Scottish Court of Session Decisions

Eriden Properties, Re [2003] ScotCS 11 (21 January 2003)

OUTER HOUSE, COURT OF SESSION
P253/01	OPINION OF LORD McEWAN in Petition of ERIDEN PROPERTIES AND OTHERS Petitioners; for Judicial Review of a decision of Falkirk Council   ________________

 

 

Petitioners: Martin, Q.C., MacColl; Russel & Aitken

First Respondent: J.J. Mitchell, Q.C.; Wright Johnston & Mackenzie

Second Respondents: Clancy, Q.C.; Burness

21 January 2003

1. Carrongrange Avenue is a road in Larbert. It runs close to Larbert High School. The school needed refurbishment and extension. Nearby new luxury houses were under construction. All of this meant that the road had to be altered and improved; because of that certain consents and permissions were needed within the planning laws; because of that disputes have arisen and the matter is now before me. The parties in dispute are as follows.
2. The petitioners are a Partnership and are the property developers of the luxury homes, already mentioned, on their own land which is served by Carrongrange Avenue. The first respondents are the responsible planning authority and the second respondents are Class 98 Ltd who lease part of the first respondent's land. They contracted with the first respondents to refurbish and extend the school by means of a Private Finance Initiative (P.F.I.) agreement. They sought the necessary planning application. One of these (F/98/0521) dealt with the planning permission for new roads construction to link with Carrongrange Avenue. Problems arose over the new road and relations between the parties soured. The shape of the junction was altered; resort was had to self help and a number of court actions were raised of which the present is the latest. Large amounts of money have been spent and much work has been done to improve the road and the traffic flow. The matter seems incapable of any amicable solution.
3. I now propose to look at the matter in more detail and against the background of the arguments addressed to me.
4. What thus are the essentials of the facts averred to me in the petition. The detail comes in Article 5 and what follows. The first thing to notice is that in the area most relevant to this dispute Carrongrange Avenue is a private road and more particularly, as the plans show, the east side of it has been affected by what happened.
5. The petitioners narrate how they are developing high value and high amenity housing on their own land to the south of the area in question. The plans produced to me show the housing to the south, the school to the east and the new road and junctions arriving from the west. The problem arises (as Kipling would agree) when east and west meet because at that point the planning decisions collide with the private right. In the last analysis the petitioners complain that a planning decision and works done as a result have taken away their private property. Separately they say that the nature of the right they enjoyed over their own land has been removed and irrevocably altered. The detail of it is as small as a "nib", or kink, or bump, or bend in the road. It has altered the priorities which hitherto existed, and now it is a reality. Whether it should remain is, in part, what this case is about.
6. Let me return to the detail. In December 1998 the District Council granted two planning applications relating to the refurbishment and extension of the school. One of these dealt with the new road (to the west) which was to lead to the school. The new road was to form two T junctions with the west side of Carrongrange Avenue. The application plan (the Ian White Plan No. 6/3) purported to show Carrongrange Avenue as the priority road.
7. Six months later, roads construction consent was granted; but now the plans showed a different junction (the Halcrow Waterman Plan No. 6/4). Design amendments did away with the priority enjoyed by Carrongrange Avenue. The "nib" was introduced to provide for new priorities as the detail of the plan showed. Road safety was said to be the reason. It is said (I think importantly at p.12) that this change prompted discussions within the respondents' different departments and this produced an application for the variation now complained of. The variation is allowed by section 64 of the Town and County Planning (Scotland) Act, 1997 which provides:

".... Notwithstanding any other provision of this Part, a planning authority may, at the request of the grantee or a person acting with his consent, vary any planning permission granted by them, if it appears to them that the variation sought is not material...".

8. By October of 2000, Class 98 had been prompted to apply for section 64 variation and a new plan appeared (the Parr Plan No.6/6). No formal representations from interested parties were sought; although it has to be said that on record the petitioners "had knowledge" of what was happening, and written comments were made (I will return to this later). In December the section 64 variation was granted against a background of several court actions began, continued but not ended between the parties; and it is these I now turn to consider.
9. Basically there are three actions. I only have full details of one of these viz. the matter before Lord Macfadyen where I have a copy of his opinion.
10. The first action was in September 2000 in Falkirk Sheriff Court concerning the title to the road. It was not a planning matter. The petitioners sought interim interdict to prevent Class 98 working on the road but the sheriff refused to grant it. There was an unsuccessful attempt to appeal to the Sheriff Principal (see Lord Macfadyen para.6). In December 2000 when Class 98 were trying to complete the works the petitioners put breeze blocks down. An action was raised by Class 98 in the Court of Session seeking declarator, interdict and removal. A full day hearing took place on 13 December before Lord Macfadyen. The case was based on servitude right and interdict and on the 14^th the craves ad interim for interdict and removal were granted. The next day which was a Friday the section 64 consent was granted. Without knowledge of it the present petitioners on 17 December sought interdict and interim interdict to prevent work on the new junction. Because Class 98 had a caveat, a hearing was arranged for 20 December before Lord Kingarth. On the 19^th the petitioners were shown the section 64 letter for the first time, and the next day did not proceed with their motion. As the basis of their action was lack of planning consent, the section 64 letter was fatal to that going ahead. Next came this petition for judicial review.
11. The arguments from the parties were lengthy and detailed and I move shortly to summarise them. I was referred to a number of authorities which I list here seriatim:

Associated Provincial Picture House v Wednesbury Corporation [1948] 1 KB 223;

Wordie Co. Ltd v Secretary of State for Scotland 1984 S.L.T. 345;

Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374,

ex parte Alconbury Developments [2001] 2 All ER 929;

Uprichard v Fife Council 2000 SCLR 949;

Clancy v Caird 2000 SLT 546;

Millar v Dickson 2001 SLT 988;

Hanlon v Traffic Commissioners 1988 S.L.T. 802;

Wm Grant & Sons etc v Glen Catrine Bonded Warehouse 2001 SLT 1419;

Devine v McPherson 2002 S.L.T. 213;

R v Hammersmith etc. [2002] 1 WLR 1593;

Glasgow District Council v Secretary of State for Scotland 1985 S.L.T. 19.

I was also referred to various text books (as will appear); to sections of the National Planning Guidelines concerning Road Planning and to the relevant SDD Circular 37/1986 applying to non material variations under earlier legislation. I do not need to quote all of these at length but the following parts are important viz:

"Road Planning

63. Elsewhere safe and appropriate access design should reflect the type of road involved, the scale of the development, the nature of the area, and the volume and character of traffic likely to use the access and the road. It may be appropriate to require the developer to carry out major road or junction improvements if the volume or character of traffic or type of road warrant it. Where appropriate in respect of significant distributor roads, the aim should be to minimise the number of individual access points, as this will help to increase road safety."

"Non material variations

11. Under section 31A of the 1972 Act a planning authority may vary any planning permission granted by them if it appears to them that the variation sought is not material. The Secretary of State expects planning authorities, when exercising this power, to give very careful consideration to the question whether, in the particular circumstances of the case, the variation requested by the developer is or is not material. Authorities should not be influenced, in reaching a view, by the fact that a decision that the variation requested is material may mean that the developer will require to submit a further planning application. In this connection, authorities should also bear in mind that the new provision in section 28A of the Act (inserted by paragraph 31 of Schedule 11 to the Housing and Planning Act 1986 and described above) allows planning authorities to consider applications for material variations of conditions without reconsidering the whole application concerned.

12. In some cases variations, although not material, may be such as to give rise to representations from occupants of neighbouring properties and other interested parties, such as residents' associations. Although applications for non-material variations are not subject to statutory requirements for publicity and notification, the Secretary of State wishes authorities to consider giving those who have made representations on the original application an opportunity to comment on any subsequent application for non-material variation, especially if their representations are relevant to the proposed variation requested. Authorities should also consider consulting and taking account of comments in cases where a proposed variation seems likely to be of concern to neighbours or other third parties, even where any representations which have already been made do not relate to the subject of the proposed variation, and in cases where the original application has aroused strong objections."

12. In opening Mr McColl referred to paragraphs 9, 10 and 11 of the Petition and how the Private Finance Initiative Agreement arose. On the original plan (No.6/3) the new road joined Carrongrange Avenue at two T junctions and leaving the existing road as the priority road. When Class 98 sought and were granted the Roads Construction consent this resulted in a redesign of these junctions and the loss of Carrongrange Avenue as the priority road. The variation to their original planning consent was granted in December 2000 and was deemed to be "non material".
13. In taking this decision the respondents had not had regard to the relevant and material considerations (he referred me to Wednesbury; 228, 233 and Wordie at 347). They had failed to take proper account of what is in the S.D.D. circular 37/1986 paragraphs 11 and 12. The petitioners had been given no opportunity to comment, nor those who had bought new houses to the south on the plan. Counsel then looked at and criticised the two affidavits of Campbell (7/1A) and Terry (7/2A). There was no mention of the circular or the change in priorities. That showed a failure properly to consider the circular and take account of the rights of third parties. The proper issues were simply dismissed.
14. It was essential to consider the traffic impact in relation to users, volume, priorities and road safety. The attitude of the respondents contradicted the National Planning Policy Guidelines, paragraph 63. Formerly, this was an old road with no houses to the south. Now part of the road was to be removed at the "nib". Now there were new houses and a redeveloped school.
15. Mr McCall then went on to say that no authority could reasonably have taken the view which was taken here. He renewed his reference to Wednesbury and Wordie and read from the speech of Lord Diplock in Council of Civil Service Unions at 410. With the nature of the variation, priorities and removal of part of the road, no authority could say it was "not material". What was done was "irrational" in the sense given in Lord Diplock's speech.
16. At this point counsel then presented a detailed argument on Human Rights which I will not set out. It was agreed during the hearing that all argument on this point was to be reserved for a later day.
17. He then addressed the question of prejudice. There was clear prejudice. The variation was material and merited a fresh planning application. The owners of the new houses could have objected.
18. There had been no unreasonable delay to lodge this petition. The decision notice was 15 December and within nine weeks this action was raised. In any case delay alone was not enough whatever works were done in this period. He referred me to Uprichard where the delay was nineteen weeks and the facts were quite different. There had been no actings to lead Class 98 to think that the petitioners would not seek judicial review.
19. For the District Council, Mr Mitchell invited me to decide the issue on the pleadings, productions and the affidavits. That he said was enough for the merits. The only question under section 64 of the Act was whether the variation was material. Whether it was material or not was solely for the planners to judge on the facts. That judgement is one of fact and degree and made by experts. The petition attacks only whether it was material not any procedure following the decision that it was "not material".
20. The plans before the court were the ones looked at by the planners. These are the only relevant matters. It was quite clear from the affidavits that an opportunity was taken to consult and the representations were carefully considered. The Circular 37/1986 was not ignored and these respondents were entitled to find that the proposed variation was non material. Having made that decision they were bound to grant the variation. That was not a matter of discretion.
21. It was incorrect to think that the original planning permission determined traffic priorities. It did not, nor could that be a matter for criticism. All that it decided was that there was to be a new road in principle. The detail and shape of the junction was a matter for the Roads Authority. In any case it made no difference. There had to be some priority and Carrongrange Avenue was still there. The correct shape of the junction was a matter for expert opinion. The official had allowed for a right and a left turn and was entitled to reach that conclusion. The planning decision had nothing to do with ownership. The respondents had asked themselves the correct questions and applied the proper tests. It was impossible to say their decision was perverse.
22. In his reply speech Mr Mitchell made the following additional points.
23. On any view it would be necessary to put the case out By Order as the awaited Human Rights argument would bring in other parties. His clients were in a "no win" position, forced to litigate in the midst of two disputing parties. "Title" was of no interest to his clients whose only statutory duty was to grant or refuse planning permissions over the disputed area. If the petition succeeds no doubt there would be further action to stop retrospective planning. It did not even matter whether what was done was good planning. The only thing which mattered was what was available to his clients at the time and the affidavits were a complete answer to that. All the District Council had to do under section 64 was to make a judgement and then exercise its discretion. The petition was only about the "judgement" of "....what appeared to them...." (section 64). "Materiality", was a matter of planning expertise. The initial plan merely showed a T junction (No.6/3). It was not determinative of any priorities. That was for the design guidelines.
24. He then said that ownership of the land was not an issue on "materiality" nor were comments by any householders. The SDD Circular only desiderated "careful consideration". It was not necessary to repeat reference to it in the affidavits; and there were no affidavits from any expert for the petitioners. There was nothing to suggest that what was done was perverse. The whole area had to be looked at, not just the "nib" at the junction. He referred me to Glasgow District Council. He renewed his motion to sustain his pleas 1 to 4 pro tanto (without refusing the petition) and leave his pleas 5 to 7 to be argued later.
25. For Class 98 Mr Clancy began his argument by saying that even if the petitioners had valid grounds to object to the variation decision the petition was bound to fail due to waiver, bar and delay.
26. He then presented an account of the facts, although I am unclear whether this was accepted as accurate by the petitioners or fits with the productions. It is nonetheless important. He said that before the design of the T junction was fixed the petitioners did have a chance to object and were aware of the relevant plans in detail. The original planning consent in 1998 was for the road and the school. The road was to be finished by August 2000 for the school reopening. In March 2000 Class 98 had tried to work on the new junction and had been prevented by the petitioners' employees parking. There had been a "stand off", the road was not built, and a temporary access was put in place which resulted in all traffic using Carrongrange Avenue. That caused problems and in September 2000 Class 98 tried to carry on the work but the petitioners sought interim interdict in Falkirk Sheriff Court. The basis was title to land, not planning. Interim interdict was refused and the following month Class 98 made the section 64 application. To this the petitioners submitted two letters. In December when Class 98 tried to complete the work on the junction the petitioners obstructed it with breeze blocks.
27. Class 98 then raised the proceedings in the Court of Session before Lord Macfadyen seeking declarator and interdict (see 7/B/1). After a full day hearing on 13 December they were successful and the interlocutor of 14 December reflected that. The next day the section 64 application was granted.
28. At once the petitioners again sought to interdict the works on the grounds of no planning consent; but this time Class 98 had a caveat. A hearing was fixed for 20 December and on the 19^th the petitioners saw Miss Terry's letter. The motion for interim interdict did not go ahead and Class 98 were awarded expenses. All this, Mr Clancy said, had to be viewed against the background that in October the petitioners had contemplated a Human Rights challenge and had then made a conscious decision to abandon the interdict proceedings. From all of this Class 98 took the clear message that the petitioners had made an informed and unequivocal decision not to challenge the grant of planning permission for the junction. As counsel put it; they had planning permission "nib and all". Knowing the road was overdue and the school was on a temporary access arrangement, £33,000 worth of further work was done before 28 February in reliance on Lord Macfadyen's orders and the abandonment of any further challenge. Then came this petition.
29. Dealing first with waiver, counsel said that the petitioners had unequivocably abandoned their rights to object. They were alive to a section 64 challenge as their agents had said so. There was no need to look to any act or forbearance by Class 98 nor to the money they spent (though the latter could be relevant to bar or delay). He referred me to Clancy v Caird at 554 and 564 and Millar v Dickson at 996 and 998. There had been an unequivocable election not to challenge Miss Terry's decision (he referred to Dr Smith etc. on Judicial Review (5^th ed.) page 542 and Wade: Administrative Law (7^th ed.) page 272. If he was correct about this then no reliance on Convention rights could help the petitioners.
30. When the case next resumed before me after nine months Class 98 had lodged two new inventories and the argument resumed on the issue of delay.
31. Dealing first with delay Mr Clancy said this. Under reference to Clyde on Judicial Review page 434 he said that in matters like the present a challenge must not be delayed beyond a point absolutely necessary. The section 64 decision was made on Friday 15 December 2000 at a time when the issues attacking it were in the spotlight. There had been an ongoing case. This petition had not appeared for some ten weeks until 28 February. Counsel referred me to Hanlon at page 804, where the failure to do anything was fatal. Here it appeared that in the ten weeks the petitioners had abandoned all challenge. The interdict sought was abandoned on the day of the hearing when they saw the decision letter. All this had to be viewed against the earlier challenges in the Sheriff Court and before Lord Macfadyen.
32. While accepting that delay on its own would not do, he said that it had to be viewed in the light of the circumstances in which time was allowed to pass. Acting in reliance on an absence of challenge Class 98 had spent £33,000 on works including construction, site security, a gas main and Q.S. fees. He referred to two productions in the new inventory 7B, Nos.8 and 9.
33. He then moved to discuss personal bar and began with the opinion of Lord Rodger in Grant v Glen Catrine at 1427D. Here the relevant conduct was the abandonment, the belief it gave rise to in the mind of Class 98 that there would be no further challenge to the planning and road consent decision. The actions in reliance were to continue the work.
34. By 20 December the petitioners had abandoned their right to challenge on Convention grounds. They had contemplated such on 5 October (see 7/B/6) but had done nothing. He referred again to Miller and to Clancy. At the very least a proof was needed.
35. In his reply Mr Clancy added the following. He accepted that the Human Rights point would have to be dealt with later. The issue of title had been considered in the Sheriff Court (Sheriff Sheehan) but there was no written judgment. Lord Macfadyen had also revisited it. His clients were entitled to rely on their servitude. Even if delay was not enough there was clear waiver. All their attempts to stop matters had failed, and weeks of work had continued without challenge. The whole merits were in his favour. They had their servitude and a 99 year lease on land covered by the PFI. The planning and the work began on their own land and moved to the disputed area. The road was in use before the final interdict hearing. It was absurd to say any householder was upset or prejudiced.
36. What mattered was the issue at the section 64 stage. Even then there were traffic reports. The "nib" was a mere detail and it was impossible to say the decision on the road was outrageous. It is accepted that the decision diverted traffic but that would only matter if the original grant were to do something quite different. That was not this case.
37. Senior counsel for the petitioners then addressed me on all points excepting his argument on Human Rights. He invited me to sustain his first and second pleas-in-law and reserve the third. He asked me to repel all the pleas of each respondent.
38. Counsel began by saying that judgments on planning matters are for the responsible authority. The court should not usurp this function and try to act as a planner (Alconbury). He then took me to the Town and Country Planning (Scotland) Act 1997 for the various powers and duties laid down there in relation to development (section 28) notices (section 34), grant or refusal (section 37) and representations (section 38). Planning permission was required for the development of the land. However, construction of a road was development and itself needed permission. In making a decision on that, the authority exercises a discretion on the material considerations, and must have regard to representations.
39. On the other hand the section 64 procedure was quite different. It was a single stage exercise and the only judgment was if it was material or not. It did not turn on what the effects of the decision were or any representation made.
40. Construction consent, however, was not a planning matter. He referred me to section 277(1) and to various sections in the Roads (Scotland) Act, 1984. Construction, even with construction consent was unlawful if there was no planning consent.
41. In response to Mr Clancy's argument that there could be no prejudice as the whole road had now been built, Mr Martin said that the petitioners did not accept that anyone had a right to access over their land. The road was originally for the janitor. That is why there were other actions.
42. On acquiescence it was not correct to say that the interdict had been abandoned. The petitioners were contending that although there was a roads construction consent there was no planning permission. When Miss Terry's letter of 15 December (7/B/4) was shown on 19 December the petitioners did not move for interdict on the 20^th as it would not have been granted. They did nothing else to say that they acquiesced in the overall actions of Class 98. They did not concede that the "Section 64" was lawful. They left the other actions alive.
43. Delay by itself was not enough. There had to be actings either in reliance on it or to the prejudice. It was not a long period and the court should look at circumstances and not particular periods. The overall background was important. The reason why the petition on 20 December did not proceed was clear. There were no other subsequent actings or requests for confirmation. Class 98 had continued the works from September 2000 to date which was no different to what they would have done anyway. Thus no reliance was placed on anything the petitioners did or said before or during the currency of this case. The same applied to anything the petitioners did not do or say for the same reason.
44. Counsel then referred me to Hanlon at 804 then Uprichard at 957 and Devine v McPherson. He also referred me to R v Hammersmith etc. at 1612.
45. Mr Martin then invited me to consider what were the relevant and material considerations. The court should not make planning decisions and the effects of traffic was not a matter for a court. The section 64 decision was not an exercise about the consequences of a variation but about the nature of it. Amenity was covered when the earlier grant was made.
46. The very fact that traffic changes exist means any variation could not be "non material". The court had to note that these existed but could have no view on the merits. Counsel referred me to the late Productions 7/B Nos. 10 and 11 on traffic impact and the effect on the houses. Such reports should come in at the section 37 stage and by needing to produce these reports now, Class 98 were showing that what occurred at the section 64 stage was not "non material". At the very least there should be evidence about what was material.
47. What of the Circular 37/1986. The affidavits were silent as to whether this was looked at. This raised the issue of what was the correct construction of paragraphs 11 and 12. Was the matter a two stage process? Was the point material? If not was there still a need to advertise? In fact it was truly a one stage decision which meant looking at the application on its face and then having regard to what other parties had to say. There could be no inquiry; but here there were representations that it was not, "non material". There was a significant appearance of change and there was no explanation of how Miss Terry carried out her exercise. She had not said she was aware of the Circular and the Representations.
48. As to traffic priorities, it was clear there was a fundamental change. Plan 6/3 was the original and 6/4 and 6/6 were the new. A "T" junction had become an arrangement round a "nib". The court could and must notice the change. The very wording of production 7/B 10 (references 1.4, 3.2, 7.3) clearly showed that what had taken place was not "non material".
49. In seeking mere road construction consent it was apparent that the first respondents had not given proper consideration to Paragraph 63 of the Guidelines and in cumulo by not considering all these things the first respondents had failed to have regard to relevant and material considerations.
50. Mr Martin then asked whether what had happened was unreasonable. He accepted that the Wednesbury test was a high one and that the decision had to be "....so outrageous (and) in defiance of logic...". If he was correct about the facts then the test was met. (Counsel used the analogy of turning the plan of a house 90⁰. It might still be exactly on the same site with its doors and windows but no reasonable person could say what had been done was "not material"). Document 7/B/10 showed that matters went way beyond the mere junction. It was unreasonable to regard diverting cars by encouragement as not material.
51. In moving me to grant the prayer and quashing the decision of 15 December his fall-back position was to order evidence on the issues requiring clarity.
52. What then to do I take from the various cases cited to me. Let me turn first to acquiescence, delay and waiver.
53. In Hanlon the petitioners were holders of taxi operators' licences in Glasgow. In June 1986 Glasgow District Council approved a new scale of fares for taxis in Glasgow. The petitioners were told and they lodged an appeal to the Traffic Commissioner. He held no hearing on the basis that the petitioners did not represent a substantial proportion of taxi operators. In reaching this view he relied on a letter from a body known as the Glasgow Taxi Trade Council. This was never shown to the petitioners. Before the Lord Ordinary it was accepted that this was a denial of natural justice.
54. It was only after ten months that judicial review was sought and in the meantime the new fare scale had been operated for 81/2 months. The Lord Ordinary held that the delay of three weeks between the decision and implement was fatal to the remedy now sought. The longer delay to seek judicial review was less important.
55. Uprichard was again a case of delay. Fife Council had granted permission for certain golf related development near to St Andrews, all of which had aroused controversy. This was done against objection by certain private individuals who now sought judicial review to quash the decision. Many issues were raised, one of which was mora. The delay in seeking the remedy was nineteen weeks, and in the meantime work had begun. The reason for the delay was examined in great detail and on its facts the Lord Ordinary decided that this delay coupled with apparent acquiescence was fatal to the challenge.
56. Devine was a case where there was a delay of over seven months and the party having the planning permission had altered their position. The Lord Ordinary held that those now objecting by way of judicial review, had not acted with sufficient "alacrity".

[57] Clancy and Millar were rather special cases involving Human Rights in relation to temporary judges. In Clancy a civil proof began two months before the law on temporary judges was changed. Only when the case was at avizandum was objection made. As is clear from the main opinion (Lord Coulsfield) the argument was really based on Strasbourg jurisprudence and some Commonwealth cases. A plea of waiver was upheld; but in Millar the Privy Council rejected a similar plea even though the relevant trials had all preceded the change in the law. The Privy Council did not accept all twelve tests in the lower Court and again to some extent (see Lord Hope) the matter was looked at in a European context. There could be no informed choice when the law was unsettled. I find these cases hard to reconcile, and do not for present purposes intend to try to do so. The context is wholly different from the facts before me, and I do not think they are of any assistance. Whether they will be on any future human rights argument is another matter.

57. An important case is Wm Grant & Sons. It should be noticed that it was not a case of judicial review but a pure matter of interdict. Also the case had a very long history and was decided after proof. It did, however, deal with delay and acquiescence. The delay was some six years and this was dealt with in the opinion of the Lord President at 1432 paragraphs 43/4. What is clear is that the court must not invent new prescriptive periods, especially, I think, in judicial review cases where there is no time limit. That is also clear from the speech of the Lord Chancellor in Cairncross v Lorimer (1860) 3 Macq. 827 and 829/30. It is all a question of the circumstances of each case.
58. Also in Grant, it was clear that the actions relied on by the defenders in using the name Grant to pass off their spirits was in no way related to the inaction of the pursuers to prevent them doing so. They used it because they believed they were entitled to do so (see 1436 at paragraph 57).
59. Both of these matters of principle are important to the case before me.
60. In City of Glasgow District Council the question was what amounted to a material change of use in the operation of a shop. What had happened was that as part of their food sales they had introduced some hot items. If this change was material, then it was "development" and required planning permission. Unsurprisingly, looking at the premises as a whole, the First Division held that it was not a material change, and sustained the view of the reporter appointed to inquire with the enforcement notice which had been served. The value of this case is that the whole circumstances must be looked at. I was referred to R v Hammersmith etc only for what Lord Hope said (1612/14) about promptitude in seeking judicial review.
61. It is not necessary to deal with Wednesbury and Wordie. The principles and formulae in these cases are well known and it would be sheer impertinence for me to try to produce anything new from them. CCSU did produce a modern gloss on Wednesbury since Lord Diplock reformulated the relevant tests in simpler language (see 410/11). The case itself was very special on its facts and ultimately turned on the court's reluctance to get involved in matters of national security (see 410, approved at 415). In his speech Lord Roskill made it clear that it is the manner of the decision taking against a duty to act fairly which is important (see 415). Alconbury I have to leave aside for the present since the Human Rights arguments are yet to be heard.
62. I propose to deal first with the issue of waiver and delay.
63. The delay here is a period of nine weeks and has to be viewed against the background of the case. Perhaps the most important factors are the three actions still in court all of which were recent when the petition was lodged. From the failure to obtain interdict on 20 December 2000 nine weeks is in my view a short period. The case is novel and difficult. There are many issues between the parties apart from planning. The Christmas holiday period would intervene. Also, the planning decision taken on 15 December must have taken the petitioner by surprise and would require proper time to consider.
64. I do not take any rule from the cases cited to me save from William Grant. There, as I have already mentioned, the court was unwilling to create by invention new prescriptive periods. Hammersmith makes it clear that there is no Statutory time limit and each case must depend on its own facts. In the other cases cited different periods were involved and it is true that in some of these cases relatively short periods of delay were held to be fatal, but in all of these the facts were quite different to the present where there is a long history between the parties.
65. In my view, here, the delay of nine weeks does not amount to such delay that the respondents were entitled to conclude that the petitioners had waived their right to seek judicial review of the section 64 decision and had acquiesced in that fact and were therefore personally barred from now complaining.
66. It was said in some detail, and under reference to certain productions that works had gone on in that period (a point reinforced and expanded upon after the latest hearing and with reference to further productions). In relation to the delay it was argued that the silence of the petitioners for nine weeks were actings by them as a result of which the second respondents proceeded with the work and that this had caused them prejudice. The detail of what was done and spent, I need not rehearse again.
67. However, what in my view is fatal to this argument is this. It is quite clear that the second respondents continued with the works not because of anything the petitioners did or failed to do, but because they were then entitled as of right to proceed with their section 64 variation. No doubt the petitioners' alleged silence was a comfort but it was not the reason the works went on. That in my view is fatal to any question of waiver, even if it existed here which it does not. That much is also clear from Wm Grant.
68. That dealt with, what remains in the substantive point in the case. Can it be said that the decision of the first respondents did not take account of material considerations and was also so unreasonable that it must be struck down.
69. I begin by noticing again the background between the petitioners and Class 98 at the relevant time in 2000. There is first the history of litigation which must have made it clear to the second respondents at least that the petitioners were going to resist the "road changes" if I may so describe them in a shorthand way. I was not given precise details of the interlocutors in the earlier actions save for the proceedings before Lord Macfadyen, where in Article 10 mention is made of them. I observe that in what was the second case his Lordship clearly stated that there were many unresolved issues. What was before him was interim interdict and he could not then deal with these other matters. All the earlier litigation was in the realm of heritable right and not planning.
70. The original planning consent in 1998 (application F/98/0538 No.6/1 of process and not in issue in this case) stated that vehicle access would be at right angles to Carrongrange Avenue (paragraph 7). In the consent, which is the subject of this action, (application F/98/0521 No.6/2 of process) road construction was to be according to certain design guidelines therein mentioned (paragraph 3). The Plan governing these (No.6/3 Ian White) is consistent with these written permissions. What then happened was, that the Halcrow Waterman plan (No.6/4) came in May 2000 showing in the relevant area a very different set of junctions where the new road joined Carrongrange Avenue to the South. That is the area where the "nib" or kink in the road now appears. I should observe further, since the petitioners own that part of Carrongrange Avenue, that the shape of the "nib" removes almost the full width of the road in the area where it appears. It then dictates a different traffic flow than formerly existed and the Plan itself 6/4 is significantly different to the Plan 6/3 (Plan 6/6 confirms this).
71. The petitioners, and those advising them were aware of this, as were the second respondents. Unsurprisingly from the petitioners' point of view, two letters were written. On 28 September 2000 (No.7/7) McLean Bell Consultants Ltd wrote to Mrs Geisler, who was the Director of Developmental Services, about the Roads Construction Consent for F/98/0521. I refer to the letter for its terms. It is a strongly worded letter. It refers to both Planning Applications and indicates that the petitioners do not consider the changes to be non material. Four clear reasons are given and highlighted.
72. As far as I am aware no reply was made to that letter, or if one was it was not produced to me or mentioned.
73. One week later, the petitioners' solicitors (Russel and Aitken) wrote to Mrs Geisler (5 October 2000 No.7/6). Again it referred to F/98/0521; reinforced the McLean Bell letter and asked for a response. It also raised the issue of the Human Rights Act. Again I was not told of any reply. At that date the petitioners could not have known of any application for a variation as none had been made.
74. On the same date i.e. 5 October (No.7/B/3) the advisers to Class 98 wrote to Mr Campbell at Falkirk Council Planning and Transportation Services. It was a letter written following a phone call and for the "avoidance of doubt". It refers to F/98/0521. It concerns inter alia the new access road. It draws attention to the fact that part of the works is in an area outwith the Council's ownership. It ends by saying that these works were not a material charge to the Planning Approval.
75. Now copies of this letter were sent to two named people but not as far as I am aware to the Petitioners or their advisers. The importance of this is, that the petitioners had written to the Council believing that only F/98/0538 was the subject of ongoing discussion (see 7/7).
76. So far as I know no immediate response was made to this letter. I do not know why that was so. When the response came it was on the day following Lord Macfadyen's interlocutor. The letter is dated 15 December 2000 and is from Mrs Terry, the head of Planning and Transportation Services (No.7B/4). It begins with an apology for the delay in replying, in particular to No.7B/3. In one sentence in the third paragraph it says that the amended road layout is a non material variation. No reasons are given and the letter then goes on to deal with parking spaces.
77. As I have already noted elsewhere it was this letter which stopped the attempt by the petitioners to seek interim interdict on 20 December.
78. This correspondence has to be looked at in light of the two affidavits Nos. 7/1A and 7/2A, to which I now turn. Mr Donald Campbell states that inter alia he was the case officer dealing with the new road (para.3). In paragraph 7 he describes how Mrs Geisler can delegate to others to make decisions on a variety of applications controversial or not. He must have seen the McLean Bell letter (para.10) because he says he took legal advice on its terms; he considered it a planning matter on road safety grounds. At paragraph 11 he says that he saw no need to go back to the original objectors. In para.12 he says there was no substantial body of objection. There is reference to two of the circulars referred to in argument. It does not say that this witness considered these at the time but then he did not make the section 64 decision.
79. What this affidavit does not say is why no reply was made to either of the petitioners' letters or even to issue an acknowledgement. Also it does not say why he did not consider giving the petitioners an opportunity to comment on No.7/B3.
80. Then there is Sheila Terry. She is head of Planning and Transportation as I have already noted. She took the decision that the variation was non material (para.2) on or about 15 December. That together with her letter 7B/4 makes it clear to me that the decision was taken then and not before. Given that the application was made in October, it does not explain the delay. Nor is it clear in paragraph 5 what is meant by the "observations" of the people I assume to be the petitioners. There is no mention that she was aware of the letters 7/6 and 7/7. She says the observations were taken into account but were not considered different to these made at original planning.
81. That I find surprising when one looks at 7/7. These observations relate to a variation which could not have been known at original planning as there was no plan then to show any new junction.
82. The "nib" was not considered a material alteration to the configuration of what had been a straight road. She says road priority was not altered. The circulars referred to in 7/1A and not mentioned by her at all but I take from her affidavit that she did speak to Donald Campbell before signing the amended plan.
83. These are all the material considerations and on that basis I am firmly of the opinion that the first and second pleas-in-law of the petitioners must be upheld.
84. In the first place neither Campbell or Terry formally told the petitioners that they had any section 64 application for F/98/0521 in spite of receiving the letters Nos.7/6 and 7/7 as early as September and October 2000. In the pleadings it is admitted that the petitioners "...had knowledge..." of the section 64 application. Probably they had seen the new Plan 6/4 and were aware of what was happening on the ground, but from the sequence of events I doubt if they ever knew of the Parr letter 7/B/3. The letters 7/6 and 7/7 were not replied to and the affidavits are wholly unclear whether they were ever considered. In the last four months of that year there was already an action in court and two others were to follow. The Council may not have been aware of the Sheriff Court action but they were called in the action before Lord Macfadyen which concluded the day before the section 64 consent was given. When Sheila Terry speaks of "observations" by the petitioners it is not clear whether she took these to relate to the section 64 matter or not.
85. Given the history of the whole matter that seems to me plainly to be a failure to take account of a material consideration, namely the views of a party materially affected, and to be struck at by the Wednesbury rules. I refer also to what Lord Emslie said in Wordie at the top of page 348. In my view the representations of the petitioners and those they represent "....ought to have been taken into account...." but of course they were not allowed a proper opportunity in terms of SDD 37/1986 paragraphs 11 and 12 to make any. I am all the more critical of this since even a cursory look at the letters Nos. 7/6 and 7/7 would have made it clear that they had something to say. The SDD Circular 37/1986 at paragraph 12 clearly covers a case like this where "....strong objections...." would be likely however valid or otherwise. By failing "....to give an opportunity to comment...." to the petitioners in the whole circumstances in my view flaws the decision taken (in haste, in my impression) on 15 December. (The petitioners were not aware of it until the 19^th). The terms of Campbell's affidavit (paragraph 11) persuade me that he had made his mind up about the road and did not properly address the Circular especially paragraph 11 quoted in part above. This is all the more unfortunate since Campbell must have been aware of the ownership dispute since he refers (para.10) to the letter No.7/7. He does not say whether he ever saw the letter No.7/6 from Russel and Aitken. I find that surprising.
86. The matter does not end there because I consider that the decision taker Sheila Terry failed to take proper account of two other material matters which affect the petitioners. The first is the "nib" which has effectively altered and removed part of the petitioners property; and the second is the major alteration to the traffic priorities. I cannot understand her affidavit in paragraph 5 where she says the "nib" had not altered the configuration or the priorities. She says she recalls "observations" but does not say what they were or how she took account of them. It is obvious that the observations made in 7/6 and 7/7 relate to "differences" (my emphasis) from the original planning application.
87. No doubt road safety was considered, but nowhere is it said that the traffic impact of the altered priorities on the petitioners was considered against the background of the school and the new housing. She simply does not say how she applied the National Planning Guidelines (earlier quoted).
88. Again it is partly the same point as before. What the petitioners wanted to say was simply ignored against the background that they were not formally told that a section 64 application was proceeding even though they may have had some knowledge of it.
89. I am also of the opinion that the decision taken here as to what was "not material" was so "irrational" in the sense given by Lord Diplock in CCSU that it cannot stand. Nor can it pass the test in the gentler language of Wordie at 348 since I am of the view that the decision is so unreasonable that no reasonable decision taker could have made it. There is considerable overlap with what I have already said. The strong views (not allowed to be developed) of the petitioners were not properly considered, and the removal of part of the road and the substantial altered priorities, obvious on the plan, persuade me that no reasonable local authority could say it was "not material". There has been a lack of even handed treatment of an issue of design and result which is starkly obvious, even to my untutored eye, on the Plan which was approved (No.6/6).
90. The prejudice to the petitioners is obvious. While they were able to make some objection in the letters the decision has effectively prevented the owners of the new houses having any right to object. The fact that the matter will now require a proper application will remedy that.
91. What then is the result. The case was only part heard because the Human Rights argument was not advanced at this stage. I was asked, if not fixing a second hearing to allow evidence, to put the case out By Order with my conclusion on the pleas argued, so that parties could consider the way forward. On that point I should add this. All parties adapted a "fall back" position of asking for proof before answer. It was unclear to me how this would advance matters and I do not find it an attractive solution after so much detailed argument on the available documents and plans. I do not propose to call for evidence but will put the case out By Order against an interlocutor sustaining the first and second pleas-in-law for the petitioners; repelling pleas 1, 2, 3, 4, 6 and 7 for the first respondents and 2, 3, 4, 5, 7, 8 and 9 for the second respondents. That grants the reduction sought, which means that the decision taken on 15 December 2000 falls to be reduced. Strictly speaking the decision is partly incorporated in the letter of even date which pro tanto falls also to be reduced. I will make no order for expenses until the parties have been heard thereon.