Town and country planning — Application for a fish farm — Regional council adopting policy covering fish farms — Planning permission granted — Judicial review — Whether decision to adopt policy unlawful — Whether regional council felt bound by policy — Whether planning permission unlawful
A company
called Bridge of Faillie Smolts Ltd made an application for a fish farm in an
area of Loch Ness in January 1987. Neither the structure plan nor the local
plan for the area gave any guidance on development of this kind. A policy ‘of
encouragement of such developments at suitable locations under suitable
conditions attached to the planning consents’ was approved by the regional
council on July 9 1987. The company’s application for planning permission was
then considered by the planning committee, which decided to grant consent on
August 5 1987, and that decision was approved by the full regional council on
September 10 1987. A number of associations and private individuals sought to
challenge the legality of the two decisions of the Highland Regional Council:
the decision to adopt the policy on July 9 1987 and the decision to grant the
planning permission on September 10 1987. It was submitted on behalf of the
petitioners that the regional council should have considered three matters
before proceeding with the approval of the policy decision. The first matter
was the substantial contribution to the planning process that should be made by
specific groups with particular interests; secondly, the statutory procedures
which were open to the authority; and, thirdly, the purpose of the legislation.
Two alternative courses were suggested as being proper in the circumstances.
The preparation of a subject plan under section 9(4) of the Town and Country
Planning (Scotland) Act 1972 and the formal alteration to the local plan under
section 13 of the 1972 Act. The second part of the petitioners’ case was that
the regional council, in arriving at its decision of September 10 1987 to grant
planning permission for the fish farm, merely applied its earlier policy
decision on such development and did not properly exercise its discretion.
Held 1. The decision to determine a policy on
development involving fish farming was not taken wrongfully, as the authority
had not failed to take account of the advantage of public consultation nor of
the statutory provisions or purpose. Nor had the authority failed to take into
account the matter of the statutory procedures for the making of a local plan
nor, since it is part of those procedures, the matter of public consultation.
There is nothing in the legislation, express or implied, to justify the view
that in cases of importance it is illegal to adopt a policy outside the
development plan as a guide in the making of planning decisions. 2. The
decision to grant planning permission was lawful, as the policy encouraging the
development of fish farming on Loch Ness at suitable locations and under
suitable conditions attached to any consents did not seek to fetter the
exercise of any discretion in relation to any particular planning application.
As such a policy necessitates consideration being given to each and every
application and does not restrict or exclude the exercise of a discretion, it
cannot follow that any councillor, when considering a planning application,
should feel that he was bound by the policy to grant the application. If the
policy does not fetter discretion, then a
with the policy compelled approval of the application. The petition was
refused.
to in the judgment
Associated
Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA.
British
Oxygen Co Ltd v Board of Trade [1971] AC
610; [1970] 3 WLR 488; [1970] 3 All ER 165, HL.
Council
of Civil Service Unions v Minister for the Civil
Service [1985] AC 374; [1984] 1 WLR 1174; [1984] 3 All ER 935, HL.
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997;
[1968] 2 WLR 924; [1968] 1 All ER 694, HL.
Petition for
judicial review
This was an
application for judicial review of decisions of the Highland Regional Council
to adopt a policy on fish farming and to grant planning permission for fish
farming in accordance with that policy.
(instructed by Kilgour McNeill & Sime, as agents for David Watt & Co,
of Inverness) appeared for the petitioners.
Macfadyen QC and Mathew Clarke (instructed by Biggart Baillie & Gifford, as
agents for the solicitor to the Highland Regional Council) appeared for the
respondent planning authority.
Coutts QC and Neil Mackinnon (instructed by Balfour & Manson, as agents for
Macleod & MacCallum, of Inverness) appeared for Bridge of Faillie Smolts
Ltd, the developer.
following judgment of the court was delivered.
LORD CLYDE: This petition has been raised by a number of associations and
private individuals to challenge the legality of two decisions by the Highland
Regional Council. The decisions relate to an application for planning
permission by a company called Bridge of Faillie Smolts Ltd. The application
was for a development of fish farming in an area of Loch Ness. The petition for
review has been opposed by the council, referred to in the petition as the
respondents, and by the developer, to whom I shall refer as ‘the company’. The
petition came before me for a first hearing at which I was invited by all
parties to determine the application one way or another. A considerable number
of documents had been lodged and evidence in the form of affidavits had been prepared
and lodged on behalf both of the petitioners and of the respondents.
It is of
course perfectly competent for the court to dispose of an application for
judicial review on a first hearing and it is not infrequently done. The parties
will presumably discuss with each other in advance what the scope of the first
hearing is to be. But particularly where a final determination is sought at
that stage, they should be able to agree on the extent, if any, to which facts
are in dispute and the extent to which any documents lodged can be agreed as
evidence in the case. It is desirable that the extent of any such agreement
should be embodied in a joint minute so that there is a formal record of the
matter and no room for misunderstanding. I mention this because in the present
case there was no clear agreement worked out in advance in relation to all the
documents and that gave rise to some difficulty during the course of the
hearing. While all parties accepted that I should look at certain records of
the regional council and at the affidavits which were referred to during the
hearing, there was controversy on some of the productions. Counsel for the
respondents sought to refer to a photocopy of a newspaper report of a meeting
of the council in connection with his submission of what had been said by
councillors during the course of the debate. The document was of course as it
stood of no evidential value; neither the document nor its contents were agreed
as accurate and counsel for the petitioners objected to reference being made to
it. Similarly, counsel for the respondents had lodged notes taken by a clerk of
what passed at the meeting, but again counsel for the petitioners was not
prepared to agree that I should look at these notes. While Rule of Court 260B
does allow of considerable flexibility in procedure, I do not understand that
it innovates upon the ordinary rules of evidence. In many cases there is no
significant dispute on fact, and documents can be referred to with the consent,
preferably express, of all parties. Factual matters which are not controversial
can be ascertained from the parties during the hearing to enlarge or elaborate
upon the admitted facts in the pleadings. But where, as in the present case,
there is an area of fact which is open to dispute and parties are agreed that
the whole case should be determined at the first hearing, it is clearly
desirable that they should secure that the scope of those facts which are
agreed and those which are not agreed is understood between them and that the extent
of the material to be put before the court by one side or the other is clearly
understood and agreed. In the present case the area of fact which was not
beyond controversy was limited to the observations made by councillors at a
meeting of the council on September 10 1987. The original tape recordings of
this meeting have been destroyed in ordinary course a considerable time before
the present proceedings were raised. However, I find the material which I have
properly before me sufficient to enable me to reach a concluded view. Apart
from that area of possible controversy the facts are not disputed and I should
start by narrating them.
The company
made an application to the respondents for planning permission for the proposed
fish farming development in Loch Ness in January 1987. There was a structure
plan in existence for the region and a local plan for the area in which the
development was intended to be sited. Neither gave guidance on a development of
this kind in that situation. The application was only advertised and
representations were invited. There is evidence from certain individuals in
affidavits lodged by the petitioners that they were not consulted. I accept
that they were not consulted, but they did have an opportunity to make
representations. Representations were made by certain angling interests. The
applications then came before the Inverness Divisional Planning Committee with
a report by the planning officials. The committee on April 27 1987 decided to
defer further consideration of the application pending a report from Highland
Regional Council on the policy on fish farming. Thereafter a report was
prepared by the director of planning. The planning committee later considered
his report and on June 3 1987 resolved upon a policy. This was, as recorded in
the minutes, a policy
of
encouragement of such developments at suitable locations under suitable
conditions attached to the planning consents.
The matter was,
however, thereafter brought to the regional council. On July 9 1987 the
regional council approved that policy. The next step was the preparation of a
report on the company’s application for planning permission. Thereafter, on
August 5 1987 the planning committee met with the director’s report before them
and, after considering the application, decided to grant consent. The matter
was, however, thereafter brought to the regional council for consideration and
on September 10 1987 by 24 votes to 23 they approved the decision of the
planning committee of August 5 1987.
The
petitioners now seek a declarator that the purported policy decision of July 9
1987 and the purported planning decision of September 10 1987 are unlawful and
they seek to have them reduced. A separate argument was
decision of July 9 1987.
Counsel for
the petitioners submitted in relation to this first part of the case that there
were three matters which the local authority should have considered; first, the
substantial contribution to the planning process which is made by specific
groups with particular interests; secondly, the statutory procedures which were
open to the authority and, thirdly, the purpose of the legislation. In relation
to the first of these, counsel submitted that the issues involved in the
development of fish farming in Loch Ness were complex and technical to a degree
higher than in normal planning applications. The present issue was one of such
weight and importance as to require a procedure which entitled a full public
consultation. Reference was made to various affidavits whose authors expressed
concern about the hazards of navigation, the adverse effect on tourism, the
damage to fish stocks, the prejudice to fishing and other deleterious effects
of the proposed development. The authors also stated that they had not been
consulted about the proposals. This first matter seems to me to be closely
linked with the second, namely the consideration of the available statutory
procedures. Two alternative courses were suggested as being proper in the
circumstances. One was the preparation of a subject plan under section 9(4) of
the Town and Country Planning (Scotland) Act 1972. It was pointed out that
while such plans had not been prepared in any quantity in Scotland, they had
been adopted in England and Wales in greater numbers and several examples of
these were produced. The other course was an alteration to the local plan.
Alteration could be achieved under section 13 of the Town and Country Planning
(Scotland) Act 1972 as amended by section 40 of the Local Government and
Planning (Scotland) Act 1982. It was pointed out that under the amended
provision in section 13(4) a shortened procedure was available. There is no
doubt that either of these alternatives was a competent course for the local
authority. But the question is whether the authority can be faulted for
deciding to adopt a policy.
Counsel for
the petitioners in introducing his submission, mentioned Wednesbury
reasonableness, but I did not understand his argument to proceed upon the line
that the authority’s decision was unreasonable. That is not the basis on which
the petition is presented. As I understood it, he was arguing in relation to
these matters to which he had drawn attention that the authority had neglected
to take into account relevant considerations which they ought to have taken
into account. That at least is a ground of challenge within the Wednesbury
principles. This approach is not clearly focused in the pleadings nor was it
clearly isolated in the submissions before me, but it seems to me to be a
distinct strand in the petitioners’ oral argument.
I am not
persuaded that the decision to determine a policy was taken wrongfully in
respect that the authority did not take account of the advantage of public
consultation nor of the statutory provisions or purpose. The petitioners
produced no evidence to suggest that the authority had in fact ignored any
relevant consideration. On the contrary, it appears from the report which was
prepared by the director of planning in response to the divisional committee’s
request and which was before them on June 3 1987 that the course of amending
the local plan was before them. The director expressed the view that the most
appropriate medium for the establishment of policy was the local plan but that
it was not inappropriate for the authority to establish individual specific
policies for the purpose of day-to-day development control as they had done for
certain other topics. From the affidavit by the director of planning, Mr
Cameron, lodged by the respondents it appears that, in 1981 and on occasions
thereafter, he had given thought to the preparation of a subject plan, so that
this course of procedure was not one which the respondents’
account the matter of the statutory procedures nor, since it is part of those
procedures, the matter of public consultation.
Counsel for
the respondents accepted that the best way to express planning policy was
through a local plan, but he submitted that the authority had been faced with a
planning application for the fish farming development, that it was their duty
in performance of their function under the statutes to determine it and that
they could not properly neglect it and embark on the lengthy process of a
subject plan or an alteration to the local plan. If they had not taken time to
consider a policy, they would simply have had to decide on the application
without a policy and there would have been no more public consultation than
that which was given in any event in the publication of the application and the
opportunity given for objections. Counsel for the respondents did come to
recognise that on this point he was arguing for the reasonableness of the
course decided upon by the authority and thus was answering an argument which
was not presented. The point, however, came to be discussed how long it would
have taken for a local plan to be made or altered and a submission by counsel
for the petitioners that it could have been achieved within a reasonable
time-scale. That, however, is not to the point of the present case. Counsel for
the respondents was in my view in a strong position in supporting the
reasonableness of the council’s actings but neither in the pleadings nor in the
argument was the petitioners’ case advanced on the proposition that the
respondents had acted unreasonably and this issue does not fall to be
determined.
I should add
that the petitioners’ submission was not extended so as to involve the doctrine
of a duty to consult arising from a legitimate expectation of consultation as
developed in Council of Civil Service Unions v Minister for the Civil
Service [1985] AC 374, [1984] 3 All ER 935. The question was raised during
the hearing how far the importance of the issue would be a ground for a
requirement on the local authority to consult. The point was not explored by
counsel before me and it is not necessary to express a view upon it. But even
if the petitioners’ argument had been extended along this line, I would not be
inclined to hold that the mere importance of a particular decision would by
itself justify an expectation of consultation and a duty to consult.
The ground of
attack which is most clearly focused in the pleadings and which was developed
by counsel arising from the third of the matters to which the authority should
have had regard, namely the purpose of the legislation, is linked with the
other two matters and what I have already said also relates in part to it. But
the argument here was developed along the line that the authority had acted
illegally. The basis in law for the attack thus was that in the circumstances
of the case the respondents had adopted a route which was contrary to the
intention of the planning legislation and that they had sought to frustrate the
purpose of the planning Acts. The decision to adopt a policy was illegal as
contrary to the objectives of the legislation in respect that it thwarted the
intention of Parliament that there should be public consultation. Counsel
founded upon the observation of Lord Reid in the case of Padfield v Minister
of Agriculture, Fisheries and Food [1968] AC 997 at p 1030, [1968] 1 All ER
694. Lord Reid there stated:
Parliament
must have conferred the discretion with the intention that it should be used to
promote the policy and objects of the Act; the policy and objects of the Act
must be determined by construing the Act as a whole and construction is always
a matter of law for the court. In a matter of this kind it is not possible to
draw a hard and fast line, but if the Minister, by reason of his having
misconstrued the Act or for any other reason, so uses his discretion as to
thwart or run counter to the policy and objects of the Act, then our law
would be very defective if persons aggrieved were not entitled to the
protection of the court.
Counsel
submitted that the policy and objects of the planning legislation included as
an important element a scheme of two tiers of plans with a marked emphasis on
public consultation. It was then unlawful for the planning authority to declare
a policy in a matter of such importance as the present without going through
the statutory alternatives. It was implicit in the statutory structure that it
was wrong and unlawful to declare a policy in the present case without going
through the statutory procedures.
The matter
must be one of the construction of the legislation. Certainly there is no
express requirement that a planning authority should adopt one or other of the
courses advocated by the petitioners. Section 9(3) of the 1972 Act confers a
power to make different local plans for different purposes. Regulation 23 of
the Town and Country Planning (Structure and Local Plans) (Scotland)
Regulations 1983 (SI 1983 no 1590) requires certain nomenclature to be used in
the case of a local plan based on a consideration of a particular description
of development or use of land. Beyond these provisions my attention was not
drawn to any provision about subject plans, far less an obligation to make one.
The question whether a subject plan is or is not a useful or appropriate step
in planning must be one which depends on the particular circumstances and even
then may be one on which opinions can differ. In the affidavit lodged by the
respondents their director of planning, Mr Cameron, expresses the view that a
subject plan dealing with a limited number of related issues would not be of
value in relation to the planning and development at Loch Ness and that a
comprehensive plan was preferable. So far as alteration of the local plan is
concerned, section 13 of the Town and Country Planning (Scotland) Act 1972
confers a power to alter such a plan, but there is no express provision
requiring the authority to adopt that procedure either generally or in relation
to the circumstances of the present case.
Counsel for
the petitioners stated that he was not arguing that under all circumstances was
the authority bound to adopt one or other of his alternative proposals. He
accepted that the adoption of the policy was a perfectly proper course to take
in some circumstances. His argument came to be that it was in the circumstances
of the present case that the decision to adopt a policy was illegal. But once
it is conceded that the course is legitimate in some cases it seems to me
impossible to hold that as matter of construction of the legislation the course
is illegal. If the propriety of the course depends upon considerations of
degree and circumstance, then any illegality of using it cannot arise from a
consideration of the legislation. The assessment of the relative importance of
the issue in the present case cannot in my view be a matter to be determined by
the court at least in a case where the reasonableness of the actings is not
under challenge. In any event I find nothing in the legislation express or
implied to justify the view that in cases of importance it is illegal to adopt
a policy as a guide in the making of planning decisions. Moreover, as counsel
for the respondents and counsel for the company pointed out, the purpose of the
planning legislation was satisfied in the consideration of the application for
planning permission. The matter of public consultation was not an objective of
the statute but a method of achieving the objectives of the statute, namely the
proper control of development. There was then nothing illegal in the making of
a policy without specific public consultation. In my judgment, the attack on
the decision to make a policy fails and I turn to the second part of the
petitioners’ case.
The petitioners
challenge the decision of September 10 1987 on the ground that the respondents
applied the policy decision to the application without
reference was made was a passage in the speech of Lord Reid in the case of British
Oxygen Company Ltd v Board of Trade [1971] AC 610 at pp 624-625. It
was there recognised that anyone who has to exercise a statutory discretion
must not shut his ears and refuse to listen to an application and may not adopt
a policy which has that effect or, as is sometimes said, fetters his
discretion. On the other hand it is well recognised that an authority may adopt
a general policy to guide it in the exercise of a discretionary power provided
that the authority appreciates that the policy is only a guideline and
considers the circumstances of each case in the exercise of a discretionary
power.
The first
point to notice is that quite properly in the present case no attack was made
on the policy itself. The first part of the petitioners’ argument was directed
at the decision to make a policy. The second part sought to challenge the
planning decision of September 10 1987 on the ground that councillors had
believed that they were bound by a policy decision to decide in favour of the
development. The policy itself was not attacked provided that it was legal to
have made it. It seems to me quite proper that the policy was not attacked
because it was plainly not a policy which sought to fetter discretion. All it
indicated was an encouragement of the development of fish farming on Loch Ness
at suitable locations and under suitable conditions attached to any consents.
Such a policy in my view necessitates consideration being given to each and
every application and in no way fetters any discretion. If the policy had
stated that all applications would be automatically refused or alternatively
automatically granted without any consideration of their circumstances, that
might have been open to objection. But this decision did no such thing and the
petitioners quite correctly did not suggest that there was anything
objectionable in the policy itself.
But if the
policy is unobjectionable, and if it did not restrict or exclude the exercise
of a discretion in the entertaining of particular applications, it becomes very
difficult to understand how any councillor could consider that he was bound by
the policy to grant the application. If the policy does not fetter discretion,
then a decision made under the policy cannot be faulted on the ground that
compliance with the policy compelled approval of the application.
Counsel for
the petitioners argued that a policy which allowed fish farming in certain
circumstances imposed a fetter on one who believed that no fish farming should
be allowed in the Loch at all. But as framed I am not persuaded that the policy
restricts the discretion in any respect which is open to criticism. Indeed
counsel for the company was in my view entitled to question whether it truly
amounted to a policy at all, since it left discretion so open and merely
expressed a view of general favour. However, the matter came in argument to
depend upon the petitioners demonstrating that councillors had voted for the
development because they thought that under the policy they were required to
prove it.
It is here
that the case entered the area I mentioned earlier where the facts are not
wholly admitted. The petitioners produced an affidavit by a Mrs O’Brien in
which she stated that she had been present at the council’s discussion of the
application on September 10 1987 and had taken notes of the comments by various
councillors which were, as far as she was aware, a fair and accurate
representation of that item of business. The notes are appended to the
affidavit and it was on these that counsel relied to establish his proposition.
The precise accuracy of this record was not admitted by counsel for the
respondents nor by counsel for the company. Counsel for the respondents
produced an affidavit by the county convener, Councillor Russell, who had been
chairman of the meeting but, as I have already recorded, counsel’s
attempts to found upon a newspaper account of the meeting and a clerk’s notes
of what was said failed for lack of consent to my considering such documents. I
am thus left with the evidence on which the petitioners rely and the one
affidavit by the convener. This situation cannot be prejudicial to the
petitioners although it may be that the respondents could have fortified their
contradiction in so far as there is dispute on what precisely was said. I thus
approach the matter on a basis favourable to the petitioners. Mrs O’Brien’s
notes do not claim to be a complete transcript and counsel for the company
submitted that any ambiguity should be resolved adversely to the petitioners,
since if they had raised the present proceedings earlier the complete
transcript might still have been available. But I do not find the text so
unclear as to be required to resort to a solution of that kind.
The first
passage founded upon was the opening remarks by the convener himself. These, as
reported by Mrs O’Brien, were as follows:
Before we
begin the meeting I wish to make the point regarding policy. The policy
decision was carried on a majority vote regarding the matter of fish farms on
Loch Ness and the policy stands. We cannot have a policy one minute and then
follow it by a series of attempts to undermine that same policy. Therefore
today I expect the decision to be limited to the one application before us and
I will rule out of order attempts to argue on overall policy.
Counsel for
the petitioners argued that what Councillor Russell was saying was that the
council had a policy and that they must adhere to it. A desire to refuse the
application would be seen as an attack on the policy especially if the
development was in the right place and so the convener was indicating that they
were bound to grant it. Counsel also founded on a comment by the convener after
a speech by Councillor Johnson, warning of the visibility of the fish cages and
of the dangers to navigation, to the effect that most of what had been said
should be disregarded as it was an attack on policy. But I do not consider that
this record of what Councillor Russell said is to be understood in the way
claimed by counsel. In my view, all that Councillor Russell was saying was that
the council should not proceed to debate policy but should debate the
application before them. Councillor Johnson’s remarks were objectionable
because to an extent they were directed not at the merits or demerits of the
application but at the whole question whether any development of fish farming
should ever be allowed anywhere on the Loch. That is clear from the sentence
which Mrs O’Brien records from his speech: ‘Surely there must be other lochs
that can be used without interfering with Loch Ness.’
Councillor
Russell was, in my opinion, merely endeavouring to keep the discussion limited
to the matter before the council. He is not to be understood as saying that the
matter had to be decided in accordance with any policy. This understanding is
reinforced by the affidavit by Councillor Russell which was produced by the
respondents. In that affidavit he states that at no time did he say or indicate
that he was bound by the policy decision to decide in favour of the
application. He had reminded the members of the policy, urged them to be
responsible and advised that they should look at the merits and demerits of the
particular application. This seems to me to reflect what is recorded in Mrs
O’Brien’s notes and I am left in no doubt that at least in respect of
Councillor Russell the petitioners’ averments that councillors felt themselves
bound by the policy are unfounded.
The next
passage on which counsel founded occurs in a speech by Councillor McIntosh. On
p 4 of Mrs O’Brien’s notes Councillor McIntosh is reported as saying:
I believe in
the natural resources of the area being used in the regeneration of
the area and creating jobs. But we must not compromise on policy. It is okay to
have some fish farms but that is all. If I thought we would lose tourism
because of the fish farms then I would object to it immediately.
Counsel for
the petitioners argued that by saying ‘we must not compromise on policy’
Councillor McIntosh was saying that they could not depart from the policy and
that their discretion was fettered. I am not persuaded that that is a fair
representation of what, according to Mrs O’Brien’s notes, the councillor
intended. He appears to be in favour of economic development and appears to see
the policy as a restraint on development. Certainly he cannot be taken as
believing that the policy obliged the council to approve of this development.
Indeed he expressly states that if he believed that tourism would be prejudiced
he would object to the application. I do not take from his speech any
indication that the council’s discretion was fettered by the policy so as to
inhibit its free exercise.
Counsel
referred to the observations of two other councillors, Councillor Mackenzie and
Councillor Fraser. The former is credited with a statement in the course of his
speech that ‘We must be careful because we will be obliged to follow the policy
rigorously.’ But in the context of his
speech I believe his comment is not related to the policy with which this case
is concerned but rather with the precedent which he feared a favourable
decision would create and so set a pattern for the future.
But however
that may be, counsel for the petitioners recognised that he could not found
upon the statements of this councillor as he had voted against the application
and so could not have felt bound by the policy to approve it. For precisely the
same reason the observations of Councillor Fraser, who had also voted against
the application, must be put aside. He is reported as saying: ‘I know we should
stick to policy but it is more important to stick to the policy in the local
plan than ad hoc policy made up as we go along’. I am not persuaded that this
observation reflects a belief that he was deprived of a free discretion by the
policy. Such a conclusion is in any event contradicted by the way he voted.
Accordingly,
looking at the material produced by the petitioners to establish the
proposition that councillors voted in favour of the development because they
felt bound to follow a policy to that effect, I am not in any way satisfied
that that proposition is made out. I find difficulty in believing that any of
the councillors could have so misunderstood the terms of the policy as to
believe that it obliged them to approve the development without consideration
of the particular circumstances of the application so that they had no
discretion in the matter. But even if that construction of the policy could
have been held, there is no evidence that any of the councillors who voted for
the application did so because they believed they had no alternative and that
their discretion was fettered by a policy which bound them to approve it. I
have proceeded upon a consideration of the evidence adduced by the petitioners
which I take it is putting their case at its best. Other than the affidavit by
Councillor Russell I have no evidence to contradict the accuracy of the report
of what was said. If, as I hold, the petitioners do not succeed on the material
they have produced I see no reason for any further inquiry into the facts.
Counsel for
the petitioners also founded upon a passage in Mrs O’Brien’s affidavit as
follows:
At the
beginning of the meeting, the councillors were instructed that they could not
discuss a change to the policy decision of the Planning Committee to allow fish
farms on Loch Ness without suspending standing orders. It was my impression
that following on from this instruction, one or more of the
for the fish farm did so because there was a policy to allow fish farms on the
Loch as opposed to considering the merits of otherwise of this particular
application.
The first
sentence is probably a reference to Councillor Russell’s observations which I
have already considered. It was not his belief that the policy fettered the
councillors’ discretion. But counsel founded upon the impression which Mrs
O’Brien received that one or more of the councillors voted because of the
policy and not in consideration of the merits. He argued that councillors
considering matters in public meeting must not only exercise but be seen to
exercise an unfettered discretion in something of the same way in which justice
should not only be done but also be seen to be done.
This line of
argument does not seem to me to advance the petitioners’ case. The impropriety
which may arise in this context is not one which depends simply upon the
subjective impression of a bystander but upon the actings of the party whose
decision is under review. In the context of natural justice it is the fact of
one of the parties to the dispute retiring with the tribunal when they are
considering their decision which opens the way to challenge. It is the facts on
which Mrs O’Brien’s impression was based which matters rather than the
impression she received, although her impression may be of relevance as
evidence in relation to the facts. But on reviewing the facts as presented by
the petitioners in the present case, I do not consider that Mrs O’Brien’s
impression provides grounds to doubt the understanding of the councillors. It
is not explained what Mrs O’Brien’s understanding of the ‘policy to allow fish
farms’ was or how far she was familiar with any aspects of the issue raised in
the present petition. But in my view the statements of the councillors, which
she has reported, do not support the conclusion that any who voted for the
development did so because they believed they were bound by the policy to do so
and I cannot rely on her impression in so far as it may be contrary to that in
preference to the evidence of what was said at the meeting as she recorded it.
In my judgment, the petitioners’ challenge to the decision taken on September
10 1987 fails.
The
respondents and the company have each tabled a plea to the competency of the
petition, but I should record that their counsel expressly did not advance
argument on that plea. They also each have a plea of no title to sue and with
respect to that plea their counsel, while not conceding that the petitioners
had a title, did not present any submission on that matter and expressed their
contentment to proceed upon other grounds. The company has a plea of bar on the
ground of mora, taciturnity and acquiescence in respect that they had incurred
substantial expense in relation to the proposed development, but their counsel
stated that he did not intend to argue that plea. There was no agreement or
evidence on the facts in respect of that matter and I need say no more about
it.
It will be
appreciated that it is not my function in these proceedings to determine
whether this particular development in Loch Ness should or should not proceed.
I am only asked to determine whether either or both of the two decisions which
are the subject of this application are open to judicial review on one or other
of the grounds on which such review is available and which the petitioners have
invoked in the present case. Having considered the whole submissions which have
been put before me I am not satisfied that there are grounds for interfering
with either of the two decisions in question and I shall accordingly refuse the
application for judicial review.
Petition refused.
