G. HAMILTON (TULLOCHGRIBBAN MAINS) LIMITED FOR JUDICIAL REVIEW v. , 13 January 2009, Lady Clark Of Calton

OUTER HOUSE, COURT OF SESSION

[2009] CSOH 4

P1531/08

OPINION OF

LADY CLARK OF CALTON

in the Petition

G HAMILTON (TULLOCHGRIBBAN MAINS) LIMITED

Petitioners;

For

Judicial Review

________________

Petitioner: Campbell QC, Brodie; Archibald Campbell & Harley WS

First Respondents: Smith QC; Biggart Baillie LLP

Second Respondents: Martin QC; Tods Murray LLP

13 January 2009

Summary
[1] In this case the petitioners are heritable proprietors of an area of land at Tullochgribban (also known as Tullochgorum). The petitioners seek declaratory and reduction remedies, in terms of paragraph 11 of the petition, in relation to the approval by the first respondents of purported new planning conditions applicable to a dormant mineral site at Tullochgribban. The first respondents are the Highland Council who are the planning authority for the purpose of approving said conditions in terms of the Town and Country Planning (Scotland) Act 1997, Schedule 9 (hereinafter referred to as "Schedule 9"). The second respondents, Ennstone Thistle Limited, are a company which have made an application under Schedule 9 paragraph 9 for approval of a schedule of conditions in respect of mineral rights over an area of land broadly coextensive with the said area of land at Tullochgribban. The case came before me for a first hearing and I heard submissions from parties over two days.

Submissions on behalf of the petitioners
[2] Senior counsel for the petitioners set out the heritable rights of the petitioners and second respondents under reference to paragraph 2 of the petition and 6/1 - 8 of process. Under reference to paragraph 3 of the petition, he explained that the second respondents' predecessor in title obtained planning permission in 1965 (the "1965 permission"). That permission is set out in 6/3 of process. The 1965 permission permitted, "the working of minerals on land at Tullochgorum, Carrbridge, in accordance with the plan (s) submitted to the council and docketed as relative hereto" subject to certain specified conditions. Senior counsel submitted that one of the difficulties in the case is that no plan or any copies thereof are now known to exist. Despite a difference in the names Tullochgribban and Tullochgorum, it was not disputed that both names referred to the same location which is shown on the map in the schedule attached to the petition. The said map indicates three boundary areas to which reference was made in this dispute between the parties. The larger red boundary area, in broad terms, represents the area in respect of which the mineral rights are held by the second respondents and the area of land owned by the petitioners. A green boundary area and a yellow boundary area are also delineated on said map. The former corresponds with the green boundary area on the plan 6/6/3 of process. Senior counsel for the petitioner submitted that as a matter of fact, the mineral works extended to the yellow area and were not limited to the area of ground delineated in green. (Said areas are hereinafter referred to respectively as the "red" or "yellow" or "green" boundary.)

[3] Senior counsel for the petitioners set out the legislative framework. Certain legislative provisions were introduced in the Environment Act 1995 ("the 1995 Act") section 6 and Schedule 13 in respect of permissions such as 6/3 of process for the winning and working of minerals granted by any planning authority between 1948 and 1982. There was a re-enactment of said statutory provisions in essentially the same terms in respect of Scotland by the Town and Country Planning (Scotland) Act 1997 ("the 1997 Act") Schedule 9. The aforesaid provisions of the 1997 Act had a commencement date of 28 May 1997. Against the background of the legislative framework, in particular Schedule 9, senior counsel made the following submissions about the factual history under reference to various documents. The first respondents as the planning authority, issued a first list, under the 1995 Act. That list did not include Tullochgribban Quarry (6/4 of process). Tilcon (Scotland) Limited the then heritable proprietors of the mineral rights at Tullochgribban, applied for the inclusion of Tullochgribban Quarry on the first list in a letter with attachment and plan received by the planning authority on 7 May 1997, (6/5/1-3 of process). In terms of said letter (6/5/1 of process), Tilcon (Scotland) Limited applied to the planning authority for inclusion of Tullochgribban Quarry on the first list as a Phase 1 active site. The site plan attached corresponds to the red boundary area (6/5/3). The first respondents gave notice by letter to Tilcon (Scotland) Limited dated 15 July 1997: "that the above mineral site..has been added to the first list of sites prepared by the Council as a dormant site. The appropriate reference sheet and site plan relating to this additional entry are enclosed. As this site has been classified as dormant, no development consisting of the winning and working of minerals or involving the depositing of mineral waste may lawfully be carried out until new planning conditions have been submitted to, and approved by, the Council" (6/6/1 of process) The plan attached to the said letter, notifying the listing of the mineral site, showed an area defined by the green boundary area (6/6/3 of process). The reference sheet was a single written page setting out basic details in respect of the site (6/6/2 of process). Senior counsel submitted that the planning authority did not agree to the request to include the larger red boundary area and did not agree that the site was an active site. Senior counsel submitted that Tilcon exercised no right of appeal in relation to the first respondents' decision of 15 July 1997. Such a right of appeal was provided in terms of Schedule 9 paragraph 6 (11).

[4] It was submitted by senior counsel for the petitioners that the next relevant event occurred in or about 2006 when land agents for the second respondents became involved in discussions with the first respondents to agree new conditions to which the relevant planning permission would be subject to enable activation of the dormant Tullochgribban site. Thereafter there was correspondence between said land agents and the first respondents (6/7/1-4 of process and 6/8) whereby the first respondents agreed to proceed on a boundary corresponding to the red boundary area with some adjustment. The details are set out in said correspondence. Thereafter on 27 April 2007 the second respondents applied to the first respondents for approval of a schedule of conditions to which the 1965 permission would be subject in terms of Schedule 9 paragraph 9. Senior counsel explained that formal determination of the said application was presently pending before the first respondents. He submitted that it is plain from the correspondence, and in particular 6/8 of process, that the first respondents are purporting to agree that the area over which conditions will be imposed is an adjusted red boundary area.

[5] The criticism made by senior counsel for the petitioners was that the first respondents have commenced or purported to deal with the application by the second respondents on the basis that the mineral site listed was the site defined by the adjusted red boundary area, not the more limited green boundary area which was the area shown on the site plan referred to in the listing decision 6/6/1 to 6/6/3 of process. He submitted this was the critical issue in the case.

[6] The legal submission of senior counsel for the petitioners may be summarised as follows: in purporting to determine an application for approval of conditions in respect of the 1965 planning permission, the first respondents had acted ultra vires in determining that it is entitled to do so on the basis of the adjusted red boundary area, an area of ground larger than that referred to in 6/6/1-3 of process. Senior counsel submitted that it is not disputed that the plan which defines the area of land to which the 1965 planning permission extends is missing and was missing at the time of the listing in 1997. He submitted under reference to Schedule 9 paragraph (12) that when the then planning authority issued the first list (6/4 of process), the Tullochgribban site was not included in the list of mineral sites. He submitted under reference to Schedule 9 paragraph (12) that the legal effect of that, had no action been taken on behalf of the second respondents, would have been that the planning permission which existed in respect of the Tullochgribban site would have been extinguished. He submitted that it is plain from the legislation that a pre existing right of planning permission may be extinguished in full if listing is not achieved timeously. In this case full extinction of planning permission did not result because application was made for inclusion of Tullochgribban on the first list as a Phase 1 active site (6/5/1-3 of process). The application referred to a plan showing the red boundary area. It was submitted that the planning authority were entitled to accede to said application in respect of all, or part only, of the land identified in the application. The planning authority were also entitled to decide that it was a dormant site not an active site. The planning authority was entitled to list the site which it considered to be correct, in the sense that there had been issued a relevant planning permission in respect of the site. The planning authority was not limited to listing what was submitted to it by an applicant for inclusion on the list. Senior counsel submitted that on a proper interpretation of the correspondence of 15 July and the enclosures (6/6/1-3 of process) it is plain that the planning authority, by the administrative act in response to the application, made its decision. That decision inter alia listed a site identified and specified by the green boundary area not the red boundary area for which application had been made. The only inference is that the site listed as a dormant site is the site referred to in the plan attached to the decision in the letter of 15 July 1997, that is the green boundary area. Senior counsel submitted that it follows that what is listed is the site described in the plan, that is the green boundary area and that is the extent of the site which can legally be subject to planning conditions in terms of the legislation.

[7] Senior counsel submitted that in response to the listing decision of 15 July 1997, the second respondents had a right of appeal. No appeal was taken. He submitted that it follows as a matter of law in terms of Schedule 9 paragraph 6 (11)(b) and paragraph 12 that any planning permission which extended beyond the green boundary area is extinguished. He submitted that as the map was missing, the extent of the 1965 planning permission was in fact unknown. The only known publicly recorded boundary of the listed dormant site is the green boundary area. To give purpose to the legislation, it is essential that both the applicant and the public have some means of identifying what site is listed. The planning authority were well aware, as is apparent from the letter of 15 July 1997, that the plan attached to the 1965 planning permission was missing. The only specification of what site was being listed is contained in the letter and accompanying correspondence of 15 July 1997. That correspondence is clear in its terms. It was not intra vires of the first respondents to attempt to reopen the boundary issue by reference to adminicals of evidence about what the plan attached to the 1965 planning permission might have covered. In any event, senior counsel did not accept that information in the affidavit was acceptable to prove that the original planning permission extended to the red boundary area

[8] Senior counsel for the petitioner referred to R v North Lincolnshire Council, ex parte Horticultural and Garden Products Sales (Humberside) Limited 1998 ENV.L.R. 295. He relied on this case to demonstrate that the equivalent legislation applicable in England had the result of the extinguishing a pre-existing planning permission. He submitted that for present purposes that legislation is identical to Schedule 9. It was recognised in the case that the purpose of the legislation was to secure a definitive list of old mineral planning permissions continuing to subsist. The purpose was also to secure a new regime in respect of old mineral planning permissions in order to ensure that there are attached to them conditions which adequately protect the environment during the operational period of the site with provision for appropriate aftercare and restoration and modern working practices. It was also emphasised that there should be certainty and finality as to the site enjoying mineral planning permission.

Submissions on behalf of the first respondents
[9] Senior counsel referred to the first respondents' answers. He also sought to rely on the affidavit of Andrew Brown (7/4 of process) in order to demonstrate the reasons that the first respondents were satisfied that the red area was the area for which planning permission subsists.

[10] The correspondence relied on by the petitioners was not in dispute. It was admitted that the plan attached to the 1965 permission could not be found in 1997 or subsequently. It was not in dispute that the respondents are minded to treat the red area as adjusted as the area for which planning permission subsists for the purposes of the application for conditions. There was dispute about the legal effect of the correspondence and listing in 1997.

[11] It was submitted on behalf of the first respondents that the legal effect of the listing of Tullochgribban, Carrbridge, Baddingdock and Strathspey (7/1 of process) was to preserve the pre-existing 1965 planning permission in respect of said site in terms of Schedule 9 paragraph 12 (4). Senior counsel accepted that guidance had been issued which referred to further specification and a plan (7/2 of process par 28). The guidance was not made part of the rules of the statutory scheme which were relevant in the present case. He contrasted the specific reference in Schedule 9 paragraph 1 (3) to the requirement to "have regard to any guidance" with the absence of such specific reference in relation to other parts of Schedule 9. He submitted that the statutory scheme of listing merely required a listing of the site without any definition of boundaries in the listing. The planning authority, in order to satisfy the terms of the legislation and preserve the planning permission, merely had to list the site. The statutory listing process was a preliminary exercise, intended to be done quickly and without extensive investigation. The legislation was not intended to be interpreted in such a way as to deprive property owners of valuable rights. Senior counsel referred to Craie's statute law, paragraph 19.8, a passage dealing with the presumption against expropriation. He pointed out that there were no compensation provisions in relation to the extinction in whole or in part of planning permission. He emphasised, under reference to paragraph 3 (1) and the definition of mineral site in paragraph 1 (2), that what was being listed for the purposes of Schedule 9 is land to which a relevant planning permission relates. That is the reason the list may stand alone as the list refers to pre-existing recorded planning permissions in which the boundaries of the land subject to planning permission is defined and can be determined. It was at the next stage, where an applicant applies to the planning authority to determine the conditions to which the relevant planning permissions relate to the site are to be subject, that the applicants are required to give further specification about the site. This includes identification of the mineral site and any relevant planning permission relating to the site. It was at this next stage, if there was ambiguity about the boundaries of land to which planning permission applied, that the first respondents as planning authority were entitled to make a judgment based on the evidence and come to a view about the boundaries. Under reference to the affidavit of Andrew Brown (7/4 of process), senior counsel explained how the first respondents had approached the matter in the present case.

[12] Senior counsel submitted that if Schedule 9 was properly construed, it was plain that the legislation was not intended to give the planning authority power to "cut down" planning permission by listing only part of an area from a larger area to which the original planning permission applied. Although senior counsel conceded that the effect of paragraph 12 (4) is that in certain circumstances planning permission of a site not included in the first list shall cease to have effect, he emphasised that there were no words indicating that a planning permission might cease to have effect in relation to part of a site only. He also drew attention to paragraph 5 and pointed out that there were no provisions to re-advertise the amended first list and no provisions requiring the statutory listing or the paragraph 9 application for conditions to be intimated to land owners such as the petitioners. Although the listing is public, the main purpose of the legislative provisions is not to alter pre-existing planning permissions but to provide a mechanism particularly directed at the holders of planning permission, to ensure that they apply for appropriate conditions.

[13] Senior counsel stated that there were no averments in the petition critical of the methodology adopted by the first respondents in reaching their conclusion that planning permission extended to the red boundary area. The petitioners do not aver that as a matter of fact the pre existing planning permission before 1997 did not extend to the red boundary area. The foundation of the petition was limited and focused exclusively on the listing decision in 1997 and the effect thereof.

Submissions on behalf of the second respondents
[14] Senior counsel for the second respondents explained at the start of his submissions that he did not seek to rely on his plea to competency. He submitted that the proper approach to resolve the case was to dismiss this petition by sustaining the second respondents' plea to the relevancy. He submitted that no further procedure is necessary.

[15] Senior counsel submitted that the issue to be determined at first hearing was focused towards the end of paragraph 4 of the petition. The petitioners rely on the correspondence of 15 July 1997 (6/6/1-3 of process). The petitioners' case is that, there having been no appeal following said correspondence, the second respondents were not entitled to reopen the question of the extent of the land to which planning permission attached. The petitioners submit that as a matter of law, the effect of the absence of an appeal was to render any planning permission for land and/or minerals other than those on listed mineral sites as having ceased to have effect. Senior counsel submitted that the critical issue is whether in 1997, the then planning authority determined that the area of land to which planning permission related is that area within the green boundary area. If they did, that is the end of the matter. If they did not, it was submitted that it was open to the first respondents to consider and identify the land to which the relevant planning permission related at the date when the planning authority were asked to carry out their statutory function in terms of Schedule 9 paragraph 9. Senior counsel submitted that there are no other averments by the petitioner to found any other case of ultra vires actions on behalf of the first respondents. Senior counsel accepted that attention should be focused on the correspondence 6/6/1-3 of process. He submitted that it was plain from that correspondence that the planning authority listed Tullochgribban Quarry, Carrbridge as a dormant site. He accepted that 6/6/3 of process was in response to an application 6/6/1 of process but no part of that application was refused or positively excluded. The adding of the mineral site to the list by the planning authority demonstrating that the planning authority acceded to the application. There was no refusal which could be appealed under Schedule 9. Senior counsel also submitted that the relevant part of Schedule 9 which deals with listing does not make any reference to the guidance (7/2 of process). There is no provision in Schedule 9 that the listing must be accompanied by a reference sheet or plan. It is plain on the face of the correspondence that the planning authority accept that the plan attached is not the original definitive site plan.

[16] Senior counsel submitted that issues of disputed fact do not arise in this case on the basis of the grounds averred in the petition. There is no dispute that the plan is lost. There are no averments challenging the approach adopted by the first respondents in reaching their decision that the land to which the planning permission was attached is the red boundary area. The petitioners' case is periled on the issue of whether the correspondence 6/1-3 of process is definitive of the boundary area and that therefore the boundary area is the green boundary area. If the petitioners are wrong in law about that, there is no other challenge averred in the petition. In particular it is not averred by the petitioners that the first respondents were not entitled to adopt the method they used in order to come to a decision about the extent of the planning permission. Senior counsel referred to Staffordshire Moorlands District Council v Cartwright and another 1992 J of Planning and Environment law 138, in support of the general proposition that where there was an ambiguity in the planning permission arising from the absence of plans, the planning authority was entitled to look at the evidence which existed to reach a decision. That is what the planning authority did in the present case.

[17] Senior counsel then briefly set out the context of Schedule 9. I did not understand his submissions to be different from those made by senior counsel for the first respondents. He supplemented this by reference to the Town and Country Planning Act 1997, section 36 which sets out the duties on the planning authority to keep a public register containing certain information. He submitted that this was the method set out in the legislation by which the public were enabled to find out the extent of planning permission in any particular case. The listing procedure under Schedule 9 did not refer to this and was independent of it. The purpose of the listing procedure was different from the provisions in section 36.

[18] Senior counsel emphasised that the planning authority in creating the first list is creating a list of areas of land for which relevant planning permission exists. He drew attention to the structure and purpose of the legislation. In particular in relation to Schedule 9, paragraph 6, he submitted that if the planning authority consider that part only of the land or interest is, or forms part of, any dormant site, they shall accede to the application so far as it relates to that part of the land or interest but shall otherwise refuse the application. He submitted that an appeal is only available if an application is refused in whole or in part. He submitted that properly interpreted, there was no refusal in the present case. In the present case the planning authority acceded to the application albeit making plain that they had no definitive plan. That matter therefor remains open. Senior counsel drew attention to the wording of Schedule 9, paragraph 12 and submitted that that paragraph does not deal with planning permission ceasing to have effect in relation to part of a site. The cessation of planning permission in terms of paragraph 12 relates to the relevant planning permission relating to the site.

Discussion
The legislative structure
[19] Schedule 9 makes provision for the review of old mineral planning permissions. The Interpretation section provides:

"1. - (1) In this Schedule -...

'first list'....means the list preferred...pursuant to paragraph 3;

'mineral site' has the meaning given by sub-paragraph (2);....

'relevant planning permission' means any planning permission, other than an old mining permission or planning permission granted by a development order, granted after 30^th June 1948 for minerals development;.....

(2) For the purposes of this Schedule, but subject to sub-paragraph (3), 'mineral site' means -......

(b) in any other case, the land to which a relevant planning permission relates.

(4) Any reference (however expressed) in this Schedule to an old mining permission or a relevant planning permission relating to a mineral site is a reference to the mineral site, or some part of it, being the land to which the permission relates."

[20] Schedule 9 paragraph 2 has effect for the purposes of determining which mineral sites are Phase 1 sites, Phase 2 sites or neither. Paragraph 3 (1) provides that "a planning authority shall..prepare a list of mineral sites in their area (the "first list"). Paragraph 3 (3) provides that in respect of each site included in the first list, the list shall indicate whether the site is an active Phase 1 site, an active Phase 2 site or a dormant site. Paragraph 4 makes provision in relation to the preparation of the second list. Paragraph 5 makes provision in relation to advertisement of the first and second lists.

[21] Schedule 9, Paragraph 6 makes provision for applications for inclusion in the first list of sites not included in that list as originally preferred and states:

"6. -(1) Any person who is the owner of any land, or is entitled to an interest in a mineral, may, if that land or interest is not a mineral site included in the first list and does not form part of any mineral site included in that list apply to the planning authority for that land or interest to be indicated in that list."

(2) An application under sub-paragraph (1) shall be made no later than the day upon which expires, the period of three months from the day when the first list was first advertised in accordance with paragraph 5.

(3) Where the planning authority considers that -

(a) the land or interest is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application, or

(b) part only of the land or interest is, or forms part of, any dormant or active Phase I or II site, they shall accede to the application so far as it relates to that part of the land or interest,

but shall otherwise refuse the application.

(4) on acceding, whether in whole or in part, to an application made under sub paragraph (1), the planning authority shall amend the first list as follows.

(a) where they consider that the land or interest, or any part of the land or interest, is a dormant site or an active Phase I or II site, they shall add the mineral site consisting of the land or interest or, as the case may be, that part, to the first list and shall cause the list to indicate whether the site is an active Phase I site, an active Phase II site or dormant site;

(b) where they consider that the land or interest, or any part of the land or interest, forms part of any mineral site included in the first list, they shall amend the entry in the first list for that site accordingly....

(10) When a planning authority determine an application made under sub-paragraph (1), they shall notify the applicant in writing of their decision and, in a case where they have acceded to the application, whether in whole or in part, shall supply the applicant with details of any amendment to be made to the first or second list in accordance with sub-paragraph (4) or (8).

(11) Where a planning authority -

(a) refuse an application made under sub-paragraph (1), or

(b) accede to such an application only so far as it relates to part of the land or interest in respect of which it was made,

the applicant may by notice appeal to the Secretary of State.....

(13) An appeal under sub-paragraph (11) or (12) must be made by giving notice of appeal to the Secretary of State before the end of the period of six months beginning with - "

[22] Schedule 9 paragraph 9 provides that any person who is the owner of land, or who is entitled to an interest in a mineral, may, if that land or mineral is or... forms part of a dormant site ... apply to the planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject." Such an applicant must specify in writing various matters including identifying the mineral site to which the application relates, identifying any relevant planning permission relating to the site and set out the conditions to which the applicant proposes the permissions should be subject. In terms of paragraph 9 (5) when such an application is received, the planning authority shall determine the conditions to which each relevant planning permission relating to the site is to be subject. In terms of paragraph 11, there is a right to appeal against the determination of conditions.

[23] Paragraph 12 deals with permissions ceasing to have effect. Paragraph 12 states:

"....

(3) Subject to sub-paragraph (4), no relevant planning permission, which relates to a dormant site shall have effect to authorise the carrying out of minerals development unless -

(a) an application has been made under paragraph 9 in respect of that site, and

(b) that permission has effect in accordance with paragraph 9 (5).

(4) A relevant planning permission which relates to a Phase I or II site not included in the first list shall cease to have effect, except in so far as it imposes any restoration or aftercare condition, on the day following the last date on which an application under sub-paragraph (1) of paragraph 6 may be made in respect of that site unless an application has been made under that sub-paragraph by that date in which event, unless the site is added to that list, such a permission shall cease to have effect when the following conditions are met

(a) the proceedings on that application, including any proceedings on or in consequence of the application under section 239 have been determined, and

(b) any time for appealing under paragraph 6(11) or (12), or applying or further applying under paragraph 6(1), (where there is a right to do so has expired)."

[24] In Schedule 9, paragraph 15, there are compensation provisions in specified circumstances. These circumstances do not include compensation for a listing ceasing to have effect in full or part.

Discussion
[25] This is a case in which the statutory provisions and the factual background are complex. It is not disputed by the parties that following correspondence 6/5 and 6/6 of process, the first respondents listed Tullochgribban, Carrbridge, Baddingdock and Strathspey as a "dormant site" for the purposes of the Environment Act 1995 section 96 (7/1 of process). I note that the said listing appears to have taken place in July 1997 at a time when the statutory provisions had essentially been re-enacted in respect of Scotland by the Town & Country Planning (Scotland) Act 1997, section 74 and Schedule 9. The commencement date was 27 May 1997. There was no submission by any party that the relevant provisions of the Environment Act 1995 were in any material respect different from the relevant provisions re-enacted in the 1997 Act. There was no submission that esto the listing was made in July 1997, at a time when the 1997 Act was in force, that the listing under a reference to the Environment Act 1995 had any legal implications in relation to the issues in the present case. Counsel for all parties addressed me in relation to the terms of the relevant provisions of the 1997 Act. I deal with the submissions on that basis. For the avoidance of doubt, I am satisfied that the equivalent provisions in the 1995 Act, in relation to listing, are not in any material respect different from the provisions in the 1997 Act, Schedule 9. I deal therefore with the statutory provisions under reference to the 1997 Act which was the legislation about which I was addressed.

[26] In order to reach a decision in this case, I consider it necessary to construe the language of Schedule 9 of the 1997 Act and consider in the context of the statutory structure, the meaning and effect of the documents in 6/5, 6/6 and 7/1 of process. I am prepared to accept the submission of senior counsel for the petitioner based on R v North Lincolnshire Council to the effect that the purpose of the legislation was to secure a definitive list of old mineral planning permissions continuing to subsist and to secure a new regime in respect of old mineral planning permissions conditions which adequately protect the environment during the operational period of the site with provision for appropriate aftercare and restoration in modern working practices.

I do not however consider that this case assists with the difficulty in the present case which arises because of the loss of the plan(s) which accompanied the old planning permission.

[27] It is plain from the legislation that if the site is not listed in the first list and if an owner of any land or entitled to an interest in a mineral does not make timeous application for inclusion in the list, that the pre-existing planning permission will be extinguished. In this case timeous application was made for inclusion in the list. This is not a case which falls within Schedule 9 paragraph 2(a). That was conceded correctly in my opinion, on behalf of the petitioners. The circumstances of this case fall within the type of circumstance set out in Schedule 9 paragraph 2(b). In my opinion that means that when a planning authority in accordance with paragraph 3 prepares a list of mineral sites within their area (the "first list") what they are preparing is a list of "the land to which a relevant planning permission relates". I consider that the intention of the legislation in relation to review of old mineral planning permissions in Schedule 9, is not to permit the planning authority to change the boundaries of land by reducing or increasing an area of land to which a relevant planning permission has been granted at an earlier date. The listing procedure envisages a listing of something which pre-exits i.e. the planning permission granted at an earlier date in respect of mineral sites. The form and content of the list is not otherwise specified in Schedule 9. In relation to Schedule 9 paragraph 2 (b) there is no obligation on the planning authority to have regard to any guidance issued by the Secretary of State. That is to be contrasted with the provisions in Schedule 9 paragraph 3. In terms of Schedule 9 paragraph 6, an application may be made for inclusion in the first list of sites if land or interest is not a mineral site included in the first list and does not form part of any mineral site so included. I accept that theoretically the planning authority for some reason might consider that they would be prepared to list part only of the land or interest as forming part of any dormant or active site. But in that event it is provided that the planning authority shall accede to the application so far as it relates to that part of the land or interest but shall otherwise refuse the application.

[28] In the present case the listing by the first respondents which is to be found in 7/1 of process refers to the site name and this is a reference, in terms of Schedule 9 paragraph 2(b) to the land to which a relevant planning permission relates. By checking the register of planning permissions, in terms of Section 36 of the 1997 Act a member of the public or any other interested party should be able to discover that land defined. In the present case the 1965 permission permitted "the working of minerals on land at Tullochgorum, Carrbridge in accordance with the plan (s) submitted to the council and docketed as relevant hereto". By reference to that permission and the plan (s) it would be possible in the normal case to identify the land by boundary or otherwise to which a relevant planning permission relates. Obviously the difficulty arises in this case because the plan (s) has been missing since at least 1997. The logic of the submission on behalf of the petitioners is that even if the missing plan (s) was now found that would not affect the outcome of the case in relation to the boundary of land to which a relevant planning permission relates. The petitioners' submissions, which I summarise in paragraph 3, are to the effect that following the correspondence of 6/5 and 6/6 of process the correspondence, the first respondents as planning authority in effect restricted the land to which a relevant planning permission relates to the green boundary area when they made the listing in 7/1 of process. I do not consider that the submissions on behalf of the petitioners are well founded. I am of the opinion that the correspondence must be construed against the background of the statutory scheme. The application was an application to register Tullochgribban Quarry (known as Tullochgorum in respect of the planning permission) in terms of the planning permission 1964/798 granted on 12 February 1965. The original plan(s) attached to said planning permission was not enclosed and was not available to the first respondents. Whatever the first respondents thought they were listing at the time, they purported to list the site as Tullochgribban, Carrbridge in terms of the planning permission 12 February 1965 and planning reference ICC/1964/798. The first respondents further noted that "the site is referred to as "Tullochgorum" in the records of Inverness County Council". That Council originally granted the 1965 planning permission. It is also noted that the original definitive site plan is not available. In my opinion, the listing lists the site as defined in terms of the planning permission. The fact that neither the second respondents or the first respondents had available to them at the time, the plan(s) attached to the 1965 permission does not in my opinion alter what was listed. The fact the first respondents referred to a plan showing the green boundary area in correspondence does not in my opinion alter that. I am also persuaded that the listing and correspondence cannot be interpreted properly as a part refusal of the application in terms of Schedule 9, paragraph 6(3)(b). In the absence of any refusal, there is no appeal right which has not been exercised and no cessation of planning permission as a result thereof. I consider that the submissions made by senior counsel for the respondents, which I summarise in paragraphs 11-12 and 15-18, are well founded for the reasons they give.

[29] I accept that an issue of fact arises as to the extent of the boundaries of land to which the 1965 planning permission attached, in terms of planning reference ICC/1964/798 because of the absence of the original definitive plan(s). As I understand the grounds of the petition and the submissions on behalf of the petitioners, the petitioners do not accept the first respondents' approach to the determination of the boundaries. There are no averments in the petition and no submissions were made to found grounds of judicial review in relation to this aspect of the case. If such grounds had been put forward, I consider it would probably have been necessary to order some form of proof.

[30] I appoint the case to the By Order roll to permit parties to address me about disposal of the pleas in the light of my opinion and to address me in relation to expenses.