Introduction

In the case of Colin Liddell and Others against Argyll and Bute Council ([2020] ScotCS CSIH_30), the Scottish Court of Session addressed significant issues surrounding the planning authority's discretion in assessing development impacts on listed buildings. The proprietors of Ardencaple House, an 18th-century listed building, challenged a decision by the Argyll and Bute Council granting planning permission for a new single dwelling house nearby. Central to the dispute was whether the planning authority adequately considered the preservation of Ardencaple House and its setting, as mandated by the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, specifically section 59(1).

Summary of the Judgment

The petitioners sought judicial review of the council’s decision, asserting that the planning officer failed to consider the preservation of the listed Ardencaple House and its setting. Their primary contention was that the officer neglected to define the extent of the property's setting due to not visiting the house, thereby undermining her ability to fulfill the statutory duty under section 59.

The Lord Ordinary initially refused the petition, a decision upheld by the Inner House of the Court of Session. The court found that the planning officer had exercised appropriate professional judgment, basing her decision on sufficient site visits and existing evidence. The court emphasized that the determination of whether a development affects a listed building’s setting is largely a matter of planning judgment, within the discretion of the planning authority. Consequently, the court dismissed the petition, reinforcing the authority's role in such assessments.

Analysis

Precedents Cited

The judgment extensively referenced several key cases that influenced the court’s reasoning:

• Simson v Aberdeenshire Council (2007 SC 366): Established that it is within the planning authority's discretion to determine whether the statutory duty applies based on the potential impact on a listed building.
• Catesby Estates Limited v Steer [2015] 1 WLR 45: Highlighted the necessity for decision-makers to fully understand the setting of a listed building to assess the impact accurately.
• East Northamptonshire District Council v Secretary of State for Communities and Local Government [2013] 2 P&CR 5: Reinforced the importance of professional judgment in planning decisions.
• Tesco Stores Limited v Dundee City Council 2012 SC (UKSC) 278: Underlined the deference courts give to specialist planning inspectors’ expertise.

These precedents collectively underscored the principle that courts should respect the professional expertise and discretion of planning authorities unless there is a clear error of law or procedural flaw.

Legal Reasoning

The court's legal reasoning centered on the discretionary power of planning authorities in evaluating the impact of developments on listed buildings. Key aspects include:

• Statutory Duty Under Section 59: The planning authority is mandated to give special regard to the desirability of preserving listed buildings and their settings. However, the application of this duty involves professional judgment rather than rigid procedural compliance.
• Extent of Setting: Defining the "setting" of a listed building is not a rigid process. The court recognized that setting involves visual and physical considerations unique to each case, requiring a tailored assessment by the planning officer.
• Professional Judgment: The court emphasized that planning officers are entrusted with significant discretion and expertise, particularly in complex matters involving historical and architectural considerations.
• Evidence and Procedure: The absence of an on-site visit to Ardencaple House was deemed an exercise of the officer's professional judgment, supported by sufficient site visits and existing assessments. The court found no procedural defect that would warrant intervention.

The judgment reinforced that as long as the planning authority's decision is informed, rational, and within the bounds of their professional expertise, courts should refrain from overturning such decisions.

Impact

This judgment has significant implications for future planning cases involving listed buildings and their settings:

• Reaffirmation of Planning Authority Discretion: The decision underscores the broad discretionary powers of planning authorities, particularly in assessing the impact of developments on heritage assets.
• Judicial Deference: Courts will continue to defer to the professional judgment of planning officers unless there is a clear legal error or unreasonable decision-making process.
• Assessment Procedures: Planning authorities are validated in their approach to determining the necessity of certain assessments, such as on-site visits, based on the specifics of each case.
• Guidance Compliance: The judgment highlights the importance of adhering to established planning guidance and precedents in making informed decisions.

Overall, the case reinforces the balance between protecting heritage assets and allowing development, providing clarity on the extent of judicial oversight in planning decisions.

Complex Concepts Simplified

Listed Buildings and Their Setting

A listed building is one that has been placed on a statutory list due to its special architectural or historic interest. The setting of a listed building refers to the immediate and surrounding environment that contributes to its character and significance.

Section 59 of the 1997 Act

This section mandates that when considering planning permission for developments affecting a listed building or its setting, the planning authority must give special consideration to preserving the building and its surroundings.

Wednesbury Unreasonableness

A legal standard used to determine if a decision made by a public authority is so unreasonable that no reasonable authority would ever consider imposing it. In this case, the petitioners claimed that the planning officer's decision was Wednesbury unreasonable.

Judicial Review

A process by which courts examine the lawfulness of decisions or actions made by public bodies. The petitioner sought judicial review to challenge the planning authority's decision.

Conclusion

The judgment in Liddell v Argyll and Bute Council reaffirms the pivotal role of planning authorities in exercising professional judgment when assessing developments affecting listed buildings. By upholding the decision to grant planning permission, the court highlighted the necessity of balancing heritage conservation with development needs. Importantly, the ruling exemplifies judicial deference to expert decision-making in the planning realm, ensuring that such decisions are respected unless there is a manifest legal or procedural error. This case serves as a crucial reference for future disputes involving the preservation of historical assets and the discretionary powers of planning authorities.