About this case

Case name

Patrick Edwardson v The Scottish Ministers

Case reference number

XA12/23

Date of hearing

Wednesday 15 November 2023

Division

First

Judges

Lord President, Lord Pentland and Lord Boyd of Duncansby

Agents and Counsel

For the Appellant (Patrick Edwardson)

• Agents: Brodies
• Counsel: Kenneth Young

Case description

This is an appeal under section 239 of the Town and Country Planning (Scotland) Act 1997 against a decision of the Scottish Ministers to quash an Enforcement Notice issued by East Lothian Council.

The Humbie Motorcross Track was built on land at Bughtknowe Farm, Humbie, East Lothian by the owners and occupiers of that land, the Nisbet family, in October 2018. East Lothian Council served an Enforcement Notice on the Nisbets on 14 October 2022. The Notice alleged that, in (i) developing the racetrack and (ii) changing the use of the land from agricultural to commercial use, without the grant of necessary planning permission, the Nisbets had breached planning control. The Notice instructed the Nisbets to demolish the racetrack and any fencing and signage for it and to cease using the land as a racetrack, permanently.

The Nisbets appealed the Notice to the Scottish Ministers under section 130 of the 1997 Act. They asserted that construction of the racetrack had been substantially completed on 13 October 2018. Since section 124(1) of the Act provides that enforcement action may only be taken against unauthorised development of land within four years of the date on which the development was substantially completed, the Nisbets argued that the Notice had been issued out of time. They asserted that they did not intend to use the land as a racetrack for more than 28 days in a year, and that the land would revert to agricultural use between motorcross events. The effect of this was that the racetrack was a permitted development under the Town and Country Planning (General Permitted Development) (Scotland) Order 1992. The Scottish Ministers agreed with the Nisbets. They found that the Notice was served out of time and that the racetrack was a permitted development. They allowed the appeal and quashed the Notice.

The appellant, Mr Patrick Edwardson, is a neighbour of the land at Bughtknowe Farm. He appeals the Scottish Ministers’ decision. He argues that the racetrack was not substantially completed by 13 October 2018 and that, therefore, the Notice was not served out of time. He contends that the Scottish Ministers failed to consider evidence before them which demonstrates that the land did not revert to agricultural use for significant periods of time, if at all. He asks the court to quash the Ministers’ decision.

The First Division will hear the appeal on Wednesday 15 November.