Case Preview: G Hamilton (Tullochgribban Mains) Ltd v Highland Council
22 Friday Jun 2012
In Baddenoch and Strathspey in the County of Inverness-shire, at a place called Tullochgribban, there lies a disused quarry. Minerals were last worked there in 1991 and the land is given over to peaceful highland agriculture. But the owner of the mineral deposits has decided that it might want to drive off the sheep and open the ground once again to win the minerals lying beneath.
The owner of the minerals is not the owner of the surface of the land. This is common under the Scottish system of landholding. Often the surface is conveyed to one person and the mineral rights, and the right to work the minerals, reserved to the seller. The mineral rights can then be transferred like any other interest in land.
Of course, to dig out the minerals, ownership is not enough. The owner needs planning permission. In the case of many dormant sites the planning permission was granted many years ago with very few conditions. Since 1991 planning authorities have been obliged to keep lists of active and disused mineral sites for which planning permission had been given. Once a site is entered on the list a process is triggered under which the planning permission is reconsidered and, if necessary, the conditions brought up to date, or the permission revoked. The law is to be found in Schedule 9 of the Town and Country Planning (Scotland) Act 1997.
In this case the planning authority, the Highland Council, decided to put the site at Tullochgribban on its list as a dormant mineral site. Planning permission for a site there had been granted in 1965. The council notified the owner of the minerals of its decision by a letter dated 15 July 1997. Sometime between 1965 and 1997 the site plan that had accompanied the 1965 planning permission had been lost.
The farming company that owned the surface of the land opposed the listing of the site and brought a petition for judicial review asking the Court of Session to quash the decision to list. The farmer argued that the listing was unlawful because of the absence of a definitive plan.
The Lord Ordinary (Lady Clark of Calton) dismissed the farmer’s petition. The Second Division of the Inner House of the Court of Session agreed with the Lord Ordinary:  CSIH 1, 2011 SC 361. Delivering the leading judgment, the Lord Justice-Clerk (Lord Gill) described the listing process as an administrative census of mineral sites in the planning authority’s area. It served only to start a procedure whereby the interested party could apply to the authority to determine the conditions that should govern the permission. There was no need, at the listing stage, to define the boundaries of the site. The question of where the boundaries lay and the conditions to be attached to the permission could be decided by the authority at a later stage. If the plan could not be found the planning authority could determine the boundary by reference to other evidence.
The point that was argued before the Inner House was a narrow one of statutory interpretation. Lord Gill, since promoted to Lord President of the Court of Session, provided compelling reasons for treating the listing process as simply triggering a procedure. The factual background, where the plan had been lost, is an unusual one. This is the kind of case that, had it originated in the Courts of England and Wales, would not have been allowed permission for an appeal to the Supreme Court.
Of course, a benefit of litigating in Scotland is that parties have access, without leave, to the Supreme Court. This allows a small jurisdiction to have its civil law shaped by one of the world’s leading courts. Parties who are involved in high value cases often take their chances in the Supreme Court because, in cases where much is at stake, the additional expense of the further appeal is not great. In this case the appeal was heard in one day (Wednesday, 20 June 2012). The Supreme Court has made avizandum (as we say in Scotland).