Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 009A
CA70/13	OPINION OF LORD MALCOLM in the cause AVIVA INVESTORS PENSIONS LTD Pursuer; against McDONALD'S RESTAURANTS LTD Defender: ________________

Pursuer: Broome; Maclay Murray & Spens LLP

Defender: G MacColl; Davidson Chalmers

31 January 2014

[1] Aviva Investors Pensions Ltd (the pursuer) is the proprietor and landlord of Corstorphine Road Retail Park in Edinburgh. McDonald's Restaurants Ltd (the defender) is the tenant of a unit in the park. It is operated as a McDonald's restaurant with "drive-thru" lane. The pursuer entered into an agreement with Costa Ltd to construct a free standing retail unit with drive-thru lane on a part of the car park to be leased to Costa and used as a coffee shop. The defender's lease provides that the pursuer can only pursue this arrangement with the consent of its tenant, "such consent not to be unreasonably withheld or delayed". The defender has refused to consent, and the issue now is whether, in so doing, it acted in an unreasonable manner. The defender relies on the expert advice it received from a traffic engineer to the effect that the loss of parking spaces would be detrimental to trade at the McDonald's restaurant. The pursuer says that the advice was flawed, and that a reasonable tenant would have allowed the Costa project to proceed.

The background circumstances

[2] By letter of 7 September 2012 agents acting for the pursuer wrote to the defender requesting consent for the construction of the Costa unit in the car park. Discussions took place between the parties. The defender had concerns as to the potential impact upon traffic and parking. Information was sought from the pursuer on those matters. In addition the defender instructed its own expert advice from ADL Traffic Engineering Ltd (ADL), and in particular from their Mr Mendelsohn. The pursuer commissioned traffic surveys to be carried out by its traffic engineer, Dougall Baillie Associates (DBA), in respect of retail parks at Thanet and Chester. Based upon that data and further information regarding the Corstorphine site, DBA reported that sufficient parking capacity would remain for the predicted demand after construction of the new Costa unit. By letter of 27 February 2013 agents for the pursuer requested a final decision from the defender by 21 March 2013. By letter of that date the defender's agents intimated refusal of consent. This was based upon advice received from ADL that, after the Costa unit, car parking demand at peak times could not be accommodated, the car park would not be fit for purpose, and the development would impact negatively upon the defender. The defender concluded that the erection of the proposed unit would have a detrimental impact upon the McDonald's operation and materially adversely affect its trade.

The summons

[3] The pursuer has asked the court to declare that the defender has unreasonably withheld its consent, pleading that as a result the defender is in breach of the terms of its lease. It is averred that the defender acted unreasonably by withholding consent in light of the evidence from the surveys which had been requested in order to assess whether there would remain sufficient parking to meet predicted demand. In response to the defender's reliance upon the terms of the advice from ADL, it is averred that, contrary to ADL's advice, 100% rather than 90% is the appropriate car park capacity, and that the issue should be addressed in the context of 124 spaces at the car park, not the 111 spaces used in the ADL report. On the latter point, the difference relates to 13 spaces associated with a vacant unit previously occupied by Oddbins (the Oddbins spaces). The pursuer contends that a reasonable reader of the ADL report in the position of the defender would be fully aware of the terms of the DBA report, the fact that it expressed opposing views to those held by ADL, and that DBA had not been afforded the opportunity to comment upon the ADL report. As a result it was not reasonable for the defender to rely solely upon the ADL report.

The defences

[4] The defender's averments in response support the advice given by ADL. For example, it is said that practical occupancy will be lower than static capacity (i.e. the simple number of spaces within the car park). In addition the Oddbins spaces are unattractive in terms of location, accessibility and signage, and thus are not used by visitors to the retail park. It is noted that the pursuer is taking active steps to relet the Oddbins unit. Any new lease would increase demand for spaces, particularly in the immediate vicinity. It is averred that there is nothing in the ADL report which, on its face, would suggest to a reasonable reader in the position of the defender that there was anything incorrect in its approach or analysis. The defender contends that it was reasonable for the defender to rely upon the report when reaching the view that consent should be refused.

The parties' submissions
[5] To a large extent the proof was taken up with the pursuer attempting to establish that the advice given to it was correct, and that the advice tendered to the defender was wrong. By contrast, though without making any concessions, counsel for the defender focused on the question whether it was reasonable for the defender to rely upon the advice from its expert. In an appendix to this opinion I have summarised the evidence. I now outline counsel's submissions as to the relevant legal principles and the issues in the case. In the main there was agreement on the proper approach in law.

[6] Under reference to Scotmore Developments Ltd v Anderton 1996 SC 368 at 371G, counsel for the pursuer, Mr Broome, submitted that the question is: did the defender act in a way which no reasonable tenant would have acted? In other words, would any reasonable tenant have granted consent? International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] 1 Ch 513 is an example of a case where a small increase in parking problems was insufficient to justify refusal of consent. Reference was made to the seven propositions of law which Balcombe LJ deduced from the authorities. Mr Broome submitted that the matter is not governed by the views of experts. While usually a tenant need only consider his own interests, there may be such a disproportion of benefits and detriments that refusal would be unreasonable - see Balcombe LJ's sixth proposition. Under reference to the speech of Lord Rodger of Earlsferry in Ashworth Fraser Ltd v Gloucester City Council [2001] 1 WLR 2180, counsel contended that the court can review the correctness or otherwise of the advice upon which the tenant's decision was based. This was said to be consistent with an objective test of reasonableness, otherwise the tenant could tailor its approach to obtain the advice it wants.

[7] Referring to the key conclusion in the refusal letter of 21 March 2013, namely material adverse effect on enjoyment of and ability to trade at the restaurant, Mr Broome submitted that the pursuer had proved that no reasonable tenant would have come to that view. Developing the proposition, he contended that there had been no analysis of the extent of any impact on the defender's business, and no weight had been given to the landlord's interest in the grant of consent. Given that the landlord would receive additional rental of some £85,000 per year, the pursuer had established a clear case of disproportionality. There was no proven detriment to the defender, yet the loss of substantial benefits to the pursuer. Reference was made to Legal & General Assurance Society Ltd v Tesco Stores Ltd 18 May 2001 (unreported) per Lord Hamilton at paragraph 30. Mr Broome submitted that the actings of the traffic expert instructed by the defender are properly to be regarded as the actings of the defender; as I understood it, on the basis of the close working relationship between Mr Mendelsohn and the defender. He therefore equiparated ADL's conclusions with the tenant, and criticised them under reference to seven points:

1.    There was no proper basis for the 90% capacity figure used by Mr Mendelsohn.

2.    He assumed (wrongly) that the car parking surveys indicated cars in bays.

3.    Disabled bays would absorb some cars at peak times.

4.    The same would apply to the grill bays.

5.    The same would apply to the two, as proposed, drive-thru queues.

6.    The 13 Oddbins spaces form part of the available parking bays and should be taken into account.

7.    Proper weight should be given to the robustness built into the approach adopted by Mr Duncan of DBA.

[8] Mr Broome submitted that a reasonable tenant would have ensured that Mr Mendelsohn was "not left to be judge and jury as to his own reasoning" and would have taken care that the DBA contra-analysis was properly weighed against ADL's report. Mr Mendelsohn's conduct in the witness box was criticised, and it was submitted that, in the light of it, no reasonable tenant would have relied upon his advice. In any event, even if all 124 spaces were occupied, this would be for a short period on Fridays, and not occurring every week, thus there was no reasonable basis for the reasons given for refusal of consent.

[9] In summarising his position, Mr Broome said that the reasonable tenant would have required a more rigorous, less informal process, including something approaching a cost/benefit assessment, taking into account a more detailed analysis of the impact on the defender's business and the significance of the deprival of benefit to the landlord.

[10] For the defender Mr MacColl submitted that, in light of the expert advice received from the traffic engineer, it was reasonable for the defender to refuse consent. The pursuer's witnesses agreed to this proposition. As to the legal approach, Mr MacColl was content to rest upon the test set down in Scotmore Developments, namely - has the pursuer proved that the person withholding consent has acted in a way which no reasonable person in such a position would have acted? On any view it would be reasonable for the defender to employ a traffic engineer and then rely upon his advice. It was not for the defender to "second guess" the expert advice from ADL regarding parking impact. Mr Duncan of DBA had accepted that Mr Mendelsohn is a competent traffic engineer and that he could reasonably come to the conclusions set out in his report.

[11] On the issue of alleged disproportionality of benefits and detriments, and lack of rigour regarding the impact on the defender's business, it was submitted that the onus is on the pursuer to prove that the refusal causes serious detriment to the landlord, and, at most, trivial benefit to the tenant. Again reference was made to Balcombe LJ's sixth proposition. The tenant is not obliged to carry out anything in the nature of a cost/benefit analysis. Nothing in International Drilling Fluids justifies that approach. There is no evidence that a reasonable tenant would have done anything of that nature. There is nothing in the pleadings, nor in the correspondence leading up to the court action, which justifies an allegation that refusal of consent will have consequences of the kind asserted by Mr Broome. In terms of the pleadings, and evidentially, the tenant required to do nothing more than consider his own interests.

[12] As to the consequences for the defender's business, the ADL report of March 2013 referred to an adverse impact in that the demand for car parking would exceed the capacity of the car park. The defender's policy is to prioritise the customer experience, including ease of use of its facilities. A full car park would put people off. The defender's opinion as to significant adverse impact was reached on a reasoned basis. The person taking the decision considered that he had no other option, given that the expert's advice was that there would be problems. The defender owed an obligation to the franchisee. There was nothing in Mr Mendelsohn's report to give the defender reason to question or disbelieve the advice. It was simply a case of a clash of experts. Throughout the defender acted in a reasonable manner.

[13] Under reference to Legal & General Assurance at paragraph 30, the defender does not have to prove that the conclusions upon which the decision was based are correct. It is enough if they were conclusions "which might be reached by a reasonable man in the circumstances." Both parties relied upon the views of their own experts. Plainly scope existed for different opinions among traffic engineers. Mr MacColl commented that witnesses can give evidence in differing styles, and certain lines of questioning could be regarded as irritating. However nothing in Mr Mendelsohn's demeanour in the witness box would justify decree of declarator. At an earlier stage he gave advice contradicting some of the defender's concerns. In any event, Mr Duncan of DBA accepted that the scheme put before the defender for approval is flawed because it overlooks the potential for the Oddbins unit to be re-let, with consequential increased demand on car parking spaces. Mr Duncan made reference to a subsequent scheme containing additional parking spaces to allow for the future re-letting of the Oddbins unit, however this has not been put to the defender for approval. The fact that the pursuer's expert now disowns the scheme at the centre of the case is "a useful cross check" as to the reasonableness of the tenant's refusal of consent.

Discussion and decision
[14] The tenant gave careful consideration to the landlord's request, to the extent of instructing expert advice from a firm of traffic engineers. There was no instant rejection. Further information was sought, principally traffic survey results, all of which was the subject of a report from ADL. The whole matter was under investigation and consideration for almost two years. This background renders it unlikely that the tenant acted unreasonably, particularly given that the expert's advice was followed.

[15] There is nothing inherently surprising or difficult to understand in the tenant's decision. Under the scheme placed before it, the Costa unit would increase demand and reduce the number of parking spaces in what, at peak times, is a busy car park. If customers of McDonald's have difficulty finding a parking space, this may send them away. Even if a space is found, the customer may be discouraged from making a return visit.

[16] The most that has been said on the other side is that refusal would cost the landlord the additional rental of £85,000 per annum. It is not suggested that this will threaten the viability of the retail park, nor otherwise cause the kind of substantial prejudice which would require a reasonable tenant to lay aside its own interests in favour of those of another. To use the language of Lord Hamilton in Legal & General Assurance, it has not been shown that the legitimate concerns of the tenant "pale into insignificance" when viewed against the advantages likely to accrue (paragraph 50).

[17] In my opinion, reasonableness did not require the defender to carry out or instruct a cost/benefit assessment of the kind desiderated by Mr Broome. In any event, it is not easy to see how this could be done with any confidence or certainty. The onus is on the landlord to demonstrate that the refusal was unreasonable, not on the tenant to prove the opposite.

[18] Notwithstanding the submission to the contrary, and granted that there was a prior history of him advising the defender, Mr Mendelsohn gave independent expert advice on behalf of ADL. He is not an employee of the defender. The evidence shows that he did not simply echo or reinforce the defender's concerns. There is nothing to suggest that his conclusions were unprofessional or tainted by bias - indeed the opposite was accepted by Mr Duncan. While Mr Mendelsohn felt the need to apologise for his occasionally unhelpful attitude towards some of the questions asked of him in cross-examination, and though it is true that an expert witness will do well to remain calm and polite throughout, none of that has caused me to doubt his bona fides and professionalism in respect of the advice tendered to the defender. Mr Mendelsohn advised that the proposal would be detrimental to the defender's business operations on the site. There was no reason for the defender to question or reject that advice. In all the circumstances there was nothing unreasonable in the defender choosing to follow ADL's views.

[19] The court does not require to decide whether it agrees with the refusal of consent, nor with the reasons for it. The defender does not need to demonstrate that the expert advice was correct, nor justify the conclusions upon which the decision to refuse consent was based. The authorities are clear on that point - for example see Balcombe LJ's fourth proposition in International Drilling Fluids Ltd at 520 C - D. The only question is - did the tenant act in a reasonable manner? To a substantial extent the pursuer conducted the proof on the basis that the court should review the experts' evidence and reach a view on the merits of the issues between them. However this is neither necessary nor appropriate for the proper determination of the case. In any event, on the pursuer's expert's own admission, the scheme put before the defender for approval is unsatisfactory, hence it has been revised. There is a high degree of artificiality in the suggestion that the court should adjudicate on the issues debated between the experts in relation to a flawed scheme.

[20] There was a general consensus in the evidence that the experts were debating matters of professional opinion or judgement. Mr Duncan accepted that their work is an inexact science. Nothing persuaded me that any expert should be rejected as acting unreasonably or beyond the bounds of competent professional opinion.

[21] The defender did not "expert shop", nor tailor matters to obtain the advice it wanted. There was no need for the defender to seek another view, nor to place the ADL report before DBA before reaching a decision on what to do. There was no obligation upon the defender to come to its own independent view on the traffic impact of the DBA proposals. It was entitled to rely on the advice received from ADL. There was nothing unreasonable about the conclusions on which the refusal of consent was based. They had a foundation in the expert advice. Mr Jones was entitled to form his own judgement on whether the likely impact on the McDonald's restaurant was acceptable. In the whole circumstances there was no requirement on the defender to weigh in the balance the landlord's interests. This was not a clear case of disproportionality.

[22] As to the seven points of criticism levelled at Mr Mendelsohn's report by Mr Broome, I am satisfied that Mr Mendelsohn was entitled to form the views which he did. No further procedure or analysis was required on the part of the defender. It is not for the court to decide between the various expert views, and then, if any of Mr Mendelsohn's conclusions are rejected, interfere with the tenant's decision. Furthermore this is not a case where the potential impact on the McDonald's restaurant is so obviously trivial or unimportant that the court would be justified in ruling that the refusal was unreasonable. Mr Broome placed some reliance on the speech of Lord Rodger of Earlsferry in Ashworth Frazer Ltd at paragraphs 61 - 73, but I have found nothing of assistance to the pursuer in his Lordship's observations, which were directed to the particular circumstances of the case before him. On the contrary, emphasis was given to the area of discretion afforded to the decision‑maker.

[23] The pursuer has not proved that any reasonable tenant would have granted consent. On the contrary, I am satisfied that, especially in light of the expert advice received, the conclusions which underpin the refusal of consent were open to the defender, and that it acted in a reasonable manner. In any event, had it been appropriate to embark upon the exercise, I would not have been persuaded that Mr Mendelsohn's views on the key issues should be rejected, nor that preference should be given to those of either Mr Duncan or Mr Vollar. The test laid down in Scotmore Developments has not been met by the pursuer, thus the defender shall be absolved from the conclusions of the summons.

APPENDIX

The evidence

Mr David Fortune is a chartered surveyor involved in project management. He described the retail park, its traffic peak times, the Costa project and the correspondence and survey work relating to the request for consent and its ultimate refusal. On behalf of the pursuer he engaged Mr Robin Duncan of DBA to provide expert traffic and parking advice. He explained that the intention is to reintroduce nine spaces in the area of the presently vacant Oddbins unit, which are currently unused by members of the public. In cross-examination he agreed that it was reasonable for the tenant to take advice and act upon it. He accepted that the Costa proposal would increase the number of people using the car park and reduce the number of car parking spaces.

Mr Robin Duncan is a director of DBA, and a chartered engineer specialising in transportation. He has been involved in many retail development projects. He first became involved with the Costa proposal at Corstorphine in 2011. His work and investigations included discussions with Mr Mendelsohn of ADL. He produced a report in April 2012, which included a layout plan. Further discussions took place in the second half of 2012. Certain issues were resolved. The outstanding concerns relate to demand within the car park. He was involved in setting up and instructing survey work at Thanet, Chester and Corstorphine in early 2013. He produced a further report in February 2013. The predicted peak parking demand occurred on a Friday at a level of 97% usage of the car park.

Mr Duncan spoke to a number of factors said to "contribute to the robustness of his assessment". He disagreed with Mr Mendelsohn's view that 90% occupancy equates to the practical capacity of the car park. There is 3% spare capacity at the highest measured peak time. Mr Duncan explained the reasons for his inclusion of the 13 Oddbin spaces in the calculation. (Mr Mendelsohn excludes these from his assessment.) As to the earlier discussions between the parties, Mr Duncan said that "the aspiration on both sides was to find a mutually acceptable layout, including parking". In his supplementary statement he explained the areas of disagreement with the views expressed by Mr Mendelsohn. At 97% capacity, cars would not have to queue nor wait for a space. Reference was made to industry standards and guidance regarding the calculation of practical capacity from static capacity. In the supplementary witness statement, Mr Duncan noted that the Oddbin's unit is vacant. He made reference to a more recent report showing a revised layout with 146 spaces, including 8 disabled and 3 grill bay spaces, giving 135 general spaces (which is 11 more than the layout put before the defender for approval).

In his oral evidence, Mr Duncan stressed the good site lines and the short time needed to traverse the car park, which in his view would allow the car park to operate even if all the spaces were occupied. In cross-examination he accepted that his February 2013 report and the layout put to the defender for its approval proceeded upon the erroneous assumption that the Oddbins unit is occupied. Had he appreciated that it is vacant, he would have made allowance by providing more parking on the site, as per the more recent revised layout. So far as he is aware, the defender has not been asked to consent to that scheme. Mr Duncan agreed that if the Oddbins unit was re-let, there would be over 100% demand unless additional spaces were provided, hence the revised layout.

Mr Duncan was asked whether the conclusions reached by Mr Mendelsohn were open to a reasonably competent traffic engineer acting competently. He replied in the affirmative. He said that there are at least two views on the level beyond which the car park will no longer operate in an effective manner. Mr Duncan could see how Mr Mendelsohn had reached his opinion - but he considered that an overly onerous test had been applied. As to the bulk of the Oddbins spaces, it would be a "good idea" if they were allocated to staff parking.

Mr Broome led evidence from another traffic engineer, namely Steven Vollar, the senior partner of Hill Cannon Consulting. Mr Vollar expressed the view that, with people waiting in the drive-thru queue, it could be said that a vehicle occupancy of 105% would mean that the car park was at its operating capacity. He could find no justification for the use of the 90% figure. There are no industry standards for the capacity of surface car parks. The spaces are underutilised at present and the Costa development should not deter people from visiting the McDonald's restaurant. Customers might have to use the more remote Oddbins spaces when the car park is at capacity. The lanes are wide, so people can wait for spaces and not restrict circulation. He disagreed with the key factors in the ADL report. He said, "if they are unreasonable, consent should not be withheld".

Mr Vollar offered the view that the new layout is reasonable and adequate for the users. The guidelines referred to by Mr Dooley are aimed at planning for a multi-storey car park. He disagreed with Mr Dooley's 85% figure. If necessary, a raised deck of parking could be erected beside the Oddbins unit. Drive-thru customers used the grill bays. Mr Mendelsohn should not have discounted the disabled bays. They will be used by both McDonald's and Costa customers. Mr Vollar was unwilling to discount the grill bays. The difference between static and dynamic capacity is not relevant for a small car park with good visibility. He proceeded upon the basis of 135 spaces (not 124), giving, with a peak demand of 120 spaces, 11% spare capacity (or 89% capacity usage). He explained that his 89% figure is the equivalent of Mr Duncan's 97%. He considered that matters should not be contentious if the figure is below 90%.

In cross-examination it was put to Mr Vollar that traffic engineers will make concessions when discussing such issues. He replied "We all have our methodologies and opinions." He accepted that he differed from both DBA and ADL on the 50% re-parking from the McDonald's drive-thru, and he questioned Mr Duncan's agreement to discount the grill bays and the disabled spaces.

Turning to the evidence led on behalf of the defender, Mr Alun Jones is a chartered surveyor employed by McDonald's. He has responsibility for all property issues within its northern franchise portfolio. He spoke to the correspondence and related matters leading up to the refusal of consent to the Costa proposal. ADL were instructed in May 2011. Mr Mendelsohn is a trusted advisor on traffic and car parking layouts. Both Mr Jones and the franchisee wanted to maintain good relations with the landlord. They were looking for an amicable solution. Discussions took place to see if such could be achieved. At one point the pursuer threatened litigation for alleged breach of contract. The defender instructed solicitors to act on its behalf. Mr Jones spoke to the correspondence passing between the respective solicitors in 2012/13. A meeting took place in December 2012. Thereafter the pursuer agreed to instruct further survey work.

The defender was given a deadline for a final response. ADL's advice was obtained. At a conference call attended by Mr Jones, Mr Mendelsohn, the defender's solicitor, and Mr George Jones (who has a UK wide responsibility for the defender's property), it was agreed that the proposal would be detrimental to the site and to the McDonald's operation. Though he checked the views of others in the organisation, it was Mr Alun Jones' decision to refuse consent for the reasons expressed in the letter of 21 March. The decision was taken on the basis of ADL's advice that there would be an adverse effect on the car park and on the McDonald's restaurant. Mr Jones had no reason to doubt ADL's advice.

In cross-examination, Mr Jones explained that, initially, he had concerns regarding certain design aspects, but Mr Mendelsohn reassured him on those points. A coffee shop would not be a competitor to the McDonald's restaurant. They operate with Costas in a number of locations. However, if customers struggle to park, they could take their custom elsewhere. Mr Jones was focused upon the McDonald's operation. The overall "customer experience" is important. McDonald's has relationships with the pursuer all over the country and did not want to fall out with its landlord and face court action unless there was a real issue at stake. A decision had to be made. ADL had been asked to advise the defender on the issue of car parking capacity. The policy of the defender is to exclude grill bays, which are intended for use by customers awaiting a grill order, the purpose being to avoid delay in the drive-thru lane. Mr Jones said that he "felt we had no other option than to refuse consent". He confirmed that the landlord's interests did not enter into the equation.

Mr Alan Mendelsohn spoke to his involvement, which began in May 2011. As discussions progressed, he formed the view that after the Costa unit, the number of general spaces in the car park would reduce from 135 to 111. His concerns related to insufficient parking, traffic generation and the arrangements for deliveries. The conclusions in his final report were reached after considering and analysing the DBA report of 4 February 2013. His conclusions were:

"The impacts would be that McDonald's customers would be unable to find a parking space, they would have to recirculate around the car park searching for a space and may decide to leave, they could find that the only spaces available are those tucked away behind Oddbins and consider them too remote to serve the restaurant, they may decide to join the McDonald's drive‑thru queue as the only alternative when they wanted to visit the restaurant. If we were asked to assess this proposal from scratch, a 'reasonable' test would be one that demonstrates that the peak car park demand from all the users could be accommodated on site. The proposed car park would, therefore, be fit for purpose. Therefore, I consider that it is reasonable, based on the evidence presented, to demonstrate that, at peak periods, the car park would be in excess of 90% capacity and that there would be an impact on McDonald's".

Mr Mendelsohn was aware that his advice would "be key to McDonald's decision making process". He therefore used the test of reasonableness to apply to the data. It had become apparent to him that the Costa parking was continuously increasing from zero spaces to 20-25 spaces, and the Corstorphine car park surveys showed continued high usage, with a limited number of realistically accessible spaces. This formed the basis of his advice that the development would have an adverse impact on McDonald's operation.

McDonald's sought his advice throughout the two year process leading up to the final decision. There was nothing in his report which would have led them to reject his advice. In the conference which took place shortly before the letter of refusal, he was asked to explain his report. Under reference to part of the DBA February 2013 report, he pointed out that bus services were of little relevance since not a single visitor to the surveyed sites had arrived by bus. He had taken a conservative view, but still reached the conclusion that there would be an adverse impact.

Mr Mendelsohn responded to the two main criticisms levelled at his advice, namely concerning the 90% occupancy figure as car park capacity, and the use of 111, not 124 spaces. He explained in detail why he adheres to his advice. He confirmed that he stands by the view that at peak times there would be too many cars trying to use the car park; that 90% is an appropriate figure for the practical capacity of this car park to allow for manoeuvring, exiting and finding empty spaces at peak times; and that the Oddbins spaces should be excluded from the assessment.

Mr Mendelsohn was cross-examined in detail on points of methodology, industry standards, and opinion, all of which would be helpful if the court had to choose between the various experts' views, but is of limited relevance to the test set down in Scotmore Developments. At times Mr Mendelsohn became argumentative, aggressive, and irritated by the cross-examination - though at all times Mr Broome remained calm and scrupulously polite.

The final witness for the defender was another traffic expert, namely Mr John Dooley of Mott MacDonald. He was asked to appraise the methodology adopted by Mr Mendelsohn, with particular emphasis on the two disputed issues. On the capacity issue, he said that for a car park to function safely and effectively, there must be sufficient space to allow vehicles to manoeuvre in and out of spaces, and to park easily. As to the Oddbins units, given that in future it is likely that the unit will be reoccupied, in the meantime it is reasonable to proceed upon the basis of 111 spaces. He offered the view that Mr Mendelsohn had adopted "good practice", and that it would be reasonable to rely upon his report. He would not expect the defender to have the specialised knowledge necessary to make a proper assessment. Mr Dooley had sat in court during all the evidence, and nothing had caused him to alter his views.

Under cross-examination Mr Dooley said that 85% occupancy is a threshold for intervention to be considered. He was questioned in detail on industry standards. He explained why he agreed with 90% as a reasonable judgement in respect of the proposals for this car park. As to the 13 Oddbin spaces, at present they are inaccessible so they should be discounted when considering the survey data, and for the future, they would allow for the re-use of the vacant unit.