Shetland Islands Council For Judicial Review Of A Decision By Lerwick Port Authority
| Jurisdiction | Scotland |
| Judge | Lord Reed |
| Neutral Citation | [2007] CSOH 05 |
| Date | 12 January 2007 |
| Docket Number | P1504/05 |
| Published date | 12 January 2007 |
| Court | Court of Session |
| Year | 2007 |
| OUTER HOUSE, COURT OF SESSION [2007] CSOH 05 | |
| P1504/05 | OPINION OF LORD REED in the petition of SHETLAND ISLANDS COUNCIL Petitioners; for Judicial Review of a decision by LERWICK PORT AUTHORITY Respondents: ________________ |
Petitioners: Anderson, QC; Williamson: Shepherd & Wedderburn, W.S.
Respondents: Dunlop, QC; C Kelly: Digby Brown
12 January 2007
Introduction
[1] One of the finest natural harbours of the British Isles lies in the Sound of Bressay in Shetland, between Mainland, the largest of the Shetland Islands, and Bressay, a smaller island to the east. The harbour has provided a safe anchorage for centuries, and is the reason for the development of Lerwick, the principal settlement of Shetland, on the Mainland side of the harbour.
[2] Lerwick is a fishing port, a centre of marine support for the offshore oil and gas industry, a ferry port with services to other ports in the United Kingdom, the Faroes, Norway and Iceland, and a port for general cargo. It is also popular with cruise ships and yachts [7/39]. With two entrances, from the north and the south, the harbour is open to shipping in all weathers and operates around the clock [7/36]. The Sound of Bressay is therefore described in one of the petitioners' documents as "a key shipping corridor" [10/4, p 44]. Over 2000 jobs are said to be dependent on the harbour [7/39]. A car and passenger ferry operates between Lerwick and Bressay, which had a population of 377 at the last census [10/4].
[3] In the present proceedings Shetland Islands Council (the petitioners), who are the local authority, seek judicial review of a decision by Lerwick Port Authority (the respondents) to revise their dredging proposals for the navigation channel in the Lerwick North Harbour. The petitioners wish to construct a bridge between Mainland and Bressay. They claim to have had a bridge designed on the basis of information obtained from the respondents as to their proposals for the future dredging of the navigation channel between the islands. They have applied for statutory consents in respect of that design. They intend to promote private legislation which, if enacted, would authorise them to implement that design. They are concerned that the respondents have revised their proposals, and that the revised proposals, if implemented, will necessitate the re-designing of the bridge, causing the petitioners delay and expense. They challenge the respondents' decision to revise their dredging proposals as being in breach of a legitimate expectation. The legitimate expectation in question is substantive rather than procedural: the petitioners maintain that, by reason of their expectation, the respondents are not entitled to adopt or implement their revised proposals. The application for judicial review also challenges the respondents' decision on grounds of personal bar and unreasonableness, and in addition challenges the respondents' proposals in respect of the disposal of the dredged materials as being in breach of the Lerwick Harbour Order Confirmation Act 1974 ("the 1974 Order"). The application also complains of a failure to carry out an environmental assessment in respect of the dredging proposals. That complaint is directed against the Scottish Ministers (as having failed to require that such an assessment be carried out) as well as the respondents.
[4] At the commencement of the first hearing, however, the court was invited on behalf of the petitioners to dismiss the petition so far as directed against the Scottish Ministers. During the course of the first hearing, the court was also informed that the complaint concerning the alleged failure to carry out an environmental assessment was not being insisted in; nor was the case based on personal bar; nor was the case based on an alleged failure to comply with the 1974 Order. The challenge to the reasonableness of the respondents' proposals was also qualified in the course of the hearing, as explained below, so as to be predicated on the proposals being, in the first place, contrary to the petitioners' legitimate expectation.
[5] In these circumstances, the petitioners seek two orders, which can be summarised as follows: first, reduction of the respondents' decision to revise their dredging proposals; and secondly, interdict against the respondents from dredging the North Harbour in implementation of their revised dredging proposals, insofar as such dredging would take place outside the limits of the dredged channel originally proposed, as indicated on a drawing provided to the petitioners on 9 January 2004 by the respondents' consultant civil engineers, Arch Henderson & Partners ("Arch Henderson"), until a final decision in respect of the petitioners' bridge proposal has been taken under the Roads (Scotland) Act 1984 ("the 1984 Act").
[6] At the conclusion of the first hearing, parties lodged a joint minute [19] in terms of which they agreed, in effect, that the matter to be determined at the first hearing was the petitioners' contention that they have a legitimate expectation that the respondents will not depart from their original dredging proposals. Counsel explained that the parties were agreed that the existence of a legitimate expectation (by which, it was agreed, they meant a substantive legitimate expectation) included, in this case, not only a representation on which it was reasonable to rely, but also detrimental reliance. The question whether the respondents' decision to proceed with revised proposals, despite any legitimate expectation and any detrimental reliance, was unreasonable and ultra vires, or whether the public interest might justify the respondents' failing to fulfil any expectation which they might have created, was to be left over to a second hearing, if necessary. The reason for splitting the issues in that way is explained below: in short, it is because the parties were agreed that the question whether the petitioners had acted in reliance upon a legitimate expectation should be determined at the present stage, on the basis of the material presently before the court, whereas issues of fact had been raised by the petitioners during the hearing, relating to the reasonableness of the respondents' revised proposals, which were not yet focused in the pleadings, and which might require the leading of evidence in some form.
[7] The parties also agreed in the joint minute that, in approaching the matters to be determined at the first hearing, the court should proceed on the basis of the pleadings and submissions of parties, two joint minutes (agreeing certain matters of fact) which had been lodged during the hearing [15 and 17A], and the documents referred to in counsel's submissions. It was also agreed that the documents were what they bore to be and were an accurate record of any statements which they recorded. It was further agreed that the court should repel the petitioners' pleas relating to personal bar, to the 1974 Order, and to EC law. So far as the two remaining pleas were concerned, it was agreed that the court should determine the petitioners' plea in respect of legitimate expectation. It was accepted by counsel for the petitioners in the course of the argument that, if that plea were repelled, the petition should be refused. If the plea were sustained, the court should deal at a second hearing with the plea of unreasonableness.
[8] Finally, by way of introduction, I note that this is the second of three related applications for judicial review. As explained below, in 2005 the court granted an application by the present respondents for judicial review of the Scottish Ministers' decision not to "call in", under planning legislation, the present petitioners' notice of intention to develop the bridge. That decision was quashed by the court. Having reconsidered the matter, the Scottish Ministers took the same decision in 2006. An application by the present respondents for judicial review of that decision has not yet been heard.
The factual background
[9] Lerwick Harbour (by which I mean the area of water falling within the jurisdiction of the respondents) lies in a north-west/south-east orientation, with Mainland to the west, and Bressay to the east. The northern entrance to the harbour from the open sea is a channel between the two islands, about half a mile in length. The northern end of that entrance lies between Greenhead, on the Mainland side, and Turra Taing, on the Bressay side. The southern end of that entrance lies between Point of Scotland (or Scattland), on the Mainland side, and Heogan, on the Bressay side. To the south of Point of Scotland, the channel opens up into a bay, known as the North Harbour. At the southern end of the North Harbour the water narrows, at a promontory on the Mainland side known as North Ness. To the south of North Ness, the water opens up again into another bay, known as the South Harbour. At the southern end of the South Harbour lies the south entrance, with the open sea beyond. It was agreed by counsel that the seabed is vested in the Crown.
[10] As a natural harbour with both a north and south entrance, Lerwick Harbour has proved to be an ideal port. It has undergone development since at least the seventeenth century, and particularly in the last 100 years. Historically, activity was focused on the Mainland side of the South Harbour, and it was there that the town of Lerwick developed. From the original "lodberries" at the south end of the harbour, expansion during the heyday of the herring industry required the development of piers and wharves northwards, past North Ness and into the North Harbour. The advent of roll on/roll off ferries, and increased fishing activity, required expansion further north in the 1970s. During the same period, oil services bases were established in the North Harbour and the Greenhead area. In the late 1990s, deepwater quays, a turning basin and a dredged navigation channel were created to cater for...
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