In June 2012 The Craighouse Partnership claimed to have activated a consent – over ten years after the planning committee agreed it –  for an 80,000 sq ft university building by digging a “trench” and filling it in again. The Council waived associated pre-conditions that would have protected the site. The Craighouse Partnership are now applying to change the conditions further so as to delay, maybe indefinitely, having to pay the associated costs to the Council to the tune of £180,000.

We met with senior planning officials who confirmed that this consent would allow removal of mature woodland, the putting in of carparking and infrastructure. In short, the site could be left in a mess without any obligation to build the associated institutional building. Although they say this could also be built. This consent would last in perpetuity.

We are also unhappy about the lack of transparency and unavailability of paperwork that should have been in the public archives.

The Friends of Craighouse have prepared a formal complaint to the Council which was sent earlier this week and is copied in full below.

————

Dear City of Edinburgh Council,

RE: Complaints pertaining planning permission 01/04599/FUL and 01/04599/LBC

In reference to the above planning consent, we wish to invoke the Council’s formal complaint procedure to raise several heads of complaint.

Background

On or around March 2010, Napier University sold the Craighouse estate to an off-shore investment holdings. In broad terms, the estate is now administered by Mountgrange Investment Management LLP (MIM) which has formed a development consortium, the Craighouse Partnership (CP), comprising Mountgrange, Sundial Properties (SP) and Edinburgh Napier University (ENU). The CP seek to renovate the existing buildings and build extensive new build property within the estate.

Recently, the Friends of Craighouse (FoC) discovered that CP were attempting to activate planning consent 01/04599/FUL at the “eleventh-hour”. Ostensibly, the City of Edinburgh Council (CEC) appear to have acceded to the requests made by the CP through their agents Montagu-Evans (ME). This is confirmed by various documents held on the CEC online planning portal, a statement form John Bury and a letter from David Leslie.

The FoC are challenging the CEC’s decision to approve the CP’s position that consent was activated and we fully expect the CEC to confirm the correct position that 01/04599/FUL was not activated before it expired.

The FoC are challenging the provision of a notice by CEC to ME discharging the suspensive conditions attached to 01/04599/FUL when several of those conditions had plainly not been met.

The FoC are also challenging the competence of the original decision notice granting consent for 01/04599/FUL to ENU in 2007.

Finally, the FoC are seeking appointment of an impartial third-party auditor to investigate the CEC’s handling of all non-trivial planning applications concerning the Craighouse estate.

Interest and Standing

The issues at hand are of significant importance to the local community surrounding the Craighouse estate. Indeed, the administration of the planning process surrounding the Craighouse estate is of significant importance to Edinburgh and Scotland at large.

In light of the recent Supreme Court decision in AXA General Insurance Limited and others (Appellants) v The Lord Advocate and others (Respondents) (Scotland) 2011, it is plain to see that an action for Judicial Review by either a relevant individual or community group, affected by the CEC decisions in relation to Craighouse, would be competent before the Court of Session. Therefore, by the same reasoning, the CEC cannot decline to entertain the complaint outlined herein.

The FoC represent many of the people in the local community^[1] and are also acting in the public interest in a general manner to ensure the CEC lawfully discharges its duties as concerns the Craighouse estate.

The planning or other decisions made by the CEC in relation to Craighouse will affect the local community in a material and substantial manner. Decisions have potential to:

1. deprive the local community of amenity of the estate for walking and recreation;

2. cause irreparable damage to an estate of significant historical value both to Edinburgh and more specifically Scotland’s pioneering position in mental health care during the time the Sydney Mitchell buildings were commissioned;

3. infringe or obscure views into the estate and out from the estate, which is currently an amenity to the people of Edinburgh and form part of the character of the city;

4. change in an undesirable manner views into the estate from areas of Edinburgh that are currently protected by UNESCO status;

5. cause adverse affects to wildlife and disrupt a wildlife corridor;

6. allow development on the estate despite no prospect of completion due to lack of listed buildings consent and potentially also restricting public access to the site;

7. allow destruction of highly valued landscape and setting; and,

8. set a precedent for the future which could significantly reduce the effectiveness of protections on important sites of high historic, natural, wildlife or amenity value.

Furthermore, the estate rests within a Conservation Area and the seven buildings are all grade-A listed. As such, any decision the CEC makes concerning the estate is by definition of significant importance to the people of the city and Scotland at large. Finally, the significance of the estate in terms of architectural, historical, natural heritage and wildlife considerations impose a very onerous duty upon the CEC to uphold the highest levels of probity and propriety in their decision making. If that does not happen then it would create a loss of confidence and fundamental breach of trust between the people of Edinburgh and the CEC.

Therefore, the FoC do have legitimate interest and standing to challenge any decision the CEC make concerning the estate that we perceive as erroneous in law, not reasonably arrived at on the facts, perverse or biased, contrary to natural justice or ultra vires in nature.

[1] – The Friends of Craighouse has collected paper signatures from over 5,000 people; have pledges from a number of politicians; have represented the community in an official capacity at the Community Liaison Forum; have engaged with the community councils and relevant heritage bodies; and have a large active membership. The Friends of Craighouse are the only substantive community group dedicated to protecting the landscape and historic buildings at the Craighouse estate.

Heads of Complaint

A. Development not started as pursuant to s27 of the Town and Country Planning (Scotland) Act 1997.

The CP through their agents ME claim they started development and that consent 01/04599/FUL is now active¹. In that correspondence with the CEC, they claim that they dug a trench on the 22^nd of June 2012 within the area that is delineated in the 01/04599/FUL plans as a car park. This is the only claim that the CP make in relation to beginning development. Therefore, if this specific item is not a lawful beginning to development, the consent must have lapsed.

The position of the FoC is that development did not begin, hence the consent lapsed.

1. There was no material operation as per s27(4) so the consent was not activated

ME state in their letter “a trench was excavated within the area of the ‘approved’ car park”. It goes on to say,

“Whilst the area of excavation works undertaken related to the construction of the foundations to the ‘approved’ car park, the trench was back-filled on the same day… The trench was back-filled and made good for Health and Safety reasons, as this part of the site remains open to members of the public.”

s58(1) of the Town and Country Planning (Scotland) Act 1997 defines the time period within which development must start in relation to a specific planning consent,

“58 General condition limiting duration of planning permission

(1) Subject to the provisions of this section, every planning permission granted or deemed to be granted shall be granted or, as the case may be, be deemed to be granted subject to the condition that the development to which it relates must be begun not later than the expiration of—

(a) 5 years beginning with the date on which the permission is granted or, as the case may be, deemed to be granted, or

(b) such other period (whether longer or shorter) beginning with that date as the authority concerned with the terms of the planning permission may direct.

The date on which a development is considered to have begun is defined in s27,

“27 Time when development begun.

(1) Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated—

(a) if the development consists of the carrying out of operations, at the time when those operations are begun;

(b) if the development consists of a change in use, at the time when the new use is instituted;

(c) if the development consists both of the carrying out of operations and of a change in use, at the earlier of the times mentioned in paragraphs (a) and (b).

(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out.

(3) The provisions referred to in subsection (2) are sections 52(2), 53(6), 54(4), 58, 59 and 61.”

It can be observed that the date the development begins is the earliest of either carrying out operations or a change of use, both by means of a “material operation”. s27 goes on to clarify the meaning of material operation.

“(4) In subsection (2) ‘material operation’ means—

(a) any work of construction in the course of the erection of a building,

(b) any work of demolition of a building,

(c) the digging of a trench which is to contain the foundations, or part of the foundations, of a building,

(d) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (c),

(e) any operation in the course of laying out or constructing a road or part of a road, or

(f) any change in the use of any land which constitutes material development.

(5) In subsection (4)(f) “material development” means any development other than—

(a) development for which planning permission is granted by a general development order for the time being in force and which is carried out so as to comply with any condition or limitation subject to which planning permission is so granted,

(b) development of a class specified in paragraph 1 or 2 of Schedule 11, and

(c) development of any class prescribed for the purposes of this subsection.”

It is clear that the developer must undertake at least one material operation as defined in s27(4) to meet the requirements for either a beginning by “carrying out of operations” or “change in use” pursuant to s27(1). If the developer does not undertake a material operation before the expiry of the consent then it cannot have been properly activated. This is the contention of FoC in relation to 01/04599/FUL.

Each item in s27(4) shall be dealt with in turn.

i. “(a) any work of construction in the course of the erection of a building”

There are three limbs here: was there any “construction”, if so whether it was “in the course of the erection of a building” and whether indeed the car park comprises a “building”. To satisfy the criteria for this material operation, any work would have to meet all three limbs.

“Construction”

Unfortunately, the Act does not define “construction”. There is also a paucity of authorities on the matter with, seemingly, the only relevant authority being Ceredigion County Council v. National Assembly for Wales and Mr E.D. Harrison [2001] EWHC Admin 694. Although Ceredigion concerns English law, the wording is precisely the same as s27(4)(a), so it is arguably instructive. At 19. Richards J opines,

“19. ‘Construction’ is not defined in section 290(1) or elsewhere in the 1971 Act. I see no reason for giving it anything other than its ordinary English meaning. There is nothing to show that it is intended to bear any special or extended meaning. It is not to be equated with “erection” as defined in section 290(1): the very fact that section 43(2)(a) refers both to “work of construction” and to “in the course of erection” is a strong indication that the concepts are not the same. The words “any work of construction” in (a) may also be contrasted with the language used in the rest of section 43(2), for example the expression “any operation in the course of laying out or constructing a road” in (d). The use of that expression in (d) highlights the fact that the draftsman has chosen a the specific concept of “construction” in (a).”

Certainly in this case, the sole act of digging a single trench with no purpose and immediately back-filling it could not be properly considered construction. Furthermore, s27(4)(c) of the Act specifically mentions digging of a trench, so one can presume if the drafter of the legislation had the mind to create a specific material operation for that action then the mere digging of a trench with no other construction works cannot be considered to fall within the auspices of s27(4)(a).

Finally, the Oxford English Dictionary definition of “construction” states,

“The action of framing, devising or forming, by the putting together of parts; erection, building”

So even the commonly accepted meaning does not lend any credence to the idea that a single trench could be “construction”: there were no “parts” and there was no erection of any building, which strongly suggests digging a trench is not the construction of a building.

“in the course of the erection of a building”

In any instance, the first limb of “construction” is qualified by the second limb, “in the course of the erection of a building”. Well, it can be plainly seen that the trench was not dug in the course of the erection of a building: there was nothing erected, certainly no building.

“building”

Finally, the term “building” must be considered. “building” is defined in the Act, in s277,

“‘building’ includes any structure or erection, and any part of a building, as so defined, but does not include plant or machinery comprised in a building; ”

There is authority concerning this definition however it is not particularly instructive in this instance, being restricted to structures such as cranes, gazebos, and scaffolding.

In a common sense approach, it cannot be said that a car park, hard standing or hard surface is a structure. Similarly, it is clearly not an erection and certainly not what would commonly be accepted as any part of a building.

In any case, if it were so that a hard standing were a building, one would have to admit things like landscaping and paths into the definition of a “building”, which would be a highly undesirable result and contrary to existing law.

Some small additional guidance can be found in The Town and Country Planning (General Permitted Development) (Scotland) Order 1992,

4.—(1) The provision within the curtilage of a dwellinghouse of a hard surface for any purpose incidental to the enjoyment of the dwellinghouse.

(2) Development is not permitted by this class within a conservation area or within the curtilage of a listed building.

in comparison with,

“5.—(1) The erection or provision within the curtilage of a dwellinghouse of a container for the storage of oil. ”

or,

“6.—(1) The installation, alteration or replacement of a satellite antenna on a dwellinghouse or within the curtilage of a dwellinghouse. ”

It can be seen that the verbs used in each instance change and that for a hard surface, the verb “provision” is used, not “construction” nor “erection”.

any work of construction in the course of the erection of a building

As can be seen from above, none of the three limbs in the s27(4)(a) definition were met, therefore this cannot be a material operation for the purposes of 01/04599/FUL.

ii. “(b) any work of demolition of a building”

This item is easily disposed of: there was no building to demolish, so it cannot possibly apply and cannot be a material operation for the purposes of 01/04599/FUL.

iii. “(c) the digging of a trench which is to contain the foundations, or part of the foundations, of a building”

While there was apparently a trench dug, it was not to contain the foundations, in whole nor in part, of any building. The trench was immediately back-filled, it contains the same soil and rock that was removed from it, therefore does not contain the foundations of a building. The developer did not take any materials, machinery, tools nor workmen to be able to place foundations within such a trench on the 22^nd of June 2012. In other words, at the time of digging the trench on the 22^nd June 2012, the trench was not to contain the foundations of any building or part thereof. Finally, whatever happens in the future, the trench will never contain the foundations of a building because the trench was immediately filled in and no longer exists.

Furthermore, there would be no “building” at that space: as described above, the car park would not comprise a “building” in relation to the Act.

So this item can also be disposed of: the trench absolutely could not have contained the foundations or part of the foundations of a building; as such it fails to be a material operation for the purposes of 01/04599/FUL.

iv. “(d) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (c)”

There were no pipes or underground mains laid, therefore this item cannot apply and does not constitute a material operation for the purposes of 01/04599/FUL.

v. “(e) any operation in the course of laying out or constructing a road or part of a road”

This item has two limbs, “any operation in the course of laying out or constructing” and then “road or part of a road”. Each limb will be treated separately.

“any operation in the course of laying out or constructing”

The wording is rather precise: “in the course of”. That requires that the work is actually contained within the realm of laying out of constructing a road and that it is not for some other purpose or indeed without a purpose.

Digging a trench and immediately filling it back in, does not fall into the “course of laying out or constructing”. It achieved nothing and marked-out nothing.

If any doubt remained over this item, in the letter ME sent to the CEC on the 29^th June 2012, it states,

“Whilst the area of excavation works undertaken related to the construction of the foundations to the ‘approved’ car park, the trench was back-filled on the same day…”

So by ME’s own admission, the work was not in “the course of laying out or constructing a road”. Therefore, by this point alone, s27(4)(e) cannot be a material operation for the purposes of 01/04599/FUL.

The second limb of this test will however still be looked to for the purposes of completeness.

“road or part of a road”

To be construed as an operation in the course of laying out or constructing a road or part of a road, there must be a road to be constructed either at the point where the claimed works took place or within that locus. The precise meaning of “road” must resultantly be known.

The definition of a road is set out in statute, specifically s151 of the Roads (Scotland) Act 1984,

“‘road’ means, subject to subsection (3) below, any way (other than a waterway) over which there is a public right of passage (by whatever means and whether subject to a toll or not) and includes the road’s verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof”

The above definition is imported by section 192(1) of the Road Traffic Act 1988, which has extent to Scotland, however has been the subject of certain amendments in terms of paragraph 78 of Schedule 4 to the Road Traffic Act 1991. Given the Road Traffic Act 1998 and 1991 are primarily for the regulation of road traffic whereas the Roads (Scotland) Act 1984 is for the making of provisions as regards roads in general, the latter and slightly more restrictive definition is appropriate for these purposes.

There is some authority in Scotland to give guidance on what should be considered a road and what should not. The English definition is also broadly similar, so authority from England is at least instructive.

For the area where the trench was dug, the plans for 01/04599/FUL clearly show it as being within the boundaries of the car park. In more common parlance, the car park is a hard-standing or hard-surface; the more important question here is whether the approved plans in 01/04599/FUL create a road, or merely a hard-standing.

Dealing with the first question: is the car park a “way”. Looking at the plans, one can clearly see the west, north and east boundaries of the car park are fenced off with 90cm high posts and wire fencing; on the north side there is to be Ivy grown and the west and east sides, Common Beach. These would considered impassible in the normal course of matters, so the car park cannot be considered a way – it leads nowhere. There is no transit from one place to another.

The second question is that there must be a public right of passage. On the basis of the plans as consented there is no and cannot be any right of passage through the car park. Moreover, all existing authority to date has focused on assessing situations concerning car parks that were in existence before the relevant incident took place. In this situation, the car park is not in existence so there cannot be a right of passage through it as it does not yet exist.

If we look to Clark (A.P.) and Others v. Kato, Smith and General Accident Fire & Life Assurance Corporation PLC, Cutter v. Eagle Star Insurance Company, UKHL 1998 for guidance, Lord Clyde cautions against an unnatural approach,

“In the present case the question is raised whether one or other or both of the car parks qualifies as a road. In the generality of the matter it seems to me that in the ordinary use of language a car park does not so qualify. In character and more especially in function they are distinct. It is of course possible to park on a road, but that does not mean that the road is a car park. Correspondingly one can drive from one point to another over a car park, but that does not mean that the route which has been taken is a road. It is here that the distinction in function between road and car park is of importance. The proper function of a road is to enable movement along it to a destination. Incidentally a vehicle on it may be stationary. One can use a road for parking. The proper function of a car park is to enable vehicles to stand and wait. A car may be driven across it; but that is only incidental to the principal function of parking. A hard shoulder may be seen to form part of a road. A more delicate question could arise with regard to a lay-by, but where it is designed to serve only as a temporary stopping place incidental to the function of the road it may well be correct to treat it as part of the road. While I would accept that circumstances can occur where an area of land which can be reasonably described as a car park could qualify as a road for the purposes of the legislation I consider that such circumstances would be somewhat exceptional.”

“It may be perfectly proper to adopt even a strained construction to enable the object and purpose of legislation to be fulfilled. But it cannot be taken to the length of applying unnatural meanings to familiar words or of so stretching the language that its former shape is transformed into something which is not only significantly different but has a name of its own. This must particularly be so where the language has no evident ambiguity or uncertainty about it. While I have recognised that there could be some exceptional cases where what can reasonably be described as a car park may also qualify as a road, it is the unusual character of such cases which would justify such a result in the application of the statutory language rather than any distortion of the language itself.”

Although the conclusion on the facts were different in this particular case the same general principals were confirmed in Kirsty Aird v. Procurator Fiscal, Glasgow1998. The question in Airdconcerned whether the forecourt of the then Strathclyde Regional Council offices comprised a road. The forecourt was used by pedestrians as a short-cut between multiple locations, so in that case functioned as a way. It is confirmed however, if it was wholly a private car park as is delineated in 01/04599/FUL then there would be no problem with immediate disposal as not comprising a road.

“So the position was that there was access at certain times to the forecourt by drivers of cars generally while at other times access was confined to permit holders. In addition the magistrate found that there were a number of entrances and exits to and from the car park area which were capable of being, and were, used by pedestrians as shortcuts between Holland Street and a neighbouring street, Elmbank Street, and as an access to Charing Cross Railway Station.”

“We agree that a “way” is an area in which some form of travel takes place. This is plain from study of the definitions of the word in the Shorter Oxford Dictionary. Whether such an area is or is not a way is essentially a question of fact. (Clarke v. Kato 1998 1 W.L.R. 1647 per Lord Clyde at 1653). So understood, a private car park which is strictly confined to use by persons authorised to bring their cars there in order to leave them would not be regarded as a way. If that had been found to be the situation in this case we would have had no difficulty in holding that the forecourt was not a road within the statutory meaning. But the facts are otherwise.”

“We therefore come back to the facts of the case to see whether the forecourt can be described as a way to which the public has access. As we have noted the forecourt was used by local authority employees for restricted car parking during certain periods. There was also unrestricted use of the area at other times and for extended periods for drivers to come in and leave their cars and proceed elsewhere. Finally pedestrians used the locus, apparently at all times, as a means of progressing from one part of the town to another.”

A similar albeit far less instructive finding is detailed in John Horn v Procurator Fiscal, Kirkcaldy 1998, whereby their Lordships decided the Sheriff deciding the originating case was not entitled to come to the conclusion that the car park comprised a road,

“There is no finding that members of the public in general had access to the car park in the sense that they normally resorted to it and might be expected to be there. In our opinion on the basis of the findings made by the sheriff in this case, she was not entitled to infer that the car park was a way to which the public had access. That being so it follows that it was not established that the car park fell within the statutory definition of ‘road’.”

There is no presumption that a car park or hard-standing comprises a road unless exceptional circumstances dictate it must be so. These circumstances must be decided on the facts of the case. In the situation of the car park as delineated in 01/04599/FUL, it certainly cannot be so: there is and cannot be any way as the borders of the car park would prohibit it; there is no general right of passage as the car park does not yet exist and in any case could not be used as such.

The only conclusion remaining is that the car park could not possibly comprise a road. Therefore, any works carried out in that region cannot be for the constructing or laying out of a road.

Therefore, again, s27(4)(e) cannot be a material operation as regards 01/04599/FUL.

vi. “(f) any change in the use of any land which constitutes material development”

The only activity that was undertaken on or before the 25^th June 2012 did not change anything in the function or nature of the land. For years it has been covered in undergrowth, trees, bushes, etc and today, it still is in that condition. It is certainly not possible to park a car there.

The area was designated as the “contractor’s car-park” in a consultation document from CP², however it does not appear to have been used as a car-park for a considerable period of time. Also, in a document obtained under Freedom of Information from CEC, under the heading “PLANNING ADVICE (24 August 2010) the area is described as: “Site north of car park: Currently an area of hard standing well-screened from original entrance road”.

As an esto argument, using the area as a car-park, when it is already labelled a car-park and has been used as a car-park in the past cannot be considered a change of use. Interestingly, no attempt was made to park a car there as part of the attempted activation of this consent.

There has been no change of use, hence s27(4)(f) cannot be a material operation for the purposes of 01/04599/FUL.

Items i. through vi. show there was no material operation on or before the 25^th June 2012. Therefore, development had not begun and the consent has lapsed.

B. No lawful start within the realm of the planning consent.

To active the consent, the CP would have to have undertaken a lawful start. This requires that all the suspensive conditions are discharged, that the work undertaken is pursuant to the planning consent and furthermore that any lawful start cannot be de minimis in nature.

In East Dunbartonshire Council v Secretary of State for Scotland 1998, there is considerable discussion on the issue of intent and indeed what construes a minimum operation. In his summing-up Lord Coulsfield opines,

“It seems to us however that the solution to that problem, if it is a problem, is more likely to be found by applying an objective approach and considering firstly, whether what has been done has been done in accordance with the relevant planning permission and, secondly, whether it is material, in the sense of not being de minimis. It may be that that is what Eveleigh L.J. had in mind in using the word “colourable” in the passage quoted above. On that approach, the question would be one of fact and degree, as was indicated in the High Peak case.”

There are other authorities to support these propositions but shall be omitted for the purposes of brevity. Suffice to say that to be a lawful start, the claimed operation must be material, pursuant to the planning consent and not de minimis, the degree of which to be judged on the facts of the case.

1. The work was not pursuant to the planning consent so cannot be a lawful start

The area where the trench was dug is marked in the plans as a car park. So, it stands to good reason that if one is going to construct a car park, the operations involved must be for that purpose. In objective assessment, digging a trench then immediately filling it in again is not involved in constructing a car park. None of the correspondence from ME to CEC specifies properly the purpose or character of the trench in question, if anything it is decidedly vague in that respect, so it cannot be seen to be for constructing the car park. It could quite easily have been for a completely different activity entirely unrelated to 01/04599/FUL.

This assessment is further supported on the facts in that there were no attempts to comply with the written scheme of investigation as prescribed by the suspensive archaeological condition nor were there any attempts to comply with the provisions as concerns tree protection, again a suspensive condition.

The presumption must be that the trench was not pursuant to 01/04599/FUL and that it therefore was not a lawful start.

2. The work was de minimis therefore not a lawful start

The character of the work in digging the trench is clearly de minimis: on an objective assessment any reasonable person would discern that it was not a material operation in the construction of anything – the area in question is in precisely the same condition as it was for the preceding five years the applicant held the consent for. Their work accomplished nothing, prepared for nothing and indeed did nothing. It had no material impact.

Similar digging and back-filling work has since been performed all around the Craighouse site, including areas well outwith the delinated areas for 01/04599/FUL – as part of site investigations for their future plans. No planning consent was applied for or deemed necessary for these other digging and back-filling operations.

This is a clear example of a developer attempting to retain permission with no intention of undertaking the development by doing a token de minimis gesture.

C. Failure to properly discharge all suspensive conditions before commencing work.

The 01/04599/FUL final consent detailed several suspensive conditions, specifically conditions 4, 8, 10, 12 and 16. These conditions were not fully discharged before the claimed works were carried out, hence no lawful start occurred and 01/04599/FUL lapsed.

Many of the conditions specify that plans or further documentation be provided to the CEC. Some conditions also require that the developer undertake certain activities on-site or follow their plans before development can commence. It shall be shown below that in several instances, this did not happen.

Each of the suspensive conditions were obviously not specified frivolously: they were drafted well after the applicable 1998 Scottish Government Circular and there is more than sufficient specification to support their necessity. On inspection, it can be seen that the exceptions detailed in Whitley do not apply either. Therefore, any breach of a suspensive condition does go right to the heart of the consent and is not a lawful start.

1. Condition no. 4 – Archaeology

The text of condition 4 is as follows,

“No development shall take place within the campus until the applicant has secured the implementation of a programme of archaeological work, in accordance with a written scheme of investigation which has been submitted to and approved in writing by the Head of Planning & Strategy, having first been agreed by the City Archaeologist.”

Clearly this is a suspensive condition. It requires that the developer have a written scheme of investigation approved by the Head of Planning & Strategy and also the City Archaeologist; it also requires that the developer secure the implementation thereof.

Turning first to the written scheme of investigation. In the bundle relating to discharge of conditions on the CEC portal, there is an email from a “FreeServe” account dated 11^th June 2012 putatively from John Lawson, City Archaeologist, concerning the archaeological condition for 01/04599/FUL. The contents of the short email are repeated below,

“Ive had a look over the WSI prepared by Wardell Armstrong in relation to the archaeological condition atteched to app 01/00599/FU1 and find it acceptable. As is normal practice the should not be formally discharged until the work has been undertaken but i’m happy for work/developmentb to start on site.”

In trying to read through the numerous errors, the wording seems to imply that the suspensive condition should not be discharged. If the contrary position is adopted – that one cannot discern as much – then the default position must be assumed that he did not advise discharge, so the result is the same. He goes on to say that he is happy for work to commence on site, thankfully his role is advisory in nature and he was not the decision maker.

From what can be surmised the written scheme of investigation has not been approved in writing by the Head of Planning & Strategy.

In short summation, it was advised that the condition not be discharged at that point. At best one can say there was tacit approval of the written scheme of investigation.

Looking back to the wording of the suspensive condition, it says that no development can take place before the application has secured the implementation of the written scheme of investigation. The requirements of the written scheme of investigation are onerous. For example, item 4.2. requires that sixteen trial trenches of dimension 1.8m x 30m be dug prior to the evaluation commencing. Obviously, this has not happened.

One can immediately see that this suspensive condition was not discharged, therefore there was no lawful start and the consent lapsed.

There is a corollary in that if it is pleaded that the trench dug on the 22^nd June 2012 was for archaeological works then it can immediately be discounted as a material operation for the purposes of s27(4).

2. Condition no. 8 – Tree Protection

The text of condition no. 8 is as follows,

“Drawings showing measures to protect trees during construction are to be submitted and approved by Head of Planning and Strategy prior to incorporation in the contract with the builder and to be implemented before work is commenced on site. The drawings are to show:

• the construction and method statement of any development including, service trenches, roads, paths and car park areas and associated earthworks in the vicinity of mature trees.

• the alignment and specification of fences to protect trees during construction.

• the location of contractors’ compounds and access arrangements.

• the location of temporary spoil heaps and haul roads.”

Now, this condition is more stringent than condition no. 4, not least because it requires that the relevant drawings are to be approved by the Head of Planning and Strategyand incorporated in the contracts with the builders.

Discounting whether the drawings were approved by the Head of Planning and Strategy, the CEC did not make a formal notice discharging suspensive conditions until the 14^th June 2012. That means the CP would have to engage with builders between the 14^th June 2012 and 22^nd June 2012 and have the contract agreed in that time-frame. If the builders were engaged earlier, the drawings were unapproved; if they engaged later then the drawing cannot have formed part of their contract. Therefore, there were all of six days to create such a contract. The FoC would like confirmation in writing that this was indeed done, as to discharge the condition the CEC would have to have seen proof of such.

Again, the most important part of this suspensive condition is that is must be implemented before work may commence. The method statement as required by the condition sets out a mandatory order of works as described in Part 3 copied below,

“It is critical that protective measures, tree works and construction are undertaken in the correct order to ensure the long term viability of the existing tree resources. This section sets out the order in which works should be undertaken.

1. All tree works, including facilitative work

2. Erection of protective fencing

3. Site clearance

4. Construction

5. Landscaping outwith Construction Exclusion Zone (CEZ) (hard landscaping, earthworks)

6. Removal of protective fencing

7. Landscaping within CEZ (planting, seeding, mulching)”

Before the claimed works on 22^nd June 2012, there was no erection of protection fencing and certainly not to the specification in the relevant drawings. Furthermore the site was not cleared and one can assume the facilitative work was also not done. As such, any construction would not have been in accordance with the approved plans and therefore do not constitute a lawful start. Resulting, the consent must have lapsed.

3. Condition relating to other consents (marked as 18. on second list)

There is one final condition that is worded in the manner of a suspensive condition, albeit listed in the column for reasons on the original conditions. It reads,

“18. NB This consent is for planning permission only. Work must not begin until other necessary consents, eg listed building consent, have been obtained.”

It should be noted that the listed buildings consent expired in May 2007. Given the wording is of a suspensive condition, even by the most lax construction, it specifically prohibits work starting until the listed building consent is in place. Therefore, the work was not a lawful start and the consent lapsed.

D. The CEC issued a notice discharging the suspensive conditions that was not competent.

As detailed above, at least three of the suspensive conditions were not properly discharged. Despite this, a notice was sent on the 14^th June 2012 stating as much. In light of this, the notice was not competent. The CEC knew this to be so as early as July 2012 as the FoC informed the CEC of the same, yet the CEC took no action to rectify the situation.

Henry Boot Homes Limited v Bassetlaw District Council [2002] EWCA Civ 983 is instructive in this instance. It covers a very similar situation of a council accepting that work had started on a consented development, despite suspensive conditions not being implemented. This was challenged by a third party, which the council then accepted was a valid challenge and changed its view on the initiation of development.

Paragraph 52 states:

“Even more than many areas of public law which concern an individual and a public body, planning law is likely to have to reflect the fact that third parties and the public generally may have interests in any decision. I agree with what was said by Sullivan J in the present case at para 140:

‘… It is important at all times to remember the public nature of Town and Country Planning. It is not a matter for private agreement between developers and Local Planning Authorities.’”

This highlights the issue in relation to 01/04599/FUL: that it is not a private agreement between the developer and the council, where the council can choose not to require suspensive conditions to be implemented. The judgement in Henry Boot Homes goes on to suggest that if the developer wants to take on a development in a phased manner, whereby not all conditions are fully implemented, there is a statutory process to do so. The developer can apply for modification to the conditions to allow a phased development to go ahead, that statutory process describes how such a decision can be made and allows for public interest and public oversight to be taken into account.

The developer cannot have any legitimate expectation that it can take on the development in a phased manner, not implement the suspensive conditions or not go through the statutory process simply because it is running out of time on the planning consent. Notably, at the point of June 2012, it was more than ten years from the date of application so there is no excuse for mora in relation to implementing 01/04599/FUL.

Paragraph 54 of Henry Boot Homes supports this proposition:

“The scope, therefore, for waiver by non-statutory means of the need to comply with a condition must be extremely limited.”

Paragraph 55 continues:

“One of the reasons is that it is difficult to see how a legitimate expectation, said to derive from the conduct of the local authority, could operate so as to prevent an interested third party from questioning whether development has validly begun and whether the planning permission is still extant”

This judgement gives legal backing to FoC’s view that the council had no legal authority to issue a notice discharging the suspensive conditions.

Furthermore, the CP can have no legitimate expectation that it could keep the planning permission if it had not implemented those suspensive conditions.

Therefore, the clear course for the CEC is to reject its previous notice that work had started and instead state that the consent has lapsed and affirm that the developer in this instance has no recourse.

E. The original consent notice is not competent.

The original 01/04599/FUL and 01/04599/LBC applications were lodged in 2001 with the Development Quality Sub-Committee assessing them jointly and recommending conditional granting of both on the 15^th May 2002. The 01/04599/LBC was granted on 24^th May 2002 while the 01/04599/FUL consent was not granted until 26^th June 2007, by which time the LBC had expired.

The planning consent and Listed Building Consent were applied for jointly because the buildings (both the Grade A Listed buildings, and the new building) were to be joined together under ground.

1. The 01/04599/FUL consent notice is not competent because it involves changes to a listed building for which listed building consent had lapsed

1a. The 01/04599/FUL consent as issued could not be implemented without the listed buildings consent due to a condition explicitly specifying as such

To complete the 01/04599/FUL consent, the listed buildings consent is required. To undertake such work to a listed building without consent is a criminal offence. Without the listed building consent, the 01/04599/FUL consent obviously could not be completed and there is no reason to believe that listed buildings consent would be granted retrospectively, cf. Scottish Planing Policy 1 (SPP1), paragraph 57. When granted in June 2007, the 01/04599/FUL consent did not have any prospect of completion and is therefore not competent.

The actual 01/04599/FUL permission as issued in June 2007 states explicitly that “Work must not begin until other necessary consents, eg listed building consent, have been obtained”. Clearly the listed building consent had already expired, so the 01/04599/FUL consent could not be implemented without the applicant returning to obtain listed building consent. So in fact, the planning consent was never implementable.

2. The consent notice is not competent because officials acted without elected approval

The first line of the proposed consent document that the Development Quality Sub-Committee approved states:

“The development hereby permitted shall be commenced no later than five years from the date of this consent”.

The joint application they were voting on was two consents: the listed building consent was granted 24^th May 2002, while the planning consent was granted more than 5 years later on 26^th June 2007. This meant that officials were allowing work to start more than ten years after the meeting of the Development Quality Sub-Committee. This cannot have been their understanding or intention at the time. Officials were not acting within a reasonable understanding of the information put before the Development Quality Sub-Committee in 2002 and should have returned to the committee for approval in 2007.

3. The 01/04599/FUL consent notice is not competent because there were several material changes between the date that the Development Quality Sub-Committee decided upon the issue and granting of permission

In 2006, Napier University produced a new Estates Strategy in which it is decided to sell Craighouse and not proceed with the building and associated car-park. The original recommendation to the Development Quality Sub-Committee states “Given the logistics of the site, and the requirements of the university, a departure from policy is considered acceptable in this case”. So, the requirements of the university are a key material impact on the decision to grant consent and had changed between the point that the Development Quality Sub-Committee made its decision and granting of consent.

4. The 01/04599/FUL consent notice is not competent because there was an undue delay between the Development Quality Sub-Committee deciding upon the issue and granting of permission

The Development Quality Sub-Committee decided upon the issue on the 15^th May 2002, yet the 01/04599/FUL consent was not granted until 26^th June 2007, more than five years afterwards.

F. The CEC failed to properly undertake their statutory duties.

1. The CEC took a laissez-faire approach to discharge of the suspensive conditions

In correspondence between FoC and the CEC, it is clear that the planning officials responsible were unaware of the nature and location of the works. For example, in a letter to FoC dated 12^th July 2012, David Leslie states,

“If works were taking place which could impact on the trees then this condition would be relevant. However, given the nature, scale and location of the works that have taken place, there are no concerns relating to the trees.”

Given that the works involved digging in woodland, this statement seems strange. Irrespective of that, if the planners considered that development was commencing the conditions were, and are, of the utmost importance and cannot be blithely ignored.

In the same letter, David Leslie continues:

“However, given the nature of the consent and Craighouse Partnership’s current aspirations for the site, there is considerable doubt as to whether the arts facility will be progressed further”

The FoC consider that to be an expression of sentiment from CEC that they need not consider the suspensive conditions because the CEC does not expect the development to continue. Aside from the erroneous nature of such a stance, surely if the CEC presumed the development were not proceeding then it would have confirmed that the consent lapsed.

2. The CEC did not make available full and proper information concerning 01/04599/FUL to the public as required

This section of the complaint is about a process that occurred over five years ago. There was no opportunity at the proper time for members of the public to challenge this process as public information was not available.

On 4th August 2006, planning officials delivered an extensive list of planning consents and applications at the Craighouse site as part of a report to recommend to grant permission to Napier to erect a memorial in the grounds at Craighouse. However, despite this extensive list, 01/04599/FUL nor 01/04599/LBC were not included. Therefore, by 2006, it had become extremely difficult to obtain information about this planning consent.

FoC visited the planning archives several times during 2011 and 2012, as well as emailing questions to the CEC and telephoning. The FoC only obtained the planning consent decision notice itself after visiting on 5^th July 2012 and numerous protracted discussions. On all previous visits and after all previous requests they had obtained no copy of the decision notice was forthcoming, despite this being documentation that should be readily available toe the public. FoC did obtain a signed but undated and incomplete copy of the Section 75 agreement in 2011. This version was released on the CEC planning portal on 1^st October 2012, described as “copy of legal agreement”. Only after many visits, requests to multiple departments, and complaints to councillors, did they finally obtain a correct, dated and fully-executed copy of the Section 75 agreement.

Because the information that should have been made available publicly was not available earlier, there was no opportunity for anyone to complain earlier. So any complaint by the public as concerns the consent is not in mora but instead now at the earliest possible opportunity. This is the earliest opportunity that this planning consent can be challenged by members of the public and it is being so challenged.

3. The CEC failed on the material before them to adopt the correct approach of determining whether the consent was activated

The CEC did not adopt the correct approach when assessing whether the consent had been activated. The correct approach would have been,

i) ensure that the 01/04599/FUL consent was in a condition that it could be activated, in other words that the other consents it depended on were in place;

ii) determine whether all the suspensive conditions had been fully discharged;

iii) whether the claimed work was more than de minimis and pursuant to the 01/04599/FUL consent; and,

iv) whether the claimed work was indeed a material operation as regards s27(4) of the Act.

In relation to i., the CEC failed to determine whether 01/04599/LBC had expired or was required, as it is patently so.

In relation to ii., the CEC only appraised the documents sent by ME, not whether the suspensive conditions had actually been discharged. In fact, the suspensive conditions had not been discharged and the CEC took a particularly lax approach.

In relation to iii., there seems to be no assessment of this.

In relation to iv., there seems to have been no formal assessment of this.

For all four stages, the CEC either completely failed or did not sufficiently assess the situation.

The CEC’s confirmation to ME that the consent had been activated was therefore a decision that erred in law, was not reasonably arrived at on the facts, arguably negligent and made ultra vires.

Finally, the decision to notify ME that it accepts work started could be potentially be viewed as a biased decision as the CEC stands to gain financially through the s75 agreement.