Miss Penelope Uprichard And Others V. The Fife Council And St. Andrews Bay Developments Ltd For Judicial Review &c
| Jurisdiction | Scotland |
| Judge | Lord Bonomy |
| Date | 31 March 2000 |
| Court | Court of Session |
| Published date | 31 March 2000 |
| OUTER HOUSE, COURT OF SESSION | |
|
| OPINION OF LORD BONOMY in the petition of MISS PENELOPE UPRICHARD AND OTHERS Petitioners: against (FIRST) THE FIFE COUNCIL, (SECOND) ST ANDREWS BAY DEVELOPMENT LIMITED Respondents: For Judicial Review of a purported decision of the Fife Council on 7 July 1999 to grant planning permission under the Town & Country Planning (Scotland) Act 1997 to St Andrews Bay Development Limited in respect of the proposed development at Kingask Estate, St Andrews ________________ |
Petitioners: Lord Mackay of Drumadoon, Q.C., McKenzie, C MacLean;
Drummond Miller, W.S.
Respondents: Reid, Q.C., Webster; Balfour & Manson (for First Respondents)
Martin, Q.C., Drummond; Fyfe Ireland, W.S. (for Second Respondents)
31 March 2000
The Parties
[1]The six petitioners are private individuals who live in and around St Andrews. They are opposed to the development at Kingask Estate, St Andrews for which the Fife Council, first respondents, granted planning permission to St Andrews Bay Development Limited, second respondents, on 7 July1999. The grant is subject to 33 conditions and to an agreement in terms of section 75 of the Town and Country Planning (Scotland) Act 1997. The development approved is "erection of hotel, conference centre and related accommodation, steading spa, leisure clubhouse and facilities, golf clubhouse, ancillary facilities, two golf courses and landscaping at Kingask Estate, by St Andrews". The application was submitted on 2 March 1999. The petitioners each lodged written representations opposing the application. These were principally to the effect that the built part of the development would be a blot on the landscape and that the development would give rise to traffic problems. The application was one of three for golf related developments being processed and considered simultaneously by the Council. The Council had also dealt with earlier similar applications in respect of Kingask, and had granted outline permission for one. All these applications aroused controversy in and around St Andrews.
The Issues
[2]Although they might be described as "objectors", the petitioners have no right under the Town & Country Planning (Scotland) 1997 or any other statutory provision to appeal against the decision to grant the application. They seek by this petition to have the planning permission quashed. They do so on four grounds:
(1)The Council erred in law by not requiring the developers to provide an environmental statement under The Environmental Assessment (Scotland) Regulations 1988 (S.I. 1988, No. 1221);
(2)The Council erred in law by failing to comply with their duties under the Town and Country Planning (Notification of Applications) (Scotland) Direction 1997 by failing to consider whether the development involved a significant departure from the approved Structure Plan, thus requiring notification of the application to the Secretary of State/First Minister, and by failing to notify him of the application as one involving a development affecting a Site of Special Scientific Interest in relation to which Scottish Natural Heritage have recommended conditions which the Council did not propose to attach to the planning permission. The purpose of notification is to enable the Secretary of State/First Minister to consider whether he should take action in relation to the application;
(3)The Council erred in law and exercised their discretion in an unreasonable manner by granting the application without having due regard to the development plan in accordance with their duty under section 25 of the Town and Country Planning (Scotland) Act 1997;
(4)The Council failed to give clear and intelligible reasons for their determination of the application, including whether or not it was in accordance with the development plan, and thus acted in a way which was unfair to the petitioners.
The first two are the principal broad heads under which the decision is attacked. The third and fourth grounds were presented by Lord Mackay of Drumadoon QC for the petitioners as bolstering his principal submissions, particularly the second one about the failure to notify the First Minister of the application.
[3]The Council and the developer both plead that the petitioners lack title and interest to bring the proceedings. In addition they both contend that the petition should be refused for mora. This First Hearing was at large. I shall, however, deal with these preliminary contentions of the respondents first.
Interest to Bring Proceedings
[4]While the respondents plead absence of both title and interest, both Mr Reid QC for the first respondents and Mr Martin QC for the second respondents invited me to determine only the question of interest. The broad submission was that, while it is doubtful that the petitioners have title, if they do, they do not have sufficient interest because they are not directly and prejudicially affected by the decision to grant planning permission. The petitioners were perfectly entitled to make representations about the application. So long as these were lodged timeously and raised relevant issues, the planning authority was bound to take them into account. That might arguably give the petitioners title to bring these proceedings, but in the absence of averments that the planning authority failed to take account of their representations they did not qualify any interest to bring the proceedings. The petitioners were in no different position from any member of the public and that was borne out by their averments. The Court was not faced with an actio popularis, such as one to vindicate a public right of way, but with proceedings at the instance of members of the public, challenging the exercise of a statutory duty. Albeit the exercise of the statutory duty could have triggered procedures involving public consultation in a different form from that undertaken and notification of the application to the Secretary of State/First Minister, the petitioners stood in no different position from any other members of the public. There was no question in this case of bad faith on the part of the respondents which might raise different issues. The application had raised considerable public interest in the locality. There was opposition to and support for the application. The petitioners aver that they are aggrieved by the determination, but that meant no more than that they did not like the result. Their other averments and the terms of their affidavits placed them in no different position from a wide section of the public - they lodged written representations, the third petitioner spoke against the development at the meeting of 7 June and, as persons who used the Fife Coastal Path and are from time to time in the vicinity of the development site, they are adversely affected. Their reference to traffic impact was to something that could affect anyone who happened to be passing. The petitioners reside between 2.5km and over 5km from the site. That should be contrasted with the definition of neighbours upon whom intimation of a development is required in terms of article 2 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (S.I. 1992, No 224) as those resident within 90m of the proposed development if they have a boundary within 4m of the development. The petitioners have no contractual, delictual, patrimonial or status interest affected by the determination. Planning control was designed to regulate development in the public interest. The statutory scheme for regulation of planning was not intended to confer new rights on members of the public that would constitute an interest to litigate with the planning authority or developer. Members of the public did not have a general right, as policemen of the planning system, to see that it was properly implemented. The right about which a member of the public might have an interest to litigate was limited to his own particular involvement in the process of considering and determining the particular application. There were no averments that any environmental issue that the petitioners sought to raise or could identify was not considered. There were no averments that their representations were not taken into account by the Council.
[5]While I agree with counsel for the respondents that the averments about the pleasure the petitioners find in the landscape around the application site, and their averments about their connection with the locality, supplemented by affidavits, do not give them an interest the law recognises to challenge a planning decision, albeit they consider that the development permitted might affect their amenity, the petitioners also aver that their representations were not considered in the context in which the first respondents were bound to consider them. I acknowledge that the petitioners do not claim that the first respondents failed to have regard to their representations. The petitioners made representations about the detrimental impact of the proposed development on the landscape and views of the landscape. It was accepted at all hands that the landscape is a feature of the environment. In paragraph 10 of the Petition the petitioners claim that the first respondents acted illegally in granting the application by failing to require an environmental statement under the 1988 Regulations. The plain implication of their averments is that they were entitled to have their representations considered in the light of environmental information properly produced and consulted upon in terms of these Regulations and that that did not happen. In addition in paragraph 11 of the Petition they assert that there was a failure on the part of the first respondents to consider whether the application fell to be notified to the Secretary of State/First Minister because it involved a significant departure from development plan policies, including a policy against development which would have a...
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