Scottish Court of Session Decisions

On 25 November 1995, the second respondents applied for a certificate of lawful use or development under sections 90 and 90A of the Town and Country Planning (Scotland) Act 1972. On 9 July 1996, the appellants refused to grant the certificate applied for. The second respondents appealed to the Secretary of State who appointed a reporter to determine the appeal. A public inquiry was held on 2 and 3 April 1997 and on 29 May 1997 the reporter allowed the appeal and granted a certificate of lawful use. The appellants have appealed to this court. The first respondent, the Secretary of State, did not contest the appeal, but the second respondents have appeared and do contest it. The appeal is now being conducted

under the provisions of the Town and Country Planning (Scotland) Act 1997 but the relevant provisions, at the material time, were those contained in the 1972 Act.

It is convenient to begin by setting out the relevant statutory provisions. Until 1969, there was no time limit upon the validity of planning permissions in Scotland. In 1969 provisions were made in regard to time limits, and these are now found in sections 38 to 40 of, and in schedule 22 to, the 1972 Act. Section 38 provides that, subject to various matters, every planning permission granted or deemed to be granted is deemed to be subject to a condition that the development must be begun not later than five years from the date of the grant. Section 39 makes further provision in regard to outline planning permission, the effect of which is that application for approval must be made in regard to any reserved matters within three years from the date of the grant of outline planning permission and the development must be begun not later than the later of the expiration of five years from the date of the grant of outline planning permission or of two years from the final approval of reserved matters. What is meant by the beginning of a development is defined by section 40, the provisions of which are of import for this appeal. Section 40 provides:

The following subsections deal with the meaning of material development, and with certain other matters in relation to the approval of reserved matters and appeals.

Certain transitional provisions which were contained in the Town and Country Planning (Scotland) Act 1969 are now found in paragraphs 14 and following of schedule 22 to the 1972 Act. Paragraph 14 provides that sections 38 and 39 of the 1972 Act do not apply to planning permissions granted or deemed to have been granted before 8 December 1969. Paragraph 15(1) provides, inter alia:

The following provisions of the schedule deal with various matters such as planning permissions which had been granted subject to an express time limit and to the application of time limits in relation to outline planning permissions, but these are not relevant for the present purpose.

Section 90A of the 1972 Act provides that if any person wishes to ascertain whether any proposed use of buildings or other land or any operations to be carried out in, on, over or under land would be lawful he may make application to the planning authority specifying the land and the use or operations in question. Sub-paragraph (2) provides:

The issue in this case is whether a development for which planning permission was granted prior to 8 December 1969 had been begun before the period expired. The principal contention on behalf of the appellants is that in order to satisfy section 40 it is not sufficient that operations have been carried out, within the terms of the planning permission, before the material date: they contend that the operations must have been carried out with the intention of carrying out or completing the development, even if that completion may have been prevented by other factors. That contention was not accepted by the reporter and it was submitted that in that respect he had misdirected himself. The point is essentially one of construction of the provisions of section 40 and therefore applies generally in the case of all planning permissions, not merely old planning permissions dating before 1969. The appellants also made a second submission in regard to the construction of section 90A(2), but we shall deal with that submission later.

Because the point is a general one of construction, the precise circumstances of the planning permissions which have given rise to the present application are not very material. It is sufficient to say that in October 1961 Stirling County Council, the then planning authority, granted outline planning permission for a residential development on 44 acres of land at Hole Farm, Lennoxtown. On 26 January 1967, planning consent was granted for a housing development on a portion of the site including a frontage to the A89 road. At the inquiry before the reporter there was very considerable difficulty in determining what the precise terms of these planning permissions were, because appropriate plans were not available. There was also some question as to whether the 1967 permission fell to be regarded as a full planning permission, standing on its own, or as an approval of reserved matters in relation to part of the 1961 permission: for the purposes of the present appeal, however, that point is not of any significance. Having considered the evidence that was available to him, the reporter drew attention to the planning permission of 1967 and to a provision in regard to access which read

He said, however, that in the absence of the approved plan there was no certain evidence of the exact location of the access road and the required visibility splays. He continued:

When he came to set out his conclusions, the reporter referred to the statutory basis of the appeal, distinguishing it from a planning appeal against a refusal of planning permission, and pointed out that the determining issue in the appeal was confined to whether the site works carried out in April 1967 were lawful. He continued:

The reporter then proceeded to deal with other matters with which this appeal is not concerned.

Counsel for the appellants submitted that the reporter had misdirected himself in failing to apply his mind to the question of the true intention to develop and in holding that the carrying out of the specified operation itself provided evidence of an intention to proceed. She submitted that the proper test was whether the operation was carried out with the genuine intention to proceed with the development: this was a question to be determined on the balance of probabilities taking account of the whole evidence of the circumstances and of the developer's motive at the time. She accepted that there had been evidence before the reporter which might have entitled him to draw the conclusion that there was a genuine intention to develop but submitted that since he had not considered the question, the appropriate course was to allow the appeal and remit the question so that the issue could be properly considered. She accepted that the test of a genuine intention was not set out in the statute but submitted that it had been developed in a series of recent cases arising from instances of very old planning permissions. The fact that a very long period had elapsed without a development being completed was itself a pointer to the absence of genuine intention. So far as the statute was concerned, the relevant operation was the making of a road, which fell within section 40(2)(b) of the 1972 Act. The first time, it appeared, that reference had been made to genuine intention was in Spackman v. The Secretary of State for the Environment 1977 1 All E.R. 257, a decision of Willis J. A similar reference was made by Collins J. in Agecrest v. Gwynedd County Council 1988 J.P.L. 325 and the same principle had been referred to, with a slightly different approach to the question of intention, by Buxton J. in R. v. Arfon D.C. ex parte Walton Commercial Group Limited 1997 J.P.L. 237. There was no Scottish authority which was relevant. The submission was consistent with the statutory framework in sections 38 and 39 of the 1972 Act. There was provision in section 38 for making the period of validity of a planning permission longer or shorter than the five years which was implied if no other period was specified. That was consistent with the approach of planning by reference to a development plan, in order that individual applications could be determined in accordance with broader strategic objectives, with which old planning permissions might be inconsistent. Reference was also made to Malvern Hills D.C. v. The Secretary of State for the Environment 1982 46 P.C.R. 58. It was accepted that if the submission was correct, the approach would apply in all cases of specified operations under section 40 of the 1972 Act and all types of planning permissions, not merely such as might have survived from 1969.

For the second respondents it was submitted that the reporter's approach had been correct. The statutory provisions made no reference to any question of genuine intention. The references to beginning specified operations applied to all operations which might fall within section 40(2) of the Act. There was authority to the effect that in order to satisfy that provision the operation must be one within the development envisaged by the planning permission, not merely a similar operation, but provided the operation that was carried out did, objectively considered, meet the planning permission, that was sufficient. Section 40 applied equally to modern planning permissions recently granted and to old planning permissions which were outstanding and therefore arguments based on the undesirability of allowing very old planning permissions which had not been implemented to survive was beside the point. If there had been any requirement of a genuine intention of any kind, that might have been expected to surface in some of the earlier authorities. Reference was made in particular to Campbell v. Argyle & Bute District Council 1997 S.C.L.R. 197 and Pioneer Aggregates v. Secretary of State for the Environment 1985 A.C. 132. It was not clear where the intention requirement was derived from and it was one which was extremely difficult to define. All that the statute required was that the specified operation should be begun. There was nothing in the authorities referred to for the appellant to establish the requirement for which they contended. Reference was also made to High Peak D.C. v. Secretary of State for the Environment 1981 J.P.L 366.

There are, in our view, formidable objections to the proposition advanced by the appellants. There is authority that the work which is alleged to constitute specified operations must be work done pursuant to the planning permission in question (see e.g. R. v. Secretary of State for the Environment ex parte Percy Bilton Industrial Properties Ltd. 1975 31 P.& C.R. 154 per Lord Widgery C.J. at 158-9: Etheridge v. Secretary of State for the Environment 1983 P. & C.R. 35 per Woolf J. at 40-1). The work done must not merely be some development but must be part of the development covered by the planning permission in question (Campbell v. Secretary of State 1997 S.C.L.R. 197). However, as counsel for the appellants accepted, nothing in the wording of section 40(2) of the 1972 Act supports the argument that there is some requirement that the specified operations there defined must be undertaken with some particular intention. In Pioneer Aggregates supra Lord Scarman emphasised that it is not desirable to try to elaborate or introduce additional requirements into what is already an elaborate statutory code. Although that case was concerned with a different question from the one which arises in the present case, namely whether a planning permission could be held to have been abandoned, the approach is, in our view, relevant. It would be particularly undesirable, in our opinion, to attempt to introduce into the statutory code requirements which were not capable of reasonably precise definition. As was submitted on behalf of the second respondents, a requirement that the specified operation should be undertaken with some sort of intention in regard to the carrying out of the development would be one extremely difficult to define and apply. A developer faced with the likely expiry of a planning permission may undertake a specified operation in the clear expectation that he will proceed to complete the whole development: on the other hand, he may undertake the specified operation with a more or less well-justified expectation of being able to raise finance which he does not currently have or to sell the site to a customer whom he expects or hopes to be interested. Again, a developer may have mixed motives for undertaking an operation. In the present case the developer may have had in mind that it was necessary to begin operations before 6 April 1967 in order to avoid the impact of betterment levy under the Land Commission Act. Apart from that special circumstance, there may be other taxation implications in any given case. Where the developer has or may have mixed motives and purposes, the application of any test of genuine intention becomes even more complicated. If there were any such test, it might have been expected that it would, by this time, have been clearly defined by authority. Indeed, the argument that some particular intention is necessary is not easy to reconcile with High Peak Borough Council v. Secretary of State for the Environment and Courtdale Developments Ltd. 1981 J.P.L. 366.

In the argument before us, it was submitted that the requirement that there should be a genuine intention to develop could be derived from the policy of the statute, and that by placing time limits on planning permission Parliament had indicated that a person entitled to the benefit of a permission should not be entitled to keep it in force where there was no genuine intention to develop and it was stressed that the existence of old planning permissions could be an obstacle to proper contemporary planning. That argument is not without force, but the short answer to it, in our view, is that the statute prescribes time limits and also prescribes the circumstances in which planning permissions are to continue in force beyond those time limits, and does so without any requirement as to intention. It seems to us therefore that to add a requirement as to intention would clearly go beyond what the statute prescribes. Accordingly, we do not think that there is anything in the structure of the Act to support the appellant's argument that it is necessary to apply any test of genuine intention. We turn therefore to consider the cases on which the appellants relied.

In Spackman v. Secretary of State for the Environment supra, planning permission for the erection of a dwellinghouse had been granted to the plaintiff and her husband in 1948. Later, the plaintiff, after her husband's death, applied for consent for a modified development, which was refused. The plaintiff appealed against the refusal but also took certain steps to try to keep the original planning permission alive. With that in mind she undertook some operations in connection with the construction of a soakaway and trenches, and the partial construction of a driveway. The operations conformed in part to the original planning permission of 1948 but in other parts did not. Having considered the whole circumstances, Willis J. held that, despite the deviations from the original planning permission, the works actually carried out were specified operations and that they were sufficient to preserve the permission in existence. The passage on which reliance is placed in the present case is found in the opinion of Willis J. in 1977 1 All E.R. at 260. He said:

It is true that in that case Willis J. appears to have been prepared to contemplate that it might be relevant to ask whether an operation was "colourable" or with what intention it was carried out. However, the opinion falls short of a positive affirmation that any requirement as to intention does exist and it contains no analysis of any reasons for considering that any such requirement is imposed by the statute or of the difficulties which would be inherent in applying it.

The next case was Malvern Hills D.C. v. Secretary of State for the Environment supra. In that case, the question was whether marking out the line of a road by taking precise measurements and placing pegs was sufficient to constitute a specified operation or whether, as the planning authority contended, there required to be some operation which changed the physical character of the land and had some degree of permanence. It was held by the court of appeal, by a majority, that the expression "laying out" of a road in the relevant section referred to the process of planning or delineating the road on the ground but did not require the placing of anything in a permanent position on the land. Two passages in the opinions of the judges in the majority were referred to. Firstly, Eveleigh L.J. said, at page 70:

Watkins L.J. referred to a passage in the decision of Willis J. in Spackman supra in which Willis J. remarked that provisions which took away from the subject a vested entitlement to proceed with a development should be construed benevolently and said:

In our view what was said by Watkins L.J. provides no significant support to the appellants' argument. All that Watkins L.J. did was to draw attention to the fact that, in that particular case, there were strong reasons for thinking that the developers were intending to proceed immediately with at least part of the development. What was said by Eveleigh L.J. comes closer to providing support to the appellants' argument but it does appear to us, with respect, that there is nothing in what Eveleigh L.J. said to explain why any requirement of genuine intention to develop should be read into the statute or how such a requirement should be interpreted or applied. Eveleigh L.J. recognised that it was clear that very little need be done in order to comply with the relevant statutory provisions. As we have said, it is clear that what is done must be done in conformity with the planning permission about which the question arises. In so far as what Eveleigh L.J. said suggests any requirement beyond that, it respectfully appears to us that he went further than was necessary for the decision of the particular case and that if he intended to imply that there was any requirement of genuine intention, no adequate reason for that view was stated.

Perhaps the most positive statement in support of the appellants' argument is found in the decision of Buxton J. in R. v. Arfon D.C. supra. It is not necessary to go into the somewhat complex facts of that case. It is sufficient to say that (as the note to the decision in the Journal of Planning Law observes, at p. 251) the developers had three obstacles to surmount in establishing that the planning permission in question was still valid. The first was that the works which had been carried out were authorised development not in breach of the terms of the conditions and the second that the development could still physically be carried out within the terms granted. The developers failed on both of these issues and would therefore have failed, irrespective of the decision on the third which was whether the works carried out were genuinely works of development of the permission. In dealing with the third issue, however, Buxton J. referred to the Malvern Hills case and observed that the scheme of the 1971 Act was that existing permissions were not to be kept in abeyance forever without being in some way implemented. The report of the decision continues:

Buxton J. referred to the Pioneer case and to Spackman supra but did not consider that they required him to take any view different from that which he had just indicated. It may be noted that Buxton J. relied in part on the use of the expression "a material operation comprised in the development" which appear in section 56 of the Town & Country Planning Act 1990, but not in the Scottish legislation which is before us.

It appears to us that Buxton J's reasoning, if applied in Scotland, would read too much into the statutory provisions. To satisfy the condition imposed by section 38 or paragraph 15(1) what is necessary is that the development should be begun, and in terms of section 40 a development is taken to be begun when a specified operation begins to be carried out. Those provisions seem to us to focus attention precisely on the physical acts carried out, and to require an objective approach. Buxton J. also gave weight to the proposition that the requirement of a genuine intention can be derived from the purpose of the legislation to limit the duration of old planning permissions. As we have already said, however, it appears to us that while the legislation clearly has that intention, the legislation equally lays down the means by which old planning permissions can be kept in force and that it has done so in an objective way. Further, there is, in our view, nothing in the reasoning in R. v. Arfon D.C. which provides an answer to the substantial objections to any test based on intention.

The last case referred to is Agecrest supra. In that case Collins J. accepted that certain works which had been carried out were sufficient to preserve a planning permission in existence. The position in the Arfon case was, however, that the works which had been done had been carried out with the object of avoiding betterment levy. Collins J. applied the approach indicated by the decision of Willis J. in Spackman and considered whether the works could be said to be colourable but held that neither the works nor the intention of the developer could be so described and accordingly held that the planning permission remained valid. Accordingly, the decision adds nothing to the reasoning of the previous cases. It is, perhaps, only necessary to observe that the approach to the question of intention implied in the decision in Agecrest is, as the comments in the J.P.L indicate, different from that taken in Arfon.

Having considered all the authorities, it is our conclusion that there is nothing in them which compels us to adopt the approach urged on us on behalf of the appellants. It is, no doubt, natural to feel that it would be unsatisfactory if the person entitled to the benefit of a planning permission could keep it in being by carrying out some work which could be regarded as a mere token or pretence. It seems to us however that the solution to that problem, if it is a problem, is more likely to be found by applying an objective approach and considering firstly, whether what has been done has been done in accordance with the relevant planning permission and, secondly, whether it is material, in the sense of not being de minimis. It may be that that is what Eveleigh L.J. had in mind in using the word "colourable" in the passage quoted above. On that approach, the question would be one of fact and degree, as was indicated in the High Peak case. In the present case, however, there was no suggestion that the works done were only token works: indeed, it appears that they were quite substantial. The criticism of the decision was that the reporter misdirected himself in regard to intention. We do not, therefore, require to attempt to define the test to be applied in cases where it is said that some work has been done as a mere token. In our view, as we have indicated, there is no justification in the terms or in the structure of the legislation for the imposition of an ill-defined requirement that the specified operations should be carried out with some particular intention. In our view, the proper test is an objective one, and it cannot be said that the reporter misdirected himself.

The second ground of the appeal can be dealt with very briefly. It was submitted on behalf of the appellants that in order to satisfy section 90A(2) the applicant must show that the works or development authorised by the planning permission would be lawful at the time of the application, if instituted at that time. In the present case, it had been submitted to the reporter that they would not be lawful because the necessary sight lines at the road junction splay could not be achieved without the consent of the owner of part of the land involved and that consent was, plainly, not available. There are, in our view, two short answers to that contention. The first is that, in our view, the word "lawful" looks primarily to the position under the planning legislation. It may well be that unless the developer can achieve the consent of the owner of part of the ground affected by the planning permission he cannot proceed with it in fact but that does not in our view affect the question of lawfulness for the purpose of section 90. The second is that, in our view, the reporter was correct in indicating that the achieving of the necessary sight lines was not a condition precedent to the commencement of any development and that the developer might well be able to secure the necessary consent before the relevant stage.

In the whole circumstances the appellants have not succeeded in showing that the reporter misdirected himself in any respect and the appeal fails.