The First Division has quashed the decision of a Reporter, which had allowed an appeal by the operators of a Motocross track against an Enforcement Notice on the basis that it was served out of time . James Findlay KC and Kenneth Young of Terra Firma Chambers, instructed by Brodies LLP, appeared for the successful appellant.

The Humbie Motocross track was built on land at Bughtknowe Farm, Humbie, East Lothian. On 14 October 2022, East Lothian Council served an Enforcement Notice, which alleged two breaches of planning control being (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 Council instructed removal of the track. The Reporter found that the Notice had been served out of time, and quashed it, effectively meaning that the Motocross track could stay in place. The Reporter’s decision was ultimately quashed by the Inner House.

Giving the opinion of the Court, Lord Boyd of Duncansby accepted the arguments put forward for the appellant that the Reporter had reversed the burden of proof, and had not correctly analysed the evidence in respect of the date of substantial completion. Further, it was noted that where a development consists of a single operation, a holistic view to completion must be taken – even if individual elements might be capable of being completed as permitted development.

The Court went on to accept the argument for the appellant that the Reporter failed to properly consider a Facebook post, which indicated that the fences and the access road were not yet fully in place at the date of apparent completion. It was recognised that the Reporter did not have to mention every piece of evidence in his decision letter, but by failing to consider the effect of the fences or the access road on the development’s completion date he had erred. On a proper analysis, the fencing was an integral part of the racetrack.

The second ground related to the change of land use. The Court ultimately accepted the appellant’s position that the Reporter had further erred in respect of this ground. His position that the ground remained in agricultural use in between races was described as difficult to understand. The Court explained:

“First, what is now in place is a racetrack, not a field or other agricultural use. The racetrack is not dismantled at the end of every race. It remains in place. Secondly, the facts that sheep might graze there from time to time, or that the grass is cut and used for silage, are incidental to its primary purpose as a racetrack. Since the area around the track is grass it has to be either grazed or cut to maintain it. That does not turn the racetrack into a field. Thirdly, the reporter has failed to have regard to the evidence from Mr Edwardson and another neighbour to the effect that sheep had not grazed in the area of the racetrack for three out of the last four years.”

The reporter’s decision notice was quashed, and the appeal in relation to the Notice was remitted to the Scottish Ministers for reconsideration by a different Reporter.