Scottish Court of Session Decisions

[1] In this appeal under Section 239 of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") the appellant is Mr. S.G. Pearson who owns certain areas of woodland near Aultbea in Wester Ross. In 1998 he applied to the Highland Council for planning permission for the temporary storage of materials in a disused quarry adjacent to the A832 Aultbea-Poolewe road. The Council refused his application and Mr. Pearson appealed. The Chief Reporter, Mr. Hickman, was appointed to determine the appeal. There was no oral hearing but the Reporter made an accompanied inspection of the appeal site and its surroundings before issuing his decision on 16 June 1999. Under the authority delegated to him, Mr. Hickman dismissed the appeal. Mr. Pearson has appealed to this court against that decision.

[2] As is well known to those who are regularly involved in such matters, the scope of any appeal to this court under the 1997 Act is strictly limited. In particular, by virtue of Section 237(3)(b), any decision of the Reporter in an appeal against the refusal of planning permission is not to be questioned in any legal proceedings whatsoever, except as provided by Part XI of the Act. The relevant empowering provision in Part XI is Section 239 but that permits an appeal to the court only in respect of an action on the part of the Scottish Ministers or Reporter where the action is not within the powers of the 1997 Act or where any of the relevant requirements have not been complied with in relation to that action. It is settled beyond all question that these provisions mean that we are concerned only with the legality of the decision-making process and that matters of planning judgment are within the exclusive province of the local planning authority or the Scottish Ministers or their Reporter. It is sufficient to cite the speech of Lord Clyde in City of Edinburgh Council v. Secretary of State for Scotland 1998 SC (HL) 33 at p. 44 B - C referring to earlier authorities.

[3] While the limits which Parliament has placed on our powers are well known to those who deal regularly with such matters, they were not, of course, so well known to Mr. Pearson who has represented himself at all stages of this matter from the lodging of the application for planning permission right through to the hearing of the appeal in this court. So, in addressing us he made submissions which were really concerned with the actual planning merits of the decision reached by the Reporter. As we sought to explain to him, these are not matters for us and we cannot look into them. Under a somewhat vague reference to Section 6 of the Human Rights Act 1998, Mr. Pearson sought to suggest that in this respect our powers had now been extended beyond the limits enshrined in the 1997 Act but we are satisfied that that submission is wholly without substance.

[4] From what he told us and from the relevant papers, it appears that some years ago Mr. Pearson purchased certain areas of woodland which he wishes to develop. For that purpose he wants to construct an access road to his main plantation. While that is going on, he wishes to store the necessary materials on the appeal site. The Reporter records what he observed at the time of his site visit in June 1999:

Since Mr. Pearson lives in Birmingham and can therefore not work at Aultbea all the time, the construction of the access road is likely to take some time. So, while he is seeking only a temporary permission for storing the materials, in the hearing before us he estimated that the necessary works might take up to about five years to complete. Some materials would therefore have to be stored on the site for roughly that period.

[5] As emerges from paragraph 6 of the decision letter, the Council refused planning permission for two reasons: first, the access to the public road was dangerous because of substandard visibility and it was not feasible to improve this due to road alignment; secondly, the use of the old quarry for general storage and siting of a caravan was not in the interests of amenity due to the roadside location in a National Scenic Area. In the light of the submissions made to him and the site inspection, the Reporter considered that the determining issues in the appeal were:

Both of these issues were, of course, issues of planning policy and, as such, a matter for the Reporter and not for this court.

[6] Despite this, Mr. Pearson sought to present arguments on both these matters. For instance, he commented that the increase in the traffic on the road which gave rise to any difficulties was itself a result of the policies adopted by the Council and their failure to manage the traffic properly. If the access was dangerous, this was because the Council had allowed the road to be widened and had failed to put up road signs. Since Mr. Pearson could, however, do no more than argue that the Reporter had given insufficient weight to these matters and had not assessed the factors appropriately, his attack raised nothing but issues of planning policy and was therefore irrelevant. So far as the amenity aspects were concerned, Mr. Pearson argued that what had prompted the Council to refuse planning permission was objections from persons whom he described as "a few local residents in powerful positions". The bulk of the materials, which were being used in connexion with the development of the woodlands, would be removed from the site. Any unsightliness was relatively minor and would not in any event be permanent. The materials had to be stored somewhere and the site was appropriate for the purpose, even if it could be seen from the road. Again, these issues were in reality all matters of planning judgment and, as such, for the Reporter and not for us.

[7] We mention only one point which was not in fact raised by Mr. Pearson directly but which emerged when the court was considering the terms of the decision letter. In the passage which we have quoted in paragraph 5 of this Opinion, the Reporter defines the amenity issue as being whether the appellant's requirement for storage facilities or the former use of the site to give access to the plantation justified a temporary consent for the proposed use. He concludes (paragraph 18) that the matters raised by Mr. Pearson

That conclusion is based on the Reporter's finding that the use of the dangerous access is "unnecessary" and that the visual intrusion in a national scenic area is "unnecessary". That conclusion is in its turn based on an earlier passage in paragraph 16 of the letter where he says:

The Reporter in effect rejects Mr. Pearson's argument for storing the materials on the appeal site by saying that it would be preferable for them to be stored adjacent to the shed which Mr. Pearson intends to erect within the larger of his two plantations. But, as the closing words of the paragraph acknowledge, the materials could be stored there only if the Council granted Mr. Pearson any consent which might be necessary. The possible need for a consent for storage of the materials on the plantation - which is, of course, not a matter focused in the present proceedings - introduces an element of uncertainty into the basis upon which the Reporter reaches his decision that development on the appeal site is "unnecessary" and that permission for it should, accordingly, be refused.

[8] We are satisfied that, in taking account of the possible storage of materials within the plantation, the Reporter did not err in law and was acting within his powers. If he had overlooked the fact that any storage within the plantation might require some consent from the local authority, about which he had heard no evidence, then he might perhaps have fallen into error. But here he was alive to the possible need for such consent and took it into account. Moreover, as the terms of the relevant paragraph in the decision letter show, Mr. Pearson did not argue to the Reporter that consent for any such storage would not be forthcoming. His argument seems to have been, rather, that the materials would be in the way - a point which the Reporter rejects. Before us, Mr. Pearson argued that the access to that plantation was in reality no better than the access to the appeal site - but, again, he did not suggest that any necessary consent would be withheld and it is perhaps significant that he clearly anticipates being able to construct the shed within the plantation. In these circumstances it was, in our view, appropriate for the Reporter, when reaching his decision, to take account of the possibility of storing the necessary materials near the shed. That possibility was something which he was entitled to consider when coming to the conclusion that he should refuse permission for the development on the appeal site on the basis that it had undesirable features and had not been shown to be necessary.

[9] For these reasons we are satisfied that Mr. Pearson's appeal against the Reporter's decision falls to be refused.