Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 138
P190/09	OPINION OF LADY CLARK OF CALTON in the Petition of SAINSBURY'S SUPERMARKETS LIMITED Petitioners; for Judicial Review of Decisions of Perth and Kinross Council taken on 17 December 2008 ­­­­­­­­­­­­­­­­­________________

Petitioners: Martin, Q.C., Burnet; Shepherd & Wedderburn

Respondents: R Smith, Q.C., Mure; Biggart Baillie

Interested Third Parties: Findlay; Paull & Williamsons, LLP

9 October 2009

Summary of history prior to 17 December 2008
[1] The planning history is complex. The history is referred to in the Petition in paragraphs 1 to 27 and the answers thereto. It is also referred to in pages 3 to 5 of 22A of process and in the chronology 23 of process. In very broad terms, from about 2003 it was recognised that there was an under provision of retail floor space in Crieff in respect of both convenience and comparison goods. A number of potential retail sites were considered. Two main sites became potential contenders for the development of this retail provision. I refer to these sites as the Market Park site and the Duchlage Farm site. The Market Park site development involved the loss of some recreational ground and the loss of the traditional site for the Crieff Highland Gathering but the developers provided for such uses in their proposals at Pittenzie Road. It was recognised that both in commercial and planning terms, the type of retail development proposed should take place on one site only.

The parties to this judicial review

[2] The supporters of the development of the Market Park site include the owners of the site and they are involved in some form of arrangement with the petitioners. The owners of the Market Park site are Crieff Highland Gathering Ltd. In about 1983 they leased the site to the respondents. The respondents are Perth and Kinross Council. They are the planning authority responsible inter alia for planning in Crieff. The terms of the lease are set out in 6/7 of process. The period of said lease is 1 April 1983 to 31 March 2043. The fact that the respondents have rights, as tenants over the Market Park site for an extensive period under the terms of the lease, is important in the circumstances of this case. In terms of said lease, for a period up to 4 weeks, Crieff Highland Gathering Limited are entitled to use the Market Park site to organise and hold the Crieff Highland Gathering. In terms of said lease, the respondents have certain responsibilities for the site leased. In terms of clause (fifth) the respondents are obliged to operate the ground leased as a public park and recreational ground. The owners of the Market Park site are in dispute with the respondents about the said lease. That dispute is the subject of separate court proceedings yet to be determined. The interested third parties are The King Group Limited, King Development Co. Limited and A & L King (Builders) Limited. They have some form of interest in the Duchlage Farm site and are supportive of the respondents' position in relation to the issues in dispute in this action.

The respondents' decision making

[3] Prior to 2004 various planning applications were lodged in respect of said sites. On 27 October 2004 the respondents deferred three applications pending a working group report (7/1 of process). A study by GBA Grimley was commissioned by the respondents and reported in June 2005 (6/8 of process). A consultation exercise was undertaken by the respondents and the results are reported in 6/9 of process. A report by the Executive Director (Planning and Transportation) (6/2 of process) was made to the Enterprise and Infrastructure Committee on 24 August 2005. This report recommended that the new retail development should be located at Duchlage Farm. The minutes of the Enterprise and Infrastructure Committee paragraph 613 (7/3 of process) recorded that the Enterprise and Infrastructure Committee resolved that

"(1) The Duchlage Farm area be identified as the preferred location for a new supermarket in Crieff, as part of a planned approach to the development of the whole area between Market Park and the site of the new Crieff Secondary School..."

On 2 November 2005 the Development and Control Committee resolved to refuse the application for retail development at Market Park for a number of reasons noted in the minute (7/2 of process). This decision was appealed under the Town and Country Planning (Scotland) Act 1997. On 30 November 2005 a report was submitted to the Enterprise and Infrastructure Committee of the respondents recommending "(i) that a draft development brief be prepared and consulted on for the wider area between Market Park and the site of the new Crieff Secondary School to include the site for a new supermarket and other uses....(ii) to recommend to the Development Control Committee that an application for a new supermarket at the Duchlage Farm area is determined on the basis of the development brief for the wider area. (7/4 of process). The report in paragraph 6 of 7/4 of process considered that

"the best approach in planning terms...would be an alteration to the local plan, or to await the review of the plan. However the preparation of an alteration would take a number of months and would be likely to result in a public enquiry. This will delay the process by over a year but given current commitments to other major projects, this could be significantly longer. The applicants have the option of appealing against deemed refusal of the current planning application and this is a route they may wish to take should the council decide to progress by means of an alteration".

The recommendation was made to proceed by way of preparation of a development brief for the wider Duchlage area. The Committee, as recorded in paragraph 893 of the Minutes (7/4 of process), resolved to proceed in such a way. Thereafter, there was a report by the Executive Director (Environment) (7/5 of process) which summarised the decisions previously taken by the Committee to agree the principle of a new supermarket in Crieff and identified the Duchlage Farm area as the preferred location. The Committee were asked to approve the development brief which considered the results of consultation and the finalized development brief. The Committee were also asked to recommend to the Development and Control Committee that the approved development brief be used as supplementary planning guidance as a basis for the determination of future planning applications for the area (recommendations in 7/5 of process). The Enterprise and Infrastructure Committee of 7 June 2006 approved the said development brief and recommended to the Development Control Committee that the approved development brief be used as supplementary planning guidance as a basis for the determination of future planning applications for the area (recorded in paragraph 419 of the Minutes 7/5 of process).

[4] On 23 November 2006 the respondents' property sub committee of the Strategic Policy and Resources Committee resolved to accept the recommendations in the report (7/6 of process) seeking authority for the disposal of the Duchlage Road depot and recommending that the Council should not surrender the lease at Market Park. This decision is recorded in paragraph 6 of 7/7 of process.

Market Park

[5] It should be noted that developments in relation to the Market Park site occurred after July 2006 following the planning enquiry by the Reporter on the conjoined appeals for Market Park and Pittenzie Road. On 2 October 2006, the Reporter issued his letter and decision and granted outline planning permission for Market Park and Pittenzie Road, subject to conditions (6/5 of process). An early internal response by one official of the respondents was an e-mail dated 5 October 2006 (6/10 of process). In said e-mail the official stated that the respondents "will have to give serious consideration to its land interest here to see if we can ensure that this planning consent cannot be implemented". Thereafter there was some consideration by the respondents about their property interests in relation to said lease and in relation to a depot which they owned at the Duchlage Road site.

[6] In January 2007, the petitioners' predecessors sought to judicially review the decision to sell the Duchlage Road depot and not relinquish the lease. The respondents did not maintain a defence to the judicial review. By interlocutor dated 12 June 2007, the decision of the sub-committee on 23 November 2006 was reduced (7/9 - 7/12 of process).

[7] On 27 August 2008, the respondents' Development Control Committee granted reserved matters consent for Market Park and Pittenzie Road, subject to conditions (7/13 of process). The conditions are onerous and in large part, not possible to fulfil, unless the petitioners have control of the relevant land at Market Park. The petitioners will not have such control during the period to 2043 if the said lease (6/7 of process) to the respondents remains in force with the terms unchanged. The petitioners thereafter actively sought to progress their interests in various ways. In June 2008, the petitioners received the results of an assessment report which they had instructed (6/11 of process). Said report concluded that the results show an overwhelming level of support for Sainsbury's Foodstore in Crieff and for the Highland Gathering to relocate to purpose built facilities. On 13 October 2008 the petitioners e-mailed the respondents' Chief Executive seeking "meaningful dialogue". This followed advice from another official to submit a financial offer for the renunciation of the Market Park lease to be debated at the November Committee. A meeting was requested (6/102 of process). The response indicated that the respondents had received the offer and "this will be considered" through "the normal procedures" (6/102 of process).

Duchlage Farm

[8] There were also developments in relation to the Duchlage Farm site. That site has been the subject of a number of applications for outline planning permission for the construction inter alia of a retail store. In about 4 December 2007, an application for planning permission for the demolition of certain buildings and the development of a supermarket and associated roadworks was made in respect of the Duchlage Farm site. This planning application is still to be determined. The interested third parties and Tesco Stores Ltd have some commercial interest and arrangement in relation to said application. The respondents are the heritable proprietor of part of the site covered by said planning application. That part is referred to as Duchlage Road depot. The petitioners are objectors to the application. On 2 September 2008 a letter (6/6 of process) was sent to the Chief Executive and Executive Director (Environment) of the respondents from Tesco with regard to possible contamination issues on Market Park. The letter stated inter alia :

"As an adjacent potential occupier, Tesco shares the concerns of the Council in this regard and are keen to see the matter resolved in a way that would also serve to protection our potential investment at Duchlage.

In support of our current planning application which is being amended to include a number of environmental highway improvements as discussed with your officers, we have already agreed to finance general aesthetic and environmental improvements including betterment to the adjacent Market Park area. The extent of this work - currently budgeted it the order of £100,000, has yet to be clarified through ongoing discussions with your colleagues, but it is perhaps appropriate at this stage to confirm that in addition to this, they are prepared to underwrite a further sum of £500,000 against expenditure required to assist in dealing with the identified contamination.

Through our solicitors and property consultants we have already mentioned this proposal to your legal and planning officers and would welcome further discussions with you so we may take advice as to how you would prefer this documented for further reference.."

The decisions which are the subject of judicial review
[9] The petitioners seek judicial review of the decisions of the respondents dated 17 December 2008. In these decisions the respondents resolved (1) to confirm the decision taken by its Enterprise and Infrastructure Committee on 24 August 2005 that Duchlage Farm is its preferred location for a new supermarket in Crieff in planning terms and (2) to reaffirm its development brief for the Duchlage Farm area approved by its Enterprise and Infrastructure Committee on 7 June 2006, in particular that the land to the east of the farm be identified for educational purposes.

[10] Said decisions were taken by the council members (ie. councillors) of the respondents, in a full council meeting on 17 December 2008, and are recorded in 7/15 of process. An amendment which proposed inter alia that the Market Place site be the preferred site for a new supermarket in Crieff was proposed and defeated.

The information before members on 17 December 2008
[11] It was agreed by the parties that the report and documents placed before the members for consideration are contained in 6/1 of process. As 6/1 of process was the subject of detailed consideration, it is useful to note at this stage that pages 1 to 25 contain the report by the Executive Director (Environment). That report is reviewing the decision by the Enterprise and Infrastructure Committee in August 2005 to identify the Duchlage Farm site as the preferred location for a new supermarket in Crieff in the light of new or additional information. The development brief of April 2006 is attached to the report as Appendix 1. That development brief formed the basis of the non statutory supplementary planning guidance approved by the Enterprise and Infrastructure Committee of the respondents on 7 June 2006 (7/5 of process). Extracts from the Reporter's decision letter (6/5 of process) in which the petitioners were granted outline planning permission for retail development at Market Place are contained in Appendix 2. Appendix 3 deals with land contamination issues. In addition a letter from agents of the petitioners dated 12 December 2008 (6/12 of process) was also placed before members. The letter stated to be on behalf of the petitioners, their partner organisation in Crieff (Crieff Highland Gatherings) and their professional team. The aim of the letter as stated is to provide "a full and balanced presentation of those facts which unfortunately we do not think the officers' report does". The letter advised that legal issues are considered separately and are being discussed directly with the respondents' legal advisors. The letter inter alia set out a commentary on community views expressed at public consultation and the majority response which favoured Market Park and the new sports ground proposals at Pitlenzie Road. In relation to open space, the letter stated that almost 40% of the Market Park site will be retained as open space and laid out as park land/community space. It referred to support for the Market Park and new sports area by other users. In relation to the replacement of Crieff Primary School, the letter made certain criticisms of the respondents' proposals. It also stated that "...it would appear perverse that the council has apparently not explored a variety of mechanisms whereby a school site could be brought forward that represented best value to the local authority. Such mechanisms could include use of CPO powers or the consideration of other uses on the Duchlage Farm site (ie residential use)."

[12] Short oral submissions on behalf of the petitioners and interested third parties were also made to members. The content of these oral submissions was not set out in any affidavit. There was no agreed text of the submissions. I was advised that the oral submissions were, in general terms, critical of the proposal to site a supermarket at Duchlage Park and supportive of the site at Market Place.

[13] It was accepted on behalf of the petitioners and respondents that a letter had also been sent by the petitioners' legal agents to the respondents' secretary and head of legal services. Said letter (6/13 of process) was not before the members prior to the decisions on 17 December 2008.

Submissions by junior counsel for the parties
[14] I am grateful to junior counsel for all parties for providing, at my request, outline submissions. These are contained in 22-24 of process.

Submissions by junior counsel for the petitioners

[15] Junior counsel for the petitioners set out the factual background and chronology of events prior to the respondents' decision on 17 December 2008. I was asked to consider in great detail the terms of the report 6/1 of process. He referred to various revisions in the drafting process under reference to 6/30, 6/39 and 6/41 of process. He submitted that some of these changes resulted in a "change of tone of the report". Junior counsel gave a detailed commentary on the report from the petitioners' perspective. In particular, in relation to the issue of the new school site, he criticised the lack of reference in the report to the existence of compulsory purchase powers as a method of obtaining the site and the importance given in the report to the potential advantage of achieving a school site in association with the Duchlage Farm proposals. He was critical of the assessment in the report of recreational facilities and the lack of emphasis given to "retail issues" with no reference to the fact that the Market Park site was preferable in planning terms in accordance with the sequential test. Junior counsel accepted that reference was made to the conclusions of the Reporter but submitted that paragraph 39 of the report wrongly summarised the conclusion of the Reporter and ought not to have placed reliance on the Tesco offer to provide remediation of the Market Park site. He submitted that the Reporter had considered the Market Park site as the best site in terms of planning policy not that it was merely "a suitable location for a supermarket". He was critical of what he described as a failure in the report to give a balanced account of the information available about public opinion relating to the development of the Market Park site. The conclusions make reference to the importance of school land acquisition which he submitted is irrelevant. The conclusions were criticised as not giving a fair, accurate and balanced account of the relevant issues.

[16] Junior counsel for the petitioners then addressed the legal principles which applied. He submitted that when considering a "reserved matters" planning application, the planning authority is not entitled to revisit the principle of the grant of the development. He made reference to Lewis Thirkwell Ltd v Secretary of State for the Environment 1974 JPL 884. He explained, under reference to the Town and Country Planning (Scotland) Act 1997, sections 58 and 27, the duration of planning permission and the time of commencement. He submitted that a development "is begun" when any material operation in accordance with the planning permission is undertaken. Reference was made to East Dunbartonshire Council v Secretary of State for Scotland 1999 SLT 1088, pp.1092G-I and 1094I-L. He submitted that relatively minor works can constitute a development "having begun" under reference to Malvern Hills District Council v Secretary of State for the Environment (1983) 46 P & CR 58 at pages 72-73. Junior counsel then set out the well known grounds for judicial review under reference to Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345, Lord President Emslie at 347-8 and Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P & CR 343 at page 352. He set out the test of what is a material consideration in planning terms under reference to Westminster Council v Great Portland Estates PLC [1985] 1 AC 661 (HL) at pages 670, 674. He also made reference to R v Plymouth City Council ex parte Plymouth and South Devon Co-operative Society Ltd 1994 67 P & CR 78. He submitted the present case was concerned with planning policy and to be distinguished from a consideration at the inquiry stage of community benefits which must serve a planning purpose and must fairly and reasonably relate to the development. He submitted that the applicable legal principles in the present case relate to planning policy and guidance and not to issues relevant at the inquiry stage. He submitted that in relation to a decision about planning policy, a planning authority should not have regard to the individual merits of particular planning application or applicants at the planning policy guidance stage. He referred to Laken Ltd v Secretary of State for Scotland 1988 SLT 780, page 783, 789, 791H-L, 792K. Junior counsel accepted that when considering the adoption of a planning policy, a planning authority is entitled to come to a different conclusion from a Reporter in relation to a matter of planning judgement but may not disagree with the Reporter's finding in fact without a proper factual basis and explanation for doing. He made reference to FSH Airport (Edinburgh) Services Ltd v City of Edinburgh District Council [2007] CSOH 193, paragraphs 25, 35-36, 40. He also submitted that a mistake of fact by the decision-maker giving rise to unfairness, is a separate head of challenge provided it played a material (not necessarily decisive) part in the decision-maker's reasoning under reference to E v Secretary of State for the Home Department [2004] QB 1044, paragraph 66.

[17] Junior counsel for the petitioners then sought to develop his submissions in relation to the facts in the present case and under reference to the principles illustrated in the case law to which he had referred.

[18] Under reference to paragraph 30 of the petition, junior counsel submitted that the decision of the respondents to reconsider and resolve to adopt a supplementary planning policy guidance that favoured a retail superstore development at the Duchlage Farm site having granted a reserve matters permission for the Market Park site, was irrational et separatim perverse. Under reference to paragraph 31, he submitted the respondents had erred in law. They were not entitled to disagree with the findings of fact of the reporter who had found that the Market Park site was sequentially the best site in planning policy terms as an edge of centre site compared with the Duchlage Farm site which is an out of town site. He submitted that the approach of the respondents was similar to the error made by the planning authority in the FSH case. Under reference to paragraph 32 of the petition, he submitted that the respondents' decisions were based on errors of fact. The first error of fact was the statement in the report that the planning permission granted for a retail development at Market Park cannot be implemented unless the respondents agree to relinquish their interest in the lease. He submitted that the report should have recognised that the petitioners are able to begin work to develop the site thus implementing and preserving the planning permission. He submitted secondly, that the report failed to mention that another way of terminating the lease was by way of legal proceedings by the owners of Market Park, namely Crieff Highland Gathering Limited. At the time of the drafting of the report, he submitted the respondents were aware that the owners may seek to terminate the lease by legal proceedings but this information was not included in the report. Under reference to paragraph 33 of the petition, junior counsel submitted that the report does not accurately state the extent of the area of Market Park which would be lost for recreational purposes and the existence of the deficiencies which had been recognised by the reporter in sports facilities. The report had also not taken into account the recent survey supplied by the petitioners.

[19] In his final chapter, junior counsel for the petitioners made submissions about what he described as relevant considerations taken into account and relevant considerations not taken into account. This submission involved criticism reflected in paragraphs 34, 36 and 37 of the petition. He firstly criticised the way in which the report dealt with issues in relation to the "considerable recreational value" of Market Park. He then addressed secondly, the use of the property interest of the respondents in the lease. He described the respondents as using the lease to seek to frustrate the conclusions of the Reporter in respect of his preference for the Market Park site. Thirdly, he addressed the respondents' reliance on the possibility of acquiring by mutual agreement and within an appropriate time scale, land for use as a primary school. He submitted that these issues were irrelevant considerations for the purposes of drafting planning guidance in relation to the preferred site for a supermarket.

[20] Turning to considerations which were relevant and not taken into account, junior counsel referred to the absence of information in the report about compulsory purchase powers and the lack of any proper assessment of comparative timings for acquisition. He submitted that the ownership of a particular area of land and a time scale for its availability are irrelevant considerations in terms of planning policy. He made reference to paragraphs 38 and 41 of the petition. Under reference to paragraph 39 of the petition, he submitted that the offer from the proposed developers of Duchlage Farm to pay a contribution towards remediation work at Market Park was an irrelevant consideration. He highlighted the alleged disparity and lack of balance in the report and the failure to make reference to the respondents' offer to purchase the lease of Market Park under reference to paragraph 40. Finally, under reference to paragraph 35, he criticised the way in which the report failed to identify the importance of the potential adverse impact of a retail superstore development on the town centre and the importance in planning terms of the sequential test policy.

Submissions by junior counsel for the respondents
[21] Junior counsel for the respondents opened his detailed submission by reference to Lord Coulsfield in Asda Stores Limited v Secretary of State for Scotland 1999 SLT 503 at page 510 I-J. He emphasised that the complaint of the petitioners is essentially one of commercial prejudice and the planning system does not exist to prevent that. He explained the status of non-statutory planning guidance in the statutory context. He emphasised that planning guidance is not determinative of any application and in this case does not affect any rights of the petitioners. The petitioners have planning permission. He submitted that the petitioners' rights were protected in their role as objectors to the application for planning permission at Duchlage Farm. He submitted that the petitioners chose to seek planning permission in respect of a site in which the respondents have a property interest in the form of a lease. The mere fact that the petitioners have obtained planning permission does not affect the land holding rights of the respondents, which are governed by the law of property. The respondents in making decisions about planning policy require to do so taking account of commercial reality. Deliverability may be a central and relevant issue in planning policy. He submitted that the respondents, as the planning authority, are entitled to have regard to the improbability of a permission being implemented under reference to British Railways Board v Secretary of State for the Environment at 28 October 1993. He drew attention to the conclusions of the Reporter which were before the councillors in December 2008. He submitted that the Reporter simply granted outline planning permission for Market Park. The respondents are not frustrating the Reporter's view on the "best site" for a supermarket. The Reporter did not come to a conclusion about the "best site". Junior counsel drew attention in particular to paragraphs 300, 303 and 311 of the Reporter's decision (6/5 of process).

[22] Junior counsel submitted that the petitioners' detailed attack on the report, (6/1 of process) including an analysis of the drafting should not deflect attention from the critical question. He submitted that "the question is whether the report on which the Council relied when voting, was so defective as to mislead the Council on material matters in a way that remained uncorrected, to the prejudice of the petitioners". He submitted that the Court should be properly cautious about rejecting such reports under reference to Oxton Farms and Another v Selby District Council and Another (1997) EJJS 60 (CA). Junior counsel outlined the material which was available to the councillors. He submitted that the respondents were entitled to consider the realities of the situation and not close their eyes to the prospect of benefits related to planning that could be achieved. He also questioned the utility of the reduction sought which, he submitted, demonstrated that the challenge was premature.

[23] Junior counsel for the respondents then dealt with the issue of title and interest. He conceded that the petitioners will have title and interest to challenge a decision, if and when a permission is granted for planning permission on the Duchlage Farm site. He submitted that the petitioners did not aver that they are the owners of Market Park. Their land interests are unclear (6/101 of process). He directed attention to the limited scope of judicial review as a remedy. Under reference to Bondway Properties Limited v City of Edinburgh Council 1999 SLT 127 (OH) at page 132 E-F; Bett Properties Limited v Scottish Ministers 2001 SC 238 (OH) at paragraphs 19 and 37; and Edgar Road Property Company LLP v (1) Moray Council [2007] CSOH 88 at paragraph 28, junior counsel submitted that the petitioners have failed to aver any sufficient averments to support their title and interest in the present case. The petitioners' problems stem from their inability to keep the planning permission alive because they are unable to comply with the suspensive conditions in the detailed planning permission. Plainly they have a commercial interest in that they do not want the Duchlage Farm site to receive planning permission which would benefit a commercial rival. He submitted that a commercial interest does not qualify as title to sue under reference to Nicol (D & J) v Dundee Harbour Trustees 1915 SC (HL) 7. He explained that the respondents have developed non-statutory guidance of a type and content which was in existence when the petitioners obtained planning permission. The petitioners made no challenge then to the non statutory guidance in the development brief. When the respondents made their decisions, which are the subject of judicial review, the petitioners had obtained planning permission and the decisions of the respondents does not take away any of their rights. He submitted that the petitioners are not entitled to protect their commercial interests from prejudice under the planning system. He made reference to Bondway Properties Limited v City of Edinburgh Council 1999 SLT 127 (OH) at page 132 H-L; Asda Stores Limited v Secretary of State for Scotland 1999 SLT 503 page 510 I-J. The petitioners, as objectors to the application for planning permission at the Duchlage Farm site, are entitled in their objections to criticise the statutory guidance which in any event they claim is of limited weight. The statutory planning structure does not give the petitioners a right to object to the development of non-statutory guidance. The mere fact that the petitioners are objectors to a particular application does not alter that. The petitioners' rights are in any event fully protected.

[24] Junior counsel then considered the authorities cited and their application to the present case. He made some reference to the question as to whether or not the making of representations prior to the meeting when a decision was made was sufficient to give title and interest. This was not dealt with in any detail because the petitioners did not attempt to found title and interest on this basis.

[25] Junior counsel then addressed the submissions on behalf of the petitioners in relation to the grounds of the petition set out in paragraphs 30-41. He did so against the background of the following case law which he submitted to be relevant. He made reference to Bolton MBC v Secretary of State for the Environment (1991) 61 P&CR 323 Per Glidewell LJ at pp353-353 and sub-paragraph 6. He submitted that this is not a case in which the respondents, as decision maker, are obliged by statute to take into account any particular considerations. To the extent that the decision is challenged on the basis that the decision maker failed to take into account relevant matters, it is for the judge to decide:

"if the judge concludes that the matter was 'fundamental to the decision', or that it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision, he is thus able to hold that the decision was not validly made. But if the judge is uncertain whether the matter would have had this effect, or was of such importance in the decision making process, then he does not have before him, the material necessary for him to conclude that the decision was invalid"

He made reference to Westminster City Council v Great Portland Estates plc [1985] 1 AC 661 at p.669H to illustrate that a planning purpose has a meaning and relevance both in relation to policy and in relation to consideration of applications. It was held that the test of what was a material consideration in the preparation of local plans or in the control of development was,

"... whether it served a planning purpose which related to the character of the use of the land; that on their true construction, the industrial policies of the plan were concerned not with the protection of existing occupiers but for the genuine planning purpose, the continuation of industrial use important to the character and functioning of the city ..."

R v Plymouth City Council ex parte Plymouth and South Devon C-Operative Society ltd (1994) 67 P&CR 78 was cited to illustrate the breadth of matters considered as relating to planning purposes and as being fairly and reasonably related to the development. Reference was made to Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 764G, 769-770 and to Lakin Ltd v Secretary of State for Scotland 1988 SLT 780. Junior counsel submitted that Lakin properly interpreted, was a decision about procedural impropriety. That was not the foundation for the petitioners' submissions in relation to irrelevant considerations. Under reference to the petitioners' submissions about FSH Airport (Edinburgh) Services Ltd v City of Edinburgh Council [2007] CSOH 193, counsel submitted that the case was irrelevant. The case deals with an entirely separate statutory process with a different statutory background. The Reporter who dealt with the Market Park application was dealing with a single appeal.

[26] Junior counsel then dealt in detail with the submissions of the petitioners in relation to paragraphs 30-41. These matters are set out in pages 21 to 36 of 24 of process and I merely refer to the main issues raised. In relation to paragraph 30, counsel emphasised the stringency of the applicable test of irrationality under reference to Bonnes v West Lothian Council 1997 SLT 398 p399L-400B. He submitted that the respondents were well entitled to have a planning preference for the Duchlage Farm site. That was a matter for their planning judgement. He made reference to Bondway Properties Ltd v City of Edinburgh Council 1999 SLT 127 and Secretary of State for Education and Science v Tameside MBC [1977] AC 1014 at p1064. He submitted that the respondents are entitled to form their own view about the importance of the Market Park site as a recreational area and take into account the fact that they have a leasehold interest from which the public benefit. They are not obliged to relinquish the lease. The respondents are entitled to carry out a reassessment of planning policy. Indeed the predecessors of the interested third parties demanded such a reassessment in the judicial review in 2007 (7/9 of process).

[27] In relation to paragraph 31 of the petition, junior counsel submitted that the respondents did not "disagree" about the Reporter's findings in fact but drew different conclusions. He distinguished the situation in FSH. He submitted that the petitioners attempted to build too much upon the reference in the report to the location of Duchlage Farm. That site is only a very short distance further away from the town centre than Market Park. That is a value judgement. The report does not dispute in planning terms that the Market Park site is sequentially preferable in the retail analysis.

[28] In relation to paragraph 32, junior counsel submitted that it was not factually incorrect to state in the report that the planning permission at Market Park cannot be implemented. There are a number of reasons for that. There is a difference between a commencement of development sufficient to fulfil conditions to keep planning permission extant compared with implementing the permission by building a supermarket. At the time the report was prepared, the petitioners did not have full title and or control of the land. They were not in a position to fulfil the suspensive conditions in the detailed planning permission and build a supermarket.

[29] In relation to paragraph 33, junior counsel submitted that the submissions on behalf of the petitioners fell far short of averments relating to an error of law. He referred to the test in Bolton per Glidewell LJ at pp352-353. The petitioners' submissions failed to recognise that, in any event, counsellors had available to them information from the petitioners in 6/12 of process. On any view, including the Reporter's view, Market Park is of great value to those who use it (6/5 of process, paragraph 286). The petitioners' survey in 6/11 of process cannot be considered to be determinative of the issues.

[30] In relation to paragraph 34, junior counsel submitted that a consideration in the report of recreational facilities was not irrelevant. The respondents are entitled to decide what weight to give to this.

[31] In relation to paragraph 35 of the petition, junior counsel submitted that the petitioners' criticism that the report failed to take national planning policy into account and ignored the sequential test and the impact on a town centre was ill-founded. The respondents were not considering a retail development only but wider issues. In any event, on a fair reading, it is plain that the sequential test and Market Park's precedence over Duchlage Farm in terms of the sequential test is recognised in the report. The Reporter in any event recognised in respect of the Market Park site that the balance between impact on the town centre and loss of open space was finely balanced. The respondents are entitled to make their own judgement.

[32] In relation to paragraph 36, junior counsel submitted that the petitioners' submission was ill-founded. The respondents' interest in the lease is a matter of fact and cannot be ignored. Market Park is designated as open space in the development plan. The respondents, as planning authority, have responsibility to maintain open space protected by national policy and its own development plan and to support that plan. The respondents are not obliged to sell or give up their interest in the lease. In planning terms, it would be an irrelevant consideration to take into account any financial interest that the respondents may have in the development of Market Park and Duchlage Farm. The respondent properly did not factor that into their decision making. Availability and deliverability are well recognised as concepts in planning law and are equally relevant at the policy stage. With particular reference to the criticism of the e-mail, 6/10 of process, counsel submitted that the petitioners make no complaint of procedural impropriety or mala fides.

[33] In relation to paragraph 37, counsel submitted that the petitioners were ill-founded in their submission that the opportunity to acquire land for use for educational purposes by mutual agreement is an irrelevant consideration. The petitioners have not met the Wednesbury test. The respondents are entitled to have regard to what they think is relevant and the need for the school is obvious and longstanding. The petitioners have no interest in the furtherance of educational provision in Crieff. The respondents do have an interest in developing a coherent planning policy for the area. The respondents are entitled to take into account economic and other benefits which the community may gain as a result of development. Counsel made reference to Tesco Stores Ltd. The respondents are entitled to take into account the likely timing and phasing of the development and the opportunity to assist land assembly.

[34] In relation to paragraph 38, it was submitted that the members were fully aware of the availability of compulsory purchase powers. The petitioners cannot and do not aver that the precise wording of the report resulted in a decision made in error of law. It is plain that the material about possible compulsory purchase powers was before the counsellors. It was unnecessary to refer to the potential for delay and there is no basis to conclude that any discussion of delay in the report would have resulted in a different decision.

[35] In relation to paragraph 39, it was submitted that the statutory provisions do not set out what considerations may be taken into account for planning policy purposes in non-statutory guidance. The case law relied on by the petitioners does not deal specifically with the situation of non-statutory guidance. Junior counsel submitted that unless the petitioners can show that it was unreasonable in the Wednesbury sense to have regard to the offer by Tesco then the decision should stand. He submitted that the petitioners do not submit that remediation per se is not a relevant factor. The submission is that remediation works do not relate to land covered by the Tesco application. He submitted that part of the gas works land is required for the Tesco application as road improvement. It is not disputed that the gas works site has to be remediated. It must be a relevant consideration that Tesco is willing to contribute to remediation there as part of its application. That is at least a de minimus connection with Tesco's proposed development. The offer of remediation can be relevant to an off-site area as demonstrated by R v Plymouth City Council. Junior counsel submitted that the petitioners have not set out a basis to justify a finding of unreasonableness as illustrated in Bonnes at p399L to p400P. In any event on a fair reading of the report, it is plain that the reference to the Tesco offer was not an overriding factor.

[36] In relation to paragraph 40 of the petition, the petitioners complain that if the Tesco offer is material, there should be reference in the report to the petitioners' offer to buy out the respondents' interests in the lease (7/20 of process). Counsel submitted that the two offers are not equivalent. The petitioners' offer is not relevant as the respondents are not considering selling its interest in Market Park. The respondents are not required to divest themselves of open space which is protected under the development plan and national policy in order to secure a development to a commercial party. In any event, the petitioners in the e‑mail of 13 October 2008 (6/102 of process) made the offer on a private and confidential basis. They did not seek to make reference to the offer in the original letter to the respondents or in their oral submissions at the relevant council meeting.

[37] Junior counsel then dealt with paragraph 41 of the petition. He referred to the petitioners' submission that it was unreasonable to include matters of land ownership and availability in the report as these were irrelevant to planning policy. Counsel submitted that the petitioners provide no authority for that submission. He emphasised that the report was considering the future development of the area with a view to achieving a co-ordinated and integrated approach. It followed from the approach that the two objectives of achieving land assembly for a supermarket and primary school were relevant considerations in the context of the consideration of future development of the area. The petitioners' complaint is mere assertion without foundation in law.

[38] In conclusion, junior counsel submitted that the petition should be dismissed as there was no title et separatim no interest on behalf of the petitioners. Esto the petitioners have founded title and interest, the petition should in any event be dismissed as none of the grounds of challenge are established.

Submissions by junior counsel for the interested parties

[39] Junior counsel for the interested parties expressed himself neutral on the issue of title and interest. In general he adopted the submissions of counsel for the respondents in relation to the merits with one exception to which I refer in paragraph [42] hereof. Junior counsel reviewed the background to the decision including an analysis in paragraphs 15 and 18 of his outline submission of the Reporter's decision and a consideration of the judicial review proceedings in January 2007. He made some critical comment about the consultation document (6/11 of process) upon which the petitioners placed some reliance. He submitted that it was not possible for the Court to deal with the petitioners' criticisms of the way in which the respondents dealt with this report without the Court falling into the trap of trying to assess the merits of the case. In summary, junior counsel submitted that the decisions confirmed by the respondents were not inherently flawed. In substance it is plain that the report, 6/1 of process, relates to matters which are wider than the location of a supermarket. The respondents were entitled to consider the planning merits before taking a decision about property issues.

[40] Junior counsel then developed his legal submissions. He referred to Wordie Property Company Limited and to the standard of "perversity", under reference to Lord Diplock in CCSU v The Minister for the Civil Service (1985) 1 A.C. 374 at 410H. He submitted that in so far as the petitioners relied on the facts in the present case to support irrationality, the averments come nowhere close to the exacting standard required for irrationality. In relation to the criticisms about material considerations, he submitted that matters of "planning judgments are within the exclusive provenance of the local planning authority..." under reference to Lord Keith in Tesco Stores v The Environment Secretary (1995) 1 WLR 759 at 770B and Lord Hoffman at 764G. He referred to Lord Hoffman at 764G and to the City of Edinburgh v SOSS 1998 SC 33 at 43G - 45B. He then dealt with the approach adopted by the Courts when reports of officials are criticised under reference to Oxton Farms, and George Moore and Others v East Renfrewshire Council (2005) CSOH 128, in particular Lord Kinclaven at paragraph 105. He submitted that the petitioners' attempt to rely upon the report (6/1 of process) to demonstrate that members have been "seriously misled" ignores the full information given at the meeting. He then dealt with the alleged misuse of power by the respondents in relation to their interest in the said lease. He submitted that there are three flaws in the petitioners' criticism. Firstly, the decision under challenge is a "planning" decision not a decision about property holding. Secondly, availability of land is clearly a relevant planning consideration under reference to SPP8 (16 of process). Thirdly, the petitioners' submission that planning guidance should not have regard to the individual merits of particular planning applications or applicants is contrary to the clear policy guidance and contrary to Laken. Finally, under reference to West v SOSS 1992 SC 385 at 397, he submitted that the respondents as holders of the lease are not required to subordinate their property interests to their separate planning function.

[41] In conclusion, junior counsel then dealt with a number of specific issues. In relation to the challenge in the report based on the reference to the Tesco offer about decontamination, he submitted that this was referred to only as a possible outcome. Under reference to Westminster County Council v Great Portland [1985] AC 661 at 670 C-D, 669H, he submitted that the primary consideration is whether the offer serves a planning purpose and relates to the use of land. He submitted that decontamination does serve such a purpose in relation to the Tesco proposals at Duchlage Farm. A tenuous connection with the use of land was sufficient. A tenuous connection could be enhancement of the adjacent site or it could be that the adjacent site was required for highway improvements.

[42] Junior counsel, in his submission, made a different submission to that made by junior counsel for the respondents. He submitted that in judicial review, it was not for the Court to conclude whether the planning purpose had de minimis connection or not. All the Court has to consider is whether it was reasonable for the information to be included in the report. In relation to the criticisms in the report about open space, he submitted that this was merely an assertion by the petitioners that they would have drafted the report differently. It is not an error of law. In relation to the criticisms about the inclusion of a reference to the land required for the primary school, he submitted that if development unlocks the potential in an adjacent site, that and the timing are clearly relevant as a planning consideration.

Submissions by senior counsel for the Petitioners and Respondents
Senior counsel for the Petitioners
[43] Senior counsel for the petitioners adopted the detailed submissions made by junior counsel. His submissions fell into five chapters. The first chapter was an introduction in which he emphasised that the petitioners' grounds and criticisms went beyond the limits of the report (6/1 of process). He emphasised that the Court must look at the documentation before the decision-makers but also the other actings of the respondents as planning authority. He submitted that the respondents' submissions were presented as if the respondents had acted as a hypothetical reasonable planning authority. The respondents had not done so and they had not justified their actings as planning authority in attempting to frustrate the planning permission which had been granted to the petitioners. The fact that there was no challenge to the 2006 development brief is irrelevant as that document was dealt with in the inquiry by the Reporter. The respondents, however, purported to adopt the same document and same policy despite the decision of the Reporter and the different planning circumstances which existed post September 2008. Essentially, in re-affirming and adopting the policy recommended in 6/1 of process, the respondents were setting a framework of "material considerations" which would favour the outstanding planning application dating from December 2007 in relation to the Duchlage Farm site. It was submitted that the respondents are "deliberately creating new policy guidance for the purposes of the determination of the Tesco application".

[44] In his second chapter, senior counsel highlighted some of the history covered by junior counsel in his submissions. He made particular reference to the e-mail (6/10 of process) and invited the Court to draw inferences that this plainly indicated an attempt by the respondents to frustrate the planning permission of the petitioners. He submitted that the respondents had obviously confused their planning function with the rights which the respondents had as landowners.

[45] In his third chapter, senior counsel made brief reference to some of the authorities cited including some of the planning policy documents. He emphasised that in considering the document 16 of process, in particular paragraphs 25 and 26, it should be noted that this encouraged planning authorities to respond positively to development possibilities. By resisting development by the petitioners, after detailed permission had been granted, the respondents were doing the opposite and trying to frustrate development in their role as planning authority. Senior counsel submitted that the respondents should be positively engaging with the planning process and at least considering whether relinquishing the lease would facilitate that. Instead, the whole approach of the respondents as manifested in 6/1 of process is to preserve their original approach and resist the Market Park development. Senior counsel referred to Westminster City Council pages 669-70, in particular page 674B-C; Tesco, Lord Keith at pages 768-69.

[46] In relation to the grounds of the petition, senior counsel submitted that it was not necessary to specifically aver in the petition "formulaic phrases" related to the grounds of judicial review. This could be inferred from the substantive grounds which begin in Article 29 of the petition. The facts averred in the petition, when considered against the background of the principles set out in case law, provide the basis on which the petitioners seek judicial review. He emphasised in his discussion the way in which the respondents as the planning authority had been influenced by its role and interest as holder of the lease of Market Park. The respondents should not be taking into account their own landholdings when considering planning policy. Senior counsel was particularly critical of the respondents in relation to the matters founded upon in paragraph [38]. He said it was irrelevant for the respondents to refer to an incidental connection with a small area of land upon which traffic junction improvements might have to be carried out in order to demonstrate sufficient connection in planning terms for the Tesco application with the Market Park site. The remediation offer by Tesco was an irrelevant consideration.

[47] Senior counsel for the petitioners dealt briefly with title and interest which had not been addressed by junior counsel for the petitioners. He did not dispute the principles in the authorities cited by the respondents. Under reference to the Bett Properties case and the Edgar Road case, he submitted that the critical issue was that in these cases the petitioners had failed to establish sufficient interest because they had not objected to the planning application. In the present case, the respondents accept that the petitioners, who have objected to the Duchlage Farm site application, would have title and interest to challenge the grant of planning permission by judicial review. The present case therefore was distinguishable and the petitioners did have title and interest. In relation to the respondents' submissions, senior counsel made a number of specific comments: (1) the mere fact that there is an element of commercial interest does not mean that there cannot be title and interest; (2) the petitioners are objectors and that is an important distinction; (3) the petitioners are holders of planning permission at Market Park; (4) the development brief approved in 2006 does refer to Market Park and, it assumes that certain footpaths and improvements etc will be made. That assumption is carried over into the document (6/1 of process) in circumstances where the petitioners with planning permission intend to build their development on Market Park; (5) the decision to approve the development brief in 2008 continues to proceed upon the basis that there should be no development at Market Park despite the grant of planning permission; (6) the creation of the development brief and supplementary planning guidance was solely for the purpose of supporting development at the Duchlage Farm site; (7) on 5 October 2006 the e-mail from an official of the respondents 6/10 of process was sent. Inferences can be drawn from that e-mail about the attitude of the respondents. Senior counsel submitted that if the development brief is to be taken into account in developing the Duchlage Farm site and if the petitioners have title and interest to challenge a grant of planning permission in respect of said site, the petitioners equally have title and interest to challenge the decisions by the respondents which are the subject of judicial review. If the petitioners did not challenge the respondents' decisions, objection might be made that the petitioners were too late to do so. Bearing in mind these factors, the necessary link exists for title and interest. The planning policy has been developed by the respondents to bolster the likelihood of the Duchlage Farm site being granted planning permission.

Senior counsel for the Respondents

[48] Senior counsel for the respondents adopted the submission of his junior counsel and the submission on behalf of the interested third parties. I was invited to refuse the prayer of the Petition. In relation to the point on which counsel for the interested third parties departed from the submission by junior counsel for the respondents, (narrated in paragraph [42]) senior counsel appeared to support the submission by counsel for the interested third parties.

[49] Senior counsel emphasised that the respondents had a consistent position in relation to the retail development. The respondents, as planning authority, had competing applications and recommended all for refusal. The respondents sought to obtain further information and instructed 6/8 of process. The conclusions at page 59 of 6/8 of process favoured the Market Park site. Thereafter, a postal questionnaire was carried out and this identified the issue of open space and the valuable contribution made by the Market Park site (6/9 of process, paragraphs 18-20). It was submitted that these were useful and genuine attempts by the respondents to inform themselves before reaching an important decision. The issue of the school was identified in 6/2 of process. It is not surprising that 6/2 of process excluded the Market Park site because that was not the preferred site. After planning permission had been granted to the Market Park site, it was necessary for the respondents to consider the way forward. It was plain that the respondents looked at various options in the light of the circumstances which existed in 2008. The respondents are not only entitled but obliged to take account of the real world. For example in paragraph 56 of 6/1 of process, the respondents are merely confirming that as the Duchlage Farm site is preferred, they will take no action to terminate their lease at Market Park. That is entirely logical and reasonable. The petitioners seek to imply "adverse unfairness" from certain isolated comments such as the e-mail (6/10 of process). It was submitted that was a response from an official who left the respondents' employment a year before the preparation of the report (6/1 of process). The mere fact that planning permission has been granted does not mean that the respondents, as planning authority, are no longer entitled to exercise their judgement about other applications which are outstanding.

[50] Senior counsel then addressed the issue of title and interest. He submitted that the petitioners, as objectors, have a role within the statutory framework as objectors but that does not mean that they are in some legal relationship with the respondents in which a legal right has been infringed. The judicial review is directed to decisions about non-statutory guidance. The relevant legislation, does not give any right to make representations or to appeal non-statutory guidance. The mere fact that the non-statutory guidance might have some result to which the petitioners object, does not give them legal title and interest. The petitioners cannot bolster their case by raising the potential problem of a plea of mora. Such a plea would not succeed at a later stage if the respondents are correct in submitting that at this stage of proceedings, the petitioners have no title or interest.

[51] In addressing briefly the specific grounds of the petition, senior counsel relied mainly on the submissions made by junior counsel emphasising that many of the matters complained of were matters of planning judgement and not matters susceptible to judicial review. In relation to alleged errors of fact, he submitted that the petitioners had failed to show anything in 6/1 of process which was misleading to any significant extent. There was no information before the Court that the members had been misled by anything, bearing in mind the totality of the information before the members and the local knowledge and experience which they had as members. He referred to the deliverability of the primary school as a "big issue" for the respondents. He pointed out that the planning guidance in SPP 1 makes clear that assembly of land is a planning issue in the real world and that planning can be used as a tool to enable site assembly. The respondents are entitled to make a judgement, as the planning authority, that a school is needed and how the land might be unlocked. In relation to the "Tesco offer", the issue to be considered is whether it serves some planning purpose. He submitted that the remediation of land is such a purpose bearing in mind the location of the sites and traffic issues. On any view, there is a potential linkage. The proposals require to be to be worked up during the planning process and the test will be applied at that stage. He submitted that a de minimis relationship was sufficient. In any event, even if the offer was an irrelevant consideration, it was not an overriding factor. The petitioners have not demonstrated that, but for the reference to the offer, the decision would have been any different. Senior counsel referred to Bolton MBC v Secretary of State for the Environment (1991) 61 P&CR 343 (CA).

Discussion
The task of the Court
[52] This is a petition seeking judicial review of decisions of the respondents taken on 17 December 2008. The grounds are set out in detail in paragraphs 30 to 42 of the petition. There are no reasons given for the decisions of the respondents and that is not the subject of complaint. The respondents did not require to give reasons. The decisions followed a meeting at which certain information, discussed in paragraphs [11-12], was given to members of the respondents.

[53] I bear in mind that the role of the Court in judicial review is a limited one to ensure that decisions, such as decisions of the respondents, are made lawfully and properly. The respondents, as the Council, are the planning authority to whom Parliament has given wide ranging statutory functions. These were given in the knowledge that Councils have many functions, other than planning, and that they may have a variety of property interests including interests as owners or lessees of property. The planning system is a particularly complex statutory scheme in which planning decisions of different kinds are left to the discretion of the Council as the planning authority.

[54] In the course of submissions by counsel, I was referred to a number of cases. I did not understand that the general principles of judicial review exemplified in the case law cited was in dispute. Junior counsel for the petitioners also referred to a number of cases to which I refer in paragraph [16] to illustrate certain general principles relevant to his detailed submission. As I understood the submissions in response, no significant criticism was made of the general principles illustrated. It was contended however that these principles did not assist the petitioners in the facts and circumstances of this case. I did not find in any of the cases cited a clear answer to the specific complaints made on behalf of the petitioners.

[55] Frequent reference was made by counsel to Wednesbury unreasonableness during the hearing. In the well known dicta, Lord Diplock in the CCSU case stated:

"By 'irrationality' I mean what can by now succinctly be referred to as "Wednesbury unreasonableness" ... it applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."

He continued in a passage from which I shall try to draw comfort,

"Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with out judicial system."

The meaning of irrationality has been expressed in various ways, sometimes leading to confusion. What is clear is that the Court may intervene in judicial review cases in the exercise of its supervisory function only when a petitioner has satisfied an exacting standard. The Court must not to fall into the trap of substituting its own decision on the merits. When dealing with statutory regimes, such as planning, I consider that the Court should take care to bear in mind that what is reasonable and logical may be coloured by the planning regime within the structure given Parliamentary approval. In the statutory planning system, for example, certain rights are given but only in certain defined circumstances. I do not consider that Lord Diplock was suggesting that judges have been given complete freedom to express their own view regardless of the constraints of the statutory structure.

Paragraph 30

[56] I consider that there is a general issue reflected in paragraph 30 of the petition. The petitioners criticised the respondents' actions in the circumstances of this case in seeking to reconsider and adopt the supplementary planning guidance as irrational, et separatim perverse, et separatim unfair. As I understood submissions by senior counsel for the petitioners, this complaint is at the heart of the judicial review and not dependent on the specific criticisms of the report made by the petitioners. It was submitted that the decisions of the respondents against the background of planning permission having been granted to the petitioners, were perverse and an unfair way of allegedly trying to support the planning application in respect of the Duchlage Farm site.

[57] I did not understand it to be disputed that the respondents were entitled to develop and decide on non-statutory planning guidance while the Duchlage Farm planning application was still outstanding or because planning permission had been granted at Market Park. The development of policy is often done by planning authorities both formally in relation to a development plan and less formally while applications or appeals are still outstanding. Such outstanding decisions do not bring policy development to a halt or vice versa. It was submitted, however, that the respondents were not entitled to reach the conclusion they did. The decisions, it was submitted, ignored the planning permission in favour of the petitioners in relation to the Market Park site by reaffirming earlier guidance, as if there had been no planning change. The petitioners drew attention to the response in the e-mail (6/10 of process). The respondents' attitude was described as manipulation of the respondents' property interests (refusal to give up the lease) in their attempts to support the Duchlage Farm application and manipulation of the report (6/1 of process) by "changing the tone" of the report. Counsel for the petitioners submitted that from this history I should draw adverse inferences. There seemed to be a leap in the submission to imply that bad faith permeated the decision making about the non-statutory guidance. I describe this as implied because the case is not pled on the basis of bad faith and the terms "bad faith" were not used. I was invited to draw "adverse inferences".

[58] I consider that the e-mail (6/10 of process) is merely one document in numerous documents relating to this case. There was no other evidence offered by the petitioners about the e-mail. It was unclear to me what role, if any, the official played in the preparation of the documents presented to the members. In the absence of evidence, I am not prepared to draw any inferences from the said e-mail or from the drafting changes. I consider that the drafting revisals in the report, in the absence of any evidence of bad faith, shed no light on the case. I have considered the case on the basis of the information which was given to members as discussed in paragraphs [11-12]. Said e-mail and drafting revisions were not considered by members.

[59] A separate point, on which counsel for the petitioners placed much reliance in inviting me to draw adverse inferences was the refusal of the respondents to give up their lease of Market Park. I accept that the respondents have to date demonstrated no willingness to relinquish their interest in the lease and that their actings, fairly interpreted, indicate that they do not intend to do so at present. The respondents' actings in connection with the lease were severely criticised by counsel for the petitioners. I found this chapter of the submission on behalf of the petitioners unconvincing. I consider that it would be a very odd result, if by gaining planning permission over land which one did not control, the holder of the planning permission obtained some right to purchase or obtain the property interests of the person who held interests in the land. In my opinion, the mere fact that the respondents are the planning authority does not make any difference to their rights as property owners or the holders of a lease. It was suggested that the respondents, as the planning authority, are in a different position from other persons who hold property rights because the respondents as planning authority have an interest in supporting development. I do not accept that implication. Councils have many functions and many reasons for maintaining property interests in support of these functions. If a Council, who happens to be a planning authority, wishes to retain property, for example, for educational purposes or for some other reason, the Council has the right to do so. In my opinion, if property owned or leased by a Council came under threat of acquisition merely because a third party obtained planning permission over the property, that would have a very destabilising effect on the functions of Councils. I do not consider that is implied in the statutory planning regime and it was not submitted that there were any express provisions. In my opinion, the respondents in this case are entitled to form their own opinion about what they wish to do with the lease of the Market Park site. I do not consider that they are under any obligation to relinquish the lease merely because the petitioners have obtained planning permission and are prepared to pay money to the respondents in respect of their interest in the lease. I accept that if the respondents relinquished the lease that would enable the petitioners to proceed to build and complete the retail development for which they have planning permission. I consider that is irrelevant. I consider that the obtaining of planning permission does not carry with it a right to obtain control of the land from the planning authority or anyone else. I do not consider that the respondents in seeking to maintain their existing lease of Market Park are somehow "thwarting" the planning permission which the petitioners have obtained. In my opinion, the respondents are merely exercising their property rights as any property owner or lessee is entitled to do. I accept that the petitioners may feel thwarted. Plainly they wish to make progress to build their retail development. But I do not consider that they have any well founded ground of judicial review in relation to the respondents' wish to maintain their lease of Market Park. Looking to the actings of the respondents, I do not consider that the petitioners have demonstrated any reasons for drawing any adverse inferences.

[60] The issue of the refusal of a planning authority to cooperate with a developer by providing access over land owned by the planning authority is referred to in British Railways Board, albeit that issue is not the basis of the decision in the case. I note that there is no criticism made in that case about the actions of the planning authority in refusing to complete a Section 52 agreement with the developer. No criticism is made of the planning authority in relation to their continued refusal to do so when that resulted in the frustration of the development.

[61] If one considers the actions of the respondents through a lens undistorted by "adverse inferences" what have the respondents done? The respondents formed a planning view about a development brief for the area between Market Park and the site of the new Crieff Secondary School to include the site for a new supermarket and other uses in 2006. Time passed and circumstances changed. The respondents decided to reconsider the matter. The petitioners attack the decisions which were made because the petitioners in the meantime had obtained planning permission. The petitioners submit that the decisions are merely to bolster the Duchlage Farm planning application and enhance the chances of success of obtaining planning permission for retail development at that site. I consider that is mere assertion on behalf of the petitioners. It is plain from the history that the respondents for a long period had in mind a development of the area not limited to retail issues and had contemplated changes to the local plan (7/4 of process, paragraph 6). In my opinion, some formal assessment of the effect and implications of the planning permission at Market Park in relation to the area is considered reasonable, and certainly not Wednesbury unreasonable. The respondents are entitled to reconsider the non statutory guidance after the passage of time. The guidance was not specifically directed to the Market Park site and retail development but to a larger area and issues not limited to retail. The mere fact that the petitioners obtained planning permission for Market Park does not in my opinion make it logically impossible or unreasonable in the Wednesbury sense for the respondents to maintain their view on the planning merits favouring Duchlage Farm. I consider that the merits of the policy decisions are a matter for the judgement of the respondents.

Paragraphs 31-41 of the petition

[62] That is not the end of the matter because the decisions of the respondents were attacked in many ways. A scattergun approach is a description which occurs to me. It is necessary to give consideration to the particular grounds. The attack on behalf of the petitioners was focused on the report (6/1 of process). Before considering paragraphs 31-41 of the petition, I think it would be helpful to bear in mind the approach which I consider the Court should adopt when considering criticisms of the contents of such a report. In Oxton Farms, Lord Justice Judge stated:

"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of the statute or the directions provided by a judge when summing up a case to the jury...In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

In George Moore and others Lord Kinclaven in paragraph 105 approved the reasoning of Sullivan J in R v Mendip District Council ex parte Fabre [2000] JPL 810. It was stated that the purpose of a planning officer's report to a committee

"is not to decide the issue but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large but to council members who by virtue of that membership may be expected to have substantial local and background knowledge. There would be no point in a planning officer's report setting out in great detail background material for example in respect of local topography, development planning policies or matters of planning history if the members were only too familiar with that material."

In the same passage referring to the situation where no reasons are given by members Sullivan J stated:

"Where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless of course there is some indication to the contrary. Moreover it is necessary to consider the members decision in the light of the factual background....a site visit may have been held; there may well have been negotiations with the applicant for planning permission; consultees may have altered or amplified their advice to the council, and so forth."

When I come to consider the submissions relating to paragraphs 31-41 of the petition, I bear in mind the task of the Court in judicial review and that the petitioners require to satisfy a high threshold.

[63] In considering the present case, it is important to bear in mind that in 2008 there was no statutory procedure for developing and approving non-statutory guidance. The whole process was non statutory. There was no requirement to consult or to carry out the processes which would be necessary in relation, for example, to the Development Plan. I note that the Planning etc (Scotland) Act 2006 section 22 makes provision to formalise procedures by Regulations in relation to supplementary guidance but that is not relevant in the present case. No Regulations relating to supplementary guidance applied at the relevant time. I consider that in assessing what was done in the present case, I am entitled to take into account that the respondents did involve the petitioners to the extent that the petitioners were permitted, through their agents, to consider the report by officials and to make both written and oral representations to the full Council of members before the members reached their decisions. The respondents were not obliged to do so, but they did give the petitioners the opportunity to inform the members who were the decision makers.

[64] I consider that the report (6/1 of process) is not to be interpreted as a conveyancing document. Said report includes a great deal of information. I do not consider it helpful to look at revisions to the report which were not before the decision makers. I consider that the members may be assumed to have a familiarity with the local area, local issues and planning processes. The members did not make their decisions in a vacuum. Additional information was given by the petitioners in writing and in oral submission as I set out in paragraphs [11-12]. That information was placed before the members, as decision makers, and must also be taken into account.

[65] As I have summarised in some detail the submissions of the parties in relation to the various paragraphs in the petition, I do not repeat these submissions which I have taken into consideration.

Paragraph 31

[66] I am satisfied that the members were informed about the views of the Reporter in relation to the Reporter's conclusion that the Market Park site is sequentially the best site in planning policy terms. It should be borne in mind that the Reporter did not make any decision in relation to the application at Duchlage Farm and his decision did not predetermine the outcome of that application. It is plain that the Reporter came to his conclusion on the basis of his view about the location of Market Park and the application of the relevant planning policy. The Reporter's conclusion must be understood in the context of the planning policy. The report inter alia gives a location description of the siting of Market Park. That location, in any event, is likely to be within the local knowledge of the members. The formation of a view about distance, which is referred to in the report, or the formation of such a view by members from local knowledge, is not in my opinion expressing a view about the planning merits in terms of the relevant policies. Such a reference in the report, does not in my opinion amount to a challenge to the Reporter's conclusion. I consider that the facts and circumstances in FSH Airport (Edinburgh) Services Ltd are very different. The problems in that case arose in a different statutory context in relation to objections to the local plan. I am not persuaded there is any error of law.

Paragraph 32

[67] I consider that the petitioners' submissions were unreasonably critical of the report. I consider that the report is correct to explain that the planning permission granted for retail development at Market Park cannot be implemented unless the respondents agree to relinquish their interest in the lease. I accept, as a matter of law, that the planning permission can be kept alive for a period by the commencement of certain, even minimal, development. But it is plain that until the petitioners obtain control of the land, which they cannot do so long as the lease remains in force and unchanged in its terms, the retail development at Market Park cannot be built. The report is describing the reality of the situation to members not making a subtle legal point about planning law. I do not consider it necessary for the report to speculate about other possible ways in which the lease might be brought to an end such as by successful legal proceedings raised by the owners of the land against the respondents. Looked at broadly and fairly, I consider the statement complained about does not materially misrepresent the factual position.

Paragraph 33

[68] I consider that the petitioners have raised a minor issue of no significance in judicial review proceedings. There is discretion about what is to be included in the report. Not every single detail in the long and complex history required to be included. In any event, information from the petitioners about the recreational value of Market Park is contained in 6/12 of process which was given to members. I consider that there is no merit in the submission based on paragraph 33 of the petition.

Paragraph 35

[69] At the commencement of the report in paragraph 4, the report acknowledged, "... that the Market Park site fits the retail sequential test best as it is an edge of centre site and as such, has the most scope for encouraging trips to the town centre." There is no dispute that the respondents have accepted since August 2005 that sequentially, Market Park is the best site for a new supermarket because of its location in relation to the town centre. That is specifically referred to in paragraph 8 of the report. The Reporter's conclusions are contained in Appendix 2 and specifically referred to paragraph 33 of the report. I consider that there is no merit in the issues raised in paragraph 35 and it is not clear why the petitioners have chosen to focus on paragraph 66 of the report to the exclusion of other relevant passages. As the Reporter observes in paragraph 302 of his report, the respondents'

"own independent retail study has concluded that Market Park is the best site, being sequentially favoured in terms of NPPG/SPP8 policy guidance, and the one most likely to integrate well to the town centre. This compliance with national policy carries very substantial weight, despite lack of support from NPPG 11. The site also has significant benefits in terms of future pedestrian links and the provision of additional parking for the town centre."

All this information was given to members, who in any event might be expected to be familiar with the issues. I consider that the issues underlying this paragraph are without merit.

Paragraphs 34, 36 and 37

[70] Paragraphs 34, 36 and 37 of the petition, relate to irrelevant considerations which the petitioners submitted had been wrongly taken into account.

Paragraph 34
[71] The recreational value of Market Park is an important issue and that is recognised by the Reporter. The Reporter chose to give more weight to policies and guidance in support of protecting the town centre from potential economic harm than to issues regarding the loss of open space and sporting facilities. I consider that the information about these issues included in the report including a concern expressed about costs is relevant. The issue of recreational value was plainly regarded as relevant by the Reporter and does not in my opinion become irrelevant because he has granted planning permission. The discussion in the report is about a balancing exercise expressing views about weight and importance. In my opinion these are matters of planning judgment fairly and reasonably expressed in the report.

Paragraph 36
[72] This raises a number of different points in relation to the lease by the respondents of Market Park. To the extent that the submissions of the petitioners criticised the respondents' actions in using "the private rights which they have under the lease", I have dealt with this in paragraphs [60] and [61]. I also consider that the respondents are entitled not to formulate their planning policy in a vacuum without regard to what they consider to be the realities of the situation. That includes the existence of the lease and the likely continued existence of the lease so far as the respondents are concerned. It is important to bear in mind that the report clearly recognises that the petitioners have planning permission in relation to Market Park. This is not a situation in which planning permission has been refused for Market Park because the planning authorities hold the lease. The starting point for the reconsideration of the policy is the acknowledgment in the report that Market Park has been granted planning permission. In considering the policy which may be adopted in relation to the Duchlage Farm site, the report considers various planning options in relation to that site and comes to a view in planning terms which takes account of what is considered to be the reality of the situation. That is a judgment to be made, which the report considers, and to which members of the respondents are entitled in my opinion to have a view. I consider that it is important to note that in paragraph 11 of the report, the report makes reference to various financial interests which the respondents have in relation to both sites. The report states that "these financial interests are not relevant planning considerations and have played no part in the recommendations contained in this report." In my opinion, the report is making it plain that planning policy is not to be decided by taking into account irrelevant considerations such as financial gain which the respondents might obtain as a result of selling property interests. I consider that is the correct approach. This is not a case in which the planning policy has been improperly influenced by the potential financial gain or loss which might be the result of a certain planning outcome. I do not consider that it is Wednesbury unreasonable for the report to recognise that, albeit planning permission has been granted to Market Park, that relates to a site leased by the respondents. There is reference, for example, in SPP 8 at paragraph 16 (14 of process) that "stakeholders should work together to take account of commercial realities in the preparation of the development plan". If commercial realities are relevant to the development plan, I see no reason why said considerations should not be relevant also to non statutory guidance.

Paragraph 37
[73] On the evidence before me, I am not persuaded that the official responsible for the e-mail (6/10 of process) influenced the preparation of the report. The petitioners asserted that the reference in the report to the opportunity to acquire land interests for use for educational purposes is an irrelevant consideration for planning purposes. No case law was referred to in support of this proposition. My understanding is that it is common and well accepted that Councils, as planning authorities, have regard to the opportunities for land assembly and for development in the planning policy process. I consider that counsel for the respondents are correct in this case in submitting that the acquisition of land for purposes such as education and the timing of such acquisition may serve a planning purpose.

Paragraph 38
[74] I consider that the short answer to the petitioners' submissions is that the respondents allowed the petitioners to make both written and oral submissions. The said submissions made reference to potential use of compulsory purchase orders to take forward the educational proposals. In any event, I consider that it might reasonably be inferred in the context of this case, that this would be a matter within the knowledge of members. I do not consider that the petitioners are entitled to focus entirely on the report to the exclusion of other information put before the members and to the exclusion of the local knowledge of the members. It is the totality of the information before members which informed the decision making.

Paragraph 39
[75] Members had available the Reporter's views in paragraphs 272 and 283. I do not consider that fairly interpreted, the report misinterpreted the Reporter's decision letter, but in any event members were given the opportunity to consider for themselves the views of the Reporter. I consider that the more significant question is whether or not it is irrelevant, in terms of planning policy, to include information about the offer by the developers of Duchlage Farm to pay a contribution towards remediation works on part of the site at Market Park. It is not disputed that where there is "some connection", such an offer may be relevant and may properly be considered in relation to determination of a planning application. Taking into account the approach of Lord Scarman in Westminster Council, the test of what is a material "consideration" in the preparation of plans is whether it serves a planning purpose. A planning purpose is one which relates the character or the use of land (page 670C-D).

I have not heard evidence and I am not in a position to determine the nature and extent of any connection. Prima facie there appears to be some stateable connection. It is not obvious to me that there is no relevance in planning terms and the petitioners have not persuaded me that this issue is irrelevant. I refer to Tesco Stores Limited.

Paragraph 40
[76] The submissions in relation to this (on an esto basis) were to the effect that a relevant matter, namely the petitioners' offer to purchase the lease, had been omitted from the report when it should have been referred to. I consider that it is reasonable that the respondents, guided by their view of planning merits including the planning value of open space at Market Park, should decide whether or not they wish to dispose of the lease. As I have stated, I do not consider that they are under any obligation to do so. I note that the Market Park site has been granted planning permission and the purchase of the lease is entirely unrelated to the question of planning gain. That is to be contrasted with the offer discussed in paragraph [75]. I agree with the submission of counsel for the respondents in relation to this for the reasons given. I also consider that it is odd that the petitioners now complain that the respondents kept confidential a matter which the petitioners asked to be kept confidential.

Paragraph 41

[77] The matters raised are in my opinion matters of planning judgement. I consider that the respondents' submissions are well founded for the reasons given by counsel.

Title and Interest to Sue
[78] Logically the issue of title and interest should be considered prior to the merits of the petition. I consider however, that in a petition which raises so many issues, there may be merit in trying to unravel the issues before addressing title and interest. For the petitioners, this matter was addressed only by senior counsel. I set out his submissions in paragraph [47].

[79] The principles in the case law are perhaps relatively easy to state and are not in dispute. It is not always easy, however, to apply these principles to the particular circumstances of the case. The petitioners rely entirely on the fact that they are objectors in the outstanding planning application in relation to the Duchlage Farm site. That is said to be the point of distinction which puts them in a different situation from the claimants in the cases cited on behalf of the respondents. I consider that it is important to keep in mind that the petitioners' rights as objectors are within a particular statutory structure designed to deal with the determination of a planning application or appeal. In Edgar Roe Property Company LLP, Lord Carloway commented in paragraph 29

".. the framework within which Town and Country Planning operates is exclusively statutory. The relevant statutes, notably the Town and Country Planning (Scotland) Act 1997 are designed to prevent any development on land without permission. In that way, they restrict the right of a landowner to use his land as he wishes. Other person have no general title to object to such use, other than if it affects the enjoyment of their own land, otherwise poses a danger to their health or infringes some other legal right they possess. The determination of whether planning permission ought to be granted is left to the local planning authority (the local council) or the Scottish Ministers. It is then in the political rather than the legal field that Parliament has determined such a decision should initially be taken....there is no formal right of objection given to specific persons in the planning process."

Lord Carloway explains that there are procedures of notification whereby representations may be made. Lord Carloway does not deal specifically with the provisions relating to the development of policy. Different statutory provisions relate to policy such as the development plan. But the point Lord Carloway makes has a more general application in my opinion.

[80] In this case it should be borne in mind that the petitioners have obtained planning permission despite the existence of the non statutory policy approved by the respondents in 2006. The petitioners did not and do not seek to challenge that policy dating from 2006. That will remain as a material consideration if the petitioners are successful in the present proceedings. The weight to be given to any non statutory policy will be a matter for the decision maker and subject to representations by the petitioners. The petitioners have not been given in the statutory provisions any right to object to non statutory planning policy. The petitioners are seeking to challenge such policy, not on the basis of any specific right to object to such policy, but indirectly because they are objectors to the application for planning permission at Duchlage Farm. The petitioners are entitled to object to an application for planning permission. They are entitled to have their objections considered in due course fairly, honestly, reasonably and within the law (Broadway Properties Limited). I am not persuaded that the petitioners' decisions which are the subject of judicial review will be determinative or in some other way detract from such a fair consideration of the petitioners' objections. In my opinion, the decisions of the respondents which are the subject of judicial review do not affect the petitioners' rights. The petitioners' objections may or may not be upheld in the course of a fair consideration. The decision maker may or may not be influenced by any non statutory policy determined by the respondents. The decision making in relation to the application for planning permission at Duchlage Farm will be subject to the oversight of the Court in the normal way by judicial review. In these circumstances, I am not persuaded that the petitioners have title at this stage to seek judicial review of the respondents' decisions.

[81] Turning to consider the interest of the petitioners, I did not understand any separate representation to be made about this on behalf of the petitioners. It was submitted that title and interest both flowed from the petitioners' status as objectors in separate process. The petitioners have a commercial interest they wish to protect and it is obvious that they would prefer not to have planning permission granted for a retail development by a competitor. I am not persuaded that they have an interest to challenge the development of policy which I accept is intended by the respondents to meet various planning objectives which they consider important such as the protection of open space and siting of school premises. The mere commercial interest of the petitioners is not sufficient to found interest in relation to this judicial review and I have difficulty in identifying what interest in law they have to challenge the planning policy. I accept that such an interest might arise if they had title. It may be that in such a case title and interest might be considered intertwined if in some way the petitioners' rights of objection in the context of the statutory planning system have been undermined. If that was the case I consider that interest may also exist.

Conclusion

[82] I am not persuaded by counsel for the petitioners that there are grounds to justify intervention by judicial review and I therefore refuse the petition.