Court rejects arguments not raised in earlier planning appeal

Brian Alfred Taylor v The Scottish Ministers [2019] CSIH 11

The Court of Session has refused a legal challenge to the appeal decision of a Scottish Government Reporter. The case concerned enforcement action taken at Haddo Quarry in Aberdeenshire. The Council alleged that materials were being processed and exported from part of the Quarry in breach of planning control. The Council initially accepted the appellant’s assurance that previously extracted and stockpiled material was being used for agricultural and forestry purposes on the owner’s land. By email, the Council confirmed that the activities, as described, fell within permitted development rights but reserved the right to take enforcement action should subsequent information indicate that the site was not being worked for agricultural or forestry purposes. This being the case, and after several site visits, the Council served an enforcement notice and stop notice.

The enforcement notice was appealed inter alia on the ground that the operations were permitted under Classes 18 and 22 of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (the GPDO). The Reporter dismissed the appeal and upheld the enforcement notice. Mr Taylor (who had advised the owner and contractor subject to the enforcement action) lodged a statutory appeal, submitting that the reporter had erred in several respects. The Inner House dismissed the statutory appeal and upheld the enforcement notice.

Judgment

The principal issue was whether the relevant activities constituted permitted development under various Classes of the GPDO. The Court also addressed the issue of fairness where new matters, not presented in a planning appeal, are subsequently relied upon by the appellant in the course of a statutory appeal.
Context: The Court emphasised that planning appeals operate within a statutory framework which sets out detailed procedural requirements. The parties to an appeal must provide written grounds, submissions and responses, the purpose being to focus the issues to be determined and to provide the parties with fair opportunity to comment on these issues. The Reporter may have regard to considerations which are obviously relevant but not expressly mentioned by the parties but, generally speaking, the Reporter’s function is to determine the appeal on the basis of the submissions and documents provided by the parties, plus observations from any site visit. It is not for the Reporter to found upon grounds or information beyond that provided by the parties. Indeed to do so, and without all parties having the opportunity to comment on the matter, could render the Reporter’s decision open to challenge. This context was relevant to certain of the appellant’s grounds of challenge.

Legitimate Expectation

The appellant submitted that there was a legitimate expectation that the activities would be allowed to continue, based on the email received from the Council. The Reporter had failed to address the Council’s “volte-face” in subsequently taking enforcement action. However, this matter had formed no part of the case presented by the appellant in the planning appeal. As the matter was not raised with the Reporter, she could not be criticised for not dealing with it in her appeal decision. In any event, the creation of a legitimate expectation in relation to a substantive right required that the Council’s representation be clear, unambiguous and without relevant qualification. It must also proceed on the accuracy of the information provided by Mr Taylor. In this case, the stated nature and purpose of the activities were found, as a matter of fact, to be inaccurate. Further, the Council’s email had expressly reserved the right to pursue enforcement action should contrary information emerge. The Court held that if legitimate expectation had been raised in the planning appeal, and been available to the appellant in the statutory appeal, it would nevertheless have failed.

The GPDO

The appellant sought to rely upon various Classes of the GPDO. Class 18 (Agricultural Buildings and Operations) and Class 22 (Forestry Buildings and Operations) had been relied upon in the planning appeal. The Court, like the Reporter, dismissed the applicability of Class 18 which applied only to excavations or engineering operations carried out on agricultural land comprised in an agricultural unit. The site was a former quarry. Nor, on the Reporter’s findings of fact, were the works “requisite for the purposes of agriculture”. As regards Class 22, the Reporter had concluded that there was no evidence of any restoration of the Quarry site for forestry purposes nor any apparent evidence of active management of areas of established woodland in the vicinity of the Quarry. The Reporter was entitled to conclude on the basis of the appeal documents and her site visit that the Quarry was not used for forestry purposes and the activities (including works to an access road) were not reasonably necessary for the purposes of forestry. The Court observed that if contrary evidence had existed it was for the appellant to present this as part of the planning appeal. The Reporter was not required to search for such evidence through some wider inquiry.

The statutory appeal also founded upon Class 14 (Temporary Buildings and Uses) and Class 19 (Minerals in an Agricultural Unit) of the GPDO. Mr Taylor submitted that the Reporter erred in failing to consider all provisions of the GPDO, notwithstanding that the purported applicability of these Classes had not been raised in the planning appeal (or, in the case of Class 14, in the appellant’s written grounds of appeal to the Court). As with legitimate expectation, this ground was dismissed by the Court. Neither a planning appeal nor a statutory appeal is a hearing at which parties are free to raise new matters at will. Again, had these grounds been raised timeously they would have failed. Class 14 applied to works, plant or machinery required to carry out operations for which planning permission had been granted or was deemed to be granted. This was not the case at the Quarry. Class 19 applied to the winning and working on land held or occupied with land used for the purposes of agriculture, of any minerals reasonably necessary for agricultural purposes within the agricultural unit of which it forms part. The land in question was a quarry, not part of an agricultural unit.

Comment

The Court had little difficulty in concluding that the relevant activities either did not fall within permitted development rights or that the Reporter was entitled to reach this conclusion on the available evidence. More generally, the case is a reminder that planning appeals are conducted within a detailed statutory framework designed to ensure that relevant matters are raised in a timely fashion and all parties have the opportunity to comment on such matters. Further that the Reporter’s role is not primarily inquisitorial. It is for the appellant to present all grounds of appeal and supporting evidence at the planning appeal. The Reporter is not required to seek out additional grounds and the Court will not ordinarily permit a challenge based on matters not raised at the planning appeal.

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