Outer House case concerning an appeal by the City of Edinburgh Council against the decision of a reporter appointed by the Scottish Ministers.
The case relates to a listed tenement near the junction between Ferry Road and Newhaven Road in Edinburgh. The owner of the property sub-divided the principal front room (with stud partitions) to create two bedrooms and a corridor without obtaining listed building consent.
The Council served an enforcement notice on the owner requiring re-instatement of the room to its original condition. The owner appealed against the enforcement notice contending that: (1) listed buildings consent was unnecessary; or (2) that the consent should nevertheless be granted. In support of the second argument the owner pointed to the fact that the alterations came to light when he had made an HMO (Houses in Multiple Occupation) application for the property as a result of being accepted by the Council’s Adult Resource Team to provide supported lodgings for vulnerable adults. The reporter rejected the owner’s first contention but accepted his second contention (attaching considerable weight to what he called the “special needs argument” and noting that the changes were easily reversible) allowed the appeal and quashed the enforcement notice subject to the condition that the partitions be removed and the property be returned to its original condition when it ceased to be on the Council’s register of supported accommodation for vulnerable adults. The Council appealed to the court.
Lord Tyre refused the appeal. The appropriate starting was section 14(2) of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act, which requires the reporter to have special regard to the desirability of preserving the building or any features of special architectural interest which it possesses. It also creates a presumption against the granting of listed building consent in respect of alterations which have an adverse effect on the special interest of the building. Reading the decision letter fairly and as a whole, Lord Tyre found that the reporter, having identified the correct starting point, proceeded to assess whether there were considerations of sufficient force to overcome the presumption against alteration. His reasons for deciding that there were such considerations were clearly explained. So far as the adverse effect is concerned, the reporter concluded that the external visibility of the subdivision was negligible and that the works were easily reversible without damage to internal decorative features. He regarded this "modest" impact on the building as outweighed by what he described as the special needs argument put forward by the property owner.
The full judgement is available from Scottish Courts here.