Scottish Court of Session Decisions

EXTRA DIVISION INNER HOUSE, COURT OF SESSION [2013] CSIH 70 P255/13
Lord Brodie Lady Dorrian Lord Drummond Young	OPINION OF THE COURT delivered by LORD BRODIE in the reclaiming motion of THE NEWTON MEARNS RESIDENTS FLOOD PREVENTION GROUP FOR CHEVIOT DRIVE Petitioner and reclaimer; against EAST RENFREWSHIRE COUNCIL Respondent and STEWART MILNE HOMES LIMITED Interested party and respondent ________________

Petitioner: JD Campbell QC; bto

Respondent (East Renfrewshire Council): Mackenzie, solicitor advocate; Shepherd & Wedderburn

Interested Party (Stewart Milne Homes Limited): M McKay; DWF Biggart Baillie

7 June 2013

Introduction

[1] The petitioner is an unincorporated association of resident owner occupiers of houses in Cheviot Drive and the surrounding area, in Newton Mearns, Glasgow. It was constituted on 7 February 2013 with the following objects:

"To protect properties in Cheviot Drive and properties along the downstream watercourse to the Shawlinn Burn, Newton Mearns, ('the watercourse') from flood risk including changes to drainage, land form or development on the Ayr Road site, Newton Mearns, west of Cheviot Drive and east of Faside Lodge ('the site')."

According to its constitution, anyone over 18 years of age who supports the purposes of the Group and has no potential conflict of interest may be admitted to membership. Election to the Group's committee is, however, restricted to members whose property adjoins the site, the watercourse or a culvert from the watercourse. The Group has two office-bearers.

[2] The respondent is East Renfrewshire Council. It is planning authority for, inter alia, Newton Mearns. The interested party is Stewart Milne Homes Limited.

[3] By way of an application for judicial review the petitioner seeks a number of orders including, in particular, the quashing and reduction of two decisions by the respondent, the first being a decision dated 21 March 2012 by the respondent to grant planning permission ("the Planning Permission") to the interested party for the construction of a number of houses ("the Proposal") on a greenfield site lying to the south of Ayr Road, to the west of Cheviot Drive and to the east of the drive to Fa'side Lodge, Newton Mearns ("the Site"), and the second being a decision dated 2 November 2012 to confirm as fulfilled a condition concerning drainage arrangements which had been imposed when planning permission was granted. First orders in the petition were granted on 14 March 2013. A first hearing in the application for judicial review has been fixed for 25 June 2013 and subsequent days.

[4] Among the remedies sought by the petitioner is a protective expenses order ("PEO") limited to £5000, with no liability in respect of any other party who might enter the process other than the respondent. The petitioner applied to the Lord Ordinary by motion for the making of such an order on 24 April 2013. On 1 May 2013 the Lord Ordinary refused the motion in terms of interlocutor of the same date. The petitioner now reclaims against that interlocutor. The reclaiming motion was heard at a hearing on the summar roll for urgent disposal.

The petition

Grounds of challenge

[5] The petitioner's grounds for challenging the grant of planning permission and the decision to hold the condition satisfied are threefold. They are set out in statements 8, 9 and 10 of the petitions and are as follows:

(1) The respondent acted beyond the powers contained in the Town and Country Planning (Scotland) Act 1997.

(2) The respondent failed to adhere to the relevant requirements of the 1997 Act in respect that it signed off as acceptable a suspensive condition attaching to the Planning Permission which did not comply with accepted, published engineering standards for the installation of adequate means to manage and control water runoff and sewerage provision from the Proposal at the Site.

(3) The respondent, in arriving at the decisions, left out of account significant material considerations in relation to water runoff, drainage and sewerage, so as to place certain of the petitioner's homes and surrounding land at an increased risk of serious flooding in the event that the Proposal is built in accordance with the Planning Permission.

The supporting facts

[4] A feature of the petition is that it contains lengthy and detailed averments of fact in support of the petitioner's contention that the provision made for water management in terms of the Planning Permission was inadequate with the result that, if implemented, there was a risk that properties adjoining the watercourse would experience flooding caused by increased runoff flowing into it from the Site and that the embankment supporting the compensatory flood storage area might fail, causing flooding to certain properties in Cheviot Drive. Many of these averments are denied by the respondent and interested party.

[5] The Lord Ordinary briefly summarised the factual background to the petition in terms that we adopt.

(1) The Site consists of a rectangular field of approximately 4.8 hectares. The topography of the Site forms a hollow which slopes down from the north, the west and the south. The lowest area of the Site is therefore towards the middle of its eastern side, where it is bounded by the rear of houses on the west side of Cheviot Drive. There is no defined watercourse within the Site but there is a spring to the rear of 10 Cheviot Drive. The watercourse from this spring enters a pipe running under the garden of 10 Cheviot Drive and the road itself. Thereafter the watercourse runs for some distance through residential and other properties, sometimes in an open channel and sometimes in pipes, until it discharges into the Shawlinn Burn. The planning brief produced by the respondent for development of the Site included the following observation (paragraph 2.18):

"The site effectively forms a low lying basin with a natural catchment and drainage path through the site towards the eastern boundary. Any proposal should seek to reduce the existing flood issues experienced by adjacent properties and consideration should be given to the use of a SUDs [i.e. sustainable urban drainage system] pond/attenuation system that incorporates a wetland area within the proposed landscape and open space requirements."

The brief also stated (paragraph 6.2):

"The incorporation of Sustainable Urban Drainage principles will be mandatory. The developer will be required to undertake a full Drainage Impact Assessment for the site. The assessment should demonstrate that the proposal will have no adverse impact upon existing drainage infrastructure."

(2) The application submitted by the interested party in respect of which the Planning Permission was granted included a SUDS feature consisting of a wetland area designed to detain but not permanently hold water draining from the site, and also a compensatory storage area designed to ensure that the flood water storage provided by the existing site (in its undeveloped state) was maintained, and that cumulatively with the SUDS detention basin the discharge to the watercourse referred to earlier was limited to a pre-development greenfield run-off rate. Construction of the compensatory storage area would require the formation of an embankment behind some of the houses in Cheviot Drive.

(3) When the respondent granted the Planning Permission, the following condition, numbered (10), was imposed:

"Prior to commencement of works further details of the land drains within plots 29-41 and the maintenance regime for this land drain and the compensatory flood storage area into which it drains shall be submitted in writing and approved by the Head of Environment (Planning, Property and Regeneration). Thereafter the agreed details shall be fully implemented."

In a letter dated 2 November 2012, the respondent made reference to various documents submitted by the interested party and confirmed "...that the information submitted is acceptable and therefore the requirements of condition 10 of the above planning application have been fulfilled".

(4) The petitioner considers that the flood prevention measures detailed in the interested party's application are inadequate to obviate or minimise the risk of flooding by water from the site. In the petition the petitioner avers as follows:

"54. In the circumstances, the respondent has granted the planning permission, and has discharged condition 10 in a manner which is ultra vires the powers contained in [the Town and Country Planning (Scotland) Act 1997]. The respondent has granted the planning permission and discharged condition 10 which will, if implemented together, fail to control the passage and flow of water downstream of the site in a manner which will minimise the risk of flooding. The development of the proposal is likely to cause flooding in certain conditions of runoff and rainfall, and the floodwater thus generated cannot be contained by the SUDS detention basin as it is presently designed and authorised.

55. Separatim the planning permission has been granted by the respondent following their omitting from their decision a material and significant consideration, namely the capacity of the SUDS detention basin as designed, to accept, attenuate and safely discharge runoff water in a manner which will obviate or in any event minimise the risk of flooding at the petitioners' homes downstream of the site. In all the circumstances the planning permission and the discharge of the drainage condition are unlawful and fall to be quashed."

The decision of the Lord Ordinary

[6] There was no dispute before the Lord Ordinary as to the competency of his making an order of the sort sought by the petitioner. However, having summarised the factual background as set out in the petition, the Lord Ordinary, noted that as the petition did not contain a challenge to a decision, act or omission to which the public participation provisions of what is now Directive 2011/92/EU of the European Parliament and Council (the codification of Council Directive 85/337/EEC as amended by Directive 2003/35/EC requiring member states to give effect to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters) applied, the recently enacted provisions of Chapter 58A of the Rules of the Court of Session were not relevant to this application for a PEO. A different position is taken at statement 7 of the petition but before the Lord Ordinary that was departed from by the petitioner (as is confirmed in the petitioner's note of argument in this court). It therefore came to be agreed among the parties that the application fell to be determined by reference to what the Lord Ordinary referred to as the "common law criteria".

[7] There was also agreement among the parties as to where these criteria were to be found and what they were. The starting point, it was agreed, was the statement of principles in R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600 by Lord Phillips of Worth Matravers MR delivering the judgment of the Court of Appeal. Having stated that no Protective Costs Order ("PCO") should be granted unless the judge considers that the underlying application for judicial review had real prospects of success, Lord Phillips said this at paragraph 74 in relation to protective costs orders:

"(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that: (i) the issues raised are of general public importance; (ii) the public interest requires that those issues should be resolved; (iii) the applicant has no private interest in the outcome of the case; (iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved, it is fair and just to make the order; and (v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above."

It was further agreed that the Lord Ordinary should adopt the approach to the Corner House principles that was approved by the Court of Appeal in Morgan and Baker v Hinton Organics (Wessex) Ltd [2009] EWCA Civ 107, [2009] 2 P&CR 4, that is, to apply the principles "flexibly" and, with particular reference to the third of Lord Phillips' criteria above, not to regard a private interest as a disqualifying factor but rather to treat its weight or importance in the overall context as a flexible element in the court's consideration of whether a PCO should be made.

[8] Given the common position of the parties as to the applicable principles, the argument among the petitioner, moving for a PEO to be made, and the respondent and interested party, moving that it should be refused, was concerned with whether or not the Corner House criteria were met. It was the opinion of the Lord Ordinary that they were not.

[9] The Lord Ordinary addressed the first three Corner House criteria together. In his opinion the issues raised were not of "general public importance". Rather, they were more appropriately described as essentially ones of local community interest, of importance only to a small number of individuals resident in Cheviot Drive or in properties adjacent to the identified watercourse, who claim to be at increased risk of flooding as a consequence of development of the Site with what they perceived to be inadequate flood prevention measures. While such a risk was a matter of considerable importance to those individuals, that, in the opinion of the Lord Ordinary, did not render the issue one of public importance, far less of general public importance as required by the first Corner House criteria. No important point of law or of principle was raised. No large section of the public who may be indirectly affected had been identified. There was no issue which the public interest required to be resolved. It was the view of the Lord Ordinary that the petitioner might fairly be characterised as an association of local residents whose primary objective is the safeguarding of their respective private interests. While the third Corner House criterion required to be applied flexibly and not as an absolute bar to an applicant with a private interest, the extent to which this petition was motivated by private interest was highly material to the question as to whether the court should, in exercise of its discretion, grant the order sought. The Lord Ordinary rejected the submission by counsel for the petitioner that the matter should be regarded as being of general public importance on the basis that "the public" for present purposes should be taken to be the community in which the development was to be located. Having regard to the English case law, that, in the opinion of the Lord Ordinary was too narrow a restriction to fulfil the requirement of "general" public importance.

[10] For these reasons alone the Lord Ordinary would not have regarded it as fair and just to make a PEO in favour of the petitioner but he was confirmed in this view by an assessment of whether the petition has a real prospect of success. He emphasised that his view was a preliminary one, based only upon the material placed before him in the context of the hearing of this motion. Nevertheless, he was not persuaded that this petition raised any matter that properly was amenable to the supervisory jurisdiction of the court. In his opinion the formulation in the petition, and the way it had been elaborated by counsel for the petitioner during his submissions, afforded a strong indication that the petitioner was seeking to challenge the merits of the respondent's decisions rather than raising any issue for judicial review. That being so, the Lord Ordinary was not satisfied that the petition had a real prospect of success.

[11] Had it been necessary, the Lord Ordinary would have continued the application in order to obtain further information about the petitioner's resources in order to determine the level at which any limit on liability for expenses should be fixed. However, given his decision on the principle as to whether a PEO should be made, that was not required. The application was accordingly refused.

Grounds of appeal

[12] In summary, the petitioner's grounds of appeal are that the Lord Ordinary erred in the exercise of his discretion because he left out of account consideration of a range of (unspecified) facts with the result that he wrongly concluded that (1) the petition yielded no point of law of importance, (2) it affected no large section of the public, and (3) it yielded no issue which the public interest required to be resolved; moreover the Lord Ordinary erred in the exercise of his discretion in holding that the petition had no real prospect of success.

Submissions

[13] Each of the parties lodged full notes of argument to which we refer. We summarise parties' written and oral submissions as follows.

Petitioner

[14] Mr Campbell QC for the petitioner began by explaining that he departed from the statement in the grounds of appeal that the petitioner would discontinue the proceedings if a PEO were not pronounced. His current instructions were that that was no longer the definite position of the petitioner. Fund-raising continued.

[15] Mr Campbell confirmed that he accepted that in determining whether or not to make a PEO the Lord Ordinary was exercising a discretion and therefore for him to succeed in the reclaiming motion he required to show that that exercise of discretion was in some way flawed. It was his position that the Lord Ordinary's decision was flawed. In confidently concluding that no important point of law or principle was raised, that no large section of the public who may be indirectly affected had been identified and that there was no issue which the public interest required to be resolved, as the Lord Ordinary had, he must be taken to have failed properly to take into account the material put before him which was conveniently summarised in a letter written by Dr Bradnam, the petitioner's corresponding secretary, to the respondent on 27 November 2012, requesting the respondent to revoke condition (10) attached to the Planning Permission or, in the alternative, the entire Planning Permission (6/12 of process). None of the material in that letter appeared in the Lord Ordinary's opinion.

[16] When asked to identify the question of general public importance raised by the petition, Mr Campbell identified it as that a public decision-maker should make its decisions in accordance with policy and in such a way that the neighbours of a site subject to a grant of planning permission will not be exposed to greater risk of flooding. He acknowledged that he would have difficulty had the Planning Permission only given rise to a risk in respect of half a dozen houses but here the enhanced flood risk was in respect of land at up to 2 kilometres distance from the Site. The members of the petitioner did have private interests but there was also a public interest. Where, Mr Campbell asked, do householders affected by flooding turn for relief but to the public authorities and public services? The petitioner's position was supported by independent professional evidence in the form of the report by Dr Riddell, a chartered civil engineer, dated October 2012 (6/22 of process). A point of principle arose in relation to how should a planning authority deal with an item of well-informed and relevant material such as this report. It was well established that a planning authority must take into account relevant material submitted to it. In the present case the petitioner had demonstrated that the respondent planning authority had failed in four key respects: (1) the calculation of ground and rainfall run-off from the Site; (2) the calculation of the size of the consequential detention basins; (3) calculation of the capacity of the culvert taking water from the Site; and (4) the omission of a flood risk assessment in respect of the area east of the Site where the houses of members of the petitioner lie. The respondent had conceded that it did not know the relief level of the downstream water course (ie the volume of flow at which water will overtop the bank).

[17] It was Mr Campbell's submission that, given that a matter could be of general public importance even if it only affected a part of the public, the Corner House criteria were satisfied. The case was concerned with a decision made by a public authority in respect of an indiscriminate threat which is known to occur in this locality from time to time which will be enhanced by the implementation of the Planning Permission, against a policy background which requires the lessening of flood risk. There was a question of public interest as to whether the planning authority had failed to take into account relevant material and as to whether it had complied with the relevant policy imperative. The petitioner had provided an estimate of likely cost from a law accountant. It was fair and just that an order should be made. This was a matter of public interest. A total of 110 objections had been made to the planning application of which 55 related to the risk of flooding. Contributions to the petitioner's funds had been received from 27 households containing some 55 people. The Lord Ordinary had been wrong to conclude that the petition had no real prospects of success.

Respondent

[18] Mr Mackenzie explained that his submissions would fall into five chapters: challenge to an exercise of discretion, the relevant facts, the legal framework, an analysis of Corner House, and a conclusion.

[19] It was a matter of agreement that in deciding whether or not to make a PEO the Lord Ordinary was exercising a discretion but it was to be emphasised that it was an exercise of discretion which may be regarded as falling within a particularly discretionary area of judicial decision-making, namely the making of awards of expenses; it was a question arising in relation to a discretion within a discretion, as it were. In the circumstances the Lord Ordinary had a considerable margin for error and this court should be slow to interfere with his decision. What the petitioner was looking for was significantly to shift the expense risk associated with litigation and that at the very beginning of the litigation. It had to satisfy the Lord Ordinary that it was fair and just to do so. Having failed to do that, the challenge was to identify an error on the part of the Lord Ordinary of the sort which would justify overturning him on an issue of this sort. Mr Mackenzie struggled to see what it was that the Lord Ordinary was said to have left out of account; in circumstances where the parties were at one on the applicable legal principles, what was of interest to the persons other than those directly concerned? what was the controversy which needed to be resolved?

[20] Although agreed on principle, the parties were at odds on the facts. Notwithstanding the critique contained in Dr Bradman's letter, to which Mr Campbell had referred, it was the respondent's position that it had engaged with the Scottish Environment Protection Agency ("SEPA") and Scottish Water and with the interested party in relation to flood risk before granting the Planning Permission. Both SEPA and Scottish Water were aware of what was proposed and had not objected. Mr Mackenzie referred to two letters from SEPA (6/19 and 6/29 of process). It had corresponded extensively with the petitioner. It was true that the respondent disagreed with the petitioner on technical aspects but it was difficult to see how it could be said that the respondent had not had regard to flood risk. Mr Mackenzie submitted that the petition had no prospects of success.

[21] Turning to the Corner House principles, Mr Mackenzie said it was clear that only when there was a public as opposed to merely private interest that the respondent, as a public authority, should bear the cost. It had to be a matter of general interest raising an issue which had to be resolved by the court. Here there was not even a procedural controversy. Rather, the proposition put forward in the petition is that the respondent has failed to take into account particular calculations in relation to a particular application. It was not clear how this matter transcended the particular litigation. It was not enough to assert that flooding is a matter of public importance. It was, but then so was fire, disease and climate change. That did not mean that any one decision by a public authority which was in some way related to one or other of these phenomena was necessarily of general public interest. Mr Mackenzie did not argue that any degree of private interest would rule out the making of a PEO but if an individual applicant had a private interest, for a PEO to be made there must be something more in issue than, for example, protecting the values of some houses and there must be an issue which needed to be resolved judicially. As appeared from the reference in Corner House to discontinuance of proceedings in the absence of an order, the underlying policy had to do with the court's concern about the stifling of claims that had to be resolved. That legal representatives were acting pro bono was a comfort to the court in that it indicated that a protective order was not being abused.

[22] In conclusion Mr Mackenzie submitted that there was no basis upon which the decision of the Lord Ordinary could be set aside but in the event that the court was against him Mr Mackenzie requested that the matter should be remitted to the Lord Ordinary to fix the level of any PEO. At present there was simply an absence of information about the petitioner's financial circumstances.

Interested party

[23] Having moved the court to refuse the reclaiming motion for the reasons set out in his note of argument and those given by Mr Mackenzie, Mr McKay explained that the focus of his submissions was on the question of whether there had been any error by the Lord Ordinary in exercising his discretion. He noted that in the reclaimer's note of argument the complaint was that the respondent had failed to check the drainage scheme. That was a different formulation than that presented in the grounds of appeal and different again from what had been argued before the Lord Ordinary. What was argued before the Lord Ordinary is recorded by him in paragraph 15 of his opinion: that the respondent granted the Planning Permission and discharged condition (10) when it knew or ought to have known that the flood protection proposals were inadequate and disconform to standards. This touched on the question of an issue of public importance. There was no question raised as to how statute or planning policy should be interpreted. What was involved here was that the Riddell report made valid criticisms of what was proposed but that was entirely specific to this particular planning permission. It did not raise a question of general importance. Nothing had been put forward to establish that the Lord Ordinary had erred. It was not necessary to go further. However, if that was wrong, Mr McKay drew attention to the terms of condition (10) (quoted above at paragraph [5]). The condition provided for approval of the maintenance regime for the land drain and the compensatory flood storage area. The compensatory flood storage area was distinct from the SUDS detention basin which is designed to accommodate high levels of rainfall. It is not true that SEPA had given no consideration to the proposal. As can be seen from 6/29 of process SEPA considered that subject to the adoption of flood management measures what was proposed complied with Scottish planning policy. This underlined that no question of public importance arose. The appropriate statutory body had considered the proposal and had been satisfied.

Discussion

The jurisdiction to make a PEO

[24] Litigation is costly. The discretionary power of the court to award judicial expenses serves to mitigate the cost of vindicating rights. It also provides a means whereby the court can discipline litigants with a view to encouraging them to conduct their litigations efficiently. The general rule, in Scotland and in England, is that expenses or costs follow the event, in other words that the unsuccessful party pays the reasonably necessary expenditure of the successful party in bringing the action and taking it to its conclusion: Shepherd v Elliot (1896) 23R 695 at 696, McDonald v Horn [1995] ICR 685 at 694. That a party may not only have to meet his own legal expenses but also the expenses of his opponent serves to inhibit parties from embarking on litigations with only doubtful prospects of success. Where what is in issue is simply a matter of the private rights of the potential litigants that is not usually seen as a bad thing. However, there are cases where the existence of this inhibitor is more problematic. One category of such cases is where rights or interests stand in need of the court's protection that are not vested or are not totally vested in the only person or persons who, as a matter of practicality, are in a position to raise proceedings. Putting it another way, there may be cases which need to be brought and disinterested persons prepared to bring them, but which will not be brought if the disinterested persons run the risk of becoming liable for the other side's expenses. This is true of instances where what is at issue are private interests which fall to be determined by reference to private law. It is also true of instances where what is at issue is a matter of public interest, raised by way of judicial review and determined by principles of public law. The problem is discussed in detail in the judgment of the Court of Appeal in R (Corner House Research) v Secretary of State for Trade and Industry supra. The discussion touches on indemnification of, for example, trustees, pension fund beneficiaries and minority shareholders, in a private law context, but the principal focus is on the protection of litigants, who reasonably bring public law proceedings in the public interest (referred to as "public interest challenges"), from the liability to costs that falls on an unsuccessful party, by the court making a pre-emptive order determining the incidence of costs prior to their being incurred. In England such a pre-emptive order is known as a Protective Costs Order ("PCO").

[25] The development of PCOs in England and Wales and in other jurisdictions is addressed in the annex to chapter 12 of the Report of the Scottish Civil Courts Review (Scottish Civil Courts Review, Edinburgh 2009) (and see also the discussion at paragraphs 59 to 78 of chapter 12). In England the PCO is a relatively recent innovation. It was put forward as a possible mechanism whereby a minority shareholder suing on behalf of two companies might avoid the risk of being ordered to pay his opponent's costs in Wallersteiner v Moir (No. 2) [1975] QB 373. An otherwise sympathetic Court of Appeal was unwilling to make such an order in what were private law proceedings. Buckley LJ said this (supra at 403):

"I have never known a court to make any order as to costs fettering a later exercise of the court's discretion in respect of costs to be incurred after the date of the order. I cannot think of any circumstances in which such an order would be justified."

The remedy for the shareholder in that case was that the company should pay his costs. Similarly Hoffmann LJ (as he then was) in McDonald v Horn [1995] ICR 685 expressed the view that the relevant rule of court, which reflected the basic rule of English procedure that a successful litigant has a prima facie right to his costs, presented a formidable obstacle to any pre-emptive costs order as between adverse parties in ordinary litigation. It was difficult to imagine, Hoffmann LJ continued, a case falling within the general principle in which it would be possible for a court properly to exercise its discretion in advance of the substantive decision. Thus, by analogy with Wallersteiner, the pension fund beneficiaries who were challenging the actions of the trustees in McDonald should receive their costs from the pension fund.

[26] While accepting the correctness of what had been said in McDonald, in R v Lord Chancellor ex p Child Poverty Action Group [1999] 1 WLR 347 opposing counsel conceded before Dyson J (as he then was) that different considerations applied to "public interest challenges" by way of judicial review. In that case there had been two applications that no order as to costs should be made against the applicants, whatever the outcome of the proceedings. As far as the researches of counsel had revealed this was the first time the court had been asked to make a pre-emptive costs order in an application for judicial review. However, it was conceded by the respondents that, at least in public law proceedings, there was jurisdiction to make such an anticipatory order, a position that Dyson J endorsed albeit, having formulated the necessary preconditions for the making of such an order, he went on to refuse the applications.

[27] Although PCOs were not made in Child Poverty Action Group, they were made in subsequent cases and by the time Corner House came before the Court of Appeal it was able to review a developing jurisprudence. Counsel for the Secretary of State conceded, as had been conceded in Child Poverty Action Group, that the court had jurisdiction to make a PCO. The court stated that the concession had been properly made. The court then went on to consider the guidelines that had been laid down by Dyson J and to reformulate them in terms of the criteria set out in paragraph [7] of this opinion.

[28] It was at this stage of the development of the law in England that the first application was made in Scotland for an order to find no expenses against the petitioner in favour of the respondents or other parties. It came before Lord Glennie prior to the first hearing in a judicial review in a case reported as McArthur v Lord Advocate 2006 SLT 170. Although it had been expressly accepted by counsel for the applicant that such an order had never before been granted by the courts in Scotland, Lord Glennie, pointing to the width of the discretion of the court in the matter of awards of expenses emphasised in, for example, George Howitt v W Alexander & Sons Ltd 1948 SC 154 and Ramm v Lothian and Borders Fire Board 1994 SC 226, had no doubt that it was competent for the court to make such an order as was sought. The real question, as Lord Glennie saw it, was whether, as a matter of discretion, it was appropriate to make such an order, indeed whether it would ever be appropriate to make such an order at such an early stage of the proceedings. In a passage (supra at 173) which is quoted at paragraph 63 of chapter 12 of the Report of the Scottish Civil Courts Review, he went on to say this:

"The ordinary rule is that expenses follow success: Ramm v Lothian & Borders Fire Board (supra). While there are many grounds for departing from that general rule, they are normally grounds rooted in the conduct of the parties in relation to the litigation and, more generally, the dispute. The objection to a protective order for expenses granted at the beginning of the litigation is that it fetters the discretion of the court which hears and resolves the dispute. In other words, it deprives the court hearing the dispute of the opportunity of taking into account, in its award of expenses, the conduct of the parties in and in connection with the litigation. Such considerations are a considerable impediment to the making of a protective order of the type sought. However, I see no intrinsic problem with making such an order in a case where the court is able, in advance, to form a sufficient view of the importance of the case being brought and of its merits; and to be satisfied that the future conduct of the case would not cause it, at the end of the litigation, to form a different view."

As he was invited to do, Lord Glennie considered the application by reference to the Corner House criteria. He found these not to have been satisfied and refused the application. He explained that had he been persuaded that some protective order was appropriate, he would not have granted the order sought but, rather, capped or modified the respondents' recoverable expenses at a specified sum in respect of the next stage in procedure, it being open to the applicants to make further applications if the case went further.

[29] In paragraph 65 of chapter 12 of the Report of the Scottish Civil Courts Review, there is reference to a doubt having been expressed as to the competency of making a PEO in Scotland in the course of a hearing before the Inner House in an unreported appeal at the instance of Friends of the Earth. As we have already indicated, in the present case it is conceded that it is competent to make a PEO. We therefore have

not heard argument on the matter. We would however agree with the reasoning of Lord Glennie in McArthur and would regard his decision that it was open to the court to make a PEO to have been endorsed by subsequent practice and by an authoritative statement by the Inner House. A PEO was made by Lady Dorrian in McGinty and Anor Petrs [2010] CSOH 5 and by Lord Stewart in Road Sense v Scottish Ministers 2011 SLT 889. Lady Smith refused an application in Doogan v Greater Glasgow and Clyde Health Board 2012 SLT 1041 but without adverse comment as to its competency. Decisively, in Fife Council v Uprichard [2011] CSIH 77, the Lord Justice-Clerk (Gill), with whose opinion the other members of the court concurred, observed, in a context where the petitioner in an application for judicial review was seeking to avoid a finding of liability in expenses, that it would have been open to her to have made an application for a PEO (see also Uprichard v Scottish Ministers [2013] UKSC 21 at para 56).

[30] In Fife Council v Uprichard supra Lord Hodge observed that, as at the date of that decision, there were no rules of court relating to applications for a PEO. That is no longer so but only in respect of cases to which the public participation provisions of what is now Directive 2011/92/EU apply. In such cases, as the Lord Ordinary noticed in the present case, the application for a PEO is now governed by chapter 58A of the Rules of the Court of Session. In all other cases whether a PEO is to be made falls to be determined by reference to common law criteria.

[31] As this case has been presented, the relevant common law criteria have been taken to be those adopted by Lord Glennie in McArthur, off-the-peg as it were, from Corner House, as they have been developed in the subsequent English cases, including Morgan and Baker v Hinton Organics (Wessex) Ltd supra and R (Compton) v Wiltshire Primary Care Trust [2009] 1 WLR 1436. For present purposes that is the approach that we have followed, although we notice that the Report of the Scottish Civil Courts Review, at chapter 12, paragraphs 74 to 78, contemplates a reformulation of the Corner House criteria and, having done so, recommends the adoption, as an alternative, of the model proposed by the Australian Law Reform Commission. As Lord Glennie envisaged in McArthur, there may therefore be room for the development of a more distinctively Scottish PEO, but while Mr Campbell told us that this is the first occasion on which an application for a PEO has come before the Inner House and that the consequent absence of Inner House guidance as to what is a question of general public importance had been a factor in the Lord Ordinary granting leave to reclaim, given the way the argument has gone, we do not see this as an appropriate case in which to attempt statements of broad principle. In coming to our decision we have accordingly confined ourselves within the Corner House framework.

Decision

[32] Mr Mackenzie was correct to submit that what this court was being asked to do was to review the exercise of a discretion, with all the consequences that follow from that. However, part of the function of the Corner House criteria is to determine when that discretion arises. Making an order depends on the court determining that it is fair and just to do so, that is explicitly an exercise of discretion, but before the court is called on to exercise a discretion it has to be satisfied that the case is indeed a public interest challenge, of the sort identified by Dyson J in Child Poverty Action Group, and therefore eligible for exceptional treatment in respect of expenses. Corner House identifies five matters on which the court must be satisfied, it having taken the view that the application for judicial review has real prospects of success. Subsequent case law would indicate that two of these: no private interest and probability that the applicant will discontinue if the order is not made, are not essential preconditions to the making of a PEO. However, the point we would make at this point is that in being satisfied of two of the three remaining matters: (i) the issues raised are of general public importance and (ii) the public interest requires that those issues should be resolved, we do not see the court to be exercising a discretion. No doubt an element of judgement is involved and an appellate court might show a degree of deference to the court of first instance when looking at the way in which judgement has been exercised, but these are matters for objective assessment and there is no reason to accord the Lord Ordinary's assessment of those critical matters the privileged status of a discretionary decision.

[33] Turning then to the decision reclaimed against, as we have indicated, the facts that the members of the petitioner Group undoubtedly have a private interest, as the proprietors of property which may be subject to flooding consequent on development in terms of the Proposal, and that the petitioner might continue with the petition in the absence of a PEO, while relevant, do not exclude the possibility of the making of such an order. The same can be said about the fact that the petitioner's legal advisers are acting on a contingency rather than entirely pro bono basis. It has been agreed that further investigation of the financial resources of the petitioner's members will be necessary. That brings into focus (i) issues of general public importance, which (ii) the public interest requires to be resolved. The Lord Ordinary found it convenient to consider these two criteria together, along with the third Corner House criterion, private interest. In this case it was entirely understandable that he did so; they run into one another. While it may be too stringent to disqualify an application simply because the applicant has some private interest, it must always be for consideration whether the underlying judicial review is predominantly altruistic in its objectives or (as will be the case with the majority of applications for judicial review) a means of promoting or protecting a private interest by means of recourse to the supervisory jurisdiction.

[34] We asked Mr Campbell to identify the question of general public importance raised by the petition. He replied that it was whether a public decision-maker should make its decisions in accordance with policy and in such a way that the neighbours of a site subject to a grant of planning permission will not be exposed to greater risk of flooding. He went on to acknowledge that he would have difficulty had the Planning Permission only given rise to a risk in respect of half a dozen houses but here the enhanced flood risk was in respect of land at up to 2 kilometres distance from the Site. It appeared to us that that answer, and the frank acknowledgement that went with it, demonstrated that this is not within the category of cases where the making of a PEO is appropriate. There is no question but that, as a matter of generality, planning authorities should, in making their decisions, have regard to the extent to which developments requiring planning permission will increase the risk of flooding of neighbouring properties and so shape their decisions as to eliminate or at least minimise such increased risk. They should have regard to material information. That is uncontroversial. Whether or not this is what was done in the present case is a matter of dispute but it is a dispute as to fact, as was, if anything, underlined by consideration of Dr Bradnam's very detailed letter. As was submitted on behalf of the respondent and the interested party, there is no dispute as to the interpretation of statute or policy. There is nothing to be resolved or determined, as a matter of general public interest. What is challenged, in the sense of being sought to be reduced, is a planning permission for a relatively modest development. Any increased risk of flooding is of importance to all the individuals who fear that their properties may be affected. In a sense it is true to say, as Mr Campbell did, that flooding is a matter of public concern and that in the event of an incident of flooding public services are engaged. None of that makes what is in issue here a matter of general public importance. The interests involved are predominantly local and predominantly private. There may be applications for judicial review where the issues raised are at once local and yet of general public interest. This is not such an application. On such information as Mr Campbell was able to provide, it did not appear that the case was very far from that of the half a dozen houses that he had cited by way of example of what would not bring the case within the Corner House principles. Be that as it may, this is very far from a public interest challenge at the instance of a disinterested petitioner. We consider the Lord Ordinary to have been correct in his assessment by reference to the first three Corner House criteria.

[35] In Corner House, the Court of Appeal stated that no CPO should be granted unless the judge considers that the application for judicial review has a real prospect of success. On the view we take, it is unnecessary for us to evaluate the prospects of success of the petition. However, we note that the Lord Ordinary was not persuaded that the petition raised any matter that was amenable to the supervisory jurisdiction of the court. We would not disagree.

[36] We refuse the reclaiming motion