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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 88
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P6/07
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OPINION OF LORD
CARLOWAY
in the petition of
EDGAR ROAD PROPERTY
COMPANY LLP,
Petitioners
against
MORAY COUNCIL,
First Respondents
and
BRITISH LAND
COMPANY PLC
Second Respondents
for
Judicial Review of
a decision of the first respondents to allow the sale of open class 1
non-food goods from Units 2a, 2b and 2c at Springfield Retail
Park, Edgar Road, Elgin
ญญญญญญญญญญญญญญญญญ________________
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Petitioners: Smith Q.C.,
Simpson; Simpson & Marwick W.S.
First Respondents: Upton;
Morton Fraser W.S.
Second Respondents: Currie Q.C., Munro; Semple Fraser LLP
29 May 2007
1. Planning Context and
Facts
[1] The city of Elgin
is the primary retailing centre in Moray.
The future location of retailing outlets serving the city is subject to
National Planning Policy Guideline 8, which, essentially, stresses the
importance of protecting the vitality and viability of existing town centres. The Guidelines are reflected in the relevant
development plan; the Moray Development Plan 2000 (no. 6/28 of
process), which is a combination of the approved Local and Structure Plans. It creates a presumption in favour of retail
development in the town centre. In
relation to retailing outwith the town centre, the Plan narrates that proposals
for such development "will not normally be permitted where there is an
alternative location for such development better located to the existing town
centre". The general policy is stated
thus (L/R6):
"There is a presumption against
approval of ... out-of-centre developments unless the developer can demonstrate
either that the proposal would only (sic)
comply with the Moray 2000 development plan retailing strategy, including
provisions within individual town plans, or justify a departure from them. That demonstration will have to include
consideration of alternative sites within and closer to the defined town
centres, and the likely effect on their viability and vitality. In so doing, developers will be particularly,
but not exclusively, required to give consideration to the following:
i) the demand for additional retail provision and the likely
impact upon the existing types of retailing in the town centre ... likely to be
affected. The Council will seek a formal
Retail Impact Assessment where there is likely to be an adverse impact."
[2] The
plan specific to Elgin recognises
another area of the city as established for retail use. This is the "Edgar
Road Retail Park",
which is situated some distance to the south of the city centre. The policy relative to the Retail
Park (RET Edgar
Road Retail Park)
is as follows:
"Since 1980, the council has
operated a policy of accommodating appropriate out-of-centre retailing at Edgar
Road only, and nowhere else around the town ... The Edgar Road ... Retail
Park ... is now an established retail
provision for Elgin, and for all of
Moray. It has helped, and continues to
help, in maintaining the area's competitiveness with Inverness
and Aberdeen. It has recently been expanded with the
permission for a new 6,000m2
Asda store. A further planning permission
has been granted for 3,902m2
gross of non-food retailing. The
designation ... at Edgar Road
incorporates only those sites for which permissions for retail use have been
granted.
Proposals for non-food or
bulky-goods retailing to take up the approved floor area will be welcomed. Development proposals which would change the
character of the retail park, as described in the preceding paragraph will be
subject to policy L/R6."
The designated area consists of
land to the north of Edgar Road, upon which an ASDA superstore operates as
unrestricted Class 1 permission, in terms of the Town and Country Planning
(Use Classes) (Scotland) Order 1997 (SI 1997 No. 3061). It sells about two thirds food and one third
non-food items, including clothing. The
area also consists of two parcels of land to the south of the Road. On the eastern portion, B&Q are
established, selling household and DIY goods.
The second respondents own the western portion. In about 1988 the second respondents
obtained planning permission (6/2) for the erection of the second phase of
their Springfield Retail
Park as part of the overall Edgar
Road Retail Park. In terms of a condition of that Class 1
non-food goods permission, as varied in 2000 (6/3):
"The sale of goods shall be
restricted to household goods (such as carpets, furniture and electrical goods)
and bulky DIY items of the type sold in retail warehouses and all items
ancillary to the foregoing".
The second respondents built their
retail park. Ultimately, after further
approved planning changes, it consisted of three units, two of which were
subdivided. Homebase and General George
traded from Units 1a and 1b and Currys from Unit 3. Internacionale, Carpetright and Texstyle
World traded from Units 2a, 2b and 2c. Each of the Unit 2 sub-division has a
floor space of 926m2,
totalling about 30% of the second respondents' 9,165m2 Springfield
Retail Park. That park itself comprises
about one third of the total Edgar Road
Retail Park.
[3] The
petitioners own a site on the north side of Edgar Road,
a little to the west of that of the second respondents. This is known as the Elgin City Sawmills site. It is not "conterminous" with any part of the
Edgar Road
Retail Park,
albeit very close to it. The petitioners
obtained title to the site from their parent company, Robertson Group Limited,
soon after their own creation in November 2005. In 2002 another subsidiary of the Group had
applied for 7,897m2
of Class 1 non-food goods retail warehousing on the Sawmills site. The first respondents favoured this
development but the application was called in by the Scottish Ministers. In a report dated January 2005, issued
after a public local inquiry in September 2004, a Scottish Executive
Reporter recommended the grant of that permission (6/31). In so doing, he was of the view that the
permission was not in accordance with all the Development Plan policies, which had
been explored in some detail. One
consideration in favour of granting permission was the proximity of the site to
the existing Edgar Road
Retail Park. By letter dated 18 May 2005 (6/21), the Scottish Ministers
confirmed their intention to follow the reporter's recommendation. Meantime, a further local inquiry, held
before a different Reporter in December 2004, examined an application for
similar retail warehousing at a site known as the Auction Mart. This site was also relatively close to, but
to the east of, the Edgar Road
Retail Park. The applicants were MacDonald Estates plc but
the Robertson Group was represented at the inquiry as objectors. In the first respondents' submissions to the
Reporter (6/19), it was argued that the evidence favoured the grant of
only one of the two proposed retail warehousing developments. In April 2005 the Reporter recommended
refusal of permission for Auction Mart site (6/23). He concluded that development of that site would
be consistent with policy L/R6 only if one permission were granted for
retail warehousing at that time (paras 6.17, 7.6). It appears to have been assumed by the
Reporter that confirmation of the Sawmills permission was likely to be
forthcoming. Partly on that basis, or at
least because the Sawmills site was seen as better integrated with the Edgar
Road Retail Park,
the Auction Mart appeal was recommended for dismissal. That recommendation was followed by the
Scottish Ministers on the same day as they confirmed the petitioners' own
permission (6/22).
[4] As
matters stood in mid 2005, the Edgar
Road Retail Park
was established, with outlets for food retailing and some unrestricted non-food
retailing in ASDA and with household and bulky goods retailing at B&Q and
the second respondents' Springfield Retail
Park. Nearby, the petitioners had an unrestricted
non-food permission and they began work to construct their own retail warehouse
premises for let to interested retailers.
As this involved the conversion of a brown-field site, considerable
expenditure was required. Meantime, a
draft revised local plan dated September 2005 (6/29) suggested
incorporation of both the Sawmills and Auction Mart sites as part of an
expanded Edgar Road
Retail Park. In October 2005, the second respondents
applied for a variation of the condition restricting their own permission to
allow for open Class 1 non-food goods retailing from Units 2a, 2b and 2c
(6/4). The plan attached to the
application defined the application site as that occupied by these Units rather
than the Springfield Retail
Park as a whole. The second respondents did not intimate the
application directly to the petitioners (who had not then been formed) or to
any other member of Robertson Group. Although
it featured as a complaint in the petition, it was ultimately accepted that
there was no legal obligation on the second respondents to have done so. In that respect, the petitioners' first
plea-in-law concerning lack of notification must be repelled.
[5] The
relevant statutory provisions on the notification of planning applications are
contained in the Town and Country Planning (General Development Procedure) (Scotland)
Order 1992 (SI 1992 No 224).
These require that certain neighbours of the development site be
notified; notably those whose land is "conterminous with or within 4 metres
of" the site, provided that the neighbour's land is within 90 metres of
the actual development (regulation 2).
The petitioners' land did not fall within that definition. However, since the application amounted,
potentially at least, to a departure from the Development Plan, the first
respondents were obliged (in terms of the Town and Country Planning
(Development Contrary to Development Plans) (Scotland)
Direction 1996 (annexed to Planning Advice Note 41) to advertise its
existence in the local newspaper. The
petitioners did this and the "Northern Scot" carried the advertisement on 17 February 2006 (7/1). It reads: "Vary condition 2 of consent ...
to allow for the sales of open class 1 non-food goods from units 2a, 2b
and 2c at Springfield Retail
Park, Edgar
Road, Elgin". Reference was made to the planning policies
quoted above. In a frank admission in an
affidavit by William G Robertson (11, para 4), the principal of the
petitioners, the advertisement was "missed" by the Robertson Group. No representations were made by the
petitioners in opposition to the application for variation of the condition.
[6] The
second respondents' application met with no opposition at all. It was accompanied by a detailed submission
by the firm of surveyors presenting it (6/6). Part of this submission was a "Retail
Analysis" (para 5.0 et seq),
which predicted minimal impact (0.64%) on the town centre as a consequence
of the proposed variation. There were
further discussions about impact between the surveyors and the first respondents'
planning officials (7/2). In due
course, the officials tendered a report on the application to the planning
committee (6/7). This outlined the
proposal, the site and the planning history.
Appended to it, the various relevant Development Plan policies,
including L/R6 and RET Edgar Road
Retail Park
(supra) were set out in full. The body of the report, which recommended
approval, reads as follows:
"... Policy L/R6 accepts the
principle of out-of-centre retail development where this represents a
neighbourhood scheme or is ancillary to an existing business. The Edgar Road
retail policy specifically supports this development, and emphasises non-food
and bulky goods retailing. Other proposals
must accord with policy L/R6.
As defined in the Development
Plan and the Edgar Road Retail Policy, this area is established as a retail
development. The proposed variance to
allow for food retail does represent a departure from the Edgar Road Retail
policy, but this is considered to be acceptable and a precedent is already
established by the nearby Asda store."
This passage contains a glaring
error, since the application was for non-food goods and not for a food consent. The fact that it was for non-food goods is
made clear in the description of the proposal at the start of the same report. The copy of the report in process contained a
handwritten insertion mark between "for" and "food" and, again handwritten, the
words "Robertson also (Sawmills site)" after "Asda store". It was explained, and not contradicted, that
the error in the report had been corrected orally at the committee meeting. In that respect it would have been correct to
say that there was precedent for open Class 1 non-food goods at both ASDA
and the Sawmills site.
[7] On 29 March 2006, the application for
variation was approved. The Minute of
the meeting (6/8) noted that:
"the application had been
advertised as a departure to which no objections had been received and
therefore, were the Committee minded to approve the application, a Hearing
would not be required. After
consideration the Committee agreed to approve the application ..."
No reasons for the approval were
minuted. There was no need for such
reasons to be given. According to the
petition, it was not until around 20 June that the petitioners became
aware of the variation. This occurred
when a potential tenant, a national clothing retailer, withdrew from
negotiations with the petitioners in favour of locating in the second
respondents' unrestricted unit. The
petitioners aver that the "marketability, and therefore the value, of the
petitioners' retail development have been compromised on account of" the
approval of the variation.
[8] On 23 June 2006, the petitioners' law
agents wrote (6/5) to the first respondents requesting copies of the
second respondents' application, the planning permission and associated
documents. Reminders on 30 June, 4,
12 and 19 July followed. This last
communication referred to the petitioners having sought the advice of counsel. On 7 August, Mr Robertson met with
the first respondents' convenor, Mr E Coutts, and expressed his concerns
that the Robertson Group was being unfairly treated. According to Mr Robertson in his
affidavit, Mr Coutts had showed "absolute shock" on reading that the
approval had been at a meeting which he had attended. In a letter (6/36) to the first
respondents, dated 22 August and referring to that meeting, Mr Robertson
maintained that the approval of the variation had been contrary to Development
Plan policy and could have detrimental impacts on the Sawmills site development
and the town centre. On 1 September,
planning consultants engaged by the petitioners wrote to the first
respondents (6/26) raising issues concerning the competency and merits of
the variation application. They asked
the first respondents what they intended to do about these matters. On 21 September, the petitioners' law
agents again wrote to the first respondents (6/9) with a view to
summarising the criticisms and "to make a clear statement with regard to the
remedy which is sought". This letter
states that:
"... [the petitioners] have decided
to make a formal complaint rather than go down the Court route. They are anxious that the working
relationship of the parties can be conserved, which would be jeopardised by a
Court Process".
What they sought was revocation of
the approval.
[9] By
letter dated 10 November (6/10), the first respondents eventually replied
to Mr Robertson's letter of 22 August. They detailed the history of the application
and accepted that the findings at the previous local inquiries had been
material considerations. The decision to
approve the variation was explained as follows:
"The application was recommended
for approval and Committee were advised that if minded to approve the
application, a departure hearing would not be required as no objections were
received on the application following notification and advertisement
procedures.
The application was an amendment
to a previous planning permission ... and it was considered acceptable for the
applicants to define the site around the three units which were the subject of
the application and the correct neighbour notification was carried out
accordingly.
The application was supported by
the submission of a Retail Assessment regarding the impact on the viability and
vitality of Elgin town centre in
accordance with Council policy and Government guidance as contained
in NPPG8 - Town Centres and Retailing. This assessment demonstrated that there would
be no adverse impact on Elgin town
centre. The basis of the recommendation
to permit planning permission as an acceptable departure from policy was on the
strength of the above and also on the grounds that precedent had already been
established by the nearby ASDA store for open Class 1 retailing within the
Edgar Road
Retail Park".
The first respondents stated that
they would not be revoking the approval.
[10] The petitioners' law agents responded by letter dated 28 November
(6/11). They described the explanation
as "entirely inadequate" and repeated, at some length, the petitioners'
complaints before ending with a request for a "full response" within seven
days, which failing action would follow.
At the same time (6/12), they brought the matter to the attention
on the Scottish Executive. Meantime, Mr Robertson
had discussed the matter with another councillor, Mr Sim. According to Mr Robertson, Mr Sim
too had seemed surprised that the approval had been granted at a meeting which
he had attended. The first respondents
replied twice to the letter of 28 November. First, on 30 November (6/13) they said
that they would respond to the petitioners' complaint by 5 January. Secondly, on 11 December (6/16) they did
respond stating that their earlier replies had covered the relevant issues. They pointed out that if the petitioners'
criticisms were well founded then "there are judicial remedies which are
available". They repeated that the first
respondents would not be revoking the permission. On 4 January 2007,
the petition for judicial review was lodged.
[11] There is no suggestion that the second respondents were aware
of the exchange of correspondence between the petitioners and the first
respondents. The second respondents aver
that, after the approval, they:
"launched a marketing campaign to
identify open class 1 non-food retailer demand for units ... undertook
redevelopment and refurbishment of the park with a view to new lettings and
engaged in extensive negotiations with existing and prospective tenants".
They aver that "Substantial costs
have been incurred in this process". The
detail of the work done by the second respondents is set out in two
letters (7/3 and 7/4) from the land agents instructed to market the Unit. These agents had quickly identified a
significant number of interested national retailers and conducted negotiations
to lease units with at least two of these, including a clothes retailer. Conditional agreements had been reached. They progressed plans, including further
planning applications, which the petitioners received notification of in
October 2006, to redesign and re-divide Unit 2 into four outlets and to
extend it by creating a fifth (7/6).
The costs of this have been in excess of ฃ57,000. They negotiated with the three existing
tenants to relocate, one of these to one of the smaller units with the other
two leaving the Springfield Retail
Park altogether and possibly moving
to the Sawmills site. The tenant who was
"downsizing" was paid an agreed ฃ400,000 to do so. There have been substantial legal fees
incurred also in relation to the negotiations and agreements.
2. Submissions
(A) MORA,
TACITURNITY AND ACQUIESCENCE
[12] The second respondents opened the hearing. They maintained that any right which the
petitioners had to seek the remedy of reduction of the decision was barred by mora, taciturnity and acquiescence. Mere delay was not enough, but delay plus
acquiescence and prejudice, in the sense of a material alteration of position,
barred the claim (R (Burkett) v Hammersmith and Fulham LBC [2002] 1
WLR 1593, Lord Hope of Craighead at paras 61-63; Assets Co v Bain's Trs (1904) 6 F 692, Lord President (Kinross) at 705;
Atherton v Strathclyde Regional Council 1995 SLT 557, Lord Cameron
of Lochbroom at 558; Singh v Secretary of State for the Home Department 2000
SLT 533, Lord Nimmo Smith at para 11). The petitioners had been aware by June that
the second respondents were actively seeking tenants. In the context of retail warehouse
development, the delay thereafter was unreasonable. The second respondents had materially altered
their position and incurred substantial costs on the strength of the variation
and would be prejudiced were reduction to be granted. They had engaged in a marketing campaign,
incurred expense, paid a large sum to a tenant and proceeded with further
planning applications.
[13] The first respondents founded upon the terms of the letter from
the petitioners of 21 September (supra),
which expressly stated that the petitioners had decided not to go down the
route of court proceedings. This
amounted to a "waiver" of their right to do so and no prejudice on the part of
the first respondents was required. For
the plea to succeed, it was sufficient that the first respondents had conducted
their affairs on the basis that the right to proceed to court had been
abandoned (Bell: Stair Memorial
Encyclopaedia sub nom "Personal Bar"
para 1630, following Armia v Daejan Developments 1979 SC (HL) 56, Lord Fraser of Tullybelton at 69). The first respondents had conducted their
affairs on the basis that court proceedings would not follow, in that they had
been induced to make a full and candid response to the petitioners' complaint
in their letter of 10 November (supra). Since there was no mention of "waiver" in the
first respondents' pleadings, they offered to amend to include this as a
specific plea-in-law.
[14] The petitioners maintained that the length of time, which it
had taken to raise the petition, could be satisfactorily explained. Acquiescence could not be inferred from
silence and there was insufficient material to demonstrate that the petitioners
ought to have been aware of any significant prejudicial actings by the second
respondents. For the plea to be
sustained, the actings had to be such as indicated that the petitioners had truly
abandoned their right to challenge the decision (Hanlon v Traffic
Commissioners 1988 SLT 802, Lord Prosser at 805; Pickering v Kyle and Carrick District Council, unreported, 20 December 1990,
Lord Penrose at pp 53-55; Atherton
v Strathclyde Regional Council (supra) and Uprichard v Fife Council 2000
SCLR 949, Lord Bonomy at 955-956, 959). The correspondence demonstrated that the
petitioners had acted in a manner consistent with their seeking revocation of
the consent. Although the petitioners,
as developers themselves, would have been aware that the second respondents
would proceed to negotiate with tenants after the variation had been obtained,
they would not have been aware of the detail of the discussions or the stage
which they had reached. The petitioners
had objected to the second respondents' planning applications to sub-divide and
to extend Unit 2. The petitioners
could not have anticipated that the second respondents would have proceeded to
conclude tenancy agreements in advance of a decision on these applications. The second respondents had not specified how
their various costs were divided relative to the lodging of the petition. The petitioners suspected that there would be
a claw-back provision in relation to the payment to the "downsizing" tenant. The petitioners had also not reached
concluded bargains with the other two tenants of Unit 2.
(B) TITLE
AND INTEREST
[15] Both respondents pleaded that the petitioners had no title and
interest to bring the proceedings. The
second respondents maintained that the petitioners had made no serious attempt
to set out their title and interest in the petition. The petitioners were founding upon planning
policies intended to protect the town centre, yet their development was no
closer to the town centre than that of the second respondents. At its highest, the petitioners' complaint
was that the marketability and value of their development had been adversely
affected by the variation. However,
title in a planning context required to be derived, in the case of an objector,
from a statutory right to object. The
petitioners accepted that there had been no obligation to notify them and
therefore they had no title to raise the petition (Simpson v Edinburgh
Corporation 1960 SC 313, Lord Guest at 315-316). Title and interest could not be derived from
mere injury to commercial interests. There
had to be some legal right which had been infringed or denied (Bondway Properties v City of Edinburgh Council 1997 SLT 127,
Lord Philip at 131-132, following D & J
Nicol v Dundee Harbour Trs 1915
SC (HL) 7, Lord Dunedin at 12-13; Bett Properties v The
Scottish Ministers 2001 SC 238, Lord MacFadyen at paras 17, 18
and 36).
[16] The first respondents adopted the second respondents'
submissions, but added three remarks. First,
the petitioners' submissions on title and interest (infra) had left their averments behind. Secondly, the petitioners had not been in
existence when the application had been made.
Thirdly, the petitioners had failed to make representations at the
appropriate time. It was accepted that
the petitioners had been given all the notification that they had been entitled
to. They could have made representations
under and in terms of section 38 of the Town and Country Planning (Scotland)
Act 1997 (c 8). Had they done so,
the first respondents would have been bound to take them into account. Their failure to do so resulted in them
having no standing to apply for a judicial review of a decision taken in the
absence of such representations (Hollywood
Bowl (Scotland) v Horsburgh 1993
SLT 241, Lord Osborne at 244; Scottish Planning Encyclopaedia
paras A.1012-1013). The petitioners
had failed to exhaust the remedies open to them by objecting and their failure
to object meant that they were not in any legal relationship with the first
respondents (Bradley: Stair Memorial
Encyclopaedia Vol 1 sub nom
"Administrative Law" at para 304; cf Steeples
v Derbyshire County Council (infra)).
Since the "failure to exhaust remedies" had not featured anywhere in the
pleadings, the first respondents sought to amend their answers again by adding
an appropriate plea-in-law. The first
respondents also submitted that the petitioners' contentions regarding
"legitimate expectation" (infra) were
not well founded. There had been no
mention of this principle in the pleadings.
In any event, there was no basis for it in fact. The first respondents had not required to
treat the second respondents' application in the same way as that of the
petitioners since the former alone had benefited from a site specific policy (infra).
The petitioners had obtained their permission after applying even
stricter criteria to it.
[17] The petitioners submitted that they did have title and interest
to sue because of three matters. First,
they were members of the public who, as major developers, had a strong interest
in the Development Plan. They had an
interest in seeing that the Development Plan was adhered to. In particular, they had an interest in seeing
that the character of the Edgar Road
Retail Park
was not changed other than in terms of policy L/R6. The Development Plan was a statement to the
public about how the planning authority would deal with applications and the
petitioners were entitled to expect compliance with the Plan. Absence of objection was not a bar to
proceeding by way of judicial review. Secondly,
the petitioners, or at least their predecessors in title, had been in a legal
relationship with the first respondents.
They had both been involved in the processing of the petitioners' own
application and both had been involved in the two public local inquiries. The first respondents' position at the
inquiries had been to support the petitioners' development and to oppose any
other on retail impact grounds. The
petitioners had a "legitimate expectation" that the first respondents would
adopt the same approach in relation to the second respondents' application (Miller Group, Petitioners, 28 December
1989, unreported, Lord Clyde at 3-4; Scottish Planning Encyclopaedia,
Lord Reed at paras A.5024-5025).
Thirdly, there was a "convention" that a person with a planning consent
should be allowed time to implement that consent before any similar development
were approved. The issue of title should
not be approached too narrowly (D & J
Nicol v Dundee Harbour (supra),
Lord Dunedin at 12; Scottish
Old People's Welfare Council, Petitioners 1987 SLT 179, Lord Clyde
at 184; Air 2000 v Secretary of State for Transport 1989
SLT 698, Lord Dervaird at 700).
It was sufficient if the petitioners were "closely affected" by the
decision (Air 2000 v Secretary of State for Transport (No. 2) 1990
SLT 335, Lord Clyde at 338).
Despite Lord Dunedin's position (in D & J Nicol v Dundee Harbour (supra) at 17), it was helpful to look at the position in England,
where the test adopted was similarly a "closely affected" one (Wade :
Administrative Law (9th ed) p 699; Steeples v Derbyshire County
Council [1985] 1 WLR 256, Webster J at 290, 295-6).
(C) REDUCTION
[18] The averments in the petition are somewhat rambling and
repetitious in content. The task of
focusing the relevant points of substance was left to oral argument at the
hearing. The lack of focus in the
written pleadings was reflected by a plea-in-law of the vaguest kind, which
reads "The respondent having acted unlawfully as averred in the petition, the
decision should be reduced". Under
reference to the well known dicta of
the Lord President (Emslie) in Wordie
Property v Secretary of State for
Scotland 1984 SLT 345 (at 347) and Glidewell J in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990)
61 P & CR 343 at 352, the petitioners attacked the planning
merits of the decision to approve the variation. Their starting point was section 25 of
the 1997 Act, which provides that planning decisions "shall be made in
accordance with the [development plan] unless material considerations indicate
otherwise". The first respondents'
decision had failed to apply that test or to have regard to material
considerations. The approval had been
contrary to L/R6. It would change
the character of the retail park in terms of the RET Edgar
Road Retail Park
policy by having a significant part of the park made over to non-household and
non-bulky goods, such as clothes. The
report to the committee had been "deeply flawed and wholly inadequate" for what
was an important development. It
appeared that the reporter had been considering a "food" rather than "non-food"
application. If that was right, and in
any event, the report ought to have addressed policy L/R6, but it did not. Although an impact study had been produced by
the second respondents, the report made no mention of it. The study had not taken into account the
impact of the petitioners' site. From
the absence of references either to the policy or the study in the report, it
could be inferred that the first respondents had failed to consider L/R6
and the issue of impact on the town centre, yet in terms of NPPG 8 (supra), they were supposed to make a
rigorous assessment of the proposal.
[19] The committee should have considered both the impact of the
variation on its own and in conjunction with other developments, including the
Sawmills site . The committee may not
have been made aware of the first respondents' earlier position at the public
local enquiries that only one development out of the Sawmills and Auction Mart
sites ought to proceed. As the first
respondents had argued that position, it was remarkable that it had not been
mentioned to the committee when it was being asked to allow further development
by virtue of the variation. The
affidavit of Mr Robertson concerning his conversations with councillors
confirmed their lack of awareness of the issues. In addition, the report had not made any
reference on the impact on bulky goods retailers, who might be forced to
relocate from the second respondents' retail park, nor had it referred to the
convention in planning practice to allow an approved development to become
established before granting a further application for a similar development. Finally, the application had been defective
because it was a variation of a permission granted in respect of the whole of
the second respondents' retail park, yet the map attached to the application
"red-lined" only Unit 2.
[20] The first respondents submitted that the approval had been in
accordance with the Development Plan. In
terms of the specific RET Edgar Road
Retail Park
policy, proposals for non-food or bulky-goods retailing were to be welcomed in
the retail park, which included the second respondents' retail park. It was only if development proposals were to
change the character of the Edgar Road
Retail Park
as a whole that L/R6 was applicable.
The approval did not change the character of the Park. It related only to a small part of it. There was no need for the report to explore L/R6. The error in the report concerning "food" and
"non-food" had clearly been a mistake and this had been corrected. If the report were to read "non-food" then
the precedent of ASDA was material. In
any event, the error produced a stricter test than was actually applicable. It would have prompted the reader to suppose
that the approval amounted to a departure from the Development Plan, when it
was not. The retail impact study had
considered the petitioners' site. The
study had been considered by the first respondents' officials. It had not been tendered to the planning
committee but it could have been, had questions been asked. There was no need to bring to the attention
of the committee a problem which did not exist.
Little weight ought to be attached to Mr Robertson's affidavit
containing, as it did, second hand accounts of the reactions of two councillors
out of the twenty four who had attended the meeting. The fact that L/R6 was not specifically
mentioned in the report did not carry with it an inference that it had not been
considered. NPPG8 did not over-rule the
local planning policies.
[21] The first respondents' line at the public local inquiry
relative to the Auction Mart site was not relevant to the approval of the
variation. The reporter's concern had
been in relation to the phasing of development at two different sites. Here, what was involved was the relaxation of
a planning condition in respect of a small part of an established site. The planning committee had within it a wealth
of knowledge and experience concerning the sites and the applications. The suggestion that the decision had been
made in ignorance of these matters was artificial. Mr Robertson's affidavit did not suggest
that either councillor had been unaware of the first respondents' position at
the previous inquiries. There was no
evidence that, in arriving at the decision, the committee had taken into
account any irrelevant considerations or failed to take account of relevant
ones. There was no convention of the
type referred to by the petitioners. In
any event it was not suggested that this convention was applied in Moray. Finally, the "red-line" point was
misconceived. In terms of paragraph 3(c)(i)
of the 1992 Order (supra), an
application required to be accompanied with a plan sufficient only to identify
the land to which it related. That
provision had been complied with.
[22] The second respondents were content to adopt the submissions of
the first respondents. The planning
committee had had a similar composition for a number of years and its members
were interested specifically in the situation in Elgin. Some members (two) had given evidence at the
inquiries. The problem being addressed
was one which most small towns have had to deal with over the years. It was a common problem. It was wholly na๏ve to proceed on the
assumption that, every time an application was made, there was a requirement
for officials to set out its history. It
was to be assumed that the official had acted responsibly in deciding what to
put into, and what to omit, from the report.
All that this application was concerned with was a relaxation in respect
of 30% of the second respondents' site, which itself formed only one third
of the total Edgar Road
Retail Park. The retail impact study had dealt with the
issue of impact, including that of the petitioners' site. There was no material from which it could be
said that the approval would have a significant impact on the town centre, yet
this was fundamental to the petitioners' submission.
3 Decision
(A) MORA,
TACITURNITY AND ACQUIESCENCE
[23] There have been a number of attempts in the recent past to
persuade the Court that delay in bringing judicial review proceedings should of
itself operate as a bar, having regard to the need for certainty and efficiency
in certain fields of administrative law, notably planning (see Pickering v Kyle and Carrick District Council (supra) at 50); Uprichard
v Fife Council (supra) at 955). It is
recognised that the principles of mora,
taciturnity and acquiesce, as they have been developed in private law fields
such as contract, do not sit entirely easily in the arena of public
administration (Pickering v Kyle and Carrick District Council (supra) Lord Penrose at 53). Perhaps because of this, the Court has
occasionally ventured to suggest that the determination of whether a plea of mora is made out in the context of
judicial review is a matter for the court's discretion having regard to a
variety of factors, including the need for sound administration (Uprichard v Fife Council (supra), Lord Bonomy
at 956). The Court does appear to
have approached the matter from that angle at times (Atherton v Strathclyde
Regional Council (supra), Lord Cameron
at 559). However, although the idea
of the Court's decision on the plea being one of discretion was floated during
the hearing in this case, it was, quite correctly, not pursued by any party. The decision is not a discretionary one but
one involving the Court determining whether the party founding upon it has
established that the plea is applicable on the facts presented.
[24] The common law principles surrounding the plea remain broadly
intact. Mere delay is not enough. There must be the additional elements of
taciturnity and acquiescence (Assets Co
v Bain's Trs (supra), Lord President (Kinross) at 705, followed in Singh v Secretary of State for the Home Department (supra), Lord Nimmo Smith at 537; R (Burkett) v Hammersmith LBC
(supra), Lord Hope at 1613). Lord Penrose's analysis in Pickering v Kyle and Carrick District Council (supra at 55) certainly clings onto
the common law principles, but his test bears repetition here given its
specific planning context:
"The essence of the plea ... is
that the person or persons having a legitimate ground of challenge refrain from
exercising the rights which flow from that ground of challenge, or from
intimating an intention to exercise those rights, in circumstances in which, to
their knowledge, the holder of a planning permission proceeds with material
operations in reliance upon the permission, and so alters his position that
there would be loss or other form of prejudice to him if the permission were to
be reduced".
This is a relatively restrictive
test and perhaps more so than the one applied by Lord Prosser in Hanlon v Traffic Commissioner (supra
at 805), where he addressed the "reasonableness" of the delay. For present purposes, however, I will proceed
upon the basis that it is an accurate reflection of the current law.
[25] So far as the first respondents' position is concerned, the
petitioners' letter of 21 September (supra),
stating that they had "decided to make a formal complaint rather go down the
Court route" does not amount to a waiver of their right to use that route subsequently,
depending on how matters developed. Read
in context, the letter is no more than an intimation of the petitioners' then
intention so far as resolving the dispute was concerned. Furthermore, the first respondents do not
appear to have approached the contents of the letter as meaning that no court
proceedings would ever be raised. Rather,
as their letter of 11 December (supra)
makes clear, they were of the view that judicial remedies remained open to the
petitioners. The first respondents
certainly provided a detailed response to the petitioners after receipt of the
letter of 21 September, but that is what would be expected of a
responsible local authority. There is no
basis for supposing that this response was prompted by a promise not to sue. In addition, even although the first
respondents offered to amend by including a plea-in-law relative to waiver,
that plea could not properly have been sustained in the absence of averments
specifically founding upon the letter, whose contents were explored only in
oral argument.
[26] Apart from indulging in correspondence with the petitioners,
the first respondents do not appear to have acted in any way to their own
prejudice as a result of the petitioners' failure to raise judicial proceedings. From about June, some three months after the
approval, they were aware of the petitioners' concerns and it would have been
difficult for them to plead some form of bar on the petitioners' part given the
nature of the petitioners' letters. In
short, the first respondents have not made out their pleas of mora, taciturnity and acquiescence or
waiver and these pleas will therefore be repelled.
[27] The second respondents' position is different. The petitioners are developers themselves,
also engaged in retail warehousing. They
would have been aware that, once approval for unrestricted Class 1
non-food goods use had been granted, the second respondents would set about
marketing the relevant part of their site on that basis and would incur
substantial expense in so doing. From at
least June, the petitioners were aware that the second respondents were
marketing their site and, apparently, engaging with potential tenants. They would have been aware that contracts of
lease would be likely to be negotiated. By
about October, they were aware of the second respondents' applications for
planning permission to modify and extend Unit 2. During this period from June until the end of
the year, the second respondents appear to have been busy proceeding on the
basis of the approval. They acted
accordingly in incurring significant expense.
Although the degree of expenditure, after the variation came to the
notice of the petitioners, may not be as great as the totals set out in the
letter from the land agents, it has still been considerable in terms of both
time and money. Reduction of the
variation would accordingly cause the second respondents substantial prejudice. At no point, during the six month period from
June until the end of the year, does it appear that the petitioners ever
intimated to the second respondents that they were challenging the approval and
might take legal proceedings to reduce it.
In these circumstances, the test for mora,
acquiescence and taciturnity described above has been made out and. The second respondents' plea must be
sustained accordingly.
(B) TITLE
and INTEREST
[28] Title and interest both require to be present in order to
permit a party to pursue an application for the reduction of an administrative
decision. In general, title is concerned
with whether that party is in some legal relationship, which creates a right
which the decision has denied or infringed (D & J
Nicol v Dundee Harbour Trs (supra) Lord Dunedin at 12-13;
followed in the Outer House cases of Air 2000
v Secretary of State for Transport (No 2) (supra) Lord Clyde at 338; Bondway Properties v City of
Edinburgh Council (supra) and Bett Properties v Scottish Ministers (supra),
Lord Macfadyen at para 36). "Legal
relationship" has to be construed broadly in this context. Interest is normally a separate element from
title (Scottish Old People's Welfare
Council, Petitioners (supra) Lord Clyde
at 184; cf Bondway Properties v City of Edinburgh Council
(supra) Lord Philip at 132). It is concerned with whether the party has
been, or will be, affected in a patrimonial or pecuniary way as a result of the
decision. Generally, questions of title
and interest can be determined before any examination of the merits of a
decision (Scottish Old People's Welfare
Council, Petitioners (supra) Lord Clyde
at 184; cf Bett Properties v Scottish Ministers (supra), Lord Macfadyen at para 19).
[29] Looking first at title, the framework within which town and
country planning operates is exclusively statutory. The relevant statutes, notably the Town and
Country Planning (Scotland)
Act 1997 (c 8), are designed to prevent any development on land without
permission. In that way, they restrict
the right of a landowner to use his land as he wishes. Other persons have no general title to object
to such use, other than if it affects the enjoyment of their own land,
otherwise poses a danger to their health or infringes some other legal right
which they posses. The determination of
whether planning permission ought to be granted is left to the local planning
authority (the local Council) or the Scottish Ministers. It is then in the political rather than the
legal field that Parliament has determined such decisions should initially be
taken.
[30] There is no formal right of objection given to specific persons
in the planning process. Rather, there
are provisions which permit the making of Regulations governing the way in
which applications are to be publicised (s 34). As already noted, there are both Regulations
and Directives which specify the manner in which neighbours are to be notified
of applications and the way in which certain applications are to receive wider
publicity, such as newspaper advertisement.
Any person, whether a neighbour or not, may then make representations to
the planning authority covering any matter.
The planning authority is under a statutory duty "to take into account"
any timeous representation (s 38).
Because of that, any person who might have made material representations
will normally have a title to pursue an action for reduction of any decision, where
the required notification and advertisement has not been not carried out and he
has thereby been deprived of his right to lodge such representations. Since the requisite publicity is aimed at
affording him an opportunity to make such representations, it is not difficult
to conclude that a failure to notify or advertise amounts to a breach of a
statutory duty owed to that individual. In
that way, whether or not there required to be direct notification to the person
as a neighbour is not the test. Title to
challenge a decision because of lack of appropriate notice is a well known
concept. Success will not depend on a
definitive examination of the merits of the decision and it may suffice if it
can be said that the intended representation would have contained a material
consideration which could have resulted in a different decision.
[31] The requirements of notification and advertisement in the
planning context have altered considerably since Simpson v Edinburgh
Corporation (supra) and parts of Lord Guest's
analysis based on the absence of neighbour notification (at 317) are no
longer valid. Nevertheless, Lord Guest's
view (at 316) that the planning acts are a "public code for planning and
development and use of land ... not intended primarily for the protection or
benefit of individual proprietors" is still a sound one. Continuing to follow Lord Guest's
reasoning, the purpose of the planning legislation is to benefit the community
as a whole (cf the duty to individual members of the public in Scottish Old People's Welfare Council,
Petitioners (supra) Lord Clyde
at 185). In order to have a title
to enforce the terms of that legislation in the manner attempted by the
petitioners, a party requires to show that some right of his, conferred by, or
in the context of, that legislation has been, or will be, infringed.
[32] The petitioners' challenge is not based upon any infringement
of a right conferred upon them by the legislation but simply upon the planning
merits of the decision. But that decision
does not affect any of the petitioners' rights or any of their legal
relationships. At the time of the
decision, they were not in any legal relationship, however loosely defined,
with either of the respondents. They may
have been in such a relationship while their own application was being
considered, but that relationship expired when the petitioners obtained their
own open Class 1 non-food permission.
The decision upon the second respondents' application has had no legal
effect upon that. All that can be said
is that there is a planning permission which may have, as an indirect
consequence, an adverse effect on the value of the petitioners' site (cf the
direct effect in Air 2000 v Secretary of State for Transport (supra) Lord Dervaird at 700). Decisions, planning or otherwise, with that
type of indirect effect on a person's property are taken by government, local
and national, on a regular basis without conferring upon that person a title to
challenge such a decision by judicial review.
The fact that a party has been, or may be, "closely affected" by a
decision is not sufficiently precise to provide a useful test on title.
[33] Furthermore, in the administrative context, before a party can
have a title to challenge a decision on its merits, it is first necessary for
him to have been a party to that decision making process. Having failed to enter the planning process
at the appropriate stage by representation, a party cannot make a failure to
take account of what he might have said in a representation a ground of
challenge in a legal process. Had the
petitioners entered the planning process by tendering a representation, they
would thereby have acquired a right to have the representation taken into
account. A failure by the planning
authority to deal with a representation in a reasonable manner may well provide
grounds for a review (Patmor v City of Edinburgh DLB 1987 SLT 179,
Lord Jauncey at 495 following Black
v Tennant (1915) 1 F 423, Lord Adam
at 436; both referred to in Hollywood
Bowl (Scotland) v Horsburgh (supra Lord Osborne at 244). But the petitioners did not make such
representations and they cannot circumvent the proper route for planning
decisions by attempting to make the same representations directly to the Court. It may be that this analysis differs slightly
from the approach of Lord Macfadyen in Bett
Properties v Scottish Ministers (supra at para 19), where he leaves
open the possibility of challenges, other than those based on procedural
defects, even where the proper opportunity to challenge has been spurned. However, it is in accord with the line taken
by Lord Osborne, albeit in the licensing context, in Hollywood Bowl (Scotland) v Horsburgh
(supra at 244) to the effect
that such a failure precludes a title to raise the matter for the first time in
a legal forum. The respondents' first
pleas-in-law, so far as relating to the absence of a title to sue, must be
sustained.
[34] The failure to make representations does appear to have a
bearing on title rather than fall into the category of "failure to exhaust
remedies", even if such categorisation may be of little import. In any event, in so far as such a failure is
concerned, although the first respondent offered to amend by inserting a
relevant plea-in-law, that plea could not have been sustained in the absence of
supporting averments. For similar
reasons, no argument based upon the concept of "legitimate expectation" could
have been sustained in the absence of any mention of it in the petitioners'
pleadings. Form 58.6 of the Rules of
Court requires a petitioner to state the grounds upon which he challenges the
decision of the respondent. The petition
is supposed to contain in brief compass "the legal argument with reference to
enactments or judicial authority upon which it is intended to rely". It may be accurate to say that in recent
times the provisions of the Rules in this respect have been more "honoured in
the breach than the observance". However,
the Court must impose some limits on the extent to which oral argument is permitted
where there is not an inkling of the argument in the pleadings.
[35] In any event, there does not appear to be any element of
"legitimate expectation" present. As Lord Reed
points out in his discussion of the topic in the Scottish Planning Encyclopaedia
(para A.5052 under reference to Lord Clyde in The Miller Group, Petitioners (supra
at pp 3-4) following Lord Fraser in Attorney General of Hong v Ng
Yuen Shiu (1983) 2 AC 629 at 638), "a legitimate expectation
imposes on the decision-maker a duty to act fairly (in a procedural sense)". Planning policies are usually statements of a
general nature. They may be departed
from if material considerations so dictate.
They do not normally give rise to any "legitimate expectation" in a
legal sense on the part of any person that the application of another will
follow a particular procedural path or even that the outcome will be in
accordance with general planning policies.
In this particular case, given that the petitioners had themselves
obtained an open Class 1 non-food goods permission for their own retail
park, which is now being seen as an extension to the Edgar
Road Retail Park,
it is not possible to assert that the petitioners had any expectation
concerning the processing or outcome of the second respondents', application. Finally on this topic, the petitioners' point
about the alleged convention foundered on the absence of any substantial
support for it in any source describing planning practice.
[36] Turning to the separate issue of interest, the general interest
of the petitioners to challenge the decision might be said to be reasonably
apparent. They say that the value of
their site has been diminished by the first respondents' decision and there
seems to be little challenge to that contention, although the degree of damage
to the petitioners may not, as yet, be clear or certain. Their averments of damage, if proved, would
permit them an interest to challenge that decision in certain circumstances. However, when the grounds for the challenge
are looked at, even fleetingly, it can be seen that what the petitioners are
doing is relying on policies designed to protect the viability and vitality of
the town centre. The petitioners have no
interest, so far as can be seen, in protecting the centre of Elgin from a
commercial or any other point of view. They
are not individuals concerned to protect the amenity or facilities of the
centre. They do not operate in the
centre. In short, they have no interest
in seeking to enforce the planning policy upon which they rely. The interest element of the respondents'
pleas will also be sustained since the petitioners have no interest to pursue a
reduction based upon a failure to consider policies designed for the protection
of others, if not simply the community as a whole.
(C) REDUCTION
[37] The test for whether the first respondents' decision falls to
be reduced on its merits is set out by the Lord President (Emslie) in Wordie Property v Secretary of State for Scotland (supra at 347-348). It is whether the first respondents have: (i) misdirected
themselves on the law; (ii) taken into account an irrelevant
consideration; (iii) failed to take into account a relevant consideration;
(iv) proceeded upon a misunderstanding of fact; or (v) reached a decision
which no reasonable planning authority could have reached. It is of considerable advantage if a
petitioner in a judicial review process can determine which of these categories
he is founding upon, separate the averments in his written pleadings
accordingly and make his position clear in his pleas-in-law. The petitioners' second plea-in-law of "the
respondent having acted unlawfully" is so vague as to be almost meaningless and
incapable of being sustained to any purpose.
[38] On the other hand, the petitioners' oral submissions were clear. They first maintained that the petitioners
had failed to apply the statutory provision (supra) whereby planning decisions "shall be in accordance with the
[development plan] unless material considerations indicate otherwise". The second respondents' application was in
accordance with the development plan. Their
site was part of the Edgar Road
Retail Park,
which has a specific planning policy attaching to it. The specific policy takes precedence over the
more general L/R6. The RET Edgar
Road Retail Park
policy states the "Proposals for non-food or bulky-goods retailing ... will be
welcomed". The second respondents had a
permission of a more restrictive type than the plan allowed, in that it was
only for "household goods ... and bulky DIY items". However, their application to vary that
condition to all Class 1 non-food goods did not deviate from the
permissions which the specific policy states are to be welcomed.
[39] The policy also states that: "proposals which would change the
character of the retail park, as described in the preceding paragraph will be
subject to policy L/R6". However,
that paragraph records the existence of the ASDA store, which has a permission
to sell Class 1 food and non-food goods.
ASDA is part of the Retail Park,
albeit on the other side of Edgar Road
from B&Q and the second respondents' retail park. Given its presence, it is not possible to
assert that an unrestricted Class 1 non-food goods permission, applying to
only 30% of the second respondents' site, itself being only one third of
the Retail Park,
could change the character of the Edgar
Road Retail Park. Furthermore, as already observed, since the
publication of the Development Plan, the petitioners have obtained an open
Class 1 non-food goods permission. Part
of the reason for granting that permission was that the petitioners' site was
being regarded as an extension of the Edgar
Road Retail Park. In these circumstances also, an argument that
the second respondents' variation would change the character of the Retail
Park, as so extended, can have no
merit.
[40] Even if policy L/R6 had potentially applied, it would have
had to have been borne in mind that the second respondents were seeking a
variation of an existing permission and not attempting to create new retail
outlets. It that respect, their
application was quite different from, and required a different approach to, the
proposed development of the Auction Mart site.
The first respondents' position about phased and sequential development
at the public local inquiry into that site has little relevance to the second
respondents' application for a variation at an established retail park.
[41] The report to the first respondents' planning committee was
relatively short. However, its brevity
has to be seen in the context of what was an unopposed application for the
relaxation of a condition. The report
made reference to the most important aspect of the application, namely that it
was supported by the Edgar Road
Retail Park
policy. That was an accurate statement
of the position and, unless there were material considerations to the contrary,
the variation had to be approved. It is
true that the report contained an error relative to "food" goods, but this
mistake was clear on the face of the report.
It is not disputed that it was corrected during the committee meeting. If anything, the error was in the
petitioners' favour in that it stated incorrectly that the proposal represented
a departure from the Edgar Road
Retail Park
policy. It did not and indeed there was
a precedent with the ASDA store.
[42] The report had appended to it extracts from the Development
Plan setting out the relevant policies, including L/R6. It was adequate for its purpose. There was no need for it to refer to the
retail impact study, since that study revealed there to be no significant
impact on the city centre. No doubt, had
the issue been raised, the study could have been circulated. But in the absence of that issue being
raised, there was no point in advising the planning committee of a negative. Finally, in so far as the report is
concerned, there is no reason to suppose that the planning committee had in
mind only its contents before reaching its decision. On the contrary, this committee, no doubt
like many others, had been dealing in detail with out-of-centre retail
warehousing for some years. It would
almost certainly have been well versed in the issues of town centre protection
and related matters. So far as the
technical point about the "red-lining" of the site boundaries, the plan
attached to the application for variation was entirely adequate for its purpose
of identifying the site in terms of the regulation (supra).
[43] In summary, the first respondents appear to have addressed
themselves to the correct question of law by looking at whether the application
was in conformity with the Development Plan.
They do not appear to have taken into account any irrelevant
consideration or failed to take account of a relevant one. The facts before them were accurate and they
reached a reasonable decision to allow the variation. There is therefore no basis upon which the
first respondents' decision can be reduced on grounds relative to its merits. I will therefore: (i) allow the petition
to be amended in terms of the first respondents' motion to add two new
pleas-in-law (2. waiver; and 3. failure to exhaust remedies); (ii) sustain the first plea-in-law for
the first respondents and the first and second pleas-in-law for the second
respondents; (iii) repel the first and second pleas-in-law for the
petitioners and the second, third and fourth pleas-in-law (as amended) for the
first respondents; and (iv) refuse the prayer of the petition contained in
the third statement of fact.
