England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		4th May 2007

Mr Justice Keith:

Introduction

1. Wray Farm is one of Surrey's jewels. It is a Grade II 17^th century listed building in a built-up part of Reigate. It is of considerable architectural and historic interest. Sir Colin and Lady Chandler live there. They moved there in April 2004 after commissioning extensive works of restoration. Lady Chandler had lived nearby before she married, and moving into Wray Farm was described by Sir Colin as "a dream come true for her".
2. On the other side of the road is a modest bungalow. It is one of a number of more recent bungalows and houses in the area. It is of no architectural merit or historic interest. It currently has two bedrooms. Richard and Glenys Moore live there. Mrs Moore's son told me that Mr Moore, his stepfather, is not in the best of health, and that Mrs Moore wants a carer for him to live with them. They need at least one additional bedroom for that. Accordingly, they applied to the local planning authority for permission to construct a modest extension to the bungalow. They used the opportunity to apply for permission to enlarge the bungalow's porch. The planning department recommended that the application be granted subject to certain conditions being fulfilled.
3. Sir Colin was worried that the extension would affect the setting of Wray Farm. Moreover, both Wray Farm and Mr and Mrs Moore's bungalow are within a conservation area, and Sir Colin was concerned about the impact which the extension would have on the character and appearance of the area. He lodged an objection to Mr and Mrs Moore's application, and exercised his right to appear personally before the Planning Committee. His advocacy was successful: the local planning authority refused Mr and Mrs Moore's application.
4. Mr and Mrs Moore appealed against that decision. The appeal was heard by an inspector appointed by the Secretary of State for the Communities and Local Government. He allowed the appeal, and granted Mr and Mrs Moore the planning permission which they had sought, again subject to certain conditions being fulfilled. But Sir Colin claims that in reaching that decision the Inspector erred in law. He has therefore applied to the High Court, under section 288(1) of the Town and Country Planning Act 1990 ("the 1990 Act"), for an order quashing the Inspector's decision. It is not contested that he is "a person aggrieved" by the Inspector's decision for the purpose of section 288(1) of the 1990 Act, and that he therefore has the standing to make this application. The defendants are the Secretary of State and Mr and Mrs Moore, and although Mrs Moore and her son attended the hearing before me (the latter addressing me briefly about why his mother and stepfather are so keen to have the extension), the real opposition to the application comes from the Secretary of State.

The nature of the proposed development

5. Wray Farm and Mr and Mrs Moore's bungalow are on opposite sides of Raglan Road. The neighbourhood was described by the Inspector as "attractive … with great residential amenity". It includes "many houses of period style and character". He described Wray Farm as "dominating" the area. It is set back from the road, with another listed building, Wray Farm Barn, next to it. Wray Farm and Wray Farm Barn can clearly be seen from Wray Common, a large open space nearby. Wray Common gives its name to the conservation area in which Wray Farm, Wray Farm Barn and Mr and Mrs Moore's bungalow are located.
6. Although planning permission was refused for the whole of the proposed development, which meant that it was refused for the enlargement of the porch as well as for the construction of the extension, the Inspector noted that no issues arose about the proposal to enlarge the porch. The dispute related to the extension. The proposal was to construct the extension at the end of the bungalow nearest Raglan Road. It would provide two extra bedrooms. The external measurements of the extension would be 5.6 metres by 6.5 metres. It would have a pitched roof with a ridge line lower than the ridge line of the existing bungalow. It would be set at an angle of about 40° to the side of the road, so that the nearest corner of the extension would be 4 metres from the roadside. There would be no windows facing the street. The brickwork and other materials would match those of the existing bungalow. In scale, size and character, it would be subordinate to the existing bungalow. The design complied with local housing policies. An inspection of the site persuaded the Inspector that the privacy of the bungalow's neighbours would not be affected.

The application for planning permission

7. The local planning authority, the Reigate and Banstead Borough Council, refused planning permission on two grounds. First, it was thought that the proximity of the proposed extension to the roadside and its prominence "in the street scene" of Raglan Road would have "an adverse impact on the character and appearance" of the Wray Common Conservation Area ("the conservation area point"). That would have resulted in the proposed extension conflicting with two plans: Policy SE5 of the Surrey Structure Plan 2004 ("the Structure Plan") and Policy Pc13 of the Reigate and Banstead Borough Local Plan 2005 ("the Local Plan"). Secondly, the design of the bungalow and its proximity to Wray Farm and Wray Farm Barn meant that it would "intrude adversely into [the] settings" of these two listed buildings ("the listed buildings point"). That would have resulted in the proposed extension conflicting again with Policy SE5 of the Structure Plan as well as with Policy Pc9 of the Local Plan.
8. Mr and Mrs Moore's appeal against the refusal of planning permission was considered on the basis of written representations. Sir Colin continued to object to the grant of planning permission, and he and others made representations against it. Likewise, the Inspector received a number of letters of support for the proposed extension. He took a different view from the local planning authority of the impact of the proposed extension on both the conservation area and the two listed buildings. He thought that the character and appearance of the conservation area would be "preserved ". As for the listed buildings, he concluded that the proposed extension "would not alter their outlook in any significantly harmful way" and "would not have a significantly harmful effect on their setting". Accordingly, by his decision dated 31 August 2006, the Inspector allowed the appeal, and granted planning permission for the proposed extension in accordance with an amended drawing which had been lodged prior to the local planning authority's decision to refuse the application, subject to a number of conditions, none of which are material to the present application.

The basis of the current application

9. There is no challenge to the Inspector's decision on the listed buildings point, i.e. the impact of the proposed extension on the two listed buildings. The current application relates only to his conclusion on the conservation area point, namely that the proposed development would "preserve" the character and appearance of the conservation area. The short point which is taken is that the Inspector applied the wrong test. It is not sufficient, so it is said, for the development to "preserve" the character or appearance of the conservation area. For the Inspector to have allowed the appeal, he had to have been satisfied either that the character or appearance of the conservation area would be enhanced by the proposed development, or if they would not be enhanced, that there was a particular reason why some lesser test – for example, that the character or appearance of the conservation area would be preserved – should be applied.

The development plan

10. By section 70(2) of the 1990 Act, the Inspector had to "have regard to the provisions of the development plan". In consequence, his determination had to "be made in accordance with the plan" unless material considerations indicated otherwise: see section 38(6) of the Planning and Compulsory Purchase Act 2004. Since the Structure Plan and the Local Plan constituted the relevant development plan, the Inspector's determination had to be made in accordance with those plans, unless material considerations indicated otherwise.
11. Policy SE5 of the Structure Plan stated, so far as is material:

"Surrey's valuable cultural heritage of buildings, sites and landscapes will be conserved and enhanced. Heritage resources are irreplaceable and development affecting them will only be permitted where it has been clearly demonstrated that there is an overriding need for the proposal which outweighs the need to protect the heritage interest, and that no alternative is possible."

The accompanying commentary on the policy said that the policy "will ensure that development conserves the heritage, and, where possible, enhances it as well". The commentary also said that the ways in which local planning authorities were to implement this policy included "promot[ing] schemes for enhancement of conservation areas". In this paragraph, as in the next two, the words italicised are my emphasis.

12. Policy Pc13 of the Local Plan stated, so far as is material:

"All new development in conservation areas, including additions and extensions, will be carefully controlled in terms of design, scale, colour, materials, landscape setting and impact on the skyline in order to complement and enhance the character of the conservation area. There will be a strong preference for pitched roofs and traditional building forms and traditional materials."

The accompanying commentary on the policy included the following statement:

"Proposals for new developments in conservation areas will be considered in terms of the effect on the character of the area and whether or not it would serve to preserve or enhance that character. This would normally preclude large-scale schemes, and the emphasis will be on the selective renewal of individual buildings which are not of any great architectural or historic merit or of any significant townscape merit."

The relevant statutory provision

13. There is one statutory provision relating to conservation areas which is relevant to the present application. That is section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act"). That required the Inspector, when considering an application for planning permission in a conservation area, to pay "special attention … to the desirability of preserving or enhancing the character or appearance of that area".
14. There is a well-recognised distinction between the preservation of a conservation area on the one hand, and its enhancement on the other. In South Lakeland District Council v Secretary of State for the Environment [1991] 1 WLR 1322, the Court of Appeal had to decide what the word "preserving" in the statutory predecessor of section 72(1) of the Listed Buildings Act meant. It held that the character or appearance of a conservation area were preserved within the meaning of the provision where they were not harmed. Accordingly, a development which was neutral in its effect on the character or appearance of a conservation area – in the sense that it made no positive contribution to their preservation but left them unharmed – could properly be said to preserve its character and appearance. But one of the reasons why the Court of Appeal construed "preserving" in that way was because of its juxtaposition with the word "enhancing". As Sir Christopher Slade said at p.1330C-D:

"The word 'preserving' is used in the subsection in conjunction but in contrast with the word 'enhancing', which itself imports the notion of positive improvement."

15. However, although there is a clear difference between the character or appearance of a conservation area being preserved, and its character or appearance being enhanced, section 72(1) of the Listed Buildings Act cannot be said to have been intended to limit development in a conservation area to that which enhances its character or appearance. Indeed, the House of Lords have said that the objective of the predecessor of section 72(1) of the Listed Buildings Act can be achieved either by the positive enhancement of the character or appearance of the area or by a development which leaves its character or appearance unharmed. That was the effect of the observations made by Lord Bridge of Harwich, with which the other members of the House of Lords agreed, when the South Lakeland case got to the House of Lords – reported at [1992] 2 AC 141. He said at pp.150G-151A:

"… where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise is 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 [the predecessor of section 72(1) of the Listed Buildings Act] were to inhibit any building development in a conservation area which was not either a development by way of restatement 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."

16. There is no doubt that the Inspector had section 72(1) of the Listed Buildings Act at the forefront of his mind when he came to consider the conservation area point. He cited it early on in the document containing his decision and the reasons for it. In particular, he referred to the requirement for him to consider "whether the proposed development would preserve or enhance" the character of the area. He expressed his conclusion on the issue which section 72(1) required him to pay special attention to in language which tracked the words of section 72(1):

"Subject to conditions, I conclude that the proposed development would preserve the character and appearance of the conservation area."

There is no suggestion that it was not open to the Inspector to reach that conclusion. The Inspector was at pains to point out that Mr and Mrs Moore's bungalow was surrounded on the roadside by thick trees and hedges. He noted that this vegetation screened the bungalow from view. Indeed, he thought that it contributed to the character of the conservation area. In those circumstances, it is unsurprising that the Inspector did not think that the proposed development would have an adverse affect on the conservation area.

17. Having concluded that the proposed development would preserve the character and appearance of the area, the Inspector went on to say that it would "therefore" not conflict with the policies in the Structure Plan and the Local Plan. That shows two things. First, he was aware of those policies, and must have considered the relevant features of them. Secondly, he did not think that there was anything in them which called for him to address what section 72(1) required him to pay special attention to in any different way. The question which this application raises is whether the Inspector was right in that respect, or whether the Structure Plan and the Local Plan required him to consider (a) whether the proposed development would enhance, rather than merely preserve, the character or appearance of the conservation area, and (b) if it did not, whether there was some other compelling reason for permitting the development.

The proper construction of the development plan

18. The Structure Plan. The Structure Plan was rightly described by Mr Christopher Lockhart-Mummery QC for Sir Colin as operating at a "high-tier" level. That was a significant concession. The plan is a broad statement of policy, and was not intending to suggest, let alone lay down, any test for determining the acceptability of development, whether within the county as a whole or in its conservation areas in particular. Indeed, when Policy SE5 of the plan (which is headed "Protecting the Heritage") spoke of the conservation and enhancement of Surrey's valuable cultural heritage, it was doing no more than stating the laudable objective that the heritage was to be protected.
19. It is true that the policy speaks of development only being permitted "where it has been clearly demonstrated that there is an overriding need for the proposal which outweighs the need to protect the heritage interest, and that no alternative is possible". But if "the heritage interest" is not going to be harmed by a particular development, because the development's impact on the heritage is going to be neutral, "the need to protect the heritage interest" will not have been undermined by the development.
20. In any event, the need for the development to enhance the heritage cannot have been what those who adopted the policy had in mind. The policy was described as seeking to "ensure that development conserves the heritage, and, where possible, enhances it as well". Mr Lockhart-Mummery said that the commentary could not detract from or dilute the policy. That is true, but the commentary can be used as an aid to construing what the policy actually means – bearing in mind at all times that documents like the Structure Plan (as well as the Local Plan for that matter) are usually drafted by planners for planners. They are not, as Davis J said in Cranage Parish Council v First Secretary of State [2004] EWHC 2949 (Admin) at [49], "intended to be legally binding documents in the strict sense", and "the relevant phrases will often be hardly sensible of bearing a strict hard-edged interpretative approach". The policy was undoubtedly making it clear that is was desirable that any development would enhance the heritage, but I have no doubt that it was not making the enhancement of the heritage a pre-condition for development. Nor was it saying that development which did not enhance the heritage could only proceed if some good reason for it could be shown. It was merely saying that development would only be permitted if it was consistent with the overarching aim of protecting Surrey's cultural heritage, and did not have an adverse effect on that heritage.
21. Similarly, little store can be placed on the statement that "promot[ing] schemes for enhancement of conservation areas" would be one of the ways in which the policy would be implemented. Promoting schemes which enhance conservation areas cannot be regarded as inconsistent with development being permitted in conservation areas which in terms of protecting the heritage is likely to be neutral. This statement in the policy cannot be read as laying down any rule that development in a conservation area which does not enhance the heritage of the area will only be permitted if a good reason for the development can be shown.
22. The Local Plan. Similar considerations apply to the Local Plan. Although it speaks of development being carefully controlled "in order to complement and enhance" the character of the conservation area, there are strong indications that the Local Plan was only setting its face against developments which are not in keeping with the character of the area. That is borne out by a number of factors. First, that is the natural meaning of the word "complement" which is used, unlike the word "preserve" in the commentary. Secondly, there is the emphasis placed in the policy on particular features of any proposed development – its design, scale, colour, materials, landscape setting and impact on the skyline. The sense which one gets is that what the policy is seeking to lay down is that in all those respects the development will harmonise with the character of the area. I digress here to mention that at one stage Mr Lockhart-Mummery was suggesting that the Inspector did not address these particular features of the development separately. It is true that the Inspector did not enumerate them one by one in the document containing the reasons for his decision, but with the exception of the impact on the skyline (it being obvious that there would be no impact), each of the features was referred to in one place or another.
23. Thirdly, the policy dealt, in addition, with two particular types of development – development which involved a change of use and new development. Of those types of development, the policy said:

"Changes of use should not detract from the character of the conservation area particularly if residential property would be affected. New development in the vicinity of conservation areas should be designed to respect the character and setting of buildings within the conservation area."

It is noteworthy that when the policy focused on particular types of development, it used language consistent only with the need for the development to be in keeping with the character of the area, and not with the need for the development to enhance it. Finally, as with the Structure Plan, the need for the development to enhance – in this case the character of conservation areas in particular rather than Surrey's cultural heritage in general – cannot have been what those who adopted the policy had in mind. The commentary on the policy described it as requiring proposals for new development in conservation areas to be considered in terms of whether or not they would serve to "preserve or enhance" the character of the area.

24. The fact of the matter is that the reasoning of Lord Bridge in the South Lakeland case in relation to the statutory provision under consideration in that case applies with just as much force to the Structure Plan and the Local Plan. If those who adopted them had intended to inhibit any development in a conservation area which was not either a development by way of reinstatement or restoration on the one hand or a development which positively enhanced the character or appearance of the area on the other, the relevant provisions in the plans would surely have been expressed in language which made that intention clear. In the circumstances, I have concluded that neither the Structure Plan nor the Local Plan made development within a conservation area permissible only if the cultural heritage or the character of the area were enhanced by it or if some good reason for the development could be shown. The enhancement of the heritage and the character of the area were desirable, but development could be permitted even if the heritage or the character of the area were not going to be improved by it, provided that the heritage and the character of the area were not going to be adversely affected by it.
25. I do not believe that the development plan can be said in those circumstances to have required the Inspector to adopt a more stringent approach than that required by section 72(1) of the Listed Buildings Act. But to the extent that it did – in that it required him to dismiss the appeal if the development would not preserve Surrey's cultural heritage and the character of the Wray Common conservation area rather than requiring him merely to pay special attention to the desirability of preserving it in his determination of the appeal – I have borne in mind what Mr David Keene QC (as he then was) said in Hetherington (UK) Ltd. v Secretary of State for the Environment [1994] 2 PLR 9 where there was alleged to be a conflict between the relevant statutory provision in that case – section 66(1) of the Listed Buildings Act – and the development plan. At p. 18B-E, he said:

"Neither respondent sought to argue that section 54A [the predecessor of section 38(6) of the Planning and Compulsory Purchase Act 2004] and the development plan policy in some way overrode section 66(1) of the Listed Buildings Act. Clearly, that cannot be the case. They are separate statutory duties. Nor can section 66(1) be ignored simply because the approach it embodies does not accord with the policy in the statutory development plan. Section 54A has given added emphasis to the development plan in development control decisions, but it is of course not the end of the process of consideration. Any decision maker still has to consider whether 'material considerations indicate otherwise'. At its lowest, such material considerations must include the statutory obligation to have 'special regard to the desirability of preserving' a listed building, its setting or its relevant features. That objective thus remains one to which considerable weight should be attached … If it points to a different outcome from that indicated by the development plan, it will be for the decision maker to weigh these matters and to arrive at a judgment."

There can in the present case have been no question of the Inspector reaching a different conclusion even if a more stringent approach had been required by the development plan than that laid down by section 72(1) of the Listed Buildings Act. That is because the Inspector expressly concluded that the proposed development would preserve the character and appearance of the area. He was not simply saying that in deciding to allow the appeal, he had paid special attention to that desirability.

Conclusion

26. For these reasons, I have concluded that there are no grounds to question the validity of the Inspector's order, and that this application must accordingly be dismissed. As I told the parties at the conclusion of the hearing, I wish to spare them the expense of attending court when this judgment is handed down. At present, I see no reason why costs should not follow the event, and my provisional view is that Sir Colin should pay the Secretary of State's costs of this application, which provisionally I summarily assess at £5,697.66. If Sir Colin wishes to argue otherwise, his solicitors should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide what order to make as to costs without a hearing on the basis of such written representations as the parties wish to make. If Sir Colin wishes to apply for permission to appeal, his solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will decide that issue as well without a hearing on the basis of such representations as are made. Any appellant's notice will still have to be filed within 21 days of the handing down of this judgment.