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Cite as: [2007] ScotCS CSOH_5

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 05

 

P1504/05

 

 

 

 

 

 

 

 

 

 

 

OPINION OF LORD REED

 

in the petition of

 

SHETLAND ISLANDS COUNCIL

 

Petitioners;

 

for

 

Judicial Review of a decision by LERWICK PORT AUTHORITY

 

Respondents:

 

 

­­­­­­­­­­­­­­­­­________________

 

 

Petitioners: Anderson, QC; Williamson: Shepherd & Wedderburn, W.S.

Respondents: Dunlop, QC; C Kelly: Digby Brown

 

12 January 2007

 

Introduction

[1] One of the finest natural harbours of the British Isles lies in the Sound of Bressay in Shetland, between Mainland, the largest of the Shetland Islands, and Bressay, a smaller island to the east. The harbour has provided a safe anchorage for centuries, and is the reason for the development of Lerwick, the principal settlement of Shetland, on the Mainland side of the harbour.

[2] Lerwick is a fishing port, a centre of marine support for the offshore oil and gas industry, a ferry port with services to other ports in the United Kingdom, the Faroes, Norway and Iceland, and a port for general cargo. It is also popular with cruise ships and yachts [7/39]. With two entrances, from the north and the south, the harbour is open to shipping in all weathers and operates around the clock [7/36]. The Sound of Bressay is therefore described in one of the petitioners' documents as "a key shipping corridor" [10/4, p 44]. Over 2000 jobs are said to be dependent on the harbour [7/39]. A car and passenger ferry operates between Lerwick and Bressay, which had a population of 377 at the last census [10/4].

[3] In the present proceedings Shetland Islands Council (the petitioners), who are the local authority, seek judicial review of a decision by Lerwick Port Authority (the respondents) to revise their dredging proposals for the navigation channel in the Lerwick North Harbour. The petitioners wish to construct a bridge between Mainland and Bressay. They claim to have had a bridge designed on the basis of information obtained from the respondents as to their proposals for the future dredging of the navigation channel between the islands. They have applied for statutory consents in respect of that design. They intend to promote private legislation which, if enacted, would authorise them to implement that design. They are concerned that the respondents have revised their proposals, and that the revised proposals, if implemented, will necessitate the re-designing of the bridge, causing the petitioners delay and expense. They challenge the respondents' decision to revise their dredging proposals as being in breach of a legitimate expectation. The legitimate expectation in question is substantive rather than procedural: the petitioners maintain that, by reason of their expectation, the respondents are not entitled to adopt or implement their revised proposals. The application for judicial review also challenges the respondents' decision on grounds of personal bar and unreasonableness, and in addition challenges the respondents' proposals in respect of the disposal of the dredged materials as being in breach of the Lerwick Harbour Order Confirmation Act 1974 ("the 1974 Order"). The application also complains of a failure to carry out an environmental assessment in respect of the dredging proposals. That complaint is directed against the Scottish Ministers (as having failed to require that such an assessment be carried out) as well as the respondents.

[4] At the commencement of the first hearing, however, the court was invited on behalf of the petitioners to dismiss the petition so far as directed against the Scottish Ministers. During the course of the first hearing, the court was also informed that the complaint concerning the alleged failure to carry out an environmental assessment was not being insisted in; nor was the case based on personal bar; nor was the case based on an alleged failure to comply with the 1974 Order. The challenge to the reasonableness of the respondents' proposals was also qualified in the course of the hearing, as explained below, so as to be predicated on the proposals being, in the first place, contrary to the petitioners' legitimate expectation.

[5] In these circumstances, the petitioners seek two orders, which can be summarised as follows: first, reduction of the respondents' decision to revise their dredging proposals; and secondly, interdict against the respondents from dredging the North Harbour in implementation of their revised dredging proposals, insofar as such dredging would take place outside the limits of the dredged channel originally proposed, as indicated on a drawing provided to the petitioners on 9 January 2004 by the respondents' consultant civil engineers, Arch Henderson & Partners ("Arch Henderson"), until a final decision in respect of the petitioners' bridge proposal has been taken under the Roads (Scotland) Act 1984 ("the 1984 Act").

[6] At the conclusion of the first hearing, parties lodged a joint minute [19] in terms of which they agreed, in effect, that the matter to be determined at the first hearing was the petitioners' contention that they have a legitimate expectation that the respondents will not depart from their original dredging proposals. Counsel explained that the parties were agreed that the existence of a legitimate expectation (by which, it was agreed, they meant a substantive legitimate expectation) included, in this case, not only a representation on which it was reasonable to rely, but also detrimental reliance. The question whether the respondents' decision to proceed with revised proposals, despite any legitimate expectation and any detrimental reliance, was unreasonable and ultra vires, or whether the public interest might justify the respondents' failing to fulfil any expectation which they might have created, was to be left over to a second hearing, if necessary. The reason for splitting the issues in that way is explained below: in short, it is because the parties were agreed that the question whether the petitioners had acted in reliance upon a legitimate expectation should be determined at the present stage, on the basis of the material presently before the court, whereas issues of fact had been raised by the petitioners during the hearing, relating to the reasonableness of the respondents' revised proposals, which were not yet focused in the pleadings, and which might require the leading of evidence in some form.

[7] The parties also agreed in the joint minute that, in approaching the matters to be determined at the first hearing, the court should proceed on the basis of the pleadings and submissions of parties, two joint minutes (agreeing certain matters of fact) which had been lodged during the hearing [15 and 17A], and the documents referred to in counsel's submissions. It was also agreed that the documents were what they bore to be and were an accurate record of any statements which they recorded. It was further agreed that the court should repel the petitioners' pleas relating to personal bar, to the 1974 Order, and to EC law. So far as the two remaining pleas were concerned, it was agreed that the court should determine the petitioners' plea in respect of legitimate expectation. It was accepted by counsel for the petitioners in the course of the argument that, if that plea were repelled, the petition should be refused. If the plea were sustained, the court should deal at a second hearing with the plea of unreasonableness.

[8] Finally, by way of introduction, I note that this is the second of three related applications for judicial review. As explained below, in 2005 the court granted an application by the present respondents for judicial review of the Scottish Ministers' decision not to "call in", under planning legislation, the present petitioners' notice of intention to develop the bridge. That decision was quashed by the court. Having reconsidered the matter, the Scottish Ministers took the same decision in 2006. An application by the present respondents for judicial review of that decision has not yet been heard.

 

The factual background

[9] Lerwick Harbour (by which I mean the area of water falling within the jurisdiction of the respondents) lies in a north-west/south-east orientation, with Mainland to the west, and Bressay to the east. The northern entrance to the harbour from the open sea is a channel between the two islands, about half a mile in length. The northern end of that entrance lies between Greenhead, on the Mainland side, and Turra Taing, on the Bressay side. The southern end of that entrance lies between Point of Scotland (or Scattland), on the Mainland side, and Heogan, on the Bressay side. To the south of Point of Scotland, the channel opens up into a bay, known as the North Harbour. At the southern end of the North Harbour the water narrows, at a promontory on the Mainland side known as North Ness. To the south of North Ness, the water opens up again into another bay, known as the South Harbour. At the southern end of the South Harbour lies the south entrance, with the open sea beyond. It was agreed by counsel that the seabed is vested in the Crown.

[10] As a natural harbour with both a north and south entrance, Lerwick Harbour has proved to be an ideal port. It has undergone development since at least the seventeenth century, and particularly in the last 100 years. Historically, activity was focused on the Mainland side of the South Harbour, and it was there that the town of Lerwick developed. From the original "lodberries" at the south end of the harbour, expansion during the heyday of the herring industry required the development of piers and wharves northwards, past North Ness and into the North Harbour. The advent of roll on/roll off ferries, and increased fishing activity, required expansion further north in the 1970s. During the same period, oil services bases were established in the North Harbour and the Greenhead area. In the late 1990s, deepwater quays, a turning basin and a dredged navigation channel were created to cater for larger oil and fishing vessels. In 2002 a new ferry terminal was completed at Holmsgarth, to the south of Point of Scotland, to accommodate a larger generation of passenger and freight vessels [6/2]. Docks and piers now line the coast for approximately three kilometres to the north of the town, as far north as Greenhead. They include the Shetland Catch fish factory at Gremista Pier, to the south of Point of Scotland. What I have described as the northern entrance to the harbour, between Greenhead and Point of Scotland, has itself become a significant commercial and industrial area. The Bressay side of the harbour remains undeveloped and comprises rough grazing land with scattered crofts [10/4; 7/34].

[11] In 1997 the petitioners decided to investigate the possibility of replacing the Lerwick to Bressay ferry with a fixed link [7/10]. In December 1998 they instructed Halcrow Crouch ("Halcrow"), consulting engineers, to undertake a feasibility study. Halcrow were to investigate locations at Greenhead, Point of Scotland and North Ness, and to identify a number of options at these sites, including different forms of bridge and tunnel. Their brief did not require them to consult interested parties or to address the implications for navigation. During a site visit, Halcrow had a meeting with the respondents and were provided with information about "their intentions with regard to future dredging operations" [6/1, para 2.2.1]. Halcrow appear to have submitted the feasibility study in April 1999 [6/1].

[12] Halcrow noted that, at Point of Scotland, the navigation channel was approximately 95 metres wide and was close to the centre of the waterway. The water was relatively shallow, shelving from the shoreline on both sides to 5 metres below chart datum (‑5m CD) at the edge of the navigation channel. The navigation channel was dredged to -6m CD, but the respondents had stated that it was their intention to dredge the channel to -7.5m CD at some date in the future.

[13] In relation to navigational clearance, Halcrow noted that, although the navigational channel at all the sites under consideration was around 100m wide, a greater clear width would be required at Point of Scotland if a bridge were to be located there:

"A potential problem with the Point of Scotland crossing raised by the Harbour Trust [i.e. the respondents] was that vessels entering the harbour through the north channel have to swing sharply at this location to avoid the middle ground [an area of shallow water to the south of the channel] and berth at the Gremista Quay or other harbour berths. This manoeuvring therefore has a bearing on the clear width of channel required between supports and the Harbour Trust have requested that a clear width of 150m be provided" [para 3.5].

 

Halcrow observed that it might be worthwhile to undertake ship simulation studies for a design vessel (i.e. a vessel selected as suitable for the purpose of designing the bridge), to determine the minimum clear width required [para 4.1.2]. Halcrow also noted that their instructions required them to assume a vertical clearance from high water level to the soffit of any bridge of 40m [para 3.5].

[14] In relation to the figure of 150m, I was informed by counsel for the respondents that the respondents had no recollection of that figure being mentioned, although a figure of 160m had been discussed. Since all the other documents refer to a figure of 160m, as explained below, it may be that the figure of 150m was a mistake. Whether the figure was 150m or 160m is not in any event important.

[15] Halcrow considered a number of options for bridges or tunnels at the three locations in question. Drawings for box girder bridges at Point of Scotland were provided for three possible main spans: 125m, 160m and 260m. It is apparent from the drawing of the bridge with the 160m main span that the measurement of 160m was not the clear width of channel between the central piers, but was measured between the centres of the piers. Since the report envisaged that the piers would be supported on reinforced concrete caissons with abutments (which would sit on the seabed and would extend upwards to a level above high water springs) [paras 4.1.2 and 5.2], the clear width would be significantly less than 160m.

[16] The report concluded that Point of Scotland was the preferred location and that a fixed bridge was the preferred option. The report stated:

"The choice of bridge option will ultimately depend on the navigation clearances agreed with the relevant authorities."

 

[17] In the light of the report, the petitioners decided that further studies should be undertaken, including an assessment of the views of interested bodies. On 22 October 1999 the petitioners wrote to the respondents, explaining that they were carrying out such an assessment to assist in deciding whether or not to proceed with the project, and inviting the respondents to provide their views on the effects of the proposed bridge [7/40]. The respondents were informed that the vertical clearance would almost certainly be 40m, and that the main span would be at least 125m between pier centres [7/41]. The respondents' Chief Executive, Mr Wishart, replied on 4 November that the respondents had already indicated a strong preference for the proposed bridge to have a main span of at least 160m but that he would revert to the petitioners once the matter had been considered by the respondents' board [7/42]. [18] Mr Wishart wrote again to the petitioners on 17 November 1999:

"This matter was again considered by Lerwick Port Authority Board Members at their meeting yesterday and they asked me to inform you of their observations at this time.

...

·      The proposed air draught of 40m minimum in the main span above Mean High Water Springs is acceptable.

·      The main span of the bridge should have at least 160m clearance. This is in the interests of marine safety to avoid as far as possible risk to shipping with ensuing injury or loss of life, damage to vessels and serious environmental damage to our clean environment.

It is pointed out that from time to time large vessels or disabled vessels enter the harbour from the north. To do so they are accompanied by tugs - one at either end. To turn or manoeuvre a 'dead ship', it is necessary for the tugs to swing away from the direction of the forward movement and to do so obviously manoeuvring space is required.

 

It is also pointed out that in order to protect the Port Authority's right to dredge the north channel to a deeper level, it will be necessary to have at least 160m clear width so as not to disturb the integrity of the supporting piers" [7/44].

 

In the light of subsequent events, it is important to note that the respondents requested "at least 160m clearance": the minimum distance of 160m would therefore be measured between the inner faces of the bridge structure, rather than being measured between the centres of the piers.

[19] The next relevant document is a report on the petitioners' feasibility study [10/2], which was submitted by the petitioners' roads engineer to their Resources Committee on 1 February 2001.

[20] The report stated that it was intended to conclude the feasibility study. It noted that the first part of the study had been a technical appraisal of the various options. That had concluded that the best option would be a bridge between Heogan and Point of Scotland, which could be built for about £15m. The second part of the study had been an appraisal of social and economic issues. The report noted that there was provision in the current capital programme of £15m to build the bridge between 2003/04 and 2006/7. It concluded that the proposal had been thoroughly studied. It recommended that the Resources Committee should recommend that the council approve in principle that a bridge be built, and that a steering group be established to take the project forward. The report contained no mention of the points which the respondents had made in their letter of 17 November 1999. There was no reference in the report to any possible implications for the respondents.

[21] I was informed by counsel for the petitioners, in their submissions, that the Resources Committee accepted the recommendations in the report. A steering group (the Bridge Project Team) was established, headed by the petitioners' Mr Craigie. A budget of £15.559m was allocated to the project [7/6].

[22] On 21 October 2002 Mr Craigie wrote to Mr Wishart, stating:

"I feel the [respondents'] Board would be better informed if they had the opportunity to discuss how each of the various parameters impacts on the viability of the bridge. For example, reducing the span to 125m and the air draft to 30m could reduce costs by up to £3m. A further reduction in span would further reduce costs. ... I believe a presentation [by the petitioners] to the Board followed by an open discussion would resolve this. We need to do this prior to 11 November [when the respondents' board was next due to meet], bearing in mind that time is very much against us if we are to secure EU funding" [7/45].

 

In relation to the last sentence, is appears that Shetland had ceased to be designated as an Objective 1 area for the purposes of grant aid under the European Regional Development Fund at the end of 1999, but that a transitional fund had been established on which the petitioners could draw [6/1, para 10.2.1]. In order to secure EU funding, the project had to be completed by the end of 2006 [7/6].

[23] Mr Wishart replied to Mr Craigie the same day:

"When I mentioned to you that the Board plans to discuss the matter of the bridge parameters and review this I believe it will be, if anything, to increase the parameters not to reduce them. We have already had vessels with an air draft of 37.5 metres using the north entrance and as one trawler skipper said, 'It's narrow enough already'. The Port of Lerwick employs around 1,200 people directly and its history of continual development is not expected to suddenly stop. It is impossible to conceive therefore that a stranglehold will be put on one of the biggest collective employers in Shetland for the sake of a Council budget set some five years ago. Lerwick Port Authority is very supportive of the bridge project but it is imperative that a very long term view is taken of this development and that the bridge is designed and built with a broad vision of the long term future" [7/46].

 

[24] The respondents then commissioned a study from Arch Henderson on the impact of the proposed Bressay Bridge option on future port development and operations. Arch Henderson reported in January 2003 [6/2].

[25] The report began by giving an overview of the harbour. It noted that plans were currently being made to accommodate predicted growth in the pelagic fish processing industry and the offshore decommissioning industry. The related developments were planned for the North Harbour. It was also noted that the total tonnage of vessels using Lerwick Harbour had increased. The report stated:

"The remainder of this report by Arch Henderson & Partners provides relevant cost development information and navigational data that will need to be considered and addressed by parties involved in the planning, design, funding and construction of the proposed Bressay Bridge in order that a minimal impact on future port development and harbour operations is achieved."

 

[26] In relation to the layout of the North Harbour, the report noted that there was a dredged navigation channel (-9m CD), dating from 1998, through the northern part of the north entrance, at Turra Taing, with a dredged turning basin to its south, beside the deep water quay development at Greenhead. In the southern part of the north entrance there was the dredged navigation channel previously mentioned (-6m CD), dating from 1990, which passed between Point of Scotland and Heogan into the North Harbour, where it then bent in the direction of the Shetland Catch factory at Gremista Pier. The Shetland Catch factory had undergone recent development, including the construction of a deep water quay and the largest pelagic fish cold store in Europe. The proposed bridge would cross directly above the -6m CD navigation channel.

[27] The report noted that respondents had in 2002 commissioned a report into suitable sites for further expansion by Shetland Catch. The conclusion had been that Gremista Quay was the only suitable area. The current proposal was for a large reclamation area (i.e. an area currently under water, which would be in-filled and reclaimed) and an additional 390m of berthing with a draft depth of -9m CD, suitable for the new generation of pelagic trawlers, refrigerated vessels and general shipping. That proposal was illustrated on a drawing, prepared by Arch Henderson, appended to the report. The drawing shows a wider and deeper navigation channel (-9m CD) at Point of Scotland. As illustrated, the channel would lie in a different orientation from the existing channel, lying broadly north/south, rather than north-west/south-east. It would lead into a turning basin (-9m CD) serving the new deep water quay and the Shetland Catch development at Gremista. In relation to the drawing, the report stated:

"The proposed future navigation channel requirements shown ... have been established based on this anticipated development [i.e. the current proposal for the development of the Gremista Quay area] together with other future port design criteria and available vessel data. The following section of this report discusses further the proposed future layout requirements of the navigation channel, other design parameters and how these must be assessed and developed into any future bridge proposals."

 

[28] In relation to the future design of the North Harbour access channels, the report noted that there was no standard method for channel design: each design was site specific. There were however published guidelines, including those published in 1995 by the Permanent International Association of Navigation Congress (PIANC). The factors considered were the design ship characteristics (including size, manoeuvrability and trends in vessel development), environmental and physical conditions (including wind data, tidal information and currents), and navigational, operational and human factors (such as ship handlers' performance, skill and knowledge).

[29] In relation to vessel data, information available in December 2002 suggested that the most critical data related to proposed new build pelagic trawlers, with a draft of over 8m, and the new passenger ferry Norrona, with an air draft of 42.8m. I was informed in counsel's submissions that the Norrona was a regular visitor to Lerwick, but could at present enter and leave the harbour only by the south entrance, as her draught was too great for the north entrance, and she was too long from bow to stern to make the turn to the south of Point of Scotland. In relation to navigational aspects, the existing navigation channel through Point of Scotland was recognised by some vessel operators as a restricted channel. The dredging of the outer access channel at Turra Taing had increased tidal flow, causing some vessels to drift to the west side of the Point of Scotland navigation channel. It was recognised that during any further development of the channel the dredged width would need to be increased and its orientation moved to a north/south axis, in order to cater for larger vessels and improve navigation and manoeuvrability.

[30] The report continued:

"Based on predicted future vessel size and draft then the navigation channel width will need to be increased to 100m with the overall dredged channel 120m wide and -9m CD depth. The anticipated distance between bridge pier foundation supports corresponds to a minimum 160m but this dimension can only be finalised and agreed once site investigation information confirms final side slope stability characteristics of dredged channel. From the vessel data table above and after consideration of the Significant Wave Height and tidal surge likely then the required air draft under any part of the bridge structure needs to be a minimum clearance of 50m above Mean High Water Springs of +2.2m CD" [para 5.0].

 

In relation to the need for the dredged channel to be wider than the navigational channel, the report explained:

"The maximum channel width is a function of largest ship beam and length; maximum drift angle to current and wind; and an allowance for yawing due to wind effects."

 

[31] The suggested arrangement was illustrated by a drawing appended to the report (Appendix D). The drawing shows a dredged channel 120m in width. To either side of the dredged channel there is a side slope, sloping down from the undredged part of the seabed to the base of the dredged channel. No dimension is stated on the drawing for the side slope: as the passage quoted above explained, that dimension would depend on the stability characteristics of the slope, which could only be determined by site investigation. To the side of each side slope the drawing shows a berm, between the top of the slope and the edge of the bridge structure: in other words, an area of the seabed which has been left clear in order to reduce the pressure exerted by the bridge on the slope, so as to prevent the slope from collapsing (the idea is illustrated by the original meaning of "berm", to denote the space left by castle architects between the moat and the base of the castle wall). The berm is described on the drawing as a "minimum 10m berm": a minimum, presumably, because the appropriate dimension would have to be determined after site investigation. The drawing has a scale, and it is possible to measure the distance between the inner edges of the foundations of the bridge piers, i.e. the clear width. That measurement is 160m: 120m for the dredged channel, plus the minimum 10m for each berm, plus an allowance of 10m for each side slope. As the passage quoted made clear, however, that measurement was a minimum, which assumed that the site investigation would permit the minimum berm, and that the slope characteristics would be such that each side slope would be 10m. In that regard, the report noted that previous dredging at Point of Scotland had involved drilling and blasting, which could open up fractures and faults, with localised weakening of the strength of the rock. The report also observed that the difficulty of blasting adjacent to any bridge foundation, and the much higher cost of alternative dredging techniques, were matters to consider over the lifetime of any bridge structure.

[32] The report concluded:

"2.0 The proposed bridge crossing at Point of Scattland is at a location of proposed future development of the North Harbour area. This report demonstrates that future development of the port at this location will require a minimum navigation channel of 100m, dredged channel width of 120m and depth of -9mCD with a minimum air draft to any structure of 50m above Mean High Water Springs (+2.2mCD). A 12 degree clockwise rotation of the access channel is also proposed as part of future developments.

 

3.0 Dredging operations to create the above future navigational requirements could create significant conflict with any in-situ bridge structure and it will therefore be a requirement to consider dredging of the effected area of navigation channel as part of any civils contract for constructing the proposed bridge structure. The anticipated distance between bridge pier foundation supports corresponds to minimum 160m but this dimension can only be finalised and agreed once future site investigation information confirms side slope stability characteristics of dredge channel."

 

[33] The respondents provided the petitioners with a copy of the report. The petitioners in turn sought a response from Halcrow. Halcrow's response [7/47] did not consider the question of the span of the bridge, but was concerned almost entirely with the question of the vertical clearance. In that regard, Halcrow said that a clearance of 50m would add about £5m to construction costs. They suggested that taller vessels currently using the port, such as the Norrona and Royal Navy destroyers, could instead be restricted to the south entrance. Mr Craigie forwarded Halcrow's response to the petitioners on 20 January 2003, observing that the project would not be financially viable with a 50m clearance. He also stated:

"I fully recognise that the Port Authority has not adopted a position regarding the report and the contents of the report represent the views and the opinions of your Consultants at this stage" [7/47].

 

[34] On 27 January 2003 the parties met. It was noted that the Arch Henderson report had concluded that the requirements for the bridge should be a "50m air draft" and a "160m distance between columns", and that the "preliminary bridge design" had been developed on the basis of a 40m air draft and a 160m main span. It was noted that "in order to secure substantial European funding this project must be complete by the end of 2006" [7/6].

[35] During 2003 the respondents obtained estimates from Arch Henderson for the dredging works which had been proposed in their report [6/3]. It is a matter of agreement between the parties that during 2003 the only dredging proposals which the respondents were considering carrying out as their next dredging campaign were those contained in that report, and that this was made known to the petitioners [17A].

[36] In order to proceed with the bridge proposal, the petitioners required a variety of statutory permission and orders. Under planning legislation they were required not only to apply for planning permission but also (as they were both the planning authority and the proposed developer) to publish a notice of intention to develop, and, in the event of representations being made, to notify the Scottish Ministers, in accordance with regulation 4 of the Town and Country Planning (Development by Planning Authorities) (Scotland) Regulations 1981 (SI 1981 No 829) as amended. Under roads legislation they required to promote a roads scheme. Other consents and orders were also required. During 2003 the petitioners decided to proceed with the planning application in advance of the roads scheme [7/7].

[37] On 18 December 2003 Mr Spall of the petitioners wrote to Mr Wishart, stating that the project team had reviewed the general arrangement of the proposed bridge in line with the information provided by Arch Henderson and other data available to them. A technical problem had emerged: the various information sources were not in accord regarding the exact position of the existing navigation channel. Mr Spall observed that it was important that the petitioners' and the respondents' technical advisers were in agreement regarding the fundamental data, and said that it was intended to arrange face-to-face meetings to reconcile the information available. Mr Spall continued:

"In terms of the design there are a number of options available to adjust pier positions etc but in order to avoid unnecessary costs and abortive work, detailed discussions at a technical level will first be held to establish which options can be developed further."

 

[38] Mr Spall went on in the letter to discuss the notice of intention to develop ("NID") which the petitioners had to give in relation to the application for planning permission to construct the bridge and the associated road works, as explained above. In that regard, Mr Spall wrote:

"As you are aware, there is pressure to process the Notice of Intention to Develop in order to meet the project deadline. Clearly, there was insufficient time to complete these detailed discussions before the NID advert had to be placed in the paper on Wednesday 17 December. However, the NID is structured in such a way that the final detail surrounding the outstanding issues can be incorporated in the final design. This approach is in keeping with the discussion we had last week when I indicated that the Council would have to go forward with a proposal that is deliverable within the budgetary constraints and then take on board, as far as possible, amendments to deal with concerns or objections expressed.

...

I am keen to ensure that open and frank dialogue continues on the issue of the bridge, therefore this letter is sent to advise you of our intentions while giving reassurance that your very real concerns will be fully addressed as the formal consultation proceeds" [7/7].

[39] Although the letter stated that "we have advertised the NID", the notice was not in fact issued and advertised until 24 December 2003 [6/4; 6/5]. It gave notice that the petitioners intended to construct a bridge 717m in length between Point of Scotland and Heogan, with new connecting roads and junctions linking it to the existing road network, in accordance with plans submitted with the notice. It also gave notice that an environmental statement had been prepared. The notice was accompanied by an application by the petitioners for detailed planning permission in accordance with the accompanying plans and drawings

[40] In considering the application for planning permission, it is necessary to bear in mind that (as was common ground between the parties) the bridge structure above the Sound of Bressay, including the piers supporting the central span of the bridge, falls outside the scope of planning legislation (Argyll and Bute District Council v Secretary of State for Scotland 1976 SC 248). At the same time, as counsel for the petitioners explained, the design of the bridge structure as a whole depends on the location of the central piers: for engineering reasons (including regulations governing the gradients of roads and bridges, and the curvature of roads), a change in the location of the central piers (other than a minor adjustment) would affect the remainder of the bridge structure and the alignment of the roads connecting the bridge to the main roads network. The planning application (and the subsequent compulsory purchase notice) depended on a view being taken as to where the central piers were to be located, even though the piers did not themselves fall within the scope of the planning application (or of the compulsory purchase notice).

[41] The drawings and plans which accompanied the planning application and the notice were prepared by Halcrow, and were variously labelled "Preliminary", "Issued for Information" and "Issued for Discussion". They showed the location and spacing of the piers. One plan (TB-BRES-100 Rev F), dated 22 October 2003 and labelled "Issued for Information", showed the relationship between the bridge and a 120m dredged channel [10/3(ii)]. It showed a distance of 160m between the centres of the main piers. The distance between the centre of each pier and the edge of the dredged channel was shown as 20m. The clear width - the distance between the inner edges of the main pier structures - was not stated on the plan, but would appear to have been 134m. The vertical clearance was shown as 40m. The pier foundations were annotated: "Provision for ship impact to be confirmed." In relation to that matter, another drawing (TB/BRES/SK 101 Rev A), labelled "Issued for Discussion", showed the foundations as being protected within "rock islands" [10/3(iii)]. The dimensions of the rock islands were not stated.

[42] The bridge shown on the first Halcrow drawing (TB-BRES-100 Rev F) thus departed in two important respects from the recommendations made by Arch Henderson. First, the central span was considerably narrower than the 160m minimum clear width which Arch Henderson had indicated would be necessary. Secondly, the vertical clearance was 40m, rather than the 50m minimum recommended by Arch Henderson. The second drawing (TB/BRES/SK 101 Rev A) was similarly incompatible with the information as to the clear width requirement provided by the respondents and their consultants.

[43] The environmental statement [10/4] stated (at para. 2.1):

"The bridge ... will have a minimum air draft of 40m above Mean High Water Springs (MHWS) under the central span, which will be 160m wide."

 

A footnote added:

"The width of the main span is under review in consultation with Lerwick Port Authority".

 

A later passage (at para 2.3.2) stated:

"The proposed design is illustrated in Figure 2.2 ... The central span will be 160m wide".

 

A footnote added:

"The final details of the bridge are under development in consultation with the Port Authority. The central span may be wider in the final scheme."

 

Figure 2.2 showed a central span of 160m as measured between pier centres. The clear width was significantly less, and depended on the width of the pier structures, which were annotated "Provision for ship impact to be confirmed". The dimension between each edge of the dredged channel and the nearest pier centre was shown as 20m. In relation to the rock islands, the environmental statement stated:

"The cofferdams [i.e. sheet piled structures constructed around the intended working area, to keep the sea out] for the main piers will be incorporated in the permanent works to act as ship protection [p IV]" [ p 10].

 

[44] As Mr Spall had requested in his letter of 18 December 2003, a meeting of the parties' technical advisers was arranged. It took place during the afternoon of 9 January 2004 at the offices of Arch Henderson, and was attended by Mr Manson and (for part of the meeting) by Mr Sandison, both of Arch Henderson, and by Mr Allan of the petitioners. Mr Manson was a senior engineering technician. Mr Sandison was an associate. It appears, from the information I was given by counsel, that it emerged at the meeting that the parties (or their advisors) were using different computer systems for the presentation of data, with the consequence that neither party could overlay the other party's data on to its own system. That problem was resolved at the meeting. A drawing was produced at the meeting, showing the agreed position of the existing navigation channel, and also showing the position of the proposed new channel. Later that afternoon, following the meeting, Mr Manson sent an e-mail [6/7] to the petitioners' Mr Craigie:

"Further to the meeting in our office this afternoon between John Manson and Andy Sandison (Arch Henderson) and Kenn Allan (SIC) we can confirm that all parties are in agreement as to the location of the existing dredged channel. This is shown on the enclosed AutoCad drawing.

 

The location has been agreed, with the grid shown matching that shown on the Halcrow drawing of the bridge we received yesterday. Both surveys are in the same format and can be directly overlayed.

 

We have also shown the line of the proposed new dredged channel which Lerwick Port Authority wish to carry out.

 

Therefore this drawing of the channel will supersede all previous lines shown on Arch Henderson drawings and Halcrow drawings.

 

Please confirm receipt of this drawing, and the action to incorporate it on all existing and future bridge drawings."

 

[45] The attached drawing showed the location of the existing dredged channel. It also showed what was described as a "120m wide proposed channel", bounded on either side by lines labelled "edge of proposed dredged channel". Beyond each of the lines, there was another line labelled "top of sideslopes to proposed dredged channel". A docquet on the drawing stated:

"The above data relating to the existing channel position has been agreed as correct at a meeting between John Manson (Arch Henderson) representing Lerwick Port Authority, and Kenn Allan representing Shetland Islands Council on 9 January 2004. The information for the channel positions was taken from the original setting out drawing for the 1990 harbour dredging contract ...

 

Proposed new 120m wide channel (position of top of slopes (10m from main channel edge) running from SOP1 to SOP3 [positions on the drawing] added 09/01/2004.

 

All existing and future Bressay Bridge drawing to be updated to show this information as the current lines for both the existing channel and proposed channel."

 

[46] The petitioners did not respond to the e-mail or acknowledge receipt of the drawing [6/19, para 6.6.4]. It is a matter of agreement between the parties that the e-mail was copied to Ms Laurenson, the Deputy Chief Executive of the respondents, that she printed a hard copy of it the same day, and that she cannot recollect whether the drawing was attached. It is also a matter of agreement that she would not in any event have been able to open the attachment [15].

[47] On 13 January 2004 the respondents submitted objections to the planning application [6/8]:

"4. The objectors and their engineering advisers, in so far as they can determine the position from the Planning Application and supporting drawings or plans, believe the proposed development is likely to obstruct or impede the performance of their functions as Harbour Authority in terms of the Lerwick Harbour Acts and Orders 1877 to 2003 and various other general Acts and/or to interfere with the reasonable requirements of navigation over the waters, namely Lerwick Harbour. However, due to lack of salient design and construction information the objectors and engineering advisers are not able to advise fully on these aspects.

 

Matters of concern include the absence in the Application and supporting drawings or plans of precise details of the location and dimensions of the bridge, including supporting pillars, in relation to the navigation channel. No design data and maintenance information in respect of the proposed bridge is given. In addition, the width of its central span, as proposed, would be insufficient to permit safe maintenance and future development of the navigation channel. No details are given of the Hydrological study and Hydrodynamic modelling study referred to in the Environmental Impact Assessment and the effect of the proposed development on the harbour and vessels using same during both the construction and post construction periods.

 

In respect of dredging it may not be possible to dredge at all post-construction or if dredging is possible the costs are likely to increase substantially. In any event no information is provided as to how pier foundations are to be constructed or the protection of same from future dredging of the channel".

 

Concern was also expressed that the rock islands would restrict the width of the channel and therefore increase the speed of the water flowing through it, rendering the channel less safe for navigation, and reducing the size of the vessels able to use it.

[48] On 19 January 2004 the respondents submitted objections to the environmental statement [6/8]:

"A. (i) The indicated width of the bridge span over the navigational channel is insufficient and in particular insufficient to accommodate its future development. The minimum width needs to be 160 metres measured between the inner edges of foundations adjacent to said channel. This objection presupposes pre-dredging of the navigational channel by the applicant. If this is not intended to take place then the minimum 160 metre width referred to will almost certainly need to be increased in order to accommodate potential future development.

 

(ii) Information on drawings, which is both conflicting and inadequate, has been provided regarding cofferdams in their use as ship protection or part of the temporary causeways becoming permanent as man made rock islands. The position is, therefore, unacceptably uncertain and their impact cannot be assessed.

 

...

 

(iv) Insofar as the ES comments on the effect of the temporary causeways/islands, the studies are absent and no detailed information on this topic is given. No consideration has been given to the effects of the bridge on navigation of vessels except in relation to air draft. This gives rise to serious actual and potential concerns regarding likely difficulties, details of which are contained in the annexed initial comments and concerns, with diagram annexed, by Captain Archer T L Kemp, Harbourmaster of Lerwick Harbour, which comments and concerns form part of these objections.

 

...

 

(vi) There is a failure to appreciate that not only is the navigational channel used by vessels entering from the north but also it is in regular use by internal harbour traffic including, for example, vessels entering from the south, reefer vessels loading cargo at the Greenhead base and Gremista, inshore and pelagic fishermen, pleasure craft, pilot cutters, Lerwick Port Authority work boats and the like.

 

The suggestion that vessels can go round Bressay [i.e. so as to enter the harbour by the south entrance] if the channel is blocked or restricted is unreasonable and unsatisfactory and does not conduce to the efficient running of Lerwick Harbour ...

 

(vii) If a large vessel such as the Norrona, which recently grounded in Torshavn harbour [in the Faroes], were to ground in the North Ness channel, the objectors would be faced with the prospect of harbour traffic, e.g. the NorthLink ferries which berth at Holmsgarth requiring to use the north channel until the North Ness channel was cleared. No assessment has been made of the impact of the bridge in such an event."

 

Captain Kemp's observations, which were incorporated into the objections, emphasised the difficulty of navigating the existing channel, as a result particularly of tidal flows, and expressed concern that the further restriction of the channel would exacerbate that problem.

[49] On 17 March 2004 a meeting was held between the respondents' and the petitioners' officials. The minute records [7/8]:

"MC [Mr Craigie of the petitioners] said that from previous discussion and correspondence with LPA [the respondents] it was known ... that there were elements of the draft proposals which they felt were unacceptable.

...

 

AW [Mr Wishart of the respondents] said that the potential for future dredging had to be carefully protected. The draft requirements of vessels likely to be using the port were constantly being increased. The design of the bridge should not therefore inhibit dredging in the vicinity of the middle piers ...

 

AW referred to correspondence from 1998 and 1999 setting out LPA's position on bridge dimensions. Two letters from LPA were demonstrated which clearly indicated requirements including a 160 metre clear width requirement. AW said that another option was to increase the centre span to, for example, 180 metres. This would move the piers clear of the navigable channel. MC said that this was still a possibility but that it would involve extra cost. The report to Council will present such options, with attendant costs."

 

Mr Wishart was asked to explain his suggestion of a central span of 180m:

"AW explained that this was based on an official navigable channel width of 100 metres. 10 metres on each side of this had to be added as an allowance for 'navigational buoy excursion' plus another 10 metres each side to account for the construction of a stable dredged slope and a further 10 metres berm (ledge at edge of slope) to the inner side of pier base. 20 metres is assumed as the diameter of the central pier foundation structures. He felt that 180 metres between centres would be required to ensure that the pier bases were far enough from the edge of the dredged channel. This would allay LPA concerns regarding future dredging."

 

As counsel for the petitioners acknowledged in argument, Mr Wishart's suggestion of a span of 180m, measured between pier centres, was effectively the same as the earlier request for 160m clear width, if the diameter of the pier structures was assumed to be 20m. The only new matter was Mr Wishart's explanation that the 120m channel included an allowance of 20m for navigational buoy excursion. In relation to that matter, it was explained in submissions during the first hearing that the navigation buoys are anchored by chains, which are more or less taut depending on the state of the tide. To the extent that the chain is slack, the buoy can drift.

[50] Mr Sandison of Arch Henderson said at the meeting that the respondents now intended to dredge the channel to a depth of -10m CD. He also expressed concern that the proposed design of the pier foundations was inadequate and did not comply with the relevant guidelines regarding ship collision. Mr Wishart said that this concern also would be abated if the main span, measured between pier centres, was extended to 180m. Mr Craigie responded "that this option would be costed and presented to the Council along with the others".

[51] Mr Wishart also raised again the issue of the increasing draught of vessels using the port:

"The current pelagic fleet can draw as much as 8.5 metres. The Icelandic vessels which may use the port in the future draw up to 10 metres. The freedom to dredge in this area in future was therefore a major concern."

 

It was noted that the bridge foundation would need to be reconsidered if the dredge depth were increased to -10m CD. Concern was also expressed about the effect of the bridge construction on the current flowing through the channel, and thus on navigation.

[52] General observations made by Mr Wishart were also noted:

"He explained in some detail the highly competitive nature of ports and their businesses, particularly Oil and Fishing. Any impediment or restriction to free and safe vessel movement would be picked on by a competitor as a good reason for existing and potential customers to avoid Lerwick. MC acknowledged this ...

 

AW said that LPA had a duty to protect the interest of the harbour and could therefore not compromise on navigational issues. He felt that SIC have the ability to resolve the issues by increasing the funding for the project."

 

[53] On 13 April 2004 Mr Sandison of Arch Henderson wrote to the petitioners' planning department, stating that they had been commissioned by the respondents to procure contract drawings and tender documents for proposed dredging and land reclamation works, which were anticipated to commence in March 2005 [6/9]. The letter continued:

"As part of this procurement, we are currently carrying out consultation with businesses in the area that may be affected by the works together with submission of all marine consent application to various statutory bodies.

 

We attach general drawing for the proposed works for your records ... while the works do not form part of local authority planning legislation, we would welcome any comments you may have regarding the proposed works."

 

A general drawing of the proposed works was enclosed. In the area of the proposed bridge, the drawing indicated that the channel was to be dredged to -10m CD. The width of the dredged channel was not stated, but could be measured from the drawing as 120m.

[54] A further meeting between the petitioners' project team and the respondents' officials took place on 21 April 2004. A note of the meeting [7/9] records:

"7. All agreed it was unlikely LPA would withdraw its objections to the NID ...

 

8. SIC project team's design is very much a 'work in progress'. They are looking at various engineering solutions, including a totally different method of construction, to try and meet objectors concerns but remain within SIC budget.

 

9. Discussed how long they were going to try and engineer issues away - not much time left with ERDF application due in September.

 

...

 

12. SIC project team say that the NID being passed to the Scottish Executive is only relevant in the context of the onshore parts of the project. An application under the Roads Act and the Works Licence Application will deal with the navigation issues.

 

...

 

15. SIC project team still appear not to want to bend at all, keep mentioning reducing the width of the dredged channel - LPA keep saying this is not negotiable ...

 

16. LPA repeated its fundamental requirement for 160m clear span width between pier bases, unchanged from 1998. This may mean 180m between pier centres.

 

...

 

19. LPA expressed lack of confidence in the Hydrodynamic modelling done by Halcrow. Requested an independent model.

 

20. Michael Craigie reluctant to commit to this, however team did say that enhanced modelling would be necessary as the final design progressed, perhaps there would even be a different design of bridge to be modelled."

 

[55] On 4 May 2004 a report was submitted by the project team to the petitioners' Infrastructure Committee [7/10; 10/9]. It stated:

"5.6 The Team will consider the potential costs and benefits of increasing the span of the bridge to at least 180m. The LPA and other objectors raised concerns about the proposed span of 160m primarily because of navigational issues.

 

5.7 As an alternative to increasing the span, the Team will explore, in consultation with the LPA, the potential to reduce the width of the proposed dredged channel from 120m to the minimum 100m through the use of navigational aids.

 

...

 

5.12 If the Council is to be in a position to secure ERDF funding for the construction of the Bressay Bridge, there are specific elements of the project that must continue to be progressed. These are:

...

·        Completion of further options appraisal;

·        Development of the detailed design of the final option;

...

·        Development of the final cost model. This must be concluded before the Council makes a final commitment to build the bridge;

 

...

 

6.2 These costs [i.e. the estimated cost of the bridge] can only be identified when all the objections have been addressed and the details of the project finalised. Indicative additional costs for addressing some specific objections such as moving the bridge location to the north or increasing the span of the current option, are included in Appendix 1 for information."

 

The appendix referred to [7/11] was a report by Halcrow and other consultants instructed by the petitioners, dated May 2004. It stated:

"11.6.1 The Team will further explore options to increase the main span of the bridge to at least 180m in order to address the LPA's concerns regarding future dredging in the North Channel and all objectors concerns about the perceived navigational hazard of the current 160m design.

 

11.6.2 As an alternative to increasing the span, the Team will explore, in consultation with the LPA, the potential to reduce the width of the proposed dredged channel from 120m to the minimum 100m".

 

[56] The notice of intention to develop, with the planning application and the environmental statement, was submitted by the petitioners to the Scottish Ministers on 13 May 2004, together with the objections made by the respondents and others, in accordance with regulation 6 of the 1981 Regulations [10/33].

[57] On 17 May 2004 Mr Sandison, the respondents' administration manager, sent an e-mail to Mr Nicolson of the petitioners [6/10].

"Our recent telephone conversations when you advised that you would like to arrange a brief meeting to discuss the following main issues refers:

 

...

 

2. LPA dredging operations.

 

3. New channel alignment.

 

I am afraid that the date and time you have suggested is not suitable for us owing to various personnel being on leave and other workload/commitments.

 

In order to assist you in the meantime, I detail below a brief response regarding each of the above issues that may assist you in the meantime.

 

...

 

2. Our dredging proposals have not fundamentally changed from the information prepared by Arch Henderson LLP and provided to you previously.

 

3. Our new channel alignment has not changed from the information prepared by Arch Henderson LLP and provided to you previously.

 

I hope that this information is of use to you in the meantime ..."

 

[58] On 3 June 2004 the petitioners applied to the respondents for a works licence under the 1974 Order. The application was not produced during the present hearing, but appears to have been in respect of a bridge "with a main span of 160m providing an air draft of 40m minimum over the proposed 120m wide dredged channel" [7/14]. Following advertisement of the application, objections were received from five companies operating in the port [10/11].

[59] On 22 June 2004 the Scottish Ministers decided that they did not require the petitioners to make an application to them for planning permission in respect of the development described in the notice of intention to develop. Planning permission was then deemed to have been granted by the Scottish Ministers, by virtue of regulation 6(3) of the 1981 Regulations. The respondents applied for judicial review of the Scottish Ministers' decision. A first hearing was fixed for 20 and 21 January 2005.

[60] On 28 June 2004 the petitioners informed the respondents that the additional cost of increasing the central span from 160m to 180m (measured between pier centres) would be in the region of £750,000, excluding the cost of road realignment [7/12].

[61] On 29 June 2004 the petitioners made a roads scheme in respect of the proposed bridge under section 75(3) of the 1984 Act [10/5]. The scheme was published on 2 July 2004. The scheme stated that the petitioners were

"hereby authorised to construct, along the route described in Schedule 1 hereto, as part of a public road, a bridge ... in accordance with Schedule 2 to the Scheme ..."

 

Schedule 1 specifies the route of the public road, as shown in Plan 1. Plan 1, dated 31 May 2004, shows the central piers positioned asymmetrically relative to the proposed 120m dredged channel. No dimensions are stated, other than for the width of the proposed channel. The route shown in Plan 1, and the location of the central piers shown there, appear to be the same as in the plans in respect of which planning permission had been granted [10/3, plans (i) and (iv)], as was to be expected.

[62] Schedule 2 is headed:

"Specification of bridge over Bressay Sound showing the position, clearance for passage of vessels and dimensions of the proposed bridge."

 

Under the heading, "Position", it states that the position of the proposed bridge is shown on Plan 1. Schedule 2 continues:

"Clearances for the passage of vessels

Ten piers shall support the final bridge construction. The central span of the proposed bridge between piers five and six, measures one hundred and sixty metres or thereby and crosses over the existing 90 metre or thereby channel. The said 90 metre or thereby channel is shown edged in green on Plan 1....

 

The central span of the proposed bridge accommodates a height clearance of 40 metres above Mean High Water Springs over a 120 metre or thereby width.

 

The 120 metre or thereby width and the 40 metre clearance are shown in ... Plan 2 ..."

 

It is to be noted that, although the proposed 120 metre dredged channel is shown on Plan 1, the passage quoted from Schedule 2 does not refer to that channel, but to "a 120 metre or thereby width" shown on Plan 2. Schedule 2 also states that "the dimensions of the proposed bridge are shown on the said Plan 2".

[63] Plan 2, dated 3 February 2004, is (as counsel for the petitioners accepted) one of the Halcrow drawings which accompanied the planning application (drawing TB-BRES-100 Rev F), with some of the details omitted. The design of the bridge appears to be identical to that shown in the earlier drawing: the dimensions and gradients stated in the two drawings are the same. Plan 2 shows the central piers positioned symmetrically relative to an area of the seabed 120m wide, where the words "navigational clearance" appear. The 120m width shown in Plan 2 cannot be the proposed 120m channel shown on Plan 1, since the piers are not positioned symmetrically relative to that channel. Plan 2 shows a vertical clearance of 40m across the 120m width. There would not however be a 40m clearance across the whole of the proposed 120m channel shown on Plan 1, if the design of the bridge were as shown in Plan 2, since the main span of the bridge is not centred over the channel, as it is over the 120m width. Plan 2 also shows a dimension of 160m between pier centres, and a dimension of 20m between each pier centre and the edge of the "120m width". The dimension of the pier structures is not stated. The note which appeared on drawing TB-BRES-100 Rev F relative to the foundations ("Provision for ship impact to be confirmed"), to allow for cofferdams, rock islands or other forms of protection from impact, has been omitted.

[64] Schedule 2 continues:

"Proposed dredged channel

Plan 1 ... shows the edges of a 120 metre wide channel ... that Lerwick Port Authority has proposed to dredge in the future. It is shown in this Scheme to indicate that should the channel be dredged to 120 metres the proposed bridge would be able to accommodate that width of channel as well as the existing 90 metre channel."

 

For the reasons I have explained, a bridge constructed as shown in Plan 2, and located as shown in Plan 1, would not allow a 40m vertical clearance across the width of the channel.

[65] When this matter was raised during the present hearing, counsel for the petitioners said that it was accepted that Plan 2 was inaccurate. It had not been intended to show the exact relationship between the navigational "envelope" (i.e. the 40m clearance across a 120m width) and the centre span, but rather to illustrate the principle that a suitable navigational envelope could be provided. A further drawing [6/32], prepared for the purposes of the hearing, was produced to demonstrate how the envelope would be provided. This drawing shows the central piers located as in Plan 1, with the central span positioned asymmetrically relative to the proposed 120m channel. Pier 6 (the eastern central pier) is shown as being taller than pier 5 (the western central pier), so as to move the 120m envelope closer to pier 6, bringing it into alignment with the 120m channel. Counsel explained that the difference in height between piers 5 and 6, and the consequent alignment of the road, were also shown on one of the drawings accompanying the planning application (Drawing No. TB-BRES-R-05) [10/3(i)]. The distance between the centres of the piers is 160m, with each pier having foundations surrounded by impact protection consisting of concrete and granular fill, with a diameter of 26m. The clear width between the piers is therefore 134m, which is 26m less than the minimum the respondents' officials had said would be required. The space between the edge of the 120m channel and the nearest rock island is shown as 3.25m on the east side, and 10.75m on the west side. The respondents' officials had requested a minimum of 20m on each side.

[66] In relation to this drawing, counsel said that the works licence application and the application under the Coast Protection Act 1949 ("the 1949 Act") defined the positions of the central piers in terms of latitude and longitude to an accuracy of 0.01 of a minute, which was equivalent to ± 4.7m. In response to counsel for the respondents' observation that a margin of 3.25m between the pier and the edge of the channel was incompatible with a tolerance of ± 4.7m - in other words, that the pier might in the event be located in the channel - and that the margin was less than the minimum stipulated in the relevant guidelines, counsel for the petitioners responded that these were not matters for the court. It was accepted that the piers would have to be located with a higher degree of accuracy than was envisaged in the works licence application or the application made under the 1949 Act. Whether the design was achievable was not a matter for the court.

[67] On 29 July 2004 the respondents instructed Eagle, Lyon and Pope ("ELP"), port and marine consultants, to carry out an assessment of the navigational impact of the proposed bridge [7/36, para 1.2.1].

[68] On 13 August 2004 the respondents submitted objections to the roads scheme [6/21; 10/36]. These were generally in similar terms to the respondents' objections to the planning application and the environmental statement, and also stated:

4. ... Due to these concerns, LPA has commissioned Eagle, Lyon and Pope to investigate and report on all safety issues relating to navigation through the channel both during and post construction.

 

...

 

6. The indicated width of the bridge span over the navigational channel is insufficient and in particular insufficient to accommodate its future development. The width will need to be increased in order to accommodate potential future development and in particular the proposed alteration and widening of the existing navigational channel by LPA to a width of not less than 120 metres to meet the needs of increasingly large vessels.

 

In this regard we annex a drawing by LPA's engineering advisers Arch Henderson LLP. Lerwick, namely drawing number 202576-30 dated August 2004 which clearly demonstrates the conflict between Lerwick Port Authority's proposed new dredged channel and Shetland Islands Council's proposed position of piers 5 and 6 which support the central span of the proposed bridge.

 

...

 

14. The air draft of the bridge namely 40 metres is insufficient to accommodate the air draft of vessels ... with air drafts in excess of 40m presently using Lerwick Harbour."

 

The Arch Henderson drawing referred to [7/13] was prepared on the basis that the main span would be centred over the proposed 120m channel, as shown in Plan 2 of the road scheme. Even so, the drawing shows piers 5 and 6 as encroaching into the areas of the side slopes; and there is no space for a berm on either side.

[69] During August 2004 the parties received a report on the economic impact of a bridge to Bressay which they had jointly commissioned from DTZ Pieda Consulting [7/39]. It concluded that, in a best case scenario, the bridge would generate an additional two jobs. It noted that the average tonnage of vessels at Lerwick Harbour had almost doubled over the previous five years:

"[T]he information available on vessel size supports an overall trend of vessel growth with some evidence that oil related and ro-ro vessels are undergoing more significant expansion."

 

The report also noted:

"Both [the petitioners and the respondents] have already clearly stressed that further examination of technical are