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Cite as: [2002] ScotCS 321

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Russell, Re [2002] ScotCS 321 (20 December 2002)

OUTER HOUSE, COURT OF SESSION

XA18/02

OPINION OF LORD EASSIE

in the Appeal of

JOCK RUSSELL

Appellant;

against

The decision dated 18 December 2001 of the Reporter appointed by the Scottish Ministers respecting a Notice in terms of section 179 of the Town and Country Planning (Scotland) Act 1997 served on the appellant by West Lothian Council

________________

Appellant: Party

First Respondents: Crawford; R Henderson, Scottish Executive

Second Respondents: Wilson; Simpson & Marwick, W.S.

20 December 2002

This is an appeal to the Court of Session under sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997 - "the Act" - against a decision of a Reporter appointed by the Scottish Ministers (the first respondents) to determine an appeal to them under section 180 of the Act by the present appellant against a notice served on the appellant by the local planning authority (the second respondents) under section 179 of the Act.

Section 179(1) of the Act is in these terms:

"(1) If it appears to a planning authority that the amenity of any part of their district, or an adjoining district, is adversely affected by the condition of any land in their district they may serve on the owner, lessee and occupier of the land a notice under this section requiring such steps for abating the adverse effect as may be specified in the notice to be taken within such period as may be so specified."

The remaining sub-sections of section 179 are either procedural or otherwise immaterial to the issues in the present case.

The appellant is the owner and occupier of a property known as "Leyland", 2 Glebe Road, West Calder. It forms part of a larger area formerly in the ownership of his family having been acquired by his family in 1920 and 1932. What is now occupied by the appellant consists of an area of ground fronting onto Glebe Road on which is situated the appellant's house. To the rear of the house lies a garage, measuring 14m in length and 7m in depth, abutting the current rearward boundary wall, of the property. Further to the rear of the appellant's property lie residential properties, separated from the appellant's property by that boundary wall which is a brick wall, approximately 4m in height, and which formed the wall of an industrial building prior to the relatively recent construction of those residential properties. The house is free-standing, being surrounded to its front and both sides by garden ground, described by the Reporter as consisting mainly of neatly maintained grass, and to the rear by an area of unbuilt ground (apart from the garage). The general dimensions of the property, though not rectangular, are given by the Reporter as being 50m x 40m.

On 12 June 2001 the second respondents - West Lothian Council - served a notice under section 179 of the Act upon the appellant. Paragraph 1 of the notice reads as follows:

"THIS IS A FORMAL NOTICE which is served by West Lothian Council as Planning Authority because the Council considers that the amenity of a part of West Lothian is adversely affected by the condition of land in terms of Section 179 of [the Act].

The Council considers that steps are required to abate the adverse affect on amenity as so specified in this Notice. Those steps require to be taken within the period as so specified."

Paragraph 2 of the Notice makes plain that the land affected by the notice extends to the whole of the appellant's property at 2 Glebe Road, namely the house, outbuildings and the curtilage. Paragraph 3 is headed, in bold, "WHAT YOU ARE REQUIRED TO DO" and the text which follows is in these terms:

"In order to abate the adverse affect [sic] on amenity caused by the condition of the land, you are required to undertake the following steps:-

Remove from the land all those articles extant thereon which do not result in the ordinary course of events from a continuing lawful use of the land or from continuing lawful operations carried out thereon.

That is to say, all non roadworthy motor cars, non roadworthy light vans, vehicle parts, vehicle bodies, vehicle trailers, containers, parts of vans and all other non roadworthy heavy good vehicles shall be removed from the site and taken to an authorised site licensed for metal recovery and recycling."

The time for compliance was specified as being four months.

Section 180(1) of the Act sets out the grounds upon which the recipient of such a notice may appeal to the Scottish Ministers. The appellant appealed to the Scottish Ministers and invoked before the Reporter appointed by the Scottish Ministers three of those grounds, namely:

"(a) that neither the amenity of any part of the planning authority's district nor that of any adjoining district has been adversely affected;

(b) that the steps required by the notice to be taken exceed what is necessary to remedy any such adverse effect;

....

(d) that the condition of the land is attributable to, and such as results in the ordinary course of events from, a continuing lawful use of the land or from continuing lawful operations carried out thereon:"

The Reporter reached his decision on the basis of written submissions and a hearing within the premises of the West Calder Community Centre, followed by an accompanied inspection of the appeal site.

In his decision letter of 18 December 2001 the Reporter records his findings of fact respecting the condition of the land in these terms:

"5. The condition of the appeal site at the time of the serving of the section 179 notice, and which was apparently little changed (if at all) at the time of the hearing, is that the major part is occupied by a house erected in 1932, flanked to west, north, and east by a garden area consisting mainly of neatly maintained grass. An area along the back (south) side of the house, measuring about 15m deep by about 40m long, is fully occupied by a large array of stored vehicles and materials, including several cars and car bodies, a furniture lorry, a lorry for carrying horses, a storage container, two very large fork lift trucks, a vehicle trailer, and numerous vehicle parts and other items. Some of these items are stored forward of this rear strip, along the flanks of the house. There are also items in part of the house garden, which apparently comprise the dismantled parts of a commercial vehicle paint spraying booth and ventilation system. The larger vans and containers provide dry storage for numerous further smaller items. The items in the open, many of which have apparently been there for many years, have suffered from exposure and deterioration, and now have the appearance of derelict vehicles and parts.

6. Vehicle bodies and parts are stacked one on top of another in some parts of the site, reaching a height of about 3 metres. This material is easily seen from the surrounding roads and nearby properties across the low wall that encloses the house garden. The viewer does not see all of the material because some is out of sight behind other items, or behind the house. Also largely concealed from view is a long established brick garage, about 14m long by 7m deep, extending alongside the high southern boundary wall. At the time of the site inspection that took place after the hearing, the garage contained more stored vehicles and parts, with a small area at the eastern end (approximately 7m by 3.5m) in use for repair work on a single vehicle."

Having identified that the first issue for his determination in the appeal was whether the condition of the land at the appeal site had an adverse effect on local amenity because of the volume and nature of the materials on the site which the Council sought to remove the Reporter concluded in paragraphs 19 and 20 of his decision letter that the amenity of the area was adversely affected. The material parts of those paragraphs are as follows:

"19. .....the site inspection confirmed that there is a great deal of material stored on the site, both in the open air, in various containers, trailers, and vans, and within the garage building. The material occupies virtually all of the southern part of the site, to the rear of the house, alongside the garage, and adjacent to the road, and also extends up the east side of the house where it encroaches into the garden area. Further material is located in the front garden. The nature of this material is described in paragraph 5 above.

20. A great deal of this material is readily open to public view from the adjacent road, and from nearby houses. It is particularly noticeable because of the variety of the items; the size of some of the items, and the stacking of smaller items; and because of the dismantled or deteriorated condition of some of the items. While initially perhaps of interest and curiosity, especially to a person with knowledge of old vehicles, the overall impression to an uninformed observer is of an unenclosed scrap yard. Despite the 4 letters of support from local residents, I consider that the items are an eyesore. I think that most people who pass along Glebe Road would agree with that view. I therefore find that there is an adverse effect on local amenity. I therefore conclude that the appeal against the notice under subsection (1)(a) of section 180 of the Act fails."

The appellant appeared in person. The grounds of appeal purportedly lodged in terms of Rule of Court 41.19 appeared in the event to be a reproduction of the document put before the Reporter as the appellant's written statement of case. While that document displays an awareness of planning law and a facility with language and legal concepts, its author is, I understood, someone other than the appellant who, in addressing the court, had some difficulty in articulating argument going in advance of what was said in the written statement of case which he adopted.

As best I could glean from the written material and what was said by the appellant, his contention as respects the first issue identified by the Reporter was that in judging whether the amenity of the surrounding land was adversely affected the Reporter had failed to take proper account of the history of the appellant's property, which had previously been used for a haulage business and which had, until relatively recently, been surrounded by non-residential land. For her part, counsel for the Scottish Ministers, whose submission on this branch was adopted by counsel for the planning authority, submitted that what was required by sub-section (1) of section 179 of the Act was simply that there be a link between the condition of the land and the adverse effect on the amenity of the surrounding land. Counsel referred to Britt v Buckinghamshire County Council [1964] 1 Q.B. 77, 85. Whether the amenity of the surrounding land was adversely affected was a matter of fact to be decided by the Reporter. The Reporter was entitled to reach a conclusion based upon what he saw and having regard to his description of the land contained within his decision letter the Reporter had perfectly good grounds for concluding that the amenity was thus adversely affected.

For the reasons advanced by counsel for the respondents I am satisfied that there is no basis upon which it can be said that the Reporter was not entitled to reach the conclusion that the condition of the appellant's land adversely affected the amenity of surrounding parts of the local planning authority's area. In my opinion, the test for service of a notice under section 179 is directed towards the current state of the land and its current effect on amenity, to which the history of the land is not directly pertinent.

Having concluded that the amenity of surrounding areas was thus adversely affected, that the Reporter understandably turned to the third ground of appeal which is arguably precedent to the second. That third ground of appeal related to the issue whether the condition of the land adversely affecting the amenity of surrounding areas was attributable to, and was such as resulted in ordinary course of events from, a continuing lawful use of the land or from continuing lawful operations carried out on the land.

The appellant occupies the property as his home and does not carry on any trading or commercial activity on the property. He does however have as a hobby the restoration and collection of old motor vehicles, which he claimed as being a continuing lawful use. It was not disputed before the Reporter, nor before me, that the hobby of restoring and collecting old motor vehicles was other than a lawful use. It was accepted by the Reporter that the appellant genuinely pursued that hobby, and indeed it was not otherwise suggested by the local planning authority, except as regards the scale, condition and extent of the material on the appellant's property.

It is at this point, I think, that one begins to detect the emergence of certain difficulties. In relation to the issue of continuing lawful use - the second issue identified by the Reporter - the findings of the Reporter are set out principally in paragraphs 21 - 23 of his decision letter which are in these terms:

"21. Turning to the second issue, neither you nor the council suggests that this amount of material is related to the enjoyment of the dwelling house, or that the material is related to a commercial vehicle repair business, or to a business dealing in vehicle parts or scrap. Your agent suggests that there has been no material change of use on the site since 1962. However that is evidently not correct, as the use as a haulage yard, vehicle storage, and vehicle bodywork repairs that commenced in 1962 took place principally in the large shed to the south which has been sold and subsequently demolished. There is no suggestion that either a haulage yard or commercial vehicle repair work continues at the appeal site, nor that the vehicles on the site are a residue of the previous commercial uses that were carried on principally on the land to the south.

22. The use which you state you are continuing is that of restoring old vehicles as a hobby. This is evidently a low key activity, mainly comprising work on one vehicle at a time spread over a period of about two years. This takes place at present in the eastern part of the garage, the remaining indoor area being so filled with stored material that safe working would be precluded. I agree with the council that both the volume and nature of the material that is in the open air, and stored in the trailers and vans, cannot all be part of the restoration activity. At the rate of one vehicle every couple of years, there is no reasonable prospect that most of these vehicles will be restored within the foreseeable future; and their variety is so great that they cannot all be viewed as a legitimate source of spare parts for the restoration activity. I therefore conclude that the continuing vehicle restoration hobby use takes place in only a small part of the appeal site within the garage, and that the material that is open to view is largely unrelated to that continuing activity.

23. Furthermore some of the material at the site is entirely unrelated to the vehicle restoration activity, and some of it is stored in a manner that could not regarded as being in 'the ordinary course of events'. Much of the material is seriously deteriorated because of prolonged exposure to the elements, so that what were once roadworthy stored vehicles capable of use are now virtually derelict scrap, and would require very extensive restoration. These items cannot be regarded as part of a continuing use or operations. The evidence available to me does not allow me to conclude that some other use than hobby vehicle restoration is continuing at the site or to reach any firm conclusion as to the extent of planning status of any other use of the site, except the residential use of the house and garden. I therefore conclude that the appeal against the notice under subsection (1)(d) of section 180 of the Act fails."

It is to be noted that, while finding that the work of restoring cars took place within the garage (which is no doubt understandable) the Reporter does not in terms find that all that is outwith the garage is and must be unrelated to the appellant's hobby. In the quotation of his findings I have italicised the expressions whereby the Reporter implicitly recognises that the lawful activity of a householder whose hobby is the restoration of old motor vehicles cannot be confined to the interior of a garage. Confirmation of that implicit recognition is also to be found in paragraph 27 of the Reporter's decision letter to which I shall refer later. Were the Reporter to have found that the appellant's hobby of restoring motor vehicles must be entirely confined to the interior of the garage his finding would, I apprehend, have been rightly open to attack as being unreasonable in the Wednesbury sense given that, at the least, a householder is generally at liberty to put one or more vehicles in the curtilage of his house, irrespective of the vehicles being technically "roadworthy", and indeed to position a vehicle such as a touring caravan, or a horsebox, within that curtilage, albeit that some neighbours might prefer otherwise.

The appellant did not contend that the Reporter ought to have found any lawful use, additional to his normal domestic occupation, other than his hobby of collecting and restoring old motor vehicles. However, as I understood the appellant, he questioned the suggestion that the only area of his property on which that lawful use might be carried out was within the garage and that items properly relating to that activity could not continue to be kept outwith the garage. In essence, his appeal on the ground of lawful use should not have been dismissed outright.

For their part counsel for the respondents laid emphasis, to varying degrees, on that part of the Reporter's decision letter in which he indicated that the activity of restoring motor vehicles took place within the garage. While recognising, I think, that the Reporter had also found that not all of the material outwith the garage was unrelated to the appellant's hobby, counsel submitted that the extreme quantity of the materials outwith the garage and the derelict condition of some of the vehicles in the open air justified the Reporter's finding that the condition of the land was not attributable to a continuing lawful use. Since the Reporter had in effect found that much, if not most, of the material outside the garage was not related to the appellant's hobby, it followed that the Reporter was justified in finding that the condition of the land was not attributable to the continuing operations of a continuing lawful use.

In my opinion the peculiar circumstances of this case present an issue not specifically contemplated by the legislation, namely that the condition of the land - insofar as adversely affecting amenity - may be in part attributable to a continuing lawful use. In such a case the appeal should, in strict theory, succeed partially on the ground under section 180(1)(b). One way, perhaps the only way, of giving practical effect to a finding of partial success under that ground is to adjust the terms of the notice accordingly. It is therefore convenient to turn to the remaining ground of appeal before the Reporter, namely that the requirements of the notice were excessive, and his treatment of that ground of appeal. The relevant parts of the decision letter are paragraphs 24 to 28 which are in these terms:

"24. Turning now to the appeal under subsection (1)(b) of section 180, that the requirements of the notice go beyond what is necessary, you [the appellant] have proposed a number of remedies to any adverse effect on amenity that might be occurring. The first is that you are in the process of removing some 7 vehicles from the site. While the removal of material would help to improve amenity, the number of vehicles, trailers, etc, on the site outwith the garage is around 30. There is also a lot of other material which contributes to the adverse effect on amenity. I find that most, if not all, of this material must be removed from the site if the adverse effect on local amenity is to be remedied.

25. It has also been suggested that vehicles that could be made roadworthy with minimal effort or which could be towed by roadworthy vehicles should be excluded from the requirements of the notice. It is not clear how many items would come into these categories, nor how long it might take to make them roadworthy. In any event, the trailers make a substantial contribution to the loss of amenity, as does the assemblage of derelict vehicles, irrespective of whether they might be capable of being made roadworthy with a lesser or greater degree of repair. I therefore conclude that these items ought not to be excluded from the requirements of the notice.

26. It has also been suggested that a fence could be erected to screen a reduced number of vehicles from view, the rest being removed from the site or stored within the existing garage. I agree with the council that the volume of material on the site, and the size of some of the individual items, such as the full size lorry trailer, is such that a 2m fence would not provide an effective screen for those passing along the adjacent road or viewing the site from nearby houses, especially from windows in elevated positions. However it might be possible to store a very small quantity of small items behind a fence screening the area directly to south of the house without having an adverse effect on amenity. It would be necessary for any fence that is erected to either come within the category of permitted development or to have planning permission if required; and for any materials that are retained to be incidental to the use of the site for the hobby of vehicle restoration or the enjoyment of the dwelling house, and not to have an adverse effect on amenity. It would be prudent to consult the council on these matters before any fencing is erected or deciding how much material could be retained, if any.

27. A further aspect of the case that requires consideration is the much larger garage that was approved by the planning authority in 1992. It is your intention to use this building to accommodate your most important vehicles and your restoration activities. Clearly it would have been very desirable to construct this building and bring it into use, as it would have both protected your most important items from the weather and concealed them from view. While this may remain your objective, I cannot depend on it as a remedy to the amenity problem as there can be no certainty as to when the building might be ready for use, nor how much material would remain in the open air.

28. On the basis of the conclusions contained in paragraphs 24-27, I find that neither limited removal of vehicles from the site, nor the erection of screen fencing, nor awaiting the completion of the new garage building can be relied upon as effective remedies to the amenity problem that exists. Accordingly, I find that the appeal under subsection (b) of section 180 of the Act fails, and that it is necessary to remove the material from the site on the basis stipulated in the council's notice."

The Reporter therefore endorsed the terms of the planning authority's notice, subject to the deletion of the requirement that on removal the items be taken to a metal recovery and recycling site.

Making allowance for the appellant's evident difficulty in expressing oral argument, I understood his position to be that he contended the requirements of the notice to be excessive given recognition of the legitimacy of his hobby and his willingness to take steps to reduce the perceived effects on amenity and that the Reporter had failed properly to address this issue.

In considering whether the requirements of the notice are excessive it is of course necessary for the Reporter, and this court, to consider its precise terms. The framing of notices of this kind requires some care in draughtsmanship since it is necessary that the addressee know precisely what he must do and at the same time the notice must not be couched in terms which require excessive steps. On one view, the steps required by the notice in this case are plain - but draconian - namely, to quote again; -

"WHAT YOU ARE REQUIRED TO DO

In order to abate the adverse affect [sic] on amenity caused by the condition of the land, you are required to undertake the following steps:-

The notice therefore arguably requires the removal of, say, a set of sparking plugs in a drawer in the garage or even in the appellant's kitchen dresser. This aspect of the excessive terms of the notice was clearly pointed up in the statement of case but is not addressed by the Reporter. Counsel for the respondents submitted that the specific requirements set out in the second of the paragraphs quoted immediately above was qualified by the preceding paragraph, referring to continuing lawful use of the land or continuing lawful operations carried out thereon. In other words, it was submitted that the requirement to remove all non-roadworthy motor cars etc. was subject to some implied exception in the case of non-roadworthy motor cars which were connected with the appellant's hobby. As a matter of the proper construction of the notice I am unable to accept that submission. The second paragraph of the section of the notice in question particularises the generality of the first paragraph and as a matter of ordinary language I do not consider it possible properly to construe that the second paragraph has being subject to an exception in the case of articles stemming from an unspecified lawful use or continuing operations. The notice was accordingly, on any view, not well framed.

Given the Reporter's finding that the appellant was carrying on a lawful use in the shape of the pursuit of his hobby of renovating and collecting old motor vehicles and the Reporter's reaching the view that only some of the material on the site was not related to that activity, it follows not only that the criterion of roadworthiness, adopted in the notice, is plainly inapposite but also, importantly, that a distinction fell to be drawn in the terms of the notice between that which is related to the hobby and that which is not so related. I do not suggest that the selection of another criterion or the drawing of the distinction is an easy one in terms of draughtsmanship. However, the exercise is not attempted by the Reporter. Instead, in paragraphs 24ff of his decision letter he simply addresses the suggested measures and concludes that they would not remedy the adverse effect upon amenity. It appears, indeed, that in concentrating on whether the amenity problem may be remedied by the suggested steps the Reporter largely overlooks the fact that the appellant pursues a lawful activity in restoring and collecting old motor vehicles, which may have adverse effects upon amenity; and which will normally ipso facto involve the presence of non-roadworthy vehicles. I understood counsel for the respondents to accept that section 179 could not operate to correct the adverse effects on amenity of any lawful continuing use. That the Reporter, in considering whether the requirements of the notice were excessive, did not had regard to the need, in proceedings under section 179 of the Act, for the interests of amenity to yield to the interests of the pursuit of a continuing lawful operation is, I think, evident from the terms of paragraph 27 of his decision letter respecting the proposal to construct a much larger garage. Consistent with other passages in his decision letter, the Reporter there acknowledges that there are items - including it appears, some of the most important vehicles - which are part of the appellant's hobby of restoring and collecting vehicles but which are in the open air. But the Reporter yet upholds the requirement for their removal on the apparent basis that unless all is concealed from view within a building the "amenity problem" may not with certainty be removed. Similarly, in the final clause of the penultimate sentence of the preceding paragraph of his decision letter the Reporter, when considering the suggestion of the erection of a fence, hypothetically stipulates not only that the materials retained must be incidental to the use of the site for the hobby but also that they should not have any adverse effect on amenity. The addition of the latter stipulation reveals an error of approach since, if the materials are incidental to the hobby - the lawful use - it is irrelevant that they may have an adverse affect on amenity.

As already mentioned the Reporter upheld the terms of the notice (save for the deletion relating to the taking of the materials to a recycling centre which is not pertinent to the present issues). For the reasons apparent from the terms of this opinion, I have come to the conclusion that the Reporter's decision thus upholding the terms of the notice contains a material misdirection. In omitting to amend the notice, both to correct its original infelicity, but more importantly, to give proper effect to the consequences of his findings in relation to the appellant's carrying on a continuing lawful use, the Reporter fell into an error of a nature which obliges this court to interfere with his decision. The decision must therefore be quashed.

I would add that I reach that conclusion with some sympathy for the Reporter, who was faced with a situation not specifically contemplated by the legislation, namely that the condition of the land giving rise to an adverse effect upon amenity might stem partially from a continuing lawful activity. I am also conscious of the practical drafting challenge presented by the framing of an appropriate amended notice but plainly the right of the owner or occupier of land to carry on his continuing lawful activity is not to be sacrificed or restricted on the ground of convenience to or ease of those facing that drafting task, which task it will now be necessary to perform.