Garden of former rectory bounding grounds of 14th-century church – Unsuccessful appeal against refusal of consent to alterations of boundary wall and other works affecting garden – Owner executing works differing in some respects from works described in initial application – Whether inspector entitled to determine appeal on basis of works actually done
The appellant owned a house and garden, Normanton Grange at Normanton le Heath in Leicestershire, a Grade II listed building which was a former rectory built in the mid-19th century. It was common ground that the 1978 listing extended to a stone wall separating the garden from the grounds of the adjacent 14th-century Church of the Holy Trinity. In 1995 the owner applied unsuccessfully for listed building consent and, so far as necessary, planning permission for the execution of various works (the proposed works) including alterations to the wall, the construction of new entrance gates and the building of a new wall to shield the driveway from the rest of the garden.
Following an appeal to the Secretary of State, the inspector found that the owner had built the new wall and had replaced the boundary wall with one made of brick. Both walls incorporated gates. The work actually done differed from the proposed work in certain respects, notably the use in both walls of brick instead of stone and the incorporation into the boundary wall of a plinth, a post box, a pair of lanterns and a flight of steps. Having assumed that the owner wished to retain the wall as built, the inspector proceeded, as declared in the decision letter, to determine the appeal on the basis of the actual works. The letter went on to find that material harm had been caused to the setting of both the church and Normanton Grange, thus conflicting with national and local policy. The owner, relying on Wheatcroft Ltd v Secretary of State for the Environment (1982) 43 P&CR 233, challenged the refusal primarily on the grounds that the inspector had: (i) misinterpreted the owners wishes; (ii) had no power to determine the appeal on any basis other than the proposed works.
Held The appeal was dismissed.
1. The owner’s first contention “was manifestly lacking in merit”. All the arguments at the inquiry were addressed to the actual works, as was the evidence of the owner’s architect.
2. It was clear from Wheatcroft (supra) that determination could be made on the basis of the actual works provided that those did not differ in substance from the proposed works. In deciding whether the difference was substantial, the primary consideration was whether an appeal on an actual works basis would deprive interested parties of consultation and objection opportunities which they would have had if the original application had been in terms of the actual works. The differences in the present case went to matters of detail. Significantly, the one objection received by the council was directed “root and branch” (see per Forbes J at p242) to the proposal as a whole.
Clive Lewis (instructed by A Banks & Co, London agents for M&S Solicitors, of Swepstone) appeared for the appellant; Timothy Mould (instructed by the Treasury Solicitor) appeared for the respondent, the Secretary of State for the Envirionment; the second respondent, North West Leicestershire District Council did not appear and were not represented.
