SUMMARY APPLICATION BY COASTAL REGENERATION ALLIANCE LIMITED AGAINST SCOTTISH MINISTERS AND SCOTTISH POWER GENERATION LIMITED
SHERIFFDOM OF LOTHIAN AND BORDERS AT EDINBURGH
[2016] SC EDIN 60
B277/16
JUDGMENT OF SHERIFF N A ROSS
In the Summary Application by
COASTAL REGENERATION ALLIANCE LIMITED
Pursuer
Against
SCOTTISH MINISTERS
Defender
and
SCOTTISH POWER GENERATION LIMITED
Interested Party
Pursuer: Campbell QC
Defender: Burnet, advocate
Interested Party: Sutherland, advocate
Edinburgh August 2016: The Sheriff, having resumed consideration of the cause, repels the pursuer’s pleas-in-law, sustains the pleas-in-law for the defender and interested party, and refuses the appeal; fixes a further hearing, on a date to be afterwards fixed, for submissions on expenses, unless parties can agree final disposal without need for appearance.
Note:-
[1] This is a statutory appeal by summary application procedure in terms of section 61 of the Land Reform (Scotland) Act 2003 (the “2003 Act)”). The pursuer appeals against two similar decisions of the defender that two community interests are not to be entered in the Register. The relevant decision letters are dated 19 February 2016. These letters pre-date certain recent amendments to the 2003 Act, and accordingly all references are to the pre‑amendment provisions which applied at the date of the decision letters.
[2] The procedure to be adopted in such an appeal, and the powers of the court, are not defined in the 2003 Act, and led to some discussion as to the appropriate form of hearing (a matter of central significance, as the 2003 Act excludes any further appeal). Procedure was by way of legal debate, with the proviso that, depending on the outcome, some evidence may be required. As evidence was not led, the pursuer’s averments of fact will be treated as correct for purposes of discussion.
The statutory framework
[3] This action is brought under the “community right to buy” provisions which are set out in Part 2 of the 2003 Act. These provisions create a right for local communities to seek to register an interest in land. The 2003 Act requires such an application be made by a company limited by guarantee set up for the purpose (section 34), such as the pursuer, and known as a ‘community body’. The community body applies to the defender for registration in a register kept by the Keeper entitled “Register of Community Interests”. That registration has effect in the event that the landowner takes steps to dispose of the land. Upon that event, the community body has certain rights to attempt to buy the land. The pursuer is such a community body, and the community relates to Prestonpans, Cockenzie and nearby areas in East Lothian.
[4] The requirements for registration of a community interest are set out in sections 37 to 46 of the 2003 Act. Broadly, there are two categories of application, namely those made prior to, and those made after, the date upon which an owner of land has taken steps to transfer the land to another. I shall adopt parties’ references to these as ‘timeous’ and ‘late’ applications respectively, as these are described in statutory guidance referred to below.
[5] For a timeous application, the requirements are set out in section 37. This provides that a community interest in land may be registered only upon an application made by a community body to the defender in the prescribed form. There are detailed provisions for the procedure to be adopted. The criteria for registration, after timeous application, are set out in section 38. The section 38 criteria include requirements that the land is registrable land, that a significant number of the members of the community have a substantial connection with the land, that the land is sufficiently near land with which they have a substantial connection, and other criteria, all as set out in that section.
[6] There is a separate procedure for late applications (section 39). Lateness is established where the application by the community body for registration is received ‘after the date on which the owner of land…has taken action which, if a community interest had been registered, would be prohibited…’ and before missives for sale and purchase have been concluded, or an option to purchase conferred.
[7] Section 39(3) sets out the requirements for a late application. The defender must not decide to register the land unless not only all the section 38 criteria are satisfied, but also three further criteria, namely:
(a) ‘that there were good reasons why the community body did not secure the receipt of an application before the owner of the land…took the action, or gave notice [which would be prohibited if the land were registered]’
(b) ‘that the level of support within the community for such registration is significantly greater than that which Ministers would…have considered sufficient for the purposes of [a timeous application]’
(c) ‘that the factors bearing on whether it is or is not in the public interest that the community interest be registered are strongly indicative that it is.’
[8] In the present case, it is not disputed by the parties that the criteria of section 38 have been met, and also criterion in section 39(3)(b) (‘significantly greater level of support’). The present dispute relates to section 39(a) (‘good reasons’) and 39(c) (‘strongly indicative of public interest’). The defender decided these conditions had not been met, and refused registration.
The background to the late applications
[9] Parties are substantially agreed on the factual background, and for the purposes of debate this can be briefly summarised as follows:-
[10] The pursuer is a community body set up under section 34. On about 21 August 2015 it made two applications for registration of two separate areas of land (the ‘first applications’). These areas of land are both situated near the site of the former Cockenzie power station Prestonpans, East Lothian. They are, respectively, an area of land known as the ‘Greenhills site’ and an area of land nearby known as the ‘Battlefield site’. They were timeous applications. In terms of section 37(17) of the 2003 Act, they fell to be determined by the defender within 63 days. In fact the defender took 81 days. On 10 November 2015 the defender then intimated that it declined to consider the applications as the pursuer had incorrectly identified the owner of the site as Scottish Power plc. In fact, ownership had passed to the Interested Party (hereafter ‘SPG’) on 27 September 2001 and the transfer had not yet been reflected on the Land Register. No challenge is made to those determinations of the first applications.
[11] On 12 November 2015 the pursuer submitted two further applications (the ‘second applications’) in relation to the same sites. The second applications were accompanied with the prescribed information sufficient for a timeous application. However, by that stage (and as early as June 2014), SPG had entered into talks with a number of third parties with a view to sale of both sites. The second applications were therefore late as the terms of section 39(1)(a) were satisfied, because SPG had already taken action with a view to transfer of the land (section 40(1)). It is not disputed that, due to the timing of the second applications, they are late applications. The terms of section 39 do not require, or mention, knowledge on the part of the applicant.
The defender’s decision on the second applications
[12] By separate letters each dated 19 February 2016 (lodged respectively as numbers 23 and 24 in the pursuer’s inventory) the defender intimated their decision in relation to the Greenhills site and the Battlefield site respectively (together, the ‘decision letters’). The defender determined that it would not enter either of the two applications in the Register. The decision letters are in similar terms, and each accepted that a number of the tests for registration had been satisfied. However, the defender was not satisfied in relation to either site that the terms of sections 39(a) (‘good reasons’) and 39(c) (‘strongly indicative of public interest’) were met. The pursuer challenges both decision letters.
The grounds of appeal
[13] The 2003 Act provides for challenge under section 61, which is notably brief in its terms. I will discuss this later. The grounds of appeal in the Initial Writ are that:-
(d) the defender arrived at its decisions in respect of the matters complained of on an incorrect factual basis, having taken into account immaterial and factually incorrect facts and considerations;
(e) the defender has acted unreasonably, in respect that the decisions are predicated upon facts and circumstances which were inaccurate, and separately were unknown and could not have been known to the pursuer at the date of the applications; and,
(f) the defender has failed to give proper adequate and intelligible reasons for its decisions, and has accordingly acted ultra vires.
The pursuer’s submission
[14] Mr Campbell addressed the two grounds of refusal. The first was the alleged failure to demonstrate good reasons why the community body did not secure the receipt of an application before SPG took the action to sell the sites. At the outset, he noted that it had taken 101 days (instead of the statutory 30 days) for the defender to intimate its decision, although this could not itself be a ground of appeal as it can be excused under the 2003 Act. He noted also that all the criteria under section 38 had been accepted by the defender as being met. He submitted that the nature of the error was such that the court should exercise a fresh discretion, not simply examine the matter on the traditional approach of an appeal court.
[15] He noted the terms of the decision letters. These noted that it was ‘clear’ that SPG had taken steps to dispose of the sites prior to the application being made, and equally clear that the pursuer had not taken any steps to submit a timeous application before these steps were taken. The defender identified, from the material submitted by the parties, and in particular SPG, that the date when such steps were commenced was 5 June 2014.
[16] Mr Campbell did not dispute that the defender was entitled to reach these factual conclusions, or that they were correct. His submission was that the pursuer knew nothing of these steps to dispose of the site. He summarised his position in the proposition that there could be no better reason for not initially recognising the existence of confidential commercial negotiations other than they were not known about.
[17] The material relating to SPG’s negotiations to dispose of the sites had been produced and lodged by SPG but was heavily redacted. It was impossible to gain from what was left any fair understanding about what was being negotiated. SPG had lodged a Non-Disclosure Agreement, the whole point of which was to prevent third parties, such as the pursuer, finding out about the negotiations. The first the pursuer knew of any sale was in SPG’s response to the second applications, dated 7 December 2016, more than a month after the second applications were submitted. He recognised that SPG asserted that the pursuer (or, logically, the office bearers in a personal capacity, the pursuer not having been incorporated until later) knew of plans to sell the sites as early as 21 October 2014 when they had held a meeting with them. He submitted, however, that none of the material lodged by SPG supported that assertion, as it related to either different or unidentified areas of land. Nothing they had submitted contradicted the pursuer’s assertion that it did not know of the sale. It was possible to conclude from this material, he submitted, that SPG’s contention was false, and the pursuer was in ignorance of the transfer until informed in December 2015.
[18] The second ground for challenge was the decision that the pursuer had failed to demonstrate that ‘the factors bearing on whether it is or is not in the public interest that the community interest be registered are strongly indicative that it is’.
[19] This, Mr Campbell submitted, involved considering first what factors bear on the public interest, and then what may amount to the public interest. Thereafter the defender’s decision can be looked at to consider if the facts were accurately analysed. Then the adequacy of the reasoning would be compared to what the law requires of a properly reasoned decision. He accepted that the onus of satisfying the statutory tests was upon the pursuer.
[20] From the decision letters, at pages three and four, the defender comments on a number of factors, none of them adversely, and notes that these could bring public benefits. The decision letters refer to only one other document, namely SPG’s solicitor’s letter of 7 December 2015 and attachments. There is no analysis of this document in the defender’s letters.
[21] He then examined the reasons given by the defender (pages 4 and 5 of the letters). His submission was that the decision introduced a ‘catalogue of requirements’ which went well beyond what was required by the 2003 Act. It also went beyond the published guidance on community right to buy (a reference to a government publication ‘Community Right to Buy: Guidance’ published by the Scottish Government in 2009, lodged at number 25 of the pursuer’s inventory – hereafter the ‘Guidance’). The letter set out the expectation of the defender for a ‘greater level of information’ for a late application. It relied on there being ‘no evidence’ of investigative work, or of any ‘determination of how the proposals would be implemented’. It relied on their being no details of who would take any proposals forward.
[22] Mr Campbell submitted that none of this information was required by the 2003 Act. It was also not required by the Guidance. Questions 8 and 18 of the Guidance simply set out the statutory test, and note that the wider public interest would be given due weight. He founded particularly on the following passage in Question 18, which reads:-
‘If Ministers consider the interests of a particular sector of the public against the wider public interest and conclude that these public interests are unfavourably affected, this does not, in itself, mean that the public interest test cannot otherwise be satisfied.’
[23] It followed that the defender had introduced criteria not required by the 2003 Act. These were to be found in the first paragraph on page 5, and were a requirement to show (i) a ‘need for the proposals’; (ii) a negative impact if registration were not granted; (iii) a greater level of information than for a timeous application; and (iv) how the pursuer’s proposals were to be implemented. These were four sub-tests which the legislation had not provided, and upon which the Guidance, which would be a material consideration, was silent. These were therefore irrelevant, in the legal sense. They had set the bar higher than that set in the 2003 Act. It became an almost impossible target for the pursuer, which was run by a lay body of local residents. For example, if they were to invite tenders to provide a respite care facility, they couldn’t in fairness be expected to know who the successful tenderer would be, and therefore could not explain in the letter who was going to implement such a proposal
[24] Mr Campbell then referred to the defender’s reference to the proposed use of the site, apparently by an offshore energy supplier. Although that supplier had obtained planning permission for offshore facilities, that permission did not cover the sites. The defender had expressly not relied on the existence of this proposed use of the sites in refusing the registration. However, it appeared that they may have made a factual error in assuming there was to be an on-shore facility, as the lodged emails did not cover such a facility. This indicated that they must have taken all their information from the letter of December 2015 referred. This response had not been shown to the pursuer.
[25] The defender had then gone on to form a false equation that if the application were granted then it would result in the loss of jobs and investment. This was false, as this generality was not expressly related to the Greenhills site or the Battlefield site. In any event, cabling could be underground.
[26] Mr Campbell referred in passing, for its facts, to a recent case (RSPB v Scottish Ministers and another [2016] CSOH 103) in which planning consent for the offshore wind farm had been refused. This may, he submitted, show that the commercial development of these sites may never take place. He accepted, however, that this could not have been known about at the time of the decision letters, and in any event the decision may be appealed. It was therefore not possible to be certain of the outcome. This point could therefore be disregarded for present purposes, which relate only to the decision letters of February 2016.
[27] Mr Campbell then referred to the applicable authorities. He referred to Pairc Crofters v Scottish Ministers 2015 SLT 308, where the First Division declined to define public interest, and left it to the assessment of the Scottish Ministers, taking into account all of the competing public interests. He submitted that here the defender had not decided that the application was not in the public interest, but had introduced competing factors. The pursuer had no chance to comment. The defender made no investigations, other than reading SPG’s submission, and had not attempted to corroborate it. The decision had taken into account relevant material, but of unknown provenance. He did not, however, go so far as to say this material was irrelevant.
[28] He submitted that any decision must be adequate and intelligible, capable of being understood by an informed reader, and leaving the recipient in no substantial doubt about the outcome and why it was arrived at. He referred in passing to Wordie Property Company Ltd v Secretary of State 1984 SLT 345 at 348. He accepted that a poorly reasoned decision can only be struck down if it is Wednesbury unreasonable, namely that it is so unreasonable that no reasonable person could have made it (Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1KB 223).
[29] He submitted that these decision letters failed these tests. In respect of the ‘no good reason’ test, it was perverse. On the ‘strong indication of public interest’ the defender’s expectations had no statutory grounding, and were not flagged up in advance. The reasoning relating to the loss of jobs and investment were specious, because they were only assertions, unsupported by evidence, and absurd as a loss of green space was contrary to the public interest. He accepted that his case would be on much weaker ground if the pursuer had been shown the response.
[30] The court should exercise its powers under section 61, and direct that registration should take place.
The defender’s submission
[31] Mr Burnet for the defender had no material dispute with the underlying facts in the pursuer’s submission. His position was that the appeal was not sound in law. He submitted that in effect the court was being invited to carry out a judicial review of an administrative decision, and he submitted that the Wednesbury principles applied, and did not permit the court to interfere. The court should only interfere with such a decision unless satisfied that it contravenes the Wednesbury principles, or that it is plainly wrong. It is not enough that the court might have reached a different decision on the facts.
[32] Where a decision-maker has relevant information before him or her, it is a matter for his or her discretion whether there is sufficient information on which to take the decision (Carroll v Scottish Borders Council 2015 CSIH 73). The weight to be given to a relevant consideration is entirely a matter for the decision-maker.
[33] In assessing the quality of the decision, a decision letter is not the same as a judgement of a court. He agreed with the test set out by senior counsel for the pursuer, namely that the reason should be adequate and intelligible and leave the informed reader in no substantial doubt about the reasons for the decision. There must be something substantially wrong or inadequate in the reasons that are given in order to enable the jurisdiction of the court to be invoked (Moray Council v Scottish Ministers 2006 SC 691).
[34] In assessing lawfulness, the court may have regard to published guidance and policy which was available to the decision-maker to assist its determination. In the present case, the legislature left considerable discretion to the Scottish Ministers.
[35] There were two grounds for refusal. In relation to the first (‘good reason’), the pursuer’s approach was based on a misunderstanding of the Act. The classification of ‘lateness’ does not derive from the pursuer’s knowledge or actings. It is a state of fact which depends on the existence of steps to transfer the land. In any event, the defender had a wide discretion in deciding whether a good reason had been provided. The delay in informing the pursuer was not regarded as a good reason, and in logic it was not a good reason. In any event, the decision is not perverse or irrational or plainly wrong. It was competent for a court to consider questions of ‘public interest’, and these were not simply political or policy matters (Pairc Crofters Ltd v Scottish Ministers 2012 SLT 308).
[36] The second ground for refusal (‘strongly indicative of being in the public interest’) was equally valid. The test for public interest under section 39 was deliberately more demanding than under section 38. The public interest was much wider than simply the demands of the local community, and included the interests of the landowner, the potential developer and the wider public who may benefit from the development of the land. The reasons for the decision had been clearly set out.
[37] As a matter of interpretation of the court’s powers under section 61, the court could hypothetically, as a matter of logic, ‘require rectification of the Register’ even where registration had been refused, because as a matter of fact the making of the application, and the refusal, were marked on the Register already (and senior counsel in reply agreed with this proposition).
[38] Overall, despite the pursuer’s criticisms of the decision letters, the pursuer did not offer to prove that the decisions were incorrect, or that their reliance on material supplied by SPG had misled them. The pursuer did not offer to prove a contrary position. There was no requirement to investigate matters. In any event, there was clearly sufficient evidence upon which to base their decision. The sufficiency of that material was itself a matter for the decision-maker to assess. The defender had carried out a proper balancing exercise, and its decision could not be described as unreasonable or wrong.
Submission for Interested Party
[39] Mr Sutherland for SPG made a submission which substantially mirrored the submission for the defender. The decision was reasonable, and could not be described as unreasonable or wrong. He too agreed that the Wednesbury test applied, and that the framework for the decision was accurately set out by the defender’s counsel. The decisions given were proper, adequate and intelligible, and left the informed reader and the court in no real and substantial doubt as to the reasons for the decision.
The approach of the court
[40] In considering the validity of the decision letters the correct approach of the court is, in my view, set out in the following cases:-
[41] In Holmehill Ltd v Scottish Ministers 2006 SLT (Sh Ct) 79, the Ministers declined to register an interest after a late application, deeming there to be insufficient good reasons for timeous application, and the factors not being strongly indicative of the public interest. The sheriff held that the appeal was not to be treated as a review, and was not an opportunity for the court to start consideration of new. Because the legislation had left a significant discretion to the Ministers, without defining the criteria for exercising that discretion, and because the Ministers had exercised it with reference to the policy underlying the Act, their decision could not be regarded as unreasonable. In the particular circumstances the decision was found to be unchallengeable. The sheriff accepted that the onus of proving good reasons, and strongly indicative factors, lay on the pursuer. I note that the sheriff had the benefit of evidence from the Ministers as to what policy they had applied: I did not have such evidence, and therefore cannot make findings beyond the bare terms of the decision letter. The sheriff applied the test of Wednesbury unreasonableness. I note that the pursuer, as in the present case, argued that the application was late because the company had not yet been formed. As the sheriff pointed out:-
‘If [counsel] is correct, the lack of a company’s awareness because it was not in existence would always be a good reason for lateness…That would not be in keeping with the policy decision not to enact a general right of pre-emption, or the principle that late applications should be granted in exceptional circumstances. I am of the view that it is the general awareness of the community and its intention to purchase that requires to be considered in this context.’
[42] I agree with that approach. Logically, a community could defeat the lateness principle after having been alerted to a potential transfer, by commencing the steps to create a community body, then pleading that the community body could not have made an earlier application because it was in course of being formed. What they would have done is artificially to exclude earlier community knowledge by relying on the date of incorporation of the company. Such a device, if allowed, would bypass the lateness provisions, in circumstances where the office-bearers of the company knew of the pre-existing transfer transaction. The pursuer is a vehicle set up under the 2003 Act for the purposes of section 34. It is a single-purpose vehicle for the local community. It is the local community which is the relevant entity, which takes the decision to form the pursuer and make the application, and which must show sufficient community support for the application. That ‘the community body didn’t know’ is not a good argument, because it represents the community which runs it.
[43] In Carroll v Scottish Borders Council [2015] CSIH 73, the Inner House considered the approach to be taken, in a planning law context, when a court scrutinises a discretionary decision delegated to a statutory body. I was invited to accept that this was also the correct approach in a land registration context, and I do so. The applicable principles are similar and there is no persuasive basis (and none was suggested) to distinguish between a planning context and a land registration context.
[44] In Carroll, the defender had refused planning consent for a wind turbine installation. The court repeated the well-known approach that the court was concerned not with the merits of the planning decision, or issues of planning judgement, but with the legal validity and procedural regularity of the decision. The delegated decision would not be overturned if it was exercised validly within the legal framework. The delegated body may decide for itself such matters as (i) whether there was enough information upon which to make the judgement; (ii) the necessity and method of further investigation, if judged necessary, and; (iii) how the decision is explained (as long as it gives proper and adequate reasons for its decisions which deal with the substantial questions in issue in an intelligible way). The body does not require to consider every issue raised. It does not require to conduct an elaborate philosophical exercise. It is important to maintain a sense of proportion when considering the duty to give reasons, and not to impose on decision-makers a burden which is unreasonable having regard to the purpose intended to be served (at paragraph (7)). It is sufficient if the informed reader is left in no real doubt as to why the body reached its decision. These points follow the decision of the First Division in Moray Council v Scottish Ministers 2006 SC 691 at 699. The decision involves the exercise of expertise and judgement.
[45] In Pairc Crofters Ltd v Scottish Ministers 2012 SLT 386 the First Division considered ‘public interest’ in the context of part 1 of the 2003 Act. Lord President Gill said at paragraph [57]:
‘Likewise, I consider that there is nothing in the submission that the expression ‘public interest’ lacks any legal force. The public interest is a concept that is to be found throughout the statute book. There is no need for a general definition of it. It is for the Land Court and the Ministers to assess the public interest on the facts and circumstances of the case. A general statutory definition of the public interest, if one could be devised, would be unhelpful, in my view…the assessment of the public interest involves the balancing of the objectives of the application with the interests of any sector of the public which in the opinion of the Ministers would be affected by the exercise of the right to buy.’
The decision letters of 19 February 2016
[46] The decision letters are in substantially the same terms. At the outset, it is fair to note that in making the decisions the defender has also set out its reasons for accepting that the pursuer has satisfied the majority of tests under the 2003 Act. It is only on two grounds out of seven that the pursuer has failed.
‘Good reason’
[47] The first is ‘good reason’ for not submitting a timeous application. The letters note that SPG has shown clear evidence that steps to dispose of the sites were taken on 5 June 2014. The pursuer does not dispute that date, or suggest that it is wrong. There is no reason for the defender to regard it as wrong. Accordingly, by definition, any application to register after that date was ‘late’.
[48] The letters note that the pursuer’s Articles of Association were only submitted on 4 March 2015 for approval, and that:
‘while [the community] shows some intention towards pursuing community ownership of [the sites], any indication of a more serious intent to use the community right to buy did not come until after the land had been noted in plans put forward by third party developers. This suggests that serious intent to submit an application…came only after the land was seen to be vulnerable to development…We do not consider that submitting an interest as a reaction to the proposed use of land…is a ‘good’ reason for not submitting a timeous application.’
[49] Two points arise. The first is that the defender has identified that the pursuer knew of the proposed use of land by having notice of plans from third party developers. The reason that knowledge may be relevant is because the Guidance (which all parties agreed was legitimate to refer to as informing the defender’s decisions) states:-
‘Applications for registration are normally made before the owner takes steps to offer the land for sale (“timeous application”). They can be made after the owner has taken steps to offer the land for sale (“late application”), though late applications are expected to be submitted on in exceptional circumstances’ (emphasis in Guidance; paragraph 1).
[50] It is in ‘exceptional circumstances’ that a late application is to be made. The defender does not accept the pursuer’s claim that they did not know of the likely transfer. This may or may not be correct. The pursuer does accept that it knew of a planning application for the Battlefield site only, granted in September 2014, but describes this as irrelevant (- as an aside, because what is under consideration is knowledge of likely development, it is difficult to see how knowledge of a planning application is irrelevant). At most, therefore, there may be a dispute on whether the pursuer knew of the application. At most, therefore, it might be possible to say that the defender based its decision to some extent on wrong facts about actual knowledge. This point, however, leads nowhere. That is because, firstly, the defender is in my view correct to have regard to the community knowledge, not the pursuer’s knowledge and, secondly, because the defender has a rational factual basis for such a judgement, namely that relevant information was available to the community substantially earlier than the dates of both sets of applications. There is nothing irrational in finding that the community knew, in general terms, of the likely disposal of one or both sites: the particular details need not be known, because it is the intent to dispose, not the likely use, which is the focus. The pursuer cannot substantiate a case that such a decision is ‘plainly wrong’; at most their case amounts to ‘arguably wrong’, which is not sufficient for challenge. The burden of establishing this is on the pursuer.
[51] In any event, even if the defender were mistaken as to the state of knowledge of the pursuer (or community), it is irrelevant. Section 39 does not depend on the pursuer’s knowledge. It depends on a crisp state of facts. Either the application comes before, or after, steps to dispose of the land have been commenced. Knowledge is not a test under the Act. The local community have had since 2003 to identify and register an interest in land. They did not do so until August 2015 (if one counts the first applications) or 12 November 2015 (second applications). It is not disputed that steps to transfer had been commenced long before that, indeed more than a year before. To refer again to the Guidance:
‘Q1…a late application is an application submitted after the land comes onto the open market…or negotiations have been entered into or proceeded with a view to transferring the land in question…You may not be aware that the owner of the land has taken steps to dispose of the land relating to your application. If you are unaware that your application is deemed “late”, the landowner is required to inform Ministers…’
’42. The community right to buy process is not intended to be used as a means to stop the landowner from developing their land in any way…’
[52] It is clear from this that the legislation contemplates that an application may be late, unknown to the local community. No remedy is provided. The only obligation is upon the landowner to bring the fact to the attention of the defender. It is clear that knowledge is irrelevant in establishing that an application is late. Is lack of knowledge then a good reason for lateness? The Guidance and the scheme of the 2003 Act clearly indicate the opposite. It is not legitimate to make an application to thwart a disposal. In the event that the community were not attempting to thwart a disposal, and were unaware of the disposal, the 2003 Act provides no relief or defence. It would have been straightforward to provide one. There is nothing illogical in the 2003 Act failing to provide for knowledge – if a site is truly of great community importance, it is not illogical to require the community to take early steps to protect their own interests. To prevent a landowner from selecting a purchaser, and agreeing their own price and timetable, is a significant restriction on their property rights, much more than subjecting their land to a registered interest. Where there is genuine unfairness towards the community, for example if the community had been making strong efforts to purchase and had been unfairly thwarted, the 2003 Act allows this to be remedied under the ‘good reason’ test. The defender has decided, however, that this is not such a situation. The community was active in protecting local interests from, according to the information available to the defender, at least 2010. The legislation was passed in 2003. Yet it was not until March 2015 that approval was sought for the Articles, and not until August 2015 that first applications were made. These are the true circumstances in which ‘good reason’ for lateness was being assessed by the defender, and it is difficult to describe their logic as flawed.
[53] The first steps to transfer the land were taken in June 2014. No application was made until, at the earliest, August 2015. It is necessary to show good reason for the application not being earlier. The local community’s knowledge does not form any part of the test under section 39. It is clear from the Guidance that it is regarded as irrelevant, and no redress is provided for acting (or failing to act) in ignorance. It is therefore entirely logical to place no weight on that proposition, and it follows that the defender’s decisions cannot be faulted on that ground. The decision letters did, in fact, make reference to their inference that the local community did know of the proposals, and the factual grounds for that inference. That conclusion appears justified on the material on which it was based. It cannot be described as ‘plainly wrong’ for the purposes of review or appeal. Even if the pursuer were to disprove those assertions, lack of knowledge is not a good reason, and does not amount to ‘exceptional circumstances’. The 2003 Act requires a community to take early steps to protect its interests in nearby land. I repel the pursuer’s submission on this point.
‘Strongly indicative of public interest’
[54] As the Guidance notes:
’52…Ministers will determine, on a case-by-case basis, whether your particular proposal is in the public interest. It is not a simple matter to decide what might be in the public interest…’
[55] The decision letters note a number of opportunities for the community should the pursuer’s application be successful. These can be very broadly summarised as (for the Greenhills site) the provision of an area of open space for recreation and community events, private investment for a respite home, a garden centre, café, allotments, a tourist hub, improvement of pathways, meadow flowers, learning opportunities, farmers markets, and (for the Battlefield site) reintroducing agriculture, possible garden/allotment/garden centre use, a field of remembrance, improved access routes and walks, and growing a variety of woodland and plant areas. The defender recognises these merits in the pursuer’s applications, and that they could bring benefits to the Cockenzie and wider area.
[56] The defender sought views from SPG but, as it was a late application, no response was sought from the pursuer. The pursuer’s submissions accepted that if the SPG material had been shown to the pursuer, then the pursuer’s position would be significantly weakened. However, in my view that gives this point a significance which it does not merit. There is no requirement in the 2003 Act to carry out an investigation. It is not unreasonable to require an application to contain all relevant information. It is for the decision-maker to decide whether the material available is sufficient for the purpose (Carroll v Scottish Borders Council, above). Further, there is an express statutory exception for any requirement to do so, as the decision letters identify (section 37(9)(b), and section 39(2)(b)(i)).
[57] The pursuer does not offer to prove that the defender was materially misled, or that the information provided was not correct. Although senior counsel’s submissions sought to raise doubt about the factual accuracy of this material, it was not possible to go much beyond speculation. The material did not justify a conclusion that the defender’s decision was ‘plainly wrong’ on the facts, and he quite properly did not so conclude. The pursuer’s position amounts to, in effect, a series of procedural complaints, relating to matters which were within the defender’s discretion, together with raising the possibility, but not probability, of error. The pursuer cannot responsibly plead or prove that this procedure led to the decision being sufficiently wrong or unreasonable to be challengeable under the foregoing principles.
[58] The letters proceed to discuss the decision, concluding:
‘Scottish Ministers have considered carefully both the potential benefits of the pursuer’s proposals and the potential detriment to both the owner and developer of the site…and have considered that it is not strongly indicative that it is in the public interest…’
[59] They set out several reasons. The defender identifies that the benefits, while recognised, are not sufficient to satisfy the ‘strongly indicative’ test. They found on a variety of factors which, in broad summary, include that no evidence is provided to support assertions of requirement, the effect of non-registration, or implementation. The level of information is described as limited. The transfer could lead to local jobs and investment, and increase power-generating capacity. The pursuer’s proposals themselves may limit their aim, by restricting the non-developed land available.
[60] The pursuer’s submission is that defender had introduced criteria not required by the 2003 Act, or by the Guidance. These criteria are in the first paragraph on page 5, and were a requirement to show (i) a ‘need for the proposals’; (ii) a negative impact if registration were not granted; (iii) a greater level of information than for a timeous application and (iv) how the pursuer’s proposals were to be implemented. These, it was submitted, were four sub-tests which the legislation had not provided for, and upon which the Guidance, which would be a material consideration, was silent. They had set the bar higher than was provided for in the 2003 Act, making this an almost impossible target for the pursuer, who was a lay body of local residents. For example, if they were to invite tenders to provide a respite care facility, they couldn’t in fairness be expected to know who the successful tenderer would be, and therefore could not explain in the letter who was going to implement such a proposal.
[61] In my view, these criticisms are misconceived. These points are not further criteria which the defender has introduced, but rather arise in testing whether the existing statutory tests have been met. They are a variety of reasons given for refusing the application. The defender is required to exercise a discretion based on the criteria set out in sections 38 and 39. It is required to do so on the general principles of the case law, which are set out above. They have reached a discretionary decision. It is for them to decide the material on which they do so, and the basis upon which they do so. In doing so, they have considered these points in coming to a single, overall decision on each criterion. These do not have the appearance of new criteria, but rather appear to be an explanation of the reasoning process in applying the statutory criteria. The decision letters discuss and decide the statutory criteria in a methodical basis. The defender has explained their decisions. It is not disputed, and cannot be, that the decision letters leave the informed reader in no substantial doubt as to the defender’s reasoning. In relation to the example used, of inability to predict a successful tenderer to build a respite facility, it is not the identity of tenderer which is being treated as important, but rather the apparent lack of resources allocated to follow up and implement the pursuer’s proposals. In this example, it is not the name of the tenderer, but the tendering process itself, which is missing. It is the pursuer’s submission, not the defender’s decision, which seeks to introduce new elements to the statutory procedure.
[62] There is no requirement to investigate, or consult, or advise. The defender’s decision represents the exercise of a broad discretion fettered only by the broad requirements of the common law applicable to administrative decisions by statutory bodies. In my view, those broad requirements, in the sense set out in the case law, have been met, and these decisions are accordingly not vulnerable to challenge.
[63] The pursuer placed reliance on the defender’s reference to the proposed user of the site, which appears to be an offshore energy supplier, and that the defender may have made a factual error in assuming there was to be an on-shore facility. In my view, this is not a good point. It would be necessary to show they had misinformed themselves in some material way, and had therefore taken into account some irrelevant or wrong consideration. The pursuer does not offer to do this. It does not offer to demonstrate that there is any error of fact, only that its own understanding of the material lodged is different. Separately, this assertion appears to be incorrect, as SPG’s letter of 7 December 2015 (referred to in the decision letters) refers to onshore facilities at the Battlefield site. Even if it were correct, the pursuer does not offer to show how such a misunderstanding, if it is fairly to be described as one, has had any material relevance to the decision. This becomes all but impossible when the decision-maker recognises, as it did, that ‘future proposed developments can change.’
[64] It would appear that the pursuer is applying to the defender’s decision the same type and depth of criticism it would apply to a court decision. The defender, in exercising a discretionary, statutory decision, is not a court, and does not require to act as one. The limitations on its decision-making are a matter of common law, the principles are well understood, and parties did not dispute these during submission.
[65] The 2003 Act represents a balancing exercise between competing interests. It creates some interference with the owner’s right of unrestricted disposal, but gives the landowner some increased protection when the landowner has actually taken steps to deal with his property. As the Guidance points out, the community interest is not necessarily the same as the public interest. The right to attempt to buy is given, but is not absolute. I cannot say that the defender’s view, that the facts were not strongly indicative of the public interest, was not one they were entitled to reach.
[66] For the foregoing reason, I reject the pursuer’s submission on this point also.
The court’s powers
[67] The court’s powers are set out in section 61(7). They are brief, possibly regrettably so, because they seem to invite the court to exercise an unlimited power of appeal, or even review, in overturning a decision, without setting out limitations on that power. (As an aside, parties agreed, after discussion, that the power to require rectification of the Register might competently extend to ordering registration, because the Register would, as a matter of fact, contain an entry which could be rectified, namely the fact that application had been made and refused.)
[68] The pursuer invites review, and asks that the court should overturn the defender’s decision. In considering whether this disposal is competent and proper, it is necessary to have regard to the common law relating to appeal against such administrative decisions. It is proper, in my view, to assume that the drafter of the legislation had in mind the common law background to the proposals drafted.
[69] That common law background to such appeals is clear and well-established. I have set out the broad framework above. Only if the defender’s decision is unreasonable in the Wednesbury sense, or on a consideration of the merits it is plainly wrong, can it be overturned. There must be something substantially wrong or inadequate in the reasons that are given in order to enable the jurisdiction of the court to be invoked (Wordie Property Co Ltd v Secretary of State (1984) SLT 345). The terms of the 2003 Act do not innovate on that. There is no reason, and no justification, for me to depart from these established principles. The pursuer’s submission has not satisfied these tests, and therefore I have no relevant basis upon which to exercise the powers in section 61(7)(a) and (b). I will therefore decline to do so.
Disposal
[70] I have rejected the pursuer’s submissions for the reasons set out. In my view the defender’s decision letters were properly-reasoned decisions which fulfilled the statutory tests discussed above. In any event, even if I were wrong on this, any deficit in those decisions falls far short of a level of being plainly wrong, or wrong in law, to justify my exercising the powers awarded in section 61(7). The defender is awarded a wide power of discretion under the 2003 Act. It has exercised that power in a logical, coherent and considered manner. There are no grounds for a court to interfere.
[71] Consequently, I shall repel the pursuer’s pleas-in-law, sustain the pleas-in-law for both the defender and SPG, as interested party, and refuse the appeal. No submission was made on expenses, so I shall fix a hearing on a date to be identified. If parties are able to agree a disposal, they should contact the clerk so a final interlocutor can be agreed, and a hearing can be dispensed with of consent.