Development and protected settings

Scotland is home to incredible landscapes and incredible history. They are of both local and national importance and value, which planning law and policy seeks to protect and enhance. Challenging questions can arise for developers and planning authorities when development is proposed in such areas. One issue is the protection afforded to listed buildings, and more particularly the planning authority's duty to consider the effect of a proposed development on the setting of a listed building. This article considers recent judicial guidance on just how far (literally) a planning officer has to go to discharge that duty.

Background

A planning application was determined by Argyll & Bute Council in June 2018 for the erection of a dwellinghouse and associated development on the Isle of Seil. The location of the proposed development site was within the Isle of Seil Landscape Area of Panoramic Landscape Quality, and was located approximately 1.5km from Ardencaple House, an 18th century, B-listed house. The application was approved by the council under delegated powers. The proprietors of Ardencaple House challenged the council’s decision to grant permission in the Court of Session: Liddell v Argyll & Bute Council [2019] CSOH 57 (31 July 2019).

Grounds of review

There were two grounds of review. The first was that the council had failed to observe its duty under s 25 of the Town and Country Planning (Scotland) Act 1997, this being the requirement that a planning application should be determined in accordance with the development plan unless material considerations indicate otherwise.

The second ground, and the ground on which this article focuses, was that the council failed to consider the desirability of preserving a listed building and its setting, contrary to s 59(2) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.

Questions for the court

The key questions before the Court of Session were (a) whether the duty under s 59(2) was engaged; and (b) if so, how must a planning authority approach satisfying its duty under s 59(2).

The duty under s 59(2) is that the planning authority have regard to the desirability of “preserving features of a [listed] building or its setting or any features of special architectural or historic interest which it possesses”. The petitioners submitted that in failing to visit Ardencaple House, the planning officer failed to assess the actual setting of the house and had therefore failed to satisfy the duty under s 59(2). The court rejected this ground of challenge and held that the planning officer “failing” to carry out a visit to Ardencaple House during the course of evaluating the planning application was not an error in law.

Discussion

This judgment provides useful guidance on the assessment of setting by a planning authority and the engagement of their duty under s 59(2). Lord Boyd examined both case law and Historic Environment Scotland guidance in coming to his view. In the course of his judgment, Lord Boyd provides a five point conclusion on his review of “setting” and its relationship with s 59(2):

• Setting has no special legal definition.
• There will be a number of factors – both internal and external to the potentially affected building – which will require to be examined.
• There must be “some distinct visual relationship” between the proposed development and the potentially affected building. This must be a relationship which is “more than remote or ephemeral and bear on one’s experience of the listed building in its surrounding landscape”.
• This visual relationship will “normally be taken from a point external to both the development and the listed building”. There is however no right to a view.
• The question of the engagement of s 59(2) is to be judged by the planning authority and it is for it to determine whether it has sufficient evidence to determine an application.

Also notable in the decision was Lord Boyd’s comment that in assessing whether s 59(2) has been engaged, a planning officer is not required to visit the potentially affected listed building – indeed, Lord Boyd goes so far as to state that it would be “an odd and unwelcome development in planning law” for the courts to impose that obligation. Lord Boyd also reiterated that whether or not a planning officer has sufficient information in relation to any particular matter, including setting and the engagement of s 59(2), is a matter of planning judgment, and only susceptible to judicial review on Wednesbury grounds.

This decision will be one which is welcomed by planning authorities, as it affirms the decision making powers that they and their planning officers are able to exercise in their professional capacity. The guidance provided on evaluation of setting should also be welcomed by not only developers but anyone with an interest in reviewing local planning applications – particularly in areas sensitive to development.