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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Freeport Leisure v West Lothian Council & Ors [1998] ScotCS 47 (3 November 1998) URL: http://www.bailii.org/scot/cases/ScotCS/1998/47.html Cite as: [1998] ScotCS 47

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On 26 May 1998, the first respondents, West Lothian Council, granted planning permission to the second respondents, B.A.A. McArthur Glen Limited, and the third respondents, Land Securities Properties Limited, for a proposed retail and leisure development at Almondvale Boulevard, Livingston. The petitioners, Freeport Leisure plc, through a wholly owned subsidiary, own and operate the Freeport Shopping and Leisure Village at Westwood, West Calder. By applications made in September 1996 and April 1997, they applied to the first respondents for planning

permission for an extension of the retail area at the Freeport Village, and for construction and development of additional leisure facilities there. The Secretary of State has decided to call in these applications for his own determination, and they remain to be determined. By letters dated 11 February and 23 March 1998, the petitioners stated certain objections in respect of the second and third respondents' application for planning permission for the retail and leisure development in Livingston. That permission having been granted on 26 May 1998, the petitioners sought judicial review of the decision. All three respondents lodged answers, and took pleas to the relevancy of the petitioners' averments. The Lord Ordinary has sustained these pleas, and dismissed the petition. The petitioners reclaim.

The submissions advanced on behalf of the petitioners, in support of their reclaiming motion, are conveniently set out in their written Grounds of Appeal. First, the Lord Ordinary is said to have erred in law "in holding as he did that the first respondents were not obliged, in carrying out their statutory duties in determining the second and third respondents' planning application, to obtain a full retail impact assessment which included an assessment of the likely effect of the second and third respondents' development on the vitality and viability of Livingston and Bathgate town centres". Within this first Ground of Appeal, two more specific errors are identified. One of these relates to the interpretation and application of the National Planning Policy Guideline "Retailing" (NPPG8, revised), and in particular paragraphs 52 and 53 thereof. The other relates to the interpretation and application of the Lothian Structure Plan 1994, and in particular paragraph 7.23 and Policy S7 thereof. The second Ground of Appeal is to the effect that the Lord Ordinary erred in the exercise of his discretion, and reached a decision which no reasonable Lord Ordinary could have reached, in concluding that information contained in certain paragraphs of a Report from the first respondents' consultants was not information which ought to have been taken into account in determining the planning application. Reference is made to "concerns being raised" by members of the first respondents' Strategic Services Committee, in relation to advice given by the Head of Strategic Planning and Transportation upon predicted impact on Bathgate and Livingston town centres; and it is said that the Lord Ordinary proceeded upon a misunderstanding of the materiality and relevance of the information in question, and relied in error upon irrelevant considerations. As an alternative within this second Ground of Appeal it is said that the Lord Ordinary had no information from which he could conclude that the "reservations" contained in the relevant paragraphs of the consultants' Report would not have made a difference to the decision of members of the Committee: on that basis, it was submitted that an enquiry into the matter, by affidavit evidence, would be appropriate. The primary submission upon both Grounds of Appeal was, however, that the reclaiming motion should be allowed, that the Lord Ordinary's interlocutor should be recalled, that the first respondents' decision of 26 May 1998 should be declared ultra vires, and that it should be reduced.

While the two Grounds of Appeal relate to different types of error, they are not unrelated in practical terms. The essential defect or flaw which, according to the petitioners, invalidates the decision to grant planning permission is that the decision should not have been taken without further information being obtained in relation to the possibly detrimental effects of the development. In terms of the first Ground of Appeal, an obligation to obtain additional information, before taking the decision, is seen as a legal requirement, flowing from the terms of NPPG8 and the Structure Plan. In terms of the second Ground of Appeal, the terms of the consultants' latest Report, known to the relevant official but not placed by him before the members of the Committee, coupled with a concern expressed by certain members of the Committee in an amendment seeking inter alia a deferment of decision so that additional information could be provided, is seen as establishing that the decision should not have been taken without a deferment for that purpose.

Apart from the specific documents and specific circumstances which are thus in their different ways founded upon as having rendered the decision invalid, there is no suggestion that the decision proceeded upon any wider or more fundamental insufficiency or inadequacy of information as to the possibly detrimental effects of the proposed development, whether in Livingston town centre itself, or in Bathgate or elsewhere in West Lothian. Before turning to the specific documents and circumstances founded upon, it is convenient to consider the material and advice which was known to the Committee, in relation to possibly detrimental effects, and which would evidently, apart from the specialties founded upon, have provided a sufficient basis for a legal and rational decision to grant planning permission.

In January 1997, the first respondents had received a Report from Hillier Parker, as consultants engaged to conduct a retail study which gave advice inter alia on the possible impact of a number of described retail schemes. This Report was followed by a second one, updating it, in October 1997. In February 1998, Hillier Parker provided the first respondents with a third Report (which one may call "HP3") specifically related to the second and third respondents' application, and to the fact that their proposal was for what is known as a "Designer Outlet Centre" as distinct from other forms of retail development. It is noted that such a centre develops the theme of "factory outlet centres" but with a tenant profile strongly focused on higher order fashion design names who would not normally seek to retail from Livingston. HP3 is a quite substantial document, linking an assessment of the current proposals for a Designer Outlet Centre and leisure development with existing retail expenditure data for West Lothian. In the conclusions, it is said that the appraisal has concentrated on the spending patterns within West Lothian and "finds no evidence of significant adverse impact". It states that in terms of recent planning policies at national level, and Hillier Parker's view of retail market changes, the proposals "appear to present an ideal opportunity for the kind of development which for the last 4 years has had a predilection for remote out-of-town sites on the motorway network, to be harnessed in a town centre location. In addition it presents Livingston with a timeous opportunity to build its retail attraction towards the strength expected of a sub-regional centre". We shall return to the expression "Retail Impact Assessment", but it is not disputed that HP3 contains an assessment of retail impact.

HP3 was circulated to allow interested parties to comment. In response, on behalf of the petitioners, Town Planning Consultancy Limited (TPC) prepared a Report, which the first respondents' Strategic Services Committee had, along with HP3 itself. The TPC Report questions a number of the assumptions and figures contained in HP3, and concludes that clear evidence exists that the proposed Designer Outlet Centre "would significantly impact on Livingston and Bathgate sufficient to undermine their vitality and viability. As such, permission for the development should be refused in accordance with the advice contained in NPPG8 and with Policy S2 of the 1994 Lothian Structure Plan". In response to the TPC Report, Hillier Parker provided a further report, HP4, to which we shall return; but the first respondents' officials had not provided members of the Strategic Services Committee with copies of HP4.

In addition to these reports from consultants, the Committee had material from the first respondents' own officials. In particular, they had a "Briefing Note" dated 21 January 1998, from the Head of Strategic Planning and Transportation, prepared originally to assist consultees and the Scottish Office in relation to the second and third respondents' planning application; and a Report by the same official, including inter alia an update on the Briefing Note, and concluding that the Council could be satisfied that their approval was justifiable in terms of the National, Regional and Local Planning Policy context. That Report is dated 31 March 1998, and was approved (by nine votes to six, and notwithstanding the proposed amendment seeking deferment of the decision) on that date, the formal Decision Notice following on 26 May 1998.

It is to be noted that while the Council considered the application as specified for Class 1 retail floor space, and were aware (as noted in the Briefing Note), that pricing and marketing strategy were not a planning consideration and could be changed at any time, the material and advice in relation to retail impact, from their own officials as well as in HP3 and the TPC Report, focused upon the specific nature of the proposal as a Designer Outlet Centre. The particular form of the proposed development is moreover significant, in as much as in March 1997 planning permission had been granted for a comparable area of gross retail floor space, the development then envisaged being one which would include a major Department Store. That proposal was no longer seen as practicable, and the present proposals were effectively in substitution, the earlier grant being revoked. In these circumstances, with a background of general material and advice, as well as material and advice (and indeed a degree of contradiction) relating to the specific proposals, the first respondents were clearly faced with an issue which called for a planning judgment. Such an issue, calling for such a judgment, will not, however problematic or difficult it may be, normally give rise to any issue of law, or any need for judgment by the courts. What is it that is said to warrant the intervention of the courts in this particular case?

NPPG8 contains a number of sets of "Policy Guidelines". In particular, paragraphs 29 to 48 inclusive come under a general chapter heading "Policy Guidelines: Town Centres"; paragraphs 49 to 58 inclusive come under a general chapter heading "Policy Guidelines: Out-of-Centre Development"; and paragraphs 59 to 68 inclusive come under a general chapter heading "Additional Guidelines for Particular Retail Developments". Since the second and third respondents' application relates to a development in Livingston town centre, one would expect, having regard to the chapter headings, that any guidance as to how the impact of the development should be assessed would be contained within paragraphs 29 to 48, and that any guidance expressed between paragraphs 49 and 58 would not be directly in point. Consistently with this, the sub-heading "Assessing the Impact on Existing Centres" which precedes paragraphs 51 to 53 would naturally be read as referring to assessing the impact of out-of-centre developments. It is thus unsurprising that in paragraph 51, reference is made to applications for developments which are likely to have an impact on a "nearby" town centre, without envisaging a development which is itself in, and may have an effect upon, a particular town centre. Similarly in paragraph 52, it is unsurprising, in a statement that all applications for major retail developments "should be supported by a retail impact assessment", to find that the assessment is to provide evidence of likely economic and other impacts on "other" retail locations, "whether town centres or local or village centres". Within the context of this particular chapter, one would not expect to find any reference to impact on the specific or particular retail location where the development in question was proposed. Again, in the same paragraph, it is said that "the impact will vary in the light of the particular circumstances of each existing centre, but where assessment shows clear evidence that a planning proposal would have a significant impact on an existing centre and would undermine its vitality and viability, permission for development should be refused". At least at first sight, in the context of this chapter, what is in issue is impact upon the existing centres - but the impact in question is the impact of a proposed out-of-centre development. (Paragraph 53 advises a "broad based approach", but contains no indication that the issues covered in this chapter include impact of town centre developments).

Counsel for the petitioners accepted that this was indeed the general structure of NPPG8, and the chapters and paragraphs in question. It was, however, pointed out that paragraph 52, between the two passages from which we have quoted, contains the following sentence: "Retail impact assessments may also be necessary for smaller proposals within town centres and for those which could have a large impact on small rural settlements". As was submitted, the expression "within town centres" shows that this particular piece of guidance is not concerned with an out-of-centre development. If in accordance with this piece of guidance a retail impact assessment were obtained, then it was submitted that the subsequent sentence which we have quoted would apply, and if the assessment showed clear evidence that the proposal would have a significant impact on that same town centre, and would undermine its vitality and viability, then permission for development should be refused. And while what is said is that retail impact assessments "may" also be necessary for "smaller" proposals within town centres, reading the paragraph as a whole it was clear that for major retail developments above a given size (of which the present proposal is an example) the requirement that all applications "should be supported" by a retail impact assessment was clearly intended to apply whether those developments were in a town centre or not. That being so, in terms of paragraph 52 the present application should indeed have been supported by a retail impact assessment, providing evidence of likely economic and other impacts on "other retail locations" including locations elsewhere in the town centre of Livingston.

No such retail impact assessment had been required or provided. And the Head of Strategic Planning and Transportation had not merely stated in the Briefing Note that it was not proposed to require the applicants to "submit a formal RIA": in his Report of 31 March he had specifically said that one of the two essential points of policy importance was "that a centre cannot impact on itself". One need not concern oneself with niceties as to the nature of a "formal", or "full" retail impact assessment, nor with the question of whether it was necessarily something produced by the applicant rather than by the planning authority. It was clear from the Briefing Note, and the terms of the unsuccessful amendment, that everyone involved knew that they were proceeding without a retail impact assessment. The Committee had not proceeded upon the basis that what they had, in the form of various reports, was a retail impact assessment. They had not considered, and decided to give no weight to, the guidance contained in NPPG8. They had not decided that NPPG8 was outweighed by other factors. The position was quite simply that the Committee had been advised that a centre could not impact upon itself, which was erroneous advice on a correct construction of paragraph 52. The decision thus flowed from an error in law. The Lord Ordinary had made the same error in law. His interlocutor should therefore be recalled, and the decision reduced on the basis that it was founded in an error on law.

In response to these contentions, a number of arguments were advanced both by counsel for the first respondents, and by counsel for the second and third respondents. On the direct question of the interpretation of paragraph 52, it was not clear why in that context there should be any reference to retail impact assessments for proposals within town centres. But the passing reference to the possibility of such assessments or such proposals could not alter the overall meaning of the paragraph. The paragraph related to out-of-centre developments, and was not in point for this proposal. The effects of a particular development within a town centre, upon that particular town centre and other activities within it, were amply dealt with in paragraphs 29 to 48. While such effects could of course be important, and could involve the abstraction of turnover by one new business from other existing ones, that must be distinguished from an overall or net loss of turnover, such as could occur when trade was lost from a town centre to an out-of-town centre. In advising that "a centre cannot impact on itself" the Head of Strategic Planning and Transportation had gone on to explain what he was saying: planning policy was to promote retail development within existing centres such as Livingston. "It cannot then be argued that the new phase has an adverse impact on the previous phases, providing that there is growth overall". This was confirmed by the Structure Plan, Policy S2, to the effect that there would be a presumption against retail developments which would, individually or cumulatively, prejudice the vitality and viability of any "other" strategic centre. Even if paragraph 52 required a retail impact assessment for a town centre development such as this, such an assessment would not be concerned with "impact" on Livingston town centre itself.

More fundamentally, it was submitted that even a misinterpretation of paragraph 52 did not and could not entail an error of law. Apart from wholly irrational interpretations, the court would leave interpretation of statements of planning policy to planning authorities. Reference was made to certain observations by Auld J. in Northavon District Council v. The Secretary of State for the Environment and Others [1993] J.P.L. 761 at page 763; Virgin Cinema Properties Limited and Others v. The Secretary of State for the Environment and Others [1998] 2 P.L.R. 24; and R. v. Derbyshire County Council ex parte Woods [1997] JPL 958, Brooke L.J. at pages 967 to 968. But in any event, we were not here concerned with planning requirements, in the sense of requirements of law. As the preamble to NPPG8 acknowledged, statements of Government policy contained in NPPGs and circulars "may" so far as relevant "be material considerations to be taken into account in development plan preparation and development control". Their interpretation was not a question of law, and their misinterpretation would not be an error in law. Even on the petitioners' interpretation of paragraph 52, it would be open to the Committee to consider whether a retail impact assessment should be undertaken or not, and in this case they had considered that issue, and had decided, in accordance with the recommendation made to them, that it should not. That did not mean that they had not had regard to the NPPG. One could have regard to a material consideration, and nonetheless give it little or no weight in reaching one's decision. Reference was made to the observations of Lord Keith and Lord Hoffmann in Tesco Stores v. Secretary of State for the Environment [1995] 1 WLR 759 at pages 764 and 780. There was no basis for saying that the respondents had either erred in law, or failed to have regard to a material consideration.

We are satisfied that this first head of the petitioners' first Ground of Appeal is without foundation. Even if paragraph 52 imposed requirements as a matter of law, the interpretation of these requirements would be a matter for the planning authority rather than the courts, unless there were an issue of perversity or irrationality. Without entering into the detailed interpretation of paragraph 52, we do not find the petitioners' interpretation persuasive. The "rogue" reference to proposals "within town centres" may be merely parenthetical; or indeed it may be an example of the kind of undue complexity in presenting principles and policy mentioned in Greater Glasgow Health Board v. Secretary of State for Scotland 1996 S.C.L.R. 808, at page 813. In any event, NPPG8 does not contain requirements of law, and any misinterpretation would not, in our view, entail an error of law. We would add that the advice given to the Committee to the effect that a centre "cannot impact on itself", whether or not that advice depended in any way upon the terms of NPPG8, was in our opinion a matter of planning advice, clarified and explained by what followed, which the Committee were entitled to accept.

Policy S7 of the Lothian Structure Plan is to the effect that "The Regional Council supports the development of Livingston town centre as a sub-regional shopping centre". This policy statement follows immediately upon, and finds its explanation in, paragraph 7.23 of the Structure Plan Written Statement. Noting that paragraph 7.23 envisaged Phases I and II, rather than a third phase such as the second and third respondents' proposals, counsel for the petitioners contended that paragraph 7.23 and Policy S7 must be read along with Policy S2 which we have quoted above; and that notwithstanding Policy S7, the present proposals had to be looked at in order to see whether they contravened the presumption against retail developments which would prejudice the vitality and viability of any other strategic centre. In particular, Bathgate was another such strategic centre, and Policy S2 required consideration in relation to the impact of the proposal upon Bathgate. This was particularly necessary as the specific type of development now proposed had not been envisaged in the development of Livingston town centre as a sub-regional shopping centre. Taking the policies together, the Structure Plan required the first respondents to look at both the needs of Livingston, and the danger that it might constitute to other centres such as Bathgate. Counsel for the petitioners referred to the observation by Lord Clyde in City of Edinburgh Council v. Secretary of State for Scotland 1998 SC (HL) 33 at page 44G, to the effect that a decision maker's decision "will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it". It was submitted that the first respondents had failed to look at impact upon Bathgate because they had misinterpreted Policies S2 and S7. One could see from the Minute of Proceedings that they had decided not to defer for a retail impact assessment. It was to be inferred that they had incorrectly interpreted these policies.

As counsel for the first respondents pointed out, it is apparent from the documentation that it was thought appropriate to test impact on other centres such as Bathgate, that this was indeed done, and that advice on such impact was given to the Committee in the Report by the Head of Strategic Planning and Transportation. He had also considered, and advised upon, the need for further development in Livingston, beyond the particular developments mentioned in paragraph 7.23. One was not here concerned with any formal retail impact assessment, but with whether there was material and advice in relation to the particular question of impact upon Bathgate. It will always be matter of planning judgment how much investigation is to be done, and how much advice is to be given. We can see no basis for inferring that these policies were misunderstood or misapplied, either by the Head of Strategic Planning, or by the first respondents' Committee. The presumption contained in Policy S2 is against retail developments which would prejudice the vitality and viability of any other strategic centre. There is no basis for thinking that in the Committee's view, the proposed development fell into that category, so as to bring the presumption into play. And even if that was their view, and the presumption came into play, they were entitled, in our view, to see the presumption as overcome by what they thought appropriate in terms of Policy S7. This second head of the first Ground of Appeal is in our opinion ill-founded.

We turn therefore to the second Ground of Appeal. As we have noted, after the TPC Report, responding to Hillier Parker's Report HP3, Hillier Parker produced a further Report HP4. In their introduction to that Report, Hillier Parker refer to the kind of concerns which Freeport level against the DOC proposal by the second and third respondents. They say that they wish "to refute most of these suggestions made by TPC on behalf of Freeport Leisure". They go on to list their responses to various points made by TPC. The petitioners' second Ground of Appeal relates essentially to what is said at heads 6 and 7 of this list. In paragraph 6, focusing on the level of fashion turnover from the DOC, Hillier Parker comment critically upon TPC's figures and approach. They conclude the paragraph by saying "This might be a point where the applicants should be allowed their own say on the likely tenant mix and turnover proportions and whether the 80% assumption is reasonable". In paragraph 7, dealing with turnover levels, Hillier Parker note TPC's suggestion that Hillier Parker had been unrealistic in assuming that 60% of the scheme's gross size would manifest itself in sales floor space. They go on to say why they believed this to be a reasonable assumption; but they add "However, again this is an opportunity for the applicant to comment". These references to obtaining the applicants' comments were not reported to the first respondents' Committee by their officials. And although the Report of 31 March 1998 by the Head of Strategic Planning expressly states that "Objectors have produced studies which show much higher impacts" and says that these will be replied to in detail, the Committee were not informed of the existence of HP4 as a written Report, nor were further detailed replies to the TPC Report undertaken or provided. It appears that at the Committee meeting on 31 March, the question of what further advice had been received from Hillier Parker was raised, and one of the first respondents' planning officers advised that he had had further telephone discussions with Hillier Parker in relation to the Report by TPC, and that Hillier Parker adhered, nevertheless, to the views they had expressed in HP3.

It is upon these specific events that the petitioners' second Ground of Appeal rests. It refers to the "information" contained in these paragraphs of HP4, and the "reservations" of Hillier Parker contained in those paragraphs. It was not suggested that officials had to put everything that came to them before members of the Committee. It is obvious, and was acknowledged, that officials will have to make choices as to how much investigation should be carried out, and as to how much of what comes to them should be put to the Committee, whether in full or by some brief reference. With HP3 and the TPC Report before the Committee, together with the Briefing Note and the Head of Strategic Planning's final Report, it was not suggested that the decision would have been flawed merely because (for example) the objectors' studies showing higher impacts (of which the Committee had been informed) had not yet been replied to in detail. Equally, if Hillier Parker had said no more in response to the TPC Report than that they adhered nevertheless to the views which they had expressed in HP3, it was not suggested that the decision would have been invalidated, if officials had not mentioned that fact. And while at some stages the argument for the petitioners appeared to be that the existence of a written Report such as HP4 ought to have been mentioned to the Committee regardless of its content, this was not pressed to the point of saying that if HP4 was entirely consistent with HP3 and effectively added nothing to it, an omission to mention it to the Committee would have entailed the Committee having failed to take into account some relevant and material matter.

The second Ground of Appeal therefore depends on some kind of assessment of whether, and to what extent, the specific terms of these paragraphs of HP4 represent either new information, or a change in Hillier Parker's prognosis. The petitioners' position was that the "information" and "reservations" in question were such that had they been known to the Committee, they might, in realistic terms, have led to a different decision, in particular upon the question of whether the fundamental decision should be deferred. On that basis, they should have been taken into account; and the failure to put them before the Committee disabled the Committee from taking them into account. Moreover, the submission appeared to be not merely that there was an error of judgment on the part of officials, but that the decision not to put these matters before the Committee was a decision which no reasonable official could have taken. Correspondingly, of course, the appeal is based upon the proposition that the Lord Ordinary could not reasonably conclude that these matters were not information which ought to have been taken into account. While the word "information" was used, it appeared to be accepted that the relevant passages in paragraphs 6 and 7 of HP4 were concerned rather with differences of opinion between Hillier Parker and TPC. But even upon that view, it was submitted that the Committee were considering whether enquiries had gone far enough in assessing impact, and with these two very different pictures of impact, emerging from the use of different basic assumptions, it was necessary for the Committee to decide whether matters had been taken far enough, and in that regard to know that Hillier Parker had suggested recourse to the applicants themselves on these matters.

In the presentation of the petitioners' contentions upon this point, and in the submissions by counsel for the respondents in reply, reference was made to a number of authorities in which issues of materiality and relevancy have been discussed, and observations have been made as to the consequences of decision making bodies not having considered particular issues of law or matters of fact, with a risk of some kind that their decision might otherwise have been different. Reliance was placed by counsel for the petitioners upon the analysis of principles set out by Glidewell L.J. in Bolton Metropolitan Borough Council v. The Secretary of State for the Environment and Another 1991 61 P. & C.R. 343 at pages 352 to 353; and upon the observations of Lord Osborne in Campbell v. Campbell (unreported 20 March 1998). It was submitted that one could conclude with certainty that if the Committee had been informed of paragraphs 6 and 7 of HP4, they would not have decided to grant planning permission without a deferment for a full retail impact assessment, or at least fuller impact assessment. Alternatively, if this was not evident, it was impossible to judge the weight of the information in question, and proof would be required to ascertain whether it would have affected the decision making process in this way. Our attention was also drawn to Lord Osborne's comments in Bonnes v. West Lothian District Council 1997 S.L.T. 398; and to the now classic observations of Lord President Emslie in Wordie Property Company Limited v. The Secretary of State for Scotland 1984 S.L.T. 345 at pages 348 to 349.

At an even more general level, counsel for the second and third respondents drew our attention to what was said by Lord Brightman in R. v. Hillingdon London Borough Council ex parte Puhlhofer [1986] 1 A.C. 484 at page 518. His Lordship there says that he is troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the statute which was in issue in that case. After making a number of observations upon the matter, his Lordships says:

Counsel submitted that if a decision was invalid this would normally be obvious; and if it was not obvious, that would be a strong pointer towards the validity of the decision.

There will, of course, be cases in which a court will feel able to say that a particular decision-making body "should" have taken some matter into account, and correspondingly can characterise leaving it out of account as a "failure", vitiating their decision. It appears to us that much will turn on the detailed circumstances of each particular case. We are doubtful of the value of attempting any exhaustive definition of the criteria for reaching such conclusions, although we are satisfied that the customary language of irrationality and perversity is appropriate. We are particularly reluctant to add to the general observations that have been made upon this matter, because in the present case it does not appear to us that the paragraphs in issue can be seen as in any sense having the kind of significance contended for by the petitioners. While they may be open to a number of possible interpretations, we see no perversity or irrationality in the course adopted by officials, the decision taken by the Committee, or the decision of the Lord Ordinary.

Whatever the "correct" interpretation of either of these paragraphs, each of them can be read as providing no significant new matter of factual information, either different from or in addition to what was already before the Committee in other documents; and equally, each of them can be read as providing no new or changed opinion on the part of Hillier Parker. There is at least no necessary implication, in the suggestion of recourse to the applicants in either paragraph, that Hillier Parker have altered their own position, or have "reservations". And while recourse to the applicants for their views might lead to something "new", in terms of suggested assumptions, alleged facts, possible projections, or interpretations of such projections, the paragraphs suggest no positive reason for expecting anything significantly new - far less for expecting from the applicants something significantly new which would render a grant of permission less likely. Whatever the precise thinking of officials, we can see no basis for criticising what they did as perverse or irrational, or for thinking that the decision adopted by the majority of the Committee would have been altered by their having had before them these particular paragraphs in addition to the existing documentation and advice.

In relation to the petitioners' subsidiary argument, it follows that we see no need for any proof as to the hypothetical effects of HP4 having been laid in front of the Committee.

In the whole circumstances, the Grounds of Appeal are not established, and the reclaiming motion is refused.