Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> SHBA Ltd v Scottish Ministers & Anor For Judicial Review [2001] ScotCS 286 (13 December 2001)
URL: http://www.bailii.org/scot/cases/ScotCS/2001/286.html
Cite as: [2001] ScotCS 286

[New search] [Help]

OUTER HOUSE, COURT OF SESSION

P477/01

OPINION OF LORD MACFADYEN

in the petition of

SHBA LIMITED

Petitioners;

against

(FIRST) THE SCOTTISH MINISTERS, AND (SECOND) THE GLASGOW AND THE CLYDE VALLEY STRUCTURE PLAN JOINT COMMITTEE

Respondents:

for

Judicial Review

________________

Petitioners: Martin, Q.C., Ms Wilson; Biggart Baillie

First Respondent: Ms Dunlop; Scottish Executive

Second Respondent: Mure; Simpson & Marwick, W.S.

13 December 2001

Introduction

[1] In this petition the petitioners, SHBA Limited, seek (1) declarator that a decision made by the first respondents, the Scottish Ministers, on 13 February 2001 not to cause an examination in public to be held in respect of certain matters in connection with the proposed Glasgow and the Clyde Valley Structure Plan 2000 ("the replacement Structure Plan") was ultra vires of the first respondents, and (2) reduction of that decision.

[2] The petitioners are a company incorporated under the Companies Acts. According to their averments, they were incorporated on 8 December 2000 to take over the functions previously undertaken by the Scottish House-Builders Association ("the Association"), an unincorporated association which was an associate member of the Scottish Building Employers Federation, and the members of which included many of the major companies engaged in the construction of private housing in Scotland. The function of the Association was to represent the interests of its members in the formation and administration of planning policy by the Scottish Ministers and the planning authorities under the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act"). In pursuance of that function the Association objected to the proposal for the replacement Structure Plan. Following the incorporation of the petitioners, the right of the Association to pursue inter alia those objections was assigned to the petitioners on 1 January 2001. In the event, there is, in this process, no challenge to the title and interest of the petitioners to bring and insist in this petition. In this Opinion, except where the context requires the distinction to be maintained, I shall use the expression "the petitioners" to include, in respect of the period before 1 January 2001, the Association.

[3] The functions conferred by the 1997 Act on the Secretary of State are now exercised by the first respondents, the Scottish Ministers (Scotland Act 1998, section 53). Those functions include considering and approving or rejecting a structure plan submitted to them for approval by a planning authority (Section 10 of the 1997 Act). In terms of section 10(4)(b) they have a discretion in certain circumstances to cause the holding of an examination in public of any matter affecting their consideration of a proposed structure plan. It is their refusal to cause such an examination in public to be held into certain aspects of the replacement Structure Plan in relation to housing policy that is the subject matter of this petition.

[4] Section 5 of the 1997 Act provides for the designation of structure plan areas. Where a structure plan area extends to the district of more than one planning authority, section 5(4) provides that the authorities concerned shall jointly carry out the functions conferred on them in relation to structure plans, in accordance with arrangements agreed between them. By the Designation of Structure Plan Areas (Scotland) Order 1995 (S.I. 1995 No. 3002) Glasgow and the Clyde Valley was designated as a structure plan area. That area extends to the districts of eight councils, namely those of (i) Dumbarton and Clydebank, (ii) East Dunbartonshire, (iii) City of Glasgow, (iv) Inverclyde, (v) North Lanarkshire, (vi) South Lanarkshire, (vii) East Renfrewshire and (viii) Renfrewshire. The arrangements made by those councils for carrying out the functions which by virtue of section 5(4) they require to carry out jointly involved their forming a joint committee, the Glasgow and the Clyde Valley Structure Plan Joint Committee. That joint committee, in pursuance of the functions conferred on its constituent authorities under section 6(2) of the 1997 Act, submitted the replacement Structure Plan to the first respondents for approval. The joint committee has been called as the second respondents to the present petition.

The Relevant Legislation

[5] Section 4 of the 1997 Act provides inter alia as follows:

"(1)

It shall be the duty of the planning authority to keep under review the matters which may be expected to affect the development of their district or the planning of its development.

(2)

A planning authority may, if they think fit, institute a survey, examining the matters referred to in subsection (1), of the whole or any part of their district, and references in subsection (3) to the district of a planning authority shall be construed as including any part of that district which is the subject of a survey under this subsection."

Section 6 provides inter alia as follows:

"(1)

Each structure plan approved by the Secretary of State under the [Town and Country Planning (Scotland) Act 1972] ("the 1972 Act") with respect to the district of a planning authority which is in operation immediately before the commencement of this Act shall continue in force after its commencement (subject to any alterations then in operation and to the following provisions of this Part).

(2)

Where, as a result of the making of an order under section 5, the area in respect of which a planning authority are obliged (whether acting alone or jointly with another authority or authorities) to prepare a structure plan is different from the area in respect of which a structure plan is for the time being in force, they shall prepare and submit to the [Scottish Ministers] for [their] approval a structure plan for their district complying with the provisions of section 7(1), together with a copy of the report of any survey which they have carried out under section 4(2)."

The structure plan which continues in force by virtue of section 6(1) in respect of the districts of the constituent authorities of the second respondents is a structure plan which applied to the whole of the former Strathclyde Region. The replacement Structure Plan with which this petition is concerned is one submitted by the second respondents in pursuance of section 6(2).

[6] Section 7 of the 1997 Act makes inter alia the following provisions with regard to the form and content of structure plans:

"(1)	The structure plan for any district shall be a written statement -
	(a)	formulating the planning authority's policy and general proposals in respect of the development and other use of land in that district ...
(2)	In formulating their policy and general proposals under subsection (1)(a), the planning authority shall secure that the policy and proposals are justified by the results of [surveys under section 4 of the 1972 Act and section 4 of the 1997 Act] and any other information which they may obtain and shall have regard -
	(a)	to current policies with respect to the economic planning and development of the region as a whole, and
	(b)	to the resources likely to be available for the carrying out of the proposals of the structure plan."

[7] Section 8 of the 1997 Act makes inter alia the following provisions with regard to publicity in respect of structure plans:

"(1)	When preparing a structure plan for their district and before finally determining its content for submission to the [Scottish Ministers], the planning authority shall take such steps as will in their opinion secure -
	(a)	that adequate publicity is given in their district to the report of the survey under section 4 of this Act and to the matters which they propose to include in the plan,
	(b)	that persons who may be expected to desire an opportunity of making representations to the authority with respect to those matters are made aware that they are entitled to an opportunity of doing so, and
	(c)	that such persons are given an adequate opportunity of making such representations.
(2)	The authority shall consider any representations made to them within the prescribed period.
(3)	...
(4)	Not later than the submission of a structure plan to the [Scottish Ministers], the planning authority shall make copies of the plan as submitted to the [Scottish Ministers] available for inspection at their office and at such other places as may be prescribed.
(5)	Each copy of the plan shall be accompanied by a statement of the time within which objections to the plan may be made to the [Scottish Ministers].
(6)	A structure plan submitted by the planning authority to the [Scottish Ministers] for [their] approval shall be accompanied by a statement containing such particulars, if any, as may be prescribed -
	(a)	of the steps which the authority have taken to comply with subsection (1), and
	(b)	of the authority's consultation with, and consideration of the views of, other persons with respect to those matters."

Subsections (7) and (8) then make provision for the Scottish Ministers, if satisfied that the purposes of subsection (1) have been adequately achieved, to proceed to consider whether to approve the plan, or, if not so satisfied, to return the plan to the authority with directions to take further action to achieve those purposes.

[8] Section 10 of the 1997 Act provides inter alia as follows:

"(1)	The [Scottish Ministers] may, after considering a relevant proposal, either approve it (in whole or in part and with or without modifications or reservations) or reject it.
(2)	In this section, 'relevant proposal' means -
	(a)	a structure plan ..., or
	(b)	a proposal for the alteration or repeal and replacement of a structure plan,
	submitted (or resubmitted) to the [Scottish Ministers].
(3)	In considering a relevant proposal the [Scottish Ministers] may take into account any matters which [they think] are relevant, whether or not they were taken into account in the proposal as submitted to [them].
(4)	Where on considering a relevant proposal the [Scottish Ministers do] not determine then to reject it, [they] shall, before determining whether or not to approve it -
	(a)	consider any objections to the proposal, so far as they are made in accordance with regulations, and
	(b)	if, but only if, it appears to [them] that an examination in public should be held of any matter affecting [their] consideration of the proposal, cause a person or persons, appointed by [them] for the purpose, to hold such an examination.
(5)	The Secretary of State [now the Scottish Ministers] may make regulations with respect to the procedure to be followed at any examination under subsection (4).
(6)	The [Scottish Ministers] need not secure to any planning authority or other person a right to be heard at any such examination and, subject to subsection (7), only such bodies and persons as [they] may before or during the course of the examination invite to do so may take part in it.
(7)	The person or persons holding the examination may before or during the course of the examination invite additional bodies or persons to take part in it if it appears to him or them desirable to do so.
(8)	On considering a relevant proposal the [Scottish Ministers] may consult, or consider the views of, any planning authority or other person, but shall not be under any obligation to do so.
(9)	On exercising [their] powers under subsection (1) in relation to a relevant proposal, the [Scottish Ministers] shall give such statement as [they consider] appropriate of the reasons governing [their] decision."

The provisions of section 10(4) which I have highlighted are those with which this petition is particularly concerned.

The Code of Practice

[9] No regulations have been made under section 10(5) but there is in existence a Code of Practice for the Examination in Public of Structure Plans (SDD Circular No. 6/1985). Since the petitioners' submissions rely to a material extent on the terms of the Code of Practice, it is convenient to take note at this stage of parts of its content.

[10] The Introduction to the Code of Practice is in the following terms:

"1. An examination in public is held where in order to reach a decision on a structure plan, the Secretary of State considers that it is necessary to gain further information and advice in addition to the material submitted with the Structure Plan and objections and representations on it.

2. The Examination will be conducted by a chairman appointed by the Secretary of State, although occasionally additional persons may be appointed to sit as a panel. The Examination will take the form of a discussion, led by the Chairman, with selected participants. It will be directed to the specific issues which the Secretary of State considers need to be examined by means of public discussion. It is not intended to provide an opportunity for wide ranging debate on other matters."

Paragraph 3 states inter alia that:

"The Secretary of State will select for such an examination only those matters on which he is satisfied that further information and investigation are needed to enable him to reach a decision on the structure plan or alteration."

[11] Paragraph 4, on which the petitioners particularly rely, is in the following terms:

"Matters on which further information and discussion may be required and which may therefore need to be examined in public will include [i] those which arise from conflicts between the submitted proposals and national policies, or [ii] between the submitted proposals and those of neighbouring planning authorities, or [iii] between the various policies in the structure plan; or [iv] those which relate to issues involving substantial unresolved controversy. In considering whether an examination in public should be held in the case of proposals for the alteration of a structure plan the Secretary of State will have regard also to [v] the scale of the alteration proposed, [part of iv] the degree of controversy generated by the new proposals and [vi] the extent to which modifications to these proposals need to be discussed. He will further have regard to [vii] the extent to which the issues have been examined in the recent past, for example, at a previous Examination in Public."

The bold numerals in square brackets in that passage do not form part of the text of the paragraph, but have been inserted to facilitate cross-reference to the petitioners' submissions (see paragraphs [25] and [27] below).

[12] Paragraph 5 states that the selection of matters to be examined will be based on:

"the structure plan itself, on the proposals for alteration to a structure plan, on the planning authority's statement about publicity and consultation and on objections and representations made on the plan as submitted",

and that all objections will be examined to consider whether they give rise to matters that should be selected.

The Decision

[13] Although the decision which the petitioners seek to bring under review was made in response to a request for an examination in public made in the petitioners' formal Objection to the replacement Structure Plan, it is convenient to take note of the consultation process that had, by that stage, already taken place. The second respondents aver that during their preparation of the replacement Structure Plan they consulted extensively with interested parties, including the petitioners, allowing them to present their views to the Joint Committee and to evaluate the information and methodologies used in the draft plan. They aver that that process was deeper and more thorough than that required by statute. The process is summarised in the Statement of Publicity and Consultation (No. 11/3 of process). They refer to meetings and a Consultative Forum held to address inter alia issues raised by the petitioners, and to an additional period allowed to the petitioners to make representations outwith the normal consultation period. Reference is also made to a number of Technical Reports issued by the second respondents dealing with housing issues, which were provided to the petitioners. The petitioners admit that there was consultation with them on the issues identified in the Statement of Publicity and Consultation, and that additional meetings took place outwith the statutory consultation process. They aver, however, that the finalised draft plan was substantially unchanged from the consultative draft.

[14] Since the views which they had put forward in the course of the consultation process had not prevailed, the petitioners submitted to the first respondents an Objection to the replacement Structure Plan. That Objection is number 6/2 of process. In Article 8 of the petition, it is averred that:

"The principal issues that remained outstanding as at the date of making the Objection included: the pessimistic view of future levels of out-migration of population from the structure plan area; the under-estimate of demand for owner occupied housing; the definition of housing market areas; the failure to make adequate provision for upper market housing; and over-reliance on brownfield sites."

[15] In part C of the Objection at page 3 the following passage appeared:

"In the event of the concerns expressed in the preceding paragraph, and others referred to later in this submission, not being resolved by means of modifications to the Structure Plan, the Association wishes the Structure Plan's assumptions and conclusions on housing demand and supply to be the subject of an Examination in Public, and formally requests such an approach to be adopted."

In paragraph 11.1 it was reiterated that:

"The Association will ... seek to have the housing issues considered at an Examination in Public if all of its concerns are not adequately addressed by the Executive."

[16] On 13 February 2001 an official of the Scottish Executive, Development Department, Planning Services wrote to the second respondents intimating the approach which the first respondents proposed to adopt to the replacement Structure Plan. The letter (No. 6/6 of process) was in inter alia the following terms:

"1. The Scottish Ministers have considered the ... Plan which the Joint Committee submitted on 19^th July 2000. They have taken into account objections received and propose that the modifications listed in the document attached to this letter should be made to the Plan. The document also gives the Scottish Ministers' reasons for proposing the modifications.

2. The Scottish Ministers have considered whether an Examination in Public should be held, but have concluded that the information before them is adequate and that an EIP is not required. Ministers have therefore proceeded to issue draft modifications to the Plan.

3. In accordance with [regulations], Scottish Ministers have made arrangements to advertise the draft modifications, inviting objections to be submitted to this Department by 30^th March. They have also served notice of the draft modifications on all those who lodged objections to the Plan."

It is the validity of the decision of the first respondents intimated in the second paragraph of that letter (which I have highlighted in the above quotation) that the petitioners seek to bring under review. Although the petitioners have made representations with regard to the draft modifications, they aver that they have done so without prejudice to their request for an examination in public.

The Petitioners' Submissions

[17] Miss Wilson, junior counsel for the petitioners, after examining the statutory framework, developed her submissions by examining the objections made by the petitioners, the manner in which those objections were dealt with by the first respondents in the modifications proposed in the letter of 13 February 2001 (No. 6/6 of process), and the responses of the petitioners and the second respondents to the proposed modifications. In doing so, she entered in some detail into the merits of the disputes between the petitioners and the second defenders in relation to the replacement Structure Plan. I shall return to the detail of those points to such extent as may be necessary for the purpose of examining the petitioners' submissions as later developed by their senior counsel, Mr Martin, but for the present it is sufficient to note that Miss Wilson invited me to conclude that that it was evident that the first respondents recognised that there were substantial unresolved issues between the petitioners and the second respondents as to the calculation of the demand for housing and the housing land supply, as a result of which there was a question as to the adequacy of the housing provisions of the replacement Structure Plan for the period of years which it was intended to address.

[18] Miss Wilson went on to examine the nature of the discretion conferred on the first respondents by section 10(4)(b) of the 1997 Act. She submitted that the discretion was not unfettered. She referred to Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, where Lord Wilberforce said (at 1047C-E):

"The section is framed in 'subjective' form - if the Secretary of State 'is satisfied'. This form of section is quite well known, and at first sight might seem to exclude judicial review. Sections in this form may, no doubt, exclude judicial review on what is or has become a matter of pure judgment. But I do not think that they go further than that. If a judgment requires, before it can be made, the existence of some facts, then, although the evaluation of those facts is for the Secretary of State alone, the court must inquire whether those facts exist, and have been taken into account, whether the judgment has been made on a proper self-direction as to those facts, whether the judgement has not been made upon other facts which ought not to have been taken into account. If these requirements are not met, then the exercise of judgment, however bona fide it may be, becomes capable of challenge."

A decision by the first respondents under section 10(4)(b) of the 1997 Act was therefore not immune from review.

[19] It was necessary, Miss Wilson submitted, to examine the structure of the planning legislation to identify the significance of the function to be carried out by the Scottish Ministers in considering whether to approve a structure plan, and the reasons why provision is made for an examination in public into matters affecting their discharge of that function. She referred to Scottish House-Builders Association v Secretary of State for Scotland 1995 SCLR 1039, which, although concerned with a substantive decision on a structure plan update, not a procedural issue such as whether to hold an examination in public, nevertheless illustrated the need for the first respondents to resolve disputed issues relating to the structure plan at the stage of approving it. In emphasising the importance of structure plans in the planning system, Miss Wilson reminded me of the effect of section 25 of the 1997 Act, which raised a presumption in favour of the development plan (City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33). Structure plan policies were thus likely to be determinative of a large proportion of decisions and appeals. The purpose of giving to the first respondents the task of approving structure plans was to ensure consistency with national planning policy and consistency in policy approach throughout Scotland. In addition to their impact on individual decisions, structure plan policies also regulated the content of local plans (section 17(3)). Reference was also made to paragraphs 80 and 81 of National Planning Policy Guideline 3 ("NPPG 3", No. 6/3 of process).

[20] Miss Wilson then turned to the Code of Practice (see paragraphs [10] to [12] above). By reference to it, she submitted that, where the Scottish Ministers found themselves, when considering whether to approve a structure plan, in need of further information and advice, over and above the plan and the material submitted with it, and the objections to and representations on it, an examination in public was the means by which such further information and advice was to be obtained. Paragraph 4 of the Code of Practice was of particular importance in identifying the circumstances in which it would be appropriate to hold an examination in public. Consideration of the circumstances of the present case in light of the terms of that paragraph pointed clearly to the desirability of holding an examination in public. Miss Wilson then referred to the averments in statement 11 of the petition to the effect that no examination in public had been held in Scotland since the early 1980s. A research paper entitled "The Role of the Planning System in the Provision of Housing" (No. 6/12 of process) suggested at paragraph 5.32 that the reason for examinations in public not being held was the time which they occupied, which interfered with an administrative target timetable for approval of structure plans. The reasonable inference, Miss Wilson submitted, was that the first respondents had a policy not to hold examinations in public and had therefore improperly fettered their discretion under section 10(4)(b). It was clear that there remained substantial disputes between the petitioners and the second respondents as to the methodology to be adopted in assessing housing demand, and housing land supply, and the assumptions on which the assessments ought to proceed. In that situation, in determining whether the first respondents had acted reasonably or not in refusing to hold an examination in public, it was legitimate to point to the absence of any statement of reasons in the letter of 13 February. The only justification offered by the first respondents for accepting the structure plan methodology was that it had been considered and held to be sound by the Scottish Executive Development Department's Housing Statistics Division, and considered by them to be sound. That was not a permissible procedure. The Scottish Executive Development Department was not the Scottish Ministers. The first respondents had thus followed a procedure for which there was no warrant, and which lacked transparency, instead of ordering an examination in public, the procedure provided for by statute where further information was required for the purpose of deciding whether or not to approve a structure plan.

[21] Mr Martin presented his submissions under five headings, namely

the proper approach to the relevant statutory provisions and policy considerations;
the reasons for the decision under challenge;
the question of the unreasonableness or irrationality of that decision;
the question of whether the first respondents had improperly fettered their discretion; and
miscellaneous subsidiary points.

[22] In dealing with his first heading, Mr Martin began with section 10 of the 1997 Act. Section 10(4)(b), he submitted, required the first respondents to make a separate decision, distinct from any decision they might make on the respective merits of the petitioners' objection and the second respondents' responses thereto. Any decision made by the first respondents under section 10(4)(b) involved the exercise of a discretion. The general body of authority on the review of an exercise of administrative discretion was therefore relevant. Under section 10(4)(b) the first respondents required to consider whether or not an examination in public should be held. In the statutory provisions, and in particular section 10, there was no indication of the grounds on which a decision on whether or not to hold an examination in public ought to be taken. There were, however, indications of the intended scope and purpose of an examination in public, and those factors would inform the decision on whether or not one should be held. The indications included the following points:

If an examination in public were held, it would be conducted by a person appointed by the Scottish Ministers, not by the structure plan authority (c.f the procedure for local plan inquiries - section 15).
As provided in section 10(6), no person was guaranteed a right to appear at an examination in public. That, it was submitted, emphasised that the procedure was independent of the Scottish Ministers and the structure plan authority.
Under section 10(10) the Scottish Ministers were obliged to give "such statement as [they consider] appropriate of the reasons governing [their] decision". That provision was designed to secure that all parties who had participated in the process (including those excluded from participation in the examination in public) were informed of why the structure plan had been approved in the form in which it was approved.

In light of those considerations Mr Martin submitted that the purpose of an examination in public should be seen as more than merely to inform the Scottish Ministers. If that were its only purpose, the elements of independence and of the obligation to give reasons would not have been introduced. Mr Martin then turned to the Code of Practice. Paragraph 40 (which is concerned with the participation of representatives of Government departments in an examination in public, and the discussion of alternative policies and proposals not advocated by the other participants) was consistent with a wider purpose than merely informing the Scottish Ministers. It was open to the Scottish Ministers to decide to hold an examination in public, not to obtain information, but to ventilate issues in public. Paragraphs 43 to 46 dealt with the part to be played by the examination in public in the Scottish Ministers' decision-making process. The report of the examination in public was to be published along with the reasoned decision letter (paragraph 46). All of that was consistent with the view that the examination in public was to be conducted, not merely to inform the Scottish Ministers, but for the benefit of the public interest.

[23] Although the petitioners' request for an examination in public was couched in terms that suggested that the decision on whether or not to hold one might be deferred until it was known what modifications were to be made to the plan (see the passage quoted from part C of the petitioners' Objection in paragraph [15] above), Mr Martin's submission was that the decision on whether or not to hold an examination in public was properly taken at the stage at which it was, before the first respondents embarked on the process of consulting about modifications (see paragraph 3 of the Code of Practice). That decision was susceptible to judicial review. The letter of 13 February 2001 gave no reasons for the decision not to hold an examination in public. The first respondents' answers to the petition likewise did not explain the decision. In these circumstances, Mr Martin submitted, the reasonableness of the decision might be judged inferentially by reference to the terms of paragraph 4 of the Code of Practice, since that paragraph set out the factors to be taken into account in deciding whether or not an examination in public should be held, and it could therefore be inferred that these factors had been considered by the first respondents.

[24] As part of his consideration of the statutory framework, Mr Martin reiterated the consequences of approval of a structure plan. Local plans required to conform to it (section 17(3)). Because of the impact of section 25, its terms would presumptively determine decisions on applications for planning permission. At public inquiries into appeals against refusal of planning permission for residential developments, evidence about strategic housing issues would be excluded. Consequently, if the structure plan were approved without an examination in public of those strategic issues having been conducted, the opportunity to air them in public would have been lost for the lifetime of the structure plan. The fact, however, that Parliament had made provision for the holding of an examination in public pointed to a right to expect that one would be held when the circumstances required it.

[25] Turning to his second heading, Mr Martin submitted that the first respondents (or rather their predecessor, the Secretary of State) had set out in paragraph 4 of the Code of Practice the criteria by which a decision not to hold an examination in public might be made. In the absence of an express statement in the letter of 13 February of the first respondents' reasons for their refusal to hold an examination in public, and in the absence of any explanation of their reasons in the answers to the petition, the letter was to be taken as having stated that none of those criteria had been found to have been satisfied. Mr Martin analysed paragraph 4 as containing seven criteria (see the enumeration introduced into my quotation in paragraph [11] above). Although he recognised that the paragraph might be read as distinguishing between a new structure plan and an alteration, Mr Martin submitted that it was reasonable to have regard in all cases to all seven criteria. I shall return later (see paragraph [28] below) to the remainder of the second head of Mr Martin's submissions.

[26] Turning to the third heading of his submissions, Mr Martin submitted that the first respondents had acted ultra vires in failing to order an examination in public, given (i) that that was the procedure provided by statute to enable them to resolve matters of substantial unresolved controversy, and (ii) that there were issues of substantial controversy raised by the petitioner's Objection which remained unresolved. The test was whether the first respondents had acted unreasonably or irrationally, in the sense in which those expressions have been used in the authorities. Of the authorities, Mr Martin referred to Associated Provincial Picture Houses Ltd v Wednesbury Corporation, per Lord Greene MR at 234:

"Once that question [i.e. whether matters have been taken into account which ought not to have been, or matters have not been taken into account which ought to have been] is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it."

That test was adopted by Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 at 347-8. Different language was used by Lord Diplock, in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821:

"decisions that, looked at objectively, are so devoid of any plausible justification that no reasonable body of persons could have reached them",

and in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 375 at 410, labelling the concept "irrationality" rather than "unreasonableness":

"a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

Mr Martin's submission was that by the standard variously expressed in those dicta the decision not to hold an examination in public was unreasonable or irrational. The majority of the factors mentioned in paragraph 4 of the Code of Practice were present. The first respondents had given no reasons for taking the view that, despite the presence of those factors, an examination in public was not required. Mr Martin accepted that paragraph 4 could not be treated as a simple checklist, in which ticks in a number of boxes could be said to lead inevitably to the conclusion that the holding of an examination in public was the only reasonable course. The decision and the reasons for it (express or inferred) required to be examined in the round, and "judicial common sense" required to be applied.

[27] That said, however, Mr Martin proceeded to examine the seven individual considerations mentioned in paragraph 4 (which he had identified in his analysis earlier in his submissions - see paragraph [25] above) with a view to identifying whether they were present in this case.

Conflicts between the submitted proposals and national policies.

Mr Martin submitted that such conflict existed in the replacement Structure Plan, and had been brought to the attention of the first respondents in the petitioners' Objection. The relevant national policy was to be found in NPPG 3. The policy that structure plans should make provision to meet demand for housing land in full, whenever practicable and reasonable, was set out in paragraph 12. Paragraph 13 made it clear that centrally derived information on population and household projections was a relevant consideration. Although paragraph 14 said that it was for the judgment of the authority to consider the weight to be attached to centrally produced projections, or whether locally derived projections may be more relevant, that judgement could not be exercised by beginning and ending with locally derived figures, which was what the second respondents had done. Paragraph 81 indicated that the starting point for the assessment of how much housing land should be provided should be that full demand should be met. It indicated that local considerations might be balanced against national policy to justify not providing in full for the demand, but local considerations could not justify failing to make a proper assessment of the full demand. Other aspects of the petitioners' contention that the replacement Structure Plan did not comply with national Policy as expressed in NPPG3 were to be found in the petitioners' objections. In these circumstances it was clear that the first consideration mentioned in paragraph 4 of the Code of Practice was present, and was known by the first respondents to be present.

Conflicts between the submitted proposals and those of neighbouring planning authorities.

This was the one factor mentioned in paragraph 4 that Mr Martin did not submit arose in the circumstances of the present case.

Conflicts between the various policies of the Structure Plan.

There was, Mr Martin submitted, a conflict between the failure to provide a sufficient land supply, given the adverse economic consequences of that failure, and the structure plan policies designed to encourage economic growth. The second respondents' pessimistic view that out-migration would not be reduced to zero until 2020 (in contrast with the petitioners' contention that it would be so reduced by about 2006) contributed to the under-provision of land supply, and was in conflict with the policy to reduce depopulation.

Issues involving substantial unresolved controversy.

This was the aspect of paragraph 4 on which Mr Martin appeared to place the greatest emphasis in his submissions. In dealing with it he also took into account the latter reference in paragraph 4 to "the degree of controversy generated by the new proposals". The controversy in question related to the proper approach to the assessment of demand for housing, and in particular the methodology for projecting the number of households. A comparison between the projections adopted by the second respondents, and those published by the General Register Office for Scotland shortly after the submission of the replacement Structure Plan (the adoption of which the petitioners submitted would be appropriate) (see No. 6/16 of process), showed a difference of 7600 households in the structure plan area as a whole in the period to 2006, and 11,300 in the period to 2011. Although those figures were represented by the respondents as being fairly small in percentage terms, they reflected in absolute terms a substantial quantity of housing land. There was thus a controversy as to the provisions of the replacement Structure Plan, which was substantial in its significance. It remained unresolved, notwithstanding the further discussion that has taken place since February 2001. It could not be said that the first respondents were unaware of it. They had, however, failed to recognise it as ground for ordering an examination in public.

The scale of the alteration proposed.

In this connection Mr Martin drew attention to the fact that the proposed Structure Plan was intended to address a period of twenty years. He drew attention to the Planning Advice Note on Structure Plans: Housing Land Requirements ("PAN 38", No. 6/4 of process), paragraph 10 of which advises that structure plans should have a strategy for at least 10 years from the expected date of approval, and possibly 15 years if major infrastructure thresholds are involved.

The extent to which modifications to the proposals needed to be discussed.

Mr Martin submitted that it was obvious that the proposals in the replacement Structure Plan required modification, and that discussion of the modifications was required. That that was so was evidenced by the fact that the first respondents had proposed a number of draft modifications in relation to the housing policies in the replacement Structure Plan.

The extent to which the issues have been examined in the recent past.

Mr Martin pointed to the fact that, although the issues which the petitioners sought to raise in relation to the replacement Structure Plan had been a matter of controversy for some time, they had never been made the subject of an examination in public.

The result, Mr Martin submitted, was that of the seven considerations identified in paragraph 4 as possibly requiring to be examined in public, six were present in the present case. In addition, this was the first structure plan proposed by a new structure plan authority. The replacement Structure Plan dealt with the largest conurbation in Scotland. It required to address a large number of difficult issues, including economic growth, dereliction, and depopulation. All of these were affected by the issues which the petitioners sought to raise about housing demand and housing land supply. If there was to be no examination in public in these circumstances, when would there ever be one? It was, it was submitted, difficult to conceive of circumstances more extreme. Parliament, in conferring on the Scottish Ministers a discretion to order an examination in public, had not enabled them to ignore a clear need for one to be held. It was not contemplated that there would never be an examination in public. Scottish House-Builders Association v Secretary of State for Scotland established that it was unreasonable for the minister to defer a decision that he was bound to take. In some of the modifications proposed by the first respondents in the present case, there was a flavour of the same defect in reasoning - see modifications 34, 42 and 60. In the whole circumstances, it could be affirmed that no reasonable authority in the position of the first respondents would have failed to order an examination in public.

[28] In a separate aspect of the second head of his submissions (which I have taken out of order) Mr Martin sought to pave the way for a related aspect of his argument by drawing a distinction between the Scottish Ministers and the civil servants who staff the Scottish Administration. Section 44 of the Scotland Act 1998 provides inter alia as follows:

"(1)	There shall be a Scottish Executive, whose members shall be -
	(a)	the First Minister,
	(b)	such Ministers as the First Minister may appoint under section 47, and
	(c)	the Lord Advocate and the Solicitor General for Scotland.
(2)	The Members of the Scottish Executive are referred to collectively as the Scottish Ministers."

Section 51 provides inter alia as follows:

"(1)	The Scottish Ministers may appoint persons to be members of the staff of the Scottish Administration.
(2)	Service as -
	(a)	the holder of any office in the Scottish Administration which is not a ministerial office, or
	(b)	a member of the staff of the Scottish Administration, shall be service in the Home Civil Service."

The meaning of the expression "the Scottish Administration" is elucidated in section 126, which provides inter alia as follows:

"(6)	References in this Act ... to the Scottish Administration are to the office-holders in the Scottish Administration and the members of the staff of the Scottish Administration.
(7)	For the purposes of this Act -
	(a)	references to office-holders in the Scottish Administration are to -
		(i)	members of the Scottish Executive and junior Scottish Ministers, and
		(ii)	the holders of offices in the Scottish Administration which are not ministerial offices, and
	(b)	references to members of the staff of the Scottish Administration are to the staff of the persons referred to in paragraph (a)."

The effect of those provisions, Mr Martin submitted, was that "the Scottish Ministers" was simply a collective name for the members of the Scottish Executive, and that civil servants, although members of the staff of the Scottish Administration, were not encompassed within the expression "the Scottish Ministers". The decision-making power conferred on the Secretary of State by section 10 of the 1997 Act had been transferred by section 53(2)(c) of the Scotland Act to the Scottish Ministers. The Scottish Ministers must themselves make the decisions. For the first respondents to delegate the making of the decision on the competing assertions about the proper methodology to be adopted in calculating housing demand for the purposes of the replacement Structure Plan to civil servants in the Housing Statistics Division of the Scottish Executive Development Department was therefore ultra vires. By referring the matter to the Housing Statistics Division, the first respondents had acknowledged that there was an unresolved controversy, and in terms of paragraph 4 of the Code of Practice, the proper means of resolving such controversy was by holding an examination in public. It was therefore irrational not to do so.

[29] In connection with that aspect of his argument, Mr Martin made reference to Bushell v Secretary of State for the Environment [1981] AC 75, which had been cited by Miss Dunlop for the first respondents (see paragraph [39] below) in her response to the briefer version of the submission advanced by Miss Wilson (see paragraph [20] above). Miss Dunlop relied on the following passage from the speech of Lord Diplock (at 95E to 96A):

"To treat the minister in his decision-making capacity as someone separate and distinct from the department of government of which he is the political head and for whose actions he alone in constitutional theory is accountable to Parliament is to ignore not only practical realities but also Parliament's intention. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being, he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise. ... This is an integral part of the decision-making process itself; it is not to be equiparated with the minister receiving evidence, expert opinion or advice from sources outside the department after the local inquiry has been closed."

Mr Martin submitted that that passage dealt with the Westminster government. The Scottish Executive was a statutory body created by the Scotland Act. According to the terms of that Act, the term "the Scottish Ministers" did not include anyone other than those mentioned in section 44(1), and in particular did not include civil servants on the staff of the Scottish Administration. The ratio of Bushell therefore had no application to the circumstances of the present case. He acknowledged that the situation might be different if there were any indication that the Scottish Ministers had applied their own minds to the question of methodology in light of advice from the Housing Statistics Division. It could not be inferred from the terms of the answers (in which the call for further specification on the point made in statement 8 of the petition had not been answered) that that was what had happened, and in any event, if that was the contention, it would require to be supported by evidence, perhaps in the form of an affidavit.

[30] Turning to the fourth head of his submissions. Mr Martin argued that there was ground for holding that the first respondents had fettered their discretion. In that connection he relied on three considerations. The first was the petitioners' averment that there had been no examination in public in Scotland for the better part of twenty years. The second was that there was evidence that the first respondents had a policy of not ordering examinations in public. The research paper (No. 6/12 of process), at paragraph 5.32, stated:

"It is understood that one of the reasons that EIPs are no longer held in Scotland is the time required to organise and report from them. We understand the concerns of the Scottish Executive who have recently introduced a time limit for the approval of Structure Plans in order to speed up their delivery that an EIP may slow down the process again."

The answers for the first respondents contained no response to that point. The time limit referred to in the research paper was set out in NPPG 1 (No. 7/3 of process) at paragraph 32:

"The Executive is committed to efficient handling of submitted structure plans. The aim is to give a final decision within 40 weeks of the plan being submitted, unless an examination in public is necessary."

That formulation is repeated in paragraph 84. The third consideration founded upon was the reference of the controversy as to methodology to the Housing Statistics Division. That reference ignored the statutory mechanism for resolving controversial issues, namely the holding of an examination in public. Those considerations, Mr Martin submitted, justified the conclusion that the first respondents had improperly fettered the discretion conferred on them by section 10(4)(b). Even if it were held not to be clear that they had so fettered their discretion, the indications that they had done so were sufficient to support an inference that the decision not to hold an examination in public was irrational.

[31] Mr Martin's fifth heading encompassed a number of miscellaneous points. First, he said that it mattered not that the petitioners' request for an examination in public had been expressed as conditional on the failure of modifications to address their concerns. The first respondents had decided not to hold an examination in public, and consideration of the reasonableness of that decision did not depend on the terms in which the request had been made. Secondly, he submitted that the position of the second respondents on the holding of an examination in public was irrelevant. Their function was simply to submit the proposed structure plan. It was for the first respondents to decide whether to hold an examination in public. In that connection, the point made by the second respondents about the delay likely to result from the holding of an examination in public was irrelevant. If there was substantial controversy that required to be resolved, it was as much in the second respondents' interests as in the interests of the petitioners that it should be resolved in the way contemplated by statute.

The First Respondents' Submissions

[32] Miss Dunlop for the first respondents submitted that the petition should be refused. The issue between the parties, she submitted, turned on the proper construction of section 10(4)(b) of the 1997 Act, and it was therefore crucial to examine that provision. It was necessary to understand what the statutory purpose of an examination in public was, and the bases on which a decision not to hold one might be open to attack. Her submission was that judicial review of a decision not to hold an examination in public was all but excluded. It was virtually impossible to conceive of circumstances in which such a decision could be set aside as Wednesbury unreasonable. The circumstances of the present case did not fall into that category.

[33] Miss Dunlop examined the legislative history of section 10(4)(b). The starting point was section 7(3) of the 1972 Act, which provided inter alia as follows:

	"Where on taking any [structure] plan into consideration the Secretary of State does not determine then to reject it, he shall, before determining whether or not to approve it -
	(a)	consider any objections to the plan, so far as they are made in accordance with regulations ...;
	(b)	afford to any person whose objections so made are not withdrawn an opportunity of appearing before, and being heard by, a person appointed by him for the purpose; and
	(c)	if a local inquiry or other hearing is held, also afford the like opportunity to the local planning authority and such other persons as he thinks fit."

At that stage, therefore, an objector who maintained his objection was entitled to a hearing, at a local inquiry or otherwise, before a person appointed by the Secretary of State. The concept of an examination in public was introduced by section 175 of the Local Government (Scotland) Act 1973 ("the 1973 Act"), which substituted a new version of subsection (3) in section 7 of the 1972 Act. The amendment involved the deletion of paragraphs (b) and (c), and the substitution of a new paragraph (b) in the following terms:

"cause a person or persons appointed by him for the purpose to hold an examination in public of such matters affecting his consideration of the plan as he considers ought to be so examined".

As Miss Dunlop pointed out, notwithstanding the language "shall... cause a person ... to hold an examination in public" that provision did not make the holding of an examination in public compulsory, because it was only to be held into "such matters affecting [the Secretary of State's] consideration of the plan as he considers ought to be so examined", and it was open to him to take the view that there was no such matter. Section 175 of the 1973 Act also introduced into section 7 of the 1972 Act a new subsection (5) in terms similar to section 10(6) of the 1997 Act. By section 36 of the Local Government and Planning (Scotland) Act 1982, section 7(3) of the 1972 Act was again amended by the substitution of a new version of paragraph (b). Apart from reference to "the plan" instead of "the proposal", the new paragraph anticipated the language of section 10(4)(b) of the 1997 Act. An examination in public was to be held "if, but only if" it appeared to the minister that one "should" be held. The emphasis had thus changed from a procedure in which an objector had a statutory right to be heard to one which was to take place only if the minister thought that it ought to take place. Given that change of emphasis, the current provision could readily be seen as a tool available to the Scottish Ministers to enable them to inform themselves more fully before coming to their decision on whether and if so in what terms to approve the structure plan. Miss Dunlop drew attention to three features of the language of section 10. First, the phrase "if, but only if" emphatically made the point that the only circumstance in which an examination in public might legitimately be held was if it appeared to the Scottish Ministers that one should be held. Secondly, there was nothing in the provision to tie the holding of an examination in public to any objectively demonstrable state of affairs. The Scottish Ministers were not told in what circumstances they should, and in what circumstances they should not, hold an examination in public. On the other hand, the provision did relate to the examination in public of "any matter affecting [the first respondents'] consideration of the proposal". Thirdly, subsections (6) and (7) made it clear that no person had an automatic right to be heard at an examination in public. Participation was at the discretion initially of the Scottish Ministers, subject to the discretion of the person holding the examination to invite participation. Thus, as a matter of principle, if the first respondents had ordered an examination in public in the present case, it would have been open to them not to invite the petitioners to participate in it. Those features supported the view expressed in paragraphs 1 and 3 of the Code of Practice that the purpose of an examination in public was to enable the ministers to obtain further information, when they thought that they required it in order to make their decision on the structure plan. The factors mentioned in paragraph 4 of the Code of Practice were illustrative, rather than definitive, of the sorts of considerations that might lead the ministers to the view that an examination in public should be held.

[34] Miss Dunlop then turned to examine the effect of the language of section 10(4)(b) on the scope for judicial review of a decision not to order an examination in public. She accepted at once that judicial review was not wholly excluded - for example it would be open to the court to entertain an allegation of bad faith. The phrase "if, but only if, it appears" was, however, highly suggestive of a subjective test in which there was no room for examining whether a view adopted by the ministers was objectively justifiable. She accepted, however, that there were circumstances in which, despite the use of such language, the matter fell to be judged objectively. The critical feature in the present case, she submitted, was that the statute set no benchmark of objective fact that must "appear", all that required to appear was that an examination in public "should be held". It was therefore not a situation in which it was possible to test objectively a decision on the part of the Scottish Ministers not to hold an examination in public. In support of her submissions, Miss Dunlop cited In re City of Plymouth (City Centre) Declaratory Order 1946, Robinson v Minister of Town and Country Planning [1947] 1 KB 703. There the provision under construction was section 1(1) of the Town and Country Planning Act 1944 which provided inter alia that:

Where the Minister of Town and Country Planning ... is satisfied that it is requisite, for the purpose of dealing satisfactorily with extensive war damage in the area of a local planning authority, that a part or parts of their area, consisting of land shown to his satisfaction to have sustained war damage. ... should be laid out afresh and redeveloped as a whole, [a compulsory purchase order] may be made ...".

Miss Dunlop drew attention to the following passage in the judgment of Lord Greene MR at 712-3:

" I will now turn to the matters with regard to which the Minister must be satisfied before he makes an order. They fall into two classes. First, it must be shown to his satisfaction that a particular state of facts exists, namely, that a part (or parts) of the area of the local planning authority consists of land which has sustained war damage ... As I have said, no question is raised as to the propriety of the Minister's conclusion upon that point, and I need say nothing more about it. The other class of matter is, in my view, one of opinion and policy as to which the Minister, assuming always that he acts bona fide, is the sole judge; namely, he must be satisfied that it is requisite for the purpose of dealing satisfactorily with extensive war damage that all or some part of the land in question should be laid out afresh and redeveloped as a whole. The words 'requisite' and 'satisfactorily' clearly indicate that the question is one of opinion and policy, matters which are peculiarly for the Minister himself to decide. No objective test is possible. "

Miss Dunlop then cited Secretary of State for Education and Science v Thameside Metropolitan Borough Council, and relied both on the passage from the speech of Lord Wilberforce at 1047C-E quoted in paragraph [18] above and on the following passage from the judgment of Lord Denning MR in the Court of Appeal at 1025B:

"Much depends on the matter about which the Secretary of State has to be satisfied. If he is to be satisfied on a matter of opinion, that is one thing. But if he is to be satisfied that someone has been guilty of some discreditable or unworthy or unreasonable conduct, that is another. To my mind, if a statute gives a minister power to take drastic action if he is 'satisfied' that a local authority has acted or is proposing to act improperly or unreasonably, then the minister should obey all the elementary rules of fairness before he finds that the local authority is guilty or before he takes drastic action overruling them. He should give the party affected notice of the charge of impropriety or unreasonableness and a fair opportunity of dealing with it. ... In addition ... the minister must direct himself properly in law. He must call his own attention to the matters he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider and the decision to which he comes must be one which is reasonable in this sense: that it is, or can be, supported with good reasons or at any rate is a decision which a reasonable person might reasonably reach."

Miss Dunlop also referred to Clyde and Edwards, Judicial Review, at paragraph 11-19, where formulae such as "it is satisfied that" and "when it appears to it that" are discussed. After making reference to cases in which a narrow view of the phraseology was taken, the authors continue:

"But the trend of decision is away from any restrictive view of such phrases, and they should now be seen as adding little if anything to the position that would hold without them, namely that no decision will usually be made unless the maker of it is satisfied that the proper circumstances exist for the making of it, and has applied his mind to the problem so as to arrive at an opinion upon it. But the point must turn as one of construction upon the particular context."

(See also Wade and Forsyth, Administrative Law, 8^th Edition, page 416 et seq.)

[35] Miss Dunlop pointed out that section 10(4)(b) was concerned with an incidental decision about the procedure to be adopted en route to the making of the substantive decision on the approval of the structure plan. That incidental decision was a matter of judgment rather than fact. Granted that the function of an examination in public was to enable the ministers to obtain information that they considered they required to have before making the substantive decision, what was required, for a successful Wednesbury challenge to a decision not to hold an examination in public, was a situation in which, given the terms of the submitted structure plan and the objections to it, no reasonable person in the position of the ministers could fail to take the view (i) that they did not have adequate information and advice to deal with the issues which arose for substantive decision and (ii) that an examination in public should be held to make good that shortfall in information and advice. Miss Dunlop also referred to the treatment of the Wednesbury test in Clyde and Edwards, Judicial Review, at paragraphs 21-05 to 21-10. Whether or not the petitioners were right in maintaining that the reasonableness of the first respondents' decision not to hold an examination in public was capable of objective assessment, this was a context in which it was more difficult than it often was to uphold the charge of unreasonableness. In all the circumstances, the charge had not been made out.

[36] Miss Dunlop then turned to the details of the matters in dispute. Her first point was that the petitioners' request for an examination in public was expressed in their Objection as conditional on their concerns not being resolved by modifications, whereas the averments in statements 3 and 10 of the petition suggested that the request had been unconditional. She submitted that the contingent form of the request was worthy of note. Of the reasons for the request set out in statement 10 of the petition, reason (a) was the most significant. Further detail had, however, been provided by the second respondents in response to the objection. The stance taken by the petitioners had been taken in the absence of that further information, but the first respondents, in deciding whether or not to hold an examination in public, were entitled to have regard to the additional information. It was difficult to see what bearing the other reasons set out in statement 10 had on the reasonableness of the decision not to hold an examination in public.

[37] Secondly, Miss Dunlop disputed the way in which the petitioners sought to maintain that the petition arose because of a failure on the part of the first respondents to recognise the need to resolve issues of substantial controversy. The statutory power to hold an examination in public was not, she submitted, provided for the purpose of resolving matters of controversy. There was no duty on the first respondents to resolve all matters of controversy. The guidance offered in the Code of Practice did not say that the first respondents should hold an examination in public to resolve issues of controversy. Even if it were accepted that the first respondents ought to resolve issues of substantial controversy, that did not require to be done by declaring one party to be right and the other to be wrong. The fact that neither the petitioners nor the second respondents were content with the way in which an issue was decided did not mean that there had been no resolution of the controversy. If resolution was required, the stage at which it was required was when the structure plan was finally approved, with or without modifications. If the holding of an examination in public contributed to resolution of controversial issues, the stage at which it would do so would be when the decision on approval of the structure plan was made. It could not be said, however, before the substantive decision was made, that issues of substantial controversy had been left unresolved. Nor could it be said that the refusal to hold an examination in public meant that they would remain unresolved.

[38] The third point that Miss Dunlop made related to the national policy considerations relied on by the petitioners in statement 7 of the petition. It was, she submitted, necessary to have regard to the policy documents as a whole. In dealing with NPPG 3 she referred to paragraphs 4, 5, 7, 12 and 19. In PAN 38 she referred in particular to paragraph 21, which reiterates the need for housing demand to be balanced with a range of other factors before the appropriate level of housing to be provided for in a structure plan is determined.

[39] Miss Dunlop identified the issues relating to population and household projections as a key element in the petition. They affected the demand side of the equation. Paragraphs 13 and 14 of NPPG 3 were relevant, as was paragraph 15 of PAN 38. The second respondents had set out the ground on which they resisted giving effect to this aspect of the petitioners' objection in paragraphs 12 to 14 of, and Annex 1 to, their Response (No. 7/1 of process). The centrally derived figures for which the petitioners argued were to be found in the Statistical Bulletin HSG/2000/4 (No. 7/2 of process). The first respondents, being aware of the competing stances taken by the petitioners and the second respondents, had passed the matter to the Housing Statistics Division for its views on the structure plan methodology, and, as averred in Answer 8, the Housing Statistics Division had expressed the view that the second respondents' position was sound. It was legitimate for the first respondents to make use of the expertise of their staff in that way (Bushell v Secretary of State for the Environment, per Lord Diplock at 95E to 96A, see paragraph [29] above). The fact that they had done so did not support a conclusion that their decision not to hold an examination in public was unreasonable or in any other way ultra vires.

[40] In relation to the point made by the petitioners about the dispute over out-migration, Miss Dunlop submitted that it was mere assertion on the petitioners' part that out-migration could be reduced to nil by 2006. In relation to housing land supply, the fact that there was a long-standing dispute did not by itself justify holding an examination in public. That was not the only means by which the petitioners might "substantiate their submissions" (as they put it in statement 9) on that matter. In any event, as the first respondents averred in answer 9 and the petitioners admitted, the dispute over the effective land supply had latterly been reduced to 9%. If, as the petitioners contended, the need for an examination in public was to be tested by whether there existed issues involving "substantial unresolved controversy", how was it to be judged whether a controversy was "substantial"? Could a margin of 9% in relation to the effective housing land supply be said to amount to a substantial controversy? Something had been made of the length of time which the replacement Structure Plan addressed, but in that connection it was appropriate to bear in mind the provisions for monitoring and alteration.

[41] In response to the submission that the first respondents had improperly fettered their discretion under section 10(4)(b) by adopting a policy of not holding examinations in public, Miss Dunlop submitted that past decisions on other structure plans were irrelevant. It was therefore of no significance that there had been no examination in public for many years. Nor was it relevant to compare the situation in Scotland with that in England and Wales, because the statutory framework was different (see Town and Country Planning Act 1990, section 35B). The petitioners' averment that examinations in public had not been held because inter alia of possible interference with the internal administrative target of approval of a structure plan within 40 weeks of submission involved an inaccurate gloss on the research paper (No. 6/12 of process). In fact the target applied "unless an Examination in Public ... is necessary" (NPPG 1 (No. 7/3 of process) paragraph 32). There was thus no ground for holding that there had been any improper fettering of the section 10(4)(b) discretion.

The Second Respondents' Submissions

[42] Mr Mure, who appeared for the second respondents, explained that it was their position that it was a matter for the first respondents whether an examination in public was held. Their only concern was that the holding of an examination in public would delay approval of the replacement Structure Plan. They would, however, if an examination in public were ordered, co-operate with it. They accepted that the purpose of an examination in public was to provide further information for the first respondents (Code of Practice, paragraph 1), but believed that all the information necessary to enable the first defenders to make their decision on approval of the replacement Structure Plan had been provided. The second respondents' aim, in the consultation process, had been to elicit all relevant information and to put into the public domain everything that formed the basis for statements in the draft replacement Structure Plan. There was nothing in the Code of Practice to suggest that an examination in public involved bringing the opposing parties in a dispute face to face in a procedure designed to resolve a dispute. The suggestion that the first respondents could not reach a proper decision without holding an examination in public overlooked their statutory obligation to consider any objections (section 10(4)(a)).

[43] Mr Mure made a number of more detailed submissions about the consultation process, the nature of the disputes between the petitioners and the second respondents, and the second respondents' responses to the petitioners' Objection. In the circumstances I do not find it necessary to record those submissions, helpful though they were, in detail. As Mr Mure reminded me at the end of his initial submissions, the issue raised in the petition is not who is right and who is wrong about the substantive points of dispute, but whether the first respondents, in deciding that an examination in public should not be held, could be said to be acting unreasonably or otherwise ultra vires.

Discussion

[44] In this petition the petitioners seek to have set aside, principally on the ground that it was unreasonable, a decision made by the first respondents, in pursuance of the discretion conferred on them by section 10(4)(b) of the 1997 Act, that no examination in public should be held in relation to the replacement Structure Plan. It seems to me that the appropriate starting place for consideration of the issues raised in the petition is an examination of the terms of the relevant statutory provision. Section 10(4)(b), read in light of the transfer of the relevant function from the Secretary of State to the Scottish Ministers, provides that:

"Where on considering a relevant proposal [i.e. a structure plan or a proposal for the alteration or repeal and replacement of a structure plan] the Scottish Ministers do not determine then to reject it, they shall, before determining whether or not to approve it ... if, but only if, it appears to them that an examination in public should be held of any matter affecting their consideration of the proposal, cause a person or persons, appointed by them for the purpose, to hold such an examination".

[45] The first point that I take from that provision concerns the stage of procedure at which the discretion is to be exercised. The subsection contemplates that on receipt of a relevant proposal, the Scottish Ministers may determine to reject it, in which case they need take no further procedural steps. If, however, they do not determine to reject the proposal, there are further steps that must be taken before determining whether or not to approve it. One of these (section 10(4)(a)) is that they must consider any objections to the proposal, so far as made in accordance with regulations. The other is that they shall, but only if it appears to them that one should be held, cause an examination in public to be held. It seems to me to be reasonably clear that, if an examination in public is to be held, it should be held before the Scottish Ministers embark on the procedure of proposing draft modifications, advertising them, and inviting objections to them. The first respondents' decision not to hold an examination in public was therefore in my view taken at the correct procedural stage. The petitioners' request for an examination in public, in so far as it was expressed in terms that contemplated that resort could be had to an examination in public if the process of modification did not resolve their concerns, was, in my view, misguided. But I do not consider that anything now turns on that.

[46] The second point that I take from section 10(4)(b) is that the Scottish Ministers have a discretion whether or not to cause an examination in public to be held. At first sight the language of the section is obligatory - "shall, before determining whether or not to approve it" - and that obligatory quality is unqualified so far as paragraph (a), the obligation to consider objections, is concerned. But so far as paragraph (b) is concerned, the obligation to cause an examination in public to be held arises only if a certain condition is satisfied. That condition is expressed in language which makes it dependent on the judgment of the ministers - "if, but only if, it appears to [them] that an examination in public should be held". If it does not appear to them that an examination in public should be held, they are neither obliged nor entitled to cause one to be held. I do not consider that very much help in understanding the nature of that discretion is to be gained from the legislative history. It appears from section 7(3) of the 1972 Act (as originally enacted) that when structure plans were first introduced, an objector who maintained his objection was entitled to be heard by a person appointed by the Secretary of State. The amendment in 1973 introduced the concept of an examination in public, conferred on the minister a discretion (expressed in somewhat different language from that of the current provision), and took away the objector's automatic right to a hearing. In 1983 the language in which the discretion was expressed was recast in substantially the same form as the current provision. The language then adopted, and repeated in section 10(4)(b) of the 1997 Act, is perhaps unusual in its use of the phrase "if, but only if, it appears". The words "but only if" appear to emphasise that the issue is committed to the judgment of the ministers. I doubt, however, whether in the context in which they are used they have any substantive effect. In another context, a provision which indicated merely that something "shall" be done if an objectively verifiable state of affairs came about might be thought (i) to impose an obligation to act if the condition was satisfied, but (ii) to leave open the possibility of acting even if the condition was not satisfied. In such a context, the words "but only if" might well be added to make it plain that there was to be no discretion to act if the condition was not satisfied. In a context, however, where the condition refers to a matter of judgment, where the ministers are to act if it appears to them that they should, there is scarcely need to use the phrase "but only if" to indicate that they may not act if the condition is not satisfied. The words in that context seem to do no more than rule out the unrealistic possibility that, having formed the judgment that a particular procedure should not take place, the ministers might then cause it to take place. That is perhaps, however, an unduly analytical approach. It seems to me that the words "if, but only if" must have been intended to emphasis that before an examination in public can be held, the ministers must have applied their minds to the question, and must have come to the positive conclusion that one should be held.

[47] The third point that I take from section 10(4)(b) is that it sets out no objective criteria by reference to which the ministers must exercise their judgment as to whether an examination in public should be held. Some statutory provisions may require a minister to come to a conclusion of fact before exercising a power. Others may require the minister to make a value judgment as to whether something ought to be done. The distinction was, in my view, recognised in Secretary of State for Education and Science v Tameside Metropolitan Borough Council by Lord Wilberforce at 1047C-E, and Lord Denning MR at 1025B, and earlier in In re City of Plymouth (City Centre) Declaratory Order 1946, Robinson v Minister of Town and Country Planning by Lord Greene MR at 712-3. The point is well illustrated in the latter case, where the provision in question required the minister to do both of these things (although only the latter was in issue in the case). First, it required to be "shown to his satisfaction" that part of the local authority's area had sustained war damage. Secondly, he required to be "satisfied" that it was requisite, for the purpose of dealing satisfactorily with extensive war damage in the area in question that the damaged land should be laid out afresh and redeveloped as a whole. The former involved the minister in satisfying himself as to the existence of an objectively ascertainable state of fact. The latter involved his making a value judgment as to what was "requisite". It is in my view clear that the discretion conferred on the Scottish Ministers by section 10(4)(b) is of the latter category. The power to cause an examination in public to be held does not depend on the ministers making any finding in fact, the existence of a sound basis for which would be objectively verifiable. On the contrary, the power to cause an examination in public depends simply on the ministers' judgment as to whether or not one "should" be held. The section sets out no objective criteria which the ministers must apply in making that judgment. As Lord Greene put it in the Plymouth case at 713, "No objective test is possible".

[48] It was accepted on the first respondents' behalf, in my view correctly, that the fact that the decision of the ministers under section 10(4)(b) was a matter of value judgment did not wholly exclude judicial review. It does not even, in my view, necessarily exclude challenge to the validity of the decision on the ground that it was unreasonable. What it does do, in my view, is make it in practical terms somewhat more difficult than it would be in relation to a decision of a different nature to make out a case of unreasonableness. The test to be satisfied if a case of reasonableness is to be made out nevertheless remains the same. As the cases cited by Mr Martin illustrate, that test has been expressed in various forms of words. What can perhaps be regarded as the classic formulation is to be found in Wednesbury, per Lord Greene MR at 234. A decision will be rendered invalid on the ground that it is unreasonable if the decision-maker, although properly directing himself in law, and addressing all the relevant material, but only the relevant material, has:

"nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it".

A similar form of words was adopted by Lord President Emslie in Wordie Property at 348. Other formulations can be found in the cases (see, for example, Clyde and Edwards, Judicial Review, at paragraph 21.05), and those formulations include the trenchant language used by Lord Diplock in Bromley LBC at 821 and in CCSU at 410, but it seems to me that the purpose of using that language was simply to emphasise that a judge exercising the judicial review jurisdiction has no power to hold a decision invalid merely because he disagrees with it. There is in my view some force in the warning expressed by Clyde and Edwards (loc. cit.) that:

"Descriptive phrases may readily bear an element of expressive intensity which adds unnecessary colour to what ought to be a single concept, although the precise application of the concept may vary in accordance with the particular circumstances of particular cases."

The fundamental point, it seems to me, is that a decision cannot be held to be invalid on the ground of unreasonableness (or irrationality) unless it can be affirmed that no reasonable decision-maker addressing the issue could have come to the same conclusion.

[49] Both the petitioners and the first respondents sought to focus their submissions on the issue of whether the first respondents' decision not to cause an examination in public to be held was unreasonable by seeking to identify the purpose which an examination in public is intended to serve. That purpose is not expressly declared in the 1997 Act. It might have been clarified by regulations made under section 10(5), but none have been made. There is, it seems to me, room for a measure of inference from the terms of section 10. The context in which an examination in public may be held is that the Scottish Ministers are considering a relevant proposal (as defined in section 10(2)) submitted to them by a structure plan authority. They are considering it in order to decide whether or not to approve it (section 10(1) and (4)), having reached the stage at which they have not decided to reject it out of hand (section 10(4)). They have before them the proposal and the material submitted with it. They also have before them any objections, which they are obliged to consider (section 10(4)(a)). If they decide that an examination in public should be held, it will be held before the decision on whether or not to approve the proposal is made. The ministers may invite any body or person they choose to take part in the examination in public; their choice is not confined to the structure plan authority and the objectors (section 10(6)). Those considerations seem to me to support the inference that an examination in public is intended as a means of obtaining further material to inform the decision that the ministers have to make.

[50] The first respondents adopted, as a statement of the purpose of an examination in public, paragraph 1 of the Code of Practice. That indicates that the purpose is "to gain further information and advice in addition to the material submitted with the Structure Plan and objections and representations on it" (see also paragraph 3). The Code of Practice, of course, has no statutory force. Nevertheless, it seems to me that it is correct in identifying as the purpose, or at least as a principal purpose, of an examination in public, the gathering of further information which the ministers consider is necessary to enable them to make their substantive decision, or at least is likely to be helpful in that connection.

[51] Mr Martin contended, in effect, that there was an additional element in the purpose of an examination in public, namely that it enabled the ministers to procure that issues were debated in public, where that was desirable in the public interest. While I do not consider that all of the arguments advanced by Mr Martin in that connection (see paragraph [22] above) are of equal force, it seems to me that it is probably correct that it is open to the ministers to cause an examination in public to be held, not only where they conceive that it is necessary or desirable for the purpose of obtaining further information or advice to inform their decision, but also where they conceive that it is (i) in the public interest and/or (ii) likely to be of assistance to them in making their decision, that the matters referred to should be aired in public. While that is not expressly acknowledged in the Code of Practice, it seems to me that it would be difficult to argue that the ministers had acted ultra vires if they caused an examination in public to be held in circumstances in which they thought that they had all the factual information they needed to make their substantive decision, but felt that it was in the public interest that there should be public discussion of the issue or issues before the decision was taken. To hold otherwise would, in my view, involve overlooking the fact that the procedure that the ministers have a discretion to order is an examination in public.

[52] Thus far, I would be prepared to hold that the purpose of holding an examination in public is arguably wider than that indicated in paragraphs 1 and 3 of the Code of Practice. The central feature of the petitioners' argument, however, was what they sought to draw from paragraph 4 of the Code of Practice. The argument was that, in the absence of any express declaration of the reasons for the decision not to hold an examination in public (whether in the decision itself or in the first respondents' pleadings) it could be inferred that the first respondents had proceeded on the basis that the factors mentioned in paragraph 4 were not present in this case. It followed that if it could be shown that those factors, or a materially significant number of them, were present, it might be inferred that the first respondents' refusal to hold an examination in public was unreasonable. I do not consider that that approach is sound. In the first place, I do not consider that the first respondents were under any obligation to state more elaborate reasons than they did for not ordering an examination in public. Section 10(9) lays on the first respondents an obligation to give such statement as they consider appropriate of the reasons for their substantive decision to approve or not to approve the structure plan. There is no such obligation laid on them to give reasons for not ordering an examination in public. In the second place, I am of opinion that Mr Martin's approach involved elevating what is truly only a list of examples of possible reasons for ordering an examination in public to the status of a list of considerations the presence of a sufficient number of which will make it unreasonable not to order an examination in public. It cannot, in my view, be inferred from their decision not to hold an examination in public that the first respondents took the view that none of the paragraph 4 factors were present. In my view, even if every factor mentioned in paragraph 4 were present in a particular case, it would remain for consideration by the ministers whether an examination in public should be held. It could not be said that a decision not to hold an examination in public was in such circumstances automatically unreasonable.

[53] That paragraph 4 contains no more than a list of examples is in my view made clear by the opening sentence of the paragraph: "Matters on which further information and discussion may be required and which may therefore need to be examined in public will include ...". There is no suggestion that the presence of any one or more of the factors mentioned will make the holding of an examination in public the only reasonable course. Mr Martin accepted that paragraph 4 was not a mere check list to be ticked off in a mechanical fashion. But if that is so, it seems to me to be very difficult to infer from the fact that the circumstances can be said to fall into a number of the categories mentioned that it is therefore unreasonable not to hold an examination in public. The illustrative examples given in paragraph 4 are of circumstances the presence of which may indicate that further information is required before the substantive decision can be made. It does not follow that the presence of any particular accumulation of those circumstances demonstrates conclusively that no reasonable authority could fail to take the view that such further information was required (or, adopting the broader view for which Mr Martin argued, that it would be in the public interest that the issues be debated in public).

[54] It does not seem to me to be appropriate that I should enter at this stage on a discussion of the merits of the various disputes as to policy, approach and methodology that have emerged between the petitioners and the second respondents. An issue may in due course arise as to whether the first respondents, if they approve the replacement Structure Plan, with or without modifications, have adequately resolved those issues (c.f. Scottish House-Builders Association v Secretary of State for Scotland). At this stage, for the purposes of argument, I am prepared to accept that there are substantial issues, about the extent to which the structure plan properly gives effect to national policy and about the methodology adopted by the second respondents in calculating housing demand and housing land supply, on which the second respondents and the petitioners are not agreed. I am not persuaded, however, that the fact that such issues existed unresolved at the date of the decision not to hold an examination in public demonstrates that that decision was unreasonable. The Code of Practice indicates that the existence of "issues involving substantial unresolved controversy" may be a matter on which further information and discussion is required, and may therefore make it appropriate to hold an examination in public. That does not support the proposition that the existence of such issues made it unreasonable to refuse to order an examination in public. It was, in my view, open to the first respondents to take the view that they had before them, in the draft structure plan, the objections, the second respondents' responses and the other material available to them, a sufficient basis for the substantive decision they had to make.

[55] In the preceding paragraph I have concentrated on what according to Mr Martin's analysis formed factor (iv) in paragraph 4 of the Code of Practice. In my view, however, similar reasoning applies to the other factors on which he founded. None of them in isolation seems to me to support the inference that no reasonable decision-maker could have taken the view that an examination in public should not be held. Nor, in my view, does aggregation of the considerations relied upon by Mr Martin (see paragraph [27] above) support such an inference. On the contrary, it seems to me to be clear that it was open to the first respondents to decide that, with the material that they had before them in the replacement Structure Plan and the material submitted with it, in the petitioners' Objection, and in the second respondents' response to that Objection, they had before them material that was sufficient to enable them to reach a properly informed decision on whether or not to approve the replacement Structure Plan. It may, of course, turn out in due course that the first respondents, if they approve the replacement Structure Plan, with or without modifications, have failed to deal adequately with one or more of the issues that they have to address. That, however, is for the future. At this stage the only question is whether they could not reasonably conclude that they could make their decision without holding an examination in public. In my opinion the petitioners have failed to demonstrate that in refusing to order an examination in public, the first respondents acted in a way in which no reasonable decision-maker would have acted.

[56] Two subsidiary arguments remain for consideration. The first relates to the involvement of the Housing Statistics Division in the issue of the proper methodology for calculating housing demand. As I understood Mr Martin's argument, that issue was said to bear upon the reasonableness of the decision not to hold an examination in public in this way. An examination in public is the procedure provided by statute to enable the ministers to obtain more information where necessary for the purpose of resolving issues of substantial controversy. On the other hand, delegation of the decision-making function conferred by statute on the Scottish Ministers to civil servants was illegitimate. If the first respondents' decision on the merits of the replacement Structure Plan was in part based on a decision taken for them by civil servants, that might in due course invalidate that substantive decision. But the same point might be relied on at the earlier stage of the procedural decision about whether or not to hold an examination in public, because to hold that an examination in public was not necessary because the issue of methodology could be resolved by reference to the civil servants involved substituting an illegitimate procedure for the one provided by the legislation, and was therefore unreasonable. In my view, that reasoning is flawed in a number of ways. In the first place, the holding of an examination in public is a procedure made available to the ministers, but it is not in my opinion the only legitimate means available to them of resolving any factual or methodological conflict that they require to resolve. In the second place, if it is correct that it is illegitimate for the Scottish Ministers to delegate part of the substantive decision which they must make to civil servants, it is in my view not evident that that is what they have done. Obtaining the views of specialist civil servants on an issue and accepting their advice is not the same thing as delegating the decision to them. Mr Martin suggested that it was for the first respondents to produce evidence, if necessary in affidavit form, to exclude if they could that they had improperly delegated the decision to civil servants. I do not consider that that is correct. The onus of establishing that an invalidating procedure has been adopted in my view rests on the petitioners. The first respondents' averments do not, in my view, raise a prima facie case of ultra vires acting. Moreover, if it were necessary for the first respondents to show that they had applied their own mind to the advice given by the Housing Statistics Division, and had not delegated the decision to the civil servants in that Division, they would not in my view require to do that until faced with a challenge to the validity of the substantive decision. The point, if it has any merit, is premature at this stage. In the third place, Mr Martin was in my view wrong in submitting that the terms of the Scotland Act excluded the application of the doctrine explained by Lord Diplock in Bushell at 95E-96A. I have no difficulty in accepting that, on an analysis of the provisions in the Scotland Act mentioned in paragraph [28] above, the expression "the Scottish Ministers" is a collective reference only to those mentioned in section 44(1), and does not encompass civil servants who are members of the staff of the Scottish Administration. It does not, however, in my view follow that in exercising a decision-making function conferred on them by statute, such as that conferred by section 10(4)(b), the Scottish Ministers are not entitled to rely on the advice and expertise of civil servants in the same way as are ministers of the United Kingdom government, as explained by Lord Diplock in Bushell. I see no good reason for holding that the Bushell doctrine does not apply to the Scottish Ministers. For those reasons I am of opinion that t

[57] The other subsidiary argument was that the first respondents improperly fettered their discretion whether or not to cause an examination in public to be held. One factor relied upon in that connection was that no examination in public had been held in Scotland for almost twenty years. In the petition that state of affairs was contrasted with the position in England and Wales where, it was said, examinations in public are regularly held (although little if anything was made of that point in argument). I do not consider that the comparison with the English practice is particularly illuminating, given the different procedure laid down for England by section 35B of the Town and Country Planning Act 1990. Nor do I consider that the mere fact that no examination in public has been held for a considerable time in Scotland by itself yields any inference that the Scottish Ministers (or their predecessor, the Secretary of State) have not been operating their discretion properly. At best, the fact that no examinations in public have been held in recent years might afford some additional support for the inference that there had been improper fettering of the discretion if there was a basis for such an inference in other substantial material. The third factor relied upon by Mr Martin in this connection was the reference to the Housing Statistics Division, but in light of the view I have taken of that matter I do not consider that it affords any support to the submission that there has been improper fettering of the first respondents' discretion. The argument therefore, in my view, stands or falls with the second factor relied upon by Mr Martin. That was that there was evidence that the first respondents had a policy of not ordering examinations in public because of the time which they occupied. I do not consider, however, that the material referred to in that connection bears out the proposition that the first respondents improperly fettered their discretion by adopting any such policy. The aim of reaching a final decision on a structure plan within 40 weeks of submission, which is stated in paragraph 32 of NPPG 1, is expressly said not to apply if an examination in public is necessary. All that the research paper (No. 6/12 of process) states in paragraph 5.32 is an "understanding" that one reason for not holding examinations in public is the time that they occupy. The cross-reference in the research paper to the time limit is misleading in that it fails to mention that the limit is stated not to apply where an examination in public is necessary. In my view paragraph 5.32 of the research paper and paragraph 32 of NPPG 1, read together, do not justify the inference that the first respondents have improperly fettered their discretion under section 10(4)(b) by setting their faces against ever holding an examination in public. In my view it could not be said that, in the exercise of the ministers' discretion under section 10(4)(b), the time that an examination in public would occupy would be an irrelevant consideration. It would, of course, be no more than a factor to be weighed in the balance along with any benefits to be gained by holding an examination in public. But it would in my view be open to the first respondents to hold, in a particular case, that any benefit to be gained from holding an examination in public would be outweighed by the harm that would result from the consequent delay. There is, however, in my view no ground for holding even that that was a consideration to which the first respondents gave weight in the present case. In my opinion the submission that the first respondents improperly fettered their discretion under section 10(4)(b) in the present case fails.

Result

[58] For the reasons which I have set out above, I am of opinion that the petitioners have failed to establish that the first respondents' decision not to cause an examination in public to be held into the matters raised in the petitioners' Objection to the replacement Structure Plan was ultra vires. I shall accordingly sustain the first respondents' second and third pleas-in-law, repel the petitioners' plea-in-law and refuse the petition. I shall reserve the question of expenses.