Scottish Court of Session Decisions

Weir, Re Decision by an Inquiry Reporter [2003] ScotCS 97 (2 April 2003)

OUTER HOUSE, COURT OF SESSION
XA180/01	OPINION OF M.G. THOMSON, Q.C. (Sitting as a Temporary Judge) in Appeal to the Court of Session under Sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997 by GORDON WEIR Appellant; against A decision of John H. Henderson, an Inquiry Reporter appointed by the Scottish Ministers ________________

Appellant: Party

Respondent: Crawford; R. Henderson

2 April 2003

1. This is an appeal under Sections 237 and 239 of the Town and Country Planning (Scotland) Act 1997 by Mr Gordon Weir ("the appellant") against a decision of Mr John Henderson, an inquiry reporter appointed by the Scottish Ministers, who are the respondents.
2. The appellant had applied to Argyll & Bute Council ("the council") for planning permission for change of use from a store to a holiday home in respect of a painted building on land east of Cloberfield Cottage, St. Catherine's, Argyll. The appeal was refused by the council and the appellant appealed to the Scottish Ministers under Section 47 of the 1997 Act. The appeal proceeded by way of written submissions. The reporter carried out an accompanied site inspection, in the course of which he took five photographs of the appeal building and its immediate surroundings, including the nearby junction with the A815 road.
3. In his decision letter, the reporter described the building which was the subject of the appeal as "a large Nissan Hut". It is clearly shown in two of the photographs. He described the site of the building and its relationship to adjoining buildings, including dwellinghouses and an hotel, and to an unsurfaced private roadway providing access from the appeal site to the nearby A815 road. These surroundings are shown in the other three photographs.
4. The reporter then set out in full the council's reasons for refusing the appellant's application, before summarising the appeal submissions by the appellant and the council and the original objections received from three nearby residents. He then concluded:

"14. Section 25 of the Act requires the determination of this case to be made in accordance with the provisions of the development plan unless material considerations indicate otherwise. I have not been made aware of any relevant provisions of the structure plan, but the first reason for refusal refers to local plan policy BE9, and I also consider local plan policy HO9 to be relevant. That policy requires any new development in the 'sensitive' settlement of St. Catherine's to be restricted to certain areas - in one of which the appeal site is located. Important material considerations include the council's non-statutory policy on septic tanks and the implications for public safety and residential amenity. From my inspection of the appeal site and my reading of the written submissions, I believe that the issues to be determined are whether the proposal is consistent with development plan policy and, if not, whether an exception to the provisions of the plan is justified by other material considerations.

15. I have already indicated that the appeal site is within an area where residential accommodation is considered appropriate in terms of policy HO9. However, my site inspection confirmed the accuracy of the failings identified in the first reason for refusal - poor layout, alien design, harsh and discordant materials, insufficient private amenity space, out of keeping with and not conducive to the immediate character of the area. For these reasons, I find that the proposal does not comply with policy BE9, and therefore that it is not consistent with development plan policy.

16. Turning to look at other material considerations, I accept that implementation of the appeal proposal would provide you with relatively cheap holiday accommodation in a most attractive part of the country. On the question of water supply and drainage, I have conflicting information, and would not be surprised if it was possible to overcome the problems described by local residents and referred to in the reasons for refusal. On the other hand, I have severe misgivings on 2 matters in particular. First, it would be quite unreasonable to require that bedroom and living room windows should be of frosted glass, and yet without it there would be quite unacceptable overlooking of "Cloberfield Cottage" and its garden. Second, visibility with the main road to the west is particularly bad to the south, and it is not within your power to improve it by demolishing a building within the sightline. I appreciate that the access is already used by 5 dwellinghouses and by patrons of the Ferry Inn, but I think that it would be irresponsible to sanction another development which has the potential for increasing the risk of accidents at this junction.

17. Overall, I conclude that the appeal property is not suited to residential occupation (even as merely a holiday home), that your proposal is contrary to the provisions of the local plan, and that there are no material considerations that would permit an approval contrary to those provisions. I have taken account of all the other matters raised but find none that outweigh the considerations on which my decision is based. Accordingly, in exercise of the powers delegated to me I therefore dismiss your appeal and refuse to grant planning permission for the development described in para. 1 above."

5. The appellant, who conducted his appeal in person, had previously lodged a document entitled "Grounds of Appeal of Conversion of Building to a Holiday Home" which bore to be under "Rule 41" and had attached to it a copy of the decision letter. It contained five grounds. The first was a statement that the "lawyer" who sold him the building, was with the same "lawyer firm" who had sold properties to "three couples" at about the same time as the appellant had purchased the appeal site. He made no attempt to develop that statement as a ground of appeal. The other four grounds of appeal were statements of objection to his original application made by the council and by individual objectors and his answers thereto. None of these so-called grounds of appeal challenged the reporter's reasoning or decision.
6. At the hearing of the appeal, the appellant's principal complaint appeared to be that it was wrong that he should not be allowed to use his property and that the only purpose for which he wished to use it was as a holiday home. His grievances appeared to be directed against the council rather than against the reporter. For example, he thought that the council had been wrong to cite unreasonable proximity to an existing septic tank as a reason for refusal of his application, although this had not formed part of the reporter's reasons for refusing his appeal. His other main grievances were that the junction with the A815 was already congested so that one more car from the appeal site would not make any difference, and that the council had granted planning permission for the erection of two new houses nearby, although they had refused his change of use application. The reporter had accepted the council's evidence that one of the sightlines at the junction was substantially substandard so that any increase in traffic would increase the risk of an accident. The other two houses which had been built did not require to use the same access point to the A815. The appellant made no attempt to challenge the reasoning of the reporter other than to conclude, by inference, that he was wrong.
7. Miss Crawford, advocate, who appeared for the respondents, moved that the appeal should be refused under reference to the familiar dicta of Lord President Emslie in Wordie Property Co Ltd v Secretary of State for Scotland, 1984 SLT 345 at 347-8, on the circumstances in which a decision of this nature may be challenged as ultra vires, and of Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland, 1998 S.C.(H.L.) 33 at 43G-H and 44G-45B, on the correct approach to the decision making process in light now of Section 25 of the 1997 Act. According to Miss Crawford the reporter had correctly approached the decision making process. He had first considered the relevant policies of the development plan and had found that the appellant's proposal was contrary to the development plan. He had then considered the other material considerations and had found them to be either neutral or also contrary to the proposal.
8. I am satisfied that, for the reasons advanced by Miss Crawford, the reporter correctly approached the decision making task and that he was fully entitled to reach the decision that he did. While the appellant has a variety of grievances, none of them was relevantly focused to challenge the reporter's decision or his justification for reaching that decision. Accordingly, I refuse this appeal.