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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Kingarth
Lord Eassie
Lord Marnoch
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[2008] CSIH 21
XA126/05
OPINION OF THE COURT
delivered by LORD KINGARTH
in
APPEAL
under section 239 of the Town and County Planning (Scotland) Act 1997
by
SIGURDUR ARTHUR BENNETT
Appellant;
against
MICHAEL GORDON
First Respondent;
and
MRS SUSAN GORDON
Second Respondent;
and
THE SCOTTISH MINISTERS
Third Respondents:
_______
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Act: Clancy, Q.C.; Gillespie MacAndrew, W.S.
Alt: Crawford; Office of the Solicitor to the Scottish
Executive (Third Respondents)
Non participating parties:
First and Second Respondents:
Maclay Murray & Spens
4 March 2008
[1] This is an
appeal under section 239(1)(b) of the Town and Country Planning (Scotland)
Act 1997 ("the Act") against a decision of a Reporter appointed by the third
respondents, dated 26 October 2005, in which the Reporter upheld an appeal by
the first and second respondents against an enforcement notice which had been served
on them by the City of Edinburgh Council ("the Council") in respect of property
at No.1 Royal Circus, Edinburgh ("the property").
[2] The property,
which was purchased by the first and second respondents in 1992, comprises a
large townhouse on three storeys with an internally accessible basement
flat. It is situated in the New Town of
Edinburgh, a predominantly residential area.
[3] On
8 February 2005 the Council served on the first and second respondents an
enforcement notice relating to the property, on the basis that it appeared to
them that there had been a breach of planning control within the meaning of
section 123(1)(a) of the Act. In
terms of section 128(1)(a) of the Act the Council required to state in
such a notice the matters which appeared to them to constitute a breach of
planning control. This was alleged to be
"Without planning permission, the material change of use ... from dwellinghouse
to entertainment venue". Under the
heading of "Reasons For This Notice" it was stated:
"It appears to the Council that the
above breach of planning control has occurred within the last ten years. The use of the premises as a principal
residence has ceased and it is now available for hire for as short a period as twenty
four hours for the purpose of holding parties or other similar
events. Noise from the events held in
the premises caused by the party-goers and music has been heard in the street
outside and in neighbouring properties, and disturbance is experienced by
neighbours in the late evening and early morning caused by revellers leaving
the premises and being collected by taxis and courtesy buses. This has an adverse effect on the residential
amenity of the immediate neighbourhood.
As the use of the premises as an entertainment venue gives rise to
increased levels of traffic and activity to the detriment of residential
amenity, the unauthorised use is contrary to Central Edinburgh Local Plan
Policy H11. The location of this
unauthorised commercial leisure use in a predominantly residential area is
contrary to Policy L4 of the Central Edinburgh Local Plan and consequently
contrary to Policy ED5. ... The Council does not consider that planning
permission should be granted for this use of these premises."
The notice required the first and second respondents to cease
the use of the property as an entertainment venue within two months of its
effective date, being 24 March 2005, unless an appeal was taken before
that date.
[4] Prior to the
effective date the first and second respondents appealed against the notice
under section 130(1) of the Act on a number of grounds. The only ground relevant for the present
purposes is that under section 130(1)(b), namely that the matters stated
in the notice, and which it was contended constituted a breach of planning
control, had not occurred. A reporter
was appointed by the third respondents to determine the appeal. On 30 and 31 August 2005 he conducted a public local inquiry
in relation to the appeal. He also
carried out a site visit and considered written submissions. The first and second respondents were legally
represented, and evidence in person was given by the first respondent. Evidence was also led on behalf of the
Council, who were also legally represented.
The present appellant, who is a resident in adjoining property, was also
represented and gave evidence in person.
His position was supportive of the enforcement notice. In support of that position he lodged inter alia a report by inquiry agents
instructed on his behalf, to which we shall later refer in more detail. Other neighbours made written representations
in support of the enforcement notice.
[5] The Reporter
decided that the first and second respondents' appeal against the enforcement
notice succeeded under section 130(1)(b) and that it was thus unnecessary
to consider the other grounds of appeal.
The reasons for his decision ("Conclusions ...") are to be found set out
in paragraphs 33 to 38 of the decision letter dated 26 October 2005,
as follows:
"33. The
breach of planning control alleged by the notice is that the use of the appeal
premises had changed from a dwellinghouse to an entertainment venue. I take that to mean from a Class 9
'House' use, as defined in the Town and Country Planning (Use Classes)
(Scotland) Order 1997, to a use, which is not defined in any of the classes of
use within the order, as premises where some form, or forms, of entertainment
is, or are, provided. I consider that
the notice's description of the alleged change of use indicates that the use of
the premises as a house had ceased entirely, or to the extent that it remained
only minimal, or incidental or ancillary to the use as an entertainment
venue. It does not allege some form of
composite use, comprising both use as a house where people live together as a
family, and use as an entertainment venue.
This is consistent with the council's reasons for taking enforcement
action, as stated in the notice itself.
34. From
the evidence before me, including the conversation recorded by private investigators,
the promotional and advertising material, and the oral and written evidence given
to the inquiry, I am satisfied that, starting in the summer of 2003, your
clients had in mind the potential for various forms of commercial letting of
the appeal premises. These included its
letting as a house, whether or not on a self-catering basis; as bed and breakfast accommodation; but also as a venue for holding a range of
functions and events, which could broadly be described as forms of
entertainment, including receptions, parties, dinners and weddings. This was reflected in a variety of publicity
and advertising material.
35. However,
planning enforcement requires to be directed at what has occurred, rather than
what is contemplated. On a number of
occasions in the following eighteen months, the premises were used for a
variety of these purposes, but I accept your client's evidence that on most of
those occasions, these uses were incidental to the use of the property as a
house by your clients and their family or friends. I find that on only four occasions were the
premises used as an entertainment venue separate from its use as a house, two
of which occurred during the 2003 Edinburgh Festival. I find that this scale of use, on four
evenings over a period exceeding eighteen months, does not constitute a
material change of use to an entertainment venue.
36. Despite
the understandable suspicions of some of your clients' neighbours, I accept
that these were all private functions, and were not attended by paying guests
or open to members of the public. I am
also satisfied that the evidence of your neighbours regarding disturbance
arising from comings and goings at late hours, and from music at the premises,
related not only to these events, but also to your clients' own personal and
social life within their house at other times.
37. I
accept Mr Bennett's evidence that he had not seen members of your clients'
family coming and going over this period.
However I do not find that inconsistent with Mr Gordon's evidence
of his family's continued, but limited, use of the premises as a house, in
conjunction with their other nearby house;
or with Mrs Henry's evidence of a diminishing level of use of the
house by them. Neither the limited
provision of bed and breakfast accommodation, nor the occasional letting of the
house on a self-catering or serviced basis, is inconsistent with its continued
use as a Class 9 "House". The
valuation board's classification of the property as a self catering unit does
not support the planning authority's contention that its use had changed from a
house to an entertainment venue.
38. For
these reasons, I conclude that the matters alleged in the notice have not
occurred, as the use of the property as a house, or dwellinghouse, has continued,
and any separate use as an entertainment venue which did occur was minimal, and
did not constitute a material change of use."
[6] In
paragraph 39 the Reporter dealt with a subsidiary matter which had been
raised before him relating to the possible amendment of the enforcement notice,
as follows:
"While I would be empowered to
correct any defect in the notice, this should be done only where it would not
cause injustice either to your clients or to the planning authority. The council has suggested that the
description of the alleged breach could be altered to define it as a change to
a composite use of the premises, both as a house and as an entertainment
venue. I agree that this would not be a
source of injustice to your clients, in the sense that it would narrow the
extent of the alleged breach, however it would represent a fundamental change
from the basis on which the council resolved to instigate enforcement action
against your client, and which I have concluded was ill-founded. However, given the minimal extent to which I
have found that the property was used as an entertainment venue separate from
its use as a Class 9 "House", I do not consider that the suggested alteration
to the description of the alleged breach of planning control would be justified. In addition, the council has not considered
whether it would grant planning permission for such a composite use."
[7] The appellant
has appealed to this court against the Reporter's decision under
section 239(1)(b) of the Act. That
section, so far as relevant, provides:
"(1) If
any person -
...
(b) is aggrieved by any action on the part
of the Secretary of State to which this section applies and wishes to question
the validity of that action on the grounds -
(i) that the action is not within the powers
of this Act, or
(ii) that any of the relevant requirements
have not been complied with in relation to that action,
he may make an application to the
Court of Session under this section."
The decision in question was an action on the part of the
Secretary of State within the meaning of section 239 by virtue of
subsection (4) thereof and section 237(3)(d). The relevant requirements within the meaning
of section 239 included any applicable statutory rules or regulations
(subsection (9)). The Town and Country
Planning Appeals (Determination by
Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997 applied to the appeal
before the Reporter. By
Regulation 22 thereof, the appointed person was required inter alia to notify his reasons in
writing to the appellant, the planning authority and to any person who having
appeared or been represented at the inquiry had asked to be notified of the
decision.
[8] Mr Clancy,
Q.C., appeared for the appellant, as he had done at the inquiry. Although a number of specific arguments were
presented, he stressed that the central ground of complaint was the inadequacy
of the reasons given, in particular (but not only) arising out of the inquiry
agents' report presented on behalf of the appellant. This report, and in particular the appendix
containing a transcript of a conversation between an inquiry agent and the
first respondent on 11 December 2004, contained, it was submitted,
evidence plainly supportive of the claims made in the enforcement notice. Under cross-examination the first respondent
had agreed not only that the transcript was an accurate record, but that what
he had said was true.
[9] As to the
specific arguments, in the first place the Reporter had erred in a number of
respects in paragraph 35 of the decision letter. In relation to the four identified events, he
did not make any findings or otherwise give any indication as to which events
(other than the two during the 2003 Edinburgh Festival) he had in mind, what those
events involved or on what basis they were organised. In particular he did not make any findings or
give any indication as to what he meant by use as an entertainment venue
separate from use as a house. He did not
explain how he reached his findings (a) in the face of the substantial body of
conflicting evidence from the appellant and from neighbours, he not having
criticised that evidence nor having explained why he did not accept it and (b)
in the face of detailed criticisms of the credibility and reliability of the first respondent's evidence. It was apparent that he had not wholly
accepted the evidence of the first respondent, whose position is recorded in
paragraph 22 as having been that there had been only one occasion on which
the property had been used for an entertainment event separate from its use as
a house, in addition to the two events in August 2003. Above all he did not refer at all at this
point to the inquiry agents' report. The
only reference to that report at paragraph 34 appeared to be a complete
misreading of the import of what had been said.
He accordingly failed to give proper and adequate reasons for a finding
in fact which was at the heart of his decision.
Reference was made to Wordie
Property Co Ltd v Secretary of State
for Scotland 1984 S.L.T. 345 and Morrison v J Kelly & Sons Ltd 1970 S.C. 65.
[10] Secondly, the
Reporter erred in a number of respects in relation to paragraph 37. He failed to make findings about the nature
or extent of the limited use of the premises as a family home. In this respect too he failed properly to
explain how he reached his finding in the face of conflicting evidence (in
particular the transcript appended to the inquiry agents' report) and in the
face of detailed criticisms of the credibility and reliability of the first
respondent. Once more he accordingly
failed to give proper and adequate reasons for a finding which was at the heart
of his decision. A subsidiary and
related criticism was that the Reporter had unreasonably refused to allow late
lodging of certain documentary material relating to another house owned by the
first and second respondents at 17b Circus Lane, Edinburgh, and made no mention
of the appellant's challenge in cross-examination of the first respondent's
evidence about the size of that property and its suitability for use as a
family home.
[11] Thirdly, the
Reporter erred in confining his consideration of the appeal to events which had
already occurred, thereby excluding events which were in contemplation. Reference in particular was made to the first
sentence of paragraph 35. The
Council was entitled in serving the notice to take account of the first and
second respondents' promotion and marketing of the premises as an entertainment
venue as reliable evidence of material change of use.
[12] Lastly, Mr Clancy
submitted that esto the enforcement
notice was defective in respect of its failure to describe the breach of
planning control as a material change of use from use as a dwellinghouse to a
composite use as a dwellinghouse and an entertainment venue, the Reporter erred
in his failure to exercise his discretion to allow that defect to be cured by
amendment. In particular he erred in
this regard having concluded that an amendment of this sort would not be a
source of injustice to the first and second respondents.
[13] For the avoidance
of doubt we record that Mr Clancy did not, as we understood him, seek to
insist on a number of specific arguments set out in the written appeal, in
particular grounds 3(5) and (6), 4(4), 5(1), (2), (3)(a) and (4).
[14] In conclusion,
Mr Clancy's submission was that the decision should be quashed and the
appeal against the enforcement notice remitted for decision by a newly
appointed reporter. It was important
that any new decision should be seen to be free of any risk, actual or
perceived, of ex post facto
rationalisation, not least where the Reporter had been present during the
appeal to the Court of Session, and where the ultimate question for resolution
was so closely bound up with questions of credibility and reliability.
[15] The first and
second respondents were not represented before this court, being content, it
seemed, to rely on arguments in support of the Reporter's decision presented by
Miss Crawford on behalf of the third respondents. She argued that the Reporter had adequately
dealt with the issues he required to decide.
In giving reasons he did not need to address each and every issue
raised. He required only to address the
substantial points and to indicate what conclusions he had reached on the
principal controversial issues. There
was no need for elaboration. Reference was
made to Wordie Property Company Ltd v
Secretary of State for Scotland, City of
Edinburgh Council v Secretary of
State for Scotland 1998 SC (HL) 33, South
Buckinghamshire County Council v Porter
(No.2) 2004 1 WLR 1953 and Moray
Council v The Scottish Ministers
2006 CSIH 41. The Reporter had
correctly identified the important issue at paragraph 33, namely whether
use of the premises as a house had ceased entirely, or to the extent that it
remained only minimal or incidental or ancillary to its use as an entertainment
venue. The extent to which the first and
second respondents continued to live in the house and the number and type of
events held could be said to be peripheral, though relevant, to that primary
issue. In a case such as this it was a
matter of circumstance and degree how far a reporter required to go in
explaining why one body of evidence was preferred to another, but the sort of
detail expected of a judge after proof was not required. As to the inquiry agents' report, although
the Reporter had no specific recollection of this, the third respondents could
not dispute the contention that the first respondent had agreed that what he
had said was true. The transcript,
however, was consistent with the first respondent simply having provided a
"puff" for potential use of the property.
The Reporter was right to exclude future potential change of use from
his consideration. The enforcement
provisions were concerned with breaches of planning control which had occurred
(and which continued) and not with anticipated breaches. Reference was made to sections 123,
127(1)(a), 128(3) and section 130(4) of the Act. Rule 12 of the Regulations required
lodging of documents four weeks before the inquiry, and the Reporter's decision
not to allow material relating to Circus Place to be lodged was entirely within his
discretion. He had no need to refer to
any specific cross-examination relating to that address. The Reporter's decision not to allow
amendment of the enforcement notice as recorded at paragraph 39 was
entirely justified. In relation to the
last sentence of that paragraph, Regulation 6(1)(b) of the Enforcement of
Control (No.2) (Scotland) Regulations 1992 required the planning authority to
state whether it would be prepared to grant planning permission for the changed
use alleged.
[16] Although both
counsel were agreed that the principal issue for determination by the Reporter
was correctly summarised at paragraph 33 of the decision letter, it is
clear that central to the decision as a whole was (a) his conclusion at
paragraph 35 that save on only four occasions in an eighteen month period
- which he regarded as minimal - the property was not used as an entertainment
venue separate from its use as a house and (b) his finding at paragraph 37
that the first and second respondents and their family continued (albeit in a
limited way) to use the property as a house.
In short, the Reporter's decision on these two matters was critical to
his determination of whether the matters said to have constituted breach of
planning control had occurred. On the
evidence before the Reporter there was a clear factual dispute in relation to
both. In essence the evidence of the
first respondent pointed one way; the
written and oral evidence of the Council, the appellant and certain other local
residents appeared to point to the other.
[17] It would, of
course, be quite wrong to expect a decision of this kind to be expressed with the
precision and detail expected of a judge after proof, and we do not find the
observations made in Morrison v J Kelly & Sons Ltd to be of much
assistance in the present context.
Miss Crawford quite rightly stressed, on the basis of well-known
authority, that what is required of reasons in a context like the present is
that the main issues be clearly dealt with.
There is no need to refer to every material consideration. As she herself accepted, however, much
depends on the circumstances, and on the significance and type of issues which
require to be resolved. If there is a
significant divergence between important pieces of evidence which it is
necessary to resolve, a reporter could ordinarily be expected, it was accepted,
to explain why he has chosen to resolve that divergence in a particular way.
[18] But for the
existence of the evidence of the inquiry agents' report (and subject to another
important qualification to which we shall return) we would be inclined to think
that the reasons given in this case, though not lengthy or detailed, could be
described as adequate. In making his
decision the Reporter explained that his finding was that on only four
occasions had the property been used as an entertainment venue separate from
its use as a house and that the first and second respondents and their family
continued with use, albeit limited, of the property as a house. It is, moreover, reasonably apparent that in
making these findings the Reporter broadly accepted (although apparently not in
every particular - cf the first respondent's contentions described at
paragraph 22) the evidence of the first respondent (see paragraphs 35
and 37) and preferred it to the evidence of the appellant and other residents (see
paragraphs 36 and 37). Further, the
basis for that preference is, it seems reasonably clear, the Reporter's view being
that much of the evidence of neighbours was based on impression derived from external
observation and without detailed knowledge of what was going on (see paragraphs 36
and 37). Further, the Reporter could not,
we think, be said to have had any obligation to refer to that particular piece
of cross-examination of the first respondent which related to 17b Circus Lane (and the earlier decision to refuse
to allow late lodging of related materials was, in our view, entirely within
his discretion).
[19] The existence
of the inquiry agents' report, however, puts the matter in a very different
light. This report, prepared by
Messrs Grant and McMurtrie, was instructed by the appellant. It contained, as an appendix, a transcript of
a long conversation between an inquiry agent - who on 11 December
2003 posed
as a person seeking to hire the premises for a formal party event - and the
first respondent. We have read this
transcript with some care, and it is clear that a number of significant
inferences could readily be drawn. In
the first place, it appears to us that the most obvious - although, agreeing
with Miss Crawford, perhaps not the only - inference, is that the first and
second respondents no longer used the property as their home (see e.g.
page 2 and page 4); that the
property was available for hire as an entertainment venue on a commercial
basis, in particular available to be let to third parties for short periods for
the purpose of holding parties, at a charge of £750 for a 24 hour period
(see e.g. page 5) (the latter consistent, as it happens, with certain
information contained in an Evening News article of 17 December 2004 which
was before the Reporter but not mentioned by him); that these short-term lets were necessary
because matters had "to be couched in terms of planning laws" (see page 3); that the venue had already hosted many such
parties (certainly more than two after August 2003), often with "celebs"; that there was to be another one that evening
(see e.g. page 1); and that the
diary was beginning to fill up for such events in the New Year (see e.g.
page 9). According to the inquiry
agent the first respondent provided him, prior to departure, with a postcard
which indicated that the premises were available for events, receptions, house
parties, cocktail parties, birthday parties etc. In the second place, we consider that on no
reasonable view could it be said that the only reasonable inference from the
transcript is that the first and second respondents had in mind some
contemplated, potential future use of the property in these ways. Instead, quite apart from the reference to
past use, the first respondent's apparent position that the property was
available for such use, and that it was being advertised on that basis, is in
our view capable of being regarded as strong evidence of the present use of the
property, however successful such promotion may or may not have been.
[20] It was, of
course, for the Reporter to decide what to make of the inquiry agents' report,
but, in our view, it was, on any view, highly significant evidence. It was in a totally different category from
that provided by the neighbours themselves, being evidence coming, as it were,
from inside the house itself. In our
view it was readily capable of being regarded not merely as contradictory in
important respects of the findings apparently made by the Reporter but also as
in large measure destructive of the first respondent's evidence if given in
accordance with his precognition, as we were led to understand it was. In short, it gave rise to a significant and
critical issue for determination by the Reporter. It could not reasonably be ignored or brushed
aside. Against that background, there is
no mention at all of what the Reporter made of it in paragraph 35 or 37 in
respect of the two main findings which he made.
It is true that it is earlier referred to in connection with evidence of
apparent contemplated use for the future (at paragraph 34). It is also true that at least in part it
could be taken to refer to expectations for the future, and, agreeing with
Miss Crawford, the Reporter cannot, in our view, be said to have erred in
proceeding on the basis that planning enforcement required to be directed to what
had occurred (and was continuing) rather than to what was contemplated. But, as discussed above, on no reasonable
reading could the inquiry agents' report be said to relate only to contemplated,
potential future use of the property.
The result is that - whether arising from a misreading of it or not - significant
parts of it which do, on any view, apparently relate to past and present use
are not referred to at all at any point in the decision.
[21] In addition to
that, it is not, in our view, made clear in paragraph 35 what the Reporter
meant when he described the four events as being use of the property as an
entertainment venue separate from its use as a house. In particular it is not clear whether he
excluded from that category occasions when property was let to third parties
for a short period of 24 hours or so for the purpose of hosting parties or
other events. This form of use was the
basis of the service of the enforcement notice as explained in the Reasons (as
well as featuring heavily in the transcript of the inquiry agents'
report). It would, of course, be for the
Reporter to decide, but prima facie it
appears to us that any such use of the property as a house could readily be
regarded as incidental only to its use as an entertainment venue. Perhaps the most obvious reading of paragraph
35 is that the Reporter himself accepted that (despite what appears to have
been argued on behalf of the first and second respondents, at least if no use
was made of overnight accommodation - see e.g. paragraphs 22 and 23), but
in our view that is not made sufficiently clear, in particular when regard is
had to paragraph 37.
[22] In the
respects discussed above the Reporter can, in our view, be said to have failed
in his duty to give reasons, and the appellant must be taken to be substantially
prejudiced thereby.
[23] We would only
add, for completeness, that we are not persuaded that the Reporter could be
said to have erred in the exercise of his discretion to refuse the proposed
amendment to the enforcement notice - not least having regard to the
consideration that the Council had not considered whether it would grant
planning permission for the relevant composite use. An appeal against an enforcement notice is deemed
to be an application for planning permission in respect of the matters stated
in the notice as constituting a breach of planning control (section 133(7)
of the Act). The Reporter in any event made
it clear that on the basis of his findings such an amendment would have made no
difference and the appellant does not now seek to challenge these findings as
perverse.
[24] For the
reasons already given, however, we shall, under and in terms of
section 239(5)(b) of the Act, quash the decision. It is uncertain, having regard to that
provision, whether it is open to us to direct that the appeal should be
re-heard before a newly appointed Reporter, but for the reasons given by
Mr Clancy our clear view is that it should be. As we understood it, Miss Crawford's
position was that any such expression of view would be fully respected.
