Planning permission — Listed building — Refusal of listed building consent for alterations — Compensation — Whether consent refused for works not materially affecting external appearance — Whether works constituted development — Role of expert witness
In December
1989 the defendant council refused to grant listed building consent to the
plaintiffs in respect of proposed alterations to a listed building. The amended
application, not involving an earlier proposal of partial demolition, was in respect
of alterations to accommodate a lift shaft within a roof valley. On June 24
1991 the Secretary of State for the Environment dismissed the plaintiffs’
appeal against the refusal, noting that the special interest of the building
would be reduced by the loss of the original characteristic valley gutter shape
of the roof. The plaintiffs, being concerned to establish a claim for
compensation for a refusal of listed building consent under section 27 of the
Planning (Listed Buildings and Conservation Areas) Act 1990, sought a
declaration in the present proceedings that works for which consent had been
sought did not constitute development within the meaning of section 55 of the
Town and Country Planning Act 1990.
Held: The declaration was granted. The works did not amount to
development within the meaning of section 55(2)(a)(ii) of the 1990 Act. In
considering the meaning of works which ‘do not materially affect the external
appearance of the building’, the following must be taken into account: (1) What
must be affected is ‘the external appearance’, and not the exterior of the
building. The alteration must be one which affects the way in which the
exterior of the building is or can be seen by an observer outside the building.
(2) The degree to which the alteration must be capable of being seen by
observers is all roof alterations which can be seen from any vantage point on
the ground or in or on any neighbouring building. (3) The external appearance
must be ‘materially’ affected, and this depends in part on the degree of
visibility. (4) Materiality must in every case take into account the nature of
the particular building which it is proposed to alter, such as whether it is
listed. (5) The effect on the external appearance must be judged for its
materiality in relation to the building as a whole, and not by reference to a
part of the building taken in isolation. (6) Evidence of facts will almost
always be relevant when applying section 55(2)(a). The evidence should include
the proposed alterations to the building with plans, photographs and written,
and if necessary, oral evidence and evidence as to the extent to which the
altered external appearance of the building would be visible. (7) It is not the
role of an expert to express opinions as to the interpretation of statutory
provisions. In applying these factors, the proposed roof alterations, and other
works to the windows involving the restoration of georgian window-glazing bars,
and not the subject of the Secretary of State’s decision, would not have
materially affected the external appearance of the building.
expert witnesses were not independent, being employees, or ex-employees of the
defendant council. Some of these experts wrongly thought it was an essential
part of their function as experts to act as supplementary advocates for their
client, the council. The experts’ conclusions as to the interpretation of the
statutory provisions were neither admissible nor helpful.
The following
cases are referred to in this report.
Kensington
and Chelsea Royal London Borough Council v CG
Hotels (1980) 41 P&CR 40, CA
National
Justice Compania Naviera SA v Prudential
Assurance Co Ltd ‘Ikarian Reefer’ [1993] 2 Lloyd’s Rep 68; [1993] 2 EGLR
183; [1993] 37 EG 158
This was an
action by the plaintiffs, Burroughs Day, seeking a declaration against the
defendants, Bristol City Council, that certain proposed works to be carried out
by the plaintiffs did not constitute development within the meaning of section
55 of the Town and Country Planning Act 1990.
John Hobson
(instructed by Burroughs Day, of Bristol) appeared for the plaintiffs; Robert
Thomas (instructed by the solicitor to Bristol City Council) represented the
defendants.
Giving
judgment, Mr Richard Southwell QC said: This case involves the determination of
a point of some importance in the operation of the planning statutes, which
apparently has not as yet been the subject of any direct decision of the
courts.
The plaintiffs
are a well known firm of solicitors with offices in Bristol at 14, 15 and 16
Charlotte Street. I will refer to them as ‘the solicitors’. Nos 14, 15 and 16
are georgian houses of architectural distinction, which are listed as Grade II*
and are within a conservation area of importance to the City of Bristol. They
form part of one of a number of terraces of substantial and distinguished
houses designed and built by members of the Paty family in the latter part of
the 18th century.
14 and 15
Charlotte Street have been occupied by the solicitors for some considerable
time. Extensive alterations to their interiors had regrettably been made,
before the legislation on listed buildings and conservation areas had
established the present regime of protection for buildings of architectural
distinction. No 16 has been occupied by the solicitors for a shorter time.
The defendants
are Bristol City Council, to which I will refer as ‘the council’.
In 1988 and
1989 the solicitors had decided that they wished to make changes to no 16 (with
consequential changes to no 15) so as to enable them to use the three buildings
as an integrated whole, and to install a lift in no 16 which would serve each
of the floors of no 16, and through interconnecting openings also serve each of
the floors of nos 14 and 15.
Accordingly,
on January 20 1989 Mr James Ackland, an architect who was then practising under
the firm name of Eustace H Button & Partners, chartered architects, in
Bristol, made an application to the council on behalf of the solicitors for
listed building consent for works to be carried out on and in 14, 15 and 16
Charlotte Street. The brief description of the proposed works reads as follows:
Externally no 16 Removal of First Floor
of rear extension and provision of new tile roof. Alterations to windows of
rear extension. Renewal of windows of front elevation with sash bars. Repairs
to stonework. Alteration and repairs to roof.
Internally no 16 Removal of staircase.
Construction of lift shaft. Upgrading structure for fire resistance and fire
precautions. Forming openings between No 16 and No 15.
Nos 14 and
15 Upgrading doors and screens for fire resistance and fire precautions.
Removal of stair from Ground Floor to Basement in No 15.
For the
purposes of this action I am concerned only with the proposed alterations to no
16. It is material to note that the application for listed building consent
(‘LBC’) included works involving:
(1) major
changes to a small rear extension of no 16;
(2) the
renewal of the windows of the front elevation (which had previously been
replaced with windows containing single glass panes of a victorian style) so as
to restore the georgian style with smaller glass panes and georgian glazing
bars;
(3)
alterations to the roof to accommodate the lift.
The drawings
annexed to the application showing the proposed works included drawings L18B,
L19B, L20C, L21A and L22A. Later in this judgment I will have to consider these
drawings in some detail. At this stage it suffices to say that drawings L21A
and L22A showed the changes proposed to the front and rear elevations including
the replacement of the windows on the front elevation as referred to in (2)
above.
On the same
day Mr Ackland, on behalf of the solicitors, made an application for planning
permission in respect of the same works and relying on the same drawings.
There followed
discussions and correspondence between Mr Ackland and employees of the council,
especially Mr Spearman (then a member of the central area development control
team) and Mr Christopher Curtis (an architect who was then a principal officer
in the council’s planning office dealing with design and conservation in
conservation areas and the city centre). Mr Spearman and Mr Curtis immediately
made clear their concerns about the nature of the proposed works, and the
effect the works would in their view have, particularly on the interior of no
16: see the council’s letter to Mr Ackland of March 8 1989. Mr Ackland replied
by a long letter of March 14 1989 explaining the background to the two
applications and confirming the solicitors’ intention to replace the
front-elevation windows.
In the course
of these discussions the possibility of an alternative scheme, not involving
the insertion of a lift shaft in no 16, was considered. By letter dated
September 8 1989 to the council Mr Ackland confirmed that this alternative was
not acceptable to the solicitors, who wished:
to pursue
what is basically their present application. They wish their application for
Listed Building Consent No 012OL/89C in an amended form (as mentioned below)
determined and their application for planning permission No 0211F/89C
withdrawn.
Mr Ackland
went on to state:
We have
amended the drawings relating to the existing application so that any external
demolition or alteration works have been omitted. We consider that the proposed
alterations do not now require planning permission and therefore that
application No 0211F/89C can be withdrawn.
Please
substitute the enclosed three copies of each of revised drawings Nos 650/L12C,
L13H, L14H, L15E, L16F, L17E, L18C, L19D, L20D, L21B and L22B for those
submitted with our application for listed building consent and obtain a
decision from the Planning Committee on that application. (Drawings Nos
650/L1B, L2A, L3A, L4A, L5A, L6A, L7, L8, L9, L10 and L11 have not been revised
as they show the building as existing.)
Mr Ackland
accepted in his oral evidence that in the second line of this extract the word
‘material’ should have been inserted, ie ‘any external demolition or material
alteration works’, because external works were still included in the
application for LBC, namely the works on the roof and the works set out on
drawings L21B and L22B (after revision).
On December 6
1989 the council decided to refuse the amended application for LBC. The notice
of the council’s decision contained (clearly in error) the same description of
the external works proposed for no 16 as had appeared in the original LBC
application before its amendment. The reasons for the council’s refusal related
to the changes proposed for the interior of no 16, save only that reference was
made to the ‘large area of inner flat roof to no 16’.
On April 24
1990 the solicitors appealed against the refusal of LBC. In the appeal document
the works were described as ‘form openings between numbers 16 and 15 and
various internal works in number 16 Charlotte Street, Bristol’. But the address
of the site was stated as ’14, 15 and 16 Charlotte Street [etc]’. In referring
to the relevant plans the solicitors included drawings L21B and L22B, which
contained reference to the replacement of the windows on the front elevation.
There are two
matters which I should mention at this point.
The first is
that the roof of no 16 is composed of two tiled ridges to front and rear, of
mansard form on the outside surfaces with dormer windows inserted, and ordinary
slopes on the inner surfaces down to a lead valley gutter. At the other sides
of the roof, ie the side at the end of the terrace and at the party wall with
no 15, there are high gable walls with numerous chimney pots. If the lift were
to be installed, the lift shaft would have protruded through the valley gutter
and the tiled surface to the inner side of the rear ridge, going up to nearly
the same height as the ridge (I consider below the contentions as to the height
of the proposed lift shaft roof), and there would have been a substantial area
of flat roof, at a level between the levels of the lift shaft roof and the
valley. These alterations would all have been between the two ridges, affecting
the two internal slopes, and would not have been visible from any of the
surrounding streets.
The second
matter is that by September 1989 the solicitors, fearing that LBC might be
refused, were putting themselves in a position in which, if LBC were refused,
they might be able to claim compensation pursuant to the Town and Country
Planning Act 1971, sections 171 (1) to (4) and 173 (1) and (2). These statutory
provisions were consolidated in the Planning (Listed Buildings and Conservation
Areas) Act 1990 (‘the PLBCA’), section 27 (since repealed). Counsel throughout
referred to section 27 of the PLBCA for convenience. Section 27 (so far as
material) reads as follows:
(1) This
section shall have effect where —
(a) an
application is made for listed building consent for the alteration or extension
of a listed building;
(b) the works
do not constitute development or they do so but the development is such that
planning permission for it is granted by a development order; and
(c) the
Secretary of State, either on appeal or on the reference of the application to
him, refuses such consent or grants it subject to conditions.
(2) If, on a
claim made to the local planning authority within the prescribed time and in
the prescribed manner, it is shown that the value of the interest of any person
in the land is less than it would have been if listed building consent had been
granted or, as the case may be, had been granted unconditionally, the local
planning authority shall pay that person compensation of an amount equal to the
difference.
The most
material part is subsection (l)(b). To succeed in a claim under section 27 the
solicitors have to establish that the works for which LBC has been refused ‘do
not constitute development’, ie planning permission is not required (the
reference to a development order is not material in this case). Mr Ackland had
taken the view that the works covered by the LBC application, as amended, were
not ‘development’ and did not require planning permission. Whether the works
considered on the appeal to the Secretary of State constituted
later.
The appeal was
fixed for hearing in an inquiry before an inspector on December 4 1990. In
their rule 6 statement dated July 30 1990, the council referred in the heading
to the works as originally described in the LBC application. This was a mistake
as the council were aware that the application had been amended. In para 2.1
the council referred to the original applications. In para 2.2 the council,
after referring to the alternative proposal, stated that the solicitors:
opted to
delete most of the external refurbishment work, withdraw the planning
application and revert to the major internal works to No 16 which were the
basis of the proposal as originally submitted.
In para 5.2
the council stated that:
It is
considered that the lift housing and proposed flatted (sic) roof at no
16, some 0.9 metres higher than the existing central valley, will erase the
traditional form and integrity of this roof.
In para 5.10
the council stated that:
It was a
matter of regret that the applicant decided to withdraw the
originally-submitted parallel planning application which included various
external renovations to stonework and alteration of some windows. Negotiations
were in hand to achieve the removal of metal casement windows at dormer level
in no 16 with timber sash windows of the correct historical pattern.
The inquiry
took place on December 4 1990. At its commencement the inspector sought
clarification of the works he had to consider and therefore of the drawings of the
works. In my judgment, it is clear on the evidence that the inspector was told
that drawings L21B and L22B were no longer relevant to his inquiry because
these related to external works which the solicitors were no longer pursuing.
The main evidence in this regard was:
(1) The
statement in para 4 of the inspector’s first report to which I will refer
later.
(2) The
written and oral evidence of Mr Allingham, a solicitor who represented the
council at the inquiry. In his witness statement he stated that, as far as he
could recall, no part of the LBC application, including any drawing, was
withdrawn by the solicitors during the inquiry. In his oral evidence he made it
clear that he had little memory of what had happened five years before, on
December 4 1990.
His
contemporaneous documents seemed to me to indicate to the contrary to his
written statement. When first instructed by the council his note, in relation
to para 2.2 of the rule 6 statement, was: ‘All external works abandoned’. Para
2.2, quoted above, showed that the council were aware that ‘most of the
external refurbishment work’ had been deleted. The only remaining external item
was the works in the roof valley.
His brief note
of the opening of the inquiry contained the following:
Application
plans: L12C etc. Does not include external works.
This note is
not consistent with the inspector having been told that the works on L21B and
L22B were being pursued.
In his letter
of December 6 1990, two days after the inquiry, to the assistant city clerk Mr
Allingham dealt with the likelihood of a claim for compensation under section
27 of the PLBCA in the event that refusal of LBC was upheld. In doing so he
used these words:
The works in
question were substantially internal works, involving the installation of a lift
shaft, and although requiring some external works in the form of alterations to
the roof, it may be argued that these do not materially affect the external
appearance of the building.
If the window
and other alterations set out on drawings L21B and L22B still formed part of
the works for which LBC was being sought, I have no doubt that Mr Allingham
would have mentioned these additional external works.
Having seen
and heard Mr Allingham give evidence I am satisfied that in this regard his
memory was at fault and that his written statement is not correct.
(3) Mr
Spearman also gave written and oral evidence. His written statement, para 7,
reads as follows:
I recall that
when the inquiry opened on 4th December 1990 after the introductions of the
parties present, the drawings under consideration were run through. My own
notes indicate that I had insufficient time to record the correct suffixes
except for the last two, which might have been repeated. I submit my notes,
together with a typewritten transcript, as evidence (appendix 2 to my
Statement). The point is, however, that I am clear that drawings 650/L21B and
L22B were presented and considered at this appeal.
The notes to
which he referred of the start of the inquiry contained a list running across
the page of all the drawings previously mentioned in the solicitors’
application and appeal. Below that appear the words ‘Clarify applica[tion] 21B
and 22B’.
In his written
and his oral evidence Mr Spearman suggested that these notes confirmed that
drawings L21B and L22B were identified by the solicitors’ representative, Mr G
Hesketh, a partner in that firm, as being part of the scheme for consideration
by the inspector and that these drawings were actually considered by the
inspector during the inquiry.
Having seen
and heard Mr Spearman give evidence, I am satisfied that his evidence in this
respect was untrue. The true reason why drawings L21B and L22B were separately
identified in his contemporaneous note was that it was made clear to the
inspector, by Mr Hesketh, that the inspector was not to consider these drawings
because the works they showed were no longer part of the solicitors’ LBC
application or appeal.
However, the
principal reason why I am satisfied that these drawings were withdrawn from the
application and appeal is what the inspector stated in his first report to
which I now turn.
The
inspector’s first report was dated January 4 1991. In para 1 he stated that the
appeal was against a refusal of LBC:
for works of
alteration, namely, the forming of openings between 15 and 16 Charlotte Street,
Bristol and for various internal works in 16 Charlotte Street.
In para 4 he
referred to what he had established at the inquiry as being the scope of the
current application and appeal, and stated as follows:
Certain
works of external alteration which are shown on the application plans (drg nos:
21b and 22b) are not now to be regarded as part of the proposals. The concurrent planning application in respect of the external
works has been withdrawn (LPA 3).
Emphasis supplied.
After
summarising the contentions for the solicitors and the council, the inspector
set out his conclusions. It is material to note that nowhere in these three
sections of his report did the inspector make any further reference to the
window replacement and other works set out on drawings L21B and L22B, a
reference which he would undoubtedly have made if those works and those
drawings remained within the ambit of the LBC application and appeal.
His conclusion
as to the proposed changes in the roof valley was (para 26.3) that:
The loss of
the characteristic valley gutter shape of roof would reduce the special
interest of the building since it is clearly an original feature.
His other
conclusions related to solely internal changes and I need not refer to these.
He finally recommended that the appeal be dismissed and that LBC be not
granted.
Following
receipt of the inspector’s report, the Department of the Environment wrote to
the solicitors (and to the council) on March 25 1991 seeking further
clarification of the scope of the works forming the basis of their appeal.
After referring to the deletion of all works listed under ‘externally no 16’,
and to the works listed under ‘internally no 16’ as being within the appeal,
the department stated that there was no mention of the works quoted for
buildings ‘Nos 14 and 15’. Accordingly the department asked for written
clarification of ‘exactly what works you wish to be considered in the appeal’.
This request did not result from any doubt about drawings L21B or L22B.
The council’s reply dated April 17 1991 did not include any reference to those
drawings or the works shown on them. The solicitors’ reply dated April 9 1991,
after stating that ‘the works forming the basis of our Appeal are those covered
by the amending letter of 4th September 1989’, went on to clarify that the
internal works affected no 15 but not no 14.
Following this
correspondence the inspector wrote a second report dated May 31 1991 in which he
amended some paragraphs in his first report. His amendments were directed to
dealing with 14 and 15 Charlotte Street and made no relevant change in relation
to no 16. So far as related to no 16, para 4 of this report, including the
sentence referring to drawings L21B and L22B, remained unchanged.
The decision
of the Secretary of State on the appeal was conveyed by letter dated June 24
1991. It was noted that:
certain works
of external alteration which are shown on the application/appeal plans (APP2
drg nos: 21b and 22b) are not now regarded as forming part of the appeal
proposals and that a concurrent planning application, also in respect of
external works, has consequently been withdrawn.
The Secretary
of State agreed with the inspector’s conclusions and accepted his
recommendation. It was noted that:
the appeal
proposals relate only to internal works. He is therefore satisfied that the
visual impact upon the Conservation Area will be minimal and that the character
and appearance of the Conservation Area will be preserved.
In making this
statement the Secretary of State was aware that alterations to the roof valley
were involved, because later in the letter it was stated:
Moreover, the
special interest of the building would also be reduced by the loss of the
original, characteristic valley gutter shape of the roof.
His conclusion
was:
However, the
key element of the scheme as a whole (ie the provision of the lift and
associated internal alterations) remains unacceptable for the reasons outlined
above and accordingly the Secretary of State hereby dismisses your appeal.
Thereafter,
following discussions between the parties, the solicitors issued a writ
indorsed with a statement of claim on July 22 1993, seeking:
A Declaration
that, upon their true construction, the works comprised in the Plaintiff’s
application for listed building consent in respect of 16 Charlotte Street,
Bristol, as more particularly described in Paragraphs 4 to 8 hereof, did not
constitute development within the meaning of Section 55 of the Town and Country
Planning Act 1990 or a Declaration to like effect in such other terms as this
Honourable Court may order.
Section 55 of
the Town and Country Planning Act 1990 (‘the TCPA’) replaces provisions
previously in section 22 of the Town and Country Planning Act 1971, as amended.
Section 55 provides (so far as material):
Meaning of
‘development’ and ‘new development’
55.— (1) Subject to the following provisions of this section, in this
Act, except where the context otherwise requires, ‘development’ means the
carrying out of building, engineering, mining or other operations in, on, over
or under land, or the making of any material change in the use of any buildings
or other land.
(2) The
following operations or uses of land shall not be taken for the purposes of
this Act to involve development of the land —
(a) the
carrying out for the maintenance, improvement or other alteration of any
building of works which —
(i) affect
only the interior of the building, or
(ii) do not
materially affect the external appearance of the building,
and are not
works for making good war damage or works begun after December 5 1968 for the
alteration of a building by providing additional space in it underground;
In considering
the application of section 55 of the TCPA to the facts of this case, I take
first the proposed alterations to the roof of 16 Charlotte Street together with
the internal alterations, and leave for later consideration the proposed
external alterations shown on drawings L21B and L22B. All the internal alterations
would have affected only the interior of the building and therefore by virtue
of section 55(2)(a)(i) would not be ‘development’ requiring planning
permission. I can concentrate, therefore, in the first place on the changes to
the roof of no 16.
As I have
said, all the proposed changes to the roof were between the inner surfaces of
the two roof ridges and below the levels of the ridges. Mr John Hobson for the
solicitors, in his careful and lucid submissions, first submitted that such
changes fell within the words in section 55(2)(a)(i) — ‘affect only the
interior of the building’ — because they were within the ‘envelope’ of no 16,
and he referred to a number of occasions on which in relation to these roof
changes words such as ‘inner’ and ‘internal’ were used. In my judgment, the
roof changes would have altered the exterior surface of the roof and cannot be
treated as affecting only the interior of no 16.
This case
turns on the meaning of section 55(2)(a)(ii) — ‘do not materially affect the
external appearance of the building’. The following points have to be taken
into account in interpreting these words and applying them to the facts:
(1) What must
be affected is ‘the external appearance’, not ‘the exterior’. The use of the
word ‘appearance’ means that it is not sufficient for the external surface of a
building to be affected by the proposed alteration. The alteration must be one
which affects the way in which the exterior of the building is or can be seen
by an observer outside the building.
(2) There was
much argument as to the extent to which the alteration must be capable of being
seen by observers at different points outside the building. Here it was common
ground that the alterations would not have been visible to observers in
Charlotte Street or any neighbouring streets — what Mr Hobson for the
solicitors called ‘normal vantage points’. Mr Robert Thomas for the council
submitted that it would suffice if the change to the exterior was one visible
only from isolated points on higher buildings or from balloons or aircraft
overhead. Mr Hobson submitted that the change to the external appearance must
be visible from a number of normal vantage points, whether in the neighbouring
streets or houses, and that visibility from the air or a few buildings or even
a single building would not suffice to make the change one affecting the
external appearance.
The words of
section 55 have to be interpreted generally, since they may apply to an
infinite range of different buildings, including a second world war
prefabricated home about 8 ft high, houses of two, three or more storeys,
factories, towerblocks of flats and office buildings of one to perhaps a 100
storeys. In my judgment, all roof alterations which can be seen from any vantage
point on the ground or in or on any neighbouring building or buildings would be
capable of affecting the ‘external appearance’ of the building in question. It
is not necessary to consider the position if a roof alteration were visible
only from the air, which is not the position in the present case.
The decision
in Kensington and Chelsea Royal London Borough Council v CG Hotels
(1980) 41 P&CR 40 CA was cited by Mr Hobson as the only authority of any
relevance. In that case the installation of floodlights below ground-floor
level and on the first-floor balconies was held not to affect materially the
external appearance of the building. Reference was made to the floodlights not
being visible from the street. But the court in that case was primarily
considering whether the erection or placing of small lights could or did
‘materially affect’, and the case does not assist in resolving the issues in
this case.
(3) The
external appearance must be ‘materially’ affected. This involves a judgment as
to the degree to which the particular alteration affects the external
appearance. The effect must be more than de minimis (the addition of
spotlights in the Kensington and Chelsea case was either de minimis
or nearly so). I do not derive any real assistance from the substitution of
possible synonyms such as ‘substantial’ which Mr Hobson favoured.
Whether the
effect of an alteration is ‘material’ or not must, in my judgment, depend in
part on the degree of visibility. A change to the
street is much more likely to be ‘material’, than a similar change which can be
seen only from the top of much taller buildings.
(4) One point
much argued before me was whether a different test of ‘materiality’ should be applied
to listed buildings or buildings in a conservation area than to buildings which
are not listed and not in a conservation area. Mr Hobson submitted that in
section 55 of the TCPA ‘development’ is being defined in respect of all kinds
of buildings and therefore the same test must be applied irrespective of
whether the building in question is listed or in a conservation area.
In my
judgment, whether the external appearance of a building is ‘materially
affected’ is likely to depend on both the nature of the building and the nature
of the alteration. In argument I contrasted (1) the fixing of a Coca-Cola sign
to the front of a newsagent’s shop in a busy high street, and (2) the fixing of
a similar sign to the front of an 18th century house such as 16 Charlotte
Street. (1) might not be material, whereas (2) would be likely to be material.
‘Materiality’ must in every case take into account the nature of the particular
building which it is proposed to alter. It is obvious that what is not a
material alteration to the external appearance of a factory, eg a Coca-Cola
factory, may be a material alteration to the external appearance of an
18th-century house whether or not it is listed or in a conservation area.
(5) Mr Hobson
submitted correctly that the effect on the external appearance must be judged
for its materiality in relation to the building as a whole, and not by
reference to a part of the building taken in isolation.
(6) Some
evidence of facts will almost always be relevant when applying section
55(2)(a). The court has to have evidence as to the building to be altered, and
the alterations proposed, with plans, photographs and written and (if
necessary) oral evidence explaining the plans and photographs, and also
evidence as to the extent to which the altered external appearance of the
building would be visible.
(7) Expert
evidence may also assist in drawing to the attention of the court factors which
the experts using their expertise can explain to the court. But it is not the
role of an expert in a case such as this to express opinions as to the
interpretation of statutory provisions. The expert evidence adduced before me
went this far: indeed one town planning witness called by the council went
further and decided that an estoppel pleaded by the solicitors (and abandoned
before me) did not arise. This represented a misuse of expert evidence and
showed a misunderstanding of the role of an expert witness in a case such as
this. I will have more to say about that later.
Proposed
roof alterations
As I have
already described, these involved a flat roof for the lift shaft and a lower
area of flat roof at a level between the lift shaft roof and the valley gutter.
The council
adduced the evidence of two witnesses described as ‘expert witnesses’, Mr
Curtis and Mr Richard Matthews. Both were long-serving employees of the council
(though Mr Curtis was now retired), and were not in any sense independent
experts. Both appeared to regard advocacy for their employer as an integral
part of their role as an expert. Both expressed opinions on statutory
interpretation. Mr Matthews even reached a conclusion on the question of
estoppel. I can give only limited weight to any of their evidence, except in so
far as it is non-controversial.
Mr Matthews (a
chartered town planner employed in the central area development control team in
the council’s planning department) gave evidence, inter alia, as to the
height of the proposed lift shaft roof, based on his analysis of Mr Ackland’s
drawings L18C, L19D and L20D. His conclusion was that part of the lift shaft
roof would have been marginally above the rear roof ridge, and he arrived at
this conclusion by reference to drawing L19D which, he said, showed an
intention on the part of Mr Ackland (on the solicitors’ behalf) to lower the
rear ridge by a material degree. In my judgment, this part of Mr Matthews’
evidence was misconceived. It was inconsistent with Mr Matthews’ own analysis
of drawing L20D, showing the whole of the lift shaft roof below the ridge. It
was also contrary to Mr Ackland’s evidence, which I accept, that the drawings
showed the height of the highest point of the lift shaft roof 2 in below the
ridge, and that in any event it was always his intention to ensure that the
lift shaft roof would be below the ridge, and he could readily have changed the
detailed design if necessary to achieve this.
Mr Curtis’
evidence as to the architectural distinction, history and importance of 16
Charlotte Street and the terraces of which it forms part is for the most part
non-controversial, though Mr Curtis’ enthusiasm sometimes carried him rather
too far. He drew attention to the terms of Circular 8/87 — Historic
Buildings and Conservation Areas Policy and Procedures, the council’s
statement on conservation policies of 1989, the council’s deposit Bristol local
plan and the council’s conservation area enhancement statements of November
1993. He pointed to the importance of the ‘roof-scape’ in Bristol with so large
an inheritance of 18th and early 19th century buildings, including terraced
houses. His conclusions were in stark terms: I quote from the following
paragraphs of his report:
Para 3.11
Here, the effect on the roofing is drastic and eliminates its interior form.
In this case
we are talking about a relatively unregarded valley gutter section and adjacent
roofs, but nonetheless valuable for that.
Para 3.12 The
protrusion of the lift housing would have a gross effect on the scale of the
traditional valley gutter arrangement and the existing internal roof pitches
would be demolished. Properties in this historic quarter would overlook the new
roof profile and vast spread of flat roof from above, and the effect on the
terrace would be a dire one. Original shape, pitch and cladding and scale of
elements would all be drastically altered.
Since Mr
Curtis had indicated that inside surfaces of the roof of no 16 were visible
only from the Berkeley Square offices or from balloons, the second sentence I
have quoted from para 3.12 is, with all respect to Mr Curtis, much exaggerated.
Para 4.2 Here
almost all the original form and cladding would be lost in the valley roof
section and an overscaled sea of flat roof and lift motor housing would replace
the original roof construction and the form of the roof as a whole would of
course be damaged if this restructuring were to be allowed.
Para 4.7 In
this case I am stressing the need to keep the internal roof form even though it
may not be seen from the street, in order that the integrity of this otherwise
virtually unaltered historic building be maintained.
Mr Curtis’ evidence
amounted to an eloquent plea that this historic building should not be altered
by reason of its architectural distinction and of the national and local
policies applying to listed buildings and conservation areas.
Mr Matthews’
evidence (apart from what I have already referred to) followed somewhat the
same lines as Mr Curtis’. It can be summarised in part of a sentence from his
para (13):
… I am
satisfied for planning purposes that it is sufficient for there to be a
material alteration to the outside of the building and that planning permission
would be required for such works where there is no orthodox or everyday view of
the works.
Mr Matthews
apparently did not appreciate that in applying section 55 of the TCPA the basic
question is a question of law, or that the words used in section 55 are
‘external appearance’ with which the phrase ‘the outside of the building’ is
not synonymous. Mr Matthews also produced photographs taken from the Berkeley
Square offices to which I refer below.
Turning to the
solicitors’ witnesses, Mr Ackland’s first statement was confined to factual
evidence as to the planning and LBC history. His third statement was directed
to the contention that the alterations shown on drawings L21B and L22B were
included in the works the subject of the appeal. His second statement was
described as an expert report, but was primarily concerned with answering Mr
Matthews’ analysis of Mr Ackland’s drawings, an analysis which I have already
rejected.
The solicitors
also called as an expert Mr Ian Mellor, a qualified town planner and a partner
in Barton Willmore group. Mr
Mellor was
nor the works on drawings L21B and L22B would have materially affected the
external appearance of no 16. Like the other expert witnesses he did not fully
appreciate the distinction between the matters on which he could speak from his
own expertise, and questions of law as to the interpretation and application of
section 55.
Mr Mellor
independently analysed the drawings to assess the height of the proposed lift
shaft roof. He concluded, in para 5.12 and 5.13, that this roof would have been
0.05 m (2 in) below the rear ridge and that:
the proposed
construction would be below the two ridge lines and both parapets ie totally
enclosed by existing structures which are higher than the proposed lift head.
He also
concluded that the roof changes would be only an ‘internal’ alteration within
section 55(2)(a)(i), a conclusion which I have rejected as inconsistent with
the interpretation of that section.
Overall I
derived little assistance from any of the expert evidence. The history produced
by Mr Curtis and the documents to which he referred could readily have been
agreed.
My conclusions
as to the roof works, based on the interpretation of section 55 already set
out, are as follows:
(1) These
works would have affected the external appearance of 16 Charlotte Street. I
leave on one side the possibility of appearance to persons in balloon baskets
(or aircraft) who regularly traverse Bristol and about whom I was entertained
with much evidence and submissions. As Mr Matthews’ photographs taken from the
upper floor of the Berkeley Square office building — and in reverse direction
from the roof of no 16 — show, part of the flat roof of the lift shaft and part
of the larger area of flat roof would have been visible to those who work in
the top two floors of that office building. In my judgment, these works would
have affected the external appearance of no 16 at least to the extent that they
would have been thus visible.
(2) Whether
the external appearance would have been materially affected is a matter
of degree on which I have to form a judgment, taking into account all the
evidence placed before me. I have reached the firm conclusion, on which I have
really no doubt, that the external appearance of no 16 would not have been
materially affected. In reaching this conclusion I have had particular regard
to the following:
(a) This is a
listed building, in a conservation area, and of considerable distinction, and
in determining ‘materiality’ I must have regard to the fact that alterations to
the exterior of no 16 which would be immaterial on other buildings may be
material on such a listed building.
(b) The roof
works would affect only the valley between the ridges. They would superimpose
two fairly substantial areas of flat roof in place of the slopes running down
to the valley gutter.
(c) The roof
works would not be visible from any street or from any window of any building
nearby, except from the top two floors of the Berkeley Square office building
and from the air.
(d) Apart from
these high and (in the case of the view from the air) unusual vantage points,
the roof works would be entirely invisible to anyone looking at no 16.
(e) Even from
the Berkeley Square office building, the degree to which the external
appearance of no 16 would be affected would be very small, though perhaps not
minimal.
External
works on drawings L21B and L22B
I have already
held that: these proposed works did not go forward on the appeal to the
Secretary of State; were not considered by the inspector; were not considered
by the Secretary of State; and for the purposes of section 27 of the PLBCA were
not works in relation to which the Secretary of State refused LBC.
For present
purposes, however, I assume that these proposed works did form part of the
works considered by the Secretary of State. Most of the works on drawings L21B
and L22B were minor renovations which clearly were not development and did not
require planning permission. The arguments before me have revolved round the
replacement of the present sash windows with victorian-style large glass panes
by sash windows with georgian-style smaller panes and georgian glazing bars,
and a similar replacement of the metal dormer windows. This, it is contended by
the council, amounted to development within section 55 of the TCPA. This
contention appears not to have been raised by the council until shortly before
this action came on for trial before Waller J on April 27 1995 resulting in an
adjournment of the trial, and further pleading, discovery and statements of
witnesses. It is, in hindsight, unfortunate that the existing issue as to the roof
works was not then determined.
Mr Curtis did
not deal with the window replacement in his report. Mr Matthews dealt with this
work in his third report. Having reached the erroneous conclusion that this
work was considered by the inspector and the Secretary of State, Mr Matthews
referred to the window replacement on the front elevation as ‘significant
external alterations’ and concluded that:
On any view
these alterations represent a material alteration to the external appearance of
the building and thus require planning permission.
He then
referred to an allegation that this had been conceded at the hearing on April
27 1995 by counsel then appearing for the solicitors (not Mr Hobson), an
allegation which was not pursued by Mr Thomas for the council, there having
been adduced before me no evidence of any such concession, whether a transcript
of the hearing or any other relevant evidence.
For the
solicitors Mr Ackland produced relevant evidence about the window replacement
in his third report. His evidence was that:
(a) the
addition of such glazing bars is an improvement which does not materially
affect the external appearance in the context of a georgian street, where most
of the adjoining buildings either have their original windows or have been so
improved;
(b) the
council would not have required an application for planning permission to be
made for the purpose of carrying out an improvement which the council regarded
as necessary and desirable (Mr Ackland gave recent instances in which the
council had not required such an application for a similar improvement).
(b) is in my
view irrelevant. The question before the court is not whether this particular
council would have required an application, but whether such a window
replacement would have amounted in law to development within section 55 of the
TCPA. (a) is also irrelevant because Mr Ackland did not appreciate that the
conclusion he was reaching was a conclusion of law.
Mr Mellor
dealt with the window replacement work in his first and second reports and reached
a similar conclusion that this was not development within section 55.
Mr Ackland and
Mr Mellor, in their oral evidence, indicated that it was possible that
replacement going the other way, ie the insertion of large victorian panes,
instead of georgian glazing bars and small panes in keeping with the design of
no 16, might have materially affected the exterior appearance. They were
further cross-examined on the basis that if replacement going one way amounted
to development, then surely replacement going the other way must also be
development, a proposition which neither accepted.
In my
judgment, this is an issue which is even clearer than the issue as to the roof
works:
(1) No 16 is a
georgian building of architectural distinction and with the other attributes
already set out.
(2) At some
earlier stage victorian-style large panes have been inserted in the sash
windows on the front elevation. The works would have restored the original
georgian appearance.
(3) If this
was not a listed building and in a conservation area, it would be plain that
the replacement of the windows, either way, would not be development within
section 55.
(4) Given that
no 16 is a listed building and in a conservation area, a window replacement
which merely involves restoration of the georgian glazing bars and small panes
is similarly not development because it would not materially affect the
external appearance.
(5) Whether in
such a building the removal of georgian windows
materially affect the external appearance is not a question which I have to
decide. It would be a matter of degree in each case. Logically, such a change
could be regarded as material for the purposes of section 55, because of the
damage it might do to the appearance of the building, even though a change the
other way, restoring the original design, would not be material because of not
involving any such damage.
I have tried
in this judgment to deal with all the main points raised by Mr Hobson and Mr
Thomas in their submissions, but I have not lengthened it by dealing with every
point they raised, including references to other sections of the PLBCA, and to
the general development order, which, in my view, did not carry the submissions
any further.
Declaration
It follows
that I will make the declaration claimed by the solicitors, unless either party
wishes to make any submissions about the form of the declaration.
Expert
evidence
It is a matter
of concern that in 1995 reports were still being produced by expert witnesses
which fly in the face of the long-established requirements as to the duties of
expert witnesses. These were conveniently summarised by Cresswell J in National
Justice Compania Naviera SA v Prudential Assurance Co Ltd (‘The Ikarian
Reefer’) [1993] 2 Lloyd’s Rep 68* at pp81–82. Though there was a successful
appeal against his judgment to the Court of Appeal, [1995] 1 Lloyd’s Rep 455,
the Court of Appeal expressed no dissent from his summary of the duties of
expert witnesses, which is as follows:
*Editor’s
note: Also reported at [1993] 2 EGLR 183.
The duties and responsibilities of expert
witnesses in civil cases include the following:
1. Expert
evidence presented to the Court should be, and should be seen to be, the
independent product of the expert uninfluenced as to form or content by the
exigencies of litigation (Whitehouse v Jordan, [1981] 1 WLR 246
at p256, per Lord Wilberforce).
2. An expert
witness should provide independent assistance to the Court by way of objective
unbiased opinion in relation to matters within his expertise (see Polivitte
Ltd v Commercial Union Assurance Co Plc, [1987] 1 Lloyd’s Rep 379 at
p386 per Mr Justice Garland and Re J, [1990] FCR 193 per Mr Justice
Cazalet). An expert witness in the High Court should never assume the role of
an advocate.
3. An expert
witness should state the facts or assumption upon which his opinion is based.
He should not omit to consider material facts which could detract from his
concluded opinion (Re J sup).
4. An expert
witness should make it clear when a particular question or issue falls outside
his expertise.
5. If an
expert’s opinion is not properly researched because he considers that
insufficient data is available, then this must be stated with an indication
that the opinion is no more than a provisional one (Re J sup). In cases
where an expert witness who has prepared a report could not assert that the
report contained the truth, the whole truth and nothing but the truth without
some qualification, that qualification should be stated in the report (Derby
& Co Ltd and Others v Weldon and Others, The Times, Nov 9, 1990
per Lord Justice Staughton).
6. If, after
exchange of reports, an expert witness changes his view on a material matter
having read the other side’s expert’s report or for any other reason, such
change of view should be communicated (through legal representatives) to the
other side without delay and when appropriate to the Court.
7. Where
expert evidence refers to photographs, plans, calculations, analyses,
measurements, survey reports or other similar documents, these must be provided
to the opposite party at the same time as the exchange of reports (see 15.5 of
the Guide to Commercial Court Practice).
Though this
summary was given in a commercial court action, it applies to all legal
proceedings.
It is
unfortunate that in the current 1995 edition of the Supreme Court Practice (the
White Book) there is no reference to The Ikarian Reefer, for example, in
the notes to the relevant part of Ord 38, r35 to 44 and no reference to any of
the principles or guidance relating to the preparation of experts’ reports. The
Ikarian Reefer is mentioned only in note 104/13/1 on p1569 in relation to
Ord 104, r13 concerning experts in patent and other intellectual property
proceedings.
My judicial
experience in the High Court is that of a deputy judge, and therefore less
frequent than the experience of a full-time High Court judge. I have found,
when sitting as a deputy judge, little appreciation on the part of litigators,
advocates and expert witnesses of these elementary requirements governing the
production of expert evidence.
In the present
case, as I have indicated,
(1) Some of
the expert witnesses were not independent, being employees or exemployees of
the council.
(2) Some of
the expert witnesses apparently thought that it was an essential part of their
function as experts to act as supplementary advocates for their clients, the
council.
(3) Each of
the expert witnesses, who were architects or town planners, took it upon
himself to reach conclusions as to the interpretation of the statutory
provisions, a matter on which expert opinion from a non-lawyer is neither
admissible nor helpful.
I hope that in
the next Supplement to the White Book, or by some other means, it will be
possible to bring to the attention of the legal professions the simple
requirements to be met by expert witnesses as summarised in The Ikarian
Reefer.