Campaigner fails in legal challenge against Edinburgh Old Town development

Simon Byrom raised proceedings over concern about the potential impact of the proposed development in Edinburgh’s Old Town, but a judge in the Court of Session upheld the decision by Edinburgh City Council.

‘Save Edinburgh Central Library’

Lady Wise heard that the petitioner, a founding member of the “SAVE Edinburgh Central Library – Let there be Light and Land” campaign, challenged the proposed development by Dreamvale Properties at Victoria Street and Cowgate, Edinburgh, which is within the Old Town Conservation area.

The first issue related to the “setting” of the Central Library on George IV Bridge and whether the views from it were properly considered. Counsel for the petitioner, David Cobb, contended that the committee failed to consider the impact of the development on the views from within the library.

The second challenge related to the change of the listing of the Central Library from B listed status to A listed status. Counsel submitted that the planning sub-committee had been invited to assess the impact of the development on the Central Library as if the library was a Category B building in the absence of any information about reclassification and therefore it was argued the council “inadequately discharged” its duty under section 59 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.

The third ground of challenge concerned the way in which the sub-committee dealt with the matter of air quality, as Environmental Services had recommended that the application be refused due to the “potentially adverse impact” it would have on the air quality management area (AQMA).

‘Informed judgment’

However, on the first issue of setting counsel for the respondent, Douglas Armstrong QC, said there was no evidence that councillors “covered their ears and closed their eyes” to the evidence before them on this point.

It was submitted that the councillors had before them sufficient evidence to make an “informed judgment” on setting: the statutory duty had been identified; the advice of Historic Environment Scotland had been taken into account; the key issues for all sides had been identified; and there was reference to the evidence of the objectors and the planning officials on the issue of views from the library. Ultimately it was for the councillors to take the final decision on this matter.

As to whether the respondent was required to take a change in the listing category of the Central Library from B to A into account and to reconsider accordingly, counsel submitted that the problem with the submissions made for the petitioner was that they failed to take account of the absence of any adverse effect of the revised scheme on the Central Library. In the absence of such an adverse effect, the change from Category B to A could not be a material change.

On the third and final issue of whether the respondent gave proper weight to the issue of air quality impact assessment in relation to the AQMA, Mr Armstrong noted that the decision makers had evidence from both Environmental Services and Golder Associates, together with the main report which concluded that the impact would be “minimal”.

Ultimately, the fact that there would only be a minor impact on air quality was an “insufficient basis” to merit refusal of it, and in any event, the matter was one of planning judgment and the councillors were “entitled” to reach their decision on the evidence.

‘No errors’ in council’s decision

Refusing the petition, the judge found that none of the three grounds of challenge made by the petitioner against the respondent’s decision to grant planning permission for this development had been made out.

In a written opinion, Lady Wise said: “I have no doubt that the petitioner and other residents within the Old Town conservation area are strongly and genuinely opposed to this proposed development. However, no errors in the decision-making process have been established and the approach taken by the respondent on the basis of the available material cannot be regarded as irrational or perverse.”