Judgment - House of Lords - City of Edinburgh Council v. Secretary of State for Scotland and Others   continued

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      The reporter concluded, on the evidence which was before him, that the riding school was one of the last buildings to be erected, and that this took place after 1915. It was for this reason that he held that the riding school was not covered by the statutory listing and that listed building consent was not required for its demolition. He noted that the view of all the experts who gave evidence at the inquiry was that, if the riding school was built after 1915, it was not covered by the barracks listing. It seems to me however that this evidence was insufficient to resolve the difficulty which had been created by the ambiguity in the list. That evidence did not address the possibility that the riding school was part of the original design for which Harry B. Measures was responsible. Unless it could be asserted that this structure had no part to play in the original design it would not be safe to assume that it was not included in the statutory listing. I would therefore hold, albeit for different reasons, that the result at which the Second Division arrived was the right one, as the reporter had insufficient information before him in the evidence to entitle him to resolve this issue in favour of the developer.

      I should like, finally, to add this further observation in regard to the ambiguity in the list. The problem which has arisen in this case suggests that the list, even in its new form, may require some reconsideration in order to remove such ambiguities. It is important that words of limitation which are used to exclude parts of a building from the statutory listing are sufficiently clear to enable those who are interested to identify what parts of the building are subject to the statutory controls and what are not. The fact that the controls are the subject of criminal sanctions provides an added reason for seeking greater clarity in the composition of the list than has been exhibited in this case.


My Lords,

      In 1993 Revival Properties Limited ("Revival") who are the second appellants in this appeal sought outline planning permission for the development of a food store, petrol filling station and ancillary works at a site in Colinton Mains Drive in Edinburgh. They also sought listed building consent for the demolition of a former riding school building which was on the site. The City of Edinburgh District Council refused planning permission and also refused listed building consent. Revival then appealed to the Secretary of State. A Senior Reporter was appointed to determine the appeal. He held a public local inquiry and thereafter issued a decision letter dated 7 March 1995. He decided that listed building consent was not required for the demolition of the former riding school building. On the matter of planning permission he allowed the appeal and granted outline planning permission subject to certain conditions. The Council then appealed to the Court of Session both on the matter of the listed building consent and on the matter of planning permission. After hearing the appeal the Second Division of the Court of Session by a majority allowed the appeal on both of those matters. The Secretary of State and Revival have now appealed to this House.

      The matter of listed building consent can conveniently be dealt with at the outset. It has been seen and treated as a distinct and separate issue from that of the planning permission. The Reporter considered a preliminary question whether listed building consent was required for the demolition of the former riding school building. It has not been suggested that he was not entitled to explore that question and I express no view on the propriety of his doing so. Section 52 of the Town and Country Planning (Scotland) Act 1972 provided for the compilation of lists of buildings of special architectural or historic interest. The provisions of that Act have now been superseded by the recent consolidating statute, the Town and Country Planning (Scotland) Act 1997, but it will be convenient for the purposes of the present case to refer to the legislation in force at the time of the appeal processes. In terms of section 52(1) the lists may be compiled by the Secretary of State or by others with his approval. Section 52(5) provides for notice to be given to the owner, lessee and occupier of a building of its inclusion in or exclusion from the list. That notice is to be given in a prescribed form. But there does not appear to have been any prescribed form for the lists themselves.

      There was produced to the Reporter a document relating to the City of Edinburgh District headed "List of Buildings of Architectural or Historic Interest." The list was set out in six columns. The first and the last three are not of importance. The second was headed "Name of Building" and the third was headed "Description." In the second column there was entered the following:


    Colinton Road and

    Colinton Mains Road

    (original buildings of

    1909-15 only)."

      The third column commenced with the words "Harry B. Measures, Director of Barrack Construction, 1909-15. Two large complexes of building on exceptionally spacious layout . . . comprising chiefly . . . " There then followed descriptions of a variety of buildings with some architectural detail. Included here, under the subheading Farriers' Shops and Riding School were the words "other buildings to S. with large riding school at extreme S.E. . . ." The view taken by the Reporter was that in the light of the evidence the building in question had probably been erected after 1915, that precedence should be given to the entry in the second column, and that on account of the reference to "original buildings of 1909-15 only" the riding school building was excluded from the list notwithstanding its specific mention in the third column. Having taken the view that listed building consent was unnecessary the Reporter did not address the question whether the demolition of a listed building should be permitted.

      The judges of the Second Division unanimously held that the Reporter was not entitled to hold as he had done that the building was not covered by the entry for Redford Barracks in the List. An appeal against that decision was taken only by Revival, the second appellant. Counsel for the Secretary of State did not address the issue. It should be observed that it would have been useful to have had more evidence about the form used for the compiling of such lists and the relative significance of the respective columns. Plainly it is desirable to compile the List with sufficient clarity and precision to avoid the kind of question which has arisen here. The insertion of a complex of buildings as one entry in a List may well give rise to problems. Even the provision of section 52(7) of the Act which extends the identification to buildings within the curtilage of a building may not produce sufficient clarity, particularly in a case such as the present where the building in question had passed into the separate ownership and occupation of the local authority and had in some way at least became separated from the barracks and other buildings still in military occupation. The argument, however, which was presented in the appeal was essentially that the matter was one of fact for the Reporter, or at least was not one which could be open to review. But the critical question here is one of the interpretation of the List and if the Reporter has misconstrued it and so misdirected himself that is undoubtedly a matter on which he may be corrected on appeal to a court of law.

      On the face of the List there is no evident problem. It was agreed by counsel for Revival that the whole document with its six columns comprised the "List" and his argument was presented on that basis. The building in issue is specifically mentioned in the document and can readily be taken to be entered on the list. The dates in the second column can be seen to echo the dates in the third column, indicating that it is the work of Harry Measures which is to be listed, and the riding school is noted in the description of the buildings for which he was presumably responsible.

      A problem may be thought to arise when it is found that the riding school was built after 1915. But it also appears that the barracks were not completed until the end of 1916. Ambiguity only arises if the words in the brackets are read, as the Reporter read them, as if they were intended to refer to buildings built during the specified years. But that is not what is stated and that is not the only possible construction. Even if there was a conflict between the two parts of the list it would be proper to find a construction which would make sense of the whole and that can be readily done by accepting that the period of years to which the passage in brackets refers is a period not of the completion of the building but of the processes of planning, conception, design and, at least to an extent, the realisation of Harry Measures' work. In that way there is no difficulty in recognising that the riding school may consistently with the text in the second column be entered in the third column as a listed building. In my view the judges of the Second Division reached the correct view on this matter and I would refuse the appeal on the matter of the listed building consent.

      I turn next to the appeal on the matter of the planning permission. The first point raised on behalf of the Secretary of State in opening his appeal concerned the meaning and effect of section 18A of the Act of 1972. It was stated on his behalf that this was the principal purpose of his appeal. The section had excited some controversy and guidance was required. Neither of the other parties however was concerned to challenge the submission advanced by counsel for the Secretary of State. The views which I would adopt on this part of the appeal accord with his submission and at least in the absence of any contradiction seem to me to be sound.

      Ever since the introduction of a comprehensive system for the control of land development in Scotland by the Town and Country Planning (Scotland) Act 1947 planning authorities have been required to prepare a plan which was to serve as a guide for the development of their respective areas. These plans required to be submitted to the Secretary of State for his approval. Following on the reorganisation of local government introduced by the Local Government (Scotland) Act 1973 planning functions became divided between the regions, who were required to prepare "structure plans," and the districts, who were required to prepare "local plans." For the purposes of the present case the structure plan was the Lothian Regional Structure Plan of 1985 and the local plan was the South West Edinburgh Local Plan ("S.W.E.L.P."). But the old terminology was also preserved. Section 17 of the Town and Country Planning (Scotland) Act 1972 provided that for the purposes of the planning statutes the development plan shall be taken to consist of the structure plan approved by the Secretary of State with any approved alterations and the provisions of the approved local plan with any adopted or approved alterations. In and after the 1947 Act provision was made for the recognition of the development plan in relation to determinations of applications for planning permission. Section 26(1) of the 1972 Act, echoing the language of section 12(1) of the Act of 1947, required a planning authority in dealing with the application to "have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations." The meaning of this formulation in the context of section 12(1) of the Act of 1947 was set out in a decision in the Outer House of the Court of Session by Lord Guest in Simpson v. Edinburgh Corporation, 1960 S.C. 313. His Lordship stated (at pp. 318-319):

    "It was argued for the pursuer that this section required the planning authority to adhere strictly to the development plan. I do not so read this section. 'To have regard to' does not, in my view, mean 'slavishly to adhere to.' It requires the planning authority to consider the development plan, but does not oblige them to follow it . . . If Parliament had intended the planning authority to adhere to the development plan, it would have been simple so to express it . . . .In my opinion, the meaning of section 12(1) is plain. The planning authority are to consider all the material considerations, of which the development plan is one."

      Section 18A was introduced into the Act of 1972 by section 58 of the Planning and Compensation Act 1991. A corresponding provision was introduced into the English legislation by section 26 of the Act of 1991, in the form of a new section 54A to the Town and Country Planning Act 1990. The provisions of section 18A, and of the equivalent section 54A of the English Act, were as follows:

    "Status of development plans

    Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise."

      Section 18A has introduced a priority to be given to the development plan in the determination of planning matters. It applies where regard has to be had to the development plan. So the cases to which section 26(1) of the Act of 1972 apply are affected. By virtue of section 33(5) of the Act of 1972 section 26(1) is to apply in relation to an appeal to the Secretary of State. Thus it comes to apply to the present case.

      By virtue of section 18A the development plan is no longer simply one of the material considerations. Its provisions, provided that they are relevant to the particular application, are to govern the decision unless there are material considerations which indicate that in the particular case the provisions of the plan should not be followed. If it is thought to be useful to talk of presumptions in this field, it can be said that there is now a presumption that the development plan is to govern the decision on an application for planning permission. It is distinct from what has been referred to in some of the planning guidance, such as for example in paragraph 15 of PPG1 of 1988, as a presumption but what is truly an indication of a policy to be taken into account in decision-making. By virtue of section 18A if the application accords with the development plan and there are no material considerations indicating that it should be refused, permission should be granted. If the application does not accord with the development plan it will be refused unless there are material considerations indicating that it should be granted. One example of such a case may be where a particular policy in the plan can be seen to be outdated and superseded by more recent guidance. Thus the priority given to the development plan is not a mere mechanical preference for it. There remains a valuable element of flexibility. If there are material considerations indicating that it should not be followed then a decision contrary to its provisions can properly be given.

      Moreover the section has not touched the well-established distinction in principle between those matters which are properly within the jurisdiction of the decision-maker and those matters in which the court can properly intervene. It has introduced a requirement with which the decision-maker must comply, namely the recognition of the priority to be given to the development plan. It has thus introduced a potential ground on which the decision-maker could be faulted were he to fail to give effect to that requirement. But beyond that it still leaves the assessment of the facts and the weighing of the considerations in the hands of the decision-maker. It is for him to assess the relative weight to be given to all the material considerations. It is for him to decide what weight is to be given to the development plan, recognising the priority to be given to it. As Glidewell L.J. observed in Loup v. Secretary of State for the Environment and Another (1995) 71 P. & C.R. 175 at p. 186 "What section 54A does not do is to tell the decision-maker what weight to accord either to the development plan or to other material considerations." Those matters are left to the decision-maker to determine in the light of the whole material before him both in the factual circumstances and in any guidance in policy which is relevant to the particular issues.

      Correspondingly the power of the court to intervene remains in principle the same as ever. That power is a power to challenge the validity of the decision. The grounds in the context of planning decisions are contained in section 233 of the Act of 1972, namely that the action is not within the powers of the Act, or that there has been a failure to comply with some relevant requirement. The substance of the former of these grounds is too well established to require repetition here. Reference may be made to the often quoted formulation by Lord President Emslie in Wordie Property Co. Ltd. v. Secretary of State for Scotland, 1984 S.L.T. 345 at 347-348. Section 18A has not innovated upon the principle that the court is concerned only with the legality of the decision-making process. As Lord Hoffmann observed in Tesco Stores v. Secretary of State for the Environment [1995] 1 W.L.R. 759 at p. 780. "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."

      In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will require to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.

      Counsel for the Secretary of State suggested in the course of his submissions that in the practical application of the section two distinct stages should be identified. In the first the decision-maker should decide whether the development plan should or should not be accorded its statutory priority; and in the second, if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration. But in my view it is undesirable to devise any universal prescription for the method to be adopted by the decision-maker, provided always of course that he does not act outwith his powers. Different cases will invite different methods in the detail of the approach to be taken and it should be left to the good sense of the decision-maker, acting within his powers, to decide how to go about the task before him in the particular circumstances of each case. In the particular circumstances of the present case the ground on which the Reporter decided to make an exception to the development plan was the existence of more recent policy statements which he considered had overtaken the policy in the plan. In such a case as that it may well be appropriate to adopt the two-stage approach suggested by counsel. But even there that should not be taken to be the only proper course. In many cases it would be perfectly proper for the decision-maker to assemble all the relevant material including the provisions of the development plan and proceed at once to the process of assessment, paying of course all due regard to the priority of the latter, but reaching his decision after a general study of all the material before him. The precise procedure followed by any decision-maker is so much a matter of personal preference or inclination in light of the nature and detail of the particular case that neither universal prescription nor even general guidance are useful or appropriate.