Petition Of Simon Byrom For Judicial Review Of A Decision By Edinburgh City Council
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2017] CSOH 135 |
| Date | 20 October 2017 |
| Docket Number | P162/17 |
| Court | Court of Session |
| Published date | 20 October 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 135
P162/17
OPINION OF LADY WISE
In petition of
SIMON BYROM
Petitioner
for Judicial Review of a decision by Edinburgh City Council to grant an application for
planning permission for a development at 1-15 Victoria Street, 18-20 Cowgate, Edinburgh
under reference 15/04445/FUL
against
THE CITY OF EDINBURGH COUNCIL
Respondent
and
DREAMVALE PROPERTIES LIMITED
Interested Party
Petitioner: Cobb; Drummond Miller LLP
Respondent: Armstrong QC; City of Edinburgh Council Legal Service s
Interested Party: Findlay, Burnett; DLA Piper Scotland LLP
20 October 2017
Introduction
[1] In this application for judicial review the petitioner seeks to reduce a planning
decision taken by the City of Edinburgh Council (“the respondent”) on 17 November 2016
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when planning permission was granted in relation to an application for a development at
Victoria Street and Cowgate, Edinburgh. The petitioner is resident within the Old Town
Conservation area. The proposed development would be situated within the world heritage
site and the Old Town Conservation area. There has been considerable public interest in the
development and the potential impact on the surrounding area. The interested party,
Dreamvale Properties Limited, is the developer applicant who sought the planning
permission granted in the decision challenged by the petitioner.
[2] A focus of the current challenge relates to the possible effect of the development on
the now A listed Central Library and other adjacent listed buildings. The Edinburgh Central
Library was designed by George Washington Browne. Donations towards its construction
included a substantial sum from Andrew Carnegie. The library opened in 1890 and it is a
listed building. It achieved A listed status on 28 July 2016. The petitioner is a founding
member of the “SAVE Edinburgh Central Library – Let there be Light and Land” campaign.
He and his fellow campaigners are concerned about the impact on the library if the
development proceeds. However, the current challenge is necessarily restricted to whether
or not the decision taken by the respondent on 17 November 2016 was taken lawfully and
properly. There are three main complaints. The first issue relates to the setting of the
Central Library on George IV Bridge and whether the views from it were properly
considered. The second challenge relates to how the listing of the Central Library came
about and what the planning sub-committee was apparently not told about the change of
listing from B listed status to A listed status. There is a third challenge to the way in which
the sub-committee dealt with the matter of air quality. An issue raised in the petition about
advertisement was not insisted upon. During the hearing before me a question arose as to
whether the petitioner had raised in these proceedings the issue of restricted daylight to the
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Central Library as a result of the development. Counsel for the petitioner conceded that the
entire case was as set out in the petition and that it did not raise any issue relating to light.
The issue of the views from the library, particularly towards Edinburgh Castle, were part of
the argument about setting but it did not extend beyond that to the issue of the impact of
ingress of light to the building, a matter that had been dealt with at an earlier stage.
The Report to the Development Management Sub Committee and the Decision under
Challenge
[3] The development management sub-committee of the respondent met on 25 May
2016. The report considered by the committee (No 2/1 of process) sets out in full a
description of the site of the proposed development, the assessment made, including the
impact on listed buildings and their setting, design issues, neighbouring amenity, transport
and road safety, air environmental factors including air quality and a number of other
matters. The conclusion of the report was to the effect that the application should be
granted subject to a number of conditions listed at paragraph 3.4. The report records also
that there had been an original scheme (scheme 1) for the development which would have
presented a greater mass to the new build elements to the rear elevation of the site. A
revised scheme (scheme 2) had made a number of changes. The proposal ultimately
comprised a mixed use development including a new 225 bedroom hotel with bar,
restaurant, café, retail and commercial uses. The conclusion of the report on the revised
scheme was in the following terms:
“The proposed development is in accordance with local plan policies and introduces
uses considered appropriate to the site’s central location. The design of the new
building is respectful and reflects the historic context and grain of this part of the city
and the complicated site of varying characteristics. There will be no adverse impact
on the character or appearance of the conservation area or the setting of the adjacent
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