Statutory duty under section 277(8) of 1971 Act — Proposed development neutral in affecting conservation area — Whether ‘preservation’ has narrow meaning apt to include only development bringing positive contribution or wider meaning of bringing no harm — Wider meaning preferred
By a decision
of July 13 1989 an inspector appointed by the appellant, the Secretary of State
for the Environment, allowed an appeal on written representations of the second
respondents, Carlisle Diocesan Parsonages Board, and granted outline planning
permission for the erection of a new vicarage within the curtilage of the
existing vicarage at Priest Lane, Cartmel, Cumbria. The application of the
first respondents, South Lakeland District Council, to quash the Secretary of
State’s decision was allowed by Mr Lionel
1990) on the ground that the inspector had not had proper regard to the
statutory duty imposed on him by section 277(8) of the Town and Country Planning
Act 1971 (section 72(1) of the Planning (Listed Buildings and Conservation
Areas) Act 1990). The inspector had found that the proposed development did not
enhance the conservation area; the deputy judge, in giving the word
‘preservation’ a narrow meaning in that the proposed development did not bring
a positive contribution to the area, decided that the statutory duty under
section 277(8) had therefore not been discharged. The Secretary of State
appealed.
The inspector
found that neither the character nor the appearance of the conservation area
would be harmed by the proposed vicarage, and the character of the area would
remain preserved notwithstanding the development. In the absence of any
authority binding on the court as to the meaning of ‘preserving’ in section
277(8), a wide meaning should be given; the character or appearance of an area
can properly be said to be preserved by development which would bring no harm:
see p 101. The legislature did not intend the word ‘preserve’ to have a narrow
meaning as referring to development intended to have a positive contribution to
preservation and to exclude development of a neutral character: see pp 102 and
104. The inspector had identified his statutory duty which he discharged. The
present case was not within the sixth principle enunciated by Glidewell LJ in Bath
Society v Secretary of State for the Environment [1991] 2 PLR 51:
see p 106.
to in the judgments
Bath
Society v Secretary of State for the Environment
[1991] 2 PLR 51, CA
Harrow
London Borough Council v Secretary of State for
the Environment (1989) 60 P&CR 525; [1990] 2 PLR 62
Steinberg v Secretary of State for the Environment (1989) 58 P&CR
453; [1989] 2 PLR 9; [1989] JPL 258
Appeal against
decision of Mr Lionel Read QC
This was an
appeal against a decision of Mr Lionel Read QC (sitting as a deputy judge of
the Queen’s Bench Division — February 26 1990) who had allowed an application
of the first respondents, South Lakeland District Council, to quash the
decision of the appellant, the Secretary of State for the Environment, who had
allowed an appeal by his inspector against a decision of the first respondents
to refuse an application for planning permission submitted by the second
respondents, Carlisle Diocesan Parsonages Board.
Ian Ashford Thom (instructed by the Treasury Solicitor) appeared for the
appellant, the Secretary of State for the Environment.
QC and Jonathan Karas (instructed by Sherwood & Co) appeared for the first
respondents, South Lakeside District Council.
respondents, Carlisle Diocesan Parsonages Board, did not appear and were not
represented.
following judgments were delivered.
MANN LJ: This is an appeal from a decision of Mr Lionel Read QC sitting as a
deputy judge of the Queen’s Bench Division on February 26 1990. On that day he
allowed an application by South Lakeland District Council under section 245 of
the Town and Country Planning Act 1971 [section 288 of the Town and Country
Planning Act 1990] and quashed a decision by an inspector appointed by the
Secretary of State for the Environment dated July 13 1989. The basis of the
learned deputy judge’s decision was that the inspector had made an error in law
in that he had not paid proper regard to the requirements of section 277(8) of
the Act of 1971.
The Act of
1971 has now been replaced by the consolidating legislation of 1990 and in
particular by the Town and Country Planning Act 1990. The new provisions are
not in substance different from the old, and for convenience I shall refer to
the provisions in force at the time of the events giving rise to this appeal.
The events
commence on July 20 1988 when the South Lakeland District Council received an
application for planning permission by the Carlisle Diocesan Parsonages Board.
It was an application for outline permission to erect a new vicarage within the
curtilage of the existing vicarage at Priest Lane, Cartmel, Cumbria. The site
is within the Cartmel Conservation Area which was designated in 1969. Cartmel
is a village which is rich with archaeological, architectural, aesthetic and
historic character. On September 12 1988 the application was rejected for
reasons that:
The proposal
would be seriously detrimental to the history, architecture and visual
character of this part of the Cartmel Conservation Area and would be contrary
to policies C5 and C23 of the Cartmel and Furness Local Plan and C14/C15 of the
Cumbria and Lake District Joint Structure Plan, First Alteration.
On March 9
1989 the Parsonages Board appealed to the Secretary of State against the
refusal of permission. The Secretary of State appointed an inspector (Mr N A C
Holt RIBA) to determine the appeal. The appeal was allowed on July 13 1989 upon
a consideration of written representations and after a site inspection. On
August 21 1989 the district council applied for the decision to be quashed. The
application was successful and hence the present appeal. The Parsonages Board,
although formally the second respondents, have not appeared either in this
court or below.
The argument
before this court focused, as it did in the court below, upon section 277(8) of
the Act of 1971. It provided, so far as is material:
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, . . .
The
determination of an appeal is an exercise of power under the Act (see section
30(3)). There is no dispute but that the inspector did appreciate his need to
pay special attention to the desirability of preserving or enhancing the
character or appearance of the Cartmel conservation area. He expressed his
appreciation in para 2 of the decision letter in these words:
I am of the
opinion that the main issues are firstly, what effect the proposal would have
on the character and appearance of the Cartmel Conservation Area, having regard
to the desirability of preserving or enhancing that character and secondly, . .
.
The argument
accepted by the learned deputy judge was that the inspector had failed to
discharge the duty which he had recognised in that he had not addressed the question
of whether the proposed new vicarage would, or would not, preserve the
character or appearance of the Cartmel conservation area. The material
paragraphs of the decision letter are these:
6. The
Vicarage in my opinion should be regarded as being within the confines of the
village. Whilst the proposed development would not fall within the generally
accepted definition of infilling, I do not consider that it would be contrary
to the important objectives of the settlement policy, designed to protect the countryside
from unnecessary development. Providing that the proposed house did not cause
harm to the character of the
As regards Policy C5, in my opinion the local authority are fully justified in
protecting the open areas within the village, which make a significant
contribution to its character. I do not consider however that the mature
domestic curtilage of the Vicarage, which is to a large extent screened from
public vantage points by trees and shrubs along the east and west boundaries,
and by the stone wall along the frontage to Priest Lane, should be seen in the
same light as the nearby open pasture land.
7. I would
accept that the proposed house would be visible from Priest Lane, over the
existing wall in front of the site and also when approaching from the east. I
consider however that because of the wall and the existing trees and shrubs on
the site, that would be retained, the impact of a new house would not be great.
In my opinion
the effect on the character and appearance of this part of the Conservation
Area would be small. I am also satisfied that the grounds of the Vicarage are
sufficiently large to accommodate a new house without serious detriment to the
setting of the existing building and without affecting the larger trees within
the garden that make a particularly significant contribution to the area.
8. I very
much appreciate the concern of the Council and the local people, to preserve
and enhance the special quality of Cartmel, and I would agree that they should
be strongly supported. I am of the opinion however that providing great care
was exercised in the detailed design of the proposed house, having regard to
the precise siting, the materials, the massing, the roof pitch, and the details
of features such as the eaves and windows, the proposed Vicarage could be
accommodated without damaging consequences to the appearance of the village.
Whilst there might have been no new building of significance in this part of
Cartmel for over 100 years, that is not a reason to prevent development now, if
no harm would result.
9. I have had
regard to the potential precedent that could be established were this appeal
allowed. In the context of the village, I am satisfied that the physical
characteristics of the site make this a special case and I do not consider that
a permission for your client’s proposal would make it difficult for the Council
to refuse applications elsewhere that might have more damaging consequences to
the character of what is undoubtedly a most important conservation area.
These
paragraphs were examined before us in order to show that the inspector either
had or had not performed his duty under section 277(8). How, then, should he
have approached the performance of his duty?
There was no agreement upon the answer to this question, which is a
question of general importance.
The debate was
to whether, in paying special attention to the desirability of preserving or
enhancing the character or appearance of a conservation area, the
decision-taker is bound to determine whether the proposed development would
make a positive contribution to preservation and enhancement. If he is, then a
determination that neither character nor appearance is harmed is an insufficient
discharge of the duty, for the decision-taker will not have answered the
correct question. I should say that whatever be the correct question, its
answer is not necessarily decisive of a development proposal, for there may in
particular circumstances be other material considerations which are favourable
to, or adverse to, a proposal which fails or passes the conservation test.
However, in practice the conservation consideration will be a weighty factor in
the mind of a decision-taker.
The learned
deputy judge answered the question in accordance with his own previous decision
in Steinberg v Secretary of State for the Environment [1989] 2
PLR 9. In that case 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 ‘harm’ the
character of the conservation area — and the need to pay special 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.
In Harrow
London Borough Council v Secretary of State for the Environment
(1989) 60 P&CR 525 Sir Graham Eyre QC, sitting as a deputy judge of the
Queen’s Bench Division, seems to have thought in different terms. He said (at p
529)*:
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 a conservation area. It imposes a duty to pay special
attention to the desirability of preservation or enhancement.
*Editor’s
note: Also reported at [1990] 2 PLR 62 at p 66C.
In seeking to
resolve the issue I start with the obvious. First, that which is desirable is
the preservation or enhancement of the character or appearance of the
conservation area. Second, the statute does not in terms require that a
development must perform a preserving or enhancing function. Such a requirement
would have been a stringent one which many an inoffensive proposal would have
been inherently incapable of satisfying. I turn to the words. Neither
‘preserving’ nor ‘enhancing’ is used in any meaning other than its ordinary
English meaning. The court is not here concerned with enhancement, but the
ordinary meaning of ‘preserve’ as a transitive verb is ‘to keep safe from harm
or injury; to keep in safety, save, take care of, guard’ (Oxford English
Dictionary (2nd ed) vol XII, p 404). In my judgment, character or
appearance can be said to be preserved where they are not harmed. Cases may be
envisaged where development would itself make a positive contribution to
preservation of character or appearance. A work of reinstatement might be such.
The Parsonage Board never advocated the new vicarage on that basis. It was not
a basis which the inspector was invited to address but, importantly, he did not
have to address it because the statute does not require him so to do.
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. Development of the latter type was said by Mr John Laws, for the
Secretary of State, to be of a neutral character and therefore unobjectionable
by reference to the conservation consideration. It was, said Mr Laws,
development to be found in the unassigned middle ground between the poles
occupied by development which of itself preserved character and development
which harmed character. Where development is neither positive nor neutral in
regard to preservation it must inevitably be development which would to some
degree harm character or appearance, and the decision-taker will have to consider
whether to grant permission notwithstanding that harm. If he decided to do so,
he would have to have a reason for setting aside the enjoined conservation
consideration. Such a reason might be, for example, that the
interest other than that in conservation can take place.
It follows
from what I have said that I respectfully disagree with the view of the learned
deputy judge expressed in Steinberg and which he applied in the present
case.
Our attention
was drawn to the recent decision of another constitution of this court on
February 6 1991 in Bath Society v Secretary of State for the
Environment and Hammercrest Developments Ltd*. The leading judgment was
given by Glidewell LJ with whom Stocker LJ and Sir Denys Buckley agreed. In
that case the Secretary of State had accepted his inspector’s recommendation
that an appeal against a decision refusing permission for a development in a
conservation area should be allowed. The Secretary of State’s decision was
challenged on the ground that he had failed to comply with the duty imposed on
him under section 277(8). The Secretary of State had accepted the inspector’s
conclusions so that in effect the challenge was to the inspector’s reasoning.
The challenge failed before Hutchison J but succeeded in this court.
*Editor’s
note: Reported at p 51 ante.
In that case
the inspector concluded that the impact of the proposed development upon a view
within the conservation area ‘would not be unacceptably great’. There was
implicit in that conclusion a finding that there would be harm. The inspector
had not found a neutral position, so that the court was not concerned with such
a position. Having implicitly found that there would be harm, the inspector
should have addressed the question of whether there was a reason for setting
aside the enjoined conservation consideration. This he did not do, and his
failure was the basis of Glidewell LJ’s judgment. In the course of his
judgment, Glidewell LJ gave guidance upon the approach which should be adopted
when an application is made for permission to develop in a conservation area
and at p 25 of the handed-down judgment†
he said:
If . . . 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.
† Editor’s
note: Reported at p 65C ante.
Mr Nigel
Macleod QC, for the first respondent, relied upon this passage as showing that
a proposal must have a preservative function before it satisfies the
conservation consideration. I do not think that the passage sustains this
proposition. The inevitability of harm cannot have been supposed by Glidewell
LJ to be a consequence which peculiarly follows an absence of positive
contribution, for it follows also where the development is not neutral. Mr
Macleod’s approach would have Glidewell LJ guilty of an offence against logic
by propounding a non sequitur. Mr Macleod also drew our attention to a
passage at p 28 of the handed-down judgment§
where, in dealing with a contention on behalf of the Secretary of State,
Glidewell LJ said:
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 is 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.
§ Editor’s
note: Reported at p 66D ante.
I also, and
with respect, think that an absence of harm affords no basis for concluding
that there would be a positive contribution to conservation. This is, however,
beside the point in the present case.
I have dealt
with the Bath case at some length because it is a recent decision
of this court upon which reliance was placed. However, I do not find in it
anything inconsistent with what I have said in this judgment.
I turn to
whether the inspector in the instant case did properly do his duty. The case
before him was one where neither positive preservation nor enhancement was
asserted. The inspector looked to harm. He looked for the neutral position.
In examining
how he expressed the performance of his task in the paragraphs which I have
quoted, it is to be remembered that the examiner is considering a letter
written for an informed audience and which is not to be construed as if it were
a contract or an enactment. In my judgment, it can fairly be said that the
inspector found that neither the character nor the appearance of the Cartmel
conservation area would be harmed by the new vicarage and that its character
and appearance would remain preserved notwithstanding the development. The
important paragraphs are those numbered 7 and 8. In para 7 I draw attention to
‘character and appearance’ and ‘would be small’. In para 8 I draw attention to
the opening sentence and to ‘without damaging consequences’. The word ‘if’ in
the final sentence can sensibly be read only as ‘if as here’. I confess to at
one time feeling anxiety about the phrase ‘more damaging’ in para 9, which
seems to suppose that the proposal would have damaging consequences. I am now
persuaded that to make that supposition is to make nonsense of what has gone
before. That should not be done. All is sense if the word ‘more’ is ignored. I
suspect that the word, which I have found in many decision letters, is
incantatory, and is to ward off accusations that a dangerous precedent is being
established.
For the
reasons which I have given, I would allow this appeal and set aside the order
of Mr Lionel Read QC.
SIR
CHRISTOPHER SLADE: I gratefully adopt Mann LJ’s
statement of the facts of this case and I agree with his conclusion.
Para 15 of
Planning Policy Guidance Note 1 — General Policy and Principles issued
by the Department of the Environment (‘PPG1’) states:
15 . . . 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, . . .
In Bath
Society v Secretary of State for the Environment and Hammercrest
Developments Ltd Glidewell LJ, with whose judgment Stocker LJ and Sir Denys
Buckley agreed, helpfully stated six principles which should govern the
approach to an application for planning permission for development in a
conservation area, having regard to provisions both of section 277(8) of the
Town and Country Planning Act 1971 and of PPG1. After setting out five principles,
with which I am in entire agreement, Glidewell LJ stated*:
(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 only be
permitted 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.
*Editor’s
note: Reported at p 65C ante.
This sixth
principle is, it seems to me, with respect, no less entirely correctly stated,
provided only that the word ‘preserve’ is there intended and read in a sense
corresponding with the word ‘preserving’ in section 277(8). Perhaps the greater
part of the argument before this court has, however, centred on the question
whether the word preserving in section 277(8) is apt to include only
development which will make a positive contribution to the character or
appearance of the conservation area in question (the narrower sense) or is apt
to include, in addition, development which, while making no such positive
contribution, will do no harm to such character or appearance (the wider
sense). This was a question which this court did not have to decide in the Bath
Society case. Glidewell LJ touched on it in the two sentences quoted by
Mann LJ in his judgment, where he appears to have inclined to favour the
narrower construction of the word ‘preserving’ adopted by Mr Lionel Read QC in Steinberg
v Secretary of State for the Environment [1989] 2 PLR 9. In that case
the deputy judge had said (at p 12G):
The concept
of avoiding harm is essentially negative. The underlying purpose of section
277(8) seems to me to be essentially positive.
The word
‘preservation’ in section 277(8) is intended to include only positive
preservation.
Glidewell LJ,
however, did not decide the point and his provisional view was only tentatively
expressed in the passing comment at p 28 of his judgment*. I venture to think
that if he had had the benefit of full argument on the point such as we have
had in this court, it might well have been somewhat differently expressed. This
inference is reinforced by the consideration that if in using the word
‘preserve’ in para 6 of his judgment, quoted above, he had intended to refer
solely to development which made a positive contribution to preservation and to
exclude development of a neutral character, the statement beginning with the
words ‘then it is almost inevitable . . .’ would have been difficult to follow.
*Editor’s
note: Reported at p 66 ante.
In the absence
of any authority binding this court as to the meaning of the word ‘preserving’
in section 277(8) of the Act of 1971, we are free to decide the point. For the
reasons given by Mann LJ, to which I wish to add only very little, I am of the
clear opinion that the wider sense of the word is the correct one.
The word
‘preserving’ is used in the subsection in conjunction but in contrast with the
word ‘enhancing’, which itself imports the notion of a positive improvement. In
my judgment, on the ordinary meaning of words, the character or appearance of
an area can properly be said to be preserved by a development where they are
not harmed, even though the word would be no less apt to include preservation
by restoration or reinstatement. The statutory justification for designating an
area as a conservation area is itself expressed by reference to the
designator’s determination that it is ‘desirable to preserve or enhance’ the
character or appearance of the area in question (see sections 277(1), (2) and
(4)). I cannot think that in those three subsections the legislature intended
the word ‘preserve’ to bear the narrower rather than the wider sense.
Any exercise
of the power to grant planning permission is likely to involve at least some alteration
of the appearance of the buildings or other land in question.
Furthermore, the draftsman of section 277, instead of using the phrase
‘character and appearance’, has throughout the section chosen to follow the
references in the alternative to preservation or enhancement with references in
the alternative to character or appearance. With these two points
in mind, after a first introduction to the section, I tentatively questioned
whether it might not possibly be right in subsection (8) to read the word
‘preserving’ in its context as intended to govern the word ‘appearance’.
However, I understand from counsel well versed in these matters that this
suggestion was a novel one, which so far as they knew derives no support
whatever from any source. I therefore do not wish to pursue this particular
heresy.
This being so,
section 277(8) obliges the decision-maker who is dealing with an application
for planning permission for the development of land in a conservation area to
give special attention to two questions:
(1) Would the proposed development preserve the
character or appearance of the conservation area?
(2) Would it enhance the character or appearance
of that area?
As regards the
second of these two questions, I agree with the deputy judge that it is
implicit in the inspector’s decision in the present case that he did not think
that the proposed development would enhance the character or appearance
of the Cartmel conservation area.
As regards the
first question, the inspector did not in terms give an affirmative answer to
it. However, respectfully disagreeing with the deputy judge on this point, I
think that the inspector did give it in the affirmative by clear and necessary
inference. In para 2 of his decision letter, he had specifically identified the
first of the main issues as being ‘what effect the proposal would have on the
character and appearance of the Cartmel conservation area, having regard to the
desirability of preserving or enhancing that character’. It is not disputed
that this main issue was correctly, if somewhat loosely, identified and that
the inspector, in stating it, clearly had the provisions of section 277(8) in
mind. (The case is in this respect distinguishable from Steinberg’s
case, where the inspector had not mentioned the subsection or his duty
thereunder either in terms or by the use of any language from which it might
reasonably be inferred that he was intending to refer to it: see [1989] 2 PLR 9
at p 11C-D.)
Once it is
recognised that the inspector had correctly identified his statutory duty, the
court should, in my judgment, be slow to infer from the subsequent passages in
his decision letter which deal with the conservation issue that he was not
thereby intending to discharge that duty.
Subject to
what will be said in the next two paragraphs of this judgment, I feel little
doubt that in paras 7 and 8 of his decision letter (which have already been
quoted by Mann LJ in his judgment) the inspector was intending to discharge and
did discharge the duty imposed on him by section 277(8). In my judgment, these
paras 7 and 8, read fairly in their context, following the identification of
the first main issue in para 2, should reasonably be understood as expressing
the inspector’s conclusion that, while the proposed development would not
enhance the character or appearance of the conservation area, its effect on
such character or appearance would be small and it would preserve such
character or appearance provided only that ‘great care was exercised in the
detailed design of the proposed house, having regard to the precise siting, the
materials, the massing, the roof pitch and the details of features such as the
eaves and windows’. No doubt so as to ensure that such care would be exercised,
the inspector (by para 13) granted planning permission subject to the
condition, among others, that ‘approval of the details of the siting, design
and external appearance of the building, the means of access thereto and the
landscaping of the site . . . shall be obtained from the local planning
authority’.
I think it
necessary to deal only with two further points. The inspector, in para 7 of his
decision, stated:
I am also
satisfied that the grounds of the Vicarage are sufficiently large to
accommodate a new house without serious detriment to the setting of the
existing building.
This passage,
in my judgment, gives rise to no difficulties. It is the effect on the
character or appearance of the conservation area as a whole to which section
277(8) requires attention to be directed — not the effect on the character or
appearance of particular buildings within that area.
Second, the
inspector (in para 9, which has also been quoted in Mann LJ’s judgment) used
the phrase ‘applications elsewhere that might have more damaging consequences
to the character of what is undoubtedly a most important conservation area’.
Para 9, when read as a whole, is clearly intended as no more than a warning to
future applicants for planning permission for development in the Cartmel
conservation area that the inspector regarded the application before him as a
special case and that it should not be regarded as a precedent. In my judgment,
the use by the inspector of the phrase ‘more damaging’ in para 9 cannot fairly
be read as derogating in any way from his conclusion expressed in paras 7 and 8
that the effect of this particular development on the character or appearance
of this part of the conservation area would be small and no harm would result
from it.
In my
judgment, therefore, this is not a case falling within principle (vi) stated by
Glidewell LJ in the Bath Society case. In my judgment, on a fair reading
of paras 7 and 8 of his decision letter, the inspector did decide that the
proposed development would preserve the character or appearance of the
conservation area. He was entitled so to decide and, in so doing, did not
misdirect himself as to the nature of the duty imposed on him by section
277(8). In my judgment, he duly discharged that duty.
I, too, would
allow this appeal.
BUTLER-SLOSS
LJ: I agree with the judgment of Mann LJ and that
of Sir Christopher Slade, both of which I have had the opportunity of reading
in draft, and only add some brief comments since we are differing from a most
experienced deputy High Court judge.
The problem
arises as to the meaning of the word ‘preserving’ in section 277(8) of the 1971
Act and whether the proposed development must positively preserve the character
or appearance of the conservation area in question. In this case no suggestion
was ever made that the proposed new vicarage either enhanced or positively
preserved the character or appearance of the village. The most that could be
said was, as was found by the inspector, that ‘it could be accommodated without
damaging consequences to the appearance of the village’. The development would
cause no harm and its impact was consequently neutral. I agree with Mann LJ for
the reasons which he gave that no weight should be placed upon the phrase ‘more
damaging’ in the final paragraph of the inspector’s decision.
What is the
correct approach under section 277(8) to a situation where the proposed
development is neutral? The starting
point is the normal meaning of the word ‘preserve’, which includes to keep safe
from harm, to take care of or guard. Consequently in ordinary language, that
which is kept safe from harm is preserved. In my judgment, ‘preserve’ in the
section is to be looked at in the same way. Although some development may indeed
be seen as positively preserving the character or appearance of an area, I do
not consider that the Act requires such a limitation on the construction of the
subsection. I find support for that view in section 277(1), which states:
Every local
planning authority shall from time to time determine which parts of their area
are areas of special architectural or historic interest the character or
appearance of which it is desirable to preserve or enhance, and shall designate
such areas as conservation areas.
A construction
of preserve to require a positive approach might well be incompatible with the
application of this subsection. Further, if positive preservation is the
correct construction, what is to be done with the middle, neutral ground which,
as this case demonstrates, does exist?
In the decision of Mr Lionel Read QC in Steinberg v Secretary
of State for the Environment [1989] 2 PLR 9 he appeared to be assuming that
unless a development was positively preserving it was to be considered as
negative and consequently did not fall within section 277(8). Not only does the
subsection not specifically express that requirement but it would seem to me to
be at variance with the general 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: see PPG1.
Glidewell LJ
in Bath Society v Secretary of State for the Environment and
Hammercrest Developments Ltd set out six propositions of principle to be
derived from the Act and the decided cases with which, with one qualification,
I respectfully agree. Proposition (vi) states:
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.
To read the
sentence with the restrictive meaning of ‘preserve’ does not, in my view, make
entire sense and may be said to be a non sequitur. Glidewell LJ was not
considering the neutral position in the Bath case and cannot have had it
in mind in this passage. I do not agree with Mr Macleod’s argument in favour of
the narrower interpretation, nor do I see Glidewell LJ as supporting it despite
a passage later in his judgment, to which Mann LJ has referred.
In my
judgment, the inspector, and consequently the Secretary of State, paid proper
regard to the requirements of section 277(8). I agree that this appeal should
be allowed and the order of Mr Lionel Read QC be set aside.
Appeal
allowed with costs.
