STEVEN JOHN DEVINE AND OTHERS FOR JUDICIAL REVIEW OF A DECISION OF MORAY COUNCIL MADE ON 13TH DECEMBER 2000 v.
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD EASSIE in the Petition of STEVEN JOHN DEVINE AND OTHERS Petitioners; for Judicial Review of a decision of Moray Council made on 13 December 2000 Respondent: ________________ |
Petitioners: Johnston; Brodies, W.S.
Respondent: Cobb; McClure Naismith
18 January 2002
Introductory
[1]The petitioners are a number of individuals residing in Lossiemouth who seek to challenge the validity of a decision of the local planning authority taken on 13 December 2000 in which the local planning authority granted outline planning permission to the respondent, Mr McPherson and his wife, for the erection of a single storey house on part of an area of land owned by Mr and Mrs McPherson in Lossiemouth.
Topography
[2]In order better to understand some of the issues involved in this petition, it is necessary to say something about the topography of the area of land - "the McPherson land" - of which the site of the proposed dwellinghouse, the subject of the decision under challenge, forms part. The McPherson land is described in the petition and other documentary productions, including the grant of planning permission, as "lying to the north of Firthside", which is a detached dwelling with a surrounding enclosed garden on the northern side of Stotfield Road, Lossiemouth. Although the ground is so described, it appears from the documentary productions, particularly the plan attached to the planning consent in issue (No. 6/1 of process), that the boundary of the garden of Firthside to which it is adjacent may more accurately be described as fronting to the north west rather than the north and the McPherson land extends from that boundary in a north westerly direction to the foreshore of the Moray Firth. For at least part of the length of its south western boundary the McPherson land adjoins one of a group of houses known as Beach Brae. The access to that group of houses consists of a road running over the McPherson land. The road enters the McPherson land at its south western corner and proceeds in an approximately north easterly direction before turning to the north west and then to the west to leave the McPherson land about midway along its south western boundary. In perhaps less precise but more easily pictured terms, the road may be described as entering at the south western corner and then performing a "U" turn before leaving a little less than midway along the south western boundary. It may be added that the distance between the south western boundary of the McPherson land and the opposite north eastern facet or boundary is equivalent to the length of the north western boundary of the garden of Firthside and both the south western and north eastern facets of the McPherson land proceed perpendicular to the north western Firthside boundary wall.
[3]The site of the proposed house and garden which is the subject of the planning consent under challenge does not encompass all of the McPherson land. In particular, the north western boundary of the site of the proposed building represents a north easterly continuation of the north western boundary of the house in Beach Brae lying to the south west of the McPherson land. The site does not extend to the tract of land extending further to the foreshore. The site lies generally to the north east of the U of the existing Beach Brae access road.
[4]It is apparent that the McPherson land declines from the south western corner in a generally north east to northerly direction. Thus, at its south western apex the elevation of the ground is some 103.78 metres. At the point on the south western boundary at which the access road exits after having made its U turn the elevation has reduced to 100 metres. At the north eastern apex of the site of the proposed house and garden the elevation is some 99 metres. The elevation of the top of the boundary wall of the garden of Firthside declines from some 105 metres at its south western end to 104.6 metres at its north eastern end.
Development Plan Policy
[5]It is not necessary to set out all the development plan policies applicable to the application for planning permission which the local planning authority decided to grant in the decision now under challenge. The particular provision of the development plan in contention in these proceedings is that designated in the Moray Local Plan 2000 as "ENV 1 'Beach Bar' Foreshore" which is worded thus:
"To be retained as public open space, in which development may not impair views out to sea nor the feeling of an open natural area. Includes the Lossiemouth Shore SSSI immediately adjacent to the town."
That policy does not apply to all of the McPherson land. The south west bounding line of the land affected by that policy is drawn, in the local plan, around the apex of the U of the Beach Brae access road thus dissecting the McPherson land. A similarly worded policy applied under the preceding local plan, replaced by the Moray Local Plan 2000.
Planning History
[6]It appears that for some time Mr and Mrs McPherson have wished to build a house on the McPherson land and have submitted several proposals for development at varying locations. Thus, one application, which was refused on 27 April 1995 and dismissed at appeal on 23 April 1996, related to a location within the McPherson land but to the north west of the current site. However, on 3 March 1998 the local planning authority granted an application for outline consent for the construction of a house on the south western part of the McPherson land, effectively south westward of the confines of the U bend of the Beach Brae access road but extending well over the area occupied by that road. An integral part of that grant of planning consent was thus not only the construction of a house on the more elevated part of the McPherson land but the re-routing and construction of a new Beach Brae access road north eastwards into the area covered by the policy above referred to but yet confined within the area of the McPherson land. No legal objection or challenge was taken to that decision, which remained as a valid consent when the decision now under challenge was taken. It may also be noted that an application made in 1999 for a house in approximately the same position was refused by the local planning authority and on appeal, the reporter in refusing the appeal considered that in terms of the impact of that proposal on the character of the locality, there was a justifiable presumption against development in this locality and it would not be possible to eliminate or significantly reduce the present feeling of an open natural area and the house would be physically divorced from the existing development to the south west and be outside the loop of Beach Brae.
[7]It appears that the McPhersons, holding to the view that it would be preferable to re-locate the proposed dwelling for which they already had outline consent within the McPherson land by situating their house to the north east of the Beach Brae road at a lower level, proposed a dwelling of reduced scale and height. They accordingly submitted the application for outline planning permission which was ultimately approved by the local planning authority on 13 December 2000. As appears from the report by the relevant officials in the local planning authority to its members (No. 6/3 of process) the proposal envisaged a single storey house which by reason of its location in the inferior portion of the McPherson land would have a roof height which would not rise higher than the top of the north west boundary wall of Firthside. The outlying consent under challenge contains a condition (Condition 9) reflecting that aspect of the proposal.
The Decision
[8]The official responsible for the report to the relevant committee of the local authority recommended that the application be refused on the ground that it was contrary to certain provisions of the development plan and particularly because the "proposal, by reason of its location and resultant visual and physical impact, would not successfully integrate with the landscape and as such it would intrude upon and detract from the appearance and character of the open natural area of the 'Beach Bar' foreshore ...". The report narrated, among other things, that objections to the proposal had been received; that the application had been advertised as being contrary to the development plan; that a site visit was recommended; and that if the authority were minded to approve the application, a hearing was recommended.
[9]In accordance with the first of those recommendations a site visit by members of the relevant committee of the local authority took place on 8 December 2000. Following that visit the committee resolved on 13 December 2000 to grant the application. As is apparent from the minute of that meeting (No. 6/2 of process) opinion was divided. A motion having been made for refusal of the application, in accordance with the recommendation of the officer of the authority, a contrary proposal for its approval was moved by councillor Flynn. The minute notes the grounds which she advanced for approval of the proposal as being that:
"The proposal was scaled down from that previously submitted and the re-location would not, in her opinion, encroach onto the recreational amenities of the area, would not result in a loss of privacy or noise and a breach of the plan had already occurred".
The meeting also considered, in accordance with the recommendation as to procedure where objections have been received whether it should, in its discretion, hold a hearing. It appears from the minute that those attending were of the unanimous view that a hearing was not appropriate. Accordingly by twelve votes to eight the committee resolved to approve the application.
[10]By way of amplification of the basis of councillor Flynn's motion for approval of the proposal which is recorded in the minute, there has been lodged (No. 7/4 of process) an affidavit by councillor Flynn in which she depones inter alia that approximately sixteen of the committee members attended the site visit; that she had read the official's report and was aware of the planning history and their recommendation; and that in referring, before the committee, to a previous breach of the local plan she had been referring to the decision of March 1998 which involved the construction of a new road as part of the re-routing of the Beach Brae access road onto the area covered by the policy Lossiemouth ENV 1.
The Grounds of Challenge
[11]Although the framer of the petition sought to invoke Article 6 of the European Convention on Human Rights, Mr Johnston, who appeared as counsel for the petitioners, expressly disclaimed any reliance on that Convention. The grounds which he advanced for impugning the validity of the decision were, in summary, -
(a)The decision was "Wednesbury" unreasonable as being one which no local planning authority could ever reasonably have taken;
(b)it was vitiated by the authority's having taken into account an irrelevant factor, namely that there had been a previous breach of the development plan; and
(c)the decision to grant planning permission without a hearing involved a breach of the petitioners' legitimate expectations.
[12]For his part Mr Cobb, who appeared for the respondent, in addition to opposing each of those grounds of challenge contended that by delaying the initiation of these proceedings for more than seven months, until 31 July 2001, the petitioners were personally barred by that delay from now challenging the validity of the decision taken on 13 December 2000. The first plea-in-law for the respondent in his answers was one of bar by reason of mora acquiescence and taciturnity.
The Respondents Plea of mora
[13]It is convenient to deal firstly with this plea which turns on the delay involved in raising the proceedings and the consequences of that delay for the McPhersons.
[14]The decision was taken on 13 December 2000, and apparently reported in a local newspaper on 15 December 2000, and I was told by counsel for the petitioners that those who had objected to the application were informed by letter dated 20 December 2000 of the terms of the decision. Despite that early intimation it was not however until 31 July 2001 that the petitioners commenced the present petition proceedings and sought interim interdict against the local planning authority's granting full consent for the McPhersons' proposal. It was only on that date, being the day before the local planning authority was due to consider the McPhersons' application for detailed consent, which they had lodged on 17 May 2001, that the McPhersons learned of the petitioners' intention to seek to challenge the validity of the grant of outline consent.
[15]Counsel for the respondent submitted that the petitioners were barred by that delay and that his plea of mora taciturnity and acquiescence should be upheld. No indication having been given to the McPhersons of any intention to challenge the validity of the decision of 13 December 2000 the McPhersons had decided to proceed with detailed consent in terms of that grant and to allow the outline consent granted in March 1998 to lapse. The McPhersons had incurred substantial expense on professional fees for the preparation of detailed plans pertaining to the application which they submitted on 17 May 2001. They had also been living in cramped, rented accommodation. Accordingly in the absence of any timely intimation of a legal challenge to the grant of the outline consent, the McPhersons had materially altered their position and would suffer significant prejudice were that grant now to be annulled.
[16]In elaboration of his submission Mr Cobb referred to Hanlon v Traffic Commissioner 1988 S.L.T. 802 and to the relatively well known discussion of the nature of the plea of mora in Assets Company Ltd v Bain's Trustees (1904) 6F 692, 705. The former case indicated that, in the context of judicial review of administrative decisions, a relatively short delay coupled with a material alteration of circumstances by a third party could found a successful plea of mora. Counsel for the respondent further submitted that delay such as that in the present case was contrary to the public interest in good administration. He referred to the observations of Lord Diplock in O'Reilly v Mackman [1983] 2 A.C. 237, 280 in which his Lordship said that -
"It is recognised that the public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision for any longer than is absolutely necessary in fairness to the person affected by it".
In its decision in King v East Ayrshire Council 1998 S.C. 192 the Court had made it clear that the public interest in good administration and the position of affected third parties was a material circumstance in deciding whether a petition for judicial review might be barred by reason of delay. Although the bringing of the petition in King was not so barred, the period of delay in that case was much shorter, there was no affected third party such as the present respondent, and the petitioner in that case had voiced her opposition to the local education authority's decision throughout. Counsel for the respondent then referred to Uprichard v Fife Council 2000 S.C.L.R. 949 in which the Lord Ordinary (Bonomy) had regard to that public interest in his upholding a plea of bar where objectors to a grant of planning permission had delayed for some nineteen weeks before taking any proceedings, during which time the works envisaged by the consent were proceeding. Additionally, counsel for the respondent referred to Reside v North Ayrshire Council 2001 S.L.T. 6 and the conclusion reached in that case by the Lord Ordinary (Prosser) at para. [14] of the opinion that in judicial review it will be legitimate and may be appropriate to take into account the general question of detriment to good administration by delay on the part of those seeking to challenge an administrative decision.
[17]In his response, counsel for the petitioners did not take significant issue with the legal authorities to which reference had made by counsel for the respondent. He submitted that mere delay in itself was not sufficient to bar an application for judicial review. One required either acquiescence, or prejudice to another party or to others. He submitted that the approach adopted by Lord Bonomy in Uprichard was an appropriate one to follow. In relation to the other authorities to which Mr Cobb had referred, counsel for the petitioners observed in relation to King that the Court had had regard to the fact that the petitioner in that case was of modest means and that she was among other parents who continued to protest against the local education authority's decision. Similar regard should be had to the present petitioners. The Court should also consider whether delay in raising proceedings might be explained in a manner inconsistent with acquiescence and in that connection counsel referred to Singh v Secretary of State for the Home Department 2000 S.L.T. 533.
[18]Counsel for the petitioners went on to submit that what had occurred after the giving of the decision on 13 December 2000 was not consistent with any acquiescence on the part of the petitioners. He gave this chronology of events. After the decision had been taken the objectors had been sent the letter dated 20 December 2000 which was received on 24 December 2000. On 25 January 2001 the third named petitioner, Mr Metzler, wrote a letter (No. 6/8 of process) to a councillor Aldridge referring to the report in the edition of a local newspaper of 15 December 2000 relating to the grant of the consent to the McPhersons and the proceedings attending on it. In that letter Mr Metzler requested that the objectors be given an opportunity of a hearing. It is averred by the petitioners, and I was so informed by their counsel, that no reply to that letter was received until 3 April 2001 when Mr Metzler received the councillor's letter of 2 April 2001 (No. 6/9 of process) which enclosed a copy of the council minute of the decision of 13 December 2000. It was not suggested by counsel for the petitioners that in the interval between the grant of outline consent and the receipt of the councillor's response on 3 April 2001, any steps whatever had been taken by way of Mr Metzler or the other petitioners to challenge the validity of the decision in question or to indicate that any such challenge was under consideration. According to the information given to me by counsel for the petitioners, the next step was that, some six weeks later, on 19 May 2001, the petitioners and certain others met and resolved to form an action group. Thereafter, activity took place with a view to raising funds and preparing for signature a petition of protest for eventual presentation to the Moray Council. A public meeting was convened on 16 June 2001 following which, on 21 June 2001, a petition was presented to the Council asking them to revoke the grant of planning consent (apparently under Section 65 of the Town and Country Planning (Scotland) Act 1997). Counsel narrated that the question of revocation under that legislative provision remained live until about the end of July when the now petitioners were advised by their solicitor that, following their solicitor's discussion with the Council's legal department, the decision was unlikely to be revoked. The present petition for judicial review was therefore raised on 31 July 2001, the local planning authority being due to consider the respondents' application for full planning consent on the following day.
[19]Counsel of the petitioners submitted that against that history of events there had been a great deal of activity and the respondent must have been aware of that activity. The basis for that awareness was attributed by counsel for the petitioners to what he described as "the local climate of opposition" which he said had prevailed since 1994.
[20]Counsel for the petitioners went on to submit that no sufficient prejudice had been suffered by the respondent to justify any bar to the bringing of these proceedings. Counsel stressed that no works had actually taken place on the site. The amount of the fees incurred in preparing plans for the detailed application was, he said, not large. It would be open to the McPhersons to apply yet again for the outline consent which had been given to them in the March 1998 consent.
[21]Counsel for the petitioners accordingly submitted that, in the absence of significant prejudice, and there being no absence of activity which could indicate acquiescence by the petitioners in the decision of the local planning authority, the respondents' plea of mora should be repelled.
[22]In approaching these competing submissions I begin by noting that the importance of promptly taking proceedings for judicial review of administrative decisions has been repeatedly stressed. To take a leading example, in King v East Ayrshire Council the Court accepted (188 G) "that, in general, applications for judicial review should be made at the earliest possible opportunity and a failure to do so may well lead to an inference of acquiescence which would be fatal to the application.". The need for prompt action may be greater in one context than another. The context of the present proceedings is, of course, the grant of a planning consent by the local planning authority. A planning consent takes immediate effect. It enables the owner of the land to do what he would otherwise have been entitled to do, but for the planning legislation. While there is provision for a statutory appeal against refusal of planning consent there is no provision for any such appeal against its grant. Thus a recipient of a grant of planning consent may well be likely to proceed, with relative despatch, to organise his affairs on the basis of having such a consent. The existence of a planning permission for a development on a particular site may also have consequences or implications for other third parties and, as was observed by Lord Bonomy in Uprichard (958B), the "public interest in good administration includes the administration of the general planning system in relation to other applications which might be affected by the decision made in this one". In the case of a planning permission granted by the Secretary of State under appeal in terms of Section 48 of the Town and Country Planning (Scotland) Act 1997, the statute itself lays down a period of six weeks for the bringing of any legal challenge by an objector to that grant of a planning consent. It accordingly appears to me that where an objector wishes to challenge by means of judicial review, the validity of a decision of a local planning authority granting a planning consent there is a need for the objector to act with alacrity otherwise he risks finding his challenge successfully barred by a plea of mora.
[23]In the present case, as counsel for the respondent pointed out, roughly seven and a half months elapsed between the grant of the planning consent and the hurried initiation of these proceedings. It may also be noted that no prior intimation of an intention to raise these proceedings challenging the validity of the decision was ever given. Within that period of seven and a half months, there are substantial intervals of inactivity for which no real explanation is offered on behalf of the petitioners. Thus, following his reading of the decision of the newspaper published on 15 December 2000, Mr Metzler waited some six weeks before writing to councillor Aldridge. His letter did not contain any suggestion of a legal challenge to the validity of the decision. Mr Metzler did nothing at all during the ensuing interval between 25 January and the councillor's reply on 3 April 2001. It is not suggested that any of the other petitioners did anything whatsoever to indicate an intention to mount legal proceedings challenging the validity of the grant of planning consent or indeed that they took any active steps of protest. Even after the receipt of the councillor's perhaps unhelpful reply of 2 April 2001, no immediate steps were taken towards preparing or intimating any intention to mount a challenge to the legal validity of the decision. The next item in the chronology is simply the convening of the meeting in the second half of May.
[24]In my opinion, in the field of administrative activity with which one is presently concerned, such delay or inactivity, which is not justified by any conceivable practical consideration, falls to be regarded as unreasonable. In my view, the respondent - and no doubt others - were entitled to infer from such inactivity on the part of those who had objected to the grant of outline planning consent that they acquiesced in the validity of the decision. Counsel for the petitioners sought to invoke the existence of what he described as a "climate of opposition" which he said had obtained since 1994 as indicative of the existence of challenge. Apart from its vagueness, I do not consider that assertion to assist him. In the first place opposition may relate to the merits, rather than the validity of the proposal. The 1998 decision was, on counsel's hypothesis, taken in the face of a climate of opposition. It was not the subject of any legal challenge. Indeed, the existence of organised opposition forces and their subsequent taciturnity is no doubt more readily to be conceived as an indication of their acquiescence.
[25]Adverting to the other principal branch of the plea of mora taciturnity and acquiescence, it appears to me that in the light of the absence of any indication of an intention to challenge the validity of the grant of the outline planning consent the McPhersons have indeed materially altered their position and would be prejudiced - in a legally relevant sense - were the grant now to be annulled.
[26]Counsel for the petitioners maintained that Mr McPherson was not prejudiced by having decided to let the 1998 consent expire since he might simply re-apply with a good hope of obtaining the grant of new. I do not agree with that submission. Apart from the expense (which is not insignificant) and the trouble to which the respondent would be put there is plainly a real difference between owning land to which a planning consent effeirs and owning the same land with but a hope or prospect of obtaining such a consent. It is further the case that, prior to the petitioners having even got round to organising their initial group action meeting on 19 May 2001, the respondent had given practical effect to the terms of the outline grant of planning consent by having instructed and obtained all the necessary plans in order to deal with the reserve matters. In a sense, the outline consent had been to that extent implemented. That implementation was obtained only at a cost. That cost amounted to slightly over £5,415. While that sum is plainly not a vast amount, I do not agree with counsel for the petitioners that it can be treated as being in some way insignificant or inappropriate when one comes to consider the ingredients of a plea of mora. In all of these circumstances I am satisfied that the respondents' plea of mora is well founded and should be upheld.
[27]While that finding is sufficient for determination of this petition, given that I was fully addressed on the substantive issues invoked by the petitioners it is appropriate particularly in the event that the case proceeds further that I should express my views on those matters, albeit somewhat more briefly.
Irrationality/Irrelevant Consideration
[28]In advancing the proposition that the decision to grant outline planning permission was invalid by reason of its irrationality counsel for the petitioners referred to the well known description of that ground of challenge described in Associated Provincial Picture v Wednesbury Corporation [1948] 1 K.B. 223. He also referred to the further description of that test given by Lord Diplock in his speech in the case of the Council of Civil Service Unions v The Minister of Civil Service [1985] 374, 410 in which his Lordship said that the irrationality or Wednesbury unreasonable test applies to "a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
[29]Counsel for the petitioner relied on three factors which, he said, had demonstrated the irrationality of the decision. Firstly, in granting planning consent the local planning authority had departed from the policy set out in the local plan, particularly policy Lossiemouth ENV 1. Secondly, the decision disregarded the planning history of the site which, said counsel, adopted a consistent approach of regarding any development other than development within the loop of the Beach Brae access road as inappropriate. Thirdly, the local planning authority had departed from the recommendation of its officials.
[30]In regard to his contention that the local planning authority's decision was vitiated by its having taken into account an irrelevant factor, counsel for the petitioners submitted that it was wrong to say that there had been a previous breach of the local plan by reason of the consent granted on 3 March 1998. As I understood him counsel first submitted that there was no breach of the plan since the consent, and particularly the re-routing of the access road, had not in fact been implemented. In my view, that submission is unsound in terms of planning law since the consent was yet valid and could - indeed probably would - be implemented had the attempt to obtain permission to construct the single storey house not been granted on 13 December 2000. The succeeding contention of counsel for the petitioners on this branch was that there was a material difference between constructing a new road on the area protected by the policy ENV 1 and constructing a house, since a road would not block views to the extent to which a house would. Accordingly, it was said by counsel for the petitioners, in having regard to its earlier decision granting outline consent the local planning authority had taken into account an irrelevant consideration.
[31]In his response Mr Cobb, for the respondent, submitted that the issues raised by the application under consideration by the local planning authority involved essentially an exercise of planning judgement. That exercise fell to be performed by the members of the relevant committee of the local authority who not only had their local knowledge but in this particular instance had gone to the trouble of making a site visit. There was nothing to suggest that the committee was other than aware of the terms of the local plan; the terms of their official's report to them; and the existence of the objections; and the nature of those objections. It was important to appreciate that, as was apparent from both the terms of the official's report and the minute of the local planning authority's decision that, by comparison with the earlier proposals, the proposal under their consideration was scaled down and involved a house of different proportions whose highest point would be below the north western boundary wall of Firthside. It was set in a different location from previous locations. The test of Wednesbury unreasonableness or irrationality was a stringent one and it could not be said that it was met in this case.
[32]In regard to the petitioners' contention that the local planning authority had taken into account an irrelevant consideration counsel for the respondents submitted that the local planning authority was entitled to have regard to its previous decision in March 1998, but that decision was not evidently crucial to the decision under challenge. The March 1998 decision unquestionably involved "development" within the ENV 1 area in that it involved the construction of a roadway. In so far as constructing a house might prima facie be more visible than the construction of a road it was to be noted that the local planning authority whose members had visited the site were aware that they were considering a house of different proportions from that formerly proposed, whose highest point would not exceed the height of the boundary wall of Firthside. The purpose of the development plan policy in question was one of protecting amenity in terms of views and outlook and it was apparent, both from the minute and from councillor Flynn's affidavit, that the question of amenity was foremost in the mind of the committee.
[33]In approaching these competing submissions I did not understand counsel for the petitioners to dispute the view that the test of unreasonableness, or irrationality, entitling a court to interfere with an administrative decision of the kind at issue was a high or stringent one, which does not of course allow a court to undertake a review of the general merits of the decision with the object of substituting its own opinion. In my view, the contentions put forward by Mr Johnston under this branch of his argument do not satisfy that test (which is not of course in any way an equivalent of the full right of appeal to the Secretary of State in the event of a refusal of planning consent.) Taken individually, none of the factors relied upon by counsel for the petitioners constitutes an index of irrationality. Assuming for the present that the proposal was contrary to the local plan, it must be observed that the provisions of the development plan, even in light of Section 25 of the 1997 Act, as to which no argument was offered, are not tablets written in stone whence a local planning authority may not be part except at the expense of acting irrationally. While it is true that the history of applications discloses only one instance of consent for the construction of the house, the site of that house being within and upon the loop of the Beach Brae access road, it does not appear to me that it can be said that the history of earlier decisions must irrevocably fix the limit of what is permissible, particularly where one is dealing with proposals for a building of different scale or dimensions. The third factor, the adverse recommendation of the official dealing with the application, cannot in itself taint the local planning authority's decision with irrationality. To adopt that approach would largely amount to vesting decisions in an official, at the expense of the democratically elected members of the authority, who are of course responsible to their electorate for their decisions.
[34]While I mention these items separately, I did not understand counsel to submit that any of those factors in itself sufficed. He, to my mind understandably, invoked them in combination and although he advanced these factors albeit in combination but yet separately from what he termed the "irrelevant consideration" I think it appropriate ultimately to examine the latter together with the former combined factors.
[35]As I have already indicated, I have no hesitation in rejecting the contention that because the March 1998 consent had not been implemented it could not amount to a relevant consideration. The alternative or second contention for the petitioners was that the March 1998 consent did not involve a breach of the relevant terms of the local plan. The proper construction of the terms of that policy was the subject of limited debate before me and it has to be said that the wording of that policy is perhaps somewhat ambiguous. If one takes the view that the policy prohibits "development", within the meaning of the planning legislation, the development plan was unquestionably breached by the March 1998 consent which provided for the construction of a new road in the relevant area. (It is also to be observed that the road would be a road constructed on an incline.) If, on the other hand, the development plan policy in issue envisages development provided it does not impair "views out to sea or the feeling of an open, natural area" it appears to me that the consequences of a proposal for development in relation to such "views out to sea" or such "feeling of an open, natural area" must be a matter for judgement - and often subjective impression - of those charged with the task of determining applications for planning consent. In so far as the local plan policy refers to the somewhat vague concept of the "feeling of an open, natural area" it is at the least arguable that the construction of a road traversing inclining ground would breach that condition. All that said, I do not consider it necessary or appropriate to endeavour to resolve all the possible ambiguities within the policy in issue. The reality is that, in light of the information available to the members of the committee, they could only interpret the reference by councillor Flynn to a "breach" as referring to the March 1998 consent. However that March 1998 decision may be interpreted, I find it impossible to treat that decision as an irrelevant one. On the contrary it was highly relevant since it not only gave consent for "development" within the area covered by ENV 1 but also gave unrestricted consent for the construction of a house on the very edge of the ENV 1 protected area and at a higher level, whose effect in visual or amenity terms might arguably be much more damaging in terms of views out to sea than the construction of a house at a lower level. In short, the complaint becomes, in my view, a rather narrow one namely whether the March 1998 decision was properly a "breach". That is in first instance a matter for decision by the local planning authority. Given the imprecision of the terms of the local plan it is, in my view, understandable that the March 1998 consent might be seen as a "breach".
[36]Accordingly, taking all of the points advanced by Mr Johnston under the first two heads of his argument together, I am unable to conclude that the local planning authority's decision is legally invalid on those grounds. I appreciate that, in terms of its planning merits, the case for building on the McPherson land may be debatable and I am conscious that it has become the subject of local controversy. Debate or controversy does not however equiparate with irrationality or illegality. In light of the evident topography of the McPherson land, the existence of the March 1988 consent and the particular proposal which included a condition that the height of the proposed dwelling for which outline consent was sought would not exceed the eight of the boundary of Firthside, one can see that there are arguments in favour of the proposal which the members of the local planning authority could properly accept. I am thus not persuaded that the decision to grant consent was one which was vitiated by the taking into account of any irrelevant factor or was one which defied logic.
[37]The petitioners challenge to the validity of the merits of the decision would therefore have fallen to be refused on this ground.
Legitimate Expectation of a Hearing
[38]As I understood it the contention for the petitioners under this ground of challenge was that there was an established practice, on the part of this local planning authority, of giving objectors a hearing. In relation to the law on this matter, counsel for the petitioners referred to the Civil Service Unions case at 415 and also to R v Monmouth District Council ex parte Jones (1985) 53 P and C.R. 108. For his part, among the authorities on this aspect of the case, counsel for the respondent referred to the judgment of Simon Brown, L.J. in R v Devon County Council ex parte Baker [1995] 1 A.E.R. 73, 88B. He submitted that of the four categories to which Simon Brown L.J. referred only the fourth, described at 89E was relevant namely that a particular procedure, not otherwise required by law in the protection of an interest must be followed consequent upon some specific promise or practice, the Civil Service Unions case being an illustration of that. I did not understand counsel for the petitioners to dispute Mr Cobb's identification of that particular head as being the only one pertinent in the present case.
[39]The basis where on the petitioners contend that they had a legitimate expectation of a hearing turns, as I understand it, on the phraseology of the minute of the committee's decision of 13 December 2000. The particular passage was that which recorded the view of the officials that "in the circumstances and in accordance with previous practice, the Committee should exercise its discretion and grant objectors the opportunity to be herd (sic) by the Committee prior to a final decision on the application being taken"
[40]The meeting thereafter went on to consider, having been referred to Planning Advice note 41, (No. 6/6 of process) which again emphasises whether to grant a hearing is a matter for the discretion of the planning authority, to decide without any contradictory view that a hearing was not appropriate.
[41]In these circumstances analysis of the issue under this branch of the petitioners' argument appears to me to involve the simple question whether, as asserted by counsel for the petitioners on the basis of the Minute, there was an established practice on the part of the local planning authority of granting a hearing to objectors in every case in which an objection was lodged, or whether the authority retained a discretion to decide whether such a hearing might be appropriate.
[42]In my view, the contention for the petitioners seeks to place an unjustified construction on the terms of the minute of the relevant decision of the local planning authority. It is in my view evident, even from the terms of the particular passage relied upon by the petitioners, that the practice of the local authority was to regard a hearing at which objectors might be present as being a matter within their discretion. The retention of such a discretion is indeed consistent with the terms of the planning advice note subsequently referred to in the minute and lodged as a production. None of the other documentary productions is in any way suggestive of an established practice whereby a hearing would be granted to any objector to a planning application which is the thrust of the petitioners' contention. In these circumstances I am not persuaded that any proper grounds have been advanced for the contention that there was a denial of any legitimate expectation of a hearing on the part of the objectors. There was no submission that the discretion to allow or refuse a hearing was unreasonably exercised. The councillors, both those in favour of and opposed to the application were of the clear view that a hearing was not required. For the avoidance of misunderstanding (cf Mr Metzler's letter of 25 January 2001), there is no question of the planning authority having given the applicant for planning permission for an oral hearing, denied to the objectors. No oral hearing was given to the applicant.
[43]In these circumstances I do not consider that there is substance in the second ground of challenge advanced by the petitioners.
[44]In the whole circumstances this petition falls to be dismissed.