Scottish Court of Session Decisions

City Edinburgh Council v. Scottish Ministers [2002] ScotCS 262 (17 September 2002)

OUTER HOUSE, COURT OF SESSION
XA128/01	OPINION OF LORD EASSIE in the appeal to the Court of Session by THE CITY OF EDINBURGH COUNCIL Appellants: against THE SCOTTISH MINISTERS Respondents: respecting a decision of the respondents by their Reporter dated 21 May 2001 and communicated to the appellants in May 2001 ________________

 

 

Appellants: Armstrong; Edward Bain, LLB, Solicitor, City of Edinburgh Council

Respondents: Ms Crawford; Richard Henderson, Solicitor, Scottish Executive

17 September 2002

1. This is an appeal presented pursuant to Sections 57 and 58 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 - "the Act" - against a decision of a reporter appointed by the Scottish Ministers to hear and determine an appeal to the Scottish Ministers under Section 35 of the Act against a listed building enforcement notice issued by the local planning authority. The appeal to the Court of Session is brought by the planning authority and has been remitted for hearing in the Outer House in terms Rule of Court 41.44(1).
2. The listed building with which these proceedings are concerned is situated in Edinburgh and is described by the reporter in paragraph 2 of his decision letter in these terms:

"The appeal property is part of a 'B' listed classical 2-storey terrace of original townhouses on the north east side of Bellvue close to its junction with East Claremont Street within the New Town Outstanding Conservation Area. At the time of my inspection the originally square shaped room in question was in use as an office, but I understand that in the tourist season it is used as a bedroom as part of a guest house. It has an elaborate plaster ceiling and extended cornice. In one corner an area has been partitioned off to form an en-suite bathroom; its partition walls do not extend as far up as the cornice. The room has windows on the principal elevation facing south west: at the time of my inspection, these windows had net curtains. The front garden is about 5m deep, and there is a low stone wall and a high privet hedge at the heel of the footpath".

3. Put shortly, Section 34 of the Act empowers a planning authority to serve a listed building enforcement notice where there has been a contravention of Section 8(1) or (2) of the Act. In turn, Section 8(1) of the Act refers to a contravention of Section 6 of the Act, which states that:

"Subject to the following provisions of this Act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised."

The contravention of Section 6 alleged in the present case was libelled in the listed building enforcement notice as:

"Without listed building consent, the erection of full height partition walls to form an en-suite bathroom within the front, right hand (as viewed from the street) principal room on the ground floor of the said townhouse ...."

The steps required to remedy the breach of listing building control were specified in the enforcement notice as follows:

"Remove the unauthorised partition walls forming the en-suite bathroom from the front, right hand (as viewed from the street) principal room on the ground floor of the townhouse at [the address in question] and repair any damage caused to the architectural features of the room by the works to erect or remove the unauthorised partition walls."

4. In appealing to the Scottish Ministers against the listed building enforcement notice the owner invoked three of the possible grounds of appeal set out in Section 35 of the Act, namely grounds (b), (c) and (e) which are in these terms:

"(b)  that the matters alleged to constitute a contravention of Section 8(1)

or (2) have not occurred;

(c)  that those matters (if they occurred) do not constitute such a contravention;

...

(e)  that listed building consent ought to be granted for the works, or that any relevant condition of such consent which has been granted ought to be discharged, or different conditions substituted;"

5. The point taken by the owner under ground (b) was to the effect that the description of the contravention wrongly described the partitions as being "full height" whereas the structure of which complaint was made did not extend fully to the ceiling. The reporter dismissed this ground of the appeal to him on the basis that this mis-description of the offending structure did not create any doubt as to the structure in question and the notice could properly be corrected. In the present proceedings no issue arises respecting the reporter's decision on that point.
6. The second ground - paragraph (c) of Section 35(1) of the Act - raises the question whether the allegedly offending works, namely the creation of a toilet and bathroom within the front room of the ground floor of the house in a partitioned enclosure not extending to full height constituted something requiring listed building consent as being an alteration which "... in any manner would affect ... [the] character [of the listed building] as a building of special architectural or historical interest". The reporter concluded that the offending works did indeed have such an effect on the character of the building and accordingly did require listed building consent. He expresses his conclusion, in paragraph 19 of the decision letter, thus:

"In my opinion, the character of the appeal property is made up of a number of elements, including the proportions of the principal rooms facing the front and the moulded ceiling and extended cornice of the room in question. The ceiling and cornice are unaffected, but my inspection confirmed that the room's proportions have indeed been altered by the erection of the en-suite partition walls. Had the room been at the back away from the street frontage and from public view, it might be argued that the building's overall character had not been affected. However, it is undoubtedly a 'principal room' whose windows are on the front elevation, and I conclude that the appeal property has been altered in a manner that has affected its character as a listed building and that listed building consent is therefore required. The appeal under this ground also fails."

It may inferred from the reporter's placing the words principal room in quotation marks that he intended a reference to a passage from Historic Scotland's Memorandum of Guidance on listed buildings and conservation areas from which the reporter had previously quoted in paragraph 6 of his decision letter in these terms:

"The original plan form should always be respected and all major works of alteration limited to areas of secondary importance. It is consequently seldom possible to subdivide into several smaller units in an acceptable manner a larger property which retains its original plan form ... The entrance hall, main stair and principal apartments, especially where these are publicly accessible or lie to the front of the building and may be seen through windows from the street outside, should never be sub-divided or opened up. Where this has happened reinstatement should always be encouraged ... Where new internal walls cannot be avoided, they should not cut through timber detailing or enriched plaster decoration, but should be scribed around them to facilitate reinstatement at a later date ..."

7. Having thus concluded that the structure did indeed affect the character of the appeal property as a building of special architectural or historic interest the reporter then addressed himself to the issue whether it should receive listed building consent. He concluded that the offending structure should receive such consent but subject to a condition. The condition, which comprised subheads, was that:

"the partition walls shall be removed and the room restored to its original proportions within one month or whichever of these matters first occurs:

(1)  the permanent cessation of the use of the room as a bedroom;

(2)  the removal of the net curtains from the windows facing Bellvue;

(3)  the removal of the privet hedge at the heel of the footpath."

8. The present appellants, the planning authority, challenged the validity of this branch of the reporter's decision. Before summarising the submissions for the planning authority it is convenient to set out the reporter's reasons for reaching the view that listed building consent should be granted on those conditions. In paragraph 20 of the decision letter, the reporter defined the determining issues on this branch of the appeal to him as being:

"whether the alterations that have been carried out have an adverse effect on the character of the listed building; and, if so, whether there are other considerations which might nonetheless justify approval of the works".

The reporter then went on to say this, in paragraphs 21-23:

"21.  The appeal property is an important listed building in its own right, and as a significant part of both a classical listed terrace and an outstanding conservation area. The room in question is a 'principal room' of classical proportions, which have been affected by the creation of the en-suite bathroom. However, while the integrity of the appeal property as a listed building has been compromised, I am not convinced that this is so great as to justify the immediate removal of the offending structure. You [the owner] have been careful to ensure that the elaborate ceiling and extended cornice have not been damaged. I am also aware that, while the plumbing and internal fittings were presumably intended to be permanent, the partition walls are reversible and capable of being removed without damage to the ceiling or cornice, and you have suggested the possibility of a temporary permission. Crucially, in my opinion, the tall hedge at the heel of the footpath and the net curtains combine to make the partition walls virtually invisible from outside.

22.  I accept that what you have done is inconsistent with the guidance and policies which I have set out in paras 5-8 above, but I consider that the lack of damage to the ceiling and cornice combined with the almost complete invisibility of the partition walls from the front allow an exception to be made in this case without the creation of an undesirable precedent. I believe that the limited nature and impact of the works - together with the facts that the property is not in category A and that the room at times provides a service for visitors to the city - justify a pragmatic, rather than a purist approach. Your appeal under this ground therefore succeeds.

23.  However, I do not believe that an unrestricted consent is appropriate. Circumstances may change whereby the room is no longer required to be used as a bedroom, or the net curtains and/or the privet hedge are removed, resulting in the impact of the partition walls on the proportions of the room and hence also on the character of the listed building, terrace and conservation area becoming significantly more noticeable. For this reason, I consider your suggestion of a temporary permission to be relevant. I am aware of the guidance on temporary permissions in SODD Circular 4/1998, which states: "... it is undesirable to impose a condition requiring the demolition after a stated period of a building that is clearly intended to be permanent" , but I believe that the circumstances of this case justify such a condition. You have suggested a period of 5 years, but I consider it more appropriate to link removal of the en-suite structure to the cessation of the room's use as a bedroom, and the removal of the net curtains and the hedge."

9. Counsel for the planning authority advanced two principal submissions. First, the reporter erred in law and misdirected himself by failing to have regard to the presumption against development affecting the character of a listed building and by having regard to other, irrelevant considerations. Secondly, the conditions imposed were individually and collectively uncertain, unenforceable, unreasonable or irrelevant to listed building control and they could not individually or collectively be severed from the grant of listed building consent.
10. In advancing his first principal submission counsel for the planning authority referred to the Scottish Office published guidance in NPPG 18 (No. 6/5 of process), paragraphs 42 and 43. He pointed to that part of those paragraphs which indicated the primary, statutory requirement (in Section 14(2) of the Act) to have special regard to - "the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses". Counsel then stressed the guidance in paragraph 43 that there should be "a presumption against development that adversely affects the character of a listed building or its setting". The reporter, he said, made no reference to that presumption and did not relate it to the facts which he had found namely that the building was an important listed building; the room in which the structure had been erected was a principal room; the structure had affected the proportions and dimensions of that room and that its integrity as a listed building had been compromised. Given those findings the reporter failed to explain how the presumption against development affecting the character of the listed building was overcome other than by reference to what the reporter described as "crucial", namely the current existence of a hedge and the then current use of net curtains in the windows of the principal room in issue. If, as the reporter had plainly found, the structure adversely affected the character of the building it was irrelevant to say that the provision of curtains might make it not readily visible to the passing public on the footpath. The implication of the reporter's approach was that consent should be granted for any interior alteration, however seriously affecting the character of a listed building, provided that observation of its adverse effects were screened from the passing public by means of curtains . The reference to the appeal property's not being a category A listed building was also an irrelevant consideration since the category was not a guide to the building's sensitivity and in that respect counsel referred to Studdards & Hargreaves on Listed Buildings (3^rd ed.) para.4.11. Further, in proceeding initially on the view that the hedge and curtains provided a degree of invisibility to the passing public the reporter thereafter proceeded on a basis inconsistent with that view, and the memorandum of guidance, in his contemplation of the provision of a service to visitors by the use of the room as a bedroom during the tourist season. The room would therefore be to that extent publicly accessible and inconsistent with his earlier erroneous criterion of external visibility.
11. Counsel for the planning authority then turned to the terms of the condition imposed by the reporter and particularly the three subheads by which the reporter made provision for the bringing of the consent to an end.
12. As respects the first subhead ["permanent cessation of the use of the room as a bedroom"], counsel for the planning authority made the preliminary observation that at the time of the reporter's inspection the remainder of the principal room in question was not in use as a bedroom but as an office. The occupier apparently intended its use as a bedroom only on some seasonal basis. How, asked counsel, is a local planning authority to know whether a room within domestic premises is being used as a bedroom? Did use as a "bedroom" exclude use for other purposes such as a study? How could it be determined that a cessation of use as a bedroom was "permanent"? There was no obligation on a proprietor to seek planning consent for change of use for rooms within domestic premises. These matters individually and collectively rendered the condition unenforceable in any reasonable sense. Further, asked counsel, how could the use of the room and its partitioned sub-division, be material to the deleterious effect of the alterations on the character of the listed building? This meant that the condition was not only unenforceable but also irrelevant.
13. As respects the second subhead of the condition [net curtains] counsel for the planning authority submitted that this was similarly flawed as unreasonable, unenforceable and irrelevant. As a matter of drafting, the condition said nothing about whether the net curtains required to be kept closed. The curtains would be removed for cleaning and the question would then arise whether the consent must thereby come to an end. More importantly, the resort to the use of soft furnishings as a planning condition was wrong in principle, if only by reason of the difficulties inherent in enforcement and policing. Removal of net curtains was again not something for which any application for consent would be required.
14. Adverting to the third subhead, counsel submitted that, as with the net curtains, this was also irrelevant both to the question whether the character of the building had been adversely affected and to the extent of that adverse effect. Removal of the privet hedge was likewise something for which no application for consent would be required. Further, the condition said nothing about reducing the height of the hedge, or indeed its demise from natural causes.
15. Counsel went on to state that the granting of conditional planning consents was the subject of Circular 4/1998 (No. 6/6 of process) which set out appropriate tests. Those tests were also applicable to the grant of listed building consent - a proposition with which counsel for the respondents intimated her agreement. Reference was also made to paragraph 44 of NPPG 18 which states that conditions:

"must be necessary, relevant to preserving the building or its setting or any features of special architectural or historic interest, enforceable, precise and reasonable in all other respects".

That paragraph contained a brief summary of the import of Circular 4/1998 but counsel referred in particular to paragraph 105 of the latter in relation to the principles to temporary permissions. Counsel further submitted that the condition, with its subheads, was not properly severable from the reporter's decision to grant listed building consent and in regard to the general issue of the severability of planning conditions counsel referred to British Airports Authority v Secretary of State for Scotland 1979 S.C. 200.

16. In opposing the motion by counsel for the planning authority that the reporter's decision be quashed counsel for the respondents submitted that the decision was reasonable, correct in law and therefore intra vires. As part of a relatively detailed examination of the statutory provisions of the Act she stressed that the facts that a building was a listed building and that the works proposed affected its character as a building of special architectural or historic interest did not mean that the proposed works, so far as affecting the character of the building, could not be permitted. In deciding whether to grant listed building consent special regard had to be paid to the desirability of preserving - in this case - "any features of special architectural or historical interest" which the building possessed (Section 14(2) of the Act). The verb "to preserve" simply meant "to keep safe". Reference was made in that connection to South Lakeland District Council v Secretary of State for the Environment [ 1991] 1 W.L.R. 1322. The requirement "to have regard" to a plan or requirement did not equiparate with slavish adherence and in that respect counsel referred to Simpson v Edinburgh Corporation 1960 S.C. 313. It would perfectly proper for a reporter to assess all the relevant materials and circumstances and to exercise judgement as to whether to grant consent - c.f. City of Edinburgh Council v Secretary of State 1998 S.C. (HL) 33. While material such as the NPPG 18 and the Memorandum of Guidance might be of help to a reporter they were not legally binding - Freeport Leisure Plc v West Lothian Council 1999 S.L.T. 452. What one was required to do was to ascertain whether the reporter had failed to identify the right test and, if correctly identified, whether its application was erroneous or unreasonable.
17. Counsel for the respondents then turned to the decision letter and the reporter's reasons for concluding that grant of listed building consent subject to the condition might be justified. She pointed out that in paragraph 19 the reporter had noted that, had the room been at the back of the house, away from the frontage and the public view, it might have been contended that, not being a principal room, the building's overall character had not been affected by the offending structure. Accordingly, she submitted, visibility from the street was a relevant factor in a decision whether to grant listed building consent. Since, as the reporter noted, the ceiling and cornices were not damaged; the partitions forming the walls of the bathroom were reversible (by which one assumes "removable") and the disputed structure, by reason of the existence of the net curtains and the hedge was not readily visible from the street, the reporter was entitled to conclude that the works were limited in nature and impact. The works being limited in those two respects it could not be said that he had applied the wrong tests with the result that his judgement was flawed on that account.
18. As regards the condition attached, counsel for the respondents submitted that the condition, including all its subheads, was only imposed for the event of future change of circumstances. One of the elements prominent in the reporter's decision had been visibility from the street. Subheads (2) and (3) were pertinent to visibility and therefore relevant. Subhead (1) reflected the fact that bathroom and toilet installed in the principal room were so installed because of an intention to use the rest of that room as a bedroom and the need for the former would cease on a decision not to use the latter as a bedroom. Counsel further submitted that on a reasonable view all of the subheads of the condition were capable of enforcement. Whether a room was being used as a bedroom was a question of fact which might be ascertained. Whether the privet hedge had been removed was readily ascertainable. Whether the net curtains had been removed was also readily ascertainable by means of outside inspection and it was implicit in the decision that a temporary removal of the net curtains for the purposes of cleaning would be permissible.
19. In addressing these competent submissions I find it convenient first to examine the terms of the condition which the reporter attached to the grant of listed building consent and which he evidently regarded as highly material to his decision to grant consent. Subject to any issue of the separability of that condition or its subheads, it appears to me that the propriety of the decision to grant listed building consent may be viewed as turning, in the first place, on the validity of that condition, with all its subheads. The reporter clearly did not intend to grant any temporally unrestricted consent and regarded three particular matters as being each, in themselves, decisive as respects the duration of the consent.
20. Despite what was said by counsel for the respondents in her defence of the reporter's decision it is in my view evident that the terms of the condition which he sought to impose present difficulties. The first subhead is couched in terms of the permanent cessation of the use of the room - by which I assume the remainder of the principal room subdivided by the structure - as a bedroom. There is, of course, no planning control on the use to which a householder or the owner of a guest house may put the individual rooms within a house and therefore this consent immediately raises a question as to the enforceability of the condition. Accepting that a planning authority has extensive powers of entry it nonetheless remains questionable whether a room containing a bed which is used diurnally for purposes other than sleeping - say as a study - might remain a "bedroom". Indeed, would it be sufficient that the room contain a bed, even if the bed were not in regular nocturnal use for sleeping? That apart it will generally be difficult to know whether the use of a room within domestic premises as a bedroom has ceased "permanently". A declaration of one proprietor respecting his intentions of using the room as a bedroom would not bind his successor in ownership of the property. Moreover, and perhaps more importantly, as counsel for the appellants pointed out given that the structure of which the planning authority complains affects the character of the building by particular reason of its effect on the floor plan and the classical proportions of what is a "principal" room it is difficult to see how the particular domestic use, or mix of domestic uses of the remainder of the principal room can be relevant to the question whether consent should be given for the alterations. For these reasons, among others, I consider this subhead of the condition to be flawed.
21. While on one view the second subhead [net curtains] does not present perhaps the same enforcement problem since the presence of such curtains is observable from the outside of the premises it nonetheless also presents difficulties. There are the problems of drafting to which counsel for the appellants adverted. More fundamentally there is the issue whether in the context of the grant of a planning consent or a listed building consent it is reasonable and lawful to require the deployment of soft furnishings, such as drapes or curtains, which do not form part of the immovable property. Planning conditions run with the land. Listed building consents similarly run with the land. If this condition were valid it would follow that anyone purchasing the house from the present owner must separately acquire the net curtains or at least net curtains of the same (unspecified) type and dimensions as those present at the time of the reporter's visit. Even assuming in principle that an internal alteration to a principal room within a listed building which adversely affects the character of the building might receive consent if the windows were screened to prevent view from outside, the terms of this sub-head of the present condition do not admit of alternatives, such as venetian blinds or any other screening device. On that ground also the present subhead of the condition is unsatisfactory. I have also to say that I have considerable reservations whether an alteration forming part of the heritable or immovable property may properly be given consent subject to conditions relating to the use of soft furnishings such as curtains, since planning conditions and listed building conditions relate essentially to immovable property. However, given the limited discussion before me I refrain from expressing a concluded view.
22. The third subhead relates to the removal of the privet hedge. While the hedge may be a less ephemeral feature of the state of the property and its contents than the net curtains viewed by the reporter, it is I think evident that, at the least, this condition or subhead suffers the problems of drafting and expression to which counsel for the appellant authority adverted.
23. Even if that third subhead might, as a matter of validity survive those criticisms if it is evident that in judging of the visibility of the structure to passers-by the reporter treated the net curtains and the hedge in conjunction. He also treated use as a bedroom as a material factor. In these circumstances I do not consider it possible to divide up, or sever, the various subheads of the reporter's condition all of which appear to have been a material part of his decision.
24. I am conscious that many of the criticisms of the reporter's decision respecting the conditions to which he made it subject may seem at first sight to be matters of drafting rather than substance. It is of course important that those granting planning consent subject to conditions give care to the draftsmanship involved in framing such conditions. As the guidance to which I was referred points out, such conditions must be framed with care and precision. However, in the present case what might appear as drafting matters are, in my view, a symptom of a more fundamental issue, which I put to counsel for the respondents in the course of the discussion before me. That underlying problem is that while purporting to decide whether listed building consent for the works in issue should be granted the reporter appears in fact to be addressing a different question namely whether, the works having been erected without a prior grant of for listed building consent, it was reasonable that they should now be removed. Hence, at a central point in his reasoning, one finds this sentence in paragraph 21 of the decision letter:

"However, while the integrity of the appeal property as a listed building has been compromised, I am not convinced that this is so great as to justify the immediate removal of the offending structure".

The emphasis is mine but the notion of not requiring "immediate" removal is then carried forward first into the decision that "an unrestricted consent" is not appropriate and thereafter into the apparent intention to effect a temporal restriction, other than the five year "stay of execution" suggested by the owner of the property, by means of the condition with its subheads the criticisms of which I have discussed. What the reporter does not appear to have considered was whether, had an application been presented for consent for a future proposal to carry out the construction within the "principal" room of the bathroom and toilet and the surrounding partition walls it would have been proper to grant consent, either outright or, in the context of the factors to which his decision refers, subject to conditions relating to the continuing particular domestic use of the remainder of the principal room; the continuous deployment of soft furnishings; and the maintenance of external planting. So viewed, I apprehend that, at least absent special circumstances in the appeal property, the reporter might have reached a different view.

25. I appreciate that the reporter adopted what he recognised to be a "pragmatic" approach and it is possible to sympathise with him to some extent in that approach. I also appreciate that in some cases the distinction between asking oneself the question whether it is reasonable that an offending structure be removed and asking oneself the question whether a proposal ab ante to construct such a structure should receive consent may be a fine one. But in my view the two questions are truly different questions and to apply the former test may risk deploying in favour of the property owner who has carried out the development or alteration without the consent required by law a practical advantage not enjoyed by those owners more careful or scrupulous in their attention to the requirements of the legislation. It also invites the imposition of inappropriate conditions directed, not to the grant of consent, but to the cessation and removal of an unauthorised alteration to a listed building for which consent might never have been granted ab ante. To apply the former test is, in my view, an error in law.
26. For the foregoing reasons I must respectfully conclude that in addressing ground (e) of the property owner's appeal to him the reporter did misdirect himself in law in a manner which requires that his decision be quashed.