Saqib Deen, trading as Apex Services against the Scottish Ministers

Factual and Procedural Background

The Appellant, sole director and shareholder of Company A, was the tenant of a Category B listed semi-detached villa located at 11 Main Street, The City. In mid-2022, the Appellant carried out refurbishment works including subdividing two large principal rooms into separate bedrooms and subsequently offered the property for short-term lets. In December 2022, the Appellant applied retrospectively for listed building consent for the internal alterations and for a change of use from Class 9 residential flats to Class 7 guesthouse. The planning authority, City Council, consulted Historic Environment Scotland (HES), which advised refusal due to harm to the building's character.

The City Council refused both the listed building consent and the change of use application in early 2023. The Appellant did not restore the original layout and continued short-term letting. Enforcement notices were served in June 2023: one under the Town and Country Planning Act requiring cessation of the guesthouse use, and one under the Listed Buildings Act requiring removal of partitions and restoration of the property. The Appellant appealed these notices to the Respondents (Scottish Ministers), who appointed a reporter. The reporter refused both appeals, leading to the present appeal to this court.

Legal Issues Presented

1. Whether the reporter erred in refusing the listed building enforcement notice appeal by failing to undertake an internal site visit and improperly exercising discretion.
2. Whether the reporter erred in refusing the planning enforcement notice appeal by not considering if the property could continue to operate as a guesthouse within Class 9 use limitations.
3. Whether the reporter erred in characterising the subdivided rooms as principal rooms for the purposes of listed building control.

Arguments of the Parties

Appellant's Arguments

• The reporter improperly exercised discretion by refusing an internal site visit, which was necessary to assess the impact of the internal alterations.
• The reporter failed to consider that the planning notice should have allowed operation as a guesthouse within Class 9 use limits (i.e., limited number of bedrooms), making the enforcement notice excessive.
• The reporter wrongly characterised the subdivided rooms as principal rooms, ignoring that one was a bedroom, thus misapplying relevant guidance and rendering the decision ultra vires.

Respondents' Arguments

• The Appellant's appeal before the reporter included an offer to reduce guest numbers inconsistent with Class 9 use; the reporter correctly found a breach of planning control for unauthorised Class 7 use.
• The reporter was entitled to confine consideration to the grounds actually advanced and was not required to consider alternative uses outside those grounds.
• The reporter had sufficient evidence (photographs, floor plans, HES advice) to assess the listed building issues without an internal visit; his planning judgment on the necessity of a site visit and characterisation of rooms was proper and within discretion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Cameron v Scottish Ministers [2020] CSIH 6	Determination of change of use is a question of fact and degree for the reporter.	The court accepted that the reporter was the primary fact-finder on whether a change of use had occurred.
Simson v Aberdeenshire Council 2007 SC 366	Planning authorities have discretion on how much information is needed to assess applications.	The court upheld the reporter's discretion in deciding not to conduct an internal site visit.
Liddell v Argyll and Bute Council 2020 SLT 956	Decision makers must understand the setting for planning assessments; site visits are discretionary and depend on necessity.	The court found the reporter's decision not to visit internally was within his discretion and not unreasonable.
Cartledge v Scottish Ministers (No. 2) 2011 SC 602	Onus on appellant to establish factual basis for appeal.	The court noted the appellant had to provide sufficient material to justify the appeal.
Taylor v Scottish Ministers 2019 SLT 681	Reporter should confine decision-making to material before him.	The court found the reporter properly confined his decision to the material and grounds presented.
Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345	Failure to take into account relevant considerations renders a decision ultra vires.	The court rejected the appellant's claim of ultra vires, finding the reporter had considered relevant factors.
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759	Judicial review of planning decisions is limited to legality; merits are only reviewed if Wednesbury unreasonable.	The court confirmed it would not interfere with the reporter's planning judgment absent unreasonableness.

Court's Reasoning and Analysis

The court analysed the reporter's decisions under the statutory framework governing listed building and planning enforcement appeals. It recognised the wide discretion afforded to reporters in exercising planning judgment, including whether to conduct site visits. The reporter had ample evidence before him, including floor plans, photographs, and expert guidance from Historic Environment Scotland, enabling him to assess the impact of the internal alterations without an internal inspection. The court held that the reporter’s decision not to conduct an internal site visit was a lawful exercise of discretion and not Wednesbury unreasonable.

Regarding the planning enforcement notice, the court emphasised that the notice targeted cessation of unauthorised Class 7 guesthouse use, not the authorised Class 9 use which permits limited guesthouse operation. The court found the Appellant’s construction of the notice as prohibiting all guesthouse use was misconceived. The reporter correctly concluded that no lesser steps would remedy the breach than requiring cessation of the unauthorised use.

The court also rejected the Appellant’s argument that the reporter erred in characterising the subdivided rooms as principal rooms. The evidence showed these were the largest rooms with notable original features, consistent with Historic Environment Scotland’s guidance. The reporter’s characterization was a matter of planning judgment properly reached.

Holding and Implications

The court REFUSED the appeal.

The direct effect of this decision is that the enforcement notices issued by the City Council remain in force, requiring the Appellant to cease the unauthorised Class 7 guesthouse use and to remove the internal partitions to restore the listed building’s character. No new legal precedent was established; the court affirmed established principles concerning the scope of planning discretion, the role of site visits, and the interpretation of enforcement notices.