Insufficient justification to rule on lawfulness of motocross race track

09 Jan 2024

In striking down a reporter’s decision allowing an appeal against an enforcement notice issued by East Lothian Council, the Court of Session agreed with an objector that there was insufficient evidence to conclude that a motocross racetrack was lawful.

This enforcement notice required the owners of the facility them to cease using the land as a racetrack and to remove the track and associated fencing, signage and other structures. At appeal the reporter (DCS Number 400-043-816) found that the facility was lawful due to the passage of time and the enforcement notice was quashed.

The claimant asserted that the reporter had made an error in not treating the entirety of the development in an holistic manner. In particular he had not had sufficient regard as to whether the erection of a boundary fence was integral to the site’s use and operation, the fence being constructed after the 4 years required for immunity. Nor had he properly addressed the date when an access road had been constructed which would also have proved that the development was not lawful because it too had been under construction beyond the 4 years required.

Lord Boyd agreed that the reporter had failed to take into account the fact that the fencing was an integral part of the racetrack. The fact that the fencing might be erected at some point after the other components of the development without permission did not alter that fact, and this was an error in law. The reporter also further failed to consider whether in this case it was a necessary part of the commercial development that a new access road was required. The evidence indicated that the access road was still under construction beyond the 4 years required for immunity which would reinforce a conclusion that the development was not substantially complete four years before the notice was issued. The claim therefore succeeded.

Patrick Edwardson v The Scottish Ministers

Date: 19 December 2023

Ref: [2023] CSIH 45, 2023 WL 08720472