Appeal by Weiss Development Company LTD against the Scottish Ministers (Court of Session)

Factual and Procedural Background

The Appellants purchased an industrial building known as City Sawmills located in The City in 2013. In 2022, they applied for planning permission to demolish the building and construct residential flats. Concurrently, a local Member of Parliament requested Historic Environment Scotland (HES) to consider listing the building as one of historic and architectural interest to prevent its demolition. HES initially assessed the building and, despite finding it met listing criteria, declined to list it due to the advanced stage of the Appellants' development proposals. Subsequently, a Building Preservation Notice (BPN) was issued by the local planning authority, prompting HES to reassess and designate the building as a category C listed building. The Appellants appealed this designation to the Scottish Ministers, who appointed a reporter to consider the appeal. The reporter dismissed the appeal, upholding the listing decision. The Appellants then appealed to the Court of Session under section 58 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.

Legal Issues Presented

1. Whether the initial decision by HES not to list the building constituted a certificate under section 5A of the 1997 Act, thereby preventing listing or serving of a BPN for five years.
2. Whether the building met the statutory criteria of special architectural or historic interest to justify its listing.
3. Whether the reporter erred in law by failing to address the Appellants' concerns regarding the fairness and transparency of the listing process, particularly the unexplained reversal by HES of its original decision not to list the building.

Arguments of the Parties

Appellants' Arguments

• The initial decision by HES not to list the building amounted to a certificate under section 5A, which legally barred listing or the serving of a BPN for five years.
• HES's reversal of that decision was unfair, lacked explanation, and breached legitimate expectations created by the first decision.
• The BPN served by the local planning authority was invalid as it was not properly served on the building's owners.
• HES's decision infringed procedural fairness and the Appellants' rights under Article 1 of the First Protocol to the European Convention on Human Rights.
• The building had been substantially refitted prior to 1922, reducing its architectural and historic interest.
• The involvement of a local Member of Parliament in the listing process compromised its independence.

Respondents' Arguments

• The initial decision by HES was not a certificate under section 5A as no application for such a certificate had been made.
• The reporter correctly dismissed the appeal after determining the building met the criteria for listing.
• The court's role under section 58 is limited to legality of the decision, not its merits or planning judgment.
• The Appellants failed to raise any valid ground of appeal under section 58 or demonstrate error by the reporter.
• The certificate under section 5A requires a formal application and issuance process, which did not occur in this case.
• Concerns about the listing process and planning application were irrelevant to the appeal focused solely on architectural or historic interest.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Wordie Property Co v Secretary of State for Scotland (1984 SLT 345)	Grounds for judicial review including improper exercise of discretion, material error of law, irrelevant considerations, and no reasonable decision.	The court applied this precedent to define the scope of review under section 58, focusing on legality rather than merits.
Taylor v Scottish Ministers (No. 2) (2019 SLT 681)	Limits on a reporter's role in considering only information placed before them and not acting on their own initiative.	The court referenced this case to caution against the reporter seeking out new information but held the reporter erred by failing to address key issues raised by the Appellants.
Cook v Ziff Colored Masonic Lodge No 119 (Arkansas Supreme Court, 1906)	Definition and nature of a certificate as a legal assurance by a public official.	Referenced by the Appellants to support their argument that the initial decision was a certificate creating legitimate expectation.
Kay-Vee Realty Co. Inc. v Town Clerk of Ludlow (Massachusetts Supreme Judicial Court)	Nature of certificates and public authority assurances.	Referenced similarly to support the Appellants' position on legitimate expectations arising from the initial decision.

Court's Reasoning and Analysis

The court first addressed the legal nature of the initial HES decision not to list the building. It held that a certificate under section 5A requires an application and formal issuance, neither of which occurred here. Therefore, the initial decision was distinct from a certificate and did not legally preclude listing or the serving of a BPN. The court emphasized that the powers to list a building and to issue a certificate are separate statutory provisions with different preconditions and effects.

Regarding the substantive listing, the court noted the reporter correctly applied the statutory criteria and HES's designation policy, concluding the building was of special architectural and historic interest. The court accepted the evidence that despite some alterations, the building retained significant original features and historic associations warranting listing.

The court then considered procedural fairness and the Appellants' concerns about the unexplained reversal by HES of its initial decision. It found that the reporter took too narrow a view by focusing solely on architectural and historic interest and failing to engage with the Appellants' legitimate concerns about fairness, transparency, and the rationale for the change in HES's position. The court held this omission amounted to an error of law, as the reporter should have addressed whether the reversal was justified or arbitrary given the lack of material change in circumstances.

Consequently, the court quashed the reporter's decision and ordered that the appeal be reconsidered by a different reporter with proper consideration of these procedural fairness issues.

Holding and Implications

The court issued a decision allowing the appeal and quashing the reporter's decision dated 11 October 2023.

The direct consequence is that the appeal against the building's listing must be reheard by a different reporter who will properly consider the procedural fairness concerns raised by the Appellants, including the unexplained reversal by HES. The court did not set any new precedent on the substantive criteria for listing but clarified the scope of procedural fairness in such appeals. This decision ensures that public authorities must give adequate reasons and address legitimate expectations when reversing prior decisions in the context of statutory listings.