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
		30/05/2012

Mr Justice Cranston:

INTRODUCTION

1. This is a claim for judicial review of a decision of the defendant, Waverley Borough Council ("the Council"), acting as the local planning authority. That decision was to grant planning permission and listed building consent for a scheme of conversion, extension and works of alteration at "Undershaw", Hindhead Crossroads near Haslemere in Surrey. Undershaw is the Grade II listed house where Sir Arthur Conan Doyle, creator of Sherlock Holmes, lived for over a decade. There is a recent application that it be listed as Grade I. The claimant is the joint author or editor of five books on Conan Doyle, including A Bibliography of A. Conan Doyle (1984), the winner of the Edgar Allan Poe Award. He is also the director of the Undershaw Preservation Trust, established in 2009 to co-ordinate restoration of the house. The interested party, Fossway Ltd, currently owns the house. It is a company registered overseas although no further information about its owners or activities was in evidence at the hearing.

BACKGROUND

Undershaw 1897-2010

2. Undershaw was constructed in the late 1890's by Sir Arthur Conan Doyle as his private residence. He chose the site as one whose location was particularly suited to the needs of his consumptive wife, Louise. The Conan Doyles lived at Undershaw from 1897. At Undershaw Conan Doyle wrote many Sherlock Holmes stories, including his most famous work, The Hound of the Baskervilles (1902). It was from Undershaw that Conan Doyle successfully campaigned for the release from prison of George Edalji, which led to the establishment of the Court of Criminal Appeal in 1907. Conan Doyle's family crests are placed in the two large heraldic windows in the house. While living there, he entertained many of his literary and artistic friends, recorded in the surviving visitors' book. These included JM Barrie (the author and creator of Peter Pan) and Bram Stoker (the author and creator of Dracula). In an article published in 1907, Bram Stoker gave a detailed description of Undershaw, writing that it had "all the elements of home" and that the view from the drawing room was one of "a never ending sea of greenery" to the South Downs, about twenty miles away.
3. In 1906 Louise died. The following year Conan Doyle remarried and moved to Crowborough. However, he did not sell Undershaw until 1921. The property was sold again in 1935, after which it remained for almost 70 years under the ownership of the Bridger family. It ceased to be used as a private residence and became a hotel. Conversion to that use resulted over the years in modifications to the building, such as the provision of en suite bathrooms. A sizeable new wing was constructed.
4. In September 1977 Undershaw's association with Conan Doyle resulted in it being shown on the statutory list of buildings of special architectural and historic interest, listed at Grade II. The list entry indicates that the principal reason for the entry of Undershaw is its special historic interest by virtue of that literary association. Architecturally, the building is said to be unexceptional. The list entry states that the integrity of the original design had been severely compromised by the early twentieth century extension, which has no architectural or historical interest.
5. In 2004 Undershaw was sold to Fossway Ltd. The hotel tenants vacated in May 2005. Since then it has stood vacant. There was no security at the site and the building began to deteriorate. The matter is recorded as follows in the planning officer's report to Committee on the applications under challenge:

"The council became increasing (sic) concerned about ingress of water, following theft of lead from the roof, and lack of security. Promises by the owner had been implemented only poorly and Planning Service staff themselves needed to undertake various ad-hoc reinforcement of inadequate security measures. The Council, therefore, served an Urgent Works Notice in December 2006. This required mothballing measures such as a protection from the weather and vandalism.

The response from the owners was still poor: readily accessible windows remained insecure and ineffective tarpaulins were soon dislodged by the wind.

In May 2007, the Council therefore commissioned a temporary scaffold roof at a cost of more than £43,000, a monitored alarm and security visits at more than £24,500, together with other minor works. The Council was eventually successful in recovering the total cost of nearly £75,000 from the owners.

These urgent works arrested further deterioration and allowed the structure thoroughly to dry in advance of a permanent solution. Whilst empty, though, the building remained at risk. Therefore a Repairs Notice was served in November 2008…"

Fossway Ltd. did not comply with the November 2008 Repairs Notice.

6. Fossway Ltd had clearly bought Undershaw for its development potential. Its planning and listed building applications of May 2006 - to convert Undershaw to provide thirteen dwellings - were refused. In December 2006 the Council unanimously rejected further applications for planning permission and listed building consent to divide the house into separate residential units and build three detached houses in its grounds. The Council justified the refusals because of the effect on the character of the listed building and its setting.
7. In November 2007 Fossway's agents, Lambert Smith Hampton, prepared an Interim Marketing Report on progress in the sale or letting of the property. (It was submitted to the Planning Committee with the Fossway applications in June 2010). It reported that there had been over 250 requests for particulars. There had been discussions with a range of interested persons including hotel companies, care and nursing home providers, residential development companies and one person interested in having a wedding venue. In particular Lambert Smith Hampton reported that a Mr. C had inspected the house with his builder. He proposed the conversion of Undershaw to a private dwelling-house. He had offered £600,000 but Lambert Smith Hampton told him that such an offer was not of interest. Subsequently, there had been an informal proposal at £1.8 million for a 30 bed care home.

Fossway's planning/listed building applications

8. On 5 February 2010, following a period of pre-application discussions with the Council, Fossway Ltd. submitted applications for planning permission and listed building consent for the scheme under challenge in this judicial review. The scheme of development was to divide Undershaw to create a terrace of three houses, with the result that each of the main reception rooms of the original house would be in separate dwellings. New doors, windows and staircases would be installed. The proposals entailed some demolition; the erection of a new three storey east wing to provide five new townhouses; and the conversion of the stable block within the curtilage of the listed building into garages. Part of the proposal was to erect a gazebo within the grounds, which would be open to the public and provide information about Undershaw and Conan Doyle.
9. The Listed Building Justification Statement submitted on behalf of Fossway Ltd stated that the preferred use was to return the building back to residential use. It added: "Ideally this should be as a single dwelling as originally designed." That document also said:

"5.2 It has been demonstrated through lengthy marketing that there is no market interest in returning the property back to a single dwelling, but the application proposal will return it to a residential use and fundamentally, will provide the financial investment to secure its long term conservation. As such, implementation of this scheme will conserve this listed building and protect the reason why it was listed."

10. There were 1,360 objections to the Fossway proposals, including from the claimant; Haslemere Town Council; Sir Christopher Frayling, ex-chairman of the Arts Council; Julian Barnes, who had set his novel Arthur and George in Undershaw; the writer Ian Rankin; and the writer and broadcaster Stephen Fry. The Victorian Society, which campaigns to save the best examples of Victorian and Edwardian architecture, stated that the ideal solution would be the renovation of Undershaw and its use as a single dwelling again. The proposed subdivision of the house into three separate dwellings and the large replacement extension would inevitably have a detrimental impact on its character.

"Our preference would be for a scheme which retains the main house as a single residential unit, as such a use would be less damaging to the historic interest of the building. Given the long period of neglect suffered by the house, we do not object in principle to the subdivision into three units, if this is the only way of securing its future. We have heard, however, that others are interested in using the house in a way which would not require such alterations. Your authority should be convinced that the scheme proposed is the optimum viable use for the listed building before granting consent, as recommended in PPS5 (HE9.4)."

11. On 19 February 2010 the Buying Solution (part of the Knight Frank group) indicated that one of its clients had an interest in purchasing Undershaw. Its letter was as follows:

"To whom it may concern.

Undershaw – Application WA/2010/0173

This is to confirm that on behalf of our client we verbally indicated to the selling agents Lambert Smith Hampton an interest to purchase the property subject to the above application, with a view of them restoring it as a single family home. We subsequently followed this up with a confirming email on 25 January 2010.

We have been advised by the selling agent that in light of the ongoing planning application, at this stage no offers are being considered. On behalf of our client we indicated an ongoing interest should the current owner's plans … fail to materialise".

12. Buying Solution's client was Mr. Max Norris, whose identity was not revealed until very recently. He explains in a witness statement made available at the hearing that the price the Buying Solution proferred on his behalf was £600,000-£650,000. In that statement Mr. Norris says that he had previously renovated a Grade II listed Victorian house in Devon and was interested in a family house closer to London. Although Fossway's agents were aware of Mr. Norris' interest, the Council was not. On 7 June 2010, Mr. Norris' agent, a firm of architects in Taunton, made an application (WA/2010/0830) to the Council for planning permission to change the use of Undershaw to a single dwelling. That application was served on Fossway Ltd.
13. On 9 June 2010 the Council's planning officer reported Fossway's proposed scheme to its Southern Planning Committee. Under the heading "Site Description", the planning officer referred to Undershaw's listed status, its historic interest by virtue of its association with Conan Doyle, its features of special architectural interest and its setting. The report described the recent history of vacancy and deterioration and the action the Council had had to take. It then described the Fossway scheme and the public representations, in particular the objections raised by the Victorian Society. There was no mention of English Heritage. The report then identified as a "determining issue" the impact of the proposals on the listed building, including the main house, its setting and the stable building. There was reference to the marketing by Lambert Smith Hampton and that no one who had inquired about the property had taken matters further.
14. Under the heading "Impact on Listed Building and Design" the planning officer advised the Committee that the issues were "finely balanced". The proposals for the main house would have some impact on the original plan form of the house. There was a balance to be struck between what was desirable and what was realistic. No realistic options had been formally advanced. The development had to be balanced against "another cycle of decline". Later in the report the planning officer said that there was no evidence that any of the uses generated by the marketing were viable. Overall, the planning officer's advice to the Committee was that the proposed development appeared to represent a financially viable use for the site, which would ensure the upkeep of the building and grounds.
15. In a summary sheet provided to the Committee on 9 June 2010 covering matters arising after preparation of the report the planning officer noted that the new planning application WA/2010/0830 had been registered on 7^th June and that although the applicant did not own the property he had signed certificate B to confirm that notice has been served on the owner. The planning officer also summarised her advice. In her overall judgment the proposal "would preserve the valuable heritage feature and provide a new use which would ensure that the building would be restored for the future".
16. Eight councillors were present at the Committee's meeting on 9 June 2010. The planning officer explained the proposals to the Committee with the benefit of a slide show. That included a series of plans and photographs to assist the Committee's appreciation of Undershaw, including the layout of the site, the character, appearance and setting of the buildings at the site and of the development proposed by the applications. During the course of her presentation the planning officer said:

"I would also like to point out to you that a new Application has been received this is application 2010/0830 which was registered on the 7^th June. The Application [is] for the change of use from a hotel/restaurant to a single dwelling. The Applicant does not own the property but has signed a Certificate B confirming that the notice has been served on the owner of the property. Although this Application has been made, you will need to consider each proposal on its individual merits and consider whether the current Applications before you are acceptable or not."

17. Immediately following the planning officer's report the chairman of the committee, Cllr. John Ward said:

"Planning Applications must be considered by this committee based on their individual merits. It is not open to Councillors to decide Applications based on personal emotions or feelings but on planning feelings (sic) alone and you will have heard that another Planning Application submitted for this site. When there are two or more Applications for development on the same parcel of land they must all be considered individually on their merits and not as an either or situation, whichever of them Councillors may individually prefer."

18. The Committee then heard from the claimant, who explained his principal objections to the proposals. His view was that the planning officer's report did not give enough prominence to government policy, which he explained was that the preferred option for a listed building was always its original use. He also mentioned that there was now a very interested party who had applied for a change of use from a hotel to a single dwelling house. Why would the applicant go to such trouble, he asked rhetorically, if he were not serious?
19. There was also an oral presentation from a planning consultant on behalf of Fossway Ltd. Among other points he asserted that the property had been marketed since 2004 and that no reasonable request had been made to purchase Undershaw as a single dwelling house.
20. Following this, members of the committee expressed their views. Cllr Stephen Mulliner said: "This is simply one application, there may well be others and we will have to judge it on its merits." In his view the house had been marketed adequately "and there comes a time when you have to look at what the future of the building is …" However, he shared concerns at what had happened to the building because of the owner's neglect. Cllr Simon Inchbold commented that if the proposal was the only way the house could be made viable then that was what had to happen. Cllr David Inman said:

"I was only about to say that we do come to this problem from time to time where if Planning Permission keeps being refused on something the building gradually goes downhill and becomes derelict and so on and so forth and I think that whatever way you look at it you have got to have something that generates some money to maintain a building and I think this is the case in question"

Cllr Edwards was a dissenting voice on viability. He saw no injustice in an owner of a heritage asset not being able to pursue a profitable development since it would have been purchased in the knowledge of the statutory and planning restraints.

21. The committee then voted to approve the applications, in each case subject to the imposition of conditions and to Fossway Ltd. entering into an agreement under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act") securing a number of planning obligations.

Planning permission/listed building consent

22. Following the Committee's decision on 9 June 2010, it was not until the planning obligation had been signed that the Council was in a position to issue the decision notices on 14 September 2010. The Council's reasons for granting the planning permission were as follows:

"SUMMARY OF REASONS FOR GRANTING PERMISSION

The development hereby approved has been assessed against the following Development Plan policies: In order that the development hereby permitted shall be fully implemented in complete accordance with the approved plans and to accord with Policies D1, D3, D4, D5, D6, D7, D13, HE1, HE3, HE5, H4, H5, H10, CF2, LT2, M2, M14 of the Waverley Borough Local Plan 2002 and material considerations, including Third Party representations. It has been concluded that the development would not result in any harm that would justify refusal in the public interest."

Meanwhile, on 2 August the Council had granted planning permission for Mr Norris' scheme, albeit that he was still acting through an agent and his identity was unknown to the Council.

23. In November 2010, the Council re-sent a letter dated 11 February 2010 to English Heritage. I find that the Council sent the letter in February but for reasons I need not explore it did not arrive. Although the Council never received a reply to its February letter it did not contact English Heritage to inquire. It seems that it was only when the claimant raised the issue that the Council resent the February letter. In any event on 7 December 2010 English Heritage replied to the Council.
24. In its 7 December letter English Heritage explained that although consent had been granted it would examine the case as if this were not so. Undershaw was, or could be again, a pleasant house. Cutting the house into three units across the long axis would have a separating effect which was not desirable, thereby causing harm to a heritage asset in the terms of Policy HE9.4 of Planning Policy Statement 5: Planning for the Historic Environment ("PPS5"), but not substantial harm to bring the proposal under a different set of rules. Despite the efforts which had been made to give the new build interest, it remained somewhat oversized if the aesthetics of the house were the only point at issue, thus again leading to harm, but not substantial harm. The letter then continued:

"In both cases, therefore, the question to be addressed under Policy 9.4 is whether the 'public benefit of the proposal' outweighs this harm. The policy gives as a possible case one where the proposal would 'help to secure the optimum viable use of the heritage asset in the interest of its long-term conservation'. As I understand it this site has been marketed over a long period. Other offers may have been made, or contemplated, but they had to be realistic as it is clear that a good deal of work will be needed. If, therefore, your authority has been satisfied with the proposal to subdivide the house and expand it to a number of units is the best way forward, because it is necessary to its survival as a listed building, we believe that a grant of consent is consistent with the policies in PPS5."

LEGAL AND POLICY FRAMEWORK

25. There is no dispute about the applicable statutory framework in this case. First, section 38(6) of the Planning and Compulsory Purchase Act 2004 requires the Council to determine planning applications in accordance with the development plan "unless material considerations indicate otherwise". Consistently with this, section 70(2) of the Town and Country Planning Act 1990 provides that where an application is made to the Council for planning permission, the authority "shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations". Secondly, section 16(2) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that in considering whether to grant listed building consent the local planning authority or 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." Further, section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides that in considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or 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". Finally, there is the requirement for a local planning authority to provide reasons for its decisions on applications for planning permission. At the relevant time this was found in article 22 of the Town and Country Planning (General Development Procedure) Order 1995 (since revoked and re-enacted in article 31 of the Town and Country Planning (Development Management Procedure) (England) Order 2010). That article required "a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision".
26. At the time of the decisions under challenge, the applicable national government policy relevant to the conservation of the historic environment was contained in Planning Policy Statement 5: Planning for the Historic Environment. Paragraph 7 of that states that the government's overarching aim is that the historic environment and its heritage assets should be conserved for future generations. To achieve this, its objectives for planning for the historic environment are, inter alia, to conserve England's heritage assets in a manner appropriate to their significance by ensuring that, wherever possible, heritage assets are put to "an appropriate and viable use that is consistent with their conservation". Policy HE7 of Planning Policy Statement 5 sets out additional policy principles guiding consideration of applications for consent relating to designated heritage assets. HE 7.1 provides that in decision-making local planning authorities should seek to identify and assess the particular significance of any element of the historic environment that may be affected by the relevant proposal in considering its impact on any heritage asset. HE7.2 continues that local planning authorities should take into account the particular nature of the significance of the heritage asset and the value that it holds for this and future generations. This understanding should be used by the local planning authority "to avoid or minimise conflict between the heritage asset's conservation and any aspect of the proposals". Where there is evidence of deliberate neglect of or damage to a heritage asset in the hope of obtaining consent, the resultant deteriorated state of the heritage assets should not be a factor taken into account in any decision: HE7.6.
27. Under Policy HE9.1 there should be a presumption in favour of the conservation of designated heritage and loss affecting any designated heritage asset should require clear and convincing justification. HE9.4 provides that where a proposal has a harmful impact on the significance of a designated heritage asset, which is less than substantial harm, local planning authorities should:

"(i) weigh the public benefit of the proposal (for example, that it helps to secure the optimum viable use of the heritage asset in the interests of its long-term conservation) against the harm; and

(ii) recognise that the greater the harm to the significance of the heritage asset the greater the justification will be needed for any loss."

28. Policy Planning Statement 5 Planning for the Historic Environment: Historic Environment Planning Practice Guide, released in March 2010, offers advice in respect of Policy HE9. Proposals for the development of a heritage asset are ideally to be for its optimum viable use: para. 88. Paragraph 89 continues that any use must be viable, not just for the owner but also for the future conservation of the asset.

"If there are a range of alternative ways in which an asset could viably be used, the optimum use is the one that causes the least harm to the significance of the asset… The optimum viable use is not necessarily the most profitable one. It might be the original use, but that may no longer be economically viable or even the most compatible with the long-term conservation of the asset."

THE ISSUES

29. In advancing the claim Mr. Stinchcombe QC characterized the issues in the claim as follows: issue 1: failure to have regard to the materiality of Mr. Norris' planning application; issue 2: failure to refer Fossway Ltd's applications back to the Committee for reconsideration in the light of the permission granted to Mr. Norris and failure to have regard to the materiality of that permission; issue 3: failure to have regard to the inadequacy of the marketing exercise undertaken by Fossway Ltd.; issue 4: failure to notify/consult with English Heritage in relation to Fossway Ltd's application in the period prior to Mr Norris' application and/or the permission he was granted; issue 5: failure to notify/consult with English Heritage in relation to the Fossway Ltd. application in the period after Mr. Norris' application and/or the permission he was granted; issue 6: failure to apply the proper statutory tests in granting the planning permission and listed building consent; and issue 7: inadequate reasons. However, Mr. Stinchcombe QC acknowledged that the first six issues boiled down mainly to two issues of law: (1) whether Mr. Norris' application for planning permission for the change of use of Undershaw to a single dwelling, approved on 2 August 2010, and backed by the offer to purchase it, were material planning considerations; and (2) whether in the light of those matters the Council's officers should have brought back the Fossway scheme to the planning committee before it granted the permission and consent in the decision notices of 14 September 2010.
30. In his cogent reply to the claimant's submissions, Mr. Mould QC on behalf of the Council distinguished between the ideal (or desirable) and the realistic. As with the claimant and his supporters, the Council wanted to preserve Undershaw, evidenced by the substantial sums it spent to make it secure and to repair it in the light of its neglect by Fossway Ltd. The real issue was how best to achieve that aim for the long term and without the risk of continuing uncertainty. On the evidence the ideal of returning Undershaw to a single dwelling was not on the cards. Mr. C's expression of interest in 2007 was precisely that, not a definite proposal. Mr. Norris' offer in the "To whom it may concern" letter of February 2010 never reached the Council and his planning application arrived just before the meeting of the Planning Committee in June. That being the case the planning officer had adopted a realistic and achievable line. As she said there was no evidence that any other use than that Fossway Ltd. proposed was viable. As she rightly asserted to the committee there were disbenefits associated with the Fossway proposals but the prize was the preservation of the building, in the main, and the link with Conan Doyle, in particular through the section 106 obligations and the conditions. National planning policies seek the optimum viable use in the interests of the asset's long term conservation, not simply its optimum use. The desirability of preserving the listed building, its setting and its features of special architectural and historic interest lay at the heart of the Committee's determination of the applications.
31. Mr Mould QC underlined the seminal passage in Lord Hoffmann's speech in Tesco Stores Limited v Secretary of State [1995] 1 WLR 759, where his Lordship drew the distinction between materiality and planning merits and the limits of the Court's supervisory role. Provided that a planning authority has regard to all material considerations it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight it thinks fit or no weight at all: 780F-H. Mr Mould QC also drew attention to the judgment of Judge LJ (as he then was) in Oxton Farms v Selby District Council [1997] EWCA Civ 404 about the approach of the court to challenges to planning decisions founded upon the alleged inadequacy of the decision making process before a planning committee:

"In my judgment an application for judicial review based on criticisms on [sic] the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

Issues 1 and 2: materiality of Mr. Norris' planning application

32. In outline, Mr Stinchcombe QC's submission on these issues was that any proposal for the use of Undershaw as a single dwelling-house was a highly material planning consideration which the Council were obliged to take into account when deciding to approve Fosssway's application. Such a proposal existed in the form of Mr. Norris' planning application. In advising the Committee on this matter in June 2010 the planning officer erred in law, as did the Council members when acting on her advice. Moreover, the committee should have been asked to review their decisions on the Fossway proposals when, prior to the issue of the formal decisions in September 2010, Mr. Norris' application was approved in August.
33. For the Council Mr. Mould QC responded that at its meeting on 9 June 2010 the planning officer informed the Committee that an application had been received for planning permission to change the use of Undershaw to use as a single dwelling. (This was Mr Norris' application, although at the time his identity was not known). So its existence was drawn expressly to the Committee's attention. The significance of that application in the overall evaluation of Fossway's application was for the Committee to judge. Her advice to the Committee that each proposal had to be considered on its merits, and that they had to decide whether the Fossway applications were acceptable, evidenced no error of law. In substance she was advising the Committee that the fact of the further application (by Mr. Norris) did not detract from the Committee's duty to consider and to determine Fossway's applications on their merits. The key question was whether Fossway's scheme was judged by the Committee to be acceptable in planning and conservation terms. In the event, that was the Committee's judgment. The mere fact that an alternative proposal had been put forward which some might judge to be superior to Fossway's proposals did not have any legal significance. That being the case the grant of permission on Mr. Norris' application in August cast did not add significantly to the materiality of that consideration and there was no need to refer the matter back to the Committee.
34. In this regard Mr Mould QC referred to the well established principle of planning law that land may be developed in any way acceptable for planning purposes. The fact that another scheme exists which may be more acceptable does not of itself provide a legitimate basis for refusing permission: Trust House Forte Ltd v Secretary of State (1986) 53 P&CR 293, 299. In Mr Mould QC's submission PPS5 did not require the Committee to base its determination on Fossway's applications on a comparative basis with the Norris planning application. It simply required the Committee to consider whether the proposed scheme would enable Undershaw to be put to an appropriate and viable use consistent with its conservation. English Heritage's observations in their letter of 7 December 2010 were to similar effect. The evidence established that this was the Committee's judgment. The focus of the claimant's case was on planning merits and raised no issue of law.
35. In my view Mr Mould QC's submissions do not adequately meet the requirements of the statutory mandate and planning policy. This was not a situation where so long as the Committee took all the relevant considerations into account it was for it to weigh them in the balance. Nor was it a matter of the Committee simply adapting what Mr Mould QC characterised as a realistic and achievable plan to preserve Undershaw. In broad terms the statutory mandate is to pay special regard to the preservation of heritage assets. That is confirmed in PPS5, paragraphs 5 and 7, and HE9.1, the latter referring to a presumption in favour of conservation. HE9.4 then requires weighing the public benefit of a proposal in securing the optimum viable use of a heritage asset against any significantly harmful impact (not being a substantially harmful impact, when different rules apply).
36. The guidance suggests in paragraph 88 that viability is measured not just in terms of viability for the owner but for the conservation of the asset. Crucially, it explains that if there are alternatives which would secure a viable use, the optimum viable use is that which has the least harmful impact on the significance of the asset, a use which may not be the most profitable. In my view the result is that if one of the alternatives would secure the optimum viable use, and another only a viable use, not only does that have to be taken into account in determining an application but it provides a compelling basis for refusing permission for the non-optimum viable proposal. The principle in Trusthouse Forte Hotels Ltd v Secretary of State for the Environment (1986) 53 P & CR 293 cannot be applied full blown in the context of heritage assets: although there may be alternative viable uses, for heritage assets the law elevates the optimum viable use when a proposal is being considered.
37. In this case the optimum use for Undershaw is as a single dwelling-house. That is the view of English Heritage and, indeed, is accepted in Fossway's Listed Building Justification Statement. Mr. Norris' planning application to that effect only appeared on the horizon at the last minute. However, as I have explained, the Council were obliged to treat it as a highly material planning consideration when deciding on the Fossway applications. (It was backed by Mr. Norris' offer to purchase Undershaw for some £600,000 in order to implement that use, although the Council cannot be faulted for not knowing about the offer since Fossway did not inform it.) It meant that the optimum use was also the optimum viable use, albeit not the most profitable use. Thus the Fossway proposals were not only not the optimum viable use but also a use which would have prevented that use through rendering impossible the implementation of any planning permission for Undershaw's restoration to a single dwelling-house.
38. The Council's planning officer quite properly drew the committee's attention to the late application for planning permission as a single dwelling house. No doubt on legal advice she informed the committee only that they must consider the alternative uses on their individual merits and whether the Fossway applications were acceptable. For the reasons I have given that did not go far enough in identifying a proposal for Undershaw which was for the optimum viable use. As we have seen the committee members acted on her advice and thus, through no fault of their own, erred in law. The grant of planning permission to Mr. Norris in August for the optimum viable use of Undershaw was a new material consideration, especially since it ran with the land. In accordance with R (on the application of Erine Kides) v South Cambridgeshire District Council [2002] 4 PLR 66, [125] the Council's planning officer needed to refer the Fossway scheme back to the committee for reconsideration in the light of it. That was not done and thus there was a breach of statutory duty under section 70(2) of the Town and Country Planning Act 1990 and section 38(6) of the Planning and Compulsory Purchase Act 2004.

Issue 3: Fossway's marketing exercise

39. There was no obligation on Fossway to produce a marketing report. However, Lambert Smith Hampton's Interim Marketing Report of November 2007 was submitted to the Planning Committee in support of Fossway's applications. It was referred to in paragraph 5.2 of Fossway's Listed Building Justification Statement as evidencing an absence of market interest in returning Undershaw to a single dwelling. Fossway's planning consultant underlined the point to the Committee on 9 June. This was despite Mr C's interest, mentioned in the Interim Marketing Report and Mr Norris' February 2010 offer.
40. In Mr Mould QC's submission evaluation of the Interim Marketing Report was a matter of fact for the Committee. It was for them to judge its adequacy and to apply its planning judgment. But while ordinarily that would be the position, this case differed because a heritage asset was involved. As we have seen planning guidance means that the optimum viable use is not necessarily the most profitable and to test the market adequately the price might even need to be zero. Marketing of the heritage asset will only be of weight if it has adequately tested the market, otherwise an owner could market a heritage asset property at a grossly inflated price not reflecting the open market value. Moreover, the marketing price must properly reflect the market value of the heritage asset in the condition it is in. Where the prospective sale for an asset's optimum use is less profitable than its development value because of deterioration through the owner's neglect, that differential cannot be taken into account.
41. In this case it is clear from the Interim Marketing Report that no offers were being considered for the sale of Undershaw as a single dwelling house. That was confirmed when Lambert Smith Hampton refused to contemplate Mr Norris' February 2010 offer. Thus it is clear that Fossway's marketing exercise was far from sufficient to demonstrate that the market had been adequately tested, quite apart from any issue of the impact on price of any deliberate neglect on Fossway's part. The matter was not corrected by Fossway's planning consultant in his presentation to the Committee on 9 June 2010. The Committee was significantly misled within the terms enunciated by Judge LJ in Oxton Farms v Selby District Council.

Issues 4& 5: Notification of English Heritage

42. Under section 15(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990 and regulation 5A(3) of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 the Council had to notify English Heritage of the Fossway applications. In Mr Mould QC's submission the Council notified English Heritage in accordance with those provisions on 11 February 2010, albeit that the letter was not received. In his submission there is no legal basis for the claimant's contention that, prior to determining the Interested Party's applications for planning permission and listed building consent, the Council had further to notify English Heritage of the grant of planning permission on 2 August 2010 for the change of use of Undershaw from a hotel to a single dwelling. In any event, he submitted, it was clear from its letter of 7 December 2010 that English Heritage was content to leave the evaluation of Fossway's applications to the Council.
43. In my view, the Council did not meet its statutory obligation to notify English Heritage in the circumstances of this case. It sent the 11 February 2010 letter but for some reason that did not reach English Heritage. However, the Council did not pursue the matter with English Heritage when no reply was received. Given the significance of the proposals for a designated heritage asset, it was incumbent on the Council to follow up the matter when English Heritage failed to respond. As we have seen English Heritage did not do so until well after the planning permission and listed building consent had been granted. Moreover, it seems to me that the Council was required to notify Mr Norris' August planning permission since it was a highly material consideration for the reasons I have given earlier. Its significance is evident from the 7 December 2010 letter from English Heritage. I do not interpret that letter in the manner Mr Mould QC suggests. Rather, the letter explains that consent for the Fossway proposal would be consistent with the policies of PPS5 only on the premise that the proposed works on Undershaw were necessary for its survival as a listed building. Had English Heritage been informed of the August planning permission it is in my view very likely that its advice in relation to PPS5 would have been different.

Issue 7: Inadequate reasons

44. Finally, Mr Stinchcombe QC contends that the reasons the Council gave for approving Fossway's proposals, quoted earlier, did not meet the statutory test. As Mr Stinchcombe QC characterised them, they were not reasons at all. Rather, they constituted an assertion as to process; a list of policies with which the development should accord; and a conclusion without explanation or engagement with the material planning and heritage considerations to which the proposals gave rise. The only specific detail in the reasons is a list of policies from the Waverley Borough Local Plan 2002 which could not amount to the required summary of planning policies. The reasons were positively misleading in suggesting that proposals accorded with the listed policies, since the planning officer rightly accepted that at least one planning policy would not be complied with.
45. Reasons may be stated relatively briefly: see R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286; [2011] JPL 571; R (on the application of Telford Trustees) v Telford & Wrekin Council [2011] EWCA Civ 896; [2011] JPL 1596. Although inelegantly expressed, the reasons here were in my view an adequate summary of the Council's reasons for granting planning permission. They identified the policies which the Council took into account in granting planning permission and explained why planning permission had been granted. That is sufficient to discharge the Council's duty under article 22 of the 1995 Order. The reasons provide an adequate summary of the outcome of the planning process in this case, in circumstances where the planning application had been the subject of a detailed report by the planning officer and the Committee accepted her recommendation to grant planning permission: see R (Siraj) v Kirklees Metropolitan Borough Council [2010] EWCA Civ 1286, [16]. Nor can the claimant reasonably contend that he was in any doubt as to the principal reasons and policies upon which the Committee resolved to grant planning permission.

CONCLUSION

46. My conclusion is that because of the legal flaws identified above the Council's decisions to grant planning permission and listed building consent must be quashed.