Court of Session (First Division, Inner House) — Summary of Opinion

Factual and Procedural Background

This appeal concerned a challenge to a decision by the Interested Party to list, under section 1(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997, the exterior of a disused cinema located at [Number] Main Street in The City. The building, designed by James McKissack and opened in 1933, had operated as a cinema and later as a bingo hall; the auditorium had been unused since the 1990s. The Appellants purchased the building circa 2005 and later sought to redevelop it as a vehicle showroom with flats; no planning permission for that redevelopment had been granted.

On 7 July 2023 a third party requested the Interested Party to list the building. On 21 November 2023 the Appellants applied to the local planning authority for a building warrant authorising demolition; a warrant was granted on 22 December 2023 and demolition began shortly thereafter. The Interested Party first inspected the site on 4 January 2024 and issued a decision report on 12 January 2024 concluding the building met listing criteria but deciding not to list because development proposals were at an advanced stage. On 15 January 2024 the planning authority served a Building Preservation Notice (BPN). The Interested Party re-assessed the building, undertook consultation, and on 3 June 2024 issued a decision listing the exterior as category C. The Appellants appealed that listing to the Respondents; a reporter dismissed the appeal on 11 July 2025. The Appellants then appealed to this Court under section 58 of the 1997 Act.

Legal Issues Presented

1. Whether, once the planning authority had served a Building Preservation Notice (BPN), the Interested Party was entitled to revisit and change an earlier decision not to list the building.
2. Whether the reporter and Interested Party acted lawfully and with adequate reasoning and procedural fairness in reversing the initial decision and listing the building.
3. Whether the listing decision constituted an unlawful or disproportionate interference with the Appellants' property rights under Article 1 of Protocol 1 to the Convention.

Arguments of the Parties

Appellant's Arguments

• The reporter erred in law by accepting that there was no impediment to the Interested Party revisiting a decision not to list within a short period.
• The BPN is a procedural mechanism to allow assessment where no assessment has been done; it should not be used to overturn a completed assessment absent a material change of circumstances.
• Section 3(6) of the 1997 Act prevents HES from being required to revisit and change a decision within 12 months of deciding not to list; consistency and reliance on recent decisions are important.
• The reporter acted irrationally and failed to give adequate reasons; the change of decision shortly after the initial assessment lacked rational justification (relying on Weiss Development Co Ltd v Scottish Ministers).
• The listing interfered with the Appellants' rights under Article 1 of Protocol 1 ECHR and was neither lawful nor proportionate.

Respondents' Arguments

• The reporter was correct to find no impediment to service of the BPN and to the planning authority lawfully exercising its power to serve it in the face of imminent demolition.
• The reporter properly understood and applied the statutory provisions; the BPN justified fresh consideration by the Interested Party.
• Weiss is distinguishable on its facts; the reporter in the present case engaged with procedural fairness whereas the reporter in Weiss did not.
• The reporter's reasons were adequate and intelligible; the listing was lawful and proportionate.

Interested Party's Arguments

• There was no prohibition or impediment to the planning authority issuing a BPN where it appeared the building was of special interest and in danger of demolition.
• The BPN changed the regulatory context of the earlier decision and invited the Interested Party to intervene; it was rational to issue the BPN and for the Interested Party to list following reassessment.
• The second decision did not represent undue intervention in the planning process and was consistent with the purpose of the 1997 Act.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Weiss Development Co Ltd v Scottish Ministers [2024] CSIH 23; 2024 SLT 872	Reporter erred in law in Weiss by failing to engage with procedural fairness and an unexplained change of view by the designating authority.	The Court distinguished Weiss: here the reporter engaged fully with procedural fairness, criticised shortcomings in timing and explanation but nonetheless concluded the listing could stand; Weiss did not govern this case.
Axa v Lord Advocate [2011] UKSC 46; 2012 SC (UKSC) 122	Principles on proportionality and legitimate balancing of property rights under Article 1 of Protocol 1 ECHR.	The Court held the Article 1 claim added nothing: listing did not preclude demolition or development and any interference was proportionate and in the public interest.

Court's Reasoning and Analysis

The Court identified the central legal effect of the BPN: service of a BPN under section 3 meant HES (the Interested Party) became subject to a statutory duty to consider whether to list the building and to do so afresh in a materially different regulatory context (the building being treated as if listed for six months). The Court accepted that the planning authority's earlier grant of a building warrant and later service of a BPN reflected distinct statutory functions and that the change of circumstances for decision-making was created by the BPN.

The Court examined the Interested Party's published guidance (Designation Policy and Selection Guidance, 2019) and noted it differentiates between cases where a BPN has been served and where it has not; the Interested Party had relied on that policy in reaching a different conclusion on reassessment. The Court also reviewed procedural fairness: it recognised defects in timing, communication and the Interested Party's explanation for reversing its initial view, but concluded those defects did not render the listing unlawful or irrational.

The Court distinguished Weiss on its facts because, in Weiss, the reporter failed to engage with procedural fairness; here the reporter had considered procedural fairness, criticised shortcomings, and nonetheless found the listing justified given the building's special interest and the exceptional character of the BPN intervention. The Court further addressed the Appellants' Convention argument, finding the listing compatible with Article 1 of Protocol 1 because it was proportionate and did not preclude lawful development.

Holding and Implications

APPEAL REFUSED

Holding: The Court refused the appeal and upheld the reporter's decision dismissing the Appellants' appeal against the listing. The Court found no legal error in the reporter's approach, accepted that the BPN required fresh consideration by the Interested Party, and concluded that procedural shortcomings did not invalidate the listing.

Implications: The practical consequence is that the listing of the exterior of the building as category C remains in force; demolition cannot lawfully continue without listed building consent. The decision does not announce a new general precedent displacing the principles applied in Weiss; the Court treated Weiss as distinguishable. Questions of expenses were reserved.