SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Emslie Lady Smith	[2011] CSIH 9 P373/10 OPINION OF THE LORD JUSTICE CLERK in the appeal by TESCO STORES LIMITED Petitioner against DUNDEE CITY COUNCIL Respondent and (1) ASDA STORES LIMITED; and (2) MacDONALD ESTATES GROUP PLC Interested Parties _______

For the Petitioner: Martin, QC, Munro; Semple Fraser

For the Respondent: D Armstrong, QC; Gillespie MacAndrew

For Interested Parties: M Thomson, QC, McBrearty; Brodies

11 February 2011

Introduction

[1] The petitioner seeks judicial review of a decision by the respondent's Development Quality Committee (the committee) dated 18 January 2010 to grant outline planning permission to the interested parties for the development of a superstore at Myrekirk Road, Dundee. On 15 September 2010 the Lord Ordinary dismissed the petition.

The site

[2] The site of the proposed store is immediately to the north of the A90(T) Kingsway West. It is part of the site once occupied by NCR, formerly a major employer in Dundee. NCR ceased production there some years ago. The site has lain derelict ever since.

[3] The proposed store would have a gross internal floor area of 8,295 sq m and a net sales area of 4,880 sq m, with parking for about 586 cars, a filling station and other facilities. The proposal also involves improvements to the Myrekirk Road/Kingsway West junction; the upgrading of the pedestrian underpass across Kingsway West, the provision of footpaths and cycleways and improvements to adjacent roadways. A significant part of the former NCR site remains outwith the application site. The application makes it possible for there to be vehicular access to this land by one of the new access roads that are proposed.

[4] The site of the proposed superstore is about 2.75 kms from the Lochee area of west Dundee.

The petitioner's sites

[5] The petitioner owns a site at Methven Road, Dundee, at which until 2009 it operated a supermarket. The site is within the designated District Centre of Lochee.

[6] In February 2009 the petitioner opened a superstore at South Road, Dundee, about 800 metres from the site of the proposed store. At present, it is the only superstore in west Dundee. After it opened the superstore the petitioner closed the Lochee supermarket.

Lochee

[7] In 2007 the respondent published the Lochee Physical Regeneration Framework (the Lochee Framework). Among the problems that it highlighted were the substantial amount of vacant retail floorspace in the Lochee district centre, the lack of modern retail premises there and Lochee's poor environment and image. It concluded that at that time the Lochee Centre was not fulfilling the role of a district centre. The Lochee Framework identified the district centre as a source of valuable employment opportunities in the area, principally within the retail and service sectors. In its assessment of retail, it recorded that the district centre had experienced a period of decline, and set out what it called an ambitious vision for its regeneration. This included the achievement of a high quality shopping environment and a thriving economy with an appropriate mix of users.

Scottish Planning Policy SPP8

[8] In August 2006 the Scottish Executive published Scottish Planning Policy SPP8 Town Centres and Retailing (SPP8). It applied when this application was before the respondent. SPP8 repeated previous guidance in the former NPPG8 (1998) on the sequential approach to site selection for retail and commercial uses. It provided inter alia that -

"15 Planning authorities and developers should adopt a sequential approach to selecting sites for all retail and commercial uses, unless guidance in this SPP or the development plan provides for a particular exception. The principles underlying the sequential approach also apply to proposals to expand, or change the use of existing developments, where the proposals are of a scale or form sufficient to change their role and function. The sequential approach requires that locations are considered in the following order:

i. Town centre sites;

ii. Edge of town centre sites;

iii. Other commercial centres identified within the development plan;

iv. Out-of-centre sites in locations that are, or can be made, easily accessible by a choice of modes of transport.

16 Application of the sequential approach requires flexibility and realism from planning authorities, developers, owners and occupiers to ensure that different types of retailing, which serve different purposes, are developed in the most appropriate location. Stakeholders should work together to take account of commercial realities in the preparation of the development plan. Planning authorities should be responsive to the needs of town centre uses, identifying sequentially suitable and viable sites with regard to size, location, and availability within a reasonable time period (5 years) and indicating how and when constraints could be resolved. Developers, owners and occupiers should, when identifying and developing sites, have regard not only to their own requirements but be sympathetic to the town setting in terms of format, design and scale. This should include the scope for accommodating the proposed development in a different built form, for adjusting or sub-dividing large proposals in order that their scale might offer a better fit with existing development, and for making use of existing vacant and under-used land or premises."

SPP8 also dealt with the approach to development plan considerations, as follows -

"38. All planning applications should be rigorously assessed against the development plan and the policy set out in this SPP. The assessment should be applied to all new development, redevelopment or extensions to existing facilities, changes of use, renewal of planning permission and applications to vary or remove existing planning conditions concerned with the scale and or character of the development. Where appropriate, conditions should be used to ensure proposals adhere to policy (See paragraph 23). In summary, the assessment will need to ensure that, in all circumstances, both the following considerations are met;

·       The proposal is of high design quality and at an appropriate scale for its location (see paragraphs 27 to 29).

·       The location is, or can be made, conveniently and safely accessible to all sectors of the community (see paragraphs 30 to 33).

39. In addition, where the proposed development is not consistent with the

development plan, the assessment should ensure that all the following

considerations are met;

·       A sequential approach to site selection has been used (see paragraphs 15 to 23).

·       There is no unacceptable individual or cumulative impact on the vitality and viability of the network of centres identified in the development plan (see paragraphs 10 to 14, 17 and 35).

·       The proposal will help to meet qualitative and quantitative deficiencies identified in the development plan (see paragraphs 14, 24 to 26 and 34).

·       The proposal does not conflict with other significant objectives of the development plan or community planning strategies."

It also advised that the guidance that it gave might be a material consideration in any determination on a planning application (ibid, p 1).

[9] SPP8 was revoked by the consolidated document Scottish Planning Policy (2010) in which its provisions are repeated (paras 62-64).

The development plan

The Structure Plan

[10] In the Dundee and Angus Structure Plan 2001-2016, Employment Policy 2 is in the following terms:

"The Councils will continue to safeguard and promote land for employment use at: -

·       the existing employment sites at Kingsway West, Claverhouse, West Pitkerro/Linlathen, Dundee; Kirkton, Arbroath; Orchardbank, Forfar; Business Park, Brechin; Forties Road, Montrose, and

·       other high quality well located brownfield employment sites, which are appropriate for regeneration and redevelopment."

Town Centres and Retailing Policy 4: Out of Centre Retailing implements the sequential approach in the following terms.

"In keeping with the sequential approach to site selection for new retail developments, proposals for new or expanded out of centre retail developments in excess of 1000 sq m gross will only be acceptable where it can be established that:

·       no suitable site is available, in the first instance, within and thereafter on the edge of city, town or district centres;

·       individually or cumulatively it would not prejudice the vitality and viability of existing city, town or district centres;

·       the proposal would address a deficiency in shopping provision which cannot be met within or on the edge of the above centres;

·       the site is readily accessible by modes of transport other than the car;

·       the proposal is consistent with other Structure Plan policies."

The Local Plan

[11] In the Dundee Local Plan 2005, Policy 24: Principal Economic Development Areas is as follows:

"Principal Economic Development Areas are of City-wide significance and as such will be safeguarded for industrial and business use. Uses outwith Classes 4 "Business", 5 "General Industry" and 6 "Storage and Distribution" will be resisted. Exceptions where defined in Policy 27 (Ancillary Services within Economic Development Areas), will only be considered favourably where it can be demonstrated that the development will enhance the attractiveness of the area for further industrial and business investment."

[12] Policy 45: Location of New Retail Developments is in similar terms to those of Town Centres and Retailing Policy 4 of the Structure Plan. The Local Plan identifies Lochee as a district centre. It sets out a strategy for retail development in Dundee. It identifies opportunities for two new superstores both of which have now been developed, namely Tesco, South Road, and Morrisons, Forfar Road.

The legislation

[13] Section 37(2) of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) provides that -

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

Section 25 of the 1997 Act provides that -

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

The planning application
Consultants' report

[14] In support of the application the interested parties submitted a report dated August 2009 from their planning consultants. The report concluded inter alia that a significant proportion of the population of west Dundee might be expected to shop at the proposed store. Lochee was the only district centre falling within its primary catchment area. There was no major store for convenience goods in Lochee, although a number of smaller units sold convenience or comparison goods. Vacant units in the area included the petitioner's former supermarket at Methven Road. The report estimated that there would be a diversion of £9.11M of retail expenditure to the new superstore from the city centre and the district centres at Lochee and Perth Road. It did not estimate what the impact on Lochee alone would be. The report suggested that there was a deficiency in the existing retail provision and that the impact of the proposed superstore on the Lochee District Centre would not be significant. The report referred in passing to the Lochee Framework.

The report to the committee by the Director of City Development

[15] The director extensively reviewed the policies of the development plan and the relevant Scottish Planning Policies, Planning Advice Notes and Circulars.

Development plan appraisal

[16] The director concluded that the loss of the site to a retail use would be contrary to Employment Policy 2 of the Structure Plan (supra) and Policy 24 of the Local Plan (supra).

[17] He considered that the broad findings of the applicants' retail impact analysis appeared to be realistic. He asserted (a) that the proposed development was likely to have a detrimental effect on the future vitality and viability of the Lochee district centre by diverting expenditure from retailers there; (b) that the city already had good overall provision of food retailing; and (c) that there was no deficiency in retail provision in west Dundee. He therefore concluded that the proposal was in conflict with the second and third criteria of the Town Centre and Retailing Policy 4 of the Structure Plan (supra) and with Policy 45 of the Local Plan (supra).

[18] Having reviewed other policies of the development plan that are not in issue in this case, the director reached the following conclusion:

"The proposal is considered acceptable, subject to the imposition of appropriate conditions in certain instances, in terms of Structure Plan transport policies 1 and 4 and Dundee Local Plan policies 24, 44, 48, 55, 56, 57, 72, 76, 79, 81, 82 and 86.

It is also concluded that the proposed development fails to comply with the requirements of structure plan employment policy 2 and town centre and retailing policy 4 and Dundee local plan policies 24 and 45 that relate to employment land and retailing.

In light of the above, it is concluded that the proposal does not fully comply with the provisions of the development plan."

Economic impacts

[19] The director considered that the proposal would achieve several of the aims of SPP2: Economic Development by providing a use that would support the wider economy of the city, by providing a productive use for part of the site for which there was only a potentially limited prospect of future Class 4, 5 and 6 developments, by reducing the cost of the development of the remainder of the former NCR site through the removal of ageing buildings and by providing a new access into the site that would improve the overall accessibility for existing businesses within the remainder of the Wester Gourdie Industrial Estate. He also noted that SPP8 (supra) identified economic growth as a top priority for the Scottish Executive, with retail being a key contributor to it.

[20] The director then referred to the economic impact assessment that had been submitted in support of the application and recorded that the conclusion of that assessment was that the project would have a strong strategic fit within the ambitions of the Dundee Partnership and the economic development plan 2008-2011. According to this assessment, the jobs that would be created would be targeted towards local regeneration areas and would be a major much needed boost to the local employment market. The director concluded:

"The closure of the NCR factory was a major blow to the economy but the redevelopment of the site will create more jobs than those which were lost when the factory finally closed. The creation of addition employment opportunities within the city is considered to be a strong material consideration in the determination of this application."

Loss of employment land

[21] The director considered the desirability of retaining the existing use of the site and concluded that the loss of the site to a retail use would not significantly undermine the provision of maintaining an effective five year supply of marketable employment land within the city. The site occupied a corner location within the industrial estate. Its development for a new store would neither compromise the integrity of Wester Gourdie nor draw any extraneous traffic through the estate.

Other planning benefits

[22] The director considered that there would be planning benefits in the provision of improvements to the strategic road network that would assist in the free flow of traffic along the A90(T) and that the proposed development would assist in the redevelopment of the whole of the former NCR site through the provision of enhanced road access and the clearance of buildings from the site. These access improvements would also assist in the development of the high amenity economic development area at Balgarthno located to the west. He concluded that these benefits were a strong material consideration in the determination of the application.

[23] The director accepted the argument for the interested parties that no other suitable site was available to accommodate the proposed development.

Other matters

[24] The director then considered a series of objections to the proposal, the letters of support and the results of community consultation, and rejected the idea that commercial competition was a material consideration in the determination of the application.

The director's conclusions

[25] These were the director's overall conclusions:

"It is concluded that the proposed development is acceptable in terms of Structure Plan Transportation Policies 1 and 4. It is also considered that the proposals are acceptable in terms of Dundee Local Plan Policies 21, 44, 48, 55, 56, 57, 72, 76, 79, 81, 82 and 86.

It is also concluded that the proposed development is not in accordance with the development plan, particularly with regard to both Structure Plan and Dundee Local Plan Policies that relate to Employment Land and Location of New Retail Developments.

However, it is considered that there are other material considerations of sufficient weight that would justify the setting aside of these policies and offering support for the development subject to certain conditions. The considerations relate particularly to the planning and economic benefits that would arise from the development terms of improved transportation arrangements for the A90(T) and the adjacent industrial estates and the potential for the creation of additional employment opportunities within the city. It is also considered that the development will allow a potent opportunity to improve the remainder of the adjacent site to the north and east for modern industrial and business uses.

It is concluded that the proposal does not undermine the core land use and environmental strategies of the development plan. The planning and economic benefits that would accrue from the proposed development would be important to the future development and viability of the city as a regional centre. These benefits are considered to be of a significant weight and sufficient to set aside the relevant provisions of the development plan."

The petitioner's objection

[26] The committee had before it an objection on behalf of the petitioner that was based on the adverse impact of the proposal on the Lochee District Centre and the availability of its own site there. The petitioner's objection referred to the Lochee Framework.

The decision complained of

[27] The committee accepted the director's findings and recommendations. It adopted his words in specifying three reasons for granting the application; namely, (1) that the proposal would not undermine the core land use and environmental strategies of the development plan; (2) that the planning and economic benefits that would accrue from the proposed development would be important to the future development and viability of the city as a regional centre; and (3) that these benefits were considered to be of a significant weight and sufficient to set aside the relevant provisions of the development plan. It imposed a number of conditions regarding the development of the site and associated transport infrastructure. It stipulated inter alia that the store should have within it no concessionary units for the use of other businesses (condition 35). The reason specified for this condition was "to conform with the approved shopping policies of the development plan and to ensure that no adverse impact is effected upon Lochee District Shopping Centre."

The petitioner's case

[28] Before the Lord Ordinary and before this court the petitioner raised two issues; namely, (1) whether the planning committee failed properly to apply the sequential approach set out in the development plan and in SPP8; and (2) whether the committee's decision was vitiated by its failure to take account of a material consideration, namely the findings and objectives of the Lochee Framework.

The Lord Ordinary's opinion

[29] The Lord Ordinary dismissed the petition. On the first issue, he held that SPP8 was a statement of policy, not a rule of law. The wording of paragraph 16 (supra) indicated that it was to be implemented in a flexible and realistic way. The application of the sequential approach was primarily a matter for the judgment of the planning authority. Its decision could be challenged only on the ground of unreasonableness in the Wednesbury sense, which was not established in this case. The petitioner had been unable to point to any definitive and binding statement of how the policy should be interpreted and implemented. The Lord Ordinary appears to have favoured the view of the Lord Ordinary in Lidl UK GmbH v Scottish Ministers ([2006] CSOH 165) that in the application of the sequential test, the suitability of alternative sites was to be judged by the site requirements of the applicant.

[30] On the second issue, the Lord Ordinary doubted whether the planning authority had been bound to consider the Lochee Framework. The proposed new store was not in Lochee. Furthermore, in the formulation of the development plan the needs of Lochee had been taken into account. The more fundamental obstacle to this argument, which he found to be established, was that the committee had in fact taken the Lochee Framework into account.

Submissions for the petitioner

[31] Counsel for the petitioner submitted that the director erred in his assessment of the first criterion of Town Centres and Retailing Policy 4 of the Structure Plan since he accepted that no suitable alternative site was available to accommodate the proposed development. In doing so, he had failed correctly to apply the sequential approach. He disregarded the existence of a sequentially preferable site, namely the petitioner's vacant site at Lochee. In adopting the director's approach, the committee erred in law. Moreover, the Lord Ordinary erred in applying a simple test of reasonableness to the committee's decision. The committee should have identified a proper meaning for the policy which its words and objectives were reasonably capable of bearing. The Lord Ordinary erred also in his interpretation of the flexibility to which paragraph 16 of SPP8 referred. The flexibility did not apply to the application of development plan policies. Paragraph 16 meant that developers had to be flexible about the requirements of the developments that they proposed. It required the committee to take a "class of goods" approach by breaking the proposal down into its component elements and deciding whether they could be accommodated on smaller sites; and to consider whether the proposal could be accommodated on a site within the Lochee District Centre. The committee accepted the format-driven approach of the interested parties in considering whether there were other sites that could accommodate the entire development. The decision in Lidl UK GmbH v Scottish Ministers (supra) proceeded on a concession by the Scottish Ministers on that point that ought not to have been made. The Lord Ordinary erred in accepting that decision as being correct. On the second issue, the committee erred in failing to take account of the Lochee Framework. The director's report failed even to mention it. It was a material consideration, given the expected impact of the proposed development.

Conclusions

Was the decision invalidated by a failure to apply the sequential approach?

[32] In many proposals for large retail developments in out-of-centre locations, the decision turns on the compatibility of the proposal with the retail policies of the development plan, often with ancillary questions about traffic generation, amenity and the like. If this had been such a case, the proposal would have had to be rigorously assessed in light of the development plan and SPP8 (cf SPP8, para 38). If the proposal was in apparent conflict with the development plan, paragraph 39 of SPP8 set out the preconditions that should apply if planning permission were to be granted.

[33] This however is not a typical case. The committee considered the application in a much broader context which included the development plan policies on economic development and the generation of employment and certain other considerations that the director thought to be material.

[34] The committee was obliged to have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations (1997 Act, s 37(2), supra); and to make its determination in accordance with the development plan unless material considerations indicated otherwise (1997 Act, s 25, supra). In my view, its powers under section 25 were not abridged by the policy guidance set out in SPP8. On the contrary, it was entitled in the face of a clear conflict with the development plan to base its decision on other material considerations.

[35] The committee rejected the contention of the interested parties' consultants that the proposal was in accordance with the development plan. But it did not rest its decision on the provisions of the development plan. It accepted the director's view that the other considerations on which he relied were material and should be decisive.

[36] In my opinion, a judgment of that kind was for the discretion of the committee. While some might think that the decision was bold, in view of the potential retail impacts of the proposal, it cannot be said that the exercise by the committee of its discretion was unreasonable or perverse. On the contrary, the balancing of the potential economic and infrastructural gains for the city as a regional centre against the adverse retail impact of the proposal was exactly the kind of judgment that it was for such a committee to make.

[37] On that view of the case, I am of the opinion that this petition is misconceived. Its basic weakness is that it is founded on the application of the development plan policies on the location of major retail developments and on the governmental guidance from which they are derived. If the committee had decided that the proposal was in conformity with the retail policies of the development plan, or if it had decided that, notwithstanding the apparent conflict with those policies, the proposal was justified by the considerations set out in paragraph 39 of SPP8, questions might have arisen as to the committee's compliance with SPP8 and, in particular, with the sequential approach. But this decision proceeded expressly on a recognition that the proposal was contrary to the retail policies of the development plan. It was apparent from the director's conclusions that a grant of planning permission could not be justified by SPP8 because the proposal could not satisfy all of the criteria set out in paragraph 39 (supra).

[38] In these circumstances, the committee was entitled to adopt the approach taken by the director, which was to treat the proposal as being in head-on conflict with the retail and employment policies of the development plan; to accept that SPP8 offered no justification for the proposal and to rest its decision exclusively on there being other material considerations. That being so, I consider that a challenge based upon an alleged misapplication of SPP8 and the sequential approach that it prescribes is entirely beside the point. For these reasons I need not consider the extensive tract of authority cited to us on the principles of interpretation of planning policies.

Did the committee overlook a material consideration?

[39] I do not accept the submission for the petitioner that the committee disregarded a material consideration, namely the Lochee Framework. I am not persuaded that that document could be a material consideration since its basic retail objective was already set out in the retail policies of the development plan (cf Aberdeenshire Council v Scottish Ministers 2008 SC 485). But if it could be said that Lochee was the subject of a material consideration, the relevant material consideration was not the Framework document, but the strategy that it proposed. The essential priorities of the Framework were the regeneration of Lochee, the promotion of a high quality shopping environment in its district centre and the protection of it from the adverse impact of large out-of-centre retail developments. When the committee considered the application, the retail element in the Lochee Framework had been overtaken by events, since the petitioner had closed the supermarket in Lochee and opened the superstore at South Road. The director pointed out that the Lochee District Centre was within the primary catchment area of the proposed development and noted that, on the assessment by the second respondent's consultants, £9.11M of retail expenditure would be diverted to the proposed superstore from the city centre and the district centres at Lochee and Perth Road. He acknowledged that the proposal was likely to have a detrimental effect on the future vitality and viability of the Lochee District Centre and proposed that a planning condition should be imposed by way of mitigating the impact on Lochee. The committee duly imposed such a condition.

[40] The committee also had before it the petitioner's written objection to the proposal, which referred to the Lochee Framework and provided a separate source of concern about the impact of the proposal on the Lochee District Centre.

[41] For these reasons I conclude that the director's report did not mislead the committee as to the essential issue of the likely impact of the proposal on Lochee (cf Oxton Farms v Selby DC 1997 QBCOF 95/0553/D); and that that issue was not overlooked by the committee. On the contrary, it was a prominent factor in its consideration of the application.

Disposal

[42] I propose to your Lordship and to your Ladyship that we should refuse the reclaiming motion. The Lord Ordinary pronounced decree of dismissal. That, in my view, was technically erroneous. Since this was a petition process, the only decrees open to the Lord Ordinary were to grant or to refuse the petition (Luxmoore v Red Deer Commission 1979 SLT (Notes) 53). I propose therefore that we should recall the interlocutor reclaimed against and substitute a decree of refusal.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Emslie Lady Smith	[2011] CSIH 9 P373/10 OPINION OF LORD EMSLIE in the appeal by TESCO STORES LIMITED Petitioner against DUNDEE CITY COUNCIL Respondent and (1) ASDA STORES LIMITED; and (2) MacDONALD ESTATES GROUP PLC Interested Parties _______

For the Petitioner: Martin, QC, Munro; Semple Fraser

For the Respondent: D Armstrong, QC; Gillespie MacAndrew

For Interested Parties: M Thomson, QC, McBrearty; Brodies

11 February 2011

[43] I am indebted to your Lordship in the chair for setting out in detail the legal and factual background to this reclaiming motion. For all of the reasons given in your Lordship's opinion I agree that the reclaiming motion, and the underlying petition for judicial review, should be refused.

[44] In particular, I am satisfied that the principal issue for determination in this case is not (as the petitioner and reclaimer contended) whether the respondent properly applied the "sequential approach" to site selection for retail and commercial uses as set forth in national and local statements of planning policy. On the contrary, where at the forefront of its decision the respondent acknowledged that the application did not, and indeed could not, meet the relevant policy criteria, the key question must in my view be quite different, namely whether a grant of permission was nevertheless justified by the other material considerations on which reliance was placed. Like your Lordship in the chair, I am not persuaded that there is any sound reason to answer that question in the petitioner's favour.

[45] In these circumstances, it is to my mind strictly unnecessary for this court to express any view as to the soundness of the Lidl decision to which your Lordship refers at para [29]. Prima facie, however, it might seem strange if a planning authority, purporting to apply the "sequential approach", could not competently take at least some account of the applicant's own stated site requirements.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Emslie Lady Smith	[2011] CSIH 9 P373/10 OPINION OF LADY SMITH in the appeal by TESCO STORES LIMITED Petitioner against DUNDEE CITY COUNCIL Respondent and (1) ASDA STORES LIMITED; and (2) MacDONALD ESTATES GROUP PLC Interested Parties _______

For the Petitioner: Martin, QC, Munro; Semple Fraser

For the Respondent: D Armstrong, QC; Gillespie MacAndrew

For Interested Parties: M Thomson, QC, McBrearty; Brodies

11 February 2011

[46] I agree with the opinion of your Lordship in the chair; for the reasons explained the facts demonstrate that the petition is not well founded. The reclaiming motion should, accordingly, be refused. I also agree that, this being a petition process, the decree should be one of refusal and that that should be substituted for the decree pronounced by the Lord Ordinary. Otherwise, I have nothing to add.