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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Upland Investments Ltd & Robertson Property Ltd & Anor, Re Judicial Review [2009] ScotCS CSOH_143 (20 October 2009) URL: https://www.bailii.org/scot/cases/ScotCS/2009/2009CSOH143.html Cite as: [2009] CSOH 143, [2009] ScotCS CSOH_143 |
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OUTER HOUSE, COURT OF SESSION
[2009] CSOH 143
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OPINION OF LORD BANNATYNE
in the petitions of
UPLAND INVESTMENTS LIMITED AND ROBERTSON PROPERTY LIMITED AND ANOTHER
Petitioners;
for
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Petitioners: Steele Q.C, Burnett; Simpson & Marwick
Respondents: McKay; Morton Fraser
20 October 2009
Background
[1] These
applications for judicial review
concern a challenge of decisions of Moray Council
taken on 25 February 2009 which reading short were to grant planning
permissions by varying conditions to allow for the unrestricted sale of open
class 1 non-food goods from units 1, 3A and 3B of the Springfield Retail Park,
Edgar Road, Elgin. These variations in conditions were granted in favour of The
British Land Company Plc who are the owners of Springfield Retail Park.
[2] These matters called before me for a first hearing at which stage I was advised that both matters had settled and Joint Minutes were tendered. In terms of the Joint Minutes it was agreed that the foregoing decisions should be reduced. In addition the respondents, Moray Council were found liable to the petitioners in the expenses as taxed.
The motion
[3] Following the lodging of the Joint Minutes a motion was moved on behalf of the petitioners in each case for an additional fee. The relevant Rule of Court is 42.14. In each case additional fees were sought under reference to the factors referred to in subparagraphs (2)(a); (b); (e) and (f) of the Rules of Court.
[4] The test which I applied when considering the motions for an additional fee was that set forth by counsel for the respondents, namely: were the factors relied on present and if so were they present to such a degree as to justify an additional fee in Court of Session terms. Put another way having regard to the factors present was the case shown to be out of the ordinary or abnormal and thus of such a nature as justified an additional fee.
Submissions for the petitioners
[5] Senior counsel for the petitioners' submissions were divided into two sections. First he made submissions in support of his argument that factors (e) and (f) were present in relation to each of the cases. These factors are in the following terms:
"(e) The importance of the cause or the subject matter of it to the client;
(f) The amount or value of money or property involved in the cause;"
Senior counsel advised that his submissions under these two subheads were interconnected and as regards these he submitted the following:
(a) Robertson Property Limited
[6] Senior
counsel described this petitioner as a smallish, non-international property
development company which is based in Elgin. They had built an 85,000 square foot retail park at the cost
of г13,200,000 which was valued in 2007 at г20,500,000. Interest on the
capital cost for the building of the retail park is running at г625,000 per
annum. This petitioners' retail park is situated opposite the Springfield Retail Park owned by British Land. Until the challenged decisions The Springfield Retail Park was
zoned only for bulky goods. The petitioners' retail park was zoned for all
goods. He described the effect of the challenged decisions (which had in broad
terms removed the restrictions as to what could be sold at Springfield Retail Park) as being one
of considerable blight to Robertson's Retail Park. He advised
that the retail park had been empty since 2007. Senior counsel accepted that
the sole reason for this was not said challenged decisions however they were a
material factor. He stated that the decision in the petition for judicial
review
was of critical importance to Robertson's.
(b) Upland Investments Limited
[7] Senior
counsel again described this company as a smallish property development company
of a non-international nature based in Aviemore. They owned the St Giles
Centre which was a retail shopping mall in Elgin town centre. This was described by senior counsel as the jewel in
the Crown of the assets of the said company. It was his position that they had
also suffered material blight as a result of the said challenged decisions. He
again submitted that the decision in the petition for the judicial review
was
of critical importance to this company.
[8] Senior counsel submitted that against that background the factors set out in subparagraphs (e) and (f) were shown to exist in relation to each petitioner.
[9] In terms of subparagraphs (a) and (b) senior counsel again stated that his submissions under these two subheads were interconnected. He submitted that these two factors were present in respect of each of the cases. These factors are in the following terms:
"(a) The complexity of the cause and the number, difficulty or novelty of the questions raised.
(b) The skill time and labour and specialised knowledge required of the solicitor...."
He took me through the factual background of both cases and the legal issues in them as set forth in the petitions. The factual background and the legal issues in each petition were exactly the same. It was his position that individual issues of legal complexity were raised within the petitions. Further there were a large number of legal issues raised which he submitted when taken cumulatively made the two cases complex. In addition he submitted that the factual background was lengthy and not straight forward. Considerable skill and time had been required on the part of the solicitors acting for the petitioners in order to properly investigate and understand the whole factual background to the case.
[10] Given the foregoing circumstances it was senior counsel's submission that the factors set forth in paragraphs (a) and (b) were present.
Submissions on behalf of the respondents
[11] Counsel
for the respondents reply in relation to these submissions made under (e) and (f)
were that first the petitioners had produced no real evidence of blight and of
the level of that blight and in addition they had produced no real evidence of
any causal link between any such blight and the challenged decisions. For
example no expert report had been produced supporting the foregoing. He
accepted that there would be some indirect effect as a result of the challenged
decisions on the investment value of the property. However, he submitted that in
no real sense was there any capital sum at stake in these proceedings. He
submitted that the successful outcome of the present judicial review
proceedings did not mean that the decisions were permanently lifted. Rather
decisions in the same terms as the challenged decisions might properly be
reached at a later stage and thus all that the petitioners had obtained in the
present proceedings could properly be described as temporary relief. He
submitted that all that was at stake in the present proceedings was a chance
that the challenged decisions would not be reinstated in a lawful form at some
future stage. It was his position that there was nothing of major importance
to the petitioners decided in these cases. He submitted that there was nothing
under these heads to take the matter out of the ordinary.
[12] Turning to factors (a) and (b) counsel for the respondents position was that the background of the case involved no more investigation than in a normal planning case and did not amount to anything out of the ordinary. The legal issues were straightforward dealing with nothing more than well understood and well developed legal principles. There was nothing out of the ordinary in the law. He reminded me that the work done by senior and junior counsel had to be separated from the work done by the solicitors when considering these factors as the additional fee related to solicitors and not counsel.
Discussion
[13] Turning to factors (e) and (f) I was satisfied that it had been established that the cases were of more than ordinary importance to the petitioners and that the value of each case to the petitioners was of such a nature as to take the value of it beyond the normal.
[14] The
first point under these heads which was of relevance was the size of the two
companies. Both were small non-international property development companies
and in each case either their primary asset or at least a principal asset was
at the heart of these judicial review
proceedings. It seems to me to follow
from the nature of the challenged decisions and the proximity of the petitioners'
retail parks to the Springfield
Retail Park that they would have a material effect
on the capital value of these assets and would cause material blight. The
precise level of the financial impact was not established before me. However,
I was satisfied that when looked at against the size of the two petitioners and
the importance of the assets to the two petitioners that any material effect on
these assets would have very serious financial repercussions for them. In my
view it could be said that these assets were of critical importance to each
petitioner.
[15] I did
not accept the approach of counsel for the respondents to the effect that the
victory achieved by the petitioners in these judicial review
proceedings was
not of a substantial nature in that it might be overturned at some future stage
by the respondents arriving at the same decisions in a proper and lawful
manner. That submission in my
judgement
was misconceived. The court has to have
regard when considering such a motion to the situation as it presently finds it,
namely: that the challenged decisions are of critical importance to the two
petitioners for the reasons I have stated and they have been reduced. It is in
my view not the correct approach to say: at some later date the challenged
decisions might be arrived at correctly and in essence reinstated, thus
rendering the petitioners' victory in these proceedings of no real effect.
Such an approach would amount to allowing the respondents to say the decision
is not of critical importance on the basis of a factual scenario that may not actually
happen. Such an approach in my view is contrary to logic and defies commonsense.
[16] As
regards factors (a) and (b) I accepted the submissions made on behalf of the
respondents that: (1) in considering these factors I should separate the roles
and work of counsel and solicitors and consider only the work done by
solicitors and (2) that certain of the legal issues raised within the
petitions related to well recognised legal principles in the area of judicial
review
and that the law regarding a number of the issues raised is well settled
and therefore not of considerable complexity. Nevertheless, in my view the
number of legal issues raised in the petitions and which were to be argued
before me took this matter out of the ordinary. There were no less than ten
separate and distinct legal challenges to the validity of the decisions all of
which were to be argued before me. That in my view is a very substantial and
unusual number of separate legal issues to be argued in a
judicial review
case
of this type. It follows that the number of issues which had to be investigated
and considered by the solicitors was out of the ordinary. Although I recognise
that certain of these may have been reasonably straightforward for the
solicitors to consider and investigate, I am of the view that certain of them raised
novel and difficult questions. Overall looking at the legal issues, given
their number and the complexity of certain of these they would have required skill
and expertise on the part of the solicitors which was out of the ordinary and
was abnormal.
[17] As
regards to the factual background to the cases it in my view could be described
as lengthy, complicated and convoluted. It in my judgement falls outwith the
ordinary background which would require to be investigated by a solicitor in
such cases. It would require more than the normal time to be expended by the
solicitors investigating the matter. In addition it would require a greater
than normal level of skill and expertise to be exercised by the solicitors than
in a normal case.
[18] It is accordingly my view that the factors referred to in subparagraphs (a), (b), (e) and (f) were present in each case and that when looked at individually as well as when looked at cumulatively they took these cases out of the ordinary and justified holding that the petitioners were entitled to an additional fee.
Decision
[19] For the foregoing reasons I find the petitioners entitled to an additional fee under heads (a), (b), (e) and (f).