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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Shetland Islands Council, Re Application for Judicial Review [2006] ScotCS CSOH_20 (05 August 2005) URL: https://www.bailii.org/scot/cases/ScotCS/2006/CSOH_20.html Cite as: [2006] CSOH 20, [2006] ScotCS CSOH_20 |
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OUTER HOUSE, COURT OF SESSION [2006] CSOH 20 |
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P1504/05 |
OPINION OF LORD HODGE in the Petition of Petitioners; for Judicial Review of (1) a decision by the Lerwick Port Authority to revise its dredging proposals for a navigation channel in the Lerwick North Harbour and a failure to carry out an environmental assessment in connection with said proposals; (2) a failure of the Scottish Ministers to consider whether the aforementioned decision of the Lerwick Port Authority required an environmental statement ннннннннннннннннн________________ |
Petitioners: Williamson; Shepherd & Wedderburn,
W.S.
Respondents: Davidson, Q.C.; Digby Brown
Grounds
of challenge
[10] Fifthly, SIC averred that LPA required and had failed to notify
and obtain approval from the Scottish Ministers under section 9(5) of the
Lerwick Harbour Order Confirmation Act 1974 ("the 1974 Act") in relation to the
deposit of reclaimed materials below the high water mark. Sixthly, it was asserted that because their
dredging proposals constituted development and the authorisation of a harbour
revision order to use the dredged material to reclaim land constituted
development consent, LPA were under an obligation to carry out an environmental
assessment under Council Directive 85/337/EEC which was directly
effective. I was referred to
[14] On the merits of the various grounds of challenge Mr Davidson
addressed me systematically on each of the relevant paragraphs of the
petition. First, he submitted that there
was nothing irrational about LPA's decision to revise the dimensions of the
channel as the decision was motivated by concerns for navigational safety and
as neither the existence nor the final positioning of the bridge was a
certainty. Secondly, LPA were under no obligation
to show SIC the Eagle Lyon Pope report but had shown them the proposed dredging
plans which were informed by that report.
SIC had known that LPA's dredging plans were not
immutable. Thus the refusal to
disclose the report could not of itself be
irrational. Thirdly, there was no
factual basis for the case of personal bar.
All that had been agreed by the parties was the location of the existing
channel; there was no agreement as to the future alignment of the channel. For personal bar there required to be a clear
and unambiguous representation and this was lacking. The chief executive officer of SIC who had
attended the meeting with LPA on
[21] In my opinion, it appeared from the documents produced in court that Arch Henderson and LPA, since January 2003 at the latest, knew that SIC were seeking to accommodate LPA's proposals for the future dredged channel in their design of the bridge and that SIC were seeking to reach agreement, or at least an understanding, with LPA as to those proposals which would inform their design of the bridge. Whether one categorised a representation by a public authority as personal bar, where it is followed by detrimental reliance by the representee, or as a species of breach of a legitimate expectation (see R v Jockey Club, ex parte RAM Racecourses [1993] 2 All ER 225, Stuart Smith LJ at 236), I considered that the documentation produced to me supported the view that there was such a representation and reliance. In particular I considered (i) that there was a clear and unambiguous representation as to LPA's proposals for the dredged channel, (ii) that this representation was made in a context in which LPA and their advisers would have known that SIC and its advisers would reasonably rely on it, (iii) that SIC did so rely on the representation, and (iv) that there was detriment to SIC in the sense that, were LPA to depart from the representation by altering their plans materially and dredging a different channel, SIC would suffer substantial financial loss through wasted expenditure in taking forward proposals which would then have to be altered radically. See William Grant & Sons Ltd v Glen Catrine Bonded Warehouse Ltd 2001 SC 901, 921, where Lord President Rodger cites a luminous passage from the judgment of Dixon J in Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641, 674-675.
[22] Turning to Mr Davidson's submission that there was no factual
basis for the cases of personal bar and breach of legitimate expectation, three
points may be made. First, while the
correspondence in the main comprised exchanges between professional advisers
and not their clients, I was not persuaded that this was material in the
context in which the exchanges (and in particular the e-mail of