Angus farmer in breach of planning control fails to challenge decision to uphold part of notice

Lord Carloway

About this case:

• Citation:
  [2022] CSIH 18
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Carloway

Martin Gibb challenged the decision of a reporter for the Scottish Ministers to partially uphold a notice served upon him by Angus Council in October 2020. He argued that the reporter had erred in certain procedural respects and failed to consider relevant evidence that he had provided.

The appeal was heard by the Lord President, Lord Carloway, sitting with Lord Malcolm and Lord Woolman. The appellant was represented by lay representative Carolann Curran and the respondents by N McLean, solicitor advocate.

Change of use

It was considered by Angus Council that the appellant had changed the use of his land west of Boath Burn, Muirdum, by using it to store and site storage containers and machinery. Additionally, it was considered that fences he had erected on the southern boundary of the site adjacent to a main road had been constructed without permission.

The appellant challenged the notice in an appeal to the respondents on the grounds that the land continued to be used for agricultural purposes, mostly the care of horses, and the containers and vehicles were required to store feed and maintain the land. Alternatively, he argued that the enforcement notice was time-barred as the containers, gates, and fencing had all been there for more than four years.

An unaccompanied site visit was conducted by the reporter in November 2020, who did not find any animals on the site and noted that the containers were empty and the machinery present related to the construction and forestry industries. Although he found that the council had required the appellant to take excessive steps to remedy the breach and thus partially allowed the appeal, he refused the appeal on all other grounds.

It was submitted for the appellant that the reporter had erred in not providing reasons for his unaccompanied site visit, as well as in failing to prefer photographs he had provided said to be of the containers and fencing on-site in 2015 and 2016 over the photographs produced by the council. Alternatively, the reporter’s investigation had been excessive and oppressive and thus breached the appellant’s rights under article 6 of the ECHR.

Ample opportunity

Lord Carloway, delivering the opinion of the court, began: “The appellant, having been given due notice of the alleged breach, was afforded an opportunity to provide evidence relating to, and to make submissions about, the use of the containers. He did so. There was no need for the reporter to provide reasons for his site visit. He was entitled to carry out an unaccompanied visit. The reason for the visit was obviously to assist in the determination of the appeal.”

He continued: “The reporter, in light of the photographic evidence, his site visit and other information, was entitled to reject the appellant’s contentions on the use of the containers. He did not require to pose further questions to the appellant, as if he were cross-examining him. The appeal on the ground of fairness is rejected.”

Addressing whether the reporter had erred in his consideration of the appellant’s evidence, he said: “The reporter did not base his decision on the land being used for grazing horses. He accepted that some of the plant and equipment was for agricultural use, including the storage of animal feed. His decision was based upon his conclusions on the use of the containers and other plant and equipment. The reporter did not identify any trailer as being specifically for logs. He did say that he considered that certain of the equipment was for use in forestry and construction. The appellant was given an ample opportunity to provide his explanation relative to the use of the equipment on site.”

Lord Carloway concluded: “The reporter considered the appellant’s photographs and other materials and, as he was entitled to do, rejected either their provenance or relevance or both. The appeal seeks to re-open matters concerning the merits of the case which are outwith the scope of an appeal to this court.”

The appeal was therefore refused.