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OUTER HOUSE, COURT OF SESSION

[2007] CSOH 88

P6/07

OPINION OF LORD CARLOWAY

in the petition of

EDGAR ROAD PROPERTY COMPANY LLP,

Petitioners

against

MORAY COUNCIL,

First Respondents

and

BRITISH LAND COMPANY PLC

Second Respondents

for

Judicial Review of a decision of the first respondents to allow the sale of open class 1 non-food goods from Units 2a, 2b and 2c at Springfield Retail Park, Edgar Road, Elgin

________________

Petitioners: Smith Q.C., Simpson; Simpson & Marwick W.S.

First Respondents: Upton; Morton Fraser W.S.

Second Respondents: Currie Q.C., Munro; Semple Fraser LLP

29 May 2007

1. Planning Context and Facts

[1] The city of Elgin is the primary retailing centre in Moray. The future location of retailing outlets serving the city is subject to National Planning Policy Guideline 8, which, essentially, stresses the importance of protecting the vitality and viability of existing town centres. The Guidelines are reflected in the relevant development plan; the Moray Development Plan 2000 (no. 6/28 of process), which is a combination of the approved Local and Structure Plans. It creates a presumption in favour of retail development in the town centre. In relation to retailing outwith the town centre, the Plan narrates that proposals for such development "will not normally be permitted where there is an alternative location for such development better located to the existing town centre". The general policy is stated thus (L/R6):

"There is a presumption against approval of ... out-of-centre developments unless the developer can demonstrate either that the proposal would only (sic) comply with the Moray 2000 development plan retailing strategy, including provisions within individual town plans, or justify a departure from them. That demonstration will have to include consideration of alternative sites within and closer to the defined town centres, and the likely effect on their viability and vitality. In so doing, developers will be particularly, but not exclusively, required to give consideration to the following:

i) the demand for additional retail provision and the likely impact upon the existing types of retailing in the town centre ... likely to be affected. The Council will seek a formal Retail Impact Assessment where there is likely to be an adverse impact."

[2] The plan specific to Elgin recognises another area of the city as established for retail use. This is the "Edgar Road Retail Park", which is situated some distance to the south of the city centre. The policy relative to the Retail Park (RET Edgar Road Retail Park) is as follows:

"Since 1980, the council has operated a policy of accommodating appropriate out-of-centre retailing at Edgar Road only, and nowhere else around the town ... The Edgar Road ... Retail Park ... is now an established retail provision for Elgin, and for all of Moray. It has helped, and continues to help, in maintaining the area's competitiveness with Inverness and Aberdeen. It has recently been expanded with the permission for a new 6,000m² Asda store. A further planning permission has been granted for 3,902m² gross of non-food retailing. The designation ... at Edgar Road incorporates only those sites for which permissions for retail use have been granted.

Proposals for non-food or bulky-goods retailing to take up the approved floor area will be welcomed. Development proposals which would change the character of the retail park, as described in the preceding paragraph will be subject to policy L/R6."

The designated area consists of land to the north of Edgar Road, upon which an ASDA superstore operates as unrestricted Class 1 permission, in terms of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (SI 1997 No. 3061). It sells about two thirds food and one third non-food items, including clothing. The area also consists of two parcels of land to the south of the Road. On the eastern portion, B&Q are established, selling household and DIY goods. The second respondents own the western portion. In about 1988 the second respondents obtained planning permission (6/2) for the erection of the second phase of their Springfield Retail Park as part of the overall Edgar Road Retail Park. In terms of a condition of that Class 1 non-food goods permission, as varied in 2000 (6/3):

"The sale of goods shall be restricted to household goods (such as carpets, furniture and electrical goods) and bulky DIY items of the type sold in retail warehouses and all items ancillary to the foregoing".

The second respondents built their retail park. Ultimately, after further approved planning changes, it consisted of three units, two of which were subdivided. Homebase and General George traded from Units 1a and 1b and Currys from Unit 3. Internacionale, Carpetright and Texstyle World traded from Units 2a, 2b and 2c. Each of the Unit 2 sub-division has a floor space of 926m², totalling about 30% of the second respondents' 9,165m² Springfield Retail Park. That park itself comprises about one third of the total Edgar Road Retail Park.

[3 ] The petitioners own a site on the north side of Edgar Road, a little to the west of that of the second respondents. This is known as the Elgin City Sawmills site. It is not "conterminous" with any part of the Edgar Road Retail Park, albeit very close to it. The petitioners obtained title to the site from their parent company, Robertson Group Limited, soon after their own creation in November 2005. In 2002 another subsidiary of the Group had applied for 7,897m² of Class 1 non-food goods retail warehousing on the Sawmills site. The first respondents favoured this development but the application was called in by the Scottish Ministers. In a report dated January 2005, issued after a public local inquiry in September 2004, a Scottish Executive Reporter recommended the grant of that permission (6/31). In so doing, he was of the view that the permission was not in accordance with all the Development Plan policies, which had been explored in some detail. One consideration in favour of granting permission was the proximity of the site to the existing Edgar Road Retail Park. By letter dated 18 May 2005 (6/21), the Scottish Ministers confirmed their intention to follow the reporter's recommendation. Meantime, a further local inquiry, held before a different Reporter in December 2004, examined an application for similar retail warehousing at a site known as the Auction Mart. This site was also relatively close to, but to the east of, the Edgar Road Retail Park. The applicants were MacDonald Estates plc but the Robertson Group was represented at the inquiry as objectors. In the first respondents' submissions to the Reporter (6/19), it was argued that the evidence favoured the grant of only one of the two proposed retail warehousing developments. In April 2005 the Reporter recommended refusal of permission for Auction Mart site (6/23). He concluded that development of that site would be consistent with policy L/R6 only if one permission were granted for retail warehousing at that time (paras 6.17, 7.6). It appears to have been assumed by the Reporter that confirmation of the Sawmills permission was likely to be forthcoming. Partly on that basis, or at least because the Sawmills site was seen as better integrated with the Edgar Road Retail Park, the Auction Mart appeal was recommended for dismissal. That recommendation was followed by the Scottish Ministers on the same day as they confirmed the petitioners' own permission (6/22).

[4 ] As matters stood in mid 2005, the Edgar Road Retail Park was established, with outlets for food retailing and some unrestricted non-food retailing in ASDA and with household and bulky goods retailing at B&Q and the second respondents' Springfield Retail Park. Nearby, the petitioners had an unrestricted non-food permission and they began work to construct their own retail warehouse premises for let to interested retailers. As this involved the conversion of a brown-field site, considerable expenditure was required. Meantime, a draft revised local plan dated September 2005 (6/29) suggested incorporation of both the Sawmills and Auction Mart sites as part of an expanded Edgar Road Retail Park. In October 2005, the second respondents applied for a variation of the condition restricting their own permission to allow for open Class 1 non-food goods retailing from Units 2a, 2b and 2c (6/4). The plan attached to the application defined the application site as that occupied by these Units rather than the Springfield Retail Park as a whole. The second respondents did not intimate the application directly to the petitioners (who had not then been formed) or to any other member of Robertson Group. Although it featured as a complaint in the petition, it was ultimately accepted that there was no legal obligation on the second respondents to have done so. In that respect, the petitioners' first plea-in-law concerning lack of notification must be repelled.

[5 ] The relevant statutory provisions on the notification of planning applications are contained in the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (SI 1992 No 224). These require that certain neighbours of the development site be notified; notably those whose land is "conterminous with or within 4 metres of" the site, provided that the neighbour's land is within 90 metres of the actual development (regulation 2). The petitioners' land did not fall within that definition. However, since the application amounted, potentially at least, to a departure from the Development Plan, the first respondents were obliged (in terms of the Town and Country Planning (Development Contrary to Development Plans) (Scotland) Direction 1996 (annexed to Planning Advice Note 41) to advertise its existence in the local newspaper. The petitioners did this and the "Northern Scot" carried the advertisement on 17 February 2006 (7/1). It reads: "Vary condition 2 of consent ... to allow for the sales of open class 1 non-food goods from units 2a, 2b and 2c at Springfield Retail Park, Edgar Road, Elgin". Reference was made to the planning policies quoted above. In a frank admission in an affidavit by William G Robertson (11, para 4), the principal of the petitioners, the advertisement was "missed" by the Robertson Group. No representations were made by the petitioners in opposition to the application for variation of the condition.

[6 ] The second respondents' application met with no opposition at all. It was accompanied by a detailed submission by the firm of surveyors presenting it (6/6). Part of this submission was a "Retail Analysis" (para 5.0 et seq), which predicted minimal impact (0.64%) on the town centre as a consequence of the proposed variation. There were further discussions about impact between the surveyors and the first respondents' planning officials (7/2). In due course, the officials tendered a report on the application to the planning committee (6/7). This outlined the proposal, the site and the planning history. Appended to it, the various relevant Development Plan policies, including L/R6 and RET Edgar Road Retail Park (supra) were set out in full. The body of the report, which recommended approval, reads as follows:

"... Policy L/R6 accepts the principle of out-of-centre retail development where this represents a neighbourhood scheme or is ancillary to an existing business. The Edgar Road retail policy specifically supports this development, and emphasises non-food and bulky goods retailing. Other proposals must accord with policy L/R6.

As defined in the Development Plan and the Edgar Road Retail Policy, this area is established as a retail development. The proposed variance to allow for food retail does represent a departure from the Edgar Road Retail policy, but this is considered to be acceptable and a precedent is already established by the nearby Asda store."

This passage contains a glaring error, since the application was for non-food goods and not for a food consent. The fact that it was for non-food goods is made clear in the description of the proposal at the start of the same report. The copy of the report in process contained a handwritten insertion mark between "for" and "food" and, again handwritten, the words "Robertson also (Sawmills site)" after "Asda store". It was explained, and not contradicted, that the error in the report had been corrected orally at the committee meeting. In that respect it would have been correct to say that there was precedent for open Class 1 non-food goods at both ASDA and the Sawmills site.

[7 ] On 29 March 2006, the application for variation was approved. The Minute of the meeting (6/8) noted that:

"the application had been advertised as a departure to which no objections had been received and therefore, were the Committee minded to approve the application, a Hearing would not be required. After consideration the Committee agreed to approve the application ..."

No reasons for the approval were minuted. There was no need for such reasons to be given. According to the petition, it was not until around 20 June that the petitioners became aware of the variation. This occurred when a potential tenant, a national clothing retailer, withdrew from negotiations with the petitioners in favour of locating in the second respondents' unrestricted unit. The petitioners aver that the "marketability, and therefore the value, of the petitioners' retail development have been compromised on account of" the approval of the variation.

[8 ] On 23 June 2006, the petitioners' law agents wrote (6/5) to the first respondents requesting copies of the second respondents' application, the planning permission and associated documents. Reminders on 30 June, 4, 12 and 19 July followed. This last communication referred to the petitioners having sought the advice of counsel. On 7 August, Mr Robertson met with the first respondents' convenor, Mr E Coutts, and expressed his concerns that the Robertson Group was being unfairly treated. According to Mr Robertson in his affidavit, Mr Coutts had showed "absolute shock" on reading that the approval had been at a meeting which he had attended. In a letter (6/36) to the first respondents, dated 22 August and referring to that meeting, Mr Robertson maintained that the approval of the variation had been contrary to Development Plan policy and could have detrimental impacts on the Sawmills site development and the town centre. On 1 September, planning consultants engaged by the petitioners wrote to the first respondents (6/26) raising issues concerning the competency and merits of the variation application. They asked the first respondents what they intended to do about these matters. On 21 September, the petitioners' law agents again wrote to the first respondents (6/9) with a view to summarising the criticisms and "to make a clear statement with regard to the remedy which is sought". This letter states that:

"... [the petitioners] have decided to make a formal complaint rather than go down the Court route. They are anxious that the working relationship of the parties can be conserved, which would be jeopardised by a Court Process".

What they sought was revocation of the approval.

[9 ] By letter dated 10 November (6/10), the first respondents eventually replied to Mr Robertson's letter of 22 August. They detailed the history of the application and accepted that the findings at the previous local inquiries had been material considerations. The decision to approve the variation was explained as follows:

"The application was recommended for approval and Committee were advised that if minded to approve the application, a departure hearing would not be required as no objections were received on the application following notification and advertisement procedures.

The application was an amendment to a previous planning permission ... and it was considered acceptable for the applicants to define the site around the three units which were the subject of the application and the correct neighbour notification was carried out accordingly.

The application was supported by the submission of a Retail Assessment regarding the impact on the viability and vitality of Elgin town centre in accordance with Council policy and Government guidance as contained in NPPG8 - Town Centres and Retailing. This assessment demonstrated that there would be no adverse impact on Elgin town centre. The basis of the recommendation to permit planning permission as an acceptable departure from policy was on the strength of the above and also on the grounds that precedent had already been established by the nearby ASDA store for open Class 1 retailing within the Edgar Road Retail Park".

The first respondents stated that they would not be revoking the approval.

[10 ] The petitioners' law agents responded by letter dated 28 November (6/11). They described the explanation as "entirely inadequate" and repeated, at some length, the petitioners' complaints before ending with a request for a "full response" within seven days, which failing action would follow. At the same time (6/12), they brought the matter to the attention on the Scottish Executive. Meantime, Mr Robertson had discussed the matter with another councillor, Mr Sim. According to Mr Robertson, Mr Sim too had seemed surprised that the approval had been granted at a meeting which he had attended. The first respondents replied twice to the letter of 28 November. First, on 30 November (6/13) they said that they would respond to the petitioners' complaint by 5 January. Secondly, on 11 December (6/16) they did respond stating that their earlier replies had covered the relevant issues. They pointed out that if the petitioners' criticisms were well founded then "there are judicial remedies which are available". They repeated that the first respondents would not be revoking the permission. On 4 January 2007, the petition for judicial review was lodged.

[11 ] There is no suggestion that the second respondents were aware of the exchange of correspondence between the petitioners and the first respondents. The second respondents aver that, after the approval, they:

"launched a marketing campaign to identify open class 1 non-food retailer demand for units ... undertook redevelopment and refurbishment of the park with a view to new lettings and engaged in extensive negotiations with existing and prospective tenants".

They aver that "Substantial costs have been incurred in this process". The detail of the work done by the second respondents is set out in two letters (7/3 and 7/4) from the land agents instructed to market the Unit. These agents had quickly identified a significant number of interested national retailers and conducted negotiations to lease units with at least two of these, including a clothes retailer. Conditional agreements had been reached. They progressed plans, including further planning applications, which the petitioners received notification of in October 2006, to redesign and re-divide Unit 2 into four outlets and to extend it by creating a fifth (7/6). The costs of this have been in excess of £57,000. They negotiated with the three existing tenants to relocate, one of these to one of the smaller units with the other two leaving the Springfield Retail Park altogether and possibly moving to the Sawmills site. The tenant who was "downsizing" was paid an agreed £400,000 to do so. There have been substantial legal fees incurred also in relation to the negotiations and agreements.

2. Submissions

(A) MORA, TACITURNITY AND ACQUIESCENCE

[12 ] The second respondents opened the hearing. They maintained that any right which the petitioners had to seek the remedy of reduction of the decision was barred by mora, taciturnity and acquiescence. Mere delay was not enough, but delay plus acquiescence and prejudice, in the sense of a material alteration of position, barred the claim (R (Burkett) v Hammersmith and Fulham LBC [2002] 1 WLR 1593, Lord Hope of Craighead at paras 61-63; Assets Co v Bain's Trs (1904) 6 F 692, Lord President (Kinross) at 705; Atherton v Strathclyde Regional Council 1995 SLT 557, Lord Cameron of Lochbroom at 558; Singh v Secretary of State for the Home Department 2000 SLT 533, Lord Nimmo Smith at para 11). The petitioners had been aware by June that the second respondents were actively seeking tenants. In the context of retail warehouse development, the delay thereafter was unreasonable. The second respondents had materially altered their position and incurred substantial costs on the strength of the variation and would be prejudiced were reduction to be granted. They had engaged in a marketing campaign, incurred expense, paid a large sum to a tenant and proceeded with further planning applications.

[13 ] The first respondents founded upon the terms of the letter from the petitioners of 21 September (supra), which expressly stated that the petitioners had decided not to go down the route of court proceedings. This amounted to a "waiver" of their right to do so and no prejudice on the part of the first respondents was required. For the plea to succeed, it was sufficient that the first respondents had conducted their affairs on the basis that the right to proceed to court had been abandoned (Bell: Stair Memorial Encyclopaedia sub nom "Personal Bar" para 1630, following Armia v Daejan Developments 1979 SC (HL) 56, Lord Fraser of Tullybelton at 69). The first respondents had conducted their affairs on the basis that court proceedings would not follow, in that they had been induced to make a full and candid response to the petitioners' complaint in their letter of 10 November (supra). Since there was no mention of "waiver" in the first respondents' pleadings, they offered to amend to include this as a specific plea-in-law.

[14 ] The petitioners maintained that the length of time, which it had taken to raise the petition, could be satisfactorily explained. Acquiescence could not be inferred from silence and there was insufficient material to demonstrate that the petitioners ought to have been aware of any significant prejudicial actings by the second respondents. For the plea to be sustained, the actings had to be such as indicated that the petitioners had truly abandoned their right to challenge the decision (Hanlon v Traffic Commissioners 1988 SLT 802, Lord Prosser at 805; Pickering v Kyle and Carrick District Council, unreported, 20 December 1990, Lord Penrose at pp 53-55; Atherton v Strathclyde Regional Council (supra) and Uprichard v Fife Council 2000 SCLR 949, Lord Bonomy at 955-956, 959). The correspondence demonstrated that the petitioners had acted in a manner consistent with their seeking revocation of the consent. Although the petitioners, as developers themselves, would have been aware that the second respondents would proceed to negotiate with tenants after the variation had been obtained, they would not have been aware of the detail of the discussions or the stage which they had reached. The petitioners had objected to the second respondents' planning applications to sub-divide and to extend Unit 2. The petitioners could not have anticipated that the second respondents would have proceeded to conclude tenancy agreements in advance of a decision on these applications. The second respondents had not specified how their various costs were divided relative to the lodging of the petition. The petitioners suspected that there would be a claw-back provision in relation to the payment to the "downsizing" tenant. The petitioners had also not reached concluded bargains with the other two tenants of Unit 2.

(B) TITLE AND INTEREST

[15 ] Both respondents pleaded that the petitioners had no title and interest to bring the proceedings. The second respondents maintained that the petitioners had made no serious attempt to set out their title and interest in the petition. The petitioners were founding upon planning policies intended to protect the town centre, yet their development was no closer to the town centre than that of the second respondents. At its highest, the petitioners' complaint was that the marketability and value of their development had been adversely affected by the variation. However, title in a planning context required to be derived, in the case of an objector, from a statutory right to object. The petitioners accepted that there had been no obligation to notify them and therefore they had no title to raise the petition (Simpson v Edinburgh Corporation 1960 SC 313, Lord Guest at 315-316). Title and interest could not be derived from mere injury to commercial interests. There had to be some legal right which had been infringed or denied (Bondway Properties v City of Edinburgh Council 1997 SLT 127, Lord Philip at 131-132, following D & J Nicol v Dundee Harbour Trs 1915 SC (HL) 7, Lord Dunedin at 12-13; Bett Properties v The Scottish Ministers 2001 SC 238, Lord MacFadyen at paras 17, 18 and 36).

[16 ] The first respondents adopted the second respondents' submissions, but added three remarks. First, the petitioners' submissions on title and interest (infra) had left their averments behind. Secondly, the petitioners had not been in existence when the application had been made. Thirdly, the petitioners had failed to make representations at the appropriate time. It was accepted that the petitioners had been given all the notification that they had been entitled to. They could have made representations under and in terms of section 38 of the Town and Country Planning (Scotland) Act 1997 (c 8). Had they done so, the first respondents would have been bound to take them into account. Their failure to do so resulted in them having no standing to apply for a judicial review of a decision taken in the absence of such representations (Hollywood Bowl (Scotland) v Horsburgh 1993 SLT 241, Lord Osborne at 244; Scottish Planning Encyclopaedia paras A.1012-1013). The petitioners had failed to exhaust the remedies open to them by objecting and their failure to object meant that they were not in any legal relationship with the first respondents (Bradley: Stair Memorial Encyclopaedia Vol 1 sub nom "Administrative Law" at para 304; cf Steeples v Derbyshire County Council (infra)). Since the "failure to exhaust remedies" had not featured anywhere in the pleadings, the first respondents sought to amend their answers again by adding an appropriate plea-in-law. The first respondents also submitted that the petitioners' contentions regarding "legitimate expectation" (infra) were not well founded. There had been no mention of this principle in the pleadings. In any event, there was no basis for it in fact. The first respondents had not required to treat the second respondents' application in the same way as that of the petitioners since the former alone had benefited from a site specific policy (infra). The petitioners had obtained their permission after applying even stricter criteria to it.

[17 ] The petitioners submitted that they did have title and interest to sue because of three matters. First, they were members of the public who, as major developers, had a strong interest in the Development Plan. They had an interest in seeing that the Development Plan was adhered to. In particular, they had an interest in seeing that the character of the Edgar Road Retail Park was not changed other than in terms of policy L/R6. The Development Plan was a statement to the public about how the planning authority would deal with applications and the petitioners were entitled to expect compliance with the Plan. Absence of objection was not a bar to proceeding by way of judicial review. Secondly, the petitioners, or at least their predecessors in title, had been in a legal relationship with the first respondents. They had both been involved in the processing of the petitioners' own application and both had been involved in the two public local inquiries. The first respondents' position at the inquiries had been to support the petitioners' development and to oppose any other on retail impact grounds. The petitioners had a "legitimate expectation" that the first respondents would adopt the same approach in relation to the second respondents' application (Miller Group, Petitioners, 28 December 1989, unreported, Lord Clyde at 3-4; Scottish Planning Encyclopaedia, Lord Reed at paras A.5024-5025). Thirdly, there was a "convention" that a person with a planning consent should be allowed time to implement that consent before any similar development were approved. The issue of title should not be approached too narrowly (D & J Nicol v Dundee Harbour (supra), Lord Dunedin at 12; Scottish Old People's Welfare Council, Petitioners 1987 SLT 179, Lord Clyde at 184; Air 2000 v Secretary of State for Transport 1989 SLT 698, Lord Dervaird at 700). It was sufficient if the petitioners were "closely affected" by the decision (Air 2000 v Secretary of State for Transport (No. 2) 1990 SLT 335, Lord Clyde at 338). Despite Lord Dunedin's position (in D & J Nicol v Dundee Harbour (supra) at 17), it was helpful to look at the position in England, where the test adopted was similarly a "closely affected" one (Wade : Administrative Law (9^th ed) p 699; Steeples v Derbyshire County Council [1985] 1 WLR 256, Webster J at 290, 295-6).

[18 ] The averments in the petition are somewhat rambling and repetitious in content. The task of focusing the relevant points of substance was left to oral argument at the hearing. The lack of focus in the written pleadings was reflected by a plea-in-law of the vaguest kind, which reads "The respondent having acted unlawfully as averred in the petition, the decision should be reduced". Under reference to the well known dicta of the Lord President (Emslie) in Wordie Property v Secretary of State for Scotland 1984 SLT 345 (at 347) and Glidewell J in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343 at 352, the petitioners attacked the planning merits of the decision to approve the variation. Their starting point was section 25 of the 1997 Act, which provides that planning decisions "shall be made in accordance with the [development plan] unless material considerations indicate otherwise". The first respondents' decision had failed to apply that test or to have regard to material considerations. The approval had been contrary to L/R6. It would change the character of the retail park in terms of the RET Edgar Road Retail Park policy by having a significant part of the park made over to non-household and non-bulky goods, such as clothes. The report to the committee had been "deeply flawed and wholly inadequate" for what was an important development. It appeared that the reporter had been considering a "food" rather than "non-food" application. If that was right, and in any event, the report ought to have addressed policy L/R6, but it did not. Although an impact study had been produced by the second respondents, the report made no mention of it. The study had not taken into account the impact of the petitioners' site. From the absence of references either to the policy or the study in the report, it could be inferred that the first respondents had failed to consider L/R6 and the issue of impact on the town centre, yet in terms of NPPG 8 (supra), they were supposed to make a rigorous assessment of the proposal.

[19 ] The committee should have considered both the impact of the variation on its own and in conjunction with other developments, including the Sawmills site . The committee may not have been made aware of the first respondents' earlier position at the public local enquiries that only one development out of the Sawmills and Auction Mart sites ought to proceed. As the first respondents had argued that position, it was remarkable that it had not been mentioned to the committee when it was being asked to allow further development by virtue of the variation. The affidavit of Mr Robertson concerning his conversations with councillors confirmed their lack of awareness of the issues. In addition, the report had not made any reference on the impact on bulky goods retailers, who might be forced to relocate from the second respondents' retail park, nor had it referred to the convention in planning practice to allow an approved development to become established before granting a further application for a similar development. Finally, the application had been defective because it was a variation of a permission granted in respect of the whole of the second respondents' retail park, yet the map attached to the application "red-lined" only Unit 2.

[20 ] The first respondents submitted that the approval had been in accordance with the Development Plan. In terms of the specific RET Edgar Road Retail Park policy, proposals for non-food or bulky-goods retailing were to be welcomed in the retail park, which included the second respondents' retail park. It was only if development proposals were to change the character of the Edgar Road Retail Park as a whole that L/R6 was applicable. The approval did not change the character of the Park. It related only to a small part of it. There was no need for the report to explore L/R6. The error in the report concerning "food" and "non-food" had clearly been a mistake and this had been corrected. If the report were to read "non-food" then the precedent of ASDA was material. In any event, the error produced a stricter test than was actually applicable. It would have prompted the reader to suppose that the approval amounted to a departure from the Development Plan, when it was not. The retail impact study had considered the petitioners' site. The study had been considered by the first respondents' officials. It had not been tendered to the planning committee but it could have been, had questions been asked. There was no need to bring to the attention of the committee a problem which did not exist. Little weight ought to be attached to Mr Robertson's affidavit containing, as it did, second hand accounts of the reactions of two councillors out of the twenty four who had attended the meeting. The fact that L/R6 was not specifically mentioned in the report did not carry with it an inference that it had not been considered. NPPG8 did not over-rule the local planning policies.

[21 ] The first respondents' line at the public local inquiry relative to the Auction Mart site was not relevant to the approval of the variation. The reporter's concern had been in relation to the phasing of development at two different sites. Here, what was involved was the relaxation of a planning condition in respect of a small part of an established site. The planning committee had within it a wealth of knowledge and experience concerning the sites and the applications. The suggestion that the decision had been made in ignorance of these matters was artificial. Mr Robertson's affidavit did not suggest that either councillor had been unaware of the first respondents' position at the previous inquiries. There was no evidence that, in arriving at the decision, the committee had taken into account any irrelevant considerations or failed to take account of relevant ones. There was no convention of the type referred to by the petitioners. In any event it was not suggested that this convention was applied in Moray. Finally, the "red-line" point was misconceived. In terms of paragraph 3(c)(i) of the 1992 Order (supra), an application required to be accompanied with a plan sufficient only to identify the land to which it related. That provision had been complied with.

[22 ] The second respondents were content to adopt the submissions of the first respondents. The planning committee had had a similar composition for a number of years and its members were interested specifically in the situation in Elgin. Some members (two) had given evidence at the inquiries. The problem being addressed was one which most small towns have had to deal with over the years. It was a common problem. It was wholly naïve to proceed on the assumption that, every time an application was made, there was a requirement for officials to set out its history. It was to be assumed that the official had acted responsibly in deciding what to put into, and what to omit, from the report. All that this application was concerned with was a relaxation in respect of 30% of the second respondents' site, which itself formed only one third of the total Edgar Road Retail Park. The retail impact study had dealt with the issue of impact, including that of the petitioners' site. There was no material from which it could be said that the approval would have a significant impact on the town centre, yet this was fundamental to the petitioners' submission.

3 Decision

(A) MORA, TACITURNITY AND ACQUIESCENCE

[23 ] There have been a number of attempts in the recent past to persuade the Court that delay in bringing judicial review proceedings should of itself operate as a bar, having regard to the need for certainty and efficiency in certain fields of administrative law, notably planning (see Pickering v Kyle and Carrick District Council (supra) at 50); Uprichard v Fife Council (supra) at 955). It is recognised that the principles of mora, taciturnity and acquiesce, as they have been developed in private law fields such as contract, do not sit entirely easily in the arena of public administration (Pickering v Kyle and Carrick District Council (supra) Lord Penrose at 53). Perhaps because of this, the Court has occasionally ventured to suggest that the determination of whether a plea of mora is made out in the context of judicial review is a matter for the court's discretion having regard to a variety of factors, including the need for sound administration (Uprichard v Fife Council (supra), Lord Bonomy at 956). The Court does appear to have approached the matter from that angle at times (Atherton v Strathclyde Regional Council (supra), Lord Cameron at 559). However, although the idea of the Court's decision on the plea being one of discretion was floated during the hearing in this case, it was, quite correctly, not pursued by any party. The decision is not a discretionary one but one involving the Court determining whether the party founding upon it has established that the plea is applicable on the facts presented.

[24 ] The common law principles surrounding the plea remain broadly intact. Mere delay is not enough. There must be the additional elements of taciturnity and acquiescence (Assets Co v Bain's Trs (supra), Lord President (Kinross) at 705, followed in Singh v Secretary of State for the Home Department (supra), Lord Nimmo Smith at 537; R (Burkett) v Hammersmith LBC (supra), Lord Hope at 1613). Lord Penrose's analysis in Pickering v Kyle and Carrick District Council (supra at 55) certainly clings onto the common law principles, but his test bears repetition here given its specific planning context:

"The essence of the plea ... is that the person or persons having a legitimate ground of challenge refrain from exercising the rights which flow from that ground of challenge, or from intimating an intention to exercise those rights, in circumstances in which, to their knowledge, the holder of a planning permission proceeds with material operations in reliance upon the permission, and so alters his position that there would be loss or other form of prejudice to him if the permission were to be reduced".

This is a relatively restrictive test and perhaps more so than the one applied by Lord Prosser in Hanlon v Traffic Commissioner (supra at 805), where he addressed the "reasonableness" of the delay. For present purposes, however, I will proceed upon the basis that it is an accurate reflection of the current law.

[25 ] So far as the first respondents' position is concerned, the petitioners' letter of 21 September (supra), stating that they had "decided to make a formal complaint rather go down the Court route" does not amount to a waiver of their right to use that route subsequently, depending on how matters developed. Read in context, the letter is no more than an intimation of the petitioners' then intention so far as resolving the dispute was concerned. Furthermore, the first respondents do not appear to have approached the contents of the letter as meaning that no court proceedings would ever be raised. Rather, as their letter of 11 December (supra) makes clear, they were of the view that judicial remedies remained open to the petitioners. The first respondents certainly provided a detailed response to the petitioners after receipt of the letter of 21 September, but that is what would be expected of a responsible local authority. There is no basis for supposing that this response was prompted by a promise not to sue. In addition, even although the first respondents offered to amend by including a plea-in-law relative to waiver, that plea could not properly have been sustained in the absence of averments specifically founding upon the letter, whose contents were explored only in oral argument.

[26 ] Apart from indulging in correspondence with the petitioners, the first respondents do not appear to have acted in any way to their own prejudice as a result of the petitioners' failure to raise judicial proceedings. From about June, some three months after the approval, they were aware of the petitioners' concerns and it would have been difficult for them to plead some form of bar on the petitioners' part given the nature of the petitioners' letters. In short, the first respondents have not made out their pleas of mora, taciturnity and acquiescence or waiver and these pleas will therefore be repelled.

[27 ] The second respondents' position is different. The petitioners are developers themselves, also engaged in retail warehousing. They would have been aware that, once approval for unrestricted Class 1 non-food goods use had been granted, the second respondents would set about marketing the relevant part of their site on that basis and would incur substantial expense in so doing. From at least June, the petitioners were aware that the second respondents were marketing their site and, apparently, engaging with potential tenants. They would have been aware that contracts of lease would be likely to be negotiated. By about October, they were aware of the second respondents' applications for planning permission to modify and extend Unit 2. During this period from June until the end of the year, the second respondents appear to have been busy proceeding on the basis of the approval. They acted accordingly in incurring significant expense. Although the degree of expenditure, after the variation came to the notice of the petitioners, may not be as great as the totals set out in the letter from the land agents, it has still been considerable in terms of both time and money. Reduction of the variation would accordingly cause the second respondents substantial prejudice. At no point, during the six month period from June until the end of the year, does it appear that the petitioners ever intimated to the second respondents that they were challenging the approval and might take legal proceedings to reduce it. In these circumstances, the test for mora, acquiescence and taciturnity described above has been made out and. The second respondents' plea must be sustained accordingly.