G. Hamilton (tullochgribban Mains) Limited V. The Highland Council+ennstone Thistle Limited
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Justice Clerk,Lord Carloway |
| Judgment Date | 07 January 2011 |
| Neutral Citation | [2011] CSIH 1 |
| Published date | 06 January 2011 |
| Docket Number | P1531/08 |
| Court | Court of Session |
| Date | 07 January 2011 |
| SECOND DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Justice Clerk Lord Carloway Lady Smith | [2011] CSIH 1 P1531/08 OPINION OF THE LORD JUSTICE CLERK In the Reclaiming Motion in the Petition of G HAMILTON (TULLOCHGRIBBAN MAINS) LIMITED Petitioner and Reclaimer; against THE HIGHLAND COUNCIL First Respondent; and ENNSTONE THISTLE LIMITED Second Respondent: _______ |
For first respondent: Smith QC; Biggart Baillie LLP
For second respondent: Martin QC, Davidson; Tods Murray LLP
7 January 2011
Introduction
[1] This is a petition for judicial review. It relates to a site at Tullochgribban, Carrbridge, Morayshire. The site is at present in agricultural use. Part of it was formerly worked for minerals. The petitioner owns the site. The second respondent owns the mineral rights. The first respondent is the planning authority.
[2] The second respondent has applied to the first respondent for approval of a schedule of conditions that will govern an existing planning permission for mineral working at the site. The petition relates to the validity of a decision that the first respondent proposes to issue relating to these conditions and, in particular, to its proposal, set out in a final draft of conditions prepared by it, to impose a first condition in the following terms.
"For the avoidance of doubt, in the absence of a definitive docquetted site plan, the boundary of the site to which planning permission ICC/1964/798, issued by the County Council of Inverness on 12 February 1965 relates shall be as outlined in red in the approved plans EG320/RMP/F/01 & 2."
I shall call this area the red area. The first respondent proposes to exclude from the red area that part of it that is covered by Loch Mor (the submerged land). It is agreed that this exclusion is immaterial. The petitioner contends that planning permission for mineral extraction exists over only a small area within the red area that is outlined in green on a plan annexed to a letter from the first respondent dated 15 July 1997 (the green area).
[3] The petitioner seeks review of the proposed decision by way of (1) declarator that no valid and subsisting relevant planning permission exists over the red area beyond the extent of the green area; (2) declarator that a determination of conditions that will apply over the whole of the red area is ultra vires for that reason; (3) reduction of the first respondent's decision as being ultra vires, and (4) interdict, and interim interdict, against the first respondent's determining planning conditions over the red area.
[4] The validity of the proposed decision depends ultimately on the meaning and effect of the decision of the first respondent intimated in the letter of 15 July 1997.
[5] By interlocutor dated 10 March 2009, Lady Clark of Calton dismissed the petition for the reasons set out in her Opinion dated 13 January 2009. That is the interlocutor reclaimed against.
Reviewing old mineral permissions
The background
[6] In the early years of development control under the Town and Country Planning (Scotland) Act 1947, many permissions for mineral extraction were granted subject to minimal conditions. By reason of an increasing public sensitivity to the environmental effects of mineral extraction and developments in the technology for minimising environmental impact, such conditions became inadequate. Since 1991, legislation has required planning authorities to keep a definitive list of extant mineral permissions and periodically to review and update the conditions on which the permissions were granted. The general objectives of the legislation with which we are concerned in this case were to have a definitive public list drawn up of all old mineral permissions in each planning authority's area, to make such permissions subject to new conditions that were appropriate to modern environmental standards and in certain circumstances to extinguish such permissions altogether.
[7] The current legislation relating to the review of old mineral permissions is set out in Schedule 9 to the Town and Country Planning (Scotland) Act 1997 (the Schedule). The Schedule continues, with immaterial changes in wording, the provisions of the Environment Act 1995, which previously applied to Scotland. The scheme of the Schedule is based on a classification of the relevant sites as Phase I, Phase II or dormant.
Schedule 9 procedure
[8] There are two stages in the Schedule 9 procedure. At stage 1, the planning authority must identify the mineral sites within its area and draw up two lists. The first list is a list of all the mineral sites (para 3(1)). The second is a list of the active Phase II sites (para 4). We are concerned in this case only with the first list. At stage 2 it is for the holder of an interest in a listed site to apply to the planning authority to determine the conditions that are to govern the relevant planning permission.
Stage 1 (paras 3 - 6)
[9] So far as is relevant to this case, a "mineral site" is defined as "the land to which a relevant planning permission relates" (para 1(1), (2)(b)). A relevant planning permission means a planning permission, other than an old mining permission or a planning permission granted by a development order, granted after 30 June 1948 for minerals development (para 1(1)). In broad outline, Schedule 9 requires the planning authority, in drawing up the first list, to classify each site as an active Phase I, an active Phase II or a dormant site (para 3(1)-(3)). The definitions of Phase I and Phase II sites need not concern us in this case. A dormant site is a Phase I or Phase II site at which mineral development has not been carried out to any substantial extent between 22 February 1982 and 6 June 1995 otherwise than by virtue of a planning permission that was not a relevant permission relating to the site (para 1(1)).
[10] When the first list is published (para 5), a person who is the owner of any land or is entitled to an interest in a mineral site may, if that land or interest is not a mineral site included in the first list and does not form part of any mineral site that is in the list, apply to have that land or interest included in the list (para 6(1)). It is then open to the authority to grant the application in full (para 6(3)(a)), to grant it in part (para 6(3)(b)) or to refuse it. Counsel for the petitioner contends that paragraph 6(3)(b) is the critical provision. It is in the following terms
"Where the planning authority consider that ...
(b) part only of the land or interest is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application so far as it relates to that part of the land or interest,
but shall otherwise refuse the application."
[11] If the planning authority accedes to the application in whole or in part, it must supply the applicant with details of any amendment made to the list (para 6(10)). There is a right of appeal against the decision of the authority to grant the application in part only or to refuse it altogether (para 6(11)-(13)). There is no provision that expressly requires the planning authority to specify the boundaries of the site at the listing stage.
[12] The first stage of the procedure is to be carried out expeditiously. The planning authority is required to publish the first list by 1 April 1997 (para 5(4)), that is to say within three months. An application to be added to the list has to be made within three months of its being published. The planning authority has to make a decision on such an application within two months.
Stage 2 (para 9)
[13] Once the first list has been compiled, the owner of any land or a person entitled to an interest in a mineral site may, if it is or forms part of a dormant site or an active Phase I or Phase II site, apply to the planning authority to determine the conditions to which the relevant planning permissions relating to the site are to be subject (para 9(1)). In the case of a dormant site no relevant planning permission shall have effect unless an application for approval of conditions is made to the planning authority and such conditions are finally determined (para 12(3); para 9(1), (5)).
[14] In an application for approval of conditions, the applicant has inter alia to identify the mineral site to which it relates, specify the land or minerals comprised in the site which the applicant owns or in which he is entitled to an interest, and identify any relevant planning permissions relating to the site (para 9(2)(a), (b) and (c)). At this stage the planning authority may call for further details (para 9(9)), including plans or drawings (para 9(10)(a)). In the case of an active Phase I or Phase II site, the planning authority is entitled by means of such conditions to restrict working rights in respect of the site (para 10), in which case the applicant is entitled to compensation (paras 1(6), 10 and 15).
The history of the dispute
[15] On 12 February 1965, the County Council of Inverness granted planning permission to George MacWilliam & Son (Contractors) Ltd (MacWilliam), the second respondent's predecessor in title, for the working of minerals at the site, which was referred to in the permission as Tullochgorum. The permission narrates that it is granted "in accordance with the plan(s) submitted to the Council and docquetted as relative hereto." The plan docquetted as relative to that permission has been lost.
[16] In 1967 MacWilliam was granted a disposition of the mineral rights at the site by Viscount Reidhaven, the then heritable proprietor. The extent of the grant was as delineated and coloured red on a plan annexed and signed as relative to the disposition. The boundary of this area coincides with the outline of the red area which the first respondent has identified in its proposed first condition (supra) as being the boundary of the site to which the planning...
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G Hamilton (Tullochgribban Mains) Ltd v Highland Council
...[2012] UKSC 31 THE SUPREME COURT Trinity Term On appeal from: [2011] CSIH 1 Lord Walker Lady Hale Lord Clarke Lord Dyson Lord Reed G Hamilton (Tullochgribban Mains) Limited (Appellant) and The Highland Council and another (Respondents) (Scotland) Appellant James McNeill QC Morag Ross (Inst......