Tue 06 Mar 2018

Refusal of Challenge to Mixed Use Development in Edinburgh's Old Town

People may have read a news story last year with interest about a challenger to a development in Edinburgh's Old Town (including a hotel) adjacent to the Edinburgh Central Library, who carried out a protest to the development from a tree.

A petition for judicial review was raised in respect of the development and a decision was issued in October 2017 (Byrom v City of Edinburgh Council [2017] CSOH 135).  The challenge was raised on the following grounds:

  • The planning committee failed to consider certain aspects of the setting of the adjacent Edinburgh Central Library (which was a listed building) in determining the planning application.
  • The planning committee should have reconsidered the application prior to granting consent in light of a change in the library's listing from Category B to Category A.
  • The way in which the committee dealt with the issue of air quality was flawed.

The judge at first instance dismissed the judicial review petition on the basis that no errors in the decision-making process had been established and the approach taken by the planning authority could not be regarded as irrational or perverse.

The challenger then appealed the decision to the Inner House of the Court of Session.  The decision of the Court recorded that "the primary focus of the purported grounds of appeal is the nature of the planning decision made by the respondents rather than the decision of the [lower Court].  As a consequence, the grounds repeatedly stray into issues relating to the merits of the planning decision, rather than the [lower Court's] decision about the legitimacy of the process."

It is well established that the Court cannot reconsider the merits of a planning decision which is subject to judicial review, only the lawfulness.

The Court considered the three points which had been argued in the Court below, as follows:

1. Impact on the Central Library and its setting

The Court concluded that the lower Court correctly observed that there was information from several sources before the planning committee which had referred to views in the context of the setting of the library.  The fundamental question of what impact there would be was a matter of planning judgment for the committee based on all the information before it.  There was no basis for thinking that the committee had failed to have regard to all of the material before it.

2.  Regard to the library's Category A listing

The Court noted that the decision to grant planning permission was made in the knowledge that there was a proposal to upgrade the listing of the library from category B to category A.  The subsequent change in the listing was simply the implementation of a change which had already been anticipated.  In the absence of any adverse impact, the category of listing was not material.

3. Air Quality

The committee was faced with two competing views on air quality.  The Court noted that the lower Court had correctly concluded that reaching a decision on this point was "squarely within planning judgment" and the planning authority was entitled to reach the decision which they did on the evidence before them.

The Court ultimately stated that the challenger was seeking to re-run arguments made to the lower Court without identifying errors of law in the decision.  The Court held that they were unable to identify any alleged error in law on the part of the lower Court or any other basis on which the decision might be impugned.  The appeal was therefore refused.

Should you require any assistance in respect of judicial reviews in respect of planning permissions, please contact a member of the Morton Fraser planning team.

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