For the applicant and reclaimer: Findlay, O'Rourke; Drummond Miller LLP

For the first respondents: Miss Crawford, QC, Duncan; Scottish Government Legal Directorate

For the second respondent: Armstrong QC; Balfour & Manson LLP

7 September 2011

Introduction

[1] This is a reclaiming motion against an interlocutor of Lord Uist dated 30 July 2010 by which he refused an application by the applicant under section 238 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act). The applicant seeks a finding that an Order of the Scottish Ministers dated 22 May 2009, by which they approved the Fife Structure Plan 2006-2026 with Final Modifications dated May 2009, is invalid.

The statutory framework
The structure plan process

[2] Section 7(1) of the 1997 Act provides inter alia that the structure plan for any district shall be a written statement formulating the planning authority's policy and general proposals in respect of the development and other use of land in that district, including measures for the conservation of the natural beauty and amenity of the land, the improvement of the physical environment and the management of traffic. The planning authority must submit its finalised structure plan to the Scottish Ministers for their approval. The Ministers may either approve it, in whole or in part and with or without modifications or reservations, or reject it (1997 Act, s 10(1)). In considering the plan the Scottish Ministers may take into account any matters that they think are relevant, whether or not they were taken into account in the plan as submitted to them (s 10(2), (3)); they must consider any objections to the plan (s 10(4)); and they may consult, or consider the views of, any planning authority or other person, but shall not be under any obligation to do so (s 10(9)). On exercising their powers in relation to the structure plan the Scottish Ministers must give such statement as they consider appropriate of the reasons governing their decision (s 10(10)).

Remedies

[3] Section 238 of the 1997 Act provides inter alia as follows:

"(1) If any person aggrieved by a structure plan or a local plan or by any alteration, repeal or replacement of any such plan desires to question the validity of the plan or, as the case may be, the alteration, repeal or replacement on the ground -

(a) that it is not within the powers conferred by Part II, or

(b) that any requirement of that Part or any regulations made under it has not been complied with in relation to the approval or adoption of the plan, or, as the case may be, its alteration, repeal or replacement,

he may make an application to the Court of Session under this section.

(2) On any application under this section the Court of Session ...

(b) if satisfied that the plan or, as the case may be, the alteration, repeal or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration, repeal or replacement either generally or in so far as it affects any property of the applicant."

[4] Regulation 6 of the Town and Country Planning (Structure and Local Plans) (Scotland) Regulations 1983 (SI No 1590) provides that the policies and general proposals formulated in a structure plan shall be set out so as to be readily distinguishable from the other contents of it and that the plan shall include a reasoned justification of the policies and general proposals that are formulated in it. Regulation 18 provides that where the Scottish Ministers propose to modify a structure plan they shall, except as respects any modification which they are satisfied will not materially affect any policy or general proposal of the plan, consider any objections duly made to the proposed modifications (reg 18(d)).

The Fife Structure Plan 2006-2026

Landscape considerations

[5] In the course of preparing the Structure Plan Fife Council considered inter alia two studies, namely (i) A Green Belt for St Andrews, a report by David Tyldesley & Associates, planning and environmental consultants (Tyldesleys), published in May 1997 (the Tyldesley Report); and (ii) Landscape Capacity Assessment and Proposed Green Belt Study of St Andrews, a report by Alison Grant, landscape architect, commissioned by the Council and published in March 2003 (the Grant Report).

The Tyldesley Report

[6] The St Andrews Preservation Trust commissioned this report "to assist and inform the consideration of a Green Belt in the Structure Plan Review" (para 2.1). It was one of several landscape studies made by Tyldesleys. Tyldesleys' general appraisal of St Andrews was as follows:

"St Andrews is one of the most important historic towns in Scotland, and one with an exceptionally high environmental quality, distinctive appearance and outstanding relationship with its surrounding landscape. The historic core of the town is an Outstanding Conservation Area of national importance, with over 300 listed buildings, some 30 of which are Grade A, an unusually high proportion. Being largely surrounded by higher land and the sea, the town's distinctive skyline and landscape, including the links, can be seen from many important viewpoints (para 4.1)."

The Report recommended that a green belt should be established for St Andrews as part of the Structure Plan review process (para 7.1).

The Grant Report

[7] Ms Grant assessed the capacity of the landscape to accommodate new built development adjacent to St Andrews. In defining the scope of her study Ms Grant said inter alia:

"This study addresses landscape issues only, and does not take into account other planning considerations. As a result it cannot be used in isolation to allocate sites which are either appropriate or inappropriate for development. Rather, the landscape capacity assessment seeks to explain clearly the landscape considerations which are relevant on a site by site basis, with a view to informing the Council and contributing to the development of a locational strategy."

Ms Grant made a detailed appraisal of the development opportunities and constraints at St Andrews West. She identified an area of about 22 hectares there that was capable of some development without adversely affecting the key characteristics and visual qualities of St Andrews, provided that landscape mitigation work was undertaken (p 32). She considered that a further outlying area to the west of St Andrews was inappropriate for development because of the impact that it would have on the landscape character, scenic quality or visual attributes of St Andrews and its setting.

The proposed modifications to the Finalised Structure Plan

[8] On 27 April 2006 Fife Council approved the Finalised Fife Structure Plan 2006-2026 for submission to the Scottish Ministers. In December 2007 the Council published a report, Proposed Modifications to Finalised Fife Structure Plan (2006) Arising from Re-Appraisal of Housing Land Requirement (2007). Having considered the Structure Plan and the Council's proposed modifications, the Scottish Ministers in December 2008 published the Finalised Fife Structure Plan 2006-2026 incorporating Scottish Government proposed modifications for public consultation.

The applicant's objection

[9] The applicant submitted a lengthy and detailed letter of objection dated 29 January 2009. It begins as follows:

"I wish to lodge an OBJECTION to the Draft Structure Plan Modifications, mainly because of the omission of any change to the plans for St Andrews - 1,090 houses, a bypass, a 10 hectare science park and the intention to make this small historic town 'an economic driver for Fife'".

In this letter the applicant challenges the reliability of the population figures given for Fife and the related predictions of population growth in the Structure Plan. She refers to the landscape capacity of St Andrews West, founding on the conclusions of the Grant Report and Tyldesleys' landscape assessments. She refers to "the huge scale of development" that is proposed and asserts that there has been no explanation for and no justification of the proposals. She asks how the imposition of 1000 houses, a bypass and a business park on a town of about 6500 houses, or the requirement that 7 in 10 houses should be "unaffordable," can be justified. She suggests that the Ministers should think hard before approving the plan which after hundreds of years will destroy the town and decimate the income that it produces; and that Fife Council's vision of concrete and bricks may mean a 50% extension in the built area of St Andrews. She asserts that the development proposals will add the coup de grâce to the falling numbers of visitors over the last four years. The applicant then refers to the population of St Andrews and the suggestion that the figures may be erroneous. She challenges the justification of the housing numbers proposed in the strategic land allocations. She suggests that the housing numbers are likely to do serious and irreparable damage to Cupar and St Andrews and that the western extension in St Andrews will be in a prospective green belt. She refers to the Council's failure to provide details of the infrastructure to service these "mini-towns" and to the requirement that developers will provide school, medical and dental centres and mitigate any adverse impact brought about by their developments. She suggests that the 1000 house area will be largely on greenfield land and asks who has authorised Fife Council to squander the precious landscape on unwanted houses and where there is a proven market for them. Among other points, she says that to satisfy Fife Council's aspiration to "grow the economy and increase Fife's population" the Kingdom of Fife is going to be in a constant state of upheaval and development. Finally, the applicant turns to the questions of affordable housing, the creation of a green belt for St Andrews, the alleged failure of the Council to consult properly and the validity of the then current Fife landscape study.

The decision complained of

[10] On 22 May 2009 the Scottish Ministers approved the Structure Plan with final modifications. The modifications were set out in Scottish Government Final Modifications to Fife Structure Plan - May 2009. This document contained a schedule of the reasons why the final modifications were made and a schedule of the reasons why certain proposed modifications were not made.

The Structure Plan as finally modified

Strategy and policies
[11] The Finalised Structure Plan, as finally modified by the Scottish Ministers, is described in the introduction to the written statement as the key land use planning document for directing and managing growth and change (para 1.1). The executive summary sets out the vision with which the plan has been drawn up. It lists the key challenges that planning for Fife must face and then sets out the development strategy. The development strategy is said to be based upon the National Planning Framework (2004) the key aims of which are said to be to increase sustainable economic growth and competitiveness; to contribute to the achievement of climate change targets; to protect and enhance the quality of the natural and built environment; to help build safer, stronger and healthier communities; and to support the development of the knowledge economy (para 1.7).

[12] The strategy seeks to increase job opportunities, particularly in areas of high unemployment, for both employers and jobseekers. It takes a positive approach to economic development and directs major new employment-creating developments to the main towns, particularly within mid-Fife, and to south Fife/Rosyth and St Andrews (para 1.10). The strategy provides for around 8% growth in the population of Fife. To accommodate that, the Plan requires that 35,200 new homes should be built in Fife over the next 20 years. New house building will be focused in mid-Fife and west Fife to support regeneration, with a smaller strategic housing land requirement in north-east Fife (para 1.12). The town centres of Dunfermline, Kirkcaldy and St Andrews will be the key centres. St Andrews will be further developed as a world class destination with the potential to build on its international profile as a cultural, leisure and visitor destination, and a centre of academic excellence (para 1.14).

[13] Chapter 2.4 sets out the following planning strategy, with related strategic land allocations, that is proposed for the area of St Andrews West.

"The strategy is to realise the potential of St Andrews as an economic driver for the whole of Fife in terms of academic development and tourism whilst reconciling this against the need to protect its internationally important heritage. This strategy has significant implications for land use and expansion of the town and has to be balanced with the need to protect its landscape setting. High quality development and expansion of employment land is required over the longer term. Land for a minimum of 1,000 houses in the period to 2026 will be identified; a large proportion of which will be within a Strategic Land Allocation to the west of the town and will maximise the use of brownfield sites where possible. A 10 ha Science Park and 10 ha general business park will be identified to provide opportunities for employment growth. The Local Plan will define the Green Belt boundaries taking account of the need to provide land for development over, and potentially beyond, the Plan period. Contribution to a new link road will be required as part of this development. Up to 90 additional housing units arising from the 270 unit strategic allocation to the St Andrews and NE Fife [Housing Market Area] as set out in Proposals PH1 and PH3 may be assigned to St Andrews following further assessment."

[14] The settlement strategy sets a target for growth in the Fife economy and its population. Fundamental to this strategy is the designation of several areas as strategic land allocations. St Andrews is one of these. In relation to St Andrews the strategy for business and employment is as follows:

"There are opportunities to develop links outwith Fife in the areas of science and technology to further develop St Andrews' role, and increase the contributions that science and technology make to the Fife economy. A science park is required, together with a general business park, to meet the needs of expanding local businesses. This will be delivered as part of a mixed-use development. Tourism continues to be a significant driver of St Andrews' economy and opportunities to expand this sector are identified in the Local Plan" (para 3.25; cf para 2.4).

The plan then allocates two areas, each of 10 hectares, for the development of a science park and a business park at St Andrews (proposal PE1) and allocates to St Andrews West a requirement for land for the development of 1000 houses (proposals PH1; PH2). For the St Andrews and north-east Fife housing market area the Plan sets a target that 30% of the new housing capacity should be taken up by affordable housing (policy H4).

The Ministers' response to the applicant's objection

[15] In the schedule of reasons for not making modifications the Scottish Ministers deal with certain criticisms of a general nature that objectors have made. Then they deal with certain specific objections.

[16] Objection 12 relates to the level of growth in the St Andrews housing market area and the capacity of strategic land allocations at inter alia St Andrews West. It notes that this objection has been made by, among others, certain named individuals. In my view, these include the applicant. Reason 12 for refusal to accept this objection is in the following terms:

"Proposal PH3 accommodates the required capacity which may be assigned to named locations following further assessment by Fife Council. Alterations cannot be made owing to strategic environmental assessment constraints but the settlement strategy indicates how additional capacity may be found."

[17] Objection 17 is to the effect that the proposed St Andrews West development will increase town centre congestion and affect landscape and amenities and that the scale of development is too high. This objection is said to have been made by the St Andrews Confederation of Residents Associations, the St Andrews Preservation Trust and named individuals. It is plain that the applicant is one of those individuals. Reason 17 for the refusal of the objection is as follows.

"It is appropriate for St Andrews to accommodate a strategic allocation of Fife's housing requirement. The local plan will articulate the strategic land allocation which can be accommodated subject to mitigation and landscape enhancement."

[18] Objection 33 relates to the landscape character of St Andrews. It is agreed that the applicant is one of those who made it. The schedule gives the substance of the objection and sets out the Ministers' reason for rejecting it, as follows:

"33 Landscape character and capacity assessments indicate that St Andrews is at its landscape capacity or that development should be steered to Craigtoun (named individuals, Royal Burgh of St Andrews CC, St Andrews Preservation Trust, St Andrews Green Belt Forum).

Reason: the 2003 Alison Grant study indicates that some scope for further development to the west of St Andrews exists subject to mitigation."

The applicant founds on the wording of this reason.

The section 238 application
[19] The applicant contends that reason 33 (supra) is an inadequate reason for refusing her objection. She maintains that her objection and the reports on which it was founded demonstrated that the capacity for a strategic land allocation at St Andrews West was insufficient. She had specifically objected that the 22 hectare site identified by the Grant Report as appropriate for development could not accommodate development on the scale envisaged in the Finalised Structure Plan. It was incumbent on the Ministers to give an adequate reason for proposing a level of development to the west of St Andrews that was far beyond the land available. Reason 33 was not intelligible. It did not deal with the substance of her objection. Therefore it was beyond the powers of the Ministers. The applicant further contends that her interests have been substantially prejudiced by the Ministers' failure to comply with their obligations under Part II of the 1997 Act.

The Lord Ordinary's decision
[20] The Lord Ordinary refused the application for the following reasons:

"[62] Having considered Reason 33 in context and against the background of the statutory procedure which preceded it, as well as the competing submissions, I am not satisfied that it can be said that the Scottish Ministers have failed to give an adequate, proper and intelligible reason for not modifying the Finalised Structure Plan. What the applicant was seeking was in effect a reversal of the previously declared policy of the Council to have a housing development in St Andrews West. That issue had in the earlier stages of the process been the subject of appropriate consultation and dispute, but the policy decision had already been taken well before the applicant proposed a modification to the structure plan. Indeed, it is questionable whether what she proposed could fairly be described as amounting only to a modification, as opposed to a major change of policy. In my judgment the submission for the Council that the justification for the policies in the structure plan has to be set out in the structure plan itself and its supporting documents is well-founded. Regulation 6 of the 1983 Regulations provides that the structure plan must include a reasoned justification of the policies and general proposals formulated in it. I do not think that, in responding to a proposed modification, the Scottish Ministers require to provide a detailed justification of a policy for which the Council had provided (as they were legally required to do) a reasoned justification in the structure plan. To seek in Reason 33 a comprehensive justification of the policy to have a housing development in St Andrews West is to look in the wrong place. I am therefore of the opinion that Reason 33 passes the test set out in Re Poyser and Mills' Arbitration and Wordie Property Co Ltd.

[63] Moreover, had I been of the view that Reason 33 was deficient, I would not have been satisfied that the interests of the applicant have been substantially prejudiced, for the reasons given in the submissions for the Scottish Ministers and the Council. Her concerns had been previously addressed and any objection which she has to the specific location of development in St Andrews West can be made through the local plan process. It is averred by the applicant that the order requires to be quashed to the extent that it affects any of her property, but it is not averred, and I was not told, what property of the applicant was affected, or in what manner. In my view the fact that the applicant is, in her capacity as a resident of St Andrews, displeased with the reason given does not mean that she is prejudiced or that her property has been affected.

[64] Further, had I been in favour of the applicant I would have refused to exercise my discretion to quash the structure plan or any part of it in view of the disruption to the development plan which would have ensued. Such a course would result in delaying progress on the local plan due to the absence of a strategic basis for allocations in St Andrews. There would be no up to date development plan for St Andrews for some time, which would be a disproportionate consequence of any prejudice suffered by the applicant."

Submissions for the applicant

[21] Counsel for the applicant submitted that in dismissing the application the Lord Ordinary failed adequately to deal with her argument that reason 33 did not answer her objection. Her concern was that St Andrews could not absorb the proposed development without significant damage to the landscape. Simply to refer in reason 33 to the Grant Report was not a proper answer. The Report identified only limited scope for development on an area that would be wholly insufficient for the strategic land allocation now proposed. Reason 33 failed the tests laid down in Wordie Property Co Ltd v Secretary of State for Scotland (1984 SLT 345) and Re Poyser & Mills' Arbitration ([1964] 2QB 467). There was substantial doubt as to whether Ministers had considered the matter properly. The Lord Ordinary had erred in holding that the applicant had to demonstrate that her interests had been substantially prejudiced. If proof of prejudice was required, it was to be found in the failure to give her adequate or intelligible reasons (South Buckinghamshire DC v Porter (No 2) [2004] UKHL 33; Save Britain's Heritage v Number 1 Poultry Ltd [1991] 1WLR 153; Di Ciacca v Scottish Ministers 2003 SLT 1031). The applicant also had a general interest as a resident of St Andrews. It was not disputed that she was "a person aggrieved" for the purposes of the Act. There was no realistic prospect of having the scope of development reduced by a challenge to the local plan. The court should quash the decision unless there was a good reason to do otherwise (Peak Park Joint Planning Board v Secretary of State for the Environment (1979) 39 P & CR 361; Bersted Parish Council v Arun District Council [2003] EWHC 3149 (Admin)). The court could quash the Structure Plan in part and in that way lessen any delay that its decision might cause (Hallam Land Management Ltd v City of Edinburgh Council [2011] CSOH 75).

Conclusions
[22] The historic town of St Andrews is a major tourist centre in Scotland. It is a town of great beauty. As is invariably the case in such towns, there are conservation bodies committed to preserving its amenity. Many residents are understandably reluctant to see further development on the fringes of the town. They seek to limit the scope of any such development and its impact on the landscape. It is probably inevitable that in the formulation of development plans there will be tensions in certain locations between amenity considerations as they are perceived locally and the broader policy priorities of the planning authority. This, I think, is such a case.

The over-riding Structure Plan considerations
[23] A structure plan is that part of the statutory development plan that sets out the overall strategy on which development in the relevant area will be based. The plan rests on fundamental strategic objectives adopted by the planning authority in accordance with Ministerial guidance. The Scottish Ministers retain the ultimate authority to approve its finalised terms. The strategic objectives are the basis of, and are carried into effect by, the various sectoral policies of the written statement. These policies are carried through in more detailed and site-specific ways in local plans and are ultimately implemented in ad hoc decisions on planning applications.

[24] The fundamental strategic objective of the Structure Plan is the economic regeneration of Fife. The Plan seeks to achieve this objective by an array of measures such as restoring population growth, providing low-cost housing as a stimulus to population growth and identifying key economic development areas in various parts of Fife. The plan proposes that St Andrews should be an economic driver for the whole of Fife and identifies St Andrews West as one of the key economic development areas. It does so on the basis that the St Andrews area should be required to contribute to the attainment of the overall objective of the Plan.

[25] In its now final form the Plan sets out a reasoned justification for its strategic objectives and for the policies by which they will be put into effect. That justification is informed by the Structure Plan Report of Survey (1997 Act, s 4), has been tested by the process of public consultation and has received the approval of the Ministers.

The adequacy of the Ministers' reasons

[26] In a case where the adequacy of reasons is challenged, the court should consider whether the informed reader would understand the basis for the decision complained of. The reasons must be intelligible and must deal with the substantive points that have been raised; but in my opinion it is important to begin by considering the nature of the decision that is complained against and the context in which it has been made. In a case of this kind it is also important to assess the adequacy of the reasons on the basis that they are addressed to persons who are familiar with the background and the issues. The applicant is clearly familiar with these matters. She objected to the Plan when it was first published as a consultative draft and has maintained her objections ever since.

[27] This reclaiming motion is made on the narrow basis that the Scottish Ministers' decision is vitiated by the inadequacy of reason 33 (supra). In my opinion, there are two fundamental flaws in the applicant's case. The first is that the objection is described as being purely a landscape objection founded on the alleged inadequacy of the landscape capacity of St Andrews for the proposed level of development. In my view, that is an incomplete characterisation of the applicant's objection. It is a root and branch objection to the fundamental aims of the Structure Plan so far as they affect St Andrews. It is directed against the strategic land allocation at St Andrews West and the identification of St Andrews as an economic driver for Fife.

[28] In my opinion, there was a wealth of material entitling the Scottish Ministers to conclude that St Andrews West should be one of the strategic land allocations that were a key element in the Structure Plan. The question of landscape capacity was obviously taken into account; but it did not outweigh other wider considerations that were inherent in the adoption of the overall Structure Plan strategy. So far as I can see, the reasoned justification that the Council has offered for its policy for the growth of St Andrews as an economic driver for Fife has been constant throughout the Structure Plan process (cf Fife Structure Plan 2006-2026 Consultative Draft (March 2005)). That policy led to the identification of St Andrews as a strategic land allocation and a strategic development area. Reading the May 2009 document in its entirety, I consider that the Scottish Ministers gave due consideration to that justification and to the objections of the applicant and others and concluded that the justification had been made out. Their acceptance of the Council's justification is in my view a clear and adequate answer to the applicant's objection.

[29] The second flaw is related to the first, namely that the application itself and the submissions for the applicant made in this reclaiming motion require us to assess objection 33 and the adequacy of reason 33 in isolation from the rest of the document. That is entirely the wrong approach (cf Commr for the New Towns v Horsham DC [2000] PLCR 70, Brooke LJ at p 86). If the objection and the reason were to be read in this way, it might be argued that there is no articulate answer to the conclusion of the Grant Report as to the limited scope for development at St Andrews West; but the Grant Report considered landscape issues only, regardless of other planning considerations (supra). The Scottish Ministers' decision took all relevant considerations into account. Their reasons for not accepting proposed modifications to the Plan have to be read along with the whole Structure Plan in its finally modified form. When the Plan is read as a whole, it is apparent that the Ministers have endorsed the fundamental strategies of the planning authority, and the substance of the specific policies by which they are to be implemented. Therefore, before one even reaches the Schedule of Reasons for Not Making Modifications, the Ministers have expressly approved the designation of St Andrews West for a strategic land allocation far in excess of the developable area contemplated in the Grant Report, for the reasons given in para 2.4 of the written statement, as modified (supra). It necessarily follows from that decision that, for the same reasons, objection 33 falls to be repelled. I can see no need for the Ministers to answer objection 33 by a detailed repetition of reasons that have already been articulated in the written statement, as modified. Having read those reasons, the informed reader of reason 33 will already know that an objection on landscape grounds has inevitably been over-ridden by the approved strategic priorities of the Plan.

[30] In any event, the answer to the applicant's objection is not to be found only in reason 33. It is also to be found in reasons 12 and 17 (supra). Reading these three reasons together in the context of the whole Plan, I consider that they give a comprehensive answer to the applicant's objection. The decision complained against was therefore within the powers of the Act.

[31] On the view that I have taken, the question whether the interests of the applicant have been substantially prejudiced does not arise.

[32] If I had been in favour of the applicant on the main issue, I would nevertheless have been of the view that the motion of counsel for the applicant that we should simply quash that part of the Plan relating to St Andrews West was misconceived.

[33] This court is empowered to quash a Structure Plan either generally or in so far as it affects any property of the applicant (1997 Act, s 238(2)(b), supra). It may be possible, as Lord Malcolm has held (Hallam Land Management v City of Edinburgh Council, supra), for the court in certain circumstances to quash one element of a development plan while leaving the remainder of the plan intact; but if that is the law, I think that that possibility could arise only in exceptional cases. This is certainly not a case in which such a procedure would be appropriate. One of the fundamental features of a structure plan is that its policies interlock and, when read together, represent an integrated strategic proposal. In the normal case, therefore, none of the provisions of the structure plan can be excised without there being repercussions on other parts of the plan. The effect of our quashing those parts of the Plan that relate to St Andrews West would be that it would cease to be a strategic land allocation. That would undermine the settlement strategy of the Plan. It would disrupt the local plan process. It would frustrate the policy decision that St Andrews must make its contribution to the economic regeneration of Fife. In this way the wider economic strategy would be undermined and, in my opinion, would become unworkable. I think that there would also be a vacuum in the development plan because there would no longer be a coherent planning framework for development control in St Andrews West.

Disposal
[34] I propose to your Lordships that we should refuse the reclaiming motion.

For the Applicant and Reclaimer: Findlay, O'Rourke; Drummond Miller LLP

For the First Respondents: Miss Crawford, QC, Duncan; Scottish Government Legal Directorate

For the Second Respondent: Armstrong QC; Balfour & Manson LLP

7 September 2011

[35] For the reasons given by his Lordship in the chair, I agree that the reclaiming motion should be refused.

For the Applicant and Reclaimer: Findlay, O'Rourke; Drummond Miller LLP

For the First Respondents: Miss Crawford, QC, Duncan; Scottish Government Legal Directorate

For the Second Respondent: Armstrong QC; Balfour & Manson LLP

7 September 2011

[36] For the reasons given by his Lordship in the chair, I agree that the reclaiming motion should be refused.