Listed building — Enforcement notice — Reporter concluding listed building consent ought to be granted for works and overturning enforcement notice — Whether reporter applying correct test — Whether conditions attached to consent unreasonable, unenforceable and irrelevant — Sections 34 and 35 of Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997 — Appeal allowed
The appellant local planning authority issued a listed building enforcement notice, pursuant to section 34 of the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997, in respect of a B listed, two-storey terraced town house. The property, which was used as a guest house, was situated within a conservation area in Edinburgh. The notice complained of the construction, without listed building consent, of an en suite bathroom in a ground-floor bedroom at the front of the house. This had been effected by the erection of partition walls, the removal of which was required by the notice.
The owner of the property appealed to the respondents under section 35 of the 1997 Act. The reporter hearing the appeal found that the offending works affected the character of the building as a building of special architectural or historical interest, and therefore required listed building consent. However, he concluded that the integrity of the listed building had not been compromised sufficiently to justify a requirement for the immediate removal of the walls, since, inter alia, there was no damage to the elaborate ceiling of the room and the walls were capable of being removed without causing damage. Moreover, they were virtually invisible from the outside because of the presence of net curtains in the window of the room and a privet hedge in front of the house. He accordingly allowed the appeal on ground (e) of section 35, namely that listed building consent ought to be granted. However, he attached a temporal condition requiring the removal of the partition walls in the event that either the room ceased to be used as a bedroom or the net curtains or the privet hedge were removed.
The planning authority appealed. They contended that: (i) the reporter had erred in law by failing to have regard to the presumption against development affecting the character of a listed building and by having regard to other, irrelevant considerations; and (ii) the conditions were unreasonable, unenforceable and irrelevant.
Held: The appeal was allowed.
1. The reporter had erred in law, in that, while purporting to decide whether listed building consent should be granted, he had in fact addressed the different question of whether, once the works had been carried out without a prior grant of consent, it was reasonable that they should now be removed. He had failed to consider whether it would have been proper to grant consent, either outright or subject to conditions, had an application been presented in advance of the works being carried out. Had he considered the right question, he might have reached a different view, and his decision was therefore to be quashed.
2. The condition attached to the listed building consent was also flawed. The reference to permanent cessation of use as a bedroom presented difficulties in relation to enforceability, since there was no planning control over the use to which a householder could put the individual rooms within a house. Moreover, it would be difficult to know whether a room used during the day for other purposes, for instance as a study, remained a bedroom, or to establish whether any cessation of bedroom use was permanent. The question of the net curtains raised the issue of whether it was reasonable and lawful, in the context of the grant of planning consent or listed building consent, to require the deployment of soft furnishings that did not form part of the immoveable property, since planning conditions ran with the land. While the hedge was a less ephemeral feature of the property, that part of the condition also suffered from problems of drafting and expression.
R Douglas Armstrong (instructed by the solicitor to City of Edinburgh Council) appeared for the appellants; Ruth Crawford (instructed by the solicitor to the Scottish Executive) appeared for the respondents.
Sally Dobson, barrister
