The Legislation
Section 124(1) of the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") provides:
Where there has been a breach of planning control consisting in the carrying out without planning permission of building, engineering, mining or other operations in, on, over or under land, no enforcement action may be taken after the end of the period of 4 years beginning with the date on which the operations were substantially completed.
The term "substantially completed" is not defined and the Scottish Government Planning Circular 10/2009 advises "what is substantially completed must always be a matter of fact and degree and of the prevailing circumstances in any case".
The Facts
Mr Nisbet ("the Landowner") owned land at Bughtknowe Farm in East Lothian. The Landowner had, without obtaining the necessary planning permission, constructed a Motocross racetrack on the land. On 14 October 2022, East Lothian Council ("the Council") served an enforcement notice on the Landowner, requiring him to stop using the land as a racetrack and to remove the track and associated fencing, signage and other structures ("the Notice").
The Landowner appealed under Section 130 of the 1997 Act on the following grounds:
- In respect of the construction of the racetrack and associated works, the Council was not entitled to serve the Notice as construction of the racetrack had been substantially completed four years and one day prior to service of the Enforcement Notice (13 October 2018 - "the Relevant Date"); and
- In respect of the change of use, the Landowner did not intend to use the land as a racetrack for more than 28 days in a year and the land would revert to agricultural use between motocross events. As such, the use of the land as a racetrack was a permitted development under the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (Class 15, Schedule 1).
The Landowner submitted that the steps required by the Notice exceeded what was reasonable and necessary to remedy the breach of planning control.
The Reporter appointed by the Scottish Ministers agreed with the Landowner, holding that there had been no change of use and the Notice was served out of time. The Notice was quashed on 9 February 2023 ("the Reporter's Decision").
Mr Edwardson, a neighbour of the land at Bughtknowe Farm, appealed the Reporter's Decision to the Inner House under Section 239 of the 1997 Act.
Mr Edwardson argued that:
- The racetrack had not been substantially completed by the Relevant Date (as averred by the Landowner) because key parts of the racetrack such as the fencing around the track and the access road to the track had still been under construction at that date. As such, the Notice had been served in time; and
- The Reporter had failed to consider evidence demonstrating that the land was not being reverted to agricultural use for significant periods of time, if at all. The racetrack could, therefore, not be a general permitted development.
The Decision
"Substantially completed?"
The Inner House held that the Reporter had erred by reversing the burden of proof. It was for the Landowner to satisfy the Reporter that the racetrack development had been substantially completed by the Relevant Date. It was not for the Council to show that it had exercised its enforcement powers in the required timescale. Flowing from this, the Court also held the Reporter had erred in simply taking the Landowner's word at face value in the absence of supporting evidence. Furthermore, the Reporter had failed to consider the evidence presented against the Landowner's assertion as to the date of completion. The Court noted that it was essential the Reporter made a finding as to the date on which the racetrack development had been completed and they had failed to do so.
The Court then considered whether the fencing and the access road required to have been complete before the racetrack development, as a whole, could be deemed "substantially completed". This was key as there had been evidence before the Reporter that fencing, and access road works were being undertaken after the Relevant Date. The Court applied the holistic approach as set out in Sage v Environment Secretary ([2003] 1 WLR 983) and drew attention to the larger purpose of the development, that being to build a racetrack suitable for public sporting motorised events. In order to be suitable for such events, the racetrack would be required to meet various safety requirements imposed by the MC Federation, one of those requirements being the construction of fences to separate the tracks from the spectator areas. Fulfilment of this safety requirement was "clearly essential" in the provision of a commercial racetrack. As such, the fences were an integral part of the racetrack, and the development could not be considered "substantially completed" without their construction.
Failure to take into account material considerations or failure to give proper reasons.
The Court held that the Reporter had failed to take account of material evidence on a number of matters. However, on the question of whether or not there had been a change of use specifically, the Court observed it was "difficult" to see how the Reporter had determined that the land remained in agricultural use in between use as a racetrack, so as to make the racetrack a general permitted development. The mere fact that sheep may occasionally graze on the grass surrounding the racetrack, or the fact that said grass was cut and used for feed did not "turn the racetrack into a field". In any event, the Reporter had failed to consider evidence by Mr Edwardson and a fellow neighbour that the ground surrounding the racetrack had not been used for grazing in a number of years.
Outcome
The appeal was allowed, the Reporter's decision was quashed, and the matter was remitted back to Scottish Ministers for the appointment of a different Reporter. The new Reporter will be required to make findings in fact as to what date the development was substantially completed and whether there has been a material change of use requiring planning permission.
Finally, the new Reporter will consider the Landowner's additional ground of appeal, that the measures identified in the Notice exceed what is necessary to remedy the breach of planning control (under Section 130(1)(f) of the 1997 Act). This ground was not considered by the Inner House.
Concluding Remarks
Edwardson v Scottish Ministers serves as a reminder to individuals looking to challenge planning enforcement action taken by a local authority. It reminds those individuals that the onus is on them, and they must be able to satisfy the decision-maker that the local authority has erred in exercise of its discretionary enforcement powers.
The case also reinforces the holistic approach to be taken when considering if a development is "substantially completed" for the purposes of Section 124 of the 1997 Act.
You can read the Court's opinion here and keep up to date with the case here.
This article was written by Trainee Solicitor, Dana Strain.
