G Hamilton (Tullochgribban Mains) Ltd, Re Judicial Review

[5] The criticism made by senior counsel for the petitioners was that the first respondents have commenced or purported to deal with the application by the second respondents on the basis that the mineral site listed was the site defined by the adjusted red boundary area, not the more limited green boundary area which was the area shown on the site plan referred to in the listing decision 6/6/1 to 6/6/3 of process. He submitted this was the critical issue in the case.

Submissions on behalf of the first respondents [9] Senior counsel referred to the first respondents' answers. He also sought to rely on the affidavit of Andrew Brown (7/4 of process) in order to demonstrate the reasons that the first respondents were satisfied that the red area was the area for which planning permission subsists.

[10] The correspondence relied on by the petitioners was not in dispute. It was admitted that the plan attached to the 1965 permission could not be found in 1997 or subsequently. It was not in dispute that the respondents are minded to treat the red area as adjusted as the area for which planning permission subsists for the purposes of the application for conditions. There was dispute about the legal effect of the correspondence and listing in 1997.

[13] Senior counsel stated that there were no averments in the petition critical of the methodology adopted by the first respondents in reaching their conclusion that planning permission extended to the red boundary area. The petitioners do not aver that as a matter of fact the pre existing planning permission before 1997 did not extend to the red boundary area. The foundation of the petition was limited and focused exclusively on the listing decision in 1997 and the effect thereof.

Submissions on behalf of the second respondents [14] Senior counsel for the second respondents explained at the start of his submissions that he did not seek to rely on his plea to competency. He submitted that the proper approach to resolve the case was to dismiss this petition by sustaining the second respondents' plea to the relevancy. He submitted that no further procedure is necessary.