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OUTER HOUSE, COURT OF SESSION
[2006] CSOH 49
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OPINION OF LADY
CLARK
OF CALTON
in the Petition of
JOHN SIMSON
Petitioner;
against
ABERDEENSHIRE
COUNCIL AND OTHERS
Respondents:
for
Judicial Review
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: J.D. Campbell, Q.C., Carruthers; Thorntons
First Respondents: M.E. McKay; Cameron McLenna (Scotland) LLP
Second and Third Respondents: Ms Wilson; Shepherd & Wedderburn
24
March 2006
1. Procedure at First Hearing
[1] On 9
and 10 February 2006, I heard submissions relating to the petition by
Mr John Simson for Judicial Review of a decision to grant full planning
permission dated 20 July 2005 by Aberdeenshire Council. The first respondents are Aberdeenshire
Council who are the responsible planning authority whose decision is
challenged. The second respondent is
West Coast Energy Limited, a company incorporated under the Companies
Acts. The second respondent is described
as involved in the planning and designing of a wind energy development at Tullo
Farm, Laurencekirk, Aberdeenshire (hereinafter called the "development") for
the third respondent and acting as agent for the third respondent. The third respondent is, Tullo Wind Farm
Limited, a company incorporated under the Companies Acts and constituted as a
joint development company for the purpose of carrying out the development. Answers were lodged on behalf of the first,
second and third respondents. Outline
written submissions were provided by counsel at my request.
[2] Except
in relation to one matter, it was possible to deal with the facts in so far as
relevant to the issues in the petition and answers by way of ex parte statements made by counsel who
referred to the various documents produced.
The matter with which I was not able to deal related to paragraph 15 of
the answers for the second and third respondents which made detailed averments
about the business and financial arrangement of the second and third
respondents. Counsel for these
respondents wished to pray these averments in aid as additional factual
information in support of her first plea in law which is founded on mora.
No documentation or affidavit evidence in relation to these averments was
available at the first hearing. Senior counsel for the petitioner submitted that I should
not rely on these averments without some form of proof. I considered his submission was well
founded. I decided to deal with the main
issues in the petition in order to minimise delay in proceedings, particularly
as one of the issues in the case related to the effect of delay. I advised that before issuing a final
determination, the case would be put out By Order so that parties would be given
an opportunity to consider my opinion and address me as to whether they wished
further procedure to deal with the matter outstanding.
2. Legislative structure
[3] The
Town & Country Planning (Scotland) Act 1997, as amended, provides:
"37.---
(1) Where an application is made to
a planning authority for planning permission -
(a) subject to sections 58 and 59, they
may grant planning permission, either unconditionally or subject to such
conditions as they think fit, or
(b) they may refuse
planning permission.
.
. . .
(3) Subsection (1) has effect subject to sections 34
and 35 and to the following provisions of this Act, and to sections 59(1),
60 and 65 of the Planning (Listed Buildings and Conservation Areas) (Scotland)
Act 1997."
The Planning (Listed Buildings and Conservation Areas)
(Scotland) Act 1997 provides:
" 59. --- (1) In considering whether to grant planning
permission for development which affects a listed building or its setting, a planning
authority or the Secretary of State, as the case may be, shall have special
regard to the desirability of preserving the building or its setting or any
features of special architectural or historic interest which it possesses."
. .
. .
" 60.--- (1) This section applies where an application for
planning permission for any development of land is made to a planning authority
and the development would, in the opinion of the authority, affect the setting
of a listed building."
[4] The Environmental Impact Assessment (Scotland) Regulations 1999, as amended,
provides :
" 2. - (1) . .
. . "environmental information"
means the environmental statement including any further information, any
representations made by anybody required by these Regulations to be invited to
make representations, and any representations duly made by any other person
about the environmental effects of the development;
"environmental
statement" means a statement -
(a) that includes such of the information
referred to in Part I of Schedule 4 as
is reasonably required to assess the environmental effects of the development
and which the applicant can, having regard in particular to current knowledge
and methods of assessment, reasonably be required to compile, but
(b) that includes at least the information referred to in Part II
of Schedule 4"
" 3. - .
. . . (2)
The relevant planning authority or the Scottish Ministers shall not grant
planning permission pursuant to an application to which this regulation applies
unless they have first taken the environmental information into consideration,
and they shall state in their decision that they have done so."
"10. - (1) A person who is
minded to make an EIA application may ask the relevant planning authority to
state in writing their opinion as to the information to be provided in the environmental
statement (a "scoping opinion").
(2) A request under paragraph (1) shall include -
(a) a plan sufficient to identify the land;
(b) a brief description
of the nature and purpose of the development and of its possible effects on the
environment; and
(c) such other information or
representations as the person making the request may wish to provide or make." .
. . .
3. Facts
[5] The petitioner lives in a 17th
century house called "Gallery". Gallery
is a Category A listed building located in the
area of Angus Council. Category A
is the category of listing allocated by Historic Scotland to buildings in
Scotland of national or international importance, either architectural or
historic, or fine, little altered examples of some particular period, style or
building type. Gallery is a building of
national importance.
[6] An
application for full planning permission dated 6 October 2003 was
submitted to the first respondents, in name of the third respondent specifying
the second respondents as agent (7/1 of process). The application sought planning permission
for erection of eight wind turbine generators, a sub-station, the construction
of access tracks and ancillary development.
Gallery is located approximately 9.2 kilometres to the south-west
of the location of the nearest turbine in the development. The application for planning permission was
submitted along with supporting documentation which included a document called
by the second and third respondents an environment statement in support of the
application. (7/1 of process). The said statement was
treated by the first respondents as an environmental statement for the purposes
of the Environmental Impact Assessment (Scotland) Regulations 1999 as
amended (hereinafter referred to as the 1999 Regulations). The environmental statement had been
developed out of a scoping exercise in which the views of interested parties
and consultees were sought in particular about methodology. The scoping report was dated
13 September 2002 (12/1 of process).
Discussions on behalf of the second and third respondents took place
with the first respondents and various consultees including Scottish Natural
Heritage and Angus Council. As a result
of this process, the second and third respondents developed the scope of the environmental
statement. In particular, the area of
the original proposed study area was extended and the number of selected
viewpoints which were part of the methodology to assess landscape and visual
impact were increased. This was done to reflect concerns of Scottish Natural
Heritage which specifically asked that an assessment should be made of the
historic gardens and landscapes at Arbuthnott House, Glenbervie House and Fasque. The finalised environmental statement
included specific assessment of these listed buildings and gardens in
accordance with the viewpoints agreed with Scottish Natural Heritage. These matters were included in the environmental
statement within a section dealing with landscape and visual impact assessment
(7/1 vol. 2 paras 5.11.5-8). Gallery
is also located in the study area.
[7] Thereafter
on 7 and 14 November 2003 the planning application was advertised in
accordance with the statutory requirements under Section 34 of the Town
& Country Planning (Scotland) Act 1997 and the 1999 Regulations. No advertisement was made under
Section 60 of the Planning (Listed Buildings and Conservation Areas)
(Scotland) Act 1997. The period for
objection to the planning application ended on 22 November 2003. The period for representations to be made in
relation to the environmental statement ended on 8 December 2003. The results of the consultation process are
summarised in the report to the first respondents' Planning Committee dated 29
June 2004 (7/2 of process). In addition
to many representations from members of the public, there was extensive
consultation carried out by the first respondents including local community
councils, statutory consultees, various sections of the Council Services and
other private and public groups who the first respondents considered might have
an interest in the application.
[8] One of
the consultees was Historic Scotland.
Historic Scotland is an agency of the Scottish Executive with particular
expertise and responsibility in relation to listed buildings. Historic Scotland has published guidance
called the Memorandum of Guidance on Listed Building and Conservation Areas
(1998). By letter dated 4 December 2003, the first respondents sent
to Historic Scotland,
a copy of the planning application form and plans asking for any
comments on the proposal within a short time scale (7/19 of process). Sometime prior to 29 January 2004
Historic Scotland considered the environmental statement. By letter dated 29 January 2004,
Historic Scotland replied to the first respondents and made detailed comments
about the content of the environmental statement in relation to their statutory
archaeological interests. In conclusion,
it was stated on behalf of Historic Scotland "I can however confirm that, in
terms of our listed building and designed landscape interest, we are content to
agree with the findings of the environmental statement." (7/13 of process).
[9] The environmental
statement does not contain any information dealing with listed buildings and
their settings except as explained above in paragraph 6 in relation to
Arbuthnott House, Glenbervie House and Fasque.
There is no mention in the environmental statement of Gallery or its
setting.
[10] On
8 June 2004 the application for planning permission called before the
first respondents' planning committee.
Consideration of the application was deferred to 29 June 2004 to
allow for a site visit and to give the planning services department of the
first respondents an opportunity to comment on a late submission by Scottish
National Heritage unconnected with listed buildings and their settings.
[11] By
letter dated 26 June 2004 and received by the first respondents on
28 June 2004, the petitioner intimated his objection to the grant of
planning permission for the development (7/3 of process). The petitioner did not make any case based on
the Class A listing of Gallery or refer specifically to any effect on the
setting. His principle objection was
that the development would have adverse landscape and visual impact in relation
to Gallery.
[12] On
29 June 2004 the first respondents' Planning Committee met in public
session and gave an opportunity to some objectors to address the
Committee. The timetable was relaxed to
permit the petitioner to do so. The
petitioner expressed regret at the negative impact which the development would
have upon the view from Gallery (7/4 of process).
[13] The
Committee considered the report of the Planning Officer dated 21 June 2004
which recommended the grant of planning permission (7/2 of process). Said report contained no mention or
assessment of Gallery and/or its setting.
The report did contain reference to the opinion of Historic Scotland
which was summarised as follows:
"Historic Scotland confirm
that in terms of their listed buildings and designed landscapes they agree with
the contents of the environmental statement ..."
Having considered the content of the report and heard
submissions, both in favour and against the grant of planning permission, in
accordance with the first respondents' scheme of delegation, the Planning
Committee agreed that authority to grant full planning permission for the
development be delegated to the Head of Planning and Building Control. Permission was subject to the negotiation of
an agreement in terms of section 75 of the Town & Country Planning
(Scotland) Act 1997 and the imposition of certain conditions designed inter alia to preserve visual amenity.
[14] By
letter dated 22 July 2005 the first respondents gave notice to the second respondent
of the decision to grant planning permission subject to conditions set out in
the letter which included a condition in the interests of visual amenity and
landscape protection (7/6 of process).
[15] A
separate application for planning permission in respect of wind turbine
generators and associated development referred to in this case as the East
Bradieston development was made to the first respondents. The East Bradieston development is
approximately 2 kilometres closer to Gallery than the development promoted
by the second and third respondents. From at least March 2004 the petitioner
was aware of and was opposed to this application (6/12 of process). The second
and third respondents are not involved in the East Bradieston Development. The application for planning permission for
the East Bradieston Development was refused by the first respondents. One of the reasons for refusal was the
cumulative effect taking into account that the development promoted by the second
and third respondents had been approved.
The first respondents' refusal was appealed and a public inquiry has
been held. Evidence at the public
inquiry was prepared and led in relation to said cumulative effect. The reporter who heard the appeal had not
issued a decision at the date of the first hearing of this judicial
review.
[16] The
petitioner lodged the present petition for judicial review on 18 October
2005. The second and third respondents
have not commenced construction of the development.
4. Submissions on behalf of the parties
[17] Senior
counsel for the petitioner relied on the terms of Section 59(1) of the Town
& Country Planning (Listed Buildings and Conservation Areas (Scotland) Act
1997. He submitted that there was a
clear duty on the first respondents as planning authority to comply with said
section. The first respondents had
manifestly failed to do so because it was clear that Gallery or its setting was
never specifically considered by the first respondents. In particular, the first respondents had
never considered whether the development affects the setting of Gallery. A decision about that was a precursor to fulfilling
their duty under Section 59(1) "to have special regard to the desirability of
preserving the building or its setting or any features of special architectural
or historic interest which is possesses".
He prayed in aid the Memorandum of Guidance issued by Historic Scotland
in particular at page 202:
"It is seldom possible to
assess with certainty from plans alone whether a proposed development ... will
affect setting. It is therefore of the
greatest importance to check on site the relationship of the proposal to
adjacent buildings and structures, planned landscapes and landscape features
before reaching a decision."
[18] Senior
counsel for the petitioner contrasted the absence of information available
about Gallery with the specific consideration in the environmental statement
which was given to other listed buildings in the area of the scoping study
namely Arbuthnott House, Glenbervie House and Fasque and their settings. In the absence of any information, he stated
the first respondents never were in a position to make a planning judgement as
to whether or not there was an effect on Gallery or its setting and if so,
whether it was a significant effect. The
first respondents required to apply their own mind to the environmental statement
which was obviously incomplete in that it did not include Gallery or its
setting. The first respondents should
have ensured that Gallery and its setting were examined to see (1) what in the
exercise of the first respondents' planning judgement, constituted the setting;
(2) whether in exercise of a planning judgement there was an effect on Gallery
or its setting; and (3) if so, whether it is a significant effect. He referred to Wordie Property Co Ltd v Secretary
of State for Scotland 1984 SLT 345, the Lord President at page 347:
"A decision of the Secretary
of State acting within his statutory remit is ultra vires if he has improperly exercised the discretion confided
to him. In particular, it will be ultra vires if it is based upon a
material error of law going to the root of the question for determination. It will be ultra vires, too, if the
Secretary of State has taken into account irrelevant considerations or has
failed to take account of relevant and material considerations which ought to
have been taken into account".
[19] It was
submitted that the first respondents in exercising their planning judgement
failed to take account of material considerations and in any event, had failed
to properly carry out their statutory duty under Section 59(1). He further criticised the position of the
respondents who suggested that there was some duty incumbent upon the
petitioner to draw to their attention that a listed building or setting were
affected by the development. He pointed
out that the statutory duty falls only upon the first respondents. Further and in any event, the petitioner submitted
that the respondents are not now entitled to claim that the setting of Gallery
will not, as a matter of fact, be affected by the development in the absence of
any attempt to address the issue and make such a judgement prior to the
granting of planning permission.
[20] In
response, counsel for the first respondents submitted that on a proper
interpretation of Section 59(1) of the Planning (Listed Buildings and
Conservation Areas (Scotland) Act 1997, the first respondents were to have
special regard to the desirability of preserving the setting of a listed
building only where they considered that the setting was affected. In the present case, it not being considered
by the first respondents' planning authority that the setting of Gallery was
affected and no environmental information or representations to that effect
having been received as at the date of the decision, the duty under Section
59(1) did not arise. The decision making
of the first respondent must be seen in context. This was an application to which the
Environmental Impact Assessment (Scotland) Regulations 1999 applied. Regulation 3(2) directs that the planning
authority shall not grant planning permission for an EIA development unless it has
first taken "environmental information" into consideration. That term was defined in
Regulation 2(1). Part I of
Schedule 4 set out the information which should be included. Counsel for the first respondent spent some
time dealing with English provisions, said to be equivalent to the Scottish
provisions, to illustrate that in considering the environmental statement, the planning
authority was not to have regard to "every scrap of environmental information",
but rather the likely significant environmental effects. He made reference to R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 406 at page 82, et seq.; R v Cornwall CC ex parte Hardy [2001] Env LR 473 paragraph 58-61;
Smith v Secretary of State for the Environment and
the Regions [2003] Env LR 32 at page 693. He emphasised the importance of considering
the whole process, the consultation with statutory consultees and other public
consultation. He submitted that in
interpreting the duty on the planning authority under Section 59(1) of the
Planning (Listed Buildings and Conservation Areas (Scotland) Act 1997, it should be
understood that the planning authority should first exercise its discretionary
planning judgement as to whether the setting of the listed building was affected. If the answer to that was negative, the planning
authority did not have to take the further mandatory step of having special
regard to the desirability of preserving the building or its setting.
[21] As to
the meaning of "affects" in this context it was submitted that this could only
mean affects in a material or significant way under reference to Bearsden and Milngavie DC v Secretary of State for Scotland [1992]
SC 276 and R v South Hertfordshire Council DC ex
parte Felton [1989] 3 PLR 81 at page 87D-E. Counsel for the first respondents accepted
that there may be cases where the planning authority was plainly wrong in reaching
a view that the setting was unaffected.
The case of R v South Hertfordshire Council DC ex parte Felton [1989] 3 PLR 81 was given as an example, but this
was not such a case. In the context of
the present development, there had been a complex process of consultation over
a long period resulting in an environmental statement which thereafter was
subject to further consultation including reports by statutory consultees. The inclusion in the environmental statement
of the listed buildings, Arbuthnott House, Glenbervie House and Fasque showed
the successful way in which this process had worked. The first respondents were entitled to take
into account the clear view of the statutory consultee, Historic Scotland expressed
in their letter of 29 January 2004 (7/13 of process). It followed therefore that the first
respondents were entitled to reach a view as a result of the process and
information gathered that there were no listed buildings other than those
considered in the environmental statement which were affected by the
development. It was not necessary, as
senior counsel for the petitioner submitted, that the first respondents should
have had specific information as to whether or not Gallery or the setting of
Gallery was or could potentially be affected by the proposed development. Counsel for the first respondents also
referred to Clyde and Edwards, Judicial Review [2000] at paragraph
21.05 R v Bolsover DC ex parte Paterson [2001] JPL 211 and Ampliflaire v Secretary of State for Scotland 1999 SLT 97 pages 939-940.
[22] In
support of the first respondents' plea of mora,
counsel relied upon the history of the public consultation process and the
opportunity afforded to the petitioner to make representations at the committee
meeting of 28 June 2004 when he had failed to state that he sought to
preserve the setting of a listed building.
The first respondent noted that the substantive decision to grant
planning permission had been reached at said committee meeting, albeit formal
planning permission following execution of an agreement was not granted until
20 July 2005. He referred to Clyde and Edwards, Judicial Review at paragraph 808 and R v Derbyshire
CC ex parte Murray [2001] Env LR 494,
505. He also stressed that the first
respondents had an interest in maintaining the smooth administrative operation
of the planning system. He emphasised
that a planning appeal, relating to the East Bradieston Development in which
the first respondents were a party, had been held but not yet reported in
circumstances where cumulative effect was a major issue. If the present application for Judicial
Review was granted, this would also have potential implications for the East
Bradieston Inquiry. He submitted that
the petitioner had been aware of the development since November 2003 and was
aware that a substantive decision had been made at the committee meeting on
29 June 2004.
[23] Certain
criticisms were also made of the petitioner's pleadings, in particular that it
was insufficient merely for the petitioner to aver that the setting of Gallery
was affected without providing some factual information on which the court
could form a view that the setting was affected.
[24] Counsel
for the second and third respondents adopted the submission of the first
respondents. I did not understand that
she wished to develop any significant new lines of argument in support of these
submissions. She did have new and additional
submissions to make in relation to mora
but for the reasons explained in paragraph 2, I did not deal with these
submissions at the first hearing.
5. Discussion
[25] The
complex statutory provisions relating to the determination of an application
for planning permission for development of land are to be found in a number of
different statutory regimes. The main
provisions regulating the determination are to be found in Section 37 of
the Town & Country Planning (Scotland) Act 1997 but additional or different
provisions may be relevant, as in this case, dealing with various special
controls. In my opinion, the effect of
Section 37(3) is that the planning authority before determining the
application must comply with Section 59(1), 60 and 65 of the Planning
(Listed Buildings and Conservation Areas) Scotland Act 1997 in so far as
relevant. Section 65 which applies
to conservation areas is not relevant in this case. In addition the planning authority have a
duty in terms of Regulation 3(2) of the 1999 Regulations not to grant
planning permission unless they have first taken the environmental information
which is specified in said Regulations into consideration. The decision of the first respondents must be
considered in the context of the relevant statutory provisions applying to the
various stages of the planning process.
[26] The
averments in the petition and the submissions made on behalf of the petitioner
are directed to the stage of the planning process where the first respondents
consider whether to grant planning permission for a development. That is the reason reliance is placed on
Section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland)
Act 1997. In particular, the challenge
is made to the decision to grant full planning permission dated 20 July
2005. This is not a case which is
founded on an alleged failure of the planning authority to apply
Section 60 of the Planning (Listed Buildings and Conservation Areas)
Scotland Act 1997 in the initial stage of the planning process. Under Section 60(1) where an application
for planning permission for any development of land is made to a planning
authority and the development would, in the opinion of the authority, affect
the setting of a listed building, there are duties on the planning authority in
terms of section 60(2) to (4). But if the planning authority does not form
such an opinion, then it need not comply with the further provisions in
Section 60(2) to (4). The
application for planning permission in this case was dealt with on the basis
that this was not a development which in the opinion of the planning authority, would affect the setting of listed
buildings. The first respondents
accordingly advertised the application for planning permission for the
development in terms of the relevant provisions in the Town and Country
Planning Act 1997 and the 1999 Regulations but not in terms of Section 60
of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act
1997. No material was placed before me
on behalf of the petitioner to demonstrate that the first respondents were not
entitled to make such a planning judgment at that stage and proceed as they did
in November 2003. Indeed, senior counsel for the petitioner did not focus on
this stage of the process. In my opinion it is necessary to have regard to this
in order to understand the context in which the first respondents finally came
to reach a decision about the planning application for the development.
[27] Senior
counsel for the petitioner concentrated his attack on the alleged inadequacy of
the environmental statement and the failure of the first respondents to
specifically consider the setting of Gallery.
Although it may appear odd at first sight that some listed buildings,
but not Gallery and its setting, were specifically considered in the
environmental statement, I do not think that the criticisms are well founded. In
my opinion the proper approach to this case is the general approach submitted
by counsel for the first respondents and adopted on behalf of the second and
third respondents. The cases cited by counsel for the first respondents
referred to in paragraph 20 were helpful in illustrating how the
Environmental Impact Regulations are designed to work, although there was no
particular dispute about that.
[28] As is
apparent from the 1999 Regulations, there is a structured system designed to
provide inter alia a description
of the aspects of the environment likely to be significantly affected by the
development, including the architectural and archaeological heritage, landscape
and interrelationship between these factors.
It is plain that the first respondents took an active part in the
process set out in the Regulations and that there was substantial consultation
both before and after the submission of the environmental statement. It is also plain that the process was
effective in identifying aspects of the environment, including listed buildings
and gardens likely to be significantly affected by the development. It was the consultation involving Scottish
Heritage that resulted in a number of significant changes to the ambit of the
study, including the specific inclusion of Arbuthnott House, Glenbervie House
and Fasque. During the statutory consultation
process the statutory consultee, Historic Scotland advised that in terms of the
listed building and designed landscape interest they were content to agree with
the findings of the environmental statement which did not of course include any
specific reference to Gallery. At the
conclusion of the process under the 1999 Regulations, it is plain that the
first respondents had before them on the date of their decision on 21 June
2004 the specific views of Historic Scotland.
The first respondents had no information to suggest that Gallery or its
setting was affected. Nothing had
changed in relation to these matters at the date of the decision to grant full
planning permission on 20 June 2005. I am not prepared to accept that the
first respondents in all the circumstances required to do
more. It is a matter of planning judgment whether a development affects a
listed building or setting. On the history, as I understand it, there are no
grounds to interfere with the first respondents' decision. I am not persuaded therefore that the first
respondents failed in their duty under section 59(1) of the Planning
(Listed Buildings and Conservation Areas) (Scotland) Act 1997. Senior counsel
for the petitioner also asked me to analyse the case on the basis that the
first respondents had failed to take account of relevant and material
considerations. In my opinion for the reasons I have given, the history does
not demonstrate that. If I am wrong about that and there was such a breach of
statutory duty or such a failure to take account of relevant and material
considerations, I would have concluded that the decision was ultra vires.
[29] Even if I had concluded that the first
respondents had acted ultra vires, I
would not be prepared to exercise my discretion in favour of the petitioner to
grant the equitable remedy of reduction in the circumstances which I am able to
consider at this stage of proceedings. The second and third respondents have
averments in answer 15 which I have not considered for the reasons
explained. As these circumstances may
also be relevant, albeit in relation to specific alleged prejudice to the
second and third defenders, I am not able to express a concluded view in
relation to this aspect of the case. Further procedure is required.
[30] I have considered the cases which counsel
for the first respondents cited in relation to delay but they must be seen in
the context of English proceedings where there are time limits for judicial
review cases and in any event turn upon their particular facts. In this case the
application for planning permission was made on 6 October 2003 and since
that date there has been substantial consultation and publicity. This is not a case in which the petitioner claims
that he has been wrongly denied the opportunity to participate in the planning
process or indeed to be heard in the planning process. The decision to delegate the authority to
grant planning permission subject to negotiation of a planning agreement was
made on 29 June 2004 and was intimated to the petitioner. It was submitted by senior counsel for the
petitioner that the decision of 29 June 2004 was not challengeable by
Judicial Review. I do not accept that. If the petitioner's case is well founded now,
it was well founded then. But even if
the submission of senior counsel is correct, the result would be that the
petitioner had many months in which to seek advice and be in a position to act
expeditiously when the decision about final planning permission was made on 20 July 2005. After that
decision some twelve weeks elapsed before the present petition was
intimated. Senior counsel for the
petitioner explained that during that period the petitioner required to seek advice,
consider the financial implications and funding and that a holiday period also
intervened. I take into account that the
petitioner is a private individual and not a commercial organisation involved
in planning development work. These can
be difficult and expensive decisions for lay members of the public. I am however persuaded that good
administration requires some certainty and this is a case in which there has
been a great deal of public participation over a lengthy period. In addition, I
am influenced by the fact that there has been an appeal hearing in relation to
another development, the East Bradieston development, where the existing
planning permission relating to the present development has relevance to the
cumulative effect of the East Bradieston development. The parties to that
appeal would in my opinion be prejudiced if the planning consent for
development in this case was now reduced.
Time and money would be wasted and parties to the appeal would require to reconsider their positions. In all these circumstances, I
am not persuaded that this would be an appropriate case to grant the
discretionary remedy sought.
[31] I do not intend to pronounce an
interlocutor at this stage and the case will be put out By Order to enable
parties to consider further procedure.
