Dulce Packard And Others For Judicial Review Of A Decision Of The Scottish Ministers To Grant Consent
| Jurisdiction | Scotland |
| Judge | Lord McEwan |
| Neutral Citation | [2011] CSOH 148 |
| Date | 07 September 2011 |
| Docket Number | P1393/10 |
| Court | Court of Session |
| Published date | 07 September 2011 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 148 | |
| P1393/10 | OPINION OF LORD McEWAN in the Petition of DULCE PACKARD AND OTHERS Petitioners; for Judicial Review of a decision of the Scottish Ministers dated 9 November 2010 to grant consent under the Electricity Act 1989 and deemed planning permission under the Town and Country Planning (Scotland) Act 1997 as amended ________________ |
Petitioners: J D Campbell QC; DLA Piper Scotland LLP
First Respondents: Cameron; SGLD
Second Respondents: Martin QC; Burness LLP
7 September 2011
[1] The motions before me today, 3 August 2011, were for expenses against the petitioners. The petitioners conceded expenses on the normal scale in favour of the first (successful) respondents (the Scottish Ministers) and the expenses of today's appearance. I will award both of these in favour of the Ministers.
[2] The argument took place over the motion for expenses by the second respondents (North British Wind Power) who had also been successful. They also moved for an increased fee in terms of Rule of Court 42.14(3). The petitioners opposed, in principle, any award of expenses, and in particular any increased fee. I was referred to a number of authorities which I now list:
· Bolton M.D.C. v Secretary of State for the Environment [1995] 1 WLR 1176;
· Bell v East Renfrewshire Council 2006 SLT 104;
· Renewable Energy Systems Limited v The Moray Council [2007] CSIH 2 ("R.E.S.");
· King Group etc. v Sainsbury [2010] CSOH 11;
· R (Corner House) v Trade and Industry Secretary [2005] 1 (11) WLR 2600.
[3] I should say a little about the petition for Judicial Review which I heard in March of this year. The documents, authorities and other productions were many and detailed. Three large boxes had to be taken home by me. The case was set down for four days, did not finish, and as a pressing matter two days in the following week were needed. I agreed as a matter of urgency to advise the case by the end of May, and did so. That was to allow the restart of certain preparatory work in relation to a road and a small building. I refer to what I have already written in my opinion and add only this. The case was of major importance not only to the parties but also in the public interest. It followed upon a second planning inquiry into the same subject-matter (a proposed wind farm) which had been bitterly contested, and at which the second respondents had been successful. Apart from seeking judicial review on a number of grounds the petitioners sought interdict and interim interdict against any works starting at the end of 2010. I did not hear that matter, and the point was settled at the time on an undertaking.
[4] With that introduction I now deal with the arguments presented. Mr Martin moved for expenses and the additional fee on various grounds. He said that five issues were argued (some of the petition having been abandoned) and a number of his pleas were sustained at the end of the day. The arguments on mora and personal bar were unique to his clients, and were not dealt with by the Scottish Ministers. These pleas had been upheld. Also the matter of interdict and expenses affected only his clients.
[5] Counsel took me to Bolton M.D.C. and the speech of Lord Lloyd at 1178. It had first to be noted that this case concerned third appearance costs whereas the present was first appearance. There were two special factors in the present case. The petitioners had sought interdict only against his clients and although matters were held on an undertaking, the issue could re-emerge if they had lost at judicial review. His clients were entitled to present their own arguments to protect their positions. Next, the scale of development was very important. There were proposed 48 turbines. The national interest was involved. There were financial consequences. An adverse decision would mean that these respondents could not carry on with their plans.
[6] He next referred to Bell which he distinguished. That case concerned a policy and Messrs Wimpey who were intervening did not have any consent to protect. Here his clients had, and stood to lose it at review. He then referred me to R.E.S. which he said was a "first stage" type of case and was directly in point. In the present case his clients had put forward, quite properly, separate points on radar, conditions and actual or perceived bias. The case of King Group was like Bell. It was a challenge to a policy which was unsuccessful. In the present case the petitioners had put lots of facts before the court. Many of these were in documents which involved named persons within the second respondents. They had a right to be heard about all of these, and a duty to the court to explain them in the correct light.
[7] As to the additional fee, Mr Martin adhered to his written submissions attached to the motion sheet. He added, the development was very large involving millions of pounds. The interdict rendered the whole review as urgent, and important work had to be done around Christmas 2010 when staff were on holiday. The review involved six separate grounds and a degree of specialised knowledge was needed to interpret the Electricity Act which was not well known. The whole mater was primarily for the Auditor. The expenses of today should also be awarded.
[8] In his reply speech he added this. His clients held a permission which was a lawful valuable commodity and one which they were entitled to protect in argument. If the review had succeeded there was no clear way forward. That is why the argument about mora was vital. The issue of what was to follow a successful review had been his first argument. Counsel touched on protected expenses orders in Scotland and in England and said that here they were not in point. He referred in passing to Corner House, another case called Road Sense, and a case concerning a Fatal Accident Inquiry (the case is McArthur 2006 S.L.T. 170) and Article 9 of the Aarhus Convention. Almost all of the petitioners were wealthy especially the fifth petitioners. The petition was wholly different to what happened at the Inquiry.
[9] In his reply Mr Campbell conceded the expenses to the Ministers (first respondents) and continued, arguing firstly that the second respondents should not be awarded expenses at all or (said in his reply speech) that any award should be restricted to less than 50%. He referred me to the Record and pointed out that he had argued five points. He accepted that he had sought interdict, but that matter was settled on a short undertaking which was then relaxed to take account of road widening and the building of a concrete platform. The interdict did not play a large part in the case.
[10] His first main point was that the outcome had turned on what was said by counsel for the Ministers and was not influenced by Mr Martin's argument. His clients chose to intervene and merely adopted what was said by the Ministers. He referred to various passages in my opinion on the case. Mora and personal bar were peripheral issues. What was important was the "litany" of correspondence. After looking at Bolton M.D.C. he pointed out that at the second inquiry legal submissions were made to the reporter and later directly to the Ministers. The second respondents did not need separate representation since the issues at review were not related to the development. Counsel submitted on a separate point that as his clients would never have got interdict to stop the second inquiry there was no need to argue mora and personal bar. Again under reference to Bolton he asked what would have happened if the review had been successful. It would then have been for the Ministers to decide what to do. The case might have gone to another Minister, or to another Reporter, or to a judge or to an English judge. The second respondents would not lose their consent but only their chance to do the works at a particular time, i.e. in 2011.
[11] Counsel then looked at the other cases. Bell he said was correctly decided by the (then) Temporary Judge. Accepting that the second respondents were a developer on site he distinguished King as being rather different and not in point. The proper question with multiple expenses was always to ask what was determinative of the issues. Under reference to R.E.S., he asked where was the divergence of interest. Here there was none. The second respondents had no direct interest to offer the opposition they did. Mora was simply overlaid by bias and natural justice. Mr Campbell ended this chapter by saying that the Lord Justice Clerk had not in R.E.S. followed Bolton. That was important.
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