G Hamilton (Tullochgribban Mains) Ltd v Highland Council
| Jurisdiction | England & Wales |
| Judge | LORD WALKER,LADY HALE,LORD CLARKE,LORD DYSON,LORD REED |
| Judgment Date | 11 July 2012 |
| Neutral Citation | [2012] UKSC 31 |
| Docket Number | No 3 |
| Court | Supreme Court |
| Date | 11 July 2012 |
[2012] UKSC 31
Lord Walker
Lady Hale
Lord Clarke
Lord Dyson
Lord Reed
Appellant
James McNeill QC
Morag Ross
(Instructed by Archibald Campbell & Harley WS)
Respondent
Ralph Smith QC
Marcus Mackay
(Instructed by Biggart Baillie LLP)
Respondent
Roy Martin QC
Donald Davidson
(Instructed by Tods Murray LLP)
Heard on 20 June 2012
LORD WALKER (WITH WHOM LADY HALE, LORD CLARKE, LORD DYSONANDLORD REEDAGREE)
This appeal is concerned with legislation under which planning authorities have the duty of reviewing what are commonly referred to as "old" planning permissions for mineral working. The process of review is sometimes referred to by the acronym ROMP (Review [of] Old Mineral [planning] Permissions). The statutory provisions were introduced by the Environment Act 1995 and then reenacted in substantially the same form in the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act").
The principal legislative purpose of these provisions is to ensure that old mineral permissions are made subject to conditions meeting modern environmental standards. Some of the old permissions were granted many years ago subject to conditions less stringent and less precise than are appropriate today. Where more stringent conditions are imposed compensation is payable in certain cases, but only where the mineral site in question is classified as "active" rather than "dormant". A subsidiary purpose of the legislation is to achieve better and more reliable records of old planning permissions for mineral working. The evolution of the legislation has been described in detail by the Lord President (Lord Cullen) in Lafarge Aggregates Ltd v Scottish Ministers 2004 SC 524, paras 2 and 3.
The relevant provisions of the 1997 Act are section 74 and Schedule 9 (Review of Old Mineral Planning Permissions). Schedule 9 contains several special definitions and some interlocking provisions which call for careful examination, but on examination (and with the background history as explained by the Lord President) its general scheme becomes clear. It distinguishes between three categories of mineral sites, and lays down how the process of review is to affect each category. The three categories are "Phase I active sites", "Phase II active sites" and "dormant sites". The difference in treatment as between the first and second of these categories is a simple matter of administrative prioritisation: Phase I active sites include sites of particular environmental sensitivity (para 2(4)) and those which are the oldest sites dealt with by Schedule 9, and so most likely to have inadequate conditions (para 2(6); it should be added, for the sake of completeness, that an even older category of permissions, those granted before 1 July 1948, had been covered by earlier legislation). Phase I active sites are therefore to be reviewed first. By contrast the difference in treatment between all active sites (on the one hand) and dormant sites (on the other hand) is more substantial. Dormant sites (which may be either Phase I or Phase II) are defined (para 1(1)) as sites on which no substantial minerals development was carried out in the period beginning 22 February 1982 and ending with 6 June 1995. Although a planning permission cannot be lost by abandonment, Parliament thought it right to deal with dormant sites in a rather more robust way, by freezing any further mineral working until new conditions had been applied for and approved (para 12(3)). This appeal relates to a dormant site.
As the Lord Justice Clerk (Lord Gill) said in his opinion in the Inner House (para 8) there are two stages in the Schedule 9 procedure. Stage 1 involves the preparation of two lists, termed the first list (para 3) and the second list (para 4). The first list has three main functions: (i) to list all mineral sites in the authority's area (para 3(1) and (2)); (ii) to sort them into the three categories already mentioned (para 3(3)); and (iii) for active Phase I sites only, to specify a date by which a para 9 application is to be made (para 3(4) and (5)). In that way active Phase I sites are given priority. The second list is simpler. It relates only to active Phase II sites and performs function (iii) above for them (para 4(3), (4) and (5)).
Paragraphs 5, 6, 7 and 8 contain further administrative provisions relevant to what the Lord Justice Clerk called stage 1. Counsel for the appellant placed particular emphasis on the provisions of para 6 (Applications for inclusion in the first list of sites not included in that list as originally prepared and appeals from decisions upon such applications) but it is better to defer consideration of that point.
Paragraphs 9 to 16 of Schedule 9 deal with Stage 2. Some of these provisions (including those as to compensation) do not apply to dormant sites. In relation to dormant sites the key provisions are para 9(1) and (5), para 11 and para 12(3) and (4). Para 9(1) is as follows:
"Any person who is the owner of any land, or who is entitled to an interest in a mineral, may, if that land or mineral is or forms part of a dormant site or an active Phase I or II site, apply to the planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject."
Para 9(5) is as follows:
"Where the planning authority receive an application under this paragraph in relation to a dormant site or an active Phase I or II site they shall determine the conditions to which each relevant planning permission relating to the site is to be subject; and any such permission shall, from the date when the conditions to which it is to be subject are finally determined, have effect subject to the conditions which are determined under this Schedule as being the conditions to which it is to be subject."
Para 11 gives a right of appeal (now to Scottish Ministers) as to the terms of any new conditions to be imposed. Para 12(3) is as follows:
"Subject to sub-paragraph (4), no relevant planning permission which relates to a dormant site shall have effect to authorise the carrying out of minerals development unless—
(a) an application has been made under paragraph 9 in respect of that site, and
(b) that permission has effect in accordance with paragraph 9(5)."
Para 12(4) provides for the termination of mineral permissions which are not included in the first list (either initially or on an application under para 6) except so far as concerns conditions for restoration or aftercare.
The facts
Some of the documentary evidence has to be addressed in detail. The relevant documents are not in chronological order in the appendix. The references are to pages in the hard copy of the appendix.
The mineral site with which this appeal is concerned is in a sparsely populated area on the edge of Strathspey. It is on the A938 road between Carrbridge and Dulnain Bridge, near Grantown-on-Spey. The appellant company, G. Hamilton (Tullochgribban Mains) Ltd ("Tullochgribban Mains") is the heritable proprietor of tenanted farmland in the vicinity. The first respondent, the Highland Council ("the Council") is the planning authority for the area, having taken over that responsibility from the Inverness County Council. The second respondent, Breedon Aggregates Scotland Ltd, formerly Ennstone Thistle Ltd ("Breedon") is the proprietor of the minerals on the site and has the right to work them.
Both Tullochgribban Mains and Breedon derive title from the same landowner, Lord Reidhaven. By a disposition [66] signed on 21 April 1967 and registered on 6 July 1967 Lord Reidhaven disponed to Breedon's predecessor in title, George MacWilliam and Son (Contractors) Ltd ("MacWilliam") all the deposits of sand and gravel and associated substances (except coal) in, on or under the land delineated in red on an annexed plan [74]. This land ("the red land") is adjacent to and on the north of the Carrbridge road. It is roughly rectangular except that it does not include a small loch, Loch Mor, which juts into the land on the east side. The disposition provided for entry on 1 August 1965. The property disponed included a number of express rights and privileges, including "full right and power…to search for work…and carry away" the minerals included in the disposition. Counsel did not find it necessary to make any submissions about the detailed terms of the disposition.
The pleadings show that at the time when the proceedings were commenced in 2008, Tullochgribban Mains was in the course of registering its title under a disposition made by Lord Reidhaven. Possibly for that reason, its title has not been formally admitted. But nothing turns on that. The argument has proceeded at every level on the basis that Tullochgribban Mains has a sufficient interest to give it locus standi in the proceedings, and that its rights are subject to the mineral rights in the red land disponed to Breedon's predecessor in title. The dispute is about planning law, not property law.
The original planning permission [75] was granted to MacWilliam by Inverness County Council on 12 February 1965. It was expressed in general terms as permission for the working of minerals on land at Tullochgorum, Carrbridge, in accordance with the plan(s) submitted and docquetted. The permission set out eleven conditions in numbered paragraphs, stated to be in the interests of health, safety and amenity. It is common ground that the names Tullochgribban and Tullochgorum are variants of the same name.
The docquetted plan is not extant. It is common ground that it has been lost, possibly at the time when responsibility as planning authority passed to the Council. It would be surprising if it...
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