Planning appeal challenging building of house in sight of listed building refused

Colin Liddell and others petitioned for judicial review of a decision by Argyll and Bute Council to grant permission for a house to be built 1.5 kilometres south of the property. This petition was refused by the Lord Ordinary when it originally came before the Outer House of the Court of Session.

The appeal was heard in the Inner House by the Lord President, Lord Carloway, sitting with Lord Menzies and Lord Malcolm.

Natural panorama

The petitioners were the proprietors of Ardencaple House, a List B building at Clachan Seil on the Isle of Seil. They alleged that there had been a failure by the planning authority to consider the desirability of preserving the listed building and its setting, contrary to the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.

The planning officer who was responsible for preparing the report that recommended the grant of permission did not visit Ardencaple House. It was therefore contended that she had failed to identify and define the extent of the setting of the property, which the 1997 Act required the planning authority to have special regard for in its considerations.

The Lord Ordinary who originally considered the petition noted that, while the planning officer had not visited the house, she had visited a site halfway between the house and the location of the proposed development. In an affidavit she stated that whether it was necessary to visit the house was a matter for her, and the decision of the authority was that the proposed development would not affect the listed building or its setting.

The petitioners contended that the proposed site was at a high point and therefore would have a significant impact on the landscape as the only man-made feature in an otherwise natural panorama when viewed from the house. The planning officer had wrongly asserted that the new house would be on the same level as other existing developments nearby, but if that were the case it would not be visible from the house.

The respondents submitted that it was incorrect to say that the terms of the 1997 Act had been ignored. The planning officer was not required to define the setting of the listed building, and the petitioners had not provided any expert evidence relating to the nature and extent of the setting of the house.

Depends on a misconception

The opinion of the court was delivered by Lord Malcolm. Assessing the original evaluation, he said: “The evaluation was that a dwelling house extruding above a ridgeline, though not the skyline, some 1.5km distant from the property, would not affect its setting. In other words, no harm would be done. It followed that the ‘special regard’ duty did not arise. The listed building and its setting were not material considerations, nor did they give rise to a determining issue. Given the absence of any mention of the listing and the setting in the letter of objection, the planning officer was presented with no contrary assertion. Any criticisms as to the extent of her investigations or discussion of the matter in her report should be seen in that context.”

He continued: “Here the objection concerned the visual impact of the proposed dwelling house and its allegedly unacceptable intrusion in the landscape. These are classic issues of planning judgement with which the courts will not lightly interfere. The planning officer made her views on this objection clear in her report, which in turn was accepted by the decision-maker. It is far from obvious what other factor or factors flow from a reference to the setting of Ardencaple House. There is no assertion that, apart from the alleged impact on views to the south from the property, there is any historical or other consideration of significance in this context.”

Assessing the planning officer’s consideration of the building’s setting, he said: “The [petitioner’s argument] depends upon the misconception that the planning officer could only reach a proper understanding after a visit to the house itself. There may be cases where a visit of that kind is obviously necessary, but there is no reason to place this officer’s task in that category. She considered that her investigations, which included three visits to the locality, equipped her with a sufficient appreciation of the views from the house, the local topography, the distance of the house from the development, and the nature of the development’s intrusion on the landscape and those views, to allow her to evaluate whether the development would or would not affect the setting of the house.”

He continued: “The submission that the investigations were inadequate is no more than a challenge to her judgement on that matter. There is no sound basis for this court concluding that, absent a visit to the house itself, she was unable to form a proper appreciation as to the nature and extent of the setting of the listed building, and as to the potential impact of the proposed development.”

On the petitioners’ other complaints, he said: “There was no requirement for the Lord Ordinary to grapple with and resolve the suggested dispute as to the level of the development as compared with the buildings in the adjacent settlement. It has always been acknowledged that the proposed dwelling house would be visible from Ardencaple House, and that the other buildings cannot be seen. Whether this is because of the difference in the levels of the houses, their respective sizes, or a difference in local topography, or a mixture of factors, was, for the purposes of the planning officer’s exercise, neither here nor there. As to the suggestion that the officer should not have considered the backdrop of the hills to the south as providing mitigation in respect of visual intrusion, this again raises a matter of planning judgement, not an error of the kind which falls within the court’s jurisdiction.”

He concluded: “Finally, we note that there is no merit in the submission that in her affidavit the officer failed to provide adequate reasoning for her conclusion in respect of the duty in [the 1997 Act].”

For these reasons, the appeal was refused.