Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [20092010] CSOH NO01.
	OPINION OF LADY SMITH in the Petition of MARY BUCHAN FORBES (FE) Petitioner; Against ABERDEENSHIRE COUNCIL First Respondents; And TRUMP INTERNATIONAL GOLF LINKS Second Respondents; for Judicial Review of the decisions of Aberdeenshire Council to grant planning permissions 2009/1620, 2009/1623, 2009/1629, 2009/1631, 2009/1633 and 2009/2479 ­­­­­­­­­­­­­­­­­________________

Petitioner: O'Neill, Q.C.; Drummond; Drummond Miller

First Respondents: Creally; Biggart Baillie

Second Respondents: Martin, Q.C.; Burnett; Dundas & Wilson

6 January 2010

Introduction

[1] This petition concerns plans to build a golf course and associated leisure development in an area along the coast to the north of Aberdeen. The second respondents have outline planning permission for the development. The hearing before me concerned the grant by the first respondents to them of full planning permission (ref. FIAPP/2009/2479) to carry out works to an area of sand dunes for the purpose of stabilising them. The petitioner sought the following interim orders:

(1) Suspension ad interim of the full planning permission for the work on the sand dunes;

(2) Interdict ad interim of the second respondents or anyone or their behalf from acting upon or otherwise implementing that planning permission.

Chronology of relevant events
[2] The site to which the petition relates is land at Menie House, Balmedie, Aberdeenshire. To put the petitioner's application in context, I propose to begin with a summary in chronological order of the events which form the background to the grant of full planning permission referred to in paragraph 1 above. They are as follows:

(1) 27 November 2006: The second respondents applied to the first respondents for outline planning permission for their proposed golf course development.

(2) 4 December 2007: Scottish Ministers called in the second respondents' application for determination by them (Town and Country Planning (Scotland) Act 1997 s.46).

(3) 10 June - 4 July 2008: A public local enquiry was held. The report of the enquiry (6/1 of process) lists under the heading "objectors" various specific names and "2084 letters or e mails". The petitioner signed a letter which appears to have been written by her son, Mr M Forbes, objecting to the application for outline planning permission. I assume that it was one of the 2084 letters referred to.

(4) 10 October 2008: The Reporters to the public local enquiry reported to Scottish Ministers in 6/1. It was an extensive and detailed report. Shortly put, their recommendation was that outline planning permission should be granted subject to various conditions and to an agreement under and in terms of section 75 of the 1997 Act being entered into.

(5) 3 November 2008: Scottish Ministers gave notice that they were minded to grant the outline planning permission recommended subject to a section 75 agreement.

(6) 16 December 2008: Outline planning permission was granted to the second respondents for a golf course and resort development on land at the site subject to various conditions (6/2 of process). The conditions set out a number of reserved matters in respect of which full details required to be submitted to and approved in writing by the first respondents prior to the commencement of the relevant works. Some of those conditions arose directly from the Scottish Ministers' consideration of the environmental matters raised and considered at the inquiry and reported on in 6/1. Examples are condition 9 which provides:

" 9. The championship golf course hereby permitted shall be constructed in accordance with the drawing entitled Golf Masterplan, drawn by Hawtree Ltd. , dated February 2008, submitted as a document to the public inquiry as plan T2, unless otherwise agreed in writing by the planning authority , in consultation with SNH.

Reason: because the environmental implications of plan T2 have been assessed by the planning authority in consultation with SNH." ,

condition 10, which provides:

"10. No provision shall be made for mechanical/electrical golf buggies to be used on the championship golf course.

Reason: to give effect to the evidence given in support of the development by the developer and to protect the environmental sensitivities of this part of the site."

and condition 11(i ) , which provides:

"11. Prior to any works commencing in relation to either golf course , an Environmental Management Plan prepared to an industry- recognised standard (either IS400001 or the European standard EMAS) shall be submitted to and approved in writing by the planning authority, following consultation with SNH. The Plan shall relate to both the construction and operational phases of the development and shall include full details of :

(i) methods and areas of stabilisation within the dune systems;"

(7) On or about 13th October 2009: The second respondents applied for full planning permission for the planting of marram grass, preparatory earth works and chestnut pale fencing on the inner dunes at Menie Links at land at Menie Estate ("the marram grass works").

(8) 27 October 2009: The first respondents' Formartine Area Committee reported on the second respondents' application for full planning permission for the marram grass works. It was noted that the objective of the proposal was to stabilise a large area of mobile bare sand through the establishment of marram grass to facilitate the construction and operation of the planned golf course. However, it was noted that marram grass planting works required to be undertaken within a window which commences in October through to the end of March since, at that time, the vegetation is dormant and ground water, soil/sand moisture content and weather conditions are likely to be favourable. Further, no marram grass planting can commence prior to October or after March so as to avoid the bird breeding season and drier spring conditions. The committee noted, at paragraph 6.1 of its report, that the application for full planning permission sought consent for one aspect of the complete "package" for which outline planning permission had been granted. Similarly, at paragraph 6.12 , it commented:

"...this application is specifically linked to the Outline Planning Permission. Whilst this application may be perceived as premature by those against the wider development information has been submitted which addresses the relevant conditions of the outline permission in respect of this proposal."

The committee observed that a team of ecological clerks of works had been sourced by the second respondents, that that approach recognised the diverse nature of the site and that, in addition, the Menie Management Advisory Group (MEMAG) had been established. It recommended that whilst the planning permission sought should be granted it should be subject to nine conditions, numbers 3,4,5,6 and 7 of which expressly related to the nature conservation interests of the site, its ecology and the sensitivity of the site.

(9) 12 November 2009: The first respondents granted full planning permission to the second respondents ( 6/14 of process) for the marram grass works subject to various conditions as recommended in 6/8, including conditions to reflect those recommended by the Committee in their conditions 3-7, as referred to above. Condition 3 provides:

"No works in connection with this development hereby approved shall take place until such time as a bond has been concluded to the satisfaction of and lodged with the Planning Authority. The bond shall be in such terms and of sufficient value to ensure that the site can be restored in accordance with a scheme to be agreed by the Planning Authority in consultation with SNH.

Reason: In the event that the development does not proceed the nature conservation interest of the dunes could be restored appropriately to a natural state".

and condition 5 provides:

"No works in connection with this development shall commence until the terms of reference for the Ecological Clerk of Works has been agreed in writing with the Planning Authority in consultation with SNH. Thereafter all works shall be carried out in accordance with the Detailed Method Statement dated July 2009 and supplementary statements dated September 2009 and October 2009.

Reason: To ensure that all works relating to the ecological interests of the site are undertaken in the appropriate and agreed manner".

(10) 19 November 2009: The second respondents commenced work on the sand dunes in accordance with their planning permission. It was not suggested that the works are, in any respect, being carried out in a manner which fails to comply with that permission and the conditions attached to it.

[ 3] The second respondents' application for full planning permission for the marram grass works was advertised in accordance with s.34 of the 1997 Act. The petitioner could have made representations in relation to that planning application. Had she done so, the first respondents would have been obliged to take them into account under and in terms of s.38 of the 1997 Act. The petitioner made no such representations.

[4] The Issues

The motions before me being motions for interim suspension and interim interdict, the principal issue was whether the petitioner had demonstrated that she had a prima facie case and, if so, whether, in the light of that prima facie case, the balance of convenience favoured their being granted.

As far as the prima facie case was concerned, two issues arose, namely: (1) title and interest and (2) compliance with the 1999 Regulations and with the 2008 Regulations.

The Petitioner
[5] The petitioner petitions as an individual . She is 85 years old and lives in a mobile home called "Paradise" at Mill of Menie, Balmedie, Aberdeenshire. Her home is situated on land owned by her son and daughter in law, Michael and Sheila Forbes, who live in a house at Mill of Menie. The petitioner's mobile home is situated about 1 kilometre from the marram grass works. Mr Martin, QC, for the second respondents, advised that the works are not visible from where she lives. That was not disputed by senior counsel for the petitioner.

[6] As regards the nature of the petitioner's concern regarding the the marram grass works, the averments in the petition are somewhat opaque. In article 2 it is averred:

"She has an interest in her objections to the applications being considered in accordance with the correct procedures under the Environmental Impact Assessment (Scotland) Regulations 1999. She has title and interest at common law to bring this Petition".

[7] As I have already observed, the petitioner did not object to the second respondents' application for planning permission to carry out the marram grass works.

In article 17, it is averred:

"...the Petitioner has been deprived of the opportunity to be properly consulted and to respond to the relevant material. The Petitioner has not had the opportunity to make representations on the environmental impact of development of these sites and the cumulative impact of development of these sites with the original development".

It is not, though, averred that she would have made representations.

In article 17 reference is made to:

"...the petitioner's right to respect for her family and private life".

No specification is averred of any particular respect in which the petitioner's right to family and private life has been affected.

In article 20 it is averred:

"The First Respondents deprived the Petitioner of her right to make representations at...a pre-determination hearing and so influence the ultimate decision".

It is not , though , averred that the petitioner would have made any such representations.

In article 21 it is averred:

"...the Petitioner had an enforceable legitimate expectation that a pre determination hearing would be held in relation to these applications".

In article 22 it is averred:

"It is of significant relevance to the exercise of compulsory purchase powers that planning permission exists and is in force in relation to these sites. As such, the unlawful granting of these permissions, including the permission over land which the Petitioner occupies at Mill of Menie, has substantially prejudiced and disadvantaged the Petitioner".

However, the petitioner points to no specific prejudice or disadvantage to her that arises from the grant of full planning permission for the marram grass works. I should add that, in sofaras some of the above averments refer to permissions in the plural, the hearing before me focused only on the planning permission granted for the marram grass works. The petitioner does, however, seek to have reviewed not only the first respondents' decision in respect of that application, but their decisions in respect of five other separate applications for planning permission for the carrying out of works in respect of the proposed golf course development. Mr Martin specifically reserved the second respondents' position regarding the competency of a challenge to those five separate decisions being brought under a single petition.

[8] In the course of submissions, Mr O'Neill, Q.C. produced and referred to a letter to the first respondents from the RSPB dated 28^th August 2009 which raised some points of concern from the perspective of their particular interests. He said that the petitioner 'shared those concerns'. However, the terms of the letter were such as to indicate that its author was open to discussion and there was no indication before me that the various conditions that, in the event, were, subsequent to that letter, attached to the grant of permission for the marram grass works, failed to satisfy the RSPB.

The Aarhus Convention
[9] The convention on access to information, public participation in decision making and access to justice in environmental matters ("the Aarhus convention") was signed by the European Union and by European states including the United Kingdom at Aarhus, Denmark, on 25 June 1998. It has three themes, one of which, covered in article 9, is access to justice in environmental matters. That part is, perhaps, the weakest part of the convention in the sense that its language is vague and general and leaves certain matters of substance to national law. Its provisions include:

"..............................

2. Each party shall, within the framework of its national legislation, ensure that members of the public concerned

(a) Having a sufficient interest

or, alternatively,

(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires this as a precondition,

have access to a review procedure before a court of law and/or another independent and impartial body established by law, to challenge the substantive and procedural legality of any decision, act or omission subject to the provisions of article 6 and, where so provided for under national law and without prejudice to paragraph 3 below, of other relevant provisions of this Convention.

What constitutes a sufficient interest and impairment of a right shall be determined in accordance with the requirements of national law and consistently with the objective of giving the public concerned wide access to justice within the scope of this Convention......"

[10] Accordingly, under the Aarhus Convention, as regards access to a review procedure, it is only those persons who are in a position to assert infringement of a right or who have a sufficient interest, as determined in accordance with national law (interpreted in such a way as has regard to the principal of wide access to justice), that are covered by article 9. Thus, the principles of the common law of Scotland relating to title and interest to sue are directly relevant.

[11] Although, for the purposes of domestic law, the Aarhus Convention has only the status of an international treaty, the provisions of which have not yet been formally incorporated into national law, its provisions are not irrelevant. They may be relied upon before and indirectly enforced by, inter alia, this court which should have regard to them where an issue of access to justice in relation to an environmental matter arises. In the course of his submissions Mr O'Neill, referred to Morgan v Hinton Organics (Wessex) Limited 2009 Env LR 30 CA per Carnwath L J at para 19-49 and R v Lyons, 2003 1 AC 976 He also referred to T Petitioner 1997 SLT 724 per Lord Hope at 733-4. Mr O'Neill relied on these authorities for a submission to the effect that the fact of the Aarhus Convention being an international treaty to which not only the UK but the EU are signatories, it should affect the interpretation of ambiguous statutory provisions and the interpretation of the common law so as to arrive at a result which does not place the United Kingdom in breach of what has been agreed to internationally. I accept that submission.

Council Directive of 27 June 1985 (85/337/EEC)
[12] This Directive concerned the assessment of the effects of public and private projects on the environment. It was amended by Directive 2003/35/ of 26 May 2003, referred to below.

Council Directive 2003/35/EC of 26 May 2003.

[13] This Directive provides for public participation in respect of the drawing up of plans and programmes relating to the environment and amends directive 85/337/EEC regarding access to justice in a manner reflective of Article 9 of the Aarhus Convention. Its provisions include:

"Access To Justice.

Member States shall ensure that, in accordance with the relevant national legal system, members of the public concerned:

(a) having a sufficient interest, or alternatively,

(b) maintaining the impairment of a right, where an administrative procedural law of a Member State requires this as a precondition;

have access to a review procedure before a court of law or another independent and impartial body established by law to challenge the substantive or procedural legality of decisions, acts or omissions, subject to the public participation provisions of this Directive.

Member states shall determine at what stage the decisions, acts or omissions may be challenged.

What constitutes a sufficient interest and impairment of a right shall be determined by the Member States, consistently with the objective of giving the public concerned wide access to justice".

Thus, again, it is evident that it is not every member of the public who can assert "access to justice" rights. A member of the public must have a "sufficient interest" and must, under national law, fall within the category of "public concerned". Through the language of the Convention and the language of the Directive, it appears clear that it is not enough to be a citizen of the United Kingdom. Something more is required and that something more must be capable of being described as having a "sufficient interest". It seems equally clear that what amounts to a sufficient interest could vary from Member State to Member State and, equally, within an individual Member State, vary according to the facts and circumstances of the individual case.

Title and Interest

[14] In advancing his submission that the petitioner had title and interest to sue, senior counsel for the petitioner, whilst stressing the importance, when interpreting the common law of Scotland, of having regard to the terms of the Aarhus Convention, accepted that the petitioner required to pass through the gateway of "sufficient interest". That was always, he submitted, going to be a low threshold because of the underlying principle that states should ensure wide access to justice. He submitted that when it comes to general public rights, there was no need to have regard to individual interest and properly understood, Scots law should develop in line with English law which, he said, sees sufficient interest being established by being a neighbour, being a recognised group in respect of a particular interest or being a recognised non - governmental organisation. That submission appears, however, to ignore that this petition is brought by the petitioner as an individual, not as representing any group or organisation and as occupier not of adjoining property but of a mobile home situated about a kilometre away from the works. So far as the apparent position in England is concerned, I deal with that below.

[15] The concept of wide access to justice is not further defined either in the Convention or in the relevant Directive and it seems doubtful that it adds very much, if anything, to the notion of sufficient interest. Justice connotes the impartial adjustment of conflicting claims. Accordingly, those who seek to assert a right or on the basis of an identifiable interest, require to be afforded access to justice, so as to seek the resolution of that issue by a court or tribunal established by law, provided it is an issue in which they have a sufficient interest. However , neither the Convention nor the Directive require Member states to regard each and every one of their citizens as having a sufficient interest in every environmental issue which arises.

[16] A member of the public can, clearly, bring themselves within the category of those who have demonstrated "sufficient interest" by objecting to a planning application. Thus, in the case of Uprichard v Fife Council and Others 2000 SCLR 949, Lord Bonomy rejected the argument that the petitioners had no title and interest to challenge the grant of planning permission to a developer for the erection of a hotel and associated facilities in St Andrews, an argument which was advanced on the basis that they were not directly and prejudicially affected by the decision to grant planning permission because, as he explained at p.952E-F:

"While I agree with counsel for the respondents that the averments about the pleasure the petitioners find in the landscape around the application site, and their averments about their connection with the locality, supplemented by affidavits, do not give them an interest the law recognises to challenge a planning decision, albeit they consider that the development permitted might affect their amenity, the petitioners also aver that their representations were not considered in the context in which the first respondents were bound to consider them. I acknowledge that the petitioners do not claim that the first respondents failed to have regard to their representations. The petitioners made representations about the detrimental impact of the proposed development on the landscape and views of the landscape".

And, at p.953C:

"In my opinion the petitioners have an interest to challenge the grant because they aver that the particular representations which they made related to matters which they aver should have been dealt with and considered under materially different procedures as a matter of law".

The petitioners had objected to the application for planning permission and were able to demonstrate an interest to challenge the grant namely an interest in having those representations which they had made by way of objection dealt with in accordance with proper procedures.

[17] It is trite that a party to an action must have both title and interest. Title may be said to involve being be a party to some formal legal relationship which gives him some right against the other party. In this case the petitioner founds on the fact that she is a member of the public who lives in the locality of the sand dunes. So far as interest is concerned, the authorities in Scotland support the description provided at paragraph 4.29 of Macphail: Sheriff Court Practice:

"Some benefit from asserting the right with which the action is concerned or from preventing its infringement".

To put it another way, the individual who seeks to challenge a grant of planning permission such as is concerned here must be able to show that she is affected by it in some identifiable way.

[18] Thus, the petitioners in the Uprichard case were able to demonstrate they sought to secure for themselves the benefit of proper procedure with regard to their preiviously intimated objections. Conversely, in the case of Bett Properties Limited v The Scottish Ministers 2002 SLT 1131, where the petitioners sought to challenge a grant of planning permission to Sainsburys, for a supermarket development on a site very close to a site for which they had sought similar permission and in respect of which their appeal was outstanding, were found not to have title and interest. The petitioners had not objected to the Sainsbury application and the fact that their appeal had been conjoined with the appeal of an applicant who had applied for permission to develop Sainsbury's site was simply a matter of administrative convenience and did not, in effect, put the petitioners in the same position as those other applicants. Remaining with the planning context, I note that the title and interest of the petitioners, in the case of Swan v Secretary of State for Scotland 1998 SC 479, to challenge the payment of a grant for the afforestation of an area adjacent to Greenlaw Moor, Berwickshire, was not questioned where the petitioners were not heritable proprietors but were a shooting tenant, a neighbour who visited the moor frequently and a person who taught and practised ecology and landscape studies and used the moor for field studies for students and for his own research. I do not, however, see that the fact that their title and interest to challenge the respondents' decision to pay the afforestation grant was not put in issue can be relied on as authority for the proposition that they had the requisite title and interest, as appeared to be the approach of senior counsel for the petitioner. Further, and in any event, each appears to have been in a position to demonstrate a particular interest in the moor remaining unaffected by tree planting.

[19] Other authorities to which reference was made in the course of the hearing before me were Grahame v Magistrates of Kirkcaldy (1882) 9R (HL) 91, McPherson v Scottish Rights of Way and Recreation Society Ltd (1888) LR 13 at App. Cas. 744 and Wallace-James v Montgomery & Co Ltd (1899) 2F 107. In Grahame, title and interest flowed from the fact that the pursuer sued in respect of the use of land which had been vested in the community as a whole and he did so as a member of that community. In McPherson, an action was raised by a society whose purposes included the furtherance of public rights of way and two members of the public sued in respect of what they claimed to be a public road or right of way. In Wallace-James the pursuer sued as a member of the public in respect of land which formed part of the common good. These were, accordingly, cases where pursuers sought as members of the public, to assert rights which had been vested in the public.

[20] Senior counsel for the petitioner also founded on two other Scottish authorities. The first was Lochore v Moray District Council 1992 SLT 16 where the petitioner was found to have title and interest in circumstances where he sought to challenge the fact that a planning application had been amended so as to show that he was no longer a co-terminous proprietor. The title and interest of that petitioner is not difficult to understand. Under the relevant statutory provisions, as a co-terminous proprietor, the petitioner would have been entitled to have the application served on him. The allowance of the amendment had removed that entitlement. The other authority on which reliance was placed was the case of McCall v Crofters Commission [2007] Housing Law Reports 46, where in rejecting a challenge to title and interest, Lord Malcolm, under reference to the case of D & J Nicholl v Dundee Harbour Trustees 1915 SC (HL) 7 and the indication there given by Lord Dunedin that for a person to have title to sue he must be a party to some legal relation which gives him some right said:

"It is plain that the language used was not intended to be construed in a technical or restrictive fashion".

Thus, in McColl, Lord Malcolm found that the executor of the late owner of a croft had title and interest to bring an action for reduction and production of the consent of the Crofters Commission to a grant of tenancy. I have no difficulty in agreeing with Lord Malcolm that Lord Dunedin's words were not intended to be construed in a technical or restrictive fashion. The same applies to a consideration of whether a party has sufficient interest. Such will depend on the particular facts and circumstances of the individual case.

[21] A separate strand of the submissions by senior counsel for the petitioner was to the effect that, in England, the petitioner would be considered to have the requisite title and interest. The first or second respondents' counsel submitted that no weight should be accorded to that submission since it was made without the support of authority but, in a second speech, senior counsel for the petitioner referred to two cases. The first was the case of R (On the application of Edwards) v Environment Agency (No.1) [2004] 3 All ER 21. The case concerned a cement plant and the Environment Agency having granted a permit for the use of tyre chips as a partial substitute for fuels used in its operations on a trial basis, without application of an environmental statement. Whilst the application to the Court was brought in the name of Mr Edwards, matters were approached on the basis that he was not bringing his claim as an individual but he was bringing it on behalf of himself and other local inhabitants. He had not objected to the granting of permission, but a local action group had done so and he was regarded as representing them. The second case was R v Somerset County Council ex p Dickson [1998] Env.LR 111, an application for leave to apply for Judicial Review. In refusing leave where the applicant was not a landowner and had no personal right or interest threatened by the proposed development, Sedley J rejected the argument that the applicant lacked the requisite standing. However, he noted that the applicant was a local resident, a parish councillor in the area of the proposed development, a member of the executive committee of the Somerset Association of Local Councils, a member of more than one body concerned with the environment and a candidate for election to the District Council covering the quarry which was the subject of the planning permission in question. In those circumstances, he would have regarded him as having sufficient interest. At p.7, he said:

"Public law is not at base about rights, even though abuses of power may and often do invade private rights; it is about wrongs - that is to say misuses of public power; and the Courts have always been alive to the fact that a person or organisation with no particular stake in the issue or the outcome may, without in any sense being a mere meddler, wish and be well placed to call the attention of the Court to an apparent misuse of public power. If an arguable case of such misuse can be made out on an application for leave, the Courts only concern is to ensure that it is not being done for an ill motive. It is if, on a substantive hearing, the abuse of power is made out that everything relevant to the applicant's standing will be weighed up, whether with regard to the grant or simply as a form of relief".

[22] Even, however, on that strong affirmation of the need to take a liberal approach to questions of interest, Sedley J acknowledged that "standing" or interest is not a matter of foregone conclusion. Whilst at pains to point out that not only those who assert invasion of their rights who may be entitled to challenge abuses of power by way of judicial review, he nonetheless acknowledged that the applicant must be able to point to something that gives them requisite interest and, moreover, that in each individual case, the Court requires to assess whether what is advanced is enough. Furthermore, the application was for leave; standing would fall to be judged at a later stage in the procedure. Also, the applicant was able to point to numerous respects in which he could show what appears to have been a really quite powerful interest in the planning issue which arose.

[23] I am not persuaded that the petitioner's case here is on all fours with either the case of Dickson or the case of Edwards. Those were the only two authorities relied on by senior counsel for the petitioner in support of his proposition that, in England, it would have been accepted that the petitioner had title and interest. In these circumstances, his further submission to the effect that if it were to be found that this petitioner did not have title and interest that would demonstrate an inter-jurisdictional conflict within the UK which would be unfortunate from the European perspective also falls to be rejected.

[24] Mr O' Neill sought support from the judgment of the European Court of Justice (Second Chamber) in the case of Djurgarden - Lilla Vartans Miljokyddsforening v Stockholms kommum genom dess marknamnd Case c -263 /08 where the provisions of the Aarhus Convention concerning access to justice ( Article 2(2)) and of the Directive 85/337 were discussed. He submitted that it was authority for the proposition that even if an applicant failed to make representations at the initial stage of a planning procedure prior to the making of the relevant planning decision , under European law, they required to be given the opportunity to appeal against that decision . Mr Martin's interpretation of the judgment was to contrary effect, namely that the case was authority for the proposition that it was not open to a national court to block an applicant from appealing on the basis that he had already objected, at the earlier stage; he was not to be confined to 'one bite at the cherry' but was to be permitted to take his objection forward on appeal. I have to confess to having some difficulty in identifying, from the terms of the judgment, which of the two interpretations is correct although it seems likely that Mr Martin's is the correct one and is summarised by the court at paragraph 38:

"....participation in the decision - making procedure has no effect on the conditions for access to the review procedure."

[25] However, more to the point is that the decision relates only to the rights of those who can be described as "public concerned" as defined by the Directive, namely persons affected or likely to be affected by or having an interest in the relevant environmental decision making procedures ( Article 1(2)). Thus, if the petitioner cannot demonstrate interest, even if Mr O'Neill's interpretation of the case is correct , it does not help her cause. Mr O' Neill also referred to the case of Unibet ( London) Ltd v Unibet (International) Ltd, a decision of the Grand Chamber of the European Court of Justie of 13.3.2007 for a submission concerning the requirement that an individual's community law rights must be no less favourable than those governing similar domestic actions ( paragraph 43) and that national courts must be in a position to grant interim relief to ensure the full effectiveness of the judgment to be given on community law rights . However , I am not persuaded that failing to find that the

petitioner has the interest that the convention lays down as a pre-requisite amounts to a failure to provide the former or that a grant of interim orders is required to achieve the latter, which would appear to relate to the need to prevent irreversible change in an appropriate case .

[26] I turn then to the facts of this case. The petitioner's circumstances are outlined above. Whilst there are averments in the petition to the effect that the regard should be had to the petitioner's rights under Article 8 of ECHR, no averments of fact are made to support that general proposition. Mr O' Neill submitted that the permission had been granted in the context of an overall development which surrounded the site on which she lived. So, in short, so far as title and interest is concerned, the facts are no more than those to which I refer in the "Petitioner" section above which do not show that she is affected in some identifiable way. In my judgment, those facts do not show that she has a prima facie case of sufficient interest to challenge the grant of planning permission for the marram grass works.

Development: Statutory controls

[27] Parties were in agreement that the marram grass works constituted a development under and in terms of the provisions of the Town and Country Planning (Scotland) Act 1997. Mr Martin submitted that, of its nature, it was very much at the minimal end of the development scale and that does seems to be correct. That it forms a part of a much larger scheme, namely the golf course and associated leisure development for which outline planning permission has been granted, was also not disputed.

(a) Nature of the Planning Permission for Marram Grass Works

[28] The petitioner's case was predicated on the basis that the permission for the marram grass works was in respect of an independent application and amounted to a separate, stand alone planning permission. The respondents' approach was to the contrary. In short , in their submission , it and the outline planning permission together fell to be regarded as a single package insofar as relating to those works. For the reasons that follow, I accept that the respondents' approach is the correct one.

[29] The planning history of both the outline planning permission for the whole development and the specific detailed permission for the marram grass works is outlined in the above chronology. For present purposes it is sufficient to note that the outline planning permission , whilst referring to planting work , makes plain that the details of any such work were a reserved matter. Further permission was, accordingly, sought. One way forward was to apply for full planning permission under s.27 of the 1997 Act, in an application which specified the details of the proposed works. That is how the second respondents proceeded. The second respondents could have proceeded by asking for 'multi stage consent' but did not do so. It is defined in the EIA Regulations, to which I refer below, as being where application is sought for approval of reserved matters.

[30] In terms of s.37, the relevant planning authority may grant planning permission either unconditionally or subject to conditions; in this case, both the outline planning permission and the detailed permission for the marram grass works were granted subject to conditions.

[31] Outline planning permission is planning permission which is granted with the reservation for subsequent approval by the planning authority of matters not particularised in the application (s.59 of the 1997 Act). Where the holder of outline planning permission wishes to start developing any land covered by outline planning permission he, accordingly, needs further approval. He may proceed by seeking approval of reserved matters. Alternatively, he may lodge an application for full planning permission, as happened here. If his application is in respect of land covered by the outline permission and for development in accordance with that covered by the outline permission then the grant of such an application has the same effect as the grant of approval of reserved matters: Cardiff Corporation v Secretary of State for Wales (1971) 22P&CR 718; Etheridge v Secretary of State for the Evironment and Another(1984) P&CR 35. To put it another way, in such circumstances, the subsequent application for full planning permission is not to be regarded as a 'stand alone' application divorced from the outline permission to which it relates. In the Cardiff Corporation case, Thesiger J commented:

"After all, a complete application is a combination of an outline of the development proposed and of the detailed plans."

and in Etheridge, Thesiger J's approach in the Cardiff Corporation case, was applied by Woolf J , as he then was , when determining the issue of whether an application for the grant of full planning permission in respect of a site that already had the benefit of outline planning permission could amount to approval of details required by that pre existing outline planning permission. He made the following observations, at p.40:

"The applications in this case could be regarded .................as full and complete applications for planning permission. The permissions that were granted could be regarded as detailed permissions in respect of those applications. However, that does not mean that they did not also include approval of the details that was required by the original outline planning permission. In my view in this case they inevitably did have the result of providing an approval of details in respect of at least one site, which was required by the outline permission."

Mr O'Neill refered to the Inner House having, in the case of Campbell v Argyll and Bute District Council 1997 SCLR 197, expressed doubt about part of Woolf J's reasoning at p.40 but I do not understand that doubt to relate to the matter at issue here, namely, whether the outline permission and a particular subsequent detailed full permission ought , so far as the matters to which the latter relates are concerned , to be regarded as a unum quid.

[32] Turning to the present case, it is clear from the terms of 6/8 that the first respondents judged the second respondents' application for full planning permission for the marram grass works as falling within the outline consent. Accordingly , following Cardiff Corporation and Etheridg , ( I see no reason not to do so ), 6/1 and 6/14 (the outline permission for the whole development and the full permission for the marram grass works) comprise a complete planning permission in respect of the marram grass works . This is relevant when it comes to considering the extent of the first respondents'obligations regarding environmental impact assessments and, in my view, fundamentally weakens the petitioner's case.

(b) Pre- Determination Hearings

[33] S.38A of the 1997 Act provides that regulations or a development order may require that, before determining an application for planning permission for a prescribed class of development, the applicant and other prescribed persons are to be given an opportunity of appearing before and being heard by a committee of the authorities. The classes of development prescribed are "national developments" and "major developments" (Regulation 27 of the Town and Country Planning (Development Management Procedure) (Scotland) Regulations 2008). The persons entitled to attend such pre-determination hearings are only those persons who have submitted representations to the planning authority in respect of the application in question (Regulation 27(2) of the 2008 Regulations). The petitioner seeks to found on an alleged failure by the first respondents to hold a pre-determination hearing in respect of the application for planning permission for the marram grass works. However, since she did not submit representations to the planning authority in respect of that application , she does not fall within the category of persons entitled to attend such a hearing.

(c ) Commencement of Development

[34] Before leaving the 1997 Act, I note that under and in terms of s.27, where development consists of the carrying out of operations it is to be taken to be initiated when those operations are begun. Accordingly, the marram grass works having commenced, the development to which planning permission challenged by the petitioners relates, has already started.

The Environmental Impact Assessment (Scotland) Regulation 1999 ('EIA Regulations')

[35] These Regulations implement Council Directive 85/337/EEC as amended by Council Directive 97/11/EC. The Directive's main aim was to ensure that the authority giving primary consent for a development makes its decision in the knowledge of any likely significant effects on the environment. However, not all development for which planning permission is sought involves a likelihood of impact on the environment. The EIA Regulations recognise that and make provision for environmental impact assessment ('EIA') being required in respect of only a limited class of applications for planning permission. Furthe , the EIA regulations allow for the fact that the route to the grant of full planning permission may involve multiple applications and it is not the rule, even in the case of a development for which an EIA is required that a separate one has to be prepared at each stage of the process.

[36] Regulation 3 of the EIA provides :

"3.-(1) This Regulation applies to every EIA application received by the authority with whom it is lodged on or after the commencement of these Regulations and, for the purposes of this paragraph, the date of receipt of an application by an authority shall be determined in accordance with paragraph (3) of Article 14 (time periods for decision) of the general development order.

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

Where an environmental impact assessment is required, the process of having regard to it is thus shown to be critical. A planning authority's grant of planning permission will be ultra vires if, in the case of an "EIA application", it has not given due consideration to the environmental information provided. However, it is important to note that Regulation 3 applies only to "an application for planning permission" which is in respect of an "EIA development".

[37] If a development is one which, under the regulations, requires an EIA to be carried out it is referred to as an 'EIA development'. To identify those applications which concern EIA developments, a number of questions require to be asked.

First: is the proposed development a development which is listed in schedules 1 or 2 of the EIA Regulations? In the present case, the development for which outline planning permission was sought and granted by Scottish Ministers in 2008 fell within the list of developments in schedule 2 because it constituted a golf course and associated development (schedule 2, column 1, 12(f)). There was no suggestion that the marram grass works fell within Schedule 1 but parties were at issue as to whether they were a development within Schedule 2 .

Secondly: does the development pass any of the relevant thresholds of criteria in column 2 of schedule 2? In the case of golf courses and associated developments, the threshold in column 2, schedule 2 is that the area of the development exceeds one hectare. Plainly, the development for which outline planning permission was sought exceeded one hectare. The area over which the marram grass works are taking place also exceeds one hectare; that was not, however, sufficient, according to the respondents because the works were not separate from those covered by the outline planning permission.

Thirdly: is the development likely to have significant effects on the environment by virtue of factors such as its nature, size or location (see, definition of "EIA Development" in paragraph 2 to the 1999 Regulations) ? That question was answered in the affirmative so far as the application for outline planning permission was concerned and an environmental impact assessment was carried out in connection with it and considered by Scottish Ministers prior to the grant of outline planning permission; 6/1 makes substantial reference to environmental factors having been considered and discussed at the inquiry hearing. Put shortly, the respondents' position was that whilst the question was relevant in the context of the grant of outline permission, it did not require to be addressed again by way of a fresh EIA for the details of the marram grass works.

[38] The petitioner's approach was, as I have noted, to regard the marram grass works as being a separate EIA development. In support of that proposition reliance was placed first on column 1, paragraph 12(f) of Schedule 2 to the EIA Regulations which specifies:

"Golf courses and associated developments."

Mr O'Neill's approach was that the marram grass works were a development, were associated with the proposed golf course development and would cover an area in excess of 1 hectare ( the relevant column 2 threshold). As regards the regulation 2 requirement that for a development to be an EIA development it would also have to be:

"likely to have significant effects on the environment by virtue of factors such as its nature , size or location"

[39] Some reliance was placed on paragraph 13 of Schedule 2 to the EIA Regulations the provisions of which are to the effect that, a change to or extension of a development already authorised will, of itself, constitute an EIA development if it could have significant adverse effects on the environment o , if read in accordance with the Directive, will be an EIA development if the cumulative effects of the change or extension together with the development previously authorised could have such effects ( see: R(Baker) v Bath and NE Somerset Council [2009] Env LR 27 586 per Collins J).

Paragraph 13 of Schedule 2 is not, however, relevant. The matters for which approval was sought in the application in respect of the marram grass works were not a change to or extension of the development for which outline permission was granted. It is plain from a reading of 6/1 that such work was always envisaged. The extent to which the golf course development would involve work to the dunes was covered in detail (see, for instance , paragraphs 4.30 - 4.63). Then, the grant of outline planning permission envisaged both planting and fencing work being required ( 6/2 paragraph 3(ix) and 3(xi)) and the dunes to which the planning permission for the marram grass works relates are within the boundaries of the outline permission (see: 6/16 and 6/17 of process).

[40] In these circumstances and having regard to the EIA regulations , to the fact that the application for permission for the marram grass works was not a separate stand alone application and to the fact that although the application for outline planning permission was an EIA application , the required EIA was provided, I am satisfied that , on the information before me , properly understood, the application for full planning permission for the marram grass works was not in respect of an EIA development.

[41] I turn briefly to the provisions of regulation 3A. They apply to applications for multi stage consent which is defined as being an application for approval of 'reserved matters'. As I have already explained, the second respondents' application was not an application for approval of reserved matters but was an application for full planning permission. However, even if it could be regarded as an application for multi stage consent it is evident that nothing in regulation 3A would have obliged the first respondents to obtain a fresh EIA. They would have been obliged to have regard to the EIA already in their possession ( in connection with the outline planning permission procedure) and any further environmental information including any provided by consultees. Such information was provided by, for instance, Scottish Natural Heritage, but there was no suggestion that the first respondents did not have regard to it and to the prior EIA . Indeed, the terms of 6/8 and 6/14 show that they did.

[42] That though, is not an end of matters , according to the petitioner's submissions. What matters, according to her argument, is correct procedure. Mr O' Neill submitted that the protection of citizen's rights requires that proper procedures be followed, as discussed in Berkeley v Secretary of State for the Environment and another [2001] 2AC 603, a submission which I accept. He went on, however, to submit that in the present case that meant that, even if the correct answer was that the marram grass works were not an EIA development, the first respondents were obliged, under the EIA regulations, to carry out a screening process before so deciding. They did not, it was said, do so. The respondents did not agree; nothing in the regulations obliged the first respondents to carry out a screening process.

[43] Screening is a procedure which is provided for in the EIA regulations whereby a person who wishes to apply for planning permission for a development can request an opinion from the planning authority as to whether or not the proposed development is an EIA development (regs. 2 and 5). The authority must then adopt a screening opinion. The second respondents did not request a screening opinion in respect of the application for the marram grass works. Under and in terms of regulation 7, the planning authority is also required to do adopt a screening opinion if an application for planning permission is made without being accompanied by an EIA and it appears to the authority that the application is a Schedule 1 or a Schedule 2 application. It was not suggested by the petitioner that the second respondents' application was a Schedule 1 application and although the petitioner repeatedly asserted that it was a Schedule 2 application, for the reasons set out above, that is not, in my view, correct. Accordingly, I am not satisfied that the first respondents were obliged to adopt a screening opinion.

[44] I am fortified in my conclusion as to whether or not a screening opinion was required by the discussion about EIA's in the context of multi stage applications in the case of R(Barker) v Bromley LBC (HL(E)) [2007] 1 AC 470 which concerned circumstances where no EIA had been carried out at the stage of granting outline planning permission and an issue arose as to whether the planning authority had the power to require one at the later stage of considering an application for consent in relation to reserved matters; the relevant English Regulations failed to provide for such a power. Following a reference to the European Court of Justice, which held that those regulations failed to implement Directive 85/337/EEC , the case returned to the House of Lords. At paragraphs 22 -23, Lord Hope of Craighead said:

" 22. It does not follow ...........where planning consent for a development takes this form, that consideration must be given to the need for an EIA at each stage in the multi- consent process. The first recital in the Directive directs that the competent authority must take account of the effects on the environment of the project in question at the earliest possible stage in all the technical planning and decision- making processes: see also Wells [2004] ECR I - 723, para 51. In the case of a Schedule 2 development the competent authority must decide at the outset whether an EIA is needed because the development is likely to have significant effects on the environment. An application for outline planning permission should be accompanied by sufficient information to enable that question to be answered and an EIA , if needed , to be obtained and considered before outline planning permission is granted. The need for an EIA at the reserved matters stage will depend on the extent to which the environmental effects have been identified at the earlier stage.

23. If sufficient information is given at the outset it ought to be possible for the authority to determine whether the EIA which is obtained at that stage will take account of all the potential environmental effects that are likely to follow as consideration of the application proceeds through the multi-stage process. Conditions designed to ensure that the project remains strictly within the scope of that assessment will minimise the risk that those effects will not be identifiable until the stage when approval is sought for reserved matters. In cases of that kind it will normally be possible for the competent authority to treat the EIA at the outline stage as sufficient for the purposes of granting a multi-stage consent for the development...."

[45] I take from that discussion that proper procedure does not require that there be a screening opinion at each stage of the planning process. Further, in circumstances where, as in the present case, the grant of outline planning permission is fenced with conditions to ensure that, from an environmental impact point of view, the final development stays within the bounds of what is foreseen and has been the subject of an EIA at outline stage, there will be no need for a further EIA. In the present case, not only was the outline planning permission so designed but as 6/8 demonstrates, the nature and extent of the marram grass works do not go beyond what was originally envisaged and it takes account of the environmental factors identified at outline stage . The petition does not suggest that there is any new environmental factor that arises from the precise detail of the marram grass works. Mr O'Neill submitted that the above passage from Baker supported the petitioner's case because the conditions had changed and there was a separate planning permission. I do not accept that submission. When the nature and content of 6/2 and the planning permission for the marram grass works are compared, I do not conclude that the latter is a change as compared to the former. Further, although the full details of the overall masterplan have not yet been supplied, nothing in 6/8 indicates a departure from the overall scheme for which outline consent was given.

[46] At this stage, I require only to consider whether the petitioner has a prima facie case that the planning permission for the marram grass works is open to challenge on account of the various procedural failings averred. I do not require to reach a concluded view. It will, however, be apparent from the above that my view at this stage is that the petitioner has not made out a case that the proper procedure has not been followed . At best for her it falls to be regarded as one which suffers from considerable weaknesses.

Prima Facie Case

[47] In summary, I have serious reservations as to whether or not the petitioner has established a prima facie case. It is, for the reasons I have explained, highly doubtful that she has the requisite title and interest; I am not persuaded that her present averments demonstrate that she has even when viewed in the light of the oral submissions made on her behalf. Further, her case on the merits is, for the reasons I have explained, a distinctly weak one.

Balance of Convenience

[47] I turn to the balance of convenience.

First, the works are already underway. The conditions which trigger the bond for reinstatement of the sand dunes would not arise if interim interdict were granted so at least part of the works would remain in place in the meantime. However, it is significant that the planning permission has provided for the putting in place of such a bond ; in the event that the development does not proceed, it will , on the face of it, meet any need to see to the reinstatement of the dunes.

Secondly, whilst Mr O'Neill submitted that the court should err on the side of caution because the works would cause significant changes to the ecology of the site and referred to an effect on the flora and fauna in general there are no averments in that regard and he referred to nothing specific in his submissions.

Thirdly, I consider that I should have regard to the fact that it is only projects which are likely to have a significant effect on the environment that can trigger the EIA procedure. However, I cannot, on the petitioner's averments or submissions conclude that there is a likelihood of such an effect arising from the marram grass works. I agree with Mr Martin that insofar as what may be referred to as the precautionary principle applies, it does not mean that the approach must be to allow nothing to occur until it is proved that the proposed works will not cause whatever harm is apprehended. It is for the petitioner to demonstrate the likelihood of harm and not for the respondents to show that there will be no harm.

Fourthly, it is not as if there has been no assessment of the likely environmental effect of the work on the dunes. They were assessed in some detail as part of the work that went into the grant of outline planning permission and, as I have explained, the planning permission for the marram grass works does not relate to a change or extension of the original work.

Fifthly, Mr Martin submitted that an aspect of balance of convenience was that these were circumstances in which it would be open to the respondents to move for caution. He was not doing so but highlighted it as a factor which ought to weigh in the balance of convenience. If moved for that would have been in the context of irrecoverable standing costs of the order of £100,000 per annum and £5 - 10,000 per week that would be incurred by the second respondents even if the marram grass works were stopped. Whilst I cannot express a view as to whether a motion for caution would have been granted, it is nonetheless significant to note the financial consequences to the second respondents if the interim orders were granted and that they would be incurred in circumstances where the petitioner is legally aided and does not appear to have the means to meet a claim for damages in the event of it being subsequently found that the interim orders were not warranted.

.

Decision

[48] In all the above circumstances, I will pronounce an interlocutor refusing the interim orders sought, but granting the usual first orders for intimation and service of the petition.