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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> LIDDELL, COLIN LIDDELL AND OTHERS FOR JUDICIAL REVIEW [2019] ScotCS CSOH_57 (31 July 2019)
URL: http://www.bailii.org/scot/cases/ScotCS/2019/2019_CSOH_57.html
Cite as: [2019] CSOH 57, [2019] ScotCS CSOH_57, 2019 GWD 26-425
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OUTER HOUSE, COURT OF SESSION
[2019] CSOH 57
P941/18
OPINION OF LORD BOYD OF DUNCANSBY
In the cause
COLIN LIDDELL AND OTHERS
for
Judicial Review
Petitioners: J D Campbell QC; BBM Solicitors
Respondent: J Findlay QC; N McLean (sol adv); Brodies
Petitioners
31 July 2019
[1] This is the petition of the proprietors of Ardencaple House, an 18th century list B
house situated at Clachan Seil, Isle of Seil, Argyll and Bute. They seek reduction of a
decision by Argyll and Bute Council to grant planning permission for the erection of a single
dwelling house and associated development. The decision was taken under delegated
powers on 28 June 2018.
Background
[2] Ardencaple House lies approximately 1.5 km north east of the proposed
development site. It is agreed that the site occupies a relatively high ridgeline in the Isle of
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Seil landscape Area of Panoramic Landscape Quality (APQ). APQ’s are of regional
importance. The petitioners aver in paragraph 13 as follows:
“[Ardencaple House] occupies a prominent position at the end of an access road,
overlooking a valley and wetland to the south and southwest. It is designed and
positioned especially to capture the uninterrupted aspect of the panoramic quality of
a segment of the Isle of Seil facing southwest towards a ridge, located at a distance of
approximately 1.5km from the house. Its immediate curtilage faces south west
towards the ridge upon which the proposed development would be built. Its setting,
which is more extensive, is the uninterrupted aspect of receding open landscape
diminishing in height before rising, in the same aspect, to the ridge or saddle where
the proposed development is to be located. The ridge line, viewed from Ardencaple
House is entirely uninterrupted by any built development, utility wires, poles,
pylons or other vertical structures, other than trees.”
[3] At paragraph 8 the petitioners aver that:
“there will be no backdrop for the proposed development save for the very distant
hills. It will therefore stand out as a high profile intrusion on the skyline, clearly
visible from Ardencaple House and its curtilage and setting, and therefor upon its
setting.”
[4] Other than admitting that Ardencaple House was constructed in the 18th century and
is listed there is no admission by the respondent as to the setting of the House or that it was
constructed to take advantage of the views. The respondent points out that there is no
mention of the views in the listing. It suggests that the ridge line is interrupted by the corner
of an agricultural building and a wooden pole. The respondent also avers that the skyline is
not affected as the development will be seen against a backdrop of substantial existing land
mass at considerably higher location. There is a dispute between the parties as to whether,
and if so by how much, the proposed house is higher than surrounding buildings. I do not
consider it necessary to resolve that issue.
[5] The majority of the application site, and where the development is proposed, falls
within the minor settlement of Clachan Seil. Local Plan Policy LDP DM 1 gives
encouragement to small scale developments on appropriate sites subject to compliance with
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other policies and statutory guidance. The application was for a small scale development of
one house. Accordingly development is in accordance with the plan unless it conflicts with
other policies and in particular LDP 9. The petitioners submit that there was a failure to
apply LDP 9 fully and completely. That policy requires that developments are to be
compatible with their surroundings. Particular attention is to be given to the massing and
design details within, amongst other locations Areas of Panoramic Quality and the settings
of listed buildings. Within such locations the quality of design will require to be higher than
in other less sensitive locations and where appropriate in accordance with the guidance set
out in “New Design in Historic Settings” produced by Historic Scotland. (This document
appears to have been replaced or updated by “Managing Change in the Historic
Environment” (Managing Change) published by Historic Environment Scotland).
[6] An objection to the application was lodged by Baird Lumsden on behalf of
Julian Taylor, one of the trustees and petitioners. It makes no mention of Ardencaple
House’s listed status or the reasons for the listing. However one of the grounds of objection
was that the development will have a significant landscape and visual impact and that it will
be particularly noticeable from the north-west from Ardnecaple House. It points out that
the development will be prominent on the ridge line and will be the only manmade feature
across an otherwise natural panorama of interlocking ridges against a backdrop of Barr Aille
on the mainland. The objections suggests that the application must not be determined until
a site visit is made to Ardencaple House by the case officer and this view is understood.
[7] This invitation to visit Ardencaple House was repeated by email. The case officer
Fiona Scott discussed this with her superior and it was decided that it was unnecessary to
visit the House before determining the application.
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Grounds of review
[8] There are two grounds of review. First the petitioners submit that the respondent
failed in its duty under section 25 of the Town and Country (Scotland) Act 1997 which states
that in making determinations under the Planning Acts the determination should be in
accordance with the development plan unless material considerations determine otherwise.
[9] The second ground is an alleged failure by the respondent to consider the
desirability of preserving a listed building and its setting, contrary to the Planning (Listed
Buildings and Conservation Areas) (Scotland) Act 1997, (the Act) section 59(2) which states
that in the exercise of its powers the planning authority shall have regard to the desirability
of preserving features of special architectural or historic interest and, in particular, listed
buildings.
The legal background
[10] There is no legal definition of setting. As Sullivan LJ noted in R (The Friends of Hethel
matter of planning judgement for the local planning authority. In R (Williams) v Powys
County Council [2018] 1 WLR 439 Lindblom LJ listed some of the factors that might be
significant:
“Typically, I think, they will include the nature, scale and siting of the development
proposed, its proximity and likely visual relationship to the listed building, the
architectural and historic characteristics of the listed building itself, local topography,
and the presence of other features—both natural and man-made—in the surrounding
landscape or townscape.” (paragraph 53)
He continued:
“Clearly, however, if a proposed development is to affect the setting of a listed
building there must be a distinct visual relationship of some kind between the two—
a visual relationship which is more than remote or ephemeral, and which in some
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way bears on one's experience of the listed building in its surrounding landscape or
townscape. This will often require the site of the proposed development and the
listed building to be reasonably close to each other, but that will not be so in every
case. Physical proximity is not always essential.” (paragraph 56)
[11] In Managing Change, setting is described as the way the surroundings of a historic
asset or place contribute to how it is understood, appreciated and experienced. The setting
can incorporate a range of factors which include views to, from and across or beyond the
historic asset or place and views from within an asset outwards over key elements in the
surrounding landscape such as the view from a principal room of a house or from a roof
terrace.
[12] Managing Change identifies three stages in assessing the impact of a development in
the setting of an historic asset. Stage 1 is to identify the historic assets that might be affected
by the proposed development. The initial approach should include all the potentially
affected historic assets and places including those relatively distant from the proposal.
Stage 2 is to define and analyse the setting and stage 3 is to evaluate the potential impact of
the proposed changes on the setting.
A-listed house known as the “Gallery”. He sought a judicial review of the decision to grant
planning permission to a windfarm development over 5 miles away from the Gallery. An
environmental statement was submitted along with the application. Although the study
area took in the Gallery there was no mention of it or its setting. Historic Scotland
responded during the consultation period that in respect of the historic landscape and listed
buildings they were content to agree with the findings of the environmental statement.
Before permission was granted the planning committee gave objectors, including the
petitioner, the opportunity to address the committee. The report from planning officers did
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not include any mention of the Gallery or its setting. The petitioner argued that the Council
had failed to carry out an assessment as required under the Act. The Extra Division
(Lord Abernethy and Lord Eassie; dissenting Lord Mackay of Drumadoon) held that it was
for the planning authority to determine how much information is required for it to
determine the application. In so holding Lord Abernethy (at paragraph 23) agreed with
as 406). It is worth quoting Sullivan J; it is not controversial but is sometimes forgotten.
“It is for the local planning authority to decide whether it has sufficient information
in respect of the material considerations. Its decision is subject to review by the
courts, but the courts will defer to the local planning authority's judgment in that
matter in all but the most extreme cases.” (paragraph 108).
[14] Reverting to Simson, Lord Eassie noted that the duty under section 59(2) of paying
special regard to the desirability of preserving the building or its setting arose only if the
proposed development would affect its setting. He noted that counsel for the petitioner
(who also appeared for the petitioners in this case) accepted that whether that gateway
criterion was met was a matter of planning judgement (paragraph 37).
[15] I draw from this brief review the following considerations. First there is no special or
legal definition of “setting”. Rather it should be given its natural meaning. Secondly in its
application in any particular case there are a number of factors which may be considered.
These include matters which are inherent in the property itself such as its architectural
design and its historical significance. But it may also include external features such as its
place in the landscape and its relationship to other features whether natural or manmade.
Thirdly in considering the effect of a proposed development on the setting of a listed
building there needs to be some distinct visual relationship between the two. As
Lindblom LJ put it in Williams such a relationship needs to be more than remote or
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ephemeral and bear on one’s experience of the listed building in its surrounding landscape.
Fourthly although the visual relationship will normally be taken from a point external to
both the development and the listed building it may also be a relationship which is
appreciated from the listed building as in a view from the building which encompasses the
proposed development. Again however the relationship must be more than remote or
ephemeral and bear on one’s experience of the listed building in its landscape. On this last
point however some care is required. As counsel for the petitioners pointed out, as a matter
of planning law nobody is entitled to a view. Accordingly the fact that the development
might be seen from the listed building is not in itself material. Something more is required;
there must be some relationship between the view from the building and its setting. In
determining the materiality of that relationship regard should be had to the reasons for its
listing. Fifthly the decision on whether the duty under section 59(2) is engaged is a planning
judgement for the planning authority. It is for the planning authority to determine whether
it has sufficient information to determine an application, subject to the review by the court
where it steps outside its statutory obligations.
The respondent’s decision
[16] This was a delegated decision. There is a report of handling dated 27 June 2018. It
was compiled by Fiona Scott and reviewed by Tim Williams. The report deals with the
objection by Baird Lumsden. So far as views from Ardencaple House is concerned it notes
that it is accepted that the development occupies a relatively high point in the landscape; it
is at the same level as existing development to the east and that when viewed from the north
west will be seen
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“in context against the rising hills to the south (this should read north) which will
provide a suitable backdrop against which the proposed dwelling house will be
appropriate within its local and wider landscape and in accordance with the existing
settlement plan”.
Nowhere in the report is there any mention of the listing of Ardnecaple House or its setting.
[17] The respondents have lodged two affidavits from Fiona Scott. The second merely
corrects a minor error. Ms Scott is a planning officer having been in their employment
since 1991. She has been in the Oban, Lorne and the Isles planning team since 2009. She
explains that there are many listed buildings within this area and that she is familiar with
the statutory provisions and guidance in Managing Change. She said that she first became
aware of the proposed development in 2014 when she responded to a request for
pre-application advice. She undertook a desktop assessment. She was aware of the listing
Ardencaple House and its location in relation to the proposed development site. She did not
identify Ardencaple House as a likely restraint on the proposed development due to its
distance from the site. However “having the Duty in contemplation” (presumably the
general duty in respect of listed buildings under section 59 of the Listed Buildings Act 1997)
reserved judgement until she had visited the site which she subsequently did.
[18] On the site visit Ms Scott identified that Arencaple House was visible looking out
from the proposed development site at a considerable distance. She also assessed the
proposed development site from a point adjacent to the agricultural building located next to
the access road to Ardencaple House, looking backwards towards the site. This is a point
approximately half way between Ardencaple House and the site. She continues that from
this viewpoint she was satisfied that in her professional opinion,
“having regard to
1. The distance between the proposed development and Ardencaple House of
approximately 1.5km;
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2. The character of the landscape and landform between the proposed
development site and Ardnecaple House; and
3. The topography
That development upon the site of the type encouraged within the settlement zone as
defined in the local development plan would not affect Ardencaple House or its
setting, and that the presence of Ardencaple House would not be a restraint to that
type of development. I determined, having undertaken as (sic) assessment on site,
that the Duty would be engaged but that the type of development encouraged within
the settlement zone would have no affect on Ardencaple House or its setting.”
[19] Between the response to the request for pre-application advice and the lodging of the
planning application Ms Scott made another visit to the site with others to determine
whether it might be included within the development plan. Subsequently Ms Scott was
assigned the planning application and undertook a further visit on 30 April 2018. She had
regard to the pre-application advice. She said that she was satisfied in terms of the duty the
proposed development would not affect Ardencaple House or its setting. Accordingly she
did not require to have special regard to the desirability of preserving Ardencaple House or
its setting when determining the application. In doing so she exercised her professional
judgement. She further explained that having identified that this was not a determining
issue she was not required to address it in her report of handling.
Submissions
[20] Counsel for the petitioner relied on his note of argument. He emphasised that there
was no mention of Ardencaple House on the report of handling. Ms Scott’s affidavits
looked as if they had been prepared by someone else conscious of the legal consequences of
her position. He took exception to various passages in the affidavits. He submitted that it
was clear that whatever assessment had been undertaken Ms Scott had at no time visited
Ardencaple House, despite requests that she do so. The nearest she had got was half way to
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the house. She had never attempted to assess the extent of the actual setting of the house.
She had not assessed the proposed development against policy LDP ENV 16(A). She did not
evaluate the significance of the distance or visibility other than to state it correctly as 1.5km.
[21] Counsel for the respondent emphasised that Ms Scott had undertaken three visits to
the site and its vicinity. The petitioner had relied heavily on the failure by Ms Scott to visit
Artdencaple House. As the argument had developed the issue had narrowed to whether or
not it was possible to assess the impact of the development on the setting of the House
without visiting the house. He submitted that it would be extraordinary if a court was to
hold that the failure to do so was an error of law.
Discussion
[22] I am satisfied that there is no error of law in the decision made by the respondents.
Nor is the decision irrational. It should be remembered that this was an application for a
single dwelling house in an area which was the subject of a local plan policy which, subject
to compliance with other policies, and, in particular for these purposes LDP 9, supported
development on this site. LDP 9 requires the design of development and structures to be
compatible with the surroundings. Particular attention is to be given to the massing, form
and design details within sensitive locations. The long list of locations includes the setting
of listed buildings. The report of handling makes clear that this policy was addressed. In
the reasons section the report states that the proposal accords with, inter alia, LDP 9.
[23] Counsel for the petitioner criticised the affidavits from Ms Scott. However I have no
reason to go behind these documents. The affidavits show that Ms Scott was familiar with
the area having visited three times in connection with proposed development. While it is
true that she did not visit Ardencaple House itself, despite being asked to do so, she did in
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fact walk half way towards the house during the visit on the pre-application assessment.
She said that she was satisfied that development within the development zone would not
affect Ardencaple House or its setting and gave her reasons for her opinion. While she was
asked to make a visit during consideration of the application she made a judgement, in
conjunction with her supervisor, that such a visit was not required.
[24] I am not satisfied that Ms Scott’s failure to visit the House amounts to a failure to
take into account a material consideration or was irrational. I agree with counsel for the
respondent that it would be an odd and unwelcome development in planning law if courts
were to tell planning officers that before they could make a professional judgement on
whether the setting of a listed building was affected by a development they must visit the
building itself.
[25] It is clear on the authorities and in particular Simson, that the question as to whether
the threshold or gateway for the application of section 59(2) of the Act was matter for the
planning authority. The affidavit from Ms Scott demonstrates that the respondent
considered that the threshold had not been reached. That being the case it was not necessary
to mention it in the report of handling. Indeed to do so might be regarded as otiose. In
planning law parlance it was not a determining issue.
[26] In their note of argument the respondents submit that even if there was a failure as
averred by the petitioners the court should exercise its discretion to refuse the petition. In
the circumstances I do not need to decide this issue.
Decision
[27] For these reasons I shall sustain the second plea in law for the respondents and
refuse the petition.