if the application were granted on these terms.
[68] From the foregoing it is plain that the first respondents did have before them and considered the question whether to grant the application would involve a significant departure from the development plan because it involved development on prime agricultural land and because it involved development within an AGLV which would have a detrimental visual effect on the landscape. What was not at all clear is what they actually decided in relation to the development plan. Did they decide that the application did not involve a significant departure? Alternatively, did they decide that it did, but the departure was justified on planning grounds. In the latter case of course they were bound to notify the Secretary of State/First Minister of their proposal to grant such an application. It is not surprising that the Council's position was that the decision made was that no significant departure from the provisions of the development plan was involved in granting the application. As is good practice in terms of Planning Advice Note No 41 the Council issued to all parties who made representations a "Statement on the Development Plan" which they described as the "Council's reasons for approving the proposed development". The critical words are these:-
"The planning application referred to in the accompanying letter involves development on prime quality agricultural land, constitutes development in the countryside, is sited within a coastal location, is located with an area of great landscape value, is adjacent to a site of special scientific interest. The policies in the Development Plan relating to these matters, when read in their full context, provide in each case reasoned justification for approving acceptable and appropriate development of a tourist and recreational nature provided details of the proposal are considered to be satisfactory.
As regards the Fife Landscape Character Assessment, the St Andrews Strategic Study and the St Andrews Transportation Plan, the Council is satisfied that subject to conditions on the completion of a Section 75 Agreement governing the consent, the development is acceptable.
The Council has also had regard to the economic development and tourism policies set out in full in the Development Plan and the St Andrews Tourism Strategy which are relevant and material to the proposed development and with which the development fully complies.
In summary, having regard to the policies of the Development Plan as a whole and all relevant and material considerations, the Council is satisfied that the proposed development is acceptable subject to approved planning condition and delivery of a Section 75 Agreement, the provisions of which have already been approved by the Council."
It is not clear to me from that statement what the first respondents decided in relation to the question of development on prime quality agricultural land or the impact of the development on the AGLV. Counsel for the respondents did not draw my attention to any part of the development plan which when read along with the policies in relation to these two matters indicated that a development which prima facie involved a departure from one or other or both of these policies would not amount to a departure because it was an acceptable and appropriate development of a tourist and recreational nature. I do not regard it as my responsibility to read all the development plan policies with a view to working out the meaning of the first paragraph quoted above from the statement on the development plan. The statement as it stands does not tell me what the Council decided in relation to departure from the development plan. In indicating that the reasons given are not clear I do not mean to suggest that they should be much more detailed. Reasons in such circumstances need not be more extensive than a few sentences as long as they inform the interested observer of the grounds for the decision - Wordie Property Co v Secretary of State for Scotland 1984 S.L.T. 345 at 347. The factors that it should be possible to identify clearly in the reasons are those highlighted in the speeches of Lords Hope and Craighead and Clyde in Edinburgh City Council v Secretary of State for Scotland 1998 S.C.(H.L.) 33 - see in particular page 35G-36D, page 44G-45B and page 49F-G.
[69] Had it been necessary to do so I would have decided the various issues in relation to the development plan in this way. I would have rejected the case in paragraph 12 of the petition relating to the site of special scientific interest for the reasons already given. I would have determined in relation to paragraphs 11 and 13 that the Council did consider whether the development would involve a significant departure from the development plan. I would have accepted the submission for the petitioners that the Council have not given adequate reasons for granting the application in respect that they have not stated clearly what their position was in relation to the development plan. That is essentially the case made in paragraph 14 of the petition. It follows that I am unable to say whether the Council ought to have notified the Secretary of State in terms of paragraph 8(a) of the Schedule to the 1997 Direction as claimed in paragraph 11 nor whether they failed to comply with section 25 of the Town and Country Planning (Scotland) Act 1997 to determine the application in accordance with the development plan unless material considerations indicate otherwise as pled in paragraph 13. On the material presently available, however, I would not be prepared to determine that the Council failed in either respect. As I have already indicated it is possible that the development is consistent with the terms of the development plan in relation to prime agricultural land. It is plainly also possible that the Council decided that the development would not breach the policy in relation to the AGLV which is very much a matter of planning judgement. Had it been necessary to determine the question in relation to departure from the development plan I would have appointed a Second Hearing to allow the first respondents and the other parties, if so advised, to produce affidavits or lead evidence to clarify the point on which I have expressed doubt.
Interlocutor
[70] For these various reasons I shall repel the first plea-in-law for each of the respondents, sustain the second plea for each and dismiss the petition. Had it been necessary to do so, I would have sustained the seventh plea-in-law for the first respondents and the third plea-in-law for the second respondents but only in relation to the case in paragraph 10 of the petition, that is the case under the Environmental Assessment (Scotland) Regulations 1988. I do not find it necessary to deal with any of the remaining pleas.