Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 72
P1165/2011	OPINION OF LORD PENTLAND in the cause (FIRST) ROBERTSON PROPERTY LIMITED (SECOND) EDGAR ROAD PROPERTY COMPANY LLP and (THIRD) DONNACHAIDH PROPERTY LIMITED; Petitioners for Judicial Review of decisions of Moray Council taken on 23 August 2011 to vary conditions of planning permissions. ­­­­­­­­­­­­­­­­­________________

Petitioners: G Steele QC et M O'Carroll; Simpson & Marwick

Respondent: J Mure QC; Morton Fraser LLP

Interested Party: D Armstrong QC; Shepherd & Wedderburn LLP

27 April 2012

Introduction

[1] This petition for judicial review came before me for a First Hearing. The first petitioners are a company engaged in property development and property investment. They own a number of shops in Elgin town centre. The second petitioners are the owners of a retail warehouse park (known as Elgin Retail Park) located outside the town centre on the north side of Edgar Road in Elgin. The third petitioners are a company which owns a number of shops in Elgin High Street. It is averred in the petition that the first petitioners act on behalf of the Robertson Group Limited and on behalf of the second and third petitioners in respect of planning, property development and property investment. The respondents are Moray Council, the local planning authority responsible for inter alia town planning in Elgin and elsewhere in Moray. Answers to the petition were lodged also by the British Land Company Plc, as an interested party. They are the owners of Springfield Retail Park, a retail warehouse park located close to Elgin Retail Park, but on the south side of Edgar Road.

[2] In their petition for judicial review the petitioners seek reduction of three decisions ("the decisions") made at a special meeting of the respondents' Planning and Regulatory Services Committee ("the committee") on 23 August 2011. By those decisions the respondents resolved to approve, subject to certain conditions, three applications to vary conditions of planning permissions previously granted in respect of units 1 and 3 (sub-divided into units 3A and 3B) at Springfield Retail Park. The purpose of the applications was to remove restrictions on the type of goods permitted to be sold from those units and to allow, for the first time, the sale of open Class 1 non‑food goods. The voting at the special meeting of the committee was six votes to five (with one abstention) in favour of granting the applications.

Planning History and Factual Background
[3] The background to the committee's consideration of the applications and the issues relevant to the decisions were set out in a detailed and comprehensive report ("the report") prepared by the respondents' planning officers and signed by their Planning and Economic Development Manager, Mr Gordon Sutherland. At the First Hearing all parties made extensive reference to the contents of the report.

[4] The report explained that there were nine retail units at Springfield Retail Park and that they varied in size between 627 square metres and 3,387 square metres, with a total gross floor area of 9,880 square metres. Unit 1A was (and still is) occupied by Homebase and Unit 1B by Allied Carpets, trading as General George. Unit 3A was (and still is) occupied by Currys and Unit 3B by Pets at Home.

[5] Before 2006 the type of goods permitted to be sold from any of the units at Springfield Retail Park was restricted by planning conditions to so‑called bulky goods, and in the case of Unit 3B, to the sale or display of pets and pet products. I understand bulky goods to comprise items such as furniture, floor coverings, household textiles, domestic appliances, hardware, DIY products and decorating materials. In March 2006 the bulky goods restriction was relaxed insofar as it applied to Unit 2 so as to allow the sale of open Class 1 non‑food goods from that unit. The decision to grant the relaxation was unsuccessfully challenged by judicial review. By the time of the committee meeting on 23 August 2011, Unit 2 had been sub-divided into 5 units. These were occupied by Peacocks, Next, Boots, Carpetright and New Look. As the report explained, the purpose of the applications before the committee was to allow the sale of open Class I non-food goods at each of the units at Springfield Retail Park from which the sale of such goods was still prohibited.

[6] The report noted that to the east of Springfield Retail Park there was a B&Q retail warehouse. It then reminded the committee that beyond New Elgin Road there was the former Flemings sawmill site on the north side of Linkwood Road. Planning permission had been granted, on appeal, to erect an open Class 1 non‑food retail development of six units at the sawmill site; this grant of planning permission was subject to a legal challenge at the time of the committee's decision. The report went on to note that on the south side of Linkwood Road, at the former Auction Mart site, an application for a supermarket and petrol filling station (to be operated by Sainsbury's) was currently under consideration.

[7] The report explained that Section 25 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") required that the applications should be determined in accordance with the development plan unless material considerations indicated otherwise. The development plan comprised the Moray Structure Plan (published in 2007) and the Moray Local Plan of 2008. The report observed that the main determining issue was whether the proposals were in accord with local development plan and national policies on retail development, including the sequential approach and the impact on the vitality and viability of town centres, in particular Elgin town centre. At the First Hearing counsel for all parties accepted that this was a correct statement of the legal position. The applications had been advertised on the basis that they did not accord with the development plan. In support of the applications a Retail Statement ("the RS") prepared by Montagu Evans LLP in June 2008 was submitted, along with an updated Retail Statement Addendum ("the RSA") prepared in January 2011.

[8] The report set out the applicable structure and local plan policies and identified as material considerations the Moray Town Centre Health Check Assessment prepared in February 2011 and the national planning guidance contained in the document entitled Scottish Planning Policy 2010 ("the SPP"). The report referred also to the respondent's Cumulative Retail Impact Assessment Update ("the CRIA") which assessed the cumulative retail impact of a range of retail development scenarios in the Edgar Road area of Elgin. The CRIA was an independent assessment prepared on behalf of the respondents by Hargest Planning Limited.

[9] So far as the Moray Structure Plan was concerned, this acknowledged that Elgin was the focus for retail development and aimed to encourage retail (and other) development within town centres. By advocating the sequential approach to ensure that retail development was provided in the most appropriate location, policy 1(f) of the Structure Plan reflected the retail strategy for Elgin. That strategy was designed to focus retail development in or immediately adjacent to the main town centre in order to reinforce its regional rôle and to ensure that development did not dilute that rôle or reduce its vitality and viability. The report noted also that the Structure Plan recognised the requirement to expand the overall amount of comparison retail floor space in Elgin due to expenditure leakage from Elgin and Moray, which would otherwise be liable to undermine Elgin as a retail destination.

[10] As to the Moray Local Plan, the report explained that the first component of this was that Elgin would continue to be the main focus for retail development; new proposals would be directed to the town centre, with development located in or immediately adjacent to the main town centre serving to reinforce its regional rôle. Retail proposals located outwith the town centre would only be allowed in exceptional circumstances. Two parts of the local plan were of particular importance. In the first place policy R3 provided inter alia as follows:

"Outwith town centres retail development proposals over 1,000 square metres gross must:

(a) comply with the sequential approach which requires that locations for new development be considered in the following order of preference - Town Centre Sites; Edge of Town Centre Sites; Other Commercial Centres identified within the Development Plan; and Out of Centre Sites in locations which are, or can be made, easily accessible by a choice of modes of transport

..."

Secondly, in the local plan the Edgar Road Retail Park was given the designation RET(A). On page 139 of the text the designation was explained in the following terms:

"Since 1980, the Council has operated a policy of accommodating appropriate out‑of‑town centre retailing at Edgar Road only, and nowhere else around the town (subject to the exceptions of neighbourhood shops, and ancillary retailing). The Edgar Road, or Springfield Retail Park (designated RET A on the Proposals Map) is now an established area for a superstore and primarily bulky comparison retail warehousing which are complementary to, rather than in direct competition with retailing within the town centre of Elgin. It has helped, and continues to help, in maintaining the area's competitiveness with Inverness and Aberdeen. ..."

[11] In discussing the local plan, the report referred to a study carried out by Donaldsons in 2005 known as the Elgin and Moray Towns Promotion and Development Project. This reaffirmed the need to protect the vitality and viability of Elgin town centre, whilst making provision for complementary retailing outside the town centre, all in accordance with the provisions of National Planning Policy. The study also identified a requirement to expand the overall amount of retail floor space in Elgin, especially comparison floor space, in order to reduce comparison retail leakage (estimated at approximately 50%) from Elgin and Moray to competing centres, such as Aberdeen and Inverness.

[12] The report then discussed the Moray Town Centre Health Check Assessment of 2010; this was, as I have mentioned, identified as a material consideration. The town centre health check indicated that Elgin was a vital and viable town centre by national standards. The town centre was considered to be a healthy and attractive centre, which played an important rôle in the region. It had a vacancy rate of 6.4%, which was below the Scottish average of 10%. This was said to be an indication of the relative strength of the town centre. The total turnover for all retail goods shops in the town centre was estimated at £106.99 million, including £50.62 million for general comparison goods and £8.4 million for bulky goods. In relation to the Edgar Road area, the heath check noted the significant concentration of retail floor space; in all there were 15 comparison goods retail units, as well as Asda and Lidl selling food. The health check estimated that the total turnover for all retail goods shops in the Edgar Road area was £86.52 million. The health check assessment had informed the assumptions on turnover used within the CRIA and would, in due course, inform review of the development plan. Hargest Planning Limited had been involved in preparing both documents.

[13] The second material consideration identified in the report was the SPP. This set out national planning policy on development in town centres and on the location of retailing; it recommended that town centres should be the focus for a range of uses, including retail activity. The SPP advocated the sequential approach when selecting locations for retail and other uses, unless the development plan provided for an exception. This approach required an ordered examination of locations for development, progressing from the town centre, to edge of town centre, to other commercial centres and finally to out‑of‑centre locations. The approach required flexibility and realism from all parties to ensure that new retail proposals were developed in the most appropriate locations. According to the SPP, it applied to new build development and to proposals to expand or change the use of existing developments where the proposals were of a scale or form sufficient to change their rôle and function.

[14] The report then continued as follows:

"Where development proposals are not within the town centre and not consistent with the development plan, applicants must demonstrate that more central options have been thoroughly assessed and discounted as unsuitable or unavailable, and that the impact on existing centres is acceptable. Where retail proposals are contrary to the development plan, planning authorities should ensure that the sequential approach to site selection has been used, there is no unacceptable individual or cumulative impact on the vitality and viability of the town centre, the proposals help to meet qualitative and quantitative deficiencies identified in the development plan and the proposal does not conflict with other significant objectives of the development plan or other relevant strategy."

[15] The report then went on to analyse in detail the relevant planning policies as they were considered to apply to the applications. It was noted that the original focus of the Edgar Road area as a location for the sale of bulky goods had been relaxed over time. Granting the applications would, the report stated, be consistent with consents granted elsewhere in Elgin; reference was made to Elgin Retail Park and to the Flemings sawmill site. All the permissions granted had been considered to play a rôle which complemented the town centre as opposed to competing with it; they sought to address the problem of leakage of expenditure outside Elgin; and they were intended to satisfy the requirements of retailers who would not be willing to locate in a town centre for operational reasons.

[16] On page 7 the report contained the following passage:

"From Appendix B and in support of the proposal, the RS and RSA consider that no suitable site exists within Elgin town centre or in edge of centre locations that could accommodate the proposed development. According to the agent, the RSA provides an up-to-date position on sequentially preferable opportunities. The RSA re-states the earlier RS conclusion that there are no available or suitable sequentially preferable sites within Elgin appropriate in size, type or format to accommodate retailers which require to locate within a retail warehouse. This position is considered to be unchanged from the conclusions reached by others as part of the Inquiry decision for Elgin Retail Park in 2005, or from the recent appeal decision for Linkwood Road in 2010 (subject to legal challenge)."

At the end of this section of the report the following was stated:

"Having regard to the above considerations and notwithstanding a lack of detailed investigation of town centre sites, when compared with other proposals, it is considered that on balance the requirements of policy R3(a) and the sequential approach are met. In this case, there are no alternative sequentially preferable sites in or on the edge of the town centre which would provide a suitable, viable and available alternative to the proposed location of the subject applications."

[17] The report then moved on to address in detail the issues of individual and cumulative impact, under reference to the relevant planning policies. In relation to these issues it stated the following:

"The Council's retail consultant has confirmed that the cumulative development turnover and trade diversion assumptions in the RSA are similar to those in the CRIA (scenario AB, as defined), hence the resultant predicted impact on the town centre is similar i.e. -6.8% in the RSA and -7% in the CRIA. With the prospect of increased growth, the Council's retail consultant considers this scenario would not significantly affect the vitality and viability of the town centre or any other town centre in Moray (see Appendix B).

Compared with the RSA, the CRIA examines a wider range of development scenarios. Following analysis of the scenarios, the CRIA concludes that when implemented without any other retail developments, or if implemented with the proposed non-food Linkwood Road development, the subject applications would not significantly undermine the vitality and viability of Elgin town centre. However, there would be some readjustment of retail activity within the town centre with a slight change in balance between general comparison and bulky goods comparison retailing in the town centre (see Appendix B),

However, the CRIA indicates that if the subject applications are implemented along with the proposed Sainsbury's development at the Auction Mart (and also both of these developments plus the Linkwood Road proposals), the resultant cumulative retail impact will significantly undermine the vitality and viability of Elgin town centre, and impact also on Buckie town centre. It should, however, be noted here that the supermarket proposals at the Auction Mart have yet to be determined. Without prejudice, it would be premature to consider, let alone pre-judge the outcome of that application, including assessment of the impact of that proposal individually or in conjunction with other existing or consented developments.

It would be appropriate to consider retail impacts based on existing and consented developments only. Having regard to the above considerations, it is concluded that the proposals depart from policy 3(b) and IMP2 (c). However, both the RSA and the CRIA indicate that with the proposed relaxation of the conditions, no significant adverse individual or cumulative impact on the vitality and viability of town centres, including Elgin are considered to occur. On this basis, the proposals can be considered to be an acceptable departure from policy."

[18] Having discussed all these various aspects of the proposals in the light of the applicable policies and the material considerations, the report then reached the following conclusion and recommendation:

"Conclusion and Recommendation

The subject applications are located on SRP (i.e. Springfield Retail Park), part of the designated Edgar Road Retail Park area. If approved, the proposals will depart from the development plan where relaxation will reduce the historically developed 'primarily bulky comparison' character of the retail park, although such goods could still be offered within the terms of any permission granted open Class 1 non‑food retailing. Retailing from SRP, along with other consented open Class 1 non‑food retail developments, will complement the town centre in seeking to address leakage of comparison expenditure and provide floorspace for retailers with requirements which cannot be accommodated within Elgin town centre. Furthermore, the subject applications are considered to satisfy the sequential approach and following assessment, they are not considered to have a significant adverse individual or cumulative impact on the vitality and viability of town centres, in particular Elgin.

Approval of the subject applications as an acceptable departure from policy is recommended, there being no other material considerations which would justify refusal of the proposals.

A 'hearing' is recommended in light of the recommendation to approve the proposals as an acceptable departure from the plan and the receipt of representations which refer to departure considerations."

The Hearing
[19] The hearing took the form of the special meeting of the committee held on 23 August 2011. At the hearing the petitioners were represented by Mr Gordon Steele QC. British Land were represented by Mr Fraser Littlejohn, a planning consultant. A verbatim transcript of the entire hearing was later produced and was referred to at the First Hearing.

[20] The petitioners' and the interested parties' representatives were allowed to address the committee at some length. Mr Steele submitted that the well-established policy for Springfield Retail Park was that it should be restricted to the sale of bulky goods. The applications sought to overturn that policy. The impact of granting the applications would be seriously detrimental to the vitality and viability of Elgin town centre. The applicants had failed to satisfy the sequential test and, in particular, had not shown that there were no suitable alternative locations in the town centre; the onus was on them to do so. There were, Mr Steele said, a total of 19 vacant units in the town centre. He referred to three of these in some detail and maintained that any one of them would be a suitable alternative location for the uses proposed at Springfield Retail Park.

[21] In response to Mr Steele's submissions, Mr Littlejohn did not seek to contest that there were vacancies in the town centre. He suggested to the committee that there needed to be some level of flexibility and realism, however. He pointed out that the existing tenants of the units covered by the applications were keen to trade in a broader range of goods so as to bring them into line with the way they traded elsewhere; in this connection he cited Homebase as an example. The applications were made "to allow for that flexibility to work with the existing tenants and to limit really the vacancies on going forward".

[22] Each of the representatives was asked questions by members of the committee. The planning officer, Mr Burnie, also addressed the committee, as did the author of the CIRA, Mr Hargest. The latter responded to certain submissions made by Mr Steele about impact on the town centre. Mr Hargest advised the committee that his conclusion, looking at the whole picture, was that there would be no significant adverse impact on the vitality and viability of the town centre. At the conclusion of the hearing a motion was moved to refuse the applications contrary to the recommendation in the report. After that motion had been seconded, Councillor Wright stated the following:

"I take the opposing view. I think there was another word mentioned today and that's flexibility. I think of course we have to pay regard to Elgin town centre, but I believe we also have to pay regard to our existing businesses and these are three of our existing businesses that, in these difficult financial times, I believe require and deserve flexibility that these applications would bring to them. So I move the recommendations three times over."

This amendment was seconded by Councillor McConnachie who said the following:

"Yes, I'll use one word and second the motion. Equality, it will bring equality to all the units on that (sic) Edgar Road. Thank you."

A vote was then taken and the amendment was carried by six votes to five. The result was that the applications were granted.

The Petitioners' Grounds of Challenge
[23] At the First Hearing, counsel for the petitioners advanced a number of grounds of challenge to the decisions to grant the applications. Some of these, as it seemed to me, bore only a rather limited relationship to the averments in the petition, but I have decided to consider them anyway, particularly since it was not suggested by the respondents or the interested party that they were not in a position to respond fully to all the points. In outline, the grounds of challenge, as ultimately presented at the First Hearing, were that: (1) the terms of the report showed that the respondents had misdirected themselves as to the correct test to be applied under and in terms of section 25 of the 1997 Act; (2) the respondents had misdirected themselves in applying the sequential test by failing to attach any or at least sufficient weight to the fact that the applicants had not complied with the responsibility placed on them under the test thoroughly to assess and discount all alternative town centre sites; (3) in considering the evidence on the question of cumulative impact, the respondents had misdirected themselves, in particular by failing to take into account the fact that there was an undetermined application for a food supermarket and petrol filling station on the Auction Mart site; this was the proposal for a Sainsbury's superstore; (4) the respondents had failed to take account of a material consideration, namely the availability of a number of suitable alternative sites in the town centre; (5) the respondents had failed to give due consideration to the development plan; and (6) the respondents had taken account of irrelevant considerations, namely the notions of "flexibility" and "equality" mentioned by Councillors Wright and McConnachie.

[24] I shall address each of these grounds of challenge in turn.

Alleged misdirection as to section 25
[25] The argument was that the proposition contained in the penultimate paragraph of the conclusion of the report was wrong in law and that it created a real risk that the committee had been misled as to the correct approach in law (c.f. Campbell v City of Edinburgh Council 1999 SLT 1009). To recap, the proposition was as follows:

"Approval of the subject applications as an acceptable departure from policy is recommended, there being no other material considerations which would justify refusal of the proposals."

[26] It was said that the proposition was unsound in law because it did not correctly state the requirements of section 25 of the 1997 Act. When that provision was read along with section 37(2) of the 1997 Act it was clear that the respondents required, in determining the applications, to have regard to the development plan and to make their determination in accordance with the plan unless material considerations indicated otherwise. The statement in the report did not say this; instead it appeared to instruct the committee that since there were no material considerations sufficient to justify refusal of the applications the result was that they fell to be regarded as being in conformity with the development plan and should be granted.

[27] In my opinion, there are a number of serious difficulties with this line of argument. In the first place, as counsel for the respondents and the interested party strenuously submitted, it does not feature in the petitioners' pleadings. More importantly, it was not raised on their behalf at the hearing, despite the report having been sent to the petitioners several weeks before the hearing. If the petitioners considered that the report provided unsound guidance to the committee about the law to be applied when considering the applications then they were, as it seems to me, under a duty to bring that to the committee's attention at the hearing so that the issue could be addressed and any error as to the legal position put right. The whole purpose of the hearing was to give parties the opportunity to discuss and challenge the contents of the report. Having decided to remain silent on the point when they had the opportunity to raise it at the committee hearing, the petitioners cannot now be heard to complain about the alleged misdirection in a petition for judicial review. It would not be appropriate, in my view, for the court to exercise its discretionary power to grant judicial review in such circumstances.

[28] In any event, I consider this line of argument to be unsound on its merits. The report obviously has to be read as a whole and the passage in question has to be understood in the context of the report read as a whole. When the report and the allegedly unsound passage are read in that way, it is clear that the committee was not given incorrect advice on the applicable law. Firstly, the report correctly stated on the third page that the position in terms of section 25 was as follows:

"Section 25 of the 1997 Act as amended requires that applications be determined in accordance with the development plan unless material considerations indicate otherwise."

As I have already mentioned, this was accepted by all concerned to be a correct statement of the legal position.

[29] Secondly, all that the passage says is that the applications are viewed, in the light of all the discussion of the relevant issues which has gone before in the report, as acceptable departures from the development plan. Then it adds, after expressing that view, that there are no other material considerations which would justify refusal of the applications. In my opinion, the reference to "other" material considerations can only mean "other than those already identified in the report". There were, of course, two material considerations identified earlier in the report, namely the Moray Town Centre Health Check Assessment and the SPP. So there is nothing wrong or misleading in this passage from the conclusion of the report. For all these various reasons I reject the first ground of challenge advanced on behalf of the petitioners.

[30] For completeness, I should mention that on this branch of the case I was referred by counsel for the respondents and the interested parties to the well-established public law principle that reports to planning committees should not be read and construed as if they were statutes or conveyancing documents (see Oxton Farms, Samuel Smith Old Brewery (Tadcaster) v Selby District Council, Persimmon Homes (Yorkshire) Limited, Court of Appeal, unreported, 18 April 1997; Morge v Hampshire County Council [2010] Env L R 26). Reference was also made to City of Edinburgh Council v Secretary of State for Scotland 1998 SC (H L) 33, particularly to Lord Clyde's speech at page 45 where his Lordship stressed that there was no universally applicable procedure prescribed by section 25. It would, in some cases, be entirely legitimate, his Lordship said, for the decision-maker to reach a decision after a general study of all the material available to him. Looking at the report as a whole, it seems to me that it provided a comprehensive and balanced discussion of all the relevant legal and factual issues facing the committee. It came to a reasoned conclusion and recommendation. When one then has regard to the detailed submissions and questioning at the hearing, there is really no room for doubt that the committee members would have had a solid grasp of all the relevant issues and of the applicable legal framework. In my opinion, there is force in the submission made on behalf of the respondents and the interested party that the petitioners' argument on this first point seeks to read far too much into one short passage in the report and that the passage has been taken out of context.

Alleged misdirection on the sequential test
[31] This submission was based on an alleged failure on the part of the committee to follow certain paragraphs of the SPP. This failure was said to amount to a misdirection because the committee were, according to the petitioners, bound to apply these parts of the SPP. In particular, it was submitted that the respondents had failed to ensure compliance with the requirements of paragraph 63 of the SPP. This provides as follows:

"The sequential approach requires flexibility and realism from planning authorities, developers, owners and occupiers to ensure that different types of retail and commercial uses are developed in the most appropriate location. ...Where development proposals in edge of town centre, commercial centre or out‑of‑centre locations are not consistent with the development plan, it is for applicants to demonstrate that more central options have been thoroughly assessed and that the impact on existing centres is acceptable. Out‑of‑centre locations should only be considered when:

·       All town centre, edge of town centre and other commercial centre options have been assessed and discounted as unsuitable or unavailable

..."

[32] In considering this argument it is, however, important to note also that the SPP sets out a number of core principles which the Scottish Government believes should underpin the modernised planning system (see paragraph 8 of the SPP). These core principles include the following:

"The constraints and requirements that planning imposes should be necessary and proportionate".

[33] It should be recalled that the SPP was (correctly) identified in the report as a material consideration and the question for the committee was, therefore, what weight it should be given in the whole circumstances of the case. I note, in passing, that in the local plan the requirement to comply with the sequential test applies only to retail development proposals over 1,000 square metres (policy R3(a)). Paragraph 62 of the SPP states that the sequential approach should be used "unless the development plan identifies an exception". So there was, in fact, no requirement to satisfy the sequential test in the case of the Pets at Home application; this related to Unit 3B where the floor space was 705 square metres.

[34] The report informed the committee that the RS and the RSA had not identified or investigated in detail any specific alternative locations in the town centre and it observed that this contrasted with the approach adopted for other such applications, for example in relation to the Elgin Retail Park or the Auction Mart site. Notwithstanding this difference in approach, the report reached the conclusion (on page 8) that the requirements of the sequential test were met. It stated as a fact that there were no alternative sequentially preferable sites in or on the edge of the town centre which would provide a suitable, viable and available alternative to the proposed location of the subject applications. Furthermore, in the course of the hearing before the committee, Mr Littlejohn urged the committee to adopt what he described as a flexible and realistic approach. He submitted that it was unrealistic to expect retailers, such as those who trade from the warehouses at Springfield Retail Park, to locate their operations in the town centre. There were simply no retail warehouses in the town centre. This is, as it seems to me, a fundamental reality of which the committee must have been well aware.

[35] In my opinion, the committee were quite entitled to hold that, on basis of the information before them, the sequential test and the approach it reflected had been substantially complied with and that there were, as a matter of fact, no suitable alternative sites in the town centre. In any event, it seems to me that it was a matter for the committee to decide how much weight to extend to the SPP in the particular circumstances of the case (see Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759, esp. per Lord Hoffman at 780E-H). How much weight to extend to a material consideration is a matter of planning judgement for the committee and such a judgement is, of course, not susceptible to judicial review unless the conclusion can be said to be unreasonable in a Wednesbury sense (see Tesco Stores Limited v Dundee City Council [2012] UKSC 13 per Lord Reed at paragraph 19). There was no suggestion made on behalf of the petitioners that the committee's conclusion on this aspect of the case was unreasonable in that sense. In this connection, it is important to note that the report identified (on page 7) the correct issue which the committee required to address. It stated:

"The issue here is whether or not there are potentially suitable and alternative locations capable of accommodating the proposed types and scale/size of units in a sequentially preferable location, i.e. in or on the edge of the centre."

I do not consider that it was essential for the committee to take the view that the terms of paragraph 63 of the SPP prescribed a mandatory process which required to be followed to the letter by each and every developer, regardless of the particular circumstances of the case. The committee were entitled, in my view, to proceed on the basis that they had sufficient information and knowledge about the availability of suitable alternative locations in the town centre, without insisting that a separate analysis of these be carried out on behalf of the applicants. As it seems to me, the issue was in fact fully gone into in the report. One should also not forget the importance of the local knowledge possessed by the committee members collectively about the type and suitability of premises actually available in Elgin town centre.

[36] In my opinion, this ground of challenge is misconceived and falls to be rejected.

The Committee's approach to the issue of cumulative impact
[37] At the hearing before the committee Mr Steele referred to certain figures in the CIRA. Amongst other points, he argued that the retail impact assessment prepared by Mr Hargest disclosed "very significant impact on the town centre of up to 25% comparative goods and significant impacts on other centres, in particular Buckie" Mr Steele submitted that the critical figure, the "killer figure" as he put it, was "actually 25% going down to 21%". Mr Hargest responded by submitting to the committee that "at the moment" the 25% figure was "a complete and utter red herring". It applied only in the event that the Auction Mart development went ahead. Since that application had not been determined it should, Mr Hargest explained, be left out of account altogether.

[38] So far as the 21% figure is concerned, this comes from scenario AB in the CIRA. This scenario assumed the development of both the Linkwood Road non‑food proposal and that the present applications were granted. The test year for the scenario was 2013. Page 39 of the CIRA explained that the impact of 21% was in relation to sales of general comparison goods in Elgin town centre. To take that figure on its own is misleading because the analysis also brought out an increase of 46% for bulky goods. The correct figure for this scenario was a negative impact of 7% for all goods.

[39] In my opinion, the committee were entitled to accept the information, explanations and interpretations about estimated cumulative impact provided to them in the CIRA, as clarified and amplified by Mr Hargest at the hearing. It seems to me that the committee were also entitled to take the view that since the Auction Mart application had not been decided, it would be inappropriate to assume that it would be granted, particularly as the site was not even designated for retail development in the local plan. I note that this is the approach advocated in the Scottish Government's final report published in 2007 on "Town Centre and Retailing Methodologies". In principle, it seems to me to make sense for cumulative retail impact to be assessed on the basis of committed developments, for which planning permission has in fact been granted, rather than trying to factor in developments for which planning permission may possibly be granted in the future. At least, the approach favoured by Mr Hargest on this question was a legitimate one, which it was open to the committee to adopt in coming to their decisions on the applications.

[40] In the circumstances, I consider that it was reasonable for the committee to reach the conclusion that there would be no material adverse impact on the vitality or viability of the town centre. There is nothing to suggest that the committee misapprehended the cumulative impact evidence. In my opinion, the committee arrived at conclusions on the impact issue which were open to them on the information and evidence put before them. I accordingly reject this ground of challenge.

Alleged failure to take account of the availability of town centre vacancies
[41] Although this ground of challenge was advanced on behalf of the petitioners as a separate point (at least at certain points in the submissions at the First Hearing), it seems to me that it in fact raises the same issues as the submission about the alleged failure to follow the requirements of the sequential test. As I have already said, there was abundant material before the committee to show that there were no suitable alternative locations available in the town centre. Accordingly, it cannot be said that there was a failure to leave out of account a material consideration in this respect. This ground of challenge falls to be rejected.

Alleged failure to give due consideration to the Development Plan
[42] It was argued for the petitioners that the development plan reflected a delicate compromise between the requirement to protect the vitality and viability of the existing town centre on the one hand and the need to stem the flow of expenditure on comparison goods to Aberdeen and Inverness on the other. It was said that the policies in the development plan struck a careful balance between these competing considerations and that the effect of granting the present applications would be to disturb that balance in a way that ran counter to the basic principles of the development plan. In particular, the character of Springfield Retail Park as a location primarily intended for the sale of bulky comparison goods would be fatally undermined; it would no longer operate in a manner which was complementary to the town centre, but would be placed in direct competition with it.

[43] In my opinion, this line of argument is misconceived because it tends to confuse issues of law with questions of planning judgement. The former are, of course, for the courts; the latter for the local decision-makers. The committee essentially had to decide whether, in the circumstances of this particular case, the development plan should be followed or whether there were material considerations sufficient to justify a departure from that course. It came down in favour of the view that granting the applications would, as it was put in the report's recommendation, "complement the town centre in seeking to address leakage of comparison expenditure and provide floor space for retailers with requirements which cannot be accommodated within Elgin town centre." It seems to me that this was a planning judgement par excellence and that it would be wrong for the court to interfere with it. In my view, there can be no doubt that the committee fully understood the relevant policies contained in the development plan; these were very clearly explained in the report. They were an experienced committee accustomed to dealing with planning issues of this type. As Mr Ritchie, the respondents' Senior Committee Officer, explained in an affidavit, the Planning and Regulatory Services Committee had more than four years' experience of considering and determining planning applications for many types of development. A significant number of these were for retail developments and, as Mr Ritchie put it, "the members were therefore experienced in the policies and relevant considerations relating to such proposals." In the whole circumstances, I am unable to agree with the petitioners that the respondents did not pay due regard to the development plan. It is true that they resolved ultimately not to follow it, but that is not the same as saying that they ignored it. Accordingly, I reject this ground of challenge.

The comments by Councillors Wright and McConnachie
[46] The petitioners submitted that these remarks showed that the committee must have taken account of irrelevant considerations, namely the notions of flexibility and equality. In my opinion, this argument is unsound for a number of reasons. Firstly, the motion moved by Councillor Wright clearly incorporated and was expressly based on the recommendation contained in the report. As the councillor himself put it, he moved "the recommendations three times over". So it is wrong to fasten onto the comments in isolation from their wider context. They must be understood in the light of everything said in the report and during the course of the hearing. This is confirmed by the evidence of Mr Ritchie in his affidavit. He explains that where an elected member moves a motion for approval of a planning recommendation "as recommended" he does so on the basis of the supporting report from the planning officer. It seems to me that this sensible practice and understanding must be taken to extend also to the seconding of a motion for approval in line with the recommendation in a report. Thus it is inappropriate to consider the brief comment made by Councillor McConnachie separately from the contents of the report and the debate at the hearing. Secondly, the decision reached by the six elected members, who voted in favour of the amendment motion, must itself be understood in the context of the report and what transpired at the hearing. Another aspect of this point is that the other four councillors in the majority cannot necessarily be assumed to have supported the motion on exactly the same grounds as those identified by Councillors Wright and McConnachie. Thirdly, the petitioners' approach seems to me to attach a wholly unrealistic and disproportionate degree of importance to the observations made by two councillors at the very end of a comprehensive and extended process of assessment and evaluation. Fourthly, flexibility was certainly a relevant consideration; it is mentioned, for example, in paragraph 63 of the SPP where it is said that the sequential approach "requires flexibility and realism". And it had been referred to in the report in its discussion of the SPP. Moreover, in his submissions during the hearing, Mr Littlejohn referred to the need for "some level of flexibility and realism". So it was entirely understandable that Councillor Wright should choose to refer to flexibility when he came to move the amendment motion. It was open to him to regard it as one of the important issues. Fifthly, I cannot see that there was anything at all wrong with the brief remarks made by Councillor McConnachie. What he said about the applications bringing equality to all the units on Edgar Road was, as counsel for the petitioners frankly accepted, factually accurate. Finally, I think that it would be undesirable for the court to construe comments made by individual councillors in the somewhat microscopic manner reflected in the petitioners' argument. It would be unfortunate if the approach taken by the court were to create anything in the nature of a chilling effect on the ability of elected members to participate freely and fully in discussion of planning applications. For all these reasons, I consider this ground of challenge to be untenable.

Conclusion
[47] At the end of the day I have decided that there are no valid grounds for judicial review in this case. I have accordingly sustained the second plea‑in‑law for each of the respondents and the interested party, repelled the petitioners' pleas and refused the petition. I have reserved all questions of expenses.