Judicial Review



Coffee, Books and Carnegie…

Having failed to appeal to the Scottish Government for ministerial intervention, which would have likely occurred had the Library been A listed at the time the hotel was approved, without a Community Right of Appeal a judicial review (JR) was undertaken. This has the power to quash planning permission if successful. However, judicial reviews are rarely pursued as the process is arduous, expensive and limited in scope, only able to challenge on points of law, as opposed to merit or fact, and consequently there are few instances of success.

The Case

This case, against Dreamvale Properties (Jansons Property Investors and Developers) and City of Edinburgh Council, was pursued on behalf of the campaign by the Petitioner Simon Byrom, local resident, Community Councillor and founder of the group ‘Let There Be Light – Edinburgh’, established by supporters of the 38 Degree petition.

Prior to this initiative several local groups, including the Old Town Community Council (OTCC), were approached as potential petitioners, however all groups declined on account of the potential risk of liability. (Though elected representatives apparently have limited liability no such protection is given to community councillors).

In support of the Petitioner, a constituted group SAVE Edinburgh Central Library: Let There Be Light and Land!‘ was established to raise funds for legal costs and a hearing at the Court of Session, conducted by the Lord Ordinary, Lady Wise, was held on 8 and 9th of June 2017.

The Hearing

In taking the matter to JR, the question was raised whether councillors on the DMSC were ‘significantly misled‘ in making their decision to award planning consent for the Application.

In laying out the case Lady Wise wrote:

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.

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 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 petitioner was most unhappy about this, contending that, besides the loss of land for its future development and all the associated noise with the construction and operation of the hotel, the issue of daylighting is the most tangible aspect that would affect the Library. However, due to limited resources and perhaps a misjudgement, the Counsel for the Petitioner had focussed on other aspects of the case, declining to challenge not just the issue of daylighting, public safety in regards to service vehicles on the Cowgate but also the lack of an Environmental Impact Assessment, otherwise seemingly required by regulations, as previously referred to.

‘No Adverse Impact’

Throughout the assessment of the case, reference was repeatedly made to the conclusion of the CEC Planning Report, recommending approval of the proposed hotel on the grounds that the development would have:

no adverse impact on the character or appearance of the conservation area or the setting of the adjacent listed buildings”.

Yet in claiming that the proposed development would have no such “adverse impact, particularly in regards to the Central Library, John Bury, in his not inconsiderable power as Head of CEC Planning and Transport, seemingly wholly disregarded the concerns of objectors and put the future of the Library and the local community in addition to the UNESCO City of Literature and World Heritage status at risk; though this was never raised in the Planning Report or discussed at the DMSC Hearing.

To recall, EOTDT described John Bury’s Planning Report as ‘significantly flawed‘, and the “no adverse impact” conclusion as ‘ridiculous‘, complimented by Wendy Hebard of the local residents association, who had described “a chasm and beyond comprehension and an insult to all those who have taken the trouble to make their views known”. Yet in response to the conclusion of the Planning Report, Lady Wise asserted:

That conclusion is not and cannot be challenged in these proceedings”.

Without giving an explanation as to why this conclusion was beyond scrutiny, even though it appears to have been derived exclusively from the developer’s assessments, it seems odd that Lady Wise would defer to the Council/ developer’s judgement when in pursuing the JR it is the judgement of these parties that is fundamentally in question.

As previously highlighted, with the relisting of the Library to Category A, HES had almost teased responsibility for the assessment out of the Council’s hands. However, by pinning down and framing the Library as a B listed building the Council could then legally be judge and jury in deciding if there was any adverse impact on the Central Library, which there clearly would be:

By selectively relying on the Applicant’s assessment and disregarding historical records of the Library, the Planning Report reveals a glaring conflict of interest with the Council recommending approval for the proposed hotel, sweeping aside the objection of thousands of individuals, as they have done in so many instances, such as Caltongate/New Waverley, Craighouse and others, and in so doing facilitating the disposal of prime public real estate without any public consultation to discuss alternative options.

To the many who contributed time, money and resources in pursuing the JR, one might wonder what the entire point of the exercise was if the locus of the legal enquiry was impotent in challenging the fundamental premise of “no adverse impact”.


In regards to the issue of setting, as recorded in the assessment of Lady Wise, the Counsel for CEC, Mr Armstrong QC noted:

there was no evidence that the councillors “covered their ears and closed their eyes” to the evidence before them on… (reaching) a conclusion on that evidence which included a consideration of views from the library. Appropriate guidance on consideration of setting had been given”.

Mr Armstrong reaffirmed:

It was well established that judicial review does not give an open opportunity to look at the merits of a decision as it is only the legality of a decision that can be challenged. It was open to the respondent to give such weight to the various considerations now being mentioned as it saw fit. The issues of planning judgement were squarely within the domain of the councillors”.

With a tome of associated documentation typical for such a major development, Mr Armstrong was able to skip over the impact on the Central Library by reminding Lady Wise:

There was no requirement for a report to identify all pieces of evidence and their likely effect. What the report did was set out the key issues identified together with conclusions on those. The fact that a point was not mentioned does not mean that it was ignored”.

Yet though the Planning Report omitted to include the two crucial, comprehensive LDN studies commissioned by CEC in support of the Library, in making his case the Counsel for the developer, Mr Findlay QC, made numerous references to the 2002 LDN study in attempting to dismiss the issue of setting, which Lady Wise referenced in making her own assessment.

Commenting in more detail in regard to the issue of setting, having restated the conclusion that the proposed development was found to have “no adverse impact on the character or appearance of the conservation area or the setting of the adjacent listed buildings”, Mr Armstrong stated “It was clear from the reasons themselves that the issue of setting was in the mind of the decision maker and had been addressed in accordance with the statutory obligation.

Yet in spite of the “no adverse impact” conclusion, Mr Armstrong’s assessment records that:

there was no specific reference (under the heading ‘Setting’ of the Planning Report) to views out of the library, it was obvious that there would be some effect on that given the impact on setting generally. In any event there is specific reference in section 2 at page 12 that the development “…will alter views from the building for visitors”, as the objectors, including the petitioner, had specifically raised the concern of views from the library as had the planning officer.

The reporter, using planning judgement, did not consider these views to be a key issue on the setting of the library. Neither did Historic Environment Scotland or even the petitioner in his notes of objections*. So although there is mention elsewhere in the report to views from the library, it had not been worthy of mention in this specific paragraph on setting. It was incumbent upon the councillors to consider all of the evidence and reach conclusions on it”.

*as has been discussed elsewhere, it was NOT the responsibility of HES to comment on the Library’s setting and conveniently, with the issue of daylighting off the agenda, the issue of views in regard to setting could be denigrated as not a “key issue”.

Moreover, given that it has been asserted that the report relied wholly on the input of the developer’s assessments, it is reasonable to assume that these assessments were guided in such a manner as to favour the interests of the developer, thereby down playing the significance of any material that might be detrimental in making the case for the hotel, and therefore in being mindful of the WHS, stressing the case that the proposed development would have “no adverse impact”.

Mr Armstrong made reference to the case of Oxton Farms v Selby District Council 1997 WL 1106106 which had established:

that a planning report should not be construed as if it was a statute and that any defect in it did not lead to there being a necessity to quash the decision. Importantly, a judicial review based purely on criticism of a planning report would not succeed unless it had misled the committee.

The case of R (Morge) v Hampshire County Council [2011] WLR 268 was also cited, which made reference to planning reports on which public servants rely:

… the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose would be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court’s, to weigh the competing public and private interests involved*.”

*In upholding the 7 Principles of Public Life public officials are surely NOT supposed to “weigh… private interests”.

Mr Armstrong also raised the issue of a Heritage Addendum produced by Turley, following a request for a more detailed assessment of the Application. Referring to this report Mr Armstrong stated:

Counsel for the petitioner had not drawn attention to Chapter 3 of that document which sets out in detail the

evolution of the design of the proposed scheme. It was clear from that chapter that following feedback on the initial scheme a further revised scheme was prepared and ultimately submitted. Subsequently some further revisions were made to that second scheme. The consent that had ultimately been given was to a considerably revised scheme.

Chapter 4 of the Turley document discusses the relationship between the proposed development and the Central Library. Setting is covered in detail at Chapter 4.7 and 4.8. It is noted at Chapter 4.10 that from an early stage it was anticipated that the library would be extended on its west elevation. There is further comment (at Chapter 4.18) that the development would have a neutral effect on the setting and special interest of the B listed building. It was also important to note that Historic Environment Scotland had withdrawn its objection on submission of the final revised scheme”.

Yet according to Turley’s Townscape Visual Impact Appraisal from the key Cowgatehead viewpoint, in spite of the “considerably revised scheme”: “These amendments will have no additional effect on the view from this viewpoint and there is no change to the findings of the September 2015 appraisal”.

Responding further to the matter of setting, Mr Findlay, on behalf of the developer, is recorded as stating:

At that time the conclusion of Historic Environment Scotland was that some sort of development of the gap site was to be encouraged, but there was real concern about the scale and height of the proposed development. It was clear from the initial approach taken by HES that the rear of the Central Library was never meant to be exposed*, and to that extent the filling of the gap site was not a problem”.

*this is clearly contradicted in historical records and the HES listing designation for the Library.

Regarding the euphemistically “not a problem”, “filling of the gap site” suggestion, this scheme was NEVER raised and discussed with the local community, in spite of the significance of the land, with its aspiration to further enrich the cultural offering of the City, and CEC promise to be:

a Council that will listen to, and work with, local people…. there needs to be strong process for looking at the quality of how the Council has reached decisions so that there is genuine scrutiny and questioning of the actions it has taken… A council where co­operation, fairness, accountability and responsibility really matter…The City will be able to judge the Council against this promise.”

Yet even if the Council is guilty of repeatedly ignoring Citizens, which for the record is the overwhelming experience of members of the OTCC, it seems remarkable that the Council could seemingly hoodwink HES in regards to the “not a problem”, “filling of the gap site” suggestion, overlooking the immensely important social, cultural and historical significance of the Cowgate gap site.

Moreover, as previously aserted, the fact that neither HES or EWH took into consideration the social and cultural value of the Cowgate gap site indicates a very serious oversight.

Mr Findlay concluded, “that it was neither sensible nor reasonable of the petitioner to suggest that there had been any omission in relation to views from the Central Library. The first argument for the petitioner was simply an attempt to rerun the merits”.

Yet, as detailed under the related issue of Daylighting, omissions were very evidently apparent:

The Planner’s presentation failed to mention that minimum daylight standards were applied and that only 50% of the windows to the Library’s west elevation were assessed. None of the ‘book stack’ windows and none of the floors below the Edinburgh & Scottish Rooms were included in the analysis”.

Though the adverse impact of the proposed hotel on the Central Library is regarded as a “key issue”, and was not sufficiently highlighted as such in the Planning Report, arriving at a judgement Lady Wise concluded:

In my view, the absence of specific reference to views from inside the library in the planning report and in the decision is an insufficient basis for a contention that the committee had failed to consider the matter… As the ultimate conclusion was that there would be no adverse impact on the central library and its setting by this proposed development, in the absence of any suggestion that the respondent has refused to consider any material presented to them on the question of views from the library, I cannot conclude that there has been any failure to do so”.

Yet as raised throughout this assessment, the listing of the Library was a crucial material consideration since had the building been Category A listed its setting would have been assessed by HES who could not have reasonably concluded the development would have “no adverse impact”.

Rising to 10 storeys, 225 beds, on land that was otherwise supposed to be developed for the benefit of the Central Library: surely a preposterous, incongruous, outrageous, crass speculative nonsense, in a World Heritage location, albeit in a dark and dingy corner of this city of The Enlightenment, “oh let there be light”!!!

Change In Listing

Though the Petitioner and other objectors including the OTCC maintained that the revised plans for the Application would have a serious adverse impact on the Library, responding to the question of the Library’s listing Mr Armstrong stated:

The problem with the submissions made for the petitioner was that they failed to take account of the absence of any adverse effect of the revised scheme on the Central Library. In the absence of such an adverse effect, the change from Category B to A could not be a material change… In the present case there was no reason for the application to go back to the committee simply because a building not adversely affected by the application was being re-listed from B to A, a matter that was within the knowledge of the committee at the time the decision was taken”.

Mr Findlay added to this, contending that the re-listing of the Library:

was a change in label only, everyone who provided material to the committee having accepted that the listed building in question had to be given special regard. All those involved were aware of the proposed category change and the reasons for it, so while it could in theory have been a material change, the fact of that change had already been considered”.

In forming a judgement, Lady Wise evidently failed to appreciate the significance of the Library listing as to whether CEC or HES would make an assessment in regards to the issue of setting. As previously established CEC had a direct conflict of interest as an interested commercial party and planning authority, whereas HES didn’t.

In my view the decision to implement an existing recommendation to re-list the Central Library is a relatively insignificant event… This was simply the implementation of something already agreed on and therefore anticipated and so while the subject matter of listing or re-listing a building is capable of being a material consideration the facts relating to this application militate against it being characterised as such”.

Reiterating deferral to the authority in question, thereby discounting the material concerns raised by objectors, Lady Wise reaffirmed:

The specific issue that the respondent required to address… so far as the Central Library is concerned is what impact or effect the proposed development might have on the building or its setting. The clear conclusion of the planning report in this case, adopted in the reasons for the decision under challenge was:

There will be no adverse [impact] on the character or appearance of the conservation area or the setting of the adjacent listed buildings.

In the absence of any adverse impact, the need to consider the category of listing does not come into play. In any event, not only was the plan to re-categorise the Central Library known to the committee, but Historic Environment Scotland, whose decision it was to implement the recommendation to re-list, did not consider it necessary to highlight the timing of the implementation of that as it was ultimately satisfied* the developer’s revised scheme would not have an adverse impact on the library or other adjacent buildings”.

*Again this is somewhat misleading since revisions only “attempted to address some concerns… We still consider that, overall, there is significant bulk proposed… and that the scheme could be improved by

reducing this bulk further”. Additionally, as previously noted HES has seemingly failed to take cognisance of the concerns UNESCO have regarding the cumulative effects of development.

Lady Wise concluded:

Having regard to the circumstances of this case, which include the fact that the information about the proposal to re-list the Library coupled with the conclusion in relation to the absence of adverse impact on the building by the proposed development, I conclude that the petitioner cannot meet the very first stage of showing that the respondent had a requirement to reconsider in this case, namely that the re-listing was a material consideration.

There is nothing in the documentation before me to support the contention that it could have made any difference at all to the planning decision if the implementation of the agreed proposal to re-list the Central Library had been brought to the attention of the committee”.

The Respondant had a conflict of interest which favoured NOT reconsidering the case in regards to the re-listing since it is reasonable to assume that HES would NOT have concurred with the conclusion of “no adverse impact” had they made an assessment on the setting of the Library as a Category A listed building.

Air Quality

Though the issue of deteriorating air quality is of fundamental concern to local residents, responding to the issue Lady Wise noted in her report that:

Air quality was not considered to be a material concern for the development and as such no mitigation measures were proposed”.

Mr Armstrong highlighted:

… the report from Environmental Services on which the petitioner bases this third argument is a memo… It is clear from that memo that Environmental Services do not suggest that the applicant’s report on air quality is in some way defective. It did nothing more than highlight a concern that matters had not been looked at on a worst case scenario”.

This is misleading since Environmental Services state:

Environmental Assessment has concerns regarding the use of this data from 2013 as the data was annualised for 2013 due to poor data capture”.

Yet in conceding there would be some impact on air quality Mr Armstrong stated:

Ultimately, the fact that there would only be a minor impact on air quality seemed to be an insufficient basis to merit refusal of it. In any event the matter was one of planning judgement and so a decision that the councillors were entitled to reach on the evidence”.

As previously highlighted, an Environmental Officer was unavailable at the Hearing, in spite of the AQMA, to clarify the conflicting assessments and veracity of the environmental data, yet in spite of the serious concern of local residents Mr Armstrong concluded:

All of the information relevant to the AQMA and possible impact on air quality of the development was before the committee. There was simply no basis upon which to argue that the decision taken should be interfered with”.

Mr Findlay added:

It was a paradigm exercise of planning judgement to conclude, as the committee did, that the concerns raised by Environmental Services did not justify refusal of the application, particularly given the tentative nature of those concerns. It was hardly the most damning indictment of the proposed development that a possible worst case scenario had not been identified. It was entirely within planning judgement whether to seek more information and also what weight to give to the currently available information”.

Lady Wise concluded:

There was simply no material before the committee to support a conclusion that there would be significant adverse effects on the air quality within the Cowgate if the proposed development took place. The existence of the AQMA was of course a relevant factor and careful consideration had to be given to the plans for the proposed development in that context. However, I cannot accept that the existence of the AQMA was sufficient to invoke policy ENV 18 such that the application had to be refused. It does seem to me that this third argument advanced on behalf of the petitioner strays into the merits of the decision made. It was for the respondent’s planning committee to decide between the two conflicting views on this matter”.

Verdict of Judicial Review

Reflecting on whether the Council in awarding planning permission for the proposed hotel made its decision lawfully and rationally, Lady Wise in her conclusions stated:

I have no doubt that the petitioner and other residents within the Old Town conservation area are strongly and genuinely opposed to this proposed development”.

However, the verdict of Lady Wise, published on 20.10.17, did not find in favour of the legal challenge and consequently planning permission was not quashed as objectors, including the OTCC and the thousands of Citizens backing the 38 Degree petition, had hoped.

Conclusion of Judicial Review

It is worth noting, in summing up Mr Armstrong QC had stated, common sense and realism are required and the court should have regard to the basis on which the decision was reached”.

Given that Lady Wise was of the opinion that the proposed hotel would have “no adverse impact” and that this conclusion of the Planning Report “cannot be challenged”, where is common sense, realism and justice when as previously highlighted a cursory look at the plans from the Cowgate reveals that the incongruous hotel would undoubtedly have a significant impact on the Central Library and its future development, and further endanger the lives of residents and visitors by exacerbating the already excessive levels of noise, congestion and air pollution?

Though unsuccessful, the Judicial Review would not have been possible without the pro bono assistance of public spirited individuals in the legal profession coupled with the successful fundraising campaign spearheaded by ‘SAVE Edinburgh Central Library: Let There Be Light and Land!’ and supported by the generous donations of more than 550 individuals who raised over £27,000 towards legal costs.

Judicial Review Appeal

Dissatisfied and disillusioned with the outcome campaigners lost heart in taking the legal process further. However, the Petitioner, having gained further financial pledges of support took a decision independently to represent himself as a ‘party litigant’, though the legal counsel formerly representing the campaign withdrew.

Having lodged the Reclaiming Motion (appeal) on 9.11.17 the developer responded robustly, enrolling an opposition motion which stated, under grounds for urgent disposal:

The Reclaiming Motion jeopardises a significant commercial contract secured by the Interested Party (Dreamvale Properties Limited). The Interested Party was granted planning permission for a major hotel development on 17 November 2016. It secured agreement with a potential purchaser for the sale of the site for development in accordance with the permission granted. The Petitioner waited almost 3 months before raising a petition for judicial review in Feb 2017.

In the meantime he occupied a tree on the development site in order to seek publicity for his challenge and prevent the commencement of development. The Interested Party required to obtain an order from the Sheriff Court in order to remove the Petitioner from the site. The Petition was served on the Interested Party on 21 Feb 2017. The Petitioner was granted a Protective Expenses Order in respect of the petition. The petition was heard by Lady Wise on 8 and 9 June 2017. Lady Wise issued her opinion on 20 October 2017. In the meantime the agreement for the sale of the development site was adversely affected by the delay caused by the legal challenge and the potential purchaser withdrew from the agreement to purchase the development site.

The Interested Party considers the Reclaiming Motion has no real prospect of success, given the opinion of Lady Wise dated 20 October 2017. The Interested Party also considers that it is likely the the Petitioner has insufficient proceeds to proceed with a Reclaiming Motion. Since the opinion of Lady Wise was issued the Interested Party had entered into a new agreement with another party to purchase the site and carry out the proposed development. The development involves investment in the region of £65 million.

The Petitioner by raising this challenge that has been found to be without merit has already delayed the implementation of the planning permission for almost a whole year. The Petitioner is potentially using the reclaiming process as a deliberate means to delay and attempt to jeopardise the development, which is potentially an abuse of process. An email from the Petitioner dated 7 November 2017 to potential supporters seeking funding for his appeal and recording that it is his intention to delay the development irrespective of the prospects of the appeal is produced herewith and referred to for its terms.”

By referring to “potential supporters” the developer, privy to emails sent via the 38 Degrees ‘Let There Be Light’ in Edinburgh’s Old Town petition to supporters in opposition to the development, was effectively admitting to having signed the petition under false pretences.

Though the Reclaiming Motion was allowed to continue the Interested Party was successful obtaining urgent disposal and consequently the time frame imposed was very restrictive, with a hearing set for 10 Jan 2018. The Petitioner was asked if he objected to this but without experience or advice declined to take an opposing position, yet appealed to the Court for guidance and clemency regarding the difficult circumstances.

In spite of various further attempts to secure legal assistance and falling behind in the process of submitting required documents the Petitioner was advised to submit a Motion to Sist, which would have allowed further time to prepare for the case. Appealing for an additional 4 weeks this motion was opposed by both the Interested Party and Edinburgh Council and was then dismissed by the Court on 15 Dec 2017.

The Petitioner submitted Grounds for Appeal on 22 Dec 2017 and in making the case asserted that Lady Wise had been unable to make a fully considered opinion as a key document (the OTCC Assessment), was incomplete and available at the time.

Grounds for Appeal

Following a procedural hearing on 4 Jan 2018 the Court recorded:

The grounds lodged by the petitioner are not, as required by RCS 38.18, “brief specific numbered propositions”. However, the court has afforded the petitioner considerable leeway, given his status as a party litigant. It has been anxious not to decide the matter on the basis of form rather than substance.

The grounds are spread over 12 closely typed pages, commencing with a general complaint about the petitioner’s inability to obtain legal assistance and bemoaning: (a) the general state of planning control principles and practice (and in particular the presumption in favour of sustainable economic growth); and (b) an alleged failure by the respondents to uphold the Seven Principles of Public Life (the “Nolan principles”; see for Scotland the Ethical Standards in Public Life etc. (Scotland) Act 2000). The grounds continue by complaining that the Lord Ordinary was not provided with “sufficient background” (notably on the obstruction of light into the Library) to make a “fully reasoned assessment”. This is one of several criticisms of his previous counsel.

The grounds of appeal introduce the issue of the service access to the development which, it is said, is in breach of unspecified EU Regulations. They impugn the manner in which the public hearings and the consultation process were conducted. It is said that, since the hearings, Freedom of Information requests have revealed a significant amount of unspecified “key background information” which was withheld from the Planning Report and hence the respondents’ members.

There is a protest about the restrictive nature of judicial review and then a reference to the absence of an environmental impact assessment, specifically related to air quality. The grounds refer to the respondents having a financial interest in the development, and hence a conflict of interest. The petitioner pleads for a general review of all recent planning decisions in order to safeguard Edinburgh’s position as a UNESCO world heritage site. He maintains that Edinburgh has fallen foul of predatory capital, taking root to “ingratiate further short term wealth extraction … sucking the soul from the city”. There is reference to a planning decision relative to the former Royal High School and to the sayings of Patrick Geddes and David Attenborough. The petition then incorporates a plea to the developers concerning Andrew Carnegie’s endowment of the Library”.

In response to the Grounds of Appeal, the Court recorded that:

The respondents and the interested parties complained that the grounds contain new arguments which were not before the Lord Ordinary, notably the contentions:

(a) that the Lord Ordinary was not presented with sufficient background information;

(b) that the respondents failed to have regard to public safety in relation to the service access;

(c) about the impact on light;

(d) about a potential conflict of interest from a financial involvement in part of the site;

(e) that information had been deliberately withheld;

(f) about cumulative impact on World Heritage Status;

(g) about a lack of an environmental impact assessment;

(h) alleging dereliction of duty by government agencies; and

(i) that there existed substantial new evidence.

If this extraneous material were discounted, there was no ground of appeal capable of being sustained. In particular, there was no criticism of the Lord Ordinary’s reasoning based on the material before her. There had been no complaint before the Lord Ordinary that she had been given insufficient or misleading information. There was no reason advanced for the late introduction of new material other than the alleged failings of the petitioner’s former legal team. No attempt had been made to amend the pleadings to introduce this material.

Were it to be allowed, the respondents maintained that they would require to conduct considerable further research and lodge new material of their own. The interested parties did not intend to respond in this way”.

Responding to the Grounds of Appeal, the Court recorded:

The petitioner has included a morass of material which is not related to the issues raised in the petition for judicial review. These include:

i general complaints about the planning legislation, practice and process, including the relevance of the Principles of Public Life;

ii defects in the procedure in the particular planning process, including the advertisement of the development and consultation upon it;

iii Edinburgh as a UNESCO world heritage site;

iv the absence of an environmental impact assessment;

v the safety of a service road;

vi the loss of light to the Library; and

vii an alleged failure of the planning officials to perform their public duty.

The court will not entertain any ground based on this new material, which was not before the Lord Ordinary and forms no part of the judicial review proceedings, or any ground based on the failure of his former counsel and agents to put this information before the Lord Ordinary. It does not expect the respondents or the interested parties to respond to these matters in any Answers to be lodged.

The petitioner had ample time at first instance in the judicial review process, of what is a decision now over a year old, to formulate all his grounds of challenge. Even were it to have been requested, the court would not normally entertain an application to amend grounds of challenge in a judicial review process, where such an amendment introduces substantial new matters not canvassed at first instance, in the absence of compelling reasons to permit such a course of action.”

Regarding the merit of the “morass of material” raised, in the interests of Justice the claim that this material was “extraneous” is questionable given the public interest of the case in raising serious concerns regarding the public’s health/ safety and reputation of the City, and that the introduction of this factual material should have been considered, even as just background information in questioning the broader integrity of the planning process.

It was affirmed in the statement issued following the procedural hearing of 4 Jan 2018 that An appellate court will entertain submissions concerning the correctness of the judge’s decision, but it will not re-hear the case”. The Court further stated:

It will not permit the introduction of new factual material unless required by the interests of justice (see Scotch Whisky Association v Lord Advocate 2016 SLT 1141 at para [109]). Generally, the court requires to determine a reclaiming motion on the basis of material which was properly before the court of first instance”.

Accepting the national/ international importance of the case, these were grounds for an exception to be made in this instance. Moreover, aside from pursuing the Reclaiming Motion, having been unsuccessful in obtaining legal assistance the Petitioner had been unaware of any requirement to submit a “complaint before the Lord Ordinary that she had been given insufficient or misleading information”.

It was clearly stated in the Grounds of Appeal that the Lord Ordinary was not provided with “sufficient background” to make a “fully reasoned assessment” of the case and that in “the interests of justice” the OTCC assessment should be considered as evidence. This counters the opinion of the Respondent who claim “The Petitioner does not set out a basis for the Lord Ordinary being wrong in rejecting his arguments”, and that of the Interested Party that “There is no merit in any of these new matters”.

Though the Reclaiming Motion was upheld, in response to the Grounds of Appeal the Court concluded that it would “not take account of the extraneous material referred to in determining the issues raised”.

The motion for Protective Expenses Order was also considered at the procedural hearing of 4 Jan 2018 but was rejected on the grounds that the Reclaiming Motion had “no real prospect of success” having been opposed by both the Respondent and the Interested Party, the latter taking the opportunity to restate that the petitioner is potentially using the reclaiming process as a deliberate means to delay and attempt to jeopardise the development, which is potentially an abuse of process”.

In their opposition to the PEO, the Council as Respondents, as the authority whose duty is otherwise to act in the public interest, incredulously stated:

Contrary to what is indicated in the reclaimer’s motion for the Protective Expenses Order that this appeal is brought solely in the public interest, the reclaimer does have a vested personal interest in the outcome of this appeal. The reclaimer in his first objection letter to the Council indicated that noise pollution would worsen as a consequence of the development further impinging on his ability to sleep at night.”

Having raised objections against the Petitioner in regards to the PEO and Motion to Sist while in addition repeatedly emphasising the Court apply rigid adherence to current procedure, in order to preclude “the introduction of new factual material… required by the interests of justice”, it can be inferred that in so doing the Respondent and Interested Party were effectively attempting to obstruct Justice.

Having failed to obtain an PEO, following this hearing the Petitioner was approached by representatives of both the Interested Party and Edinburgh Council who desired to negotiate an out of court settlement where-by no financial cost would be incurred to the Petitioner if the Reclaiming Motion was abandoned. However, in pursuit of Justice the Petitioner was not dissuaded by this offer and proceeded to the Reclaiming Hearing on the 10 Jan, albeit under considerable psychological pressure due to anxiety relating to potential costs.

Reclaiming Motion Hearing 10 Jan 2018

Having submitted the OTCC assessment to the Court of Session in accord with procedure the previous day, the Petitioner initiated the hearing for the Reclaiming Motion by appealing for the OTCC assessment to be referred back to Lady Wise for consideration. However, in spite of the statutory standing of the OTCC and an endorsement from local MP Tommy Sheppard and Councillor Claire Miller for the Assessment to be taken as evidence, the Inner House declined to give any regard to the Assessment.

In response to the Grounds of Appeal the Court recorded:

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.

The nature of the document purporting to set out grounds of appeal is explained in more detail in the court’s statement of reasons of 4 January. As was there pointed out, there 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.

For example, it is contended that the Lord Ordinary was not presented with sufficient background to formulate a fully reasoned assessment of the case, and repeatedly deferred to the Council’s planning report. The subsequent elaboration of this point suggests that the reclaimer expected the LO to deliver a decision on the merits. It also develops into arguments which were not part of the petition and which are not relevant for present purposes.”

In conclusion, the Court supported the opinion of Lady Wise regarding the setting/views from the Library that “There was no basis for thinking that the committee had failed to have regard to all the material before it”.

Regarding the matter of the Library’s re-listing from a Category B to a Category A, the Court was of the opinion that in awarding planning permission “The decision took into account the architectural value and setting of the Library”, reiterating the opinion of Lady Wise that in the absence of any adverse impact, the category of listing was not material:

while the subject matter of listing or re-listing a building is capable of being a material consideration the facts relating to this application militate against it being characterised as such.”

Regarding air quality, the Court was of the opinion that:

The Lord Ordinary correctly concluded that reaching a decision on this was thus a matter “squarely within planning judgement”, the resultant decision being one that the decision-makers were entitled to reach on the evidence before them. There is no basis for considering that they ignored or misunderstood any of the evidence placed before them.”

Instead of taking several weeks to arrive at an opinion, as had been suggested by the previous Counsel, which would have allowed sufficient time for the OTCC Assessment to be given consideration the Court delivered a verdict within half an hour of the Petitioner’s representation, the Court concluded:

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.

In paragraph 8 of the Statement of Reasons of 4 Jan, the Lord President stated that the court “has been anxious not to decide the matter on the basis of form rather than substance”. We have endeavoured to follow that precept, but our function is to focus on alleged errors of law, not on the merits of the case. We have been unable to identify any alleged error in law on the part of the LO, or any other basis upon which her decision might be impugned. Accordingly, the reclaiming motion must be refused.”

* a retired English barrister and father-in-law of the Petitioner’s brother, who with only a distant interest in the case stood in as a lay representative following the frustrations and lack of clemency of the Court in considering the Petitioner’s appeal.

Conclusion of Judicial Review Appeal

Having precludedthe introduction of new factual material… required by the interests of justice”, the Court was able to reject the Reclaiming Motion by effectively ignoring the infringement of EU Law (which currently has primacy over Scottish Law) in regards to the matter of air quality.

Though the Council have repeatedly stated that an Environmental Impact Assessment was not required in this case and highlighted that The Reclaimer did not argue this point before the Lord Ordinary” (as stated in the opposition to the PEO), the detailed EIA Screening Assessment of David Black (Appendix D), referencing numerous judgements of the European Court, strongly contests this.

Given that the site of the proposed development is designated an AQMA with excessive air pollution in breach of EU Regulations, the matter of an EIA was a key material consideration in regards to the legal assessment of the issue of air quality.

Besides highlighting the obstruction of Justice, opposing the reasonable motions submitted by the Petitioner and repeatedly emphasising the Court apply rigid adherence to current procedure in order to preclude “the introduction of new factual material… required by the interests of justice”, it should also be noted that the key matter in regards to the loss of light to the Library was dismissed at appeal reiterating that:

at the hearing of the judicial review it was specifically conceded on behalf of the reclaimer that this issue had not relevantly been raised in the petition.”

Article 6 of the European Convention on Human Rights

Reflecting on the process there is a case to be made that the Petitioner was denied a fair hearing, under Article 6 of the European Convention on Human Rights legislation since:

  • The Court failed to act independently, declining to fully scrutinise the evidence presented by the Petitioner, instead repeatedly deferring to the Council’s planning judgement, which was evidently wholly informed by the developer’s data.

  • The Court failed to act reasonably and impartially at appeal, declining a Motion to Sist requested by the Petitioner, who required additional time to seek legal counsel and prepare the case.

  • The Petitioner had no equality of arms due to the unreasonable, insufficient time in which to obtain legal counsel to prepare the case.

  • The Petitioner was denied the opportunity to satisfactorily present the case and be shown due consideration in regard to the submission of the OTCC Assessment as evidence.

– Auld Reekie Crier