Conservation area — Statutory duty under section 277(8) of the Town and Country Planning Act 1971 to pay special attention to desirability of preserving or enhancing character or appearance of conservation area — Proposed development neutral in its effect — Whether ‘preserving’ requires positive contribution to preservation or satisfied by development involving no harm — Wider meaning preferred
By a decision
dated July 13 1979 an inspector appointed by the first respondent, the
Secretary of State for the Environment, allowed an appeal conducted by 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 in the village of Cartmel,
Cumbria. The whole of the village was in the Cartmel conservation area. On
February 26 1990 the application of the appellants, South Lakeland District
Council, to quash the inspector’s decision was allowed by Mr Lionel Read QC
(sitting as a deputy judge of the Queen’s Bench Division) 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) to pay special
attention to the desirability of preserving or enhancing the character or
appearance of the conservation area. It was not suggested that the proposed
development would enhance the conservation area: in his decision letter the
inspector referred to the terms of section 277(8) and considered whether harm
would result to its character or appearance. The deputy judge, applying his own
previous decision in Steinberg v Secretary of State for the
Environment [1989] 2 PLR 9, held that the underlying purpose of section
277(8) was essentially positive and accordingly that the inspector had applied
the wrong test in considering the acceptability of the proposal. An appeal by
the Secretary of State against the deputy judge’s decision was allowed by the
Court of Appeal: [1991] 2 PLR 97. The council appealed.
‘Preserving’
the character or appearance of a conservation area in section 277(8) was not
restricted to positive contributions to conservation but was achieved either by
a positive contribution to preservation or by development which left the
character or appearance unharmed: see p 148F-149D. On a proper reading of the
decision letter the inspector’s opinion was that the development, subject to
appropriate control of the detailed design etc of the proposed house, would not
adversely affect the
right test: see p 147C-D.
Per Lord Bridge: (1) The intention of section 277(8) is that in
planning decisions in respect of proposed development in a conservation area a
high priority must be given to the objective of preserving or enhancing the
character or appearance of the area. If any proposed development would conflict
with that objective, there will be a strong presumption against the grant of
planning permission, though in exceptional cases the presumption might be
overridden where the development is desirable on the ground of some other
public interest: if a development would not conflict with that objective it
should be permitted or refused by the application of ordinary planning
criteria: see p 145D-E. (2) Excessively legalistic textual criticism of
planning appeal decision letters is something the courts should strongly
discourage: see p 147D.
Decision of
the Court of Appeal [1991] 2 PLR 97 affirmed.
to in the opinions
Bath
Society v Secretary of State for the Environment
[1991] 1 WLR 1303; [1992] 1 All ER 28; (1991) 62 P&CR 565; [1991] 2 PLR 51;
[1991] JPL 663, CA
Steinberg v Secretary of State for the Environment (1988) 58 P&CR
453; [1989] 2 PLR 9; [1989] JPL 258
Appeal against
decision of the Court of Appeal
This was an
appeal by leave of the House of Lords (Lords Bridge of Harwich, Ackner and
Lowry) granted on June 3 1991 by the appellants, South Lakeland District
Council, from the order of the Court of Appeal on March 12 1991 (Butler-Sloss
and Mann LJJ and Sir Christopher Slade) [1991] 1 WLR 1322; [1991] 2 PLR 97
allowing an appeal by the Secretary of State for the Environment from a
decision of Mr Lionel Read QC (sitting as a deputy judge of the Queen’s Bench
Division) [1991] JPL 144 on February 26 1990. By his decision the deputy judge
had granted an application by the appellants under section 245 of the Town and
Country Planning Act 1971 to quash the decision of the first respondent’s
inspector dated July 13 1989 whereby the inspector had allowed an appeal by the
second respondents Carlisle Diocesan Parsonages Board, against the refusal of
the appellants to grant planning permission for the erection of a new vicarage
within the curtilage of the existing vicarage at Priest Lane, Cartmel, Cumbria,
in the Cartmel Conservation Area.
QC and Anne Williams (instructed by Winckworth & Pemberton) appeared for
the appellants, South Lakeland District Council.
Ian Ashford-Thom (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
respondents, Carlisle Diocesan Parsonages Board, did not appear and were not
represented.
Their
lordships took time for consideration
following opinions were delivered.
LORD BRIDGE
OF HARWICH: My lords, local planning authorities
have a duty under section 277(1) of the Town and Country Planning Act 1971, to
‘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 to designate such areas as conservation areas. The
Secretary of State has a concurrent power of designation after consultation
with a local planning authority. Section 277(8) provides:
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, Part I of the Historic Buildings and
Ancient Monuments Act 1953 or the Local Authorities (Historic Buildings) Act
1962.
These were the
provisions in force at the material time. They have since been replaced by
provisions in the Planning (Listed Buildings and Conservation Areas) Act 1990
to substantially the same effect.
There is no
dispute that the intention of section 277(8) is that planning decisions in
respect of development proposed to be carried out in a conservation area must
give a high priority to the objective of preserving or enhancing the character
or appearance of the area. If any proposed development would conflict with that
objective, there will be a strong presumption against the grant of planning
permission, though, no doubt, in exceptional cases the presumption may be
overridden in favour of development which is desirable on the ground of some
other public interest. But if a development would not conflict with that
objective, the special attention required to be paid to that objective will no
longer stand in its way and the development will be permitted or refused in the
application of ordinary planning criteria. The issue raised in this appeal is
as to the scope of the objective itself. What does the ‘desirability of
preserving or enhancing [the] character or appearance’ of a conservation area
involve? Does it, as the appellants
contend, erect a barrier against any building development which does not either
enhance or ‘positively preserve’ the character or appearance of the area? Or does it, as the Secretary of State
contends, only inhibit development which will in some degree affect the
character or appearance of the area adversely?
This is the issue of principle which your lordships must resolve.
The second
respondents applied for outline planning permission to build a new vicarage
within the curtilage of the existing vicarage in the village of Cartmel in
Cumbria. The Cartmel Conservation Area includes the whole of the village. South
Lakeland District Council, as local planning authority, refused permission on
the ground, inter alia, that:
The proposal
would be seriously detrimental to the history, architecture and visual
character of this part of the Cartmel Conservation Area . . .
The second
respondents appealed to the Secretary of State, who appointed an inspector to
determine the appeal.
The inspector
considered written representations from the parties and
appeal and granted planning permission subject to conditions. The authority
applied to quash his decision pursuant to section 245 of the Town and Country
Planning Act 1971. Mr Lionel Read QC, sitting as a deputy High Court judge, allowed
the application, but his decision was in turn reversed by the Court of Appeal
(Butler-Sloss and Mann LJJ and Sir Christopher Slade) [1991] 1 WLR 13221.
The authority now appeal by leave of your lordships’ House.
1Also reported at [1991] 2 PLR 97.
There is no
doubt that the inspector had the provisions of section 277(8) clearly in mind.
He directed himself in terms that the first issue he had to consider was ‘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’. He described the existing vicarage as ‘a substantial late 19th
century house set well back from the road in grounds containing several fine
mature trees’. The paragraphs of the decision letter setting out the reasoning
which led the inspector to his conclusion read as follows:
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 Conservation Area, I consider that
it would accord with Policy A3 of the Plan. 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
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.
I have added
emphasis to the passages in these paragraphs which seem to me to make clear the
inspector’s opinion that the development, subject to the appropriate control of
the detailed design etc of the proposed house, would not adversely affect the
character or the appearance of the conservation area. This disposes of a
subsidiary point as to whether, assuming this to be the right test, the
inspector applied it correctly. It was suggested that the inspector’s statement
in para 7 that ‘. . . the effect on the character and appearance of this part
of the Conservation Area would be small’ and the reference in para 9 ‘more
damaging consequences’ cast doubt on this. On this point I fully share the
views expressed by Mann LJ in his judgment [1991] 1 WLR 1322 at pp 1328F-1329A.1 Read fairly and as a whole the sense of the
inspector’s reasoning is perfectly clear. Excessively legalistic textual
criticism of planning decision letters is something the courts should strongly
discourage.
1[1991] 2 PLR 97 at p 103A-D.
The statement
of principle on which the learned deputy judge relied in reaching his
conclusion that the inspector had not complied with the duty imposed on him by
section 277(8) was expressed in a passage from an earlier judgment of his own
in Steinberg v Secretary of State for the Environment (1988) 58
P&CR 453 at p 457,2 in the following terms:
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.
2[1989] 2 PLR 9 at p 12F-G.
This passage
and certain other passages from decisions of judges at first instance in which
consideration was given to the effect of section 277(8) were extensively
reviewed by Glidewell LJ in Bath Society v
which he stated his own conclusions at pp 1318-13192 in paras (i) to
(vi). These do not directly address the issue raised in the present appeal. It
is said, however, that support for Mr Lionel Read’s view of the ‘positive’
approach required to be adopted in the application of section 277(8) is derived
from Glidewell LJ’s propositions (iv) and (vi) which read:
(iv) If, therefore, the decision-maker decides
that the development will either enhance or preserve the character or
appearance of the conservation area, this must be a major point in favour of
allowing the development.
(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.
1Also reported at [1991] 2 PLR 51.
2[1991] 2 PLR 51 at pp 64F-65D.
More directly
in point is the later passage at p 1320F3 where Glidewell LJ said:
[Counsel for
the Secretary of State] argued 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 in Steinberg
v Secretary of State for the Environment 58 P&CR 453, 457, I doubt
whether it is) this is not what, in my view, the inspector himself concluded.
3[1991] 2 PLR 51 at p 66D-E.
The judgments
in the Court of Appeal in the instant case properly undertook a full
examination of the judgment of Glidewell LJ in the Bath case, leading, I
have no doubt correctly, to the conclusion that it did not afford a binding
precedent which required the court to dismiss the appeal in this case. But, in
so far as there is any divergence of opinion to be found between the judgment
of Glidewell LJ in the Bath case and the judgments of the Court of
Appeal in this, your lordships are, of course, at liberty to choose between
them. Accordingly, I can turn directly to the affirmative reasoning of the
court in this case which is epitomised in the following passage from the
judgment of Mann LJ [1991] 1 WLR 1322 at pp 1326-13274:
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.
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 (1989), 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 parsonages 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 leave character or appearance unharmed, that is to say,
preserved.
4[1991] 2 PLR 51 at p 101D-G.
My lords, I
have no hesitation in agreeing with this construction of section 277(8). It not
only gives effect to the ordinary meaning of the statutory language; it also
avoids imputing to the legislature a rigidity of planning policy for which it
is difficult to see any rational justification. We may, I think, take judicial
notice of the extensive areas, both urban and rural, which have been designated
as conservation areas. It is entirely right that in any such area a much
stricter control over development than elsewhere should be exercised with the
object of preserving or, where possible, enhancing the qualities in the
character or appearance of the area which underlie its designation as a
conservation area under section 277. But where a particular development will
not have any adverse effect on the character or appearance of the area and is
otherwise unobjectionable on planning grounds, one may ask rhetorically what
possible planning reason there can be for refusing to allow it. All building
development must involve change and if the objective of section 277(8) were to
inhibit any building development in a conservation area which was not either a
development by way of reinstatement or restoration on the one hand (‘positive
preservation’) or a development which positively enhanced the character or
appearance of the area on the other hand, it would surely have been expressed
in very different language from that which the draftsman has used.
I would
dismiss the appeal.
LORD
TEMPLEMAN: My lords, for the reasons set forth in
the speech of my noble and learned friend Lord Bridge of Harwich I would
dismiss the appeal.
LORD
GRIFFITHS: My lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend, Lord
Bridge of Harwich. I agree with it and for the reasons which he gives, I, too,
would dismiss the appeal.
LORD
ACKNER: My lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend, Lord
Bridge of Harwich. I agree with it and for the reasons which he gives, I, too,
would dismiss the appeal.
LORD OLIVER
OF AYLMERTON: My lords, I have had the advantage of
reading in draft the speech prepared by my noble and learned friend, Lord
Bridge of Harwich. I agree with it and for the reasons which he gives, I, too,
would dismiss the appeal.
Appeal
dismissed with costs.
