G Hamilton (Tullochgribban Mains) Limited v The Highland Council and another (Scotland)

Under Schedule 9 to the Town and Country Planning (Scotland) Act 1997, the first-stage listing of an old mineral site is an administrative and preliminary process. It identifies and classifies the site and determines the priority and procedure for its later review. It does not ordinarily determine the definitive boundaries of the relevant planning permission.

A provisional view of boundaries formed during listing cannot reduce the extent of a valid existing permission. Its extent must be determined at the second stage by reference to the permission itself, when the authority considers an application for modernised conditions and exercises planning judgment.

The appellant owned farmland subject to mineral rights held by the second respondent. A 1965 permission authorised mineral working, but its approved plan had been lost. When the first respondent added the quarry to its first list of old mineral sites, the accompanying plan showed only the relatively small area previously worked. The site was classified as dormant.

The mineral owner later applied under Schedule 9 to the Town and Country Planning (Scotland) Act 1997 for new conditions covering a larger area. The appellant sought declarator, reduction and interim interdict, contending that the first-stage listing had conclusively confined the permission to the smaller area. The Lord Ordinary dismissed the petition, and the Inner House refused the reclaiming motion in [2011] CSIH 1.

The central questions were whether the authority could or had to define the site's boundaries when preparing the first list and, if so, whether it had confined the site to the previously worked area.

1. Appeal dismissed unanimously. Lord Walker delivered the judgment, with which Lady Hale, Lord Clarke, Lord Dyson and Lord Reed agreed. The Lord Ordinary and the Inner House had correctly interpreted Schedule 9 to the Town and Country Planning (Scotland) Act 1997.

2. The statutory procedure has two distinct stages. Stage 1 is administrative and preliminary. It identifies mineral sites, classifies them as Phase I active, Phase II active or dormant, and establishes the priority and procedure for Stage 2. Mineral working on a dormant site is frozen in the meantime. Stage 2 begins with an application under paragraph 9 and requires decisions involving planning judgment.

3. The first list is therefore a census of mineral sites rather than a definitive plan of their boundaries. Listing preserves an extant planning permission; it does not restrict or rescind it. The existence of a relevant permission is a condition of listing, but the extent of the development rights remains governed by the permission itself and falls to be addressed at Stage 2.

4. Paragraph 6 did not support the appellant's construction. An authority may grant an application for listing only in part where clear evidence establishes that part of the land sought to be listed has no relevant permission. Although unusual circumstances might require an authority to form a provisional view of boundaries at Stage 1, that view cannot cut down a valid existing permission.

5. The second issue did not strictly arise. Nevertheless, the courts below had also correctly concluded that the Council had not purported to confine the permission to the previously worked area. Viewed objectively, the correspondence and plans merely identified the working found on the ground and did not communicate a definitive boundary determination.

6. The appeal raised no point of law of general importance. The Supreme Court affirmed the decisions below and dismissed the appeal.

1. United Kingdom Supreme Court: In [2012] UKSC 31, unanimously dismissed the appeal and affirmed the courts below.
2. Inner House of the Court of Session: In [2011] CSIH 1, refused the reclaiming motion and upheld the Lord Ordinary's dismissal of the petition.
3. Outer House of the Court of Session: By interlocutor dated 10 March 2009, the Lord Ordinary repelled the appellant's first and second pleas in law and dismissed the petition.