By Murray Shaw

Ms Uprichard has challenged Fife Council previously notably in relation to the St Andrews Bay development which is located to the South of St Andrew (see Penelope Uprichard & Others v The Fife Council and St Andrews Bay Developments 31 March 2000 – Court of Session).

The parking meters were located within an area of St Andrews designated as a “conservation area”. There were also a number of listed buildings in close proximity to the parking meters. Accordingly the provisions of the Planning (Listed Buildings & Conservation Areas) (Scotland) Act 1997 were engaged.

Section 59 of this Act provides that when considering whether or not to grant planning permission which affects a listed building or its setting the planning authority “shall have special regard to the desirability of preserving the building or setting or any features of special architectural or historical interest which it possesses”.

Section 64 of that Act relates to conservation areas and similarly requires the Council to pay special attention “to the desirability of preserving or enhancing the character or appearance of that area”.

Section 65 is a specific provision relating to a situation where an application for planning permission would in the opinion of the authority affect the character and appearance of a conservation area. Sub-section 4 then provides in determining such applications a planning authority shall take into account any representations relating to the application which are timeously made to them.

Four arguments were advanced by Ms Uprichard to challenge the decision of the Council as follows:-

(a) There was a failure in the planning report to identify the relevant statutory duties;

(b) That the planning report failed to fully and accurately reflect the position of Historic Scotland;

(c) That given the advice of Historic Scotland and the objections received no planning authority acting reasonably having regard to its statutory duties would have failed to consider an alternative to the meters proposed;

(d) That the planning authority acting reasonably should have notified the application to Scottish Ministers.

Case law makes clear that relevant tests set out in the 1997 Act in relation to preservation can be met when the character or appearance which the legislation seeks to protect is not in fact harmed – there is no need to actually enhance.

Critical to the decision were the terms of the planning report. An affidavit sworn by the planning officer was submitted to the court and was not the subject of any criticism on behalf of the Petitioner. The judge clearly found this very helpful. Specifically the judgement makes clear that the judge considered the relevant planning officer had in mind all the relevant statutory background when he prepared his report and indeed the effect that the proposed development would have upon the conservation area and listed buildings.

The judge ultimately considered that the approach to be taken in considering such reports is that which had been utilised in other cases (Campbell v City of Edinburgh Council (1999 SLT1009) and South Lakeland District Council v The Secretary of State for the Environment [1992] 2AC141). The correct approach was therefore not to submit such a report to a detailed technical analysis “as if it were a statute or conveyancing deed but rather to view it in its overall context as a report to a Committee generally versed in planning issues and having a considerable degree of local knowledge in relation to the generality of the issues raised in the report”. In effect this approach is very much a common sense practical approach to interpretation. In applying that approach having regard to the affidavit from the planning officer the judge (Lord Brailsford) was fairly quick to dismiss the petition on all grounds advanced. In effect he held that the relevant information was provided to the Committee in the appropriate manner and it was thereafter for the Committee to reach a planning decision as they in fact did.

In many respects the decision is not a surprising one and the approach to interpretation of the report from the planning officer is an approach which has been used previously in the Scottish Courts. One interesting issue which may well arise in the near future in the Scottish Courts is the position in relation to the style of decision letters which are now commonly used by Reporters. These abbreviated decision letters do not give as much information as was provided in the past. It may be difficult for a court therefore to be clear about what considerations a Reporter has taken into account. In that situation even taking the approach that Lord Brailsford advocated it may be unclear as to whether or not all the relevant considerations have been taken into account and if so, how.