SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Carloway Lady Smith	[2011] CSIH 1 P1531/08 OPINION OF THE LORD JUSTICE CLERK In the Reclaiming Motion in the Petition of G HAMILTON (TULLOCHGRIBBAN MAINS) LIMITED Petitioner and Reclaimer; against THE HIGHLAND COUNCIL First Respondent; and ENNSTONE THISTLE LIMITED Second Respondent: _______

For reclaimer: McNeill QC, Miss Ross; Archibald Campbell & Harley, WS

For first respondent: Smith QC; Biggart Baillie LLP

For second respondent: Martin QC, Davidson; Tods Murray LLP

7 January 2011

Introduction

[1] This is a petition for judicial review. It relates to a site at Tullochgribban, Carrbridge, Morayshire. The site is at present in agricultural use. Part of it was formerly worked for minerals. The petitioner owns the site. The second respondent owns the mineral rights. The first respondent is the planning authority.

[2] The second respondent has applied to the first respondent for approval of a schedule of conditions that will govern an existing planning permission for mineral working at the site. The petition relates to the validity of a decision that the first respondent proposes to issue relating to these conditions and, in particular, to its proposal, set out in a final draft of conditions prepared by it, to impose a first condition in the following terms.

"For the avoidance of doubt, in the absence of a definitive docquetted site plan, the boundary of the site to which planning permission ICC/1964/798, issued by the County Council of Inverness on 12 February 1965 relates shall be as outlined in red in the approved plans EG320/RMP/F/01 & 2."

I shall call this area the red area. The first respondent proposes to exclude from the red area that part of it that is covered by Loch Mor (the submerged land). It is agreed that this exclusion is immaterial. The petitioner contends that planning permission for mineral extraction exists over only a small area within the red area that is outlined in green on a plan annexed to a letter from the first respondent dated 15 July 1997 (the green area).

[3] The petitioner seeks review of the proposed decision by way of (1) declarator that no valid and subsisting relevant planning permission exists over the red area beyond the extent of the green area; (2) declarator that a determination of conditions that will apply over the whole of the red area is ultra vires for that reason; (3) reduction of the first respondent's decision as being ultra vires, and (4) interdict, and interim interdict, against the first respondent's determining planning conditions over the red area.

[4] The validity of the proposed decision depends ultimately on the meaning and effect of the decision of the first respondent intimated in the letter of 15 July 1997.

[5] By interlocutor dated 10 March 2009, Lady Clark of Calton dismissed the petition for the reasons set out in her Opinion dated 13 January 2009. That is the interlocutor reclaimed against.

Reviewing old mineral permissions

The background

[6] In the early years of development control under the Town and Country Planning (Scotland) Act 1947, many permissions for mineral extraction were granted subject to minimal conditions. By reason of an increasing public sensitivity to the environmental effects of mineral extraction and developments in the technology for minimising environmental impact, such conditions became inadequate. Since 1991, legislation has required planning authorities to keep a definitive list of extant mineral permissions and periodically to review and update the conditions on which the permissions were granted. The general objectives of the legislation with which we are concerned in this case were to have a definitive public list drawn up of all old mineral permissions in each planning authority's area, to make such permissions subject to new conditions that were appropriate to modern environmental standards and in certain circumstances to extinguish such permissions altogether.

[7] The current legislation relating to the review of old mineral permissions is set out in Schedule 9 to the Town and Country Planning (Scotland) Act 1997 (the Schedule). The Schedule continues, with immaterial changes in wording, the provisions of the Environment Act 1995, which previously applied to Scotland. The scheme of the Schedule is based on a classification of the relevant sites as Phase I, Phase II or dormant.

Schedule 9 procedure

[8] There are two stages in the Schedule 9 procedure. At stage 1, the planning authority must identify the mineral sites within its area and draw up two lists. The first list is a list of all the mineral sites (para 3(1)). The second is a list of the active Phase II sites (para 4). We are concerned in this case only with the first list. At stage 2 it is for the holder of an interest in a listed site to apply to the planning authority to determine the conditions that are to govern the relevant planning permission.

Stage 1 (paras 3 - 6)

[9] So far as is relevant to this case, a "mineral site" is defined as "the land to which a relevant planning permission relates" (para 1(1), (2)(b)). A relevant planning permission means a planning permission, other than an old mining permission or a planning permission granted by a development order, granted after 30 June 1948 for minerals development (para 1(1)). In broad outline, Schedule 9 requires the planning authority, in drawing up the first list, to classify each site as an active Phase I, an active Phase II or a dormant site (para 3(1)-(3)). The definitions of Phase I and Phase II sites need not concern us in this case. A dormant site is a Phase I or Phase II site at which mineral development has not been carried out to any substantial extent between 22 February 1982 and 6 June 1995 otherwise than by virtue of a planning permission that was not a relevant permission relating to the site (para 1(1)).

[10] When the first list is published (para 5), a person who is the owner of any land or is entitled to an interest in a mineral site may, if that land or interest is not a mineral site included in the first list and does not form part of any mineral site that is in the list, apply to have that land or interest included in the list (para 6(1)). It is then open to the authority to grant the application in full (para 6(3)(a)), to grant it in part (para 6(3)(b)) or to refuse it. Counsel for the petitioner contends that paragraph 6(3)(b) is the critical provision. It is in the following terms

"Where the planning authority consider that ...

(b) part only of the land or interest is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application so far as it relates to that part of the land or interest,

but shall otherwise refuse the application."

[11] If the planning authority accedes to the application in whole or in part, it must supply the applicant with details of any amendment made to the list (para 6(10)). There is a right of appeal against the decision of the authority to grant the application in part only or to refuse it altogether (para 6(11)-(13)). There is no provision that expressly requires the planning authority to specify the boundaries of the site at the listing stage.

[12] The first stage of the procedure is to be carried out expeditiously. The planning authority is required to publish the first list by 1 April 1997 (para 5(4)), that is to say within three months. An application to be added to the list has to be made within three months of its being published. The planning authority has to make a decision on such an application within two months.

Stage 2 (para 9)

[13] Once the first list has been compiled, the owner of any land or a person entitled to an interest in a mineral site may, if it is or forms part of a dormant site or an active Phase I or Phase II site, apply to the planning authority to determine the conditions to which the relevant planning permissions relating to the site are to be subject (para 9(1)). In the case of a dormant site no relevant planning permission shall have effect unless an application for approval of conditions is made to the planning authority and such conditions are finally determined (para 12(3); para 9(1), (5)).

[14] In an application for approval of conditions, the applicant has inter alia to identify the mineral site to which it relates, specify the land or minerals comprised in the site which the applicant owns or in which he is entitled to an interest, and identify any relevant planning permissions relating to the site (para 9(2)(a), (b) and (c)). At this stage the planning authority may call for further details (para 9(9)), including plans or drawings (para 9(10)(a)). In the case of an active Phase I or Phase II site, the planning authority is entitled by means of such conditions to restrict working rights in respect of the site (para 10), in which case the applicant is entitled to compensation (paras 1(6), 10 and 15).

The history of the dispute

[15] On 12 February 1965, the County Council of Inverness granted planning permission to George MacWilliam & Son (Contractors) Ltd (MacWilliam), the second respondent's predecessor in title, for the working of minerals at the site, which was referred to in the permission as Tullochgorum. The permission narrates that it is granted "in accordance with the plan(s) submitted to the Council and docquetted as relative hereto." The plan docquetted as relative to that permission has been lost.

[16] In 1967 MacWilliam was granted a disposition of the mineral rights at the site by Viscount Reidhaven, the then heritable proprietor. The extent of the grant was as delineated and coloured red on a plan annexed and signed as relative to the disposition. The boundary of this area coincides with the outline of the red area which the first respondent has identified in its proposed first condition (supra) as being the boundary of the site to which the planning permission relates.

[17] In March 1997 the first respondent issued its first list. The list did not include the site.

[18] By an undated letter received by the first respondent on 7 May 1997 the then owner of the minerals, Tilcon (Scotland) Ltd (Tilcon), applied to the first respondent to have the site added to the list as an active Phase I site. With the application Tilcon submitted a plan showing the site as being the red area. This plan appears to be an enlarged photocopy of the red area in the plan annexed to the disposition by Viscount Reidhaven. Tilcon also submitted evidence that the site had been worked for minerals between December 1989 and December 1991.

[19] By letter to Tilcon dated 26 June 1997 the first respondent said inter alia

" ... from the information provided, the Council has been able to trace this old planning permission (reference number ICC/1964/798 approved on 12 February 1965) and has been able to locate a working on the ground as shown by the enclosed map. It would therefore seem appropriate to include Tullochgribban in the first list of sites."

However, in the absence of better information as to the annual output since 1982, the first respondent was minded to list it as a dormant site.

[20] By letter dated 7 July 1997 Tilcon notified the first respondent that it had no production records available and accepted that the site should be listed as a dormant site.

[21] By letter dated 15 July 1997 the first respondent notified Tilcon that the site had been added to the first list as a dormant site. With this letter the first respondent enclosed a Reference Sheet and a site plan. The Reference Sheet, so far as relevant to the present dispute, is in the following terms.

"Site: Tullochgribban, Carrbridge

Area: Badenoch and Strathspey

Grid Reference: NH 960257

Status: Dormant

Date of Permission(s) 12th February 1965

Planning Reference No: IC/1964/798

Operator: Tilcon (Scotland) Ltd ...

Notes: Permission originally granted to Messrs George
MacWilliam (Contractors) Ltd, Torvean Quarry, Inverness

Site is referred to as 'Tullochgorum' in records of Inverness County Council.

Original definitive site plan not available."

On the site plan annexed to the Reference Sheet there is an outline of the green area to which I have referred. On the amended first list the site was described as "Tullochgribban, Carrbridge, Badenoch and Strathspey."

[22] In 2006, Messrs Johnson Poole and Bloomer, land consultants, negotiated with the first respondent regarding the new schedule of conditions that the first respondent was to impose on the 1965 planning permission. The question then arose as to the extent of the site to which that permission applied.

[23] On 24 October 2006 the first respondent's Principal Planner wrote to Johnson Poole and Bloomer inter alia as follows:

"Thank you for your further letter of 17 October enclosing a copy of the signed plan attached to the Disposition which is held in the Register of Sasines.

On this basis, and given that no more definitive information appears to be available concerning the site boundary for Inverness County Council permission no: 1964/798, it is agreed that an application under Section 74 of the Town and Country Planning (Scotland) Act 1997 should be on the basis of this boundary, with the following exception -

that the south-eastern boundary should be revised to exclude Loch Mor as it presently extends ... "

[24] On 20 April 2007 the second respondent applied to the first respondent under paragraph 9 of the Schedule for approval of a schedule of conditions to which the 1965 permission should be subject. The conditions are framed on the basis that the 1965 permission remains in force and that the mineral site in the first list is the red area, subject only to the exclusion of the submerged land.

The first respondent's proposed decision

[25] In answer to the petition, the first respondent avers that

" ... subject to a formal decision within the application process, the first respondents are minded to treat the red area as the area for which planning permission subsists for the purposes of the application and with reference to the 1965 permission. It has been demonstrated to the satisfaction of the first respondents, by means of a comparison between a Register map index kept by the first respondents for the purpose of registering planning applications as they are made (including the 1965 permission), and the plan attached to the said 1967 disposition, that there is a correlation between these documents. It is therefore highly likely that the 1965 permission extends to an area demonstrated by each of said plans. The first respondents are accordingly minded to accept that the 1965 permission extends at least to the red area."

[26] The reference in these averments to the Register map index kept by the first respondent is explained by Mr Andrew Brown in an affidavit dated 22 September 2008. Mr Brown was a planner with the first respondent at the time of the Tilcon application. From his knowledge of the practice of the first respondent at that time in dealing with the listing of sites for which no definitive site plan was available, Mr Brown concludes that the likeliest explanation is that the map referred to in the first respondent's letter dated 26 June 1997 (supra) was a copy of the register plan covering the area with the extant workings marked on it. When the first respondent then listed the site, the site plan that accompanied the Reference Sheet was prepared using detailed large scale maps held by the first respondent identifying what was indicated as the approximate extent of the quarry working. It was not intended that the site plan would seek to restrict the original planning permission to the area indicated.

The decision of the Lord Ordinary

[27] The Lord Ordinary decided that, in granting Tilcon's application, the first respondent added to the first list the site specified in the plan annexed to the 1965 permission, whatever that area was. She reached that conclusion on the view that the first respondent could not restrict the scope of the permission as part of the listing process (Opinion, para [27]). She accepted that what was to be entered in the list was "the land to which a relevant planning permission relates." She said that "The listing procedure envisages a listing of something which pre-exists, ie the planning permission granted at an earlier date in respect of mineral sites" (ibid). She concluded (para [28]) that the entry of Tullochgribban in the first list constituted the listing of land to which a relevant planning permission related, namely the permission of 1965 expressly referred to in the accompanying reference sheet.

The issues in this case

[28] Counsel for the petitioner has raised two issues; namely, (1) whether the planning authority was entitled or obliged to define the extent of the mineral site in the first list; and (2) whether, if the planning authority had power to define the extent of the site at that stage, it defined it in this case as being the green area.

Conclusions

Issue (1)

[29] The submission for the petitioner is that by the letter of 15 July and the accompanying documents the first respondent in effect granted the application for listing in part only (para 6(3)(b)). Tilcon had a right to appeal against that decision (para 6(11)-(13)). Tilcon's failure to appeal had the consequence that any planning permission for mineral development beyond the green area was extinguished (paras 6(11)(b) and 12). For the reasons that I shall give, I do not accept that the first respondent granted Tilcon's application in part only. However, for the purpose of deciding this issue, I shall assume that that is what the first respondent purported to do.

[30] The proposition of counsel for the petitioner is that on a true interpretation of Schedule 9, and in particular paragraphs 1 to 6, the boundaries of a mineral site, as defined in paragraph 1, fall to be determined by the planning authority, on the information available to it, at the first list stage and not at any later stage in the Schedule 9 procedure: that is to say, an entry in the first list is not merely site-specific but boundary-specific too. It follows, on this submission, that at stage 2, when it comes to consider the question of conditions, it is too late for the planning authority to define the boundaries of the site.

[31] The submission for the petitioner stresses that "mineral site" is defined by reference to "the land" (Sched 9, para 1(2)(b), 1(4)) and that the process of applying to be added to the first list relates to "the land or interest" (para 6)(1), (3) and (4)). That, in counsel's submission, means that the list must define the land that forms the mineral site in each case. It is implicit in that argument that even if, as the first respondent is disposed to accept, the 1965 permission extended over the whole of the red area, the effect of the listing of this site is to restrict the development rights granted in 1965. On that view, the lost plan annexed to the 1965 permission is now of no significance and would be of no significance if it were to be found.

[32] Counsel for the petitioner submitted the Lord Ordinary erred in describing the list as a list of planning permissions rather than a list of sites. I think that that criticism is unjustified. When the Lord Ordinary said that the listing procedure envisaged "a listing of something which pre-exists, ie the planning permission granted at an earlier date" (para [27]), I think that she meant only that the mineral sites are to be identified by reference to planning permissions, which is plainly the case in view of the definition of a "mineral site" (para 1(2)(b)) that I have quoted.

[33] In my opinion, the Lord Ordinary's decision is correct. The power of the planning authority at stage 1 is merely a power to list a mineral site. Looking at the overall scheme of Schedule 9, I think that the procedure of listing (paras 3 to 6) is administrative in nature (Dorset CC v Secretary of State [1999] JPL 633, at pp 642-643). Listing is the qualification that entitles the interested party to apply to the planning authority to determine the conditions that should govern the existing planning permission (cf R. v Oldham MBC and Anr, ex p Foster, supra; and R (Payne) v Caerphilly CBC, supra). Listing is about preserving an extant planning permission, not about restricting or rescinding it. The first list is a census of the mineral sites in the planning authority's area (para 3(1); R v Oldham MBC and Anr, ex p Foster, [2002] Env LR 395, at p 402; R (Payne) v Caerphilly CBC (2002) 25 PLCR 496, [2003] Env LR 679 (Court of Appeal); Lafarge Aggregates v Scottish Ministers 2004 SC 524, at para [37]). It is not a list of defined areas of land. It is drawn up to identify where the mineral sites are and to classify each of them in order to determine the procedures that are to be followed at stage 2. The existence of a relevant planning permission relating to it is the condition precedent to the inclusion of a site in the list. Therefore the planning authority is bound to satisfy itself that a relevant planning permission exists; but it need not identify the planning permission in the list itself (R v Oldham MBC, ex p Foster, supra) and a fortiori, in my view, it need not define its boundaries. Since the site is by definition land to which a relevant planning permission relates, the extent of it will be defined by the planning permission itself. If the site is then listed, the extant planning permission will remain alive in its entirety.

[34] It is only when the site is listed that the extent of the existing development rights over it becomes important. That question will be determined at stage 2 by reference to the relevant planning permission itself. It is at that stage that planning judgments have to be made on the merits of each case.

[35] If the boundaries of the site had been a matter to be determined at the listing stage, I would have expected that that would be expressly provided for in the Schedule. As it is, paragraph 3 refers to certain specific matters that are to be set out in the list (eg para 3(3),(4)); but these do not include the boundaries of the site. There is a preliminary unlikelihood in the idea that at stage 1 the planning authority should be required or entitled to determine the precise boundaries of each site that it lists, particularly in view of the tight timetable that the legislation imposes for compiling the first list and deciding on applications to be added to it.

[36] On the other hand, the exact boundaries of a listed mineral site will be a relevant consideration at stage 2 because the applicant has to identify the land over which he has an interest and identify any relevant planning permissions relating to the site (para 9(2)(c)). If that question should be contentious, it will be for the planning authority to determine the boundaries by reference to the original planning permission or if, as in this case, the docquetted plan is missing, by reference to such other evidence as is before it. The extent of the site may then be a crucial question, because if it is an active Phase I or Phase II site, the planning authority can decide that, for planning reasons, the working rights should now be restricted (para 10). That is why the planning authority is entitled at that stage to call on the applicant to produce plans or drawings (para 9(9), (10)).

[37] The interpretation proposed for the petitioner requires us to conclude that as part of the listing process Schedule 9 has, by implication, given the planning authority power to restrict the scope of an extant permission. Since that would involve the abridgment of existing land use rights, I regard that as an unlikely interpretation. The power to restrict working rights at stage 2 is granted expressly, and with a related right to compensation. That points against there being any implied power to restrict the area of an extant permission, without right to compensation, at stage 1.

[38] In this case, all that the first respondent was asked to do was to accept that there was a mineral site at Tullochgribban. It could refuse the application only to the extent that the applicant's land or interest fell outside the boundary of a relevant planning permission. The first respondent did not know whether or not it did. It was in no position to decide what the extent of the planning permission was. In those circumstances, in my opinion, paragraph 6(3)(b) did not authorise it to decide at that stage what the extent of the permission should be. I agree with the Lord Ordinary on this point (at para [27]).

[39] In my opinion, the case for the petitioner is based on a misinterpretation of the provision in paragraph 6(3)(b) (supra) that entitles the planning authority to grant an application for listing in part only. The power to grant an application in part only arises where the planning authority concludes that part of the applicant's "land or interest" does not enjoy a relevant permission at all. Such a decision could be made where the evidence was clear: for example, if the applicant were to submit a plan that was inconsistent with the docquetted plan annexed to the permission; or if there was clear evidence that the planning permission founded on had expired (eg R (Payne) v Caerphilly CBC, supra, Dyson LJ at para 27) or been revoked. A decision of that kind is entirely different from a decision by the planning authority, in the absence of the docquetted plan, as to what the extent of the site should be.

[40] Counsel for the petitioner has relied on two decisions supporting the principle that in identifying the sites for listing, it may be necessary for the planning authority to construe such planning permissions as are before it (Stancliffe Stone Company v Peak District NP Authority [2005] Env LR 434; [2006] Env LR 150 (Court of Appeal); Lafarge Aggregates Ltd v Scottish Ministers, supra); but in my view these cases do not assist his argument. They merely demonstrate that to list a mineral site the planning authority has first to be satisfied that the site is land to which a relevant planning permission relates. That is not an issue in this case. It is agreed on all sides that at the time of the preparation of the first list the land at Tullochgribban was land to which a relevant planning permission related. The existence and continuing validity of the 1965 permission was not then in doubt. The only question, if it was then a question, was what the extent of the site was.

[41] Staffordshire County Council v NGR Land Developments Ltd ([2002] EWCA Civ 856), on which counsel for the reclaimer also relies, has no bearing on the present question. That case simply establishes that the planning authority is entitled not to list a site where implementation of the relevant planning permission has become physically impossible (ibid, at paras [57]-[61]). If it is impossible to implement a planning permission, it cannot meaningfully be said that there are development rights over the site in terms of that permission.

Issue (2)

[42] Counsel for the petitioner submitted that the true interpretation of the letter of 15 July 1997 and its annexations was that the first respondent conclusively determined that the mineral site was the green area and accordingly listed only that area. I do not agree. In my opinion, the planning authority granted the application simpliciter. In the letter of 15 July 1997 it did not invoke paragraph 6(3)(b), as would have been necessary if it had granted Tilcon's application in part only. On the contrary, the Reference Sheet identified the site, correctly in my view, by reference to the 1965 planning permission and, far from defining the area of it, stated that the original definitive site plan was not available.

[43] On the uncontradicted evidence of the planning official who dealt with this case at the time, it appears that the green area was no more than an indication of the area that had been worked by then. That ties in with the first respondent's letter dated 26 June 1997 (supra) with which it enclosed a map showing the working on the ground that it had been able to locate. If that is so, the listing of only that area would have been pointless.

[44] But whether or not that is the explanation, it is clear from the Reference Sheet, in my opinion, that the second respondent was not intending to make a definitive statement about the boundaries.

[45] I conclude therefore that in the absence of the plan, the extent of the 1965 permission falls to be determined by the planning authority, on whatever evidence is before it, at the stage 2 procedure that is now current (Staffordshire Moorlands DC v Cartwright, [1992] JPL 138). As its pleadings state, the first respondent is minded to decide that the planning permission extends over the whole of the red area. In my view, it is entitled on the evidence to come to that conclusion.

Disposal

[46] I propose to your Lordship and your Ladyship that we should refuse the reclaiming motion.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Carloway Lady Smith	[2011] CSIH 1 P1531/08 OPINION OF LORD CARLOWAY In the Reclaiming Motion in the Petition of G HAMILTON (TULLOCHGRIBBAN MAINS) LIMITED Petitioner and Reclaimer; against THE HIGHLAND COUNCIL First Respondent; and ENNSTONE THISTLE LIMITED Second Respondent: _______

For reclaimer: McNeill QC, Miss Ross; Archibald Campbell & Harley, WS

For first respondent: Smith QC; Biggart Baillie LLP

For second respondent: Martin QC, Davidson; Tods Murray LLP

7 January 2011

[47] For the reasons given by your Lordship in the Chair, I agree that this reclaiming motion should be refused.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Carloway Lady Smith	[2011] CSIH 1 P1531/08 OPINION OF LADY SMITH In the Reclaiming Motion in the Petition of G HAMILTON (TULLOCHGRIBBAN MAINS) LIMITED Petitioner and Reclaimer; against THE HIGHLAND COUNCIL First Respondent; and ENNSTONE THISTLE LIMITED Second Respondent: _______

For reclaimer: McNeill QC, Miss Ross; Archibald Campbell & Harley, WS

For first respondent: Smith QC; Biggart Baillie LLP

For second respondent: Martin QC, Davidson; Tods Murray LLP

7 January 2011

[48] For the reasons given by your Lordship in the chair, I agree that we should refuse the reclaiming motion.