England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		17th November 2008

1. IAN DOVE QC: Mr and Mrs Wilson Dyer Gough live at 15 West Street in the historic town of Oundle. They live in a listed building which, it appears from the papers, was constructed in around the late 17th century. Indeed, there have been recent findings within the listed building that suggest that it was around in 1656, and that the stone facing it came originally from Fotheringhay Castle. It was obviously originally a residential building, but at some point in the 19th century it became a shop. The claimants in this case came to it in around 2004 when planning permission was granted to turn the building over to a residential use, but without any alterations to its historic fabric.
2. Subsequent to that, on 20th April 2006, an application for listed building consent was made. The basis of that application (which is at page 30 of the bundle) was that the works which were to be undertaken were the rebuilding of part of the front elevation for structural reasons and a replacement window said to be as the original elevation.
3. That application was supported by a letter from a structural engineer, which is contained at page 47 of the bundle, dated 5th July 2004. The letter was written to the Planning Department and related to an inspection by the engineer and subsequent assessment of the building. In particular, paragraph 2 of that letter states as follows:

"The external face of the timber beam lined through with the external face of the stonework, and was masked by the shop front surround. This external face of the beam was noticeably rotten, and we assume that this was a result of rainwater seeping between the shop front surround and the stonework. It is possible, therefore, that the top surface of the beam may have been similarly affected, but this was not confirmed."

The letter went on to indicate the following calculations: the engineer was satisfied that the vertical loads placed upon the timber beam could not be catered for. The engineer was also concerned that the front of the building was not structurally sound, in particular in relation to its lateral stability. The engineer notes the thinness of the beams either side of the 19th century shop front and concludes:

"Consequently, we are of the opinion that the front elevation of the building is vulnerable to further structural movements resulting from eccentricities of loading or accidental damage."

4. As a result of these findings, the engineer proposed two options for remedial works, which are contained at pages 44 and 45 of the bundle. They are, in effect, an engineer's sketch superimposed over the existing ground floor plan of the property. The sketch at page 44, which is Option A, shows the insertion of steel load bearing beams, both vertically and horizontally, across the point where the shop front currently exists, but does not show any elevational changes as a result of that work. The Option B proposal at page 45 of the bundle shows, as an alternative, the reinstatement of stone masonry to the property, providing a far thicker load bearing capacity for the front elevation.
5. These options led to the drawing provided with the application for listed building consent contained at page 34 of the bundle, which shows at the top of the plan the existing elevation and at the bottom of the plan the proposed elevation, replacing the 19th century shop front with a window to form a symmetrical arrangement with the other windows on the front facade.
6. That application was considered by the Council under delegated powers, and at page 28 of the bundle we have a delegated report dated 5th July 2006 in which the officers considered the merits of the application. I do not propose to quote extensively from that document, because it suffices to record that in the report the officers were of the view, based upon their approach to national planning guidance in PPG15, that the shop front was worthy of retention and provided a positive contribution, both to the character and setting of the listed building and also to the surrounding conservation area.
7. They went on to consider the structural engineer's report and it is worthwhile quoting their assessment of the structural engineer's material. At paragraph 7.2.3 of the report they stated as follows:

"7.2.3. The structural engineer's report forming part of the application details suggests that stabilisation of the front elevation is required. The timber lintel currently in place has shown signs of deterioration and it is therefore proposed to introduce a steel support beam in its place which would run horizontally along the existing shop front supporting the vertical load. The introduction of steel is not historically correct and could easily be overcome by the use of a matching timber lintel. Similarly, further proposals include the introduction of vertical steel columns which again should be supported by timber if necessary. A stone buttress is acceptable in principle provided a suitable location can be identified which will not interfere with the existing timber gates providing entry to the rear of the property. While the need for structural support is acknowledged, the current proposals are unacceptable and must be revised prior to approval being given."

8. That report led to the conclusion that listed building consent should be refused, and a notification of that occurred on 10th July 2006. This led, on 20th November 2006, to an appeal by written representations, and I have, in the material before me, all of the documentation which was placed before the Inspector who, following a site visit, made a decision in a decision letter dated 25th May 2007, acting on behalf of the defendant to these proceedings. The decision letter is five paragraphs long, and it is important for the purposes of my decision to quote paragraphs 2 to 5 completely:

"2. The appeal relates to the listed building at 15 West Street. It is a stone built house from the 17th century with 18th century sash windows and a late 19th century shop front. The building has recently been converted back to a house following planning permission in 2004. Even with the residential use restored, I consider that the shop front is a feature which contributes to the special interest of the whole building and the character and appearance of the Oundle Conservation Area. I regard it as desirable that it be retained.

3. Planning Policy Guidance note 15: Planning and the Historic Environment (PPG15) says, at paragraph C52 of Annex C, that wherever shop fronts of merit survive they should be retained. Paragraph C6 of that Annex says that the wholesale reinstatement of lost elements of a building is inappropriate. It makes an exception for lost or destroyed elements to retain the integrity of the design, provided there is adequate information to confirm detailed historical authenticity, but adds that the reinstatement of features that were deliberately superseded by later historic additions should be avoided. In this case, the proposed removal of the shop front and its replacement by a domestic window, however faithfully made, would obscure the significant historical development of the building. That would also harm the Conservation Area, which would thus be neither preserved nor enhanced. The proposed works would be contrary to the advice of PPG15 and would fail to comply with Policies EN12 and EN18 of the East Northamptonshire District Local Plan.

4. The appellants provide a structural engineer's report. This includes that the existing beam above the shop front has some rot in it and that the beam is in any case inadequate. The report includes an alternative to the new window arrangement as proposed, whereby steelwork could be introduced to stabilise the structure. The Council would need to consider such a scheme in the first instance, but if works beyond a matching repair were shown to be necessary, it is clear from the engineer's report that they could be carried out without permanent loss of the shop front.

5. I have taken into account the benefits of the proposals to the occupants of the house. The shop front is not beyond repair and its retention does not preclude residential use. The exposure of the occupants to passing traffic, noise and vibration should be a stimulus to a more imaginative approach to provide improved living conditions, whilst preserving the shop front. With that in mind, I consider that the proposed works are not justified."

That decision leads to the matter being brought before me as a challenge under section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The application is brought under section 63 seeking the quashing of that decision. It is an action that was commenced on 6th July 2007.

9. The action proceeds on three grounds advanced by Mr Altaras. Firstly, he submits that there was no evidence to support the Inspector's conclusions, and in particular his approach to the structural engineer's material. Secondly, he submits that in various respects the Inspector's reasons are deficient. Thirdly, he challenges the decision on the basis of a contention that there was an alternative route open to the Inspector which would have enabled him to have approved at least the structural works, if not the replacement of the window. There was a procedural issue raised in respect of that third ground which I shall turn to at the time when I deal with it in this judgment.
10. The first aspect of matters, as I have indicated, relates to the contention that there was no evidence to support the Inspector's conclusions in respect of the way in which he dealt with the structural engineer's material. It is clearly the law, and not disputed, that if a conclusion is reached on the basis of no evidence at all then that amounts to a legal error. There is, however, an additional issue which needs to be addressed in the context of a planning decision, and that is that appeals of this kind are heard by an expert tribunal, and therefore that some latitude needs to be afforded to that tribunal in terms of applying their own expertise. This is a matter which was dealt with by Forbes J in Westminster Renslade Ltd v Secretary of State for the Environment and London Borough of Hounslow [1983] JPL 454. At page 455 the learned judge is reported as saying as follows:

"Of course, that was the appropriate thing to say in that case, but it did not at all follow that the Master of the Rolls was meaning to say that only in cases of aesthetics or common sense can an Inspector take his own view about a matter. The Inspector at a planning inquiry was a technical tribunal himself and he was entitled to make decisions, make value judgments or subjective judgments, about planning matters which fell within his qualification and expertise, which in most cases was very great. He did not have to have planning experts on both sides to tell him what the planning issues were or anything of that kind. He was perfectly able to make up his own mind for himself. There must be many many cases in which the decision turned on what was the view, the value judgment in planning terms, of an experienced Inspector on any planning proposal. He could not see that this was a matter with which this court could or should interfere."

Then on page 456 the judge went on to consider some submissions which had been made about noise evidence. He is reported as saying:

"The other point was the question of noise. There was a lot of evidence about noise. The only scientific evidence was evidence called by the appellants, although many local residents and groups voiced their apprehension about the noise. The expert evidence was of course necessarily based on various assumptions, because it was dealing with what was going to be the noise generated by the new bridge which ex hypothesi was not there.

The Inspector had concluded that it seemed to him important that the lives of the residents should not be worsened by increased noise.

One asked oneself why on earth should an expert Planning Inspector not have come to that conclusion perfectly properly, even if he had every single noise expert in the country ranged on the appellants' side? It did not seem to him that he was saying that there was necessarily going to be a tremendous lot of noise; he was putting it squarely on the point that this was a deprived area in the sense that it was an area which was now deprived of any form of silence and if you intruded more noise into that sort of environment you must expect people to react pretty sharply. It seemed to him that that was a perfectly proper view for an informed Inspector to take, so in his view he was entitled to take the view he did."

11. In dealing with Mr Altaras' submissions in this respect, he quite properly makes the submission that, whilst the Inspector may not have been bound to follow the advice of the structural engineer, if he was proposing to depart from it then it would be necessary for him to provide reasons to do so. Again, there was no dispute but that the proper approach to the adequacy of reasons in cases of this kind has been set out by Lord Brown in his speech in South Bucks District Council v Porter (No.2) [2004] 1 WLR 1953 where he says as follows:

"36. The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the 'principal important controversial issues', disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."

12. In my judgment, it helps to understand this ground of challenge to address, first, the proposition advanced by Mr Altaras that the Inspector provided inadequate reasons for the way in which he addressed the structural engineer's report. I have already set out those reasons provided in paragraph 4 of the decision letter, and I do not accept that there is any deficiency in them. Nor do I accept that they do not enable one to understand, having read them in the context of the appeal documentation, the conclusions that the Inspector was reaching. The Inspector was concluding that he accepted that the existing beam above the shop front was not adequate. He accepted that it had rot in it, but concluded quite sensibly that that was perhaps besides the point, bearing in mind the fact that it did not have an adequate load bearing capacity. What he is referring to when he refers to the new window arrangement is the plan which is shown on page 44 of the bundle; that is to say, that which involves the incorporation of the steel load bearing elements, and indeed that is precisely what he refers to in the sentence which refers to the alternative. What he is saying is that the provision of the kind of structural elements which are illustrated on page 44 do not inexorably lead to the loss of the, or a, shop front on a permanent basis.
13. The question then arises as to whether or not there was any evidence on the basis of which he could have reached such a conclusion. In my judgment, there is ample evidence for him to have relied upon and which he did, it appears to me from the decision letter, in fact rely upon in reaching that conclusion. Firstly, as I have already indicated, there was the information from the structural engineer himself, set out at page 44 of the bundle, which shows a substantial span of the elevation to the left-hand side of the front door being provided with structural stability as a result of the steelwork proposed. But secondly, he had, in support of that conclusion, the approach and evidence which had been taken by the Council. Mr Altaras, on behalf of the claimant, disputes that approach, but I must remind myself that the exercise on which I am engaged is not one which seeks to delve into the planning merits or second guess or re-resolve the issues which the Inspector has already deliberated upon. It is clear that, at least inferentially, the Inspector has accepted the Council's approach set out in their very detailed report. Lastly, he of course brings to bear on this issue, having received and considered the structural engineer's evidence, his own experience, both as an architect and as a person specifically qualified in historic buildings.
14. Thus, I do not accept that there is any merit in ground one of the challenge, either on the basis that the Inspector had no evidence for the conclusions which he made, or that he failed to provide adequate reasons for taking an alternative approach to the one which had commended itself to the architect and following on from the information contained in the structural engineer's report.
15. Ground two of the challenge relates to the issue of reasons. I have already considered the matter above in relation to the reasons related to the structural engineer's report. There are two other aspects of the reasons which are criticised by Mr Altaras. The first is the conclusion reached in paragraph 2 of the Inspector's decision when he regarded it as desirable that the shop front be retained as being a feature contributing to the special interest of the whole building and the character and appearance of the Oundle conservation area.
16. Mr Altaras is right that in paragraph 2 that conclusion is asserted rather than reasoned. The reasons are, however, to my mind, to be found clearly in paragraph 3, and I accept the submissions made both in written form and orally by Miss Leventhal that when one goes to the anti-penultimate sentence of paragraph 3, the reasons for that earlier conclusion are made clear, namely that "the proposed removal of the shop front and its replacement by a domestic window, however faithfully made, would obscure the significant historical development of the building". Thus the Inspector has clearly concluded, albeit a conclusion undoubtedly disputed by the claimant, that the 19th century shop front is a part of the building telling its story, a significant historical development in its evolution to the way in which it currently presents in its listed form.
17. Mr Altaras also criticises paragraph 5 of the Inspector's decision, suggesting that the Inspector's reference to the "exposure of the occupants to passing traffic, noise and vibration should be a stimulus to a more imaginative approach to provide improved living conditions, whilst preserving the shop front", was an unhelpful and obscure piece of reasoning in that it did not indicate what the Inspector considered the solution to the issue might be.
18. Miss Leventhal refers me directly to PPG15 and to a direct quotation of the language of imaginative approaches to listed buildings. Whether or not that was what was in the Inspector's mind specifically does not, in my judgment, matter. In my judgment, the Inspector's reasoning here is both clear and adequate as to the future in respect of further applications. It is clear that the language he uses of "whilst preserving the shop front", makes plain to the claimants in this case that that is now a requirement, whether in terms of the precise shop front itself or, as the Inspector said, something which goes beyond a matching repair, will be the starting point for the consideration of a future application in order to address such issues as are currently impinging upon the residential amenity of the claimants. Thus I am satisfied that this paragraph clearly passes the test set out by Lord Brown in the South Bucks v Porter case. Thus, ground two also must fail.
19. I turn then to the final ground. This was a matter which was not pleaded, but in his skeleton argument Mr Altaras formulated an appropriate amendment to his claim in order to articulate the basis of the ground. There was no procedural point taken by Miss Leventhal to the introduction of this new and unpleaded aspect of the case. I promised to read in the amendment and I do so now:

"4A. In the alternative, the application for listed building consent was in two discrete and severable parts, namely --

(a) rebuilding part of the front elevation; and

(b) replacing the shop front.

As far as the former was concerned, the unanimous evidence before the Inspector was that structural repairs were required to the front elevation of the building. For his part, the Inspector did not find that such repairs were not required.

4B. In the premises, if the Inspector's finding at paragraph 4 of his decision letter that it was possible to carry out the repairs without permanent loss of the shop front is unimpeachable, he should still have allowed that part of the appeal relating to rebuilding part of the front elevation, subject to the condition that, if the shop front was removed during the works, it should be reinstated."

20. In effect, as formulated in the course of argument, Mr Altaras submits that the application which was presented to the Council, and which I have described earlier, comprised two separate elements, the first related to the rebuilding and the provision of structural integrity to the front of the building, and the second to the creation of changes that would be consequent upon that; in this case the provision of a replacement window. Thus, he submits that if the Inspector, or indeed the Council, had supported the plan at page 44 of the bundle, which shows the arrangement of steel beams providing a wider span of structural support for the left-hand side of the elevation of the building, then that plan could have been the subject of approval subject to a condition calling for the details of the elevation which would flow from those works being carried out.
21. In response, Miss Leventhal says in the first instance that the local authority did not accept that plan in any event because they would insist upon the use of timber rather than steel. However, it is clear from paragraph 4 of the decision letter that the Inspector accepts that steelwork "could be introduced to stabilise the structure". The issue is whether or not the Inspector, having gone that far, should have issued an approval subject to a condition calling for further details of the elevation.
22. In my mind, such an approach is not within the ambit of the Act. It is to be remembered that an application for listed building consent necessarily implies that there will be either some change to, or addition to, the building which is listed. That is to say there will be an alteration from its current condition into one changed as a result of the consenting process. In that consenting process, the decision-maker is required by section 16 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have, in section 16(2), "special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses".
23. That section has to be read alongside the requirements for making an application for listed building consent contained in section 10 of the 1990 Act which at section 10(2) provides as follows:

"Such an application shall contain ...

(b) such other plans and drawings as are necessary to describe the works which are the subject of the application."

24. In my judgment, if an application were to be lodged on the basis of the provision of plans as to what was to be removed or altered, without the plans showing how the building would be presented after those changes, alterations or additions had been carried out, it would fail the test in section 10(2)(b) because it would not include the necessary drawings and it would fail because it would be impossible for a decision-maker to discharge the statutory duty under section 16 of the Act because he would not have the information necessary to have special regard to the desirability of preserving the building or its setting, or any features of special or historic interest which it possesses. Thus I am satisfied that the course suggested by Mr Altaras was not open either to the authority or to the Inspector.
25. In any event, there is, in my judgment, a further difficulty in Mr Altaras' way which is the presentation of the application and how it should have been interpreted. The application in this case comprises the application form, but also the structural engineer's report and, in my judgment most critically on this point, page 39 of the bundle which I described earlier, namely the plan showing the before and after proposed to be consented. In my judgment, any reasonable planning authority presented with the application comprised in this case would conclude that consent was being sought for the works described on page 34, and indeed it seems undoubted from my perusal of the documentation in the appeal, that that was how both parties approached this matter, both at the application stage and also on appeal.
26. Mr Altaras raises the point that, of course, taking the approach, that in my view is the only one consonant with the law, leaves the claimant with a listed building with structural questions around its front elevation and no solution forward. The answer to that is that no solution is provided in the context of this application. But there is of course the opportunity for other applications to be made, and no doubt those applications would need to be framed bearing in mind the views articulated by the Inspector at paragraph 5 of his decision, which I have already reflected on above.
27. For all of those reasons, this application must be dismissed.
28. MISS LEVENTHAL: My Lord, in light of your Lordship's judgment the first defendant would seek her costs of defending the appeal in the sum set out in the schedule.
29. IAN DOVE QC: I do not have the schedule.
30. MISS LEVENTHAL: May I pass you up a copy. (Handed). My Lord, I do not understand the principle of costs to be opposed by my learned friend, but I think he has a couple of points on quantum. If I am correct on that, perhaps he could proceed to deal with those now.
31. MR ALTARAS: My Lord, I cannot oppose an application for costs but what I do say is that on page 2 of the schedule, under "Work done on documents", the time spent of 14.4 hours on documents is grossly excessive. Even half that might be thought to be fairly excessive when carried out by the Treasury Solicitor. I would suggest that that figure can properly be reduced. That is the only submission I have.
32. MISS LEVENTHAL: My Lord, a quick point in response. You will see, my Lord, the total sum set out in the schedule comes to £3,870 which as a broad sum for a claim of this nature is, in my submission, absolutely reasonably proportionate. Taking the point raised by my learned friend, you will see there is a schedule at the back of the statement and on page 2 you will see where the 14.4 hours comes from. My Lord, a trainee carried out some advice to the Secretary of State and it is that which constituted the 14.4 hours. My Lord, the trainee costs £90 an hour. If it had been carried out by a more senior solicitor less time would have been spent, but that would have been more expensive by the hour. In light of the total sum, no specific reason is given why that amount of time is disproportionate. I would ask that the sum be assessed in the total sum set out.
33. IAN DOVE QC: Mr Altaras, anything you would like to say in response?
34. MR ALTARAS: No, thank you.
35. IAN DOVE QC: I am going to enter judgment for the defendant and I am going to assess costs in the sum of £3,500. Any further orders?
36. MR ALTARAS: No, my Lord.
37. IAN DOVE QC: Thank you.