Conservation area — Grant of planning permission — Circular guidance on conservation areas — Meaning of open space — Whether reference to open space in circular includes private gardens — Whether Secretary of State failed to have proper regard to open space as a feature of a conservation area
The first respondent, the Secretary of
State for the Environment, granted planning permission to the third respondent,
Mr Mosley, for residential development of land within a conservation area at
Tur Langton, Leicestershire, following an appeal against a decision of the
second respondents, Harborough District Council, to refuse planning permission.
On behalf of himself and other villagers of Tur Langton the appellant applied
under section 245 of the Town and Country Planning Act 1971 to quash that
decision. That appeal was dismissed by Mr Malcolm Spence QC, sitting as a
deputy judge of the Queen’s Bench Division. On appeal the appellant contended
that the inspector had failed to have proper regard to section 277(8) of the
Town and Country Planning Act 1971 in allowing the third respondent’s appeal.
In particular the inspector was in error in concluding that the references to
‘open space’ in Circular 8/87 as being features for preservation or enhancement
were references to open land and did not include open space in the form of
private gardens.
The appeal was allowed.
A pattern of private gardens could be
capable of being a feature of a conservation area which would have to be taken
into account by an inspector in complying with his duty under section 277(8) of
the 1971 Act and in following the guidance in Circular 8/87: see pp 89F and
93A. The inspector was in error in ruling that no private gardens were an open
space or open land; he misunderstood and misinterpreted the circular and consequently
misunderstood the structure plan in its reference to the protection of open
land. The inspector had not applied his mind to the question of whether what
was there in the conservation area would be more or less beneficial to the area
than what was proposed by the third respondent. The inspector had not given
weight to the primary objection to the proposed development, the loss of open
space: see pp 90G-91C. The inspector’s decision letter fell short of the
required standards with regard to the adequacy of its reasons: see p 91E-H.
Steinberg v Secretary of State for the
Environment [1989] 2 PLR 9; [1989] JPL 258
Appeal against a decision of Mr Malcolm
Spence QC
This was an appeal against a decision of
Mr Malcolm Spence QC (sitting as deputy judge of the Queen’s Bench Division)
who had dismissed an application by the appellant under section 245 of the Town
and Country Planning Act 1971 against a decision of the first respondent, the
Secretary of State for the Environment, allowing an appeal by the third
respondent against a refusal of outline planning permission by the second
respondents, Harborough District Council.
(instructed by Marron Dodds & Waite, of Leicester) appeared for the appellant.
Solicitor) appeared for the first respondent, the Secretary of State for the
Environment.
& Harrison, of Northampton) appeared for the third respondent.
District Council, did not appear and were not represented.
WOOLF LJ: This is an appeal by Mr David Ward on his
own behalf and on behalf of other villagers of the Tur Langton village, which
is situated in a conservation area. The appeal is from a decision of Mr Malcom
Spence QC, sitting as a deputy judge of the Queen’s Bench Division, who
dismissed an application by the appellant to quash a decision of an inspector
who granted planning permission to the third respondent in respect of a
proposed development in the village.
The power of the court on the application
is contained in section 245(4) of the Town and Country Planning Act 1971, which
so far as relevant provides:
On any application under this section the
High Court —
(a) . . .
(b) if satisfied that the order or action in question is not within
the powers of this Act, or that the interests of the applicant have been
substantially prejudiced by a failure to comply with any of the relevant requirements
in relation thereto, may quash that order or action:
In this court the appellant relies on
both limbs of section 245(4). He contends that the decision was not within the
powers of the Act in that the inspector failed to consider properly the appeal
which was before him; alternatively he submits that the decision letter did not
comply with the requirements referred to in the subsection in so far as it had
failed to set out the reasons for the decision in an intelligent manner and
that the appellant and those whom he represents have been prejudiced by this
failure.
With regard to the requirement to give
reasons, it suffices to say that the reasons must be ones which are
understandable to those who will receive those reasons. In particular they have
to be reasons which are understandable to the applicant (in this case the
developer who wished to develop the site) and also to those who objected to the
proposed development, which includes the present appellant. However, the court
in a series of authorities has made it clear that a decision letter of an
inspector must be approached with due allowance for the fact that the document
is not now normally drafted with any legal assistance; it must not be construed
in the same way as one would construe a statute, and above all it must be
looked at as a whole and judged on the basis of the impression created when the
decision letter is looked at as a whole, rather than concentrating on a
particular sentence or paragraph in the letter.
The decision letter sets out a
description of the site in question. It says it is within a conservation area.
It lies at the west end of Main Street in Tur Langton, a village some 500m in
length:
It has a frontage of about 60 metres to
the south side of the road which is defined by a thorn hedge. An unmetalled
track marks the easterly boundary along which there is another thorn hedge.
Open fields lie to the south of the site. At the north-west corner is a brick
and tile building which houses 3 garages with a room over. Behind this is a
hard tennis court. The site is largely grass covered and contains a small
number of fruit trees. The land has a slight down grade to the south.
The statutory requirements in relation to
conservation areas are contained in section 277 of the Town and Country
Planning Act 1971, as amended. Subsection (1) provides:
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.
Subsection (1) deals with designation. I
can go straight to subsection (8), which deals with the grant of planning
permission in a designated area. Subsection (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 . . .
and then there are other Acts which need
not be mentioned.
In relation to conservation areas the
Secretary of State for the Environment has issued circulars. The current
circular is Circular 8/87; Part II deals with conservation areas and commences
with para 53 under the heading ‘Designation’ and para 54 is in these terms:
Clearly there can be no standard
specification for conservation areas. The statutory definition is ‘areas of
special architectural or historic interest, the character or appearance of
which it is desirable to preserve or enhance’. These areas will naturally be of
many different kinds. They may be large or small, from whole town centres to
squares, terraces and smaller groups of buildings. They will often be centred
on listed buildings, but not always. Pleasant groups of other buildings, open
spaces, trees, an historic street pattern, a village green or features of
historic or archaeological interest may also contribute to the special
character of an area. Areas appropriate for designation as conservation areas
will be found in almost every town and many villages. It is the character of
areas, rather than individual buildings, that section 277 of the 1971 Act seeks
to preserve or enhance.
In considering that paragraph the learned
judge referred to section 290 of the 1971 Act, which contains a definition of
‘open space’. This provides:
‘open space’ means any land laid out as a
public garden, or used for the purposes of public recreation, or land which is
a disused burial ground;
The learned judge took the view that that
definition provides assistance with regard to the reference to open space in
the circular. With respect to the learned judge I do not accept that is so. It
seems to me that open space in the Town and Country Planning Act 1971 is being
used, at any rate primarily, in the restricted context of public open spaces.
That the definition section is used in that context is supported when one looks
at sections of the Act which refer to open space. That being so I would not
regard the definition as providing any assistance with regard to Circular 8/87,
para 54, where ‘open space’ has clearly been used in a very wide sense.
Later in the circular, under the heading
‘Control of Development in Conservation Areas’, appears para 61, which makes it
clear that the fact that a proposed development is in a conservation area
should not mean that there is not to be development. The circular states, among
other things:
Often the emphasis will be on control
rather than prevention, to allow the area to remain alive and prosperous but at
the same time to ensure that any new development accords with its special
architectural and visual qualities.
Later it goes on to say:
Planning authorities should consider
whether they should ask for detailed plans and drawings of the proposed
development, including elevations which show the new development in its
setting, instead of giving permission in outline form.
While considering the provisions of the
circular it is probably relevant to point out that there is no suggestion that
it is because of any historical interest that this particular conservation area
has been declared.
In addition to the circular which deals
with conservation areas which, as Mr Jay, for the first respondent, rightly
pointed out, contains the national policy, there was a local policy which was
relevant. That is the local policy which is contained in the Leicestershire
Structure Plan, the village being situated in Leicestershire. The structure
plan of August 1987 in its written statement states:
In determining development proposals in
the Rural Centres consideration will be given to:
. . .
(v) the
need to protect open land which is of particular significance to the form and
character of the village.
I indicated earlier that it is necessary
to look at the decision letter as a whole. However, I do not propose to extend
this judgment by reading out the whole of the decision letter. There are,
however, certain paragraphs to which I must make reference so that one can
understand the issues which have been argued before this court. The first is
para 2, where the inspector says:
From my inspection of the site and its
surroundings and from the representations made I consider that the principal
issue in this case is whether or not the proposed dwellings, if permitted,
would be likely to affect the visual quality and character of the village to an
unacceptable extent.
Pausing for a moment just to consider
that paragraph in isolation, it is criticised on behalf of the appellant by Mr
Smith QC. He submits that it is not setting out the right test, bearing in mind
that here was a proposal for planning permission in a conservation area, and in
support of his contention he referred the court to the case of Steinberg
v Secretary of State for the Environment, a decision of Mr Lionel Read
QC (sitting as a deputy judge of the Queen’s Bench Division) [1989] JPL 258*.
In the course of his judgment Mr Lionel Read said at p 261:
There was, a world of difference between
the issue which the Inspector had 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 was one thing;
preservation or enhancement was another. No doubt the Inspector had demonstrated
his concern that the character of the conservation area should not be harmed.
That, was not the same as paying special attention to the desirability of
preserving or enhancing that character as well as its appearance.
*Editor’s note: Also reported at [1989] 2
PLR 9.
Mr Smith submits that, just as in the Steinberg
case the inspector fell into error, so here the inspector fell into error
because he was considering really whether there would be an unacceptable amount
of harm; whereas, Mr Smith submits, it would have been preferable for the
inspector to approach the matter by asking himself the question in the terms of
subsection (8) by paying special attention to the question as to whether or not
the development would preserve or enhance the character or appearance of the
conservation area.
Without attaching too much importance to
this aspect of the case put forward by the appellant, I would accept that the
wording of para 2 is not entirely satisfactory. Right at the beginning of the
decision letter it states what is the principal issue in an unfortunate way in
so far as it concentrates on
make reference to the approach required by section 277(8) of preserving or
enhancing.
However, it is submitted by the
respondents that when one looks at the decision letter as a whole it is quite
clear that the inspector, as one would expect, was very familiar with the
approach indicated in subsection (8), and, speaking for myself, if that were
the only criticism which could be made of this letter I would not attach any
real significance to it.
I can pass over para 3 for the moment and
I have already referred to para 4, which describes the site. I then go to para
5, which is in these terms:
The greatest weight of objection to the
proposal centres on the possible loss of the land represented by the appeal
site. This was a private garden until relatively recently although reference
has been made to the fact that it was agricultural land some 8 years ago.
Paragraph 32 of Circular 23/77 which describes the anatomy of conservation
areas includes not only buildings but open spaces, trees and many other
features that may contribute to the special character and appearance of an area
which it is desirous to preserve or enhance. In my opinion the reference to
open spaces does not embrace private gardens which are essentially open areas
incidental to the enjoyment of dwellinghouses as such. To my mind the reference
in the structure plan Policy L/SE11 of the need to protect open land which is
of particular significance to the character of the village is more applicable
to the open space reference in the above circular and would embrace open spaces
characterised by the field frontages such as those which run up to the Main
Street further to the east of the appeal site.
That paragraph deals with the major
objection which is made to the proposal; as I understand the language which is
used, it is setting out the inspector’s reasons for coming to the conclusion
that neither para 32 of the former circular nor the structure plan refers to
the appeal site, albeit that it is land which is, in common parlance, to be
regarded as substantially open land.
I can only read the paragraph as
indicating that the circular, and the structure plan in its reference to open
land, was not capable of including a private garden of the sort there
described, and was doing so because these were not matters to be given special
significance in a conservation area. As was accepted by all the counsel
appearing before this court, in fact a pattern of private gardens would be
capable of being a feature of a conservation area which would have to be taken
into account by an inspector in complying, as it was his duty to do, with
section 277(8). It could be a feature which it would be desirable to preserve
or enhance because it played a part in creating the character or appearance of
the area. It seems to me that the reference which was made to the statement in
the structure plan following on from what was said about the circular suggests
that this is what the inspector had in mind. I further take the view that if he
was coming to that conclusion the inspector was in error and he misunderstood
and misinterpreted the circular and, consequent upon misunderstanding the
circular, misunderstood the structure plan.
However, this would not necessarily mean
that he had exceeded his powers in a way that would inevitably result in the
decision having to be quashed. Before this would be the situation, the court
would have to be satisfied that on looking at the decision letter as a whole
this error played some part in the conclusion to which he came. It is argued on
behalf of the respondents that, when the other paragraphs of the letter are
looked at, if the inspector went wrong, which is not accepted, the error was
really of no relevance because the main reasoning of the inspector showed that
he was approaching the matter in a way which meant that what he said in para 5
was not critical to his
paras 6 and 8, before proceeding further with this judgment. Para 6 reads:
The main character of Tur Langton derives
largely
— and I emphasise the word ‘largely’ —
from the quality of the buildings ranged
along Main Street and Melton Road. The inspector dealing with the previous
appeal summed it up as the informality of layout which gives the village its
character with an inconsistent style of dwellings. The buildings cover several
architectural periods terminating with two pseudo Georgian style houses within
the conservation area on an important space to the west of the village hall.
Although this building is of a somewhat prosaic design the landscaping around
it softens its impact on the traditional buildings opposite and to the east of
it. Two other modern houses have been erected to the east of the church, on the
same side as it, and another opposite. There are glimpses of open countryside
between dwellings but only in two places as I have described above does open
agricultural land abut Main Street. Practically every dwelling in the village
relates either to the Main Street or Melton Road from which they derive access.
In no case could I see that any houses have been arranged consciously around an
open space.
Then going to para 8:
What is now proposed by your client would
maintain practically the whole of the open frontage to the Main Street with two
houses set back well behind an amenity space bounded by the access drive on one
side, a cart track leading in a southerly direction on the east and the Main
Street on the north. To my mind the provision of an incidental open space with
dwellings around it would make a positive contribution to the visual quality of
the street and would be in keeping with the aim of enhancing the conservation
area. It would be preferable in my opinion to do this rather than simply
filling in the frontage with houses. The external appearance of the proposed
dwellings as shown on the sketch plan for the amended scheme is simple and
accords reasonably closely with the character of the traditional dwellings in
the vicinity and I have no adverse comments to make on this aspect other than
that samples of external finishing materials shall be approved by the Council
if permission were to be granted.
In considering those two paragraphs, it
seems to me that it should be borne in mind that the primary task which the
inspector had to perform was to compare what is on the site at the present time
with what is going to be on the site, assuming that the planning permission was
to be implemented. It is clear, it seems to me, from para 8 that the inspector
was indicating a firm view that what would be on the site would be something
which he regarded as making a positive contribution to the visual qualities of
the street. However, it is not clear from para 8 whether he was saying that in
the context that it would be a positive contribution as compared with erecting
dwellinghouses right on the frontage of the road or whether he was saying that
in the context of no development otherwise taking place at all.
It seems clear to me from para 6 that the
inspector took the view that a principal feature of this particular
conservation area was the buildings which were ranged along Main Street and
Melton Road, though by use of the word ‘largely’ and the reference to
landscaping which appear in para 6 it is equally clear that although the
buildings are important it is the buildings in their context which are
important and it is not a case of the buildings being the exclusive feature
which identify the reasons for this being an area which should be conserved.
The trouble that I have with the
reasoning which is expressed in the letter
objectors by the inspector in para 5 is: has the inspector really applied his
mind, as in my view he was required to do, to the question of whether what is
there at present would be less beneficial or more beneficial to the area than
what is proposed? Looking at the letter
and trying, as I understand the task to be, to assess what will be the impact
upon the recipients of the letter, I take the view that the objectors can
contend that a reasonable reading of that letter suggests that the inspector
has failed to perform a most important task because he has misapplied the
circulars in the way that I have sought to identify. They could reasonably take
the view that he has not given proper weight to what was their prime objection,
which was the loss of the open space which was involved in the development.
That being so, it seems to me that the inspector has either failed to consider
the issues in the proper manner or has fallen below the standard of reasoning which
is required in the case of a letter of this sort.
In coming to that conclusion I am
differing from the view of the learned deputy judge, who has considerable
experience in planning matters. I do not propose to refer to the reasons in
detail why he took his view. All I would say is that he was able to read into
the letter from other paragraphs a different interpretation of para 5 from that
which I regard as being the correct one. The very fact that it is possible for
such a difference of opinion as to the proper interpretation of para 5 in the
context of this letter as a whole underlines the fact, in my view, that the
reasons set out fall far short of what is required in order to comply with the
statutory requirements which are referred to in section 245.
There is one further matter, to which I
should make reference, on which Mr Smith relied. That is the fact that this was
an outline planning application. It was not one of those situations where the
planning authority took the course, which sometimes would be appropriate, of
insisting on a detailed planning permission. Mr Smith submits, in my view
correctly submits, that clearly an important factor in the inspector’s
reasoning was the fact that there was to be the amenity area between the houses
if they were erected and Main Street, and he submits that the inspector had
failed to ensure that that amenity area would be protected. Initially I was
very impressed by this submission, albeit that it seemed to me unlikely that in
practice there would be any material adverse consequences, because I could not
conceive that the planning authority would give permission for the siting of
houses in a position inconsistent with that contemplated by the inspector.
However, Mr Rich QC, on behalf of the third respondent, put before the court a
letter which was referred to in the decision letter, a letter dated March 1
1988 which contains amended details of the application which the developers
were putting forward, and the inspector says that he is dealing with the appeal
on the basis of the submitted application as amended by that letter. When I
look at para 12 of the decision letter which contains the actual decision of
the inspector and look at the various paragraphs which are there set out, it
seems to me that probably there is in fact no substance in this last point
relied on by Mr Smith. The inspector has ensured that in fact there would be no
development on the proposed amenity area. Subpara 4 refers to that amenity
area. It probably links up with para 3 of the decision letter and therefore no
problem would arise. I would not, therefore, take that matter into account in
coming to the conclusion that I have, that this particular letter falls below
the required standards.
For those reasons I would therefore allow
this appeal and in my view it follows that the decision of the inspector will
have to be quashed and the matter reconsidered anew on a further occasion.
NICHOLLS LJ: I have not found this an altogether easy
appeal, but in the end I, too, think that this appeal should be allowed. What
ultimately has weighed with me is this. In para 5 of the decision letter the
inspector set out certain views which form an integral, indeed on their face an
essential, step in his reasoning. In the first sentence of para 5 the inspector
recorded that the greatest weight of objection to the proposal centred on the
possible loss of the land represented by the appeal site. The inspector then
proceeded to diminish, if not wholly discount, the weight of that objection.
His starting point on this was to set out his opinion of what was meant by
‘open space’ in para 32 of Circular 23/77. The fourth sentence of para 5 of his
decision letter reads as follows:
In my opinion the reference to open space
does not embrace private gardens which are essentially open areas incidental to
the enjoyment of dwellinghouses as such.
That is an opinion which cannot, as a
matter of law, be sustained if it is read as intended to be all embracing.
Given that, I do not think that it would be right to understand the last
sentence in para 5 as containing implicitly a finding of fact that the open
space nature of this particular appeal site did not contribute to the special
character or appearance of this area, even though other private gardens might
do so.
I turn, then, to paras 6 and 8 of the
decision letter. It is notable that the inspector’s description of the main
character of Tur Langton set out in para 6 makes no reference to the gardens of
the houses, in particular to the appeal site, as a feature contributing to the
character of this conservation area so that any further building thereon would
damage that character. It is also notable that in para 8 the inspector said:
To my mind the provision of an incidental
open space with dwellings around it would make a positive contribution to the
visual quality of the street and would be in keeping with the aim of enhancing
the conservation area.
However, I do not think that these
considerations are sufficiently explicit to counterbalance a residual, nagging
concern that the inspector was influenced by the erroneous view he expressed in
the fourth sentence of para 5 at the outset of his reasoning. I think objectors
are reasonably entitled to have a clearer exposition of the reasons for an
adverse decision than those given in this decision letter.
I, too, would allow this appeal.
STAUGHTON LJ: There are two grounds upon
which the inspector in this case may have been obliged to consider the impact
of the proposed development on an open space within a conservation area. The
first is derived from para 54 of Circular 8/87, which Woolf LJ has read, and
which is the successor to para 32 of Circular 23/77. This shows that an open
space may be, but not that it will always be, relevant to the designation of a
place as a conservation area. If relevant for that purpose it may also be
relevant to a proposal for development within the conservation area once
designated. Second, there is the passage in the Leicestershire Structure Plan
relating to open land which Woolf LJ has also read.
Para 5 of the decision letter shows that
in the inspector’s view a private garden does not qualify as an open space or
as open land within those provisions. I cannot read para 5 as saying that some
private gardens may be so described but that others being ‘open areas
incidental to the enjoyment of dwellinghouses as such’, to quote the
inspector’s words, cannot be an open space or open land. I do not think that
the inspector was drawing any such distinction. Indeed I would find it
difficult to draw it myself. He was ruling
inspector was wrong to take that view. A private garden may be relevant as an
open space in Circular 8/87 and as open land in the Leicestershire Structure
Plan. In some cases it will be important — in others it will not.
If para 5 had not appeared in the
decision letter, it may well be that the inspector’s conclusion would be
justified adequately by his reasoning in para 8. That paragraph itself is not
free from ambiguity. It may be considering only the question whether if there
was to be development on the appeal site it would be better to have an amenity
space in front of the two houses to be built. But at best for the respondents
paras 5 and 8 together gave the inspector’s reasons. If one contained an error
of law, as I think it did, then the decision should not stand.
I, too, would allow this appeal.
Appeal allowed with costs against the
first respondent; the third respondent to bear his own costs.
