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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: http://www.bailii.org/scot/cases/ScotCS/2006/CSOH_20.html Cite as: [2006] ScotCS CSOH_20, [2006] 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
[2] The application arose out of a dispute between Shetland Islands Council ("SIC") and Lerwick Port Authority ("LPA") over SIC's proposal to construct a bridge to the island of Bressay over the North entrance to Lerwick harbour. This is one of two entrances to Lerwick harbour, the other entrance being from the South. The circumstance which precipitated the application for judicial review and the application for interim interdict was the decision by LPA to instruct dredging works in the channel of the North entrance to Lerwick harbour. SIC alleged that that the dredging works would interfere with their proposals for the location of the central piers of the bridge which by this stage had been designed.
[3] SIC appointed a project team, including Halcrow Crouch, consulting engineers, ("Halcrow"), to design the bridge and to discuss with LPA the alignment of a dredged channel within the proposed bridge supports. The proposed bridge was designed taking account of LPA's representations to SIC's professional advisers of their requirements for navigation in the North entrance to Lerwick harbour. The height of the bridge was designed as 40 metres above Mean High Water Springs to allow large vessels to pass underneath and the spans of the bridge were designed to allow a dredged navigation channel of 120 metres in width under the bridge. LPA, which had commissioned Arch Henderson & Partners to advise them on the effect of the proposed bridge on the operation and future development of the port, had taken the view that they required a minimum navigational channel of 100 metres in width (10 metres wider than the existing channel) and a dredged channel of 120 metres in width and 9 metres in depth. To accommodate this the foundation supports of the central piers of the proposed bridge required to be at least 160 metres apart.
[4] SIC averred that in the course of 2003 they and LPA agreed that the depth of the dredged channel would be 9 metres, that its width would be 120 metres aligned between the two piers that would support the central span of the proposed bridge and that the bridge would have an air draft of 40 metres to cater for larger vessels. style='mso-spacerun:yes'> They averred that they used that agreement as the basis for fixing the positions of the relevant piers in their applications for the necessary statutory consents for the construction of the bridge. Under planning legislation SIC, which were both the planning authority and the proposed developer, required to prepare a notice of intention to develop for consideration by the Scottish Ministers. They published the notice in December 2003 and produced, advertised and made available for inspection an environmental impact assessment in relation to the bridge. Under roads legislation SIC required to promote a roads scheme, which they did on June 2004. Finally, to acquire the necessary land for the construction of the bridge SIC made a compulsory purchase order in March 2005.
[6] SIC averred that in about December 2004 LPA applied to the Scottish Ministers for a harbour revision order seeking authority to use dredged material for land reclamation as part of a project to deepen and widen the North access to Lerwick harbour. The environmental statement, which accompanied the application, revealed that LPA proposed significantly more extensive dredging than the proposals which they had agreed with SIC. SIC objected to the application for the harbour revision order and the Scottish Ministers had not determined whether to hold a public local inquiry as required by the relevant harbours legislation.
Grounds
of challenge
[9] The
grounds of challenge were, first, that the decision of LPA to revise their
dredging proposals and change the alignment of the navigable channel was Wednesbury unreasonable. In essence the averred unreasonableness
consisted in the awareness that on the altered alignment the west pier of the
proposed bridge would be within the navigable channel and that that would
entail danger both vessels and bridge users.
Miss Williamson however in her submissions founded on the knowledge of
LPA that their decision would make the proposed bridge impossible to construct
as designed. Secondly, SIC averred that
LPA acted unreasonably in the Wednesbury sense
in refusing to provide SIC with a copy of the report from Eagle Lyon Pope which
LPA had represented showed ship simulations that justified their decision to
realign the navigable channel. In this
context I was referred to James Aitken
& Sons (Meat Producers) Ltd v style='mso-bidi-font-style:normal'>
City of
[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
[13] He invited me in my consideration of the application for interim interdict to have regard to the relative strength of the parties' cases: Toynar Ltd v style='mso-bidi-font-style: normal'> Whitbread & Co plc 1988 SLT 433, 434. He submitted that there were matters which had not been disclosed in the petition which could not be treated as SIC's final position and that SIC's case was not likely ultimately to succeed. In any event, he submitted that the balance of convenience did not favour the grant of interim interdict.
[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
[16] In relation to the balance of convenience, Mr Davidson submitted that the only prejudice SIC could assert was prejudice to the proposed bridge in its current form and that form was not immutable. LPA had placed a contract to dredge for a period of eight weeks at a price of г6.5 million and demurrage would run at г2,250 per hour. The vessel was due to arrive on 9 August and dredging would commence shortly thereafter. Cancellation costs would be in the region of 250,000 Euros. The harbour was a significant employer as about 2,000 jobs depended on it. The status quo in the Northern approach was not desirable and there was a real issue of the safety of navigation. Without the improvements to that approach, Lerwick harbour might not be able to attract larger vessels which would go elsewhere. He renewed the offer of the undertaking.
[17] In considering the application for interim interdict I was aware that the petition had been prepared at short notice and that LPA had not had an opportunity to prepare detailed Answers to it as they became aware of the application only by the operation of a caveat on 3 August. I also took account of the fact that the undertaking was tendered by LPA on the morning of 5 August in discussions between the parties in an attempt to resolve their dispute. Miss Williamson represented to me that SIC were not able to determine whether the undertaking was appropriate in the absence of the Eagle Lyon Pope report and that the drawing submitted with the undertaking was in any event too inspecific to allow SIC to reach a view on it. In the circumstances I was not able to reach a view on the desirability of the undertaking and therefore I accepted SIC's representation that the undertaking was not a sufficient alternative to the interim interdict which they sought.
[18] I was not satisfied that the decisions to alter the alignment of the dredged channel and place a contract to dredge the altered channel were unreasonable on the basis of LPA's awareness that the altered channel would not be compatible with the design of the proposed bridge. In the absence of any agreement between the two public authorities as to the location of the proposed dredged channel or an understanding which would support a submission of personal bar or legitimate expectation, I did not consider that it was Wednesbury unreasonable for LPA to change their proposals for the location of the dredged channel. Absent such agreement or understanding, it would simply be the case that one public body's proposed works were not compatible with those of another public body and I was not persuaded that administrative law requires one body to defer to the other in this context. Similarly, while one might expect responsible public bodies to cooperate by disclosing to each other information such as the Eagle Lyon Pope report to enable them to conduct their discussions in an economic and efficient manner, I was not able to categorise LPA's refusal to release the report, which it had obtained for its purposes, as unreasonable.
[19] Nonetheless there appeared to me to be a prima facie case either that LPA were personally barred from
altering their proposals or that their behaviour had given rise to a legitimate
expectation that they would not do so.
To explain this I must set out the events upon which SIC relied to
support these grounds of challenge. Initially
in April 1999 Halcrow produced a feasibility study for a link to Bressay and
recommended as a preferred option a fixed bridge. In response, Arch Henderson produced a report
for LPA in January 2003 recommending that the minimum navigational channel
required for the future development of the port should be of the dimensions
mentioned at the end of paragraph 3 above and including drawings showing the
location of the then proposed channel.
The report stated that the anticipated distance between bridge pier foundation supports corresponded to the minimum 160 metres
but that this dimension could be finalised and agreed only once future site
investigation information confirmed the side slope characteristics of the
dredged channel. In April 2003 Arch
Henderson sent estimated dredging costs to LPA for the dredging works on a
channel illustrated on drawing 202512-03.
Following discussions in late 2003 which SIC aver gave rise to the
agreement, a further meeting was held on
[20] The cases of personal bar and legitimate expectation were as
follows. Miss Williamson submitted
that the agreement reached in late 2003, and evidenced by the later e-mail and
correspondence, was binding on LPA. She
founded in particular on the e-mail of
[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 style='mso-bidi-font-style:normal'> 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 style='mso-bidi-font-style:normal'> 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
[26] I can deal briefly with the other grounds of challenge listed in paragraph 10 above as they were not material to my decision. There was a factual dispute as to whether LPA had obtained the approvals from the Scottish Ministers in relation to the deposit of reclaimed materials that the 1974 Act required. Similarly there was a dispute whether the dredging works fell within any of the paragraphs of the Annexes to Council Directive 85/337/EEC to which I referred in paragraph 10 above. I did not consider that I had sufficient information to form a clear view on the merits of these disputes. Having decided to pronounce interim interdict on the basis of the cases of personal bar and breach of legitimate expectation, I concluded that there was no need for me to attempt to do so.