Petitioner: Gale, Q.C., Gill; McGrigors

Respondents: (South Lanarkshire Council): Sir Crispin Agnew, Q.C., Cowie; Simpson & Marwick

(JHAG Ltd): Findlay; Tods Murray

18 October 2011

[1] On 17 February 2010 JHAG Ltd applied to South Lanarkshire Council (referred to as "the Council") for outline planning permission for a proposed development at Redwood Crescent, Peel Park, East Kilbride; the development included a superstore, a garden centre, a hotel, a petrol filling station, allotments and certain other works. On 29 March 2010 the petitioner applied to the Council for planning permission for the erection of a superstore at 18/20 West Mains Road, East Kilbride. The petitioner's site and JHAG's site are situated approximately 1 km apart. On 30 March 2010 planning consultants acting on behalf of the petitioner objected to the application by JHAG. Despite the petitioner's objection, on 5 October 2010 South Lanarkshire Council granted outline planning permission for JHAG's development. The petitioner has brought the present petition for judicial review of that decision. In the proceedings, the Council appears as respondent and JHAG appears as an interested party.

[2] On the same date as the petitioner's objection to the JHAG application was lodged, the petitioner wrote to the Council requesting that its and JHAG's applications should be determined together. On 20 July 2010 Ediston Opportunity Fund made a further application for planning permission for the erection of a food superstore and associated works at Atholl House, Churchill Avenue, East Kilbride. Ediston subsequently requested that all three applications should be considered together. The Council responded that it had no policy of dealing with related applications together. On 18 June 2010 the petitioner lodged an application for judicial review of the refusal to conjoin the applications. On 21 June 2010 the Council gave an undertaking not to consider the application by JHAG at a Planning Committee meeting to be held the following day. On 27 August Council officers advised the petitioner that at a meeting to be held on 7 September the Planning Committee would consider whether the applications by JHAG, the petitioner and Ediston should be considered together. Written representations were requested by 31 August, and each applicant duly submitted such representations.

[3] At the meeting held on 7 September the Planning Committee had a report by the Council's Executive Director (Enterprise Resources) dated 1 September 2010. In this report the Committee was asked to consider whether the submissions by the three parties should be conjoined or considered separately at subsequent Committee meetings. In the report it was indicated that, in relation to the petitioner's application, there were "fundamental issues in resolving matters raised by Transport Scotland". It was further stated that "the transportation issues to be resolved are significant and to date it is not clear what the timescales are to resolve these, assuming that they are able to be resolved". A meeting of the Planning Committee was held on 7 September, at which those statements were repeated.

[4] The petitioner avers that the information given to the meeting about those matters was inaccurate. At the time it is averred the petitioner was discussing various alternative layouts with Transport Scotland, all of which, it is said, were superior in safety and standards to the layout in the petitioner's original application. Transport Scotland had also informed the petitioner's consultants that it was revisiting its position on the JHAG application. On 7 September the Committee decided that the JHAG application should be determined in advance of the applications by the petitioner and Ediston at the next or a subsequent meeting of the Committee. The JHAG application was allocated to a meeting of the Committee to be held on 5 October 2010. The petitioner's earlier application for judicial review was heard in the Court of Session on 1 October 2010, and the motion for interim interdict was refused on 4 October.

[5] On 17 September 2010 representatives of the petitioner and its advisers met officers of the Council to discuss, among other things, the accuracy or otherwise of the assertion made on 7 September that there were fundamental problems with Transport Scotland and an uncertain timetable for resolving any such problems. The petitioners' representatives informed the Council's officers that they understood that Transport Scotland was about to issue a response confirming that it was content with the petitioners' application, subject to certain conditions. That response was expected within a few days. The transport officers of the Council who were in attendance at the meeting disputed that view, and the Council's Executive Director (Enterprise Resources), who was chairman of the meeting, stated that there was significant uncertainty and that it could not be guaranteed that that would occur. On 20 September 2010 Transport Scotland stated that it was content that the petitioner's application should be granted, subject to certain conditions.

[6] At the meeting held on 17 September the Council officers also referred to a number of issues in relation to retail matters that were said to be outstanding. In a letter dated 6 September the petitioner's planning consultants had replied to queries previously raised by an officer, and the petitioner avers that it had received no further indication that any matter was outstanding. The petitioner's consultants responded to these queries at a meeting held on 20 September and in the letter dated 22 September. The petitioner avers that in these it addressed all outstanding questions. Before the meeting held on 5 October the Council's officers had given the petitioner no indication that they did not accept the petitioner's position as set out in the letter of 22 September.

[7] At the meeting of 5 October the Committee had before it a report by the Council's Executive Director (Enterprise Resources) dated 21 September. In this report the Planning Committee was asked to approve a recommendation to grant planning permission in principle to JHAG. The Committee granted such planning permission, and the petitioner submits that the inference should be drawn that it accepted the reasoning and conclusions of the report dated 21 September. The material sections of the report relate to the representations made in respect of the JHAG application. These are as follows. First, it had been represented (page 7) that Peel Park, JHAG's site, was of strategic importance as a Strategic Industrial and Business Location (it was zoned accordingly) and should therefore be retained as industrial land; the petitioner's site at West Mains Road, by contrast, was not a Strategic Industrial and Business Location, and was brownfield and not greenfield. The recommendation from officials was that the zoning of Peel Park should be reconsidered and that the petitioner's application should be considered on its own merits. Secondly, it was represented (pages 8 and 9) that the supporting information for the JHAG proposal did not consider the West Mains Road site in terms of the sequential approach; and further that, in order to observe the principles of natural justice and act fairly, the JHAG application and the petitioner's application should be considered at the same Committee meeting. The response was that the existence of the petitioner's application, and the application by Ediston, were material considerations in dealing with the JHAG proposal. Nevertheless the Council was not obliged legally to hear two or three competing applications at the same time but had to act reasonably in dealing with the request to conjoin consideration of the planning applications. In relation to the three applications, it was noted that for the JHAG application all information was submitted and the assessment was complete; with the petitioner's application, however, "there remained outstanding issues to be resolved in regard to retail and transportation matters". The options that were available were accordingly to determine the JHAG application in advance of the other two applications at the next Planning Committee meeting or to conjoin the JHAG application and the petitioner's application, in which case the timescale would be undetermined. Joining with the Ediston application was added as a third possibility.

[8] Paragraphs 6.12-6.15 of the report (pages 14-16) gave detailed consideration to the sequential analysis that is required by national planning policy. Much of the petitioner's criticism of the Council's approach was based on an alleged failure to conform to that policy. The policy is set out below at paragraphs [11] and [12], and the material provisions of the report are summarized at paragraphs [29] and [30]. The report gave further consideration to roads and transportation at paragraphs 6.35 and 6.36 (page 20). The recommendation (page 21; paragraphs 6.41 and 6.42) was to grant planning permission to JHAG. It was noted that, while the JHAG application was not in conformity with business and industrial policies of the Structure plan and the Local plan, the Executive Director (Enterprise Resources) considered that a development of the scale and mix of uses proposed by JHAG would enhance the facilities available to the population of East Kilbride and to the west and south of town, and was complementary to the wider regeneration aims of the Local Plan. On that basis he considered that the proposed development was not a significant departure from development plan. He further expressed the view that there would be no detrimental impact on strategic centres, village or neighbourhood centres, and that the proposal would not prejudice the Local Plan strategy for East Kilbride town centre. Counsel for the petitioner submitted that there was no mention in this assessment of the sequential test.

[9] As stated above, at the meeting of the Council's Planning Committee held on 5 October 2010 it was decided that planning permission in principle should be granted for the JHAG development. The effect of that decision was, for practical purposes, to remove any likelihood that planning permission would be granted for the petitioner's proposed development at West Mains Road. Consequently the petitioner has now raised proceedings for judicial review of the Council's decision of 5 October 2010 on two grounds: first, that it was reached as a result of an unreasonable or perverse or irrational interpretation of the sequential approach to retail development, or taking such an interpretation into account, and secondly, that the procedure leading to the decision was unreasonable and unfair. On each of these grounds the petitioner seeks reduction of the Council's decision of 5 October 2010. I will deal with each of these issues in turn. In addition, the Council took a plea of mora, taciturnity and acquiescence, and JHAG contended that the petitioner had no title or interest to sue. I will deal with these matters thereafter.

First ground of challenge: the sequential approach
[10] It is a matter of agreement among the parties that, in considering applications for retail development, the Council was obliged to apply the national planning policy that is generally referred to as the sequential approach. The first submission for the petitioner was that the Council had applied that policy in a perverse or unreasonable manner.

[11] The relevant policy is found in the current version of Scottish Planning Policy, issued in February 2010, at paragraphs 62-65. The basic policy is set out in paragraph 62:

"The sequential approach should be used when selecting locations for all retail and commercial leisure uses unless the development plan identifies an exception. ... The sequential approach requires that locations are considered in the following order:

· town centre,

· edge of town centre,

· other commercial centres identified in the development plan,

· out of centre locations that are or can be made easily accessible by a choice of transport modes".

The object of the policy is clear, namely to protect the commercial viability of existing town centres so far as that is practicable, and to the extent that it is not practicable to protect and develop the other commercial centres identified in the development plan. In this way random or haphazard retail development should be avoided. The two applications in the present case, that by JHAG and that by the petitioner, both fell into the last of the categories described in paragraph 62; it is a matter of agreement among the parties that they are both out of centre, and consequently do not fall into any prior category. That was accepted in the submissions for the parties, and in any event it appears to be clearly accepted in the retail assessments prepared by the planning consultants acting for both JHAG and the petitioner.

[12] Paragraph 63 deals with the application of the policy:

"The sequential approach requires flexibility and realism from planning authorities, developers, owners and occupiers to ensure that different types of retail and commercial uses are developed in the most appropriate location. Where development for town centre uses is proposed within a town centre, assessment of its impact on the viability of similar uses in that centre will not be necessary. Where development proposals in edge of town centre, commercial centre or out-of-centre locations are not consistent with the development plan, it is for applicants to demonstrate that more central options have been thoroughly assessed and that the impact on existing centres is acceptable. Out-of-centre locations should only be considered when:

· all town centre, edge of town centre and other commercial centre options have been assessed and discounted as unsuitable or unavailable,

· development of the scale proposed is appropriate, and

· there will be no significant adverse effect on the vitality and viability of existing centres.

Development plans should indicate whether retail or commercial development may be appropriate outwith existing centres and identify appropriate locations".

Paragraph 64 requires planning authorities to ensure, where a proposed retail development is contrary to the development plan, that the sequential approach to site selection has been used and that there is no unacceptable individual or cumulative impact on the vitality and viability of the identified network of centres.

[13] In the Joint Structure Plan produced for Glasgow and the Clyde Valley in 2006, criteria are laid down for significant retail developments and these include the sequential approach as laid down in the SPP and its predecessor (pages 79-80). It is further provided (Schedule 6(c)(i), at pages 60-61) that all significant proposals for retail development must accord with the strategic objectives of the plan and must be assessed against certain criteria. Those criteria include the impact, including direct and cumulative impact, on certain town centres, which include East Kilbride, and the impact on out-of-centre retail properties and certain other specified locations. The criteria also include the requirement to locate new developments in locations which can be accessed easily using public transport. The sequential approach is considered further in Schedule 6(c)(ii), where it is stated that first preference should be given to town centre sites, followed by edge-of-centre sites, and only then by out-of-centre sites which can be made accessible by a variety of means of transport. Similarly, the South Lanarkshire Local Plan sets out the sequential approach to proposed retail developments (section 5, at pages 62 and 64-66).

[14] For the petitioners it was submitted that the reports made by officials to the Council, in particular those dated 1 September and 21 September, disclosed a fundamental flaw in relation to the sequential approach. Consequently the Council, in proceeding on those reports, was unable to apply the sequential approach properly in making its decisions. The propositions founded on were as follows. First, the sequential approach should be used unless there is an exception in the development plan. In the present case there was no such exception. Secondly, the sequential approach involves consideration of locations in the order stated in paragraph 62 of the SPP. Thirdly, the approach requires flexibility and realism from the parties involved. It should be used to ensure that different types of retail and commercial use are developed in the most appropriate locations. Fourthly, where proposals for development of an out-of-centre location are not consistent with the development plan, the burden is on the developer to demonstrate that more central locations have been thoroughly assessed, and also that the impact on existing centres is acceptable (SPP, paragraph 63). Fifthly, an out-of-centre location should only be considered when all town centre, edge-of-centre and other commercial developments have been considered and discounted as unsuitable or unavailable, and when it can be shown that there will be no significant adverse effect on the vitality and viability of existing centres. Sixthly, SPP, paragraph 64, requires that, where development is contrary to the development plan, the planning authority should ensure that the sequential approach has been used and that there is no unacceptable individual or cumulative impact on the vitality and viability of the existing network of centres.

[15] I did not understand the first four and the sixth of those propositions to be in dispute. The argument between the parties rather focused on the fifth, and in this regard two main issues arose. The first of these was whether, in considering JHAG's application for planning permission, the Council ought to have had regard to the petitioner's application which was, as I have noted previously, sequentially equal. This area of dispute had two aspects: whether the Council was entitled simply to disregard the petitioner's proposals generally as relating to a sequentially equal site, and whether in considering the cumulative impact of JHAG's proposed development with other actual or potential retail developments the petitioner's site should be taken into account. The second area of dispute was whether in assessing whether JHAG's proposals could be accommodated elsewhere, the scale of the development should be determined by JHAG's application, without considering whether a development on a smaller scale might be accommodated elsewhere.

[16] On both of these matters the petitioners submitted that the interpretation of the sequential approach followed by the Council, as disclosed in the report of 21 September 2010, was wrong in law. It involved a misinterpretation of the sequential approach as disclosed in paragraphs 62-65 of the SPP. In considering the JHAG application, the Council had discounted the petitioner's site in following through the sequential exercise, even though it fell within the same sequential category as JHAG's. Instead, the assessment of retail matters in the report was based solely on the individual impact of the superstore element of JHAG's application on existing centres, without consideration of the petitioner's proposed development. Moreover, both the Council and JHAG's advisers had carried out a sequential exercise to some extent, which supported the view that consideration had to be given to any alternative site falling within the same sequential category, including the petitioner's site. In relation to the second of these matters, the petitioner submitted that the Council was further in error in taking as its starting point of the scale of the JHAG development. The petitioner's site was unable to accommodate all of the elements in the JHAG development, including a hotel, a garden centre and a petrol station, and the Council had adopted the view that the ability of JHAG's site to accommodate all of those elements was a material consideration in its favour of when compared with the petitioner's site. On that basis the Council had concluded that the petitioner's development could be discounted because it was not large enough to accommodate all the elements of the JHAG application. That, it was said, was not a proper assessment of the individual or cumulative impact on the vitality and viability of the identified network of centres. It allowed JHAG to determine the scale of development under consideration, and itself involved an unreasonable exercise of the Council's discretion.

[17] For the Council it was submitted first that it was not necessary for the planning authority, in considering a site such as JHAG's, to give consideration to another site that was sequentially equal. At least in the case where such a site was not designated for retail development in the local plan, the petitioner's site was, as counsel to put it, "on the following train", and did not require to be taken into account. Secondly, it was submitted that the Council had been correct to consider whether JHAG's proposals, including retail elements other than a superstore, could be adequately accommodated on another site, and on that basis to discount the petitioner's site. Thirdly, in interpreting a planning policy, the critical question was whether the interpretation followed by the planning authority was perverse, or at least whether a reasonable person could interpret the policy in such a way. On these bases the Council's decision could not be challenged. Counsel for JHAG adopted a broadly similar approach, in which he provided a detailed and helpful analysis of the notion of cumulative impact of the various relevant retail developments and of the notion of sequential equality and its consequences.

[18] The starting point in considering these arguments must in my opinion be a recognition of the fundamental principle that what the planning authority is doing in a case such as the present is to exercise its planning judgment. No doubt it is applying a policy laid down by government at national level, but the application of that policy involves judgment at the level of particular factual circumstances. This is recognized in two leading cases. In Freeport Leisure PLC v West Lothian Council, 1998 SC 215, an application for retail and leisure development was granted by the local planning authority, and the petitioners, who had proposed a rival development, sought judicial review of that decision. Among the grounds of challenge was that the planning authority had erred in law in failing to have regard to a material consideration, in that it had not required the developers to carry out a retail impact assessment before granting the application, in accordance with the national planning guidelines and the relevant structure plan. That ground of challenge was rejected by the Second Division. Lord Prosser, delivering the opinion of court, stated (at 221G):

"Even if para 52 [of the national planning guidelines] imposed requirements as a matter of law, the interpretation of these requirements would be a matter for the planning authority rather than the courts, unless there were an issue of perversity or irrationality. Without entering into the detailed interpretation of para 52, we do not find the petitioners' interpretation persuasive .... In any event, NPPG8 [the document containing the national planning guidelines] does not contain requirements of law, and any misinterpretation would not, in our view, entail an error of law".

That decision makes it clear that any challenge to the interpretation of national planning guidelines by a local planning authority can only be challenged on the ground of perversity or irrationality, and not on the basis that the guidelines have been misinterpreted by the planning authority. This approach is perhaps hardly surprising: national planning guidelines set out policy. This is not formulated in the manner of a statute or other statement of legal principle. The guidelines are inherently flexible; indeed, that is precisely why they are formulated as policy and not in the form of legal rules. That is very clear from the provisions that are under consideration in the present case. Paragraph 63 of the SPP states that "The sequential approach requires flexibility and realism from planning authorities, developers, owners and occupiers ...", a formulation that is entirely in accordance with the Court's approach in Freeport Leisure.

[19] A similar approach is found in City of Edinburgh Council v Secretary of State for Scotland, 1998 SC (HL) 33, where the status of a development plan was considered. Under the planning legislation (section 18A of the Town and Country Planning (Scotland) Act 1972) the development plan was no longer simply one of the material considerations to be taken into account in reaching a decision; its provisions were to govern planning decisions unless there were material considerations which indicated that in the particular case the provisions of the plan should not be followed. Nevertheless, it was stated (by Lord Clyde at 44B) that

"... the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognizing the priority to be given to it".

The power of the court to intervene in planning decisions is based on judicial review, in accordance with the well-known formulation in Wordie Property Co Ltd v Secretary of State for Scotland, 1984 SLT 345: ibid. Thus the approach that has consistently been taken by Scottish courts to planning decisions is that the decision is pre-eminently a matter for the decision-maker, whether that is the planning authority or a reporter appointed by central government. Challenge is only possible on the grounds of perversity or irrationality or the other standard grounds of judicial review, or on the basis that a specific statutory requirement was disregarded. A similar approach was taken in Land Securities Plc v Scottish Ministers, 2007 SC (HL) 57, at paragraph [29], and, at first instance in England, in Virgin Cinema Properties Ltd v Secretary of State for the Environment, [1998] 2 PMR 24, at 28-29.

[20] In support of his arguments to the effect that the Council had erred in law, counsel for the petitioner submitted that a distinction fell to be drawn between the proper interpretation by the planning authority of what government guidance means and the application of that interpretation to planning circumstances. While the application of the guidance to planning circumstances was a matter of policy, the former issue, the interpretation of what the guidance means, was said to be a matter of law, with the result that the court could intervene if the planning authority reached an incorrect interpretation. In my opinion that argument is inconsistent with the foregoing authorities. No doubt if the planning authority's interpretation is perverse, in the sense of an interpretation that no reasonable planning authority could properly reach, it will be open to judicial review. Nevertheless this is merely an aspect of the general power of judicial review that may be exercised in respect of planning decisions; I do not think that there is any specialty arising out of the fact that interpretation is involved.

[21] Counsel for the petitioner further placed some reliance on the relatively recent decision of the English Court of Appeal in R (Raissi) v Home Secretary, [2008] QB 836. That case involved extradition proceedings which were ultimately dismissed. The claimant applied to the Home Secretary for compensation for his detention under an ex gratia scheme introduced in a ministerial statement to Parliament in November 1985. The claim was refused, on the ground inter alia that the scheme did not apply to extradition proceedings because an extradition charge was not a charge for the purposes of the ex gratia scheme and because such proceedings could involve no serious default by the United Kingdom prosecuting authorities because they acted for a foreign government. The claimant sought judicial review. Judicial review was granted, on the ground that the purpose of the scheme was to compensate those who have spent a period in custody resulting from a serious default on the part of a police officer or some other public authority, and thus encompassed detention following extradition charges. The case is of significance for comments in the Court of Appeal as to the proper test to be applied in interpreting policy statements: see paragraphs [118] et seq. Planning cases were specifically considered. It was pointed out (paragraph [119]) that in planning cases the courts had in the past tended to ask only whether the meaning attributed to the words of policy was a reasonable one. Even there, however, the courts were not unanimous, and reference was made to a statement by Sedley LJ in R (Sainsbury's Supermarkets Ltd) v First Secretary of State, [2005] EWCA Civ 520, at paragraph [16]:

"The interpretation of policy is not a matter for the Secretary of State. What a policy means is what it says. Except in the occasional case where a policy has been ambiguously or unclearly expressed..., ministers are not entitled to thwart legitimate expectations by putting a strained or unconventional meaning on it. But what ministers do have both the power and the obligation to do... is to apply their policy from case to case, keeping in balance the countervailing principles (a) that the policy is not a rule but a guide and (b) that like cases ought to be treated alike".

In Raissi the court refused to adopt a "reasonable meaning" approach, and held that it should itself decide what the policy meant, not leaving that to the relevant minister.

[22] Raissi is of course in a very different context from planning, but the decision in Sainsbury's Supermarkets does relate to planning. Nevertheless, the decisions in Freeport Leisure and City of Edinburgh Council are binding on a Scottish court, and to the extent that there is any inconsistency between those cases and Sainsbury's Supermarkets it is the Scottish authorities that must be followed. I am doubtful if there is any serious discrepancy, however. If a minister or planning authority were to place a "strained or unconventional meaning" on a policy that might well give rise to an entitlement to judicial review on the ground of perversity or possibly Wednesbury unreasonableness. Likewise, if a Minister or planning authority failed to treat like cases alike, that would readily give rise to judicial review on the ground of perversity. Moreover, Sedley LJ recognizes that a policy is not a rule but a guide, which is perhaps the fundamental point emphasized in the Scottish decisions. I accordingly consider that the decisions in Raissi and Sainsbury's Supermarkets do not detract in any way from the established Scottish authorities.

[23] In the course of argument reference was made to two further cases dealing with the treatment of sequentially equal planning applications. The first of these was Tesco Stores Ltd, [2010] CSOH 128; [2011] CSIH 9, where the petitioners objected to the grant of planning permission for the development of a food store approximately 800 m from the petitioners' existing superstore. When planning permission was granted, the petitioners challenged the decision on the ground that the sequential test had not been properly applied. At first instance, Lord Brailsford (at paragraph [23]) held that the interpretation of planning policy is primarily a matter for the decision maker, in this case the local planning authority; that was especially so when the policy was implemented in a specialist area such as retail provision. The most recent formulation of the sequential test (then contained in SPP8 "Town Centres and Retailing") should be treated as a statement of policy designed to facilitate the delivery of national government objectives, not a rule of law. It was very difficult to suggest that there was one correct method of applying the test to the exclusion of other possible approaches. The correct method was a matter for the exercise of the planning judgment of the planning authority as to how to apply the sequential test. On that basis, a challenge to the application of the test would only be successful if the disappointed person could establish that the planning authority's decision was unreasonable in the Wednesbury sense. Consequently the petition failed. Before the Second Division the same ground of challenge was maintained. It was held that the reclaiming motion should be refused (paragraphs [36]-[38]). The judgment that confronted the planning committee arose in a broad context, which included development plan policies on economic development and the generation of employment and certain other considerations. In these circumstances the sequential approach was merely one material consideration. The committee was accordingly entitled to accept the officials' view that considerations other than the strict application of the sequential approach were material and should be decisive. That was a matter within the discretion of the committee, and it could not be said to be unreasonable or perverse. The critical point was that the committee's decision had proceeded expressly on a recognition that the proposal was contrary to the retail policies in the development plan, but was still to be supported for other reasons that must be set against the provisions of the development plan. It is clear that the factors that weighed with the court in Tesco are not material to the present case, where it is accepted that the sequential approach laid down in paragraphs 62-65 of the SPP must be followed. Nevertheless, the case is significant for the emphasis on the width of discretion that is available to a planning authority in applying national planning policies.

[24] In a further Scottish decision at first instance, Tesco Stores Ltd, [2011] CSOH 11, a supermarket operator which had been given permission for a town centre supermarket challenged a decision by Highland Council to grant planning permission to another supermarket operator for an out-of-centre development including a supermarket and petrol station. It was a matter of agreement that the report that had been put to the council by the relevant official had misunderstood the sequential test, in that that test has no application to the comparative merits or demerits of out-of-centre sites (paragraph [17]). For the petitioner it was submitted that the sequential approach had been misapplied in a further respect, namely by disregarding two alternative town centre sites that were available, including the petitioner's site. Those sites had been excluded on the basis that they were too small for the development that was proposed in the out-of-centre location. The petitioner submitted that those sites should have been considered rather than the out-of-centre site on the basis that the policy was to prefer town centre locations, and the size of the development should not override that general consideration. That argument was rejected. In relation to the size of the development, Lord Malcolm indicated (at paragraph [35]) that the developer could not automatically set aside the implications of the policy in favour of town centres simply by designing a scheme which could not be fitted into an available town centre location. Nevertheless, he thought that there must be limits to the extent to which this could be demanded of a developer, and except in very clear cases this would be an issue to be determined by the judgment and discretion of the planning authority. That approach, I would respectfully suggest, is in accordance with the cases that I have already cited.

[25] The significance of the scale of development proposed for an out-of-centre location was further considered in Lidl UK GmbH v Scottish Ministers, [2006] CSOH 165. In that case the appellant challenged a decision by Scottish Ministers to refuse permission for a retail development in an out-of-centre location. The appellant already had a store in an established retail park, but wished to move to another site in order to build a new development. It was a matter of agreement among the parties that the proposed development was too large to be accommodated on the site of the appellant's existing store. The reporter appointed by Scottish Ministers had taken the view that development was possible on the appellant's existing site, and that planning permission for the new site should accordingly be refused. That decision was overturned on the ground that it was irrational and accordingly wrong in law; the proposed development could not be accommodated on the existing site, and therefore the latter site should not have been considered as an alternative: Lord Glennie at paragraphs [11]-[14]. The result of that case was that the developer's aspirations were allowed to determine the extent to which an alternative sequentially preferable site was relevant. Lord Glennie accepted that any existing site was relevant in principle, in that it would require to be taken into account by any third party developer considering site options in the area: paragraph [12]. He thought, however, that that would only be relevant in cases where the proposed new development was of a size and layout capable of being accommodated within the existing site. That was not the case under consideration, as the alternative site was incapable of accommodating the proposed development.

[26] A similar approach was adopted at first instance in England in R v Cambridge City Council, 2000 WL 1274079, a case involving planning permission for the redevelopment of a vacant site to provide mixed-use facilities, including leisure facilities, a hotel, housing, auction rooms and some retail use. The contentious item was a multi-screen cinema. It was argued that, in applying the sequential approach, the development could be disaggregated, in such a way that the various components were located on separate sites closer to the town centre. Harrison J. stated (at paragraph 27) that the general thrust of the sequential policy was to accommodate leisure and retail developments within the town centre if possible, and that disaggregation was a tool that could help to achieve that objective. It did not follow, however, that in order to achieve that objective it was necessary or appropriate to break down or disaggregate the facility into smaller parts when there was a need for a facility of the size that was proposed. In the case under consideration, the director of planning had advised that there was a need for a multiplex cinema of the size proposed. In those circumstances, what the sequential approach required was a thorough assessment of town centre and edge-of-centre sites in order to ascertain whether they could accommodate a development of that size. I would observe at this point that approaching the issue of disaggregation in this way can be seen as furthering the basic objective of the sequential approach, to ensure that different types of retail and commercial uses are developed in the most appropriate location (as stated in Scotland in the SPP, paragraph 63).

[26] The principle laid down in Freeport Leisure and City of Edinburgh Council is that a local planning authority has a wide discretion as to the application of national planning policy, and it is only if the authority can be shown to have acted perversely or irrationally or unreasonably, in the Wednesbury sense, that its decision will be open to challenge. In my opinion the petitioner has failed to establish any such ground. Counsel for the petitioner criticised Lidl as allowing the aspirations of a developer to dictate what would be suitable as an alternative site; in this way, he submitted, the rationale of the sequential test was undermined. In my view that criticism is ill founded. It is essential to bear in mind both the fundamental structure of paragraphs 62 and 63 of the SPP and the fact that these paragraphs represent a policy rather than a statute. Paragraph 62 sets out the sequential approach, providing a hierarchy of locations. Nevertheless, in recognition that what is involved is a statement of policy, paragraph 63 states that the approach requires flexibility and realism "to ensure that different types of retail and commercial uses are developed in the most appropriate location". This sets out the fundamental purpose of the sequential approach: ensuring that retail and commercial developments are situated in the most appropriate place. It further recognizes that what is involved is a policy, and that planning authorities should use judgment to achieve that fundamental purpose. That inevitably involves an element of discretion. When an out-of-centre development is proposed, consideration must be given to the three matters mentioned in the bullet points in paragraph 63: that all preferable locations have been assessed and discounted, that the scale of development proposed is appropriate, and that there will be no significant adverse effect on the vitality and viability of existing centres. If, as in Lidl, the scale of the proposed development could not be accommodated on the preferable sites (town centre, edge of town centre and other commercial centres), it is still necessary that the planning authority should be satisfied of the matter mentioned in the first sentence of paragraph 63, namely that different types of retail uses are developed in the most appropriate locations. That is the fundamental end towards which the sequential approach is directed, and the reference to flexibility indicates in my view that, in an appropriate case, a planning authority may take the view that the larger scale of development is appropriate even though a smaller development could be situated on a more central location.

[27] The petitioner further founded on what was said to be an inadequate analysis by the Council of the site at West Mains Road in considering JHAG's application at Peel Park. In this respect, the terms of paragraph 63 are important. The sentence that deals specifically with out-of-centre locations, and which includes the bullet points, states that such locations should only be considered when "all town centre, edge of town centre and other commercial centre options have been assessed and discounted as unsuitable or unavailable". Thus the policy only requires the consideration of other options that are preferable in the sequence set out in paragraph 62; it is not stated that out-of-centre locations must also be considered and discounted. Consequently the terms of the policy entitle the council to disregard any sequentially equal development. That view is strengthened by the overall requirement of flexibility and the fact that what is involved is a policy, not a series of rules. On that basis, it cannot in my opinion the said that the Council were in any way in error in disregarding a sequentially equal development in assessing JHAG's proposals for Peel Park. It is of course possible that in a particular case it may be appropriate as a matter of planning judgment to consider an alternative location that is sequentially equal. Normally that is a matter for the planning authority's judgment, however, and it is only in cases where the disregard of such a site can be described as perverse or unreasonable in the Wednesbury sense that the authority's decision can be challenged.

[28] In any event, I am of opinion that, in considering cumulative impact in accordance with paragraphs 63 and 64, the developments that must be considered are those that are either in existence or have planning permission or are identified in the relevant development plans as developments that are to go ahead at some time in future. These may be referred to as "permitted" and "committed" development. An application for planning permission that does not fall into these categories does not require to be considered, for the simple reason that at the date when cumulative impact is considered it is not part of the existing planning structure. Such an application is essentially aspirational; it may not go ahead. Moreover, nothing in either the legislation for the SPP itself requires any other sort of proposal to be taken into account in a cumulative impact assessment for the purposes of paragraph 64. The purpose of such an assessment is to look at the impact of the proposal for which planning permission is sought. It is not intended to discover whether permitting the current proposal might subsequently rule out other applications that might be made. Any such applications must be assessed when they fall to be considered. Authority for such an approach is found in Asda Stores Ltd v Secretary of State for Scotland, 1999 SLT 503.

[29] In my opinion the report by the Council's Executive Director (Enterprise Resources) that was considered by the Planning Committee at their meeting held on 5 October 2010, the report being dated 21 September, fully addressed the sequential approach disclosed in paragraph 62-65 of the SPP, as explained in the three preceding paragraphs of this opinion. At paragraph 6.12 the writer considered the impact of the proposed development on strategic centres, including East Kilbride town centre and other shopping centres forming part of the network identified in the Local Plan. His conclusion was that the development would not undermine the vitality and viability of the convenience sector of the town centre or any of the neighbourhood or strategic centres. The same was true of the garden centre element of the proposal. At paragraph 6.13 the writer expressed the view that, while additional comparison floor space could be created in East Kilbride town centre, in current economic circumstances it would not likely that this would be realized in the short term; moreover, the proposed superstore would not prejudice the longer term support or expansion of East Kilbride town centre. At paragraph 6.14 it was indicated that the superstore in the proposed development would serve the west of East Kilbride and other neighbouring areas. In all of these analyses I am of opinion that cumulative impact was clearly taken into account.

[30] Paragraph 6.15 dealt specifically with the sequential approach. In this paragraph the writer pointed out that JHAG had undertaken a sequential analysis and a retail assessment and had considered a number of potential locations around East Kilbride, including the Ediston site at Atholl House and the petitioner's site at West Mains Road. Some of the sites were discounted on the basis that the proposed scale of JHAG's superstore and the wider development proposed could not be accommodated on the site. For the reasons stated above, because the sites were sequentially equal, I am of opinion that this is quite permissible; this is effectively the Lidl principle, with which I agree. In relation to the petitioner's site at West Mains Road, the writer of the report referred to the current application for planning permission for a retail food store, and continued:

"It would be inappropriate to comment on the merits of this application. However, in relation to the sequential analysis with respect to the foodstore proposal [by JHAG] at Redwood Drive it is considered that this site is out of centre and is therefore sequentially equal to the site at Redwood Drive. Furthermore, it is also too small to accommodate the size of development and can therefore be discounted as unsuitable as well as not being sequentially preferable".

As with the other proposals, I am of opinion that this approach is quite permissible. The report did not comment on the merits of the petitioner's application. Because the petitioner's site and JHAG's site were sequentially equal, the Council were entitled to disregard the petitioner's site in considering the JHAG application. Moreover, they were entitled to reject the relevance of the petitioner's site on the basis that JHAG's development could not be accommodated on it. This clearly assumes that the JHAG development was considered a development of appropriate scale in the most appropriate location, as specified in paragraph 63 of the SPP. The latter point was, however, considered in the report at paragraph 6.17, which stated:

"In summary, it is considered that the site at Redwood Crescent is appropriate in terms of the sequential approach in that it has the capacity to accommodate both the superstore and the Garden Centre comfortably on the site and provide the benefit of the potential for linked shopping trips between both facilities. Currently there are no other alternative sites within the East Kilbride area that could accommodate such an integrated mixed use development opportunity of this scale and nature".

The same point was repeated at paragraph 6.29, which gave an assessment in respect of the retail development provisions in the local plan. The writer stated in that paragraph that there were no other sites that could accommodate the scale of development on an integrated site within adjoining town, village or neighbourhood centres. The impact on existing centres was further considered, and the view expressed that the impact of the superstore would be less than 10% on East Kilbride town centre. The writer of the report further considered other aspects of the JHAG development, including the garden centre and hotel, and decided that these were appropriate. That is clearly relevant to the scale of the development under consideration and to the question of whether it could be accommodated on other sites in the area. The decision was that it could not.

[31] The conclusion of the report is found at paragraphs 6.41 and 6.42, where the writer accepted that the range of uses proposed was not in conformity with the business and industrial policies of the approved Structure Plan or the adopted Local Plan, but concluded that the development of the scale and mix of uses in question enhanced the facilities available to the existing population of East Kilbride and the community to the west and south of the town. On that basis he considered that the proposed development was not a significant departure from the development plan. The writer further expressed the view that there would be no detrimental impact on strategic centres, village or neighbourhood centres, and that the proposal would not prejudice the Local Plan strategy for East Kilbride town centre. In my opinion these conclusions fall squarely within the planning judgment of the local authority and its officers. Nothing that was said to the behalf of the petitioner persuades me that an incorrect approach was adopted.

Procedural unfairness
[32] The petitioner's second ground of attack on the Council's decision was that the procedure leading to the decision was unreasonable and unfair; consequently the decision should be reduced. On this matter, counsel submitted that the fairness of the procedure adopted was a matter on which proof was required. The Council and JHAG, however, both contended that the petitioner's averments on this matter were seriously lacking in specification and that the petition should be dismissed in its entirety at this stage.

[33] The petitioner's averments on procedural unfairness were to the effect that the Council's officers significantly misinformed the Planning Committee. The reports of 1 September 2010 and 21 September 2010, and comments made by officers at the Committee's meeting of 7 September 2010 are said to have contained inaccurate descriptions of the status of the petitioner's application. The officers, it is averred, gave the Committee to understand that there were fundamental problems with the petitioner's application, in relation to both transportation issues and the period of time within which it was likely that such issues could be resolved. As a result it was the Committee's understanding that there was doubt as to whether the petitioner's application was a realistic proposal. That, it is averred, was not the case; there were no such fundamental problems with the petitioner's application. Providing inaccurate or misleading information in this way is averred to have been unreasonable and unfair to the petitioner, and on that basis it is said that the Committee's decision was fundamentally flawed and accordingly ultra vires.

[34] At the Committee's meeting of 7 September 2010 it was decided that the application by JHAG should be determined in advance of the petitioner's application. That decision is not challenged in the present proceedings. Nevertheless it is an important part of the background to the later meeting, that of 5 October 2010, and must therefore be considered. Prior to the meeting of 7 September councillors received a report from the Executive Director (Enterprise Resources) dealing with the request by the petitioner and Ediston to conjoin consideration of their planning applications with JHAG's, and a contrary request by JHAG. In relation to the applications by JHAG and the petitioner, the report indicated (at paragraph 3.5.1) that all information had been submitted by JHAG and that the planning assessment was complete, but that outstanding issues remained in respect of the petitioner's application. These were described as follows:

"In relation to retail, clarification is sought on a number of technical matters in the assessment of the proposal in terms of catchment, shopping patterns, turnover of convenience floorspace, trade diversion and analysis of comparison floorspace. With regard to transportation, no formal consultation response has been received from Transport Scotland or the Council's Roads Department. However it is understood that discussions between the applicant and road officials from Transport Scotland and the Council are ongoing. In this respect it is further understood that the transportation issues to be resolved are significant and to date it is not clear what the timescales are to resolve these, assuming that they are able to be resolved".

In the light of these considerations, the writer of the report indicated that it would not be reasonable to delay consideration of the JHAG application.

[35] The report went on (at paragraph 3.5.3) to consider the question of whether each of the three applications that had been made could properly be decided on an individual basis, or whether there were material considerations which would lead to the reasonable conclusion that each application was so interlinked with the others that they could not be dealt with separately. In this respect, the main area of relevance was the retail capacity which existed within East Kilbride; based on the retail assessments lodged by JHAG and the petitioner it was possible that approval of one store would preclude approval of the other, at least in the short to medium term. The writer stated that that was a material consideration and could be a reason for conjoining consideration of the applications. A further material consideration was the time that would have to be allowed for the other two planning applications to catch up with the submission by JHAG. If that had been possible in the short term, there was an argument for conjoining to take place. The passage of time, however, diluted this argument, and it was therefore necessary to carry out a balancing exercise as to what weight should be attached to each of these considerations. The writer went on

"It is understood in 1 above that the application by Dawn Developments Ltd has, what appear to be, fundamental issues in resolving matters raised by Transport Scotland .... In such circumstances and given the significant degree of uncertainty in accurately quantifying timescales for these issues to be fully considered and addressed, it is my view that, on balance, the reasonable approach is not to conjoin the applications and to proceed to the next Planning Committee with a recommendation on the JHAG Ltd proposal, where the officer assessment is complete".

In paragraph 3.5.4 of the report it was pointed out that this is a situation commonly found in other types of statutory application and practice suggested that the fair way to proceed was to deal with each application in the order in which they were lodged and on their own merits.

[36] Appended to the report were representations made for each of the potential developers. JHAG emphasized the fact that the other applications were not ready for determination and were not likely to be so for some time, and stated that there was no good reason to wait for them. JHAG further referred to the proceedings in the Court of Session that had been brought by the present petitioner, in which the petitioner stated that the application would be ready for determination within a very short time, perhaps a few weeks. It was pointed out that the petitioner's application was not in fact ready for determination within that time frame, and as at the date of submission, 31 August, it required further information in order for planning officers to consider it further. The petitioner's representations stated that their application and the JHAG application had been lodged five weeks apart, and that the petitioner's application was ready for determination. The petitioner further referred to the need for the Council to identify the potential retail capacity in the relevant catchment area in order that the Planning Committee might go on to decide how that need could best be met in the interests of the local community. It was further emphasized that it was "of the utmost materiality" that the committee should be able to consider the options available to them as to where any retail development should take place; if they were to determine either application without also having before them the other application, they would inevitably fail to take account of an essential consideration, or alternatively would effectively predetermine the other application without having it before them. Failing to consider the competing merits would, it was suggested, be ultra vires. Thus the planning committee had a reasonably full written statement of the petitioner's position prior to the meeting held on 7 September.

[37] At the meeting of 7 September 2010 the petitioner, Ediston and JHAG were all represented, and their representatives made statements to the meeting. A note of what was said was available. It was clear from this that the petitioner's representative, Mrs Joanne Gillies of McGrigors, put the petitioner's case clearly. She stated that the petitioner's retail assessment had been submitted many months previously and that the points of clarification which were now raised were purely clarification and had been dealt with in documents submitted. As to the detailed points made, none was likely to be fatal and they could be dealt with by conditions. In relation to the supposed transport difficulties, the petitioner had sought to have Transport Scotland address all of the issues and was now in a better position than JHAG. For JHAG, it was stated that the Planning Committee had a discretion as to whether to hear the applications separately or together. The meeting was further addressed by Mr Michael McGlynn, the Council's Head of Planning and Building Standards. He stated that the petitioner had been asked for clarification on the retail assessment and that that had now been submitted. Nevertheless officers would require to have time to consider the response and assess whether it clarified the points that had been raised. In relation to the traffic issues, Transport Scotland had met the petitioner's transport consultant on 19 and 25 August and the issues had not been resolved. A few weeks' more work would be required for Transport Scotland to assess the proposals, as a full submission and not merely a sketch would be required.

[38] It is thus apparent that the petitioner had a full opportunity at the meeting to comment on and rebut anything that was said to be misrepresented in the report by the Council's Executive Director (Enterprise Resources). Moreover, it was clear that the petitioner's representatives were aware that the question of whether their application was ready or not was likely to be a major issue for the Committee. When the Committee decided not to conjoin the two applications, no attempt was made to challenge that decision. In these circumstances I am of opinion that it cannot possibly be said that there was any procedural unfairness at the meeting of 7 September or in the preparations for that meeting, including the report by the Executive Director (Enterprise Resources).

[39] The JHAG application was due for consideration at the meeting of the Planning Committee to be held on 5 October 2010. Before that, the petitioner presented a petition for judicial review of the decisions that had been made by the Council, and enrolled a motion for interim interdict to prevent the meeting of 5 October from taking place. The motion for interim interdict was heard by Lord Bannatyne on 1 October, and on 4 October he refused interim interdict. He subsequently provided a note of the reasons for his decision. The petitioner's primary argument was based on the proposition that in deciding to hear the two applications separately the Council had been guilty of procedural impropriety and procedural unfairness. In relation to the first of these issues, Lord Bannatyne held that the petitioner had failed to make out a prima facie case of procedural impropriety. The question of whether the applications should be heard together or separately was a matter of planning judgment, and there was no basis for the court's interfering in such a decision. In relation to procedural unfairness, the argument advanced for the petitioner was based on the proposition that information given by officials in the report for the meeting of 7 September to the effect that there were fundamental issues in resolving matters raised by Transport Scotland was wholly inaccurate. Lord Bannatyne held that, in view of the documentary productions, no prima facie case had been made out. In particular, at a meeting held on 17 September between Transport Scotland and the petitioner's transport consultants the minute disclosed that those consultants had been surprised when Transport Scotland said that their design for road access did not meet design standards and stated that they did not know which way Transport Scotland would go. Lord Bannatyne held that that amounted to a fundamental issue between Transport Scotland and the petitioner; and accordingly it could not be said that the statements made by officials were inaccurate.

[40] The JHAG application was considered by the Committee at its meeting on 5 October 2010. The minutes of that meeting disclose that the report dated 21 September was considered. The meeting was also reminded by the Council's Head of Planning and Building Standards Services that the petitioner had lodged a petition for judicial review with the Court of Session and had unsuccessfully sought an interim interdict to prevent the Committee from considering JHAG's planning application. The Committee was also told of Transport Scotland's position in relation to the petitioner's application. In this respect, Transport Scotland had indicated on 24 September that they would not object to the granting of planning permission to the petitioner, provided that a number of detailed conditions were observed. This decision had clearly not been available when the report for the meeting was issued on 21 September. In relation to JHAG's application, the view of the Executive Director (Enterprise Resources) was that a departure from the Development Plan was justified in this case for a number of reasons, which are enumerated in the minutes of the meeting. These included the opinion that there would be no detrimental impact on strategic centres, village or neighbourhood centres, and that the proposal would not prejudice the Local Plan strategy for East Kilbride town centre. The decision of the Committee was that JHAG's planning application for planning permission in principle should be granted subject to conditions specified in the Executive Director's report.

[41] Prior to the meeting of 5 October 2010, meetings had taken place between the petitioner and the Council's officers in relation to the petitioner's planning explanation. The first of these took place on 17 September 2010. A detailed note of the meeting prepared by the petitioner was available. This disclosed that the factual material presented to the Planning Committee meeting of 7 September was discussed. The petitioner's solicitor suggested that the parties had been in disagreement as to whether there were fundamental issues with Transport Scotland; these had in any event been resolved, and it was likely that the petitioner's case could be heard on 5 October. The Council's Executive Director (Enterprise Resources) disputed that any misinformation had been provided to the earlier Planning Committee meeting. He stated that the Council's position was that the petitioner's application was not ready to go to Committee. That, I would observe, is clearly a point of crucial importance. The petitioner's solicitor then stated that she would like to hear the Council's position on transport. The meeting was informed that Transport Scotland were due to revert to parties with their consultation response on the petitioner's application. Transport Scotland, through their own internal consultant, had come to a different conclusion on the petitioner's application, considering that it did not meet design standards. A representative of Dougall Baillie, the petitioner's transport consultants, stated that he did not know which way Transport Scotland would go but was waiting for their reaction. That is the statement on which Lord Bannatyne particularly founded, and in my opinion it amounts to a clear admission by the petitioner's consultants that there was an important issue with Transport Scotland that had not yet been decided. On that basis I do not think that it can be said that the statement to that effect made in the report of 21 September was inaccurate or misleading in any way. As to the meeting held on 5 October, the minutes disclose that the Committee was updated on Transport Scotland's attitude to the petitioner's application by the Executive Director (Enterprise Resources). The petitioner does not aver that any specific misinformation was provided to the meeting on 5 October. In the circumstances it cannot be said that any impropriety or unfairness occurred at that meeting.

[43] At the same time retail issues were discussed between the petitioner's advisers and the Council. A retail impact assessment had been submitted in May 2010, and its contents were assessed by the Council. Initial comments were provided in a letter dated 13 August. This raised a number of issues, including the definition of the catchment area, survey information on shopping patterns, analysis of drivetime data, assumptions regarding shopping patterns and the turnover of convenience floorspace in the area. The petitioner's consultants, Blueprint Planning & Development, replied to that letter on 6 September. They expressed the petitioner's concern about the timing of the letter, on the basis that at an early stage the petitioner had sought clarification that all necessary information was available. A meeting was held to discuss retail matters on 7 September, and further correspondence passed on 20 and 22 September in relation to outstanding issues. Substantial information was provided by Blueprint in a letter of 22 September. The Council replied to that letter on 19 October, indicating that more information was required. Furthermore, in subsequent correspondence it was clear that other issues remained outstanding. An e-mail from the Council to Dougall Baillie dated 25 October indicated that there were still a number of issues relating to roads and parking. A further letter was sent by Blueprint to the Council on 22 October. This included a complaint about the way the Council had handled the petitioner's application. It further indicated that the Council had indicated a need to provide a cumulative impact assessment in order to consider the impact on among other locations JHAG's proposed development at Peel Park. Thereafter the petitioner appealed against the Council's non-determination of its planning application. The Council's Executive Director (Enterprise Resources) reported on the appeal on 14 December. This again referred to retail and transportation concerns that the Council had; these included the retail impact assessment and the level and layout of the proposed parking. Problems were also identified regarding road drawings and traffic analysis.

[44] It is possible that the Council was slow in responding to the application by the petitioner. Nevertheless, so far as the present proceedings are concerned, that does not seem relevant. The decision to consider the JHAG application first was made at the meeting of the Planning Committee of 7 September. At that meeting the petitioner was given a clear opportunity to state its case; that give it an opportunity to refute any misleading statements made by Council officers. Nevertheless its request to conjoin the applications was refused. No attempt has been made to reduce the decision made at that meeting. In the circumstances I am of opinion that it cannot be said that there was any unfairness in taking JHAG's application ahead of the petitioner's. JHAG's application was first in time, and had proceeded rapidly. Further delay would clearly be prejudicial to JHAG, and in my view it was quite open to the Council to consider whether that prejudice was outweighed by the prejudice to the petitioner in not considering its planning application. The decision not to conjoin having been made, and not having been challenged directly, I consider that events subsequent to the meeting of 7 September are strictly speaking irrelevant, at least in the manner in which the pursuer's case is pleaded at present (see paragraph [33] above). Nevertheless, it can be said that the correspondence and other documentation that is available for the period subsequent to 7 September clearly discloses that there were significant issues still to be resolved in relation to the petitioner's application. That in itself appears to justify the statements made at the meeting of 7 September in relation to the preparedness of the petitioner's application.

[45] Against that, the JHAG application had been ready for consideration as early as June, and for the reasons already stated I am of opinion that the decision of 7 September to go ahead with the consideration of that application without waiting for the petitioner's application to catch up was one that was entirely within the discretion of the Council, exercising its powers as planning authority. If good cause been shown it would, I think, have been possible for the Council to have reconsidered that decision at its meeting on 5 October, but it does not appear from the documents that are available that any compelling case was shown. For that reason the decision to proceed with consideration of JHAG's application at the latter meeting was in my view one that fell plainly within the powers of the Council.

Mora
[46] The Council tabled a plea to the effect that the petitioner was barred by mora, taciturnity and acquiescence from raising issues in relation to the sequential approach. It is strictly speaking unnecessary for me to deal with this plea, as I have rejected the petitioner's arguments based on the sequential approach on their merits. Nevertheless, I will deal briefly with the issue of mora. The petitioner's argument, if I understood it correctly, was that the petitioner should have advanced arguments based on the sequential approach prior to the meeting of 5 October, and principles of good administration should preclude any change of front at this stage. Counsel referred at some length to the various documents that had stated the petitioner's original objection to JHAG's application, and which developed that objection subsequently. In particular, in a planning statement produced by Mackay Planning, JHAG's planning consultants, in April 2010, it was apparent that JHAG was working on the basis that its treatment of the sequential approach was not criticised. Thus JHAG had been prejudiced by the petitioner's failure to present arguments based on the sequential approach at an early stage. Reference was made to three authorities, WWF-UK Ltd v Secretary of State for Scotland, [1999] Env LR 632, Standard Commercial Property Securities Ltd v Glasgow City Council, 2004 SLT 655, and Caswell v Dairy Produce Quota Tribunal for England and Wales, [1990] 2 AC 738. In reply, counsel for the petitioner submitted that the element of acquiescence was an essential element in a plea of mora, taciturnity and acquiescence, and it was lacking in the present case. He referred to R (Burkett) v Hammersmith LBC, [2002] 1WLR 1593, per Lord Hope at paragraphs [59]-[66], and Somerville v Scottish Ministers, 2007 SC 140, at paragraphs [90]-[95].

[47] In my opinion the plea of mora, taciturnity and acquiescence must be repelled. An essential foundation of the plea is the element of acquiescence; mere delay without more is not enough. No doubt in some cases the delay may be of such a duration as to give rise to the inference that the party who fails to take action has acquiesced in the result that he has failed to challenge. Nevertheless, it is imperative that conduct should yield an inference of acquiescence before it can ground a plea of mora. This feature of the plea is perhaps made most clearly in Somerville, where in delivering the opinion of the court the Lord President stated (at paragraph [94]):

"[W]e remind ourselves, in the first place, of the meaning of the words of the plea. Mora, or delay, is a general term applicable to all undue delay... Taciturnity connotes a failure to speak out in assertion of one's right or claim. Acquiescence is silence or passive assent to what has taken place. For the plea to be sustained, all three elements must be present. In civil proceedings delay alone is not enough... [W]e would emphasize that prejudice or reliance are not necessary elements of the plea. At most, they feature as circumstances from which acquiescence may be inferred. By its nature, acquiescence is almost always to be inferred from the whole circumstances, which must therefore be the subject of averment to support the plea. In none of the [cases under consideration] have the Scottish Ministers made any averments of acquiescence, let alone of circumstances from which it might be inferred. Without such averments, there is no relevant basis for the plea...".

In the present case, while it can be said that there was some delay between March or April 2010 and the decision that is now challenged, which was made in October, there is nothing in the circumstances averred by the Council or JHAG that suggests any element of acquiescence in what was happening. Indeed, the attitude of the petitioner appears at all times to have been that the retail impact of the JHAG application was subject to challenge. That appears as early as the initial objection made by the petitioner's planning consultants on 11 March 2010. Moreover, the sequential test is a clear part of the Scottish Planning Policy, and there can be no serious doubt that JHAG would have to satisfy the Council that the requirements of paragraphs 63 and 64 of that Policy were satisfied.

Title and interest to sue
[48] JHAG tabled a plea of no title and interest to sue. As with the plea of mora, it is not strictly necessary for me to deal with this matter. As it was developed in submissions, JHAG's argument focused on interest rather than title to sue. So far as title was concerned, it was accepted that the petitioner had its own application to protect, which was arguably sufficient. Nevertheless, it was submitted that in relation to interest the basic purpose of the sequential approach was to afford protection to town centres. Its purpose was not to protect a developer in an out-of-centre location which was not identified as an area for development under the relevant development plan. Reference was made to the decisions in Edgar Road Property Company v Moray Council, [2007] CSOH 88, and Co-operative Group (CWS) Ltd v Highland Council, [2008] CSOH 28.

[49] In my opinion the petitioner has sufficient interest to sue in the present case, and I accordingly reject the plea of no title and interest to sue. The petitioner and JHAG had lodged rival planning applications, and it was not disputed that the Council's decision to grant JHAG's application would have a material effect on their consideration of the petitioner's application. Indeed, perhaps put slightly broadly, it appeared clear that the planning permission granted to JHAG was likely to be an almost insuperable barrier to the petitioner's own application. In these circumstances it cannot be said that the petitioner lacked title to sue. In Co-operative Group, Highland Council had granted planning permission for a proposed shopping development in an out-of-centre location at Wick Airport. The petitioner operated a supermarket in Wick town centre. Lord Menzies held (at paragraph s [55]-[56]) that a party carrying on business in the town centre might have sufficient interest to assert that a proposed development could adversely affect local amenity, or lead to the loss of good quality industrial or business sites, or have other significant environmental effects; in that way such a party might have interest to challenge the decision if his objection were not given proper consideration. The position would be significantly different, however, if the objection were merely based on the impact of the development on parking. In my view the present case is analogous to the examples where Lord Menzies considered that interest to sue existed; the effect of the grant of planning permission to JHAG would be the loss of the petitioner's site as a possible location for retail development.

Conclusion
[50] For the foregoing reasons I am of opinion that the pleas to relevancy tabled by the Council and JHAG must be sustained. I will accordingly refuse the order sought by the petitioner.