Macintyre v Scottish Ministers
| Jurisdiction | Scotland |
| Judgment Date | 02 February 2021 |
| Neutral Citation | [2021] CSIH 10 |
| Docket Number | No 13 |
| Court | Court of Session (Inner House) |
[2021] CSIH 10
First Division
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680; 63 TLR 623; (1948) 112 JP 55; 45 LGR 635; [1948] LJR 190; (1947) 177 LT 641; (1948) 92 SJ 26
North Devon District Council v First Secretary of State [2003] EWHC 157; [2004] 1 P & CR 38; [2003] 3 PLR 1; [2003] JPL 1191
R (on the application of Crawley Borough Council) v Secretary of State for Transport and the Regions and Helberg (t/a Evesleigh Group) [2004] EWHC 160
R (on the application of Hossack) v Kettering Borough Council [2002] EWCA Civ 886; [2003] 2 P & CR 34; [2002] 2 PLR 114; [2003] RVR 63; [2002] JPL 1206; [2002] 27 EG 141 (CS); 99 (27) LSG 35; [2002] NPC 88
Scottish Office, Town and Country Planning (Use Classes) (Scotland) Order 1997, Circular 1/1998 (PGD/1/27) (Scottish Office Development Department, Edinburgh, 14 January 1998), paras 1, 36 (Online: https://www.webarchive.org.uk/wayback/archive/20170401152222/http://www.gov.scot/Publications/1998/01/circular-1-1998-root/circular-1-1998 (17 March 2021))
Town and country planning — Use classes — Houses — Whether residents required to be from single household — Whether carers classed as residents — Town and Country Planning (Use Classes) (Scotland) Order 1997 (SI 1997/3061 (S 195)), class 9
Alastair Macintyre and others appealed against the decision of a reporter appointed by the Scottish Ministers in which the reporter had allowed an appeal by the Church of Scotland against the refusal of an application under sec 151 of the Town and Country Planning (Scotland) Act 1997.
Section 26(2) of the Town and Country Planning (Scotland) Act 1997 (cap 6) provides that where buildings are used for a purpose of any class specified in an order by the Scottish Ministers, use for any other purpose of the same class shall not be taken to involve development of the land for the purposes of the Act. Section 151 provides that if a person wishes to ascertain whether a proposed use of buildings would be lawful, they may make an application for the purpose to the planning authority specifying the land and describing the use or operations in question.
Article 3(1) of the Town and Country Planning (Use Classes) (Scotland) Order 1997 (SI 1997/3061 (S 195)) provides, “Subject to the provisions of this Order, where a building or other land is used for a purpose in any class specified in the Schedule to this Order, the use of that building or that other land for any other purpose in the same class shall not be taken to involve development of the land.” Class 8 of the schedule to the Order (“Residential institutions”) provides, in part, “Use– (a) for the provision of residential accommodation and care to people in need of care other than a use within class 9 (houses)”. Class 9 of the schedule to the Order (“Houses”) provides, in part, “Use– (a) as a house, other than a flat, whether or not as a sole or main residence, by– (i) a single person or by people living together as a family, or (ii) not more than five residents living together including a household where care is provided for residents”.
The Social Care Council of the Church of Scotland wished to use a property for residential care. It was proposed that four children aged 8 to 14 years would live together in the property, cared for on a 24-hour basis by non-resident care workers. Care was to be provided by two shifts, each with three staff members. A bed and en-suite facilities were to be provided for a single staff member. The church sought a certificate from the local authority in terms of sec 151 of the 1997 Act that the proposed use fell within class 9(a)(ii) of the 1997 Order. The appellants lived in a neighbouring property. The appellants objected to the church's application. The local authority refused the application. The church appealed to the Scottish Ministers. A reporter appointed by the Scottish Ministers allowed the appeal and granted a certificate of proposed use. The appellants appealed to the Court of Session.
The appellants contended that: (1) the reporter had misinterpreted the 1997 Order and should either have regarded the carers as non-resident and not as part of the household, with the result that the property would fall into class 8, or have regarded the carers as residents for the purposes of class 9, with the result that the five-resident limit was exceeded; (2) the reporter had failed to take into account a relevant consideration by failing to take into account that the proposed use was for four children aged 8 to 14 years with no adequate reasons given as to why children of that age could be a single household; and (3) the reporter had failed to give adequate reasons for rejecting the submissions of the first appellant.
Held that: (1) class 9 of the 1997 Order required an arithmetical calculation of the number of residents and not that the residents formed part of a single household, the term “single household” not appearing in the Order, with the result that the children aged 8 to 14 years could be residents for the purposes of class 9 (paras 34–37); (2) carers attending on a shift basis could not properly be categorised as residents and so would not count towards the five-resident limit (para 40); and appeal refused.
Observed that the court inclined to the view that the single member of staff for whom a bed and en-suite facilities were provided should not be classed as a resident, albeit even if they were so classified, the five-resident limit had not been exceeded (para 40).
The cause called before the First Division, comprising the Lord President (Carloway), Lord Menzies and Lord Pentland, for a hearing on the summar roll, on 8 December 2020.
At advising, on 2 February 2021, the opinion of the Court was delivered by Lord Menzies—
Opinion of the Court—
[1] The issue in this statutory appeal is whether the proposed use of a house as a dwelling house by not more than four looked after children living together with 24-hour care provided by two adult staff falls within use class 9 of the schedule to the Town and Country Planning (Use Classes) (Scotland) Order 1997 (SI 1997/3061 (S 195)) (‘the Order’).
[2] In March 2019 the Church of Scotland, through its Social Care Council (known as CrossReach) made an application to Stirling Council for a certificate of lawfulness of a proposed use or development in terms of sec 151 of the Town and Country Planning (Scotland) Act 1997 (cap 8). The application related to Drumbrock House, Old Mugdock Road, Strathblane. This property was being renovated and upgraded having been unoccupied for some time. It would have four bedrooms upstairs and a communal living room and dining kitchen on the ground floor. It sits in relatively large garden grounds within a quiet residential area. The appellants, who live next door to Drumbrock House, objected to the application and expressed serious concerns about the proposal. By notice dated 19 June 2019 Stirling Council refused the application by the Church of Scotland.
[3] The Church of Scotland appealed against the decision by Stirling Council to the Scottish Ministers. By decision dated 16 October 2019, the reporter appointed by the Scottish Ministers allowed the appeal and granted a certificate of proposed lawful use. It is against this decision that the appellants have appealed to this court in terms of sec 239 of the 1997 Act.
[4] The 1997 Act includes the following provisions.
[5] Section 26(2) provides as follows:
‘The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land– …
(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Scottish Ministers under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class’.
[6] Section 151 provides as follows:
‘Certificate of lawfulness of proposed use or development
151.–(1) If any person wishes to ascertain whether–
(a) any proposed use of buildings or other land, or
(b) any operations proposed to be carried out in, on, over or under land,
would be lawful, he may make an application for the purpose to the planning authority specifying the land and describing the use...
To continue reading
Request your trial