Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 132
XA3/13	OPINION OF LORD BANNATYNE in the Appeal under the Town and Country Planning (Scotland) Act 1997, section 130(1) in the cause MR MOHAMMED ASIF AND MRS ZAREEN ASIF Appellants; against a decision of the Scottish Ministers, being the decision of the Reporter appointed by the Scottish Ministers to determine an appeal in terms of section 130(1) of the Town and Country Planning (Scotland) Act 1997 dated 23 November 2012 ________________

Appellants: Party

Respondents: Findlay; Scottish Government

9^th August 2013

Introduction
[1] This matter came before me for a hearing in terms of an interlocutor of the Inner House dated 9 May 2013. Mr Asif presented the appeal on behalf of himself and his wife (the other appellant). Mr Findlay, advocate, appeared for the Scottish Ministers.

Background
[2] The origin of this matter was an enforcement notice served on Mr Asif alleging a breach of planning control under section 127(1)(a) of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") arising from the erection by the appellants of an unauthorised boundary fence in the garden of their home (hereinafter referred to as "the appeal property").

[3] The enforcement notice required the removal of the boundary fence within the appeal property. It was not in dispute that the erection of the fence required planning permission and that none had been obtained.

[4] The appellants appealed to the Scottish Ministers against the enforcement notice on the basis of grounds (f) and (g) in section 130(1) of the 1997 Act which provides:

"(1) A person on whom an enforcement notice is served ... may, ... appeal ... against the notice on any of the following grounds -

...

(f) That the steps required by the notice to be taken, ....exceed what is necessary to remedy any breach of planning control which may be constituted by those matters or, as the case may be, to remedy any injury to amenity which has been caused by any such breach;

(g) That any period specified in the notice in accordance with section 128(9) falls short of what should reasonably be allowed."

[5] A reporter was appointed by the Scottish Ministers. The reporter dismissed the appeal against the enforcement notice on ground (f) but upheld ground (g) and accordingly directed the enforcement notice dated 14 August 2012 be upheld. It was against the dismissal of the appeal on ground (f) that this appeal came before me. The questions of law which were submitted for the opinion of the court were as follows:

(1) Did the reporter misdirect himself on the applicable facts/evidence and thereby proceeded to make a decision that was irrational and so unreasonable that a reasonably informed decision maker would not make?

(2) Did the reporter fail to take into account all relevant facts compounded by his failure to apply his mind to irrelevant facts so as to render his decision irrational?

(3) Did the reporter failed to adequately or at all exercise his duty and decision making by failing to consider mitigation or abatement of perceived damage to amenity by considering options that did not involve the removal of the fence?

Submissions for the appellants
[6] Mr Asif addressed the court on behalf of himself and his wife and did so by reading the written submissions which accompanied his grounds of appeal. In addition to that document, I have also had regard when considering his position to his written response to the answers for the Scottish Ministers, the whole papers in the joint appendix and a video of the appeal property, which the appellants wished me to view and to which Mr Findlay took no objection.

[7] Looking to the grounds of appeal and the other papers before me I believe it is correct, as Mr Findlay submitted, that there were six real grounds of challenge to the decision and these can be summarised as follows:-

(1) In reaching his decision the reporter had misunderstood the layout of the property in that he had failed to appreciate that the fence was erected at the side of the appeal property and not in the front garden.

(2) In reaching his decision he had failed to consider the security needs of the appeal property.

(3) His view of the general nature of the estate in which the appellant property was situated was wrong in that he had failed to appreciate and reflect in his decision that there were many properties within this particular development that were protected by the erection of fences at the sides and the rear of the properties and made of materials used by the appellants having an appearance less attractive than the fence erected by the appellants.

(4) His view that one reason for rejecting the appeal was it would set a precedent in the estate was wrong.

(5) He had erred in stating that the rear garden of the appeal property continued to have the protection of the original screen wall part of which had been retained. There was in fact no such wall.

(6) He had failed to take account of whether the alleged damage could be abated by additional planting of plants or shrubs.

[8] Mr Asif submitted that having regard to the foregoing, the decision of the reporter was Wednesbury unreasonable. Mr Asif accepted that it was entirely for the decision maker (the reporter) to attribute to the relevant considerations such weight as he believed was appropriate and that the court would not interfere with this. However, it was his position that the reporter had had regard to irrelevant factors and failed to take account of relevant factors. In these circumstances it was his position that the decision was Wednesbury unreasonable.

Reply for the Scottish Ministers
[9] As regards the suggestion that the reporter had misunderstood the layout of the appeal property, Mr Findlay submitted that on a fair or indeed any reading of the decision notice, there was in fact no basis upon which to conclude that the reporter had misunderstood the layout of the property or its relationship to the various roads. In particular he drew my attention to paragraphs 2 and 6 of the decision letter and he contended that from these it was clear that the reporter was well aware the property had two frontages and that an original wall in the same broad location was, set back from the boundary.

[10] With respect to the criticism of the reporter's reference to a section of rear wall as being present, which at all hands was accepted was not present, he submitted in his written argument as follows:

"The reference to protection of the remaining part of the rear garden screen wall in paragraph 7 of the decision letter was made on the basis of what the reporter understood the position to be on the basis of the documents before him, which included a block plan approved as part of the permission 2010/0079/P and of what could reasonably be observed, as he had not had an opportunity to enter the garden itself."

[11] With respect to what flowed from the said mistake, it was his position that it was irrelevant whether or not the wall was actually in place as there was clear planning permission for it under reference 2010/0078/P and if the appellants were concerned about privacy and/or security, which it might afford, then they could reinstate the wall. Secondly, and in any event, the reporter only relied upon it as providing protection to the garden, which was also protected by the new extension.

[12] Turning to the issue of security, he contended that the reporter was quite entitled to address the issue as one primarily of privacy, given the content of both the grounds of appeal and the appellant's response to the council's comments and in any event the considerations overlapped to a significant extent. He submitted that the reasons that the reporter had given dealt with the significant issues and were proper, adequate and intelligible.

[13] As regards the suggestion that the reporter's view of the general nature of the estate was in error, he made a concise submission which was this: it was quintessentially a matter of planning judgement for the reporter.

[14] As regards the issue of precedent he submitted that it was a matter the reporter was entitled to have regard to.

[15] With reference to mitigation he referred to the position of the council that they wished the fence taken down and replaced by the permitted lower wall and railings.

[16] For the foregoing reasons he submitted that the appeal should be refused and the questions raised answered, as proposed in the respondent's answers.

Discussion
[17] In the course of the submissions there was discussion as to the legal principles which the court should apply where there is a challenge to the contents of a decision letter.

[18] The various principles which are material to the consideration of this appeal can be summarised as follows:

1. The correct approach to challenges to a reporter's decision is to be found in the opinion of the Lord Justice Clerk in Moray Council v Scottish Ministers 2006 SC 691;

"Decision letters

[28] Counsel for the appellant has subjected the decision letter to detailed textual analysis and criticism. In doing so he has, I think, asked us to judge it by a needlessly exacting standard. The function of the reporter is to make a decision by reference to the provisions of the development plan and to other material considerations (1997 Act, s 37(2); s 48(5)(a)). In so doing, he has to make his determination in accordance with the development plan unless material considerations indicate otherwise (1997 Act, s 25; of City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, Lord Clyde, pp. 43-44). In the normal case, the reporter will have to consider, in addition to the development plan, any relevant national planning guidance, responses from consultees, expert evidence from the principal parties on the facts and on the planning issues and representations from supporters and objectors.

[29] His starting point will be the development plan, considered if need be in the light of national planning guidance. Having regard to the development plan framework and the nature of the proposal, he must decide what are the determining issues. With those issues in mind, he must make his findings in fact on the nature of the proposal and its probable effects. It is for him to decide what lines of evidence are material to the determining issues and what conclusions are to be drawn from them.

[30] The reporter must then decide in the light of his findings how he resolves the determining issues. This involves the exercise of his planning expertise and judgment. In his decision letter he must set out the process of reasoning by which he reaches his decision; but that does not require an elaborate philosophical exercise. Nor does it require a consideration of every issue raised by the parties. The reporter is entitled to confine himself to the determining issues. So long as his reasons are intelligible and adequate, he is entitled to express them concisely. The guiding principle is that the decision letter should leave the informed reader in no substantial doubt as to the reporter's findings in fact and conclusions on the determining issues, and as to the way in which he has applied section 25 of the 1997 Act in reaching his decision...)".

[19] The principles governing the reporter's approach to materiality, weight and planning judgement, are well understood and they are matters solely for the reporter as explained in the well-known observations of Lord Hoffman in Tesco Stores Ltd v Secretary of State [1995] 1 WLR 759 at 780:

"This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

This view was endorsed in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33.

[20] As regards matters of opinion, the court should defer to the specialist tribunal and only intervene where there is no factual basis for them (Nelson v Allan Bros & Co (UK) 1913 SC 1003; Cartledge v Scottish Ministers [2011] CSOH 53).

[21] As regards the principles governing challenges to the reasons contained in a decision letter, these are helpfully summarised in the House of Lords decision in South Bucks District Council v Porter (No. 2) [2004] 1 WLR 1953, paragraph 36, where Lord Brown observed as follows:

"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced."

[22] Given the way that the argument developed before me, the issue of the requirement of prejudice in the context of a reasons challenge was of some importance. The law regarding this is summarised by Lord Bridge in Save Britain's Heritage v No 1 Poultry Ltd [1991] 1 WLR 153, at page 167 where Lord Bridge said this:

"Whatever may be the position in other legislative contexts, under the planning legislation, when it comes to deciding in any particular case whether the reasons given are deficient, the question is not answered in vacuo. The alleged deficiency will only afford a ground for quashing the decision if the court is satisfied that the interests of the applicant have been substantially prejudiced by it. This reinforces the view I have already expressed that the adequacy of reasons is not to be judged by reference to some abstract standard. There are in truth not two separate questions: (1) were the reasons adequate? (2) if not, were the interests of the applicant substantially prejudiced thereby? The single indivisible question, in my opinion, which the court must ask itself whenever a planning decision is challenged on the ground of a failure to give reasons is whether the interests of the applicant have been substantially prejudiced by the deficiency of the reasons given."

[23] Finally so far as the approach to decision letters is concerned, the principles to be applied are that a decision letter must be read:

(1) Fairly and in good faith, and as a whole without an unduly legalistic or critical approach;

(2) In a down to earth manner, and not as if it were a legal instrument;

(3) As if by a well-informed reader who understands the principal controversial issues in the case (see: per Lord Glennie in The Cairngorms Campaign v CNP & Another [2012] CSOH 153 at paragraphs 72 to 81).

[24] I now turn to consider the submissions in light of the legal principles which I have identified.

[25] As regards the criticism of the reporters understanding of the appeal property's layout, I am of the view that there is no substance in this submission. On a fair reading of his decision letter at paragraph 2 the reporter shows a clear understanding of the layout of the appeal property. In particular on a fair reading of the said paragraph, he has understood that there are two frontages to the appeal property in that the appeal property is situated on a corner site and accordingly faces onto two roads. Beyond that, it is clear that he has understood where the fence which is the subject of the enforcement notice is situated.

[26] With respect to the existence of the rear garden wall, the appellants are correct in submitting that the reporter has wrongly stated that the wall is present. His mistake, is however understandable, given that the wall according to the block plan submitted as part of the permission, should have been present. As explained on behalf of the appellants, this wall had been demolished when the extension was built.

[27] I am persuaded on the basis of the arguments presented to me by Mr Findlay, that of itself, nothing turns on this mistake. I accept the submission made by Mr Findlay, that this mistake would broadly only be of any relevance to the appeal if it could be shown that there was material prejudice to the appellants which had arisen as a result of this mistake. In that the wall could be reinstated without the need for planning permission I do not see that any prejudice has arisen.

[28] The third detailed issue which was raised on behalf of the appellants was their contention that the reporter had failed to take account of the issue of security. In their "Appeal to the Scottish Ministers" the appellants say this:

"The fence supports a reasonable level of privacy both in our gardens and in our main living spaces. We sought only to avail ourselves from overlooking by passers-by at such close range. The removal of the fence would deny us the privacy and protection sought."

[29] It appears to me on a fair reading of the foregoing that the appellants' core concern was privacy and that an aspect of the privacy issue was security. Accordingly in dealing with privacy the reporter has dealt with their core concern.

[30] Beyond that, I believe there is force in the submission of Mr Findlay that there is a material overlap between privacy and security and therefore in dealing with privacy the reporter has also dealt with the issue of security. There was, I believe, no requirement for the reporter to deal with the issue of security separately from privacy given this material overlap. Accordingly for the foregoing reasons in my view there is no merit in this argument.

[31] As regards the reporter's view on the effect of the fence on the wider housing estate, namely: that, if allowed, it would create a precedent, I believe precedent can properly be a material consideration in planning matters. The reasons the reporter gives for considering precedent are relevant (see: paragraph [7]). He was therefore entitled to consider it. Thereafter precedent is a matter of planning judgement and therefore a matter with which this court could not interfere. Equally his view of the general nature of the estate is a matter of planning judgement and therefore a matter with which this court could not interfere.

[32] Finally turning to the argument that the reporter had not had regard to the issue of mitigation I do not believe there is any merit in this submission. The reporter makes express reference in paragraph 3 to the contention that there has been softening of the appearance of the fence by planting. Looking to his decision at paragraph 6 he refers in the last sentence to the efforts of the appellants to improve the fence's appearance but nevertheless holds that it is inappropriate at the location. In these circumstances he has had proper regard to this issue.

[33] Overall it appears to me that for the reasons I have articulated above that:

(1) The reporter has had regard to all relevant factors and has not had regard to any irrelevant factors;

(2) He has not misdirected himself as to the facts;

(3) The reasons he has given for his decision cannot be faulted;

(4) Lastly, the impact of this wall given its position, height and materials, in this particular location is a matter of planning judgement for the reporter and the decision which he has reached in relation to that he is entitled to come to.

Decision
[34] For the foregoing reasons I would answer all of the questions in law which are posed for the opinion of the court in the negative and accordingly refuse the appeal. I reserve all questions of expenses.