Construction — Statutory duty — Duty to “enhance or preserve” conservation area — Outline planning permission sought for new building — Planning authority deeming proposal detrimental to conservation area — Contention that development should bring positive enhancement — Secretary of State contending for wider meaning that development should not adversely affect area — House of Lords deciding in favour of Secretary of State’s construction on appeal by planning authority
Outline planning permission was applied for to build a new vicarage within the curtilage of the existing vicarage in Cartmel, Cumbria. The Cartmel conservation area includes the whole of the village. South Lakeland District Council refused permission on the ground, inter alia, that the “proposal would be seriously detrimental to the history, architecture and visual character” of the conservation area. In an appeal to the Secretary of State by the parsonage board, the inspector allowed the appeal and granted planning permission subject to conditions on the ground that “providing the proposed house did not cause harm” to the character of the conservation area, it could be accommodated without damaging consequences to the village’s appearance. He also stated that while there had been no significant new building in Cartmel for over 100 years “that is not a reason to prevent development now, if no harm would result.” The planning authority’s application to quash that decision was allowed at first instance but the Secretary of State successfully appealed to the Court of Appeal [1991] 2 PLR 97. The local authority took the matter to the House of Lords. Under section 277(1) of the Town and Country Planning Act 1971, local planning authorities had a duty to determine which parts of their areas were of special interest, the character or appearance of which it was desirable to preserve or enhance, and to designate those areas as conservation areas.
Section 277(8) provides that where an area is designated a conservation area, special attention should be paid to the “desirability of preserving or enhancing its character…”. Those provisions have been replaced — but to substantially the same effect — by the Planning (Listed Buildings and Conservation Areas) Act 1990.
While there was no dispute that the intention of section 277(8) was that proposed development in a conservation area was to give a high priority to the objective of preserving or enhancing the character or appearance of the area, the issue raised in the appeal was as to the scope of the objective itself: ie (a) in considering the desirability of preserving or enhancing the character or appearance of a conservation area, whether there was a barrier against any building development which did not either enhance or positively preserve the area’s character or appearance, as the local authority contended; or (b) whether the only development to be inhibited, as the Secretary of State submitted, was development that in some degree adversely affected the area’s character or appearance.
Held The appeal was dismissed.
1. Read fairly and as a whole, the inspector’s reasoning was perfectly clear. Excessive legalistic textual criticism of planning decision letters was to be strongly discouraged by the courts.
2. The Court of Appeal had stated that the statute in terms did not require that a development had to perform a preserving or enhancing function. Such a requirement would be a stringent one which many an inoffensive proposal would not be able to satisfy. Character or appearance could be said to be “preserved” when they were not harmed. Cases could be envisaged where development itself would make a positive contribution to the preservation of character or appearance, but the new vicarage was never advocated on that basis. “The statutorily desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed, that is to say preserved” per Mann LJ. Their lordships had no hesitation in agreeing with that construction of section 277(8) which gave effect to the ordinary meaning of statutory language while not imputing to the legislature a rigidity of planning policy.
3. Their lordships took judicial notice of the extensive areas, both urban and rural, which had been designated conservation areas. It was entirely right that in any such area there should be much stricter control over development than elsewhere with the purpose of preserving or, where possible, enhancing the qualities which underlay the area’s designation under section 277. But where a particular development would not have any adverse effect there could be no possible planning reason for refusing to allow it. All building development involved change and if the section were intended to inhibit any building development in a conservation area which was not a reinstatement on the one hand, or a positive enhancement on the other, it would have been expressed in very different language from that used.
Nigel Macleod QC and Anne Williams (instructed by Winckworth & Pemberton, as agents for the solicitor to the council) appeared for the appellants, South Lakeside District Council; and John Laws and Ian Ashford-Thom (instructed by the Treasury Solicitor) appeared for the respondent, the Secretary of State for the Environment.
