JUDGMENT
G Hamilton (Tullochgribban Mains) Limited
(Appellant) v The Highland Council and another
(Respondents) (Scotland)
before
Lord Walker
Lady Hale
Lord Clarke
Lord Dyson
Lord Reed
JUDGMENT GIVEN ON
11 July 2012
Heard on 20 June 2012
Appellant Respondent
James McNeill QC Ralph Smith QC
Morag Ross Marcus Mackay
(Instructed by Archibald
Campbell & Harley WS )
(Instructed by Biggart
Baillie LLP )
Respondent
Roy Martin QC
Donald Davidson
(Instructed by Tods
Murray LLP )
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LORD WALKER (WITH WHOM LADY HALE, LORD CLARKE, LORD
DYSON AND LORD REED AGREE)
The legislation
1. This appeal is concerned with legislation under which planning authorities
have the duty of reviewing what are commonly referred to as “old” planning
permissions for mineral working. The process of review is sometimes referred to
by the acronym ROMP (Review [of] Old Mineral [planning] Permissions). The
statutory provisions were introduced by the Environment Act 1995 and then
reenacted in substantially the same form in the Town and Country Planning
(Scotland) Act 1997 (“the 1997 Act”).
2. The principal legislative purpose of these provisions is to ensure that old
mineral permissions are made subject to conditions meeting modern environmental
standards. Some of the old permissions were granted many years ago subject to
conditions less stringent and less precise than are appropriate today. Where more
stringent conditions are imposed compensation is payable in certain cases, but only
where the mineral site in question is classified as “active” rather than “dormant”. A
subsidiary purpose of the legislation is to achieve better and more reliable records
of old planning permissions for mineral working. The evolution of the legislation
has been described in detail by the Lord President (Lord Cullen) in Lafarge
Aggregates Ltd v Scottish Ministers 2004 SC 524, paras 2 and 3.
3. The relevant provisions of the 1997 Act are section 74 and Schedule 9
(Review of Old Mineral Planning Permissions). Schedule 9 contains several
special definitions and some interlocking provisions which call for careful
examination, but on examination (and with the background history as explained by
the Lord President) its general scheme becomes clear. It distinguishes between
three categories of mineral sites, and lays down how the process of review is to
affect each category. The three categories are “Phase I active sites”, “Phase II
active sites” and “dormant sites”. The difference in treatment as between the first
and second of these categories is a simple matter of administrative prioritisation:
Phase I active sites include sites of particular environmental sensitivity (para 2(4))
and those which are the oldest sites dealt with by Schedule 9, and so most likely to
have inadequate conditions (para 2(6); it should be added, for the sake of
completeness, that an even older category of permissions, those granted before 1
July 1948, had been covered by earlier legislation). Phase I active sites are
therefore to be reviewed first. By contrast the difference in treatment between all
active sites (on the one hand) and dormant sites (on the other hand) is more
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substantial. Dormant sites (which may be either Phase I or Phase II) are defined
(para 1(1)) as sites on which no substantial minerals development was carried out
in the period beginning 22 February 1982 and ending with 6 June 1995. Although
a planning permission cannot be lost by abandonment, Parliament thought it right
to deal with dormant sites in a rather more robust way, by freezing any further
mineral working until new conditions had been applied for and approved (para
12(3)). This appeal relates to a dormant site.
4. As the Lord Justice Clerk (Lord Gill) said in his opinion in the Inner House
(para 8) there are two stages in the Schedule 9 procedure. Stage 1 involves the
preparation of two lists, termed the first list (para 3) and the second list (para 4).
The first list has three main functions: (i) to list all mineral sites in the authority’s
area (para 3(1) and (2)); (ii) to sort them into the three categories already
mentioned (para 3(3)); and (iii) for active Phase I sites only, to specify a date by
which a para 9 application is to be made (para 3(4) and (5)). In that way active
Phase I sites are given priority. The second list is simpler. It relates only to active
Phase II sites and performs function (iii) above for them (para 4(3), (4) and (5)).
5. Paragraphs 5, 6, 7 and 8 contain further administrative provisions relevant
to what the Lord Justice Clerk called stage 1. Counsel for the appellant placed
particular emphasis on the provisions of para 6 (Applications for inclusion in the
first list of sites not included in that list as originally prepared and appeals from
decisions upon such applications) but it is better to defer consideration of that
point.
6. Paragraphs 9 to 16 of Schedule 9 deal with Stage 2. Some of these
provisions (including those as to compensation) do not apply to dormant sites. In
relation to dormant sites the key provisions are para 9(1) and (5), para 11 and para
12(3) and (4). Para 9(1) is as follows:
“Any person who is the owner of any 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 or an active Phase I or II site, apply to the planning
authority to determine the conditions to which the relevant planning
permissions relating to that site are to be subject.”
Para 9(5) is as follows:
“Where the planning authority receive an application under this
paragraph in relation to a dormant site or an active Phase I or II site
they shall determine the conditions to which each relevant planning
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permission relating to the site is to be subject; and any such
permission shall, from the date when the conditions to which it is to
be subject are finally determined, have effect subject to the
conditions which are determined under this Schedule as being the
conditions to which it is to be subject.”
Para 11 gives a right of appeal (now to Scottish Ministers) as to the terms of any
new conditions to be imposed. Para 12(3) is as follows:
“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).”
Para 12(4) provides for the termination of mineral permissions which are not
included in the first list (either initially or on an application under para 6) except so
far as concerns conditions for restoration or aftercare.
The facts
7. Some of the documentary evidence has to be addressed in detail. The
relevant documents are not in chronological order in the appendix. The references
are to pages in the hard copy of the appendix.
8. The mineral site with which this appeal is concerned is in a sparsely
populated area on the edge of Strathspey. It is on the A938 road between
Carrbridge and Dulnain Bridge, near Grantown-on-Spey. The appellant company,
G. Hamilton (Tullochgribban Mains) Ltd (“Tullochgribban Mains”) is the heritable
proprietor of tenanted farmland in the vicinity. The first respondent, the Highland
Council (“the Council”) is the planning authority for the area, having taken over
that responsibility from the Inverness County Council. The second respondent,
Breedon Aggregates Scotland Ltd, formerly Ennstone Thistle Ltd (“Breedon”) is
the proprietor of the minerals on the site and has the right to work them.
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9. Both Tullochgribban Mains and Breedon derive title from the same
landowner, Lord Reidhaven. By a disposition [66] signed on 21 April 1967 and
registered on 6 July 1967 Lord Reidhaven disponed to Breedon’s predecessor in
title, George MacWilliam and Son (Contractors) Ltd (“MacWilliam”) all the
deposits of sand and gravel and associated substances (except coal) in, on or under
the land delineated in red on an annexed plan [74]. This land (“the red land”) is
adjacent to and on the north of the Carrbridge road. It is roughly rectangular except
that it does not include a small loch, Loch Mor, which juts into the land on the east
side. The disposition provided for entry on 1 August 1965. The property disponed
included a number of express rights and privileges, including “full right and power
. . . to search for work … and carry away” the minerals included in the disposition.
Counsel did not find it necessary to make any submissions about the detailed terms
of the disposition.
10. The pleadings show that at the time when the proceedings were commenced
in 2008, Tullochgribban Mains was in the course of registering its title under a
disposition made by Lord Reidhaven. Possibly for that reason, its title has not been
formally admitted. But nothing turns on that. The argument has proceeded at every
level on the basis that Tullochgribban Mains has a sufficient interest to give it
locus standi in the proceedings, and that its rights are subject to the mineral rights
in the red land disponed to Breedon’s predecessor in title. The dispute is about
planning law, not property law.
11. The original planning permission [75] was granted to MacWilliam by
Inverness County Council on 12 February 1965. It was expressed in general terms
as permission for the working of minerals on land at Tullochgorum, Carrbridge, in
accordance with the plan(s) submitted and docquetted. The permission set out
eleven conditions in numbered paragraphs, stated to be in the interests of health,
safety and amenity. It is common ground that the names Tullochgribban and
Tullochgorum are variants of the same name.
12. The docquetted plan is not extant. It is common ground that it has been lost,
possibly at the time when responsibility as planning authority passed to the
Council. It would be surprising if it had shown an area materially different from
the red land shown on the plan annexed to Lord Reidhaven’s disposition and
Breedon and its predecessors in title appear to have acted consistently with the
supposition that they were the same. MacWilliam’s immediate successor was
Tilcon (Scotland) Ltd (“Tilcon”), and Breedon is Tilcon’s immediate successor.
13. The mineral site was worked for some years, but it is common ground that
no work has taken place for at least 20 years. The direction of working, when it
took place, was towards the north, away from the road. The worked area (which
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has come to be called “the green land”) was relatively small. Counsel for the
appellant put it at about one-sixth or one-seventh of the whole area of the red land.
14. In March 1997 the Council issued its first list of mineral sites [76]. It was
then acting under Schedule 13 of the Environment Act 1995, but it is agreed that
the procedure was just the same as under the 1997 Act. The Tullochgribban site
was not included in the first list, and in May 1997 Tilcon (which had by then
acquired the mineral rights from MacWilliam) applied for it to be included as a
Phase I active site. It did so by an undated letter, received on 7 May 1997 [77],
with enclosures of (i) a copy of the planning permission dated 12 February 1965
[78]; (ii) a plan [79] (apparently copied from the plan on Lord Reidhaven’s 1967
disposition) showing the red land; and (iii) a reserve schedule [80] intended to
serve as evidence that the site was an active site (that is, one on which some
extraction took place after 22 February 1982).
15. The Council (acting by Mr Andrew Brown, who has made an affidavit in
the proceedings) replied on 26 June 1997 [107] pointing out that the reserve
schedule was inadequate as evidence of working since 1982, and stating that the
site would be registered as dormant. Tilcon accepted this by a letter dated 7 July
1997 [108] without further argument and it is not an issue in the appeal. Of more
direct relevance, the Council’s letter of 26 June 1997 stated:
“From the information provided, the Council has been able to trace
this old planning permission (Reference number ICC/1964/798,
approved on 12 February 1965) and has been able to locate a
working on the ground as shown by the enclosed map. It would
therefore seem appropriate to include Tullochgribban in the first list
of sites.”
16. The Council then sent Tilcon a letter dated 15 July 1997 [81] framed (as
counsel for the appellant pointed out) in the formal language of a decision letter.
The substance of the decision was in the first two paragraphs:
“I refer to your letter of 7 July 1997 in relation to previous
correspondence, and hereby give notice that the above mineral site
[identified as Tullochgribban Quarry, Carrbridge] 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.
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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.”
The letter was signed by Mr Bob Shannon, who was the Council’s Head of
Strategic Plans, and Mr Brown’s superior. The first of the enclosures, the reference
sheet [82], was clear and uncontroversial. It set out particulars, correct in every
respect, of the original planning permission. It noted at the foot, “Original
definitive site plan not available.”
17. The second enclosure [83] is at the heart of the controversy. It was a plan
which identified the green land, a roughly kidney-shaped area forming an island
within the southern part of the red land. Counsel for the appellant did not accept
that the site plan enclosed with the Council’s letter of 15 July 1997 was the same
as the enclosure with the Council’s letter of 26 June 1997 (which referred to the
Council being “able to locate a working on the ground as shown by the enclosed
map”), and Mr Brown’s affidavit (para 4) indicates that the earlier enclosure was
probably an extract from the Council’s visual record plan [110, which is Appendix
4 of Mr Brown’s affidavit, with a better copy at 119]. The site plan [83] enclosed
with the letter of 15 July 1997 was headed “Review of Old Mineral Workings” and
there is discernible on it, at two places just within the boundary of the green land,
the word “spreads” (apparently indicating some sort of land slippage).
18. The site was therefore classified, by a revision of the first list, as a dormant
site [109]. Tilcon did not make any comment on the letter of 15 July 1997 and its
enclosures. There is no indication that it occurred to any of Tilcon’s management
that the letter and enclosures were intended to reduce dramatically the extent of the
original planning permission, or that it had that effect. Mr Brown’s affidavit (para
8) indicates that it was not intended to have that effect:
“It was not the intention of this site plan to seek to restrict the
original planning permission to the area indicated. To have done so
would not have been reasonable since the site would have been
restricted in extent to its prior workings, thereby excluding any
possible reserves, without evidence that this reflected the 1965
permission. The intention as explained in paragraph 5 was that the
mineral operator when submitting an application for updated
conditions could indicate a larger or more definitive area over which
the application should relate, with due justification. The Council
would then consider this along with the proposed new conditions in
the light of the information to hand.”
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19. Nothing else material occurred until October 2006, by which time Breedon
had acquired the mineral rights. As the site had been classified as a dormant site,
there was no time limit for the making of a paragraph 9 application, but in the
meantime no further working could take place. On 17 October 2006 Breedon’s
agents sent to the Council a copy of the plan annexed to Lord Reidhaven’s 1967
disposition. On behalf of the Council Mr Brown (then a senior planner engaged on
development control) sent a reply dated 24 October 2006 [88] acknowledging the
copy of the plan and stating:
“On this basis, and given that no more definitive information appears
to be available concerning the site boundary for Inverness County
Council Permission No 1964/798, it is agreed that an application
under Section 74 of the Town and Country Planning (Scotland) Act
1997 should be on the basis of this boundary, with the following
exception –
that the south-eastern boundary should be revised to exclude Loch
Mor as it presently extends.”
The shape of Loch Mor’s shoreline had undergone some change since 1967.
20. On 20 April 2007 Breedon made its paragraph 9 application for approval of
a schedule of conditions. After discussion with the Council a final draft of new
conditions was prepared [93] which the Council was minded to approve. The first
numbered condition was as follows:
“For the avoidance of doubt, in the absence of a definitive
docquetted site plan, the boundary of the site to which these
conditions relate under planning permission ICC/1964/798, issued by
the County Council of Inverness on 12 February 1965, shall be as
outlined in red on the approved plans EG 320/RMP/F/01&2.”
But after the application was advertised in May 2007, Tullochgribban Mains
contended that it would be ultra vires for the Council to approve conditions in
relation to the red land. It contended that the Council had, when it revised the first
list so as to include Tullochgribban Quarry, definitively determined its extent as
being limited to the green land. Tullochgribban Mains commenced these
proceedings seeking declarator, reduction of the Council’s purported decision, and
interdict ad interim.
The decisions in the courts below
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21. In her reserved judgment the Lord Ordinary (Lady Clark of Calton)
carefully analysed the provisions of Schedule 9 to the 1997 Act. She stated (para
27):
“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-exists ie the
planning permission granted at an earlier date in respect of mineral
sites.”
The last sentence was criticised by counsel for the appellant as suggesting that the
first list was to be a list of planning permissions. But it is clear from the passage
as a whole, and indeed from the Lord Ordinary’s judgment as a whole, that she
well understood that it was to be a list of sites to which a relevant planning
permission related (the wording used in Schedule 9, para 1(2)(b)). Normally the
boundaries of the site would be identifiable from a plan referred to in the planning
permission, but fixing the exact boundaries was not necessary at the listing stage.
What was required was identification of the site. The Lord Ordinary considered
that the submissions made on behalf of Tullochgribban Mains were not well
founded. By an interlocutor of 10 March 2009 she repelled Tullochgribban
Mains’s first and second pleas in law and dismissed the petition.
22. On 7 January 2011 the Inner House of the Court of Session refused
Tullochgribban Mains’ reclaiming motion for review of the Lord Ordinary’s
interlocutor. The Lord Justice Clerk gave an opinion in which Lord Carloway and
Lady Smith concurred. The Lord Justice Clerk defined the two issues in the
appeal: (i) whether the Council was entitled or obliged to define the extent of the
mineral site in the first list; (ii) whether, if it had power to define the extent of the
site at that stage, the Council defined it as the green land.
23. On the first issue counsel for the appellant argued (as he has before this
Court) that the boundaries of a mineral site fell to be determined by the planning
authority in the first list, at what the Lord Justice Clerk called Stage 1 (para 30 of
his judgment, summarising counsel’s argument):
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“that is to say, an entry in the first list is not merely site-specific but
boundary-specific too. It follows, on this submission, that at Stage 2,
when it comes to consider the question of conditions, it is too late for
the planning authority to define the boundaries of the site.”
The Lord Justice Clerk did not accept that argument. He considered the Lord
Ordinary’s decision to be correct (paras 33-34, with two case references
rearranged):
“Looking at the overall scheme of Schedule 9, I think that the
procedure of listing (paras 3 to 6) is administrative in nature (Dorset
CC v Secretary of State [1999] JPL 633, at pp 642-643). Listing is
the qualification that entitles the interested party to apply to the
planning authority to determine the conditions that should govern the
existing planning permission (cf R v Oldham MBC and Anr, ex p
Foster [2000] Env LR 395; and R (Payne) v Caerphilly CBC [2002
PLCR 496, [2003] Env LR 679 (Court of Appeal). Listing is about
preserving an extant planning permission, not about restricting or
rescinding it. The first list is a census of the mineral sites in the
planning authority’s area (para 3(1); R v Oldham MBC and Anr, ex p
Foster, supra at p 402; R (Payne) v Caerphilly CBC, supra; Lafarge
Aggregates Ltd v Scottish Ministers 2004 SC 524, at para 37). It is
not a list of defined areas of land. It is drawn up to identify where the
mineral sites are and to classify each of them in order to determine
the procedures that are to be followed at Stage 2. The existence of a
relevant planning permission relating to it is the condition precedent
to the inclusion of the site in the list. Therefore the planning
authority is bound to satisfy itself that a relevant planning permission
exists; but it need not identify the planning permission in the list
itself (R v Oldham MPC, ex p Foster, supra) and a fortiori, in my
view, it need not define its boundaries. Since the site is by definition
land to which a relevant planning permission relates, the extent of it
will be defined by the planning permission itself. If the site is then
listed, the extant planning permission will remain alive in its entirety.
It is only when the site is listed that the extent of the existing
development rights over it becomes important. That question will be
determined at Stage 2 by reference to the relevant planning
permission itself. It is at that stage that planning judgments have to
be made on the merits of each case.”
24. The Lord Justice Clerk considered that Tullochgribban Mains’ case was
based on a misinterpretation of Schedule 9, para 6(3). A planning authority could
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grant an application for listing in part (giving rise to a right of appeal) only if
satisfied, on clear evidence, that part of the land sought to be listed did not enjoy a
relevant planning permission at all. That was quite different from a case where the
plan on the original planning permission had been lost.
25. On the second issue, the Lord Justice Clerk concluded that the Council did
not purport to exercise its power under para 6(3)(b) to list part only of a site for
which an application for listing was made. He accepted that on the uncontradicted
evidence of Mr Brown, the green land was no more than an indication of the area
which had been worked by then. The Council was not at that stage intending to
make a definitive statement about boundaries.
Conclusions
26. In my judgment the Lord Ordinary and the Inner House were plainly
correct. Counsel for the appellant criticised their reasoning as inadequate. But once
the general scheme of Schedule 9 of the 1997 Act is understood the first point is
really quite a short one. The procedure at what the Lord Justice Clerk called Stage
1 is administrative and preliminary in nature. It involves the identification of sites
and the setting of an order of priority for Stage 2 (with activity on a dormant site
being frozen in the meantime). By contrast Stage 2, which is initiated in every case
by a paragraph 9 application, requires decisions calling for planning judgment.
27. Counsel for the appellant concentrated in his submissions on para 6 of
Schedule 9, and on the right of appeal conferred by it. But the Lord Justice Clerk
was correct in his analysis of paragraph 6. It is possible to imagine some
circumstances (such as overlapping applications) in which a planning authority
might at Stage 1 find it necessary to form a provisional view as to the boundaries
of a site. But such cases would be unusual and a provisional determination at Stage
1 could not have the effect of cutting down a valid existing planning permission.
28. The second issue identified by the Lord Justice Clerk does not therefore
strictly arise for decision. But the Lord Ordinary and the Inner House were also
plainly correct in their observations on this point. Even without Mr Brown’s
affidavit, the correspondence as a whole, considered objectively, gives no
indication that the Council was purporting to exercise a power to cut down an
existing planning permission.
29. I would therefore dismiss this appeal. It is not an appeal for which
permission would have been given by this Court, had permission been necessary.
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It does not raise any point of law of general importance, and the judgments below
set out the position clearly and correctly.
