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Cite as: [2020] ScotCS CSIH_30, [2020] CSIH 30, 2020 SLT 956, 2020 GWD 20-280

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FIRST DIVISION, INNER HOUSE, COURT OF SESSION

Lord President

Lord Menzies

Lord Malcolm

OPINION OF THE COURT

[2020] CSIH 30

P941/18

delivered by LORD MALCOLM

in the petition of

COLIN LIDDELL AND OTHERS

Petitioners and Reclaimers

against

ARGYLL AND BUTE COUNCIL

Respondent

Petitioners and Reclaimers: J Campbell, QC, BBM Solicitors

Respondent: J Findlay, QC, McLean, sol adv; Brodies LLP

10 June 2020

[1] In this petition for judicial review the proprietors of Ardencaple House, an

18th century List B house at Clachan Seil, Isle of Seil, Argyll and Bute, seek reduction of a

decision made by the local planning authority, namely Argyll and Bute Council, to grant

planning permission for the erection of a single dwelling house at a site 1.5 km to the south

of the property. The petition was refused by the Lord Ordinary - see [2019] CSOH 57. The

petition sets out two grounds of challenge. In this reclaiming motion (appeal) against the

decision of the Lord Ordinary, the first complaint is not maintained. The second was an

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alleged failure by the planning authority to consider the desirability of preserving the listed

building and its setting, contrary to the Planning (Listed Buildings and Conservation Areas)

(Scotland) Act 1997, section 59(1). That provision provides as follows:

“In considering whether to grant planning permission for development which affects

a listed building or its setting, a planning authority or the Secretary of State, as the

case may be, shall 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.”

[2] Before the Lord Ordinary and again in this court it was stressed that, despite

requests, the planning officer responsible for preparation of a report of handling which

recommended the grant of permission, did not visit Ardencaple House. The key contention

is that she failed to identify and define the extent of the setting of the property, thereby

disabling herself from a valid exercise of the statutory duty imposed by section 59. It is

submitted that the affidavit of the officer, which was lodged after commencement of the

present proceedings, confirms that an essential fact finding element was omitted, thus the

decision of the authority, which was based upon her report, is subject to a fatal flaw.

The decision of the Lord Ordinary

[3] The Lord Ordinary noted that, amongst other things, the planning officer visited a

position halfway between the house and the development site. In the affidavit she gave

satisfactory reasons for her view that the proposal would not affect either the house or its

setting. Whether it was necessary to visit the house was a matter for her. In Simson v

Aberdeenshire Council 2007 SC 366 it was confirmed that it is for the planning authority to

determine whether the threshold for the application of the statutory duty had been crossed.

The decision was that the proposed development would not affect the listed building or its

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setting. It followed that the duty to have special regard to the desirability of preserving the

house or its setting did not arise

The background circumstances

[4] Before considering the submissions made to this court it is appropriate to provide

further detail as to the background to the legal challenge. In her report of handling the

planning officer made reference to an objection lodged on behalf of Ardencaple House by a

firm of chartered surveyors which offers professional services on, amongst other things,

planning matters. She noted that the relevant objection was as to landscape impact. A full

landscape and visual assessment should be obtained. The site was at a high point and the

dwelling house would have a significant adverse visual impact on the landscape. It should

be rejected in principle. The development would be particularly noticeable when viewed

from Ardencaple House. It would be visible on a ridgeline, being the only man-made

feature in an otherwise natural panorama. Consideration should be given to a landscape

study undertaken as part of the 2009 local plan which identified that views out of

Ardencaple House are of particular importance. The continuation of those views would

include the proposed dwelling house on the skyline.

[5] In response, the planning officer noted that no designation required there to be a

landscape and visual impact assessment. The site does occupy a relatively high point in the

landscape and is part of a wider area of panoramic landscape quality. It was at the same

level as existing development and would be seen against the rising hills to the south, which

would provide a suitable backdrop against which the proposed dwelling house will be

appropriate within its local and wider landscape context and in accordance with the existing

settlement pattern. The purpose of the 2009 study was to identify those Rural Opportunity

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Areas (ROAs) which could accommodate future development. Some of the ROAs were

removed. The application is in an area of defined settlement which has never been in an

ROA. The 2009 study referred to Ardencaple House in the context of its setting to the north

of a specific landscape compartment, LN61. The application site is approximately 1km to

the east of LN61 within an area of defined settlement. It is some 1.5km south-east of

Ardencaple House. The landscape impact of the proposed development had been carefully

assessed and it was not considered that a single dwelling house within the defined

settlement would have any material harmful impact on the landscape.

The planning officer’s affidavit

[6] As already noted, the petition complained of an alleged failure to consider the

desirability of preserving the listed building and its setting, contrary to section 59 of the 1997

Act. In response the planning officer lodged an affidavit, which can be summarised as

follows. The officer was aware that Ardencaple House is listed. She was familiar with the

proper approach to developments which might affect a listed building or its setting,

including the relevant guidance and the duty set out in section 59. In 2014 the listed

building was not identified as a likely restraint on development because of its distance from

the existing settlement. In the context of a subsequent pre-application site visit the officer

considered the proposed development from a number of locations at the site and the roads

surrounding it. She noted that Ardencaple House was visible from the site at a considerable

distance. She assessed matters from an agricultural building adjacent to the access road to

the house. This position is halfway between the development site and Ardencaple House.

She was satisfied, having regard to the distance between them, namely 1.5km, the character

of the landscape and landform between the house and site, and its topography, that the

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development would not affect the house or its setting, and that the presence of the house

was not a restraint on the development. She was aware of the duty under the Act. The

development was not within the setting of the house. The desirability of preserving the

house or its setting was not a determining issue, therefore she did not require to address the

matter in her report. The landscape had the capacity to absorb the development. After

discussion with her area team leader it was decided that it was not necessary to visit

Ardencaple House itself. The matter had been comprehensively assessed on previous site

visits.

The petitioners’ submissions

[7] The petitioners submit that the planning officer’s report of handling misleads by

omission. She did not equip herself with the necessary material facts upon which a proper

professional judgement could be made. She did not identify the extent of the setting of

Ardencaple House, therefore she could not understand the relationship among the house, its

setting, and the proposed dwelling house; nor apply the test in section 59. She disabled

herself from carrying out a valid assessment as to whether the proposal would affect the

setting of the house. She did not pay special regard to the desirability of preserving its

setting. It followed that her conclusion was Wednesbury unreasonable.

[8] The officer wrongly asserted that the new house would be at the same level as the

existing built development nearby. If it was on the same level, it would not be visible from

Ardencaple House, and therefore could not impact upon it. The Lord Ordinary wrongly

considered that he did not require to resolve this issue. Furthermore the officer could not

reasonably consider the hills to the south, which are some 5km distant, as being a visual

“backdrop” to the development. Her conclusion was based on erroneous facts. The Lord

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Ordinary erred in equating the decision with an exercise of planning judgement. He

identified reasons for the officer’s conclusion when none were stated. As a generality it was

accepted that an assessment of the extent of the setting of the listed building is a matter of

planning judgement, but it must be based on accurate facts flowing from the necessary

investigative steps.

[9] It was submitted that the planning officer simply concentrated on the distance of the

proposed development from the listed building. The Lord Ordinary allowed a failure to

investigate the facts in a proper manner to be subsumed by the “mantra” of planning

judgement. In both written and oral submissions reference was made to a number of

authorities including East Northamptonshire District Council v Secretary of State for

Communities and Local Government [2013] 2 P & CR 5, Lang J at paras 45/47; Tesco Stores

Limited v Dundee City Council 2012 SC (UKSC) 278, Lord Reed at paras 17/21 and Lord Hope

at paras 34/35; Barnwell Manor Wind Energy Limited v East Northamptonshire District Council

and Others [2015] 1 WLR 45; Simson v Aberdeenshire Council (cited above); and Catesby Estates

Limited v Steer [2019] 1 P & CR 5 at paras 28/30.

The submissions for Argyll and Bute Council

[10] The petitioners’ second plea-in-law proceeded on the incorrect basis that the terms of

the 1997 Act had been ignored. In any event the planning officer was not required to define

the setting of the listed building. She concluded that the proposed development would not

affect the house or its setting. The petitioners have provided no expert evidence as to the

nature and extent of the setting of Ardencaple House. It is not for counsel to make

assertions on the subject.

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[11] It has always been acknowledged that, unlike the other houses in the settlement, the

proposed dwelling house would appear over the ridgeline when viewed from Ardencaple.

However, it would not break the skyline. There is no factual error as to the backdrop

provided by the hills to the south; just a difference of opinion as to their efficacy in

minimising the visual impact. The petitioners’ challenge is to matters of planning merit or

judgement. No error of law or Wednesbury unreasonableness has been demonstrated.

[12] It is for the planning authority to decide on the amount of information it requires and

to identify the determining issues. The purpose of a planning officer’s report is to

summarise the relevant policy guidance, identify the issues to be determined, and

summarise the material and arguments on the basis of which the decision should be made.

The officer exercises judgement on how much and what information should be in the report.

The relevant case law demonstrates that whether a proposed development would affect the

setting of a listed building is very much a matter for the planning authority. A number of

authorities were cited in support of the above propositions.

[13] Having made three site visits the planning officer reached the view that the proposed

dwelling house would not affect the setting of the listed building. This decision was

informed by the relevant guidance. It is unsurprising that it was not mentioned in the

officer’s report. No-one, and this includes the owners of Ardencaple House and their

planning consultant, had referred to an impact on the setting of the house. No professional

evidence has criticised the officer’s approach or her conclusions. There is no guidance or

rule that a listed building must be visited in order to assess impact on its setting.

[14] Counsel for the planning authority referred to the two stage process for

consideration of the impact of a development upon a listed building, all as described by

Lord Abernethy in Simson at paragraph 17. In the present case the analysis did not require

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to proceed beyond the first stage, namely of assessing whether there would be an effect on

the listed building or its setting. This having been answered in the negative, the duty to give

special regard to the various factors did not arise. In Newsmith Stainless Ltd v Secretary of

State for Environment, Transport and the Regions [2017] PTSR 1126, at paragraph 7, Sullivan J

emphasised the difficulties faced by anyone mounting a legal challenge to the conclusions of

an inspector (reporter in Scotland) or a planning officer.

Decision

[15] The evaluation was that a dwelling house extruding above a ridgeline, though not

the skyline, some 1.5km distant from the property, would not affect its setting. In other

words, no harm would be done. It followed that the “special regard” duty did not arise.

The listed building and its setting were not material considerations, nor did they give rise to

a determining issue. Given the absence of any mention of the listing and the setting in the

letter of objection, the planning officer was presented with no contrary assertion. Any

criticisms as to the extent of her investigations or discussion of the matter in her report

should be seen in that context.

[16] The “setting” of a listed building is a reference to the surroundings in which it is

experienced. Often this will engage visual and physical considerations. Here the objection

concerned the visual impact of the proposed dwelling house and its allegedly unacceptable

intrusion in the landscape. These are classic issues of planning judgement with which the

courts will not lightly interfere. The planning officer made her views on this objection clear

in her report, which in turn was accepted by the decision-maker. It is far from obvious what

other factor or factors flow from a reference to the setting of Ardencaple House. There is no

assertion that, apart from the alleged impact on views to the south from the property, there

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is any historical or other consideration of significance in this context. The complaint

presented in the petition as originally lodged was that the officer overlooked the listing of

Ardencaple House and its implications in terms of section 59. This having been confounded

by the terms of her affidavit, the attack changed to the proposition that, in carrying out the

exercise, she omitted a necessary step, namely a visit to the house itself. It is said that this

alone would have enabled a proper definition and description of the nature and extent of the

setting of the house, this being a pre-requisite to any proper assessment as to whether the

development would or would not affect it.

[17] It is not arguable that in her report the officer had to set out a written narrative or

definition as to the nature and extent of the setting of the listed building. As counsel for the

planning authority commented, she was not sitting an academic examination. She did

require to investigate the circumstances so as to allow her to form an appreciation of the

setting of the house, such as would allow her, using her professional knowledge and

expertise, to evaluate the impact, if any, of the development on the setting of the house. The

complaint is that the officer failed to visit the house, and as a result disabled herself from a

proper appreciation of its setting and of the impact on it of the proposed dwelling house.

[18] A challenge of a similar nature was considered by the Court of Appeal in Catesby

Estates Limited v Steer (cited above). Lang J had concluded that an inspector left significant

matters out of account and as a result adopted too narrow an interpretation of the heritage

asset under consideration, this amounting to an error of law. After reviewing the guidance

south of the border and some of the relevant case law, which included R (Williams) v Powys

County Council [2018] 1 WLR 439, and in the context of a statutory provision in identical

terms to that in the Scottish Act, Lindblom LJ observed that three general principles

emerged – see paragraphs 28/30. First, it is necessary for the decision-maker to understand

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what the setting is – even if its extent is difficult or impossible to delineate exactly – and

whether the site of the proposed development will be within it or in some way related to it.

“Otherwise, the decision-maker may find it hard to assess whether and how the proposed

development ‘affects’ the setting of the listed building…”. Secondly, there is no single

approach to identifying the extent of a building’s setting. In every case the decision-maker

“must apply planning judgment to the particular facts and circumstances, having regard to

relevant policy, guidance and advice.” Thirdly,

“the effect of a particular development on the setting of a listed building – where,

when and how that effect is likely to be perceived, whether or not it will preserve the

setting of the listed building, whether … it will harm the ‘significance’ of the listed

building as a heritage asset, and how it bears on the planning balance – are all

matters for the planning decision-maker…”.

In the absence of a clear error of law, the court should not intervene. Citing an observation

of Lord Carnwath, it was noted that courts should “respect the expertise of the specialist

planning inspectors.” (The same would apply to planning officers entrusted with reports of

the kind in question in the present case.)

[19] Applying the above principles, the appeal against the decision of Lang J was upheld

on the basis that there were no errors of the required kind in the inspector’s decision. He

exercised a planning judgement on the particular facts of the case. He reached reasonable

conclusions, all of which were available to him.

[20] The inspector’s detailed discussion of the listed asset and its setting, all as recorded

in the Court of Appeal’s decision, reflected the fact that these were highly controversial

issues focussed in the detailed submissions before him. That cannot be said in the present

case, hence the absence of any equivalent passage in the report of handling. However, the

court does have an explanation as to the planning officer’s investigations, reasoning and

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conclusions in her affidavit. For present purposes the key determination was that the

development would have no harmful impact on the setting of Ardencaple House.

[21] Under reference to the first of Lindblom LJ’s three principles, can it be said that the

decision-maker did not understand the setting of the listed building, and whether the

proposed development would be within it or in some way related to it? In the court’s view,

the answer is no. The contrary proposition depends upon the misconception that the

planning officer could only reach a proper understanding after a visit to the house itself.

There may be cases where a visit of that kind is obviously necessary, but there is no reason

to place this officer’s task in that category. She considered that her investigations, which

included three visits to the locality, equipped her with a sufficient appreciation of the views

from the house, the local topography, the distance of the house from the development, and

the nature of the development’s intrusion on the landscape and those views, to allow her to

evaluate whether the development would or would not affect the setting of the house. The

submission that the investigations were inadequate is no more than a challenge to her

judgement on that matter. There is no sound basis for this court concluding that, absent a

visit to the house itself, she was unable to form a proper appreciation as to the nature and

extent of the setting of the listed building, and as to the potential impact of the proposed

development.

[22] The second and third principles identified by Lindblom LJ emphasise the limited

nature of the court’s power to intervene in cases of this kind and the respect which is due to

a planning officer’s professional judgement and evaluation. With regard to the main

challenge mounted by the petitioners, in the view of the court no error of law or defective

procedure has been demonstrated.

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[23] As to the other complaints, there was no requirement for the Lord Ordinary to

grapple with and resolve the suggested dispute as to the level of the development as

compared with the buildings in the adjacent settlement. It has always been acknowledged

that the proposed dwelling house would be visible from Ardencaple House, and that the

other buildings cannot be seen. Whether this is because of the difference in the levels of the

houses, their respective sizes, or a difference in local topography, or a mixture of factors,

was, for the purposes of the planning officer’s exercise, neither here nor there. As to the

suggestion that the officer should not have considered the backdrop of the hills to the south

as providing mitigation in respect of visual intrusion, this again raises a matter of planning

judgement, not an error of the kind which falls within the court’s jurisdiction. Finally, we

note that there is no merit in the submission that in her affidavit the officer failed to provide

adequate reasoning for her conclusion in respect of the duty in section 59.

[24] For the above reasons, which largely echo those of the Lord Ordinary, the reclaiming

motion is refused. The court will adhere to the interlocutor of the Lord Ordinary dated

31 July 2019 refusing the petition.