City of Edinburgh Council v. Secretary of State for Scotland and Others

The House of Lords considered two linked questions: the effect of section 18A of the Town and Country Planning (Scotland) Act 1972 (as inserted by the Planning and Compensation Act 1991) on the decision-maker's duty when determining planning applications; and whether a specific building (the former riding school at Redford Barracks) fell within the Secretary of State's statutory list of buildings of special architectural or historic interest so as to require listed building consent for demolition.

On planning law, the court held that section 18A creates a statutory presumption in favour of the development plan such that determinations should be made in accordance with the plan unless material considerations indicate otherwise. That presumption enhances the plan's status but does not remove the decision-maker's discretionary judgment: the decision-maker must identify relevant provisions of the plan, consider other material considerations, and decide whether those considerations are sufficient to displace the plan. The court's role remains supervisory and confined to legality, rationality and whether the decision-maker had regard to relevant considerations under section 233.

On listed buildings, the court held that the statutory function of identifying a listed building is performed by the "Name of Building" entry in the list kept under section 52; other columns (for example "Description" and "References") are informative but subordinate. Where words of limitation in the Name column are ambiguous, it is permissible to consult the Description column to resolve ambiguity. In the present case the House concluded that the reporter did not have sufficient evidence to resolve whether the riding school was within the listing and so the Second Division's conclusion (that listed building consent was required) was properly upheld.

Background and procedural history.

• Revival Properties Limited sought outline planning permission and listed building consent for demolition of a former riding school at Colinton Mains Drive, Edinburgh. The City of Edinburgh District Council refused both. Revival appealed to the Secretary of State and a Senior Reporter held an inquiry and granted outline planning permission but concluded listed building consent was not required for demolition of the riding school. The Council challenged both decisions in the Second Division of the Court of Session, which allowed the Council's appeal on both issues. The Secretary of State and Revival appealed to the House of Lords.

Issues for this court.

1. What is the legal effect of section 18A of the Town and Country Planning (Scotland) Act 1972 on the status of the development plan and the scope of review by the courts? (planning law issue)
2. Whether the former riding school is within the Secretary of State's statutory listing for Redford Barracks such that listed building consent was required for demolition, and whether the reporter was entitled to find it was not listed. (listed building issue)

Court's reasoning and conclusions.

• Section 18A gives the development plan a statutory presumption of priority: determinations should be made in accordance with the plan unless material considerations indicate otherwise. That presumption is statutory and must be given effect by decision-makers, but it does not convert planning decisions into matters for the court; the decision-maker retains the task of identifying relevant plan provisions, evaluating other material considerations and deciding whether they displace the plan. The court's role is to review whether the decision-maker had regard to the presumption, considered relevant and irrelevant matters appropriately, and whether the ultimate decision was irrational or outside powers under section 233.
• In the factual application, the Reporter was entitled in principle to prefer more recent policy guidance and draft regional policy to the development plan where that guidance had overtaken plan policy. The Reporter found a quantitative deficiency in local shopping provision (measured by consumer expenditure/turnover), applied the draft structure plan policy (policy S17 and its criteria), and concluded the seven criteria were met; that factual assessment and exercise of planning judgment was within his province and was not amenable to substitution by the court absent irrationality. For these reasons the House allowed the appeal on the planning permission.
• As to the listing, the statutory list kept under section 52 must identify the listed building; the "Name of Building" column is the statutory identifier while the "Description" and "References" columns are informative. Where the Name column contains words of limitation that are ambiguous, the Description may be consulted to resolve the ambiguity. Here the bracketed limitation "(original buildings of 1909-15 only)" was ambiguous as to whether the riding school was excluded; the Reporter relied on evidence that the riding school was built after 1915 but had insufficient material to resolve whether the riding school formed part of the original design and thus was included. The Second Division was right to hold the reporter could not properly exclude the riding school from the statutory listing on the material before him; the House dismissed the appeal on the listed building point.

Remedy and costs. The House allowed the planning permission appeals, dismissed the challenge on the listed building consent, and made orders as to costs between the parties as recorded in the judgment.

This was an appeal allowed in part. The House held that (1) section 18A of the Town and Country Planning (Scotland) Act 1972 creates a statutory presumption in favour of the development plan but leaves the decision-maker with the primary judgment to weigh the plan against other material considerations; the court's review is limited to whether the decision-maker had regard to the presumption, whether relevant/irrelevant matters were considered, and whether the decision was irrational. Applying those principles, the Reporter was entitled to prefer more recent policy and to find a quantitative deficiency and accordingly to grant planning permission; that part of the appeal was allowed. (2) As to listed building consent, the statutory list is identified by the "Name of Building" entry; ambiguous expressions in that entry may be resolved by consulting the Description, but on the evidence before the Reporter he lacked sufficient material to exclude the riding school from the listing; that part of the appeal was dismissed.

Appeal to the House of Lords from the judgment of the Second Division of the Court of Session (Scotland) (Second Division allowed the Council's appeal on planning and listed building issues). The House of Lords judgment reported at [1997] UKHL 38; [1997] 1 WLR 1447; [1998] 1 All ER 174.