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OUTER HOUSE, COURT OF SESSION
[2025] CSOH 35
P369/24
OPINION OF LORD RICHARDSON
in the Judicial Review by
(FIRST) DAVID MILLAR; (SECOND) SHELAGH MAIRI MILLAR;
(THIRD) GORDON LAWRENCE SINCLAIR TAYLOR; (FOURTH) RITA TAYLOR;
(FIFTH) MICHAEL JOHN ROBERT JONES; and (SIXTH) KATHLEEN MARGARET JONES
Petitioners
against
SOUTH AYRSHIRE COUNCIL
Respondent
Petitioners: O'Carroll; Morton Fraser MacRoberts LLP
Respondent: Byrne KC; Clyde & Co (Scotland) LLP
4 April 2025
Introduction
[1]
This case concerns a dispute about the development of the grounds of
Coodham House in Symington, South Ayrshire. Coodham House was built in 1831. It is a
category `A' listed building. It is set within parkland and overlooks Coodham Lake.
2
[2]
The petitioners are, together, the heritable proprietors of Coodham House. On
2 March 2004, the respondent granted planning permission for the development of the estate
and grounds of Coodham House under reference 02/00790/FUL (the "2004 permission").
[3]
By letter dated 9 February 2024 to a developer, Hallbar Homes, David Clark, a
Supervisory Planner employed by the respondent, advised that the 2004 planning
permission remained extant by virtue of works to Coodham House having commenced. The
letter stated:
"Having considered the planning history of the site and also discussed the matter
with the Council's Legal Services, it is considered that planning permission
02/00790/FUL remains extant by virtue of works to Coodham House having
commenced."
[4]
In the letter, Mr Clark also stated:
"While the principle of residential development within the estate remains contrary to
the provisions of the Development Plan, the extant planning permission
(02/00790/FUL) for the Coodham Estate is a significant material consideration that
outweighs some of the principles of the Development Plan in this instance and is
considered to establish the principle of residential development at this site."
[5]
The letter was headed "Pre-application enquiry for proposed residential
development" and the author expressly described the letter as being "pre-application
advice". The letter included an annex setting out various notes. Paragraph 2 of the annex
provided as follows:
"The comments and advice in this letter are made at officer level only and are strictly
without prejudice to the eventual decision of the Council as Planning Authority with
regard to any future applications (for this site)."
[6]
In the present proceedings, the petitioners contend, first, that the letter dated
9 February 2024 constituted a decision by the respondent and, second, that the decision was
unlawful for a number of reasons. For its part, the respondent submits, first, that the letter
3
dated 9 February 2024 is not a justiciable decision; and, second, that, in any event, the
petitioners' grounds of challenge are ill founded.
Background
[7]
By the end of the 20th century, Coodham House had fallen into disrepair. On 9 July
2002, planning permission under reference 02/00790/FUL was sought for the following
development:
"Change of use and extension to Coodham House to form 12 residential units,
erection of 41 houses within estate grounds, formation of access roads and road
layouts and associated works."
[8]
It is apparent from the respondent's report of handling of the application that it was
controversial and raised a number of complex issues. The report of handling recommended
refusal. However, on 2 March 2004, planning permission was granted by the respondent
subject to 26 conditions. The first condition was the following:
"(1)
that the development to which this permission relates must be begun within
five years from the date of this permission to comply with Section 58 of the Town
and Country Planning (Scotland) Act, 1997."
A number of the conditions imposed requirements which required to be fulfilled "prior to
the commencement of the development" (see conditions 8, 9, 11, 13, 15 and 18). The grant of
planning permission also included a number of conditions which were to be fulfilled
following the commencement of the development (see conditions 5 and 7). Condition 4
provided that no development, other than the refurbishment of Coodham House, was to
take place until a scheme relating to the A77, by which access was to be obtained to the site,
had been implemented to the satisfaction of the Planning Authority. The grant of planning
permission also expressly did not approve either the proposed additions to the east wing of
4
Coodham House or the design of two proposed lodge houses at the western entrance to the
estate.
[9]
On 29 July 2004, a planning application under reference 04/01015/FUL was made
seeking a change of use of Coodham House to form 9 residential units, the erection of 3 new
residential units and the realignment of the existing estate road. This application was
granted by the respondent on 15 April 2005 (the "2005 permission"). This grant was subject
to 14 conditions. None of the conditions in the 2005 permission required to be satisfied prior
to the commencement of the development. The 2005 permission also did not refer to or
include any equivalent to conditions 5 and 7 of the 2004 permission.
[10]
An application for building warrant was made in February 2005. Thereafter, during
the period 2005 to 2009, development works were carried out to Coodham House.
Following the completion of those works, the nine residential units which had been formed
were sold.
[11]
During 2009 and 2010, four separate planning applications were granted for the
development of residential housing within the estate grounds. These applications each
related to developments which were materially different from that which was the subject of
the 2004 permission. The four applications were each granted conditional planning
permission. However, no works were carried out to commence any of these developments
and the parties are agreed that the permissions have lapsed.
[12]
The development of three residential units within the grounds of Coodham House
was also permitted by a further grant of planning permission by the respondent on
29 March 2011 under reference 11/00166/APP. Notably, in the report of handling in relation
to this application, the respondent's case officer had stated that the 2004 permission
remained extant. Two of those units have been constructed, completed and sold. The third
5
unit is partially constructed. These three units have been constructed on land identified for
the development of 6 of the units which were the subject of the 2004 permission.
[13]
In 2022, the Coodham House estate was marketed for sale as a development
opportunity. In 2023, Hallbar Homes submitted a pre-application inquiry to the respondent.
That pre-application inquiry led to the issuing of the letter dated 9 February 2024 which is
the subject of these proceedings.
[14]
The petitioners became aware of the letter dated 9 February 2024 in April 2024. As a
result, solicitors acting on behalf of the petitioners entered into correspondence with the
respondent's planning service. By letter dated 19 April 2024, the petitioners' agents
requested an explanation from the respondent as to "the basis upon which the Planning
Authority have determined (as recorded in the letter dated 9 February 2024) the
[2004 permission] is extant." The petitioners' agents also raised a number of additional
queries in respect of which the respondent's responses were sought. By email to the
petitioners' solicitors dated 3 May 2024, Mr Clark replied as follows:
"...
The Planning Authority has thoroughly reviewed the matter, taking into account all
relevant information, including the planning history of the Coodham Estate,
planning case law, Mr. Bogie's note, Mr. Iles's correspondence, and the Planning
Authority's pre-application advice to Hallbar Homes.
Upon careful consideration, the Planning Authority maintains its view that planning
permission 02/00790/FUL is extant. Planning permission 02/00790/FUL permitted the
erection of 41 new residential units within the estate grounds as enabling
development to the renovation of the A listed Coodham House. The permission is
considered to be extant by virtue of the renovation of Coodham House and the
delivery of a range of infrastructure and ancillary works already completed on site.
...
In conclusion, the Planning Authority stands by its decision regarding the extant
status of planning permission 02/00790/FUL."
6
The petitioners' arguments
Is there a justiciable decision?
[15]
The position of the petitioners was that the letter dated 9 February 2024 contained a
standalone administrative decision as to the status of the 2004 permission. That decision
was separate from the pre-application advice contained in the respondent's letter. The letter
itself made clear that the respondent's decision in respect of the 2004 permission had been
reached following consideration of the planning history of the site and in light of the
commencement of the works to Coodham House.
[16]
The decision in respect of the 2004 permission which the petitioners sought to
challenge was quite separate from any decision which might be reached by the respondent
in relation to any future planning application.
[17]
It was also apparent from later correspondence from the respondent and, in
particular, the email dated 3 May 2024 (see [14] above) that it considered that the views
expressed in the letter dated 9 February 2024 were a considered decision.
[18]
In any event, if there were any doubt about it, counsel for the petitioners emphasised
that the authorities made clear that one ought not to take too formalistic an approach to
pinning down an identifiable decision (see Elmford Ltd v City of Glasgow Council (No 2) 2001
SC 267 at paragraph 8; Wightman v Secretary of State for Exiting the European Union 2019 SC
111 at paragraph 67 per Lord Drummond Young)
[19]
Furthermore, the respondent's decision as to the status of the 2004 permission had an
immediate legal effect. The decision meant that the 2004 permission would impact
immediately upon the petitioners. The respondent's decision could be relied upon by a
developer to mobilise bulldozers to commence construction work immediately. For
example, it would affect the value of the petitioners' properties.
7
[20]
Counsel for the petitioners accepted that it would have been open to the developer,
Hallbar Homes, to have applied for a certificate of lawfulness of proposed use or
development in terms of section 150 of the Town and Country Planning (Scotland) Act 1997
("the 1997 Act"). However the existence of this alternative did not alter the fact that the
developer could and did take comfort from the respondent's decision in the letter dated
9 February 2024.
Is the respondent's decision unlawful?
[21]
In the petition, the petitioners challenge the respondent's decision on four grounds:
namely, that was unreasonable, irrational, based on errors of fact and law, and that the
respondent had failed to take into account material considerations and had taken into
account immaterial considerations. Essentially, the petitioners' arguments appeared to turn
on two issues. First, the respondent had failed to take into account that there was no lawful
commencement of the development prior to the 2004 permission lapsing in 2009. Second,
the respondent had failed to take into account that the 2004 permission was not capable of
implementation.
No lawful commencement
[22]
In reaching the conclusion that the 2004 permission remained extant, the
respondent's decision relied on the fact that works to Coodham House had commenced.
Counsel for the petitioner accepted that very little required to be done to satisfy the
requirement that the development works had begun (see section 27 of the 1997 Act and
William Grant & Sons Distillers Limited v Moray Council 2018 SLT 525 at paragraph 34).
However, the critical question was whether the development had been lawfully
8
commenced. There was no evidence that the suspensive conditions to which the
2004 permission was subject had been fulfilled.
[23]
It was clear that, as a matter of law, planning permission was controlled and subject
to the conditions in terms of which it was granted. If operations contravened those
conditions, they could not properly be described as commencing the development
authorised by the permission. This was the well-recognised Whitley principle (see Whitley &
Sons v Secretary of State for Wales and Clwyd County Council (1992) 64 P&CR 296 at 302 per
Woolf LJ (as he then was)).
[24]
Counsel for the petitioners submitted that the conditions in the 2004 permission
ought to be construed in line with the approach of the UK Supreme Court in Trump
International Golf Club Scotland Limited v Scottish Ministers [2015] UKSC 74 at paragraph 34
per Lord Hodge:
"When the court is concerned with the interpretation of words in a condition in a
public document such as a sec 36 consent, it asks itself what a reasonable reader
would understand the words to mean when reading the condition in the context of
the other conditions and of the consent as a whole. This is an objective exercise in
which the court will have regard to the natural and ordinary meaning of the relevant
words, the overall purpose of the consent, any other conditions which cast light on
the purpose of the relevant words, and common sense."
[25]
The Whitley principle had been the subject of detailed consideration in Greyfort
Counsel for the petitioner submitted that in the present case, the relevant
conditions in the 2004 permission were clearly conditions precedent and "went to the heart
of the planning permission" (Greyfort at paragraph 36). As an illustration, counsel referred
to condition 15 of the 2004 permission which provided:
"that no development or site clearance shall commence until a performance bond
covering the estimated costs of the approved landscape scheme has been submitted
to and approved by the Planning Authority."
9
The wording of this condition was clear. It was designed to ensure that, before any works
began, a performance bond was procured which would ensure that funds were available in
the event of the insolvency of the developer. Subsequent events had shown the need for this
condition as the original developer, Goldrealm Properties Limited, had gone into insolvent
administration in 2016.
[26]
There was no evidence that this condition had ever been complied with. The
respondent had confirmed that it had no information on file in respect of a performance
bond. The same could be said in respect of the all of the other conditions contained in the
2004 permission which required to be fulfilled "prior to the commencement of the
development". Counsel submitted that when one considered the correspondence from the
respondent to the petitioners, it was apparent that there was no dispute that the conditions
in question had not been fulfilled. The respondent's position was, rather, that the conditions
did not "go to the heart" of the 2004 permission. However, such a construction of the
conditions was simply wrong and ignored the very great concerns which had been voiced
during the planning process which culminated in the 2004 permission.
[27]
Accordingly, on the basis that the pre-conditions had not been satisfied, the
petitioner submitted that the development had not been lawfully commenced.
[28]
Separately, the petitioners submitted that the evidence demonstrated that the works
carried out in respect of Coodham House that were relied upon by the respondent were
more consistent with having been carried out pursuant to the 2005 permission. The
2005 permission was quite different from the 2004 permission. The 2005 permission was not
presented as a variation of the earlier grant. The petitioners submitted that the purpose of
applying for the 2005 permission had plainly been to develop Coodham House without the
need to fulfil the conditions to which the 2004 permission had been subject. In any event,
10
whatever the relationship between the 2004 and 2005 permissions, the fact remained that the
2004 permission could not be lawfully commenced without the necessary conditions being
fulfilled.
Implementation
[29]
The petitioners submitted that the 2004 permission can no longer be fully
implemented following the construction of houses under the 2011 permission (see [12]
above) and relied upon the decision of the UK Supreme Court in Hillside Parks Limited v
Snowdonia National Park Authority [2022] 1 WLR 5077. That case had dealt specifically with
the relationship between successive grants of planning permission for development on the
same site and, in particular, the effect on one planning permission of implementing another
planning permission relating to the same site. The Hillside case was authority for the
proposition that a planning permission does not authorise development if and when, as a
result of physical alteration of the land to which the permission relates, it becomes
physically impossible to carry out the development for which the permission was granted
(at paragraph 45 per Lord Sales and Lord Leggatt JJSC). In Hillside, the court had also
concluded that where planning permission was granted for the development of a site, such
as a housing estate, comprising multiple units, it was unlikely to be the correct interpretation
of the permission that it was severable (see paragraphs 50 and 71).
[30]
Applying Hillside to the present case, counsel for the petitioners submitted that the
2004 permission, even if lawfully commenced, could not be lawfully implemented as a result
of the physical alteration of the land brought about by the construction of the houses in
terms of the 2011 permission.
11
The respondent's arguments
Is there a justiciable decision?
[31]
Senior counsel for the respondent emphasised that the present proceedings were for
the judicial review of the respondent's decision contained in the letter dated 9 February
2024. Senior counsel noted that the letter was addressed to the developer Hallbar Homes
and not the petitioners.
[32]
In short, the respondent's position was that the letter dated 9 February 2024 could
not be relied upon, did not crystallise legal rights on the part of the petitioners and would
not found legitimate expectations.
[33]
As a starting point, it was important to note that the letter dated 9 February 2024 was
addressed only to Hallbar Homes. It was not addressed to others including the petitioners.
The procedural context was important because if the letter bound the respondent then it
would plainly have been unfair to freeze out other interested third parties. However, the
letter did not bear to be a decision of the respondent. It bore instead to be a pre-application
response letter from one of the respondent's supervisory planners. That was consistent with
the express caveat the letter contained (see [5] above) and the respondent's clearly publicised
position in relation to the handling of pre-application enquiries (which was published on its
website).
[34]
Senior counsel submitted that the email dated 3 May 2024, which was addressed to
the petitioners' agents, ought, from a judicial review perspective, to be treated as a new
decision that was separate from that contained in the letter of 9 February 2024. On a point of
detail, senior counsel submitted that the reference in the email to the Planning Authority
maintaining its view that the 2004 permission was extant was not a reference to the letter
dated 9 February 2024 but to the report of handling in respect of the 2011 permission
12
(see [12] above). The petition did not seek to reduce any decision contained in the email
dated 3 May 2024. The email was a response to the petitioners' agents which considered
new and broader information than that which had formed the basis of the letter dated
9 February 2024. Even were the letter of 9 February 2024 to be reduced, it would not
necessarily affect the email dated 3 May 2024 (cf Robertson, petitioner [2022] CSOH 45 at
paragraph 16).
[35]
Senior counsel contrasted the position of both the letter dated 9 February 2024 and
the email dated 3 May 2024 with the statutory procedure provided by sections 150 and 151
of the 1997 Act whereby an application could be made to a planning authority to ascertain
the lawfulness of an existing or proposed use or development. In this regard, senior counsel
referred to the House of Lords decision in R (Reprotech Limited) v East Sussex County
Council [2003] 1 WLR 348 which dealt with the then extant analogous English provision:
section 64 of the Town and Country Planning Act 1990. Lord Hoffman had contrasted
statements of opinion by planning officers with a juridical act following a process
determined by statute involving the involvement of third parties (at paragraphs 27 and 28).
[36]
In relation to legitimate expectations, senior counsel drew attention to the decision of
the UK Supreme Court in Re Finucane's Application for Judicial Review [2019] HRLR 7.
Lord Kerr's judgment had authoritatively reviewed the case law in respect of legitimate
expectations. On this basis, it was apparent that a claim to legitimate expectations could
only be based on a promise which was "clear and unambiguous and devoid of relevant
qualification" (at paragraph 64, see also paragraphs 67 and 69). Neither the letter dated
9 February 2024 nor the email dated 3 May 2024 satisfied these conditions.
[37]
It followed from senior counsel's submissions that the respondent was not bound by
the views expressed in either the letter dated 9 February 2024 nor the email dated 3 May
13
2024. The respondent might take a different view when reaching its ultimate decision on
any future planning application.
Is the respondent's decision unlawful?
[38]
Senior counsel stressed that the present proceedings sought judicial review of the
purported decision in the letter dated 9 February 2024: namely, judicial review in the
at paragraphs 41 and 42). These proceedings were not an appeal (R (Campaign Against Arms
to 56). Accordingly, the petitioners required to identify either an irrational decision one
that flew in the face of logic or one which demonstrated an error of law.
[39]
Senior counsel noted that the petitioners did not challenge the reasoning of the letter
dated 9 February 2024. In this regard, beyond stating that, as a result of the commencement
of the works to Coodham House, the 2004 permission was extant, the letter did not engage
with the arguments being advanced by the petitioners. However, there was also no
suggestion that the letter ought to have said more.
No lawful commencement
[40]
Even if the letter dated 9 February 2024 constituted a justiciable decision, senior
counsel submitted that there was no error of law in the approach of the respondent and it
could not be described as being irrational or perverse.
[41]
As a starting point, the petitioners had recognised that the threshold for
commencement was very low (see [22] above).
14
[42]
On the question of the Whitley principle, senior counsel drew attention to the
approach of Mr Justice Sullivan in R (on the application of Hart Aggregates Ltd) v Hartlepool BC
the principle was not a statutory provision but a judicial creation and that the court should
be wary of applying the principle in unduly rigid a fashion (at paragraphs 40 to 41). Senior
counsel noted further that in Hart, Mr Justice Sullivan, in considering the condition
precedent in that case, had noted the following:
"Condition 10 is a `condition precedent' in the sense that it requires something to be
done before extraction is commenced, but it is not a `condition precedent' in the
sense that it goes to the heart of the planning permission, so that failure to comply
with it will mean that the entire development, even if completed and in existence for
many years, or in the case of a minerals extraction having continued for 30 years,
must be regarded as unlawful." (at paragraph 59)
[43]
Mr Justice Sullivan went on to develop this point at paragraph 65:
"For the reasons set out above, I believe that the statutory purpose is better served by
drawing a distinction between those cases where there is only a permission in
principle because no details whatsoever have been submitted, and those cases where
the failure has been limited to a failure to obtain approval for one particular aspect of
the development. In the former case, common sense suggests that the planning
permission has not been implemented at all. In the latter case, common sense
suggests that the planning permission has been implemented, but there has been a
breach of condition which can be enforced against. I appreciate that these are two
opposite ends of a spectrum. Each case will have to be considered upon its own
particular facts, and the outcome may well depend upon the number of conditions
that have not been complied with."
[44]
In Hart, Mr Justice Sullivan also considered the application of the Whitley principle in
a situation in which development has been made in breach of planning control, but
enforcement action cannot be taken by the planning authority. This situation had been
addressed by Mr Justice Ouseley in R (on the application of Hammerton) v London Underground
and, in particular, quoted the following paragraph of Mr Justice Ouseley's opinion:
15
"However, if after the expiry of the five year period, it is possible to conclude that
enforcement action is not lawfully possible, I see no reason why the development
which cannot be enforced against should not be regarded as effective to commence
development. The role of enforcement, and the statutory flexibility which it brings,
cannot be left wholly out of the picture when reaching a conclusion on a matter
about which the Act is not explicit--can development in breach of planning control
ever be effective to commence a planning permission? This is itself a judicial
interpolation into the statutory code. It too arises from the application of public law
principles as to the legal consequences of unlawful though not criminal acts. No
sound distinction can be drawn for these purposes between development which
cannot be enforced against because there has been no breach of planning control and
development which cannot be enforced against because such action would itself be
unlawful. If, in language which the post Carnwath Report enforcement regime has
made redundant, development in breach of planning control is immune from
enforcement control, it should be regarded as effective to commence development.
Such an approach flows from my analysis of the Whitley line of cases."
(paragraph 130 of Hammerton, quoted at paragraph 79 of Hart)
[45]
In Greyfort, the Court of Appeal had, insofar as it was relevant to the case before it,
approved Mr Justice Sullivan's approach in Hart (at paragraph 19). The Court of Appeal,
having reviewed the case law, had also recognised that although exceptions to the Whitley
principle were limited, one such exception existed in circumstances such as those which
arose in Hammerton (paragraph 19).
[46]
Senior counsel submitted that consideration of the planning conditions in the context
of the permission was properly characterised as the exercise of planning judgment and,
therefore, was only challengeable on the grounds that it was irrational or perverse (Tesco
Stores v Dundee City Council [2012] UKSC 13 at paragraph 19). First, it was a question of
planning judgment to determine whether the conditions in question went to the heart of the
planning permission. Secondly, consideration of the exceptions to the Whitley principle also
raised questions of planning judgment.
[47]
For example, in relation to condition 15, which had been emphasised by counsel for
the petitioners in argument, senior counsel submitted that it was a question of planning
judgment as to whether this condition truly went to the heart of the 2004 permission as a
16
whole or whether, in fact, it was related to the erection of 41 houses within the estate
grounds which had not taken place. In any event, the respondent could no longer take
enforcement action as a result of the passage of time (section 124 of the 1997 Act). After
20 years of habitation, it would be irrational for the respondent to take enforcement action.
Implementation
[48]
The respondent's primary response in respect of the petitioners' implementation
argument was straightforward. The letter dated 9 February 2024 simply said nothing at all
about whether the 2024 permission could be implemented.
[49]
Further, and in any event, the Hillside Parks case made clear that the continuing
authority of a planning permission was not dependent upon exact compliance with that
permission such that any departure, however minor, had the result that no further
development was authorised. The judgment of the court emphasised that requiring exact
compliance would involve adopting an unduly rigid and unrealistic approach. This would
involve putting an unreasonable construction on a document granting planning permission
particularly where such permission was for a large multi-unit development. The court
concluded that the ordinary presumption must be that a departure will only have such an
effect if it is material in the context of the scheme as a whole (see paragraphs 69 and 70).
[50]
On this basis, senior counsel submitted that it was apparent that a degree of planning
judgment was involved in determining whether any such departure was material.
Approached in this way, it could not be said that the respondent's decision, if it were such,
showed any reviewable error.
17
Decision
Is there a justiciable decision?
[51]
The first issue which requires to be resolved is whether, as the petitioners contend,
the letter dated 9 February 2024 from the respondent to Hallbar Homes contains a decision
relating to the 2004 permission which can properly be the subject of judicial review
proceedings.
[52]
The petitioners' position is, in essence, that the statements in the letter relating to the
2004 permission (see [3] and [4] above) represent a complete decision which is separate from
the pre-application advice also contained in the letter. The petitioners point to the fact that
the view expressed in relation to the 2004 permission is said to have been made following
consideration of the planning history and following discussions with legal services. The
petitioners contend further that this decision in respect of the 2004 permission has had an
immediate legal effect impacting on the petitioners.
[53]
I do not accept the petitioners' position. I agree with the respondent that the
statements contained in the letter cannot be relied upon by the petitioners, did not affect
their legal rights, and would not found legitimate expectations. It appears to me that the
petitioners' argument requires the statements made by the respondent in the letter dated
9 February 2024 concerning the 2004 permission to be divorced from their proper context in
two respects.
[54]
First, the letter dated 9 February 2024 was addressed to Hallbar Homes and was
expressly stated to be written in the context of Hallbar Homes' pre-application enquiry. As
noted above, the letter was expressly caveated as containing comments and advice made at
an officer level and "strictly without prejudice to the eventual decision of the Council as
Planning Authority with regard to any future applications (for this site)" (at [5]).
18
[55]
This context is strongly indicative of the fact that the statements relating to the
2004 permission are not, as the petitioners contend, a binding decision as to the status of that
permission which would directly affect not only Hallbar Homes but also the petitioners who
are not even an addressee of the letter. Rather, this context shows that these statements
merely represent the respondent's view as to the planning background to Hallbar Homes's
pre-application enquiry.
[56]
Second, the petitioners' argument involves divorcing the actions of the respondent
from the broader statutory context provided by the 1997 Act. The petitioners' arguments
essentially elevate the respondent's statements relating to the 2004 permission into an extra-
statutory certificate of lawfulness of proposed use or development. As such, the petitioners'
argument fails for similar reasons to those which led Lord Hoffman to reject Reprotech's
arguments in that case. Where a statutory procedure has been established, it is not open to
the planning authority and an applicant simply to agree on some form of extra-statutory
alternative (at paragraph 29). Accordingly, as the views of the respondent as to the
2004 permission contained in the letter dated 9 February 2024 had not been issued pursuant
to the statutory procedure provided for certificates of lawfulness, it is reasonable to conclude
that they were neither intended nor ought to have the same effect as a certificate issued
following that procedure.
[57]
Furthermore, I consider the petitioners' contention that the statements contained in
the letter dated 9 February 2024 have an immediate legal effect is not correct. The legal
effects which the petitioners point to arise not from what was said by the respondent in its
letter but rather from the 2004 permission itself. It is the 2004 permission itself which, if
extant, would have the effects pointed to by the petitioners. The petitioners' contention
presupposes that the letter of 9 February 2024 had the effect of in some way reviving the
19
2004 permission. Whereas, properly understood, the views contained in the letter do not, in
themselves, alter or affect whether the 2004 permission is or is not extant.
[58]
In that regard, I accept the respondent's argument that the letter dated 9 February
2024 falls a long way short of setting out a sufficiently clear and unambiguous promise or
undertaking on the part of the respondent as would give rise to a legitimate expectation on
the part of Hallbar Homes (see Finucane at paragraphs 64, 67 and 69). Ultimately, I did not
understand the petitioners to argue otherwise.
[59]
For completeness, and in light of the submissions made on behalf of the petitioners, I
do not consider that the reasons for which I have rejected the petitioners' arguments are
based on "procedural niceties" or that the approach I have adopted would in some way
represent an obstruction to the proper enforcement of the rule of law (cf Wightman at
paragraph 67 per Lord Drummond Young). On the contrary, it is precisely because the
petitioners' argument seeks to isolate the statements contained in the letter dated 9 February
2024 from their proper legal context of both the pre-application enquiry and the certificate of
lawfulness procedure in terms of sections 150 and 151 of the 1997 Act that I reject it.
[60]
I also consider that the factual situation considered by Lord Clarke in Elmford (No. 2)
was quite different. In that case, the petitioners were unable to identify a formal decision on
the part of the local authority but there was no question that the local authority had both
denied and refused to recognise the rights asserted by them. In those circumstances, his
Lordship concluded that the actions of the local authority denying the petitioners' rights
were susceptible to judicial review (see paragraphs 7 and 8). In the present case, the
petitioners have identified a decision letter namely, the letter dated 9 February 2024. The
petitioners' difficulty is that, unlike in Elmford, the purported decision has had no legal
effect.
20
[61]
The final aspect to this first issue is whether the statements contained in the
respondent's email dated 3 May 2024 in any way alter or affect this analysis. In short, I do
not consider that they do. I reach this conclusion for two principal reasons.
[62]
First, I do understand that the petitioners claimed otherwise. The petitioners' case,
as I understood it, was quite clear in founding on the letter of 9 February 2024. It is that
letter which is identified within the petition as being the "decision letter". The email dated
3 May 2024 was relied upon by the petitioners as evidence that a decision had been taken by
the respondent in its letter dated 9 February 2024 rather than as forming part of that
decision. Given the fact that the issues addressed in the email were clearly not identical to
those considered in the letter the email responded to correspondence from the petitioners'
agents (see [14]) the petitioners' position is entirely understandable.
[63]
Secondly, and in any event, I consider that the reasons I have found that the letter
dated 9 February 2024 does not constitute a justiciable decision apply equally to the email.
The email provides an explanation of the reasoning of the respondent in reaching the view
expressed in the letter relating to the 2004 permission and, as such, cannot be divorced from
that context. Further, I also consider that the points made in relation to both the broader
statutory context (at [56]) and the absence of any legal effect (at [57] and [58]) apply to the
statements contained in the email just as they do to the letter dated 9 February 2024.
The petitioners' remaining arguments
[64]
My decision that the letter dated 9 February 2024 contains no decision susceptible to
judicial review is sufficient to dispose of the petition. However, lest I am wrong on the first
issue and in light of the submissions I have heard, my views on the petitioners' two
remaining arguments are as follows.
21
No lawful commencement
[65]
As a starting point, I agree with the submission of senior counsel for the respondent
that there is a degree of artificiality in the petitioners' criticisms because the letter dated
9 February 2024 simply does not go into detail in respect of the challenges advanced in these
proceedings on behalf of the petitioners. I consider that this observation reinforces my
conclusion on the first issue: the letter dated 9 February 2024 was not a decision on this
point and was intended to be no more than an expression of the respondent's view.
[66]
However, on the assumption that the statements made in the respondent's letter
dated 9 February 2024 concerning the 2024 permission are justiciable, I would not have been
persuaded that the respondent's view demonstrated either an error of law or the required
degree of irrationality.
[67]
There was no dispute, as I understood it, that, as matter of fact, the threshold for
beginning the development had been crossed as a result of the carrying out of works at
Coodham House. The thrust of the petitioners' argument in respect of lawful
commencement was that, standing the absence of confirmation that the conditions which
required to be fulfilled "prior to the commencement of the development" had, in fact, been
fulfilled, the respondent had erred in concluding that development in terms of the 2004
permission had been lawfully commenced consistent with the Whitley principle.
[68]
Assuming for the sake of the argument that these conditions were not fulfilled and
simply looking at the six conditions in the 2004 permission (conditions 8, 9, 11, 13, 15 and 18)
which all contain some variant of the "...prior to the commencement of the development..."
wording, I can see the force of the petitioners' argument that they constitute conditions
precedent. Certainly, such a reading would be consistent with the natural and ordinary
meaning of the words used (cf Trump International at paragraph 34).
22
[69]
However, as Mr Justice Sullivan explained in Hart, the Whitley principle is a judicial
creation designed to fill a gap so as to give effect to the underlying purpose of the
legislation. As such, as he noted, the court should be wary of applying the principle in an
unduly rigid fashion (at paragraphs 40 and 41). Although these remarks were strictly obiter,
the approach was subsequently endorsed by the Court of Appeal in Greyfort (at
paragraph 19). Consistently with that endorsement of the approach, Lord Justice Richards
also recognised that a number of exceptions to the Whitley principle had been identified in
the case law.
[70]
Two of those exceptions are relevant to the petitioners' argument.
[71]
The first is the distinction drawn by Mr Justice Sullivan in Hart between, on the one
hand, whether a condition is formally drafted in such a way as to constitute a "condition
precedent" and, on the other hand, whether a condition "goes to the heart of the planning
permission, so that failure to comply with it will mean that the entire development, even if
completed and in existence for many years, ... must be regarded as unlawful." (at
paragraph 59). In this regard, Mr Justice Sullivan highlighted the fact that the English
1990 Act (like its Scottish equivalent), draws a clear distinction between development
without planning permission and development in breach of condition see
section 171A(1)(a) and (b) of the 1990 Act and section 123(1)(a) and (b) of 1997 Act (at
paragraph 55).
[72]
It is apparent that determining whether a condition does indeed go to the heart of the
planning permission requires the exercise of planning judgment. This can be inferred from
the approach of the Court of Appeal in Greyfort to the challenges to the inspector's view in
that case that a condition did go to the heart of the planning permission. Lord Justice
Richards stressed that the court ought to be very cautious about interfering with the views
23
of the inspector given that he was plainly in a better position than the court to assess this
issue (paragraph 41).
[73]
The second exception is that which can be traced to Mr Justice Ouseley's decision in
Hammerton and addresses situations:
"where it would be unlawful, in accordance with public law principles, notably
irrationality or abuse of power, for a local planning authority to take enforcement
action to prevent development proceeding, the development albeit in breach of
planning control is nevertheless effective to commence development".
(paragraph 127 of Hammerton quoted at paragraph 11 in Greyfort)
[74]
Were either or both of these two exceptions to apply to the 2004 permission, the
respondent's view of that permission would be justified. Considering the statement by the
respondent in the letter dated 9 February 2024 relating to the 2004 permission in context and
against the proper legal background, I am not persuaded it can be said to be either in error
or irrational.
[75]
In respect of the first exception, the petitioners pray in aid the undoubtedly
controversial background to the grant of the 2004 permission and assert, against that
background, that the conditions upon which they rely went to the heart of the permission.
However, the background and, in particular, the inter-relationship between the works to
Coodham House itself and the development of houses in the estate grounds (in respect of
which the conditions founded on by the petitioners relate), emphasise the role of planning
judgment in assessing the conditions in question. Beyond their assertions, the petitioners
provided no basis for concluding that the first exception to the Whitley principle could not
apply.
[76]
The position in respect of the second exception is more straightforward. The
petitioners again simply provided no basis either for challenging the conclusion that no
enforcement could now be carried out by the respondent in respect of any failure to comply
24
with the conditions in the 2004 permission (see section 124(3) of the 1997 Act) or, as a result,
for the application of the Hammerton exception.
[77]
In light of my conclusions in respect of these arguments, I do not consider I need to
venture further into the question of whether, in fact, the conditions in the 2004 permission
upon which the petitioners rely were unfulfilled. Albeit, I observe that on the basis of the
submissions made to me by the respondent together with the terms of the communications
made by the respondent to the petitioners, I did not understand the respondent to dispute
this in any meaningful way.
[78]
Finally, for completeness, I do not consider that the petitioners' arguments in relation
to the 2005 permission make any material difference. The petitioners argue that the
development works carried out at Coodham House were "more consistent" with the
2005 permission than the 2004 permission. Leaving to one side the fact that a building
warrant was applied for to carry out works at Coodham House prior to the 2005 permission
being granted, the problem for this argument is it implicitly recognises that the development
carried out was also consistent with the 2004 permission. This is unsurprising given the
close inter-relationship between the two permissions. The petitioners provide no basis
legal or factual for what must be the hidden premise of this part of their argument
namely, that the development at Coodham Hall could not constitute commencement in
respect of both the 2004 permission and the 2005 permission. In the absence of any such
basis, I reject this part of the petitioners' argument.
25
Implementation
[79]
I consider that the petitioners' arguments in respect of the letter dated 9 February
2024 based on whether the 2004 permission can be implemented are capable of a shorter
answer.
[80]
The fundamental difficulty for the petitioners is that on no view does the letter dated
9 February 2024 say anything about this. The fact that, in the respondent's view, the
2004 permission was extant is legally distinct from the separate question as to whether the
2004 permission can still be implemented. Accordingly, even had I considered that the
respondent had made a justiciable decision in its letter dated 9 February 2024, I would have
rejected the petitioners' arguments challenging that decision based on implementation.
Disposal
[81]
As a result of my conclusion on the first issue, I will refuse the petition. I will reserve
all questions of expenses meantime.
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