City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd)

Section 18A of the Town and Country Planning (Scotland) Act 1972 gives the development plan statutory priority, but not absolute authority. A determination must accord with the plan unless material considerations indicate otherwise. The decision-maker must interpret the relevant policies, decide whether the proposal accords with the plan and weigh all material considerations.

The weight assigned to those considerations remains a matter of planning judgment. A reviewing court examines legality, relevance, compliance with the statutory priority and rationality. It cannot substitute its own assessment of the evidence or weight. Planning reasons need only disclose the reasoning on the principal disputed issues clearly enough to prevent real and substantial doubt. Whether a structure falls within a statutory list is a question of construction and therefore of law.

In City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447, Revival Properties Limited sought outline permission for a food store, petrol filling station and ancillary works. It also sought consent to demolish a former riding school at Redford Barracks. The district council refused both applications.

On appeal, a Reporter granted outline planning permission and decided that listed building consent was unnecessary because the riding school was outside the statutory listing. The Second Division of the Court of Session allowed the council's challenges on both issues, by a majority on planning permission and unanimously on listing.

The Secretary of State and Revival appealed on planning permission. Revival alone appealed on listed building consent. The central questions were the priority given to a development plan by section 18A of the Town and Country Planning (Scotland) Act 1972, the permissible scope of judicial review of planning judgment and reasons, and whether the riding school was included in the statutory list.

1. Disposition. The House unanimously allowed the Secretary of State's and Revival's appeals concerning planning permission. It unanimously dismissed Revival's appeal concerning listed building consent. Lord Clyde delivered the leading speech. Lord Browne-Wilkinson, Lord Mackay of Clashfern and Lord Steyn expressly adopted his reasons. Lord Hope of Craighead agreed with the result and added observations.

2. Development-plan priority. Per Lord Clyde, section 18A of the Town and Country Planning (Scotland) Act 1972 makes the relevant development plan govern the determination unless material considerations indicate otherwise. A proposal complying with the plan should be permitted absent contrary material considerations. A non-compliant proposal should be refused unless such considerations justify permission. The priority is not mechanical or absolute; more recent policy may show that an older plan should not be followed.

3. Decision-making and review. The decision-maker must identify and interpret the relevant plan provisions, assess the proposal against the plan, identify other material considerations and decide their weight. No universal or mandatory two-stage procedure applies. The weight of competing considerations remains within the decision-maker's planning judgment, consistently with Loup v Secretary of State for the Environment and Another (1995) 71 P. & C.R. 175 and Tesco Stores v Secretary of State for the Environment [1995] 1 WLR 759. A court may intervene for legal error, omission of a relevant consideration, reliance on an irrelevant consideration, or irrationality. Section 18A does not enlarge the court's power to reassess planning merits.

4. Application to the retail proposal. Per Lord Clyde, quantitative deficiency concerned a shortage of shopping floorspace relative to customers, measured through consumer expenditure. It differed from need. Evidence that existing stores traded above expected levels could support an inference of deficiency. Policy S17A required no particular quantification because criterion C separately protected the vitality and viability of strategic shopping centres. The Reporter had evidence supporting his conclusion, properly treated the newer guidance as outweighing the older plan and was entitled to grant permission.

5. Reasons. The Reporter had to explain his reasoning on the principal disputed issues so that the informed reader and court were left in no real and substantial doubt. He did not have to discuss every consideration or provide a detailed analytical exposition. His decision letter met that standard.

6. Listed building. Per Lord Clyde, interpretation of the statutory list was a question of law. Reading the document as a whole, the riding school was expressly described, while the limiting dates were ambiguous and could refer to Harry Measures's planning and design work rather than completion. The Reporter had therefore erred in treating post-1915 construction as decisive.

   Lord Hope added that the “Name of Building” column alone performed the formal statutory function, while the description was informative and could resolve ambiguity. He likewise concluded that the evidence was insufficient to exclude the riding school. He emphasised that limitations on listing should be clear, particularly because breach of the controls could attract criminal sanctions.

7. Orders. The Secretary of State received his costs in the House and half his expenses below. Revival received half its costs in the House and half its expenses below.

1. House of Lords: In City of Edinburgh Council v Secretary of State for Scotland (Revival Properties Ltd v City of Edinburgh Council, Secretary of State for Scotland v Revival Properties Ltd) [1997] 1 WLR 1447, the House unanimously allowed the planning appeals and dismissed Revival's listed building consent appeal. It reversed the Second Division on planning permission and affirmed its conclusion that the Reporter could not exclude the riding school from the list.

2. Second Division of the Court of Session: The court allowed the council's statutory appeals on both matters. Its decision was by a majority on planning permission and unanimous on the listed building issue. The citation is not stated in the judgment.

3. Secretary of State's Reporter: Following a public local inquiry, the Reporter allowed Revival's planning appeal, granted outline permission subject to conditions and decided that listed building consent was unnecessary.

4. City of Edinburgh District Council: The council initially refused outline planning permission and listed building consent.