Listed building consent – Question whether building listed question of fact – Proper construction of entries on list question of law – Whether list properly construed to exclude building subject to demolition – Development plan – Presumption in favour of development plan – Material considerations – Function of the court in reviewing decisions
In 1993 Revival Properties Ltd (Revival), the second appellants, sought outline planning permission for the development of a food store, petrol filling station and ancillary works at a site in Colinton Mains Drive, Edinburgh. They also sought listed building consent for the demolition of a former riding school, Redford Barracks, which was on the site. Redford Barracks, a complex of buildings, appeared as one entry on lists compiled by the Secretary of State for Scotland. The City of Edinburgh District Council, (the council), refused both planning permission and listed building consent. Revival appealed to the Secretary of State who appointed a reporter to determine the appeal. The reporter held an inquiry and in his decision letter dated March 7 1995 decided that the riding school building was not covered by the entry for Redford Barracks in the list and that consent was therefore not required for its demolition. The Reporter granted outline planning permission for the development. The council appealed on the matter of the listed building consent and on the planning permission matter. The Court of Session allowed the appeal on both matters and the Secretary of State and Revival appealed to the House of Lords.
Held The appeal on the listed building matter was dismissed; the appeal on the planning permission matter was allowed.
1. Although the question whether a building was included in the list was essentially a matter of fact for the reporter, where the critical question was one of the interpretation of the list and it was argued that the reporter had misconstrued it and so misdirected himself, the court was entitled to correct such a misconstruction on appeal. In the present case, the reporter had erred in holding that the building was not covered by the entry for Redford Barracks in the list.
2. The effect of section 18 A of the Town and Country Planning (Scotland) Act 1972, introduced by the Planning and Compensation Act 1991, which created a presumption in favour of the development plan amounting in effect to a statutory requirement, was not to increase the power of the court to intervene in decisions about planning control. The function of the court was to see that the decision taker had had regard to the presumption, not to assess whether he gave enough weight to it where there were other material considerations indicating that the determination should not be made in accordance with the development plan. In the instant case, the Reporter had been entitled in the light of the material before him to give priority to the more recent planning guidance in preference to the development plan, and the reason he gave had been sufficient to explain his conclusions.
CM Campbell QC and CJ Tyre (instructed by the Treasury Solicitor) appeared for the Secretary of State for Scotland; RL Martin QC and PS Hodge QC (instructed by Berwin Leighton, London agents for Brodies WS, of Edinburgh) appeared for Revival Properties Ltd; WS Gale QC and MGJ Upton (instructed by Rees & Freres, London agents for the solicitor to Edinburgh City Council) appeared for the council.
