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OUTER HOUSE, COURT OF SESSION

[2006] CSOH 49

OPINION OF LADY CLARK

OF CALTON

in the Petition of

JOHN SIMSON

Petitioner;

against

ABERDEENSHIRE COUNCIL AND OTHERS

Respondents:

for

Judicial Review

________________

Petitioner: J.D. Campbell, Q.C., Carruthers; Thorntons

First Respondents: M.E. McKay; Cameron McLenna (Scotland) LLP

Second and Third Respondents: Ms Wilson; Shepherd & Wedderburn

24 March 2006

1. Procedure at First Hearing

[1] On 9 and 10 February 2006, I heard submissions relating to the petition by Mr John Simson for Judicial Review of a decision to grant full planning permission dated 20 July 2005 by Aberdeenshire Council. The first respondents are Aberdeenshire Council who are the responsible planning authority whose decision is challenged. The second respondent is West Coast Energy Limited, a company incorporated under the Companies Acts. The second respondent is described as involved in the planning and designing of a wind energy development at Tullo Farm, Laurencekirk, Aberdeenshire (hereinafter called the "development") for the third respondent and acting as agent for the third respondent. The third respondent is, Tullo Wind Farm Limited, a company incorporated under the Companies Acts and constituted as a joint development company for the purpose of carrying out the development. Answers were lodged on behalf of the first, second and third respondents. Outline written submissions were provided by counsel at my request.

[2 ] Except in relation to one matter, it was possible to deal with the facts in so far as relevant to the issues in the petition and answers by way of ex parte statements made by counsel who referred to the various documents produced. The matter with which I was not able to deal related to paragraph 15 of the answers for the second and third respondents which made detailed averments about the business and financial arrangement of the second and third respondents. Counsel for these respondents wished to pray these averments in aid as additional factual information in support of her first plea in law which is founded on mora. No documentation or affidavit evidence in relation to these averments was available at the first hearing. Senior counsel for the petitioner submitted that I should not rely on these averments without some form of proof. I considered his submission was well founded. I decided to deal with the main issues in the petition in order to minimise delay in proceedings, particularly as one of the issues in the case related to the effect of delay. I advised that before issuing a final determination, the case would be put out By Order so that parties would be given an opportunity to consider my opinion and address me as to whether they wished further procedure to deal with the matter outstanding.

2. Legislative structure

[3 ] The Town & Country Planning (Scotland) Act 1997, as amended, provides:

"37.--- (1) Where an application is made to a planning authority for planning permission -

(a) subject to sections 58 and 59, they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or

(b) they may refuse planning permission.

. . . .

(3) Subsection (1) has effect subject to sections 34 and 35 and to the following provisions of this Act, and to sections 59(1), 60 and 65 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997."

The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 provides:

" 59. --- (1) In considering whether to grant planning permission for development which affects a listed building or its setting, a planning authority or the Secretary of State, as the case may be, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."

. . . .

" 60.--- (1) This section applies where an application for planning permission for any development of land is made to a planning authority and the development would, in the opinion of the authority, affect the setting of a listed building."

[4] The Environmental Impact Assessment (Scotland) Regulations 1999, as amended, provides :

" 2. - (1) . . . . "environmental information" means the environmental statement including any further information, any representations made by anybody required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;

"environmental statement" means a statement -

(a) that includes such of the information referred to in Part I of Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b) that includes at least the information referred to in Part II of Schedule 4"

" 3. - . . . . (2) The relevant planning authority or the Scottish Ministers shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so."

"10. - (1) A person who is minded to make an EIA application may ask the relevant planning authority to state in writing their opinion as to the information to be provided in the environmental statement (a "scoping opinion").

(2) A request under paragraph (1) shall include -

(a) a plan sufficient to identify the land;

(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and

3. Facts

[5 ] The petitioner lives in a 17^th century house called "Gallery". Gallery is a Category A listed building located in the area of Angus Council. Category A is the category of listing allocated by Historic Scotland to buildings in Scotland of national or international importance, either architectural or historic, or fine, little altered examples of some particular period, style or building type. Gallery is a building of national importance.

[6 ] An application for full planning permission dated 6 October 2003 was submitted to the first respondents, in name of the third respondent specifying the second respondents as agent (7/1 of process). The application sought planning permission for erection of eight wind turbine generators, a sub-station, the construction of access tracks and ancillary development. Gallery is located approximately 9.2 kilometres to the south-west of the location of the nearest turbine in the development. The application for planning permission was submitted along with supporting documentation which included a document called by the second and third respondents an environment statement in support of the application. (7/1 of process). The said statement was treated by the first respondents as an environmental statement for the purposes of the Environmental Impact Assessment (Scotland) Regulations 1999 as amended (hereinafter referred to as the 1999 Regulations). The environmental statement had been developed out of a scoping exercise in which the views of interested parties and consultees were sought in particular about methodology. The scoping report was dated 13 September 2002 (12/1 of process). Discussions on behalf of the second and third respondents took place with the first respondents and various consultees including Scottish Natural Heritage and Angus Council. As a result of this process, the second and third respondents developed the scope of the environmental statement. In particular, the area of the original proposed study area was extended and the number of selected viewpoints which were part of the methodology to assess landscape and visual impact were increased. This was done to reflect concerns of Scottish Natural Heritage which specifically asked that an assessment should be made of the historic gardens and landscapes at Arbuthnott House, Glenbervie House and Fasque. The finalised environmental statement included specific assessment of these listed buildings and gardens in accordance with the viewpoints agreed with Scottish Natural Heritage. These matters were included in the environmental statement within a section dealing with landscape and visual impact assessment (7/1 vol. 2 paras 5.11.5-8). Gallery is also located in the study area.

[7 ] Thereafter on 7 and 14 November 2003 the planning application was advertised in accordance with the statutory requirements under Section 34 of the Town & Country Planning (Scotland) Act 1997 and the 1999 Regulations. No advertisement was made under Section 60 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The period for objection to the planning application ended on 22 November 2003. The period for representations to be made in relation to the environmental statement ended on 8 December 2003. The results of the consultation process are summarised in the report to the first respondents' Planning Committee dated 29 June 2004 (7/2 of process). In addition to many representations from members of the public, there was extensive consultation carried out by the first respondents including local community councils, statutory consultees, various sections of the Council Services and other private and public groups who the first respondents considered might have an interest in the application.

[8 ] One of the consultees was Historic Scotland. Historic Scotland is an agency of the Scottish Executive with particular expertise and responsibility in relation to listed buildings. Historic Scotland has published guidance called the Memorandum of Guidance on Listed Building and Conservation Areas (1998). By letter dated 4 December 2003, the first respondents sent to Historic Scotland, a copy of the planning application form and plans asking for any comments on the proposal within a short time scale (7/19 of process). Sometime prior to 29 January 2004 Historic Scotland considered the environmental statement. By letter dated 29 January 2004, Historic Scotland replied to the first respondents and made detailed comments about the content of the environmental statement in relation to their statutory archaeological interests. In conclusion, it was stated on behalf of Historic Scotland "I can however confirm that, in terms of our listed building and designed landscape interest, we are content to agree with the findings of the environmental statement." (7/13 of process).

[9 ] The environmental statement does not contain any information dealing with listed buildings and their settings except as explained above in paragraph 6 in relation to Arbuthnott House, Glenbervie House and Fasque. There is no mention in the environmental statement of Gallery or its setting.

[10 ] On 8 June 2004 the application for planning permission called before the first respondents' planning committee. Consideration of the application was deferred to 29 June 2004 to allow for a site visit and to give the planning services department of the first respondents an opportunity to comment on a late submission by Scottish National Heritage unconnected with listed buildings and their settings.

[11 ] By letter dated 26 June 2004 and received by the first respondents on 28 June 2004, the petitioner intimated his objection to the grant of planning permission for the development (7/3 of process). The petitioner did not make any case based on the Class A listing of Gallery or refer specifically to any effect on the setting. His principle objection was that the development would have adverse landscape and visual impact in relation to Gallery.

[12 ] On 29 June 2004 the first respondents' Planning Committee met in public session and gave an opportunity to some objectors to address the Committee. The timetable was relaxed to permit the petitioner to do so. The petitioner expressed regret at the negative impact which the development would have upon the view from Gallery (7/4 of process).

[13 ] The Committee considered the report of the Planning Officer dated 21 June 2004 which recommended the grant of planning permission (7/2 of process). Said report contained no mention or assessment of Gallery and/or its setting. The report did contain reference to the opinion of Historic Scotland which was summarised as follows:

"Historic Scotland confirm that in terms of their listed buildings and designed landscapes they agree with the contents of the environmental statement ..."

Having considered the content of the report and heard submissions, both in favour and against the grant of planning permission, in accordance with the first respondents' scheme of delegation, the Planning Committee agreed that authority to grant full planning permission for the development be delegated to the Head of Planning and Building Control. Permission was subject to the negotiation of an agreement in terms of section 75 of the Town & Country Planning (Scotland) Act 1997 and the imposition of certain conditions designed inter alia to preserve visual amenity.

[14 ] By letter dated 22 July 2005 the first respondents gave notice to the second respondent of the decision to grant planning permission subject to conditions set out in the letter which included a condition in the interests of visual amenity and landscape protection (7/6 of process).

[15 ] A separate application for planning permission in respect of wind turbine generators and associated development referred to in this case as the East Bradieston development was made to the first respondents. The East Bradieston development is approximately 2 kilometres closer to Gallery than the development promoted by the second and third respondents. From at least March 2004 the petitioner was aware of and was opposed to this application (6/12 of process). The second and third respondents are not involved in the East Bradieston Development. The application for planning permission for the East Bradieston Development was refused by the first respondents. One of the reasons for refusal was the cumulative effect taking into account that the development promoted by the second and third respondents had been approved. The first respondents' refusal was appealed and a public inquiry has been held. Evidence at the public inquiry was prepared and led in relation to said cumulative effect. The reporter who heard the appeal had not issued a decision at the date of the first hearing of this judicial review.

[16 ] The petitioner lodged the present petition for judicial review on 18 October 2005. The second and third respondents have not commenced construction of the development.

4. Submissions on behalf of the parties

[17 ] Senior counsel for the petitioner relied on the terms of Section 59(1) of the Town & Country Planning (Listed Buildings and Conservation Areas (Scotland) Act 1997. He submitted that there was a clear duty on the first respondents as planning authority to comply with said section. The first respondents had manifestly failed to do so because it was clear that Gallery or its setting was never specifically considered by the first respondents. In particular, the first respondents had never considered whether the development affects the setting of Gallery. A decision about that was a precursor to fulfilling their duty under Section 59(1) "to have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which is possesses". He prayed in aid the Memorandum of Guidance issued by Historic Scotland in particular at page 202:

"It is seldom possible to assess with certainty from plans alone whether a proposed development ... will affect setting. It is therefore of the greatest importance to check on site the relationship of the proposal to adjacent buildings and structures, planned landscapes and landscape features before reaching a decision."

[18 ] Senior counsel for the petitioner contrasted the absence of information available about Gallery with the specific consideration in the environmental statement which was given to other listed buildings in the area of the scoping study namely Arbuthnott House, Glenbervie House and Fasque and their settings. In the absence of any information, he stated the first respondents never were in a position to make a planning judgement as to whether or not there was an effect on Gallery or its setting and if so, whether it was a significant effect. The first respondents required to apply their own mind to the environmental statement which was obviously incomplete in that it did not include Gallery or its setting. The first respondents should have ensured that Gallery and its setting were examined to see (1) what in the exercise of the first respondents' planning judgement, constituted the setting; (2) whether in exercise of a planning judgement there was an effect on Gallery or its setting; and (3) if so, whether it is a significant effect. He referred to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, the Lord President at page 347:

"A decision of the Secretary of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided to him. In particular, it will be ultra vires if it is based upon a material error of law going to the root of the question for determination. It will be ultra vires, too, if the Secretary of State has taken into account irrelevant considerations or has failed to take account of relevant and material considerations which ought to have been taken into account".

[19 ] It was submitted that the first respondents in exercising their planning judgement failed to take account of material considerations and in any event, had failed to properly carry out their statutory duty under Section 59(1). He further criticised the position of the respondents who suggested that there was some duty incumbent upon the petitioner to draw to their attention that a listed building or setting were affected by the development. He pointed out that the statutory duty falls only upon the first respondents. Further and in any event, the petitioner submitted that the respondents are not now entitled to claim that the setting of Gallery will not, as a matter of fact, be affected by the development in the absence of any attempt to address the issue and make such a judgement prior to the granting of planning permission.

[20 ] In response, counsel for the first respondents submitted that on a proper interpretation of Section 59(1) of the Planning (Listed Buildings and Conservation Areas (Scotland) Act 1997, the first respondents were to have special regard to the desirability of preserving the setting of a listed building only where they considered that the setting was affected. In the present case, it not being considered by the first respondents' planning authority that the setting of Gallery was affected and no environmental information or representations to that effect having been received as at the date of the decision, the duty under Section 59(1) did not arise. The decision making of the first respondent must be seen in context. This was an application to which the Environmental Impact Assessment (Scotland) Regulations 1999 applied. Regulation 3(2) directs that the planning authority shall not grant planning permission for an EIA development unless it has first taken "environmental information" into consideration. That term was defined in Regulation 2(1). Part I of Schedule 4 set out the information which should be included. Counsel for the first respondent spent some time dealing with English provisions, said to be equivalent to the Scottish provisions, to illustrate that in considering the environmental statement, the planning authority was not to have regard to "every scrap of environmental information", but rather the likely significant environmental effects. He made reference to R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 406 at page 82, et seq.; R v Cornwall CC ex parte Hardy [2001] Env LR 473 paragraph 58-61; Smith v Secretary of State for the Environment and the Regions [2003] Env LR 32 at page 693. He emphasised the importance of considering the whole process, the consultation with statutory consultees and other public consultation. He submitted that in interpreting the duty on the planning authority under Section 59(1) of the Planning (Listed Buildings and Conservation Areas (Scotland) Act 1997, it should be understood that the planning authority should first exercise its discretionary planning judgement as to whether the setting of the listed building was affected. If the answer to that was negative, the planning authority did not have to take the further mandatory step of having special regard to the desirability of preserving the building or its setting.

[21 ] As to the meaning of "affects" in this context it was submitted that this could only mean affects in a material or significant way under reference to Bearsden and Milngavie DC v Secretary of State for Scotland [1992] SC 276 and R v South Hertfordshire Council DC ex parte Felton [1989] 3 PLR 81 at page 87D-E. Counsel for the first respondents accepted that there may be cases where the planning authority was plainly wrong in reaching a view that the setting was unaffected. The case of R v South Hertfordshire Council DC ex parte Felton [1989] 3 PLR 81 was given as an example, but this was not such a case. In the context of the present development, there had been a complex process of consultation over a long period resulting in an environmental statement which thereafter was subject to further consultation including reports by statutory consultees. The inclusion in the environmental statement of the listed buildings, Arbuthnott House, Glenbervie House and Fasque showed the successful way in which this process had worked. The first respondents were entitled to take into account the clear view of the statutory consultee, Historic Scotland expressed in their letter of 29 January 2004 (7/13 of process). It followed therefore that the first respondents were entitled to reach a view as a result of the process and information gathered that there were no listed buildings other than those considered in the environmental statement which were affected by the development. It was not necessary, as senior counsel for the petitioner submitted, that the first respondents should have had specific information as to whether or not Gallery or the setting of Gallery was or could potentially be affected by the proposed development. Counsel for the first respondents also referred to Clyde and Edwards, Judicial Review [2000] at paragraph 21.05 R v Bolsover DC ex parte Paterson [2001] JPL 211 and Ampliflaire v Secretary of State for Scotland 1999 SLT 97 pages 939-940.

[22] In support of the first respondents' plea of mora, counsel relied upon the history of the public consultation process and the opportunity afforded to the petitioner to make representations at the committee meeting of 28 June 2004 when he had failed to state that he sought to preserve the setting of a listed building. The first respondent noted that the substantive decision to grant planning permission had been reached at said committee meeting, albeit formal planning permission following execution of an agreement was not granted until 20 July 2005. He referred to Clyde and Edwards, Judicial Review at paragraph 808 and R v Derbyshire CC ex parte Murray [2001] Env LR 494, 505. He also stressed that the first respondents had an interest in maintaining the smooth administrative operation of the planning system. He emphasised that a planning appeal, relating to the East Bradieston Development in which the first respondents were a party, had been held but not yet reported in circumstances where cumulative effect was a major issue. If the present application for Judicial Review was granted, this would also have potential implications for the East Bradieston Inquiry. He submitted that the petitioner had been aware of the development since November 2003 and was aware that a substantive decision had been made at the committee meeting on 29 June 2004.

[23 ] Certain criticisms were also made of the petitioner's pleadings, in particular that it was insufficient merely for the petitioner to aver that the setting of Gallery was affected without providing some factual information on which the court could form a view that the setting was affected.

[24 ] Counsel for the second and third respondents adopted the submission of the first respondents. I did not understand that she wished to develop any significant new lines of argument in support of these submissions. She did have new and additional submissions to make in relation to mora but for the reasons explained in paragraph 2, I did not deal with these submissions at the first hearing.

5. Discussion

[25 ] The complex statutory provisions relating to the determination of an application for planning permission for development of land are to be found in a number of different statutory regimes. The main provisions regulating the determination are to be found in Section 37 of the Town & Country Planning (Scotland) Act 1997 but additional or different provisions may be relevant, as in this case, dealing with various special controls. In my opinion, the effect of Section 37(3) is that the planning authority before determining the application must comply with Section 59(1), 60 and 65 of the Planning (Listed Buildings and Conservation Areas) Scotland Act 1997 in so far as relevant. Section 65 which applies to conservation areas is not relevant in this case. In addition the planning authority have a duty in terms of Regulation 3(2) of the 1999 Regulations not to grant planning permission unless they have first taken the environmental information which is specified in said Regulations into consideration. The decision of the first respondents must be considered in the context of the relevant statutory provisions applying to the various stages of the planning process.

[26 ] The averments in the petition and the submissions made on behalf of the petitioner are directed to the stage of the planning process where the first respondents consider whether to grant planning permission for a development. That is the reason reliance is placed on Section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. In particular, the challenge is made to the decision to grant full planning permission dated 20 July 2005. This is not a case which is founded on an alleged failure of the planning authority to apply Section 60 of the Planning (Listed Buildings and Conservation Areas) Scotland Act 1997 in the initial stage of the planning process. Under Section 60(1) where an application for planning permission for any development of land is made to a planning authority and the development would, in the opinion of the authority, affect the setting of a listed building, there are duties on the planning authority in terms of section 60(2) to (4). But if the planning authority does not form such an opinion, then it need not comply with the further provisions in Section 60(2) to (4). The application for planning permission in this case was dealt with on the basis that this was not a development which in the opinion of the planning authority, would affect the setting of listed buildings. The first respondents accordingly advertised the application for planning permission for the development in terms of the relevant provisions in the Town and Country Planning Act 1997 and the 1999 Regulations but not in terms of Section 60 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. No material was placed before me on behalf of the petitioner to demonstrate that the first respondents were not entitled to make such a planning judgment at that stage and proceed as they did in November 2003. Indeed, senior counsel for the petitioner did not focus on this stage of the process. In my opinion it is necessary to have regard to this in order to understand the context in which the first respondents finally came to reach a decision about the planning application for the development.

[27 ] Senior counsel for the petitioner concentrated his attack on the alleged inadequacy of the environmental statement and the failure of the first respondents to specifically consider the setting of Gallery. Although it may appear odd at first sight that some listed buildings, but not Gallery and its setting, were specifically considered in the environmental statement, I do not think that the criticisms are well founded. In my opinion the proper approach to this case is the general approach submitted by counsel for the first respondents and adopted on behalf of the second and third respondents. The cases cited by counsel for the first respondents referred to in paragraph 20 were helpful in illustrating how the Environmental Impact Regulations are designed to work, although there was no particular dispute about that.

[28 ] As is apparent from the 1999 Regulations, there is a structured system designed to provide inter alia a description of the aspects of the environment likely to be significantly affected by the development, including the architectural and archaeological heritage, landscape and interrelationship between these factors. It is plain that the first respondents took an active part in the process set out in the Regulations and that there was substantial consultation both before and after the submission of the environmental statement. It is also plain that the process was effective in identifying aspects of the environment, including listed buildings and gardens likely to be significantly affected by the development. It was the consultation involving Scottish Heritage that resulted in a number of significant changes to the ambit of the study, including the specific inclusion of Arbuthnott House, Glenbervie House and Fasque. During the statutory consultation process the statutory consultee, Historic Scotland advised that in terms of the listed building and designed landscape interest they were content to agree with the findings of the environmental statement which did not of course include any specific reference to Gallery. At the conclusion of the process under the 1999 Regulations, it is plain that the first respondents had before them on the date of their decision on 21 June 2004 the specific views of Historic Scotland. The first respondents had no information to suggest that Gallery or its setting was affected. Nothing had changed in relation to these matters at the date of the decision to grant full planning permission on 20 June 2005. I am not prepared to accept that the first respondents in all the circumstances required to do more. It is a matter of planning judgment whether a development affects a listed building or setting. On the history, as I understand it, there are no grounds to interfere with the first respondents' decision. I am not persuaded therefore that the first respondents failed in their duty under section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. Senior counsel for the petitioner also asked me to analyse the case on the basis that the first respondents had failed to take account of relevant and material considerations. In my opinion for the reasons I have given, the history does not demonstrate that. If I am wrong about that and there was such a breach of statutory duty or such a failure to take account of relevant and material considerations, I would have concluded that the decision was ultra vires.

[29 ] Even if I had concluded that the first respondents had acted ultra vires, I would not be prepared to exercise my discretion in favour of the petitioner to grant the equitable remedy of reduction in the circumstances which I am able to consider at this stage of proceedings. The second and third respondents have averments in answer 15 which I have not considered for the reasons explained. As these circumstances may also be relevant, albeit in relation to specific alleged prejudice to the second and third defenders, I am not able to express a concluded view in relation to this aspect of the case. Further procedure is required.

[30 ] I have considered the cases which counsel for the first respondents cited in relation to delay but they must be seen in the context of English proceedings where there are time limits for judicial review cases and in any event turn upon their particular facts. In this case the application for planning permission was made on 6 October 2003 and since that date there has been substantial consultation and publicity. This is not a case in which the petitioner claims that he has been wrongly denied the opportunity to participate in the planning process or indeed to be heard in the planning process. The decision to delegate the authority to grant planning permission subject to negotiation of a planning agreement was made on 29 June 2004 and was intimated to the petitioner. It was submitted by senior counsel for the petitioner that the decision of 29 June 2004 was not challengeable by Judicial Review. I do not accept that. If the petitioner's case is well founded now, it was well founded then. But even if the submission of senior counsel is correct, the result would be that the petitioner had many months in which to seek advice and be in a position to act expeditiously when the decision about final planning permission was made on 20 July 2005. After that decision some twelve weeks elapsed before the present petition was intimated. Senior counsel for the petitioner explained that during that period the petitioner required to seek advice, consider the financial implications and funding and that a holiday period also intervened. I take into account that the petitioner is a private individual and not a commercial organisation involved in planning development work. These can be difficult and expensive decisions for lay members of the public. I am however persuaded that good administration requires some certainty and this is a case in which there has been a great deal of public participation over a lengthy period. In addition, I am influenced by the fact that there has been an appeal hearing in relation to another development, the East Bradieston development, where the existing planning permission relating to the present development has relevance to the cumulative effect of the East Bradieston development. The parties to that appeal would in my opinion be prejudiced if the planning consent for development in this case was now reduced. Time and money would be wasted and parties to the appeal would require to reconsider their positions. In all these circumstances, I am not persuaded that this would be an appropriate case to grant the discretionary remedy sought.

[31 ] I do not intend to pronounce an interlocutor at this stage and the case will be put out By Order to enable parties to consider further procedure.