Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2017] CSIH 16

XA79/16

Lord Menzies

Lady Clark of Calton

Lord Glennie

OPINION OF THE COURT

delivered by LORD MENZIES

in

Appeal under Section 239 of the

Town and Country Planning (Scotland) Act 1997

by

ROBERT WEBSTER THOMSON

Appellant

against

THE SCOTTISH MINISTERS

Respondents

Appellant:  Party

Respondent:  Burnet;  Scottish Government Legal Directorate

21 February 2017

The Issue
[1]        This is an appeal in terms of section 239 of the Town and Country Planning (Scotland) Act 1997 (“the Act”) against a decision by a DPEA reporter dated 23 June 2016 to refuse in part an appeal by the appellant in terms of section 130 of the Act against an enforcement notice served on the appellant by Argyll and Bute Council (“the Council”) on 26 February 2016.  The issue before this court is whether the reporter’s decision is within the powers of the Act, and whether any of the relevant requirements have not been complied with in relation to the reporter’s decision.

The Factual Background
[2]        The appellant resides in a substantial category B listed building which is a detached dwelling house within the Upper Helensburgh conservation area.  The appellant’s house faces over its own spacious garden grounds to the front;  however, there are other properties in close proximity to the appellant’s house to the east, north and north-west.  In particular, Cue Cottage is situated immediately adjacent to the east side of the appellant’s property.

[3]        Although not relevant to the issues before us, it was apparent from the appellant’s submissions to us that he does not enjoy a cordial relationship with the present owners of Cue Cottage.  Over the last few years, relations between the appellant and the Council, and between the appellant and the police, have also deteriorated, and the appellant has made complaints about the conduct of officers of both the police and the Council.  Again, this is not relevant to the issues before us, but featured large in the written materials and oral submissions made to us by the appellant.

[4]        On 11 October 2013, the appellant applied for planning permission for the erection of a fence and installation of two security cameras.  The application described the fence as a “new featherboard boundary fence, 1.8m high with 0.3m trellis (total 2.1m)”.  This appears to have been intended to delineate the boundary between the appellant’s property and Cue Cottage and its associated back garden, and to provide privacy and security.  The fence ran between the two properties in an approximately north/south direction, and then along the south boundary of the back garden of Cue Cottage.  By letter dated 9 June 2014, the Council granted planning permission for this development, subject to the condition that the development “shall be implemented in accordance with the details specified in the application form dated 13/12/13 and the approved drawings”.

[5]        On 26 February 2016 the Council served an enforcement notice on the appellant in terms of section 127 of the Act.  This notice asserted that there had been a breach of planning control and required the appellant to remove the 0.3m trellis on top of the fence.  The reasons for issuing the notice included that:

“The additional height of the fence over that approved means that the fence is an incongruous, overbearing and dominant feature when viewed from Cue Cottage.  It is visually intrusive, visually discordant and undermines the amenity of this adjoining property and the setting of Hapland itself which is category B listed”.

The notice asserted that the increased height of the fence and the trellis taken together was considered unacceptable and was contrary to specified policies in the local development plan and supplementary guidance, which presume against development that detrimentally affects a listed building and which does not preserve or enhance the character or appearance of a conservation area.

[6]        The appellant appealed against this enforcement notice to a reporter appointed by the respondents.  The grounds on which he relied were those contained in section 130(1)(c) and (f) of the Act – that is, (c) the matters stated in the notice (if they occurred) do not constitute a breach of planning control, and (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.

[7]        The reporter decided to proceed by means of written submissions, together with a site inspection.  The appellant’s completed appeal form was dated 12 April 2016 and received by the DPEA on 22 April 2016.  On that day the DPEA requested a response from the Council.  On 10 May 2016 the Council intimated that it had not received a copy of the appeal documents from the appellant.  On 14 May 2016 the appellant sent copies of the appeal documents to the Council.  On 20 May 2016 the DPEA received the Council’s response form and statement of case.  On 6 or 7 June the reporter received the appellant’s response to the Council’s statement of case.  On 9 June 2016 the reporter carried out a site visit, at which amongst others the appellant and representatives of the Council were present.  In the course of this site visit, the reporter carried out several measurements of the boundary fence and trellis.  On 23 June 2016 the reporter issued her appeal decision.  In short, she varied the enforcement notice to allow the retention of the section of trellis erected along the western boundary of the garden of Cue Cottage (running in an approximately north/south direction), and so allowed the appeal on ground (f) to this extent.  She refused the appeal in relation to that part of the fence running along the south side of the garden ground of Cue Cottage.

Discussion of the appellant’s complaints, together with decision and reasons
[8]        In these appeal proceedings the appellant has raised a wide variety of complaints, in his grounds of appeal, the appendix thereto, in a significant number of documents produced before us, and in his written Note of Argument.  He developed these in his oral submissions to the court.  The respondent lodged answers to the grounds of appeal and a written Note of Argument, and also made oral submissions to the court.  We have taken account of all of this material.  We do not consider that it is helpful or necessary to set all this material out in detail in this Opinion.  Instead, we propose to give the following brief summary of the appellant’s points, together with our decision on these and brief reasons for our decision.

[9]        The first ground of appeal involves various complaints of bias and improper conduct, including the provision of misleading and false information, on the part of Council officers.  As indicated above, the appellant lodged several documents involving formal complaints which he had made to the police about their conduct, and to the Scottish Public Services Ombudsman about the conduct of the Council and one of its officers in particular.  He also gave a history of ill-feeling between himself and his neighbours occupying Cue Cottage and his concerns about them.  He suggested that planning officers employed by the Council were biased against him and had submitted deliberately dishonest information to the reporter.  However, he was at pains to make clear that he did not suggest that the reporter was acting maliciously.

[10]      We do not consider that the various complaints and concerns which the appellant expressed under reference to his first ground of appeal are relevant to the issues before us.  It may be (and we express no view on this) that the appellant may have other routes by which he may raise such grievances as he has;  however, an application to this court in terms of section 239 of the Act is not a legitimate route.  All that this court is concerned with in terms of section 239 is whether the decision of the reporter is within the powers of the Act, or whether any of the relevant requirements have not been complied with in relation to that decision.  We have no jurisdiction in this process to consider the appellant’s other complaints.  The reporter reached her decision on the basis of a de novo consideration of the grounds of appeal to her.  The appellant expressly disavowed any suggestion of bias or malice on her part.  We cannot sustain the first chapter of the appellant’s grounds.

[11]      As part of his first ground of appeal, the appellant suggested that the reporter should have awaited the decision of the Scottish Public Services Ombudsman in relation to his complaint against the Council, before proceeding to consider his appeal against the enforcement notice.  The appellant did not develop this ground far, either in his written material or in his oral submissions to us.  It is not clear to us why the reporter should defer the proceedings before her in order to await the decision of the SPSO.  The complaint to the SPSO related to alleged improprieties by officers of the Council;  that is a separate and different matter from the issues raised by an appeal under section 130(1)(c) and (f) of the Act.  The reporter herself has planning expertise, and was able to reach a concluded view on the planning issues before her, whether or not the appellant’s complaints to the SPSO about the Council were upheld.  There is no force in this ground of appeal.

[12]      The appellant’s second ground of appeal encompassed several issues.  He submitted that the reporter (or the DPEA) mismanaged the appeal procedures by allowing the Council 42 days within which to respond to the appellant’s case (not the 21 days provided for in the regulations), and by fixing a site visit for 9 June 2016 many weeks in advance.  The cumulative effect of these points was that the appellant could only provide his response about 2 or 3 days before the site visit, and the reporter would therefore not have had adequate time to consider his response properly before the site visit.

[13]      It is for the court to assess whether there has been any irregularity in the procedures before the reporter, and if there has, whether any such irregularity has resulted in unfairness – Brown v Scottish Ministers [2015] CSIH 49 at paragraph 20.  It is a matter for the reporter to decide what procedure to adopt, and the amount of information that she requires in order to reach her decision is a matter of planning judgement for the decision-taker – Simson v Aberdeenshire Council 2007 SC 366 at paragraph 23.  In the present case, the reporter decided to proceed by means of written submissions and a site visit.  We consider that this was a reasonable procedure for her to adopt.  When the DPEA was advised by the Council that it had not received all the appeal documents from the appellant, we consider that it was reasonable for the Council to be allowed further time in order to consider the full documents before lodging its response form and statement of case.  The appellant was then able to lodge his response some days before the site visit.  The implication from the appellant’s submissions on this point is that the reporter reached her decision at the site visit;  if that is the appellant’s position, it is not supported by any material placed before us.  The reporter made her decision on 23 June 2016, and she appears to have had regard to the written material before her as well as what she saw and did at the site visit.  She had ample time to consider all of the material before she reached her decision.  We find no procedural irregularity in the procedures which she adopted, and no unfairness or prejudice has arisen as a result of these procedures.  We are not persuaded that there is any force in the second ground of appeal.

[14]      The third ground of appeal takes issue with the merits of the reporter’s decision.  There are two principal aspects to this, (a) that the reporter had no regard to “precedent”, and (b) that the reporter had misunderstood or even manipulated the fence height measurements and ended up using the wrong measurements.  There were other respects in which the appellant challenged the reporter’s planning judgement about privacy, amenity and more acceptable remedies.

[15]      The first point we must make is a point recognised in the appellant’s own Note of Argument and acknowledged by him in his oral submissions – the planning merits, and issues of planning judgement are not matters for this court (Carroll v Scottish Borders Council [2015] CSIH 73).  The assessment of amenity, the impact on a listed building, and the weight to be attached to various considerations, are matters of planning judgement with which this court cannot interfere.

[16]      The appellant complains that the reporter’s decision took no regard of “precedent”.  He explained in oral submissions to us what he meant by precedent, namely that the Council had not taken enforcement action in respect of fences erected by his neighbour, and other fences in the immediate vicinity, and had classified these fences as Non‑Material Amendments (“NMA”).  If the Council were prepared to treat those fences as NMAs and take no enforcement action in regard to them, it was unfair that they should not treat any extra height in the appellant’s fence as an NMA, and they should not have issued an enforcement notice.

[17]      There is no concept of binding precedent in decisions on enforcement of planning control such as may be familiar in courts of law.  Each case will depend fundamentally on its own facts and circumstances.  The fact that a planning authority has (whether reasonably or not in the particular circumstances) decided that a different breach of planning control should be treated as an NMA does not preclude it from issuing an enforcement notice in respect of another breach of planning control.  More particularly, it is not directly relevant to the reporter’s decision in the appeal to her that the Council has treated other breaches of planning control differently.  The other decisions by the Council may have been right, or they may have been wrong – they are not of direct relevance to the issues to be determined by the reporter.  The fact that there are other high fences in the vicinity may be a factor which the reporter takes into account when considering the issue of the proportionality of any enforcement notice to remedy any injury to amenity which has been caused by a breach of planning control, in terms of section 130(1)(f).  However, the Council’s attitude to these other breaches of planning control is not relevant.  Moreover, the assessment of whether the steps required by the notice exceed what is necessary to remedy any injury to amenity which has been caused by this breach is also a matter of planning judgement, with which (as explained above) this court will not interfere.

[18]      With regard to the suggestion that the reporter made errors in her measurements of the fence which led her to be mistaken in fact as to the actual height of the fence at various points, section 239 of the Act does not provide for an appeal on a question of fact – we can only consider whether the decision was within the powers of the Act, or whether any of the relevant requirements have not been complied with in relation to it.  In any event, the reporter has expertise in her own field of speciality.  She has taken measurements of the fence, and set out in her decision letter the proper methodology for doing so and the difficulties occasioned by uneven ground levels at this site.  The measurements which she took show that the fence presently exceeds the permitted height by between 2 to 30cms along its length.  She found that it constituted a breach of planning control and therefore the appeal on ground (c) failed.  It is not open to this court, on the material before it, to go behind this finding.

[19]      There is nothing in the materials before us to suggest that the reporter has fallen into error of law on the question raised in section 130(1)(c).  She was entitled to find that the matters stated in the enforcement notice constituted a breach of planning control.  She was therefore entitled to hold that the appeal failed on ground (c).

[20]      The reporter went on to consider the appeal under ground (f), whether the steps specified in the notice, in this case the removal of the trellis, exceeded what was necessary to remove the breach of planning control or remove any injury to amenity caused by the breach.  She considered the impact of the increased height on the amenity of Cue Cottage;  she found that it increased the sense of enclosure at the rear of the property, particularly given the limited garden depth, and she found that the trellis would add to the amount of shade cast to some degree.  She considered that the increased height caused the fence to be a dominating and overbearing feature particularly at the south-eastern side of the garden.  She also considered the effects on the listed building and the need to preserve or enhance the character and appearance of the conservation area.  On these latter issues she found for the appellant, and was not persuaded that the increase in the height of the fence above what was approved detrimentally affected the listed building or adversely impacted on the conservations area.  She decided that the additional 0.3m made a discernible difference and was detrimental to the reasonable enjoyment and amenity of Cue Cottage running along the south side of Cue Cottage, and that the requirement to remove the trellis along the southern boundary of Cue Cottage was not excessive.  She varied the notice to allow the trellis to remain along the side boundary between Hapland and Cue Cottage.  There is nothing before us to suggest that the reporter has failed to take account of a material consideration, nor that she has taken into account irrelevant material.  The weight which should be given to the various considerations is a question of planning judgement, which was entirely a matter for the reporter – Tesco Stores Ltd v Secretary of State for the Environment 1995 1 WLR 759 at  780.

[21]      In conclusion therefore, we are not persuaded that the reporter’s decision was not within the powers of the Act, nor that any of the relevant requirements have not been complied with in relation to that decision.  Accordingly we must refuse this appeal.