Breach of condition notices — Section 145(2) of Town and Country Planning (Scotland) Act 1997 — Failure to specify remedial steps in notice — Alleged non-compliance with notices — Whether notices ultra vires
In July 1997 the
petitioner was granted planning permission to operate an open-cast mine,
subject to conditions. In February 2000 the respondent planning authority
served the petitioner with two breach of condition notices under section 145(2)
of the Town and Country Planning (Scotland) Act 1997. One notice alleged a
failure by the petitioner, as operator of the site, to constantly operate and
maintain a noise and monitoring programme, inter alia, as required by
condition 31 of the planning permission. The second notice alleged a failure by
the petitioner to undertake investigation and take remedial steps upon receipt
of complaints concerning noise resulting from the site, as required by
condition 32. The petitioner applied, by way of judicial review, to quash the
notices, contending that they were ultra vires. In relation to the first
notice, it contended that the requirements under condition 31 involved an ad
hoc obligation, arising on specific occasions, and that no general
‘programme’ of systematic ‘monitoring’ was required. In relation to the other
notice, relating to condition 32, the petitioner submitted that the respondents
had failed to specify the remedial steps required to secure compliance with the
relevant conditions.
third plea-in-law was sustained, and declarator and reduction were granted.
The petitioner’s plea to the effect that
the planning authority had acted ultra vires in issuing the notice
relating to a breach of condition 31 was not sustained. In respect of the
notice relating to condition 32, it is clear that section 145(5) of the 1997
Act is concerned with the actual, factual steps that the local authority
identify as bringing about compliance with a condition. It was not accepted
that the formulation adopted in that notice, calling upon the petitioner to
comply with the stated condition by ‘ensuring’ that its terms were met, was
appropriate or consistent with section 145(5). The use of the word ‘ensuring’
focuses upon the result to be achieved, rather than the means of achieving it.
Given that an offence results from failure to take steps, those steps must be
very clearly specfied. This notice was ultra vires.
Judicial review
This was a petition
brought by Scottish Coal Co Ltd for judicial review of two breach of condition
notices served upon it by the respondents, East Lothian Council, under section
145(2) of the Town and Country Planning (Scotland) Act 1997.
(instructed by Drummond Miller) appeared for the petitioner, Scottish Coal Co
Ltd.
(instructed by Allan McDougall & Co) represented the respondents, East
Lothian Council.
judgment was delivered.
LORD PROSSER: The petitioner
carries on open-cast mining at a site at Blindwells, Tranent, in terms of a
grant of planning permission dated 23 July 1997. A number of conditions were
attached to the planning permission. The respondents are the relevant planning
authority. On 1 February 2000 they served two separate breach of condition
notices on the petitioner, upon the basis that the petitioner was in breach of
condition 31 and condition 32. The petitioner’s position is that each of these
notices was ultra vires, and should be reduced.
Where planning permission for carrying
out any development has been granted subject to conditions, section 145 of the
Town and Country Planning (Scotland) Act 1997 applies. In terms of section
145(2), the planning authority may ‘if any of the conditions is not complied
with’ serve a breach of condition notice upon any person who is carrying out,
or has carried out, the development, requiring him to secure compliance with
such conditions as are specified in the notice. The two notices with which this
petition is concerned were issued in reliance upon section 145(2). In relation
to each notice, issues arise as to whether, as a matter of fact, the condition
in question has, or has not, been complied with. At this stage, however, it is
not necessary to consider those issues of fact. The question that I am asked to
determine, in relation to each notice, is whether, without inquiry into the
facts, the notice can be seen to be ultra vires.
I deal first with the notice, which
alleges breach of condition 31. Condition 31 is in the following terms:
31. Within a period of no later than 28
days of the date of granting of this planning permission the site operator
shall have made effective and thereafter shall constantly operate and maintain
a suitable noise analysis and monitoring programme with the results being
reported in writing to the Planning Authority on a monthly basis or otherwise
upon request. The monitoring shall be carried out by methods and at positions
agreed with the Planning Authority and the positions shall be in the locations
of St Germains, Chesterhall, Westwood Cottage (Southfield), Hoprig Mains Farm
Cottages and Greendykes, and any other locations required by the Planning
Authority. Details of the monitoring equipment and programme shall be submitted
to and be approved by the Planning Authority and shall include all parameters
necessary to demonstrate compliance with Conditions 26 and 27.
The notice, at para 4, asserts that this
condition has not been complied with, and goes on to say that the details
submitted in terms of the final sentence of condition 31 are set out in a
schedule annexed and executed as relative to the notice.
It was not disputed that what is
contained in the schedule is, indeed, a document setting out details of the
monitoring equipment and programme submitted by the petitioner to the
respondents, and approved by the respondents shortly after the grant of
permission in 1997. The document sets out various matters under the headings of
‘Instrumentation’, ‘Records’ and ‘Management’, and concludes with a final
heading ‘General’. Under that heading, para (a) provides:
Should the Planning Authority be of the
opinion that Conditions 26 or 27… have been breached… SCCL and the Planning
Authority will undertake a joint survey in order to ascertain noise levels emanating
from the site.
It
is provided that the specified sound level meter or equivalent ‘will be jointly
manned at all times during the survey and details of all noise events will be
recorded’.
The breach of condition 31 that is relied
upon by the respondents is not, perhaps, as clearly identified as one might
wish. But, putting the matter shortly, the respondents’ position, as revealed
by the notice, is that the planning authority were of opinion that condition 26
had been breached, and that para General (a) therefore applied, so that the
company and the planning authority would undertake a joint survey of the kind
there specified. The notice asserts that one of the company’s officials
attended certain noise level readings, but was present for only a 20-minute
period, ‘and so a Joint Survey could not be undertaken’. The failure to fulfil
this specific requirement of the agreed programme was therefore a breach of the
requirement of condition 31 constantly to operate and maintain that programme.
On
behalf of the petitioner, it was not disputed that a breach of condition 31
could arise in the event of there being a breach of specific obligations
created by the detailed programme dealt with by the last sentence of the
condition. It was accepted that the document set out in the schedule was a
document produced by the petitioner itself, in fulfilment of its obligation,
under condition 31, to submit details of the monitoring equipment and
programme, including the parameters necessary to demonstrate compliance with conditions
26 and 27. The submission that the notice was ultra vires was
essentially a short one, despite the fact that the document had been submitted
by the petitioner, and approved by the respondents, as the required statement
of the details of the monitoring equipment and programme: what was contained in
para General (a) was something quite different, and could not be read as being
‘details of the monitoring equipment and programme’ of the kind envisaged in
the final sentence of condition 31. General (a) was not laying down any kind of
programme. It was providing for something quite different — an ad hoc
obligation, arising when the planning authority reached a particular view
on a particular occasion, quite distinct from any general ‘programme’ or systematic
‘monitoring’, which was the subject matter of condition 31.
I am not persuaded that there is any real
force in this argument. Seen in isolation, the joint survey required by para
General (a) plainly arises, ad hoc, when the planning authority come to
be of the opinion that either condition 26 or 27 has been breached. But, having
regard to the fact that the programme required by condition 31 is a general
programme, put in place at the outset of the development, it appears to me that
while some elements of the programme, and the monitoring, may be specifically
identified in advance, and without regard to particular circumstances, it is
unsurprising if the programme of monitoring also envisages specific
circumstances in which specific checks or surveys are to be carried out. I am
satisfied that para General (a) is a part of the programme, and that the
alleged breach of its requirements would constitute a breach of condition 31.
In these circumstances, I am not prepared, at this stage, to sustain the petitioner’s
plea to the effect that the respondents acted ultra vires in issuing
this notice.
I turn to the other notice, concerning
condition 32. Condition 32 is in the following terms:
In the event of the site operator
receiving a complaint concerning noise from the site, the operator shall
immediately notify the planning authority and in such cases and in cases where
the complaint is received directly by the planning authority and brought to the
attention of the site operator, the site operator shall immediately undertake
an investigation in consultation with the planning authority and initiate any
necessary remedial measures within the site agreed with the planning authority.
The notice narrates certain complaints,
and states that these were brought to the attention of an official of the
company on 14 January 2000. It is then said that the company’s officials:
had neither consulted with the Council
regarding the investigation which you require to have carried out immediately
in accordance with Condition 32, nor have they sought the agreement of the
Council regarding the necessary remedial measures to be initiated by you in
accordance with Condition 32.
As counsel for the respondents put it, it
is of no significance whether the company in fact carried out any investigation
— it had not carried out what was required by condition 32, which was ‘an
investigation in consultation with the planning authority’. Similarly, even if
necessary remedial measures had been initiated, no such measures had been
agreed with the planning authority as required by the condition. These failures
of consultation and agreement were breaches of the condition.
The submission advanced on behalf of the
petitioner, that this notice was ultra vires, does not turn upon the way
in which the breach is described in the notice. It is based upon the terms of
section 145(5) of the 1997 Act. That provision is in the following terms:
(5) A breach of condition notice shall
specify the steps which the authority consider ought to be taken, or the activities
which the authority consider ought to cease, to secure compliance with the
conditions specified in the notice.
Para (5) of the present notice is headed:
‘What you are required to do’. It is in the following terms:
As the person responsible for the breach
of conditions specified in paragraph 4 of this Notice, you are required to
comply with the stated condition by:
(1) ensuring that an investigation is
undertaken by you in consultation with the Council in relation to the above
mentioned complaints and that any necessary remedial measures agreed with the
Council are initiated by you;
(2) ensuring that in the event that
further complaint concerning noise is brought to your attention and
investigation is immediately undertaken by you in consultation with the Council
and that any necessary remedial measures agreed with the Council are initiated
by you.
Time for Compliance: 28 days beginning
with the day on which this Notice takes effect.
Counsel for the petitioner submitted
that, in terms of section 145(5), a breach of condition notice had to ‘specify’
certain ‘steps’ that the authority considered ought to be taken to secure
compliance with the relevant condition. If the notice did not specify such
steps, it was not a valid notice. The matter was important, as, in terms of
section 145(8), the company would be in breach of the notice if ‘the steps
specified in the Notice’ had not been taken within the required period, and, if
in breach of the notice, would be guilty of a criminal offence in terms of
section 145(9). Para 5 of the notice purported to specify steps, but instead of
specifying actual steps that, if taken, would secure compliance with condition
32, the paragraph, both at head 1 and at head 2, simply echoed the requirement
of the condition, without specifying any steps that might be a means to
securing compliance with it. The petitioner thus had no notice of what was
expected of it in practical terms, and, correspondingly, no way of knowing
whether any particular course of action would, or would not, constitute a
failure to take steps and a criminal offence.
Counsel for the respondents emphasised
the difficulty that would face a local authority in trying to formulate a
notice that would meet the requirements of section 145(5), if all that was
really required was a simple act of compliance, or if there was a choice of
possible courses of action, any one of which would produce compliance with the
condition. I have some sympathy with local authorities in such a situation.
None the less, I think it is clear that section 145(5) is concerned with
actual, factual steps, which the local authority identify as bringing about
compliance of a condition. And I do not think that the formulation adopted in
this notice, calling upon the petitioner to comply with the stated condition by
‘ensuring’ that its terms are met, is appropriate, or consistent with section
145(5). The use of the word ‘ensuring’ focuses upon the result to be achieved,
rather than the means of achieving it. Without much change of language, there
could be a direct requirement to do certain things, whether in relation to the
actual complaints or in the future, in given circumstances. It was suggested by
counsel for the respondents that, as expressed, para (5) was essentially
demanding that the petitioner put a system in place that would lead to
consultation, investigation, agreement and the like. I am not persuaded that
the paragraph can be so read. Given that an offence results from failure to
take steps, it seems to me that steps must be very clearly specified. I am not
persuaded that this paragraph achieves this, and I hold this notice to be ultra
vires. I sustain the petitioner’s third plea-in-law, and grant declarator
and reduction accordingly.
I should mention briefly a contention,
advanced on behalf of the petitioner, that, in relation to the condition 31
notice, and, perhaps, the condition 32 notice, there might be a possible
invalidity flowing from a need to install equipment in, or enter upon, private
property to which the petitioner would have no right of access. In the document
prepared by it for the purposes of the last sentence of condition 31, the
petitioner notes the need for other owners’ agreement, and a possible need for
alternative sites. On the material before me, I am not satisfied that either
the conditions or the notices require anything of the petitioner that it would
not be in a position to carry out.
Having regard to the possible need for
factual inquiry, parties were agreed that the case should be put out by order
at this stage, to determine future procedure.
Declarator and reduction granted.
