Proposal to build car park beneath Kensington garden square – Inspector granting permission on finding that appearance would be largely unchanged – Whether inspector had failed to consider loss of character and integrity of garden with resulting threat to character of wider conservation area – Appeal by council dismissed
On March 29 1996 the second respondent sought planning permission and listed building consent for development for the most part under land separating Earls Terrace from Kensington High Street, London W8, in order to construct an underground car park with parking for 68 cars with access from Edwardes Square. The terrace, a listed building since 1961 and falling within the local conservation area, consisted of 25 residential properties shielded from the High Street by a heavily planted rectangular area (the garden), which was classified as a garden square for the purpose of the London Squares Preservation Act 1931. The local authority refused the two applications and the second respondent appealed. After written representations the inspector appointed by the first respondent allowed the appeal and granted planning permission. The local authority appealed on the ground, inter alia, that the inspector, in allowing the garden to serve as a roof of the proposed car park, had failed to take into account, as material considerations: (i) that regardless of the restoration work proposed the garden would lose its character and integrity as a garden square; (ii) the danger that such loss would pose to the conservation area as a whole, being an area characterised by a pattern of similar garden squares.
Held The appeal was dismissed.
1. It was not disputed that the inspector had purported to follow the local plan in so far as it “resisted” development in, over or under garden squares in order to preserve or enhance their character or appearance. He had furthermore correctly identified, as a main issue, the question whether the proposals would protect and enhance the special character of the garden. Since the major consideration, the appearance of the garden after the development, had been fully considered in the body of the decision letter and found to be unobjectionable it could be inferred that the inspector had addressed the considerations raised by the applicant, including the fact that the existence of the car park would become a matter of local knowledge. In such circumstances the inspector was not required to mention every material consideration: see Bolton Metropolitan District Council v Secretary of State for the Environment [1955] 3 PLR 37 as recently applied by the Court of Appeal in MJT Securities Ltd v Secretary of State for the Environment [1997] PLSCS 236; [1997] EGCS 130.
2. Given the conclusion reached about the garden under consideration it was not necessary for the inspector to consider whether a threat was posed to the wider area.
Charles Mynors (instructed by the solicitor to the Kensington and Chelsea Royal London Borough Council) appeared for the appellants; David Elvin (instructed by the Treasury Solicitor) appeared for the Secretary of State of Environment; Nathalie Lieven (instructed by Simmons & Simmons) appeared for the second respondent, Earls Terrace Properties Ltd.
