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Cite as: [2005] ScotCS CSIH_15, [2005] CSIH 15

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William Tracey Ltd, Re An Appeal Against a Decision [2005] ScotCS CSIH_15 (04 February 2005)

SECOND DIVISION, INNER HOUSE, COURT OF SESSION

Lord Justice Clerk

Lord Kirkwood

Lord Clarke

[2005CSIH15]

XA121/03

OPINION OF THE COURT

delivered by

THE LORD JUSTICE CLERK

APPEAL

under the Town and Country Planning (Scotland) Act 1997, ss 237 and 239

WILLIAM TRACEY LIMITED

against

A Decision of a Reporter dated 2 September 2003

_______

For the appellant: Connal QC, Solicitor Advocate; McGrigor Donald

For the Scottish Ministers: Crawford; H.F. Macdiarmid, Solicitor for the Scottish Ministers

For Renfrewshire Council: Brodie; Simpson & Marwick

4 February 2005

Introduction

[1] This is an appeal against a decision dated 2 September 2003 of Mr I G Lumsden, an inquiry Reporter, by which he dismissed two appeals by the appellant against the refusal by Renfrewshire Council (the planning authority) to issue certificates of lawful use or development in relation to a site known as Fordbank House, Beith Road, Johnstone.

[2] The site lies to the south west of Johnstone in countryside on the north side of the B787 almost on the edge of the existing built-up area. It extends to 2.86 ha. It comprises the site of the former Fordbank House and its policy grounds.

[3] Fordbank House was a private residence until some time during the Second World War when it came into the hands of the Government and became a maternity home. In 1949 it was acquired by the former Renfrewshire County Council. The Council kept it in use as a maternity home until some time in the early 1960s. It then became a residential home for the elderly. In March 1978 the successor authority, the former Strathclyde Regional Council, brought that use to an end and thereafter used the building as a residential home for the homeless. It continued in that use until the Regional Council closed it on 7 October 1994.

[4] The appellant acquired the site in October 1995. Thereafter the building was left vacant. It suffered several fires and other incidents of vandalism. In late September or early October 1996, on the advice of the fire brigade, the appellant had the building demolished. The only traces of it are the outlines of the foundation walls at ground level and an area of tiled floor from the former kitchen or scullery area, together with the remains of garden paths and walls and the main driveway.

[5] On 16 August 2002 the appellant applied to the planning authority under section 150 of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) for two certificates of lawful existing use or development. The first application was for a certificate in relation to existing use as a nursing home falling within Class 8 (Residential Institutions) of the Town and Country Planning (Use Classes) (Scotland) Order 1997. The second application was for a certificate in relation to existing use as a residential dwellinghouse falling within Class 9 (Houses). On 11 October 2002 the planning authority issued notices of refusal of the applications.

[6] The relevant provisions of the current development plan are those of the Renfrew District Plan in terms of which the site is in designated green belt and is therefore one in which "no new development is normally permitted" (Policy E1). It is similarly affected by the emerging Renfrewshire Local Plan; hence the importance to the appellant of obtaining a section 150 certificate.

[7] Since this appeal raises the question of the appellant's intentions in relation to the site in the period between the demolition and the applications for the certificates, we should mention at this stage that during that period certain development proposals for the site were raised with the planning authority. By letter to the Director of Planning dated 21 April 1997, Sir Albert McQuarrie and Associates Limited, property development consultants and estate agents, intimated that they had a client who was interested in developing the former house and grounds with a replacement nursing home and sheltered housing coupled with a number of private dwellings. The number was not specified. The letter also mentioned the idea that a small number of private dwellings could assist the viability of the development. In a letter to the Head of Planning dated 26 July 1997 the same consultants intimated that the owner of the subjects wished to rebuild the demolished building from the ground floor upwards as a reinstatement caused by the vandalism. The purpose of that rebuilding was not stated; but the letter referred to the fact that the sale documents published by the former Regional Council had stated that the property offered scope for a variety of uses, including a hotel or some form of residential accommodation, subject to the necessary consents.

[8] During that period, neither the appellant nor the current owner of the site, Thorn Developments Limited, an associated company, submitted a planning application for any form of development on the site. This may be because during that period the planning authority began to prepare a new local plan. In any event, in about July 2002 the appellant submitted an objection to the Consultative Draft Renfrewshire Local Plan on the basis that the site should be excluded from the green belt and identified as a site for housing development. In September 2002 the appellant submitted an objection to the Finalised Renfrewshire Local Plan on the basis that the site should be excluded from the green belt and that Fordbank House should be allocated for housing and nursing home uses. This objection referred inter alia to the need for further land releases in both the short and longer term to meet the Structure Plan housing requirement in the area. These matters were referred to by the planning authority in support of a submission to the Reporter that there was no clear evidence of intent to use the property for either a nursing home or housing (Decision Letter, para 17).

The legislation
[9] Section 150 of the 1997 Act provides inter alia as follows:

"150.-(1) If any person wishes to ascertain whether -

any existing use of buildings or other land is lawful ...

he may make an application for the purpose to the planning authority specifying the land and describing the use, operations or other matter ...

If, on an application under this section, the planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application ...

(6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed ... "

The issue in the appeal
[10] This appeal is brought against the decision of the Reporter in its entirety; but, not surprisingly, it has been pursued in relation to the first application only.

[11] The Reporter considered that the determining issue was whether use of the site as a nursing home was lawful at the date on which the certificate was applied for. It is not disputed that the building was in use as a residential institution until October 1994. Counsel for the respondents accept that that use was lawful. The question for the Reporter was whether the right to that use had at the material date been lost through abandonment or extinguishment. He found against the appellant on both points. The solicitor advocate for the appellant has not pursued the appeal on the extinguishment point. So abandonment of use as a residential institution is the only remaining issue.

[12] In reaching his decision on that issue, the Reporter considered that the relevant factors were (i) the physical condition of the building; (ii) the period of non-use of the property; (iii) whether there had been any other use in the intervening period; and (iv) evidence regarding the owner's intentions (para 22). He did not accept the submission that the intentions of the owner were necessarily decisive (para 23).

[13] The Reporter rejected a submission that the building had been only partly demolished. He found on the facts that there had been complete demolition. He concluded that significant weight should be given to this factor (para 29). He considered it significant that the building had not been in use as a nursing home, or any other form of residential institution, since October 1994 and that the cleared site had been unused since October 1996. He accepted that the site had not been in any other use since the closure of the residential home and the demolition of the building. He considered that although this could be construed as being consistent with the continuation of the previous use, it was equally supportive of the view that the previous use had been abandoned (para 30).

[14] On the question of the owner's intention, the Reporter considered on the evidence that:

" ... the property was purchased with the view that the appeal site could be redeveloped for a number of uses, including the possibility that Fordbank House could be re-used as a nursing home. Following demolition of the building, I believe that the owners of the site have expressed an intention to see the site redeveloped and that the possibility of re-instating the former building as a nursing home is one of the potential uses that has been considered. Although no formal steps have been taken by the owners towards realising a development on the site, on balance, I believe that as part of an overall redevelopment of the site the possibility of some form of nursing home use on the land has not been completely discounted" (para 31).

The Reporter's overall conclusion was this:

"Drawing these matters together, I consider that the use of the land on which Fordbank House previously stood as a nursing home relied upon the presence of the former building. In terms of its physical condition, the building has been demolished and I consider that this is a strong indication that the previous use has been abandoned. In my view, significant weight should be attached to the condition of the building in this case. Furthermore, the site has lain vacant and unused for a period in excess of 61/2 years. While there has been no intervening use of the site during that period I am not persuaded that this is necessarily supportive of the case that the previous use has not been abandoned. I appreciate that the owners of the property may not have intended this outcome or given up an intention to re-instate some form of nursing home on the site as part of an overall redevelopment scheme. However, I do not believe that in this instance the evidence of the owner's intention outweighs the consideration of the physical condition of the building in terms of whether the use has been abandoned. Having considered all 4 factors I do not consider that in this case the stated intentions of the owner can be the determinative factor in considering whether or not the site has been abandoned. Therefore, taking account of all the available evidence, I find that the use of the site as a nursing home has not merely been temporarily suspended but that it has been abandoned" (para 32).

Submissions for the parties
[15] The solicitor advocate for the appellant submitted that the Reporter had approached the facts without a proper understanding of the legal tests by which abandonment was to be judged and had left a material fact out of account. He had correctly identified the relevant factors, but had failed properly to apply them. The intention of the owner to reinstate the use of the site for a nursing home should have been considered first as the factor of prime importance. The state of the site said nothing about the intention of the owner (Hartley v Minister of Housing and Local Government, [1970] 1 QB 413, Widgery LJ at p 421). A reasonable onlooker might conclude from the state of the site that the former use had been abandoned, but would reach the opposite conclusion if he knew of the owner's firm intention to resume it (Hall's Exrs v Lichfield District Council, 12 February 1979, Griffiths J, unreported (noted in [1979] JPL 425); Hughes v Secretary of State for the Environment, [2000] 1 PLR 76). In Hughes v Secretary of State for the Environment (supra) it was held that intention was not always determinative of the question; but in that case Kennedy LJ, having given an example of abandonment, said

"Contrast the situation where, for example, there has been a fire and the owner is simply getting together the means to replace the dwelling over a limited period of time or to restore it to its former glory. The objective observer in the latter situation, not knowing of the owner's intentions, might temporarily conclude that the use of the property as a residence had been abandoned, where, in reality, it had not, because the intention factor would be determinative the other way" (ibid, at p 82D).

Therefore in a case where the subjects had been destroyed through no fault of the owner, the intention to resume the use should be the decisive consideration. The intention of the appellant to resume the use of the site for a nursing home was made clear in the letters by the appellant's consultants, in its objections to the draft Local Plan, and in the section 150 application itself.

[16] The Reporter had also failed to consider why the site came to be in its present condition and in that respect had failed to take a material factor into account. He had inferred abandonment from the mere appearance of the site (para 29). The absence of any intervening use was not a neutral consideration (para 30). It pointed strongly against abandonment. His conclusion that the appellant had considered the possibility of reinstating a nursing home on the site as one of the potential uses (para 31) could mean only that there was no intention to abandon that use. The Reporter had made the demolition of the house the determining factor (para 32) in the face of the case law on the point.

[17] Counsel for the Scottish Ministers, whose submissions were adopted on behalf of the planning authority, submitted that the Reporter had asked himself the right question, namely whether there was an existing lawful use or whether any such use had been lost by abandonment (paras 20, 22). That was an issue of fact, to be decided objectively from the perspective of the reasonable man with knowledge of all the circumstances (Hartley v Minister of Housing and Local Government, supra; Hughes v Secretary of State for the Environment, supra). Intention alone was not the paramount consideration. It could be outweighed by other factors, even if it were clearly proved (Trustees of Castell-y-Mynach Estate v Secretary of State for Wales, [1985] JPL 40). It was for the Reporter to decide what weight to give to each of the four factors that he identified. It was not an error of law to decide that intention should yield in this case to other factors. The appellant's intentions were in any event equivocal (para 31).

Decision

[18] In our opinion, there is no merit in this appeal. The question of abandonment of an existing use is pre-eminently one of fact (Hartley v Minister of Housing and Local Government, supra). The factors by which the question is to be judged were correctly identified by the Reporter. As he rightly recognised (para 23), the weight to be given to each factor in a particular case is a matter for the judgment of the decision maker. The Reporter brought to the task his own planning experience and skill. He considered that the state of the site in the aftermath of the demolition was a factor that should be given significant weight (para 29). He considered it significant too that the building had not been in any form of use as a residential institution since October 1994 and that the cleared site had been unused since October 1996 (para 30). He considered that the lack of any other intervening use was a neutral factor (ibid). He considered that the stated intentions of the owner (para 31) were not in the circumstances determinative of the question (para 32). Taking all four factors into account he held that the appropriate conclusion was that the former use had been abandoned. We cannot fault the Reporter's reasoning.

[19] On the other hand, we consider that the submission for the appellant is based on a mistaken view of the law. The stated intention of the owner to resume the use in question is not of itself determinative (Hughes v Secretary of State for the Environment, supra), even where the existence of that intention is clearly proved (ibid; cf Trustees of Castell-y-Mynach Estate v Secretary of State for Wales, supra). An owner's stated intention may be self-serving, or it may not be a true reflection of his mind. An intention sincerely held may nonetheless be unrealistic or incapable of fulfilment. That is why intention should be judged objectively from the standpoint of the reasonable onlooker and in conjunction with the other factors to which we have referred. If that were not the case, a decision on the subjective intention would be all that was required (Hughes v Secretary of State for the Environment, supra, Mance LJ at p 82H).

[20] Although the state of the site is not determinative either, it may, on its own or in combination with another factor such as prolonged non-use, be of greater significance than intention in the circumstances of the case. The dictum of Kennedy LJ (supra), on which the whole submission for the appellant appeared to us to rest, is no more than an illustration of circumstances in which the condition of the site cannot be regarded as decisive in the absence of fuller knowledge of the background. The solicitor advocate for the appellant misunderstood it, in our view, in suggesting to us that it establishes a principle that whenever the stated intention of the owner and the appearance of the site appear to be at odds, the intention of the owner is decisive.

[21] In any event, the submission for the appellant proceeds on the assumption that the appellant demonstrated an intention to resume the use of the site for a purpose within Class 8. There was, however, no evidence that the appellant ever evinced an unequivocal intention to reinstate the use of the site for a nursing home. On the contrary, there was a doubt about the firmness of its intentions from the outset. The site had been marketed as a development opportunity, and after acquiring it the appellant did not attempt to resume its former use. Instead, the appellant left the building vacant until it had deteriorated to the point where a demolition warrant was granted. It is clear from the Reporter's findings (para 31), and from the correspondence and objections to which we have referred, that if the appellant had an intention to resume the former use, that intention was never more than conditional on the grant of planning permission for an overall development of the site involving housing.

[22] Moreover, even if we disregard that aspect of the appellant's intention, it is difficult to see how the appellant can be said to have retained a firm intention to resume a use within Class 8 when it simultaneously applied for a certificate of lawful use as a residential dwellinghouse within Class 9.

[23] For these reasons, we shall refuse the appeal.