Scottish Court of Session Decisions

[1] The petitioners carry on open cast mining at a site at Blindwells, Tranent, in terms of a grant of planning permission dated 23 July 1997. A number of Conditions were attached to the planning permission. The respondents are the relevant planning authority. On 1 February 2000, they served two separate Breach of Condition Notices on the petitioners, on the basis that the petitioners were in breach of Condition 31 and Condition 32. The petitioners' position is that each of these Notices was ultra vires, and should be reduced.

[2] Where planning permission for carrying out any development has been granted subject to conditions, section 145 of the Town & Country Planning (Scotland) Act 1997 applies. In terms of section 145(2), the planning authority may "if any of the conditions is not complied with" serve a breach of condition notice on any person who is carrying out or has carried out the development, requiring him to secure compliance with such conditions as are specified in the notice. The two Notices with which this petition is concerned were issued in reliance upon section 145(2). In relation to each Notice, issues arise as to whether, as a matter of fact, the condition in question has or has not been complied with. At this stage, however, it is not necessary to consider those issues of fact. The question which I am asked to determine, in relation to each Notice, is whether, without enquiry into the facts, the Notice can be seen to be ultra vires.

[3] I deal first with the Notice which alleges breach of Condition 31. Condition 31 is in the following terms:-

The Notice, at paragraph 4, asserts that this Condition has not been complied with, and goes on to say that the details submitted in terms of the final sentence of Condition 31 are set out in a Schedule annexed and executed as relative to the Notice.

[4] It was not disputed that what is contained in the Schedule is indeed a document setting out details of the monitoring equipment and programme, submitted by the petitioners to the respondents, and approved by the respondents shortly after the grant of permission in 1997. The document sets out various matters under the headings of "Instrumentation", "Records" and "Management", and concludes with a final heading "General". Under that heading, paragraph (a) provides that "Should the Planning Authority be of the opinion that Conditions 26 or 27... have been breached... SCCL and the Planning Authority will undertake a joint survey in order to ascertain noise levels emanating from the site." It is provided that the specified sound level meter or equivalent "will be jointly manned at all times during the survey and details of all noise events will be recorded".

[5] The breach of Condition 31 which is relied upon by the respondents is not perhaps as clearly identified as one might wish. But putting the matter shortly, the respondents' position as revealed by the Notice is that the planning authority were of opinion that Condition 26 had been breached, and that paragraph General (a) therefore applied, so that the company and the planning authority would undertake a joint survey of the kind there specified. The Notice asserts that one of the company's officials attended certain noise level readings, but was present for only a 20 minute period "and so a Joint Survey could not be undertaken". The failure to fulfil this specific requirement of the agreed programme was therefore a breach of the requirement of Condition 31, constantly to operate and maintain that programme.

[6] On behalf of the petitioners, it was not disputed that a breach of Condition 31 could arise in the event of there being a breach of specific obligations created by the detailed programme dealt with by the last sentence of the Condition. It was accepted that the document set out in the Schedule was a document produced by the petitioners themselves, in fulfilment of their obligation under Condition 31 to submit details of the monitoring equipment and programme, including the parameters necessary to demonstrate compliance with Conditions 26 and 27. The submission that the Notice was ultra vires was essentially a short one: despite the fact that the document had been submitted by the petitioners, and approved by the respondents, as the required statement of the details of the monitoring equipment and programme, what was contained in paragraph General (a) was something quite different, and could not be read as being "details of the monitoring equipment and programme" of the kind envisaged in the final sentence of Condition 31. General (a) was not laying down any kind of programme. It was providing for something quite different - an ad hoc obligation, arising when the planning authority reached a particular view on a particular occasion, quite distinct from any general "programme" or systematic "monitoring", which was the subject matter of Condition 31.

[7] I am not persuaded that there is any real force in this argument. Seen in isolation, the joint survey required by paragraph General (a) plainly arises ad hoc, when the planning authority come to be of the opinion that Condition 26 or 27 has been breached. But having regard to the fact that the programme required by Condition 31 is a general programme, put in place at the outset of the development, it appears to me that while some elements of the programme and the monitoring, may be specifically identified in advance, and without regard to particular circumstances, it is unsurprising if the programme of monitoring also envisages specific circumstances in which specific checks or surveys are to be carried out. I am satisfied that paragraph General (a) is a part of the programme, and that the alleged breach of its requirements would constitute a breach of Condition 31. In these circumstances, I am not prepared at this stage to sustain the petitioners' plea to the effect that the respondents acted ultra vires in issuing this notice.

[8] I turn to the other Notice, concerning Condition 32. Condition 32 is in the following terms:

The Notice narrates certain complaints, and states that these were brought to the attention of an official of the company on 14 January 2000. It is then said that the company's officials

[9] As counsel for the respondents put it, it is of no significance whether the company in fact carried out any investigation - they had not carried out what was required by Condition 32, which was "an investigation in consultation with the planning authority". Similarly, even if necessary remedial measures had been initiated, no such measures had been agreed with the planning authority as required by the Condition. These failures, of consultation and agreement, were breaches of the Condition.

[10] The submission advanced on behalf of the petitioners that this Notice was ultra vires does not turn upon the way in which the breach is described in the Notice. It is based upon the terms of section 145(5) of the 1997 Act. That provision is in the following terms:

Paragraph (5) of the present Notice is headed "What you are required to do". It is in the following terms:

[11] Counsel for the petitioners submitted that in terms of Section 145(5), a Breach of Condition Notice had to "specify" certain "steps" which the authority considered ought to be taken, to secure compliance with the relevant condition. If the Notice did not specify such steps, it was not a valid notice. The matter was important, as in terms of section 145(8) the company would be in breach of the Notice if "the steps specified in the Notice" had not been taken within the required period, and if in breach of the Notice, would be guilty of a criminal offence in terms of section 145(9). Paragraph 5 of the Notice purported to specify steps, but instead of specifying actual steps which if taken would secure compliance with Condition 32, the paragraph, both at Head 1 and at Head 2 simply echoed the requirement of the Condition without specifying any steps which might be a means to securing compliance with it. The petitioners thus had no notice of what was expected of them in practical terms, and correspondingly no way of knowing whether any particular course of action would or would not constitute a failure to take steps and a criminal offence.

[12] Counsel for the respondents emphasised the difficulty which would face a local authority, in trying to formulate a notice which would meet the requirements of section 145(5), if all that was really required was a simple act of compliance, or if there was a choice of possible courses of action, any one of which would produce compliance with the Condition. I have some sympathy with local authorities in such a situation. Nonetheless, I think it is clear that section 145(5) is concerned with actual, factual steps, which the local authority identify as bringing about compliance of a condition. And I do not think that the formulation adopted in this Notice, calling upon the respondents to comply with the stated Condition by "ensuring" that its terms are met, is appropriate, or consistent with section 145(5). The use of the word "ensuring" focuses upon the result to be achieved, rather than the means of achieving it. Without much change of language, there could be a direct requirement to do certain things, whether in relation to the actual complaints or in the future, in given circumstances. It was suggested by counsel for the respondents that as expressed, paragraph (5) was essentially demanding that the petitioners put a system in place which would lead to consultation, investigation, agreement and the like. I am not persuaded that the paragraph can be so read. Given that an offence results from failure to take steps, it seems to me that steps must be very clearly specified. I am not persuaded that this paragraph achieves this and I hold this Notice to be ultra vires. I sustain the petitioners' third plea-in-law, and grant declarator and reduction accordingly.

[13] I should mention briefly a contention advanced on behalf of the petitioners that in relation to the Condition 31 Notice, and perhaps the Condition 32 Notice, there might be a possible invalidity flowing from a need to install equipment in, or enter upon, private property to which the petitioners would have no right of access. In the document prepared by them for the purposes of the last sentence of Condition 31, the petitioners note the need for other owners' agreement, and a possible need for alternative sites. On the material before me I am not satisfied that either the Conditions or the Notices, require anything of the petitioners which they would not be in a position to carry out.

[14] Having regard to the possible need for factual enquiry, parties were agreed that the case should be put out By Order at this stage, to determine future procedure.