Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 3

XA137/09

OPINION OF LADY CLARK OF CALTON in the Appeal to the Court of Session under section 239 of the Town and Country Planning (Scotland) Act 1997 by DOONIN PLANT LIMITED, a company incorporated under the Companies Act and having its registered office at New Road, Flemington, Cambuslang Appellants against A Decision of the Scottish Ministers through their Reporter Mr Dan Jackman dated 4 August 2009 to refuse the Appellants' appeal against an Enforcement Notice. ________________

Act: Williamson; Russel + Aitken LLP

Alt: Barne; Scottish Government Legal Directorate

13 January 2011

Introduction

[1] This appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 as amended (the 1997 Act) came before me under and in terms of Rule of Court 41.44. Scottish Ministers were the only respondents to the appeal. The appeal was against a decision of the Reporter dated 4 August 2009 (6/111 of process) to refuse the appellants' appeal against an enforcement notice dated 24 April 2009.

[2] The grounds of appeal and answers are set out in 10 of process. No order had been made for written submissions. I am grateful to counsel for providing outline written submissions, especially to counsel for the appellants who did this at short notice. The written submissions which were developed in oral argument are 14 and 12 of process. In the course of her oral submissions counsel for the appellants narrowed the submissions and restricted the grounds of appeal. Counsel did not insist on the appeal in respect of the issues raised in paragraphs 1, 3 and 4 of the grounds of appeal. The scope of the appeal was limited to the ground of appeal raised in paragraph 2 of the grounds of appeal.

The grounds of appeal
[3] The issues may be summarised as follows:

"The Reporter misdirected himself in law in concluding that the planning permission dated 20 November 2001 had not been implemented, had subsequently lapsed and that therefore the ground for challenging an Enforcement Notice under section 130(1)(c) of the 1997 Act had not been established. The correct approach to the question of whether planning permission has lapsed is not whether that permission has been implemented, it is to whether the development which is the subject of the permission, has been initiated in accordance with section 27 of the 1997 Act. A development which can be said to have been initiated in accordance with section 27, within the period specified in the grounds of planning permission is sufficient to trigger the permission which thereafter remains 'live' indefinitely or until such time as the planning authority serves a "Completion Notice" under section 61 of the 1997 Act. ...The Reporter...misdirected himself in law by considering that the issue before him as to whether planning permission had lapsed was to be determined by the question of whether it had been implemented instead of the correct approach which is whether the development which is the subject of the permission, had been initiated. Had the Reporter applied the correct approach...on the material before him he could not reasonably have concluded that the...development had not been initiated in a manner which was sufficient to trigger the permission"

Submissions by counsel for the appellants
[4] Counsel set out the history of the planning application by the appellants. The application by the appellants related to premises which were formerly operated as a milk distribution centre and bottling plant by a dairy operator. The appellants wished to utilise the property as a transport operating centre, administration headquarters and materials recycling centre. Planning consent was required for the partial change of use to a recycling centre. The method statement (6/22-27 of process) described inter alia the recycling centre processes and stated that they would mainly be carried out within the existing shed. Details were given about the processes, types of waste and procedures that would be implemented during recycling operations. The statements specified inter alia that the waste would be transported to the recycling facility by eight-wheel tipper lorries or by containers or skips depending on the type of waste. The machinery specified was described as being required from time to time on a temporary basis (6/23 of process).

[5] There were also plans provided (6/30-32 of process and 6/63 of process).

[6] In terms of 6/15 of process, South Lanarkshire Council ("the Council") in exercise of their powers under the 1997 Act granted planning permission on 20 November 2001 to the appellants for the use of former milk bottling/distribution depot for the recycling of waste materials with associated external storage at South Road/Ashton Road, Quay Industrial Estate, Rutherglen in accordance with the accompanying plans and particulars given on the application. It was stated that this was "subject to the conditions listed overleaf in the paper apart". The conditions were imposed by the Council for the reasons detailed. The conditions and reasons are to be found in 6/16 to 17 of process.

[7] Counsel for the appellants submitted that the terms of the conditions required careful consideration. She submitted, as a general proposition, that none of the conditions attached can properly be described as "conditions precedent" or "suspensive conditions" of a type which prohibit the commencement of the development until certain steps are taken to the approval of the planning authority. She made reference to R. v Hartlepool DC (2005) EWHC 840 (Admin) at par. 58.

[8] Counsel then dealt with detailed issues which had been raised by the Council in a letter to the appellants dated 25 March 2002 (6/65 of process). She submitted that in relation to the complaints in said letter, there was no condition preventing mud being deposited on the road by vehicles, and that crushing operations taking place outside the building is not a breach of condition 8 because external crushing operations are permitted within certain time limits. She accepted that there might be some problem in relation to concrete bays which was the third point raised in said letter, but there was no suspensive condition in relation to this. Counsel made similar criticisms of the letter of complaint from the Council dated 17 April 2002. (6/66 of process). The issue of mud on the road was raised again in a letter from the Council dated 22 April 2002 (6/68 of process). Counsel submitted that the mere fact the Council were complaining of non compliance with the consent in the terms set out in said letters was not definitive. It was necessary and essential for the Reporter to look at the terms of the conditions attached to the planning permission and make an assessment firstly, of whether the conduct complained of had occurred and secondly, whether it was a breach of a particular condition. Even if there was a breach of condition, the important question then required to be addressed as to the nature of the condition. She submitted that it is only if the condition is a condition precedent or suspensive condition that breach might be relevant to and prevent the initiation, in the sense of commencement, of the development.

[9] Counsel then addressed the history. She referred to the letter from the Council dated 6 September 2004 (6/34 of process) which stated:

"For the purpose of Condition 1 of the above planning permission, the start date for the site was to be taken as 1 April 2002...".

That date was the date on which both the appellants and Council treated as the date the permission was initiated. A breach of condition notice dated 31 May 2002 was served by the Council on the appellants (6/70 of process). This was followed by a planning contravention notice dated 12 November 2007 (6/75 to 77 of process). The nature of that correspondence was predicated on the fact that the development had been initiated in terms of the statutory provisions. It was not until the letter dated 12 March 2009 (6/38 of process) that the Council alleged for the first time that there was a lapse of planning permission. The letter stated:

"It is noted that a letter was sent to you on 6 September 2004 which suggested that a site start date was to be taken as 1 April 2002. It is apparent that that view was based on the implementation of further works in compliance with planning conditions within a given timescale. In this regard two points are noted. Firstly, no written response to the requirements set out in the 1 April 2002 letter has been received by the Council. Secondly, none of the suspensive planning conditions attached to the planning consent have been discharged.

While it has been noted that there has been activity at the site, this is not in compliance with the terms of the consent and therefore should not be interpreted as implementing consent CR/01/0136".

[10] Counsel made reference to other documents referred to by the Reporter: the visit log dated 8 July 2003 to 19 June 2009 (6/100 to 103 of process); photographs (6/104 to 106), only one of which was taken during the five year period; documents (6/107 to 110); an enforcement notice dated 24 April 2009 (6/45 to 48 of process) and a stop notice dated 24 April 2009 (6/40 to 43 of process).

[11] Counsel then set out the background to the Reporter's decision. She explained that the appeal before the Reporter proceeded by way of written submission and made reference to the documents submitted on behalf of the appellants. The appeal response on behalf of the Council is to be found at 6/52 to 59 of process. She referred in particular to paragraphs 4.3 and 4.6 of the appeal response and stated that the original documents required to be considered. She submitted that it was plain from the written documents before the Reporter that there were disputes of fact between the parties. There was dispute as to whether any action was taken by the appellants in relation to the Planning Contravention Notice. In addition, the appellants maintained in the documents before the Reporter that there was no breach of condition and that the complaints of the Council had been addressed and dealt with.

[12] Counsel referred to a number of cases namely Salisbury District Council v Secretary of State for the Environment 1982 JPL 702 at 703 and 705; Glasgow District Council v Secretary of State for Scotland (No. 2) 1993 SLT 268 at 274 to 275; East Dunbartonshire Council v Secretary of State for Scotland 1998 SLT 1088. She submitted that it is plain in the present case that the new use was instituted within the five year period and that the use of the site was not de minimis. She submitted that the approach which the Reporter should have adopted was to consider the factual situation in the five year period beginning with the grant of the permission on 20 November 2001 and ending with the day on which it was due to expire in terms of the first condition, namely 19 November 2006. The Reporter's task was to address the issue whether the new use was instituted within that period. In contrast, the Reporter considered evidence outwith the five year period, all of which was irrelevant. Both in her original submission and in responding to counsel for the respondents, counsel emphasised that the question of whether a development has lawfully been initiated is a "grey area" in planning law. She considered the case law beginning with Whitely & Sons v Secretary of State for Wales and Clwd County Council (1992) 64 P and CR 296 and the subsequent cases in which Whitely was cited with approval. She submitted that the Inner House decision in East Dunbartonshire Council was consistent with the decision in Whitely albeit that case was not cited. She also submitted that there was a second relevant line of authority beginning with R (Hart Aggregates Limited) v Hartlepool DC 2005 EWHC 840 (Admin) which adopted a more relaxed approach. She referred to Bedford Borough Council v Secretary of State for Communities and Local Government (2008) EWHC 2304 (Admin) and Leisure (GB) Plc v Isle of Wight Council (2000) 80 P & CR 370. She submitted that the latter case illustrated principles under which a previously unlawful commencement may be retrospectively validated either by subsequent compliance with the condition or where the relevant condition has been met in substance. This chapter of her submissions is dealt with in more detail in paragraph 5.10 to 5.28 of the written submission.

[13] In conclusion counsel submitted that the Reporter erred in law in the following respects:

a) he failed to consider whether on the material before him, the development had been initiated/begun within the 5 year time limit for initiation;

b) he failed to consider whether on the material before him, the activities on the appeal site were more than de minimis;

c) he failed to identify whether on the material before him what activities on the appeal site he considered to be a breach of the planning permission and in what respect;

d) he wrongly took into account irrelevant considerations in relation to the use of the site after the expiry of the time limit for implement and relied upon such considerations in support of his conclusion that the appeal site had never been used within the terms of the planning permission which had therefore lapsed.

[14] In any event, counsel submitted that the only aspect of the development which took place between 20 November 2001 and 19 November 2006 which might arguably not have been in compliance with the permission, relates to the provision of concrete bays. The evidence before the Reporter which was set out in written submission for his consideration was that the concrete bays were erected in or towards the end of 2004. Counsel relied on the exceptions to the Whitely principle and submitted that if the starting of the works on the appeal site was unlawful, in the absence of the erection of the concrete bays, their subsequent erection in 2004 is capable of retrospectively validating any previously unlawful commencement.

Submissions by counsel for the respondents

[15] Counsel made reference to additional documents in 7/1-6 of process. He submitted that it was the appellants who chose to proceed by way of written procedure and it was for the appellants to put before the Reporter the evidence and documents on which they wished to rely in support of that appeal. He submitted that the Reporter was considering an appeal by the appellants against an enforcement notice and the burden of proof lay on the appellant. He made reference to Wild and AGM Car Hire v Secretary of State for the Environment (1976) JPL 432 and R v Secretary of State for Transport, Local Government and the Regions (2003) EWHC 1092 (Admin). The Reporter correctly concluded that the appellants had failed to adduce sufficient evidence to discharge the onus of proof.

[16] Counsel then made detailed submissions about various documents in accordance with paragraph 11 of his written submissions. In particular, counsel emphasised that the present case concerned development not in the sense of building works, but in the sense of a change of use. He referred in detail to the terms of the planning permission and the conditions attached. He noted that Condition 2 requires development to be "strictly" in accordance with the permission. He submitted that compliance with the method statement goes to "the heart of the permission". He drew attention in particular to 6/107-110 of process which is the Council's assessment of performance against the planning permission conditions and unaltered statement. He submitted that this was a useful tabulated analysis to which the Reporter was entitled to have regard as part of the information before him.

[17] In relation to the decision of the Reporter, counsel submitted that the decision must be read in context. It was plain that the Reporter addressed the question as to whether the development was implemented in the sense of having commenced. The reference by the Reporter to corroborative evidence should be read in a non technical sense as it was plain that the Reporter understood that he was deciding the matter on the balance of probability. Counsel prayed in aid Wild and AGM Car Hire. Counsel submitted that the Reporter was entitled to consider information relating to events beyond the five year period, including the results of his inspection, as this might have a bearing on how to interpret the information relating to the five year period. In considering the material before the Reporter, counsel submitted that the respondents' position before the Reporter was not merely that the consent had not been implemented, in the sense of a change of use initiated in the manner consistent with the consent, but that there was no evidence to suggest that the site had ever operated, or was at the time the enforcement notice was served in 2009, being operated in accordance with the approved method of working or the conditions attached to the consent. The respondents had produced some supporting evidence of their position which the Reporter was entitled to take into account as he did. The appellants had produced very little information in support of their assertions.

[18] Turning to the main issue in the appeal, counsel submitted that the issue of whether or not the development had been lawfully commenced is one of law and fact. The Reporter did not misdirect himself on the law and his assessment of the factual material was not irrational. Counsel submitted that development could only be legally commenced where it is lawful development and the Reporter was entitled to find that the appellants had not proved on the balance of probabilities that there had been a commencement of lawful development. Counsel submitted that the error of law in approach founded upon by the appellants was not well founded. He submitted that the Reporter had applied the correct approach. Further if one considers the information placed before the Reporter, the Reporter was entitled to reach the conclusion that the information made available to him did not satisfy him on the balance of probabilities that the change of use was initiated. Counsel submitted that the appellants did not have an appeal founded upon lack of reasons. The appellants in the written grounds of appeal had not identified what irrelevant considerations the Reporter had regard to or what relevant considerations he did not have regard to.

[19] Counsel relied on the statutory definition in section 27(1)(b) of the 1997 Act that in respect of a change of use, development of land shall be taken to be initiated when the new use is instituted. He submitted, however, that to assess whether or not development has commenced in this sense, it is necessary to have regard to the terms of the planning permission. In considering the conditions, he stressed that in the present case the grant of planning permission for change of use specified that the development was to be strictly in accordance with the plans and particulars. He submitted that in the present case, strict compliance is accordingly fundamental to the planning permission. Use which was not in accordance with the plans and particulars is not relevant use and could not therefor constitute legal initiation of development. He submitted that the principles which applied were the principles in Whitley. He developed his submission under reference to Hammerton v London Underground Limited 2003 JPL 984, paras 89, 123, 127, 141; Henry Boot Homes Limited v Bassetlaw DC [2003] 1 P & CR 23 para 37; Tesco Stores Ltd v North Norfolk DC (1999) 78 P & CR 359, paras 37, 57; R (on application of Hart Aggregates Ltd) v Hartlepool BC [2005] EWHC 840; [2005] 2 P & CR 31, paras 34, 56-59 passim; Norris v First Secretary of State and Stoke on Trent CC [2006] EWCA Civ 12 para 40; East Dunbartonshire Council v Secretary of State for Scotland 1999 SLT 1088; Rowan Robinson et al., Scottish Planning Law and Procedure, paragraphs 11.57 to 11.79 and 12.224 to 12.226.

Discussion

The statutory provisions
[20] There was no dispute between the parties that the change of use involved "development" in terms of section 26 of the 1997 Act. Section 26 in defining the meaning of "development" makes a distinction between "the carrying out of building, engineering, mining or other operations, in, on, over or under land or the making of any material change in the use of any buildings or other land". This distinction is important for the purposes of section 27 which defines the time when development of land shall be taken to be initiated. Section 27(1) of the 1997 Act provides:

"Time when development begun

27.-(1) Subject to the following provisions of this section, for the purpose of this Act development of land shall be taken to be initiated -

(a) if the development consists of the carrying out of operations, at
the time when those operations are begun;

(b) if the development consists of a change in use, at the time when the new use is instituted;

(c) if the development consists both of the carrying out of operations and of a change in use, at the earlier of the times mentioned in paragraphs (a) and (b);

(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out."

[21] Time limits in respect of enforcement are dealt with in section 124 and enforcement notices dealt with in sections 127 to 129. Section 130 deals with grounds of appeal against an enforcement notice. Section 136 makes it an offence not to comply with an enforcement notice. The appeal provisions are set out in s.239.

[22] Enforcement provisions are contained in Part 6 of the 1997 Act. A distinction is made for the purposes of the Act between (a) carrying out development without the required planning permission or (b) failing to comply with any condition or limitation subject to which planning permission has been granted. In this case it should be noted that the Council for a number of years until 2009 treated this case as a change of use for which planning permission had been granted and had been initiated and sought to deal with perceived problems as breaches of conditions. But in 2009 the Council decided to treat this as a case in which there was use with no planning permission at all.

[23] I turn now to consider section 27 of the 1997 Act. In my opinion, it is plain from section 27(1)(a) that the "time when those operations had begun" may be at a different time from the time operations are completed. Much case law exists which illustrates how to conclude whether there is initiation in terms of section 27(1)(a). Many cases were cited to me but few of them dealt with section 27(1)(b) and none of them provided me with any assistance in relation to interpretation of that provision. I consider that the decision making applying section 27(1)(b) is one of mixed fact and law and the conclusion may differ depending on the facts in a particular case. It is possible to envisage a case where a new use is instituted albeit the planning permission with all its terms and conditions has not yet been fully implemented. For example, in a change of use from residential to retail use, premises may be equipped and limited retail trading to the public may have commenced before all the planning permission conditions are fulfilled such as car parking, landscaping and 7 day trading. In my opinion the new use may be instituted in fact and in law in circumstances where there is no condition preventing or limiting the initiation unless and until car parking and landscaping and 7 day trading conditions are fulfilled. I do not consider that section 27(1)(b) can only be read as meaning that a change in use can only be instituted at or after the time when full implementation of the planning permission has occurred.

[24] The present case is concerned with planning permission for a change of use. Counsel for the respondents emphasised that the development in the present case involves a process. The process was set out in the application and permission was subject to the conditions. Counsel for the respondents submitted that the change of use in this case almost by definition, could only occur when the use (ie the process) was completed in accordance with all the conditions specified in the planning permission. I consider that the logic of his position was that in effect the initiation of a change of use could only occur when all the conditions were fulfilled. This submission by counsel was made without any particular reliance on the wording of any of the conditions albeit he made some reference to the specific terms of Condition 2. Counsel at parts of his submissions seemed to suggest that Condition 2 was central and that failure to comply with condition 2 meant that the development was unlawful almost by definition. He submitted that one could not have a partial change of use with only some of the conditions being complied with. His submission however was not restricted to Condition 2. As I understood his submission, which he submitted reflected the position adopted by the Council before the Reporter, development in the sense of change of use could only be initiated (commenced, begun) when all the conditions attached to the planning permission in the present case were fulfilled. He submitted that unless the Reporter was so satisfied, the appellant must fail.

[25] I am of the opinion that the interpretation and approach adopted by the Reporter to section 27(1)(b) of the 1997 Act are fundamental in this case. None of the case law cited to me, with one exception, dealt with section 27(1)(b) of the 1997 Act or other statutory provision relating to change of use. For that reason I did not find the cases cited of much assistance in applying section 27(1)(b). I consider that the emphasis placed by counsel for the respondents on the "process" involved tended to distract from the proper focus which relates to material change in the use of buildings or land. It is important in my opinion to concentrate on that. I consider that cases dealing with section 27(1)(a) and other statutory provisions must be considered in the context of their particular statutory schemes and definitions.

[26] The only case cited to me which dealt with change of use was Bedford Borough Council. The change of use involved was conversion of a thatched barn to a dwelling house. It was not disputed in that case that sufficient work to the barn had been done to constitute as a matter of fact the beginning of the development. There was no consideration therefore of the English statutory provisions or consideration of the statutory definition of change of use. Nevertheless the approach adopted in that case is a useful illustration of the interplay between the factual position about change of use and the effect of conditions. In that case, there were two material conditions attached to the planning permission. The first condition stated that: "Before the development is commenced a landscaping scheme to include all hard surfaces and earth moving shall be submitted for approval. ...". The second condition was to the effect that details of all boundary treatments are to be submitted to and approved by the planning authority prior to the commencement of development. The inspector concluded that there had not been substantial compliance with these conditions. There was some consideration both of the Whitely principle and the cases before Hart Aggregates. The judge having considered the case log and analysed the implications of differently worded conditions, concluded in paragraph 46:

"The fact that a condition is not complied with does not necessarily render the entire development unlawful. One has to ascertain first what the nature and extent of the relevant clause is."

I agree with that as a general proposition in relation to the problems in the present case. I also note that in Bedford Borough Council, the difficulties arose because there were conditions which prima facie suggested that development could not commence unless certain conditions were fulfilled. As I note below no such conditions exist in the present case.

Conditions attached to the planning permission
[27] The Council granted planning permission for the development in accordance with accompanying plan(s) and particulars given in the application subject to the condition(s) listed overleaf in the paper apart. The paper apart specified fifteen conditions (6/16-17). Condition 1 is the only condition which relates to commencement and stated "The development hereby permitted shall be started within five years of the date of this permission". The other conditions are framed in both positive and negative terms and relate to a variety of matters which are self-explanatory in the conditions. It should be noted that none of the conditions are framed in a way reflective of the conditions in Whitely and the subsequent case law to which I was referred. In other words, the present case is not a case in which there was any restriction on the commencement of the development until certain outstanding matters were approved. No attempt was made to specify in the conditions any restriction on the commencement of the development until the fulfilment of one or more conditions. The conditions, apart from Condition 1, attached to the planning permission do not express any time limit or restriction on the commencement of the development.

[28] I consider that the submissions by counsel for the respondents did not provide an answer to this difficulty. In my opinion, the case law and principles derived from Whitely on which the respondents relied deal with conditions which are framed in a different way and have a different impact upon whether or not development can be commenced or initiated in breach of a particular specified condition. The planning authority in making and framing conditions in respect of any planning permission may frame conditions in a way that prevents the commencement of the development unless the conditions are fulfilled. In my opinion, the conditions in the present case do not achieve that. Counsel for the respondents founded strongly on condition 2 in his submission. I note that condition 2, like the other conditions, is not framed in a way which prevents commencement. There is no link with condition 1 and no words expressed in condition 2 which are capable of achieving that. Even if counsel for the respondents was correct in his submission, I am not persuaded that the Reporter adopted such an approach founded on condition 2.

[29] Looking at some of the conditions such as Condition 13, which was the subject of some consideration by the Reporter and Condition 14, I consider that such conditions have a different significance when compared to a condition such as Condition 2. One might have expected Condition 2 to have been phrased in terms which prevented the development from commencing, until it was carried out in accordance with the plans and supporting statement. But Condition 2 is not phrased in these terms. In my opinion, it is not every condition, unless so expressed, which will give rise to the result that the development is unlawful because it has never been commenced in accordance with a planning permission condition or conditions. There is a clear distinction in the planning legislation between the commencement or initiation of development and breach of a condition or conditions which may lead to enforcement proceedings.

The decision of the Reporter
[30] In the present case the Reporter required to make a judgment as to whether within the five year period a change of use within the terms permitted by the planning permission had occurred. There are no conditions in the present case which prevent that happening unless and until a particular condition is fulfilled. It is a matter of judgment on the facts as to whether the bottling plant use has ceased and sufficient work and change consistent with the planning permission has been done to achieve as a matter of fact the change of use for which planning permission is granted. In my opinion in the present case, to ask in effect the question whether the planning permission has been implemented in full is to ask the wrong question.

[31] I have set out the submissions which were made in relation to the issues which I consider to be the important issues in this appeal. The issues were considered by the Reporter under reference to the original ground 1(c) of the appeal against the enforcement notice in the following terms: "That those matters (if they occurred) do not constitute a breach of planning control." He addressed this ground of appeal in paragraphs 3 to 10 of his report at pages 2 and 3. A volume of case law was cited to me but the parties did not favour the Reporter in the same way. No case law appears to have been cited to him by the parties. I turn now to consider the Reporter's decision in detail.

[32] In paragraph 3, the Reporter summarised the parties' positions on the basis of his understanding. In summarising the appellants' position the Reporter stated that

"The appellants' position is that planning permission has been granted in November 2001 for the use of the site for the recycling of waste material with associated external storage and therefore there is no breach of planning control."

In my opinion that is not a correct summary of the appellant's position. The Reporter's summary did not refer to the contention of the appellants "that following the grant of planning permission operations commenced on site at the beginning of 2002." The appellants also set out the history of operations about which there is dispute. The position of the appellants was narrated to the Reporter under the heading of the planning and operational history in the letter dated 19 May 2009 in support of the appeal submitted by JWH Ross & Company Limited on behalf of the appellants. It is interesting to note also the way in which the Reporter recorded the position of the Council. He stated:

"The Council's position is that whilst planning permission was granted and that occasional activities have taken place on the site, these activities were not in accordance with the planning permission; hence the planning permission has never been implemented and subsequently lapsed."

It should be noted that the Council argued before the Reporter that the appellant was in breach of various conditions and a summary was given in the documents 6/107-110 of process. Before the Reporter, the Council seemed to contend that the change of use could not be initiated unless and until all of the conditions were fulfilled. The Reporter does not make clear what approach he has adopted. I find his reasoning very difficult to follow. By inference I can only infer that the Reporter has approached the issue on the basis put forward by the Council. Counsel for the Respondents appeared to support the Reporter's decision on that basis.

[33] In paragraph 4 the Reporter considered whether there is "corroborative evidence" to support the appellants' position. The Reporter did not explain how he approached the material and information put before him. He did not explain what he concluded about facts put forward where no corroboration is provided. Corroboration is not essential for the proof of facts and I have difficulty in understanding the approach by the Reporter and his references to lack of corroboration. I have considered the submission for counsel for the respondents' recorded in paragraph 17. I accept that the Reporter referred to the standard of proof "on the balance of probabilities" but in the context of the Reporter's discussion about corroboration and his general approach, I am not persuaded that the Reporter has approached the task of fact finding on the correct basis.

[34] In paragraph 5, the Reporter dealt with the letter from the respondents dated 6 September 2004 (2/92 of process). As at the date of said letter, the Council raised issues only in respect of Condition 2 and Condition 10. The Council in said letter appeared to accept that the start date predated certain works in relation to Condition 2 and certain agreement was specified in relation to Condition 10. The factual position represented to the Reporter on behalf of the appellant was that "our client has advised that in respect of points 2 and 3... the concrete storage space was completed and netting was erected at the concrete base." These points were issues of fact raised by the appellants. The Reporter concluded "I have been provided with no corroborated evidence that these requested actions took place". It is not clear whether the Reporter considered that he had any evidence from the Council that the factual position put forward on behalf of the appellants, in respect of these matters was wrong or challenged. I do not consider that it is possible to determine from the Reporter's decision what conclusion the Reporter made about this factual position. The Reporter then concluded that "In any case, the conclusion that the planning permission had been legally implemented in April 2002 may not have been correct." He drew a certain inference from correspondence from the Council in 2002 and the serving of the Breach of Condition Notice dated 31 May 2002 in relation to Condition 2. He concluded that "could also indicate that activities carried out on the site were not in accordance with November 2001 planning permission". In my opinion, the Reporter does not appear to appreciate that there are three critical issues to be considered. Firstly what factual position does he accept existed about the matters in dispute in the correspondence; secondly, on the basis of the facts he accepted is there non compliance in respect of a particular condition(s); thirdly, what is the effect of that in relation to section 27(1)(b)? In his discussion in paragraph 5, the Reporter referred to various letters. These letters were plainly predicated on the acceptance by the Council that there has been a change of use. I find the reasoning of the Reporter very difficult to follow. The Reporter appears to confuse the issue of commencement of the development with issues about breach of conditions which may occur after a development has commenced. I consider that his analysis of this critical issue is flawed as appears from this paragraph and that confusion, in my opinion, appears to permeate his decision-making.

[35] In paragraph 6, the Reporter again referred to the response of the Council. That response by the Council is on the basis that planning permission had been implemented. That is the only basis on which a planning contravention notice could have been served.

[36] In paragraph 7, the Reporter made reference to the SEPA Inspection Report dated 23 November 2006. The relevance of this date to the critical issue is unclear to me. Planning permission was granted on 20 November 2001. Condition 1 stated that development hereby permitted shall be started within five years of the date of the permission, that being 19 November 2006. I consider that this reference by the Reporter illustrates the lack of focus of the Reporter in relation to the critical issues which in my opinion he required to determine both in fact and in law. I also have difficulty in understanding the reference to the satisfactory wheel cleaning. This may be a reference back to the complaint by the Council about wheel cleaning in 2002. Whatever that complaint was intended to be, it is not in my opinion a breach of condition. It is unclear what relevance this has. The site log (1/100) commences 8 July 2003. The last entry within the five year period is 26 October 2006. Most of the entries record no activity. An entry at 31 August 2006 states:

"Noted that one side of site gate open and side door of building also open. Noises coming from building suggesting pneumatic hammering and also grating and grinding - possibly a crusher with material jammed in the jaws."

The entry which records activity on the site does not purport to indicate one way or the other whether the activity was within the terms of the planning permission. The log does not cover the period prior to July 2003.

[37] In paragraph 8, the Reporter again made reference to information about a period beyond the five year period up to 19 June 2009. He stated that "no visit confirms that the site was operating as specified in the 2001 planning permission".

[38] The same criticisms may be directed at paragraph 9. The photographs mainly post-dated 19 November 2006 as did the site visit. From the date of the Enforcement Notice the site was not being used as there was an Enforcement Notice.

[39] In paragraph 10 the Reporter did find in fact that the site has been used for general waste management purposes within the five year period. But he states that "I have no persuasive evidence that it is has ever been used within the terms of November 2001 planning permission". In my opinion, the difficulty with that conclusion is that nowhere did the Reporter explain what facts he accepted nor did he address the nature and meaning of the conditions to which the planning permission is subject. There is no finding in fact from which it is possible to conclude which conditions, if any, were fulfilled and which were not. The Reporter did not conclude that none of the conditions were ever obtempered. He left unspecified which conditions, in his conclusion as a matter of fact, were never fulfilled.

[40] I consider that counsel for the respondents was correct to insist upon a focus on the words in section 27(1)(b) which specify that a change in use shall be taken to be initiated at the time when the new use is instituted. In my opinion, however, that requires a focus by the reporter on the factual matters as to whether something more than preparation has been done to change the use of the premises from milk bottling to a distribution depot for the recycling of waste material with associated external storage, and whether such change has occurred in accordance within the ambit of the planning permission. I do not accept that such a change of use can only occur if all the conditions are fulfilled. I consider that in a case such as this it must be a matter of judgement on the facts to decide if and when the change of use to a distribution depot for the recycling of waste material with associated external storage took place. Because of the way in which the Reporter has approached the matter, it is impossible to determine what the factual situation was during the five year period. The Reporter appears to have approached the case by asking himself whether all the conditions were ever fulfilled and concluded that they were not.

[41] I was referred in great detail to the information placed before the Reporter but I do not consider that it is my task to decide the facts of the case on that material. I am persuaded that the Reporter has erred in law for the reasons I have given and on that basis I shall quash the decision dated 4 August 2009 of the Scottish Ministers through their Reporter.