In the note appended to our Order of 28 June 2006 we summarised the recent procedural background. It is unnecessary to repeat this. Put shortly, we said that a hearing would be necessary to consider whether the applicants could establish their contention that there was a live planning consent to be taken into account at the date of valuation. We said that: “Although the respondents appear to say that even if there was a deemed planning consent, the value would not exceed £40,000, we think the question of whether any particular planning permission was kept alive by particular work is an issue which can be dealt with quite separately from that of the valuation consequences of such permission being extant. We would hope to hear all the applicants’ evidence bearing on the former on the day we have set down for hearing.
If we find that there is sufficient evidence in the applicants’ favour on the planning point to justify further enquiry we shall continue the hearing to allow such enquiry to take place and, if necessary to hear evidence bearing on the assessment of value. It seems clear that if we are against the applicants in relation to the “begun development” there is no further basis for contending that the settlement effected with Neilsons did not effectively exhaust the value of the subjects.”
A hearing was fixed for 14 August 2006. We recognised that applicants would not expect to be able to attend the hearing but our clerk wrote to say that if any other date would be more convenient he should advise within seven days. No such advice was received.
On the morning of the hearing we had sight of an email message from the applicants sent on Saturday 12 August seeking “a further short postponement to get our case in shape”. They had found a firm of solicitors prepared to take their case on legal aid. But the emergency application for legal aid had been refused. They wished to appeal. We also received a letter from a firm of solicitors, dated 10 August, saying that Mr Julien had “sought to instruct” them but that they had no papers. They asked for permission to uplift papers from the tribunal. However, the letter did not arrive until the morning of the hearing and nothing could usefully be done. The respondents opposed any further delay.
We could see no justification for discharge of the hearing. The applicants have had ample time to present their case on the short point which was down for hearing. The application was presented in December 1999. The solicitors initially acting for the applicants, Messrs Ledingham Chalmers, had been involved in various communings with the clerk about procedure. However, they ultimately advised that the agency had changed and from 6 January 2000, the applicants were represented by Messrs Maclay, Murray and Spens. The respondents submitted Answers timeously on 19 January 2000. The applicants then sought a sist to allow further preparation.
On 19 June 2000, Maclays intimated to the Tribunal that they found themselves in a position where they had to withdraw from acting. On 13 October Morton Fraser intimated that they were instructed and in December they advised that they had obtained legal aid to enable them to consider the files. On 3 January 2001 they intimated that they had considered the files and decided they could not assist the applicants. In February 2001 the applicants said they were instructing new solicitors.
There followed lengthy correspondence in relation to an unsuccessful attempt by the applicants to persuade the respondents to accept liability for their legal expenses. The procedure was also complicated by the action at the instance of the security holder Neilson. The Tribunal clerk agreed to hold matters on an informal sist until that was resolved. By September 2003 the clerk understood that a separate litigation involving the Neilson title had been resolved. He intimated to parties a desire to make progress.
In June 2004, the applicants wrote to say that they could not get legal aid. In August they wrote confirming that they based their case on a “begun development”. They relied on the tribunal to consider it on the written material but offered to attend if necessary. After various communings, the tribunal invited the respondents to bring matters up to date, setting out their position formally by way of Minute or Motion.
The respondents responded on 14 December by way of motion for dismissal providing detail of the settlement with the security holder and asserting that the secured claim had exceeded the value of the subjects. There was accordingly no surplus and the respondents as promoters were entitled to discharge. This was intimated to the applicant by email on 15 December asking for a response by 20 January. The applicant sought an extension of time for this and was allowed until 31 March.
On 15 March 2006 the applicants intimated that another solicitor had been asked to act and to obtain legal aid. On 28 April that solicitor, Kenneth F Brown, wrote to ask the tribunal to sist for seven days to allow him to attempt to obtain sufficient information to apply for legal aid. This was allowed. On 3 May he sent to the tribunal a copy of a letter to the applicants stressing that he had not agreed to act for them and pointing to the evidential difficulties they faced.
On 4 May the applicants wrote seeking further time to find a solicitor. The major part of the letter set out their concerns in relation to the proprieties of the compulsory procedure. As discussed in our last note that is not a matter for the Tribunal. In relation to quantum they repeated that their argument depended on the proposition that there was a “begun development” by virtue of the “trial pits to the foundation” (sic).
We heard the motion to sist and the respondents’ motion to dismiss on 26 June. We have dealt with the reasons for refusing the motion to sist at that time. On 14 August, we took the view that the last minute attempt to seek a further sist added nothing to the argument. We refused the sist and heard submissions on the merits of the claim that there was a “begun development”.
The respondents’ counsel, Mr Haddow, said that, on the face of it, this depended on the terms of three documents produced by the respondents. There was planning permission of 15 March 1982. This related to conversion of Old Drylaw House and was essentially irrelevant to the claim that there was live permission for new housing. The relevant planning permission was that of 6 October 1982 giving consent to “construct 34 residential units”.
Counsel took us to the provisions of the Town and Country Planning (Scotland) Act 1972, in force at all relevant times. In terms of section 38, development must be begun not later than five years beginning with the date on which the permission is granted. Section 40 defined development for this purpose by reference to “specified operations”. These were, in turn defined by section 40, at subsection (2). There was, he submitted, no evidence of anything falling within the definitions.
The only evidence of any supposed “development” came from the letter from Ove Arup & Partners dated 23 September 1982 to Peter Julien Associates. It dealt with “trial pits” excavated on the previous day, 22 September. We think it abundantly plain from the terms of the letter that these were pits dug to allow skilled independent experts to provide advice on the suitability of the subsoil to support building of houses. It is clear from the letter that the engineers distinguished between “preliminary assessments of likely foundation conditions” and “full site investigations and foundation designs”. The conclusion was that there was nothing which would “indicate that shallow foundations could not be designed to safely support four-storey housing blocks … anywhere on the site.” This was plainly of the nature of a preliminary assessment
The letter does give an indication that the prospective developers had previously carried out investigations of some sort. It gives no indication that matters had progressed to the stage of designing foundations.
We are satisfied that the excavations on 22 September did not fall within the description of “the digging of a trench which is to contain the foundations of a building”. That plainly was not the purpose. There is nothing to suggest that the excavation could have been used as part of a foundation but, in any event, we are satisfied this would have been no more than chance. The excavation was for the purpose of finding out whether foundations could be placed in the area. It could not be said that the trench “was to contain the foundations”.
There is, accordingly, no evidence of any “specified operation”. We are aware that the applicant avers that on 22 September Ove Arup dug “trenches and trial pits”. He has placed his reliance on “trenches”. But, having regard to the terms of this letter it is in the highest degree unlikely that anything beyond trial pits were excavated by Ove Arup. They would not have advised on the trial pits in the way they did if there had been any separate excavation intended to be used as foundations.
Mr Haddow also directed us to the terms of their expert valuation report. This included an assessment assuming planning permission for a residential development to have been in place at the valuation date. There was evidence of an open market offer having been made, conditional on planning consent. The report supported the view that even with planning consent, the value did not exceed £40,000, the figure at which settlement with the creditor had been made. However, this evidence was not fully tested. It proceeded on various assumptions which might not have been reliable. We base our decision on our conclusion that there was no basis upon which it could be said that there was planning consent for housing development available at the valuation date.
It may be added that we are aware that this matter was investigated by Mr Penman, the reporter at the Public Local Inquiry on the C.P.O., who heard evidence from Mr Julien. It was plain that Mr Julien was relying entirely on the Ove Arup investigation and his own recollection that there had been a JCB on site in connection with that application. The reporter reached a decision on the basis that the permissions could not be regarded as extant unless it can be “shown (as it has not been shown) that at a later date the objectors first secured detailed approval as required and then commenced development within the meaning of the Planning Acts”.
The respondents did not attempt to present argument based on timing and we note that the reporter did not attempt to deal with the provisions of section 29 of the 1972 Act which is relied upon by the applicants in their pleadings in the present case. They contend that these provisions have the effect that the work on 22 September was authorised retrospectively by the permission on 6 October. We are not satisfied that the circumstances of the present case fall within the scope of section 29. There is no indication that the planning application made any reference to the development having been carried out. But, it is unnecessary for us to address that question. We have accepted, for present purposes, that planning consent might be kept alive by relevant work started before the consent itself. We, accordingly, accept that the reporter’s conclusion has no bearing on the decision we have reached on the merits. However, it may be said that the fact that this issue was explored before the reporter in November 1992 does support our conclusion that the applicants have had ample opportunity to present their evidence on this matter.
At the end of the hearing we intimated our decision and the respondents accordingly sought expenses in the usual way. Where there are no specialities, such as sealed offers, expenses must normally follow success. An award of expenses is based entirely on liability for the cost of proceedings. When there is no legal aid, it is well established that the respective means of the parties are not to be taken into account. In all the circumstances we felt bound to grant the motion. It may be added that we were aware that the applicants had sought legal aid and might have had some limited legal aid assistance. However, no relevant legal aid certificate was ever lodged and, from the terms of the correspondence, it appears that any legal aid granted was limited to advice. This has no bearing on liability for expenses.
We were asked to certify the cause as suitable for taxation on the Court of Session scale. However we see no justification for this and any taxation will proceed on the usual Sheriff Court scale. It is common to have counsel in such cases and we certify the present cause as suitable for the employment of counsel. However, we have refused to certify it as appropriate for senior counsel.