EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Abernethy

Lord Eassie

Lord Mackay of Drumadoon

[2007] CSIH 10

P/2139/05

OPINION OF LORD ABERNETHY

RECLAIMING MOTION

in the Petition of

JOHN SIMSON

Petitioner and Reclaimer:

for

Judicial Review

of a decision of Kincardine and Mearns Area Planning Committee of Aberdeenshire Council

_______

Act: J. Campbell, Carruthers; Thorntons-Law (Petitioner and Reclaimer)

Alt: O'Carroll; Shepherd & Wedderburn (First Respondent): C. Campbell, Q.C.;

CMS Cameron-McKenna (Second and Third Respondents)

25 January 2007

Introduction and background

[1] The petitioner and reclaimer in this petition for judicial review resides in a 17th century Grade A listed house known as Gallery, by Montrose, Angus. The first respondents are Aberdeenshire Council. The petition relates to the grant by the Kincardine and Mearns Area Planning Committee of the first respondents of planning permission for the erection of eight wind turbines, a substation, access tracks and ancillary development at Tullo Farm, Laurencekirk, Aberdeenshire ("the development"). The application for planning permission was at the instance of West Coast Energy Limited, The Long Barn, Waen Farm, Nercwys Road, Mold, Flintshire. They are the second respondents. Tullo Wind Farm Limited, whose agents are the second respondents, have an interest in the petition. They are the third respondents.

[2 ] The petition seeks judicial review of a decision on 20 July 2005 by the Area Planning Committee to issue a grant of full planning permission for the development. It is averred that the decision was ultra vires of the first respondents in that they failed to carry out their statutory obligation to have special regard to the desirability of preserving the building or the setting of Gallery in terms of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 section 59(1). The petitioner seeks (in Statement 11 of the petition), inter alia, (1) declarator that that planning permission was ultra vires and therefore null and of no effect; and (2) an order quashing the planning permission and directing that the application be returned to the first respondents for re-consideration in light of the requirement of section 59(1) of the said Act. The relevant pleas-in-law for the petitioner are in the following terms:-

"1. The (first) respondent having acted irrationally and perversely, et separatim ultra vires in issuing the said planning permission, declarator should be pronounced to that effect.

2. The (first) respondent having acted irrationally and perversely, et separatim ultra vires in issuing said planning permission, it should be quashed."

[3 ] The relevant pleas-in-law for the first respondents are as follows:-

"1. In the circumstances the petitioner is barred by mora from insisting upon these proceedings and seeking the order craved in the petition.

...

4. The decision of the (first) respondent not being irrational, perverse or ultra vires, the orders sought should not be pronounced and the petition should be dismissed."

[4 ] The relevant pleas-in-law for the second and third respondents are as follows:-

"1. In the circumstances hereinbefore averred, the petitioner is barred by mora from insisting upon these proceedings and in seeking the orders sought in the petition.

...

4. The decision complained of being reasonable et separatim lawful the orders sought should not be pronounced."

[5 ] By interlocutor dated 2 June 2006 the Lord Ordinary, inter alia, repelled the petitioner's first and second pleas-in-law, sustained the first respondents' first and fourth pleas-in-law, sustained the second and third respondents' first and fourth pleas-in-law and refused to grant the orders sought in Statement 11 of the petition heads (1) and (2). It is against that interlocutor that the petitioner now reclaims.

The legislative structure

[6 ] The legislative provisions which apply to this case are helpfully set out in the Opinion of the Lord Ordinary as follows:-

"[3] The Town & Country Planning (Scotland) Act 1997, as amended, provides:

'37.--- (1) Where an application is made to a planning authority for planning permission -

(a) subject to sections 58 and 59, they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or

(b) they may refuse planning permission.

. . . .

(3) Subsection (1) has effect subject to sections 34 and 35 and to the following provisions of this Act, and to sections 59(1), 60 and 65 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.'

The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 provides:

'59. --- (1) In considering whether to grant planning permission for development which affects a listed building or its setting, a planning authority or the Secretary of State, as the case may be, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.'

. . . .

'60.--- (1) This section applies where an application for planning permission for any development of land is made to a planning authority and the development would, in the opinion of the authority, affect the setting of a listed building.'"

The ensuing subsections of section 60 make provision for advertisement and the taking into account of representations received within 21 days of that advertisement. The Opinion of the Lord Ordinary then continues by setting out the following provisions:-

"[4] The Environmental Impact Assessment (Scotland) Regulations 1999, as amended, provide :

'2. - (1) . . . . "environmental information" means the environmental statement including any further information, any representations made by anybody required by these Regulations to be invited to make representations, and any representations duly made by any other person about the environmental effects of the development;

"environmental statement" means a statement -

(a) that includes such of the information referred to in Part I of

Schedule 4 as is reasonably required to assess the environmental effects of the development and which the applicant can, having regard in particular to current knowledge and methods of assessment, reasonably be required to compile, but

(b) that includes at least the information referred to in Part II of

Schedule 4;'

'3. - . . . . (2) The relevant planning authority or the Scottish Ministers shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration, and they shall state in their decision that they have done so.'

'10. - (1) A person who is minded to make an EIA application may ask the relevant planning authority to state in writing their opinion as to the information to be provided in the environmental statement (a "scoping opinion").

(2) A request under paragraph (1) shall include -

(a) a plan sufficient to identify the land;

(b) a brief description of the nature and purpose of the development and of its possible effects on the environment; and

For the avoidance of doubt we should add that the application for planning permission in this case was an EIA (Environment Impact Assessment) application within the meaning of the 1999 Regulations and was an application to which regulation 3 applied.

The facts

[7 ] For the purposes of this reclaiming motion there was no dispute as to the facts of the case. They are set out in the Opinion of the Lord Ordinary as follows:

"[5] The petitioner lives in a 17^th century house called 'Gallery'. Gallery is a Category A listed building located in the area of Angus Council. Category A is the category of listing allocated by Historic Scotland to buildings in Scotland of national or international importance, either architectural or historic, or fine, little altered examples of some particular period, style or building type. Gallery is a building of national importance.

[6 ] An application for full planning permission dated 6 October 2003 was submitted to the first respondents, in name of the third respondents specifying the second respondents as agent. The application sought planning permission for erection of eight wind turbine generators, a sub-station, the construction of access tracks and ancillary development. Gallery is located approximately 9.2 kilometres to the south-west of the location of the nearest turbine in the development. The application for planning permission was submitted along with supporting documentation which included a document called by the second and third respondents an environmental statement in support of the application. The said statement was treated by the first respondents as an environmental statement for the purposes of the Environmental Impact Assessment (Scotland) Regulations 1999 as amended (hereinafter referred to as the 1999 Regulations). The environmental statement had been developed out of a scoping exercise in which the views of interested parties and consultees were sought in particular about methodology. The scoping report was dated 13 September 2002. Discussions on behalf of the second and third respondents took place with the first respondents and various consultees including Scottish Natural Heritage and Angus Council. As a result of this process, the second and third respondents developed the scope of the environmental statement. In particular, the area of the original proposed study area was extended and the number of selected viewpoints which were part of the methodology to assess landscape and visual impact were increased. This was done to reflect concerns of Scottish Natural Heritage which specifically asked that an assessment should be made of the historic gardens and landscapes at Arbuthnott House, Glenbervie House and Fasque. The finalised environmental statement included specific assessment of these listed buildings and gardens in accordance with the viewpoints agreed with Scottish Natural Heritage. These matters were included in the environmental statement within a section dealing with landscape and visual impact assessment. Gallery is also located in the study area.

[7 ] Thereafter on 7 and 14 November 2003 the planning application was advertised in accordance with the statutory requirements under Section 34 of the Town & Country Planning (Scotland) Act 1997 and the 1999 Regulations. No advertisement was made under Section 60 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997. The period for objection to the planning application ended on 22 November 2003. The period for representations to be made in relation to the environmental statement ended on 8 December 2003. The results of the consultation process are summarised in the report to the first respondents' Planning Committee dated 29 June 2004. In addition to many representations from members of the public, there was extensive consultation carried out by the first respondents including local community councils, statutory consultees, various sections of the Council Services and other private and public groups who the first respondents considered might have an interest in the application.

[8 ] One of the consultees was Historic Scotland. Historic Scotland is an agency of the Scottish Executive with particular expertise and responsibility in relation to listed buildings. Historic Scotland has published guidance called the Memorandum of Guidance on Listed Building and Conservation Areas (1998). By letter dated 4 December 2003, the first respondents sent to Historic Scotland a copy of the planning application form and plans asking for any comments on the proposal within a short time scale. Sometime prior to 29 January 2004 Historic Scotland considered the environmental statement. By letter dated 29 January 2004, Historic Scotland replied to the first respondents and made detailed comments about the content of the environmental statement in relation to their statutory archaeological interests. In conclusion, it was stated on behalf of Historic Scotland 'I can however confirm that, in terms of our listed building and designed landscape interest, we are content to agree with the findings of the environmental statement.'

[9 ] The environmental statement does not contain any information dealing with listed buildings and their settings except as explained above in paragraph 6 in relation to Arbuthnott House, Glenbervie House and Fasque. There is no mention in the environmental statement of Gallery or its setting.

[10 ] On 8 June 2004 the application for planning permission called before the first respondents' planning committee. Consideration of the application was deferred to 29 June 2004 to allow for a site visit and to give the planning services department of the first respondents an opportunity to comment on a late submission by Scottish National Heritage unconnected with listed buildings and their settings.

[11 ] By letter dated 26 June 2004 and received by the first respondents on 28 June 2004, the petitioner intimated his objection to the grant of planning permission for the development. The petitioner did not make any case based on the Class A listing of Gallery or refer specifically to any effect on the setting. His principal objection was that the development would have adverse landscape and visual impact in relation to Gallery.

[12 ] On 29 June 2004 the first respondents' Planning Committee met in public session and gave an opportunity to some objectors to address the Committee. The timetable was relaxed to permit the petitioner to do so. The petitioner expressed regret at the negative impact which the development would have upon the view from Gallery.

[13 ] The Committee considered the report of the Planning Officer dated 21 June 2004 which recommended the grant of planning permission. Said report contained no mention or assessment of Gallery and/or its setting. The report did contain reference to the opinion of Historic Scotland which was summarised as follows:

'Historic Scotland confirm that in terms of their listed buildings and designed landscapes they agree with the contents of the environmental statement ...'

Having considered the content of the report and heard submissions, both in favour and against the grant of planning permission, in accordance with the first respondents' scheme of delegation the Planning Committee agreed that authority to grant full planning permission for the development be delegated to the Head of Planning and Building Control. Permission was subject to the negotiation of an agreement in terms of section 75 of the Town & Country Planning (Scotland) Act 1997 and the imposition of certain conditions designed inter alia to preserve visual amenity.

[14 ] By letter dated 22 July 2005 the first respondents gave notice to the second respondents of the decision to grant planning permission subject to conditions set out in the letter which included a condition in the interests of visual amenity and landscape protection.

[15 ] A separate application for planning permission in respect of wind turbine generators and associated development referred to in this case as the East Bradieston development was made to the first respondents. The East Bradieston development is approximately 2 kilometres closer to Gallery than the development promoted by the second and third respondents. From at least March 2004 the petitioner was aware of and was opposed to this application. The second and third respondents are not involved in the East Bradieston development. The application for planning permission for the East Bradieston development was refused by the first respondents. One of the reasons for refusal was the cumulative effect taking into account that the development promoted by the second and third respondents had been approved. The first respondents' refusal was appealed and a public inquiry has been held. Evidence at the public inquiry was prepared and led in relation to said cumulative effect. The reporter who heard the appeal had not issued a decision at the date of the first hearing of this judicial review.

[16 ] The petitioner lodged the present petition for judicial review on 18 October 2005. The second and third respondents have not commenced construction of the development."

It should be added to what is said in paragraph [15] that by letter dated 15 March 2006 the appeal in relation to the East Bradieston development was dismissed. We were informed that that decision had not been appealed within the statutory period and is accordingly now final. In giving his reasons for his decision the reporter stated that he was not persuaded that the Hill of Garvock (which is the location both of the East Bradieston development and of this development) had "the capacity to satisfactorily accommodate both developments."

The submissions of counsel

[8 ] Junior counsel for the petitioner submitted that there were two issues in the case. The first was whether the first respondents, in granting planning permission, had acted ultra vires in that they had not fulfilled their duties in terms of section 37 of the Town and Country Planning (Scotland) Act 1997. Any grant of planning permission in terms of that section was subject, inter alia, to sections 59(1) and 60 of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997. It was a necessary implication of the terms of section 59(1) that the first respondents were under a duty, before they granted planning permission, to consider whether the development would affect the setting of a listed building such as Gallery. Gallery was a listed building within the study area for the purposes of the environmental statement and it and the development were intervisible. There had, however, been no assessment by the first respondents whether its setting would be affected by the development. The first respondents had therefore omitted to take account of a relevant material consideration when coming to their decision. The decision was therefore ultra vires. Reference was made to a Memorandum of Guidance on listed buildings and conservation areas issued by Historic Scotland in 1998 and, in particular, to Chapter 10 of that Memorandum, which deals with development affecting listed buildings and their setting. Reference was also made to Bearsden & Milngavie DC v Secretary of State for Scotland 1992 S.C. 276 and Wordie Property Co. Ltd. v Secretary of State for Scotland 1984 S.L.T. 345.

[11 ] Turning to the plea of mora, counsel submitted that the Lord Ordinary was correct in what she said in paragraph [30] of her Opinion. The decision of 15 March 2006 by the reporter in the appeal in relation to the East Bradieston development was influenced by the fact that planning permission had been given for the development in this case. After the decision of the Planning Committee on 29 June 2004 there had been negotiations between the respondents leading to the section 75 agreement. The respondents had to that extent changed their position since 29 June 2004 and would be prejudiced by quashing the planning permission now. The Lord Ordinary was also correct to point to the requirements of good administration for some certainty after a lengthy period of public participation. Reference was made to Reg. v Dairy Tribunal, ex parte Caswell 1990 2 AC 738, Lord Goff of Chievely at pages 748-749 and to the quotation in that passage from the speech of Lord Diplock in O'Reilly v Mackman 1983 2 AC 237 at pages 280-281. The principles referred to in these authorities were approved, albeit obiter, by Lord Johnston in Kwik Save Stores Ltd. v Secretary of State for Scotland 1999 S.L.T. 193, at page 196. For the purposes of mora the clock started ticking most obviously on 29 June 2004. The decision taken on that date was plainly open to judicial review: see Clyde and Edwards on Judicial Review, para. 8.08. The Lord Ordinary was also correct when she said in paragraph [29] of her Opinion that judicial review was an equitable remedy which involved an exercise of discretion. In dealing with mora she was also exercising a discretion. She was entitled to come to the conclusion she came to on that matter; she did not err in law in so doing. Even if the clock did not start ticking until the decision of 20 July 2005 when planning permission was formally granted (after the section 75 agreement had been negotiated) the Lord Ordinary was entitled to find mora in the particular circumstances. Again, it was a matter for her discretion and she had not erred in law. In any event, any re-assessment would almost certainly reach the same result. The reasons given for his decision by the reporter in the East Bradieston appeal indicated why that was so. The onus on this matter was on the petitioner but the first respondents' position remained as stated in their answers to the petition, namely, that the setting of Gallery was not affected by the development.

[12] Senior counsel for the second and third respondents associated himself with the submissions of counsel for the first respondents. The duty imposed on a planning authority in terms of section 59(1) of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 did not arise with every listed building but only with those which were or whose setting was affected by the development. The petitioner's case depended on satisfying the Court that the first respondents were not entitled to proceed on the basis that the development did not affect the building or its setting so as to trigger this duty. None of the information before the first respondents suggested that the development did affect Gallery such as to give rise to the duty under section 59(1). The environmental statement, which in its preparation had involved consultation with, amongst others, Scottish Natural Heritage, Historic Scotland and Angus Council, whose area Gallery was in. Chapter 10, para. 10.5.30 of the statement had indicated no adverse effects on listed buildings or their settings. Historic Scotland had expressed agreement with the conclusions of the statement. Views of the proposed development from a reasonable selection of locations at varying distances had been assessed. The petitioner's objection to the proposed development had made no reference to the listing of Gallery or its setting. The Planning Officer's report recommended approval. In these circumstances the first respondents were entitled to proceed on the basis that no issue arose under section 59(1). This was not a case in which it could be said that the development would so obviously affect Gallery that it would be perverse and irrational in the Wednesbury sense to rely on an environmental statement which did not mention it. This was not least because the development was over 9 kilometres away from Gallery. Logically it must be the petitioner's position that there should have been a visit to Gallery (and also to all other listed buildings in the study area) to assess any effect the development would have on it and its setting and that in the absence of this the first respondents were in breach of their duty under section 59(1). But given the hundreds of listed buildings in the study area (of which 27 were Grade A) that was impractical in the absence of information indicating that Gallery (or any other listed building in the area) deserved particular attention for the purposes of section 59(1). The correct approach was that the first respondents were entitled to rely on the information presented in support of and in response to the application and, unless it was patently wrong or incomplete, proceed on the basis of such information. Any other approach undermined the necessary certainty in and proper functioning of the planning process, which depended on such issues being raised during that process, as part of the public consultation, not afterwards by way of judicial review. At root the petitioner's challenge was no more than a complaint as to the merits of the decision, which was something outwith the jurisdiction of the court. See Tesco Stores Ltd. v Secretary of State for the Environment 1995 1 WLR 759, Lord Hoffmann at page 780. The question was: Was the planning authority entitled to proceed on the basis that the duty under section 59 did not apply? The petitioner had not addressed that question. The Lord Ordinary's approach in paragraphs [26] and [28] of her Opinion was correct.

[13] Turning to the question of mora, senior counsel submitted that the date when time started to run was 29 June 2004. If the decision taken by the first respondents on that date was unlawful, it was open to the petitioner to take action then. Reference was made to Rossi v Magistrates of Edinburgh 1904 7 F. (H.L.) 85; Russell v Magistrates of Hamilton 1897 25 R. 350; and In re F. (Mental Patient: Sterilisation) 1990 2 AC 1, Lord Goff of Chievely at page 82 referring to the observations of Lord Dunedin in Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd. 1921 2 A.C. 438 at page 448. Even if time did not start to run until July 2005, events prior to that date did not fall out of the picture for the purposes of considering mora. This Court could only overturn the Lord Ordinary's decision on that matter, which was a matter for her discretion, if it was unreasonable or was a decision not open to her. The reclaiming motion should be refused.

[14] In reply senior counsel for the petitioner adopted his junior's submissions and renewed the motion he made. He submitted that when it had enacted the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997, Parliament had put listed buildings into a special category when planning permission for a development was sought. He submitted that the question was: Did the planning authority have special regard to the desirability of preserving Gallery or its setting as enjoined by section 59(1)? It was accepted that section 59(1) involved a two-stage process. Before a planning authority was under a duty to have special regard in terms of section 59(1) it had to form a view as to whether Gallery (or any other listed building in the relevant area) or its setting was affected by the proposed development and before it could do that it must know whether there was any listed building within the area that was affected. So the planning authority had to gather the information to enable it to decide upon these matters. It could do so from a variety of sources, including the applicant and any consultees. Gallery was a Grade A listed building of national importance. The front of Gallery faced the development and was inter-visible with it. There was no mention of it in the environmental statement but that was a developer's document and the duty under section 59 remained with the first respondents. It was common ground that the first respondents had never considered specifically whether the development affected Gallery. In that situation they were not entitled to proceed to a decision whether or not to grant planning permission for the development. The question for the Lord Ordinary was whether the factual information before the first respondents was sufficient to entitle her to conclude that they had in effect considered whether Gallery was affected by the development. Senior counsel submitted that there was not and that the Lord Ordinary was in error in concluding otherwise.

[15 ] Turning to the issue of mora, senior counsel submitted that, for the reasons which his junior had given, the petitioner had acted reasonably in not raising his petition for judicial review until twelve weeks after the issue of the grant of planning permission in July 2005. That was the test: see Kwik Save Stores Ltd. v Secretary of State for Scotland 1999 S.L.T. 193, Lord Johnston at page 196. It was therefore not such a delay as to justify a finding of mora. It was only in July 2005 that there was a piece of paper in the petitioner's hand which could be called a decision. It was accepted that it would have been competent to have sought interdict against the first respondents from proceeding further after the decision of 29 June 2004 or declarator and reduction of that decision but having regard to all the circumstances the punctum temporis should be taken as 20 July 2005.

[16 ] There were no further submissions on behalf of the respondents.

Discussion

[17 ] It was common ground that section 59(1) of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 provided for a two-stage exercise by the planning authority. The first stage was to decide if a development for which planning permission was sought would affect a listed building or its setting. It was only if the building or its setting were so affected that the duty to "have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses" arose.

[18 ] The application for planning permission here was for eight wind turbines and associated ancillary development. Together with the application the second respondents submitted supporting documentation including an environmental statement which was treated by the first respondents as an environmental statement for the purposes of the 1999 Regulations, as amended. These regulations implemented an EC Directive (85/337/EEC) and an amending Directive (97/11/EC) which defined a process for the provision of environmental information to local planning authorities to enable them to determine the likely environmental effects of certain developments. An environmental statement was necessary because the development here is an EIA (Environmental Impact Assessment) development in terms of the Regulations.

[19 ] The environmental statement contained the results of an environmental assessment of the development. The scope of that assessment was determined by the first respondents, following consultation with a number of bodies, including Scottish Natural Heritage, Historic Scotland and Angus Council. Historic Scotland have a particular responsibility for listed buildings. Gallery is a Grade A listed building and is in Angus Council's area. Following representations by Scottish Natural Heritage the original study area for landscape and visual impact assessment, which was an area within a fifteen kilometre radius of the development, was enlarged to an area within a twenty five kilometre radius of the development and the number of selected viewpoints from which the impact of the development was assessed was increased. The latter were selected in consultation with the first respondents and Scottish Natural Heritage. Scottish Natural Heritage also asked for an assessment to be made of the impact of the development on the historic gardens and landscapes at Arbuthnott House, Glenbervie House and Fasque. That assessment was carried out.

[20 ] At this point it is convenient to say that these three houses are all Grade A listed buildings like Gallery and something was made of the failure to include Gallery specifically in the assessment. The point is, however, misconceived in my opinion. The three houses were not assessed because they were listed buildings. Indeed, the three houses were not specifically assessed at all; it was their historic gardens and landscapes that were. The fact that they were all Grade A listed buildings like Gallery was coincidental.

[21 ] Chapter 5 of the environmental statement stated that a landscape and visual assessment of the potential effects of the development on the landscape character and the visual amenity of the study area was undertaken. In accordance with best practice the assessment was undertaken in accordance with the advisory guidelines for landscape and visual impact assessment published by the Landscape Institute and Institute of Environmental Management and Assessment. Reference was also made to other relevant guidelines published by a number of bodies.

[22 ] In Chapter 8 the environmental statement dealt with the assessment of the cultural heritage implications of the development. Among the sources of information which were searched by the compilers of the statement Historic Scotland's Schedule was checked for any listed buildings within or close to the development area (para. 8.2.1). In addition to one listed building in the immediate vicinity of the development (Garvock Parish Church) it was stated that in the surrounding area there were "many listed buildings whose visual setting will be affected: there are 20 listed buildings in the Parish of Laurencekirk alone" (para. 8.3.10). Apart from Garvock Parish Church none of these listed buildings was individually mentioned and no recommendations were made in respect of them. In para. 10.5.30 it was stated that the development was not predicted to result in adverse effects on, among other things, listed buildings or their settings.

[23 ] In my opinion it is for the first respondents as planning authority to decide how much information they need to enable them to assess and decide upon a planning application. I respectfully agree with the opinion expressed to that effect by Sullivan J. in R. v Rochdale Metropolitan BC 2001 Env. L.R. 406. In my opinion that is a question of planning judgment, which was entirely a matter for the planning authority (Tesco Stores Ltd. v Secretary of State for the Environment 1995 1 WLR 759, Lord Hoffmann at page 780). In light of the above information and in the absence of any information that Gallery would be affected by the development, I am of the opinion that the first respondents, as planning authority, were entitled to form the view when the planning application was submitted on 6 October 2003 that the development did not affect any listed building in the study area in terms of section 59(1) of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 and that the application therefore need not be publicised in the manner provided for by section 60 of that Act but in accordance with the relevant provisions of the Town and Country Planning (Scotland) Act and the 1999 Regulations. That they were entitled to come to that view received support from Historic Scotland in their letter dated 29 January 2004 in which it was confirmed that in terms of their listed building and designed landscape interest Historic Scotland were content to agree with the findings of the environmental statement.

[24] No doubt if thereafter information had come to the notice of the first respondents that Gallery or any other listed building was affected by the development the first respondents would have re-considered the matter and, if necessary, re-publicised the application in terms of section 60 of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997. But no information of that kind emerged until the present petition was raised in October 2005, when the petitioner averred that Gallery was affected by the development in terms of section 59(1) of that Act. By that time, of course, planning permission for the development had been granted.

[25 ] I should add that in my opinion the word "affects" in section 59(1) of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 means affects in a significant way. This seems to accord with the meaning given to the word "preserving" in that subsection by section 59(3). See also the wording of Schedule 4 to the 1999 Regulations, Part I paragraphs 3, 4 and 5 and Part II paragraph 2.

[26 ] In these circumstances I am of the opinion that it cannot be said that the first respondents failed to act in accordance with their duty in terms of section 59(1) of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997. Since they were entitled on the information before them to form the view that no listed building was affected by the development in terms of that provision, any duty to have special regard to the desirability of preserving Gallery or its setting or any features of architectural or historic interest which it possesses did not arise. In these circumstances it cannot be said that the first respondents acted ultra vires.

[27 ] Before leaving this aspect of the case I should say that I have had the advantage of reading in draft the Opinions of each of your Lordships. For the reasons given by Lord Eassie I also feel unable to associate myself with the views of Lord Mackay of Drumadoon with regard to the performance by the first respondents of their duties under sections 59 and 60 of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997.

[28 ] I turn now to consider the question of mora.

[29 ] It has been said repeatedly that to meet the requirements of good administration persons who are aggrieved by the decision in question should take prompt action if they wish to challenge it. In O'Reilly v Mackman 1983 2 AC 237 Lord Diplock said (at pages 280-281):

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision."

That dictum was approved in the House of Lords by Lord Goff of Chievely in Reg. v Dairy Tribunal, ex parte Caswell 1990 2 AC 738 at page 749 and by the First Division in King v East Ayrshire Council 1998 S.C. 182 at page 196. See also Devine v McPherson 2002 S.L.T. 213 and Kwik Save Stores Ltd. v Secretary of State for Scotland 1999 S.L.T. 193.

[30] In this case the petition was not raised until 18 October 2005. That was the first time it had been suggested that Gallery was a listed building affected by the development in terms of section 59(1) of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 and that the first respondents had acted ultra vires in granting planning permission for the development without fulfilling their duty in terms of that section. That was more than fifteen months after the first respondents' decision on 29 June 2004 that authority to grant full planning permission for the development be delegated to the Head of Planning and Building Control. It was argued that that date should not be the punctum temporis when considering whether mora was established. In agreement with the Lord Ordinary I reject that argument. Senior counsel for the petitioner accepted, rightly in my view, that if the first respondents' decision had been ultra vires, it would have been open to the petitioner to have raised proceedings for judicial review immediately, seeking interdict against the first respondents from proceeding further or declarator that the decision was ultra vires and reduction of the decision (Rossi v Magistrates of Edinburgh 1904 7 F (H.L.) 85; Russell v Magistrates of Hamilton (1897) 25 R. 350; Russian and Industrial Bank v British Bank for Foreign Trade Ltd. 1921 2 A.C. 438, Lord Dunedin at page 448, quoted with approval by Lord Goff of Chievely in In re F. (Mental Patient: Sterilisation) 1990 2 AC 1 at page 82; and Clyde and Edwards on Judicial Review para. 8.08). In that situation I consider that 29 June 2004 is the appropriate punctum temporis.

[31] Counsel for the petitioner did not contend that, if that was the decision, mora was not established. They were correct not to do so in my opinion. Rather they focused their submissions on the argument that the punctum temporis should be 20 July 2005 when, following the successful negotiation of a section 75 agreement, the first respondents decided to issue a grant of full planning permission for the development. I have already explained why I reject that argument. But in any event, even if it could be said that the punctum temporis was 20 July 2005, I am of the opinion that the Lord Ordinary was entitled in the circumstances, for the reasons she gave, to conclude that the period between then and the raising of the petition amounted to mora. It was common ground that whether or not there was mora was a matter for the discretion of the Lord Ordinary in light of the circumstances of the case. I am not persuaded that in exercising her discretion on this matter she fell into any error.

Decision

[32 ] For these reasons I move that we should refuse the reclaiming motion and adhere to the interlocutor of the Lord Ordinary.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Abernethy

Lord Eassie

Lord Mackay of Drumadoon

[2007] CSIH 10

P/2139/05

OPINION OF LORD EASSIE

RECLAIMING MOTION

in the Petition of

JOHN SIMSON

Petitioner and Reclaimer:

for

Judicial Review

of a decision of Kincardine and Mearns Area Planning Committee of Aberdeenshire Council

_______

Act: J. Campbell, Carruthers; Thorntons-Law (Petitioner and Reclaimer)

Alt: O'Carroll; Shepherd & Wedderburn (First Respondent): C. Campbell, Q.C.;

CMS Cameron-McKenna (Second and Third Respondents)

25 January 2007

[33 ] I have had the advantage of considering in draft the terms of the Opinion which has been delivered by your Lordship in the chair. I agree with the conclusions and the reasoning expressed by your Lordship, both as to mora and the merits of the arguments concerning the planning issues. I therefore agree that the reclaiming motion should be refused.

[34 ] I have also had the opportunity of reading in draft the terms of the Opinion of Lord Mackay of Drumadoon who also considers that the reclaiming motion should be refused but only on the basis that the petition is barred by mora. I would simply offer the following observations or comments.

[35 ] It should be stressed that - as indeed Lord Mackay of Drumadoon notes - the averments in this petition for judicial review do not make any allegation of any breach by the first respondent of the provisions of section 60 of the Planning (Listed Building and Conservation Areas)(Scotland) Act 1997 and no such contention was advanced to the Lord Ordinary. Although in her Opinion the Lord Ordinary narrated that the application for planning permission had been treated as one which did not bring to bear the provisions of section 60, the grounds of appeal for the petitioner and reclaimer make no mention of those provisions and indeed counsel for the petitioner and reclaimer did not advance any argument alleging any breach of section 60 before us. In the absence of any case advanced to the effect that the first respondents, the local planning authority, had failed to obtemper the provisions of section 60, there was no requirement on them to address in any particularity the circumstances in which the view was taken that advertisement of the application for planning consent should be made in terms of the other relevant provisions of the planning legislation. In the absence of the issue being properly focused, with the local planning authority being given proper opportunity to address the matter, I would not express any view critical of the first respondents respecting section 60 or the manner in which the application was advertised. The argument advanced by the petitioner and reclaimer is concerned solely with section 59 and relates, in temporal terms, to the decision to authorise the granting of planning consent for the development.

[36 ] It should also be noted that, apart from the suggestion in the petitioner's averments that the Environmental Statement considered three listed buildings, namely Arbuthnott House, Glenbervie House and Fasque, but not Gallery (which in the event is a reference taken out of context, as your Lordship in the chair has explained) it is not any part of the grounds for judicial review advanced by the petitioner that the Environmental Statement contained any inherent inconsistencies, particularly any inconsistency between para. 8.3.10 of volume 2 of the Environment Statement and its conclusions in para. 10.5.30 of that volume. The terms of the Environmental Statement were not the subject of any detailed discussion before the Lord Ordinary. The Environmental Statement did not form part of the appendix to the reclaiming motion, and, indeed, it was not physically in the process when the hearing of the reclaiming motion on the summar roll began. Counsel for the petitioner did not present to us any argument based on a detailed critique such as has been carried out by Lord Mackay in his Opinion. It may well be that counsel had reasons for not doing so. For my part I am conscious that the Environmental Statement contains much other information, including, for example, information on the views obtained from viewpoints and their photo montages demonstrating those views. We have not had the benefit of any detailed argument respecting the critique and the possible responses to it.

[37 ] The duty under subsection (2) of section 59 of paying special regard to the desirability of preserving the building or its setting or any features of architectural or historic interest which it possesses arises, of course, only if the proposed development would affect the listed building or its setting. Counsel for the petitioner and reclaimer accepted - in my view rightly - that whether that gateway criterion was met was a matter of planning judgment. In their Answers to the petition the local planning authority state in terms that they do not consider that the setting of Gallery would be affected by the proposed development, and they give reasons for that view (cf. Answers 8 and 9). Counsel for the local planning authority confirmed that such was the authority's considered position as a planning authority. In the course of the submissions for the petitioner and reclaimer there was discussion between counsel and the Bench as to the practical utility of this petition and during that discussion counsel for the petitioner acknowledged that it was certainly open to the local planning authority to conclude that the setting of Gallery was not affected by the proposed development at Tullo. Consistent with that recognition, it is not suggested either in the pleadings for the petitioner or in submission by his counsel that the local planning authority's opinion that the development does not affect the setting of Gallery is an unreasonable or perverse opinion. I note in passing that the reporter in the East Bradieston Inquiry also concluded that the setting of Gallery would not be affected by that development, closer to, and apparently much more visible from, Gallery. In my view, to succeed in this petition the petitioner really has to be able to aver, and, if need be prove, that the respondent local planning authority is not entitled to say, as it does, that the proposed development does not affect the setting of Gallery. Otherwise these proceedings are pointless. As already indicated, no such averments are made.

[38 ] Of course, as senior counsel for the second and third respondents observed in the course of his submissions, one may readily postulate cases in which the impact of a proposed development on a listed building or its setting is obvious and dramatic to the extent that no further assessment is necessary. But I agree with counsel that such is not the case here. The proposed development is over 9 kilometres distant from Gallery. The fact that a structure may be visible on a part of the horizon at such a distance from the building clearly does not mean that the setting of the building must be thereby affected. Accordingly, in the absence of a specific, articulated contention that the proposed development would adversely affect the setting of Gallery, advanced in the course of the local planning authority's extensive consultation process, I consider that the respondent local planning authority was well entitled to proceed on the basis that the setting of Gallery was not so affected. It is clear that Historic Scotland were not averse to the development, particularly as regards its listed building considerations. The neighbouring local planning authority - Angus Council - within whose territory Gallery is situated, likewise raised no objection. The letter of 25 May 2004 made only passing reference to the petitioner's property and its setting, without reference to section 59 or any contention that its provisions were engaged, or articulation of any grounds upon which it might be thought that the "setting" of the building might be affected by the construction of a development some 9 kilometres distant from it.

[39 ] In so far as the views of my colleague, Lord Mackay of Drumadoon, may proceed upon the basis that there were listed buildings, other than Gallery, whose settings might be affected I would observe that the petitioner's case is confined to Gallery. It is not contended in the petition that there were any other specific buildings whose settings were affected and in the absence of specific reference to other listed buildings in the proceedings the respondent local planning authority have had no occasion to address that issue.

[40 ] For these, among other, reasons I feel unable to associate myself with the views of Lord Mackay of Drumadoon respecting the performance by the respondent local planning authority of their duties under sections 59 and 60 of the 1997 Act. I reiterate my concurrence with the views and conclusions of your Lordship in the chair.

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Abernethy

Lord Eassie

Lord Mackay of Drumadoon

[2006] CSIH 10

P/2139/05

OPINION OF LORD MACKAY OF DRUMADOON

RECLAIMING MOTION

in the Petition of

JOHN SIMSON

Petitioner and Reclaimer:

for

Judicial Review

of a decision of Kincardine and Mearns Area Planning Committee of Aberdeenshire Council

_______

Act: J. Campbell, Carruthers; Thorntons-Law (Petitioner and Reclaimer)

Alt: O'Carroll; Shepherd & Wedderburn (First Respondent): C. Campbell, Q.C.;

CMS Cameron-McKenna (Second and Third Respondents)

25 January 2007

Introduction

[41 ] Your Lordship in the chair has quoted the facts as they were summarised by the Lord Ordinary in paragraphs [5] to [14] of her Opinion. Whilst there is no dispute as to the accuracy of the Lord Ordinary's summary, during the hearing of the reclaiming motion the discussion included reference to certain factual matters additional to those to which the Lord Ordinary refers in her Opinion. In particular, notwithstanding the fact that the Environmental Statement was not included in the Appendix lodged on behalf of the petitioner and reclaimer, counsel for the respondents sought to rely on certain passages in the Environmental Statement. That having been the approach of counsel for the respondents, I consider it appropriate consider the contents of certain parts of the Environmental Statement.

Environmental Statement

[42 ] The Environmental Statement was prepared by the second respondents, as agents for the third respondents, who were the applicants for planning permission. It consists of four volumes. Volume 1 is entitled "Planning Application" and contains details of the proposed development. Volume 2 is entitled "Environmental Statement Written Text", Volume 3 "Environmental Statement" and Volume 4 "Environmental Statement Appendices".

[43 ] Chapter 5 of Volume 2 is headed "Landscape and Visual Assessment". This chapter reports on a landscape and visual assessment that had been undertaken of the proposed development. That assessment was of the potential effects of the wind turbines forming the proposed development on the landscape character and the visual amenity of a study area with a 15 km radius ("the 15 km study area"), which was centred on the site of the proposed development. Gallery, the Category A listed building occupied by the petitioner, lies within the 15 km study area.

[44 ] The terms of chapter 5 of Volume 2 do not make any specific reference to buildings designated as listed buildings within the 15 km study area. Chapter 5 does, however, bear to assess the effects of the proposed development on visual amenity. This is done by reporting on a viewpoint analysis carried out from a selection of fifteen viewpoints distributed within the 15 km study area. The locations of the fifteen viewpoints are noted on Figure 14 in Volume 3 of the Environmental Statement. They include Viewpoint 3, located to the north of the junction of the A90 and B9120 roads on the outskirts of Laurencekirk. The individual assessments of the changes in view from each of those fifteen viewpoints are set out between paragraphs 5.7.39 and 5.7.123. I refer in particular to paragraph 5.7.56, which relates to Viewpoint 3 on the outskirts of Laurencekirk. As paragraph 8.3.10 makes clear, a number of listed buildings are located in Laurencekirk. The results of the visual assessment are set out in paragraph 5.12 of Chapter 5 and the conclusions which the authors of the Environmental Statement draw from the visual assessment are in paragraph 5.14 of that chapter.

[45 ] Paragraph 5.14.6 states that the eight wind turbine generators of the proposed development will be visible from the surroundings (of the site of the proposed development) and have, therefore, the potential to affect the views of receptors in the study area. In the Environmental Statement properties and locations from which the proposed development would be visible are referred to as "visible receptors". Paragraph 5.14.7 states that amongst the receptors experiencing "significant effects" are those represented by Viewpoint 3.

[46 ] Chapter 8 of Volume 2 is headed "Cultural Heritage". It appears to be based on an assessment of the cultural heritage implications of the proposed development, which consultants had prepared on behalf of the second respondents. Paragraph.8.2.1 refers to Appendix 8.2 of Volume 4. There is no such Appendix in Volume 4. Nevertheless the terms of paragraph 8.2.1 indicate that when the consultants prepared their baseline survey they checked, amongst other documents, schedules maintained by Historic Scotland "for any Scheduled Ancient Monuments or listed buildings within or close to the proposed development area".

[47 ] Under the heading "Sites of cultural heritage interest within the development area", paragraph.8.3.1 of Volume 2 is in the following terms:-

"A complete gazetteer of sites identified in the baseline survey is given in Appendix 8.1 of Volume 4 and summarised in Table 8.1. The locations of Sites 1-27 are given in Table 8.1 and the locations of Sites 28-33 in Table 8.2. Figure 20 of Volume 3 indicates the location of Sites 1-27".

There is no Appendix 8.1 in Volume 4. Table 8.1 is in Chapter 8. It refers to a total of twenty seven sites, but it is not apparent from the terms of that Table how many of these sites are listed buildings. Table 8.2 is also in Chapter 8. It details a further eight sites, although they are not Sites 28-33, as paragraph 8.3.1 indicated they would be. It would not appear from the terms of Table 8.2 that any of those sites are listed buildings.

[48 ] Gallery is not included in either Table 8.1 or 8.2. From the terms of the opening sentence of paragraph 8.3.1 it would appear that Gallery was not included in the complete gazetteer of sites identified in the baseline survey. That may be because the check carried out by the consultants was limited to "listed buildings within or close to the development area". The check did not cover the identities and locations of all the listed buildings in the 15 km study area.

[49 ] The position is further complicated by paragraph 8.3.10 of Chapter 8, which appears as the second paragraph under the heading "Sites of cultural interest in the vicinity of the development area". It is in the following terms:-

"There is one listed building in the immediate vicinity of the proposed development area:- Garvock Parish Church (Site 9). The surrounding area also contains many listed buildings, whose visual setting will be affected: there are twenty listed buildings in the parish of Laurencekirk alone".

[50 ] Garvock Parish Church is one of the sites referred to in Table 8.1. However, no other listed buildings appear in Table 8.1 or Table 8.2. Accordingly it is clear from the terms of that paragraph, and indeed from the rest of the Environmental Statement, that the Environmental Statement does not address how many listed buildings lie within the surrounding area of the development site. Indeed the authors of Chapter 8 do not define what they mean by the term "surrounding area". Moreover notwithstanding the terms of sections 59 and 60 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 ("the Listed Buildings Act") the Environmental Statement does not identify the listed buildings which, in the opinion of the authors, will have their settings affected by the proposed development. All paragraph 8.3.10 states is that the surrounding area, which it must be assumed is something different from the 15 km study area, contains an unspecified number of listed buildings whose visual setting will be affected. Indeed, the Environmental Statement does not indicate which are the "many listed buildings, whose visual setting will be affected". For my part, I do not consider it possible to read the terms of paragraph 8.3.10 as indicating that the authors of the Environmental Statement had addressed the issue of whether the settings of the listed buildings, referred to in that paragraph, would be affected by the proposed development and had reached the conclusion that there would be no effect of any significance on the settings of those listed buildings.

[51 ] At a later stage in Chapter 8 of the Environmental Statement, the authors assess the sites enumerated in Tables 8.1 and 8.2. They do so following the terminology used in NPPG 5: Archaeology and Planning. In Chapter 8 there is no further reference to listed buildings nor any reference to the detailed contents of the "Memorandum of Guidance on Listed Buildings and Conservation Areas 1998" issued by Historic Scotland, to which the Lord Ordinary referred in paragraph [8] of her Opinion. Nor is there any suggestion of any further assessment having been undertaken on the nature and extent to which the visual setting of the unidentified listed buildings would be affected.

[52 ] Chapter 10 of the Environmental Statement is entitled "Planning Policy". Paragraph 10.5.30 is in the following terms:-

"Any effects of the proposed development on international or national designations have been avoided through the careful site selection process described in Chapter 2 of this Environmental Statement. The Tullo Wind Farm is not located within, or predicted to result in, adverse affects on any of the following tier 1 and tier 2 categories.

· ....

· Listed Buildings (and their settings)

· .... "

[53 ] The references to Tier 1 and Tier 2 categories are to certain provisions of the Aberdeen and Aberdeenshire Structure Plan 2001-2016, which are reproduced in Appendix 10.1 of Volume 4 of the Environmental Statement. The provisions of the Structure Plan categorise various planning policies under four tiers, Tiers 1- 4, for the purposes of assessing potential wind farm developments. Listed buildings (and their settings) fall within Tier 2. It is to be noted that the authors of the Environmental Statement make no attempt to relate the terms of paragraph 8.3.10 with the conclusion they express in paragraph 10.5.30.

[54 ] Chapter 11 of the Environmental Statement is entitled "Conclusions". Under the heading "Cultural Heritage", paragraph 11.6 is in the following terms:-

"11.6.1 Independent archaeologists were engaged to provide an assessment of the Tullo Wind Farm site. A desk based study and assessment were completed.

11.6.2 This assessment concluded that there are twenty seven sites of national importance (Scheduled Ancient Monuments or non-scheduled sites) within the vicinity of the application site. However there are no Scheduled Ancient Monuments within the development site. There are two areas of medieval and post-medieval rig and furrow sites, two sites of modern track way, a boundary stone and three linear crop marks within the proposed development site. The Cairn of Shiels, a Scheduled Ancient Monument, lies 100m to the northwest corner of the development site, however neither this, nor its setting, will be affected by the proposed development. Design of the site has ensured that the known sensitive archaeological sites have been avoided; however discussions will take place with the Local Area Archaeologist and where appropriate trial excavation or a watching brief will take place.

11.6.3 It is not considered therefore that the proposed development will have significant adverse effects on any individual sites of cultural heritage interest".

Again it is to be noted that the authors of the environmental statement make no attempt to relate the terms of paragraph 8.3.10 to the conclusion they express in paragraph 11.6.3. Nothing further is said about listed buildings in Chapter 11.

East Bradieston development

[55 ] In Paragraph [15] of her Opinion, the Lord Ordinary refers to a separate application for planning permission in relation to another wind farm, known as the East Bradieston development. Since the Lord Ordinary issued her Opinion, the appeal against the refusal of planning permission for that development has been decided by a Reporter from the Scottish Executive Inquiry Reporters Unit. His decision letter is dated 15 March 2006.

[56 ] Paragraph 76 of the decision letter is in the following terms:-

"On the issue of the effect that the wind farm would have on the setting of the Category A listed building known as 'The Gallery' I note that the turbines would be visible on the ridge line of the Hill of Garvock from the property. The distance between the listed building and the nearest turbine would be approximately 7km. In terms of the legislation, section 59(1) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 requires that in considering whether to grant planning permission for development which affects a listed building or its setting special regard should be paid to the desirability of preserving the building or its setting. The legislation does not however include a definition of what constitutes the 'setting' of a listed building. Historic Scotland's Memorandum of Guidance on Listed Buildings and Conservation Areas indicates that works some distance from a listed building can have a considerable physical and visual impact upon it and that 'setting' should not therefore be interpreted too narrowly. The guidance also acknowledges that development which is visible in important views of, or from, a listed building can affect its setting. In this case, the proposed wind turbines on the Hill of Garvock would be seen from a number of the principal rooms in The Gallery. However, whilst I accept that the turbines would be significantly larger that any of the existing structures on the ridge line, I am not persuaded that given the substantial intervening distance between the building and the proposed wind farm that the development would materially harm the setting of The Gallery. I appreciate that the views from the house are highly valued by the existing owners of the property, but in my opinion the rights of a private individual to retain the existing view from his or her home is a quite separate matter from the public interest in preserving the setting of a listed building. In my experience, the right of individuals to maintain the views from their properties is seldom a valid planning consideration. The fact that the building is Category A listed does not alter my view that the development would not have a significant adverse effect on its setting."

[57 ] The Memorandum of Guidance on Listed Buildings and Conservation Areas 1998 issued by Historic Scotland, to which both the Lord Ordinary and the Reporter referred, contains the following section:-

"10.1.0 DEVELOPMENT AFFECTING THE SETTING

At all times the listed building should remain the focus of its setting. Attention must never be distracted by the presence of any new development whether it be within or outwith the curtilage.

Development within the curtilage should always be regarded as affecting the setting. The only exception to this general rule may occur when the curtilage is very large and the new building will not be visible in any principal view either from or of the listed building or buildings. It should be noted in this respect that it is not sufficient that the listed building or buildings and the new development will not be intervisible. Listed building consent will be required if demolition is necessary to secure access to the site or to enable the development to take place (see 8.1.0 to 8.1.4).

Development outwith the curtilage should also be regarded as affecting the setting where this will -

· In an urban area, restrict or obstruct views of or from the listed building, or rise above and behind the listed building so that its silhouette can no longer be seen against the sky from the more familiar viewpoints, or

· In a rural location, be seen in any principal view either of or from the listed building, or affect in any way the main approaches to it. Here again it should be noted that it is not sufficient that the listed building and the new development will not be intervisible.

· Development which will block distant views of important architectural landmarks may, in some instances, also fall into this category.

· Development adjacent to a listed building which forms part of a street block should also be regarded as affecting the setting where this will not respect the form, scale, materials or building line of the listed building (see 10.2.5 below), or

· Involve the construction of projecting features which will be seen in oblique views of the listed building.

It is seldom possible to assess with certainty from plans alone whether a proposed development, within or outwith the curtilage of a listed building, will affect setting. It is therefore of the greatest importance to check on site the relationship of the proposal to adjacent buildings and structures, planned landscapes and landscape features before reaching a decision".

The statutory provisions

[58 ] Sections 59 and 60 of the Planning (Listed Buildings Conservation Areas) (Scotland) Act 1997 ("the Listed Buildings Act) are in the following terms:-

"59-(1) In considering whether to grant planning permission for development which affects a listed building or its setting, a planning authority or the Secretary of State, as the case may be, shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

(2) Without prejudice to section 64, in the exercise of the powers of disposal and development conferred by the provisions of sections 191 and 193 of the principal Act, a planning authority shall have regard to the desirability of preserving features of special architectural or historic interest and, in particular, listed buildings.

(3) In this section, 'preserving' in relation to a building, means preserving it either in its existing state or subject only to such alterations or extensions as can be carried out without serious detriment to its character, and 'development' includes redevelopment.

60-(1) This section applies where an application for planning permission for any development of land is made to a planning authority and the development would, in the opinion of the authority, affect the setting of a listed building.

(2) The planning authority shall -

(a) publish in a local newspaper circulating in the locality in which the

land is situated, and

(b) for not less than 7 days display on or near the land,

a notice indicating the nature of the development in question and naming a place within the locality where a copy of the application, and of all plans and other documents submitted with it, will be open to inspection by the public at all reasonable hours during the period of 21 days beginning with the date of publication of the notice under paragraph (a).

(3) The application shall not be determined by the planning authority before both the following periods have elapsed, namely -

(a) the period of 21 days referred to in subsection (2), and

(b) the period of 21 days beginning with the date on which the notice

required by that subsection to be displayed was first displayed.

(4) ... "

Discussion

[59 ] Before I turn to the facts of this particular case, I should make clear that I agree with your Lordship in the chair that it is well established that questions of planning judgment are entirely matters for the planning authority. That issue is discussed by Lord Hoffman at page 780 in his speech in Tesco Stores Ltd v Secretary of State for the Environment [1995} 1 W.L.R 759, in the context of material considerations. In his speech Lord Hoffman stated:

" The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight that it should be given is only one aspect of the fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. It 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 my opinion, the view of Sullivan J. in R. v Rochdale Metropolitan BC [2001] Env.L.R. 406, in Para. 106 of his judgment, that it is for a local authority to decide whether the information provided about a proposed development is sufficient for it to deal with a planning application requires to be considered in the context of what Lord Hoffman said in the speech from which I have quoted. Indeed that is clear from what Sullivan J. himself said in Para. 106, where he considered it appropriate to mention that a local planning authority's decisions as to whether a proposed development fell within with the description of the type of development set out in schedules to the relevant environmental assessment regulations, and whether a proposed development would be likely to have significant effects on the environment, are subject to review on Wednesbury grounds.

[60 ] It is a matter of agreement between the parties that the planning application was advertised in accordance with the provisions of section 37 of the Town and Country Planning (Scotland) Act 1997 and the relevant Environmental Impact Assessment (Scotland) Regulations during November 2003, but not in the manner provided by section 60 of the Listed Buildings Act.

[61 ] The case pled against the first respondents does not include averments that they acted in breach of section 60. However, when counsel for the first respondents was addressing the Court about the history of the planning application, he dealt with the issue of the application of the provisions of section 60 to the application.

[62 ] The report prepared for the first respondents' planning committee, which the committee had before them during their meeting on 29 June 2004, makes no reference to the provisions of section 60. No other contemporaneous document of the first respondents was placed before the Court to demonstrate whether, and if so when, the first respondents took a considered decision not to advertise the application in terms of section 60. Against that background it was hardly surprising that counsel for the first respondents found himself in the position of inviting the court to "infer" that by the time the first respondents advertised the application under other statutory provisions the first respondents had reached the decision that the proposed development would not affect the setting of any of the listed buildings in the 15km study area and that was the reason why the application had not been advertised in terms of section 60.

[63 ] I have considerable reservations as to whether it would be appropriate for the Court to infer that the first respondents had reached such a considered decision, not least of all because it would have been the officials of the first respondents who arranged the advertising of the application. In my opinion, the decisions involved in arranging to advertise a planning application to comply with the provisions of section 37 of the 1997 Act and the Environmental Assessment Regulations are of a different character to that of deciding whether an application does not require to be advertised in terms of the provisions of section 60 the Listed Buildings Act. That is because the taking of a decision in respect of section 60 involves the making of a planning judgment as to existence of any effect from a proposed development on the setting of any listed building.

[64 ] I fully recognise that a decision not to advertise a planning application, in accordance with the provisions of section 60, can be revisited at any time prior to the planning authority deciding whether or not to grant the planning application concerned. However, there is little doubt that a decision by a planning authority not to advertise an application under section 60, on the basis that a proposed development would not affect the setting of any listed building, is one that would, at the very least, be liable to influence the planning authority's subsequent consideration of the application concerned.

[65 ] If the first respondents, through their officials, took a considered decision in November 2003 not to advertise the planning application in terms of section 60, because the proposed development would not affect the setting of any listed building, it could only have done so on the basis of their own consideration of the contents of the planning application and the Environmental Statement. The Court was informed that Historic Scotland's consultation response was in a letter to the first respondents dated 29 January 2004. It is not suggested that when the planning application was advertised there was any other information before the first respondents as to the existence, nature and extent of any effect that the proposed development would have on the setting of any listed building in the 15 km study area.

[66 ] On the basis of the basis of the submissions of counsel for the first respondents, I am not persuaded that it would have been open to the first respondents to decide, on the basis of the information that was before them in November 2003, that the planning application did not require to be advertised under the provisions of section 60. Indeed in my opinion, having regard to those parts of the Environmental Statement to which I have already referred, such a decision would have been open to challenge on Wednesbury grounds as having been perverse and irrational. In these circumstances, on the basis of the submissions and documents placed before this Court, I unfortunately find myself in the position of being unable to agree with the view, which your Lordship in the chair expresses in Paragraph [23] of your Opinion, that when the planning application was submitted on 6 October 2003 the first respondents were entitled to form the view that the proposed development did not require to be publicised in the manner provided for by section 60.

[67 ] In my opinion, having regard to the terms of the Environmental Statement and Historic Scotland's Guidance, and no matter how the provisions of section 60 fall to be construed, I find it impossible to understand how a local authority, or its officials, could have reached the conclusion that it is submitted the first respondents did reach - namely that the proposed development would not affect the setting of any listed building in the 15 km study area. I refer in particular to the contents of Chapter 5 of the Environmental Statement.

[68 ] In reaching that conclusion, I have not ignored the fact that subsequently, as is recorded in paragraph 4.2.1 of the report to the planning committee, Historic Scotland informed the first respondents that "in terms of their listed buildings and designed landscapes they agree with the contents of the environmental statement". However, those contents include paragraph 8.3.10, the terms of which could not be clearer. They refer to a number of listed buildings whose visual setting will be affected. Accordingly there was information before the first respondents, which the second and third respondents had provided and with which Historic Scotland agreed, that the proposed development would affect the setting of some listed buildings, even although the Environmental Statement failed to make clear which listed buildings were being referred to and whether those listed buildings included Gallery.

[69 ] For these reasons had it been averred in the petition that the first respondents had acted in breach of section 60, I would have been inclined to sustain a submission to that effect, at least insofar as it related to a decision of the first respondents that the proposed development did not affect the setting of any listed building.

[70 ] In the event, the discussion about the first respondents' approach to section 60, as it was explained to us by counsel for the first respondents, is only of relevance because of the light it casts on how the first respondents proceeded during and after November 2003 and, in particular, the position the first respondents adopted in considering the application of the provisions to section 59(1) to the planning application.

[71 ] In Paragraph [23] of your Opinion, your Lordship in the chair has also expressed the opinion that when the planning application was submitted on 6 October 2003 the first respondents were entitled to form the view that the development did not affect any listed building in the study area, in terms of section 59(1). Here again, I have the misfortune of being unable to agree with your Lordship's opinion. However, it is, in my opinion, also necessary to consider whether the first respondents, and in particular their planning committee, addressed the issue as to the application of the provisions of section 59(1) before the decision of 29 June 2004 was taken. Putting the issue another way, did the first respondents act in breach of the provisions of section 59(1) on 29 June 2004?

[72 ] As far as the details of the provisions of section 59(1) are concerned, a number of questions arise. These include how those provisions fall to be construed and their application to the facts of this case. On the first of those issues, your Lordship in the chair has expressed the view that the word "affects" in section 59(1) should be construed as meaning "affects in a significant way". Your Lordship's view is that such an approach to construction accords with the meaning given to the word "preserving" in subsection 59(1), by subsection 59(3), and is supported by reference to the terms of Schedule 4 to the 1999 Regulations. To the extent that such an approach to construction would result in the provisions of section 59(1) having no application to a listed building, if the effect of a proposed development would be insignificant, in the sense of being trivial or minimal, I would have little difficulty with the approach. I have, however, reservations in construing the provisions of section 59(1) by qualifying the language used by Parliament with words which Parliament could have included in the legislation but elected not to. That is because applying the qualification of "in a significant way" to the construction of "affects" could be viewed as indicating that the effect on the setting of a listed building required to be "considerable", "substantial", "serious", "important" or "sizeable", before any duty on a planning authority arose under section 59(1). All of those adjectives can, depending on the particular circumstances, be considered to be synonymous with "significant". For that reason, I approach the construction of section 59(1) on the basis that the word "affects" should be given its ordinary meaning, which would allow it to encompass effects that included effects that were positive or negative, beneficial or detrimental, favourable or adverse. In my opinion that approach to the construction of section 59(1) is entirely consistent with the views of Lord Justice Clerk Ross in Bearsden and Milngavie District Council v Secretary of State for Scotland 1992 SC 276, at page 281, to which the Court was referred.

[73 ] As far as the facts of the first respondents' handling of this planning application are concerned, it was in my opinion quite clear, from the submissions the Court heard that at the meeting on 29 June 2004 the first respondents never addressed whether or not the provisions of section 59(1) of the Listed Buildings Act applied in respect of any of the listed buildings in the 15 km study area. That occurred against the background of a decision that had previously been reached, whether considered or otherwise, not to advertise the planning application under the provisions of section 60. Having regard to the terms of the report placed before the planning committee, and the submissions made by counsel for the first respondents during the reclaiming motion, it would be complete speculation to suggest otherwise. Indeed, if the officials had previously taken a considered decision not to advertise the application under the provisions of section 60, it would, on one view, have been surprising if the report to the planning committee had been intended to remind the members of the planning committee of their statutory duty to consider whether or not the provisions of section 59 applied in respect of any of the listed buildings that lay within the 15km study area, including Gallery.

[74 ] It was argued on behalf of the respondents that to succeed in his petition the petitioner and reclaimer required to satisfy the Court that the first respondents had not been entitled to proceed on the basis that the proposed development would not impact upon Gallery or its setting, so as to trigger a duty on the first respondents under section 59(1) to have special regard for the preservation of that listed building or its setting. It was also argued that none of the information before the first respondents as planning authority had suggested that there would be any impact at Gallery, such as to give rise to a statutory duty under section 59(1). That was because there was information in the Environmental Statement that the proposed development was not predicted to result in any adverse effect on listed buildings and their settings (paragraph 10.5.30).

[75 ] I deal initially with the second of those submissions. As I have already referred in some detail to the Environmental Statement, I need not repeat what I have already said. Suffice it to say that the Environmental Statement contained a considerable body of information which not only suggested but explicitly indicated that the proposed development would affect the visual setting of "many listed buildings", which the authors of the environmental statement did not identify. Even if those "many listed buildings" had not included Gallery, there was other information before the planning committee on which it would have been open to the first respondents to hold that the proposed development would affect the setting of Gallery, along the lines discussed in Historic Scotland's guidance. There was, in particular, the information the petitioner placed before the first respondents when he addressed the meeting on 29 June 2004. That followed upon correspondence between the petitioner and the first respondents in which the petitioner had made reference to the fact that Gallery was a Grade A listed building. The fact that the correspondence related to the petitioner's objection to the proposed wind farm development at East Bradieston does not mean that it did not serve to remind the first respondents about what they should already have been well aware , namely that Gallery is a Grade A listed building. Having regard to the terms of section 10.1.0 of Historic Scotland's Guidance it is clear that before the planning committee took its decision on 29 June 2004 there was information before the first respondents upon which it would have been open to them to hold that the proposed development would affect the setting of Gallery within the meaning of section 59(1).

[76 ] Returning to the respondents' other submission that to succeed in his petition the petitioner requires to satisfy the Court that the first respondents had not been entitled to proceed on the basis that the proposed development would not impact upon Gallery or its setting, I also reject that submission. In my opinion, to hold that the petitioner required to establish that would be equivalent to placing an onus on the petitioner to demonstrate that if, during the meeting on 29 June 2004, the first respondents had considered the position of Gallery under reference to the provisions of section 59(1) of the Listed Buildings Act, which it is clear they did not, they would have been bound to have held, and would have held, that the setting of Gallery would be affected by the proposed development.

[77 ] In my opinion, for the petitioner and reclaimer to succeed in demonstrating that the first respondents acted unlawfully and in breach of the provisions of section 59 he need not go so far. Gallery is a listed building. Its existence and listing are recorded on a public register to which the first respondents had access. The contents of that public register of listed buildings were known about, or must be deemed to have been known about, by the first respondents. Notwithstanding what was said in submissions on behalf of the first respondents it remains unclear whether the first respondents are maintaining that prior to taking their decision as planning authority on 29 June 2004 they were totally unaware of the fact that Gallery was a Grade A listed building. In my opinion such a contention would be difficult to reconcile with the first respondents' receipt of the letter dated 25 May 2004, which the petitioner wrote to the first respondents' Head of Planning and Building Control. Nor, having regard to the terms of the minute of the meeting of 29 June 2004, could it be argued that the planning committee had not been addressed on the issue of the proposed development altering the view from Gallery. Such an effect is, as Historic Scotland's Guidance makes clear, a factor which ought to be taken into account when addressing the issue of whether the setting of a listed building will be affected by a proposed development. Paragraph 76 of the decision letter relating to the wind farm at East Bradieston illustrates how the issue as the application of the provisions of section 59(1) required to be approached. What conclusion the first respondents would have been reached, had the correct approach been followed, is a separate issue upon which I do not consider it would be appropriate for me to express a conclusion.

[78 ] In my opinion, the provisions of sections 59 and 60 of the Listed Buildings Act apply to a planning authority, in their consideration of a planning application, irrespective of whether the owner and/or occupier of a listed building brings the existence of the listed building to the attention of the planning authority and of whether the owner and/or occupier of the listed building objects to the planning application. Indeed the provisions of sections 59 and 60 would apply even where the owner and/or occupier of the listed building concerned was the applicant for planning permission or supported the grant of an application for planning permission submitted by a third party. The legislation relating to listed buildings exists to protect such buildings and their settings in the public interest; and not merely to protect the interests of the owners and/or occupiers of such buildings. The statutory duties which the legislation places on planning authorities cannot be delegated by them to others, no matter to whom planning authorities may look for information upon which to base the decisions involved in the discharge of their statutory functions.

[79 ] In my opinion, as I have already indicated, the first respondents were not entitled to reach the view that the proposed development did not require to be advertised under the provisions of section 60. In my opinion, when the first respondents came to take the decision they did on 29 June 2004, they also erred in law in failing to give any consideration as to whether or not the provisions of section 59(1) of the Listed Buildings Act applied to their consideration of the planning application, even although there was information before them on which they could have held that the setting of a number of listed buildings, including in particular Gallery, would be affected by the proposed development. On that basis, it is, in my opinion, open to the petitioner and reclaimer as owner and/or occupier of Gallery to challenge the decision of the planning committee of 29 June 2004 on the basis that, as he set outs in his pleadings, the first respondents failed to carry out their statutory duty under section 59(1) in respect of Gallery, before they reached their decision, and in doing so they acted irrationally, perversely and ultra vires.

[80 ] In the present case, the first respondents were aware there were a number of listed buildings within the 15 km study area and, in particular, in the area surrounding the site of the proposed development. They were aware that the visual setting of a number of listed buildings would be affected. They had been so advised by the second and third respondents, when the planning application was lodged, and that had subsequently been confirmed by Historic Scotland. There was no information before the first respondents to contrary effect. In my opinion, the fact that the authors of the Environmental Statement had stated that the proposed development would not have an adverse effect does not provide the respondents with a complete answer to the petitioner's case against them.

[81 ] In my opinion, if the first respondents considered that any such effect on the setting of a listed building had to be adverse, before a duty could arise under section 59(1), they were acting under an error in law. If, as appears to have been the case, standing the terms of the report placed before the planning committee, the first respondents failed to give any consideration at all as to whether the provisions of section 59(1) applied in relation to Gallery that also would amount to an error in law. In the whole circumstances, on the basis of the submissions and documents placed before the Court I have reached the conclusions that the petitioner and reclaimer has established that in the course of granting planning permission to the third respondents the first respondents acted in an unlawful manner and that it is open to the petitioner, who objected to the granting of the planning application, to found on the first respondents' actings in breach of the provisions of section 59(1).

Mora

[82 ] In order to succeed in his petition, however, the petitioner and reclaimer also has to overcome the pleas relating to mora which all three of the respondents raise against him. I agree with the views of your Lordship in the chair on the issue of mora. As was pointed out to junior counsel for the petitioner during the course of his submissions, as soon as the planning committee reached its decision on 29 June 2004, it would have been open to the petitioner to have raised interdict proceedings against the first respondents, seeking to have the first respondents interdicted from granting planning permission to the second respondents and to have sought such a remedy on exactly the same grounds upon which this petition has proceeded. Senior counsel for the petitioner accepted that was so.

Conclusion

[83 ] Having regard to the fact that I agree with your Lordship in the chair on the issue of mora, I concur in the motion to refuse the reclaiming motion and to adhere to the interlocutor of the Lord Ordinary.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Simson, Re Judicial Review [2007] ScotCS CSIH_10 (25 January 2007) URL: http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_10.html Cite as: 2007 SLT 244, 2007 SC 366, [2007] CSIH 10, [2007] ScotCS CSIH_10

Scottish Court of Session Decisions

Lord Abernethy

Lord Eassie

Lord Mackay of Drumadoon

[2007] CSIH 10

Lord Abernethy

Lord Eassie

Lord Mackay of Drumadoon

[2007] CSIH 10

Lord Abernethy

Lord Eassie

Lord Mackay of Drumadoon

[2006] CSIH 10