Scottish Court of Session Decisions

STATUTORY PROVISIONS AND POLICY GUIDELINES

"25. Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise.

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.

(2) In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations"

The Structure Plan which was in force at the time of the decision was the Highland Structure Plan Written Statement (March 2001). The council's retailing aims were set out in paragraph 2.3.1 which provided inter alia as follows:

"Maximisation of accessibility to community facilities and services is a key objective of the Structure Plan. Shopping is an essential part of life for most people and access to a range of quality shops, particularly fresh food stores, makes an important contribution to the health of communities. It is important therefore that planning policies secure a pattern of shopping provision that is convenient to all sectors of the community. Equally it is important that the quality of provision meets the needs and aspirations of the communities served. Failure to do so can result in households travelling further to obtain goods and services which in turn makes them more expensive, and reduces local expenditure to the detriment to the local and regional economy. Retailing can also offer significant employment benefits. The Plan's strategic themes relating to accessibility to goods and services and consolidating the settlement hierarchy are particularly relevant to shopping provision. To meet the Plan's objectives and be consistent with the Structure Plan strategy, policies seek to encourage the highest level of shopping provision in each settlement, consistent with its potential shopping role and its catchment population."

"Policy R1 Shopping Hierarchy
Development proposals which consolidate the shopping hierarchy and enhance the role of individual settlements as shopping centres will be supported.

Policy R2 Everyday Shopping Needs

Development which safeguards and enhances the local provision of facilities to meet everyday needs will be encouraged, and proposals which potentially undermine such provision will not normally be permitted.

Policy R4 Major Food Stores

In small and medium sized towns, food store provision will normally be located within town centres or within edge of centre locations. In the largest settlements, more localised provision will be encouraged where it is well related to existing and proposed housing. Where major food store proposals are adjudged to pose a potential risk to the vitality and viability of local services, the development will not normally be permitted."

(In support of policy R4, paragraphs 2.3.6 and 2.3.7 provided that

"In small and medium sized towns a town centre location would be most accessible to all households within the catchment. At the same time the development would reinforce the attractiveness of the town centre for local people and visitors alike. In certain circumstances, however, making a site available in the town centre may be problematic because of amenity or traffic congestion and alternative sites may need to be considered. Any new proposal for retail development must, however, demonstrate that the sequential approach to site identification has been followed....In the smaller and medium sized towns a further increase in the spread of food stores is possible, together with the enhancement of existing provision. In some cases upgrading of stores on existing sites may not always be possible and alternative sites may need to be found.")

"R5 Town centre shopping

Retail developments in town centres will generally be encouraged. Development proposals which are adjudged to undermine the vitality and viability of existing town centres will be resisted."

"Where a proposed development is not consistent with the development plan, it is for the developer to demonstrate why an exception to policy should be made. Such proposals should be rigorously assessed by the planning authority against the policies set out in this NPPG and should be refused if all the following considerations cannot be met. The proposed development should -

(a) Satisfy the sequential approach....

(c) Be capable of co-existing with the town centre without individually or cumulatively undermining its vitality and viability, if necessary supported by planning conditions limiting, for example, floor space or the range of goods sold or the level of car parking; and should not lead to changes to the quality, attractiveness and character of the town centre, affecting the range and types of shops and services that the town centre would be able to provide, or undermine leisure, entertainment and the evening economy..."

"... each council is expected to define a set of maximum parking standards for that council's area. However, for a small number of significant travel-generating land uses as set out in table 2, there is a national interest in ensuring that council parking standards are no less restrictive. These national standards apply to the whole of any development which breaches the size threshold and to all motor vehicle parking other than that provided for disabled people. If a council wishes to approve a development of a category and size set out in table 2, with less restrictive parking standards, they will have to refer the application to the Scottish Ministers under the Town and Country Planning (Notification of Applications)(Scotland) Amendment Direction 2003. The Scottish Ministers will then decide whether to allow the council to proceed or whether to call in the application for their own determination."

Petitioners' submissions in support of their attack on the way in which the respondents approached the decision

(a) Retail

(ii) Lack of analysis on the impact on Thurso town centre and local services

(iii) Leakage of expenditure from the catchment area

Submissions for the respondents on the petitioner's attack on the way in which they approached the decision

(a) The question of the weight to be given to material considerations is a matter of planning judgment exclusively for the planning authority, unless it lapses into Wednesbury unreasonableness. The petitioners do not rely on Wednesbury unreasonableness in this petition.

(i) Any alleged discrepancies regarding floor space within the RIA did not demonstrate any lack of rigour on the respondents' part. The respondents proceeded on the basis of table 5 in the RIA, and a figure of 3,817 square metres net floor space; this was broadly consistent with the figures shown at paragraph 3.21 of the RIA. She adopted the explanation provided on behalf of Tesco (on which see below).

(ii) With regard to the lack of analysis of impact on Thurso town centre or local rural services, this was a matter of planning judgment, and in the exercise of that judgment the respondents did not consider that it was necessary to analyse the impact on Thurso town centre. This would not meet the test for a Wednesbury challenge, if such a challenge had been mounted, nor does it demonstrate a lack of rigour in the assessment. Moreover, these matters had all been circulated to councillors before the meeting on 24 April 2006, and it was clear from Mr Pritchetts' affidavit (No.15/3 of process), that this was one of the matters discussed at the hearing.

(iii) With regard to the alleged lack of evidence regarding leakage away from the catchment area, the RIA dealt with Tesco's experience and feedback from customers. In any event, counsel reminded me of the decision in the petition of John Simson (referred to above - see particularly paragraph 23 of Lord Abernethy's opinion). This is a good example of the principle that it is for the respondents to decide how much information they need to enable them to assess and decide upon a planning application.

(iv) With regard to the inclusion of Orkney and Shetland in the secondary catchment area, this was a matter addressed in the director of planning and development's report to committee. Furthermore, it was for the members of committee to decide whether to proceed on this basis, and this was precisely the sort of area where members would bring to bear their own knowledge and experience of the locality to the issue.

(v) With regard to the petitioners' assertion that it was difficult to accept the trade diversion estimate, the same points as raised above applied. This was a matter for the respondents' planning judgment. The petitioners pointed to discrepancies between the RIA and the GVA report (No.6/40 of process), but again it was a matter of planning judgment for the respondents whether they should look at that report, which used very different methodologies from the RIA in this case. There was no attempt to set out a Wednesbury challenge in this regard, which was the only challenge which might competently have been made, and this point, whether alone or with others, did not demonstrate a lack of rigour in the respondents' assessment.

(i) With regard to the alleged discrepancies in net floor space, there were in fact no such discrepancies. The figure of 4,761 net square metres in paragraph 1.6 of the RIA included all floor space to which the public had access, including areas such as toilets and other areas not falling within retail floor space. The figures in paragraph 3.21 do not include such other areas of floor space, and related only to net retail floor space. The figures in table 5 for convenience and comparison floor space were the same as in paragraph 3.21, the total floor space of 3,817 being slightly larger because it included areas beyond the check out tills. There were accordingly no inconsistencies in the RIA figures, and this would have been readily intelligible to those who are used to reading retail impact assessments.

(ii) With regard to the criticism that there was no separate mention in the report to committee or the minutes of the committee of 24 April 2006 relating to the impact on Thurso town centre, senior counsel made two points. First, it was clear from reading the RIA that approximately the same impact was predicted for Thurso as for Wick (see paragraph 3.30 of No.6/4 of process). It would have been otiose for members to go through the same exercise for Thurso as was done for Wick. Second, and in any event, the petitioners did not get across the threshold of showing that this would have made any difference to the result (see Glidewell LJ's observations in the Bolton MBC case).

(iii) With regard to the alleged lack of rigour in not requiring Tesco to provide supporting evidence to back up their own experience regarding leakage from the catchment area, in order to succeed on this point the petitioners would have to persuade the court that no reasonable planning authority would have taken on trust statements made by Tesco in this regard. Not only was this a matter for the respondents' planning judgment, there was no attempt by the petitioners to advance such a case.

(iv) With regard to the inclusion of Orkney and Shetland in the secondary catchment area, the caveats made in paragraph 3.7 of the RIA were a complete answer to the point. If sales to residents of Orkney and Shetland were less than estimated, the result would not be a larger effect on Wick or Thurso, but simply a smaller turnover for this store. Again, there was no evidence to suggest that this factor played any significant part in the respondents' decision; moreover the petitioners would need to show Wednesbury unreasonableness in order to rely on this factor, and they do not suggest this.

(v) The petitioners' position regarding trade diversion estimates, and their reference to the GVA Grimley report (No.6/40 of process) amounts to no more than a criticism of the respondents' planning judgment, and even this criticism carries little weight because the two studies adopted different methodologies. That report was prepared in order to justify the granting of planning permission for an Asda store in Thurso; its conclusion was that there was ample capacity for such a store, not on the basis of any leakage to Inverness but on the basis that stores in Caithness were significantly over-trading. Both the GVA Grimley report and the RIA in the present case suggested that there was plenty of available spending in Caithness to enable further retail development. Accordingly, even on the basis of planning judgment, the criticism is ill-founded and it is not one which would have been likely to have swayed the council.

Response for the petitioners on their attack on the way in which the respondents approached the decision

(i) On floor space, the approach of the RIA, which included the concept of "net floor space" was unconventional. The failure to question this approach suggested that the respondents' assessment was less than rigorous, and there was a real possibility that this would have made a difference to their decision.

(ii) With regard to the lack of analysis of impact on Thurso town centre, the Halcrow report suggested that Tesco's calculations depended largely on attracting spend from Thurso, and it was likely that both sub-regional centres would sustain an impact. While it might be a matter for planning judgment as to what should be included in a planning officer's report, the crucial questions were (a) why not include Thurso in the analysis and (b) if the respondents were analysing this point rigorously, why did they not seek more information about the impact on Thurso.

(iii) Again with regard to leakage, counsel was not suggesting that there was Wednesbury unreasonableness on the part of the respondents; he was however seeking to draw the inference from the failure to insist on further evidence that they had not rigorously assessed the point.

(iv) With regard to the inclusion of Orkney and Shetland in the secondary catchment area, the point was made against the petitioners that if the islands were left out of the calculations, this would simply result in a smaller turnover for the Wick store. However if one aspect of the study is unreliable, this will tend to cast doubt on the other figures and other elements in the assessment. There was nothing in the minutes of the meeting on 24 April 2006 to suggest that councillors applied their local knowledge to this point.

(v) With regard to the point that the GVA Grimley study for the proposed Asda store in Thurso employed a different methodology, counsel submitted that it was a reasonable inference from this study that there was not a high level of leakage from Wick and Thurso.

[30] Counsel submitted that the argument that a degree of rigour could be found wanting on the part of the respondents does not meet Glidewell LJ's test of "real possibility" in Bolton MBC, but when one looks at the material as a whole, he submitted that that test was indeed met.

"I do not doubt that where, coupled with lapse of time, there have been actings or conduct fitted to mislead, or to alter the position of the other party to the worse, the plea of mora may be sustained. But in order to lead to such a plea receiving effect, there must in my judgment have been excessive or unreasonable delay in asserting a known right, coupled with a material alternation of circumstances, to the detriment of the other party."

"Failure to take prompt action by way of judicial review may lead a court to infer from silence and inactivity that a person is acquiescing in a changed state of affairs, whatever it may be, in the field of administrative law. As was stated in Watt v Secretary of State for Scotland, judicial review is a process designed to give speedy consideration to problems which arise and where time is of materiality. In such a situation potential litigants should lose no time in raising proceedings otherwise they face the risk of a possibly successful plea of mora, taciturnity and acquiescence."

"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."

"The important point to note for present purposes is that there is no Scottish authority which supports the proposition that mere delay ... will do. It has never been held that mere delay is sufficient to bar proceedings for judicial review in the absence of circumstances pointing to acquiescence or prejudice."

The passage in Assets Co Limited v Bain's Trustees quoted above remains the basis of our law. The test in England is different for the raising of judicial review proceedings, which must be moved "promptly and in any event within three months ...". This required to be borne in mind when looking at the English cases - for example, in the Greenpeace case the court held that there was ample evidence to mount a challenge by way of judicial review after 21 November 1995, but the application was not made until 30 June 1997; it was not surprising that the court held that the petitioner had not applied "promptly" as required by order 53.

(i) All the authorities support the general principles enunciated in the Greenpeace case. This was not surprising - it was clearly in the interests of justice that petitions for judicial review should be raised without delay.

(ii) On 24 April 2006 the petitioners had the means of knowing what the decision was. Moreover, they had the report by the director of planning and development, to which most of their criticisms were directed. They therefore had the basis of their case on 24 April 2006.

(iii) With regard to the point made by senior counsel for the petitioners that, on the basis of the certificate attached to the planning application, the petitioners could not reasonably have foreseen that Tesco would acquire the site after planning permission was granted, it should be noted that the applicants on that form were not just Tesco, but also Highlands and Islands Airports Limited. Any developer (including the petitioners) would know that no supermarket developer would commit to purchasing a site without planning permission. On the basis of the Assets Co v Bain's Trustees test, all that is required is a simple change of position. The decision by Tesco to acquire the site was taken just before work started. Contractors moved onto the site on 1 July 2006, and the decision to acquire and to treat the purchase as unconditional was made shortly before that.

(iv) The point made on behalf of the petitioners regarding purification of conditions was simply a retrospective attempt to justify delay - it was clear from the chronological summary given on behalf of the petitioners that the existence of these conditions played no part in the elapse of time between the decision and the service of the petition. Anyone with experience of the planning system knows that there are always disputes between developers and planning authorities as to whether conditions have been complied with. The law required a potential petitioner to raise a petition for judicial review, or at the very least to give notice of the possibility of such a petition, without delay. There was no benefit to a potential petitioner by leaving an interested party second-guessing as to what might happen. If the petitioners had given notification of the possibility of a judicial review petition, Tesco would have required to undertake an appraisal as to what action they should take. They did not do this. Acquiring a property when no challenge is anticipated is quite a different matter from acquiring a property when there is a possibility of challenge. All that was required of the interested party to enable their plea of mora to be sustained was to show that they did in fact alter their position in reliance on the decision having been granted, before the petition was raised.

Discussion

(1) The petitioners' attack on the way in which the respondents approached the decision

"The test to be applied by the court was that it should only interfere when the decision maker's interpretation was perverse in that he has given to the words in their context a meaning that they could not possibly have or restricted their meaning in a way that the breadth of their terms could not possibly justify. There was ample authority in other areas of the law for this Wednesbury approach to the question."

This was amplified in the Virgin Cinema Properties case as follows:

"Since a planning policy does not confer rights or impose duties that are legally enforceable, I cannot see that it could ever be a matter for the court to determine its meaning as matter of law for the purpose of deciding an issue arising from the making of a planning application. The decision whether to grant or refuse planning permission is an administrative decision which is only susceptible of review on the well established principles of administrative law. Any conclusion that is formed by the decision maker as part of that decision can, in my judgment, be challenged only on Wednesbury grounds unless it is a conclusion of law. A conclusion on the meaning to be attached to a statute or a statutory instrument or a planning permission (which confers a legal privilege) is a conclusion of law, and a court can, accordingly, determine whether the conclusion is correct. A conclusion on the meaning of a planning policy, on the other hand, is a matter for the decision maker in the case. On review, the role of the court, in my judgment, is to say whether the decision maker has attributed to the policy a meaning which he could not reasonably have attributed to it or, in forming his conclusion, has taken into account irrelevant matters or disregarded matters that were relevant. The court thus determines the ambit of reasonableness, which is a matter of law."

This approach is entirely consistent with the observations of the Second Division in Freeport Leisure Plc v West Lothian Council, which was specifically concerned with interpretation of NPPG 8. It is also consistent with Lord Hodge's decision in the petition of John Findlay.

(2) Title and interest to sue

[53] Although arguments on title and interest are frequently run together, there is a distinction between the two. Lord Dunedin was not disposed to risk a definition of what constitutes title to sue in 1914, and I am no more disposed to do so in 2008. The respondents did not challenge the petitioners' title or interest to sue, but senior counsel for the interested party mounted a challenge under both title and interest. I think that it is fair to categorise his attack on the petitioners' title as being less whole hearted than his attack on their interest, and that his attack on their title with regard to retail issues was less vigorous than that with regard to parking issues. I need say no more with regard to retail issues than that the petitioners have qualified title by lodging objections on retail issues with the respondents before they made their decision. This is sufficient to create the legal relation between the petitioners and respondents which gives the petitioners a right, which they alleged the respondents infringed. Indeed, senior counsel for the interested party conceded that the petitioners may have established title with regard to a challenge on retail policies.

(3) Mora, taciturnity and acquiescence

Decision
[62] In the result, I shall refuse the plea in law for the petitioners; I shall refuse the first plea in law for the respondents and the second plea in law for the interested party; and I shall sustain the second plea in law for the respondents and the third plea in law for the interested party. For the reasons given above, I shall dismiss this petition.