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OUTER HOUSE, COURT OF SESSION
[2009] CSOH 4
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P1531/08
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OPINION OF
LADY CLARK OF
CALTON
in the Petition
of
G HAMILTON
(TULLOCHGRIBBAN MAINS) LIMITED
Petitioners;
For
Judicial Review
ญญญญญญญญญญญญญญญญญ________________
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Petitioner: Campbell QC, Brodie; Archibald Campbell & Harley WS
First Respondents: Smith QC; Biggart Baillie LLP
Second Respondents: Martin QC; Tods Murray LLP
13 January 2009
Summary
[1] In this case the petitioners
are heritable proprietors of an area of land at Tullochgribban (also known as
Tullochgorum). The petitioners seek
declaratory and reduction remedies, in terms of paragraph 11 of the petition,
in relation to the approval by the first respondents of purported new planning
conditions applicable to a dormant mineral site at Tullochgribban. The first respondents are the Highland
Council who are the planning authority for the purpose of approving said
conditions in terms of the Town and Country Planning (Scotland)
Act 1997, Schedule 9 (hereinafter referred to as "Schedule 9"). The second respondents, Ennstone Thistle
Limited, are a company which have made an application under Schedule 9
paragraph 9 for approval of a schedule of conditions in respect of mineral
rights over an area of land broadly coextensive with the said area of land at
Tullochgribban. The case came before me
for a first hearing and I heard submissions from parties over two days.
Submissions on behalf of the petitioners
[2] Senior counsel for the
petitioners set out the heritable rights of the petitioners and second
respondents under reference to paragraph 2 of the petition and 6/1 - 8 of
process. Under reference to paragraph 3
of the petition, he explained that the second respondents' predecessor in title
obtained planning permission in 1965 (the "1965 permission"). That permission is set out in 6/3 of
process. The 1965 permission permitted, "the
working of minerals on land at Tullochgorum, Carrbridge, in accordance with the
plan (s) submitted to the council and docketed as relative hereto" subject to
certain specified conditions. Senior
counsel submitted that one of the difficulties in the case is that no plan or
any copies thereof are now known to exist.
Despite a difference in the names Tullochgribban and Tullochgorum, it
was not disputed that both names referred to the same location which is shown
on the map in the schedule attached to the petition. The said map indicates three boundary areas to
which reference was made in this dispute between the parties. The larger red boundary area, in broad terms,
represents the area in respect of which the mineral rights are held by the
second respondents and the area of land owned by the petitioners. A green boundary area and a yellow boundary area
are also delineated on said map. The
former corresponds with the green boundary area on the plan 6/6/3 of process. Senior counsel for the petitioner submitted that
as a matter of fact, the mineral works extended to the yellow area and were not
limited to the area of ground delineated in green. (Said areas are hereinafter referred to respectively
as the "red" or "yellow" or "green" boundary.)
[3] Senior
counsel for the petitioners set out the legislative framework. Certain legislative provisions were
introduced in the Environment Act 1995 ("the 1995 Act") section 6 and Schedule
13 in respect of permissions such as 6/3 of process for the winning and working
of minerals granted by any planning authority between 1948 and 1982. There was a re-enactment of said statutory
provisions in essentially the same terms in respect of Scotland by the Town and
Country Planning (Scotland) Act 1997 ("the 1997 Act") Schedule 9. The aforesaid provisions of the 1997 Act had
a commencement date of 28 May 1997. Against the background of the legislative
framework, in particular Schedule 9, senior counsel made the following
submissions about the factual history under reference to various
documents. The first respondents as the
planning authority, issued a first list, under the 1995 Act. That list did not include Tullochgribban Quarry
(6/4 of process). Tilcon (Scotland)
Limited the then heritable proprietors of the mineral rights at Tullochgribban,
applied for the inclusion of Tullochgribban Quarry on the first list in a
letter with attachment and plan received by the planning authority on 7 May
1997, (6/5/1-3 of process). In terms of
said letter (6/5/1 of
process), Tilcon (Scotland)
Limited applied to the planning authority for inclusion of Tullochgribban
Quarry on the first list as a Phase 1 active site. The site plan attached corresponds to the red
boundary area (6/5/3). The first respondents gave notice by letter
to Tilcon (Scotland)
Limited dated 15 July 1997: "that the above mineral site..has been added
to the first list of sites prepared by the Council as a dormant site. The appropriate reference sheet and site plan
relating to this additional entry are enclosed.
As this site has been classified as dormant, no development consisting
of the winning and working of minerals or involving the depositing of mineral
waste may lawfully be carried out until new planning conditions have been
submitted to, and approved by, the Council" (6/6/1 of process) The plan attached to the said letter,
notifying the listing of the mineral site, showed an area defined by the green boundary
area (6/6/3 of process). The reference
sheet was a single written page setting out basic details in respect of the
site (6/6/2 of process). Senior counsel submitted that the planning
authority did not agree to the request to include the larger red boundary area
and did not agree that the site was an active site. Senior counsel submitted that Tilcon
exercised no right of appeal in relation to the first respondents' decision of 15 July 1997. Such a right of appeal was provided in terms
of Schedule 9 paragraph 6 (11).
[4] It
was submitted by senior counsel for the petitioners that the next relevant
event occurred in or about 2006 when land agents for the second respondents
became involved in discussions with the first respondents to agree new
conditions to which the relevant planning permission would be subject to enable
activation of the dormant Tullochgribban site.
Thereafter there was correspondence between said land agents and the
first respondents (6/7/1-4 of process and 6/8) whereby the first respondents agreed
to proceed on a boundary corresponding to the red boundary area with some
adjustment. The details are set out in
said correspondence. Thereafter on 27 April 2007 the second respondents
applied to the first respondents for approval of a schedule of conditions to
which the 1965 permission would be subject in terms of Schedule 9
paragraph 9. Senior counsel explained
that formal determination of the said application was presently pending before
the first respondents. He submitted that
it is plain from the correspondence, and in particular 6/8 of process, that the
first respondents are purporting to agree that the area over which conditions
will be imposed is an adjusted red boundary area.
[5] The
criticism made by senior counsel for the petitioners was that the first
respondents have commenced or purported to deal with the application by the
second respondents on the basis that the mineral site listed was the site
defined by the adjusted red boundary area, not the more limited green boundary area
which was the area shown on the site plan referred to in the listing decision
6/6/1 to 6/6/3 of process. He submitted
this was the critical issue in the case.
[6] The
legal submission of senior counsel for the petitioners may be summarised as
follows: in purporting to determine an application for approval of conditions
in respect of the 1965 planning permission, the first respondents had acted ultra vires in determining that it is
entitled to do so on the basis of the adjusted red boundary area, an area of ground
larger than that referred to in 6/6/1-3 of process. Senior counsel submitted that it is not
disputed that the plan which defines the area of land to which the 1965
planning permission extends is missing and was missing at the time of the
listing in 1997. He submitted under
reference to Schedule 9 paragraph (12) that when the then planning
authority issued the first list (6/4 of process), the Tullochgribban site was
not included in the list of mineral sites.
He submitted under reference to Schedule 9 paragraph (12) that the legal
effect of that, had no action been taken on behalf of the second respondents,
would have been that the planning permission which existed in respect of the
Tullochgribban site would have been extinguished. He submitted that it is plain from the
legislation that a pre existing right of planning permission may be
extinguished in full if listing is not achieved timeously. In this case full extinction of planning
permission did not result because application was made for inclusion of
Tullochgribban on the first list as a Phase 1 active site (6/5/1-3 of process). The application referred to a plan showing the
red boundary area. It was submitted that
the planning authority were entitled to accede to said application in respect of
all, or part only, of the land identified in the application. The planning authority were also entitled to decide
that it was a dormant site not an active site.
The planning authority was entitled to list the site which it considered
to be correct, in the sense that there had been issued a relevant planning
permission in respect of the site. The
planning authority was not limited to listing what was submitted to it by an
applicant for inclusion on the list.
Senior counsel submitted that on a proper interpretation of the
correspondence of 15 July and the enclosures (6/6/1-3 of process) it is plain
that the planning authority, by the administrative act in response to the
application, made its decision. That
decision inter alia listed a site identified
and specified by the green boundary area not the red boundary area for which
application had been made. The only
inference is that the site listed as a dormant site is the site referred to in
the plan attached to the decision in the letter of 15 July 1997, that is the green boundary area. Senior counsel submitted that it follows that
what is listed is the site described in the plan, that is the green boundary
area and that is the extent of the site which can legally be subject to planning
conditions in terms of the legislation.
[7] Senior
counsel submitted that in response to the listing decision of 15 July 1997, the second respondents
had a right of appeal. No appeal was
taken. He submitted that it follows as a
matter of law in terms of Schedule 9 paragraph 6 (11)(b) and paragraph 12
that any planning permission which extended beyond the green boundary area is
extinguished. He submitted that as the
map was missing, the extent of the 1965 planning permission was in fact
unknown. The only known publicly recorded
boundary of the listed dormant site is the green boundary area. To give purpose to the legislation, it is
essential that both the applicant and the public have some means of identifying
what site is listed. The planning
authority were well aware, as is apparent from the letter of 15 July 1997, that
the plan attached to the 1965 planning permission was missing. The only specification of what site was being
listed is contained in the letter and accompanying correspondence of 15 July 1997. That correspondence is clear in its
terms. It was not intra vires of the first respondents to attempt to reopen the boundary
issue by reference to adminicals of evidence about what the plan attached to
the 1965 planning permission might have covered. In any event, senior counsel did not accept
that information in the affidavit was acceptable to prove that the original
planning permission extended to the red boundary area
[8] Senior
counsel for the petitioner referred to R v
North Lincolnshire Council, ex parte Horticultural and Garden Products Sales
(Humberside) Limited 1998 ENV.L.R. 295.
He relied on this case to demonstrate that the equivalent legislation applicable
in England had
the result of the extinguishing a pre-existing planning permission. He submitted that for present purposes that
legislation is identical to Schedule 9.
It was recognised in the case that the purpose of the legislation was to
secure a definitive list of old mineral planning permissions continuing to
subsist. The purpose was also to secure a
new regime in respect of old mineral planning permissions in order to ensure
that there are attached to them conditions which adequately protect the
environment during the operational period of the site with provision for
appropriate aftercare and restoration and modern working practices. It was also emphasised that there should be
certainty and finality as to the site enjoying mineral planning permission.
Submissions on behalf of the first respondents
[9] Senior counsel referred to the
first respondents' answers. He also
sought to rely on the affidavit of Andrew Brown (7/4 of process) in order to
demonstrate the reasons that the first respondents were satisfied that the red
area was the area for which planning permission subsists.
[10] The correspondence relied on by the petitioners was not in
dispute. It was admitted that the plan
attached to the 1965 permission could not be found in 1997 or
subsequently. It was not in dispute that
the respondents are minded to treat the red area as adjusted as the area for
which planning permission subsists for the purposes of the application for
conditions. There was dispute about the
legal effect of the correspondence and listing in 1997.
[11] It was submitted on behalf of the first respondents that the legal
effect of the listing of Tullochgribban, Carrbridge, Baddingdock and Strathspey
(7/1 of process) was to preserve the pre-existing 1965 planning permission in
respect of said site in terms of Schedule 9 paragraph 12 (4). Senior counsel accepted that guidance had
been issued which referred to further specification and a plan (7/2 of process
par 28). The guidance was not made part
of the rules of the statutory scheme which were relevant in the present
case. He contrasted the specific
reference in Schedule 9 paragraph 1 (3) to the requirement to "have regard
to any guidance" with the absence of such specific reference in relation to
other parts of Schedule 9. He
submitted that the statutory scheme of listing merely required a listing of the
site without any definition of boundaries in the listing. The planning authority, in order to satisfy
the terms of the legislation and preserve the planning permission, merely had
to list the site. The statutory listing
process was a preliminary exercise, intended to be done quickly and without
extensive investigation. The legislation
was not intended to be interpreted in such a way as to deprive property owners
of valuable rights. Senior counsel
referred to Craie's statute law, paragraph 19.8, a passage dealing with the presumption
against expropriation. He pointed out
that there were no compensation provisions in relation to the extinction in
whole or in part of planning permission.
He emphasised, under reference to paragraph 3 (1) and the definition of
mineral site in paragraph 1 (2), that what was being listed for the purposes of
Schedule 9 is land to which a relevant planning permission relates. That is the reason the list may stand alone
as the list refers to pre-existing recorded planning permissions in which the
boundaries of the land subject to planning permission is defined and can be
determined. It was at the next stage,
where an applicant applies to the planning authority to determine the
conditions to which the relevant planning permissions relate to the site are to
be subject, that the applicants are required to give further specification about
the site. This includes identification
of the mineral site and any relevant planning permission relating to the
site. It was at this next stage, if
there was ambiguity about the boundaries of land to which planning permission
applied, that the first respondents as planning authority were entitled to make
a judgment based on the evidence and come to a view about the boundaries. Under reference to the affidavit of Andrew
Brown (7/4 of process), senior counsel explained how the first respondents had
approached the matter in the present case.
[12] Senior counsel submitted that if Schedule 9 was properly
construed, it was plain that the legislation was not intended to give the
planning authority power to "cut down" planning permission by listing only part
of an area from a larger area to which the original planning permission
applied. Although senior counsel
conceded that the effect of paragraph 12 (4) is that in certain circumstances
planning permission of a site not included in the first list shall cease to
have effect, he emphasised that there were no words indicating that a planning
permission might cease to have effect in relation to part of a site only. He also drew attention to paragraph 5 and
pointed out that there were no provisions to re-advertise the amended first
list and no provisions requiring the statutory listing or the paragraph 9
application for conditions to be intimated to land owners such as the petitioners. Although the listing is public, the main
purpose of the legislative provisions is not to alter pre-existing planning
permissions but to provide a mechanism particularly directed at the holders of
planning permission, to ensure that they apply for appropriate conditions.
[13] Senior counsel stated that there were no averments in the
petition critical of the methodology adopted by the first respondents in
reaching their conclusion that planning permission extended to the red boundary
area. The petitioners do not aver that
as a matter of fact the pre existing planning permission before 1997 did not
extend to the red boundary area. The
foundation of the petition was limited and focused exclusively on the listing
decision in 1997 and the effect thereof.
Submissions on behalf of the second respondents
[14] Senior counsel for the
second respondents explained at the start of his submissions that he did not
seek to rely on his plea to competency. He
submitted that the proper approach to resolve the case was to dismiss this
petition by sustaining the second respondents' plea to the relevancy. He submitted that no further procedure is
necessary.
[15] Senior counsel submitted that the issue to be determined at
first hearing was focused towards the end of paragraph 4 of the petition. The petitioners rely on the correspondence of
15 July 1997 (6/6/1-3 of
process). The petitioners' case is that,
there having been no appeal following said correspondence, the second
respondents were not entitled to reopen the question of the extent of the land to
which planning permission attached. The
petitioners submit that as a matter of law, the effect of the absence of an
appeal was to render any planning permission for land and/or minerals other than
those on listed mineral sites as having ceased to have effect. Senior counsel submitted that the critical
issue is whether in 1997, the then planning authority determined that the area
of land to which planning permission related is that area within the green
boundary area. If they did, that is the
end of the matter. If they did not, it
was submitted that it was open to the first respondents to consider and
identify the land to which the relevant planning permission related at the date
when the planning authority were asked to carry out their statutory function in
terms of Schedule 9 paragraph 9.
Senior counsel submitted that there are no other averments by the
petitioner to found any other case of ultra
vires actions on behalf of the first respondents. Senior counsel accepted that attention should
be focused on the correspondence 6/6/1-3 of process. He submitted that it was plain from that correspondence
that the planning authority listed Tullochgribban Quarry, Carrbridge as a
dormant site. He accepted that 6/6/3 of process was in response to an
application 6/6/1 of process
but no part of that application was refused or positively excluded. The adding of the mineral site to the list by
the planning authority demonstrating that the planning authority acceded to the
application. There was no refusal which
could be appealed under Schedule 9.
Senior counsel also submitted that the relevant part of Schedule 9
which deals with listing does not make any reference to the guidance (7/2 of
process). There is no provision in Schedule 9
that the listing must be accompanied by a reference sheet or plan. It is plain on the face of the correspondence
that the planning authority accept that the plan attached is not the original
definitive site plan.
[16] Senior counsel submitted that issues of disputed fact do not
arise in this case on the basis of the grounds averred in the petition. There is no dispute that the plan is
lost. There are no averments challenging
the approach adopted by the first respondents in reaching their decision that
the land to which the planning permission was attached is the red boundary
area. The petitioners' case is periled
on the issue of whether the correspondence 6/1-3 of process is definitive of
the boundary area and that therefore the boundary area is the green boundary
area. If the petitioners are wrong in
law about that, there is no other challenge averred in the petition. In particular it is not averred by the
petitioners that the first respondents were not entitled to adopt the method
they used in order to come to a decision about the extent of the planning
permission. Senior counsel referred to Staffordshire Moorlands District Council
v Cartwright and another 1992 J of
Planning and Environment law 138, in support of the general proposition that
where there was an ambiguity in the planning permission arising from the
absence of plans, the planning authority was entitled to look at the evidence which
existed to reach a decision. That is
what the planning authority did in the present case.
[17] Senior counsel then briefly set out the context of Schedule 9. I did not understand his submissions to be
different from those made by senior counsel for the first respondents. He supplemented this by reference to the Town
and Country Planning Act 1997, section 36 which sets out the duties on the
planning authority to keep a public register containing certain
information. He submitted that this was
the method set out in the legislation by which the public were enabled to find
out the extent of planning permission in any particular case. The listing procedure under Schedule 9
did not refer to this and was independent of it. The purpose of the listing procedure was
different from the provisions in section 36.
[18] Senior counsel emphasised that the planning authority in
creating the first list is creating a list of areas of land for which relevant
planning permission exists. He drew
attention to the structure and purpose of the legislation. In particular in relation to Schedule 9,
paragraph 6, he submitted that if the planning authority consider that part
only of the land or interest is, or forms part of, any dormant 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. He submitted that an appeal is only available
if an application is refused in whole or in part. He submitted that properly interpreted, there
was no refusal in the present case. In
the present case the planning authority acceded to the application albeit
making plain that they had no definitive plan.
That matter therefor remains open.
Senior counsel drew attention to the wording of Schedule 9,
paragraph 12 and submitted that that paragraph does not deal with planning
permission ceasing to have effect in relation to part of a site. The cessation of planning permission in terms
of paragraph 12 relates to the relevant planning permission relating to the
site.
Discussion
The legislative structure
[19] Schedule 9 makes
provision for the review of old mineral planning permissions. The Interpretation section provides:
"1. - (1) In
this Schedule -...
'first list'....means
the list preferred...pursuant to paragraph 3;
'mineral site'
has the meaning given by sub-paragraph (2);....
'relevant
planning permission' means any planning permission, other than an old mining permission or planning permission granted by a development
order, granted after 30th June 1948 for minerals development;.....
(2) For the purposes of this Schedule, but
subject to sub-paragraph (3), 'mineral site' means -......
(b) in any other case, the land to which a
relevant planning permission relates.
(4) Any reference (however expressed) in this
Schedule to an old mining permission or a relevant planning permission relating
to a mineral site is a reference to the mineral site, or some part of it, being
the land to which the permission relates."
[20] Schedule 9 paragraph 2 has effect for the purposes of
determining which mineral sites are Phase 1 sites, Phase 2 sites or
neither. Paragraph 3 (1) provides that "a
planning authority shall..prepare a list of mineral sites in their area (the
"first list"). Paragraph 3 (3) provides
that in respect of each site included in the first list, the list shall
indicate whether the site is an active Phase 1 site, an active Phase 2 site or
a dormant site. Paragraph 4 makes
provision in relation to the preparation of the second list. Paragraph 5 makes provision in relation to
advertisement of the first and second lists.
[21] Schedule 9, Paragraph 6 makes provision for applications
for inclusion in the first list of sites not included in that list as
originally preferred and states:
"6. -(1) Any
person who is the owner of any land, or is entitled to an interest in a
mineral, 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 included in that list
apply to the planning authority for that land or interest to be indicated in
that list."
(2) An application under sub-paragraph (1) shall
be made no later than the day upon which expires, the period of three months
from the day when the first list was first advertised in accordance with
paragraph 5.
(3) Where the planning authority considers that -
(a) the land or interest is, or forms part of,
any dormant or active Phase I or II site, they shall accede to the application,
or
(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.
(4) on acceding, whether in whole or in part, to
an application made under sub paragraph (1), the planning authority shall amend
the first list as follows.
(a) where they consider that the land or
interest, or any part of the land or interest, is a dormant site or an active
Phase I or II site, they shall add the mineral site consisting of the land or
interest or, as the case may be, that part, to the first list and shall cause
the list to indicate whether the site is an active Phase I site, an active
Phase II site or dormant site;
(b) where they consider that the land or
interest, or any part of the land or interest, forms part of any mineral site
included in the first list, they shall amend the entry in the first list for
that site accordingly....
(10) When a planning authority determine an
application made under sub-paragraph (1), they shall notify the applicant in
writing of their decision and, in a case where they have acceded to the application,
whether in whole or in part, shall supply the applicant with details of any
amendment to be made to the first or second list in accordance with
sub-paragraph (4) or (8).
(11) Where a planning authority -
(a) refuse an application made under sub-paragraph
(1), or
(b) accede to such an application only so far as
it relates to part of the land or interest in respect of which it was made,
the applicant
may by notice appeal to the Secretary of State.....
(13) An appeal under sub-paragraph (11) or (12) must
be made by giving notice of appeal to the Secretary of State before the end of
the period of six months beginning with - "
[22] Schedule 9 paragraph 9 provides that any person who is the
owner of land, or who is entitled to an interest in a mineral, may, if that
land or mineral is or... forms part of a dormant site ... apply to the planning
authority to determine the conditions to which the relevant planning
permissions relating to that site are to be subject." Such an applicant must specify in writing
various matters including identifying the mineral site to which the application
relates, identifying any relevant planning permission relating to the site and
set out the conditions to which the applicant proposes the permissions should
be subject. In terms of paragraph 9 (5)
when such an application is received, the planning authority shall determine
the conditions to which each relevant planning permission relating to the site
is to be subject. In terms of paragraph
11, there is a right to appeal against the determination of conditions.
[23] Paragraph 12 deals with permissions ceasing to have
effect. Paragraph 12 states:
"....
(3) Subject to sub-paragraph (4), no relevant
planning permission, which relates to a dormant site shall have effect to
authorise the carrying out of minerals development unless -
(a) an application has been made under paragraph
9 in respect of that site, and
(b) that permission has effect in accordance with
paragraph 9 (5).
(4) A relevant planning permission which relates
to a Phase I or II site not included in the first list shall cease to have
effect, except in so far as it imposes any restoration or aftercare condition,
on the day following the last date on which an application under sub-paragraph
(1) of paragraph 6 may be made in respect of that site unless an application
has been made under that sub-paragraph by that date in which event, unless the
site is added to that list, such a permission shall cease to have effect when
the following conditions are met
(a) the proceedings on that application,
including any proceedings on or in consequence of the application under section
239 have been determined, and
(b) any time for appealing under paragraph 6(11)
or (12), or applying or further applying under paragraph 6(1), (where there is
a right to do so has expired)."
[24] In Schedule 9, paragraph 15, there are compensation
provisions in specified circumstances.
These circumstances do not include compensation for a listing ceasing to
have effect in full or part.
Discussion
[25] This is a case in which the
statutory provisions and the factual background are complex. It is not disputed by the parties that
following correspondence 6/5 and 6/6 of process, the first respondents listed
Tullochgribban, Carrbridge, Baddingdock and Strathspey as a "dormant site" for
the purposes of the Environment Act 1995 section 96 (7/1 of process). I note that the said listing appears to have
taken place in July 1997 at a time when the statutory provisions had
essentially been re-enacted in respect of Scotland
by the Town & Country Planning (Scotland)
Act 1997, section 74 and Schedule 9. The commencement date was 27 May 1997. There was no submission by any party that the
relevant provisions of the Environment Act 1995 were in any material respect
different from the relevant provisions re-enacted in the 1997 Act. There was no submission that esto the listing was made in
July 1997, at a time when the 1997 Act was in force, that the listing
under a reference to the Environment Act 1995 had any legal implications in
relation to the issues in the present case.
Counsel for all parties addressed me in relation to the terms of the
relevant provisions of the 1997 Act.
I deal with the submissions on that basis. For the avoidance of doubt, I am satisfied
that the equivalent provisions in the 1995 Act, in relation to listing,
are not in any material respect different from the provisions in the
1997 Act, Schedule 9. I deal
therefore with the statutory provisions under reference to the 1997 Act
which was the legislation about which I was addressed.
[26] In order to reach a decision in this case, I consider it
necessary to construe the language of Schedule 9 of the 1997 Act and
consider in the context of the statutory structure, the meaning and effect of the
documents in 6/5, 6/6 and 7/1 of process.
I am prepared to accept the submission of senior counsel for the
petitioner based on R v North Lincolnshire Council to the effect
that the purpose of the legislation was to secure a definitive list of old
mineral planning permissions continuing to subsist and to secure a new regime in
respect of old mineral planning permissions conditions which adequately protect
the environment during the operational period of the site with provision for
appropriate aftercare and restoration in modern working practices.
I do not however consider that this
case assists with the difficulty in the present case which arises because of
the loss of the plan(s) which accompanied the old planning permission.
[27] It is plain from the legislation that if the site is not listed
in the first list and if an owner of any land or entitled to an interest in a
mineral does not make timeous application for inclusion in the list, that the
pre-existing planning permission will be extinguished. In this case timeous application was made for
inclusion in the list. This is not a
case which falls within Schedule 9 paragraph 2(a). That was conceded correctly in my opinion, on
behalf of the petitioners. The
circumstances of this case fall within the type of circumstance set out in Schedule 9
paragraph 2(b). In my opinion that
means that when a planning authority in accordance with paragraph 3
prepares a list of mineral sites within their area (the "first list") what they
are preparing is a list of "the land to which a relevant planning permission
relates". I consider that the intention
of the legislation in relation to review of old mineral planning permissions in
Schedule 9, is not to permit the planning authority to change the
boundaries of land by reducing or increasing an area of land to which a
relevant planning permission has been granted at an earlier date. The listing procedure envisages a listing of
something which pre-exits i.e. the planning permission granted at an earlier
date in respect of mineral sites. The
form and content of the list is not otherwise specified in Schedule 9. In relation to Schedule 9 paragraph 2 (b)
there is no obligation on the planning authority to have regard to any guidance
issued by the Secretary of State. That
is to be contrasted with the provisions in Schedule 9
paragraph 3. In terms of Schedule 9
paragraph 6, an application may be made for inclusion in the first list of
sites if land or interest is not a mineral site included in the first list and
does not form part of any mineral site so included. I accept that theoretically the planning
authority for some reason might consider that they would be prepared to list
part only of the land or interest as forming part of any dormant or active
site. But in that event it is provided
that the planning authority shall accede to the application so far as it
relates to that part of the land or interest but shall otherwise refuse the
application.
[28] In the present case the listing by the first respondents which
is to be found in 7/1 of process refers to the site name and this is a
reference, in terms of Schedule 9 paragraph 2(b) to the land to which
a relevant planning permission relates.
By checking the register of planning permissions, in terms of Section 36
of the 1997 Act a member of the public or any other interested party should be
able to discover that land defined. In
the present case the 1965 permission permitted "the working of minerals on land
at Tullochgorum, Carrbridge in accordance with the plan (s) submitted to the
council and docketed as relevant hereto".
By reference to that permission and the plan (s) it would be possible in
the normal case to identify the land by boundary or otherwise to which a
relevant planning permission relates.
Obviously the difficulty arises in this case because the plan (s)
has been missing since at least 1997. The logic of the submission on behalf of the
petitioners is that even if the missing plan (s) was now found that would
not affect the outcome of the case in relation to the boundary of land to which
a relevant planning permission relates.
The petitioners' submissions, which I summarise in paragraph 3, are
to the effect that following the correspondence of 6/5 and 6/6 of process the
correspondence, the first respondents as planning authority in effect
restricted the land to which a relevant planning permission relates to the green
boundary area when they made the listing in 7/1 of process. I do not consider that the submissions on
behalf of the petitioners are well founded.
I am of the opinion that the correspondence must be construed against
the background of the statutory scheme.
The application was an application to register Tullochgribban Quarry
(known as Tullochgorum in respect of the planning permission) in terms of the planning
permission 1964/798 granted on 12 February 1965. The original plan(s) attached to said
planning permission was not enclosed and was not available to the first
respondents. Whatever the first
respondents thought they were listing at the time, they purported to list the
site as Tullochgribban, Carrbridge in terms of the planning permission 12 February 1965 and planning
reference ICC/1964/798. The first
respondents further noted that "the site is referred to as "Tullochgorum" in
the records of Inverness County Council".
That Council originally granted the 1965 planning permission. It is also noted that the original definitive
site plan is not available. In my
opinion, the listing lists the site as defined in terms of the planning
permission. The fact that neither the
second respondents or the first respondents had available to them at the time,
the plan(s) attached to the 1965 permission does not in my opinion alter
what was listed. The fact the first respondents
referred to a plan showing the green boundary area in correspondence does not
in my opinion alter that. I am also
persuaded that the listing and correspondence cannot be interpreted properly as
a part refusal of the application in terms of Schedule 9,
paragraph 6(3)(b). In the absence of
any refusal, there is no appeal right which has not been exercised and no
cessation of planning permission as a result thereof. I consider that the submissions made by
senior counsel for the respondents, which I summarise in paragraphs 11-12 and
15-18, are well founded for the reasons they give.
[29] I accept that an issue of fact arises as to the extent of the
boundaries of land to which the 1965 planning permission attached, in
terms of planning reference ICC/1964/798 because of the absence of the original
definitive plan(s). As I understand the
grounds of the petition and the submissions on behalf of the petitioners, the
petitioners do not accept the first respondents' approach to the determination
of the boundaries. There are no
averments in the petition and no submissions were made to found grounds of
judicial review in relation to this aspect of the case. If such grounds had been put forward, I
consider it would probably have been necessary to order some form of proof.
[30] I appoint the case to the By Order roll to permit parties to
address me about disposal of the pleas in the light of my opinion and to
address me in relation to expenses.
