IN THE QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
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|BOLSOVER DISTRICT COUNCIL EX PARTE PATERSON
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
MS MARY COOK FOR THE RESPONDENT
Crown Copyright ©
Mr Justice COLLINS:
"From the outset the setting of both listed buildings was a major consideration in all discussions with the owner and his agent".
"a single storey service building in this location would not significantly affect the setting of the hall or the coach house".
She accepted that the hall should be able to have a garage and so was able to recommend that a replacement garage would be acceptable in principle.
"[it] did not appear that the Coach House was a separate dwelling unrelated to the main hall".
Mr. Clarke has deposed that he himself was aware of the separate listing and that the stable block had been divided into two residential properties because he had paid visits in connection with grants for repairs in 1987 and 1998. He was referring in his letter to Miss Empsall's error.
"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority ... 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".
There has been some argument whether the council should have had regard to any or which Development Plan policy in considering the application. But this was a barren argument since it is common ground that no policy, whether or not it should have been considered, adds anything of substance to the requirements of s.66(1). Putting it very shortly, Mr. Druce contends that Mr. Clarke failed to consider the impact of the proposed garage on the coach house as a separate listed building to the hall. Miss Empsall's error led her to focus on how the hall and the setting would be affected and to fail to carry out a similar exercise in relation to the setting of the coach house. Mr. Clarke's own knowledge of the true position did not lead him to correct this error: certainly, there is nothing in writing to suggest he did.
"Taking into account the development plan, and all other material considerations identified, I could see no justifiable reason to refuse planning permission. I disregarded the case officer's references to only one listed building as I was well aware that the Coach House was a listed building and separately occupied from my own personal knowledge of this site".
His knowledge of the area and the photographs (which are before me) enabled him without a site visit to decide that the application would be approved.
"Spoke to Mr. Oxley (agent) requesting temp. halt as they may face an injunction from a neighbour but that I had no formal powers to act".
On 5 July there was a site meeting attended by the applicant, "his planning advisor", Mr. Chadwick, Mr. Clarke and Ms Carlen. The applicant asked if the garage could be resited, but this was said not to be possible since any other site would adversely affect the setting of the hall. He also made clear he intended to take action to try to get the planning permission set aside. Mr. Clarke recalls that he spoke to Mr. Chadwick after the applicant had left and told him that he could see no reason why the building operations should not continue since the planning permission was in place and, if the council were persuaded to revoke it, (itself improbable) compensation would be payable. I appreciate that I may be taking advantage of hindsight, but I think perhaps it might have been better to have advised a short suspension to enable the council to consider what to do. Mr. Chadwick need not have acquiesced, but at least he would have been put on notice and given the opportunity to avoid additional expense.
"We have a substantial amount of work to do in a short time frame and we are lay people and have to learn as we go. We were denied a proper time frame in a sense to begin with".
The chairman replied in a letter of 30 July. He made the point that when considering the possibility of revocation, the council had to take the compensation implications into account. That is wrong: see R v Secretary of State for the Environment, Transport and the Regions ex parte Alnwick D.C. Richards J (unreported) 4.8.99. But more importantly he refused to adjourn the matter to the next meeting fixed for 8 September since there was urgency because "revocation cannot be taken against building works which have been completed". While that may be technically correct, there is always power to require a structure which has been built without permission to be removed. Nevertheless, it is better to move quickly if possible, but Mr. Chadwick had been warned and it was in my judgment unreasonable to expect Mr.
Paterson to put forward a proper objection by 4 August. The adjournment he requested should have been granted.
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Monday, 26th June 2000
MR JUSTICE COLLINS: The parties have had the handed down judgment in advance. Thank you for the various corrections. If there are any others that have been spotted, now is the time to say. Nothing? Then, for the reasons given, the grant of planning permission will be quashed. Any consequential orders?
MR DRUCE: My Lord, I seek one: the respondent council to pay the applicant's costs in the sum of £12,582.00, in accordance with the schedule that has been distributed. MISS COOK: I have no objections.
MR JUSTICE COLLINS: That is a reasonable sum, is it? MISS COOK: Yes.
MR JUSTICE COLLINS: Sorry, what was that figure again? MR DRUCE: £12,582.00.
MR JUSTICE COLLINS: In that case the application will be allowed with £12,582.00 costs.
MR DRUCE: My Lord, I am grateful.