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Cite as: [2005] ScotCS CSOH_43, [2005] CSOH 43, 2005 SCLR 810

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Spey District Fishery Board v. Scottish Ministers & Ors [2005] ScotCS CSOH_43 (24 March 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 43

P1443/04

OPINION OF LORD KINGARTH

in the petition of

SPEY DISTRICT FISHERY BOARD

Petitioners;

against

(FIRST) SCOTTISH MINISTERS, (SECOND) FRED OLSEN RENEWABLES LIMITED AND (THIRD) PAUL'S HILL WIND LIMITED

Respondents:

________________

Petitioners: Wilson; Drummond Miller

Respondents: Wolffe, Scottish Executive, Hodge, QC et Howlin;

Wright Johnston & MacKenzie

24 March 2005

[1] The petitioners are the Spey District Fishery Board constituted in terms of the Salmon Act 1986. In terms of section 16 of that Act (now section 45 of the Salmon & Freshwater Fisheries (Consolidation) (Scotland) Act 2003) the petitioners may inter alia do such acts as may appear to them expedient for (a) the protection or improvement of the fisheries within their district (b) the increase of salmon or (c) the stocking of the waters the district with salmon. The district for which the petitioners have responsibility includes the river Spey and its tributaries, including the Allt a Gheallaidh Burn.

[2] In this petition, the petitioners seek judicial review of a decision by the Scottish Ministers (the first respondents), communicated by letter dated 31 March 2004, to discharge conditions 3.3 and 3.4 attached to a consent granted by the Scottish Ministers in terms of section 36 of the Electricity Act 1989 for the construction and operation of a wind-powered electricity generating station at Paul's Hill, Morayshire.

[3] It is important to understand the background to that decision.

[4] On 27 September 2001 Fred Olsen Renewables Limited (the second respondents) submitted an application for the consent of the first respondents to the construction and operation of a wind-powered electricity generating station at Paul's Hill, Morayshire, and a direction by the first respondents under section 57(2) of the Town & Country Planning (Scotland) Act 1997 that planning permission for the development be deemed to be granted. The third respondents are a subsidiary company of the second respondents and are involved with the construction, finance and operation of the power station referred to in the petition.

[5] The proposed generating station was one which could not, by virtue of section 36 of the Electricity Act 1989, be constructed, extended or operated except in accordance with a consent granted by the first respondents. Notice of the application required to be served on the relevant planning authority (Moray Council), in terms of schedule 8 of paragraph 2 of that Act. Paragraph 2(2) of schedule 8 provides that where the relevant planning authority objects to such an application, a public inquiry requires to be held. Paragraph 3(1) of schedule 9 provides that an applicant, in formulating any relevant proposals, "(a) shall have regard to the desirability of preserving natural beauty, of conserving flora, fauna and geological or physiographical features of special interest......and (b) do what he reasonably can to mitigate any effect which the proposals would have on the natural beauty of the countryside or on any such flora, fauna, features........". By virtue of paragraph 3(2) of the same schedule it is provided that the Scottish Ministers, in considering any relevant proposals for which consent is required under section 36, "shall have regard to - (a) the desirability of the matters mentioned in paragraph (a) of the subparagraph (1) above; and (b) the extent to which the person by whom the proposals were formulated has complied with his duty under paragraph (b) of that subparagraph". By virtue of paragraph 3(3) of the same schedule it is provided in effect that, without pre-prejudice to the preceding provisions, an applicant and the Scottish Ministers shall avoid so far as possible causing injury to fisheries or to the stock of fish in any waters. Section 57(2) of the Town & Country Planning

(Scotland) Act 1997 provides that on granting a consent under section 36 of the Electricity Act 1989 the Scottish Ministers may direct that planning permission for that development and any ancillary development shall be deemed to be granted, subject to such conditions (if any) as may be specified in the direction.

[6] Regulation 7 of the Conservation (Natural Habitats etc) Regulations 1994 (implementing the so called Habitats Directive (Council Directive 1992/43/EEC) requires the Scottish Ministers to propose a list of sites eligible for identification as of Community importance for the conservation of natural habitats and habitats of species. If adopted in accordance with certain procedures such a site requires to be designated as a special area of conservation (an "SAC") in terms of regulation 8. At the material time the area effected by the proposed generating station was within an area proposed under regulation 7, with identification of the Atlantic Salmon as one of the species native to Great Britain which the site hosted. It was, and is, the policy of the Scottish Ministers to treat such a candidate SAC as if it was fully adopted and designated. Regulation 48(1) of the 1994 Regulations, provides that "a competent authority, before deciding to undertake, or give any consent, permission or other authorisation for, a plan or project which - (a) is likely to have a significant effect on a European Site in Great Britain (either alone in combination with other plans or projects), and (b) is not directly connected with or necessary to the management of the site, shall make an appropriate assessment of the implications for the site in view of that site's conservation objectives". By virtue of regulation 71(1)(a) and regulation 54(2)(d), regulation 48(1) applies in relation to the granting of consent under section 36 of the Electricity Act 1989, and to a decision directing, under paragraph 7 of schedule 8 to that Act, that planning permission shall be deemed to be granted. Regulation 48(3) provides that the competent authority shall for the purposes of the assessment consult the appropriate nature conservation body and have regard to any representations made by that body within such reasonable time as the authority may specify. By virtue of regulation 4 the appropriate nature conservation body in Scotland is Scottish Natural Heritage ("SNH"). Regulation 48(5) provides that "in the light of the conclusions of the assessment ......the authority shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the European Site". Regulation 3(4) provides that every competent authority in the exercise if any of their functions shall have regard to the requirements of the Habitats Directive so far as they may be effected by the exercise of those functions. In terms of regulation 6(1) the expression competent authority "includes any Minister, government department, public or statutory undertaker, public body of any description or person holding a public office".

[7] Notice of the second respondents' application was served on Moray Council as planning authority, who in turn consulted the petitioners. By letter dated 5 December 2001 addressed to Moray Council the petitioners expressed certain concerns. They pointed out inter alia that two burns drained the area which would be affected by the development, one in particular called the Allt a Gheallaidh Burn (or Pitlochry Burn), a burn which, as they pointed out, was accessed by salmon and trout for much of its length. The burn is a tributary of the river Spey. The petitioners expressed concerns in particular about the potential for suspended solids within the run-off water from construction works having an adverse effect on salmon populations. On the basis of these concerns the petitioners, "in applying the precautionary principle" objected to the application. Thereafter, discussions and negotiations took place between the petitioners and agents of the second respondents. A draft monitoring and mitigation agreement was produced and revised. This was discussed at a meeting on 14 February 2003. There is a dispute between the parties as to whether at that meeting, in addition to discussion of the draft agreement, it was agreed that the petitioners be consulted in relation to the terms of a construction and method statement for the development. It is, as I understood it, agreed between the parties that a representative of the first respondents who was present at that meeting indicated at some point that if agreement could not be reached it might be necessary for the first respondents to proceed to grant consent, although there is, I think, a dispute as to what the petitioners took from that. At all events, the petitioners by letter dated 14 March 2003 informed the first respondents that the Board of the petitioners had resolved to withdraw their objection "subject to the completion of a monitoring and mitigation agreement in substantially similar terms to those discussed at our meeting on Friday 14 February and confirmation that the Board will be consulted in connection with the construction and method statement". Counsel for the petitioners accepted that by that stage the petitioners were plainly confident that the agreement referred to would be concluded. By letter dated 19 March 2003 the first respondents acknowledged the petitioner's letter.

[8] On or about 9 April 2003 in a formal document extending to some six pages, described as "Consent and Deemed Planning Permission by the Scottish Ministers..........", the first respondent consented, subject to the conditions set out in paragraph 3 of the document, to the proposed development and, subject to the conditions set out in paragraph 7, directed that planning permission for it was deemed to be granted.

[9] The conditions attached to the Consent included the following:

"3.3 No work shall commence on the site until a scheme relating to the monitoring and maintenance of salmon and sea trout stocks in the Allt a Gheallaidh Burn and its tributaries has been submitted in writing to and approved by the Scottish Ministers in consultation with Spey Fisheries Board. The scheme may take the form of a minute of agreement entered into between the company and the Spey Fisheries Board. The Company shall fully implement its obligations under the approved scheme and the reasonable costs of implementing the scheme shall be borne by the company. The scheme shall include:-

(a) details of all works to monitor and record the relevant fish stocks before, during and after the commencement of the developments;

(b) details of remedial measures to be taken by the company in the event that the results of the relevant monitoring demonstrate that the implementation of the development has, as a result of any effect on water quality, reduced stocks of salmon and/or sea trout in the Allt a Gheallaidh burn, to procure that the relevant fish stocks are restored to their original levels; and

(c) details of the publication of monitoring records and results made pursuant to this condition to the Scottish Ministers, SEPA and the Spey Fisheries Board.

3.4 No work shall commence on the site until a scheme relating to the monitoring and maintenance of water quality within the Allt a Gheallaidh burn and its tributaries has been submitted in writing to and approved by the Scottish Ministers in consultation with SEPA and the Spey Fisheries Board. The company shall fully implement its obligations under the approved scheme and the reasonable costs of implementing the scheme shall be borne by the company. The scheme shall include:-

(a) details of all works to monitor and record water quality in the [sic] within the Allt a Gheallaidh burn and its tributaries before, during and, where appropriate, after the commencement of the development;

(b) details of remedial measures to be taken by the company in the event that the results of the relevant monitoring demonstrate a change in water quality in the Allt a Gheallaidh burn or its tributaries as a result of the implementation of the development;

(c) details of the publication of monitoring records and results under this condition to the Scottish Ministers, SEPA and the Spey Fisheries Board; and

(d) the installation of silt traps within the site as may be deemed reasonably necessary by the Scottish Ministers in consultation with SEPA during the period of this consent referred to in condition 3.1.

Reasons: To protect the hydrology of the burn which is an important spawning ground and a candidate Special Area of Conservation in terms of the EU Habitats Directive."

[10] One of the conditions attaching to the deemed planning consent was that:

"7.4 No work shall commence on the site until approval has been obtained from the planning authority for a construction method statement including full details of baseline water quality, all on site construction, drainage, mitigation, restoration/reinstatement work and timetables. The method statement shall include provision for additional site survey and monitoring taking account of the comments made by the Scottish Natural Heritage in appendix to its letter of 16 December 2002 to the Scottish Executive, a copy of which is appended to this consent.

Reasons; to avoid disruption to the hydrological processes of the area, to avoid disturbance of breeding birds and to maintain the integrity of the peatland habitats."

[11] The Consent and Deemed Planning Permission was sent along with a lengthy letter to consultants engaged by the second respondents on 9 April 2003. At paragraph 2(c) of the letter it was stated that "the company and the River Spey District Salmon Fishery Board have confirmed their intention to enter a Minute of Agreement to cover water quality and salmon population levels in the Allt a Gheallaidh Burn. Suspensive conditions have been applied to the Electricity Act consent to ensure that the terms of this scheme are finalised before construction commences. This will ensure that Scottish Ministers properly discharge their obligation in respect of EU Habitats directive". At paragraph 9 the letter referred to the concerns which had been expressed by the petitioners in their objection, and suggested that first respondents were "content that the completion of the minute of agreement between the Spey District Fisheries Board and the company puts in place sufficient mitigation measures to meet their obligations in terms of the Habitats Directive". In a section headed "The Scottish Ministers Consideration of possible effects on European Sites, Species and Habitats"; it was stated that as a result of their consultation with SNH the first respondents were satisfied that, provided the planning conditions were imposed and the planning agreement was carried through, the integrity of the European sites would be protected; further that SNH's advice was that the proposed development would not result in a likely significant effect on any European designated site and that therefore no assessment pursuant to the 1994 Regulations was necessary, and consequently that there was no reason to refuse section 36 consent on the grounds of adverse effects on the integrity of the European site. It was stated at paragraph 36 of the letter that the first respondents had decided to grant the consent subject to certain conditions including "a condition that an agreement must be concluded with Spey District Fisheries Board prior to work commencing". At paragraph 39 it was intimated that a copy of "this decision letter" had been sent to the planning authority and to all others who commented on the application. It was said at paragraph 40 that "Additionally a copy of the determination and reasons for the decision has been placed on the public record at Moray Council Planning Department, High Street, Elgin".

[12] It appears that the full terms of the Consent and Deemed Planning Permission were sent only to statutory consultees, namely the planning authority and SNH. Although it was intended to send a copy of the decision letter to all who had commented on the application, it appears that, since the petitioners' objection had been withdrawn and no note of their objection had been recorded in the appropriate place, this was not done so far as the petitioners were concerned. I was informed, however, (and the petitioners were not in a position to dispute) that a short covering letter was sent to all who received a copy of the decision letter, explaining that the Consent and Deemed Planning Permission was available for inspection at the premises of Moray Council and on the Scottish Executive website. In the event the petitioners received a copy of the decision letter on or about 10 April 2003 from Knockando Estate to whom it had been sent as neighbouring proprietors of the land affected. The petitioners, however, were not given a copy of the short covering letter.

[13] Thereafter there were further discussions with a view to final adjustment of the terms of the proposed agreement. It was reported to the petitioners' Board members by memorandum dated 24 December 2003, that the petitioners' subcommittee, charged with responsibility in connection with this matter, had met with the developers on a number of occasions to "progress finalisation of the agreement", and that by 28 November the subcommittee felt that there were only a few points outstanding which required to be resolved.

[14] On 16 October 2003 a major peat slide took place at Derrybrien in County Gallway, Ireland. The peat slide was caused by a combination of contributory factors including a zone of weak peat. Activity associated with the construction of a wind farm resulted in failure of the peat. As the petitioners understood it, the peat slide involved the movement of approximately 450,000 cubic metres of peat as a result of which local water courses, and in particular the Owendalulleegh river, were contaminated. Fish spawning beds were destroyed and an estimated 100,000 fish were affected and 50,000 fish killed.

[15] In late November 2003 the petitioners learned of this peat slide. They were concerned as to the implications for the Paul's Hill Wind Farm Development. In particular they were concerned that a peat slide could effect the Allt a Gheallaidh Burn, thereby posing a threat to the river Spey and its fish stocks. On 10 December 2003 there was a meeting between the petitioners' subcommittee, representatives of the developers, the Head of Planning Consents and Emergency Planning at the Scottish Executive and Professor Chris Soulsby of Aberdeen University, who was engaged to advise the petitioners, to discuss the implications of the Derrybrien incident and to clarify any outstanding points in respect of the draft agreement. It is recorded in the memorandum dated 24 December 2003 that "Following detailed discussions it was agreed that the appropriate place to deal with the Derrybrien issue was within the detailed Construction Method Statement which the developer was bound to produce prior to the commencement of construction. In summary it was agreed with the developer that the developer would (1) involve Chris Soulsbury on behalf of the Board to review the relevant sections of the Construction Method Statement and pay his reasonable fees and expenses in connection therewith (2) commission an investigation into the likely causes of the Derrybrien incident reporting to relevant parties including the Spey Fisheries Board on the event and on measures which could have been taken to prevent what happened with the intention that the experience of Derrybrien will feed into the Construction Method Statement for Paul's Hill and (3) ensure that the local planning authority were aware that the Board required to be consulted in connection with the Construction Method Statement. ....... The subcommittee are therefore prepared to recommend that the draft Monitoring and Mitigation Agreement be approved for signature by the Board". The "final draft minute" was attached for the petitioners' attention. It was stated however that it had been indicated to the developer that final approval of the agreement rested with the Board. It was not disputed before me that this memorandum accurately recorded what had taken place at the meeting.

[16] By the time the memorandum was drafted the petitioners' clerk had been sent, on 11 December 2003, a copy of full terms of the Consent and Deemed Planning Permission, the terms of which, it appeared, had been discussed at the meeting on the previous day. Equally the second respondents had written to the petitioners by letter dated 18 December 2003 referring to what had been agreed at the meeting of 10 December 2003 and indicating that "the contents of the Minute of Agreement are now entirely agreed and when executed by the both parties can be submitted to the Scottish Ministers under paragraph 3.3 of the section 36 consent on 9 April 2003". The petitioners were invited to agree that the second respondents could forward the Minute of Agreement to the Ministers requesting the discharge of the second respondents obligations under the section 36 consent.

[17] It soon became clear that all of the members of the Board of the petitioners were not content to follow the recommendation made to them in the memorandum of 24 December 2003. In particular it appeared that Board members were not content that the implications of the Derrybrien incident be dealt with solely in the Construction Method Statement. Instead it seems they wished detailed hydrological and other assessments to be made prior to the execution of the agreement and that the draft agreement be further reviewed in light of the surveys. There was correspondence between the petitioners and the second respondents from about 12 January 2004 onwards.

[18] The second respondents, who were anxious to make progress, were unhappy at the prospect of further delay to the execution of the proposed agreement. By letter dated 10 March 2004 addressed to the first respondents, the second respondents referred to the fact that an agreement had been reached with the Scottish Environmental Protection Agency and sought approval of that agreement and of an Undertaking, which was appended to the letter, as a scheme or schemes for the purposes of conditions 3.3 and 3.4 of the Consent and Deemed Planning Permission. It was, as I understood it, agreed before me that the terms of the Undertaking were (apart from certain structural differences) essentially consistent with the terms of the draft agreement which had been negotiated with the petitioners, albeit there was no reference to the payment of the petitioners' expenses in the negotiation of that agreement which had hitherto been provided for. In the letter it was stressed that in terms of condition 3.3 it was not necessary that there be an agreement with the petitioners. Reference was made, in some detail, to the history of what had taken place, as the second respondents saw it. Reference in particular was made to what had happened at the meeting of 10 December 2003. It was stated inter alia that the Construction Method Statement was almost complete and reference was made to an AGEC report prepared in relation to Derrybrien, which had been sent, it was said, to the first respondents in advance of the letter. It was stated that the second respondents did not believe that there were reasonable prospects of reaching an agreement with the petitioners within a reasonable timescale and it was indicated that it was their view that the petitioners had not acted reasonably in relation to matters but had changed their position in negotiations without, it was said, good reason.

[19] By letter dated 11 March 2004 the first respondents wrote to the petitioners' clerk reporting inter alia that "The developer has now submitted to the Scottish Ministers for approval the attached proposals in respect of monitoring and maintaining stocks of salmon and sea trout in the Allt a Gheallaidh Burn and its tributaries and for monitoring and maintaining water quality within the burn and tributaries. We shall now consider these proposals in light of conditions 3.3.and 3.4 ........ As you are aware these conditions require this consideration to be undertaken along with consultation with the Spey Fishery Board and I am therefore seeking views of the Board as required by conditions 3.3 and 3.4. Ministers will, of course, have due regard to these views in determining this matter. I should be grateful for a response no later than Friday 26 March". The "attached proposals" which were sent were the full terms of the Undertaking which had been appended to the second respondents' letter of 10 March 2004. That letter itself was not sent to the petitioners.

[20] By letter dated 19 March 2004 the petitioners' clerk wrote to the first respondents. In summary the petitioners' position was that conditions 3.3 and 3.4 were intended to protect the river Spey as a candidate SAC and that detailed hydrogeological and geotechnical engineering and other relevant assessments were necessary prior to the completion of the agreement between the petitioners and the second respondents to demonstrate compliance with the Habitats Directive. It was said "The proposal provided by the developer as outlined in your letter of 11 March merely restates the provisions in the draft Agreement which is in the course of negotiation with the Board". It was stated, in effect, that nothing short of implementation of certain resolutions of the Board would be accepted. One of these resolutions was also that "The Board make full enquiry of the Construction Method Statement".

[21] By letter dated 31 March 2004, addressed to agents of the second respondents, the first respondents intimated that the "Scottish Ministers have now consulted with the Scottish Environment Protection Agency and the Spey Fishery Board in connection with your clients' responsibilities in terms of condition 3.3 and 3.4 of the section 36 consent for Paul's Hill Wind Farm. I can confirm that after consideration of their views and the documentation provided by your client the Scottish Ministers are content to discharge both these conditions". A copy of the letter was sent with a compliment slip to the petitioners.

[22] By letter dated 14 April 2004 the petitioners' clerk wrote to the first respondents indicating that the petitioners were extremely concerned about the decision and about the way it had been communicated. It was intimated that the Board were taking urgent advice to protect the Board's position. The possibility of a judicial review was raised. By letter dated 26 April 2004 the first respondents apologised for the way in which intimation had been given of the decision, and stressed that the issues raised by the petitioners have been given the most careful consideration.

[23] It appears that thereafter the second respondents proceeded to complete certain investigations including investigation in relation to the implications of the Derrybrien incident. Moray Council, apparently following consultation with SEPA and SNH, approved the Construction Method Statement on 19 May 2004, thereby discharging condition 7.4 of the Consent and Deemed Planning Permission. It seems that, despite what was agreed at the meeting of 10 December 2003, the petitioners were not involved in this process. Their position was that they were not, in time, sent the details of reports commissioned nor consulted by the planning authority. The second respondents, it appeared, took the view that the petitioners themselves had departed from the terms of the agreement apparently reached at the December meeting, and their understanding was that the planning authority had been made aware that the petitioners should be consulted. It was not suggested that the first respondents had any reason to be aware that the petitioners were not involved in relation to the adjustment and approval of the Construction Method Statement, and their understanding was that Professor Sousby had had contact with the authors of the AGEC report. In the event, by letter dated 25 May 2004 the petitioners were informed by the second respondents that the Construction Method Statement had been approved. Reference was made to a number of reports, which had been prepared or completed. By letter dated 2 June 2004 addressed to the first respondents the petitioners explained that they had become aware that the Undertaking had been sent under cover of the letter of 10 March, and asked for a copy of that letter by return. They also asked for exhibition of the reports referred to by the second respondents. By letter dated 14 June 2004 the first respondents enclosed a copy of the letter dated 10 March 2004, and indicated that copies of the reports referred to were being sought.

[24] Thereafter there was a meeting between members of the petitioners' Board and agents of the second and third respondents on or about 23 June 2004. By letter dated 25 June, and by e-mail dated 6 July 2004, agents of the third respondents informed the petitioners' clerk inter alia that construction work would start in July. On 12 July 2004 construction work was commenced on site and it has continued since. It appears that the petitioners Board took further advice from the relevant subcommittee. On 18 August they resolved to raise the present proceedings, subject to certain further investigations being completed. Instructions were issued to counsel by the end of August, and first orders were obtained in the present petition on the 9 September. The petition itself was served on 13 September 2004.

Submissions for the Petitioners
[25] The decision by the first respondents, communicated by letter dated 31 March 2004, to discharge conditions 3.3 and 3.4 to the Consent granted in terms of section 36 of the Electricity Act 1989 was unlawful. Three distinct arguments were advanced in support of that proposition.

[26] In the first place, the decision to discharge the relevant conditions without affording the petitioners the opportunity to make representations as to the basis on which the second respondents sought the discharge was perverse and unreasonable. No sensible authority acting with due appreciation of its responsibilities would have done other than afford the petitioners the opportunity to comment on the letter written by the second respondents on 10 March 2004. Reference was made to Education Secretary v Tameside BC 1977 AC 1014, at 1064E. The first respondents failed properly to have regard to the environmental obligations imposed upon them in the Habitats Directive. It was clear - and obvious from the terms of the letter 9 April 2003 - that the first respondents relied on the expertise of the petitioners to ensure that by virtue of the proposed concluded agreement their responsibilities would be met. It was, or ought to have been, obvious that the petitioners would have a clear interest to comment on the representations made by the second respondents to the effect that the Construction Method Statement would be the appropriate vehicle to deal with implications of the Derrybrien incident - in particular, in circumstances where the first respondents would have no further involvement and where no condition was in place that the petitioners would be involved. By failing to ascertain the petitioners views on the matters raised in the letter of 10 March 2004 the first respondents took a decision when they were not fully informed of the petitioners' views. Reference was made to R v Cornwall County Council, ex p Hardy 2001 Env. L.R. 473. It was too legalistic for the first respondents to justify what was done by reliance on the obligation of "consultation" in terms of condition 3.3 - especially having regard to the background in which the petitioners had spent months in negotiation. The first respondents could not rely on the strict terms of the conditions which they had not taken steps to ensure the petitioners had. It was plain that at the material time that the petitioner had concerns - which extended to the effects on the Spey - arising out of what could happen to the Allt a Gheallaidh Burn.

[27] Secondly, the decision in question was contrary to natural justice. It was procedurally unfair that the content of second respondents' letter of 10 March 2003 was not put to the petitioners for their comment prior to the first respondents reaching their decision. The first respondents deprived the petitioners of a fair opportunity to state their position on matters material to the decision. The need to observe natural justice was not confined to judicial or quasi judicial acts. Reference was made to Clyde and Edwards on Judicial Review paras.18-03 and 18-09. The first respondents could be said to have adopted procedures which were improper and unfair. Reference was made to Lakin Limited v Secretary of State for Scotland 1988 SLT 780, Lochore v Moray District Council 1992 SLT 16 and Fairmount Limited v Environment Secretary 1976 1 W.L.R.1255. It was clear, in the circumstances, that the first respondents did take account of the submissions made by the second respondents in their letter (together with the information sent with it), and that this informed the first respondents' decision.

[28] Thirdly, the first respondents' decision deprived the petitioners of a legitimate expectation, and, as a consequence, it was unfair and contrary to natural justice. In particular the petitioner had a legitimate expectation that their interests would be protected through a minute of agreement dealing with both monitoring and mitigation (including steps to be taken in the event of damage). The legitimate expectation was that an agreement would be the mechanism by which their grounds of objection would be met. In essence it was the terms of the letter dated 9 April 2003, seen against the background of the petitioners' withdrawal of their objections, which gave rise to the expectation. Thereafter the petitioners continued to negotiate on that understanding. It was accepted that the first respondents did not require to proceed by means of an agreement in terms of the conditions but circumstances could give rise to a legitimate expectation even although technically there was no denial of any right. Reference was made to Clyde and Edwards on Judicial Review para.19-04. The fact that the petitioners became aware of the terms of the conditions in December 2003 could not operate retrospectively to take away a legitimate expectation which was acted on. This was a case where a particular procedure, not otherwise required by law, required to be followed consequent upon a specific promise or practice - i.e. the fourth category of legitimate expectation referred to by Simon Brown LJ in R v Devon CC, ex p. Baker 1995 1 AllER 73.

[29] As to the question of delay, which the second respondent and third respondents wished to raise, whereas in Clyde and Edwards on Judicial Review at paragraph 13.21 there was reference to the possibility that a petition for judicial review might be refused where there was material delay and ascertainable prejudice, it could not be said that there had been material delay. The petitioners had not seen the letter of 10 March 2004 until a copy of it was sent on 14 June 2004. Their subcommittee, under instruction from the Board, had sought to resolve matters at the meeting at the end of June 2004, without success. At no stage before work began did the second and third respondents ask if the petitioners were proceeding with any legal challenge to the decision in question. The second and third respondents were aware that such a challenge was being considered. There was ongoing discussion into July. In no circumstances could it be said that the petitioners had acquiesced. Any prejudice suffered by the second or third respondents was of their own making.

[30] In all the circumstances the decision should be reduced. Thereafter the matter should be put out by order, in order to consider whether, and if so, and in what precise terms, interdict against the continuing operations of the second and third respondents should be pronounced.

Submissions for the First Respondents
[31] It could not be said to have been either irrational or in breach of natural justice for the first respondents not to send to the petitioners the letter of 10 March 2004. The petitioners did not dispute that the conditions which the first respondents required to apply were conditions 3.3.and 3.4 of the Consent and Deemed Planning Permission. What the first respondents required to consider was whether the proposals made by the second and third respondents constituted a scheme or schemes, relating to the monitoring and maintenance of salmon and sea trout stocks and water quality in the Allt a Gheallaidh Burn and its tributaries, which satisfied these conditions. The only obligation on the first respondents was to consult the petitioners before approving such a scheme. Unlike SNH the petitioners were not statutory consultees in respect of the proposed development. They had simply raised specific objections as consultees of the planning authority. The first respondents entirely fulfilled their duty to consult the petitioners on the substances of the proposed scheme. As to what was meant by consultation, reference was made to Reg. v Social Services Sec, ex p. A.M.A. 1986 W.L.R. 1, at page 4. The petitioners did not, in terms, suggest that that obligation had not been fulfilled. No further duty could properly be superimposed. It could not be said to have been irrational or a breach of natural justice not to send the letter of 10 March 2004. The test for irrationality was the high one referred to by Lord Diplock in CCSU v Minister for Civil Service 1985 1AC 374, at 410. The decision to approve the scheme in question was not itself being attacked as irrational. Nor could it be, given what the petitioners' representatives had been prepared to recommend at the meeting of 10 December 2003.

[32] Detailed consideration of the terms of the letter of 10 March 2004 did not assist the petitioners' argument. In so far as the second respondents raised questions of legal interpretation, this was not something which the first respondents required to consult the petitioners on; nor was it something on which they would look to the petitioners for advice. The issues raised were matters on which they could, and did, take their own advice. The second respondents' views on the history of matters, and as to whether any party could be said to have behaved unreasonably, could not be said to have been relevant to the decision which the first respondents had to make. It was beside the point for the first respondents to consider the question of how the situation arose. The terms of the petitioners own letter of 19 March 2004 showed that they were well able to make representations on the issue of principle apparently at stake - namely whether the implications of the Derrybrien incident should be left to be dealt with in the Construction Method Statement, subject to the approved of the planning authority, or dealt with in an agreement which satisfied conditions 3.3 and 3.4. These views were entirely taken into account by the first respondents. In the event the letter of 10 March 2004 did not play a material part in the first respondents' approval of the scheme. That decision was made on the basis of views taken on the merits of the scheme and advice from the first respondents' own officials, following consideration of the responses to consultation with the petitioners and SEPA (which latter body did not receive a copy of the 10 March 2004 letter either).

[33] In the circumstances the petitioners only legitimate expectation was to be consulted in terms of the conditions of the Consent; conditions of which they were aware from December 2003 onwards, if not before. In any event, the petitioners would require to show that any expectation was based on an unequivocal representation on which it was reasonable for them to rely, that they in fact relied upon it and that failure to adhere to that representation would in the circumstances amount to an abuse of power. Reference was made Docherty v City of Edinburgh District Council 2000 SC 598 and Reg v North & East Devon H. A. ex p Coughlan 2000 2 WLR 622. The petitioners could not do so in this case. Although paragraph 36 of the letter of 9 April 2003 was, regrettably, inaccurate, it was reasonable to expect interested parties reading the letter to obtain the full terms of the conditions. This was particularly so when paragraph 2(c) of the letter referred (correctly) to suspensive conditions applied to ensure that the terms of a "scheme" were finalised before construction commenced. In any event the only legitimate expectation could have been that an agreement would be entered into in terms substantially similar to those agreed by March 2003. Reference was made to the petitioners' letter of 14 March 2003. There could be no question of the petitioners having a legitimate expectation, as it were, to veto any development unless and until an agreement in terms suitable to them was entered into. This appeared to be what the petitioners were suggesting. In the event, the scheme which was approved was in substantially similar terms to the terms hitherto agreed, as acknowledged by the petitioners themselves in their letter of 19 March 2004. There was nothing in the petitioners' averments or arguments to contradict that. Further there were no averments of any specific acts of reliance by the petitioners. Nor could it be said that any failure to fulfil the claimed expectation amounted to an abuse of power.

Submissions on behalf of the Second and Third Respondents
[34] On the merits of the petitioners' application, the submissions of the first respondents were adopted.

[35] In relation to the petitioners' first argument, it was plain that they misunderstood their role in relation to the development as a whole. They were not statutory consultees. They were objectors who wished to secure certain matters in relation the to the monitoring and maintenance of stocks in a particular burn. It was wrong to think that the first respondents relied on their expertise to ensure that their obligations under the Habitats Directive would be met. The petitioners appeared ultimately to have considered that their concerns should be extended to the whole Spey. It was important to note that the decision to approve the scheme in question was not in terms being attacked as being unreasonable, and nor could it be, given what had been agreed at the meeting in December 2003. SNH were content that concerns would be met by planning conditions, such as the approval of a Construction Method Statement as required by condition 7.4. These respondents remained willing to consider any comments the petitioners wished to make in relation to that statement. Further, when the petitioners received the proposals in the letter of 11 March 2004 they must have appreciated that there would have been a covering letter from the second respondents. They did not ask to see it.

[36] In relation to legitimate expectation, the letter of 9 April 2003 was not addressed to the petitioners, or intended as a representation to them. If the petitioners chose not to look beyond it to the conditions themselves, they cannot found on their own failure now to erect an expectation which any simple enquiry would have dispelled. At its highest there was an expectation that an agreement would be reached in relation to monitoring and maintenance as regards the Allt a Gheallaidh Burn in terms substantially similar to those negotiated. These respondents remained entirely willing to meet the petitioners' negotiation expenses. By December 2003 however the petitioners were aware of the full terms of the Consent. In the event they have never been excluded from relevant monitoring and maintenance, which still continues.

[37] In any event the petitioners were barred by mora, taciturnity and acquiescence from proceeding with the petition. It was a matter of circumstances as to whether acquiescence could be inferred. Reference was made to Hanlon v Traffic Commissioner 1988 SLT 802 and William Grant & Sons Ltd v Glen Catrine Ltd 2001 SC 901, pp 922 and 923. Although the threat of judicial challenge was made in the petitioners' letter of 11 March 2004, the present proceedings were not commenced until September 2004. Even without sight of the letter of 10 March 2004 the petitioners could have mounted a challenge on the basis of the third argument now presented. They were aware that the second and third respondents were anxious to commence construction. By the end of May, they were aware that the Construction Method Statement had been approved and in communications in June and July were informed that construction would be starting on 12 July 2004. One purpose of these communications was to find out if the petitioners were intending to proceed with any legal challenge. If the petition had been raised before 12 July 2004 the second and third respondents could, and would, have stopped the process. Although some costs would by then have been incurred, much of them could have been saved. It was now difficult to disengage. By early December 2004 the third respondent had incurred very significant costs and had committed themselves to further substantial expenditure. Although the petitioners referred to a meeting in June 2004 where certain discussions took place, nothing was said at the meeting to the effect that, if agreement was not reached, proceedings for judicial review would be taken. To allow the petition to proceed would be detrimental to good administration. Reference was made to Reg v Dairy Tribunal ex p. Caswell 1990 2 AC 738.

Discussion
[38] Despite the skilful and careful way in which the petitioners arguments were presented I have come to the view that, on the merits of the petition at least, the arguments of the respondents fall to be preferred.

[39] Before dealing with the specific arguments advanced by the petitioners, it is important to bear in mind what they are not suggesting. Firstly, despite certain criticisms of the terms of the letter of 9 April 2003, the petitioners are not attacking the lawfulness of the specific conditions which were imposed as part of the Consent. It is accepted that these conditions were the conditions which the first respondents required to consider when applying their minds to the application by the second respondents in March 2004. In the second, place it is accepted that, on a proper construction of the conditions, the first respondents were entitled to approve a scheme in a form other than a minute of agreement entered into between the second respondents and the petitioners. It is accepted also that the obligation upon the first respondents, in terms of those conditions, was to consult the petitioners. It is not part of the petitioners' case that the first respondents did not do so. Further, although it was pointed out in the course of the debate that the scheme which was ultimately approved did not provide for payment of the petitioners' expenses in respect of negotiation (and further that it took the form of an undertaking to the first respondents and provided for the possibility that others might carry out monitoring etc if the petitioners did not agree to do so), it was not part of the petitioners' argument (or their pleadings) that the scheme which was approved was substantially different in any material respect from the terms which had hitherto been agreed. Lastly, although counsel repeatedly expressed the petitioners' concerns that they were not involved in relation to approval of the Construction Method Statement, as had been agreed at the meeting in December 2003, this did not - directly at least - form any part of the petitioners' submissions.

[40] As to the first of the petitioners' arguments (i.e. that it was unreasonable of the first respondents not to allow the petitioners to comment on the letter of 10 March 2004), there is no doubt that, as a matter of formal law, the only obligation of the first respondents was to consult the petitioners in relation to the Undertaking proposed. The decision which the first respondents required to take was whether to approve a scheme or schemes relative to the monitoring and maintenance of salmon and sea trout stock and water quality within the Allt a Gheallaidh Burn and its tributaries. Equally there can be little doubt that their obligation to consult was satisfied by the steps which they did take. They were performing an administrative duty. They were not performing judicial or quasi judicial duties in circumstances where it could be said that the parties to the dispute were entitled to see and hear all relevant representations. As was said by Webster J in Reg v Social Services Secretary ex p A.M.A. "... in any context the essence of consultation is the communication of a genuine invitation to give advice and a genuine receipt of that advice. In my view it must go without saying that to achieve consultation sufficient information must be supplied by the consulting to the consulted party to enable it to tender helpful advice. Sufficient time must be given by the consulting to the consulted party to enable it to do that, and sufficient time must be available for such advice to be considered by the consulting party. Sufficient, in that context, does not mean ample, but at least enough to enable the relevant purpose to be fulfilled. By helpful advice in this context, it means being sufficiently informed and considered information or advice about aspects of the formal substance of the proposals, or their implications for the consulted party, being aspects material to the implementation of the proposal as to which the Secretary of State might not be fully informed or advised and as to which the party consulted might have relevant information or advice to offer". It is no doubt for that reason that the petitioners do not seek to challenge the decision in question - either in their pleadings or in argument - on the basis that the first respondents failed to consult the petitioners as that word falls properly to be understood. In terms of conditions 3.3 and 3.4 it seems clear that the first respondents did consult the petitioners on the substance of the scheme or schemes, and that the petitioners responded.

[41] Instead, the argument presented was that, notwithstanding the letter of the law, it could be said, having regard in particular to the obligations imposed by the Habitats Directive and the degree to which it was clear that the first respondents relied on the expertise of the petitioners, that it was perverse and unreasonable not to allow the petitioners to make representations as to the basis on which approval was sought. That submission, in my view, misapprehends the degree to which it could be said that the first respondents relied, or required to rely, on the petitioners. The body given statutory responsibility to advise specifically on the question of potential impact upon any candidate SAC was SNH. Of course the petitioners had certain duties, and the expertise to fulfil those duties, and it is entirely understandable, when proposals were made which appeared to them to involve the risk of interference with the water and salmon stocks of the burn and consequently of the wider Spey, that they considered that they had a responsibility under regulation 3(4) of the Habitats Directive and otherwise to make their opinions known. That, no doubt, is why they objected when consulted by the planning authority, and why thereafter their objection was taken into account by the first respondents, but the statutory consultees were SNH. What, it seems, the petitioners were initially concerned to achieve were measures to protect against the potential for suspended solids within the run-off water from construction works having an adverse impact on salmon populations. It seems clear that the first respondents thought it important to pay attention to what the petitioners had to say on these matters and were content to accept the position which they broadly sought to achieve. It appeared from paragraph 2(c) of the letter of 9 April 2003 that the first respondents considered that this inter alia would enable them properly to discharge their obligations. When, however, the catastrophe of Derrybrien occurred, the petitioners (contrary to the advice of the members who attended the meeting in December 2003 and of Professor Soulsby - of which advice the first respondents were aware) took the view that it would be right to build into the proposed agreement additional measures designed to allow for rectification and recovery in the event of damage on a similar scale, rather than allow concerns arising from Derrybrien specifically to be dealt with solely in the Construction Method Statement under planning condition 7.4. After that meeting it could not be said this was a matter on which the first respondents showed that they relied, or required to rely, on the petitioners' collective wisdom to ensure that their own responsibilities were met.

[42] Further, I am unable to say, having regard to the content of the letter of 10 March 2004, that it was irrational for the first respondents not to invite comment from the petitioners on its terms. It has to be remembered that irrationality in this context refers to a decision "which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who applied his mind to the question to be decided could have arrived at it". (CCSU v Minister for Civil Service). Much of the letter consisted of assertions about matters of history which the first respondents were, in my view, entitled to treat as beside the point in respect of the decision they required to take. Paragraphs 2, 3 and 9 of the letter referred to purported interpretations of matters of law. Again, the first respondents were entitled, and able, to form a view on these matters themselves. They were not matters on which the petitioners had any expertise. In relation to the suggestion that the implications of Derrybrien were essentially a matter for the planning authority to consider under condition 7.4, and not for the Secretary of State, the first respondents were entitled, in my view, to assume that the petitioners would know that that would be the result of the scheme being proposed (a view confirmed in the event by the fact that the petitioners did make clear representations on this matter in their letter of 19 March). Against that background it is perhaps not without significance that although the petitioners themselves seek to infer that the terms of the letter of 10 March "informed" the first respondents' decision, the first respondents' clear position is that it did not. The circumstances of R v Cornwall County Council ex p Hardy were plainly different.

[43] I have, in any event, considerable doubt as to whether, once it is accepted that the legal duty imposed upon the first respondents was to consult, there could be room for any further overlapping duties in relation to the provision of information or opportunity to comment, however that might be presented. At one point it was suggested that the first respondents could not found on the strict terms of the Consent which they did not take steps to ensure the petitioners had, but of course they had the full terms of the conditions by December 2003, and the first respondents could not proceed in relation to one party, but not others, as if the terms of the conditions were different.

[45] As to the question of legitimate expectation it is, I think, well understood that in so far as any expectation (whether of a procedural or substantive right) is said to be based on a representation (and the petitioners are seeking to found upon a representation made in the letter of 9 April 2003 - as seen against the background which preceded it) the representation must be clear, and one on which it was reasonable for the party to rely.

[46] By the time the petitioners were invited to comment in March 2004, and certainly by the date of the decision in question, the petitioners were aware, whatever they may have thought beforehand, of the terms of the conditions entitling the first respondents to approve a scheme which did not take the form of a minute of agreement. In these circumstances it is difficult to avoid the conclusion that their only legitimate expectation was to be consulted. The sending of the terms of the Consent to the petitioners in December 2003 may not be said to have had any retrospective effect, but it must materially have changed the petitioners' reasonable expectations for the future. No doubt the petitioners still hoped that an agreement would be entered into, but that is a different matter.

[47] Although it is unnecessary perhaps to go further, and although it is unfortunate that the terms of paragraph 36 of the letter of 9 April 2003 were, as was accepted, plainly wrong, it is difficult, in the circumstances, to say that the stark language of that paragraph amounted to a representation on which it was reasonable for the petitioners to rely. It is not so much that that letter was not addressed to them or intended directly to be a representation to them. It seems clear the first respondents did intend the letter to be seen by those who had objected, including the petitioners. Nevertheless the letter was (and was always intended to be) sent along with a covering letter which pointed any reader to the terms of the Consent and where they could be seen. Although no such covering letter was passed to the petitioners, even within the body of the letter of 9 April 2003 the terms of the Consent, which plainly would be the operative document, were referred to and it was said where they could be seen. In these circumstances it is difficult to avoid the view that if the petitioners were concerned to know clearly and specifically where they stood (even if only to check the precise terms of any agreement referred to in the conditions) they would know where to find that information. In that way the letter could be said perhaps to be not unlike the guidance note considered in Docherty v City of Edinburgh Council.

[48] Even if that is wrong, looking to the terms of the letter of 9 April as a whole, against the background in which it was written, it seems clear that the only reasonable expectation which could be formed was that an agreement would be reached in substantially similar terms to those already discussed, and that it would have been unreasonable to expect that the development would not in any circumstances proceed without the agreement of the petitioners, which would have amounted essentially to a power of veto. When the petitioners withdrew their objection it was subject to the completion "of a monitoring and mitigation agreement in substantially similar terms to those discussed," and they were confident that such agreement would be reached. It is not without significance that paragraph 2(c) of the letter of 9 April 2003 speaks of the confirmed intention to enter a Minute of Agreement to cover water quality and salmon population levels in the Allt a Gheallaidh Burn and of "this scheme" being finalised before construction commences. At best for the petitioners it therefore seems to me that the letter falls to be read as productive of an expectation that agreement in substantially similar terms would be reached.

[49] Further, although the expectation which the petitioners claimed to have had was of a procedural rather than a substantive right, it is not altogether clear to me that their claimed expectation could be said to be thus limited. In these circumstances, although strictly speaking it is not necessary to go further, it is not obvious that any failure to fulfil such an expectation could properly be said to amount to an abuse of power (as discussed, for example, in Reg v North & East Devon HA ex p Coughlan). Rather, it seems that there would be administrative paralysis if the first respondents were prevented by the party with the expectation from doing that which another party was entitled to expect under the lawful terms of the conditions.

[50] In the whole circumstances, although the petitioners may have understandable frustrations in light of the erroneous terms of paragraph 36 of the letter of 9 April 2003, and arising from the fact that they were, in the event, not directly involved in the approval of the Construction Method Statement after the Derrybrien incident, about which they plainly had real concerns, I do not find that the decision of 31 March 2004 was unlawful for any of the three specific reasons advanced.

[51] If I had required to decide the question of delay, although the petitioners apprehended that the second and third respondents might seek to base their challenge in this respect on the existence of material delay and ascertainable prejudice, the submission which ultimately was made was essentially to the effect that the present proceedings were barred by mora taciturnity and acquiescence. That too was the basis of challenge in Hanlon v Traffic Commissioner, the only Scots case relating to judicial review to which I was referred in this context. I note it was also the basis of challenge in King v East Ayrshire Council 1998 SC 182, and formed a material part of the submission for the defenders in the case referred to in the relevant footnote in Clyde and Edwards on Judicial Review at para.13-21, namely Kwik Save Stores Ltd v Secretary of State for Scotland 1999 SLT 193. Although in Reg v DairyTribunal, ex p Caswell observations were made on the court's powers to refuse relief in an application for judicial review if it considered that the grant of relief could be detrimental to good administration, that decision related to the interpretation of section 31(6) of the Supreme Court Act 1981, and is not, I think, of significant help in this case, particularly where the first respondents do not take any point about detriment to good administration.

[52] As to acquiescence, there is not doubt about the principles which fall to be applied. These were referred to in Hanlon v The Traffic Commissioner and more recently in William Grant & Sons Ltd v Glen Catrine Ltd. It is enough to notice that in the latter case the Lord President (Rodger) referred (at p923) to two conditions: "first, the pursuer acts in such a way that he intimates that he consents to an act which has been done and, secondly, he thereby induces others to do that from which they might otherwise have abstained".

[53] In this case there is dispute about factual matters which could be material. In the first place, it is not agreed what was said at the meeting in June 2004, and what parties took from that meeting. There is, it seems, no agreement as to what the second and third respondents understood thereafter in respect of the petitioners' intentions. There is dispute as to whether it could be said that the second and third respondents, in reliance on what they took to be the petitioners' consent, started work when they did. There is no agreement as to what consequences, in particular financial consequences, there have been for the second and third respondents which might otherwise have been avoided if the present proceedings had been raised earlier. In these circumstances, I would not, I think, have been able to decide the question of delay and acquiescence which the second and third respondents sought to raise without hearing evidence.

[54] In the whole matter, however, I shall sustain the fourth plea-in-law for the first respondents and the second plea-in-law for the second and third respondents, and refuse the craves of the petition.