Hallam Land Management Limited V. The Scottish Ministers
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Kingarth,Lord Eassie |
| Judgment Date | 17 March 2009 |
| Neutral Citation | [2009] CSIH 22 |
| Court | Court of Session |
| Published date | 17 March 2009 |
| Docket Number | No 30 |
| Date | 17 March 2009 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Osborne Lord Kingarth Lord Eassie | [2009] CSIH 22 Appeal No. XA156/04 OPINION OF THE COURT delivered by LORD OSBORNE in reclaiming motion by HALLAM LAND MANAGEMENT LIMITED Appellants and Reclaimers; against THE SCOTTISH MINISTERS Respondents. _______ |
Act: J G Reid QC; Biggart Baillie
Alt: Miss R Crawford QC; Office of the Solicitor to the Scottish Executive
17 March 2009
The Background circumstances
[1] In this reclaiming motion, the reclaimers seek review of an interlocutor of the Lord Ordinary, dated 19 April 2007, in which he refused the reclaimers' appeal under section 29 of the Land Compensation (Scotland) Act 1963 against a decision of the respondents, dated and communicated to the reclaimers on 22 October 2004. That decision had been made on an appeal lodged by the reclaimers against the decision of East Dunbartonshire Council to issue a certificate of appropriate alternative development in respect of an area of land on the western edge of the village of Torrance, which certificate, issued by that Council on 26 April 2002, indicated that:
..."the only acceptable use of the land would be amenity space for informal recreation and nature conservation interests and planning permission would not have been granted for any other development."
The reasons given for the issue of the certificate in those terms were stated in it as follows:
"In view of national, strategic and local plan policy, and the consistent approach of the planning authority (supported by the Scottish Office/Executive at appeal), it is clear that continued use of this site as amenity space for informal recreation and nature conservation interests is the only appropriate use both immediately or at a future time."
[2] The land to which that certificate related, "the appeal site", is shown outlined on the plan referred to in the certificate, signed as relative thereto and of even date. The appeal site is an area of land in the ownership of the reclaimers, which extends to some 2.27 hectares. The site is bounded to the east by Torrance Primary School and to the south by a private housing development. To the west, the site is bounded by the Tower Burn and beyond that agricultural land, which is also in the ownership of the reclaimers. The burn marks the inner edge of the Green Belt. To the north, the site is bounded by a strip of land that is also in the ownership of the reclaimers, which separates the site from Maitland Drive, Torrance. The site is generally rectangular in shape and consists in a low lying area of ground that slopes gently from the north west to the south east. As at 14 August 2003, it was described by the reporter, Mr I. G. Lumsden, responsible for a Report of that date on a public hearing held on 8 April 2003 in relation to the appeal lodged by the reclaimers concerning the certificate of appropriate alternative development, "the Lumsden Report", as being:
..."uncultivated, overgrown with long grass and in parts ..... marshy. An unsurfaced path runs across the site in a south westerly direction broadly parallel to the Tower Burn. Although no formal public footpaths cross the site it is clear that the area is used by the public for informal recreation and the walking of dogs."
[3] The appeal site has a lengthy planning history. In an amendment to the County of Stirling Development Plan, the site was zoned in 1971 as open space on the Torrance Town Map. Henry Boot Limited, the parent company of the reclaimers, purchased the appeal site in 1973 as part of a larger acquisition of land in the area. In the late 1970s the site was offered to the relevant council for open space and leisure use, however, this offer was rejected. In 1988, the former Strathkelvin District Council promoted a compulsory purchase order for the land, in order to develop it as a local park. After an appeal against certificates of appropriate alternative development issued by that council for two separate plots of land, which included the appeal site, the then Secretary of State for Scotland issued certificates in respect of all the land that lay to the east of the Tower Burn. Those certificates covered a more extensive area than the present appeal site. Issued in 1990, they were for either residential or private leisure and recreation development on the land. The council's compulsory order was subsequently withdrawn. In 1992, a planning application was submitted for the erection of fifty four houses on a larger area of land which included the appeal site. That application was refused by Strathkelvin District Council and the subsequent appeal was dismissed in July 1994.
[4] In 1997, two separate applications were submitted for consent for residential development on land to the south of Maitland Drive. The first was for the development of seven house plots on the strip of land that fronts on to Maitland Drive. This application was refused by the Council and the subsequent appeal was dismissed in August 1999. In November 1999 the Council issued a refusal notice relating to the second application. The reclaimers did not appeal that refusal. However, on 16 February 2000 they served a purchase notice on the Council relating to the land covered by the second application just referred to. In May 2000, the Council intimated that it was not willing to comply with the purchase notice and the matter was then referred to the respondents for determination. On 22 March 2001, following a public hearing, the respondents confirmed the purchase notice. Following confirmation of the notice, the Council indicated that it was not prepared to adopt the decisions made in relation to certificates of appropriate alternative development in 1990 as the basis for the assessment of compensation.
[5] Subsequently on 27 February 2002, the reclaimers submitted a fresh application for a certificate of appropriate alternative development for the appeal site. That application proposed that the class of development which would be appropriate was residential development. On 26 April 2002, East Dunbartonshire Council issued the certificate to which we have already referred, stating that the only acceptable use of the land would be amenity open space use, which was a class of development other than that specified in the application for the certificate of appropriate alternative development. An appeal against the failure of the council to issue a certificate of appropriate alternative development for residential development was submitted on 7 May 2002. Since in April 2002 a further application for planning permission had been submitted for the erection of twenty five houses on the northern part of the appeal site, with the southern part, extending to some 1.45 hectares, being gifted to the council for use as a Nature Park, in order that parties could have the opportunity to try to resolve matters through the consideration of that application, that appeal was sisted. However, on 31 October 2002 the Council refused that application and the appeal was reactivated. In consequence, a public hearing was held on 8 April 2003. The reporter's conclusions are set out in paragraphs 45 and 46 of the Lumsden Report, which appear at page 48 of the appendix to the reclaiming motion. He concluded that residential use would represent an appropriate alternative form of development for a limited part of the appeal site. He considered that a certificate of appropriate alternative development ought therefore to be issued, subject to conditions restricting the area that could be developed and retaining a pedestrian access to the rest of the site. He considered that the conditions restricting the area to be developed were required to ensure that no development took place:
(a) outwith the raised area of made-up ground, which was the result of soil tipping operations in the past, that is to say that no development should take place on "green field" land; and
(b) on land which was below 39 metres AOD, to ensure that no houses were built on areas that were subject to flooding.
Provided that these conditions were imposed, the reporter considered that, on the relevant date, a limited residential development on the northern part of the site would not have conflicted with the policies of the development plan, suitably trimmed to exclude the proposal giving rise to the purchase notice. He noted that no evidence had been produced to suggest that there would be any constraint on such residential development. However, he found that residential development on the southern part of the site would involve land that
(i) had not previously been developed,
(ii) was liable to flood, and
(iii) was of value to nature conservation.
The reporter expressed the view that, even in the "no scheme world" of the certificate of appropriate alternative development, the development of this "green field" area would be contrary to the terms of the development plan and national planning guidance. Accordingly no residential development ought to be permitted on that part of the site. He made recommendations to the respondents in accordance with the conclusions which we have summarised.
[6] However, in a decision letter, dated 26 February 2004 the respondents intimated their decision to confirm the certificate of appropriate alternative development, as issued by East Dunbartonshire Council. Thereafter, the reclaimers lodged an appeal in the Court of Session against that decision. Subsequently, the respondents indicated that they intended to concede that appeal, solely on the basis that they had taken into account matters which they ought not to have taken into account, namely the provision of a Village Nature Park, in terms of Policy LR5 of the adopted East Dunbartonshire (Strathkelvin Area) Local Plan, and for that reason the respondents had exceeded their statutory powers. That decision of the respondents was accordingly quashed by this court by 4 August 2004. Thus the...
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