Material considerations — Conservation area — Statutory duty of decision-maker — Recommendations of local plan inspector concerning open space — Whether a material consideration — Whether knowledge of Secretary of State — Appeal inquiry inspector — Whether Secretary of State ought to have considered recommendations of local plan inquiry inspector — Duties under sections 29(1) and 277(8) — Principles for fulfilling statutory duty relating to conservation area set out
By a decision
dated November 25 1988 the first respondent, the Secretary of State for the
Environment, allowed an appeal by the third respondents, Hammercrest
Developments Ltd, against a refusal by Bath City Council of an
and garages. The subject site forms the garden and curtilage of a former house,
Cavendish Lodge. After the hearing of the appeal, but before the first
respondent’s decision, an inspector holding an inquiry into the draft local
plan made recommendations in relation to the site. The appellant society
appealed against the decision of Hutchison J (February 19 1990), who had
dismissed their application to quash the first respondent’s decision. On appeal
they submitted that: (1) the first respondent had failed to take into account
the recommendations of the inspector appointed in relation to an inquiry into
the local plan that the subject site should be allocated as open space,
alternatively he had failed to defer a decision until the city council’s
response to the inspector’s recommendation was known; and (2) the Secretary of
State had failed to comply with the duty imposed on him by section 277(8) of
the Town and Country Planning Act 1971.
the first respondent’s decision was quashed.
The
recommendation of the local plan inquiry inspector was a material
consideration: see In re Findlay [1985] AC 318. His report was known to
the first respondent, who was in breach of his statutory duty in failing to
have regard to the recommendations: see p 59.
It was agreed
that the duty imposed by section 277(8) of the 1971 Act (section 72(1) of the
Planning (Listed Buildings and Conservation Areas) Act 1990) applied. Where
permission is sought for development on a site not within a conservation area,
the policy in para 15 of PPG 1 is a perfectly proper approach to the carrying
out of the statutory duty under section 29(1) of the 1971 Act. If the site is
within a conservation area, the decision-maker has two statutory duties imposed
on him: sections 29(1) and 277(8). The requirement in section 277(8) to pay
‘special attention’ to the desirability of preserving or enhancing the
character or appearance of a conservation area should be the first
consideration of the decision-maker; it is a material consideration of
considerable importance and weight. If the development will enhance or preserve
the character of the conservation area, this must be a major point in favour of
allowing the development. In some cases a development may simultaneously
enhance the character or appearance of the area but nevertheless cause some
detriment. The detrimental effect is a material consideration to be weighed
against the contrary consideration. If the decision-maker concludes that the
proposed development will neither preserve nor enhance the conservation area
the presumption derived from para 15 in PPG 1 is then rebutted: see p 64E et
seq.
In the present
case the inspector did not comply with the section 277(8) duty; if he had, and
formed the opinion that the building would neither enhance nor preserve the
character or appearance of the conservation area, then he failed to carry out
the necessary balancing exercise of weighing that important material
consideration against such unexpressed benefits as the construction of the new
building might bring: see pp 65-66.
to in the judgments
Creednz
Inc v Governor-General [1981] 1 NZLR 172
Findlay,
In re [1985] AC 318; [1984] 3 WLR 1159; [1984] 3
All ER 801, HL
Harrow
London Borough Council v Secretary of State for
the Environment (1989) 60 P&CR 525; [1990] 2 PLR 62
Hollis v Secretary of State for the Environment (1982) 47 P&CR
351; [1983] EGD 1046; 265 EG 47, [1983] 1 EGLR 1596; [1983] JPL 164
South
Lakeland District Council v Secretary of State
for the Environment unreported February 26 1990; on appeal [1991] 2 PLR 97,
CA
Steinberg v Secretary of State for the Environment (1989) 58 P&CR
453; [1989] 2 PLR 9; [1989] JPL 258
Unex
Dumpton Ltd v Secretary of State for the
Environment [1990] 2 PLR 1; [1990] JPL 344
Ward v Secretary of State for the Environment (1989) 59 P&CR
486; [1990] 1 PLR 85, CA
Wyre
Forest District Council v Secretary of State for
the Environment (1989) 58 P&CR 291; [1989] 2 PLR 85; [1989] JPL 362, CA
Appeal against
decision of Hutchison J
This was an
appeal against the decision of Hutchison J (February 19 1990), who had
dismissed the appellant society’s application under section 245 of the Town and
Country Planning Act 1971 (section 288 of the Town and Country Planning Act
1990) to quash the decision of the first respondent, the Secretary of State for
the Environment, who had allowed an appeal by the third respondents,
Hammercrest Developments Ltd, against the decision of the second respondents,
Bath City Council, to refuse planning permission.
Crombie appeared, with the leave of the court, for the appellants, the Bath
Society.
and Alison Foster (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
Dinkin (instructed by Portner & Jaskel) appeared for the third respondents,
Hammercrest Developments Ltd.
respondents, Bath City Council, did not appear and were not represented.
following judgments were delivered.
GLIDEWELL
LJ: On September 9 1987 Bath City Council, the
local planning authority, refused an application by Hammercrest Developments
Ltd for planning permission to construct a four-storied block of 20 flats, two
lodges, garages and roadways on land adjoining the site of Cavendish Lodge,
Lansdown, Bath. Hammercrest appealed. Their appeal was heard by an inspector,
Mr MacDonald, an architect, in May 1988. In July 1988, he reported to the
Secretary of State for the Environment, recommending that the appeal should be
allowed. The Secretary of State accepted this recommendation and, by a decision
letter dated November 25 1988, allowed Hammercrest’s appeal.
At the inquiry
at which the appeal was heard, the Bath Society were represented by Major
Crombie, who on their behalf strongly objected to the proposed development. On
receiving the Secretary of State’s decision, the society sought to challenge it
by way of an application to the High Court under section 245 of the Town and
Country Planning Act 1971. On February 19 1990, after a four-day hearing in
Plymouth, Hutchison J dismissed the society’s application. The society now
appeal to this court.
Before us the
society are again represented by Major Crombie, who has (no doubt with the
assistance of other members of the society) prepared their case with great care
and competence, provided an admirable skeleton argument, and addressed us with
skill and courtesy. The court is much indebted to Major Crombie for his
efforts, as indeed are the other members of the Bath Society.
The site
and its surroundings
Bath is a city
of great beauty, with a wealth of historic buildings constructed for the most
part in what Sir Arthur Bryant called ‘the age of elegance’, ie the 18th and
early 19th centuries. It is among the sites and cities listed by the World
Heritage Convention administered by UNESCO as ‘of such exceptional interest and
of such universal value that protecting them is a concern of all mankind’. The
city rises northwards from the valley of the River Avon. Much of the Georgian city
consists of terraces of stone houses interspersed with open spaces and gardens.
The appeal site lies close to two of these terraces, being to the east of
Cavendish Crescent and to the south of Lansdown Place. The site forms the
garden and curtilage of a former house, Cavendish Lodge. The site
called ‘the garden’ (the stem of the T) and the ‘field’. The development
proposed is the construction of a block of flats and garages on the field, with
lodges on the garden at the entrance to the entire development. There are a
number of trees subject to tree preservation orders on the garden.
Planning
history
The planning
history of this site is extensive. I cite only that part of it which is
relevant for present purposes.
On February 4
1964 (before the conservation area came into being) outline permission was
given for the construction of up to 30 residential units on 1.7 acres forming
part of the site. This was described as being ‘east of Cavendish Lodge’, which
was then standing. There was no time-limit within which this development was to
be carried out. The permission specifically included consent for a departure
from the development plan.
On December 5
1967 outline permission was granted for the construction of 36 flats and 12
maisonettes on the field.
In December
1968 six conservation areas, one of which included the appeal site, were
designated by the city council under the Civic Amenities Act 1967. These
conservation areas were later amalgamated into one.
On March 28
1972 an application was made for approval of details under the 1967 outline
permission. By virtue of Schedule 24, para 20(1), to the 1971 Act, the outline
permission remained effective provided that such an application was made before
April 1 1972. In other words, the application was in time and the planning
permission remained in force. In addition, in May 1972 a new application was
made for planning permission to erect 48 flats on the field. The city council
did not decide the application for approval of details and refused the
application for 48 flats. An appeal was entered against both the failure to
decide the first application and the refusal of the second application.
This appeal
was heard at an inquiry in March 1973. By a decision letter dated April 22 1974
the Secretary of State dismissed both appeals. I shall return later to the
reasons for these decisions.
Listed
building consent to demolish Cavendish Lodge was granted in July 1982 and the
house was demolished thereafter.
A development
brief for the appeal site was approved by the city council on May 6 1986. This
brief contained the following provisions among others:
(a) No new buildings, other than a lodge, are to
be erected significantly in front of 11 Cavendish Crescent and they may not
project back into the field. Garages and/or parking spaces together with not
more than three dwellings would be acceptable at the southern end of the field.
This
restricted building development to two relatively confined areas of the site.
(b) Landscaping. None of the trees on the site
are protected by the Tree Preservation Order.
(c) To safeguard the field against future
development, before planning permission is granted, the owners of the property
will be required to enter into an agreement under section 52 of the Town and
Country Planning Act 1971 to secure the laying out and retention of the field
as an amenity space.
The appeal
By letter
dated March 31 1988, before the appeal hearing, Hammercrest’s architect
submitted amended plans. The inspector agreed to accept these for the purposes
of the appeal, concluded that they were preferable to the plans originally
submitted, and based his recommendation upon the amended plans. They show a
design for a block of flats in what I would call an ornate classical style. Of
it the inspector said in his report:
The design of
the proposed building has been criticised for being incorrect, within the
grammar of classical design or, at least, idiosyncratic in its use of classical
elements. The architect has certainly used the elements of the classical
vocabulary in a free, and in some respects, non-traditional way, but the
resulting building is not unpleasing nor out of character with its setting.
He concluded
that:
. . . the
proposed building would be appropriate to its site and setting. It represents a
successful attempt to design in harmony with classical principles, but without
slavish adherence to precedent.
Before
Hutchison J Major Crombie based one of his submissions on an objection to the
inspector’s acceptance of the amended plans, but he has not repeated this
submission before us. Nothing, therefore, now turns on this matter.
The Secretary
of State’s reasons for allowing the appeal were expressed in the following
words:
The Inspector
recommended that, in view of the considerations expressed in paragraphs 42 to
45 of his report, the appeal should be allowed, subject to conditions. The
Secretary of State agrees with the Inspector’s conclusions and accepts his recommendation.
It follows,
therefore, that the challenge to the Secretary of State’s decision is, in
effect, a challenge to the reasoning contained in the inspector’s report, and
in particular to para 42. Before I come to this, however, there is one other matter
with which I should deal shortly.
The local
plan
Before the
appeal hearing Bath City Council, as local planning authority, had prepared and
published a local plan for the city. An inquiry into objections to this plan
was heard in April 1988 by an inspector, Mr Gray. Local plan inquiries are
heard by inspectors of the Department of the Environment inspectorate, but they
are in effect on loan to the relevant local planning authority. The inspector
who holds such an inquiry reports to the local planning authority, not to the
Secretary of State. It is then for the local planning authority to decide
whether and how far to adopt his recommendations, to advertise any
modifications to the plan, and if necessary to hold a further inquiry or to
consider representations about objections to these modifications.
In the local
plan, the garden part of the appeal site was allocated for residential
development, whereas the field was shown with no notation. The city council
explained that this was to be read in conjunction with the development brief,
to which I have already referred. The Bath Preservation Trust objected to the
lack of notation on the field, urging that it should be shown as open space.
They made this objection at the inquiry into the plan.
Post-inquiry
history
After the
hearing of the appeal, on June 28 1988 Mr Gray reported to the council on his
inquiry into the local plan. He set out the objection by the Bath Preservation
Trust, the council’s response to it, and concluded:
8.37 The land to the east of Cavendish Lodge
referred to by the Bath Preservation Trust is clearly an open space necessary
to the setting and character of buildings in the locality. This is recognised
in the Planning Brief prepared by the Council and as a consequence I see no
reason for the omission of this land from the sites illustrated on Map 8 [as
open space].
His formal
recommendation was:
That the
Cavendish Lodge field be shown as an open space as recommended in paragraph
8.41.
In July 1988,
as I have said, Mr MacDonald, the appeal inspector, sent his report to the
Department of the Environment.
On August 30
1988 the council sent a copy of Mr Gray’s report on the local plan inquiry to
Mr Rollinson, the regional superintending planner in the south-west regional
office of the Department of the Environment. Mr Rollinson had asked to be
supplied with a copy of Mr Gray’s report for purposes wholly unconnected with
the planning appeal in respect of the Cavendish Lodge site. He was, however,
concerned in the process of making the decision on that appeal. Mr Rollinson,
after considering parts of Mr Gray’s report, passed it on to another colleague,
but as I understand it it remained in the regional office of the Department.
On November 25
1988 the Secretary of State issued his decision letter on the appeal.
On December 20
1988 the council accepted a recommendation of their relevant committees to
adopt the recommendation of the local plan inspector in regard to the Cavendish
Lodge site. On January 23 1989 the council issued a list of modifications to
the local plan, one of which showed the field as open space.
The appeal
inspector’s reasoning
In standard
form, the appeal inspector’s report contained findings of fact and then
conclusions. His findings of fact included:
The emerging
Local Plan, the draft City Plan, shows the ‘garden’ as a site for residential
development, but leaves the ‘field’ unannotated.
In his next
finding he summarised the residential development brief. He noted that:
The appeal
site has been included in a Conservation Area since December 1968.
The part of
his conclusions which is relevant to this appeal is para 42, which it is
necessary to set out in full. It reads as follows:
42. The most
contentious aspect of the appeal proposals is the proposed location of the main
buildings on the eastern part of the site, ie on the ‘field’. It is this aspect
to which the amenities societies fundamentally object, as do many of the
interested persons, and it is in this respect that the proposal departs most
significantly from the City Council’s approved Development Brief. However, it
must be noted that the Secretary of State, in his 1974 decision letter,
accepted that development of this part of the site could reasonably be allowed,
and that the appeal proposals were dismissed solely on design considerations.
The desire to see the ‘field’ become publicly-owned open space is
understandable, but it is clear that no advance in this direction has been made
after many years of discussion, and no firm proposals were put forward at the
Inquiry for moving towards this objective. It is also clear that the argument
for preserving the field was put forward at the 1973 inquiry, but did not
persuade either the Inspector or the Secretary of State, and that use as a
public open space is no nearer now than it was then. Notwithstanding the
provisions of the Development Brief, there are cogent reasons for locating a
new building in the position proposed by the appellants, in particular that it
removes the building from that area of the site where 8 of the 9 protected
trees are located, and sets the building behind the gable end of Cavendish
Crescent, thus minimising the visual impact of the proposed building on this
important terrace. The proposed location appears, when viewed on site, to be
the natural siting for any major new building.
building would be below the eye-level of a person standing in Lansdown Crescent
West, and its effect on the view looking southwards from there would not be
unacceptably great. The effect on this view would, of course, be very much less
if any new building was sited upon the ‘garden’ area, but while the visual
impact upon Lansdown Crescent would be lessened, that upon Cavendish Crescent
would, I believe, inevitably be much increased. Weighing these issues, I find
myself in agreement with the principle set out in the 1974 decision letter,
that there is no fundamental objection to the siting of a suitably designed
building on the ‘field’.
The following
paragraphs of the inspector’s conclusion deal with other issues, ie para 43
with the detailed design of the building, para 44 with the retention of trees,
and para 45 with conditions.
Submissions
Before
Hutchison J Major Crombie made submissions on eight grounds.
Before us he
has restricted himself to two of these, namely:
(1) The failure by the Secretary of State to take
into account the recommendation of Mr Gray, the local plan inquiry inspector,
that the field should be allocated as open space, or alternatively to defer a
decision on the planning appeal until that recommendation, and the council’s
response to it, were known to the Secretary of State.
(2) A failure by the Secretary of State to comply
with the duty imposed on him under section 277(8) of the 1971 Act.
I will
consider each of these in turn.
(1) Major Crombie’s argument on the first of
these two issues can be summarised as follows:
(a) The recommendation of the inspector who held
the local plan inquiry was clearly a relevant consideration which the Secretary
of State should have taken into account when making his decision on the
planning appeal.
(b) The inspector who held the appeal inquiry
knew of the Bath Preservation Trust’s objection to the failure to allocate the
field as open space in the local plan. He reported to the Secretary of State
that there was an objection but did not give any detail of it. Moreover, on
August 31 1990 Mr Rollinson, who was concerned in the decision-making process
on the appeal, was sent a copy of the local plan inquiry inspector’s report,
including the recommendation to allocate the field as open space.
(c) It follows, therefore, that the Secretary of
State must be deemed to have known of the open space recommendation, but
disregarded it, and so failed to have regard to a material consideration.
(d) Alternatively, the Secretary of State,
through his officers, should have known that the local plan inquiry inspector
would be making a recommendation on this issue and should have taken steps to
ascertain what that recommendation was before making his decision on the
planning appeal, if necessary by deferring it. In failing to take steps to make
himself acquainted with the recommendation he acted irrationally.
If I
understand him correctly, Mr Howell, for the Secretary of State, is inclined to
argue that the local plan inquiry inspector’s recommendation was not
necessarily a material consideration. The decision whether it was material was
a decision on a question of fact, to be made by the Secretary of State. Such a
decision can be challenged only on ordinary Wednesbury principles.
With respect
to Mr Howell, it seems to me that this argument misses the point. Major Crombie
is not complaining that the Secretary of State considered whether the
recommendation on the local plan was or was not material and reached a wrong
conclusion; part of his complaint is that there is
matter at all. If this be correct, as in my view it is, then it is open to the
court to decide whether the recommendation was a material consideration. It was
a recommendation which, if accepted by the council (as it now has been), could
lead to the local plan containing an allocation of the site as open space with
which the proposed development would be totally inconsistent. In re Findlay
[1985] AC 318 Lord Scarman, in a speech with which the other members of the
House agreed, quoted with approval two short passages from the judgment of
Cooke J in Creednz Inc v Governor-General [1981] 1 NZLR 172. The
second passage included the observation that, though the relevant statute does
not refer expressly to a particular consideration, nevertheless ‘there will be
some matters so obviously material to a decision on a particular project that
anything short of direct consideration of them by the ministers . . . would not
be in accordance with the intention of the Act’: see [1985] AC 318 at p 334B.
In my view,
the recommendation of the local plan inspector came within this description.
The combined
effect of sections 29(1) and 36(5) of the Act of 1971 is that the Secretary of
State, in deciding whether to allow an appeal under section 36, is required to
have regard to the provisions of the development plan and to any other material
considerations. So it appears that, if the view I have expressed above is
correct, the Secretary of State failed to comply with the statutory
requirement. Nevertheless, from that fact alone, the court is not obliged
to quash his decision — it may do so, in its discretion. In exercising
that discretion, a relevant question for the court is whether the Secretary of
State knew, or ought reasonably to have known, of the matter which was material
to his decision. It was, in effect, upon his answer to this question that
Hutchison J based his decision on this issue. He said (at p 19A of the
transcript of his judgment):
Mr Laws
[counsel for the first respondent, the Secretary of State for the Environment],
in answering these submissions, did not invite me to embark upon a
consideration of the concept of the ‘indivisible crown’. Of the submissions he
made I propose to mention only two. The first was that, given the circumstances
in which Mr Rollinson received the report in August and the fact that Mr
Rollinson was entirely unconnected with the Cavendish Lodge appeal, Mr
Rollinson would not have been free to circulate the report to the
decision-making officers: for they would have had to publicise it and that
would have been contrary to the confidence in which it had been sent by the
council. This, as it seems to me, is only a partial answer to Major Crombie’s
argument, for if it be right to assume that the decision-making officers have
notional knowledge of the contents of the local plan inspector’s report, then
breaches of confidence would have been averted by postponing a decision until
after the local authority’s response to the local plan inspector’s report had
been made public.
However, the
second argument does appear to me to be a conclusive answer to the applicants’
case. It is a simple argument on the facts, and proceeds thus. It was known on
all sides that the local plan inspector was holding an inquiry, and that that
inquiry might well touch upon this site. Before the appeal inspector no request
was made either by the council or by the Bath Society or by anybody else for an
adjournment, or for the inspector to postpone his report until the result of
the local plan inspector’s inquiry was known. The Bath City Council, in
possession of the local plan inspector’s recommendations, and presumably better
acquainted than anyone else with their likely response to it, made no
representations to the Secretary of State, nor did they request him to postpone
his decision on the appeal until they had formally resolved what to do about
the local plan inspector’s report. In the circumstances, submits Mr Laws, what
can be said to be unreasonable or
to take material matters into consideration?
The learned
judge concluded:
As I have
said, no application for deferment or an adjournment was made and the plan in
the possession of the local planning authority was not referred to by them or
sent to the Secretary of State. I accept the arguments advanced by Mr Laws and
Mr Dinkin that in the circumstances of this case there are no valid grounds for
criticising the inspector or the Secretary of State in regard to their attitude
towards the emerging local plan.
Major Crombie
has referred us, as he did Hutchison J, to Hollis v Secretary of
State for the Environment (1982) 47 P&CR 351, a decision of mine at
first instance quashing a decision of the Secretary of State on the ground that
there were in the relevant part of his department, and thus within his
knowledge, documents which made it clear that information recorded in an
inspector’s report, on which the decision was based, was incorrect. He relies
upon this particularly because, as Mr Howell concedes, Hutchison J
misunderstood Mr Rollinson’s position when he said that ‘Mr Rollinson was
entirely unconnected with the Cavendish Lodge appeal’. Since Mr Rollinson was
concerned in the process of deciding the appeal, the information he possessed,
submits Major Crombie, was that of the Secretary of State, and he had (at least
for some time) in his possession the local plan inspector’s report.
Mr Howell
refers us to the decision in Wyre Forest District Council v Secretary
of State for the Environment [1989] 2 PLR 85. In that case development, for
which planning permission had been refused by the district council, was
inconsistent with the zoning in the local plan, which was to be the subject of
an inquiry at approximately the same time as the hearing of the developers’
appeal against the refusal of permission. The inspector hearing the appeal was asked,
but refused, to defer making a decision until the local plan inspector
reported. This court held that this was a proper exercise of his discretion.
But, as I have said, in the present case the Secretary of State was not asked
to defer his decision and there is no evidence that he considered doing so.
I do not find
the decision in Hollis, which was made on different and unusual facts,
of much assistance in answering the question before us. On the one hand, it
would have been a simple matter for the council to draw the attention of Mr
Rollinson, or somebody else in the decision-making branch of the Department of
the Environment, to the ‘open-space’ recommendation, and perhaps to ask for the
appeal decision to be deferred until the council had decided whether to accept
the recommendation. The fact that the council failed to do so is not the fault
of the Secretary of State. On the other hand, the appeal inspector did report
that there had been an objection relating to the field at the local plan
inquiry, and it would have been equally easy for Mr Rollinson, or one of his
colleagues, to have studied the local plan inspector’s report to ascertain what
he recommended in relation to this site and then to take that recommendation
into account in some way.
On balance I
conclude that the failure of those who were deciding the appeal to take these
simple steps resulted in the Secretary of State’s failing to comply with his
duty to have regard to this material consideration.
(2) I now turn to Major Crombie’s second submission,
namely that the Secretary of State is not shown to have complied with the duty
imposed on him by section 277(8) of the 1971 Act.
Section 277
contains the following relevant provisions:
277.–(1) Every local planning
authority shall from time to time determine which parts of their area are areas
of special architectural or historic interest
and shall designate such areas as conservation areas.
. . .
(8) Where any area is for the time being
designated as a conservation area, special attention shall be paid to the
desirability of preserving or enhancing its character or appearance in the
exercise, with respect to any buildings or other land in that area, of any
powers under this Act, . . .
There is
general agreement that the duty imposed by section 277(8) applied to the
exercise by the Secretary of State of his powers when considering the appeal to
him under section 36 of the 1971 Act.
Neither the
Secretary of State in his decision letter nor the appeal inspector in his
report says expressly that he has paid attention to the desirability of
preserving or enhancing the character or appearance of the conservation area.
Thus, submits Major Crombie, Hutchison J should have found that they did not
comply with their duty under the subsection. The learned judge, however,
concluded that various passages in the inspector’s report (to which I shall
have to refer later) ‘inevitably lead to the inference that the inspector was
alive to and was giving proper weight to his section 277(8) duty’. The issue
can thus be shortly expressed — was the learned judge correct in drawing such
an inference?
Major Crombie
accepts that in an appropriate case it may be clear, although there are no
express words, that an inspector has complied with the statutory requirement
imposed by section 277(8). But he argues that here it is apparent that the
inspector did not do so, not merely because he has not referred to the section
277(8) duty in terms, but for the following additional reasons:
(i) in para 42 of his report the inspector did
consider the effect of the new building on the view and decided that it would
not be ‘unacceptably great’. Major Crombie characterises this as a reference to
the ‘harm test’ as distinct from the section 277(8) requirement;
(ii) the inspector has placed reliance upon, but
misinterpreted, the 1974 decision;
(iii) the inspector adopted a wrong test in
comparing the impact of a large building on the field as opposed to the same
building in the garden.
I will
consider the second and third of these arguments in more detail before
returning to the first.
The 1974
decision
The relevant
passage is to be found in para 5 and part of para 6 of the 1974 decision
letter. This read as follows:
5. The
Inspector recommended that the appeal against the failure to issue a decision
within the prescribed period on the application for approval of matters
reserved in the outline permission granted in December 1967 be allowed unless,
in the meantime, the outline permission was revoked or modified. He also
recommended that unless the permission granted on 5 December 1967 should in the
meantime be revoked or modified, the appeal against the refusal of planning
permission for the erection of a block of 48 flats and 53 garages on land at
Cavendish Lodge and the rear of Cavendish Road be allowed. The Inspector made
no recommendation in the alternative event, in the absence of fuller evidence.
6. The
Secretary of State accepts the Inspector’s findings of fact and does not
disagree with him on any issue of fact. In respect to the Inspector’s
conclusions, the Secretary of State agrees that some form of new residential
development could reasonably be allowed on the appeal site provided the buildings
harmonise with the existing buildings and make a worthy contribution to the
architecture of this outstanding conservation area.
The Secretary
of State then considered the detail of the two applications and refused both
appeals on the ground that they ‘do not adequately harmonise with the
surrounding architecture nor reach the high architectural quality required in
this location’.
Major Crombie
argues that, although on those appeals the inspector recommended that the
appeals should be allowed if the 1967 provision were not revoked or modified,
it is clear that his recommendation was upon the hypothesis that there was an
existing planning permission in being. That hypothesis is equally obviously the
basis of the Secretary of State’s agreement that ‘some form of new residential
development could reasonably be allowed on the appeal site’. The appeal
inspector, Mr MacDonald, in his report (the passage at the beginning of para
42) appears not to have understood this or at least has disregarded it. To
this, Mr Howell, for the Secretary of State, replies that Mr MacDonald not
merely considered the 1974 decision but expressly exercised his own judgment in
concluding, at the end of para 42, that ‘I find myself in agreement with the
principle set out in the 1974 decision letter, that there is no fundamental
objection to the siting of a suitably designed building on the ‘field”.
The
comparison of the field and the garden as a suitable site for the proposed
building
The inspector
made this comparison when he said, in the middle of para 42:
Notwithstanding
the provisions of the Development Brief, there are cogent reasons for locating
a new building in the position proposed by the appellants, in particular that
it removes the building from that area of the site where 8 of the 9 protected
trees are located, and sets the building behind the gable end of Cavendish
Crescent, thus minimising the visual impact of the proposed building on this
important terrace.
Major Crombie
submits that the restrictions on development of the site set out in the
development brief would result in a relatively modest amount of building on the
garden, since it was a requirement of the brief that the buldings should be set
back and the trees retained. Thus, it would be impossible to erect the building
here proposed on the garden and comply with the development brief. The
comparison which the inspector made in the passage I have just quoted was
therefore invalid and should not have formed any part of his reasoning.
The
section 277(8) requirement
We were
referred to five previous decisions of the courts in which the proper
application and effect of section 277(8) have been considered. Four of these
were decisions of distinguished Queen’s Counsel, sitting as deputy High Court
judges, and one a decision of this court. I will consider them in chronological
order.
In Steinberg
v Secretary of State for the Environment [1989] 2 PLR 9 Mr Lionel Read
QC gave judgment on November 25 1988. Camden London Borough Council refused
permission for the erection of a single house in a small conservation area. An
inspector allowed the developer’s appeal against this decision. In his decision
letter he said that the second main issue to be decided was ‘whether the
proposed development would harm the character of the conservation area’. He
concluded that the proposed house was ‘an acceptable infill’ and therefore
allowed the appeal. On a challenge under section 245 by Professor Steinberg, a
neighbour, the deputy judge held that the inspector had adopted the wrong test.
He said at p 12F:
There is, in
my judgment, a world of difference between the issue which the inspector
defined for himself — whether the proposed development would
attention to the desirability of preserving or enhancing the character or
appearance of the conservation area. In short, harm is one thing; preservation
or enhancement is another. No doubt the inspector has demonstrated his concern
that the character of the conservation area should not be harmed. That, in my
judgment, is not the same as paying special attention to the desirability of
preserving or enhancing that character as well as its appearance. The concept
of avoiding harm is essentially negative. The underlying purpose of section
277(8) seems to me to be essentially positive.
Mr Howell, for
the Secretary of State, criticises this passage as too sweeping. He submits
that a conclusion that a particular development will not harm a conservation
area is equivalent to finding that it will preserve the character or appearance
of that area.
Unex
Dumpton Ltd v Secretary of State for the
Environment [1990] 2 PLR 1 was a decision of Mr Roy Vandermeer QC given on
July 12 1989. An application for outline permission for residential development
on a seven-acre site at Newbury was refused and an appeal against the refusal
was dismissed by an inspector. The inspector had posed himself the question
whether the proposed development would contribute to the preservation or
enhancement of the conservation area. On a challenge by the developers to this
decision under section 245, it was argued that he had failed to have regard to
a material consideration, namely the presumption in favour of development which
does not cause demonstrable harm. This is now to be found in para 15, Planning
Policy Guidance Note 1 — General Policy and Principles — issued by the
Department of Environment, in the following terms:
. . . There
is always a presumption in favour of allowing applications for development,
having regard to all material considerations, unless the development would
cause demonstrable harm to interests of acknowledged importance. Except in the
case of inappropriate development in the Green Belt the developer is not
required to prove the case for the development he proposes to carry out; if the
planning authority consider it necessary to refuse permission, the onus is on
them to demonstrate clearly why the development cannot be permitted.
Mr Vandermeer
said, [1990] 2 PLR 1, at p 6H:
As a general
proposition the Secretary of State and/or his inspector cannot, in my view,
avoid the need to ask whether a particular proposal causes harm to an interest
of acknowledged importance and to grant planning permission if it does not.
After quoting
a passage from the judgment of Mr Lionel Read QC in Steinberg Mr
Vandermeer said at p 7B:
The need to
address that duty — that is the duty under section 277(8) — does not however,
in my judgment, relieve the Secretary of State and/or his inspector of the need
to consider whether harm would be caused by the proposed development or, if so,
whether the benefits of the proposed development outweigh that harm, nor do I
read the judgment in Steinberg as so saying. Indeed, important though
the provisions of section 277(8) are, they are only one of the material
considerations that have to be taken into account and only require that
‘special attention’ be paid to the matters set out in the subsection. . . .
In addressing
himself to the matters set in section 277(8) it is likely that an inspector
would reach a view of whether harm had occurred. For instance, a finding that a
development enhances the conservation area almost inevitably carries
with it a finding that there would be no harm. If, on the other hand, there is
a finding that a proposed development does not preserve the character
or appearance of a conservation area it may well involve a finding that there
is harm to the conservation area which would be harm to an interest of
acknowledged importance.
Mr Vandermeer
then concluded that the inspector’s decision letter made it clear that he did
consider that the development would cause demonstrable harm etc, which was not
outweighed by its benefits. The application was thus dismissed.
In Ward
v Secretary of State for the Environment (1989) 59 P&CR 486* the
proposed development involved the loss of a private garden in a village which
was a conservation area. On an appeal against the refusal of permission, the
inspector decided to grant planning permission, apparently because the proposed
development would, to an extent, enhance the conservation area. This court,
however, concluded that his reasoning was not clear and quashed his decision.
*Editor’s
note: Also reported at [1990] 1 PLR 85.
In the course
of his judgment Woolf LJ said at p 492:
. . . it
seems to me that it should be borne in mind that the primary task which the
inspector had to perform was to compare what is on the site at the present time
with what is going to be on the site, assuming that the planning permission
were to be implemented.
Major Crombie
relies upon this observation in support of his submission, which I have already
recorded, that the inspector has made a wrong comparison between the field and
the garden as a site for the proposed building.
Harrow
London Borough Council v Secretary of State for
the Environment and Harrow School (1989) 60 P&CR 525† was a decision of Sir Graham Eyre QC on
December 12 1989. The proposed development involved the demolition of some
buildings on a site, which overlapped the boundary between two conservation
areas, and the construction of 21 houses and a theatre. Permission was refused
and the developers appealed. The inspector who heard the appeal said that the
main issue was whether the development would preserve or enhance the character
or appearance of the conservation areas. He decided:
(i) that the theatre would enhance the character
and appearance of the conservation area;
(ii) that the proposed housing would preserve the
character of the conservation area; but
(iii) that the development would bring additional
traffic to the area, which would be a disadvantage.
† Editor’s
note: Also reported at [1990] 2 PLR 62.
He balanced
these competing factors and decided to allow the appeal.
Dismissing the
application to quash that decision, Sir Graham Eyre at p 529 quoted section 277(8)
and commented:
Clearly the
inspector was exercising powers under the Act for the purposes of his
determination of the appeals. As I understand the subsection, it does not set
out the test nor does it support the proposition that in relation to a consideration
of development proposals they must themselves preserve or enhance, or serve to
preserve or enhance, the character or appearance of the conservation area. It
imposes a duty to pay special attention to the desirability of preservation or
enhancement. There may be cases where other important factors in the public
interest are at work which render the development acceptable in a conservation
area notwithstanding the conservation considerations. Such factors could be
weighed by a decision maker provided he pays attention and special attention to
the conservation objectives.
South
Lakeland District Council v Secretary of State
for the Environment* another decision of Mr Lionel Read QC, given on
February 26 1990, concerned an application for a new vicarage in a conservation
area at Cartmel, Cumbria. The application for permission was refused and there
was an appeal. The inspector said in terms that he was complying with the duty
imposed on him by section 277(8). It was, however, argued before Mr Read that his
decision was clearly not based on that test but on the ‘demonstrable harm’
test. The learned deputy judge held that the reasoning was not clear and
quashed the decision.
*Editor’s
note: This decision was reversed by the Court of Appeal and is now reported at
[1991] 2 PLR 97 post.
He said:
Plainly, in my
judgment, such a duty (ie under section 277(8)) is different from and requires
more than the duty under section 29 to have regard to the fact that a
development is proposed in a conservation area as a material consideration.
Discharge of the former duty under section 277(8) must, in my judgment, also
require the decision-maker dealing with such an application for planning
permission to consider and decide whether the development would or would not
preserve or enhance the character or appearance of the conservation area in
question. Otherwise I do not see how he can discharge the duty of paying
special attention to the desirability of preservation or enhancement.
An
application is not however to be refused by reason of section 277(8) because it
neither preserves nor enhances the conservation area’s character or appearance.
That is not the test proposed by the subsection. It may be refused for that
reason or it may not. That is for the judgment of the decision-maker. It may be
that, to give effect to the intention of Parliament, the decision-maker should
give added weight to any conclusion that the development would not preserve or
enhance the character or appearance of the conservation area, but that question
does not fall for my decision. If, however, the application is not refused for
that reason, although it is desirable that the character or appearance should
be preserved or enhanced, other reasons for not refusing it must, in my
judgment, be given.
I have derived
great assistance from the passages in these various judgments, and in general I
agree with the sense of those I have quoted, though I do not necessarily agree
with the precise wording of some of them. I can summarise the conclusion I have
reached about the proper approach which should be adopted to an application for
planning permission for development in a conservation area as follows:
(i) If permission be sought for development on a
site not within a conservation area, the person or body charged with deciding
the matter — the local planning authority, the Secretary of State or his
inspector on an appeal — is normally subject to one statutory duty, that
imposed by section 29(1) and, in the case of an appeal, section 36 of the 1971
Act. The departmental policy embodied in para 15 of PPG 1 is in such
circumstances a perfectly proper approach to the carrying out of that statutory
duty.
(ii) If, however, the site of proposed development
is in a conservation area, then the decision-maker has two statutory duties to
perform — those imposed by section 277(8) as well as section 29(1) of the Act.
The question is, how are these duties to be performed in reconciliation with
each other, and how do they relate to the policy in para 15 of PPG 1?
(iii) In my opinion, in a conservation area the
requirement under section 277(8) to pay ‘special attention’ should be the first
consideration for the decision-maker. It is true that the desirability of
preserving or enhancing the character or appearance of the conservation area
is, in formal terms, a ‘material consideration’ within section 29(1). Since,
however, it is a
duty, it must be regarded as having considerable importance and weight.
(iv) If, therefore, the decision-maker decides
that the development will either enhance or preserve the character or
appearance of the conservation area, this must be a major point in favour of
allowing the development.
(v) Nevertheless, there will be some cases in
which a development can simultaneously enhance the character or appearance of a
conservation area but nevertheless cause some detriment. That detrimental
effect is a material consideration. The Harrow case, in which the
inspector concluded that the quality of design of the proposed theatre would
enhance the area, but that the additional traffic was a detriment, and that
these two factors had to be weighed, the one against the other, is a good example
of this. This seems to me to be a perfectly proper approach.
(vi) If, however, the decision-maker decides that
the proposed development will neither preserve nor enhance the character or
appearance of the conservation area, then it is almost inevitable that the
development will have some detrimental, ie harmful, effect on that character or
appearance. In lawyers’ terms, the presumption derived from the policy in para
15 is then rebutted. As I have said, the conclusion that the development will
neither enhance nor preserve will be a consideration of considerable importance
and weight. This does not necessarily mean that the application for permission
must be refused, but it does, in my view, mean that the development should be
permitted only if the decision-maker concludes that it carries some advantage
or benefit which outweighs the failure to satisfy the section 277(8) test and
such detriment as may inevitably follow from that.
Conclusion
If the approach
I have indicated above is correct, the question then arises in relation to this
case, is it apparent from the inspector’s report that he and the Secretary of
State have approached their decision on the appeal in the way I have suggested?
In his
judgment, Hutchison J said that he agreed with Major Crombie’s argument that
‘it is surprising that the inspector did not mention subsection (8) if in fact
he had it in mind and was according proper weight to it’. On the other hand,
the learned judge accepted the argument advanced by Mr Laws (then appearing for
the Secretary of State) to the effect that since the major argument at the
inquiry into the appeal centred on the effect of the conservation area, and
since specific reference had been made to section 277(8), it was difficult to
think that the inspector was not taking account of the duty imposed by that
subsection. The judge referred to and quoted a number of passages in the
inspector’s report in which he summarised the evidence or argument for the
developer, for the local planning authority, and by Major Crombie as to the
effect of the development on the conservation area.
Hutchison J
concluded:
If one turns
then to the findings of fact and the conclusions, most of which I have quoted,
there are references to the conservation area and a discussion of the merits or
demerits of the proposed development in a context which, as it seems to me,
inevitably leads to the inference that the inspector was alive to and was
giving proper weight to his section 277(8) duty.
I see no
reason to qualify this conclusion in the light of the three subsidiary matters
specifically relied on, which form separate grounds, as to which I am persuaded
that the arguments advanced by the respondents and summarised above are
correct.
It was for
these reasons that he rejected Major Crombie’s argument relating to the section
277(8) duty.
Despite the
references to the conservation area throughout the inspector’s report, I am
unable to agree with Hutchison J that though the inspector made no express
reference to the special attention he was required to pay by section 277(8), it
is apparent from his report that he did fulfil his duty under that subsection.
I cannot read into his report that he did approach the matter as I have
suggested it should be approached.
I agree with
Major Crombie’s submission that the inspector fell into error in making a
comparison between the effect of the proposed block of flats constructed on the
field and that of a similar building constructed on the garden. For the reasons
I have set out above in relation to this point, I agree with Major Crombie that
the council’s development brief would not have envisaged or permitted a
building of anything like the bulk or scale of this block of flats on the
garden. Thus, it follows that in making this comparison the inspector was
posing an inappropriate question for himself.
I think the
inspector may have been led into this error by his approach to the 1974
decision. Again, I agree with Major Crombie that it does seem that the
inspector did not fully appreciate that the inspector in 1974 was reporting,
and the Secretary of State was adopting, his recommendations on the basis that
there was an existing planning permission in being. This aspect of the matter,
however, seems to me to be peripheral to the main issue, to which I return.
As I have
said, I do not find it possible to infer from the inspector’s report that he
was paying ‘special attention to the desirability of preserving or enhancing’
the character or appearance of the conservation area. But if this could be
spelled out of his report, it is clear that there is no suggestion in the
report that the building would enhance the character or appearance of the
conservation area. Mr Howell argues that a conclusion that a proposed
development will do no harm is equivalent to a conclusion that it will
preserve. Even if that be correct (and adopting the approach of Mr Lionel Read
QC, I doubt whether it is), this is not what, in my view, the inspector himself
concluded. In para 42 of his report he said that the effect of the new building
on the view looking southwards would ‘not be unacceptably great’. This can only
mean that he concluded that it would to some extent detract from that view. The
inference to be drawn from that conclusion is that, if he was considering the
section 277(8) question, he decided that the building would not preserve the
appearance of the conservation area.
On this basis,
if the inspector did comply with the section 277(8) duty, and formed the
opinion that the building would neither enhance nor preserve the character or
appearance of the conservation area, then he failed to carry out the necessary
balancing exercise of weighing that important material consideration against
such unexpressed benefits as the construction of the new building might bring.
For these reasons,
I conclude that the reasoning in para 42 of the inspector’s report was
defective and did not satisfy the obligation imposed on him, and on the
Secretary of State, by section 277(8). As I have said much earlier, the
Secretary of State in his decision letter simply said that he ‘agrees with the
inspector’s conclusions and accepts his recommendation’. The flaw in the
inspector’s reasoning, therefore, necessarily affects the Secretary of State’s
decision.
For these
reasons, I would allow the appeal against Hutchison J’s decision and quash the
decision of the Secretary of State contained in his letter of November 25 1988.
STOCKER LJ: I entirely agree and add one short comment of my own, since we are
differing from the conclusion of the learned judge.
In my view,
the special attention which the inspector is bound to give to the
concerned is of ‘such universal value that protecting it is the concern of all
mankind’. This fact, in my opinion, requires at least that it must be manifest
from the terms of the inspector’s report that very close consideration has been
given to the provisions of this section, and it is insufficient that it is
possible to spell out from the terms of the report that the inspector has, in
some way, the terms of the section in mind.
Accordingly, I
agree that the appeal should be allowed.
SIR DENYS
BUCKLEY: I agree both with the judgment delivered
by Glidewell LJ and with the observation of Stocker LJ, which follows that
judgment. I do so not without some regret, for para 42 of the inspector’s
report seems to indicate that the inspector was recommending what appeared to
him to be a reasonable and realistic solution of the problem confronting him,
fairly balancing the amenity aspects and the development aspects of the matter,
and I do not doubt that he had the terms of section 277(8) well in mind. I
feel, however, the force of Glidewell LJ’s criticism of that paragraph of the
report near the end of his judgment.
I also would
allow this appeal.
Appeal
allowed with costs.
