Scottish Court of Session Decisions

[1] On 17 February 1998 East Lothian Council, as planning authority, issued and served on the appellant under section 127 of the Town and Country Planning (Scotland) Act 1997 ("the Act") an enforcement notice in respect of an area of ground extending to 0.03 hectares or thereby at Spittalrig Farm, near Haddington ("the site"). The breach of planning control alleged was - "The use of the said area of ground has been changed from agricultural to use for the storage and distribution of lime without the benefit of planning permission". The reason for the notice was stated to be -

[2] The appellant was not the owner of the site but had the use of it from an individual who farmed larger subjects known as Spittalrig Farm. There was material to suggest that the appellant leased the site from that farmer, though no written lease was produced.

[3] The appellant appealed under section 130(1) of the Act against the enforcement notice. In a statement in writing relative to that appeal he relied on paragraphs (a), (b), (c) and (d) of section 130(1). The Council submitted a statement in response. By virtue of section 131(4) and Schedule 4 and of the Town and Country Planning (Determination of Appeals by Appointed Persons)(Prescribed Classes) (Scotland) Regulations 1987 that appeal fell to be determined by a person appointed by the Secretary of State for the purpose. The person so appointed was Mr. I.G. Lumsden ("the reporter"). The appeal was disposed of on the basis of written submissions. The parties lodged with the reporter certain materials in support of their respective submissions.

[4] By a decision recorded in a letter dated 7 June 1999 and addressed to the appellant's solicitors the reporter held that the appellant's appeal to the Secretary of State failed on all four grounds. He dismissed the appeal, directed that the enforcement notice be upheld (subject to a minor variation which is not material for present purposes) and refused to grant planning permission for the development to which the notice related.

[5] The appellant has now presented an appeal to this court under section 239 (as read with section 237) of the Act on the ground that the action of the reporter (treated by Schedule 4 paragraph 2(6) as that of the Secretary of State) in dismissing his appeal was not within the powers of the Act. A contention in the Grounds of Appeal based on an alleged failure to comply with relevant requirements was not insisted in. Although paragraph (a) is also referred to in the Grounds of Appeal, the appeal to this court in substance relates only to the reporter's treatment of the appellant's appeal in so far as founded on paragraph (d) of section 130(1), namely, "that, at the date when the notice was issued, no enforcement action could be taken in respect of any breach of planning control which may be constituted by those matters". The matters there referred to are the matters stated in the relative enforcement notice.

[6] Subsections 124(1) and (2) prescribe time limits within which any enforcement action may be brought in respect of breaches of planning control of the kinds referred to in those subsections (neither of which applies to the present circumstances). Section 124(3) provides -

[7] In paragraph 14 of his decision letter the reporter expressed his conclusions on ground (d). After referring to section 124(3) he continued -

Fully to understand this paragraph it is appropriate to notice that in the preceding paragraph (in the course of dealing with ground (c)) the reporter had concluded -

[8] These conclusions were reached by the reporter after consideration inter alia of the submissions made to him by each of the parties. The reporter (in paragraph 5) summarises the relevant part of the Council's submissions as follows -

He summarises (in paragraph 8) the appellant's case as follows -

[9] In the appeal to this court the only challenge to the reporter's conclusions is that he "held that a material change of use of the site, constituting 'development', had occurred within the last 10 years". That conclusion is said to have been in error on three interrelated grounds. As formulated in the Grounds of Appeal these may be summarised as follows -

(1) that there was insufficient factual material available to the reporter for such a finding to have been made,

(2) that the reporter failed

(i) to take into account or

(ii) to give appropriate weight to an affidavit produced by the appellant in support

(3) that the decision reached by the reporter was one which no reasonable reporter could have reached.

[10] In presenting the appeal Mr. Beynon for the appellant submitted first that to justify the conclusion that there had been a material change of use in the ten years prior to issue of the enforcement notice it was necessary that that conclusion be supported by a proper basis in fact (Wordie Property Co. Ltd. v. Secretary of State for Scotland 1984 S.L.T. 345, per Lord President Emslie at pp. 347-8). Mr. Beynon also referred to City of Edinburgh Council v. Secretary of State for Scotland 1998 SC (HL) 33, per Lord Clyde at p. 44. In the present case the reporter had had no such basis. There was no evidence from any planning official put before the reporter. The only potentially relevant material was a document (No. 7/2(h) of process) purporting to contain a statement from the owner of a property in the vicinity of the site. This document provided an inadequate basis for the purported finding of fact in respect that it (i) did not clearly contain a statement in that person's own words, (ii) was not signed by him, (iii) gave no indication that the author was able to distinguish between the use of the site for storage of lime for the agricultural purposes of the surrounding farm and its use for commercial storage and distribution and (iv) was very sparse as to the nature and extent of any commercial activities. A mere increase in activity did not give rise to a material change of use. What was critical was the time at which the use had changed from one ancillary to agricultural purposes to one of commercial purposes. Reference was made to Class 6 in the Schedule to the Town and County Planning (Use Classes)(Scotland) Order 1997. An affidavit sworn by the farmer and submitted to the reporter by the appellant pointed to commercial use having taken place since 1984. There had been no finding by the reporter as to when within the ten years preceding 17 February 1998 any material change of use had occurred.

[11] Mr. Beynon submitted secondly that the reporter had failed to take into account the affidavit sworn by the farmer. Even if he had taken it into account, he had erred in preferring the unsworn document to that affidavit. No reasonable reporter properly addressing the material before him (in particular the affidavit and the statement in the applicant's written submission that he had carried on the business of storage and handling of lime at Spittalrig Farm since 1984) could have reached any other conclusion than that the relevant change of use had occurred more than ten years prior to the issue of the enforcement notice.

[12] Mr. Beynon submitted thirdly that the reporter's decision both in respect of his treatment of the material before him and of his conclusion that breach of planning control had occurred within the ten year period prior to the issue of the enforcement notice, infringed the principle laid down in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223. The reporter had given no intelligible reasons for determining these matters as he had. Mr. Beynon added that the reporter in his conclusions had not addressed the relevant issue, namely, whether the change from agricultural use to use for the storage and distribution of lime had occurred more than ten years prior to the issue of the enforcement notice.

[13] Mr. Ferguson for the respondents moved that the appeal be refused. A material change of use could occur by way of an increase in the intensity of the user; it did not require a change from one use class to another. The onus of proof before the reporter that the relevant breach of planning control had occurred more than ten years earlier rested on the appellant (Nelsovic Ltd. v. Minister of Housing and Local Government [1962] 1 W.L.R. 404, per Widgery J. at p. 408), though it was unnecessary in the circumstances of this appeal to rely on any failure of the appellant to discharge that onus. There clearly had been material before the reporter on which he was entitled to conclude that there had been a material change of use within the ten years prior to the issue of the enforcement notice. This was not a case in which there had been no evidence in support of that conclusion (cf. Ashbridge Investments Ltd. v. Minister of Housing and Local Government [1965] 1 W.L.R. 1320, per Lord Denning M.R. at p. 1326G and per Harman L.J. at p. 1328B). Reference was also made to Coleen Properties Ltd. v. Minister of Housing and Local Government [1971] 1 WLR 433. The weight to be attached to that material was for the reporter, as was the assessment and resolution of any conflict within that material (City of Edinburgh Council v. Secretary of State for Scotland, per Lord Clyde at p. 44C). No special status or value fell to be attached to the material contained in the affidavit by reason of its form. The absence of any relevant entry in the Valuation Roll tended to negative any longstanding change in the use of the site. It was clear that the reporter had taken the affidavit into account, though its content hardly assisted the appellant on the critical matter. The decision reached was well within the powers of the decision-maker and could not validly be faulted on the grounds of Wednesbury unreasonableness or irrationality. Reference was made to Reg. v. Ministry of Defence, ex parte Smith [1996] QB 517, per Bingham M.R. at p. 554, C.C.S.U. v. Minister for the Civil Service [1985] AC 374, per Lord Diplock at p. 410G and Bromley London Borough Council v. Greater London Council [1983] 1 AC 768, per Lord Diplock at pp. 820-1. The Grounds of Appeal did not challenge the reporter's decision on the basis that his conclusions were unintelligible or failed to address the relevant issue.

[14] It is undisputed that the site was at the date of issue of the enforcement notice used for the storage and distribution of lime as a substantial commercial operation. It is also undisputed that no planning consent has ever been obtained for that use. The only issue for determination by this court is whether, for any of the reasons stated in the Grounds of Appeal, the Secretary of State through the reporter acted beyond the powers of the Act in holding that a material change of use of the site, constituting development, had occurred within the ten years prior to 17 February 1998. If he was entitled so to hold, such use was not immune from enforcement action.

[15] In an affidavit sworn in March 1998 by the farmer whose lands encompassed the site it was stated that he had let it to the appellant for the storage and distribution of lime for some fifteen years and that the quantity of lime so stored and distributed had "increased gradually over a long period of time". The affidavit did not attempt to describe the intensity of that activity at the outset or at any later stage in its history. It went on to state that "use of the lime store has actually been reducing for the last 2 years". There was also before the reporter a document which bore to include a statement, apparently prepared in or about December 1997, by a neighbouring resident to the effect that when he bought his property in November 1988 the levels of lime contained in the area were minimal - to an extent, it was suggested, to be expected for usage by the farmer on his surrounding farm. The document goes on to state that it was only in the previous two years that a commercial operation had been in place and to refer to traffic, noise and air pollution associated with haulage operations at the site. The amount of lime stored, it stated, dramatically increased when the haulage company began its operation.

[16] Although Mr. Beynon made certain criticisms of this latter document, the reporter was entitled, in my view, to regard it as, on a fair construction, providing an account by that neighbour of the more recent history of the site and to put such weight on its content as he saw fit. That material supported the proposition that within the ten year period there had been a material change in the nature and intensity of lime storage at the site. That proposition received some support also from the farmer's affidavit, although there were some differences between the farmer and the neighbour as to the scale of activities in more recent times. In so far as there were any material differences, the reporter was entitled to prefer one account over the other. In proceedings before the reporter a sworn affidavit was not, as such, entitled to receive any special weight. The reporter was also entitled to take into account, for what it was worth, the negative evidence constituted by the apparent absence of any entry in the Valuation Roll suggestive of long-term occupation for commercial storage and distribution of lime on a substantial scale. Once it is recognised that the reporter was entitled to treat the material before him in the way described above, the proposition that his decision was inconsistent with Wednesbury principles becomes untenable.

[17] There is no hint in the Grounds of Appeal of any challenge to the reporter's decision on the ground that he addressed the wrong issue. It might have been arguable that the breach to which the enforcement notice related was a change from agricultural use (i.e. use incidental to the purposes of the surrounding farm) to use for the storage and distribution of lime, at whatever level of intensity, to third parties. The breach which the reporter addressed was a breach by reason of an increase in the quantities of lime stored at and distributed from the site and of associated vehicle movements. Although this possible discrepancy was touched on in the course of the discussion before me, it is unnecessary, in the absence of any basis in the Grounds of Appeal, to rule on it. I only observe that it may be that the breach of planning control alleged in the enforcement notice can be construed as implicitly referring to storage and distribution for whatever purpose of such an intensity as to constitute a material change of use. Moreover, it is clear that in its submissions to the reporter the Council relied on intensity of user. So far as appears, the appellant did not, by further written submissions or otherwise, contend that that was an irrelevant or misdirected consideration.

[18] In the whole circumstances this appeal will be refused.