Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 140
P188/11	OPINION OF LORD PENTLAND in the Petition of PAUL BOVA and CAROL CHRISTIE Petitioners; against THE HIGHLAND COUNCIL Respondents: _________

For the Petitioners: Findlay et Drummond; Drummond Miller LLP

For the Respondents: McKay; Biggart Baillie LLP

For the Interested Party: Martin, QC et Burnet; Maclay Murray & Spens LLP

19 August 2011

Introduction

[1] The petitioners are joint owners and occupiers of a house known as "Barnview", which is situated to the south-west of an area of land at Resaurie near Inverness on which a company by the name of BDW East Scotland Limited (formerly called Barratt North Scotland Limited) wishes to build sixty four houses. The company ("Barratt") applied for planning permission to Highland Council ("the Council") in respect of the houses and the associated roads, car parking spaces and necessary services in or about 2009 (an earlier application in 2007 for a greater number of properties had been refused on the basis of undue scale and density). Although the petitioners and others objected to the 2009 application, the relevant committee of the Council resolved to grant it on 23 September 2009, subject inter alia to a section 75 Agreement being entered into in relation to the provision of affordable housing. As had been expected, the section 75 Agreement was finalised in due course and the Council then proceeded formally to grant planning permission on 5 March 2010 by the exercise of powers delegated to its officers. On 24 February 2011 the petitioners began the present proceedings for Judicial Review of the decision taken on 5 March 2010. The petition, which was opposed by the Council as the respondents and by Barratt as interested parties, came before me for a First Hearing, at which the petitioners sought (a) declarator that the decision of 5 March 2010 was ultra vires and (b) reduction of it. In broad outline, the petitioners contended that the respondents had failed to apply the correct approach towards assessing the risk of flooding arising from the proposed development; in particular, it was said that the respondents had not adopted, as they should have done, a precautionary approach to flood risk. It was argued also that the respondents had, in any event, failed to understand and take proper account of certain objections raised by the petitioners in relation inter alia to the risk of flooding caused by the likely effects of the development on groundwater on the site. In response, the Council and Barratt argued that the respondents had applied the correct approach towards the assessment of flood risk, they had properly taken account of all relevant matters and had not misunderstood the petitioners' objections. In any event, it was maintained by the Council and Barratt that the petition had been brought too late and that the petitioners were barred by mora, taciturnity and acquiescence from pursuing it.

[2] In order to set the various legal arguments in their proper context, it will assist if I first summarise something of the history and progress of the planning application. As to this, there was no dispute. Much of it was pleaded, at some length, in the Record, which had been prepared by the parties for the purposes of the First Hearing.

The Desk Study Report

[3] In relation to flood risk, the first relevant document was a Geo-Environmental Desk Study Report prepared on the instructions of Barratt by W A Fairhurst & Partners ("Fairhurst") in May 2007. The report explained that Barratt was considering acquisition of the site for the purpose of a residential housing development. The aim of the report was stated to be to provide Barratt with information regarding the history of the site, an overview of likely ground conditions and an appraisal of potential geo-technical and environmental constraints associated with the site. The report explained that Ordnance Survey maps dating from 1871 and British Geological Survey Sheets had been used in its preparation. In describing the site, the report noted that it lay to the east of Inverness and extended to an area of approximately two hectares. A large works building was located in the east part of the site, whilst the remainder of the site was undeveloped. It was bounded to the south-west by housing; to the north by a footpath and an unnamed burn and by an area known as Tower Brae beyond it; to the west by Caulfield Road and housing; to the south-east by a steep man-made bare soil embankment; and to the north-east by an overgrown tree-covered embankment with housing beyond. Topographically, the site was on relatively low-lying land sloping generally to the north-west. It was noted, in paragraph 3.2 of the report, that the unnamed burn was located along the northern boundary of the site. The burn ran in a south-east to north-west direction towards a culvert under Caulfield Road. A shallow ditch was situated within the northern part of the site, also running in a south-east to north-west direction and draining into the burn. A surface water drain entered the site at the eastern boundary and drained into a small pond at the east of the site. No further known surface water features were located within 100 metres of the site. Section 5 of the report was entitled "Geology and Hydro-geology". Paragraph 5.3 was in the following terms:

"The BGS Groundwater Vulnerability map of Scotland indicates (that) the bedrock beneath the site is moderately permeable. The Hydro-geological Map of Scotland indicates that the bedrock beneath the site is a locally important aquifer of lower and middle Old Red Sandstone in which flow is dominantly in fissures and other discontinuities,

The Groundwater Vulnerability map supplied with the Envirocheck Report indicates that the strata beneath the site are moderately permeable fractured or potentially fractured rocks which do not have a high primary permeability. Based on the general topography of the area and flow of local surface water courses, it is anticipated that groundwater flow will be to the NW."

Section 7 of the report was entitled "Preliminary Engineering Design Assessment". It stated inter alia as follows:

"Two marshy areas have also been identified at the southern and northern corners of the site. These areas will require further investigation, particularly in the south as this marshy area corresponds to the approximate position of a historical well on the southern site boundary.

The proposed development plan does not appear to take account of the existing pond on site, however this will obviously impact on the final layout.

It is recommended that a detailed ground investigation is undertaken in order to obtain sufficient information for geotechnical design purposes."

[4] In the summary and conclusions of the report Fairhurst stated inter alia that they considered there to be a significant risk of geotechnical difficulties associated with the made ground and marshy areas at the site. If the decision were taken to proceed with purchasing the site and developing it, certain actions would be necessary. These included compiling an appropriate interpretative report in support of the planning application.

The Geo-Environmental Interpretative Report

[5] Following the recommendation made in the desk study report, Fairhurst was instructed by Barratt to design and supervise a ground investigation at the site and to prepare a geo-environmental interpretative report. Under Fairhurst's direction a ground investigation was carried out in May 2007. The interpretative report prepared in July 2007 detailed the findings of the ground investigation, provided interpretation of the results obtained and commented on the implications for future developments. In section 2.2 the interpretative report expressed the view that, based on the general topography of the area and flow of local surface water courses, it was anticipated that groundwater flow would be to the north-west. It will be noted that this view was in line with the view expressed in the Desk Study Report. Section 5 explained that the ground investigation was carried out by Envirosoil Technologies Limited and comprised the sinking of six bore holes drilled up to seven metres below ground level and twenty nine trial pits dug up to three metres below ground level. Chemical and geo-technical laboratory testing was carried out on selected samples from the trial pits and bore holes. In situ Standard Penetration Tests were carried out in the bore holes which were also installed with inter alia groundwater monitoring equipment. Three rounds of groundwater monitoring and two rounds of gas monitoring were carried out. The groundwater levels were recorded in section 5.2 of the interpretative report. Section 7 of the report contained an engineering assessment. In relation to zones A, B, C and D it was noted that excavations beyond about 1 or 1.5 metres in depth might encounter groundwater which could lead to softening of the sub-soils. It was recommended that all excavations should be protected from excess moisture or surface water inflow, by minimising the time the excavations were left open, to avoid deterioration of the sub-soils. Section 7.9 of the report noted that a drainage impact assessment was being carried out separately. Section 10 summarised potential development constraints. The second bullet point noted that, due to the unstable layers of made ground and near surface groundwater within zone D, it was unlikely that trench fill foundations would be suitable.

The Drainage Impact Assessment

[6] Fairhurst issued its drainage impact assessment and SUDS (Sustainable Drainage Systems) strategy in or about July 2008. It was revised on 15 August 2008. The report noted that the proposed development site was located to the west of an existing Barratt housing development. It referred to the full geo-environmental site investigation undertaken by Fairhurst in about June 2007. It was noted that the site investigation had raised the issue of high water-table levels across the site, generally found to be 0.5 metres to 1.9 metres below existing ground levels. As a result, it was deemed that infiltration systems for the development were unsuitable. Section 2 noted that a sealed surface water drainage system should be adopted so as to ensure that no ground water entered the system. The report considered the post-development drainage conditions on and off site. In regard to the off-site conditions, there were two areas of the proposed development which were affected by water entering the site. The report stated that these areas required to be dealt with by a separate surface water drainage management system, which was to consist of a separate surface water pipe through the site to an outfall constructed to the water course running along the northern boundary of the site. Attenuation was to be provided to limit the post-development flows from the off-site water courses to less than calculated pre-development flows. The report considered two water courses on pages 3 and 4. In order to calculate the exact flows from the existing culvert from the earlier Barratt development, a flow monitoring regime was to be set up to determine maximum seasonal flow values from the culvert. Upon completion of that study, the actual volumes of water could be determined and this would allow a view to be taken about the size of the attenuation tank on site. With regard to the second water course, the report stated that it was not clearly evident how "ponding" in that area was occurring. It was clear, however, that the water table level in the area was relatively high. Therefore, during periods of heavy rainfall it was likely that the ponding resulted from rising ground water. The drainage assessment proposed the construction of French drains around the boundaries in the relevant area, connecting to the dedicated off site surface water sewer. In addition, during the flow monitoring in relation to the culvert, it was proposed to undertake a visual monitoring regime to establish the volume of water and the consequential size of the attenuation tanks.

[7] It is clear from evidence produced at the First Hearing that the respondents' officers were well aware that some local residents had concerns about the risk of flooding if the development went ahead. In the course of assessing the planning application the officials were, therefore, careful to evaluate the drainage proposals put forward by Fairhurst. An insight into this approach can be gleaned from the emails of 19 and 21 August 2008 between the planning officer, Mr Gibson and his colleague in TEC Services, Mr McKenzie (productions 6/6 and 6/7). It is interesting to note that in his email of 21 August 2008 Mr McKenzie specifically discusses shallow groundwater on the site and overland flows into the Tower Brae burn. He referred to Fairhurst's plan to monitor flows in the watercourses and to work up a flow regime that could be applied in the design of pipes, the attenuation facility and a long discharge pipe into the Tower Brae burn. The idea was to allow the existing discharge to the burn to be replicated. Mr McKenzie supported this proposal.

[8] Revision C of the drainage impact assessment and SUDS strategy was issued on 17 April 2009. This contained further detail relating to existing site drainage and the proposed modifications. Pre-development run off rates for thirty year and two hundred year return periods were stated. It was noted that there was surface water entering the site from the ground above. Surface water accumulated around the south-east of the site to form two separate shallow ponds. The pond located furthest to the east was a permanent feature, whereas the other pond, located further south, only appeared after periods of rainfall. This second pond had no visible inlet or outlet and it was assumed that the water collected within the pond discharged below ground to the existing burn, which ran in a north-westerly direction along the boundary of the site, parallel to Tower Brae North. The permanent pond received surface water from an existing culvert which ran underneath the railway line located to the south of the development and also received a controlled discharge from the SUDS serving the first phase of the housing development. This pond also had no visible outlet and it was assumed that the collected run-off discharged below ground to the Tower Brae burn. The revision of the drainage impact assessment then continued as follows:

"It is proposed that filter drains are installed along the south-east site boundary to collect the surface water and ground water which gives rise to the two ponds and convey this water to a bespoke detention basin. The outflow from the detention basin will be restricted by a flow control device and will be conveyed by a separate bespoke pipe through the site to the Tower Brae Burn. The outflow rate will be controlled to ensure the discharge does not increase the potential for flooding downstream of the development. Barratt has agreed to commission on-site flow monitoring to allow the detention basin and associated outflow to be designed.

The proposed detention basin will offer an improvement on the current arrangement as it provides an opportunity to install appropriately designed attenuation storage and a degree of control of the discharge."

SEPA's Consultation Response

[9] As required, the Council consulted the Scottish Environment Protection Agency ("SEPA") in relation to the planning application. In their response SEPA stated that they had no objection to the proposed development, subject to a planning condition being imposed along the following lines:

"A detailed Drainage Design should be submitted and approved by Highland Council (in consultation with SEPA if deemed necessary by the Council) prior to development commencing. Post-development run off from the site should not exceed the pre-development run off rates for all return periods up to and including the 1 in 200 year storm event. The Drainage Design should include a sensitivity test showing that no built development or critical infrastructure would be affected by flooding during a 1 in 200 year storm event to satisfy SPP 7 requirements."

In their detailed comments SEPA noted that, with regard to inflows onto the site, they had previously been informed by Barratt that flows would be monitored during the winter period, after which appropriately sized attenuation facilities would be designed to prevent increased flood risk elsewhere. That proposal had been recognised by the Council and SEPA as a reasonable approach in view of the degree of uncertainty with regard to estimating flows currently discharged by the existing culvert. While SEPA understood that this work had not yet been undertaken, they also understood that flow monitoring would be carried out prior to finalising the detailed drainage design. SEPA also noted that the outflow rate from the proposed detention basin would be restricted by a flow control device to ensure that flooding would not increase elsewhere. The proposed detention basin could offer betterment as compared with the existing drainage situation, provided that it was of an appropriate size and outflow was controlled. SEPA was of the opinion that allowable discharge rates into the Tower Brae Burn should be agreed with the Council, as the flood prevention authority, prior to the undertaking of the detailed drainage design.

The Petitioners' Objections

[10] By letter dated 20 April 2009 the petitioners, writing under the heading "C. Christie and family" objected to the application on a number of grounds. These included density, contamination and subsidence. Reference was made also to there having been a deficient survey procedure for the assessment of European protected species (bats) and to a number of further points. In particular, the letter contained a paragraph headed "flood alleviation and surface water proposals". The paragraph was in the following terms:

"flood alleviation and surface water proposals - again, your attention is drawn to committee meeting on 2 December 2008 where members noted their concern surrounding the fact that the above site floods regularly. No drainage assessment is included within the information presented - as such a material breach of PAN 61. There are no source control measures proposed, no source identification, no SUDS proposals. No assessment of water quantities which inundate the site each winter - despite the applicants having had a full winter to conduct such a survey, and such a survey previously expressly intended by the applicant - We object to any such development."

[11] On 1 May 2009 the petitioners, again under the heading of "C Christie and family", submitted further objections to the planning application. At the First Hearing counsel for the petitioners relied heavily on the terms of this letter and I shall, therefore, set it out in full:

"Ref 09/231/Fulin Drainage Proposals

Dear Sirs, WA Fairhurst state to have completed a full geo-environmental site investigation in Summer 2007 and noted a high water table between 0.5m and 1.9m. WA Fairhurst state in submitted 2009 drainage assessment to assume the ponds on site, discharge from site beneath Tower Brae burn.

Considering the well documented drainage concerns surrounding this development residents in Cranmore Drive will no doubt be less than impressed being presented with assumptions having been flooded twice and living in houses with no home insurance:-

As stated by WA Fairhurst, there is a high, uneven water table with limited and undefined discharge from site. If we consider the evidence of these ponds and the high water table clearly not being horizontal, this suggests to us, an aquifer is present on site.

Within an aquifer, the water table is rarely horizontal, due to the existence of surface relief, resulting from the capillary effect within the porous media.

Considering these facts, alongside the limited, undefined migration from site, particularly the fact that the site can remain bogged while the burn remains relatively dry and water pools are evident on Ashton farm land below approx 50% of the site. We question the utilisation of Greenfield runoff figures to establish target discharge values.

This approach may not be fully relevant to this catchment, in terms of determination of a pass forward flow from proposed storage.

Details regarding specification of upstream SUDs measures proposed are limited. Downstream schematics presented have identical invert levels, Hydrobrakes set to pass 15 1/s and 12 1/s respectively at a head of 1.2m. These, along with the proposed attenuation tank schematics, appear to have target discharge values all formulated reference to statistical pre development greenfield values these are based on a statistical simulation which could represent other sites in the north of Scotland - they are not site specific.

We contend that the mean site infiltration figure, (presumably established following the 2007 geo-technical investigation) should be utilised to reflect site specific target discharge rates to Tower Brae burn. At the very least, if there are topographical assumptions being made relating to the water table as a result of no visible outlet, then relative datum heights in Ashton farm should be presented to justify the 100% contribution as suggested by WA Fairhurst, from proposed site to Tower Brae burn.

What is being proposed may purport to improve the drainage of the site, however, may actually redirect natural migration of groundwater recharge occurring in other areas which have no direct impact on the burn, with some hostility, into Tower Brae burn. Indeed it is of little reassurance to residents that Area roads have failed to offer any comment on this subject during 2008, despite being lead body for flood risk.

We object to the drainage assessment submitted, which appears to breach SSP 7 Paragraphs 15, 16, 17, 22, 25 and PAN 61 paragraphs 23 + 24".

The Council's Response to the Petitioners' Objections

[12] At the First Hearing, counsel for the planning authority explained that upon receiving the petitioners' letter of 1 May 2009, the planning officer, Mr Gibson checked the letter against the objections submitted by the petitioners in relation to Barratt's 2007 planning application to see whether anything new was being raised. He was satisfied that no new point was being taken. He understood the flooding issue referred to in the letter to relate Cranmore Drive (at the other end of the site from Barnview). So far as the alleged presence of an acquifer was concerned, the planning officer regarded this as a technical matter. In the circumstances, he decided to send a copy of the letter to the developers' architects, Messrs Halliday, Fraser, Munro for their comments.

[13] By letter dated 3 July 2009 Fairhurst wrote to Mr Gibson setting out in detail their views on the issues raised by him with the developers' architects. In the letter Fairhurst advised that it had been confirmed to them by the Council's TEC Services Department that past flooding in the area had been a direct result of the road culvert in Tower Brae burn becoming blocked with debris. The culvert had now been completely replaced to minimise the risk of debris blockage and flooding. With regard to flow monitoring, the letter reiterated that this would commence as soon as any planning permission was granted; this would be a condition of any planning permission. The monitoring works were necessary in order fully to "design out" the SUDS strategy for the off-site drainage. They would be submitted for approval to the Council and SEPA in advance. Fairhurst also observed that the main points of the various objections were that the drainage design did not reflect the conditions found on site and were insufficient in detail. The letter stated that Fairhurst refuted this complaint. It pointed out that they had undertaken significant studies into the existing site drainage models and, in conjunction with the site investigations studies, had designed a scheme which reflected the requirements, in terms of both water quality and quantity. The information provided in the drainage impact assessment was sufficiently detailed to show that the drainage philosophy would work and that it complied with all relevant technical standards and recommendations of statutory authorities.

[14] With regard to the statement made in the petitioners' letter about the possible presence of an acquifer on the site, Fairhurst suggested that this was unfounded. They said that there was no evidence of an acquifer being present both from onsite inspections or within the site investigation studies. In any event, the development would result in only the shallow sub-soils being affected and any acquifer would be at a depth which the development works would not affect.

The Planning Authority's Decisions
[15] The planning application came before the Inverness, Nairn, Badenoch and Strathspey Planning Applications Committee on 11 August 2009. The Committee had before it a detailed report ("the planning report") on the application prepared by the Area Planning and Building Standards Manager ("APBSM"). In the section of the report entitled "Public Participation" the main concerns of the objectors were summarised. As to flooding, the planning report identified the concern of the objectors as being an increased flood risk to houses at Cranmore Drive from flooding of the Tower Brae Burn. The report noted also that there were objections to the drainage assessment on the ground that it had not identified the areas which exhibited ponding and had not provided flow figures for those areas identified as being routed to the Tower Brae Burn from the far end of the site. It was also recorded as a concern of the objectors that SEPA had stated that the applicants were to conduct flow monitoring over the winter in order to size onsite attenuation and that there had been no attempt to do this, with the result that figures representing external waters, intended to be directed to the Tower Brae Burn via man made ponds, were not included within the submitted calculations. The objectors' contention that the drainage assessment did not meet PAN 61 was recorded, as was their submission that no source control measures were proposed; there was said to be no source identification and no SUDS proposal.

[16] The planning report went on to set out, in detail, the outcome of the various consultations conducted in relation to the application. In particular, SEPA's response was summarised. It is convenient to mention at this point that by letter dated 24 August 2009 SEPA confirmed to the Council that the planning report "very accurately" reflected its position on the application and that the terms of (the) proposed conditions "exactly" addressed the issues which SEPA had asked to be covered by means of a condition. The planning report explained the applicant's drainage design approach in detail. In particular, it was made clear that with regard to flow monitoring for the offsite drainage, this would commence as soon as any planning permission had been granted. These works were to be a condition of the planning consent at the request of SEPA and TEC Services. The report explained that those monitoring works would have to be undertaken to design out fully the SUDS strategy for the offsite drainage and then submitted for approval to the statutory authorities prior to any work proceeding on site.

[17] With regard to the suggestion that an acquifer might be present on site, the report set out the response provided by Fairhurst on that issue in their letter of 3 July 2009.

[18] Section 7 of the planning report contained a comprehensive appraisal of the various issues arising. In paragraphs 7.8 and 7.9 a detailed explanation of the proposed SUDS system was provided. In paragraph 7.14 the issues raised by the objectors were summarised again. Reference was made to the objections relating to flooding and surface water.

[19] The report recommended that, subject inter alia to prior conclusion of a section 75 agreement to secure delivery of affordable housing, planning permission should be granted with a number of conditions. The proposed conditions included the one recommended by SEPA relating to submission and approval of a detailed drainage design prior to development commencing. The proposed conditions also included, as condition 23, a requirement that no works would start on site until an application had been submitted for the details of the proposed works adjacent to the south boundary and culvert for Phase 1 to accommodate attenuation for the surface/ground water from this direction to the satisfaction of the planning authority in consultation with SEPA. The reason given was in the interests of amenity and to ensure surface/ground water from outwith the application site was dealt with in terms of SUDS principles.

[20] The minutes of the committee's meeting on 11 August 2009 record that, during discussion of the application, a number of concerns were expressed to the effect that issues relating to the contamination of land, flooding and European Protected Species had not been fully addressed. A motion was moved that the application be refused on the ground of over-development of the site. An amendment was also moved to the effect that the application be approved, subject to reservation of the affordable housing issue. On a vote being taken, the motion received 7 votes and the amendment 8 votes. The amendment was, therefore, carried and the application approved.

[21] In terms of the Council's Standing Orders, a number of members of the planning committee formally declared their wish that the decision taken at the meeting of 11 August 2009 should be reviewed at the forthcoming meeting of the Planning, Environment and Development Committee of the Council. That meeting was held on 23 September 2009. The minutes record that, with the assistance of a Powerpoint presentation, the APBSM drew attention to a number of points in the planning report. These included the proposed conditions to address the problem of flooding. There was evidently considerable discussion at the meeting about the various issues to which the application was thought to give rise. It was noted that local residents remained concerned about flooding, despite the proposed conditions. In response, the APBSM explained that the proposals were designed to improve the existing flooding problems and that the outcome should be an overall improvement. At the conclusion of the discussion a vote was taken and the application was approved, subject to certain minor amendments which are immaterial for present purposes.

Scottish Planning Policy on Flooding

[22] On 23 September 2009 when the Council resolved, in principle, to grant the planning application, the relevant National Planning Policy on assessing flood risk was contained in Scottish Planning Policy 7 entitled: "Planning and Flooding" ("SPP 7"). This had been published by the Scottish Executive Development Department in February 2004. It is clear that the Council applied this policy in their handling of and approach to the application. The summary at the beginning of the policy document expressly stated that the Scottish Executive expected developers and planning authorities to err on the side of caution in decision making whenever flooding was an issue. In the same section the policy document explained that flood risk would be a material consideration in a range of cases. The policy stated that new development should not take place if it would be at significant risk of flooding from any source or would materially increase the probability of flooding elsewhere.

[23] The general principles underlying the policy were set out in paragraph 15 of the document. These principles included the following:

·       Developers and planning authorities were required to give consideration to the possibility of flooding from all sources.

·       New development was to be free from significant flood risk from any source.

·       In areas characterised as "medium to high" flood risk for watercourse and coastal flooding new development was to be focused on built up areas and all development had to be safeguarded from the risk of flooding.

·       New development was not to increase materially the probability of flooding elsewhere.

·       Flooding from sources other than watercourses and on the coast had to be addressed where new development was proposed, if necessary through a drainage assessment. Any drainage measures proposed were required to have a neutral or better effect on the risk of flooding both on and off the site.

[24] The policy applying those principles was set out in considerable detail between paragraphs 16 and 37 of SPP 7. Some important features of the policy may be noted. In paragraph 21 it was recognised that if natural drainage patterns were disturbed by development, flooding might also be caused. Drainage was therefore stated to be a material planning consideration. Drainage measures proposed as part of a planning application were to have a neutral or better effect on the risk of flooding both on and off the site. It was noted that planning authorities had a duty to consult SEPA on appropriate planning applications. Paragraph 22 observed that the primary role of sustainable drainage systems (SUDS) was to manage the flow of rain water run-off from a site by treating it on site, thereby reducing the loading on conventional piped drainage systems. It was noted that some sustainable drainage systems, such as detention ponds, could slow the rate of run-off by temporarily storing water.

[25] In paragraphs 33 to 37 the planning approach to assessing the risk of flooding was set out in detail. In paragraph 33 the policy document observed that even in areas generally free from flooding, local conditions and exceptional rainfall could lead to flooding. It was therefore not possible to set planning policy and determine applications solely according to the calculated probability of river or coastal flooding. Nevertheless, in order to provide a basis for decision making, a characterisation of flood risk into "little or none", "low to medium" and "medium to high" was set out in a risk framework even though it was recognised that this simplified the situation. For each level of risk an appropriate planning response was outlined.

[26] Paragraph 37 observed that the Risk Framework was based on the annual probability of flooding. In applying the Risk Framework developers and planning authorities were required also to take into account a number of considerations depending on the particular circumstances. These included: the characteristics of the site; the use and design of the proposed development; the size of the area likely to flood; and the cumulative effects of development. It was then explained that the calculated probability of a flood occurring should be regarded as a best estimate and not a precise forecast. Developers and planning authorities were therefore required to err on the side of caution in taking decisions when flood risk was an issue.

[27] In the concluding section of SPP 7, paragraph 53 stated the following:

"The Scottish Executive expects developers and planning authorities to deal very seriously with flooding, to take an informed approach to decision making and err on the side of caution where flood risk is an issue. When owners accept their primary responsibility for safeguarding and ensuring their land and property against flooding they should be able to do so in the expectation that the planning authority and the developer have properly had regard to the probability of flooding and the associated risk."

[28] In April 2009 the Scottish Government issued a consultative draft document on Scottish planning policy. As part of its commitment to proportionate and practical planning policies, the Government had decided to rationalise the series of national planning policy documents (the SPP and NPPG series) into a single statement of national planning policy. The first part of the consolidated Scottish Planning Policy (SPP) had been published in October 2008 and covered the core principles, aspirations and expectations for the planning system. The consultation embarked on in April 2009 covered inter alia the subject policies which were expressed through seventeen separate SPPs and NPPGs. It was made clear in the introduction to the consultative draft that the consolidation of the subject policies into the single SPP was not a review of established policy. The aim was to rationalise existing policy and to express it in more concise terms, providing clarity and greater certainty of intended outcomes. It was noted that the changes in wording did not, in most cases, represent a change in policy. One of the SPPs to be superseded by the SPP, when published in its final form, was to be SPP 7.

[29] The section in the consultative draft dealing with flooding and drainage was contained between paragraphs 151 and 162. These paragraphs make it entirely clear that no substantive change to national planning policy on the assessment of flood risk was intended. Existing policy was set out in more concise terms, but the content and approach remained unaltered. In particular, in paragraph 153 it was stated that developers and planning authorities should err on the side of caution in taking decisions when flood risk was an issue. This was because even in areas generally free from flooding, local conditions and exceptional rainfall could lead to flooding. It was therefore not possible to set planning policy and determine applications solely according to the calculated risk of flooding. It will be seen that the language used in this part of the consultative draft echoed the approach advocated in SPP 7 in regard to erring on the side of caution and put forward the same justification for that approach. Paragraph 155 of the consultative draft set out, in terms which were not materially different from those to be found in SPP 7, the Risk Framework which divided flood risk into three categories and outlined an appropriate planning response.

[30] In February 2010 (shortly before the formal grant of planning permission in the present case, but some months after the resolution to grant consent in principle) the Scottish Government published the final version of the new Scottish Planning Policy ("the SPP"). Although this now reflected some minor adjustments to national planning policy because of the enactment of the Flood Risk Management (Scotland) Act 2009, the final document followed very closely the terms of the consultative draft. There was, however, one change in the language used. In paragraph 202 it was now stated that developers and planning authorities should take a precautionary approach in taking decisions when flood risk was an issue. The earlier reference to "erring on the side of caution" in the corresponding section of the consultative draft was replaced by reference to the taking of a "precautionary approach". The rest of the passage was unchanged, however. In particular, the justification for advocating the recommended approach was the same as before; the policy continued to say that local conditions and exceptional rainfall could lead to flooding and it was, therefore, not possible to set planning policy and determine applications solely according to the calculated probability of flooding.

[31] The reason for this alteration in the language used is explained in a document published by the Scottish Government in July 2010 entitled "Scottish Planning Policy - Post Adoption Strategic Environmental Assessment (SEA) Statement". This (like the other documents explaining the evolution of national planning policy) was lodged at a late stage during the First Hearing. In paragraph 2.37 the SEA noted that some consultees (on the draft SPP) had suggested that strengthening of the policy was required to emphasise a precautionary approach. In paragraph 2.38 it was noted that the finalised SPP had been "slightly amended" to reflect consultee views, including by noting the need for a precautionary approach to flood management. There is no suggestion in the assessment (or indeed in any other document that was put before me) that a significant change in the substance of national planning policy was intended by this slight adjustment in language, which took place in the context of a consolidation exercise.

Planning Permission Formally Granted
[32] On 22 February and 2 March 2010 the agreement under section 75 of the Town and Country Planning (Scotland) Act 1997 was formally entered into. This cleared the way for the Council to issue the formal decision notice granting planning permission for the development on 5 March 2010. The grant of planning permission was subject inter alia to condition 11, which was in the following terms:

"(11) A detailed Drainage Design should be submitted to and approved by the Planning Authority in consultation with SEPA prior to development commencing. Post-development run-off from the site should not exceed the pre-development run-off rates for all return periods up to and including the 1 in 200 year storm event. The Drainage Design should include a sensitivity test showing that no built development or critical infrastructure would be affected by flooding during a 1 in 200 year storm event to satisfy SPP 7 requirements.

Reason: In the interests of public safety and amenity."

[33] The formal grant of planning permission was also subject to condition 23, which was in the following terms:

"(23) Unless otherwise approved in writing with the Planning Authority, no works shall start on site until an application has been submitted for the details of the proposed works adjacent to the south boundary and the culvert for Phase 1 to accommodate attenuation for the surface/ground water from this direction to the satisfaction of the Planning Authority in consultation with SEPA.

Reason: In the interests of amenity and to ensure water surface (sic)/ground water from outwith the application site is dealt with in terms of SUDS principles."

The Petitioners' Grounds of Challenge
[34] The petitioners argued that when the respondents came to consider whether formally to grant planning permission after the section 75 Agreement had been entered into, they were bound to have regard to the SPP because the reference to a precautionary approach in paragraph 202 amounted to a new material consideration. A material consideration in this context was one which, in the words of Jonathan Parker LJ in R (on the application of Kides) v South Cambridgeshire District Council [2003] 1 P. & C.R. 19 at paragraph 121, would tip the balance to some extent, one way or the other; it had to be a factor which had some weight in the decision-making process. Reference was made also to John G. Russell (Transport) Ltd v Strathkelvin District Council 1992 SLT 1001 and to section 37(2) of the Town and Country Planning (Scotland) Act 1997.

[35] In the course of the First Hearing there was some discussion, under reference to European Law and to what was said by Lloyd-Jones J in R (on the application of the Environment Agency) v Tonbridge, Malling Borough Council [2006] 2 P. & C.R. 29 at paragraphs 22 and 23, of what is involved in the application of a precautionary approach in the context of environmental law. The petitioners also have certain averments on the matter (apparently based on expert advice they obtained from Professor Jackson for the purposes of the present proceedings) in Statement XVIII of the pleadings. It may be noted also that Article 174(2) of the EC Treaty sets out the principles on which European environment policy is based. These include the precautionary principle. This principle apparently has its roots in what is described in German environmental law as the Vorsorgeprinzip. It means, according to Jans and Vedder in the 3^rd edition of European Environmental Law (page 37), that if there is a strong suspicion that a certain activity may have environmentally harmful consequences, it is better to act before it is too late rather than wait until full scientific evidence is available which incontrovertibly shows the causal connection. Jans and Vedder go on to say (on page 38) that the European Commission's guidelines make clear that the precautionary principle is all about risk management, which does not mean that all risks must be reduced to zero.

[36] Whatever part the precautionary principle or approach may have to play in European environmental law, the real question in the present case, as it seems to me, is whether the SPP, by its reference to the taking of a precautionary approach to flood risk in paragraph 202, introduced (as the petitioners say it did) a new material consideration. In my opinion, it is clear that the intention and effect of the SPP was not to make any substantive change in national planning policy in regard to the approach to assessing flood risk. Read in context, the change in language from "erring on the side of caution" to "taking a precautionary approach" was clearly intended to be one of expression as opposed to one of substance. As is explained in the SEA, it was evidently decided to make a slight alteration in the language used in this section of the policy in order to reflect the responses of certain consultees; their view apparently being that the wording of the policy should be strengthened "to emphasise a precautionary approach". In my opinion, this change was no more than textual or cosmetic; the intention was to express somewhat more emphatically the precautionary nature of the existing policy and not to introduce a new and different policy approach. It is notable that the surrounding text was left unaltered. It is significant also that the Scottish Government took no steps to consult on the change; had the intention been to introduce a substantive alteration to planning policy in this sensitive area it is inevitable that there would have been further consultation on the matter. Beyond the mere change in the words used, nothing was done to indicate that an important alteration in planning policy was being effected. It seems to me that SPP 7 already advocated a precautionary approach by its use of the words "err on the side of caution" and that the purpose of the amendment was simply to express this existing approach somewhat more pointedly. Accordingly, the change in the words did not reflect any material change in national planning policy. In the circumstances, I am not persuaded that there was a new material consideration to which the respondents required to have regard before they formally granted planning permission on 5 March 2010. The petitioners' first ground of challenge accordingly falls to be rejected.

[37] The petitioners' other ground of challenge relied heavily on the content of their second letter of objections dated 1 May 2009 (at a late stage of the First Hearing the petitioners' counsel said that he was content to rest this branch of their case solely on that letter of objection). In summary, the argument was that the Council had not properly addressed the various points raised in the letter in considering the planning application. In particular, the letter was said to have raised a number of concerns about the risk of flooding from various sources if the development went ahead. It was said to have drawn attention to the likely effects of the development on groundwater flows and the flood risk to which these effects would give rise. The assumptions made by Fairhurst (about the site's topography for example) in their investigations and advice were challenged. Uncertainties inherent in Fairhurst's approach were identified. The letter raised the likely presence of an aquifer on the site. The planning report failed to deal adequately with the concerns highlighted in the letter with the result that the Council had not had the opportunity properly to consider the issues which were of concern to the petitioners. Accordingly, material considerations had been left out of account and the planning permission could not be allowed to stand.

[38] In my opinion, there is no merit in any of these criticisms. The background to the respondents' consideration of the flooding issues raised by the planning application lay in the various investigations carried out by Fairhurst, to which I have already referred in detail. With regard to the possible effects of the development on groundwater on the site, it is worth recalling that the desk study report made reference to the BGS Groundwater Vulnerability map of Scotland. The report expressed the view that the flow of groundwater would be to the north-west. This was based on the general topography of the site and the flow of local surface water courses. The Geo-Environmental Interpretative Report also expressed the view that groundwater would flow to the north-west. Groundwater levels were considered and recorded in that report. The drainage impact assessment noted that there were high water-table levels across the site. It recommended that a sealed water drainage system should be used so as to ensure that no ground water entered the system. Reference was made to the likelihood of ponding from rising groundwater during periods of heavy rainfall. The view was expressed that water which collected in one of the ponds discharged below ground to the burn running in a north-westerly direction along the site boundary parallel to Tower Brae North. From all this it is clear that Fairhurst certainly had not ignored the question of groundwater in their consideration of matters.

[39] I turn then to look a little more closely at the terms of the petitioners' letter of 1 May 2009, on which this aspect of their case depends. The first point to note is that the letter does not refer to any flood risk to the petitioners' property at Barnview. It refers to residents in Cranmore Drive being "less than impressed" because they were presented with assumptions "having been flooded twice and living in houses with no home insurance". Cranmore Drive is situated at the other end of the site from Barnview. In several places the letter refers to discharge from the site into the Tower Brae burn; this too is at the other end of the site from the petitioners' property. The petitioners' contention in the letter is that the "mean site infiltration figure (presumably established following the 2007 geo-technical investigation) should be utilised to reflect site specific target discharge rates to Tower Brae burn". The 100 per cent contribution suggested by Fairhurst from the site to the Tower Brae burn is questioned. The petitioners say that the drainage proposals may redirect the natural migration of groundwater into Tower Brae burn. The letter also states that the high and uneven water table and the evidence of the ponds suggests to them that an aquifer is present on the site. Overall, it is clear that the thrust of the petitioners' objections in the letter of 1 May 2009 concerned a risk of flooding resulting from water being directed away from Barnview towards Cranmore Drive and the Tower Brae burn.

[40] I have already explained the steps which the planning officer took in response to the petitioners' letter. In particular, he received a detailed response to it from Fairhurst in their letter of 3 July 2009. That response is summarised in paragraph [13] of this Opinion.

[41] In my opinion, it is clear that the petitioners' objections were adequately summarised and addressed in the planning report. It is worth noting that the report explained, in paragraph 3.2, that all the letters containing representations were available to elected members before the meeting. Paragraph 3.3 set out the main concerns of the objectors. The first of these was stated to be flooding. The report summarised the concern as being an increased risk of flooding "to houses at Cranmore Drive, Smithton from flooding of Tower Brae burn". This section of the planning report then went on to record that there were objections to the drainage assessment as it had not identified the areas which exhibited ponding. Nor had the assessment provided flow figures for those areas identified as being routed to the Tower Brae burn. The flow monitoring recommended by SEPA had not been carried out with the result that figures representing external waters, intended to be directed to Tower Brae burn via man made ponds, were not included within the submitted calculations.

[42] Having summarised (accurately in my view) the petitioner's objections, the planning report then went on to explain the consultations that had taken place with TEC Services and SEPA. The purpose of the drainage strategy was explained in detail. The flow monitoring proposals were also explained. Then the planning report set out the applicants' responses to the objections. This section contained an accurate account of the contents of Fairhurst's letter of 3 July 2009. It was also explained that Fairhurst's Technical Director had met with TECS Area Roads staff to discuss the SUDS proposals. The TECS personnel were satisfied with the proposals and with the design calculations contained in the drainage impact assessment. It was considered appropriate that a planning condition should be imposed requiring further detailed studies and designs in relation to drainage infrastructure. The report expressed the view that the information provided to date by Fairhurst confirmed that the proposals were feasible and that satisfactory drainage arrangements could be provided for the development. Section 7 of the planning report contained a lengthy and detailed appraisal of the planning issues. The drainage proposals were evaluated and the view was expressed that the approach taken was in line with common practice. In paragraph 7.14 the flooding concern raised by the petitioners was addressed. It was noted that the road culvert in the Tower Brae burn had been replaced to minimise the risk of debris blockage.

[43] With regard to the petitioners' comments in their letter about the presence of an aquifer, this issue was the subject of specific investigation at the request of the planning officer in response to the letter of 1 May 2009. As I have already explained, the advice received from Fairhurst and summarised in the planning report was that there was no evidence of an aquifer being present on the basis of the investigations undertaken on the site or from the site investigation studies. In any event, the proposed development would affect only the shallow sub-soils; any aquifer would be at a deeper level. Counsel for the petitioners argued that there was a fatal inconsistency between these views and what had been said in the Desk Study Report about an aquifer. I accept that it is possible to describe the Desk Study Report as a "site investigation study" and, to that extent, Fairhurst's letter of response of 3 July 2009 may not have been perfectly expressed. But the real point of the response was to offer reassurance that, even if there was an aquifer, it would be at a depth which meant that it would be unaffected by the development. In my view, there is no fatal inconsistency in regard to this issue and the issue was adequately explained in the planning report.

[44] In considering the validity of the petitioners' arguments on this branch of the case, it seems to me to be important to recall the observations made in the well-known case of Oxton Farms, Samuel Smith Old Brewery (Tadcaster) v Selby District Council, Persimmon Homes (Yorkshire) Limited (Court of Appeal, unreported, 18 April 1997). Pill LJ observed, in his conclusion, that a report from a planning officer to a planning committee should not be construed as if it were a statute. What had to be considered was the overall fairness of the report. It also had to be borne in mind that there was usually further opportunity (as there was in the present case) for advice and debate at the relevant council meeting. Judge LJ (as he then was), in a concurring judgment, expressed the view that an application for judicial review based on criticisms of a planning officer's report would not normally begin to merit consideration unless the overall effect of the report significantly misled the committee about material matters which were thereafter left uncorrected at the meeting of the planning committee before the relevant decision was taken.

[45] In the circumstances of the present case, I consider that all the relevant flooding issues were presented to the Council in the planning report in a manner that was entirely fair in an overall sense. Consideration had been given by Fairhurst to the groundwater conditions on site and the implications of the proposed development for flooding from groundwater. Fairhurst's views and their drainage strategy were adequately explained in the planning report. The main concerns of the objectors were summarised in the report. Reference was made to the alleged increased risk of flooding to houses in Cranmore Drive from flooding of the Tower Brae Burn. It was explained also that the drainage assessment was objected to on a number of grounds, including that it had not identified the areas where ponding occurred. Fairhurst's responses to the various points of objections were set out in considerable detail in the planning report. The report contained, in my opinion, an appraisal of the issues that was (at least) adequate for the purpose of allowing the elected members to give fair and proper consideration to whether to grant the planning application. Finally, it may be noted that proposed condition 23 was designed to ensure that groundwater as well as surface water was properly dealt with in terms of SUDS principles. I can see nothing wrong with that solution; it is common practice for such issues to be dealt with by means of conditions.

[46] In the circumstances, I am not persuaded that the respondents failed to give adequate consideration to any of the objections taken by the petitioners. The petitioners' second ground of challenge must also, therefore, be rejected.

Mora, taciturnity and acquiescence
[47] Having rejected both the petitioners' grounds of challenge, there is strictly no need for me to consider the arguments advanced by the respondents and the interested parties on mora, taciturnity and acquiescence. In deference to the submissions made on these issues, I will briefly give my views, however.

[48] Firstly, I shall summarise the relevant history of events. This was set out in detail in a timeline produced by the petitioners and referred to at the First Hearing. After the Council's resolution to grant planning permission on 23 September 2009, the petitioners consulted solicitors about the prospects of successfully bringing a petition for judicial review, but they received negative advice. After the formal notice granting planning permission was issued on 5 March 2010, the petitioners again sought legal advice with a view to challenging the decision. They experienced some initial difficulties in finding a solicitor who was willing to act on a legally-aided basis, but in about April 2010 their present solicitors accepted instructions. In May 2010 the petitioners advised the respondents and the interested parties that they intended to seek judicial review. In May and June 2010 the petitioners applied for legal aid. Thereafter the petitioners wrote regularly to the respondents and the interested parties to keep them informed about progress of the legal aid application and the obtaining of expert evidence. The petitioners were advised to seek expert advice from Professor Jackson. His final report did not become available until October 2010 (an earlier draft was provided to the respondents and the interested parties). Thereafter legal aid was eventually granted on 25 January 2011. The petitioners brought the present proceedings soon after that.

[49] In these circumstances, the question arises as to whether, for the purpose of considering the question of delay, time started to run from the date of the Council's resolution on 23 September 2009 or from the date of the formal notice on 5 March 2010. In Simpson v Aberdeenshire Council 2007 SC 366 an Extra Division took the view inter alia that the starting point in such circumstances was the date of the decision of the planning committee to refer the matter to the head of planning for full approval and not the date of actual grant. The point does not appear to have been fully argued and the issue was not explored in any detail in the judgments. The court considered that it would have been open to the petitioner to have raised proceedings for judicial review immediately after the earlier decision, seeking interdict, declarator and reduction. That is, of course, correct (and was not questioned in the present proceedings), but it does not necessarily follow that because the earlier resolution was capable of being challenged, failure to do so should prevent the later decision being made the subject of proceedings for judicial review.

[50] Prior to the decision in Simpson the point had been the subject of detailed analysis by the House of Lords in R(Burkett) v Hammersmith and Fulham London Borough Council and another [2002] 1 WLR 1593. Unfortunately, this case was not cited in Simpson. In Burkett the House of Lords held that the grounds for judicial review first arose on the date when planning permission was actually granted and not on the earlier date when the planning authority had resolved to grant permission subject to the completion of the equivalent of a section 75 Agreement. In a closely reasoned speech, with which the other members of the Appellate Committee (including Lord Hope of Craighead) agreed, Lord Steyn explained that the resolution itself created no legal rights and was revocable by the planning authority. Until the actual grant of planning permission the resolution had no legal effect and might come to nothing if circumstances changed. Properly understood, the resolution was not a juristic act giving rise to rights and obligations. Policy considerations favoured time running from the date of actual grant: (a) that date was easily ascertainable and avoided giving judges the broad discretionary task of retrospectively assessing when the complaint could first reasonably have been brought; (b) simplicity and certainty should be preferred to complexity and uncertainty; and (c) it was unreasonable to burden an applicant with the onerous task of commencing proceedings for judicial review when the resolution might never take effect and to subject him to the uncertainty of a retrospective judicial decision as to the date of the triggering of the time limit. For these reasons, time should start to run from the date of the actual grant of planning permission.

[51] In a short concurring speech, Lord Slynn of Hadley thought it to be clear that because someone failed to challenge in time a resolution conditionally authorising the grant of planning permission, that failure did not prevent a challenge to the grant itself, if timeously brought. For the grant not to be capable of challenge because the resolution had not been challenged in time would wrongly restrict the right of the citizen to protect his interests.

[52] Similar reasoning can be seen in the judgment of Pill LJ in R (on the application of Catt) v Brighton and Hove City Council [2007] 2 P. & C.R. 11 where his Lordship held that an earlier screening opinion by a local authority, while it possessed a formality and status in the statutory planning scheme and could itself be challenged, did not affect the right to challenge a subsequent planning permission.

[53] In my opinion, Lord Steyn's reasoning in Burkett is compelling and I would have been minded to follow and apply it had I been free to do so and had it been necessary to decide the point in the present case. It seems to me (with respect) to be clearly correct to regard the actual grant of planning permission as a meaningful decision which is susceptible to being challenged in its own right; and it appears to me also to be wrong to say that because an earlier decision might have been challenged that should per se defeat the right to challenge the later one. It is, I think, important to recall that the resolution is, in principle, a conditional decision which may never take effect and could be recalled by the planning authority should circumstances change. Bearing that in mind, it might be said that a challenge to such a conditional decision would be vulnerable to a defence of prematurity. In my opinion, there is no principled reason why a petitioner should be compelled to challenge the earlier conditional decision under penalty of losing his right to challenge the subsequent formal grant of planning permission. The policy considerations of certainty and simplicity relied on by Lord Steyn also appear to me (with respect) to be attractive and convincing.

[54] Counsel for the petitioners drew attention to the judgement of the European Court of Justice in Lesoochranárske zoskupenie VLK v Ministerstvo ivotného prostredia Slovenskej republiky (Case C - 240/09) in which it was confirmed that the provisions of the Aarhus Convention had to be regarded as an integral part of the legal order of the European Union. Article 9(3) of the Aarhus Convention was intended to guarantee to citizens of the European Union an effective right of access to national courts for the purpose of challenging inter alia acts and omissions of public authorities which contravened provisions of national law relating to the environment. In paragraph 46 of its judgement the Court of Justice emphasised that the provisions of Article 9(3), although drafted in broad terms, were intended to ensure effective environmental protection. In paragraph 50 the Court went on to say that it was for national courts to interpret national law in a way which, to the fullest extent possible, was consistent with the objectives laid down in Article 9(3) of the Aarhus Convention. It seems to me that it would run counter to the policy (reflected in Article 9(3)) of maximising citizens' rights of access to the courts in the sphere of environmental law to have a rule which in effect required a petitioner to challenge a conditional resolution of a planning authority under pain of losing the right to challenge the later substantive grant of planning permission which had a concrete impact on his rights.

[55] In the circumstances of the present case, I would have been disposed to hold (had the point been a live one) that the petitioners were not barred from pursuing the petition by reason of mora, taciturnity and acquiescence. They acted promptly to seek legal advice after planning permission had been granted; they kept the respondents and the interested parties informed about the progress of their challenge; they did not delay in taking steps to obtain the evidence necessary to support a legal aid application; and once legal aid had been granted, they raised the proceedings quickly. Looking at the detailed timeline produced for the First Hearing, it discloses a picture of intensive activity on the part of the petitioners and their lawyers in seeking to build up their case and take it forward after planning permission had been granted on 5 March 2010. I would have found it impossible, in these circumstances, to have inferred that the petitioners had acquiesced in the grant of planning permission. In my opinion, they cannot be taken to have become barred from challenging that particular decision because of their failure to challenge the earlier resolution.

[56] The final point taken on behalf of the interested parties at the First Hearing was to the effect that the first petitioner was personally barred from insisting in the present proceedings because he had renounced his interest as a tenant of certain commercial units on the development site in return for payment of the sum of £5,000 and his legal expenses. He agreed to renounce the tenancies in early 2010 in the knowledge that the purpose of his doing so was to allow the landowners to give vacant possession of the development site to the interested parties. This conduct on the part of the first petitioner was said to constitute waiver (or perhaps amount to personal bar) in the well-known sense discussed by Lords Fraser and Keith in Armia Ltd v Daejan Developments Ltd 1979 SC (HL) 56. The first petitioner, it was argued, could have held up progress of the development by several months by refusing to renounce his tenancies. Instead he chose to accept money in return for moving out. In the circumstances, the inference should be drawn against the first petitioner that he had unequivocally abandoned his right to challenge the planning permission authorising the development to go ahead.

[57] I am unconvinced by this argument. It should be recalled that the first petitioner would, in any event, have been obliged to vacate the units when his leases of them were due to come to an end in January 2011; effective notices to quit could have been served on him by the landowners at that time. By agreeing to renounce the tenancies somewhat earlier the first petitioner chose to give up his legal rights in consideration for payment of a sum of money. He did so at the behest of the interested parties, who wished to obtain vacant possession of the land. I can see no basis for inferring from this commercial arrangement an acceptance on the part of the first petitioner that the planning consent was valid or a surrender of his right to challenge it. In my opinion, this line of argument is misconceived.

Result
[58] In the result, I shall sustain the sixth, seventh and eighth pleas-in-law for the respondents and the fifth and sixth pleas for the interested parties, repel the petitioners' plea and refuse the petition. I shall reserve all questions of expenses.