Scottish Court of Session Decisions

Petitioners: Burnett; Shepherd & Wedderburn

Interested Third Parties: Findlay; Paull & Williamsons, LLP

2 February 2010

Summary
[1] On 9 October 2009 I issued an Opinion in judicial review proceedings at the instance of the petitioners in relation to two decisions of Perth and Kinross Council taken on 17 December 2008. In said Opinion, I set out the submissions which were made to me on behalf of the parties. As I was not persuaded that there were grounds to justify intervention by judicial review, I refused the petition.

[2] The case called again before me on the motion roll on 8 January 2010. The interested third parties made a motion for the expenses of the judicial review proceedings to be awarded in their favour against the petitioners. The motion was opposed on behalf of the petitioners. I was informed that of consent the petitioners had conceded the expenses of the judicial review proceedings to the respondents. There was no appearance on behalf of the respondents.

Submissions for the parties
[3] Counsel for the interested third parties referred me to the principles set out by Lord Justice Clerk Gill in Renewable Energy Systems Limited v The Moray Council dated 4 January 2007. Consideration was given to what principles should be applied and what was reasonable in circumstances where an appellant had unsuccessfully appealed to the Court of Session against the decision of a reporter in a planning appeal. The appeal in the Court of Session had been successfully opposed by more than one party. Having considered the principles in the light of the authorities cited, the Lord Justice Clerk concluded in paragraph [11]:

"The real questions, in my view, are whether the divergence in interest between the ministers and the developer is significant or whether the submission for the developer contributes significantly to the Court's consideration of the case."

In considering the issues he stated:

"... the developer put forward no separate point; but the issues raised by the appellant related directly to the developer's case; namely whether the Reporter had misunderstood and wrongly analysed the landscape and visual impacts of the proposal; whether he had misdirected himself in relation to the cumulative impact of this and other proposed wind farms; and whether he had misdirected himself as to the effect of the proposal on residential amenity. The appeal therefore raised questions as to the merits of the proposal itself and the quality of the developer's evidence. From that it followed, in my view, that the second respondent had a direct interest to oppose it. These considerations apply with particular force since this was a first-stage appeal. The fact that the arguments for the Scottish Ministers and for the developer were the same at the end of the day does not seem to me to affect the matter. In my view, these considerations justify the award of expenses to the developer."

[4] In developing his submission, counsel for the interested third parties drew my attention to the two decisions of Perth and Kinross Council which were under challenge. He explained the interests of the third parties and that there was no identity of interest with the respondents. He submitted that the petitioners had raised factual matters in the petition including the advantages and disadvantages of the Duchlage Farm site. Factual issues were raised also about matters within the particular knowledge of the interested third parties, namely the offer in relation to remediation. He stated that senior counsel for the respondents specifically adopted the submissions made on behalf of the interested third parties and that some new case material had also been presented to the Court. In conclusion, counsel referred to the number and diversity of the issues raised in the petition which made it difficult to predict how these issues might be developed during the judicial review proceedings.

[5] On behalf of the petitioners, counsel submitted that the decisions which were challenged related to supplementary planning guidance developed by the respondents as planning authority. The challenge was not to planning permission granted to the interested third parties. This was not a case in which evidence had been led in relation to planning merits. The respondents had developed the supplementary planning guidance without any input from the interested third parties. The decision making was essentially a matter for the respondents, as the planning authority, and it was for the respondents to defend the decisions if they wished to do so. The interested third parties took a positive decision to become involved but that was their choice. They were defending decisions taken by the respondents but they were not involved in that decision making.

Discussion
[6] It is plain from my Opinion of 9 October 2009 that the planning history is complex and a number of persons had an interest in a broad sense in the decision making of the respondents as the planning authority. There is listed in the Schedule to the petition a number of persons who might be interested in the proceedings. The interested third parties were the only persons who chose to enter the judicial review proceedings. In choosing to become parties, the third parties are presumed to be aware of the principles in relation to expenses explained in Renewable Energy Systems Ltd.

[7] I consider that counsel for the petitioners was correct to highlight that this was not a case involving a challenge to a planning permission held by the interested third parties. I consider that is of some significance in this case. In my first Opinion, I came to the conclusion at paragraph [63] that there was no statutory procedure for developing and approving non-statutory guidance. The petitioners were involved in that process and gave factual information to the decision makers but the interested third parties were not involved and made no complaint about that. This is not a case in which factual evidence had been led in prior proceedings. It was a case in which the respondents, as planning authority, had come to their own view about certain matters based on their own assessment of what they considered the factual situation to be. I have no hesitation in concluding that the respondents were the party who had the substantive interest in maintaining and supporting their own decision-making if they wished to do so. I find it difficult to conclude that in a situation where the interested third parties were not involved in and had no legal right to be involved in the decision making process of the respondents, that they should be entitled to expenses because they chose to enter the judicial review proceedings for the purpose of supporting the non statutory policy decision making of the respondents.

[8] As a result of the decisions of the respondents, the interested third parties may or may not be in a stronger position at the planning inquiry which is to determine the planning application in relation to a retail development at the Duchlage Farm site. That will depend what weight is given to the non statutory guidance by the decision maker in the context of all the evidence led. In that inquiry, there will be an opportunity for all the parties to make submissions about the non statutory planning guidance and to correct or challenge any of the factual information on which it is based. That forum, in my opinion, is the proper forum for such consideration.

[9] I have recorded in paragraph [39] of my first Opinion that counsel for the interested third parties in general adopted the submissions of counsel for the respondents. It would be unfair to suggest however that submissions by counsel on behalf of the interested third parties were "the merest formality" in the sense referred to by the Temporary Judge in Ashley Bell and George Wimpey UK Limited v East Renfrewshire Council [2006] 009. I consider that the submissions of counsel for the interested third parties did make a contribution to the case. I was grateful for his submissions which were persuasive and well drafted. Nevertheless I have to acknowledge that the submissions made on behalf of the respondents were detailed and were well developed. Said submissions were more than sufficient to deal with the submissions made by counsel on behalf of the petitioners. I was fortunate in this case to have assistance from counsel for all parties.

[10] I accept that it might be difficult to assess when the petition was intimated, how the case would evolve and to what extent the respondents would be able to meet and deal with the criticisms in the petition. I also bear in mind that a previous judicial review between the petitioners and the respondents had been raised and the respondents had chosen not to maintain their defence. In the context of the commercial concerns of the interested third parties, I can understand why they chose to enter the proceedings. Nevertheless, I cannot overlook the fact that this is a case in which the respondents have the real interest to defend, if they wish to do so. The intervention of the interested third parties was designed to be supportive and was supportive. I do not consider, however, that the intervention was in any way determinative of the issues involved or contributed significantly to the outcome. Looking at the matter very broadly, in the exercise of my discretion, I am not prepared to grant the motion for expenses.