Building Preservation Notice Triggers a Fresh Listing Duty: HES May Reconsider a Recent “No-List” Decision

1) Introduction

This Inner House decision ([2026] CSIH 37, First Division) concerns the listing of the exterior of a disused 1933 cinema in Possilpark, Glasgow. The owner (a commercial developer) sought to challenge Historic Environment Scotland’s (“HES”) decision to list the exterior at category C, after the local planning authority, Glasgow City Council (“GCC”), served a building preservation notice (“BPN”) during demolition activity authorised by a building warrant.

The appeal was brought under section 58 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (“the 1997 Act”) against the Scottish Ministers (whose reporter had dismissed the statutory appeal under section 5B). HES participated as interested party.

The central issue was narrow but important in practice: once a BPN is served, is HES entitled (or required) to revisit and potentially reverse a very recent decision not to list the building?

2) Summary of the Judgment

The court refused the appeal and upheld the reporter’s decision. It held, in substance, that:

  • A lawfully served BPN changes the statutory and regulatory context and imposes on HES a fresh statutory duty to consider listing; HES is not bound by an earlier “no-list” decision made in a different context.
  • In this section 58 appeal, GCC’s decision to serve the BPN was not challenged; the court therefore proceeded on the basis that the BPN was lawfully issued, making attacks on its legitimacy irrelevant in this forum.
  • HES’s published policy (2019 Designation Policy and Selection Guidance) legitimately differentiates between (i) intervention where development proposals are advanced and no BPN exists, and (ii) situations where a BPN has been served.
  • The case was distinguishable from Weiss Development Co Ltd v Scottish Ministers [2024] CSIH 23; 2024 SLT 872 because the reporter here did engage with procedural fairness and the reasons for the changed outcome.
  • Any interference with property rights under A1P1 was proportionate and in the public interest, particularly as listing does not of itself preclude demolition or redevelopment (it alters the consent regime).

3) Analysis

3.1 Precedents Cited

(a) Weiss Development Co Ltd v Scottish Ministers [2024] CSIH 23; 2024 SLT 872

Weiss was relied upon by the owner for the proposition that an unexplained reversal by HES, and/or inadequate engagement with fairness, can amount to an error of law. The Inner House treated Weiss as turning on a reporter’s failure to address a central complaint about overall procedural fairness and an unexplained change of view.

The court distinguished Weiss on the facts and on the reporter’s reasoning: the reporter in the present case expressly identified procedural fairness as important, criticised shortcomings (including HES’s limited explanation of the reversal), but then addressed the decisive point—the legal effect of the BPN and the resulting change in context.

(b) Axa v Lord Advocate [2011] UKSC 46; 2012 SC (UKSC) 122

Axa was cited in relation to A1P1 proportionality and the “fair balance” between community interest and property rights. The Inner House held that the A1P1 argument “added nothing” because listing:

  • pursues a legitimate public interest (heritage protection through planning control);
  • does not prohibit demolition/development but requires consent within a structured regime; and
  • was proportionate on the facts, with the reporter having considered the owner’s circumstances.

3.2 Legal Reasoning

(a) The statutory architecture: listing, BPNs, and “temporary listing”

The court’s reasoning is anchored in the two-step protective mechanism of the 1997 Act:

  • Section 1: HES compiles the list of buildings of special architectural or historic interest.
  • Section 14(2) (and related controls): planning authorities must have special regard to preservation when deciding whether to grant consent for works affecting a listed building or its setting.

The “emergency brake” is section 3: a planning authority may serve a BPN where a non-listed building appears to be of special interest and is in danger of demolition/alteration affecting its character. While the BPN is in force, the statute treats the building as if listed (section 3(5)), for up to six months.

(b) The key holding: the BPN creates a fresh duty and a fundamentally different context

The owner argued that HES’s initial January 2024 decision not to list (because demolition proposals were “advanced”) should have prevented a rapid “re-run” leading to listing after the BPN.

The Inner House rejected that framing. It held that once GCC served a BPN, HES became subject to a statutory duty to consider listing in that new context. HES therefore was not bound by its earlier “no-list” stance, because the BPN:

  • was served because the building appeared to be of special interest and at risk;
  • meant the building must be treated as listed for six months; and
  • made continued demolition unlawful without the relevant consents.

This “radically different” legal position meant the second HES decision was not an irrational volte-face, but the performance of a fresh statutory function in altered circumstances.

(c) Limits of the appeal: indirect attacks on the BPN were irrelevant

A notable procedural point is the court’s insistence that, because the appeal did not challenge GCC’s BPN decision, the court proceeded on the basis it was lawfully issued. As a result, arguments that GCC acted unreasonably or inconsistently in serving a BPN shortly after granting a demolition warrant did not assist the owner in the section 58 appeal.

The practical implication is that parties who wish to contest a BPN’s legality may need to do so directly (in the appropriate procedure and time), rather than attempting to undermine it collaterally via an appeal focused on the listing decision.

(d) Policy guidance: proportionate non-intervention versus BPN-triggered intervention

The court accepted that HES’s 2019 guidance draws a real distinction:

  • Absent a BPN, HES will “normally avoid intervening unnecessarily” where development proposals are particularly advanced.
  • Where a BPN is served, HES “may list” even if development proposals are advanced.

The first handling report had itself anticipated a “separate process” if a BPN were served. The Inner House treated this differentiation as consistent with the statutory scheme: section 3 exists precisely to permit emergency protection and to compel/enable a listing assessment in urgent circumstances.

(e) Fairness and reasons: the reporter’s approach was lawful

The reporter criticised delays and imperfect communication (including between GCC functions) and noted HES’s limited explanation for the changed decision. However, he concluded these shortcomings did not alter the central question: whether what remained (the exterior) was of special interest and should be listed in the post-BPN context.

The Inner House held there was no legal error: the reasons were “adequately and intelligibly explained”, and the fairness issues were confronted (unlike the deficiency identified in Weiss).

3.3 Impact

  • Reassessment after “no-list” is permissible where a BPN is lawfully served. The decision confirms that an earlier non-listing decision does not freeze HES’s position when section 3 is invoked.
  • BPNs have genuine legal force as a context-shifting mechanism. They do not merely “pause time”; they alter the decision matrix by temporarily importing listed-building controls and compelling a fresh listing consideration.
  • Collateral challenges are discouraged. Parties should not expect to impeach the legitimacy of a BPN indirectly in an appeal about listing merits/reasons.
  • Administrative lessons, but not dispositive consequences. Even where authorities act slowly or communicate poorly, that may not defeat listing if the statutory criteria are met and the procedural essentials (reasons, fairness engagement) are satisfied.
  • A1P1 arguments face a high bar in listing disputes. The court reiterates that listing is a regulatory control, not an expropriation; proportionality will often be easier to show given the availability of consent pathways.

4) Complex Concepts Simplified

  • “Listing”: formal designation recognising special architectural/historic interest. It does not ban works outright, but triggers stricter consent requirements.
  • “BPN” (Building Preservation Notice): a short-term emergency tool used by a planning authority to treat a building as listed for up to six months, preventing demolition/alteration without the listed-building consent regime while HES considers listing.
  • “Procedural fairness”: decision-makers must follow fair procedures and provide intelligible reasons, particularly where decisions change and affect private interests.
  • A1P1 (Article 1 of Protocol 1): protects peaceful enjoyment of possessions. Interferences can be lawful if they pursue a legitimate aim in the public interest and strike a proportionate fair balance.
  • Different council “hats”: a local authority may act through separate statutory functions (eg, building standards issuing a warrant; planning authority serving a BPN). Apparent inconsistency may be explained by distinct legal roles and tests.

5) Conclusion

[2026] CSIH 37 establishes a clear practical rule within Scotland’s listed-building regime: a lawfully served BPN triggers a fresh statutory listing consideration, allowing HES to depart from a very recent decision not to list because the regulatory context has fundamentally changed. The decision reinforces the distinct statutory purpose of BPNs as an urgent protective mechanism, limits collateral challenges to BPN legitimacy in listing appeals, and confirms that (on these facts) listing is a proportionate control compatible with A1P1.