TAYLOR, APPEAL UNDER SECTION 239 OF THE TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997 BY BRIAN ALFRED TAYLOR AGAINST THE SCOTTISH MINISTERS [2019] ScotCS CSIH_11 (06 March 2019)

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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> TAYLOR, APPEAL UNDER SECTION 239 OF THE TOWN AND COUNTRY PLANNING (SCOTLAND) ACT 1997 BY BRIAN ALFRED TAYLOR AGAINST THE SCOTTISH MINISTERS [2019] ScotCS CSIH_11 (06 March 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSIH_11.html
Cite as: [2019] ScotCS CSIH_11, 2019 SLT 681, [2019] CSIH 11, 2019 GWD 10-144

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President
Lord Menzies
Lord Drummond Young
OPINION OF THE COURT
[2019] CSIH 11
XA59/18
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the Appeal to the Court of Session
under
Section 239 of the Town and Country Planning (Scotland) Act 1997
by
BRIAN ALFRED TAYLOR
Appellant
against
THE SCOTTISH MINISTERS
Respondents
Appellant: Party
Respondents: N McLean (sol adv); the Scottish Government Legal Directorate)
6 March 2019
Introduction
[1]       This is an appeal, under section 239 of the Town and Country Planning (Scotland)
Act 1997, against the dismissal of an appeal by the respondents’ reporter. The appeal had
challenged an Enforcement Notice which had been issued by a local planning authority.
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2
The Notice alleged that the processing of materials or minerals had been carried out in
breach of planning control. The issue in this appeal is primarily whether that processing
was permitted by certain Classes specified in the Town and Country Planning (General
Permitted Development) Order 1992. The appellant criticises the adequacy of the reasons
given by the reporter. The appeal is also about the extent to which a reporter requires to
deal with matters not raised in an appeal to the respondents, the decision on which has been
delegated to that reporter. It also touches upon the concept of legitimate expectation in
relation to a substantive, rather than a procedural, right.
Legislation
[2]       A planning authority may issue an Enforcement Notice, under section 127 of the 1997
Act, where it appears that there has been a breach of planning control and it is expedient to
issue the Notice having regard to the development plan and any other material
considerations. The notice requires to state (s 128(1)) the matters constituting the breach and
to specify (s 128(3)-(5)) the steps to be taken to remedy the breach or the activities which
require to cease.
[3]       Paragraph 3 of the Town and Country Planning (General Permitted Development)
(Scotland) Order 1992 provides general planning permission for the “Class” of development
specified in Schedule 1. Class 14 (Part 4 of the Schedule) deals with Temporary Buildings
and Uses; Classes 18 and 19 (Part 6) with Agricultural Buildings and Operations; Class 22
(Part 7) with Forestry Buildings and Operations; and Classes 65 and 66 (Part 19) with
Removal of Material from Mineral Working Deposits.
[4]       Thus general permission is granted for:
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PART 4
TEMPORARY BUILDINGS AND USES
Class
14.(1) The provision on land of ... works, plant or machinery required temporarily
in connection with and for the duration of operations being or to be carried out on ...
that land ...
(2) Development is not permitted by this class if
...
(b) planning permission is required for these operations but has not been granted
or deemed to be granted ...
PART 6
AGRICULTURAL BUILDINGS AND OPERATIONS
Class
18.(1) The carrying out on agricultural land comprised in an agricultural unit of
(b) the ... maintenance of private ways; or
(c) any ... engineering operations,
requisite for the purposes of agriculture within that unit.
(3) ... subject to the following conditions
(b) where the development involves-
...
(ii) the removal of any mineral from a mineral-working deposit on
the land,
the mineral shall not be moved off the land ...
Class
19.(1) The winning and working on land held or occupied with land used for the
purposes of agriculture, of any minerals reasonably necessary for agricultural
purposes within the agricultural unit of which it forms part.
...
Interpretation of Part 6
... ‘agricultural land’ means land which, before development permitted under
this Order is carried out, is land in use for agriculture ... ‘agricultural unit’
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4
means agricultural land which is occupied as a unit for the purposes of
agriculture ...
PART 7
FORESTRY BUILDINGS AND OPERATIONS
Class
22.(1) The carrying out on land used for the purposes of forestry, ... or in the case of
sub-paragraph (c) land held or occupied with that land, of development reasonably
necessary for those purposes consisting of
...
(b) the formation, alteration or maintenance of private ways;
(c) operations on that land, or on land held or occupied with that land, to
obtain the materials required for the formation, alteration or maintenance of
such ways;
(d) other operations (not including engineering or mining operations).
...
PART 19
REMOVAL OF MATERIAL FROM MINERAL WORKING DEPOSITS
Class
65. The removal of material of any description from a stockpile.
Class
66.(1) The removal of material of any description from a mineral working deposit
other than a stockpile.
...
Interpretation of Part 19
...
‘mineral working deposit [means any deposit of material remaining after
minerals have been extracted from land or otherwise deriving from the
carrying on of operations for the winning and working of minerals ...] (1997
Act, s 277; ‘minerals’ including all substances of a kind ordinarily worked for
removal by underground or surface working’ (ibid));
...
stockpilemeans a mineral-working deposit consisting primarily of minerals
which have been deposited for the purposes of their processing or sale.
[5]       The Waste Management Licensing (Scotland) Regulations 2011 are made under the
Pollution Prevention and Control Act 1999. They are designed to license, and hence control,
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activities, notably the disposal of waste, which are capable of causing environmental
pollution giving rise to harm to the health of, inter alios, people or the environment.
Schedule 1 contains a list of activities which are exempt from the licensing regime.
Paragraph 9 of the Schedule includes the treatment of land (including the restoration of
quarries) with certain “wastes” contained in a table which includes “waste” gravel, crushed
rocks and sand.
Background
[6]       The appellant trades as an environmental consultant under the name Grampian Soil
Surveys, which is based in Glasgow. In 2017 he was appointed as an adviser to John Ross
and PTM Plant Limited, in connection with works to be carried out at the Haddo Quarry,
Tarves, Aberdeenshire. This was a sand and gravel quarry which is located partly on
Haddo Estates land. Excavations had ceased when the operator (Les Taylor Contractors
Ltd) had been placed in receivership without having complied with a condition of the
original planning consent to restore the ground for forestry purposes. Planning consent for
further quarrying on the Haddo Estates land was granted in January 2017.
[7]       Mr Ross was the proprietor of another part of the quarry. PTM Plant acted as his
contractors in relation to the proposed works on this land. These works, which were said to
have included the importation of top soil, were described by the appellant (letter to the
planning authority dated 12 February 2017) as intended “to restore the land back to use in
[Mr Ross’s] forestry operations”. These operations were to take place in the Craigmuir
Woodlands, which adjoin the quarry site. The works, according to the appellant, involved
the removal of stockpiles of formerly excavated material and its processing by means of,
inter alia, “rock crushing machinery”.
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February 2017
[8]       By letter dated 6 February 2017, the local planning authority advised Mr Ross that
they had information that unauthorised mineral extraction and exportation from the quarry
site had taken place. Complaints had been received not only about the extraction and
processing of minerals, but also that the materials were being taken off site. Noise was a
particular concern. There were substantial stockpiles of extracted material on site. Heavy
plant, including “two crushers/graders”, consistent with extraction operations, had been
introduced onto the site. The letter alleged that there was no planning permission for such
activity, since the last known approval for sand and gravel extraction had expired on
13 March 2012 and an application by Mr Ross to extend it had been withdrawn.
[9]       By letter dated 12 February 2017, the appellant responded, on behalf of Mr Ross,
giving a history of activity at the quarry. The appellant contended that there had been no
mineral extraction or exportation of material outwith the Craigmuir Woodlands. What had
been going on was the restoration of the land “for forestry and/or agricultural purposes”.
The operations carried out did not require express planning permission. They were
“permitted development” under the 1992 GPDO. Material, which had originally been
stockpiled on the part of the quarry site belonging to Haddo Estates, had been moved onto
Mr Ross’s land. Mr Ross was awaiting a decision by HM Revenue and Customs which
would allow him to move the material off-site. Meantime, rock crushing machines were
being used to facilitate the repair of access roads to the site and to fields farmed by Mr Ross.
This, it was said, involved the repair of roads to provide agricultural or forestry access as
permitted under Class 18(3)(b)(ii) or Class 22(1)(b) of the 1992 GPDO. The intention had
been to make use of the stockpiled material to repair the roads and for spreading across the
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site. Whether to continue with this idea, or whether to re-profile the land and to continue
limited extraction and treatment of materials for export off-site, all in order to provide a
gentler gradient more suited to forestry or agriculture, was undecided.
[10]       On 15 February 2017 the planning authority sent an email to the appellant,
acknowledging the appellant’s assertion that:
“no extraction has taken place, that the machinery seen on site is there to allow for
the processing of previously extracted and stockpiled material, that none of this
material is being exported and that it is being used for agricultural/forestry
operations on your clients (sic) land”.
The authority accepted that, on the basis of this information, what had taken place fell under
permitted Classes 18 and 22 of the GPDO. On that understanding, no further enforcement
action would be required. It was stressed that the authority reserved the right to take
enforcement action if they received information that the site is not being worked for
agricultural or forestry purposes.
January 2018
[11]       The planning authority made several site visits in the months following the email.
New stockpiles of processed material were noted in March 2017. By November 2017, it had
become apparent to the authority that a significant amount of material had been removed
off-site, albeit that they had said that this could be done, in respect of material already
stockpiled, under Class 65 of the 1992 GPDO. At a visit on 19 January 2018, new material (ie
that not previously stockpiled on Mr Ross’s part of the quarry) was observed being
processed and stockpiled.
[12]       On 22 January 2018, the planning authority served an Enforcement Notice. This
alleged “The processing of materials or mineralswithin Haddo Quarry, which was said to
amount to a breach of planning control. The authority served a Stop Notice requiring
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Mr Ross and PTM Plant to cease the crushing, screening or, by any other means, processing
of materials or minerals” within the quarry. The Enforcement and Stop Notices were
accompanied by a letter stating that they related to an allegation that unauthorised
processing of on-site material had taken place using a large screener. Such operations, it
was stated, required planning permission in their own right; and no such planning
permission had been obtained. At a further visit on 26 January 2018, new material was
again noted as having been added to the existing stockpiles; ie this material had not just
come from another part of the site.
The Appeal to the respondents
[13]       On 20 February 2018, the appellant, on behalf of Mr Ross and PTM Plant, submitted
an appeal to the respondents against the Enforcement Notice. It was maintained that no
breach of planning control had occurred. The grounds of appeal, which were set out in the
planning statement, made reference to Classes 18 and 22 of the 1992 GPDO. The general
grounds were that: (1) the matters alleged to constitute a breach of planning control (ie the
processing) had not occurred (s 130(1)(b) of the 1997 Act); and (2) if they had occurred, these
matters did not constitute a breach of planning control (s 130(1)(c)). It was said that, in
terms of Class 65, the removal of previously stockpiled materials was permitted and thus no
longer an issue. In relation to the other operations on site, these had all “been directed at the
restoration of the site and thus purifying” the earlier planning consent condition. The then
appellants (Mr Ross and PTM Plant) had no desire to engage in new quarrying, but had
screened “a former spoil heap” to provide material for the maintenance of Mr Ross’s
“forestry plantations and agricultural fields”. This was permitted under Classes 18(1) and
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9
22 of the 1992 GPDO. Under Class 18(3)(b)(ii) the removal of minerals from a deposit was
permitted, as it was under Class 66(1).
[14]       The planning authority’s response identified three arguments. The first related to the
then appellants’ contention that they were fulfilling the restoration condition of the original
planning consent. The answer to that was that the former permission, including any right to
rely on any planning condition, had expired in 2012. Restoration of a quarry would require
a new consent. In any event, the condition had required the approval of any restoration
scheme. The second argument centred on Class 18. The authority maintained that, although
it had previously accepted that pre-existing stockpiles could be removed for genuine
agricultural uses, a significant amount of material was being removed from the site by PTM
Plant and other hauliers for non-agricultural uses, including a house development and the
construction of the Aberdeen Western Peripheral Route. Although Class 65 allowed the
removal of stockpiled material, that did not cover extraction or processing. The authority’s
earlier position (email of 15 February 2017) had been flawed. Class 18 allowed development
“on agricultural land comprised in an agricultural unit” when “requisite for the purposes of
agriculture”. The quarry was not in use as agricultural land. The third argument centred on
Class 22. The authority had not seen any ongoing or imminent forestry necessitating the
formation of an access road. Afforestation of the quarry, and hence the need for an access
road, depended upon permission to import waste material onto the site. Restoration was an
engineering operation requiring permission. The then appellants could not invoke Class 22
on the basis of hypothetical future afforestation. The primary purpose of maintaining the
relevant access road was to allow HGVs in and out of the processing area from the public
road.
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[15]       In a detailed, if repetitive, comment on the planning authority’s response, the
appellant maintained that the works had consisted only in the maintenance of an existing
“private way” and the proposed upgrading of an “internal haul road” to facilitate future
restoration operations. It was accepted that neither Class 18 nor Class 22 permitted the
processing of materials for use “off-site”. On the other hand, the then appellants were
entitled to use the crushing and screening equipment to supply base material for the repair
of a private road. The then appellants had “never suggested that there are any proposed
imminent forestry operations nor have the Appellants began (sic) a construction of a new
private way”. The authority required to provide evidence of their allegation that “extensive
processing of materials had been carried out on the site”. Although some previously
processed material had been moved off-site, and there was processing machinery on-site,
this was to separate out rock for crushing from “an existing quarry spoil heap, in order to
complete repairs to the existing roadway”. The authority had confirmed in their email of
15 February 2017 that this complied with the GPDO. Why, the appellant asked, did the
authority now claim otherwise?
Reporter’s decision
[16]       The appeal was delegated to a reporter appointed by the respondents. On 18 June
2018 she dismissed the appeal. Her reasoning was in short compass. The first ground of
appeal (s 130(1)(b)) had been that the matters stated in the notice (ie the processing of
material) had not occurred at all. The reporter held that the appellants had stated in their
submissions that the processing of material, including the crushing of rock and screening of
a spoil heap, had occurred. The appellants had stated that they had not denied that
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processing had taken place. On that basis the first ground was rejected. The evidence
“plainly” showed that processing had taken place.
[17]       The second ground (s 130(1)(c)) was that the works undertaken did not constitute a
breach of planning control as they benefited from the permitted development rights under
the 1992 GPDO. In particular, the works were said to have been undertaken to provide
materials for the maintenance of an existing private access road which served forestry
plantations and agricultural fields owned by Mr Ross.
[18]       The reporter was satisfied that the processing of materials and minerals constituted
development. She determined that, although the site may have been part of a larger land
holding, which included agricultural and forestry uses, this site was an unrestored quarry
and did not fit within the definition of agricultural land. The processing was not reasonably
necessary for the purposes of agriculture.
[19]       The reporter had carried out a site inspection, but had seen no evidence of partially
restored areas of the site that pointed towards any eventual use for forestry. There was
evidence of limited infilling of holes in the road from the quarry which passed Craigmuir
House and went through an area of established forest. No obvious evidence of active felling
or thinning was seen. In the appeal, no reference had been made to acts of woodland
management. Consequently the reporter was unable to conclude that the works to the
access road were justified as reasonably necessary for forestry purposes.
[20]       The reporter accepted, in accordance with the appellantssubmission, that the
removal of stockpiled material was permitted development under Class 65, but the
“removal” of materials did not permit the processing of such materials. Processing required
planning permission. Processing, which had not fallen within any of the permitted
development classes, had taken place. The former planning consent did not permit the
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processing of materials as part of restoration works. The reporter determined that whether a
fresh planning application was required for the restoration of the site was not within her
remit. The works specified in the Enforcement Notice constituted a breach of planning
control and therefore the second ground of appeal also failed.
Appellant
[21]       The appellant advanced five grounds of appeal. The first was that the respondents’
reporter failed to identify and comment upon the “principal important controversial issue”
(South Bucks DC v Porter (No 2) [2004] 1 WLR 1953 at para 36) and thus failed to disclose how
that “issue of law or fact” had been resolved. It was said that, during the course of the
appeal to the reporter, the appellant had raised two important questions; the first relating to
the planning authority’s volte-face following the email of 15 February 2017 and the second
to whether a new planning application for restoration of the quarry had been necessary.
There had been no evidence to demonstrate that the works were not required for
agricultural or forestry purposes and no adequate reason (Eildon v Scottish Ministers
[2010] CSOH 102 at para 36) had been given, which explained how things had changed between
the email and the enforcement proceedings. The authority had decided the matter at the
time of the email and were thereafter functus officio (R (Sambotin) v Brent LBC [2019] HLR 5 at
para 3). The then appellants had had a legitimate expectation arising from the planning
authority’s previous approach as described in the email. The decision had left the appellant,
as an informed reader, in substantial doubt as to the reporter’s findings in fact and
conclusions on the main issue (South Bucks DC v Porter (No 2) (supra) at paras 35-36; Moray
Council v Scottish Ministers 2006 SC 691 at paras 28-30; cf Uprichard v Scottish Ministers 2013
SC (UKSC) 219 at para 48; City of Edinburgh Council v Secretary of State for Scotland 1998 SC
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(HL) 33 at 49; and Save Britain’s Heritage v Number 1 Poultry [1991] 1 WLR 153). In response
to questioning from the court, the appellant accepted that he had not raised the “principal
important controversial issue” with the reporter, but he had given her the facts.
[22]       The second ground was that the reporter had erred in holding that, having
concluded that processing of materials had occurred, the appeal on the first ground
(s 130(1)(b)) failed. No formal permission was required for the use of mobile plant, which
was covered by Class 14 of the 2011 (sic) GPDO, in relation to operations for which
permission had been granted or was not required. It was not for the appellant to raise
Class 14. The reporter had been bound to consider all the provisions of the 1992 GPDO. The
works were exempt, as involving “waste used in accordance with the requisite planning
permission” under the Waste Management Licensing (Scotland) Regulations 2011 (Sch 3
para 9(3)(c)) (sic; this does not seem to exist and the correct reference may be Sch 1 para
9(1)(b)). The reporter had failed to take into account the existence of a mobile plant licence,
which had been issued to deal with the processing of a “waste spoil heap”. That licence
controlled noise, dust and other issues. The reporter failed to recognise that not all
processing operations required planning permission.
[23]       The third ground was that the reporter had failed to take into account the
applicability of Class 19 of the 1992 GPDO. It was not for the appellant to raise this, but for
the reporter to consider it. The appellant had said that the former quarry formed part of
land which was held or occupied with land used for the purposes of agriculture. The
reporter had erred in concluding that it was not. It was accepted that this was a question of
fact, as was the issue of what constituted a planning unit (Fuller v Secretary of State for the
Environment [1988] 1 PLR 1). The reporter had driven along the 1000m access road to the
quarry and inspected the area where the processing activities had taken place. The
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appellant had never claimed that the quarry was in agricultural or forestry use, but it was
land held or occupied with land in such use.
[24]       The fourth ground was that the reporter had placed restrictions on the road repair
exemptions which were not contained in the 1992 GPDO. There was no need for prior
notification of maintenance works. The reporter had no basis for qualifying her decision by
stating that there was no evidence of active felling or thinning. The reporter had failed to
ask about the forestry or agricultural activities. She had not obtained the information
necessary to exercise a competent planning judgment.
[25]       The fifth ground averred that the reporter’s conclusion, that the processing did not
have the permitted development rights under the 1992 GPDO, was in error. Class 14
permitted the temporary operation of mobile plant and such plant was also licensed in order
to treat quarry waste under the 2011 Regulations. The GPDO did not say that planning
permission was a prior requirement for the use of mobile plant.
Respondents
[26]       The respondents contended, in relation to the first ground, that the matter before the
reporter had been an appeal on specific grounds, notably that the operations described in
the Enforcement Notice had not occurred and that they did not constitute a breach of
planning control. The court was concerned only with the legality of the reporter’s decision
and not with its merits or any planning judgment (Tesco Stores v Secretary of State for the
Environment [1995] 1 WLR 759 at 764 and 780). The reporter was not barred by any prior
decision or conduct of the planning authority. She had the written representations of both
the appellant and the authority. She had regard to, inter alia, the submissions made by the
appellant, the authority’s response, including their submission that their earlier view, as
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expressed in the email, had been flawed, and both parties’ submissions on the applicability
of the 1992 GPDO.
[27]       The principles in relation to the duty to give reasons were not disputed. The reporter
had identified the main or determining issues in the appeal as: (1) whether the processing of
materials or minerals had occurred; and, if so, (2) whether that processing had benefitted
from permitted development rights in the manner suggested by the appellant. The
reporter’s reasons, to the effect that the matters specified in the Enforcement Notice had
occurred and that they did not benefit from permitted development rights, were set out in
the decision, which provided proper, adequate and intelligible reasons.
[28]       On the second and fifth grounds (Class 14 of the 1992 GPDO) the respondents
maintained that the appellant had not relied on Class 14 in his appeal statement or his
grounds of appeal to this court. If the reporter had considered Class 14, then it would not
have made any difference to her decision. The appellant had accepted that processing of
material had taken place on site. Class 14 was intended to cover situations where an extant
planning permission was in place and operations were being conducted on the land
benefitting from that permission. Any authorisation for the use of plant under the 2011
Regulations did not exempt the appellant from the need to obtain planning permission. Any
such authorisation was a separate matter and irrelevant to the reporter’s consideration of the
appeal on the grounds advanced by the appellant.
[29]       On the third ground, the respondents again maintained that the appellant had not
relied on Class 19 in the appeal to the reporter. He had relied on Class 18, which provided
for permitted development on agricultural land as defined. The question, of whether land
formed part of one agricultural unit or not, was one of fact. It was also a question of fact and
degree to decide what constituted an appropriate planning unit (Fuller v Secretary of State for
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the Environment (supra)). A site visit had been conducted. The appellant’s written
submissions did not provide any evidence that the site was in agricultural use. On the basis
of the visit and the material presented to her, the reporter concluded that the site did not fit
the definition of agricultural land and that the works could not be regarded as reasonably
necessary for the purposes of agriculture. That was a matter for her planning judgment. If
she had been required to consider Class 19, no different decision would have been reached.
Any processing carried out on the site was not necessary for agricultural purposes.
[30]       On the fourth ground, Class 22 was only engaged if the land was in use for the
purposes of forestry. The reporter concluded that there was no evidence of any partial
restoration of the area for the purposes of forestry, nor any obvious evidence of any felling
or thinning of the woodland. The appellant’s submissions had made no mention of any
active woodland management being conducted on site. The reporter concluded, on the
material before her, that the site did not fit the definition of land used for the purposes of
forestry, or that the works were reasonably necessary for the purposes of forestry. This
again was a planning judgment for the reporter to make.
Decision
Context
[31]       It is important, when examining issues of natural justice, including fairness, in a
statutory appeal process, to consider the context of the statute and the shape of the legal and
administrative system within which a decision is to be taken (R v Secretary of State for the
Home Department ex p Doody [1994] 1 AC 531, Lord Mustill at 560; adopted in Glasgow City
Council v Scottish Legal Aid Board 2018 SC 474, LP (Carloway), delivering the Opinion of the
Court, at para [46]).
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[32]       A reporter, to whom an Enforcement Notice appeal is delegated, operates within a
statutory framework which sets out the procedure which the adversarial parties must
follow. In terms respectively of sub-sections 130(2) and (3) of the Town and Country
Planning (Scotland) Act 1997, the appellant must give written notice of the appeal to the
respondents and a statement in writing “(a) specifying the grounds on which he is appealing
... and (b) giving such further information as may be prescribed. The categories of ground
upon which an appeal can proceed are set out in sub-sections 130(1)(b) to (g); the only ones
relevant in this appeal being (b) and (c) (see infra). Section 131 allows the Scottish Ministers
to prescribe by Regulation the procedure which is to be followed, including the content of
the section 130(3) statement, and a requirement for, and the content of, a statement in
response by the planning authority.
[33]       In terms of regulation 14(2)-(3) of the Town and Country Planning (Appeals)
(Scotland) Regulations 2013 (see regs 1(6)(b) and 14(6)) the appellant, in addition to stating
the grounds of appeal, “is to give” in the section 130(3) statement:
“(3) ...
(a) all matters which the appellant intends to raise in the appeal;
...
(e) a note of the matters which the appellant considers require
determination ...”.
The statement “is to be accompanied by copies of all documents, materials and evidence
which the appellant intends to rely on ...” (reg 14(4)). Apart from the matters set out in the
statement and documents, the appellant “may raise matters only in accordance with and to
the extent permitted by regulations 11(a request for information from the reporter) and 15.
The latter requires the planning authority to submit a response to the appellant’s grounds
and a statement of the matters which the authority consider require determination
(reg 15(2)(a)). The authority require to lodge copies of the documents which were before
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18
them and were taken into account in reaching the decision (reg 15(2)(b)). The appellant is
entitled to comment upon any matters raised by the authority (reg 15(3)). If the reporter
proposes to take into account any new evidence, he must afford parties an opportunity to
make representations (reg 13(1)).
[34]       The purpose of this procedure, which was followed by the appellant and the
planning authority, is to focus the issues to be determined by the reporter and to confine the
material, which is thought to be relevant to the issues, within reasonable bounds. Given that
context, although a reporter may have regard to considerations which are obviously relevant
but have not been expressly mentioned by parties, as a generality the reporter’s function is
to decide the appeal within the framework of the written grounds, as expanded in the
statement, response and comments. The reporter is not expected to embark on a frolic of his
or her own and thus to seek out and found upon information which has not been placed
before him or her (City of Glasgow DC v Secretary of State for Scotland 1992 SCLR 453, LJC
(Ross), delivering the Opinion of the Court, at 456). If a reporter decides an appeal on the
basis of a matter not raised, that decision would be open to serious, possibly fatal, criticism,
if the losing party had not been given an opportunity to comment on that matter (Anduff
Holdings v Secretary of State for Scotland 1991 SC 385, LJC (Ross) at 389).
[35]       In short, at least as a generality, where the procedure for written grounds,
submissions, responses and comments is laid out in such detail, the reporter will, as a matter
of fairness to both sides, be expected to decide the appeal on the basis of that
documentation; no doubt coupled with observations on a site visit. If inclined, despite the
absence of any obligation to do so, to engage in other investigations of fact or to raise new
legal issues, significant further procedure would be required in order to provide each party
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with the mysterious “fair crack of the whip” (Fairmount Investments v Secretary of State for the
Environment [1976] 1 WLR 1255, Lord Russell at 1265-6).
Grounds
[36]       It may have been possible for the then appellants to present an argument to the
reporter based upon a contention that they had a legitimate expectation that they would be
allowed to continue their operations on the quarry site without further interference from the
planning authority. Such a contention could have been grounded on the terms of the email
of 15 February 2017. The fundamental problem with the attempt to develop that argument
before this court is that it was not advanced in the appeal to the reporter. It formed no part
of the grounds of appeal or the detailed statement submitted in their support. The existence
of the email is mentioned, as an “additional consideration” in the then appellants’ response
to the authority’s submissions, but only in the context of a rhetorical question about why the
authority were now claiming that January 2018 processing was not permitted under the
GPDO when they had accepted that the 2017 operations had been covered. The statement
refers to the then appellants’ confusion about the authority’s apparent reversal of their
views, but nowhere was it said that the terms of the email of 15 February 2017 led to any
legitimate expectation on the part of the then appellants, such that the authority had become
barred from taking enforcement action. Since the matter was not raised with the reporter,
she cannot have been expected to deal with it. She cannot be criticised for not identifying or
commenting on this “principal important controversial issue” when she was not asked to do
so. The first ground of appeal falls to be rejected on this basis.
[37]       If the issue of the effect of the email of 15 February 2017 had been mooted as creating
a legitimate expectation, it would nevertheless have failed. Quite apart from any difficulty
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in fitting such a contention into the statutory grounds of appeal, in order to create such an
expectation in relation to a substantive right, the act of the representor must be “clear,
unambiguous and devoid of relevant qualification” (R v IRC ex parte MFK Underwriting
Agencies [1990] 1 WLR 1545, Bingham LJ at 1570). It must also proceed on the accuracy of
the information provided by the person who alleges the expectation (ibid). The claim here
fails on both counts. The email made it clear that it proceeded on the understanding that the
assertion, that what was going on was the “processing of previously extracted and
stockpiled material” which was then “used for agricultural/forestry operation” on Mr Ross’s
land, was accurate. The acceptance, that the works therefore fell within Classes 18 and 22 of
the GPDO, was qualified by the planning authority expressly reserving its right to pursue
formal enforcement action on the receipt of “information that the site is not being worked
for agricultural or forestry purposes”. The authority did receive such information. As will
be seen, in due course the reporter found in fact that the processing was not for agricultural
or forestry purposes.
[38]       In relation to the appellant’s contention, that a second important question was
whether planning permission was needed for restoration works, similar considerations
apply. This was not a matter which was relevant to the issues presented to the reporter.
That issue related not to restoration but to the processing of materials. The reporter
correctly held that it was outwith her remit to determine whether permission for restoration
works was required, although en passant she made it clear that she did not consider that the
operations at the quarry involved any restoration of land for forestry purposes. She had
seen no evidence of partially restored areas. Any use of the material on site had been
confined to filling in some potholes in the access road to the quarry.
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[39]       On the second ground, the appellant appears to have misunderstood the reporter’s
rejection of the then appellants’ first ground in the appeal to the respondents. Despite it
having been accepted by the appellant that processing, of the nature complained of, had
been going on at the quarry site, the appeal to the reporter under section 130(1)(b) of the
1997 Act was that, as a matter of fact, that processing had not been going on. The reporter
rejected this ground simply because it was quite obvious that it had been going on and the
terms of the appeal statement had admitted that this was so.
[40]       Identical considerations in relation to the appellant now founding upon Class 14
apply as they do to legitimate expectation. This was not a matter raised before the reporter.
It does not appear in the grounds of appeal to this court either. In this context, neither the
appeal before the reporter nor that to this court take the form of hearings at which parties
are at liberty to raise new matter at will. The detailed rules in the 1997 Act and the 2013
Regulations are, as with the Rules of Court, enacted, in the light of experience, to keep
appellate processes within reasonable bounds and to permit each party a “fair crack of the
whip” (supra). The respondents should not be required to deal with new contentions which
are raised late in a process in the absence of some reason being advanced to excuse non-
compliance with the statutory provisions on fair notice.
[41]       Once again, even if Class 14 had been timeously raised, the reporter would have
been bound to find against the appellant. This Class applies in relation to the presence of
“works, plant or machinery” required to carry out “operations” for which planning
permission has been granted or is deemed to be granted. If there was no actual or deemed
permission, which was the planning authority’s contention, Class 14 could not apply. If
there was such permission, Class 14 was, and is, superfluous. The appellant is, for the
reasons given already, wrong in his submission that the reporter had to consider all Classes
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in the 1992 GPDO with a view to ascertaining whether the processing might fit into one or
other of the sixty nine Classes. It was for the then appellants to advance their case on which
Classes applied and, at least in the absence of an obviously applicable class, for the reporter
to decide on whether to sustain or reject the then appellants’ contentions.
[42]       The relevance of the Waste Management Licensing (Scotland) Regulations 2011 was
not raised as an issue before the reporter and this part of the second ground also fails. Even
if it had been raised, it would have been bound to be rejected. Whether the then appellants
required or had a waste management licence had no direct relevance to the questions which
the reporter was asked or to the general issue of whether planning permission was required
for processing (not disposing of) the material on, or taken into, the quarry site.
[43]       On the third ground, there is a little more force in a contention that, when
considering the application of Class 18, the reporter might have been advised to have a look
at the only other class specifically relating to agricultural land, namely Class 19. If, however,
this was done, and was to be regarded as relevant, the reporter would have been bound to
draw this to the attention of the parties and allow them to make submissions on the matter.
The reporter did not do this and it is not difficult to see why. Class 19 refers, first, to the
“winning and working on land held or occupied with land used for the purposes of
agriculture”. The reporter held as a matter of fact that the quarry site was not land so held
or occupied. This finding is not capable of successful challenge. The area under
consideration was part of a quarry. Class 19 also requires, secondly, that the extracted
minerals must be “reasonably necessary for agricultural purposes within the agricultural
unit of which it forms part”. The quarry was not at the material time used for agriculture
nor was it occupied as part of a larger agricultural unit. The Class under consideration is
intended to allow mining or quarrying on a farm where the purpose is to provide materials
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for use on that farm. That is eminently sensible. It is not intended to permit such operations
on land which, immediately prior to the relevant operation, was not used for agricultural
purposes. That was the position here. At the time when the processing began, this was not
agricultural land. It was part of a quarry, not a farm. Class 19 could have had no
application.
[44]       The same reasoning is relevant to the reporter’s consideration of Class 18. This Class,
so far as relevant, only applies to excavations or engineering operations carried out on
agricultural land comprised in an agricultural unit. The processing did not take place on
such land. It took place in a former sand and gravel quarry. In addition, Class 18 applies
only where the works are “requisite for the purposes of agriculture” and Class 19 applies to
works “reasonably necessary for agricultural purposes”. The reporter, curiously, actually
applied the Class 19 test. That makes no material difference. She held as a matter of fact
that the processing was not for agricultural purposes. That is an unchallengeable finding in
fact, given that the reporter not only had the parties’ submissions, and documents
containing photographs of the site, she also conducted a site visit. However cursory the
appellant considered that visit to be, the reporter must have regarded it as sufficient for her
limited purposes, ie in the context of the appeal. If the appellant had wanted the reporter to
conduct a wider survey of the surrounding area in order to prove the applicability of
Class 18 (or 19 or 22), he had the opportunity in the written materials to invite her to do so.
[45]       The latter observation is relevant to the fourth ground. The appellant had contended
that the material had been, and was to be, used for the purposes of bringing the processing
within Class 22 which, unlike Class 18, permits “operations” on land “used for the purposes
of forestry” or “land held or occupied with that land” which are designed to obtain
materials required to form, alter or maintain private ways where the operations are
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“reasonably necessary” for the purposes of forestry. The reporter held as a matter of fact, as
she had done with the Class 18 contention on agriculture, that the site was neither land used
for the purposes of forestry nor was it land occupied for such purposes. She explained her
reasons for this. The appeal documents had made no mention of any woodland
management. Indeed, the appellant had accepted that there was no active or imminent
forestry management in the vicinity. There was no sign of felling or thinning. The existence
of a wood on land does not make that land “used for the purposes of forestry”. The reporter
was entitled to reach the view that the works on the access road (to the quarry) were not for
forestry purposes. Once again, contrary to the appellant’s contentions, it was for the then
appellants to put all the material, which they considered to be relevant, before the reporter.
The reporter was not obliged to conduct a wider inquiry beyond the material presented to
her.
[46]       The fifth ground has already been covered by the reasoning on the earlier grounds.
It is true that the reporter’s decision is a relatively brief one. It may have assisted if it had
made some comment on the import of the email of 15 February 2017. However, an ability to
express a decision succinctly should seldom be the subject of criticism (see Uprichard v
Scottish Ministers 2013 SC (UKSC) 219, Lord Reed at para [48]) provided that the tests of
intelligibility and adequacy are met. The reporter’s decision letter does not leave the
informed reader in any “real and substantial doubt as to what the reasons for it were and
what were the material considerations which were taken into account” (Wordie Property Co v
Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 348). Putting these reasons even
more succinctly, the reporter did not consider that the operations being carried out by the
appellant’s principals were related to either agriculture or forestry. They were not covered
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by any previous planning consent or any deemed permission. That being so, they required
planning permission. The Enforcement Notice was accordingly justified.
[47]       The appeal is refused.



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