COLIN LIDDELL AND OTHERS AGAINST ARGYLL AND BUTE COUNCIL

Factual and Procedural Background

This opinion concerns a petition for judicial review brought by the proprietors of a listed 18th-century house ("Plaintiffs") against a local planning authority ("Defendant") for granting planning permission for a single dwelling house approximately 1.5 km from the listed property. The Plaintiffs sought reduction of the Defendant’s decision. The initial petition was refused by the Lord Ordinary. The Plaintiffs appealed, maintaining one ground of challenge related to an alleged failure by the planning authority to properly consider the desirability of preserving the listed building and its setting, contrary to section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The dispute centered on whether the planning officer adequately assessed the impact of the proposed development on the listed building’s setting, particularly given that she did not visit the property itself.

Legal Issues Presented

1. Whether the planning authority failed to comply with the statutory duty under section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 by not having special regard to the desirability of preserving the listed building or its setting.
2. Whether the planning officer’s failure to visit the listed building rendered the assessment invalid and the decision flawed.
3. Whether the planning officer’s conclusions were Wednesbury unreasonable or based on erroneous facts.

Arguments of the Parties

Plaintiffs' Arguments

• The planning officer’s report was misleading by omission, lacking necessary factual investigation, particularly failing to identify the extent of the listed building’s setting.
• Without defining the setting, the officer could not properly apply the statutory test or appreciate the relationship between the house, its setting, and the proposed development.
• The officer’s conclusion was Wednesbury unreasonable due to reliance on incorrect facts, such as the level of the proposed dwelling relative to existing development and the use of distant hills as a visual backdrop.
• The Lord Ordinary erred by treating the officer’s conclusions as mere planning judgment without resolving factual disputes.

Defendant's Arguments

• The planning officer was not required to define the setting of the listed building in her report but concluded the proposed development would not affect the house or its setting.
• The Plaintiffs provided no expert evidence on the setting’s nature or extent, and assertions by counsel were insufficient.
• The visual impact raised is a matter of planning judgment, not legal error or unreasonableness.
• The officer’s multiple site visits and professional judgment sufficed to assess the impact without visiting the listed building itself.
• The planning officer’s report properly summarized relevant policy and issues, and no legal duty required a visit to the listed building.
• Applicable case law supports deference to the planning authority’s expertise and judgment in such matters.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the planning officer’s investigative steps, including multiple site visits and her assessment of the views, topography, and distance between the proposed development and the listed building. The court found that the officer had formed a sufficient professional appreciation of the setting and the likely impact of the development without needing to visit the listed building itself. The court emphasized that the statutory duty under section 59(1) arises only if the development affects the listed building or its setting; here, the officer concluded it would not. The court applied established principles from precedent, recognizing that defining the extent of a setting is inherently a matter of planning judgment informed by relevant policy and guidance. The court rejected the Plaintiffs’ argument that failure to visit the building was a legal error, concluding it was a matter of professional discretion. The court also noted the absence of expert evidence from the Plaintiffs on the setting’s nature and extent. The court recognized that visual impact and landscape considerations are classic planning judgment matters, to which courts give deference absent clear legal error or unreasonableness. The court found no such error or defect in procedure and thus upheld the decision below.

Holding and Implications

The reclaiming motion (appeal) is refused.

The court held that the planning authority did not err in law or procedure in granting planning permission without visiting the listed building, as the officer’s investigations and professional judgment sufficed to assess the impact on the building’s setting. The statutory duty under section 59(1) did not arise because the development was found not to affect the listed building or its setting. The decision confirms the principle that defining and assessing the setting of a listed building is a matter of planning judgment, and courts will not lightly interfere with such professional evaluations absent clear error. The ruling has no broader implications beyond affirming deference to planning authorities in similar contexts and does not establish new precedent.