Archid Architecture and Interior Design v Dundee City Council
| Jurisdiction | Scotland |
| Judge | Lord Glennie |
| Neutral Citation | [2013] CSOH 137 |
| Date | 20 August 2013 |
| Docket Number | P359/13 |
| Published date | 20 August 2013 |
| Year | 2013 |
| Court | Court of Session (Outer House) |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 137 | |
| P359/13 | OPINION OF LORD GLENNIE in the Petition of THE FIRM OF ARCHID Pursuer; against for judicial review of a purported decision of Dundee City Council issued on 11 May 2010 but dated 1 December 2009 to withdraw retrospectively a grant of planning permission and refuse planning permission Defender: ________________ |
Pursuer: MacGregor; Morisons LLP
Defender: Armstrong QC; Gillespie MacAndrew LLP
20 August 2013
Introduction
[1] Dundee City Council (the respondents) are the planning authority for Dundee in terms of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act").
[2] In October 2009, the petitioners applied for planning permission to convert an office situated at 48 Thomson Street, Dundee, into a residential building. A decision notice dated 1 December 2009 (the "first notice") was issued to the petitioners notifying them that their application had been granted. They went ahead with the conversion. However, on 11 May 2010, by which time the work was substantially complete, the respondents issued a further decision notice (the "second notice"), also bearing the date 1 December 2009, notifying the petitioners that their application had been refused.
[3] The facts have not yet been established. However, the petitioners say that this volte face caught them by surprise. They had gone ahead with the conversion work on the basis that they had been granted planning permission. If the second notice (which is backdated to 1 December 2009, before work commenced) is allowed to stand, and the first notice is, in effect, torn up, the result would be that they went ahead with the conversion work without having been granted permission to do it. The backdating of the second notice, if allowed to stand, would have the effect of depriving them of their statutory right of review. They will be vulnerable to enforcement proceedings requiring them to undo the work and re-instate the premises, all without any compensation. That, they say, is manifestly unfair. They say that the action of the respondent in ignoring the first notice and issuing the second is unlawful.
[4] In those circumstances the petitioners come to this court seeking (i) reduction of the second notice and (ii) declarator that the first notice "is valid and continues to have full force and effect unless and until it is revoked by the [respondents] in accordance with the provisions of the 1997 Act or otherwise lawfully reduced or set aside".
[5] The matter came before me for a substantive first hearing at which arguments were advanced by both sides with a view to persuading the court that the petition could, at that stage and without evidence, be decided one way or the other. However, it was recognised that the court might not be able to decide the issues without hearing evidence; in which case there would require to be a second (evidential) hearing. In the event, I have come to the conclusion that the matter can be resolved without hearing evidence.
Disputed and undisputed facts
[6] The essential facts are not in dispute. I set out a little more detail below. I also give an indication of areas where there may be a dispute about the facts.
[7] The first notice was on a standard form, with additions relevant to the decision in the particular case. It was issued on 1 December 2009 and bears to give notice of a decision taken on 26 November 2009. It was sent out in the name of the Head of Planning, though it does not appear to have been signed. So far as is material, it reads as follows:
"Notice is hereby given that Dundee City Council has GRANTED planning permission for the above development as described in the application and the plans accompanying the application, subject to the following conditions: ..."
Notwithstanding the reference to "conditions", the space on the form for setting out the conditions was left blank.
[8] The notice then goes on to give the "Reason(s)" for the decision. On the face of the notice it is stated as follows:
"1. The application fails to comply with Policy 4 of the Dundee Local Plan as it fails to provide the required parking, amenity space and internal floor areas for a dwelling in this location. There are no material considerations, including the applicants' supporting statement, that would justify a decision contrary to this."
That reason is repeated in very similar terms on the following page.
[9] It is immediately apparent that the reason given in the notice is a reason which would have supported a decision to refuse the application rather than to grant it. It is the respondents' case that the decision which was taken was in fact a decision to refuse the application, and that the first notice (purporting to grant the application) was sent out as the result of an administrative error. Whether this is so or not will require evidence. However, while it is apparent that there is an inconsistency between the decision notified in the first notice and the reason given for it, it is not obvious from the notice itself where the error lies: i.e. whether the wrong decision has been notified or whether the correct decision has been notified but with the wrong reasons attached to it.
[10] As well as being notified to the applicants in writing, planning decisions are also published on the respondents' website. There is no agreement (and possibly some dispute) as to precisely what was put on the website in relation to this application. In Answer 7 the respondents admit that they made an entry on their website on or about 1 December 2009 to the effect that the application had been granted, although it is said that that entry simply repeated the error and was made without authority. However, they also say in Answer 2 that the Report of Handling, which was approved by their Appointed Officer, Ian Mudie, and which contained the reasons for rejection of the application, was also placed on the website on or about that date "along with a statement that the application had been refused". There is also some dispute about who said what to whom in conversations between the petitioners and the respondents around the time that the first notice was issued. These matters, if relevant, will require evidence before they can be resolved.
[11] One matter relied upon by the petitioners should, perhaps, be noted here. On 13 January 2010 the petitioners applied for a Building Warrant under the Building (Scotland) Act 2003 in respect of the work done and to be done in converting the premises. The proposal identified the works as being:
"Domestic - Alterations to form domestic kitchen, back door & steps up to garden. Alterations to window in frontage to form insulated wall panel"
On 18 March 2010 the respondents wrote to the petitioners confirming that the application had been approved and enclosing the Building Warrant. The petitioners rely upon the fact that the letter was signed by (or in the name of) Ian G S Mudie, the respondents' Head of Planning, under whose name the first notice went out and who, they say, would have been well aware of the earlier decision to grant or refuse planning permission. The importance of this, if any, is merely that it is an adminicle of evidence which might tend to undermine the respondents' case that the application had never been granted and that the notice intimating the grant of planning permission had been sent out by mistake. However, whether it does have this effect and what weight should be attached to it will depend to a large extent upon evidence as to the circumstances in which the letter of 18 March 2010 was sent out and as to the knowledge or awareness of Mr Mudie at that time.
[12] The second notice was sent to the petitioners under cover of an email from Charlie Walker of the respondent dated 11 May 2010 which stated:
"Dear Sir,
Dundee City Council refused planning permission for the change of use of an office to a dwelling at 48 Thomson Street on 26 November 2009.
The Report of Handling of the Appointed Officer explains the reasoning behind this decision but an incorrect decision notice was issued by the Council and I now attach the correct decision notice. I understand that works commenced on site and that a visit was made on Monday 10 May by the Councils Enforcement Officer who asked that all works cease and that the site be reinstated to its original condition.
I can inform you that any works taking place are unauthorised and that the Council will commence enforcement action if they continue and if the site is not restored to its original condition."
The attached notice (the second notice) contained the same Application Reference and Particulars of Development but stated that:
"Notice is hereby given that Dundee City Council has REFUSED planning permission for the above development as described in the application and the plans accompanying the application.
The notice went on to set out the reasons for refusal in precisely the same terms as the reasons given in the first notice. The notice was signed by Ian Mudie as Head of Planning and bore to have been issued on 1 December 2009. The decision date was again given as 26 November 2009.
[13] It is perhaps worthy of note that the formal notice issued by the respondents under cover of the email from Mr Walker did not in terms purport to revoke or withdraw the first notice granting planning permission. It simply ignored it or, to put it another way, treated it as having been issued in error and replaced by the second notice. It is true that the email referred to it as an "incorrect decision notice", and I was led to believe that the respondents' website was altered so as to delete reference to the purported grant of planning permission in the first notice and replace it with a statement that planning permission had been refused. However, there never has been any formal document purporting to revoke or withdraw the first notice. No doubt that was because it...
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