Campaigner’s appeal against Edinburgh Old Town development dismissed

Lady Dorrian
Lady Dorrian

A campaigner who challenged a Scottish local authority’s decision to grant planning permission for a new development within a world heritage site has had his appeal dismissed.

Simon Byrom raised judicial review proceedings against Edinburgh City Council over concerns about the potential impact of the proposed development in Edinburgh’s Old Town, but the Inner House of the Court of Session ruled that there was “no error of law” in the Lord Ordinary’s decision to refuse the petition.

‘Save Edinburgh Central Library’ 

The the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lady Clark of Calton, 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.

At the outset of the appeal hearing, the court indicated that it was willing to grant the reclaimer’s motion to allow him lay representation from Mr Anthony Engel, to advance any relevant arguments relating to the three issues raised before the Lord Ordinary, but judges observed that the “primary focus” of the grounds of appeal was the nature of the planning decision made by the respondents rather than the decision of the Lord Ordinary.

Lady Dorrian said: “The document purporting to set out the grounds of appeal contains numerous diffuse and unfocused complaints about planning policy and practice in general, the vast majority of which were not raised in the judicial review and cannot be entertained during the reclaiming motion.

“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 Lord Ordinary. As a consequence, the grounds repeatedly stray into issues relating to the merits of the planning decision, rather than the Lord Ordinary’s decision about the legitimacy of the process.

“here seems to be a fundamental misconception about the limits of the court’s jurisdiction on a petition for judicial review, and any associated reclaiming motion. Even where the grounds address the decision of the Lord Ordinary, that same misunderstanding is perpetuated.” 

Three grounds of challenge

The first issue related to the “setting” of the Central Library on George IV Bridge and whether the views from it were properly considered, but the appeal judges held that the Lord Ordinary “correctly observed” that the planning committee had the relevant material before it.

The question of the impact of the development on views was a matter of “planning judgment” for the committee and there was “no basis” for thinking that the committee had failed to have regard to all the material before it.

The second challenge related to the change of the listing of the Central Library from B listed status to A listed status.

The decision to grant planning in this case was made in the knowledge that there was a proposal to upgrade the listing and took into account the architectural value and setting of the library, and the Lord Ordinary considered that in the absence of any adverse impact, the category of listing was not material.

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.

The argument advanced in the appeal was that the committee reached the “wrong decision”, but the court held that the Lord Ordinary “correctly concluded” that the decision on this was a matter “squarely within planning judgement”, the resultant decision being one they were “entitled to reach on the evidence before them”. 

‘No error of law’ in Lord Ordinary’s decision

Delivering the opinion of the court, the Lord Justice Clerk said: “We recognise that the reclaimer is a lay individual, and we have given careful consideration to the document in which he sought to specify grounds of appeal, and the arguments which Mr Engel advanced on his behalf. We have to agree with senior counsel for the interested party that essentially the reclaimer was seeking to re-run the arguments made to the Lord Ordinary without identifying errors of law in her decision.”

Lady Dorrian added that the appeal court’s function was “to focus on alleged errors of law, not on the merits of the case”, but said: “We have been unable to identify any alleged error in law on the part of the Lord Ordinary, or any other basis upon which her decision might be impugned. Accordingly, the reclaiming motion must be refused.”

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