Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 53
XA17/10	OPINION OF LORD STEWART in the Appeal by ALAN CARTLEDGE Appellant; against a Decision of Michael J. P. Cunliffe, a Reporter appointed by the Scottish Ministers, dated 18 January 2010 and communicated to the Appellant on 19 January 2010 under the Town and Country Planning (Scotland) Act 1997, section 239 ­­­­­­­­­­­­­­­­­________________

Appellant: MacIver; Lindsays

Respondents: E. Mackenzie; Scottish Government Legal Directorate

22 March 2011
[1] This is an appeal to the Inner House of the Court of Session in terms of the Rules of the Court of Session, Chapter 41, which by interlocutor of the Extra Division dated 18 June 2010 was remitted to the Outer House for a hearing in terms of Rule of Court 41.44.

[2] The appeal is brought under the Town and Country Planning (Scotland) Act 1997 s. 239 against the decision of a Reporter appointed by the Scottish Ministers. The Reporter's decision dated 18 January and communicated to the appellant on 19 January 2010 dismissed the appellant's appeal against an enforcement notice. The enforcement notice was directed against alleged unauthorised operational development on the appellant's land. The Reporter upheld the enforcement notice.

[3] This further appeal to the Court invokes the jurisdiction of the Court under s. 239 (5)(b) to quash orders and actions which are not within the powers of the 1997 Act. The appellant seeks to have the decision of the Reporter quashed [Grounds of Appeal (adjusted 17 May 2010) paragraphs 1(a) and 5(e)].

[4] The appeal called before me for a hearing on 26 November 2010. On that date I heard submissions by Mr MacIver, counsel for the appellant, and by Mr Euan Mackenzie, counsel for the Scottish Ministers, respondents. Counsel for the appellant moved me to quash "the order". Counsel for the respondents moved me to refuse the appeal. Having made avizandum, I have formed the opinion that the appeal should be refused and that, accordingly, the enforcement notice should stand.

Planning Permission and Caravan Site Licence, 4 October 1972
[5] The appellant is the proprietor of a caravan park at Glenfinart, Ardentinny, by Dunoon, Argyll and Bute. By planning permission issued by the Depute County Clerk of the then planning authority Argyll County Council on 4 October 1972 permission was granted to one of the appellant's predecessors for the formation of a caravan park and conversion of a building into office, laundry and toilet accommodation on the site "in accordance with the plan(s) submitted to the Council and docquetted as relative hereto, also the information given in the application form and [the Depute County Clerk's] letter of 4 October, 1972". The permission was granted subject to the development being commenced within five years and subject to "due compliance with the Building Regulations and general statutory provisions in force" [Production Nos 6/1; 7/1, page 10].

[6] A copy of the letter from the Depute County Clerk of 4 October 1972 is produced [Production Nos 6/1; 7/1, pages 8-9]. The letter states inter alia:

"I refer to the application for planning permission which you submitted in connection with the above and have now to advise you that these proposals have been approved. My Council's formal planning consent is enclosed.

[...]

NOTE

There are no objections to the proposals on highway grounds provided (1) the access is formed as stated in your letter dated 10^th July, 1972 (2) visibility splays are cleared on either side to give visibility of not less than 300 feet in each direction (3) all the works in connection with the formation of the access are carried out in consultation with and to the satisfaction of the County Engineer.

[...]"

[7] The application form has not been produced.

[8] A copy of the dual-purpose planning consent and building warrant plan has been produced [Production No 6/1]. The plan is separately docquetted "approved" by Argyll County Council as the planning authority and by Argyll County Council as the buildings authority. The plan is entitled "Glenfinart Holiday Park Proposed Site Layout". The site is the site of the former Glenfinart House, built ca. 1840, and its policies.

[9] The house was substantially destroyed by fire in 1968. Only its tower and entrance portico remained after the fire [Production No 7/2, page 23]. The layout plan shows most of the house as "Buildings to be demolished". The planning permission does not authorise demolition. These things may indicate that the plan pre-dates the fire.

[10] The dominant natural feature shown on the plan is an embankment that divides the site running roughly north-west to south-east. The part to the west of the embankment is raised as compared with the part to the east. I speculate that the embankment is a natural feature formed by the River Finart which is now confined to a course parallel with the north east boundary of the site: but what the embankment is and how it was formed are not material to my decision.

[11] The raised part constitutes about two-thirds of the whole site. The plan shows four locations marked "1", "2", "3" and "4". The locations are not precisely defined. The legend states: "Development of Site 1 & 2 - 1972-3, ditto 3 - 1973-4, ditto 4 - 1974." Locations 1, 2 and 3 are in the raised part. The plan shows 64 "Caravans connected to water and drainage" in the raised part. There are no caravans shown in location 4 at what was then the lower part to the east of the embankment. The lower part constitutes about one third of the area of the whole site and bears the legend "mixed trees and undergrowth".

[12] The documentation suggests that the lower part was originally part of "a designed landscape" setting for Glenfinart House [Production No 7/2, page 23]. There are indications that the lower part was originally planted with non-native tree species as an arboretum: but again this is not material.

[13] The Depute County Clerk's letter states: "Licence No. 113 in terms of the Caravan Sites and Control of Development Act, 1960 duly signed is also enclosed." The caravan site licence issued by the then licensing authority, also the County Council, is produced [Production No 6/2]. The licence describes the site by reference to its boundaries and its area of 8.75 acres. The licence provided inter alia:

"(1) The site shall be used solely for the stationing, for the purpose of human habitation, of caravans.

(2) Not more than 30 static holiday caravans and 30 touring caravans shall be stationed on the site at any one time, and the caravans shall be used only during the period 1^st March to 31^st October in any year, for the purpose of human habitation.

[...]

(6) a. The carriageway within the site as shown on the lay-out plan submitted with the application for site licence, shall be not less than 9 feet wide with passing places as necessary and shall be constructed of coarse bottoming blinded with gravel packed hard, or of concrete or other suitable road surfacing material."

The layout plan shows part of the carriageway serving the site extending from the raised part down the embankment to the lower part. On the plan the outline of the carriageway is merely sketched on top of the embankment feature. The carriageway terminates at the foot of the embankment.

[14] The appellant has produced copy site licences dated 1972, 1981, 1984, 1997 and 2000. The current site licence is the one issued by Argyll and Bute Council on 18 May 2000 [Production No 6/6]. This is the first licence issued to the appellant. Until 18 May 2000 the number of caravans continued to be limited to 30 static holiday caravans and 30 touring caravans.

[15] The limit in the current licence is 64 holiday caravans, with no differentiation between static and touring caravans. The condition relating to the carriageway is in terms similar to the original condition but omitting reference to the lay-out plan. The drainage condition is in the following terms:

"9. There shall be provided a suitable and adequate drainage system to deal with all soil and waste water from the site constructed to comply with current building regulations and arrangements for the treatment and disposal of the sewage shall be to the satisfaction of the local authority."

Recent planning history
[16] The site of the caravan park is within the boundaries of the Loch Lomond and The Trossachs National Park Authority. The National Park Authority [NPA] now exercises the relevant functions of the planning authority for the area of the National Park by virtue of the provisions of the National Parks (Scotland) Act 2000 ss. 6(1), 7(1), (2) and (4), 9(2)(d), 10(1) and the Loch Lomond and The Trossachs National Park Designation, Transitional and Consequential Provisions (Scotland) Order 2002 (No. 201) as modified paras 3 and 7.

[17] Counsel for the appellant directed me to the Opinion of Lady Dorrian in Cartledge v Scottish Ministers [2010] CSOH 46, 1 April 2010. From her Ladyship's Opinion it appears that in 2007 the appellant applied to the licensing authority, Argyll and Bute Council, for a new site licence for an increased number of caravans on the site. (I deduce that this was the application referred to in the documentation in the instant appeal for a 105-caravan site licence: see Production No 7/2, page 23, "Site Issues".) According to counsel for the appellant, the appellant was told that the existing planning permission restricted the number of caravans on the site to 64 and that there was no planning permission to develop in the area of location 4 marked on the 1972 plan.

[18] The appellant then applied to the NPA for a Certificate of Lawful Use in terms of the Town and Country Planning (Scotland) Act 1997 s. 150. The certificate issued on 19 November 2008 limited the use of the site to "the siting of 64 caravan units in the position of the pitches...shown on the proposed layout plan approved by Argyll County Council on 4 October 1972. Also the siting of a residential caravan... approved...on 16 March 1988".

[19] The appellant appealed to the Scottish Ministers. By decision dated 18 May 2009 the Scottish Government Reporter appointed to determine the matter, Alan M G Walker, dismissed the appeal. The Reporter stated: "...I am unable to accept on the balance of probabilities that the planning permission granted on 4 October 1972 allows the siting of caravans or for any form of operational development on [location] 4." The appellant appealed to the Court of Session under the Town and Country Planning (Scotland) Act 1997 s. 239.

[20] Lady Dorrian allowed the appeal and quashed the decision of the Reporter. In her Opinion Lady Dorrian stated at § 14:

"It is essentially my opinion that the precise number of vans on the site is in this case to be governed by the site licence and not by the planning permission. The planning permit relates to the whole site as shown on the plan. It is permission for the formation of a caravan park and what appears on the plan as a "proposed layout" is no more than that; it should not be read as being prescriptive of the formation of the caravan park. In particular, it is not, as the reporter found it to be, the only and "approved" layout. The plan clearly shows that it was anticipated that development of the site would be in three phases and would eventually include [location] four as well as [locations] one to three. I do not find that I can read the planning permit, with the plan, as indicating that the consent is for a number of vans restricted only to the number and location as shown in the proposed layout."

[21] Counsel told me that the respondents have marked a reclaiming motion.

[22] I gather from the documentation in the present appeal that complaints have been made by the public and by Ardentinny Community Council about a number of matters, starting with a complaint about the removal of trees and including a complaint about rising caravan numbers. As a result of the complaint about tree removal, an Area Tree Preservation Order was made in 2002. At the last reported count, October 2008, additional stances and services had been provided and there were already 85 caravans on the site [Production No 7/2 pages 23-25].

Enforcement Notice, 1 October 2009, and appeal to the Scottish Ministers
[23] On 1 October 2009 the NPA issued an enforcement notice to the appellant in respect of Glenfinart Caravan Park alleging a breach of planning control namely: "Without planning permission, the carrying out of engineering/infilling operations." A stop notice was issued on the same day.

[24] The "Reasons for Issuing this Notice" were:

"It appears to the Authority that all of the above have occurred within the past four years and they have had a significant adverse impact on the landscape character, visual appearance and special qualities of the area and have harmed the health of trees covered by Tree Preservation Order No 6/02, 2002. The unauthorised activity is contrary to the following development plan provisions and material considerations..."

There then followed a list of six provisions and considerations. The appellant was required to "cease unauthorised engineering/infilling activity" immediately.

[25] On 30 October 2009 the appellant appealed to the Scottish Ministers under the Town and Country Planning (Scotland) Act 1997 s. 130 using pro forma Form ENA [Production No 7/1, pages 1-4]. The appeal was on two grounds, first, statutory ground (b), that "the matters stated in the notice have not occurred" and, second, statutory ground (c), that "the matters stated in the notice (if they have occurred) do not constitute a breach of planning control" [Production No 7/1, page 2]. The form was completed and the appeal was submitted by an architect, Mr Robin Hopkins, on the appellant's behalf.

[26] The statement annexed to the appellant's Form ENA, Production No 7/1, page 5, stated that the alleged areas of operations were three in number, viz Area One, pipe repairs in the north-west corner of the site; Area Two, pipe repairs at the east extremity of the site; Area Three, re-alignment of the embankment across the park. (These areas were designated for the purposes of the appeal statement and are not to be confused with the numbered locations referred to in the approved site layout plan of 1972.)

[27] As regards the first ground, statutory ground (b), the appeal statement continued to the effect that the works were not of an engineering nature: the excavations had been made in Area One and Area Two to locate and repair land drains or surface water drains; and at Area Three there had been "Minor adjustment... to the embankment by levelling off and a nominal extension to the top area". It became apparent during the debate that this meant an extension of the raised part of the site towards the north east so that the embankment encroached into what had been the lower part of the site, whether to a nominal extent or otherwise being in issue.

[28] As regards the second ground, statutory ground (c), the appeal statement contended that, having regard to the then current Caravan Site Licence dated 19 May 2000, which required that there should be a "suitable and adequate drainage system", the drainage repair works were permitted development in terms of the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 as amended ["GPDO"], Schedule 1, Part 5, Class 17 and in addition Part 6, Class 20. It was also contended that consent was included in the original 1972 planning permission for "the formation of a caravan park". "Formation", it was contended, "includes appropriate works to achieve proper drainage".

[29] The statement of appeal was supported by six photographs, two of each Area. The NPA lodged a substantial response supported by plans and 83 photographs. The appellant lodged a one page "Preliminary Response to the Statement of Response" produced in this process as Production No 7/3. The Scottish Ministers appointed a Reporter, Michael J P Cunliffe, to determine the appeal. The Reporter visited the site on 11 January 2010 and issued his decision on 18 January 2010.

Decision of the Reporter dated 18 January 2010
[30] The Reporter dismissed the appellant's appeal against the enforcement notice. The Reporter found that at some time or times in the period 2001 to 2007, as demonstrated by aerial photography, the raised part of the site had been substantially extended; and that the edge of the embankment had moved fourteen metres (45 feet) to the north-east. The evidence produced by the NPA showed that extension of the embankment probably started in 2005, was well under way in 2006 and carried on till 2009 when the NPA intervened.

[31] The Reporter's own site inspection confirmed that extensive earth moving had occurred, some "within the past year or so", particularly in the area of the embankment ["Area Three"]; and that in the area of the embankment there was evidence of the recent deposition of substantial amounts of material where vegetation had not yet been established. The Reporter rejected the appellant's contention that there had been only "minor adjustment" to the embankment and a "nominal extension" of the raised part of the site. The Reporter was in no doubt that the scale and nature of the work to the embankment merited the description "engineering operations".

[32] The NPA maintained that the purpose, if not the primary purpose, of the excavations in Areas One and Two was the extraction of soil to extend the raised part of the site. The NPA also inferred that there had been importation of soil from outwith the site. The appellant did not dispute that there had been excavations in Area One and Area Two. The Reporter found that the extent of earth moving in Areas One and Two exceeded what might be expected for drainage repairs. On balance he considered that the work in Areas One and Two amounted to "engineering operations".

[33] As regards whether or not drainage repair work was permitted development, the Reporter assumed - the appellant did not provide a copy of the licence - that the terms of the then current site licence as read with Class 17 of the GPDO permitted operations in connection with the soil and waste water drainage system. The Reporter held that Class 20 of the GPDO did permit operations in connection with land drainage and that the permission was not restricted to agricultural land or work for agricultural purposes. However, having found that the works in Areas One and Two went beyond what was necessary to repair drains, he concluded:

"The additional works in [Areas One and Two] and all the work in [Area Three] constitute development which is not permitted by the GPDO. It requires a specific grant of planning permission. I do not consider that such work is authorised by the original planning permission for the site granted in 1972."

[34] The Reporter took the view that the enforcement notice properly applied to the whole site.

[35] During the hearing counsel for the appellant told me that the works at the embankment, Area Three, had created additional space for the stationing of residential caravans, by extending the raised part of the site by 45 feet. The space can accommodate residential caravans end-on to the edge of the embankment. This is illustrated by the appellant's photograph produced in this process at Production No 7/1, page 13.

Appeal to the Court of Session, Ground 1(a), etcetera
[36] In the appeal to the Court of Session, the appellant's Ground of Appeal 1(a) is particularised with reference to statutory ground (b), namely that "the matters stated in the notice to involve a breach of planning control have not occurred". It is said that "Engineering/infilling operations, as stated in the enforcement notice, did not take place on the subjects".

[37] Planning permission is required for "development". The Town and Country Planning (Scotland) Act 1947 s 10, now repealed, provided that "development" meant "the carrying out of building, engineering, mining or other operations in, on, over or under land..." Similar provision is made by the Town and Country Planning (Scotland) Act 1997 s. 26 currently in force. The legislation does not define "engineering operations".

[38] I am satisfied that the Reporter was entitled to find that certain works admittedly carried out on the appellant's land were "engineering operations", that his finding does not disclose an error of law and that the Reporter's decision was within his powers. [Decision, paragraph 4]. Whether or not the works were "engineering operations" was largely if not exclusively a matter of fact and degree for the Reporter to determine; and he was well qualified to make the determination having, I was told by counsel for the respondents, a background in civil engineering [cf. Coleshill & District Investment Co Ltd v Minister of Housing and Local Government and Anr [1969] 1 WLR 746 at 761C-D per Lord Upjohn].

[39] In connection with the question of whether or not the works were "engineering operations" I note that the NPA took the view that the services of a structural engineer would be required in connection with the remedial works which were intended to be the subject of a second enforcement notice. This evidence was available to the Reporter [Production No 7/2, page 24, "Enforcement Notices and Stop Notice"].

[40] Ground of Appeal 1 (a) and, in relation to the claimed drainage repairs, Ground of Appeal 2 (b) and the appellant's supporting Note of Argument, paragraphs 2 and 3, assert that the Reporter reached a decision which, on the evidence before him, he could not reasonably have reached. This was repeated by counsel for the appellant in oral submissions without significant elaboration.

[41] If this were intended to convey that the Reporter's decision was wholly unreasonable or perverse, I reject the submission. I accept the contrary submission for the respondents that the conclusion reached by the Reporter was one that was reasonably open to him on the evidence. Counsel went further and submitted that the evidence of engineering/infilling operations was overwhelming. That may well be the case.

[42] Ground of Appeal 1(a) in the Appeal to the Court of Session and the supporting Note of Argument, paragraph 2, might be read as contending that the Reporter had no evidence to support his conclusion that the works, including the works at the embankment, constituted "engineering operations". In oral submissions counsel for the appellant stated that the Reporter "had no evidence" that the works - all the works - were unauthorised [cf. Ground of Appeal 5 (e)].

[43] I acknowledge that this Court would be entitled to interfere if the Reporter truly had no evidence for his findings in fact [cf. Nelson v Allan Brothers & Co (UK) Ltd 1913 SC 1003]. But it is not the case that the Reporter had no evidence: he had ample evidence, as counsel for the respondents submitted under reference to the appellant's Form ENA, annexed statement and "Preliminary Response", the respondents' productions, Production No 7/1 pages 11-13 (copies of the appellant's photographs lodged with the Reporter), Production No 7/2, pages 20-21, paragraphs 2, 3.1 and 3.2, pages 23-25 and Appendices 4A-8 (copies of material lodged with the Reporter by the NPA) and the Reporter's record of his own site inspection.

[44] Counsel for the respondents noted that the Reporter's conclusions were not actually said to be perverse: insofar as the findings were evidence-based matters of opinion within the Reporter's field of expertise, the Court should defer to them as it would defer to the conclusion of a specialist tribunal [cf. Irving v Minister of Pensions 1945 SC 21 at 27, 30 per the Lord Justice-Clerk with whom the other judges concurred]. I accept this submission.

[45] Counsel for the respondents referred to Coleshill & District Investment Co Ltd [supra], an enforcement notice case that involved a question as to whether the removal of nine foot high earthen embankments was "a little job of shifting a few cubic yards of soil with a digger and a lorry" or constituted an "engineering operation". The Minister's decision was that the works constituted an engineering operation constituting development.

[46] The House of Lords held that the inference drawn by the Minister from the primary facts, with the benefit of advice from staff with expert knowledge, was one that was open to him and did not disclose any error of law. I have reached a similar conclusion in the instant case subject to the qualification that the inference was drawn in this case by a delegated decision-maker who himself had expert knowledge.

[47] Counsel for the appellant did not quarrel with the Reporter's summary of the appellant's representation of the situation on the site [Decision, paragraph 2]:

"It is not disputed by the appellant that earth-moving operations have occurred on three parts of the site. In the north-west corner [Area One] and the east extremity of the site in the lower area [Area Two], these are stated to have been excavations to locate and repair damaged land drains. [Area Three] comprises the embankment... The appellant states that minor adjustment has been made to the embankment by levelling-off and a nominal extension to the raised area..."

[48] The Reporter's primary finding that the embankment had been extended by 14 metres (45 feet) was well-evidenced and, indeed, accepted and founded on by counsel for the appellant. In relation to the claimed drainage works in Areas One and Two the Reporter had the evidence presented by the NPA [Production No 7/2, pages 19-21, especially paragraphs 2 and 3.1 and the appended photographs referred to].

[49] Important elements of the evidence (even if the Reporter found that the absence of certain signs was not conclusive) were that (1) NPA representatives visited the site several times and did not see any sign of drains, drainage work or drainage supplies; (2) the works were not confined to anything resembling a trench or trenches; (3) the soil extracted in Area One was not put aside for reinstatement but was transferred elsewhere; (4) in Area Two there was no clear pattern of activity, some holes were filled with the down-takings of a large mature tree and not reinstated with the soil (meaning, as I understand it, not reinstated with the soil removed from the excavations) and soil was extracted from the banking at the east end of the site; (5) earth-moving equipment was present at the site; (6) the work on the site resulted in a substantial extension of the raised part of the site by the addition of soil to the embankment. The Reporter also had the evidence of his own site inspection.

[50] The NPA accepted that it was possible that some drainage work had been carried out in Area One but formed the view that the operations went beyond what could reasonably be described as routine drainage repair work. The NPA considered that it was not feasible that the activity in Area Two could relate to the repair of land drainage. The Reporter, rather more charitably, found:

"...that on the balance of probabilities the extent of earth-moving in [Areas One and Two] has exceeded what might reasonably be expected of drainage repairs alone, even allowing for some exploratory digging to locate the drains. While there is scope for debate as to whether the work in [Areas One and Two] amounts to engineering operations (on balance I consider that it does), I am in no doubt that the scale and nature of the work to the embankment [Area Three] merit this description."

[51] For the reasons given above I take the view that these conclusions are not open to challenge on the arguments advance by the appellant.

Appeal to the Court of Session, Ground 2(b), lack of "factual analysis"
[52] Ground of Appeal 2 (b) is critical of the alleged lack of "factual analysis" by the Reporter including the Reporter's failure to specify the extent of damage to the land drains which required to be repaired, the repairs that were undertaken and what works to repair the drainage the Reporter would have held to be necessary. Counsel also criticised the Reporter's failure to give details of his site inspection and what he had observed on site. In oral submissions counsel for the appellant quoted the Grounds of Appeal, page 3, lines nine to eighteen, to the foregoing effect.

[53] In response counsel for the respondents submitted that the onus was on the appellant to make out the grounds of his appeal [Nelsovil Ltd v Minister of Housing and Local Government [1962] 1 All ER 423 at 426I-427G per Widgery J with whom the other judges agreed]. It was for the appellant to establish the extent of damage to the land drains which required to be repaired and the repairs that had been undertaken.

[54] Counsel referred to the appellant's Form ENA. At page 2, the form prompts appellants to set out all matters they wish to raise and to be taken into account and to provide all materials that they intended to rely on. At page 3, the form offers appellants procedural options for their appeals. The form states: "This is your opportunity to indicate what procedure you think is most appropriate for the handling of your appeal." The appellant had chosen "Inspection of the land subject of the appeal".

[55] Counsel drew my attention to the Town and Country Planning (Appeals) (Scotland) Regulations 2008, regulation 3, and to Scottish Government Circular 6/2009: Planning Appeals, paragraphs 1, 2, 9, 10 and 11. He submitted that it was for the appellant to state his case in full at the outset and to bring forward the evidence on which he intended to rely. If the appellant had evidence of drainage repairs he had not taken the opportunity to offer it. Counsel referred to the Outline Submissions for the Respondents, paragraph 10, which listed the sorts of evidence that might have been expected had drainage repair works been carried out.

[56] I accept the submission for the respondents. The appellant's proposition that the works in Areas One and Two were to repair land drains does not rise above the level of assertion. In the absence of contrary evidence from the appellant the Reporter was entitled in my view to make the inference he did, namely that the work in Areas One and Two exceeded what might reasonably be expected for drainage repairs alone.

Appeal to the Court of Session, Ground 2(b), GPDO Classes 17 and 20
[57] In the appeal to the Court of Session, the appellant's Ground of Appeal 2(b) focuses, in relation to the claimed drainage repairs, on statutory ground (c), namely that "the matters stated in the notice (if they occurred) do not constitute a breach of planning control". See also the appellant's Note of Argument, paragraph 3. It is contended that works in connection with the provision of suitable and adequate rainwater drainage and, separately, in connection with the improvement or maintenance of land drainage are permitted development in terms of the GPDO, Schedule 1, Class 17 and Class 20 respectively.

[58] Counsel for the appellant submitted that all works required by the conditions of the site licence are permitted development in terms of the GDPO, Schedule 1, Part 5 "Caravan Sites", Class 17. This is correct.

[59] In this connection, counsel referred to the Caravan Sites and Control of Development Act 1960 as amended s. 1, s. 3(1), (3), (4), s. 5(1) and (6); and to the current site licence dated 18 May 2000 which, by condition 9, provides: "There shall be provided a suitable and adequate drainage system to deal with all soil and waste water from the site..." Counsel submitted that the term "soil water" was "not necessarily" confined to sewage, the implication being that the condition encompassed rainwater and surface water drainage or land drainage as well. [See also Ground of Appeal 2 (b); Note of Argument, paragraph 3.]

[60] I disagree. It follows that, in my view, the GPDO, Schedule 1, Part 5 "Caravan Sites", Class 17, read together with condition 9 of the site licence, cannot be relied on by the appellant as authorisation for the claimed land drainage repairs.

[61] Counsel next referred to what were said to be the current Model Standard conditions contained in Scottish Development Department Circular 17/1990, "Caravan Sites and Control of Development Act 1960 - Model Standards", Appendix A, Standards for Residential Caravans Sites, conditions 14 and 17 "Drainage, Sanitation and Washing Facilities" [Production No 6/7]. Model condition 14 refers to the provision of a drainage system for the disposal of inter alia "rain and surface water" from the site. Model condition 17 provides: "There should be adequate surface water drainage for roads, footways and paved areas, and for the site generally."

[62] The Model Standard conditions referred to do not in my opinion assist the appellant's case. Appendix A relates to "Residential Caravan Sites" whereas the Ardentinny Caravan Park was and is licensed as a "Holiday Caravan Site" to which Appendix B relates. However, conditions 14 and 17, Appendix A, are also found as conditions 15 and 21 in Appendix B.

[63] The licensing authority did not apply these model conditions to the site licence in force; and no argument was advanced to the effect that these conditions are somehow to be implied into the licence so as to engage the GDPO, Class 17. I can find no reason to interpret the actual condition 9 so as to confer on it the scope of the Model Standard Appendix B conditions 15 and 21.

[64] Counsel further submitted that the claimed drainage repair works were permitted in terms of the GPDO, Schedule 1, Part 6 "Agricultural Buildings and Operations", Class 20, "The carrying out of any works required in connection with the improvement or maintenance of watercourses or land drainage works". It was accepted by the Reporter that the heading did not control the meaning so as to restrict the permission to agricultural land or agricultural purposes. The respondents do not contest this interpretation.

[65] It follows that if or to the extent that the works on the appellant's site were "required in connection with the improvement or maintenance of... land drainage works" they were permitted development. The difficulty for the appellant is that the Reporter found, and in my view was entitled to find, that the earth-moving in Areas One and Two was not "required" for that purpose in the sense that it "exceeded what might reasonably be expected" for that purpose.

[66] The appellant's Ground of Appeal 2(b) also contains an apparently free-standing proposition: "The planning consent granted on 4 October 1972 permitted the formation of a caravan park extending to 8.75 acres in accordance with the plan annexed." This proposition is repeated in the Note of Argument, paragraph 3. The significance was not explained in oral submissions.

[67] In context I take the proposition to signify that the caravan site to which the site licence - and therefore the condition relating to drainage - applies extends to and includes the whole of the lower part. Accordingly, drainage works, if permitted in terms of the GPDO Class 17, would be permitted in Area Two as well as in Area One. The works, however, are not permitted in terms of Class 17.

Appeal to the Court of Session, Ground 3(c), the 1972 planning permission
[68] Ground of Appeal 3(c) and the supporting Note of Argument, paragraph 4, advance another argument in relation to statutory ground (c). The argument is that "such works as were carried out", meaning the works in Area Three as well as in Area One and in Area Two, were authorised by the original planning permission of 4 October 1972; and that the Reporter was in error to hold to the contrary.

[69] The appellant's statement of appeal to the Scottish Ministers did make a similar point about the scope of the original 1972 planning permission for the site: but the point was confined to the claimed works in Areas One and Two "to locate and repair" damaged or broken drains.

[70] The Reporter seems to have gone beyond his remit by entering into the question whether the work in Area Three as well, the embankment, was authorised by the 1972 planning permission. He concluded that it was not. The appellant then challenged that conclusion in his Grounds of Appeal; and the respondents have now joined issue on the merits of the argument [Outline Submissions for the Respondent, paragraphs 26-27]. That being so, it may well be that the main point in this Appeal has become the interpretation of the planning permission of 1972, above all in relation to Area Three, the embankment.

[71] The submission of counsel for the appellant was that even if the excavations and extension to the embankment were "engineering operations", they were permitted operations: the operations were permitted because they related to "the formation of a caravan park" in terms of the 1972 permission; the "proposed site layout" shown in the 1972 plan was "not set in stone"; and the extension of the embankment allowed stances for caravans to be created i.e. the extension was related to the formation of a caravan park.

[72] Counsel for the appellant also submitted that the effect of the works at the embankment was to extend the raised part of the site at location 3, as shown on the 1972 plan, into the lower part at location 4. The suggestion seemed to be that the 1972 grant permitted the siting of caravans at location 4 without specifying any particular layout; and that the siting of caravans on the extension was in accordance with the permission.

[73] In this context too, I accept the submission for the respondents that the onus is on the appellant [Nelsovil Ltd, supra]. This puts the appellant's submission in difficulty: the 1972 permission is expressed to be granted "in accordance with", among other things, "the information given in the application form"; and the application form has not been produced.

[74] Counsel for the appellant told me that the form was "not available". In the absence of the information given in the form, I consider myself not equipped to reach a view as to the scope of the 1972 permission. Accordingly I conclude that I cannot sustain this ground of appeal.

[75] In any event I reject the appellant's interpretation of the bits of the 1972 permission that have been produced. It is not contested that the development of land as a caravan site requires planning permission. The number and location of caravans on a site is likely to involve a variety of planning considerations as distinct from site licensing issues.

[76] Accordingly I am unable to accept that the permission in this case for "formation of caravan park... in accordance with" the approved "proposed site layout" plan, showing 64 stances on the raised part of the site, authorises, or does not preclude, the stationing of an unspecified number of caravans all over the site. Approval for the formation of a certain number of stances, or "hard standings" to use the language of the site licence, represents in my view an effective control on the number and location of caravans.

[77] I do not regard the fact that the application plan was entitled "proposed site layout" confers flexibility on the 1972 permission. What was proposed, and nothing else, was approved, as the docquet on the plan and the terms of the grant clearly show. In my opinion and contrary to what counsel for the appellant submitted, the approval of the proposal did have the effect of causing the proposal to be "set in stone".

[78] My reading of the words "formation of a caravan park" is that they refer to the intended use of the site for the stationing of caravans and to operational development by way of the construction for that use of access ways and caravan stances with installation of ancillary services. Indications that the word "formation" should be understood in this limited sense are to be found in the legislation in terms of which the planning permission was granted and in the Depute County Clerk's covering letter.

[79] The Town and Country Planning (Scotland) Act 1947 s 113, in force at the time, provided: "'engineering operations' includes the formation or laying out of means of access to highways" [emphasis added]. The letter refers to access being "formed" and "the formation of the access".

[80] I find no reason to think that the "development" at location 4, the lower part of the site, apparently proposed to take place in 1974, involved the siting of caravans as opposed to, say, the provision of an amenity area (within what may have been "a designed landscape"); or that, if the proposed development did involve the siting of caravans, the 1972 permission was intended to give the developer carte blanche as to the number and location of caravans in that part of the site without the need to seek further permission. (I suspect that the missing application form would have clarified the developer's intentions for location 4.)

[81] If actings since the date of the grant are a guide, the appellant's position is not advanced: on the documentation presented to me, for about thirty years until the appellant became the owner, there was no attempt to "form" a caravan park on the site other than in accordance with the layout details shown on the approved plan of 1972.

[82] Lady Dorrian's Opinion refers to an application for planning permission by a previous owner in 1987. As I understand it, the application was for the siting of additional caravans to serve as (1) residential accommodation for staff, (2) a reception point for the site, (3) a midge laboratory. It may be that two caravans were supposed to be for use as a reception point. Permission was granted in 1988 subject to conditions preventing the use of the additional caravans for other than the specified purposes.

[83] Had I been asked to consider this material, I suspect I should have taken the view that it tended to confirm the restricted scope of the 1972 permission: the permitted "formation of caravan park" did not extend to development consisting of the creation of a reception point or the provision of staff accommodation.

[84] Nor, going back to the 1972 permission itself, did the generality, "formation of caravan park", unconditionally permit development consisting of the construction of access to the highway, or the provision of an office, laundry and toilet accommodation. These things were the subject of specific provision in the grant.

[85] (The point about the "toilet block" as shown on the plan and referred to in the site licence, clause 8, could be important if the available ablutions accommodation effectively limited and limits the number of caravans, subject to a further planning permission for additional provision - but I was not addressed on this matter and have not relied on it.)

[86] It follows that I am unable to interpret the 1972 permission, so far as produced, as authorising all and any development connected with the "formation", in the widest sense, of a caravan park on the site. In particular I am unable to interpret the 1972 permission as authorising development consisting of "engineering operations" directed to extending the raised part by 45 feet for the accommodation of additional residential caravans.

[87] I should be prepared to accept that the original planning permission authorised works for the provision of rainwater and surface water drainage. The difficulty for the appellant is, again, that the Reporter found, and in my view was entitled to find, that the earth-moving in Areas One and Two was not "required" for that purpose [supra].

Appeal to the Court of Session, Ground 4(d), terms of the Enforcement Notice
[88] The enforcement notice specified "the Land Affected" as "Land at Glenfinart Caravan Park, Ardentinny, shown edged red on the attached plan." The plan showed the whole 8.75 acre site edged red.

[89] In the appeal statement annexed to Form ENA the appellant contended that the enforcement notice should be restricted to "the alleged areas of operations" namely Area One "in the north-west corner of the site", Area Two "at the east extremity of the site" and Area Three "the embankment across the site". This contention was clearly headed as part of the appeal on statutory ground (b), namely that "the matters stated in the notice to involve a breach of planning control have not occurred." On that basis the point seems to have been that the alleged breach of planning control had not occurred over the whole site.

[90] The appellant's Preliminary Response document [Production No 7/3] makes the point as follows:

"The enforcement notice relates to alleged unauthorised engineering works; thus it is considered that only those areas (supposedly) affected by the engineering works should be the subject of the notice, and not the whole site."

[91] In the Appeal to the Court of Session, Ground of Appeal 4(d) and supporting Note of Argument, paragraph 5, criticise the Reporter for holding that the enforcement notice should apply to the whole site "when he clearly identified three specific areas in his Decision". It is said that the Reporter failed to observe the requirement that the enforcement notice should be accurate as to its terminology and extent.

[92] It became clear in oral submissions that counsel for the appellant laboured under the mistaken impression that it was the Reporter who had identified "three specific areas". In fact it was the appellant who had introduced the terminology in the appeal statement annexed to form ENA. The NPA had adopted the appellant's wording "to avoid confusion" but contended that soil had also been extracted from a smaller area in the south east part of the site [Production No 7/2, pages 19-20].

[93] The NPA explained that the enforcement notice covered the whole site because the areas of activity were not distinct or separate from the rest of the site and because the activity in the three main areas was interconnected [Production No 7/2, page 20, "The Site"]. (They might have added, if I understand the situation on the ground correctly, that the works involved the whole site in the sense that the main areas of operations were at both ends and more or less in the middle.)

[94] In his Decision, the Reporter noted that parties had not submitted a plan which clearly delineated the three claimed areas of operations and considered, from his inspection, that the boundaries were not sufficiently precise to enable him to delineate the areas.

[95] The Reporter noted that the enforcement notice applied only to engineering/infilling operations carried out without planning permission. The appellant was not prevented from undertaking works for the maintenance of land drainage. The Reporter upheld the enforcement notice as it stood.

[96] In my opinion the Reporter's determination of this issue, as originally defined and presented to him, cannot be faulted. As counsel for the respondents submitted, the question of the proper planning unit for the purposes of an enforcement notice is a matter of fact and degree in all the circumstances of the case. This was the ratio of Gregory and Others v Secretary of State for the Environment and Another (1990) 60 P&CR 413, a decision of the Court of Appeal.

[97] The authorities cited in Gregory suggest that in most enforcement cases the planning unit will be "the land to which the notice relates". The planning unit in the instant case is the Ardentinny Caravan Park. I appreciate that the Gregory-type cases are about alleged unauthorised use. Nonetheless it seems to me both expedient and entirely logical that the enforcement notice should apply to the planning unit as a whole in this case: the issues between parties are about what operational development is authorised by permissions that apply to the whole unit, namely the 1972 permission and the 1992 General Permitted Development Order, Class 17 in particular.

[98] In addition regulation 3(b) of the Town and Country Planning (Enforcement of Control)(No. 2)(Scotland) Regulations 1992 requires that an enforcement notice should specify "the precise boundaries of the land to which the notice relates whether by reference to a plan or otherwise". Hence the Reporter's mention of the absence of any plan of the claimed areas of operations and the difficulty in specifying the precise boundaries of those areas.

[99] In oral submissions counsel for the appellant presented a somewhat different argument. He submitted, essentially, that the enforcement notice was defective for inaccuracy or, perhaps, uncertainty. Under reference to Scottish Government Planning Circular 10/2009, Annex G, paragraphs 34-37, counsel reminded me that if the appellant were considered to be in breach of the enforcement notice he might be subject to a fixed penalty or to prosecution. Were the appellant to be prosecuted and found guilty he would be liable, on summary conviction, to a fine of up to £20,000 and, on conviction on indictment, to an unlimited fine.

[100] Counsel submitted that that it was very difficult for the appellant to know what operations he could carry out on the site while the notice was in force. The notice required him to cease operations. The result of ceasing operations was that incomplete work was left unremedied. The enforcement notice would place the appellant at risk of prosecution if he were to carry out drainage repairs anywhere on the site.

[101] In response counsel for the respondents submitted that the Court should not give consideration to the new argument. I agree. It seems to me that the appellant's now claimed concern, that the enforcement notice is not sufficiently "accurate as to its terminology and to its extent", ought to have been focused in his Form ENA by reference to statutory ground of appeal 130(1)(f), namely "that... the activities required by the notice to cease, exceed what is necessary to remedy any breach of planning control..."

[102] In that context, the onus would have been on the appellant to specify "the precise boundaries" of the "affected" parts of the site that he contended for and to state what more precisely defined activities might have met the breach complaint made against him by the NPA. Had the appellant raised the point he now makes, it would have been open to the Reporter, if so advised, to vary the enforcement notice in terms of the 1997 Act s. 132(2). Leaving aside other considerations, there must be an issue given the terms of the 1997 Act s. 134 as to whether the Court has power to entertain the question for the first time in an appeal in terms of the 1997 Act s. 239.

[103] If the terms of the notice are truly perceived to compromise the ability of the appellant to carry out necessary and otherwise permitted works on the site, he can be expected to put the situation right by applying to the NPA for a relaxation in terms of the 1997 Act s 129(1)(b).

Appeal to the Court of Session, Ground 5 (e)
[104] Ground of Appeal 5(e) and the supporting Note of Argument, paragraph 6, contend that: "There was no evidence before the Reporter to allow him to reasonably conclude that the works carried out to repair drainage on the site were not permitted development under the terms of the planning permission granted on 4 October 1972 and the said [General Permitted Development] Order of 1992." This ground was not the subject of a separate oral submission. I believe that I have dealt with the propositions that it encapsulates adequately above. I reject those propositions.

Decision
[105] My decision is that none of the Grounds of Appeal in the Appeal to the Court of Session succeeds and I shall therefore refuse the appeal. If the appeal had succeeded according to its terms, as stated in the Grounds of Appeal, the effect would have been to quash the Reporter's Decision and to leave the enforcement notice standing. In that situation my understanding is that the s. 130 appeal would have to be re-determined [Bennett v Gordon & Ors [2008] CSIH 21 (04 March 2008), § 24].