Introduction

The case Simson v. Aberdeenshire Council & Ors ([2006] ScotCS CSOH_49) revolves around a petition for judicial review filed by Mr. John Simson against Aberdeenshire Council. The core issue pertained to the council's decision to grant planning permission for a wind energy development at Tullo Farm, Laurencekirk, Aberdeenshire. Mr. Simson contended that the council failed to adequately consider the impact of the proposed development on the setting of his 17th-century Category A listed building, "Gallery."

The parties involved include the petitioner, John Simson, the first respondent, Aberdeenshire Council, and the second and third respondents, West Coast Energy Limited and Tullo Wind Farm Limited, respectively. The case delves into statutory obligations under the Town & Country Planning (Scotland) Act 1997, particularly Section 59(1), which mandates special regard for preserving listed buildings and their settings.

Summary of the Judgment

Lady Clark of Calton presided over the case in the Scottish Court of Session. After thorough consideration, she concluded that Aberdeenshire Council had not breached their statutory duty under Section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The council had followed the requisite environmental assessment procedures, including public consultations and consultations with statutory bodies like Historic Scotland. The petitioner failed to provide sufficient evidence to demonstrate that the setting of the listed building "Gallery" was adversely affected by the proposed wind farm development. Consequently, the petition was not upheld, and the decision to grant planning permission stood.

Analysis

Precedents Cited

The court examined several precedents which informed the interpretation of Section 59(1) obligations:

• Wordie Property Co Ltd v Secretary of State for Scotland 1984 SLT 345 – Emphasized that decisions could be ultra vires if based on material errors of law or if relevant considerations were omitted.
• Bearsden and Milngavie DC v Secretary of State for Scotland [1992] SC 276 – Addressed the significance of material impacts on listed building settings.
• R v Rochdale Metropolitan Borough Council ex parte Milne [2001] Env LR 406, R v Cornwall CC ex parte Hardy [2001] Env LR 473, and Smith v Secretary of State for the Environment and the Regions [2003] Env LR 32 – These cases elucidated the application of Environmental Impact Assessment regulations in planning decisions.

These precedents underscored the necessity for planning authorities to consider significant environmental effects, including the preservation of architectural and historic interests. However, the court found that Aberdeenshire Council appropriately applied these principles within the context of the current case.

Legal Reasoning

The judgment hinged on the interpretation and application of Section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. This section mandates that planning authorities must give special regard to the desirability of preserving listed buildings and their settings.

Lady Clark analyzed whether the council had fulfilled this obligation. She determined that:

• The environmental statement submitted with the planning application did not overlook the setting of "Gallery" as per the evidence available.
• Historic Scotland, the statutory consultee, had reviewed the environmental statement and did not raise concerns regarding the setting of "Gallery."
• The council conducted extensive consultations and adhered to the Environmental Impact Assessment regulations, ensuring a comprehensive evaluation of potential impacts.

The petitioner failed to provide concrete evidence that the council neglected their duty. The absence of specific consideration of "Gallery" was not deemed a deviation from statutory requirements, especially given the positive assessment from Historic Scotland.

Impact

This judgment reinforces the standard that planning authorities must comply with statutory obligations, particularly in balancing development with heritage conservation. It emphasizes that:

• Authorities are not required to include every listed building in environmental assessments unless there is a substantial reason to do so.
• Consultations with statutory bodies like Historic Scotland are pivotal in informing planning decisions.
• Pleas for judicial review must be substantiated with robust evidence demonstrating statutory breaches.

Future cases involving the preservation of listed building settings will likely reference this judgment to ascertain the extent of a planning authority's duty and the evidentiary standards required to challenge planning decisions.

Complex Concepts Simplified

Section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997

This section requires planning authorities to give special regard to the preservation of listed buildings and their settings when considering planning permissions. "Special regard" means that the authority must prioritize the conservation of these buildings and their immediate environments unless there are overriding reasons for development.

Judicial Review

Judicial review is a legal process where courts examine the lawfulness of decisions or actions made by public bodies. It ensures that such decisions comply with statutory duties and principles of fairness. In this case, Mr. Simson sought judicial review to challenge the council's planning decision.

Environmental Impact Assessment (EIA)

An EIA is a process by which the environmental effects of a proposed development are evaluated. Under the Regulations, authorities must consider this assessment before granting planning permission. The EIA includes information on potential impacts on the environment, which in this case, pertained to the proposed wind farm development.

Ultra Vires

A Latin term meaning "beyond the powers." In legal context, a decision is ultra vires if it exceeds the authority granted by law. If Aberdeenshire Council had acted ultra vires, their planning permission decision would be invalid.

Conclusion