Supreme Court case considering whether the Scottish Ministers had given adequate reasons for their decision to approve the Fife Structure Plan with modifications; Ms Uprichard arguing that the reasons given by the Ministers had not adequately addressed her objections to proposed modifications to the plan.

 In brief, the essence of Ms Uprichard’s objection was that the modifications to the plan did not contain any modification to the strategy within the plan that St Andrews should become an economic driver for Fife (by significantly expanding the town). In support of her contention that there should have been such a modification, she referred to both a 1998 study which asserted that St Andrews was “at its landscape capacity” and to the “Grant Report” which concluded that there was limited scope for development.

Amongst the reasons given by the Ministers for not modifying the structure plan on the basis of objections such as those given by Ms Uprichard, was “reason 33” to the effect that the Grant Report had indicated that there was some scope for development (subject to mitigation) to the west of St Andrews. Ms Uprichard argued that this did not address her objection (which she claimed was that the available capacity could not accommodate the scale of the planned development rather than that there was no capacity for development). Ms Uprichard’s arguments were rejected in the Inner house and her appeal to the Supreme Court was also dismissed.

The assertion that St Andrews was at landscape capacity appeared in Ms Uprichard’s’ letter of objection and reason 33 addressed objections of that general tenor by referring to the finding of the Grant Report that there existed some scope for development to the west of St Andrews. The broader point made by Ms Uprichard that the scale of development envisaged in the structure plan would damage the landscape setting of the town was addressed by the substance of further reasons given by the Ministers. The Supreme Court found that the reasons given, when read as a whole, provided an intelligible explanation to a well-informed reader such as Ms Uprichard as to why the Ministers were not persuaded by her objections.

The full judgement is available from the Supreme Court here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Inner House case considering an appeal by Bagmoor against a decision of the Scottish Ministers to adopt the recommendation of their reporter and reject Bagmoor’s planning application for a 14 turbine wind farm at Stacain near Inveraray in Argyll.

The site lies within Glen Etive and Glen Fyne Special Protection Area which was created to protect golden eagles and the reporter’s recommendation to reject the application was based primarily on the effect the wind farm would have on the eagles.

In essence Bagmoor’s appeal was based on their complaint that the reporter had not given adequate reasons for his decision. This was rejected by the Inner House which found that on each substantive or determining issue the reporter had given intelligible reasons for his decision and refused Bagmoor’s appeal.

Procedure
Central to the decision was the procedure to be followed under Conservation (Natural Habitats etc.) Regulations 1994 (SI 1994 No 2716), which implement the Habitats (92/43/EEC) and Birds (2009/147/EC) Directives. Regulation 48 requires that an appropriate assessment is carried out as regards plans which are likely to have a significant effect on a European site (in this case, the Glen Etive and Glen Fyne SPA). This involves a two stage procedure, the first stage being a preliminary examination to determine whether an appropriate assessment requires to be carried out. The second stage is a detailed assessment of the plans. If plans can be clearly carried out without an effect on the site, there is no need for the more detailed assessment. The court had the following to say on the matter:

 “There is no prescribed formula as to how the two stage exercise contemplated by regulation 48 and the Court of Justice is to be carried out. There are several ways in which it might be done in the context of domestic planning legislation and, no doubt, the precise form will depend upon a range of facts and circumstances, including the nature of the permission sought and the conservation objectives to be protected. However, with an application such as the present, at least by the time the respondents elect to call it in and order a public inquiry, it ought to be made clear, at least in the normal case, that any preliminary examination stage has been passed and that what is to be carried out at the inquiry is an “appropriate assessment” in terms of regulation 48(1)(a). Public inquiries are not held in order to undertake preliminary examinations.

It may just be possible, in a rare case, for the respondents to order an inquiry yet leave it to the reporter to decide whether an appropriate assessment is required. If that were done, the first “screening” stage ought to take the form of a preliminary examination undertaken (or the form of which could be agreed) at a pre-inquiry meeting and before any assessment is embarked upon. What should not occur, as happened here, is that the reporter carry out a detailed assessment and then decide that such an assessment was required before re-assessing the same evidence to reach a substantive decision. Put another way, there was no point in the applicants adducing a body of detailed evidence and then inviting the reporter to determine whether there was any need to adduce it.”

The reporter’s decision
In coming to his conclusion the Reporter had taken account of evidence of displacement of eagles from another wind farm at Beinn Ghlas. Bagmoor argued that this evidence was too qualified or limited in character to justify a finding either that eagle’s occupation of  Beinn Ghlas had been affected by  the wind farm, or that a wind farm at Stacain would cause a similar abandonment. However the court noted that, in terms of the legislation, the reporter required to recommend approval of the application only if he could be “certain”, that the plan would not adversely affect the SPA’s integrity. In these circumstances, it had been sufficient for the reporter to find that the evidence left open the possibility that a wind farm at Stacain would lead to abandonment of part of the site by the eagles. The reporter had not therefore required to resolve every aspect of the evidence or every subsidiary issue relating to the site at Beinn Ghlas.

Bagmoor also objected to the reporter’s consideration of evidence from Scottish Natural Heritage that eagles had 99% chance of avoiding a collision with the turbines and the contribution that “behavioural displacement” (i.e. the eagles moving away from the wind farm site to avoid collisions) made to that figure. However, it was common ground the eagles would tend to shy away from use of the wind farm and that constructing the wind farm would represent a loss of foraging ground. The court found that the reporter’s reference to the 99% avoidance rate in this context was simply confirmation of what had already been clear and had been ascertained during his screening exercise. The displacement of the eagles had been “effectively confirmed” by that rate.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House case concerning an appeal by the City of Edinburgh Council against the decision of a reporter appointed by the Scottish Ministers.

The case relates to a listed tenement near the junction between Ferry Road and Newhaven Road in Edinburgh.  The owner of the property sub-divided the principal front room (with stud partitions) to create two bedrooms and a corridor without obtaining listed building consent.

The Council served an enforcement notice on the owner requiring re-instatement of the room to its original condition.  The owner appealed against the enforcement notice contending that: (1) listed buildings consent was unnecessary; or (2) that the consent should nevertheless be granted. In support of the second argument the owner pointed to the fact that the alterations came to light when he had made an HMO (Houses in Multiple Occupation) application for the property as a result of being accepted by the Council’s Adult Resource Team to provide supported lodgings for vulnerable adults. The reporter rejected the owner’s first contention but accepted his second contention (attaching considerable weight to what he called the “special needs argument” and noting that the changes were easily reversible) allowed the appeal and quashed the enforcement notice subject to the condition that the partitions be removed and the property be returned to its original condition when it ceased to be on the Council’s register of supported accommodation for vulnerable adults. The Council appealed to the court.

Lord Tyre refused the appeal. The appropriate starting was section 14(2) of the Planning (Listed Buildings and Conservation Areas) (Scotland)  Act, which requires the reporter to have special regard to the desirability of preserving the building or any features of special architectural interest which it possesses. It also creates a presumption against the granting of listed building consent in respect of alterations which have an adverse effect on the special interest of the building. Reading the decision letter fairly and as a whole, Lord Tyre found that the reporter, having identified the correct starting point, proceeded to assess whether there were considerations of sufficient force to overcome the presumption against alteration. His reasons for deciding that there were such considerations were clearly explained.  So far as the adverse effect is concerned, the reporter concluded that the external visibility of the subdivision was negligible and that the works were easily reversible without damage to internal decorative features. He regarded this “modest” impact on the building as outweighed by what he described as the special needs argument put forward by the property owner.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Back in Victorian times, when our railways were booming, something was needed to line the side of our many and burgeoning miles of track. The well intentioned Victorians looked to a solution from abroad. Fallopia japonica grows and covers the ground extremely quickly, is capable of tolerating a very wide range of soil types and is extremely hardy.  Unfortunately, and with the benefit of hindsight, we now know to our cost that the introduction of Japanese Knotweed (to use its common English name) was a mistake. In its native Asia, it is kept in check by fungus and insects. However, in the UK, those Asian species do not exist and the Knotweed’s expansion can continue unchecked.  Not only does it strangle and suffocate our native flora, it grows through walls, tarmac and concrete damaging property and buildings and reducing its value.  Without its natural controls, standard weed killers are hopelessly inadequate and Knotweed takes over its environment leading to it now being listed as one of the world’s 100 most invasive species.

When Donald Trump first announced his plans to build a golf course at Menie, I can only imagine the politicians’ eyes lighting up at the prospect of such substantial potential inward investment in Scotland. The then First Minister Jack McConnell immediately pushed for Trump to become a Global Scot and Alex Salmond, both as the local MSP and also the succeeding First Minister, continued to “court” Mr Trump.   This is not surprising. The politicians would not be doing their job if they did not encourage investment in our country. And billionaire, Donald Trump certainly had the potential to do a lot of good for the financial well being of the area. However, after watching Antony Baxter’s “You’ve been Trumped!” documentary, I, like many others, am beginning to wonder whether that investment may have come at too great a cost.  It appears that Mr Trump is not a man who likes to be told “no” nor put up with anything in a way other than the way he personally wants it. As Mr Trump’s demands increase, and his dissatisfaction with the extent to which the Scottish Government is prepared to continue rolling the red carpet out for him and enforce planning requirements to comply with his desires[1], I suspect that the politicians too may be starting to wonder just what has been unleashed on our country.

I should mention early on that my purpose here is not to question the merits of the decision to grant planning permission for Mr Trump’s golf course.  Although I don’t pretend to know the Menie area well, a development on the scale of Mr Trump’s scheme on a Site of Special Scientific Interest must bring with it considerable benefits to justify the environmental and other costs. However, on the face of it, the Trump plans have enormous potential to benefit the area and, in any event, that decision has now been taken. All major developments have winners and losers.  Recent examples of the difficult balancing act involved in such decisions can be seen from proposed developments such as the Aberdeen Bypass, the Forth replacement crossing, the Borders railway project and the new Portobello High School.  Our planning system is there to ensure that, where there are losers, the greater good justifies any detriment suffered by individuals.

Where there are losers, their loss (whether it is the loss of their property or the loss of amenity value in that property) can, on a personal level, be considerable.  It is important that such people are treated fairly. Watching the documentary, the most striking thing for me is the treatment of those losing out.  Property disputes (especially boundary disputes) are perhaps second only to matrimonial disputes in terms of the acrimony and vitriol they cause. It is not surprising when disputes become inflamed.  However, in this case, in terms of resources available to the protagonists, I‘ve never seen such a one sided dispute. David and Goliath does not do it justice.  Resources should not determine a property dispute but in this case there are worrying signs that Mr Trump’s vast wealth and consequent power and influence have been able to subvert the law. This, for me, is the most worrying aspect of the case.

The documentary highlights a number of disputes between Trump International Golf Links and its neighbours.  Andy Wightman spoke very well on the issues in the documentary and has written an excellent report on the controversy surrounding the golf course here.

The attitude of the company towards the boundary disputes is particularly concerning to me.  I felt very sorry for Mr Forbes as he waved his title deeds in futility at the police while Trump International’s diggers moved in to move his fishing nets and drying equipment from land they claimed belonged to them.  The police, however, were unable to help him. It was a civil dispute and they could not intervene. This is true and I would not expect the police to do or say anything else. But I would also not have expected the police to have been there in the first place.   In a letter to Andy Wightman from Grampian Police[2] it is explained that the police were there in response to a call stating that protestors were present. There were no protestors and the police just happened to be present when Trump International’s diggers moved in.

A few weeks earlier Mr Forbes had taken some unilateral action of his own. Trump International had placed some wire marker flags indicating their interpretation of boundary between the properties. Mr Forbes, believing them to be on his property, removed the markers and placed them in a pile. When the police arrived to investigate, Mr Forbes showed them the pile and said that Trump International were welcome to recover them. In this situation the police did feel able to act. Mr Forbes was charged with theft (although the charges were later dropped). Now I’m not convinced that this was theft[3], but I wonder if Grampian Police also considered charging Trump International with the same crime in respect of the removal of the fishing nets a few weeks later.

The boundary dispute with the Milnes was similarly one sided. Trump International’s lawyers wrote to the Milnes stating that their clients advised that a fence and part of a shed was on their land. In the letter they offer no justification for their client’s views but merely demand removal (of what appears in the film to be more garage than shed) within 72 hours under threat of court action. Perhaps the Milnes should be glad Trump International did not just move in and demolish the garage. However, demanding demolition of the garage without justification seems to suggest complete contempt for any need to investigate the correct legal position. They also advise that their clients will re-erect the fence “along the legal boundary” of the property. For which we should probably read: ‘along our client’s interpretation of the boundary’. I’m not sure whether court action ever took place about the garage but Trump International did reposition the fence where they saw fit (cutting off the Milne’s electricity in the process) and then issued the Milnes with a bill for nearly £3k. As it turns out, Trump International’s interpretation of these boundaries appear to be somewhat dubious[4].

In both of these cases Trump International’s approach was to act to enforce its own interpretation of the boundaries with neither dialogue nor even the offering of legal justifications for its actions to its neighbours. This is dangerous. If we were all to act in this way, the country would quickly descend into chaos. Disputes would escalate, tempers would become inflamed and we run the risk that the situation would degenerate into some sort of civilian trench warfare. Why then does Trump International feel able to act in this way?  Usually, it is inadvisable for a potential protagonist in a boundary dispute simply to act on his or her own inclinations because:

1. their inclinations might be wrong and lead to an expensive damages claim from the neighbours;
2. acting unilaterally will inflame the situation and potentially destroy any relationship they have with the neighbour; and
3. there is nothing to stop the neighbours doing exactly the same and reversing whatever the other party has done leading to… nothing other than unnecessary expense on both sides as they both act unilaterally ad infinitum.

If an amicable solution to a boundary dispute cannot be found, you would expect one party’s lawyer to write to the other party or their lawyers advising them of their clients concerns and the legal justification for those concerns. The opposing party or their lawyer will put forward their argument, then, either agreement will be reached based on the relative strength of the opposing legal arguments, or the parties will go to court to contest those arguments. Trump International’s lawyers simply wrote to the neighbours advising them of their client’s thoughts on the position and telling them of their client’s intended unilateral action based on those opinions. When you act for Trump International it very much appears that the law (or anyone else’s interpretation of it) is irrelevant.

Why were they able to do this? Let’s face it, (1), (2), and (3) are of little or no concern to you if you have the resources of Trump International (and its apparent contempt for its neighbours). Of course, in the normal world, when one party is busy taking their unilateral action, the other party may be busy taking unilateral action of its own and undoing all that the first party is doing. This has the potential to lead to frustration and an escalation of the dispute.  In this case, even if they were prepared to go tit-for-tat with the might of Trump International and its security force, (and this is where it gets sinister) there was a further deterrent. It appeared to Trump International’s neighbours that Grampian Police had begun acting on behalf of Trump International. The Police of course deny acting in a partial manner but, where they have chosen to turn up and take action, it invariably seems to have been to the benefit of Trump International.

One of the most disturbing incidents in the documentary is the police arrest of Antony Baxter and Richard Phinney. The film makers had gone to put questions to Trump International after reports that the company had cut off water to its neighbours (including an 85 year old lady) with no indication as to when it would be reconnected. Following some discussion with the green keeper at the estate office they left and went to the house of one of Trump International’s neighbours to conduct another interview. During the interview, the police arrived, told the film makers to stop filming. When asked why, one of the officers physically restrained Mr Baxter, forced him to drop the camera, handcuffed him and put him into the back of the police car. Mr Phinney was also asked to get in the car and the pair were advised that they were being detained under s14 of the Criminal Procedure (Scotland) Act 1995[5].  They were detained at the police station for 4 hours and charged with committing a breach of the peace, Grampian Police having received a report (it seems to have come from the green keeper interviewed) that a breach of the peace had occurred at the estate office. Section 14 allows detention where the police have “reasonable grounds for suspecting that the person has committed an offence”. That is all very well but, as I write this, my neighbour’s music is causing Jurassic Park style ripples in my coffee and rendering the ringer on my phone all but inaudible. I may nip down and ask him to drop the volume a notch. I would hope not to be cuffed and bundled off to St Leonards Police Station shortly afterwards if he complains about my visit. But would that be a legitimate concern if he takes exception to my request and turns out to be wealthy and influential?

Police presence and intervention or not, the legal solution here is that Trump International’s neighbours could of course take court action themselves. Commencing legal action against such a formidable opponent with such vast resources does take considerable courage but, if the position were legally correct, one would expect the courts to enforce it.  The problem is that Trump International can afford to gamble as, to a company of that size, there are no damaging repercussions if it were to lose (what to the company is) a small scale court case.  In this situation there is therefore little or no deterrent to unilateral action on a whim.  It makes me wonder whether this is an area we should be looking at further. Should there be more in the way of a legal deterrent to such unilateral action?

The planning system is treated in much the same way by Trump International as its neighbours. When it was refused planning permission (by Aberdeenshire Council), Trump International choose neither to resubmit it’s application nor follow the appeal process. It merely threatened to walk away. (Although, as fortune would have it, somewhat unusually, the Scottish Government decided to call in the application before a decision letter was issued).  The company’s attitude appears to be that it does not negotiate or compromise. Its proposals are on a ‘take it or leave it’ basis. Which is fine but, where ‘taking it’ involves bending or breaching laws, the situation becomes dangerous.

Unsurprisingly, the company also appears to have paid little attention to the planning permission it did obtain. Where Donald Trump decided he not want to see his neighbours houses, large mounds of earth were constructed around them without planning permission. As Mr Trump says in the documentary: “You know what? Who cares? It’s our property. We can do what we like with it.”

Whether it is boundary lines, planning consents or breaches of the peace, the recurring theme here appears to be that what Mr Trump and Trump International say tends to be accepted without question to such an extent that they and those acting for them no longer feel the need to offer justification for their assertions.

At every turn, if he doesn’t get exactly what he wants, Donald Trump says he will take his money and go else where.  However, we should remember Mr Trump is not acting from purely altruistic motives here. He is doing this to make more money (and possibly also to further enhance his own ego). However, even  if it were a purely philanthropic act and Mr Trump’s golf development was the best thing that could happen to Scotland, he can not be allowed to trample all over our laws and our people in order to make it happen.  The damage caused by allowing him to do that is much greater than just the financial damage caused if he did stop and go elsewhere.  When the original planning application was first refused by Aberdeenshire Council, George Sorial, the Trump Organisation’s Director of International Development was asked what sort of message it sent out to the rest of the world.  He said that it sent out “a devastating message: that if you want to do big business, don’t do it in the north-east of Scotland.”

However, we should also consider the dangers of the alternative. What sort of message does it send out to the rest of the world if we allow big business to side-step our laws and procedures? You can do what you like, when you like, to whomever you like so long as you have enough money?

There are not many people with the perceived wealth and power of Donald Trump. However, there are many who share his aspirations and, were we to send out this message, we may find that we have a rapid expansion of inward investment. Unfortunately, we may also find that it strangles and suffocates those it comes into contact with. Even worse, we may also find that it undermines, damages and devalues our laws, procedures and the institutions that enforce them.

Scotland has a proud tradition in treating people equally. Whether ‘we are all Jock Tamson’s bairns’ or ‘a man’s a man for a’ that’, the principle is that the ‘wee man’ has as much right to protection of his interests and property as the ‘big man’.  The documentary “You’ve been Trumped!” may only be one side of the story but the events on the Menie estate raise a number of questions as to the adequacy of our law, our procedures and the enforcing institutions in protecting the principle of equality. It is time for these questions to be looked at and, more importantly, answered.

Outer House case in which the Cairngorms Campaign and others  sought reduction of a decision by the Cairngorm National Park Authority to adopt the Cairngorm’s National Park Local Plan. In particular they complained about the adoption of development policies in the Local Plan which made provision for developments at Nethy Bridge (40 dwelling houses and business units),  Carrbridge (up to 117 dwelling houses), An Camas Mòr  (1,500 dwelling houses) and  Kingussie (300 dwelling houses).

In a lengthy decision Lord Glennie rejected the campaigner’s arguments finding that, in adopting the Local Plan, the Park Authority had neither acted unlawfully or illegally (in the Wednesbury sense – i.e. it had not reached a decision that no reasonable person in that position properly informed of the facts could have reached) nor had it failed to give adequate reasons for its decision, the reasons given for the decision being clear. In coming to his decision, Lord Glennie also rejected a number of more specific arguments made by the campaigners.

An important issue considered in the judgement was the Park Authority’s departure from the reporter’s recommendations following the public inquiry.  The Local Plan was implemented under the previous planning regime (which allows for wider discretion to depart from a reporter’s recommendations following an inquiry than under the new planning regime).  In that respect this case can be contrasted with recent case, Tesco Stores Ltd v Aberdeen City Council (11 October 2012) which demonstrates the stricter rules which apply where a planning authority departs from a  reporter’s recommendations under the new planning system.

The full judgement is available from Scottish Courts here.

(See also appeal to Inner House here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

(The campaigners have since lodged an appeal.)

Inner house case in which Tesco sought to have the Aberdeen Local Development Plan quashed. Tesco had obtained planning permission and was intending to open a superstore on a site at the former Woodend Hospital Annexe on Rousay Drive in Aberdeen.  Morrisons had also obtained planning permission to develop a store on a site nearby at the former Summerhill School.

Tesco contended that the Council had acted unlawfully when it adopted the Local Development Plan as the plan allowed for the possibility for there to be two superstores in west Aberdeen. In his report  on the plan, the reporter had been concerned not to open up the opportunity for two stores in the area and the council must have been aware, at that time the plan was adopted, that the Woodend development was proceeding. In adopting the plan therefore, Tesco argued that the Council had contradicted the reporter’s recommendations.

The court refused Tesco’s application. It noted that the reporter’s report must be based on the material presented to him before completing his examination and it was only on the basis of that material that the reporter could propose modifications to the Plan.  The planning authority could only refuse to make modifications recommended by the reporter in very limited circumstances (i.e. that the reporter had reached an unreasonable conclusion on the material before him.)

In this case the reporter had recommended making no modifications to the proposed Local Development Plan in respect of the Woodend or Summerhill sites and there was no basis on which the Council could have altered the plan.

The full judgement is available here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Supreme Court decision considering an appeal from the Inner House in respect of a challenge to the schemes and orders made by the Scottish Ministers (under the Roads (Scotland) Act 1984) to allow construction of an Aberdeen bypass.

The bypass, as initially promoted by the Ministers, had its origins in a regional transport strategy published in March 2003 which, in addition to the bypass, had also considered various other proposals for reducing congestion in Aberdeen.  The Ministers decided to undertake the bypass. However, in December 2004, following a campaign against the routing of the bypass via Murtle of Camphill, previously discarded options were reconsidered and became part of a public consultation. Prior to making a decision the Minister for Transport, commissioned a report on an option which was a hybrid of two of these previous options.  That hybrid option (known as the Fastlink) which linked Stonehaven to the bypass was adopted (in December 2005) on the grounds it would also reduce congestion between Stonehaven and Aberdeen on the A90. The ministers then published Environmental Impact Assessments (EIAs) on the basis that the scheme fell within the scope of the Environmental Assessment Directive.

Following objections from Mr Walton[1] and others, a public inquiry was held into environmental and technical issues concerning the bypass. However it did not consider the more fundamental question of whether the bypass should be built at all.  Litigation then followed through the courts.

In the Supreme Court, Mr Walton’s primary contention was that the Fastlink was adopted without the public consultation required under the Strategic Environmental Assessment Directive[2].  Mr Walton also argued that common law principles of fairness required that the public inquiry should have considered the (economic, social or strategic) justifications for building the Fastlink.  Although Mr Walton only sought to quash the schemes and orders in so far as they concern the Fastlink, the Ministers maintained that if the schemes and orders were to be quashed to any extent, the scheme for the bypass would fall as a whole.

Requirement for a Strategic Environmental Assessment
In coming to its conclusion, the court took account of the differences between EIAs and Strategic Environmental Assessments (SEAs). It was noted that the EIA Directive is concerned with the assessment of the effects of “projects” on the environment. The SEA Directive, which was adopted 16 years later, is concerned with the environmental assessment of “plans and programmes” (which set the framework of future development consent of “projects”) and is intended to give consideration to environmental considerations at an earlier stage in the process[3].

The Supreme Court considered that, whereas the regional transport strategy (in March 2003) was a “plan or programme” in terms of the SEA Directive, the Fastlink was neither a “plan or programme” nor a “modification”[4] to a “plan or a programme” and did not trigger the consultation requirements under the SEA Directive.  It was instead a modification to a “project” and thus subject to the EIA Directive rather than the SEA Directive.

Compliance with common law principles of fairness
With regard to the common law principles of fairness concerning the holding of the public inquiry, in terms of the Roads (Scotland) Act 1984, the Ministers are under a duty to hold an inquiry if an objection is made to an order or scheme by any person who requires notification of the scheme (in terms of the 1984 Act) or any other person appearing to them to be affected.

As Mr Walton did not require to be notified of the scheme and nothing before the court indicated that he was regarded as a person affected, there was no suggestion that the Ministers were statutorily obliged to hold an inquiry into his objections. There was also no suggestion that he had any legitimate expectation that the remit of the inquiry would encompass the (economic, policy or strategic justifications) for building the Fastlink. No material before the court suggested that the Ministers were bound as a matter of fairness to include the justifications for the building of the Fastlink within the remit of the inquiry.

Whether remedies should have been available to Mr Walton
In the Inner House it had been observed that:

1.  if Mr Walton’s contentions had been accepted, the court would have exercised its discretion (under to the 1984 Act) to decline to grant him a remedy, the court noting that it was not contended that the schemes and orders would substantially prejudice his interests or affect his property;
2. Mr Walton was not a “person aggrieved”[5] in terms of the 1984 Act; and
3. Mr Walton would not have had standing even if the test were the same as would apply to a judicial review at common law.

Whilst reserving its opinion on the correctness of Inner House’s approach, the Supreme Court noted that, in terms of the Scotland Act 1998, the Scottish Ministers do not have the power to make subordinate legislation or exercise a function which is incompatible with EU law. It would therefore be necessary to consider the terms of the 1984 Act and the exercising of discretion under it in that context.

The Supreme Court also found that Mr Walton was a “person aggrieved” in terms of the 1984 Act. In coming to this conclusion, it noted his representations to the Ministers and his role in the local inquiry the fact that he lived in the vicinity of the bypass (if not the Fastlink) which would be busier as a result of the Fastlink. Also, his role in local environmental organisations and Road Sense helped to demonstrate that he was more than a “mere busybody interfering in things which did not concern him”.  As a consequence, the Supreme Court found him to have a genuine concern in what he argued was an illegality in the consent for a project which would have a significant impact on the environment.  In Lord Reed’s words he was “indubitably a person aggrieved within the meaning of the legislation”.

As regards the common law test, the Supreme Court found that the same factors which brought him within the definition of a “person aggrieved” would apply and he would have had standing to make an application for judicial review. Lord Reed also said:

 “Not every member of the public can complain of every potential breach of duty by a public body. But there may also be cases in which any individual, simply as a citizen, will have sufficient interest to bring a public authority’s violation of the law to the attention of the court, without having to demonstrate any greater impact upon himself than upon other members of the public. The rule of law would not be maintained if, because everyone was equally affected by an unlawful act, no-one was able to bring proceedings to challenge it.”

 The full text of the judgement is available here.

Outer House case considering an appeal by North Lanarkshire Council under s239 of the Town and Country Planning (Scotland) Act 1997.  It concerns a planning application by Shore Energy in respect of a waste management and renewable energy plant at Carnbroe near Coatbridge. The Council refused permission for the plant despite a recommendation by planning officials that the proposal be accepted. However, Shore Energy appealed to the Scottish Ministers against the refusal of planning permission. After an inquiry, reporters appointed by the Scottish Government granted planning permission subject to conditions. The Council then appealed to the court under s239.

The crux of the dispute was the relative weight given to local planning and environmental considerations, on the one hand, and national environmental objectives on the other. The Council’s reasons for rejecting the proposals indicate that priority had been given to local considerations whereas the reporters’ decision had treated the national need as a material consideration and regarded local considerations as subordinate to it.

Lord Stewart noted that national policy had evolved after the planning application had been made and that a new policy was launched (without consultation as a “revised annex” to the Scotland’s Zero Waste Plan, 2010) the day before the inquiry. However, no issue was raised about the lawfulness of the policy. The matter for the court was whether the reporters’ understanding and application of the policy was sound and whether they had departed from it. In refusing the Council’s appeal Lord Stewart said:

“The meaning assigned to the new policy by the reporters as I understand it is that the need assessment area is, or at least that one of the relevant need assessment areas is, Scotland as a whole. The policy is quite capable of bearing this meaning. It was entirely reasonable for the reporters to treat national need as a material consideration and, in this case, as the determining consideration subject to any site-specific objections.”

 The full judgement is available from Scottish Courts here.

(See appeal to the Inner House here.)

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Outer House case concerning the termination of a wind farm agreement relating to property in Aberdeenshire.   In terms of the agreement, Backmuir granted an option to Mountwest to develop a wind farm on the property. The option period was ten years (with a right to extend for a further five years).  Mountwest was entitled to apply for planning permission and other consents but Backmuir had a right to see and make representations about the proposed application before its submission to the planning authority. If Mountwest obtained the necessary permissions, it could choose to exercise the option in which case Backmuir required to grant a twenty five year lease of the property to Mountwest. The agreement also contained a termination provision in the following terms:

“[Backmuir] may determine this Agreement by written notice to [Mountwest] if:-

 [Mountwest] materially fails to perform or observe any of its obligations in this Agreement and such failure or event is incapable of remedy or it is capable of remedy and [Backmuir] have [sic] served on [Mountwest] written notice specifying the failure or event and requiring it to be remedied within a reasonable time (to be specified in the notice and taking into account the nature of the obligation in question) and [Mountwest] has failed to do so;”

In June 2011 Mountwest lodged a planning application but failed to send a copy to Backmuir in advance. When it learned of this, Backmuir wrote to Mountwest advising them that they had breached the agreement and requiring them to remedy the breach “if it was capable of being remedied”. The letter also required Mountwest to provide the documentation required by the agreement within 21 days.  Mountwest then wrote to Backmuir enclosing a copy of the application and asking for comments. However, Backmuir’s solicitors replied purporting to terminate the agreement on the basis that Mountwest had failed to remedy the breach of the agreement.  The issue for the court was whether the agreement had been validly terminated.   Three questions required to be answered.

1. Was there a material failure by Mountwest?
2. If so, was it remediable?
3. Did Backmuir serve a valid notice of termination?

Material failure?
On a commercial construction of the contract Lord Woolman found that there had been a material failure by Mountwest. The purpose of the contract was to facilitate Mountwest’s wish to develop a wind farm at the property. But it contained built in checks drawn in Backmuir’s favour of which the right to make representations about the planning application was the most important. The parties had not intended that right to be illusory. Rather, they provided a mechanism which allowed Backmuir to influence the planning at a critical stage in the procedure.

Remediable?
Lord Woolman found that Mountwest’s failure to send the planning application to Backmuir was plainly capable of remedy; the application being at an early stage and local planning committee not yet having considered it.

Valid termination?
The clause allowing termination of the agreement had been a bespoke irritancy clause. The potency of the clause suggested that Backmuir would have to adhere to its precise requirements (it required Backmuir to serve written notice on Mountwest specifying the failure and requiring it to be remedied within a reasonable time). However, Backmuir’s initial letter notifying the breach had not been clear. It had both expressed doubt as to whether the breach was remediable and had required Mountwest to provide the documentation within 21 days. Lord Woolman found that the reasonable recipient of the letter would read it as requiring delivery of the documentation within 21 days and, if it were done, that would comply with the terms of the agreement.

Another approach was to ask whether the mischief created by Mountwest’s omission had been cured. Lord Woolman concluded that it had. Backmuir had asked for the documents. Mountwest had supplied them in return. If Backmuir had wished to insist on Mountwest withdrawing its application and beginning the process again, that would have been a simple message to convey and could have been easily and clearly set out in its letter.

The purported termination was therefore invalid.

The full judgement is available from Scottish Courts here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.

Supreme Court case considering an appeal from the Inner House which upheld the planning authority’s decision to grant permission for an Asda Store at a site in Myrekirk Road in Dundee.

Tesco (which owns a store 800m from the proposed site) argued that the planning committee had failed to properly apply the “sequential test” (which involves considering suitable alternative sites for development from the town centre outwards) which was set out in the development plan and planning policy. Tesco also claimed that the planning committee had failed to consider its own policy in respect of the Lochee district. (There was an alternative site in Lochee which the Council had discounted as being too small.)

The Supreme Court refused the appeal. The argument centred on the meaning of the word “suitable” which Tesco contended meant “suitable for meeting identified deficiencies in retail provision in the area”. The Supreme Court found that the Council had been correct to proceed on the basis that the word “suitable” meant “suitable for the development proposed by the applicant” but this was subject to the qualification that flexibility and realism must be shown by developers.

Asda had followed a flexible approach but did not regard the Lochee site as suitable for their needs. In accepting that assessment, the Council had exercised their judgment as to how the policy should be applied to the facts and had not proceeded on an erroneous understanding of the policy.

Lord Reed observed that an error by the planning authority in interpreting its policies would be material only if there was a real possibility that their determination might otherwise have been different and he was not persuaded that there was such a possibility in this case.

With regard to a planning authority’s exercise of discretion, Lord Reed also noted:

 “planning authorities do not live in the world of Humpty Dumpty:  they cannot make the development plan mean whatever they would like it to mean.”

The full judgement is available from the Supreme Court here.

All of our property and conveyancing case summaries are contained in the LKS Property and Conveyancing Casebook here.