SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hodge Lord McEwan	[2011] CSIH 77 XA101/09 OPINION OF THE LORD JUSTICE CLERK in the MOTION by FIFE COUNCIL Second Respondent: against PENNY UPRICHARD Applicant and Reclaimer; _______

For the applicant and reclaimer: Findlay; Drummond Miller LLP

For the second respondent: Armstrong QC; Balfour & Manson LLP

10 November 2011

[1] By interlocutor dated 7 September 2011 this court refused a reclaiming motion by the applicant against an interlocutor of Lord Uist by which he refused an application by her under section 238 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) (cf Uprichard v Scottish Ministers [2011] CSIH 59). The reclaiming motion was opposed by the Scottish Ministers and Fife Council, the planning authority. I refer to my Opinion in the case with which my colleagues concurred. It sets out the background to the litigation and an analysis of the issues.

[2] The applicant has conceded the Scottish Ministers' motion for expenses. We are now concerned with the Council's motion for expenses.

[3] Counsel for the applicant concedes that the Council is entitled to expenses up to the date on which the Council lodged answers (cf Moray Council v Scottish Ministers 2007 SC 280, at para [15]); but quoad ultra he has opposed the motion for three reasons, namely (1) that the challenge to the decision of the Scottish Ministers was a "reasons" challenge and therefore that they alone had a direct interest to oppose it; (2) that the Council had not in the event tabled a separate line of opposition to the application; and (3) that in the exercise of its discretion the court should have regard to the Aarhus Convention, article 9(4) of which was intended to spare litigants in environmental cases from a prohibitive burden of costs.

Submissions for the parties

For the applicant

[4] Counsel for the applicant submitted that in general a party other than the decision maker is less likely to be awarded expenses in a case of this kind, particularly at the appeal stage; and that while such a party might be entitled to intervene, it did not follow that it would be entitled to expenses if the outcome was favourable to it. He relied on the decision of this court in Moray Council v Scottish Ministers (supra) and on the statement by Lord Lloyd of Berwick in Bolton MDC v Secretary of State for the Environment ([1995] 1 WLR 1176) in which he set out the general principles governing awards of costs in planning appeals.

[5] Counsel for the applicant submitted that the complaint was a challenge to the reasons of the Ministers rather than to the substance of the structure plan. The Council had no sufficiently independent interest (Moray Council v Scottish Ministers, supra, para [11]) and had not taken a separate line of defence to the reasons challenge. The applicant was voicing the concerns of a significant section of the local community. She had no patrimonial interest in the issue. She was litigating for the good of St Andrews. It would be prohibitively expensive if she were to be found liable in expenses. Her own expenses were about £55,000. Those of the Ministers were about £58,000 and those of the Council about £60,000. She had received pledges of about £33,000 towards her own expenses. Counsel said that the applicant was a lady of some means. She had no mortgage. But she was not a person of great wealth.

For the Council

[6] Counsel submitted that the case for the Ministers and the case for the Council were quite separate since they had different interests to defend. The primary interest of the Ministers was in justifying their decision. The Council's interest was in maintaining the validity of its structure plan, especially since the Ministers contemplated that if the reclaiming motion should succeed the whole plan would have to be quashed. If the Aarhus Convention was potentially relevant to the court's discretion, it was a material consideration that the applicant had not suggested before now that the litigation could be prohibitively expensive for her. She had not been prevented from litigating by reason of cost.

Conclusions
(1) Was this a "reasons" challenge?

[7] In my opinion, the submission for the applicant on this point is based on too narrow a view of the case. It is true that the basis of the application was that the reasons given for the Ministers' decision were inadequate: but the real question, in my opinion, is why the application was brought in the first place.

It is important to consider the nature of the application. This is not a case where, say, a developer who has obtained a favourable planning decision duplicates the case for the decision maker when that decision is challenged (eg Bell v East Renfrewshire Council, [2005] CSOH 159; [2006] CSIH 33). Nor is it a case where a multiplicity of bodies having similar interests are each separately represented (eg Bolton MDC v Secretary of State for the Environment, supra).

[8] This litigation is about the Council's structure plan policy that St Andrews should be an economic driver for Fife and, on that account, should be one of the locations for strategic land allocations with major proposals for the development of housing, a science park and a business park. That policy is based on the Council's view, explicit in the structure plan, that in the finding of sites within Fife for major developments of that kind, St Andrews must make its contribution. The applicant has objected to this proposal from the publication of the consultative draft structure plan. Her letter of objection, which I quoted in my Opinion, constituted a root and branch objection to the structure plan proposals for St Andrews West and to the Council's reasoned justification for them. The objection implies that the planning needs to which those proposals are directed should be met anywhere in Fife except St Andrews.

[9] Even if the applicant and the Council were right in suggesting that it was open to the court to quash only that part of the structure plan that related to St Andrews West, the effect of that would have been no less disruptive. It would have frustrated the fundamental principle of a structure plan, namely that all of its policies hang together in furtherance of its basic strategic aims. It would also have had the practical consequence to which I referred in my Opinion that the local plan process, which gives practical expression to the structure plan policies, would be interrupted while the structure plan was reconsidered. There would therefore have been a vacuum in development control in relation to ad hoc planning applications in the St Andrews West area.

[10] The Council had a vital interest in resisting that objection (Bolton MDC v Secretary of State for the Environment ([1995] 1 WLR 1176 at p 1179D). It was appropriate that it should be separately represented. Only the Council could properly put forward arguments regarding the disruption that would be caused by the partial or total quashing of the structure plan. That would have had serious consequences for the Council's planning strategy generally and for its functions in development control. It would have left the strategic planning of Fife in disarray. The Council succeeded before the Lord Ordinary on the merits and on its argument that, in any event, the court should not exercise its discretion in favour of the applicant (Opinion of the Lord Ordinary, para [64]). It was also appropriate for the Council to be represented separately in the Inner House in view of the difference between it and the Ministers as to the consequences of our allowing the reclaiming motion

[11] Although this was a reasons challenge, it was successfully resisted on the basis that Ministers' reasons had to be read against the background of the structure plan as a whole (cf my Opinion, para [29]). Therefore, even if the Council was simply following the Ministers' line, the argument went to the substance of its reasoned justification for the relevant policies. For the reasons that I gave in Moray Council v Scottish Ministers (supra, para [14]), I would have been in favour of our granting the Council's motion on this ground alone

[12] I therefore reject the suggestion that in joining the Scottish Ministers in opposition to the reclaiming motion the Council had no direct interest to defend.

(2) Did the Council table a separate line of opposition?

[13] It is an oversimplification, in my view, to suggest that the Council did not take a separate line. It is important to bear in mind the substantial nature of the Council's interests. If the nature of the objection is as I have described it, the Council's opposition to it was, in my view, both reasonable and necessary. The Council had to oppose the application if it was to maintain the integrity of its structure plan. Its line of opposition was in this respect quite independent of that taken by the Ministers.

(3) Should the court exercise its discretion to relieve the applicant of the burden of expenses?

[14] Counsel for the appellant submitted that we should mitigate the applicant's liability in recognition of the principles of the Aarhus Convention to which the United Kingdom is a signatory. I see no reason to withhold from the Council the expenses that it seeks. Those who challenge decisions of this nature enter into litigation with their eyes open. They have to expect that if they should fail, the normal consequence will be that they will be liable in expenses. It would be reckless for a litigant to embark on a case of this kind in the hope that if he should fail, the court would relieve him of his liability for the expenses that he caused thereby. It is significant that the applicant was not deterred from raising this application by the possible extent of her liability should she fail.

[15] The appellant failed at first instance for reasons that were set out in detail by the Lord Ordinary. She then reclaimed. Our decision to refuse the reclaiming motion in substance vindicated the reasoning of the Lord Ordinary. In the reclaiming motion the applicant failed on all material points.

[16] Furthermore, the applicant has challenged a decision that had no direct impact on her patrimonial interests. She does not live in St Andrews West and, so far as I am aware, has no interests in property that lie within that area. It is possible that the court might exercise its discretion sympathetically in a case where a planning decision of the Scottish Ministers in, say, a major development proposal was challenged unsuccessfully by someone whose home would be subject to compulsory acquisition. This is not such a case. The applicant has brought this application in pursuit of an amenity objection in which she has no stronger interest than any other resident of St Andrews.

[17] Moreover, in asking the court to exercise a discretion in her favour, the applicant has placed before the court only a selective picture of her means. She has given us a note of her income from pension and investments, but has given us no information about her capital. We therefore lack a proper basis on which we could contemplate the exercise of our discretion in the spirit of the Aarhus Convention.

[18] It would have been open to the applicant to seek a protective expenses order (McArthur v Lord Advocate 2006 SLT 170); but such an application would, in my view, have required a similar degree of disclosure of means.

[19] In all the circumstances I do not consider it appropriate that we should exercise any discretion that we may have in the applicant's favour.

Disposal

[20] In my opinion, we should grant the Council's motion and find the applicant liable in the expenses of the Council in this court and in the court below.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hodge Lord McEwan	[2011] CSIH 77 XA101/09 OPINION OF LORD HODGE in the MOTION by FIFE COUNCIL Second Respondent: against PENNY UPRICHARD Applicant and Reclaimer; _______

For the applicant and reclaimer: Findlay; Drummond Miller LLP

For the second respondent: Armstrong QC; Balfour & Manson LLP

10 November 2011

[21] I concur with the opinion of your Lordship in the chair and agree that for the reasons which you give we should grant the Council's motion.

[22] I would add that while, surprisingly, we do not yet have rules governing the grant of protective expenses orders in our Rules of Court, the possibility of applying for such orders is well known: MacArthur v Lord Advocate 2006 SLT 170. It seems to me that there is advantage in making such applications early in proceedings as the existence of and the conditions set out in an order may affect the way in which parties conduct themselves in the litigation. The failure to apply for such an order does not prevent further consideration of the issue of prohibitive expense later in the proceedings: R (on the application of Edwards) v Environment Agency [2011] 1 WLR 79, at paragraph 24. Nonetheless, it is a relevant consideration at the end of proceedings that the threat of an adverse award of expenses did not prevent the applicant from pursuing the appeal.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hodge Lord McEwan	[2011] CSIH 77 XA101/09 OPINION OF LORD McEWAN in the MOTION by FIFE COUNCIL Second Respondent: against PENNY UPRICHARD Applicant and Reclaimer; _______

For the applicant and reclaimer: Findlay; Drummond Miller LLP

For the second respondent: Armstrong QC; Balfour & Manson LLP

10 November 2011

[23] I agree with the Opinion of your Lordship in the chair and have nothing further to add.