East Dunbartonshire Council V. The Secretary Of State For Scotland And Mactaggart & Mickel Limited
| Jurisdiction | Scotland |
| Judge | Lord Coulsfield |
| Date | 03 November 1998 |
| Court | Court of Session |
| Published date | 06 February 1999 |
OPINION OF THE COURT
delivered by LORD COULSFIELD
in
APPEAL
the Town & Country Planning (Scotland) Act 1997, sections 237 and 285
by
EAST DUNBARTONSHIRE COUNCIL
Appellants;
against
THE SECRETARY OF STATE FOR SCOTLAND and MacTAGGART & MICKEL LIMITED
Respondents:
_______
3 November 1998
On 25 November 1995, the second respondents applied for a certificate of lawful use or development under sections 90 and 90A of the Town and Country Planning (Scotland) Act 1972. On 9 July 1996, the appellants refused to grant the certificate applied for. The second respondents appealed to the Secretary of State who appointed a reporter to determine the appeal. A public inquiry was held on 2 and 3 April 1997 and on 29 May 1997 the reporter allowed the appeal and granted a certificate of lawful use. The appellants have appealed to this court. The first respondent, the Secretary of State, did not contest the appeal, but the second respondents have appeared and do contest it. The appeal is now being conducted
under the provisions of the Town and Country Planning (Scotland) Act 1997 but the relevant provisions, at the material time, were those contained in the 1972 Act.
It is convenient to begin by setting out the relevant statutory provisions. Until 1969, there was no time limit upon the validity of planning permissions in Scotland. In 1969 provisions were made in regard to time limits, and these are now found in sections 38 to 40 of, and in schedule 22 to, the 1972 Act. Section 38 provides that, subject to various matters, every planning permission granted or deemed to be granted is deemed to be subject to a condition that the development must be begun not later than five years from the date of the grant. Section 39 makes further provision in regard to outline planning permission, the effect of which is that application for approval must be made in regard to any reserved matters within three years from the date of the grant of outline planning permission and the development must be begun not later than the later of the expiration of five years from the date of the grant of outline planning permission or of two years from the final approval of reserved matters. What is meant by the beginning of a development is defined by section 40, the provisions of which are of import for this appeal. Section 40 provides:
"(1)For the purposes of section 38 and 39 of this Act, development shall be taken to be begun on the earliest date on which any specified operation comprised in the development begins to be carried out.
(2)In subsection (1) of this section 'specified operation' means any of the following, that is to say
(a)any work of construction in the course of the erection of a building;
(b)the digging of a trench which is to contain the foundations, or part of
the foundations of a building;
(c)the laying of any underground main or pipe to the foundations, or
part of the foundations of a building or to any such trench as is mentioned in the last preceding paragraph;
(d)any operation in the course of laying out or constructing a road or
part of a road;
(e)any change in the use of any land, where that change constitutes
material development".
The following subsections deal with the meaning of material development, and with certain other matters in relation to the approval of reserved matters and appeals.
Certain transitional provisions which were contained in the Town and Country Planning (Scotland) Act 1969 are now found in paragraphs 14 and following of schedule 22 to the 1972 Act. Paragraph 14 provides that sections 38 and 39 of the 1972 Act do not apply to planning permissions granted or deemed to have been granted before 8 December 1969. Paragraph 15(1) provides, inter alia:
"...every planning permission granted or deemed to have been granted before 8 December 1969 shall, if the development to which it relates had not been begun before the beginning of 1969, be deemed to have been granted subject to a condition that the development must be begun not later than the expiration of five years beginning with 8 December 1969".
The following provisions of the schedule deal with various matters such as planning permissions which had been granted subject to an express time limit and to the application of time limits in relation to outline planning permissions, but these are not relevant for the present purpose.
Section 90A of the 1972 Act provides that if any person wishes to ascertain whether any proposed use of buildings or other land or any operations to be carried out in, on, over or under land would be lawful he may make application to the planning authority specifying the land and the use or operations in question. Sub-paragraph (2) provides:
"If, on an application under this section, the planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application they shall issue a certificate to that effect; and in any other case they shall refuse the application".
The issue in this case is whether a development for which planning permission was granted prior to 8 December 1969 had been begun before the period expired. The principal contention on behalf of the appellants is that in order to satisfy section 40 it is not sufficient that operations have been carried out, within the terms of the planning permission, before the material date: they contend that the operations must have been carried out with the intention of carrying out or completing the development, even if that completion may have been prevented by other factors. That contention was not accepted by the reporter and it was submitted that in that respect he had misdirected himself. The point is essentially one of construction of the provisions of section 40 and therefore applies generally in the case of all planning permissions, not merely old planning permissions dating before 1969. The appellants also made a second submission in regard to the construction of section 90A(2), but we shall deal with that submission later.
Because the point is a general one of construction, the precise circumstances of the planning permissions which have given rise to the present application are not very material. It is sufficient to say that in October 1961 Stirling County Council, the then planning authority, granted outline planning permission for a residential development on 44 acres of land at Hole Farm, Lennoxtown. On 26 January 1967, planning consent was granted for a housing development on a portion of the site including a frontage to the A89 road. At the inquiry before the reporter there was very considerable difficulty in determining what the precise terms of these planning permissions were, because appropriate plans were not available. There was also some question as to whether the 1967 permission fell to be regarded as a full planning permission, standing on its own, or as an approval of reserved matters in relation to part of the 1961 permission: for the purposes of the present appeal, however, that point is not of any significance. Having considered the evidence that was available to him, the reporter drew attention to the planning permission of 1967 and to a provision in regard to access which read
"visibility splays shall be provided as indicated in blue on the submitted plan and no obstruction at a greater height than three foot six inches above ground level shall be permitted within these splays".
He said, however, that in the absence of the approved plan there was no certain evidence of the exact location of the access road and the required visibility splays. He continued:
"Your client's (the second respondents) site engineers supervised the setting out and excavation of the access road just before 6 April 1967, a date which was of significance for the incidence of betterment levy under the Land Commission Act. Work continued into the site until a considerable depth of peat was discovered, initially by the excavator getting into difficulty. A letter dated 4 April 1967 was sent by recorded delivery to Stirling County Council giving notice that development had been commenced. The discovery of extensive peat deposits caused a substantial alteration to the layout. A revised application for a 42 house development was approved by Stirling County Council on 12 February 1968. The plan produced is a poor photocopy but the access road appears to meet Glen Road at the same point as shown on the other plans. Lines drawn close to the mouth of the access road appear to indicate visibility splays of 9 metres by 80 metres. This extends across Dr. Dunn's garden at No. 38 which has a high beech hedge along the west boundary and specimen trees on its road frontage which restrict visibility. In a letter tabled at the inquiry, Dr. Dunn confirmed that he has lived there since 1952 and has never received any approach from your clients with a view to securing sight lines over his property. He would oppose any such arrangement while he remains owner of the property. Without the agreement of the owner of No. 38, it would not be possible to maintain a clear visibility splay of the required length".
When he came to set out his conclusions, the reporter referred to the statutory basis of the appeal, distinguishing it from a planning appeal against a refusal of planning permission, and pointed out that the determining issue in the appeal was confined to whether the site works carried out in April 1967 were lawful. He continued:
"26.It is claimed that these works represent a specified operation in the construction of the access road approved under the January 1967 planning permission. That permission is for 'housing development at Lennoxtown' but the approved plan could not be produced. On the balance of probabilities, I am persuaded by the consistency evident in the working drawing, discussion plan and the stamped building warrant plan of February 1967 that the approved...
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