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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bennett v Gordon & Ors [2008] ScotCS CSIH_21 (04 March 2008)
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Cite as: [2008] CSIH 21, [2008] ScotCS CSIH_21

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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

 

Lord Kingarth

Lord Eassie

Lord Marnoch

 

 

 

 

 

 

[2008] CSIH 21

XA126/05

 

OPINION OF THE COURT

 

delivered by LORD KINGARTH

 

in

 

APPEAL

 

under section 239 of the Town and County Planning (Scotland) Act 1997

 

by

 

SIGURDUR ARTHUR BENNETT

Appellant;

 

against

 

MICHAEL GORDON

First Respondent;

and

 

MRS SUSAN GORDON

Second Respondent;

 

and

 

THE SCOTTISH MINISTERS

Third Respondents:

_______

 

 

Act: Clancy, Q.C.; Gillespie MacAndrew, W.S.

Alt: Crawford; Office of the Solicitor to the Scottish Executive (Third Respondents)

 

Non participating parties:

First and Second Respondents: Maclay Murray & Spens

 

4 March 2008

[1] This is an appeal under section 239(1)(b) of the Town and Country Planning (Scotland) Act 1997 ("the Act") against a decision of a Reporter appointed by the third respondents, dated 26 October 2005, in which the Reporter upheld an appeal by the first and second respondents against an enforcement notice which had been served on them by the City of Edinburgh Council ("the Council") in respect of property at No.1 Royal Circus, Edinburgh ("the property").

[2] The property, which was purchased by the first and second respondents in 1992, comprises a large townhouse on three storeys with an internally accessible basement flat. It is situated in the New Town of Edinburgh, a predominantly residential area.

[3] On 8 February 2005 the Council served on the first and second respondents an enforcement notice relating to the property, on the basis that it appeared to them that there had been a breach of planning control within the meaning of section 123(1)(a) of the Act. In terms of section 128(1)(a) of the Act the Council required to state in such a notice the matters which appeared to them to constitute a breach of planning control. This was alleged to be "Without planning permission, the material change of use ... from dwellinghouse to entertainment venue". Under the heading of "Reasons For This Notice" it was stated:

"It appears to the Council that the above breach of planning control has occurred within the last ten years. The use of the premises as a principal residence has ceased and it is now available for hire for as short a period as twenty four hours for the purpose of holding parties or other similar events. Noise from the events held in the premises caused by the party-goers and music has been heard in the street outside and in neighbouring properties, and disturbance is experienced by neighbours in the late evening and early morning caused by revellers leaving the premises and being collected by taxis and courtesy buses. This has an adverse effect on the residential amenity of the immediate neighbourhood. As the use of the premises as an entertainment venue gives rise to increased levels of traffic and activity to the detriment of residential amenity, the unauthorised use is contrary to Central Edinburgh Local Plan Policy H11. The location of this unauthorised commercial leisure use in a predominantly residential area is contrary to Policy L4 of the Central Edinburgh Local Plan and consequently contrary to Policy ED5. ... The Council does not consider that planning permission should be granted for this use of these premises."

The notice required the first and second respondents to cease the use of the property as an entertainment venue within two months of its effective date, being 24 March 2005, unless an appeal was taken before that date.

[4] Prior to the effective date the first and second respondents appealed against the notice under section 130(1) of the Act on a number of grounds. The only ground relevant for the present purposes is that under section 130(1)(b), namely that the matters stated in the notice, and which it was contended constituted a breach of planning control, had not occurred. A reporter was appointed by the third respondents to determine the appeal. On 30 and 31 August 2005 he conducted a public local inquiry in relation to the appeal. He also carried out a site visit and considered written submissions. The first and second respondents were legally represented, and evidence in person was given by the first respondent. Evidence was also led on behalf of the Council, who were also legally represented. The present appellant, who is a resident in adjoining property, was also represented and gave evidence in person. His position was supportive of the enforcement notice. In support of that position he lodged inter alia a report by inquiry agents instructed on his behalf, to which we shall later refer in more detail. Other neighbours made written representations in support of the enforcement notice.

[5] The Reporter decided that the first and second respondents' appeal against the enforcement notice succeeded under section 130(1)(b) and that it was thus unnecessary to consider the other grounds of appeal. The reasons for his decision ("Conclusions ...") are to be found set out in paragraphs 33 to 38 of the decision letter dated 26 October 2005, as follows:

"33. The breach of planning control alleged by the notice is that the use of the appeal premises had changed from a dwellinghouse to an entertainment venue. I take that to mean from a Class 9 'House' use, as defined in the Town and Country Planning (Use Classes) (Scotland) Order 1997, to a use, which is not defined in any of the classes of use within the order, as premises where some form, or forms, of entertainment is, or are, provided. I consider that the notice's description of the alleged change of use indicates that the use of the premises as a house had ceased entirely, or to the extent that it remained only minimal, or incidental or ancillary to the use as an entertainment venue. It does not allege some form of composite use, comprising both use as a house where people live together as a family, and use as an entertainment venue. This is consistent with the council's reasons for taking enforcement action, as stated in the notice itself.

34. From the evidence before me, including the conversation recorded by private investigators, the promotional and advertising material, and the oral and written evidence given to the inquiry, I am satisfied that, starting in the summer of 2003, your clients had in mind the potential for various forms of commercial letting of the appeal premises. These included its letting as a house, whether or not on a self-catering basis; as bed and breakfast accommodation; but also as a venue for holding a range of functions and events, which could broadly be described as forms of entertainment, including receptions, parties, dinners and weddings. This was reflected in a variety of publicity and advertising material.

35. However, planning enforcement requires to be directed at what has occurred, rather than what is contemplated. On a number of occasions in the following eighteen months, the premises were used for a variety of these purposes, but I accept your client's evidence that on most of those occasions, these uses were incidental to the use of the property as a house by your clients and their family or friends. I find that on only four occasions were the premises used as an entertainment venue separate from its use as a house, two of which occurred during the 2003 Edinburgh Festival. I find that this scale of use, on four evenings over a period exceeding eighteen months, does not constitute a material change of use to an entertainment venue.

36. Despite the understandable suspicions of some of your clients' neighbours, I accept that these were all private functions, and were not attended by paying guests or open to members of the public. I am also satisfied that the evidence of your neighbours regarding disturbance arising from comings and goings at late hours, and from music at the premises, related not only to these events, but also to your clients' own personal and social life within their house at other times.

37. I accept Mr Bennett's evidence that he had not seen members of your clients' family coming and going over this period. However I do not find that inconsistent with Mr Gordon's evidence of his family's continued, but limited, use of the premises as a house, in conjunction with their other nearby house; or with Mrs Henry's evidence of a diminishing level of use of the house by them. Neither the limited provision of bed and breakfast accommodation, nor the occasional letting of the house on a self-catering or serviced basis, is inconsistent with its continued use as a Class 9 "House". The valuation board's classification of the property as a self catering unit does not support the planning authority's contention that its use had changed from a house to an entertainment venue.

38. For these reasons, I conclude that the matters alleged in the notice have not occurred, as the use of the property as a house, or dwellinghouse, has continued, and any separate use as an entertainment venue which did occur was minimal, and did not constitute a material change of use."

[6] In paragraph 39 the Reporter dealt with a subsidiary matter which had been raised before him relating to the possible amendment of the enforcement notice, as follows:

"While I would be empowered to correct any defect in the notice, this should be done only where it would not cause injustice either to your clients or to the planning authority. The council has suggested that the description of the alleged breach could be altered to define it as a change to a composite use of the premises, both as a house and as an entertainment venue. I agree that this would not be a source of injustice to your clients, in the sense that it would narrow the extent of the alleged breach, however it would represent a fundamental change from the basis on which the council resolved to instigate enforcement action against your client, and which I have concluded was ill-founded. However, given the minimal extent to which I have found that the property was used as an entertainment venue separate from its use as a Class 9 "House", I do not consider that the suggested alteration to the description of the alleged breach of planning control would be justified. In addition, the council has not considered whether it would grant planning permission for such a composite use."

[7] The appellant has appealed to this court against the Reporter's decision under section 239(1)(b) of the Act. That section, so far as relevant, provides:

"(1) If any person -

...

(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds -

(i) that the action is not within the powers of this Act, or

(ii) that any of the relevant requirements have not been complied with in relation to that action,

he may make an application to the Court of Session under this section."

The decision in question was an action on the part of the Secretary of State within the meaning of section 239 by virtue of subsection (4) thereof and section 237(3)(d). The relevant requirements within the meaning of section 239 included any applicable statutory rules or regulations (subsection (9)). The Town and Country Planning Appeals (Determination by Appointed Person) (Inquiries Procedure) (Scotland) Rules 1997 applied to the appeal before the Reporter. By Regulation 22 thereof, the appointed person was required inter alia to notify his reasons in writing to the appellant, the planning authority and to any person who having appeared or been represented at the inquiry had asked to be notified of the decision.

[8] Mr Clancy, Q.C., appeared for the appellant, as he had done at the inquiry. Although a number of specific arguments were presented, he stressed that the central ground of complaint was the inadequacy of the reasons given, in particular (but not only) arising out of the inquiry agents' report presented on behalf of the appellant. This report, and in particular the appendix containing a transcript of a conversation between an inquiry agent and the first respondent on 11 December 2004, contained, it was submitted, evidence plainly supportive of the claims made in the enforcement notice. Under cross-examination the first respondent had agreed not only that the transcript was an accurate record, but that what he had said was true.

[9] As to the specific arguments, in the first place the Reporter had erred in a number of respects in paragraph 35 of the decision letter. In relation to the four identified events, he did not make any findings or otherwise give any indication as to which events (other than the two during the 2003 Edinburgh Festival) he had in mind, what those events involved or on what basis they were organised. In particular he did not make any findings or give any indication as to what he meant by use as an entertainment venue separate from use as a house. He did not explain how he reached his findings (a) in the face of the substantial body of conflicting evidence from the appellant and from neighbours, he not having criticised that evidence nor having explained why he did not accept it and (b) in the face of detailed criticisms of the credibility and reliability of the first respondent's evidence. It was apparent that he had not wholly accepted the evidence of the first respondent, whose position is recorded in paragraph 22 as having been that there had been only one occasion on which the property had been used for an entertainment event separate from its use as a house, in addition to the two events in August 2003. Above all he did not refer at all at this point to the inquiry agents' report. The only reference to that report at paragraph 34 appeared to be a complete misreading of the import of what had been said. He accordingly failed to give proper and adequate reasons for a finding in fact which was at the heart of his decision. Reference was made to Wordie Property Co Ltd v Secretary of State for Scotland 1984 S.L.T. 345 and Morrison v J Kelly & Sons Ltd 1970 S.C. 65.

[10] Secondly, the Reporter erred in a number of respects in relation to paragraph 37. He failed to make findings about the nature or extent of the limited use of the premises as a family home. In this respect too he failed properly to explain how he reached his finding in the face of conflicting evidence (in particular the transcript appended to the inquiry agents' report) and in the face of detailed criticisms of the credibility and reliability of the first respondent. Once more he accordingly failed to give proper and adequate reasons for a finding which was at the heart of his decision. A subsidiary and related criticism was that the Reporter had unreasonably refused to allow late lodging of certain documentary material relating to another house owned by the first and second respondents at 17b Circus Lane, Edinburgh, and made no mention of the appellant's challenge in cross-examination of the first respondent's evidence about the size of that property and its suitability for use as a family home.

[11] Thirdly, the Reporter erred in confining his consideration of the appeal to events which had already occurred, thereby excluding events which were in contemplation. Reference in particular was made to the first sentence of paragraph 35. The Council was entitled in serving the notice to take account of the first and second respondents' promotion and marketing of the premises as an entertainment venue as reliable evidence of material change of use.

[12] Lastly, Mr Clancy submitted that esto the enforcement notice was defective in respect of its failure to describe the breach of planning control as a material change of use from use as a dwellinghouse to a composite use as a dwellinghouse and an entertainment venue, the Reporter erred in his failure to exercise his discretion to allow that defect to be cured by amendment. In particular he erred in this regard having concluded that an amendment of this sort would not be a source of injustice to the first and second respondents.

[13] For the avoidance of doubt we record that Mr Clancy did not, as we understood him, seek to insist on a number of specific arguments set out in the written appeal, in particular grounds 3(5) and (6), 4(4), 5(1), (2), (3)(a) and (4).

[14] In conclusion, Mr Clancy's submission was that the decision should be quashed and the appeal against the enforcement notice remitted for decision by a newly appointed reporter. It was important that any new decision should be seen to be free of any risk, actual or perceived, of ex post facto rationalisation, not least where the Reporter had been present during the appeal to the Court of Session, and where the ultimate question for resolution was so closely bound up with questions of credibility and reliability.

[15] The first and second respondents were not represented before this court, being content, it seemed, to rely on arguments in support of the Reporter's decision presented by Miss Crawford on behalf of the third respondents. She argued that the Reporter had adequately dealt with the issues he required to decide. In giving reasons he did not need to address each and every issue raised. He required only to address the substantial points and to indicate what conclusions he had reached on the principal controversial issues. There was no need for elaboration. Reference was made to Wordie Property Company Ltd v Secretary of State for Scotland, City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, South Buckinghamshire County Council v Porter (No.2) 2004 1 WLR 1953 and Moray Council v The Scottish Ministers 2006 CSIH 41. The Reporter had correctly identified the important issue at paragraph 33, namely whether use of the premises as a house had ceased entirely, or to the extent that it remained only minimal or incidental or ancillary to its use as an entertainment venue. The extent to which the first and second respondents continued to live in the house and the number and type of events held could be said to be peripheral, though relevant, to that primary issue. In a case such as this it was a matter of circumstance and degree how far a reporter required to go in explaining why one body of evidence was preferred to another, but the sort of detail expected of a judge after proof was not required. As to the inquiry agents' report, although the Reporter had no specific recollection of this, the third respondents could not dispute the contention that the first respondent had agreed that what he had said was true. The transcript, however, was consistent with the first respondent simply having provided a "puff" for potential use of the property. The Reporter was right to exclude future potential change of use from his consideration. The enforcement provisions were concerned with breaches of planning control which had occurred (and which continued) and not with anticipated breaches. Reference was made to sections 123, 127(1)(a), 128(3) and section 130(4) of the Act. Rule 12 of the Regulations required lodging of documents four weeks before the inquiry, and the Reporter's decision not to allow material relating to Circus Place to be lodged was entirely within his discretion. He had no need to refer to any specific cross-examination relating to that address. The Reporter's decision not to allow amendment of the enforcement notice as recorded at paragraph 39 was entirely justified. In relation to the last sentence of that paragraph, Regulation 6(1)(b) of the Enforcement of Control (No.2) (Scotland) Regulations 1992 required the planning authority to state whether it would be prepared to grant planning permission for the changed use alleged.

[16] Although both counsel were agreed that the principal issue for determination by the Reporter was correctly summarised at paragraph 33 of the decision letter, it is clear that central to the decision as a whole was (a) his conclusion at paragraph 35 that save on only four occasions in an eighteen month period - which he regarded as minimal - the property was not used as an entertainment venue separate from its use as a house and (b) his finding at paragraph 37 that the first and second respondents and their family continued (albeit in a limited way) to use the property as a house. In short, the Reporter's decision on these two matters was critical to his determination of whether the matters said to have constituted breach of planning control had occurred. On the evidence before the Reporter there was a clear factual dispute in relation to both. In essence the evidence of the first respondent pointed one way; the written and oral evidence of the Council, the appellant and certain other local residents appeared to point to the other.

[17] It would, of course, be quite wrong to expect a decision of this kind to be expressed with the precision and detail expected of a judge after proof, and we do not find the observations made in Morrison v J Kelly & Sons Ltd to be of much assistance in the present context. Miss Crawford quite rightly stressed, on the basis of well-known authority, that what is required of reasons in a context like the present is that the main issues be clearly dealt with. There is no need to refer to every material consideration. As she herself accepted, however, much depends on the circumstances, and on the significance and type of issues which require to be resolved. If there is a significant divergence between important pieces of evidence which it is necessary to resolve, a reporter could ordinarily be expected, it was accepted, to explain why he has chosen to resolve that divergence in a particular way.

[18] But for the existence of the evidence of the inquiry agents' report (and subject to another important qualification to which we shall return) we would be inclined to think that the reasons given in this case, though not lengthy or detailed, could be described as adequate. In making his decision the Reporter explained that his finding was that on only four occasions had the property been used as an entertainment venue separate from its use as a house and that the first and second respondents and their family continued with use, albeit limited, of the property as a house. It is, moreover, reasonably apparent that in making these findings the Reporter broadly accepted (although apparently not in every particular - cf the first respondent's contentions described at paragraph 22) the evidence of the first respondent (see paragraphs 35 and 37) and preferred it to the evidence of the appellant and other residents (see paragraphs 36 and 37). Further, the basis for that preference is, it seems reasonably clear, the Reporter's view being that much of the evidence of neighbours was based on impression derived from external observation and without detailed knowledge of what was going on (see paragraphs 36 and 37). Further, the Reporter could not, we think, be said to have had any obligation to refer to that particular piece of cross-examination of the first respondent which related to 17b Circus Lane (and the earlier decision to refuse to allow late lodging of related materials was, in our view, entirely within his discretion).

[19] The existence of the inquiry agents' report, however, puts the matter in a very different light. This report, prepared by Messrs Grant and McMurtrie, was instructed by the appellant. It contained, as an appendix, a transcript of a long conversation between an inquiry agent - who on 11 December 2003 posed as a person seeking to hire the premises for a formal party event - and the first respondent. We have read this transcript with some care, and it is clear that a number of significant inferences could readily be drawn. In the first place, it appears to us that the most obvious - although, agreeing with Miss Crawford, perhaps not the only - inference, is that the first and second respondents no longer used the property as their home (see e.g. page 2 and page 4); that the property was available for hire as an entertainment venue on a commercial basis, in particular available to be let to third parties for short periods for the purpose of holding parties, at a charge of £750 for a 24 hour period (see e.g. page 5) (the latter consistent, as it happens, with certain information contained in an Evening News article of 17 December 2004 which was before the Reporter but not mentioned by him); that these short-term lets were necessary because matters had "to be couched in terms of planning laws" (see page 3); that the venue had already hosted many such parties (certainly more than two after August 2003), often with "celebs"; that there was to be another one that evening (see e.g. page 1); and that the diary was beginning to fill up for such events in the New Year (see e.g. page 9). According to the inquiry agent the first respondent provided him, prior to departure, with a postcard which indicated that the premises were available for events, receptions, house parties, cocktail parties, birthday parties etc. In the second place, we consider that on no reasonable view could it be said that the only reasonable inference from the transcript is that the first and second respondents had in mind some contemplated, potential future use of the property in these ways. Instead, quite apart from the reference to past use, the first respondent's apparent position that the property was available for such use, and that it was being advertised on that basis, is in our view capable of being regarded as strong evidence of the present use of the property, however successful such promotion may or may not have been.

[20] It was, of course, for the Reporter to decide what to make of the inquiry agents' report, but, in our view, it was, on any view, highly significant evidence. It was in a totally different category from that provided by the neighbours themselves, being evidence coming, as it were, from inside the house itself. In our view it was readily capable of being regarded not merely as contradictory in important respects of the findings apparently made by the Reporter but also as in large measure destructive of the first respondent's evidence if given in accordance with his precognition, as we were led to understand it was. In short, it gave rise to a significant and critical issue for determination by the Reporter. It could not reasonably be ignored or brushed aside. Against that background, there is no mention at all of what the Reporter made of it in paragraph 35 or 37 in respect of the two main findings which he made. It is true that it is earlier referred to in connection with evidence of apparent contemplated use for the future (at paragraph 34). It is also true that at least in part it could be taken to refer to expectations for the future, and, agreeing with Miss Crawford, the Reporter cannot, in our view, be said to have erred in proceeding on the basis that planning enforcement required to be directed to what had occurred (and was continuing) rather than to what was contemplated. But, as discussed above, on no reasonable reading could the inquiry agents' report be said to relate only to contemplated, potential future use of the property. The result is that - whether arising from a misreading of it or not - significant parts of it which do, on any view, apparently relate to past and present use are not referred to at all at any point in the decision.

[21] In addition to that, it is not, in our view, made clear in paragraph 35 what the Reporter meant when he described the four events as being use of the property as an entertainment venue separate from its use as a house. In particular it is not clear whether he excluded from that category occasions when property was let to third parties for a short period of 24 hours or so for the purpose of hosting parties or other events. This form of use was the basis of the service of the enforcement notice as explained in the Reasons (as well as featuring heavily in the transcript of the inquiry agents' report). It would, of course, be for the Reporter to decide, but prima facie it appears to us that any such use of the property as a house could readily be regarded as incidental only to its use as an entertainment venue. Perhaps the most obvious reading of paragraph 35 is that the Reporter himself accepted that (despite what appears to have been argued on behalf of the first and second respondents, at least if no use was made of overnight accommodation - see e.g. paragraphs 22 and 23), but in our view that is not made sufficiently clear, in particular when regard is had to paragraph 37.

[22] In the respects discussed above the Reporter can, in our view, be said to have failed in his duty to give reasons, and the appellant must be taken to be substantially prejudiced thereby.

[23] We would only add, for completeness, that we are not persuaded that the Reporter could be said to have erred in the exercise of his discretion to refuse the proposed amendment to the enforcement notice - not least having regard to the consideration that the Council had not considered whether it would grant planning permission for the relevant composite use. An appeal against an enforcement notice is deemed to be an application for planning permission in respect of the matters stated in the notice as constituting a breach of planning control (section 133(7) of the Act). The Reporter in any event made it clear that on the basis of his findings such an amendment would have made no difference and the appellant does not now seek to challenge these findings as perverse.

[24] For the reasons already given, however, we shall, under and in terms of section 239(5)(b) of the Act, quash the decision. It is uncertain, having regard to that provision, whether it is open to us to direct that the appeal should be re-heard before a newly appointed Reporter, but for the reasons given by Mr Clancy our clear view is that it should be. As we understood it, Miss Crawford's position was that any such expression of view would be fully respected.


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