Appeal by Weiss Development Company LTD against the Scottish Ministers (Court of Session) [2024] CSIH 23 (02 August 2024)

FIRST DIVISION, INNER HOUSE, COURT OF SESSION

[2024] CSIH 23

XA52/23

Lord President

Lord Pentland

Lady Wise

OPINION OF THE COURT

delivered by LORD PENTLAND

in the appeal under section 58 of the Planning (Listed Buildings and Conservation Areas)

(Scotland) Act 1997

WEISS DEVELOPMENT COMPANY LIMITED

Appellants

against

THE SCOTTISH MINISTERS

Respondents

____________

Appellants: Jonathan Weiss (lay representative)

Respondents: N McLean (sol adv); Scottish Government Legal Directorate

2 August 2024

Introduction

[1]

This appeal challenges a decision by a reporter appointed by the respondents to refuse

an appeal against the inclusion of a building in the list of buildings of historic and architectural

interest.

applied to Historic Environment Scotland to have the building designated as a listed building,

with a view to having it preserved from demolition. HES is the executive non-departmental

public body with responsibility for preserving Scotland's historic environment.

[3]

HES proceeded to carry out a full assessment of the special architectural and historic

interest of the building. On 5 September 2022, they found that the building met the criteria for

listing, but declined to designate it as such, due to the advanced stage of the appellants'

development proposals. HES observed that there was a significant level of public interest in the

case and that GCC had "noted" the possible service of a Building Preservation Notice. In

paragraph 3.3 of their report HES referred to their policy on development proposals and

designation; they stated that where plans for the development of the site or place were

particularly advanced, they would not normally decide to make a listing. The following month,

GCC issued a BPN in relation to the building, and asked HES to reconsider it for listing. HES

duly did so. This time they decided to designate the building as a category C listed building,

owing to the fact that they considered it to be a good surviving example of a late 19th century

commercial office building and therefore of special architectural or historic interest in terms of

section 1 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997.

[4]

The appellants appealed this decision to the Scottish Ministers under section 5B. The

Ministers appointed a reporter to consider the appeal. The reporter issued her decision on

11 October 2023. She dismissed the appeal and upheld HES's designation decision.

Relevant provisions of the 1997 Act

[5]

Section 1 requires HES to compile or approve a list of buildings of historic or

architectural interest. This is done with a view to providing guidance for planning authorities

in the performance of their functions under the 1997 Act. The effect of listing a building is that

it may not be altered, extended or demolished without authorisation (section 6). Authorisation

must be sought under section 7.

[6]

Section 5A enables HES, upon receipt of an application by any person, to issue a

certificate stating that it does not intend to include a building in a list compiled under section 1.

Where a certificate is issued, the effect is that:

"(2)

...

(a)

[HES] may not for a period of 5 years from the date of issue exercise in

relation to the building any of the powers conferred on it by section 1,

and

(b)

a planning authority may not for that period--

(i)

serve a building preservation notice in relation to the building, or

(ii)

affix [a temporary listing] notice under section 4(1)."

A person submitting an application to HES for a certificate must, at the same time as submitting

it, give notice of the application to the planning authority within whose district the building is

situated (section 5A(3)).

HES's first decision

[7]

In relation to the architectural interest of the building, it had been designed by Clarke

and Bell of Glasgow in 1893. The firm was renowned for its high quality works. The exterior

used industrial brick, but with a high degree of detailing. There was special design interest in

this. The interior of the building retained a detailed entrance stairway, public meeting rooms,

and a corridor of office rooms reflecting its function as a place of business. High quality timber

detailing had been retained; this advertised the fact that it had been used by nationally-

recognised timber merchants. The building had been substantially unaltered since the

19th century and was a good surviving example of an industrial office building from that period.

It retained good quality detailing to its exterior and interior. It had a high level of authenticity.

As for the setting of the building, though its immediate surroundings had changed

significantly, the site was the last remaining part of the former City Sawmills estate, which had

once occupied fourteen acres. It retained its historic relationship with the canal.

[8]

When considering the historic interest of a building, its age and rarity, its social

historical interest, and any association between it and people or events that had had a

significant impact on Scotland's cultural heritage were all relevant considerations. Many office

buildings in Glasgow of an age similar to the building had been lost, repurposed, significantly

altered or did not have distinguishing architectural detail. The building was a rare surviving

recording of the former timber industry in the Port Dundas Forth and Clyde canal area, which

had been an important centre of Scottish industry from the late 18th to mid-20th centuries, and in

Scotland as a whole. It contributed to an understanding of how people lived in the past. City

Sawmills had been the largest Scottish firm of timber merchants in the late 19th century, and the

quality and finish of the building's customer-facing spaces reflected the firm's success. For

these reasons, the building was of special architectural or historic interest.

[9]

The firm had been founded by Mr James Brownlee in 1848. Mr Brownlee was awarded

the Gold Medal of the Institute of Engineering and Shipbuilders in Scotland for a paper entitled,

"The Action of Water When Flowing Through a Nozzle", and met weekly with other

industrialists with an interest in science, such as James Thompson, Professor of Engineering at

the University of Glasgow, Robert Napier, ship designer, and the Bell brothers, who worked in

shipping. There was some interest in the building's association with Mr Brownlee; however,

that interest was not of national importance.

[10]

The building's importance justified a category C listing; this category applied to

buildings of special architectural or historic interest which are representative examples of a

period, style or type. However, the implications of designating the building on any

development proposals had to be considered. Since the appellants' development proposals

were at an advanced stage, the building would not be listed.

HES's second decision

[11]

GCC had issued a BPN in relation to the building, and had asked HES to reconsider the

building for listing. Since the first assessment, the building's designer was identified as George

Bell II of Clarke and Bell architects. Further information about the style of the building's design

had also come to light. However, none of the new information had a bearing on the overall

decision, which was that the building was appropriate for designation as a category C listing,

and that the building should now be so designated.

[12]

The second decision referred to HES's policy on BPNs and noted that in urgent cases

planning authorities may consider serving a BPN if it appeared to them that a building was of

special architectural or historic interest and was in danger of demolition or alteration which

would affect its character. This was a form of temporary listing. Once a BPN had been served

HES had six months to assess the building for listing. HES might list a building in these

circumstances even if there were development proposals at an advanced stage.

The reporter's decision

[13]

As a preliminary issue the appellants had questioned the legality of the listing on the

basis that HES had determined not to list the building; therefore the building could not be

designated for the next five years. HES had confirmed that a certificate of intention not to list

under section 5A(1) had not been issued. Accordingly, section 5A(2) did not apply and HES

were not prevented from listing the building. The reporter, therefore, proceeded to determine

the appeal.

[14]

To be designated as listed, a building required to meet the criteria of special architectural

or historic interest as set out in the 1997 Act. HES's "Designation Policy and Selection

Guidance" (2019) provided details of the matters taken into account in deciding whether a

building should be listed. The guidance provided a framework within which professional

judgement should be applied in making a listing decision. Each individual case required to be

considered on its own merits.

Architectural interest included the design, designer, materials,

setting and the extent to which such characteristics survived. Historic interest took account of

the age and rarity, social historical interest and association with people or events that have had

a significant impact on Scotland's cultural heritage. A building was eligible for listing if one or

more of the selection criteria was demonstrated.

[15]

The appellants contended that the building had been refitted in its entirety prior to 1922,

and that it was therefore merely a high-quality replica of a Victorian era structure. They

pointed to recent works, including the replacement of the roof, the addition of skylight

windows and the installation of new, reinforced sash windows in support of this. The

appellants submitted that, for those reasons, the building was not of special architectural or

historical interest. However, despite the works, the original design and architectural detailing

of the building were evident. The new roof was finished in natural slate of a size, format and

appearance that was consistent with a building of this age. The replacement windows were in

keeping with its historic character. The skylights were unobtrusive and did not detract from the

building as a whole. There had been alterations and subdivisions inside the building, but the

original floor plan and form of the building remained legible. In some places the timberwork

had been altered or replicated. HES had assessed the timberwork as being late 19th century and

had provided examples of similar timberwork from that period. HES were specialist advisers to

the Scottish Government on the historic environment and weight ought to be given to their

analysis. Taking account of that and all of the evidence, the appellants' contention that all or

much of the timberwork was a reproduction was not supported. Lowered, false ceilings had

been installed in parts of the building; however, the work was of a temporary, lightweight

construction and there was evidence that original cornicing remained in place above it. There

was insufficient evidence to demonstrate that the building had been entirely refitted. While

there had been a number of alterations to the building, mostly to the interior, its original design,

form and function remained legible. The quality of the remaining features reflected the original

function of the building as an office of some status dating from the late 19th century. In any

event, the listing of a building was not predicated upon individual features, but on its overall

architectural and historic interest. The alterations undertaken did not detract from the overall

architectural interest of the building.

[16]

As to the setting of the building, the parties did not dispute that the building was the

only surviving remnant of the extensive timber business associated with the canal. It had a

historic, functional relationship to the canal and was the last remnant of the nationally

important sawmill which had existed there. The building contributed to the understanding of

its historic setting.

[17]

Turning to the historic interest of the building, HES had advised that many similar office

buildings had been lost to redevelopment. Of those which survived, a significant number had

been materially altered, or lacked distinguishing architectural detailing. The parties had

referred to no other examples of similar buildings. The building was a good surviving example

of a 19th century industrial office building. It retained high quality design details and features

reminiscent of that period. The appellants had submitted that HES had based its decision to list

the building upon its being the headquarters of the City Sawmills company. They contended

that, in fact, the firm's headquarters had been located at 127 Craighall Road. HES's report did

make reference to the building being the principal office of the firm, but the designation was not

predicated upon it being the headquarters of the firm. It was founded upon its wider

architectural and historic interest. HES had accepted that the building's association with James

Brownlee was not of national importance. The historic connection of the building to the timber

business and canal at this location was without doubt. The building contributed to society's

understanding of the social, economic and cultural history of the area.

[18]

The appellants had raised various concerns regarding the decision-making process,

including the fact that HES had originally decided not to list the building; that the potential for

listing the building and issuing a BPN was not identified at an earlier stage of the planning

process and the costs to the appellants associated with that process; and that the involvement of

a local MSP in the listing process meant that the process was not independent. However, the

appeal related only to whether the building was of architectural or historic interest, as set out in

the 1997 Act. Consequently concerns regarding the listing process and planning application

were not relevant. The decision on the appeal did not preclude a future application for listed

building consent for alteration, or even demolition, of the building.

Submissions

Appellants

[19]

The appeal was not based on the arguments made about the architectural and historic

interest of the building before the reporter.

[20]

HES's first decision constituted a certificate under s 5A. Once HES had issued its

determination not to list the building in September 2022, no BPN could be served on the

property for a period of five years. Even if GCC's BPN had been properly served in the correct

format, it was void. Section 5A of the Act set out a clear definition of a certificate. A certificate

cleared a building from potential listing, whether temporary or permanent, for five years.

HES's first decision had granted the building immunity from threat of becoming listed or being

made subject to a BPN for that period.

[21]

The respondents' contention that HES would only issue a certificate of intention not to

list a building where it had determined that the building was not of special architectural or

historic interest was contrary to HES's Guidance at Annex 2. There it was stated that HES may

proceed not to list a building even where it had been found to meet the listing criteria. The

respondents' contention that a certificate would take the form of a letter from HES to the

applicant, as well as to the owner, occupier and tenant of the building in question was refuted.

A certificate took the form of a report of handling. The respondents were to put a strict

explanation as to the point of a decision not to list if it were the case that a local planning

department could immediately serve a BPN following such a decision. A certificate was simply

a written assurance given by a public official. It could take the form of a letter. Reference was

made to Cook v Ziff Colored Masonic Lodge No 119 (80 Ark. 31; 96 S.W. 618, a decision of the

Arkansas Supreme Court dated 23 July 1906) and to Kay-Vee Realty Co. Inc. v Town Clerk of

Ludlow (355 Mass. 165; 243 N.E.2d 813, Spalding J at 168; a decision of the Supreme Judicial

Court of Massachusetts). The appellants had a legitimate expectation that HES, as a public

authority, would act in accordance with and would honour their original decision not to list the

building.

[22]

In his oral submissions Mr Weiss expanded on his note of argument. Even if the

decision of 5 September 2022 did not amount to a certificate for the purposes of section 5A, the

appellants nonetheless had a legitimate expectation that HES would not list the building in

circumstances where there had been no change in any of the material circumstances of the case.

The service of the BPN after the first decision made no difference. It was merely a means by

which the planning authority could draw the attention of HES to what they contended was the

historic or architectural significance of the building. Further, in reversing its original decision

HES had acted contrary to the Scottish Regulators' Strategic Code of Practice and in a manner

which infringed the appellants' rights under Article 1 of the First Protocol to the European

Convention on Human Rights. Finally, Mr Weiss submitted that the BPN was, in any event,

invalid since it had not been served on the owners of the building, a company with its

registered office in Hong Kong.

Respondents

[23]

Under section 58 of the 1997 Act, an appellant could challenge the validity of a decision

on the grounds that it was not within the powers of the Act, or that any relevant requirements

had not been complied with in relation to it.

A decision by the respondents would be regarded

as outwith their powers under the Act if they had: improperly exercised the discretion

conferred on them; made a material error of law going to the root of the question for

determination; taken into account an irrelevant consideration; failed to take account of relevant

and material considerations; proceeded on a fact for which there was no evidential basis; or

reached a decision which no reasonable person could have reached (Wordie Property Co v

Secretary of State for Scotland 1984 SLT 345, LP (Emslie) at 347- 348). Under section 58, the court

was concerned only with the legality of a decision, not with its merits, or with the planning

judgement exercised.

[24]

The appeal did not advance a relevant ground of appeal, nor explain how the reporter

had erred on one of the grounds identified in Wordie Property. Before the reporter, the

appellants had questioned the legality of the listing of the building under section 5A. The

reporter had been satisfied that that provision did not apply. Having disposed of that

preliminary issue, the reporter had proceeded to determine whether the building was of special

architectural or historic interest. She was correct to do so, exercising her planning judgement,

and based on the material before her.

[25]

In any event, as explained in HES's "Certificate of Intention Not to List Guidance", HES

would only issue a certificate of intention not to list following receipt of an application

requesting a certificate of intention not to list and where it had found that a site or place was not

of special architectural or historic interest. No such application was received by HES from

anybody, including the appellants, in the present appeal. A certificate took the form of a letter

from HES to the applicant and the owner, occupier and tenant of the building in question. HES

publishes a list of certificates on its website. The appellant was not sent a letter from HES, nor

was the appellants' property listed on the HES website as being subject to a certificate of

intention not to list.

[26]

The appeal raised a single ground of challenge concerning whether a certificate under

section 5A had been issued. Insofar as the appellants' submissions extended beyond that issue,

the court should not entertain them. In any event, they were without merit.

Decision

[27]

The first ground of challenge to the reporter's decision can be disposed of briefly.

Section 5A(1) of the 1997 Act empowers HES to issue a certificate stating that it does not intend

to include a building in a list compiled or approved under section 1. The sub-section says that

this power can be exercised "on the application of any person". This can only mean on the

application of any person for such a certificate. It does not mean on the application of any

person for the exercise of some other power conferred by the 1997 Act, such as the power to

include a building in a list compiled or approved under section 1. The power to issue a

certificate under section 5A is a stand-alone power requiring as a precondition of its lawful

exercise the making of an application for the issuing of a certificate. The issuing of a certificate

has the important consequences set out in sub-section (2): the building may not be listed for a

period of 5 years from the date of the certificate being issued and the planning authority may

not for that period serve a BPN in relation to the building. As HES's guidance explains, the

certificate is a form of legal guarantee and provides certainty for owners and developers

considering work to buildings.

[28]

HES did not receive an application from any person for a certificate. They did receive an

application from Mr Sweeney requesting that the building should be listed under section 1 of

the 1997 Act. They determined that application by their decision of 5 September 2022. There is

no basis for holding that the decision not to list the building amounted to or constituted a

certificate under section 5A. The two types of decision whether to list and whether to issue a

certificate - are entirely distinct from one another. They arise under different statutory

provisions. There is no read-across between them. The first ground of challenge to the

reporter's decision is misconceived and must be rejected.

[29]

Mr Weiss attacked the reporter's decision on somewhat broader grounds in his oral

submissions. While it is true that these were not precisely focussed in his grounds of appeal,

there was no suggestion by Mr McLean, who appeared for the respondents, that he was unable

to respond properly to them, which he did robustly in the course of his submissions at the oral

hearing. Essentially, these grounds resolved into a complaint of a failure by the reporter to

address the appellants' concern that the second HES decision amounted to an unexplained and

unjustified volte face. Mr McLean submitted that this matter had not been raised in the appeal

under section 5B and was not before the reporter. In the course of the hearing we were

provided with the appellants' letter of 26 April 2023 in which they set out their various grounds

of challenge to what they described as HES's "shocking decision" to list the building. The letter

is detailed and contains a number of complaints about the merits of the decision and the

procedure leading up to it. As well as rehearsing the history of the case it refers to the original

decision not to list due to the "advanced submitted building proposals". It goes on to make

reference to the issuing of the BPN and the second decision by HES in which they decided to list

the building. It says that if GCC was unhappy with the initial decision by HES they should

have appealed against it. It claims that GCC was "pressurised" into serving a BPN. Looking at

the appellants' letter as a whole and reading it fairly (and bearing in mind that it was not

drafted by a lawyer) it is clear that the appellants were concerned to challenge the decision to

list because it represented an unexplained and unmerited change of front on the part of HES.

[30]

In paragraphs 21 and 22 the reporter makes brief reference to what she describes as

"other matters" raised by the appellants. She mentions, amongst other points, the original

decision not to list in the knowledge that GCC intended to issue a BPN and the appellants'

criticism of GCC's failure to serve a BPN at an earlier stage. The reporter does not, however,

engage with any of the concerns raised by the appellants about the fairness and transparency of

the process and, in particular, with the change of front on the part of HES. Her view appears to

have been that such issues were not within the proper scope of the appeal, which related only to

whether the building was of architectural or historic interest "as set out in the Act". She

considered that the concerns regarding the listing process were not relevant to her

determination of the appeal.

[31]

The court considers that in the particular circumstances of the present case the reporter

took too narrow a view of her role. While a reporter must not, of course, embark on a frolic of

her own by seeking out and founding upon information not placed before her (Taylor v Scottish

Ministers (No. 2) 2019 SLT 681, LP (Carloway), [34] and [35]), it ought to have been obvious to

the reporter in this case that the appellants entertained profound concerns about the fairness,

transparency and legality of the processes that had been followed. At the root of the appellants'

concerns was the seemingly remarkable reversal by HES of their original decision not to list the

building in circumstances where nothing of any material relevance had altered in the short

interval between the two decisions. While GCC had issued a BPN in the immediate aftermath

of the first decision, the significance and effect of this are not explored by the reporter. In their

second decision HES did not explain why the BPN made any difference to their approach. They

did no more than record that it had been issued, referring in general terms to their policy

regarding BPNs. They did not suggest that there was anything of urgency in the circumstances

of the case such as to justify the serving of a BPN.

[32]

In these unusual circumstances the court considers that the reporter erred in law by

failing to engage with a key aspect of the appellants' concerns about the overall fairness of the

procedure followed by HES. She ought to have addressed the issue of whether there was any

legitimate basis for the decision by HES to change their view on listing so fundamentally and so

soon after their first decision without there being any material change in the circumstances of

the case. Having regard to the material produced to her there was no basis on which the

reporter could conclude that such a dramatic reversal of the original decision was justified.

There was, in particular, no reason to think that the reasoning deployed by HES in their first

decision did not continue to apply, for example in regard to their policy not to list where

development plans were particularly advanced.

[33]

The court considers that the flaw in the reporter's reasoning is essentially one of a failure

to address a central issue in the appeal, namely the complaint about the unexplained change of

view on the part of HES. The reporter was bound to consider why HES's policy, of not listing

buildings pending determination of development proposals, should have been inexplicably

disregarded. Although a BPN required a consideration of listing, that had already been done in

this case. Mr Weiss submitted that the appellants had a legitimate expectation arising from the

first decision by HES that the building would not be listed due to the advanced stage of the

development proposals; it was accordingly unfair of HES to depart from their original decision

where nothing relevant had changed. Whether it is correct to regard the first decision as one

which created a legitimate expectation in a public law sense is not a question to which the court

requires to give a definitive answer. The more important point is that the thrust of the

appellants' concerns was that they had been treated unfairly by HES. The reporter should have

recognised that this was an important issue to which she had to give full consideration. She

erred in law by failing to do so. The appellants' various other submissions add nothing of

substance to this analysis and need not be separately considered.

[34]

The court will allow the appeal and quash the reporter's decision of 11 October 2023.

The appeal should be reconsidered by a different reporter in the light of the views expressed by

the court in this judgment.

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