QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF JEWSON HOLDINGS LIMITED||(CLAIMANT)|
|THE FIRST SECRETARY OF STATE AND THE DEPUTY PRIME MINISTER||(1ST DEFENDANT)|
|THE VALE OF THE WHITE HORSE DISTRICT COUNCIL||(2ND DEFENDENT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR P COPPELL (instructed by Treasury Solicitor, London SW1 9JS) appeared on behalf of the DEFENDANT
Crown Copyright ©
"48. It is necessary to consider how inspectors' reports and decision letters should properly be approached. There is much learning on this subject, but the principles are by now clear and not really in dispute. Essentially, the reasons given must be proper and adequate. There is a duty to set out the major steps in the reasoning which led to the decision in question, and it is necessary also to state the conclusions reached on the principle issues raised and which had to be decided. It is, however, unnecessary to refer to all matters (even though they may be material) if they are not significant.
"50. The parties must know why they have won or lost, and what conclusions have been reached on the principal important controversial issues. Furthermore, in my judgment, it is necessary that the decision be read fairly. Thus where, as here, an inspector directs himself as to the materiality of a particular issue, it should not be assumed that any later observations are in conflict with that direction, unless there is no other reasonable meaning to be attached to what the inspector has said.
"51. The same principle, as it seems to me, should apply to alleged errors of law. Any experienced Inspector would have known that he must not introduce new policy considerations. What he said might perhaps, on one interpretation, be capable of being construed as though he was wrongly doing that. That indeed is the construction that [counsel] has urged upon me. But that construction should not be placed on his words unless no other is reasonably to be found from what he has said."
I propose to direct myself in accordance with those observations which seem to me also to be well established by other authorities.
"English Heritage believes that there should be a general presumption against 'enabling development' which does not meet all of the following criteria."
"It is demonstrated that the amount of enabling development is the minimum necessary to secure the future of the heritage asset, and that its form minimises disbenefits."
"Enabling development is development that is contrary to established planning policy -- national or local -- but which is occasionally permitted because it brings public benefits that have been demonstrated clearly to outweigh the harm that would be caused. The benefits are paid for by the value added to land as a result of the grant of planning permission for its development, so enabling development can be considered a type of public subsidy. It has been proposed in support of a wide range of public benefits, from opera houses to nature conservation, but this guidance is concerned primarily with enabling development proposed to secure the future of heritage assets."
"Thus, unlike most planning applications, financial issues are central to determining proposals for enabling development."
"The essence of a scheme of 'enabling development' is that the public, typically the community in a particular area, accepts some disbenefit as a result of planning permission being granted for development which would not otherwise gain consent in return for a benefit funded from the value added to the land by that consent. Such proposals are normally only entertained when the funds can not be generated in any other way. So unlike most planning decisions, the financial consequences of the granting of permission are not only relevant, but fundamental to the decision making process."
And then a little further down:
"These are not decisions to be taken lightly. They should follow the evaluation of all potential options as part of the assessment process. The enabling development may, for example, lie within a Green Belt, on which government policy is clear; indeed the principle is relevant to all decisions involving enabling development.
"Inappropriate development is by definition, harmful to the Green Belt. It is for the applicant to show why permission should be granted. Very special circumstances to justify inappropriate development will not exist unless the harm by reason of inappropriateness and any other harm is clearly outweighed by other considerations.
"In summary, an enabling development is an established and useful planning tool by which a community may be able to secure the future of the heritage asset, and sometimes other benefits, provided it is satisfied that the balance of public advantage lies in doing so."
"Much of the information the local planning authority requires for a scheme of enabling development is the same as for any development involving a listed building, its setting, or any other sensitive location in which design and materials are particularly important. The main difference is that financial considerations are fundamental to the decision from which follows a need not only for information to be supplied, but also for critical assessment by appropriately qualified professionals. Thus the local planning authority should ensure that it has sufficient information to make an informed decision upon the application."
"Save for historic entities discussed above, before any enabling development should be considered, the applicant needs to demonstrate that real efforts have been made without success to continue the present use, or to find compatible alternative uses for the asset. This should normally include the offer of the unrestricted freehold on the open market at a realistic price reflecting the condition of the asset, and, so far as ownership allows, with an appropriate curtilage. The offer of a lease only, or the imposition of restrictive covenants would normally reduce the chances of finding a new use."
"In financial terms, the case for enabling development normally rests on their being a conservation deficit. This is when the existing value (often taken as zero) plus the development cost exceeds the value of the heritage asset after development. Development costs obviously include not only repair, but also, if possible or appropriate, conversion to optimum viable use and a developer's profit appropriate in the circumstances. A development appraisal in such cases produces a negative residual value. If so, enabling development (provided it meets the other criteria in the Policy Statement) may be justified, but only sufficient to cover the conservation deficit, ie to bring the residual value up to zero."
"In my view there are two main issues in this appeal. There is no dispute that the new buildings included in the appeal proposal would constitute inappropriate development in the Green Belt and the first issue is, therefore, whether there are any very special circumstances sufficient to outweigh the normal presumption against such development. The second main issue is the impact on the listed buildings and their setting."
"English Heritage has issued guidance on enabling development in the form of its 2001 publication entitled Enabling Development and the Conservation of Heritage Assets, which includes a Policy Statement and Practical Guide to Assessment (PSPGA). I regard this as an important material consideration in the context of this appeal."
"17. The English Heritage policy statement and practical guide to assessment states that there is a presumption against such proposals. Paragraph 4.6.1 of the PSPGA says that, before any enabling development is considered, applicants must demonstrate that real efforts have been made, without success, to continue the present use or to find compatible alternative uses for the asset. This should normally include the offer of the unrestricted freehold on the open market at a realistic price reflecting the condition of the asset. This has not been done and the appellants say that their development appraisal shows it to be unnecessary.
"18. Much time at the inquiry was taken in exploring the conflicting views of the parties with regard to the Development Appraisal. Paragraph 5.1.2 of the PSPGA describes the appraisal process as a matter of informed professional opinion, which is not an exact science even if carried out with all due thoroughness. Paragraph 5.3.1 says that appraisals are, by their very nature, prone to inaccuracy because of the large number of variables, particularly building costs and projected end values. For these reasons, although there may well be circumstances where such appraisals provide the only means of assessing a proposal, I do not regard them as substitute for full market testing or as a wholly reliable indicator of whether market testing should be undertaken. I therefore consider that, in the absence of any effort to market the site at a realistic price, the case for enabling development has not been made out.
"19. I see no reason to doubt that the conversion of the barns into office use, for which listed building consent has been granted, would preserve these Heritage assets and secure their long-term future in sympathetic use. However, although the appellants say that it is not viable to undertake development of the scheme that was approved in 2000, I do not regard that as being, in itself, a good argument in support of the appeal proposal. The appeal proposal may well provide one viable form of development but paragraph 1.4 of the PSPGA says that developers should explore a range of development strategies. In my view, the appellants have produced insufficient evidence to demonstrate that this has been done. In particular, I am not persuaded that they have fully and objectively explored the council's suggestion that the barns could be repaired and put to a beneficial low key use such as storage without the need for enabling development.
"20. The council argues that the conversion works go beyond what is needed in order to simply repair the buildings and put them to a low key beneficial use. The appellants sought to address this criticism at the inquiry by identifying the costs of repair items (Document 11) in its Development Appraisal. However, I am not persuaded that these figures, taken out of context, necessarily represent a fair assessment of the cost of essential repairs to the barn. There is no evidence before me to suggest that the appellants have assessed the cost of simply repairing the barns other than as part and parcel of a conversion scheme.
"21. I consider that the appellants have therefore failed to demonstrate that the amount of development proposed on the site is the minimum necessary in order to secure the repair and long term future of the listed buildings. Consequently I consider that in this instance the need for enabling development does not amount to a very special circumstance sufficient to outweigh the presumption against the inappropriate development in the Green Belt.
"22. My conclusion on this issue is that there are no very special circumstances sufficient to outweigh the normal presumption against inappropriate development in the Green Belt and that the appeal proposal would conflict with Policy G4 of the Structure Plan and Policy G1 of the Local Plan."
"I therefore consider that in the absence of any effort to market the site at a realistic price, the case for enabling development has not been made out."