Mr Mohammed Asif+mrs. Zareen Asif V. A Decision Of The Scottish Ministers Being The Decision Of The Reporter Appointed By The Scottish Ministers To Determina An Appeal In Terms Of Section
| Jurisdiction | Scotland |
| Judge | Lord Bannatyne |
| Neutral Citation | [2013] CSOH 132 |
| Court | Court of Session |
| Published date | 09 August 2013 |
| Year | 2013 |
| Date | 09 August 2013 |
| Docket Number | XA3/13 |
| OUTER HOUSE, COURT OF SESSION | |
| [2013] CSOH 132 | |
| XA3/13 | OPINION OF LORD BANNATYNE in the Appeal under the Town and Country Planning (Scotland) Act 1997, section 130(1) in the cause MR MOHAMMED ASIF AND MRS ZAREEN ASIF Appellants; against a decision of the Scottish Ministers, being the decision of the Reporter appointed by the Scottish Ministers to determine an appeal in terms of section 130(1) of the Town and Country Planning (Scotland) Act 1997 dated 23 November 2012 ________________ |
Appellants: Party
Respondents: Findlay; Scottish Government
9th August 2013
Introduction
[1] This matter came before me for a hearing in terms of an interlocutor of the Inner House dated 9 May 2013. Mr Asif presented the appeal on behalf of himself and his wife (the other appellant). Mr Findlay, advocate, appeared for the Scottish Ministers.
Background
[2] The origin of this matter was an enforcement notice served on Mr Asif alleging a breach of planning control under section 127(1)(a) of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") arising from the erection by the appellants of an unauthorised boundary fence in the garden of their home (hereinafter referred to as "the appeal property").
[3] The enforcement notice required the removal of the boundary fence within the appeal property. It was not in dispute that the erection of the fence required planning permission and that none had been obtained.
[4] The appellants appealed to the Scottish Ministers against the enforcement notice on the basis of grounds (f) and (g) in section 130(1) of the 1997 Act which provides:
"(1) A person on whom an enforcement notice is served ... may, ... appeal ... against the notice on any of the following grounds -
...
(f) That the steps required by the notice to be taken, ....exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;
(g) That any period specified in the notice in accordance with section 128(9) falls short of what should reasonably be allowed."
[5] A reporter was appointed by the Scottish Ministers. The reporter dismissed the appeal against the enforcement notice on ground (f) but upheld ground (g) and accordingly directed the enforcement notice dated 14 August 2012 be upheld. It was against the dismissal of the appeal on ground (f) that this appeal came before me. The questions of law which were submitted for the opinion of the court were as follows:
(1) Did the reporter misdirect himself on the applicable facts/evidence and thereby proceeded to make a decision that was irrational and so unreasonable that a reasonably informed decision maker would not make?
(2) Did the reporter fail to take into account all relevant facts compounded by his failure to apply his mind to irrelevant facts so as to render his decision irrational?
(3) Did the reporter failed to adequately or at all exercise his duty and decision making by failing to consider mitigation or abatement of perceived damage to amenity by considering options that did not involve the removal of the fence?
Submissions for the appellants
[6] Mr Asif addressed the court on behalf of himself and his wife and did so by reading the written submissions which accompanied his grounds of appeal. In addition to that document, I have also had regard when considering his position to his written response to the answers for the Scottish Ministers, the whole papers in the joint appendix and a video of the appeal property, which the appellants wished me to view and to which Mr Findlay took no objection.
[7] Looking to the grounds of appeal and the other papers before me I believe it is correct, as Mr Findlay submitted, that there were six real grounds of challenge to the decision and these can be summarised as follows:-
(1) In reaching his decision the reporter had misunderstood the layout of the property in that he had failed to appreciate that the fence was erected at the side of the appeal property and not in the front garden.
(2) In reaching his decision he had failed to consider the security needs of the appeal property.
(3) His view of the general nature of the estate in which the appellant property was situated was wrong in that he had failed to appreciate and reflect in his decision that there were many properties within this particular development that were protected by the erection of fences at the sides and the rear of the properties and made of materials used by the appellants having an appearance less attractive than the fence erected by the appellants.
(4) His view that one reason for rejecting the appeal was it would set a precedent in the estate was wrong.
(5) He had erred in stating that the rear garden of the appeal property continued to have the protection of the original screen wall part of which had been retained. There was in fact no such wall.
(6) He had failed to take account of whether the alleged damage could be abated by additional planting of plants or shrubs.
[8] Mr Asif submitted that having regard to the foregoing, the decision of the reporter was Wednesbury unreasonable. Mr Asif accepted that it was entirely for the decision maker (the reporter) to attribute to the relevant considerations such weight as he believed was appropriate and that the court would not interfere with this. However, it was his position that the reporter had had regard to irrelevant factors and failed to take account of relevant factors. In these circumstances it was his position that the decision was Wednesbury unreasonable.
Reply for the Scottish Ministers
[9] As regards the suggestion that the reporter had misunderstood the layout of the appeal property, Mr Findlay submitted that on a fair or indeed any reading of the decision notice, there was in fact no basis upon which to conclude that the reporter had misunderstood the layout of the property or its relationship to the various roads. In particular he drew my attention to paragraphs 2 and 6 of the decision letter and he contended that from these it was clear that the reporter was well aware the property had two frontages and that an original wall in the same broad location was, set back from the boundary.
[10] With respect to the criticism of the reporter's reference to a section of rear wall as being present, which at all hands was accepted was not present, he submitted in his written argument as follows:
"The reference to protection of the remaining part of the rear garden screen wall in paragraph 7 of the decision letter was made on the basis of what the reporter understood the position to be on the basis of the documents before him, which included a block plan approved as part of the permission 2010/0079/P and of what could reasonably be observed, as he had not had an opportunity to enter the garden itself."
[11] With respect to what flowed from the said mistake, it was his position that it was irrelevant whether or not the wall was actually in place as there was clear planning permission for it under reference 2010/0078/P and if the appellants were concerned about privacy and/or security, which it might afford, then they could reinstate the wall. Secondly, and in any event, the reporter only relied upon it as providing protection to the garden, which was also protected by the new...
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