EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Prosser Lord Kirkwood Lord Marnoch |
O/76/17/98
OPINION OF THE COURT
delivered by LORD KIRKWOOD
in
APPEAL
under section 239 of the Town and Country Planning (Scotland) Act 1997
by
BASS TAVERNS LIMITED Appellants;
against
A decision of the Secretary of State for Scotland dated 5 May 1998 and communicated to the Appellants on that date
_______ |
Act: Clancy; Brodies, W.S.
Alt: I. W. Ferguson; R. Henderson
20 August 1999
This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 against a decision of the Secretary of State for Scotland dated 5 May 1998. The appellants are Bass Taverns Limited and on 14 August 1997 they were served with an enforcement notice in terms of section 127 of the 1997 Act. The notice alleged a breach of planning control in respect of intensified use of a garden area of the appellants' premises at 27 Mansionhouse Road, Glasgow as a beer garden. The appellants appealed to the Secretary of State against the enforcement notice on the grounds set out in section 130(1)(a), (b), (c), (d) and (f) of the Act and the Secretary of State appointed a Reporter to determine the appeal. By letter dated 5 May 1998 the Reporter, who had considered written submissions and visited the site, decided to dismiss the appeal. The appeal to this court is concerned only with the grounds set out in section 130(1)(c) and (f) of the Act.
The enforcement notice related to the Boswell Hotel, 27 Mansionhouse Road, Glasgow and the breach of planning control alleged in the notice was the intensified use, without planning permission, of a garden area (previously used on a smaller scale) as a beer garden. The notice stated that the size and scale of the extended use of the "previously incidental beer garden" was seen as not only being a significant intensification of the use, but also as being detrimental to the amenity of the immediate local residents and the area in general in terms of noise and nuisance. The notice required the appellants to reduce the number of external tables to not more than two (each to sit not more than six people) and the time for compliance was stated to be ten days after the notice took effect, namely, on 19 September 1997 unless an appeal was taken against it beforehand.
Section 130(1) of the Act provides inter alia as follows:
"A person on whom an enforcement notice is served or any other person having an interest in the land may, at any time before the date specified in the notice as the date on which it is to take effect, appeal to the Secretary of State against the notice on any of the following grounds -
...
(c) that those matters (if they occurred) do not constitute a breach of planning
control;
...
(f) that the steps required by the notice to be taken, or the activities required
by the notice to cease, 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...".
The factual position was not really in dispute. The appeal site is located approximately four kilometres south of Glasgow city centre in an established, predominantly residential area. It comprises a large category C listed, detached stone villa, set in gardens which contain a number of mature trees and bushes. At the time of the Reporter's site inspection the building was in use as an hotel and restaurant. The east boundary partly adjoins Millbrae Road which is a main distributor road, and then continues around a recent, two-storey terraced development at Boswell Court, which comprises eight retirement flats. The north site boundary also adjoins housing, the nearest of which is approximately ten metres from the site boundary across private gardens. The listed building faces Mansionhouse Road, is two-storeys high and has a large modern two-storey extension on the south gable. The entire site extends to approximately 3,275 square metres and the total built footprint is approximately 540 square metres. Ground within the site falls steeply to Millbrae Road and the site is served by a vehicular access which connects both roads, via a drive across the site, with the car park which is located south of the building. Between the east facing elevation of the building and the boundary with the flats at Boswell Court there is a garden which is approximately 400 square metres and which is used as a beer garden. At the time of the Reporter's site inspection this had been graded and grassed, delineated by larch lap fencing which was approximately two metres high and eleven wooden picnic benches had been set out.
With regard to the ground of appeal contained in section 130(1)(c) of the Act, the appellants submitted to the Reporter that the matters specified in the enforcement notice did not constitute a breach of planning control because the prime, lawful use of the site was unaltered and it encompassed a range of ancillary uses, including external eating and drinking. The garden utilised approximately 400 square metres or 11% of the total site, and the council had produced no evidence to support the claim that there had been any increase in size or intensification of use. The beer garden therefore remained ancillary, bearing in mind the limited potential number of hours per year when it could be used, plus the likely number of patrons and the small percentage of the overall site area which it occupied. The council did not dispute that the beer garden had existed for many years but contended that its use had intensified from about two tables prior to 1994 to the eleven tables which were in use at the date when the enforcement notice was served.
The Reporter's conclusions were set out in paragraphs 17 onwards of the decision letter and her conclusion in relation to ground of appeal (c) is set out in paragraph 18 which is in the following terms:
"As to your client's appeal under ground (c), which is that the matters specified in the enforcement notice do not constitute a breach of control, because the beer garden is ancillary to the main established use as an hotel; it is complimentary (sic) to that use; it utilises a relatively small part of the entire planning unit, i.e. 11%; and it is only used infrequently by a limited number of patrons. I note that the existing building incorporates a mixture of restaurant and public house use with limited bedroom accommodation, and that parties have not disputed that this constitutes a lawful hotel. In addition, I accept that a beer garden can be ancillary and may not require formal planning permission, provided that no material intensification of use has occurred. However, in this case the percentage of the hotel curtilage which now forms the beer garden, amounts to approximately 74% of the footprint of the hotel. Further, although I appreciate the potential irregularity of use, because it takes place outside where it is closer to adjacent housing, the effect of use is likely to be comparatively more intense. I consider therefore that the beer garden is not ancillary, because it has intensified the existing hotel use to a material extent and as a result, it falls within the definition of development in terms of Section 26 of the Act. Planning permission is therefore required and has not been obtained and on that basis, the matters alleged in the enforcement notice do constitute a breach of planning control. The appeal in respect of ground (c) therefore fails".
In their Grounds of Appeal relating to head (c) the appellants stated (1) that the Reporter had erred in law by concluding that any use of part of the appellants' premises as a beer garden was, at the date of the appeal, (a) a development requiring planning permission because it had "intensified the existing hotel use" and (b) was therefore struck at by the enforcement notice and (2) that in considering the appeal the Reporter had erred in law by failing to address or determine the question of what constituted the planning unit for the purposes of the appeal. With regard to ground (f) the appellants contended that the Reporter had to consider whether the action demanded by the enforcement notice exceeded what was necessary to remedy the breach of planning control or any injury to amenity caused by that breach. She had erred in law by approaching this issue from a starting point that any use of part of the premises as a beer garden was a breach of planning control. In the respondent's Answers, it is stated that it was not disputed by the council that the planning unit for the purposes of the appeal was the whole site, i.e. the hotel building and its grounds, and accordingly this was not an issue for determination by the Reporter whose decision proceeded on the basis that the planning unit was the whole site. The respondent contended that the issue for determination by the Reporter was whether there had been a breach of planning control consisting of an intensification of use of the premises sufficient to constitute a material change of use. The Reporter concluded that the increased level of use of the garden ground as a beer garden had intensified the existing hotel use of the premises to a sufficiently material extent to constitute development. This was a matter of fact and degree to be determined by the Reporter in the exercise of her planning judgment and she had not erred in law.
Counsel for the appellants stated that for some years prior to 1994 the garden area had been in use as a beer garden, there being two tables in use there. In the summer of 1994 the number of tables had been increased to eleven. Prior to 1994 there had been planning permission for the use of the garden area as a beer garden with two tables and it had been conceded by the council that at that stage the use of the beer garden had been incidental to the main hotel use. In rejecting the appellants' appeal the Reporter had mistakenly concluded that any use of the premises as a beer garden was a breach of planning control. Further, she had not identified the planning unit which had to be considered for the purposes of section 130(1)(c) of the Act. It was clear that the planning unit was the whole area occupied by the hotel and its grounds. The Reporter had, in effect, stated that the use of the garden area as a beer garden, even with only two tables in use, constituted unauthorised development and was a breach of planning control. When the Reporter had considered the appeal under head (b), (namely, that the matters stated in the notice had not occurred), she had stated that the garden area was used as a beer garden and, on that basis alone, she had concluded that ground of appeal (b) must fail. This showed that she had not appreciated that there was already a valid planning permission for the use of the garden area with two tables as a beer garden. The same error appeared in her reasoning when she considered the appeal under ground (c). Further, in paragraph 26 of the decision letter the Reporter had stated that "to remove the entire beer garden would be unreasonable" and that again showed that she had not appreciated that there had been since before 1994 a valid planning permission for a beer garden with two tables. The proper question for the Reporter to consider was whether the alleged intensification of use constituted a material change of use of the land comprised in the planning unit but this was not a question which she had sought to address. The impression given in the decision letter was that she had selected a different planning unit, namely, the hotel building. Nowhere in the decision letter did she say that she was proceeding on the basis that the planning unit was the whole site. In the circumstances it was clear that the Reporter had wrongly regarded any use of the garden area as a beer garden as being a breach of planning control. In any event, the reasons which she had set out in paragraph 18 for refusing the appeal based on ground (c) were incomprehensible. Counsel referred to Burdle v. Secretary of State for the Environment [1972] 1 W.L.R. 1207 and Wordie Property Co. Ltd. v. Secretary of State for Scotland 1984 S.L.T. 345. With regard to the appeal based on ground (f) counsel submitted that the Reporter had proceeded on the misconception that the enforcement notice struck at any use of the garden ground as a beer garden. Her starting point should have been the planning permission for use as a beer garden with two tables which had existed prior to 1994 but she had apparently not appreciated that that planning permission was in existence. The number of tables could be more than necessary but still not excessive.
Counsel for the respondent submitted that the Reporter had not been shown to have erred in law. The first question for consideration was whether the Reporter had correctly identified the appropriate planning unit. The council had accepted that the planning unit was the whole site, as the appellants had also contended, and it was clear from the terms of the decision letter that the Reporter had correctly proceeded on that basis. In the circumstances of this case the intensification of use of the beer garden had constituted a material change of use and accordingly there had been development in terms of section 26 which required planning permission. Counsel accepted that there could be intensification of use which fell short of a material change of use. He also accepted that if the use of the beer garden was incidental to the primary hotel use of the site, an intensification of use of the beer garden would not constitute development, but it would constitute development if it became a new main use or an identifiable separate use. Counsel submitted that in the circumstances the use of the beer garden was now a separate use although he conceded that the Reporter had not specifically stated that as her conclusion. The intensification of use of the beer garden had been such that the beer garden was no longer incidental to the hotel use. This was a question of fact and degree for the Reporter to determine. Counsel conceded that there was no evidence that the area of garden ground used as a beer garden had increased since it was first used for that purpose some years prior to 1994. At a later stage in his argument counsel submitted that it was not, in fact, necessary for him to point to the intensified use of the beer garden as being a separate use and it would be sufficient if the existing use was now such that it had become part of a composite use of the whole site (Burdle v. Secretary of State for the Environment, supra, at page 1212F-G). The Reporter, in paragraph 18, had implicitly concluded that the intensification of use of the beer garden had constituted a material change of use. The Reporter, in refusing the appeal on ground (c), had not been shown to have erred in law. So far as the appeal on ground (f) was concerned, the Reporter had not begun with the premise that any use of the area of garden ground as a beer garden would constitute a breach of planning control and she had addressed the correct question. On the whole matter the appeal should be refused.
The appellants' first submission to us was that the Reporter had not correctly addressed the question of what constituted the planning unit in this case, both parties agreeing that the planning unit was the whole site. We have given careful consideration to these submissions but, having regard to the terms of the decision letter and, in particular, paragraphs 2, 4, 8 and 9 thereof, we are satisfied that there is no substance in the criticisms which were made of the Reporter's approach on this issue and that she did, in fact, regard the whole site as the planning unit.
We now turn to consider the way in which the Reporter dealt with the appellants' appeal on ground (c). It was stated in the enforcement notice that the alleged breach of planning control was the intensified use, without planning permission, of a garden area at 27 Mansionhouse Road (previously used on a smaller scale) as a beer garden. In paragraph 4 of the notice the council founded on the extended use of the "previously incidental beer garden". It was common ground that the garden area had been used as a beer garden prior to 1994, there being two external tables, and that there was no finding that the size of the beer garden had increased. It was accepted that for some years prior to 1994 the use of the beer garden had been incidental to the main use of the appeal site and was covered by the existing planning permission. It was also conceded by counsel for the respondent that so long as the use of the beer garden was incidental to the main use of the planning unit, the scale of the incidental use could be intensified without there being any material change in the use of the planning unit, which was the whole site. In these circumstances the question arose as to whether the use of the beer garden had intensified to such an extent that that use was no longer incidental to the main use, and had become a separate use or an element of composite use. The Reporter dealt with this issue in paragraph 18 of the decision letter but it is not clear to us that she applied the correct test and, in particular, that she appreciated that a beer garden, on a lesser scale, was already covered by the existing planning permission. In paragraph 17 the Reporter dealt with the appeal under ground (b), namely, that the matters alleged in the enforcement notice had not occurred. The enforcement notice alleged that there had been an intensification of the use of the garden area as a beer garden. However, the Reporter stated (in paragraph 17) that the garden area extending to approximately 400 square metres had been fenced off and used as a beer garden and that on that basis the alleged matter had occurred and the appeal under ground (b) must fail. In our opinion that passage did not indicate an awareness that the beer garden which had already existed for some years was covered by the existing planning permission and appeared to treat the fact that the garden area was being used as a beer garden at all as an intensification of the main use of the planning unit. Further, in paragraph 26 the Reporter stated that "to remove the entire beer garden would be unreasonable" but that was, of course, never an option in the circumstances of this case. In paragraph 18 the Reporter accepted that a beer garden can be ancillary and may not require formal planning permission "provided that no material intensification of use had occurred". However, material intensification of an incidental use would not necessarily result in the use ceasing to be incidental. The Reporter went on to observe that in this case "the percentage of the hotel curtilage which now forms the beer garden amounts to approximately 74% of the footprint of the hotel". But the size of the garden area currently in use as a beer garden is not relevant to the issue of intensification of use, or whether the use of the beer garden had ceased to be incidental to the main use, in the absence of a finding that the area used as a beer garden had, in fact, increased. The Reporter further observed that she considered that the beer garden was not ancillary, because it had intensified the existing hotel use to a material extent and as a result it fell within the definition of development in terms of section 26 of the Act. Counsel for the respondent conceded that the Reporter had not expressly stated whether she had concluded that the use of the beer garden had become a separate use or one of two identifiable uses forming a composite use of the plannin
On a reading of paragraph 18, in the context of the other observations in the decision letter, we do not consider that the Reporter began her examination of the issue of intensification from the proper starting point, namely, that the use of the beer garden which existed on a smaller scale prior to 1994 was covered by the existing planning permission, or that she went on to ask herself the right questions. We are not, of course, in a position to say that the decision which she eventually reached was wrong but in our view the reasoning which she adopted was not clearly expressed and must be regarded as being flawed. In the circumstances we therefore quash the decision of the respondent dated 5 May 1998 on the ground that it is not within the powers of the Act and, that being so, it is not necessary for us to deal with the submissions which were made to us in relation to the appellants' appeal on ground (f).