Appeal By Doonin Plant Ltd Against A Decision Of The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton |
| Neutral Citation | [2011] CSOH 3 |
| Court | Court of Session |
| Published date | 13 January 2011 |
| Year | 2011 |
| Date | 13 January 2011 |
| Docket Number | XA137/09 |
| OUTER HOUSE, COURT OF SESSION [2011] CSOH 3 | |
| XA137/09 | OPINION OF LADY CLARK OF CALTON in the Appeal to the Court of Session under section 239 of the Town and Country Planning (Scotland) Act 1997 by DOONIN PLANT LIMITED, a company incorporated under the Companies Act and having its registered office at New Road, Flemington, Cambuslang Appellants against A Decision of the Scottish Ministers through their Reporter Mr Dan Jackman dated 4 August 2009 to refuse the Appellants' appeal against an Enforcement Notice. ________________ |
Act: Williamson; Russel + Aitken LLP
Alt: Barne; Scottish Government Legal Directorate
13 January 2011
Introduction
[1] This appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 as amended (the 1997 Act) came before me under and in terms of Rule of Court 41.44. Scottish Ministers were the only respondents to the appeal. The appeal was against a decision of the Reporter dated 4 August 2009 (6/111 of process) to refuse the appellants' appeal against an enforcement notice dated 24 April 2009.
[2] The grounds of appeal and answers are set out in 10 of process. No order had been made for written submissions. I am grateful to counsel for providing outline written submissions, especially to counsel for the appellants who did this at short notice. The written submissions which were developed in oral argument are 14 and 12 of process. In the course of her oral submissions counsel for the appellants narrowed the submissions and restricted the grounds of appeal. Counsel did not insist on the appeal in respect of the issues raised in paragraphs 1, 3 and 4 of the grounds of appeal. The scope of the appeal was limited to the ground of appeal raised in paragraph 2 of the grounds of appeal.
The grounds of appeal
[3] The issues may be summarised as follows:
"The Reporter misdirected himself in law in concluding that the planning permission dated 20 November 2001 had not been implemented, had subsequently lapsed and that therefore the ground for challenging an Enforcement Notice under section 130(1)(c) of the 1997 Act had not been established. The correct approach to the question of whether planning permission has lapsed is not whether that permission has been implemented, it is to whether the development which is the subject of the permission, has been initiated in accordance with section 27 of the 1997 Act. A development which can be said to have been initiated in accordance with section 27, within the period specified in the grounds of planning permission is sufficient to trigger the permission which thereafter remains 'live' indefinitely or until such time as the planning authority serves a "Completion Notice" under section 61 of the 1997 Act. ...The Reporter...misdirected himself in law by considering that the issue before him as to whether planning permission had lapsed was to be determined by the question of whether it had been implemented instead of the correct approach which is whether the development which is the subject of the permission, had been initiated. Had the Reporter applied the correct approach...on the material before him he could not reasonably have concluded that the...development had not been initiated in a manner which was sufficient to trigger the permission"
Submissions by counsel for the appellants
[4] Counsel set out the history of the planning application by the appellants. The application by the appellants related to premises which were formerly operated as a milk distribution centre and bottling plant by a dairy operator. The appellants wished to utilise the property as a transport operating centre, administration headquarters and materials recycling centre. Planning consent was required for the partial change of use to a recycling centre. The method statement (6/22-27 of process) described inter alia the recycling centre processes and stated that they would mainly be carried out within the existing shed. Details were given about the processes, types of waste and procedures that would be implemented during recycling operations. The statements specified inter alia that the waste would be transported to the recycling facility by eight-wheel tipper lorries or by containers or skips depending on the type of waste. The machinery specified was described as being required from time to time on a temporary basis (6/23 of process).
[5] There were also plans provided (6/30-32 of process and 6/63 of process).
[6] In terms of 6/15 of process, South Lanarkshire Council ("the Council") in exercise of their powers under the 1997 Act granted planning permission on 20 November 2001 to the appellants for the use of former milk bottling/distribution depot for the recycling of waste materials with associated external storage at South Road/Ashton Road, Quay Industrial Estate, Rutherglen in accordance with the accompanying plans and particulars given on the application. It was stated that this was "subject to the conditions listed overleaf in the paper apart". The conditions were imposed by the Council for the reasons detailed. The conditions and reasons are to be found in 6/16 to 17 of process.
[7] Counsel for the appellants submitted that the terms of the conditions required careful consideration. She submitted, as a general proposition, that none of the conditions attached can properly be described as "conditions precedent" or "suspensive conditions" of a type which prohibit the commencement of the development until certain steps are taken to the approval of the planning authority. She made reference to R. v Hartlepool DC (2005) EWHC 840 (Admin) at par. 58.
[8] Counsel then dealt with detailed issues which had been raised by the Council in a letter to the appellants dated 25 March 2002 (6/65 of process). She submitted that in relation to the complaints in said letter, there was no condition preventing mud being deposited on the road by vehicles, and that crushing operations taking place outside the building is not a breach of condition 8 because external crushing operations are permitted within certain time limits. She accepted that there might be some problem in relation to concrete bays which was the third point raised in said letter, but there was no suspensive condition in relation to this. Counsel made similar criticisms of the letter of complaint from the Council dated 17 April 2002. (6/66 of process). The issue of mud on the road was raised again in a letter from the Council dated 22 April 2002 (6/68 of process). Counsel submitted that the mere fact the Council were complaining of non compliance with the consent in the terms set out in said letters was not definitive. It was necessary and essential for the Reporter to look at the terms of the conditions attached to the planning permission and make an assessment firstly, of whether the conduct complained of had occurred and secondly, whether it was a breach of a particular condition. Even if there was a breach of condition, the important question then required to be addressed as to the nature of the condition. She submitted that it is only if the condition is a condition precedent or suspensive condition that breach might be relevant to and prevent the initiation, in the sense of commencement, of the development.
[9] Counsel then addressed the history. She referred to the letter from the Council dated 6 September 2004 (6/34 of process) which stated:
"For the purpose of Condition 1 of the above planning permission, the start date for the site was to be taken as 1 April 2002...".
That date was the date on which both the appellants and Council treated as the date the permission was initiated. A breach of condition notice dated 31 May 2002 was served by the Council on the appellants (6/70 of process). This was followed by a planning contravention notice dated 12 November 2007 (6/75 to 77 of process). The nature of that correspondence was predicated on the fact that the development had been initiated in terms of the statutory provisions. It was not until the letter dated 12 March 2009 (6/38 of process) that the Council alleged for the first time that there was a lapse of planning permission. The letter stated:
"It is noted that a letter was sent to you on 6 September 2004 which suggested that a site start date was to be taken as 1 April 2002. It is apparent that that view was based on the implementation of further works in compliance with planning conditions within a given timescale. In this regard two points are noted. Firstly, no written response to the requirements set out in the 1 April 2002 letter has been received by the Council. Secondly, none of the suspensive planning conditions attached to the planning consent have been discharged.
While it has been noted that there has been activity at the site, this is not in compliance with the terms of the consent and therefore should not be interpreted as implementing consent CR/01/0136".
[10] Counsel made reference to other documents referred to by the Reporter: the visit log dated 8 July 2003 to 19 June 2009 (6/100 to 103 of process); photographs (6/104 to 106), only one of which was taken during the five year period; documents (6/107 to 110); an enforcement notice dated 24 April 2009 (6/45 to 48 of process) and a stop notice dated 24 April 2009 (6/40 to 43 of process).
[11] Counsel then set out the background to the Reporter's decision. She explained that the appeal before the Reporter proceeded by way of written submission and made reference to the documents submitted on behalf of the appellants. The appeal response on behalf of the Council is to be found at 6/52 to 59 of process. She referred in particular to paragraphs 4.3 and 4.6 of the appeal response and stated that the original documents required to be considered. She submitted that it was plain from the written documents before the Reporter that there were disputes of fact between the parties. There was dispute as to whether any action was taken by the appellants in...
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