Planning Enforcement Notice Challenge Dismissed

Scotland

Introduction

The Inner House of the Court of Session recently dismissed an appeal in relation to an enforcement notice served by Angus Council.

The enforcement notice was served as a result of the Council finding that the appellant in the case had breached the planning control in place on his property in Muirdrum, Carnoustie.

Following service of the notice, the appellant challenged a decision by the Scottish Ministers’ reporter to uphold, in part, an enforcement notice served upon him by Angus Council. The appellant argued that the reporter erred in certain procedural respects, drew erroneous conclusions, failed to consider relevant evidence, and considered irrelevant factors.

In summary, the Court found that:

  1. The appellant had been given fair notice of the breach which he was alleged to have committed.

  2. There was no need for the reporter to provide reasons for his site visit.

  3. The fact that other fencing in the neighbourhood was in excess of one metre does not detract from the reporter’s finding that the appellant had breached planning controls on the site by reason of the height of his fencing.

  4. The appeal seeks to re-open matters concerning the merits of the case which are outwith the scope of an appeal to the Court.

Lord Carloway, Lord President delivered the opinion of the Court refusing the appeal.

Background

The enforcement notice was served on the appellant in October 2020 on the basis that two breaches of planning controls had been found to have occurred, including:

  • A change in the use of land, given that it was now being used to store and site storage containers, motor vehicles, plant, machinery and machinery parts, rather than being used for agricultural purposes; and

  • The erection of fencing and gating on the property without authorised planning permission.

The appellants main argument in response to the service of the enforcement notice was that the land was still being used for agricultural purposes. It was argued that the containers and vehicles present were being used to maintain the agricultural land, as well as to store animal feed, and that the horses were still being cared for, meaning that no breach had occurred.

In any event, the appellant argued that the containers, gates and fencing had been there for more than four years which ultimately meant that the enforcement notice was time-barred under section 124(1) of the Town and Country Planning (Scotland) Act 1997 (the “Act”).

The reporter conducted a site visit and found evidence supporting the fact that the breaches had in fact occurred, including the presence of unauthorised machinery, fencing and gating and no confirmed presence of animals on the site. The appellant had produced the reporter with photographs substantiating his position (that no breach had occurred), however, these photographs were not officially date-stamped.

The reporter ultimately upheld the appeal on ground (f) of section 130 of the Act and the enforcement notice was amended. Given that the original enforcement notice did not make an allowance for the storage of items that were reasonably necessary for the agricultural use of land, it was therefore excessive.

The appellant then further appealed on a number of grounds, set out below.

Submissions

The Grounds of Appeal submitted by the appellant were as follows:

  • The reporter included matters not previously laid before the Council, and section 47A of the Act precluded the reporter from including new matter in their decision;

  • The reporter did not provide reasons for his unaccompanied site visit within the letter giving notice of it;

  • The reporter erred in failing to prefer the evidence submitted by the appellant;

  • Regardless of what the appellant produced, the reporter rejected it, which was excessive and oppressive and contrary to the appellant’s Article 6 rights under the ECHR;

  • The reporter failed to ask the appellant any questions regarding the storage containers that had been used that were said to constitute a breach;

  • The reporter misapplied section 277(1) of the Act; and

  • The appellant should have had the chance to reduce the height of his fencing that was said to constitute a breach.

In response, the respondent argued that:

  • Section 47A related to what the parties could do in the conduct of an appeal, not the reporter;

  • The appellant was attempting to re-argue the merits of his case, which does not come within the limited scope of the ability to bring an appeal under section 239(1) of the Act;

  • The reporter was entitled to reach the decisions that he did based on the material before him; and

  • The reporter took into account all relevant considerations.

Decision

The Court Concluded that:

  • Fair notice must be given of a breach under section 130 of the Act and in this instance, the appellant was given such fair notice;

  • The reporter did not have to provide reasons for his site visit as part of the appeal as, under regulation 12 of the Town and Country Planning (Appeal) (Scotland) Regulations 2013, the reporter is authorised and entitled to carry out unaccompanied visits if necessary; and

  • The reporter is entitled to reject the contentions he thinks fit and does not have to pose further questions if this is not deemed to be necessary.

The Court highlighted the importance of the correct use of the legislation, as there had been confusion over the requirements relating to the appropriate time-limits pertaining to appeals under the Act. The reporter found that despite the appellant arguing that the enforcement notice was time-barred, it was not, as a change of use from agricultural to the storage of containers would only become lawful development after ten years, not four. The time limit at hand therefore fell under section 124(3), not section 124(1), the latter of which the appellant had sought to argue.

It was finally concluded, amongst the reasoning stated above, that as the appellant sought to re-open matters concerning the merits of the case, which is out with the scope of the appeal under section 239(1), the appeal was ultimately refused.

Article co-authored by Amy Hammond, Trainee Solicitor at CMS.