SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Carloway Lord Philip	[2009] CSIH 27 XA127/08 OPINION OF THE LORD JUSTICE CLERK   in the appeal under Section 239 of the Town and Country Planning (Scotland) Act 1997   by   VATTENFALL WIND POWER LIMITED Appellant;   against   a Decision of the Scottish Ministers dated 9 July 2008 _______________

For the appellant: MG Thomson QC, McConnell; Thorntons Law LLP

For the Scottish Ministers: Duncan; Scottish Government Legal Directorate

 

25 March 2009

Introduction

[1] On 10 April 2003 the appellant applied to Scottish Borders Council (the planning authority) for planning permission for the erection of twelve wind turbines and related developments at Minch Moor, Walkerburn, Peebleshire. On 6 June 2008 the appellant appealed to the respondents against the failure of the planning authority to determine the application. By letter dated 12 June 2008 the respondents notified the appellant that it appeared to them that the appeal was out of time. By letter dated 9 July 2008 they declined, for that reason, to entertain it. That is the decision appealed against.

 

The statutory framework

[2] Section 47(1) of the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) provides that where the planning authority has refused a planning application, the applicant may appeal to the Scottish Ministers against the refusal. Section 47(2) provides inter alia as follows:

"A person who has made [a planning] application may also appeal to the Secretary of State if the planning authority have not given to the applicant -

(a) notice of their decision on the application ...

within such period as may be prescribed by regulations or a development order or within such extended period as may at any time be agreed upon in writing between the applicant and the authority."

 

Article 14(2) of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (SI No 224 (the 1992 Order)) provides inter alia that when a planning authority has received a planning application,

"the period within which the authority shall give notice to an applicant of their decision or determination or referral of the application to the Secretary of State or regional planning authority shall be two months commencing on the date of receipt of the application, or (except where the applicant has already given notice of appeal to the Secretary of State) such extended period as may be agreed upon in writing between the applicant and the planning authority."

 

The Environmental Impact Assessment (Scotland) Regulations 1999 (SSI No 1 (the 1999 Regulations)) applied in this case. The appellant submitted an environmental statement along with the planning application. Therefore the time limit for a decision by the planning authority was four months from the date of receipt of the application and not two (1992 Order, art 14(4), added by the 1999 Regs, reg 45(2)).

[3] Article 23(2) of the 1992 Order provides that

"The notice of appeal shall be lodged -

(a) within six months of the notice of the decision or determination;

(b) within six months of the expiry of the appropriate period allowed under article 14(2)."

 

The facts
[4] By August 2007, the planning authority was already four years and two months beyond the date by which it should have determined the application. By letter to the planning authority dated 16 August 2007 the appellant's planning adviser, Nigel Moore, made the following proposal:

"A formal agreed timescale for determination will help all parties interested in the future of this application and it will bring a degree of certainty to proceeding. On this basis I would like to extend the time available for your Council to determine this application until the end of November 2007. I would appreciate your written acknowledgement to this letter within 14 days confirming your Council's agreement to the extended period."

 

Thereafter Mr Moore and the planning authority's development control officer, Mr Alistair Lorimer, discussed the matter by telephone and agreed that the planning authority should be granted an extension to 31 December 2007. On 31 October 2007 Mr Lorimer wrote to Mr Moore as follows:

"I refer to your letter dated 16 August and to our subsequent telephone conversation in respect of the above.

Based on our telephone discussion, I can confirm that this authority agrees to an extension of time until 31 December 2007."

 

The issue
[5] The appellant contends that the planning authority was given a valid extension of time to 31 December 2007 for the making of its decision; that the six months period within which the appellant could appeal to the respondents against a failure by the planning authority to determine the application ran until 30 June 2008, and that the appeal submitted on 6 June 2008 was therefore timeous.

[6] The case for the appellant rests on three propositions: (1) that even when the time specified in article 14(2) or (4) of the 1992 Order for the making of a decision on a planning application has passed, the planning authority remains obliged to make a decision on the application; (2) that so long as the appellant does not appeal to the Scottish Ministers against a deemed refusal of the application within the six months period laid down in article 23(2) of the 1992 Order, the obligation of the planning authority to make a decision continues indefinitely; and (3) that the power of the applicant and the planning authority to agree upon an extension of the time within which the planning authority must make a decision can be exercised "at any time," an expression that is to be construed literally.

[7] Counsel for the appellant submitted that the consequence of these propositions was that although the appellant lost its right of appeal against a deemed refusal when the six months period under article 23(2) ran out, the subsequently agreed extension to 31 December 2007 obliged the planning authority to make a decision on the application before that date and, when the planning authority failed to do so, there was a deemed refusal under section 47(2) of the 1997 Act against which the appellant had a right to appeal in terms of article 23(2)(b) of the 1992 Order.

[8] Counsel for the respondents accepted that where the statutory period for determination of an application expires, and the applicant does not appeal against a deemed refusal, the planning authority's duty to deal with the application continues. He also conceded that where the applicant does not appeal against a deemed refusal, the applicant and the planning authority may validly agree, within the six months period for the lodging of an appeal, to extend the time within which the authority may make a decision on the application. However, he contended that, whether or not the authority's duty to deal with the application continues indefinitely, the applicant cannot appeal to the respondents after the six months period has expired. If the applicant fails to appeal timeously, he must either await the uncertain day when, if ever, the planning authority makes a decision on the application, or submit a fresh planning application and thereby re-start the statutory timetable.

 

Conclusions
[9] In my opinion, this appeal fails. When an applicant submits a planning application, he has certain rights in relation to the planning authority and certain separate rights in relation to the Scottish Ministers. In relation to the planning authority, the applicant has the right to a decision within the statutory period; that is to say, the period prescribed under section 47(2)(a) of the 1997 Act and article 14(2) and (4) of the 1992 Order (supra) or any extension of that period that may be agreed upon by the applicant and the planning authority (ibid). If the planning authority fails to make a decision within that period, the applicant is at once entitled to appeal to the Scottish Ministers. His right to do so lasts for a period of six months from the date on which the statutory period has expired.

[10] If the applicant appeals within that period, the jurisdiction to determine the application passes from the planning authority to the Scottish Ministers. If the applicant does not appeal within that period, the planning authority remains seised of the application and is obliged to make a decision on it. That principle was decided by the House of Lords in London and Clydeside Estates Ltd v Aberdeen DC (1980 SC (HL) 1) and was applied in the Outer House in Bovis Homes (Scotland) Ltd v Inverclyde DC (1982 SLT 473). Neither of these decisions deals expressly with the question whether in that event there is a point at which the authority's continuing obligation to determine a planning application comes to an end. In my opinion, it is unnecessary for us to consider that question. Even if counsel for the appellant is right in submitting that that obligation subsists indefinitely and that the power of the applicant and the planning authority to agree to extend the time for the making of a decision is not subject to any time limit at all, those principles apply only in a question between the appellant and the planning authority.

[11] The applicant's rights in relation to the respondents are an entirely separate matter. In my opinion, the clear meaning of the legislation is that in relation to an individual planning application the applicant has one single right of appeal, that that right emerges after the expiry of the statutory period referred to in article 14(2) of the 1992 Order (art 23(2), supra), and that the respondents have no discretion to extend the six months time limit within which the appeal must be lodged.

[12] The respondents would have had jurisdiction in this application only if the appellant had taken an appeal against a deemed refusal and had done so within the six months time limit. Since the appellant did not do so, I conclude that even if its right to a decision by the planning authority still subsists, its right to invoke the jurisdiction of the respondents in this application has been irretrievably lost.

 

Disposal
[13] I propose to your Lordships that we should refuse the appeal.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Carloway Lord Philip	[2009] CSIH 27 XA127/08 OPINION OF LORD CARLOWAY   in the appeal under Section 239 of the Town and Country Planning (Scotland) Act 1997   by   VATTENFALL WIND POWER LIMITED Appellant;   against   a Decision of the Scottish Ministers dated 9 July 2008 _______________

 

For the appellant: MG Thomson QC, McConnell; Thorntons Law LLP

For the Scottish Ministers: Duncan; Scottish Government Legal Directorate

 

25 March 2009

[14] I agree with the Opinion of your Lordship in the Chair and have nothing useful to add.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Carloway Lord Philip	[2009] CSIH 27 XA127/08   OPINION OF LORD PHILIP   in the appeal under Section 239 of the Town and Country Planning (Scotland) Act 1997   by   VATTENFALL WIND POWER LIMITED Appellant;   against   a Decision of the Scottish Government dated 9 July 2008 _______________

 

 

For the appellant: MG Thomson QC, McConnell; Thorntons Law LLP

For the Scottish Ministers: Duncan; Scottish Government Legal Directorate

 

 

25 March 2009

[15] For the reasons stated by your Lordship in the Chair I agree that this appeal should be refused.