ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE OUSELEY)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE SULLIVAN
| Garner and Ors
|- and -
Elmbridge Borough Council and Ors
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Mr Simon Bird QC (instructed by Sharpe Pritchard & Co Solicitors) for the Respondent
Miss Mary Cook (instructed by Gladedale Group Limited) for the 1st Interested Party
Mr Gregory Jones (Clifford Chance LLP Solicitors) for the 2nd Interested Party
Crown Copyright ©
Lord Justice Sullivan:
The statutory and policy framework
"...general duty as respects listed buildings in exercise of planning functions."
" In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
"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."
"The statutory desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by a development which leaves character or appearance unharmed, that is to say preserved."
See the speech of Lord Bridge, with whom the other members of the appeal committee agreed, at page 150 letters B to F.
"Section 66 does not permit a local planning authority to treat the desirability of preserving the setting of a listed building as a mere material consideration to which it can simply attach what weight it sees fit in its judgment. The statutory language goes beyond that and treats the preservation of the setting of a listed building as presumptively desirable. So if a development would harm the setting of a listed building, there has to be something of sufficient strength in the merits of the development to outweigh that harm. The language of presumption against permission or strong countervailing reasons for its grant is appropriate. It is the obvious consequence of the statutory language, rather than an illegitimate substitute for it."
The setting ground
"...left in no doubt but that the desirability of preserving the setting of the Palace and the Bridge was one of the key issues, if not the key issue or consideration, in the decision, to which special regard was paid. It was not treated as just one among a large number of material considerations. Indeed, it would beggar belief, as Ms Cook put it, for the Council, dealing with a site so close to the Palace and Bridge, not to have had special regard to their setting."
English Heritage's view
"Thank you for your letter of 16 November 2007 notifying English Heritage of the above application. The proposals include a residential and care home development, a new hotel, retail and commercial development, associated ancillary works and buildings, works to the transport interchange and new areas of public open space. English Heritage is particularly concerned at the likely impact of this development on views to and from Hampton Court Palace, its gardens and park; the setting of the listed Hampton Court Bridge, the banks of the River Thames and the cumulative impact upon the established character of East Molesey.
English Heritage has been closely involved in pre application discussions surrounding this site with all interested parties for much of the past year. We are keen to encourage proposals which will improve significantly the currently extremely poor visitor experience of those arriving at Hampton Court Station, the currently semi derelict public realm between the Station, the River Thames and Cigarette Island Park, the setting of the grade II listed Hampton Court Bridge and preserve the existing semi rural nature of views from Hampton Court Palace across the River to the Jolly Boatman site. Particular attention during these discussions has been given to the setting of the Palace, a scheduled ancient monument and its grade I Registered Gardens and Parkland, all of outstanding national and international importance.
English Heritage considers that the above objectives would best be achieved by an open, landscaped public space with a number of modest and carefully considered structures to provide facilities for visitors to the area, not a comprehensive and intensive urbanisation of the site. We objected strongly to the earliest pre application proposals for the site as likely to have a major, adverse and detrimental impact upon views to and from the Palace and the wider riparian setting. As a result of discussions held with Gladedale, Historic Royal Palaces and the invaluable intermediary role of The Princes Foundation the scheme as formally submitted is likely to be less harmful in its impact than initially feared, but English Heritage continues to have significant and fundamental concerns regarding a number of aspects of the scheme.
The hotel building proposed between the Station and the River is in terms of its height, scale, bulk and massing entirely inappropriate to this highly sensitive location. The introduction of such a substantially scaled structure onto a site which is currently undeveloped will have a major, adverse impact upon the established character and appearance on the setting of Cigarette Island Park, the Station and Hampton Court Bridge and in cross River views. This harm is particularly exacerbated by the detailed design of the building which is entirely inappropriate to the conservation area and the wider setting in which it sits.
The creation of a series of new public open spaces, including access to the River Thames is to be welcomed most warmly but the form and hard and soft landscaping of these spaces must form an appropriate response to the historic nature of their immediate and wider setting. The current proposals fail completely to rise to this challenge. The stone terraces and steps between the hotel and river are of a monumental scale entirely alien to this stretch of the Thames and are more reminiscent of Bazalgette's work in Westminster than the domestic and intimate nature of Hampton Court and the gentle deference to its setting of Lutyens' Thames bridge.
In a scheme of this complexity and sensitivity there remain a considerable number of matters which will require further discussion. However, I suggest as a matter of urgency a further meeting needs to be held, aimed at finding a solution to the design and appearance of the hotel and its setting all interested parties can support and one which will ensure that if the principle of such development is to be accepted in this location the outstanding significance of Hampton Court Palace and its environs will be preserved and protected."
"Thank you for your letter of 29 July notifying English Heritage of the above applications. I understand that the application for Listed Building Consent (2972) for works to structures associated with Hampton Court Bridge has been withdrawn and the application for Conservation Area Consent (2971) has been amended to reflect this change. The full application for Planning Permission (2970) has been amended to retain the existing embankment structure and the weatherboarding to the proposed hotel changed to horizontal rather than vertical.
A new full application for Planning Permission (2008/1600) has been submitted which includes a redesigned hotel.
The proposals are for a residential and care home development, a new hotel, retail and commercial development, associated ancillary works and buildings, works to the transport interchange and new areas of public open space. English Heritage is particularly concerned at the likely impact of this development on views to and from Hampton Court Palace, its gardens and park; the setting of the listed Hampton Court Bridge, the banks of the River Thames and the cumulative impact upon the established character of East Molesey. I attach a copy of my letter of 20 December 2007 which comments upon application nos. 2970 and 2971 and which sets out our views upon the principle of development of this site.
English Heritage remains keen to encourage proposals which will improve significantly the setting of Hampton Court Station, views to and from Hampton Court Palace and to enhance the established character of East Molesey and Hampton Court. Hampton Court palace is a scheduled ancient monument and its gardens and parkland are Grade I Registered. Cumulatively, they are of outstanding national and international importance.
English Heritage does not wish to raise any objections to the proposed residential and commercial development to either side of the railway tracks and welcomes the erection of a new Royal Star and Garter Home, which will maintain the historic links of the Royal British Legion with this part of south west London. Also to be welcomed are much needed works of improvement and restoration to Hampton Court Station of the previously proposed works of hard landscaping between Hampton Court Bridge and Cigarette Island Park, which we considered to be of a scale and design inappropriate to this stretch of the Thames.
English Heritage has long felt that the objective of enhancing the setting of the Palace, the Station and the appearance of this part of East Molesey would best be achieved by creating a landscaped public park or space between the Station and the Thames, containing a number of modest and sympathetically designed structures to provide facilities for visitors and residents alike. We continue to feel, as a matter of principle, that your council should consider this approach very carefully.
In our letter of 20 December 2007 to your Council I expressed the hotel building designed by Allies and Morrison for this site would, by virtue of its height, scale, bulk and massing be entirely inappropriate to this highly sensitive location and that this harm to the established character and appearance of the undeveloped site would be exacerbated by the detailed design of the hotel building. The minor revisions to the cladding and eaves detail now proposed are recognised but fail to overcome earlier objections.
We suggested that discussions should be held to find a solution to the design and appearance of the proposed hotel and its setting which would ensure that if the principle of development were to be accepted in this location, the outstanding significance of Hampton Court Palce and its environs would be preserved.
The latest application for Planning Permission (2008/1600) shows a redesigned hotel, by Quinlan and Francis Terry Architects. English Heritage has been working closely with Gladedale Group Ltd and Francis Terry in the evolution of this redesigned building. We recognise that the floor space of the latest, proposed hotel building remains largely the same as the building we commented upon in 2007 but we feel that its design, appearance and architectural vocabulary all respond in a significantly more sympathetic fashion to this highly sensitive location and to the prevailing character of the place. The vernacular adopted harmonises with the varied but domestic scale of the architecture along this stretch of the Thames and, if built would have an infinitely less damaging impact upon views to and from the Palace and the environs of the Jolly Boatman site than the original proposal.
English Heritage's 'Conservation Principles, Policies and Guidance', published in April 2008 considers 'New Work and Alteration' and in Section 143 advises that:
'There are no simple rules for achieving quality of design in new work, although a clear and coherent relationship of all the parts to the whole, as well as to the setting into which the new work is introduced, is essential. This neither implies nor precludes working in traditional or new ways, but will normally involve respecting the values established through an assessment of the signi?cance of the place.'
English Heritage considers that the latest proposals for the hotel building respect this advice and are based on a proper understanding of the significance of the place. The design for the new hotel is appropriate to its immediate and wider setting on both sides of the Thames.
As important to the design of any new building between the Station and the Thames is the quality of the public realm which forms its setting. This needs to respond both to the setting of Sir Edwin Lutyens' grade II listed Hampton Court Bridge and its wider Thames side setting. We would suggest that before your Council determines these applications both the hard and soft landscaping of the new public realm needs to be discussed and agreed with all interested parties.
Should your Council decide to approve the proposal which includes the hotel designed by Quinlan and Francis Terry Architects it is essential that the high quality of their design for the hotel building and associated structures is matched by an equally high quality of detailing and execution. There needs to be a firm commitment from the Applicants to retain the services of these architects as the scheme develops.
English Heritage remains unconvinced that any proposal which includes a hotel building designed by Allies and Morrison is an appropriate response to this site and we are unable to support any application which includes this building. English Heritage would urge the Applicants to withdraw this planning application. If Elmbridge Borough Council is minded to approve this application English Heritage would need to consider very carefully whether we would advice the relevant Secretary of State to call in the application for her Determination.
English Heritage hopes that these comments will prove helpful to Elmbridge Council when considering these applications. We would be happy to discuss this matter further either with officers or members. English Heritage wishes to secure a scheme which will compliment the setting of significant heritage assets identified above and consider that if development on the site between the Station and the Thames is acceptable as a matter of principle, the designs submitted by Quinlan and Francis Terry Architects for a new hotel building, in conjunction with the designs submitted by Allies and Morrison for the residential and commercial development represent the most appropriate response to the site.
We would be most grateful if you could inform us of your Council's timetable for considering formally these applications."
"...the introduction of such a substantially scaled structure on to the site which is currently undeveloped would have a major, adverse impact on the established character and appearance on the setting of Cigarette Island Park, the station and Hampton Court Bridge and cross-River views. This harm is particularly exacerbated by the detailed design of the building which is entirely inappropriate for the conservation area and the wider setting from which it sits [emphasis added]. "
"if the principle of such development were to be accepted in this location … " [emphasis added]
"... design, appearance and architectural vocabulary all respond in a significantly more sympathetic fashion to this highly sensitive location and to the prevailing character of the place. The vernacular adopted harmonises with the varied but domestic scale of the architecture along this stretch of the Thames..."
are all wholly inconsistent with the maintenance of an in principle objection on the ground that height, scale, bulk and mass of the proposed hotel in the classical scheme was "entirely inappropriate to this highly sensitive location" and would have "a major adverse impact" upon it.
"English Heritage remains unconvinced that any proposal which includes a hotel building designed by Allies and Morrison is an appropriate response to this site and we are unable to support any application which includes this building. English Heritage would urge the Applicants to withdraw this planning application. If Elmbridge Borough Council is minded to approve this application English Heritage would need to consider very carefully whether we would advice the relevant Secretary of State to call in the application for her Determination. "
2) did not object to the grant of planning permission for the classical scheme on the ground that it would harm the setting of the Palace;
3) did object to the grant of planning permission for the boathouse scheme on that ground.
"We would still prefer to see nothing on this site but we felt this scheme was less harmful then the previous one."
in support of his submission that English Heritage still thought the classical scheme would cause some harm to the setting of the Palace. The report was not placed before Ouseley J and understandably the respondent and the interested parties objected to it being admitted in evidence. This case turns on the material that was placed before the Members on 18 December 2008. In any event it would not be appropriate to attach weight to such a short article which did not purport to be a full statement of English Heritage's views. If it was permissible to consider material that was not before the committee I would have placed significantly more weight on a letter written by the same team leader at English Heritage to a local resident who was objecting to the proposed redevelopment. That letter sought to explain English Heritage's position. In that letter the team leader said that English Heritage had advised the respondent in some detail of its views and added :
"As a matter of principle we would prefer to see the land between Hampton Court station and the river a landscaped open space with development restricted to the more immediate environment of the station. We consider that the proposal for a hotel on this site designed by Allies and Morrison Architects would have a particularly unwelcome impact upon the established character and appearance of the area and urged Elmbridge to refuse it planning permission, and they have now done so.
English Heritage felt that the development which included the hotel designed by Quinlan and Francis Terry Architects would be more likely to sit comfortably with the riverscape but again we advised Elmbridge that as a matter of principle we would prefer to see a landscape open space here "
The reasons ground.
"The proposal follows the recommendations of a detailed Planning Brief for the site and although it has been the subject of strong objection from some quarters it has attracted a satisfactory response from English Heritage, an enthusiastic response from CABE, and would deliver the redevelopment and regeneration of one of Britain's 'Worst Wasted Spaces' (CABE). The proposal has also met the technical requirements of specialist consultees such as the Environment Agency and Surrey County Council as Highways and Transportation Authority. The application has been considered against all the relevant national and local policies as well as the representations and consultation replies, and in all the circumstances it is concluded that on balance there are insufficient overriding reasons to refuse planning permission in the public interest."
"The reasons are short. The reference to there being "on balance…insufficient overriding reasons" to refuse permission, is inelegant but discloses no error of law. The fact that the reasons do not refer to s66 is not of itself an error of law. The reasons are broad but adequate. If inadequate for the statutory duty to give reasons, they are readily supplemented by reading the report to Council. I would grant no relief on that point."
"But it is also possible that some who voted for it took the view that some harm was done to the setting, but it is inconceivable that they still voted for the proposal without concluding that there were sufficiently strong countervailing factors. Why else would they have voted for it? There is no especial restriction on the factors which can lawfully outweigh such harm. This approach would comply with the statutory duty as well."
"9.12 Much weight must be given to the advice of the main national and county-level consultees: CABE, English Heritage, the Environment Agency and Surrey County Council's Highway and Transportation Section. These have all examined the schemes independently from the Planning Brief.
9.13 With the exception of English Heritage and the Boathouse scheme (see below), all these consultees are supportive of the applications.
9.14 CABE in particular is enthusiastic, commending all aspects of the schemes – the design, mix, quantum, distribution of massing, high quality and public realm improvements. This is an unusually positive endorsement of a development of this type from such a body and obviously stands in direct contrast to the objections from Historic Royal palaces – loss of opportunity for landscaped riverside, size, loss of views, harmful to setting of the Palace, traffic etc.
9.15 English Heritage's advice is more considered and reflects the fine balance that ultimately exists between those with strong views in favour and those against. They have considered the likely impact of the development upon views to and from Hampton Court Palace (including its gardens and parks), the setting of the listed Hampton Court Bridge, the banks of the River Thames and impact upon the character of East Molesey. They confirm they have no objection to the residential/commercial development either side of the railway tracks and welcome the Royal Star & Garter home. They acknowledge the aspiration to create a park between the station and the river, and comment that if this could be achieved it would deliver the most enhancement of the Palace and the area. But they also acknowledge that the design and appearance of the 'Classical' hotel building has taken account of their advice and 'is appropriate in its immediate and wider setting'. Conversely they still feel that the original 'Boathouse' design for the hotel would have an adverse impact upon the character and appearance of Cigarette Island Park, the station and Hampton Court Bridge as well as cross river views."
"The proposal follows the recommendations of a detailed planning brief for the site."
"...and in all the circumstances it is concluded that on balance there are insufficient overriding reasons for refusing planning permission in the public interest "
Lord Justice Toulson :
Lord Justice Pill :