Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Tesco Stores Ltd, Re Judicial Review [2002] ScotCS 29 (30th January, 2002)
URL: http://www.bailii.org/scot/cases/ScotCS/2002/29.html
Cite as: [2002] ScotCS 29

[New search] [Help]

OUTER HOUSE, COURT OF SESSION

OPINION OF LORD ABERNETHY

in the Petition of

TESCO STORES LIMITED, having their Registered Office at Tesco House, Delamere Road, Cheshunt, Hertfordshire, EH8 9SL and a trading address at P.O. Box 400, Cirrus Building, Shire Park, Welwyn Garden City, Herts, AL7 1AB

Petitioners;

for

JUDICIAL REVIEW OF A PURPORTED DECISION OF THE SCOTTISH MINISTERS: (a) that the information before them was adequate for the purposes of exercising their functions under Section 10 of the Town and Country Planning (Scotland) Act 1997; and (b) not to hold an examination in public of matters affecting their consideration of the Glasgow and The Clyde Valley Structure Plan 2000

________________

Petitioner: Thomson, Q.C.,; Semple Fraser

Respondents: Mure; Scottish Ministers (First Respondent)

Young; Simpson & Marwick, W.S., (Second Respondent)

30 January 2002

Introduction

The petitioners seek judicial review of a purported decision ("the decision") made by the Scottish Ministers ("the first respondents"). The terms of the decision, contained in a letter dated 13 February 2001 from the first respondents to the Glasgow and The Clyde Valley Structure Plan Joint Committee ("the second respondents"), were as follows:

"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."

The petitioners seek the following orders:

(i) declarator that the decision was ultra vires of the first respondents;

(ii) reduction of the decision;

(iii) declarator that the first respondents are not entitled to determine whether or not to approve the new structure plan in whole or in part and with or without modifications unless and until they: (a) have considered the petitioners' objections thoroughly, conscientiously and fairly; and (b) have decided (having properly addressed their minds to the question) whether or not an Examination in Public of any matters affecting their consideration of the new structure plan should be held; and

(iv) such other order or orders (including an order for the expenses of the present petition) as the Court may consider appropriate.

In terms of Section 5 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") the second respondents carry out the functions conferred on the planning authorities within the structure plan area of Glasgow and The Clyde Valley ("the structure plan area"). There are eight such authorities within the structure plan area.

The petitioners own and have interests in property within the structure plan area. They own or lease and operate Tesco Stores in a number of town centres in the structure plan area and they have planning permission to develop stores in two further centres. They are actively engaged in acquiring sites for retail development at other locations in the structure plan area. Tesco Stores trade principally as convenience stores.

The second respondents have prepared a new structure plan for the structure plan area. This is the Glasgow and The Clyde Valley Structure Plan 2000 ("the new structure plan"). On or about 19 July 2000 in terms of Section 6 of the 1997 Act the second respondents submitted the new structure plan to the first respondents for approval.

On or about 13 September 2000 objections to the new structure plan were intimated on behalf of the petitioners to the first respondents. In paragraph 35 of their objections the petitioners invited the first respondents to hold an Examination in Public ("EIP"). As already stated, on or about 13 February 2001 the first respondents intimated to the second respondents that they had decided not to hold an EIP.

It was intended that a copy of that letter be sent to Mr Robert Drysdale, who on behalf of the petitioners had intimated their objections, but for some reason that seems not to have happened and he did not receive a copy of it until June 2001. No point was made of this, however. It was shortly after that that this petition was lodged.

Section 10(1) of the 1997 Act provides as follows:

"(1) The Secretary of State may, after considering a relevant proposal [in this case the new structure plan], either approve it (in whole or in part and with or without modifications or reservations) or reject it."

Section 10(4) provides:

"(4) Where on considering a relevant proposal 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 proposal, so far as they are made in accordance with regulations, and

(b) if, but only if, it appears to him that an examination in public should be held of any matter affecting his consideration of the proposal, cause a person or persons, appointed by him for the purpose, to hold such an examination."

The Secretary of State's powers and duties in these matters are now vested in the first respondents (Scotland Act 1998, Section 53).

The petitioners challenge the decision on three grounds:

(i) The decision was ultra vires of the first respondents. Separatim the first respondents acted unreasonably in the exercise of their discretion under Section 10(4) of the 1997 Act.

(ii) In reaching the decision the first respondents misdirected themselves in law et separatim failed to have regard to relative and material considerations et separatim proceeded on an incorrect material basis of fact.

(iii) No reasonable decisionmaker acting reasonably in the discharge of the responsibilities under Part II of the 1997 Act could have reached the decision.

In the course of the debate, as counsel for the petitioners developed their argument, their submissions came to be that the decision was fatally flawed for five reasons. (1) In the new structure plan there was a total absence of a qualitative assessment of strategic retail need. (2) There was also an inadequacy in the information regarding the quantitative assessment of strategic retail need. The result of these two was that the first respondents were unable either (a) to address the petitioners' objections properly or (b) to carry out their duty under Section 10(1) of the 1997 Act. In respect of (1) and (2) the first respondents had therefore failed to take into account relevant and material considerations which they ought to have taken into account. (3) They had similarly failed and had misdirected themselves in law by their failure in the decision to address other reasons for holding an EIP apart from whether the information available was adequate. These included whether they were able without an EIP (a) to deal with the unresolved controversy between the development plan and national policy; (b) to deal with the unresolved controversy between the new structure plan and the objections, particularly retail objections and those of the petitioners; and (c) to consider properly the objections. (4) They had proceeded upon a material error of fact in the reasons given for modification 44 of the draft modifications to the new structure plan which had been issued by the first respondents on 16 February 2001. (5) It was unreasonable in the Wednesbury sense for the first respondents to treat the information which they had as adequate to enable them to approve the new structure plan. In other words, the decision was so unreasonable that no reasonable Scottish Ministers could have made it.

Before I set out these submissions in more detail it is convenient, in order to give content to them, to go back and fill in more of the background. In October 1999 the second respondents issued a Consultative Draft Structure Plan ("the draft structure plan"). In the section of that document dealing with Retailing and Town Centre Uses it is said that a retail capacity assessment of the structure plan area was underway and would form a context for the new structure plan. The preliminary results indicated that for comparison and for convenience retailing there was likely to be a surplus of floorspace capacity over expenditure in the structure plan area at 2001 (para. 9.33). It went on to say, however, that even if this surplus was confirmed, there might be a need for further retail facilities in some parts of the structure plan area to offset local deficiencies. It noted that a Household Shopping Survey had been undertaken on behalf of the second respondents and that further analysis would be required to examine the balance of turnover and expenditure at a more local level. It then stated that the quality and distribution of existing facilities would also be taken into account when considering the need for new facilities and the Structure Plan would list these as development opportunities in the finalised Strategic Policy 5 - Schedule 5 (para. 9.34). (In fact, these are now in the new structure plan as Schedule 6(c)(iii) and (iv).) The petitioners made comments on the draft structure plan and submitted them to the second respondents on 18 November 1999. After expressing disappointment that they had not been consulted regarding the approach to be taken or the assumptions which were to be made in the capacity study they were pleased to note that the capacity study would not be the only determining factor in identifying requirements for further development and that the quality and distribution of existing facilities and the existence of local deficiencies would also be taken into account. This was essential, they said. They went on to make comments on other parts of the document and in their conclusions said this:

"The assessment of retail needs must not be based solely on a theoretical assessment of 'capacity'. The quality and distribution of retail facilities, and the need to overcome deficiencies in provision, must be given substantial weight."

These comments were acknowledged by the second respondents who said that they would take them into account.

As already stated, in July 2000 the second respondents submitted the new structure plan to the first respondents, together with Retail Technical Report 7. This was the only document to accompany the new structure plan. Para. 11.43 of the new structure plan is in the following terms:

"A retail capacity assessment for the Structure Plan area has been undertaken for both comparison and convenience retailing, projected to 2006. A fuller account of the base information and assumptions is contained in the Retail Technical Report 7. In particular, the assessment takes account of:

appropriate retail catchment areas;
the projected growth in retail expenditure;
population and household projections based on the growth targets of the Plan; and
the relationships between centres, for example the wider trade draw required to support the more specialised functions of the larger centres."

Under the heading Strategic Policy Response para.11.48, in so far as it concerns convenience retailing, is in the following terms:

"It is estimated that there is likely to be an overall surplus in floorspace turnover capacity over available convenience expenditure in the Structure Plan area as a whole at 2006, if existing planning consents are implemented. There is also likely to be a general adequacy of available or potential floorspace within each of the retail catchment areas and there is therefore no strategic requirement for additional floorspace. However, small scale shortfalls have been identified in the Newton Mearns, Airdrie/Coatbridge, Larkhall/Lesmahagow and Hamilton Catchments and it is anticipated that these will be met through renewal opportunities in or adjoining existing Town Centres. The shortfalls in these catchments should be evaluated through Strategic Policy 9, following the principles in Schedule 6(c)(i) and (ii) and, if necessary, reconciled through the local planning process."

Strategic Policy 9 is entitled Assessment of the Development Proposals and, so far as relevant for present purposes, provides:

"In order to accord with the Structure Plan, development proposals will require to satisfy the following criteria. Any proposal which fails to meet these criteria will be regarded as a departure from the Development Plan and will be required to be justified against the criteria in Strategic Policy 10. These criteria are complementary, and the fulfilment of one criteria (sic) does not over-ride the need to satisfy the others.

A. That the development proposal falls below the thresholds identified in Schedule 9 (the threshold for convenience retail developments is 1,000 sq. m) or the need for the development has been established in the Structure Plan in terms of the relevant demand assessment and provision made in the planned supply of land for new development, including:

(iv) the retail capacity assessment for the related retail catchment areas in terms of the criteria in Schedule 6(c)(i)."

Schedule 6(c)(i) is in the following terms:

"Assessment of Significant Retail Development Proposals

All significant proposals for retail development must accord with the strategic objectives of this Plan and will be assessed against the following criteria:

expenditure compared to turnover, including the additional development opportunities identified in Schedules 6(c)(iii) and 6(c)(iv), in the appropriate catchment area;
impact, including cumulative impact, on the Town Centres listed in Schedule 1(a);
contribution to the improvement of Town Centres, particularly those in Schedule 1(a);
the need to restrict the type of goods which can be sold at out of centre locations to bulky goods, as defined in the Glossary of terms in this Plan;
the restriction of a limited proportion of floorspace for bulky goods in new retail parks which adjoin town centres, if justified by Local Plan policies;
the requirement to locate new developments in locations which can be accessed in accordance with Strategic Policies 3 and 9(b)(vi);
encouragement of development proposals for additional floorspace in the locations listed in Schedules 6(c)(iii) and 6(c)(iv); and,
assessment of retail proposals having regard to any guidance which will be issued by the Glasgow and the Clyde Structure Plan Joint Committee on behalf of its constituent Planning Authorities."

Schedule 6(c)(ii) is as follows:

"The Sequential Approach to Retailing and other Town Centre Uses

first preference should be for town centre sites, where sites or buildings suitable for conversion are available, followed by edge-of-centre sites, and only then by out-of-centre sites which can be made accessible by a variety of means of transport;
locations which are, or can be, made easily accessible by a choice of means of transport, especially public transport, should be selected in preference to those which are less accessible;
developers and retailers, in formulating proposals, should show flexibility so that, as far as possible, developments can be located in or adjoining town centres by:
accommodating developments in a different built form, for example by subdividing large proposals, so that their scale might offer a better fit with town centres;
considering whether the range of goods to be sold (for example bulky goods) could be retailed from a town centre or edge of centre site, perhaps using a different retail format; and
it is the responsibility of developers to demonstrate that they have applied the sequential approach, by showing that town centre options have been thoroughly assessed, before edge of centre or out of centre locations are considered."

It is also appropriate to quote Strategic Policy 10. This policy is entitled Departures from the Structure Plan and, so far as relevant for present purposes, provides:

"Any proposal which fails to meet the relevant criteria in Strategic Policy 9 will be regarded as a departure from the Development Plan and consideration shall require to be given to the appropriateness of the development having regard to the following criteria and any other material considerations.

A. The need for the development in terms of:

(i) an updated assessment agreed by the Joint Committee of the supply and demand estimates used in the Plan ..."

On 13 September 2000 the petitioners lodged objections to the new structure plan. These were extensive and covered a number of matters. In relation to the capacity analysis as a basis for retail planning policy, after recalling what had been said in para. 9.34 of the draft structure plan, they expressed concern and dismay that the new structure plan "places extraordinary weight upon the outcome of the capacity study, with little or no regard for any other factors". They went on:

"No consideration is given to the quality of existing floorspace, the changing demand of consumers and the effect which this will have upon the efficiency and appropriateness of existing shopping facilities. There is no analysis of qualitative deficiency ... This basic flaw in the plan's approach, coupled with the notion that all future retail needs can be based solely on the outcome of a capacity study, is compounded by the fact that the capacity study itself is unreliable."

This, as the objections went on to explain, was because the inner workings of the study were inaccessible to the general public, as were the results of the household shopping survey and the detailed workings which underlay the conclusions in Technical Report 7. In their conclusions to the objections the petitioners stated:

"The assessment of retail needs cannot be based solely on a theoretical assessment of 'capacity'. The capacity study upon which the plan's retail strategy has been based is impossible to scrutinise or test, and is therefore unreliable even as a method of calculating the likely turnovers of existing and planned floorspace, and certainly not useful as a measure of need. The quality and distribution of retail facilities, and the need to overcome deficiencies in provision, must be given substantial weight."

The petitioners therefore requested that the plan be modified, inter alia, by deleting all reference to the need for retail proposals to be justified on the basis of (a) the capacity study and (b) any guidance which may be issued subsequently by the second respondents. They concluded by requesting that an EIP be held "in order that they and other objectors be given the opportunity to present their representations in detail before an independent person, and to enable them to test the validity of the plan in open forum."

On 13 February 2001, as narrated above, the first respondents issued the decision. As further stated in the decision letter, they also proceeded to issue draft modifications to the new structure plan. These were notified to the second respondents on 16 February 2001. For present purposes three of the proposed modifications are of interest. Modification 47 proposed a modification to Schedule 6(c)(i) as follows:

"In the third criterion, insert 'the vitality or viability of' before 'Town Centres' and 'and functional relationship with existing town centre facilities' after 'Schedule 1(a)'.

Insert the following additional criterion:

'· the contribution the development would make to remedying any
qualitative deficiencies in existing retail provision.'

Delete the existing final criterion and substitute:

'· any supplementary guidance on retail development which may be issued
by the Joint Committee following consultation'."

The reason given for the first two parts of that proposed modification was:

"To ensure that the assessment of significant retail development proposals takes account of their potential to improve the vitality or viability of existing Town Centres or address any qualitative deficiencies in existing retail provision."

The reason given for the last part was:

"In the interests of clarity and to accord with national planning policy on supplementary guidance."

Modification 61 proposed a modification to Strategic Policy 10. The relevant part of it was as follows:

"In part A:

(b) insert the following additional criterion:

'iv. the quality of existing retail provision.'

Renumber the existing criterion 'iv' as criterion 'v'."

The reason given for this was:

"To ensure that the assessment of new retail development proposals takes account of the quality of existing provision."

In view of reason (4) of the reasons given by counsel for the petitioners for submitting that the decision was fatally flawed, it is convenient at this stage to note proposed modification 44. It proposed a modification to para. 11.43 as follows:

"Insert the following additional sentence at the end of the paragraph:

'The Joint Committee will hold discussions with the retailing industry on the assessment of retail requirements in the period beyond 2006.'"

The reason given for this was:

"To reflect the need for further discussions between the Joint Committee and the retailing industry on the assessment of retail requirements beyond 2006, and the importance Scottish Ministers attach to partnership working in the development of strategic planning policies."

On 29 March 2001 the petitioners lodged objections to the proposed modifications. After noting that they had objected to the new structure plan "because excessive reliance was to be placed upon the outcome of statistical capacity analyses [as] a basis for assessing the need for new retail developments", they welcomed the fact that proposed modifications 47 and 61 take up this point. They continued:

"However these modifications alone are inadequate. In addition it will be necessary to alter Strategic Policy 9, A(iv), because there is already evidence to indicate that planning authorities are using the unreliable results of their own capacity studies to resist development proposals located in or adjacent to town centres, contrary to the terms of NPPG8. Clause A(iv) should be altered to read 'broad indications from capacity analyses regarding the level of available expenditure in the catchment, together with an assessment of the extent of qualitative deficiencies".

They also reiterated their view that there should be an EIP to discuss the issues they had raised and test the justification for the policies to which they were objecting.

Turning now to the five reasons that counsel for the petitioners submitted that the decision was fatally flawed, it is appropriate to take reasons (1) and (2) together. In opening the submissions for the petitioners Mr Wolffe, their junior counsel, referred me to the relevant statutory provisions in the 1997 Act and in the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983, which deal with structure plans and EIPs. He reminded me that the structure plan's place as part of the development plan, always of importance, had been made more so by the introduction of Section 25 of the 1997 Act. That section provided that in determining any application for planning permission for development which those such as the petitioners might make there was a presumption that the determination would be made in accordance with the development plan. See City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33 in relation to the predecessor provision, Section 18A of the Town and Country Planning (Scotland) Act 1972.

In relation to Section 10 of the 1997 Act Mr Wolffe submitted that when the first respondents confronted the terms of Section 10(1), they had to take account of all relevant considerations before coming to their decision (Secretary of State for Education and Science v Tameside Metropolitan Borough Council 1977 AC 1014, Lord Diplock at page 1065). Among these are statements of national policy and good practice (Scottish House-Builders Association v Secretary of State for Scotland 1995 S.C.L.R. 1039). So it was necessary for the first respondents to ask themselves whether the structure plan accorded with national policy and guidelines. That involved considering whether they had sufficient information to enable them to do so and whether they had sufficient information to justify any departure from national policy and guidelines. Moreover, when taking their decision in terms of Section 10(1) they must have reasons for it and go through the reasoning process which must be set out in the statement provided for by Section 10(10). These reasons must be proper, adequate and intelligible, although they may be briefly stated (Edwin H. Bradley & Sons Ltd. v Secretary of State for the Environment 1982 47 P. & C. R. 374, Glidewell J. at pages 387-9, approved in Westminster City Council v Great Portland Estates Plc 1985 1 A.C. 661, Lord Scarman at page 673). From this it followed that, where there was a departure from national policy, the first respondents required to give reasons for it (Barnham v Secretary of State for the Environment 1985 52 P. and C.R. 10). Similarly, when a substantial point was raised in objections, they had to give reasons for their decision on it. Having regard to the terms of Section 10(4)(a) they had to consider objections properly, that is, thoroughly, conscientiously and fairly (Stirk v Bridgnorth District Council 1996 73 P. and C.R. 439, Thorpe L.J. at page 444).

Turning to the relevant statements of national policy and guidance Mr Wolffe referred me first to the general statements concerning development plans and structure plans contained in National Planning Policy Guideline 1 Revised 2000 ("NPPG1") before looking in more detail at National Planning Policy Guideline 8 Revised 1998 ("NPPG8"). This document was especially important so far as the petitioners were concerned because it was the background against which the structure plan should have been approaching retail policy. It made it clear that the emphasis was on protecting and enhancing town centres. Thus in para. 8 it is stated under the heading Policy Guidelines: General Principles:

"The Government is committed to protecting and enhancing the vitality and viability of town centres."

In para. 9 it is stated:

"Protecting and enhancing town centres is therefore a key consideration which underpins Government policy."

And in para. 12 it is stated:

"Planning authorities and developers should adopt a sequential approach to selecting sites for new retail, commercial leisure developments and other key town centre uses. First preference should be for town centre sites, where sites or buildings suitable for conversion are available, followed by edge-of-centre sites, and only then by out-of-centre sites in locations that are, or can be made easily accessible by a choice of means of transport. The sequential approach should apply to all food and comparison shopping as well as other attractions and facilities usually found in town centres, unless guidance in this NPPG or the development plan provides for a particular exception."

In para. 84, under the heading Action Required in relation to development plans it is said:

"In preparing development plans, planning authorities should take account of the broad forecasts of retail demand, deficiencies in retailing provision (if any), and how the retail sector is likely to respond to that demand over the planned period, by reference to location and type of retailing."

Mr Wolffe said that while demand may be looked at by reference to current expenditure and projection of that into the future, as was done in the structure plan, that did not take account of any potential change in the nature of the shops and the goods available in a particular location. The structure plan area as a whole should be borne in mind and should be viewed strategically in order to consider where the deficiencies are in retail provision which should be addressed. Once these deficiencies are identified then matters such as where money is spent and the effect that that has on transport together with other planning considerations can be taken into account. But unless the analysis into where the deficiencies exist is embarked upon, those other issues cannot be addressed. In order to do this it is necessary to have the appropriate data. See para. 84 and also para. 91 which states:

"Plans should be soundly based on up-to-date information. Retailing policies and proposals in development plans should therefore be based on a factual assessment of retail developments and trends. Data on the quality, quantity and convenience of retailing in the area and the potential capacity for growth or change in the shopping centres will be important to ensure plan policies and proposals are properly informed."

A further aspect of demand was for improved or different shopping facilities. For example, disabled shoppers might require wider aisles in a supermarket or appropriate car parking facilities. Or particular shopping facilities might be deficient; for example, those for young children. This aspect of demand was also not addressed in the structure plan.

So far as the concept of quality was concerned, mentioned in para. 91, this might refer to the quality of the existing shops in a particular town centre or it might refer to the range of facilities which existed. So if the existing shops were unsuitable for some reason, shoppers might be forced to go to other locations, which would have transport implications. The same would be true if there was a town centre without, for example, a chemist's shop.

Finally in this chapter Mr Wolffe referred to National Planning Policy Guideline 17: Transport and Planning, September 1999, ("NPPG 17") and in particular para. 75 of that document. This states:

"Structure plans should include policies and proposals designed to contribute to reducing the need to travel, particularly by car, and to increasing the choice of means of travel available, in consultation with neighbouring structure plan authorities to ensure cross-boundary consistency, and relating to:

planning, general housing, employment, education, retail, leisure and other land uses and developments ...".

This, said Mr Wolffe, was the mirror image of parts of NPPG 8.

When the draft structure plan was issued it appeared that the second respondents recognised the need for a qualitative assessment, as noted earlier in this Opinion. The new structure plan itself, however, so far as retail policies were concerned, was apparently based solely on TR7. This document had been issued at the same time as the new structure plan. (Mr Thomson, senior counsel for the petitioners, later submitted that it appeared to be the report of survey for the purposes of Sections 4(2) and 6(2) of the 1997 Act, in which case it should have been issued at the same time as the draft structure plan was (Section 8(1)(a)). That it was not should be borne in mind by the first respondents when they were considering the comments made by the petitioners on the draft structure plan before TR7 was available. As soon as it was available, the petitioners lodged objections.) In any event TR7, dated July 2000, was a purely quantitative analysis. It did not contain any qualitative assessment nor was one to be found elsewhere. There was therefore, as Mr Thomson later put it, a total absence of a qualitative assessment of strategic retail need. Such an assessment would have been based on (1) a survey asking consumers why they shop where they do and (2) the results of assessment by planning officers of the relative attractiveness to shoppers of existing shopping centres. From this and the quantitative analysis in TR7 a strategic policy would have been designed as envisaged in para. 9.34 of the draft structure plan. That paragraph recognised that this was a structure plan exercise but without the basic data on the quality and distribution of existing facilities it could not be carried out. This was common sense but there were also policy reasons for such an exercise. See NPPG8 at, for example, paras. 91 and 92. In addition it was necessary at the structure plan stage to consider land use and whether it met the policy objectives set out in NPPG17. As stated in para. 6, NPPG17 promotes an integrated approach to land use, economic development, transport and the environment, based on a number of objectives, including supporting sustainable economic development within a pattern of land use and integrated transport which, inter alia, facilitates a reduction in car use. So, said Mr Thomson, if people are travelling from one area to another to shop, as TR7 showed, that objective was not being achieved and was a further qualitative issue which had to be taken into account at the structure plan stage. Its importance was underlined by what was said in other parts of NPPG17. It was plain, however, that the first respondents had not been given sufficient information on these matters.

Since these matters had not been taken into account and would inevitably have had an effect on the findings in TR7, those findings in themselves were debatable. This was in addition to the points made in the petitioners' objections to the new structure plan which I quoted earlier. That Strategic Policies 9 and 10 were worded in the way they were, reliant on the retail capacity assessment in TR7 and any update, showed a lack of understanding of the limitations of that document when the first respondents took their decision, as Mr Thomson put it, not to hold an EIP and to proceed to approve the new structure plan in terms of Section 10(1) subject to modifications. Proposed modification 47, for example, directed at Schedule 6(c)(i) and apparently stemming from the second respondents' response to the petitioners' objection that the new structure plan focused on the quantitative retail issues with inadequate reference to quality, did not begin to address the petitioners' objection that there was no strategic qualitative assessment. The same was true of proposed modification 61, directed at the criteria in Strategic Policy 10 Part A. Other objections by the petitioners to the new structure plan had not been dealt with properly by the second respondents in their responses to the objections or by the first respondents in the proposed modifications to the new structure plan.

In reply Miss Dunlop, counsel for the first respondents, and Mr Young, counsel for the second respondents, between them sought to answer the points made by counsel for the petitioners. Mr Young undertook the burden of trying to show that the second respondents had addressed the issue of qualitative assessment in the new structure plan. He pointed to a number of places in the new structure plan which showed that that had been done or would be done in the context of local plans. I do not propose to narrate these one by one for reasons which will become clear in a moment. Suffice it to say that while Mr Young was able to point to certain parts of the new structure plan which appeared to take qualitative issues into account, both he and Miss Dunlop accepted that there had not been a strategic qualitative assessment of retail need of the kind contended for by counsel for the petitioners.

In the circumstances, however, I do not need to take that any further because Miss Dunlop mounted a more fundamental attack on the petitioners' arguments, which Mr Young adopted and later developed further. She submitted that it should not be forgotten that the decision under review here is the decision of the first respondents not to hold an EIP. The procedure governing these matters is a statutory one and the provisions of the statute must be given effect. The ultimate decision for the first respondents is the decision in terms of Section 10(1) of the 1997 Act whether to approve the new structure plan (in whole or in part with or without modifications or reservations) or reject it. Miss Dunlop submitted that it was essential not to lose sight of that. The decision not to hold an EIP was no more than an incidental decision en route to the decision in terms of Section 10(1). They were not taken at one and the same time. Section 10(4)(b) provided that the decision whether or not to hold an EIP was one to be taken in the course of considering the new structure plan and before determining whether or not to approve it. Moreover, if an EIP were to held, it was to be on a matter affecting the consideration of the new structure plan. The purpose of this was to enable the first respondents to inform themselves on that matter before they took the final decision in terms of Section 10(1). Reference was made to Bromsgrove District Council v Secretary of State for the Environment 1991 62 P. and C.R. 297 and also to Young and Rowan Robinson on Scottish Planning Law and Procedure 1^st Edn.1985 at pages 88-91. In that situation it was not appropriate for the petitioners to try to elide the decisions in terms of Section 10(4)(b) and Section 10(1) as they had sought to do. They had interpreted the decision as not just a decision not to hold an EIP but a decision to proceed to approve the new structure plan in terms of Section 10(1) subject to modifications. But these were two separate decisions and were not to be elided. The only decision that had been taken was the one not to hold an EIP. There had as yet been no decision to approve the new structure plan in terms of Section 10(1). If and when that decision was taken, and the petitioners felt aggrieved by it, they could make an application to the Court of Session in terms of Section 238 of the 1997 Act.

In my opinion these submissions made on behalf of the respondents are well-founded. The decision not to hold an EIP was intimated in the letter dated 13 February 2001. From the terms of that letter it might be said that at that time the first respondents were minded to approve the new structure plan subject to the proposed modifications but I do not think that it can be taken further than that. It is certainly not possible to say that any decision in terms of Section 10(1) has been made. The modification procedure has still to be followed through. Moreover, when the decision in terms of Section 10(1) is intimated it will no doubt be accompanied by a statement of reasons in terms of Section 10(10). Until that moment occurs it is not possible to say what the decision will be or what reasons will be given for it. The first respondents already propose further modifications. In the course of the debate Miss Dunlop accepted that further work was required on the wording of Strategic Policy 9 Part A and the supporting text and could be dealt with by way of modification. It may also be that if and in so far as the new structure plan does conflict with national policy, satisfactory reasons will be given for that. Who knows, in light of the submissions in this case, the first respondents might propose yet further modifications. It should not be forgotten that the petitioners' initial position, as stated in their objections to the new structure plan, was that their objections could be dealt with by way of modification. Another possibility is that the first respondents might decide not to approve the new structure plan in relation to retail matters. They might even reject the new structure plan altogether. All these, and no doubt other, possibilities remain. All the options provided for by Section 10(1) remain open. If, when the decision in terms of that sub-section is made, the petitioners feel aggrieved by the decision, they have a remedy under Section 238. In my opinion, therefore, the interpretation put upon the letter of 13 February 2001 by the petitioners is misconceived. It was on that interpretation that the petitioners based their reasons (1) and (2) for reducing the decision. It follows, therefore, that these reasons are also in my opinion misconceived.

I turn now to the petitioners' reason (3) for saying that the decision was fatally flawed. In the letter of 13 February 2001 the first respondents merely said that an EIP would not be held because the information before them was adequate. But counsel for the petitioners submitted that that was not sufficient. The first respondents had not addressed other possible reasons for holding an EIP. Mr Wolffe submitted that given the provisions of Section 10(9) of the 1997 Act, which provide that on considering a relevant proposal (in this case the new structure plan) the first respondents "may consult, or consider the views of, any planning authority or other person, but shall not be under any obligation to do so", there must be other reasons for them to hold an EIP than mere information gathering. One reason was that there might be issues which were so sensitive, controversial or important that a public testing of them was required in order to ensure that the public could have confidence in the way that the structure plan exercise had been carried through. NPPG1 para. 26 stated that that was important. Another reason was to show more transparency in the decision making process. There had been some criticism that without an EIP it lacked transparency. Reference was made to a consultation paper issued by the Scottish Executive Development Department in June 2001 entitled Review of Strategic Planning. Mr Thomson adopted these submissions and further submitted that other reasons for holding an EIP would be to enable the first respondents (a) to deal with an unresolved controversy between the new structure plan and national policy; (b) to deal with an unresolved controversy between the new structure plan and the objections, particularly the retail objections and those made by the petitioners; and (c) properly to consider the objections. The first respondents should have addressed these other possible reasons for holding an EIP. It was not said, however, that each of these reasons should have been addressed specifically in the decision letter. As I understood it, it would have been sufficient merely to have added that in addition to the information before them being adequate, there were no other considerations which in the first respondents' view justified an EIP.

In my opinion these submissions are not well founded. I agree with the submission of Miss Dunlop that the starting point here is Section 10(4)(b) of the 1997 Act which makes it clear beyond any doubt that the question whether or not to hold an EIP is a matter entirely within the discretion of the first respondents. Moreover, it is also entirely within their discretion what the subject matter of any such examination will be and entirely within their discretion and the discretion of the person or persons conducting such an examination who will be invited to take part (Section 10(6) and (7)). There is no statutory duty on the first respondents to give reasons for their decision whether or not to hold an EIP, although it was accepted by Miss Dunlop, rightly in my view, that if reasons were given they could be subjected to judicial review in the normal way. These are the statutory provisions that are in force at present. Whether they are changed in the future is irrelevant. In this context, therefore, no weight can be put on what is said in the consultation paper "Review of Strategic Planning" issued by the Scottish Executive Development Department in June 2001. Not only does it post-date the decision here, it is no more than what it bears to be, namely, a consultation paper. Accordingly, the views expressed in it cannot possibly have any effect on the terms of the statutory provisions at present in force. Having regard to those provisions I am satisfied that their purpose is, as Miss Dunlop submitted, not to provide an opportunity to objectors to ventilate their concerns but to provide the first respondents with any further information they feel they need on any matter affecting their consideration of the new structure plan. That, it seems to me, is the only interpretation which they will reasonably bear. I therefore agree with the statements to that effect by Otton J. in Bromsgrove District Council v Secretary of State for the Environment 1991 62P. and C.R. 297 at pages 301 and 317 (dealing with the relevant English provisions) and by Young and Rowan Robinson on Scottish Planning Law and Procedure 1^st Edn.1985 at page 91. This view is consistent with SDD Circular No.6/1985, the Code of Practice for the Examination in Public of Structure Plans, para. 1, which states:

"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 the objections and representations on it."

See also para. 3. Planning Advice Note PAN 37 issued by the Scottish Office Development Department and revised in 1997, para. 32, is to a similar effect.

In so far as it was submitted by counsel for the petitioners that there was a distinction between information gathering and the other possible reasons they mentioned for holding an EIP I am of the opinion that there is in reality no such distinction. If the first respondents had thought that they needed further information, say, on whether TR7 provided a proper basis for the quantitative assessment in the new structure plan and decided to hold an EIP for that purpose, that would have been to provide them with further information. Equally, in my view, if the first respondents had thought that they needed further information as to, for example, the public attitude to a sensitive issue or how to resolve an apparent conflict between the new structure plan and national policy and decided to hold an EIP for one or other or both of those purposes, that would have been to provide them with further information. In that situation they would both have been matters affecting the first respondents' consideration of the new structure plan and, indeed, had to be matters of that kind so as to come within the terms of Section 10(4)(b). Mr Wolffe also made reference to para. 4 of Circular No.6/1985 which mentions, inter alia, conflicts between a submitted proposal such as the new structure plan and national policies as possible subjects for an EIP but these are merely illustrations of "matters on which further information and discussion may be required and which may (emphasis added in each case) therefore need to be examined in public".

It follows from all this that the reason given by the first respondents for not holding an EIP, namely, that the information before them was adequate, was in my opinion a perfectly sound one on the face of it and the petitioners' attack on it on the basis of reason (3) fails.

The petitioners' reason (4) relates to what counsel submitted was a material error of fact. Para. 11.43 of the new structure plan, with the heading Capacity Assessment of Retail Provision in the Structure Plan Area, notes that a retail capacity assessment has been undertaken for the Structure Plan Area for both comparison and convenience retailing, projected to 2006. Reference is made to TR7 and then it is said that the assessment takes account of a number of particular matters which are then set out. Proposed modification 44, which is quoted in full earlier in this Opinion, suggests that there should then be added the following sentence:

"The Joint Committee will hold discussions with the retailing industry on the assessment of retail requirements in the period beyond 2006."

The reason given for this is:

"To reflect the need for further discussions between the Joint Committee and the retailing industry on the assessment of retail requirements in the period beyond 2006, and the importance Scottish Ministers attach to partnership working in the development of strategic planning policies."

This reason, counsel for the petitioners submitted, revealed that the first respondents had proceeded on a material error of fact. The use of the word "further" showed that the first respondents thought that there had been some discussions between the second respondents and the retailing industry, whereas in fact there had been none. The decision of the first respondents intimated in the letter of 13 February 2001 was therefore flawed. Either the first respondents had had regard to an incorrect material fact or they had failed to have regard to the fact that there had been no discussions, having clearly recognised the materiality of doing so. That there were good reasons for having such discussions was clear from NPPG1, para. 26 and NPPG8, paras. 84 and 91. That there had been no such discussions was apparent from the second respondents' Statement of Publicity and Consultation. Para. 5.5 of that document referred to discussions with various bodies in the business community. Two of them, Glasgow Chamber of Commerce and the Federation of Small Businesses, would include retailers but there was no mention either there or elsewhere in the list of bodies consulted of any of the national bodies which represent the retailing industry, such as the British Retail Consortium and the British Council of Shopping Centres. In paras. 5.15 and 5.16 there was mention of a technical working group on retailing matters but again no mention of any representative of the retailing industry. Again, in paras. 6.2 and 6.3 it was said that the second respondents undertook presentations and joint workshops and conducted specialised meetings with a large number of bodies but once more there was no mention of anyone from the retailing industry. Para. 6.9 stated that Appendix II listed the consultees to whom the Strategic Issues Report and the draft structure plan were sent out. Some retailers were on the list but no general representative of the retailing industry. The second respondents' averments in their answers did not suggest they had met with representatives of that industry. A mistake of fact such as was disclosed here was something for which the Court could quash the resulting decision (R (Alconbury Developments Ltd. v The Secretary of State for the Environment 2001 2 WLR 1389, Lord Slynn of Hadley at p. 1407).

In my opinion, agreeing again with Miss Dunlop, these submissions are not well founded. In the first place, I am not satisfied that the reason given for proposed modification 44 does disclose a material error of fact. The documents referred to by Mr Wolffe disclose that the views of at least some people in the retailing industry, including the petitioners, were sought by the second respondents. It may be that there is no indication of any consultation with any body representing the retailing industry at large but I am not aware of any requirement that that should take place and there is nothing in the reasons given for proposed modification 44 to indicate that the first respondents mistakenly thought it had taken place. The words "retailing industry" are in my view perfectly apt in this context to be taken as meaning members of the retailing industry. I do not see why they should necessarily be taken as meaning national bodies representing the retailing industry. Further, to draw a distinction in this context between "discussions" and "consultation" is to take far too narrow a view in my opinion. In any event, there were discussions with, among others, the Glasgow Chamber of Commerce and the Federation of Small Businesses. Both of these bodies, as Mr Wolffe recognised, would include retailers and, indeed, I was informed that the petitioners were members of the former. In these circumstances I am not satisfied on the information available to me that the reason given for modification 44 does show that the first respondents proceed on a material error of fact. If I am wrong about that, however, there is another hurdle for the petitioners to overcome if they are to succeed on this point. In Bolton Metropolitan Borough Council v Secretary of State for the Environment 1990 61 P. and C.R. 343 at Glidewell L.J., speaking of matters which the decision maker (here the first respondents) ought to take into account before reaching the decision, said this (at p.352):

"The decision maker ought to take into account a matter which might cause him to reach a different conclusion to that which he would reach if he did not take it into account. Such a matter is relevant to his decision making process. By the verb 'might', I mean where there is a real possibility that he would reach a different conclusion if he did take that consideration into account."

Mr Thomson accepted that test. In my view, however, the petitioners have come nowhere near to satisfying it. There is not the slightest indication in the information available to me that if the first respondents were in error, as counsel for the petitioners submitted, it would have made any difference to the decision not to hold an EIP. Moreover, in my view it is going too far in the particular circumstances of this case to suggest that even if the reason for this proposed modification did disclose an error, this whole complex process should on that account alone be brought to a halt. I would not, therefore, have been disposed to exercise my discretion in favour of the petitioners and quash the decision on this ground. For the sake of completion I should add this. Although it was, strictly speaking, an obiter dictum, I would have been prepared to accept what Lord Slynn of Hadley said in R (Alconbury Developments Ltd.) v Secretary of State for the Environment, 2001 2 W.L.R. 1389 at p. 1407, namely, that the Court has jurisdiction to quash a decision made on the basis of a misunderstanding or ignorance of an established and relevant fact. I would also have been prepared to draw the inference that if the reason given for proposed modification 44 had disclosed an error of fact, then the same error informed the decision not to hold an EIP. I would have done that because of the close time relationship between the two.

There remains reason (5). This was that it was Wednesbury unreasonable for the first respondents to treat the information which they had as adequate to enable them to approve the new structure plan. By this was meant, as Mr Thomson put it, that the decision by the first respondents not to hold an EIP for the reason that the information before them was adequate was one which no sensible ministers acting with due appreciation of their responsibilities would have made. Reference was made to the speech of Lord Diplock in Secretary of State for Education and Science v Tameside Metropolitan Borough Council 1977 A.C.1014 at pages 1064-5. In that passage Lord Diplock said this:

"My Lords, in public law 'unreasonable' as descriptive of the way in which a public authority has purported to exercise a discretion vested in it by statute has become a term of legal art. To fall within this expression it must be conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt.

The very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. It has from beginning to end of these proceedings been properly conceded by counsel for the Secretary of State that his own strong preference and that of the government of which he is a member for non-selective entry to all secondary schools is not of itself a ground upon which he could be satisfied that the Tameside council would be acting unreasonably if they gave effect to their contrary preference for the retention of selective entry to the five grammar schools in their area. What he had to consider was whether the way in which they proposed to give effect to that preference would, in the light of the circumstances as they existed on June 11, 1976, involve such interference with the provision of efficient instruction and training in secondary schools in their area that no sensible authority acting with due appreciation of its responsibilities under the Act could have decided to adopt the course which the Tameside council were then proposing.

It was for the Secretary of State to decide that. It is not for any court of law to substitute its own opinion for his; but it is for a court of law to determine whether it has been established that in reaching his decision unfavourable to the council he had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider; see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 K.B.223, per Lord Greene M.R. at p.229. Or, put more compendiously, the question for the court is, did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?".

In his submissions Mr Wolffe advanced six reasons why the decision could be said in the circumstances to have been Wednesbury unreasonable. First, he pointed to the fundamental importance of the structure plan in the planning system. Secondly, he pointed to the fundamental importance the capacity assessment played in the formulation of retail policies and the policies governing applications for development in the new structure plan. Thirdly, he pointed to the emphasis given in national policy to maintaining competitive and innovative retail centres, enhancing town centres and reducing unnecessary car use. Fourthly, he pointed to the nature of the objection advanced by the petitioners. Fifthly, he pointed to the absence of any qualitative assessment in the new structure plan despite the terms of NPPG8. And sixthly, he pointed to what he described as the first respondents' own recognition of the desirability of transparency and confidence in the thoroughness of the process, by which I understood him to be referring to the Consultation Paper issued in June 2001. Mr Thomson initially summarised reason (5) by submitting that it was Wednesbury unreasonable for the first respondents to treat the information which they had as adequate to enable them to approve the new structure plan because of the type and scale of information which is not available. He developed this into a challenge to the reasonableness (1) of the decision not to hold an EIP and (2) of the conclusion that ministers had adequate information both to enable them to take the decision not to hold an EIP and also to move to approve the new structure plan subject to modifications in the knowledge that, by definition in terms of Regulation 18 of the 1983 Regulations, such modifications would not materially affect any policy or general proposal of the plan. He questioned whether the first respondents had due appreciation of their responsibilities. He acknowledged that they had very wide powers under section 10(1) of the 1997 Act but they had to be exercised responsibly, particularly bearing in mind the importance of the structure plan in terms of the provisions of the Act. He also submitted that the need to deal with objections properly in terms of section 10(4)(a) was something that had to be done before deciding in terms of section 10(4)(b) whether to hold an EIP, because an EIP was one way of dealing with objections. In light of these considerations, he submitted, referring to the first part of the passage from Lord Diplock's speech quoted above, that the decision was one which no sensible authority acting with due appreciation of its responsibilities would have decided to make. Referring to the last sentence of that passage he submitted that the first question that the respondents should have asked themselves was this: Do we have adequate information to enable us to decide whether to hold an EIP and whether to move to approve the new structure plan subject to modifications? There then followed a number of subsidiary questions. Was there a qualitative assessment? If not, why not? Are the requirements of national policy as set out in NPPG8 being followed? If not, why not? Do the retail policies in the new structure plan comply with national policy as stated in NPPG17? If not, why not? Do we understand the cause of the import/export figures in the convenience retailing section of TR7? If not, it is not possible to proceed without further information. Is it reasonable for Strategic Policies 9 and 10 to be so reliant on TR7? Can we be comfortable in the reliability of the capacity assessment in TR7 in light of the various considerations to be taken into account in assessing proposals for new development set out in NPPG8?. Do we have sufficient information to enable us to deal properly with the petitioners' objections? Mr Thomson said that there was no evidence to suggest that the first respondents equipped themselves with relevant information to enable them to answer any of those subsidiary questions other than by doing so in the negative or by saying that they did not know. In that situation the decision not to hold an EIP for the reason given in the letter of 13 February 2001 was one which no sensible authority acting with due appreciation of its responsibilities would have made.

The concept of Wednesbury unreasonableness, of course, stems from the well known dictum of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v Wednesbury Corporation1948 1 K.B.223. That case was concerned with the actions of a local authority and at pp.234-5 Lord Greene said this:

"The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still 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. In such a case, again, I think the court can interfere."

It is the penultimate sentence which describes what has become known as Wednesbury unreasonableness. Since then the concept has been explained and developed in later cases. These are conveniently summarised in Chapter 21 of Clyde & Edwards on Judicial Review (2000). The word "unreasonableness" in the Wednesbury sense is often described as "irrationality". In Secretary of State for Education and Science v Tameside Metropolitan Borough Council, Lord Diplock said that it had become a term of art to describe "conduct which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt". As the cases in Clyde & Edwards show, it has also been described in various other ways. Lord Diplock himself in Bromley London Borough Council v Greater London Council 1983 1 A.C.768 at page 821 said that in such a case the judge must ask whether the challenged decision "looked at objectively, [is] so devoid of any plausible justification that no reasonable body of persons could have reached [it]". No doubt the answer to this question will depend on the circumstances of the particular case but I respectfully agree with the learned authors in Clyde & Edwards that the authorities show that the standard is an exacting one and that there is a heavy burden on a party seeking to establish irrationality or unreasonableness in the Wednesbury sense.

In my opinion in the circumstances of this case the petitioners have not discharged that burden. The first difficulty for them is that much of their argument was in the context of the decision being one both not to hold an EIP and to approve the new structure plan subject to modifications. I have already held that in my view that approach was misconceived. In my view the decision was merely one not to hold an EIP. As counsel for the petitioners acknowledged, section 10(4)(b) of the 1997 Act gives the first respondents a very wide discretion whether or not to hold an EIP. And, as Miss Dunlop pointed out, it is a discretion which is not grounded in the existence of any objectively demonstrable state of affairs. The first respondents do not have to be satisfied that any particular state of affairs exists before they make their decision in terms of section 10(4)(b). On the contrary, it is a matter of pure judgment. That distinction was recognised by Lord Wilberforce in Secretary of State for Education and Science v Tameside Metropolitan Borough Council at p.1047. All the first respondents need to do here is to ask themselves whether or not it appears to them that an EIP should be held of any matter affecting their consideration of the new structure plan. No criteria are given by which they should decide. It was common ground that that does not necessarily exclude judicial review but it does make it more difficult. They have said here that an EIP was not required because the information before them was adequate, but the since the purpose of an EIP, as I have held, is for them to gather information, that is a perfectly legitimate reason for deciding not to hold an EIP. It is tantamount to saying merely that they have decided not to hold an EIP, without giving reasons. It is entirely a matter for them to decide whether or not they have an adequate amount of information such that in their view an EIP is not required. They are not saying they have all available information and, of course, if they need further information, there are other ways of getting it without resorting to an EIP. In any event, it cannot be known with any certainty how much information they do have. It was accepted that they have in-house sources of information and expertise and there is no duty on them to disclose at this stage what information they have. In these circumstances it is simply not possible for me to say that they could not reasonably have concluded that the information before them was adequate to enable them to make the decision. Whether the information they have is sufficient to enable them to approve the new structure plan subject to modifications in terms of section 10(1) is, of course, another matter but that can only be decided if and when such a decision is made and the reasons for it are given in terms of section 10(10). It is at that stage also that it can be seen whether or not they have dealt properly with the petitioners' objections. I am satisfied, however, that there is no justification for my holding that the decision not to hold an EIP here was so unreasonable that no reasonable Scottish Ministers would have made it.

Shortly before the petition in this case was lodged a similar petition was lodged by SHBA Limited seeking judicial review of the first respondents' decision not to hold an EIP in respect of housing matters. That petition was heard by Lord Macfadyen before the hearing in this case. Lord Macfadyen's Opinion had not been issued by the time the hearing in this case had taken place. However, it has now been issued and Lord Macfadyen has refused the petition of SHBA Limited. Mr Thomson had asked me if in that situation I would put the present case out By Order in case there were aspects of Lord Macfadyen's Opinion which touched upon this case and parties wished to make further representations in light of it. Counsel for the respondents did not oppose that and I agreed to do so. I should explain that I had prepared this Opinion in draft down to and including paragraph [35] before seeing Lord Macfadyen's Opinion and hearing submissions on it.

At the By Order hearing Mr Thomson pointed out that although Lord Macfadyen had refused the petition in the SHBA case, there were significant differences in the argument canvassed by counsel for the petitioners in that case compared with the arguments canvassed by Mr Wolffe and himself in this case. Lord Macfadyen's Opinion had therefore to be read with care. I readily accept that. Mr Thomson took no issue with Lord Macfadyen's discussion of the interpretation to be put on the relevant parts of section 10 of the 1997 Act, which does not differ from my own views on the matter. In relation to the purposes for holding an EIP Lord Macfadyen said that it could be inferred from the provisions of section 10 that an EIP "is intended as a means of obtaining further material to inform the decision" that the first respondents have to make in terms of section 10(1). Mr Thomson took no issue with that but pointed to Lord Macfadyen's later observation (in para. [51] of his Opinion)

"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."

As I have indicated above, I prefer to see a situation in which an EIP is held in order to air matters of public interest as part of the information gathering process rather than something different and additional to it. To borrow Lord Macfadyen's wording, I see it as part of the exercise of obtaining further material to inform the decision that the first respondents have to make in terms of section 10(1). In terms of section 10(4)(b) an EIP can only be held "of any matter affecting [the first respondents'] consideration of the proposal" and so even an EIP held in order to air matters of public interest must in my opinion come within that category. If the first respondents caused an EIP to be held for that reason, therefore, I agree that it would be difficult to argue that they had acted ultra vires and counsel for the respondents did not contend otherwise. It is perhaps worth noting that it does not appear from his Opinion that Lord Macfadyen was referred to Bromsgrove District Council v Secretary of State for the Environment 1991 62 P. and C.R. 297 or to Young and Rowan Robinson on Scottish Planning Law and Procedure.

Counsel for the respondents, while acknowledging the differences in the SHBA case, did not add any new substantive arguments but contented themselves with drawing my attention to those parts of Lord Macfadyen's Opinion which appeared to be supportive of their submissions at the earlier hearings.

In the circumstances, therefore, nothing that was said at the By Order hearing has caused me to alter the views expressed in the earlier part of this Opinion. In the result, for the reasons I have given, the petitioners have in my opinion failed to establish that the decision of the first respondents not to hold an EIP was ultra vires. I shall therefore sustain the first respondents' fourth plea-in-law and the second respondents' third plea-in-law, repel the petitioners' pleas-in-law and refuse the petition.