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
		11 March 2014

MRS JUSTICE LANG:

1. In this application under section 288(1)(b) of the Town and Country Planning Act 1990 ("TCPA 1990") and section 63 of the Planning (Listed Buildings & Conservation Areas) Act 1990 ("PLBCAA 1990"), the Claimant applies to quash the decision of the Secretary of State for Communities and Local Government ("the Secretary of State"), made by an Inspector on his behalf, on 25^th July 2013, allowing two appeals by the Third Defendant against the Second Defendant's refusal of planning permission and Conservation Area consent for the demolition of a dwelling house and erection of a new house at 8 Meadowbank, Blackheath, Greenwich, London SE3 9XD ("the appeal site").
2. The Claimant is the lead member of the Blackheath Park Conservation Group ("BPCG"), which is an informal grouping of residents in the Conservation Area within which the appeal site lies. Its objectives are to protect and preserve the Conservation Area. Mr Hearn is the owner of the appeal site. The Second Defendant ("the Council") is the local planning authority.
3. I granted permission to the Claimant to amend his claim form to add an application under section 63 of the PLBCAA 1990 in respect of the conservation area consent.

History

4. The existing house was built in about 1970. It is a single-storey, four bedroom house, in brick, built around a central courtyard, with a predominantly glass elevation to the south. The site, comprising 0.15 ha, was originally part of the grounds of a Victorian villa, and provides attractive landscaping, including mature trees.
5. The house was designed by the architect David Branch in a modernist style. Branch lived in the house with his family. Upon his widow's death in 2011, it was purchased by Mr Hearn. Mr Hearn then stripped out its fixtures and fittings, leaving it a shell.
6. In February 2012 the BPCG applied to English Heritage for the house to be listed. The application was refused in May 2012 on the grounds that it did not fulfil the stringent criteria for post-war listing. In particular, despite the survival of the exterior shell and structure, it had lost its fixtures, fitting and internal joinery (cupboards, bookshelves, doors etc.) which were integral to the design. It also lacked innovation in the materials and plan.
7. On 2^nd August 2012, Mr Hearn submitted an application to the Council for full planning permission and Conservation Area consent to demolish the existing house and erect a single storey dwelling. The proposed dwelling would be similar in size, though marginally bigger (348 sq metres instead of 305 sq metres), and in a slightly different position, though well within the site boundaries. It would be constructed of timber, stone and bronze finished cladding.
8. There were numerous objections to the application, including from the BPCG and the Twentieth Century Society. Although the Council's officers' report recommended approval, the Council's Planning Committee refused the applications at its meeting on 28^th November 2012. The decision notices, dated 20^th December 2012, stated that the house was considered to be a heritage asset that contributed positively to the character and appearance of the Conservation Area. Its demolition would be harmful to the character and appearance of the Conservation Area, and therefore contrary to Policies D16 & D17 of the Unitary Development Plan 2006 and the guidance in the National Planning Policy Framework 2012 ("NPPF"), specifically paragraph 135.
9. Mr Hearn appealed to the Secretary of State against (1) the decision to refuse Conservation Area consent to demolition and (2) the decision to refuse planning permission for the demolition and the new building. The appeals were decided using the written representations procedure. The Inspector, Elizabeth Lawrence BTP MRTPI, made a site visit on 9^th July 2013, and allowed the appeals on 25^th July 2013.

Grounds of challenge

10. The Claimant's grounds of challenge to the Inspector's decisions were that she failed properly to interpret or apply Policy D17 of the Greenwich Unitary Development Plan which "resisted" demolition of buildings that contributed positively to the character or appearance of the Conservation Area. Having found that the house did contribute positively to the character of the Conservation Area, it was contrary to Policy D17 and indeed irrational to approve demolition. She erred in taking into account the contribution which the new development would make to the Conservation Area, as Policy D17 did not permit the decision-maker to do so. On the evidence, it was irrational for her to find that the house had "little group value" and "very limited individual significance" as a non-designated heritage asset, and she failed to have any or any proper regard to the evidence to the contrary. Although the Claimant disagreed with the Inspector's conclusions on the contentious issue of the stripping of the house's fittings and fixtures, he accepted that it was not possible for him to challenge these in the High Court.
11. The Secretary of State and Mr Hearn both submitted that the Claimant's challenge was essentially a disagreement with the Inspector's planning judgments, with which the Court should not interfere, particularly as the Inspector had the benefit of a site visit. There was sufficient evidence to justify the planning judgments she made and her conclusions could not properly be characterised as irrational. On a fair reading of the decision letter, she had not overlooked the evidence which supported the Claimant's case, nor had she been misled by the planning officers' report. The Inspector had correctly interpreted and applied Policy D17, as well as the relevant provisions of the NPPF, both of which entitled her to consider the merits of the proposed development.

Conclusions

(1) Legal framework

12. Section 69 PLBCAA 1990 imposes a duty on local planning authorities to determine which parts of their area are of special architectural or historic interest which it is desirable to preserve or enhance, and to designate those areas as Conservation Areas.
13. Section 71 of the Act imposes a duty on local planning authorities to formulate and publish proposals for the preservation and enhancement of any parts of their area which are Conservation Areas.
14. Section 72 requires planning authorities, when exercising their planning functions in a Conservation Area, to "pay special attention to the desirability of preserving or enhancing the character or appearance of that area".
15. At the relevant time (prior to the change in the law in October 2013) section 74 provided that a building in a Conservation Area shall not be demolished without the consent of the appropriate authority. Before me, it was common ground that, in deciding whether or not to give consent, a decision-maker must have regard to the section 72 factors and must have regard to all relevant considerations, including local and national policies. I am grateful to Ms Ellis for explaining that section 74 consent decisions are not subject to the same statutory requirements as determinations of planning applications (i.e. section 70 TCPA 1990 and section 38(6) Planning and Compulsory Purchase Act 2004, which requires that a determination must be made in accordance with the development plan unless material considerations indicate otherwise).
16. In this case, Mr Hearn applied for planning permission to demolish the existing house, as well as Conservation Area consent, and also appealed on this basis. Both the Council and the Inspector proceeded to determine his application and appeals accordingly. Section 70 TCPA 1990 and section 38(6) Planning and Compulsory Purchase Act 2004 applied to that application.
17. In South Lakeland District Council v Secretary of State [1992] 2 AC 141, Lord Bridge considered the effect of the predecessor provision to section 72 of the PLBCAA 1990. He held (at 150F) that, on a proper construction of section 277(8) Town and Country Planning Act 1971, the character and appearance of an area were preserved either by a positive contribution to preservation, or by a development which left character or appearance unharmed. He went on to say:

"It is entirely right that in any such area a much stricter control over development than elsewhere should be exercised with the object of preserving or, where possible, enhancing the qualities in the character or appearance of the area which underlie its designation as a conservation area under section 277. But where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise 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 section 277(8) were to inhibit any building development in a conservation area which was not either a development by way of reinstatement 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."

(2) National Planning Policy Framework

18. Guidance on Conservation Areas is in Section 12 of the NPPF, entitled 'Conserving and enhancing the historic environment'. Applying the definitions in the Glossary, the Conservation Area was a "designated heritage asset", as it had been designated under statutory powers in the PLBCAA 1990. The term 'heritage asset' is defined in the Glossary as:

"A building, monument, site, place, area or landscape identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing)." (emphasis added)

The Inspector treated the house as a non-designated heritage asset because it had been "identified by the local planning authority" as such when making its decision to refuse consent to demolition.

19. The following passage from the NPPF are material:

"132. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset's conservation. The more important the asset, the greater the weight should be. Significance can be harmed or lost through alteration or destruction of the heritage asset or development within its setting. As heritage assets are irreplaceable, any harm or loss should require clear and convincing justification…"

"133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:

- the nature of the heritage asset prevents all reasonable uses of the site;

- no viable use of the heritage asset can be found in the medium term through appropriate marketing that will enable its conservation; and

- conservation by grant-funding or some other form of charitable or public ownership is demonstrably not possible; and

- the harm or loss is outweighed by the benefit of bring the site back into use."

"134. Where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use."

"135. The effect of an application on the significance of a non-designated heritage asset should be taken into account in determining the application. In weighing applications that affect directly or indirectly non designated heritage assets, a balanced judgement will be required having regard to the scale of any harm or loss and the significance of the heritage asset."

"137. Local planning authorities should look for opportunities for new development within Conservation Areas and World Heritage Sites and within the setting of heritage assets to enhance or better reveal their significance. Proposals that preserve those elements of the setting that make a positive contribution to or better reveal the significance of the asset should be treated favourably."

"138. Not all elements of a …Conservation Area will necessarily contribute to its significance. Loss of a building (or other element) which makes a positive contribution to the significance of the Conservation Area .. should be treated either as substantial harm under paragraph 133 or less than substantial harm under paragraph 134, as appropriate, taking into account the relative significance of the element affected and its contribution to the significance of the Conservation Area .. as a whole."

20. Annex 1, on implementation, provides that NPPF policies are material considerations which local planning authorities should take into account. Paragraph 215 states:

"due weight should be given to relevant policies in existing plans according to their degree of consistency with this framework (the closer the policies in the plan to the policies in the framework, the greater the weight that may be given)"

(3) Greenwich Unitary Development Plan

21. The Unitary Development plan was adopted in 2006, prior to the NPPF. D16 and D17 are saved policies on Conservation Areas.
22. D16 provides:

"Planning permission will only be granted for proposals which preserve or enhance the character or appearance of Conservation Areas, taking into account local scale, the established pattern of development and landscape, building form and materials….

23. Policy D17 provides:

"Demolition of buildings and structures that positively contribute to the character or appearance of a conservation area will be resisted. Conservation Area consent for the demolition of buildings will normally be given only when planning permission has been granted for redevelopment which complies with the requirements of Policy D16. When demolition is permitted it will be subject to the building remaining until a contract for redevelopment is let."

(4) Interpretation of the policies/development plan

24. In my judgment, the Inspector did not err in her interpretation or application of the policies/development plan. In paragraph 3, she identified the main issue as the effect on the character and appearance of the Conservation Area. She correctly treated the Conservation Area as a designated heritage asset. She also correctly treated the house as a non-designated heritage asset. She was required to do so, under the terms of the definition in the NPPF, because the Council had identified it as such.
25. The Inspector did not, however, share the Council's assessment of the significance of the house. Her conclusion, in paragraph 21, was that:

" the dwelling has little group value and very limited individual significance. Despite this, the Appeal site contributes positively to the overall character and appearance of the conservation area due to its extensive shrub and tree coverage and the contribution the dwelling makes to the diverse range of housing."

26. It is clear from this paragraph that the Inspector considered that it was chiefly the landscaped site, not the house itself, which contributed positively to the overall character and appearance of the Conservation Area. The house only contributed to the "diverse range of housing" in the conservation area, and as such, its contribution was minimal: it had "little group value" and "very limited individual significance".
27. The Inspector went on, in paragraphs 22 to 24, to consider the proposed new dwelling. She found that it would respect the verdant characteristics of the site and the new dwelling would positively contribute to the character and appearance of the Conservation Area. Referencing paragraph 137 of the NPPF, she found that it would enhance and better reveal the significance of the Conservation Area.
28. On the basis of these findings, she concluded, at paragraph 26, that the proposal to demolish the existing house and the proposal to build the new house would "preserve the character and appearance of the Blackheath Park Conservation Area and would not result in harm to the significance of the designated heritage asset Blackheath Park Conservation Area". She concluded that, "having regard to the limited significance of the non-designated heritage asset 8 Meadowbank, any harm resulting from its demolition would be outweighed by the merits of the proposed development."
29. It is clear that the Inspector correctly applied the relevant guidance in the NPPF to her findings. She assessed whether or not the demolition and new development would cause either substantial, or less than substantial, harm to the heritage asset – the Conservation Area – and concluded that it would not. She was entitled to reach such a conclusion under the provisions of section 72 of the PLBCAA 1990, as explained in South Lakeland District Council v Secretary of State [1992] 2 AC 141 (above).
30. The Claimant submitted that her conclusion was not in accordance with policy D17 because the Inspector had found that the existing house positively contributed to the character or appearance of the Conservation Area, and therefore demolition should have been "resisted". It was accepted that the Inspector's substitution of the word "restricted" for "resisted" was not material. In my view, the Inspector either found that the house did not positively contribute to the character or appearance of the Conservation Area, or that its contribution was minimal. In paragraph 5, she was reciting the Council's reason for identifying the site as a heritage asset, not her own. Her own assessment of its contribution, in paragraph 21, was that it only contributed to the diversity of housing and even that contribution was "very limited" and of "little group value". The site, which did contribute positively (unlike the house), would not be harmed by the demolition and it would be enhanced by the new development.
31. The Inspector did not overlook the fact that the house was one of a "notable group" of post-war housing that contributed strongly to the Conservation Area (paragraph 18), but she went on to explain that, unlike the Span buildings, "it does not possess any group value in terms of history, form, appearance, layout or function".
32. The Claimant also submitted that, in applying policy D17 to a proposed demolition, a decision-maker could not have any regard to the proposed re-development on the site. I do not agree with this interpretation of D17. The second sentence requires the decision-maker to consider whether the new development will comply with D16, i.e. whether it will "preserve or enhance the character and appearance of Conservation Areas, taking into account local scale, the established pattern of development and landscape, building form and materials". These are precisely the factors which the Inspector considered in paragraphs 22 to 24.
33. Moreover the explanatory paragraph which follows D17 states that the "policy also enables the Council to assess the comparative quality of existing and proposed development".
34. If policy D17 did prevent the decision-maker from considering the merits of the proposed re-development, it would be inconsistent with the NPPF, which enables the decision-maker to weigh the harm to the asset against the benefits of any proposal, on a sliding scale, depending upon the nature of the asset and the level of harm. By virtue of paragraph 215, less weight will be given to a policy which is inconsistent with the NPPF. However, in this case, neither the Council nor the Inspector nor any of the parties suggested that there was an inconsistency. In my view, they were correct. D17 is not inconsistent with the NPPF in this regard. It enables a decision-maker to assess the potential harm and benefit caused to the conservation area by demolition and re-development.

(5) Irrationality and having regard to the totality of the evidence

35. In Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, Sullivan J. said at [6] – [8]:

"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision. An allegation that an Inspector's conclusion on the planning merits is Wednesbury perverse is, in principle, within the scope of a challenge under section 288, but the court must be astute to ensure that such challenges are not used as a cloak for what is, in truth, a rerun of the arguments on the planning merits.

In any case, where an expert tribunal is the fact finding body the threshold of Wednesbury unreasonableness is a difficult obstacle for an applicant to surmount. That difficulty is greatly increased in most planning cases because the Inspector is not simply deciding questions of fact, he or she is reaching a series of planning judgments. For example: is a building in keeping with its surroundings? Could its impact on the landscape be sufficiently ameliorated by landscaping? Is the site sufficiently accessible by public transport? et cetera. Since a significant element of judgment is involved there will usually be scope for a fairly broad range of possible views, none of which can be categorised as unreasonable.

Moreover, the Inspector's conclusions will invariably be based not merely upon the evidence heard at an inquiry or an informal hearing, or contained in written representations but, and this will often be of crucial importance, upon the impressions received on the site inspection. Against this background an applicant alleging an Inspector has reached a Wednesbury unreasonable conclusion on matters of planning judgment, faces a particularly daunting task ..."

36. The exercise of planning judgment and the weighing of the various issues are entirely matters for that decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28 and Tesco v Secretary of State for the Environment [1995] 1 W1.R 759, at 780. In the latter case Lord Hoffmann said, at 780F-H, "If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State".
37. In my judgment, there was ample evidence upon which the Inspector could justifiably base her assessment of the house and its significance. She received a heritage assessment report and planning statement from Mr Hearn's representatives, both of which were thorough and impressive. She also had the benefit of seeing the report on the house from English Heritage, when it refused to list it. Although the Council's appraisal of the Conservation Area was still in draft form, she was able to see the draft, annotated by the BPCG with its comments and recommendations. The appraisal conspicuously did not include the house on its local list of buildings making a particularly important contribution to the Conservation Area, and she confirmed with the parties at the site visit that this remained the position. In a description of the properties in the road, the house was described as "a secluded courtyard bungalow … by architect David Branch" and more valuable than the "unassuming semis" nearby. Other post-war properties, in particular the Span schemes, were considered to be much more significant.
38. Of course there was evidence to the contrary, notably from the BPCG and the Twentieth Century Society, and the Council's own decision. But it was the Inspector's task to evaluate the competing evidence, look at the property, and form her own planning judgment. In my view, she did so carefully and thoroughly. Her conclusions cannot be characterised as irrational. The Claimant suggested that the Inspector was misled by the report of the Council's planning officers which partially misquoted the English Heritage report. It is not suggested it misled the Council, who did not follow their officers' recommendation to grant approval. I think it most improbable that it misled the Inspector, who had the benefit of the full report.
39. The Claimant alleged that the Inspector failed to take into account the evidence and representations which demonstrated that the house was of architectural and historical significance, as summarised in paragraph 76 of Ms Tafur's skeleton argument.
40. The Claimant focused in particular upon paragraph 7 in which she stated that the house "is not referred to as being innovative or of any particular architectural merit in any of the documents submitted in relation to these Appeals", as indicative of her failure to consider the evidence that the house was distinctive and of architectural merit. I agree that there is some ambiguity as to which documents the Inspector was referring to. Her choice of the word "documents" indicates, in my view, that she was probably referring to the documentary evidence such as the English Heritage report and the extracts from articles and books annexed to the heritage assessment report. I do not consider that she was referring to the representations received by the parties on appeal, nor to the representations/objections made by the BPCG and the Twentieth Century Society.
41. Counsel for the Secretary of State had access to the PINS file, and it was not in dispute that the Inspector was provided with all the material. This included representations from BPCG to English Heritage and on the Council's draft appraisal, as well as the formal objections lodged by BPCG and the Twentieth Century Society, when the Council was considering its decision, and submissions made to the Inspector on appeal. In my view, it would be exceptionally careless and unprofessional for the Inspector not to have taken into account this body of evidence which argued that the house had historical and architectural significance. After all, this was the basis of the Council's decision which was the subject of appeal. The Council's own Appeal Statement echoed many of the points made by BPCG and concluded that "the architectural and historic qualities of the house are highly significant and .. the house makes a valuable contribution to the Conservation Area..".
42. The decision letter is careful and conscientious. It demonstrates that, throughout, the Inspector applied her mind to the correct issues. She made detailed findings on the architecture, history, and group value of the house, and its contribution to the Conservation Area. The findings which she made in paragraph 9, on the basis of the English Heritage report were, in my view, legitimate, and do not demonstrate a failure to read or understand the full report. She addressed the extent of the house's contribution to the "notable group" of post-war housing in paragraph 18. However, it is true that she did not set out the evidential cases presented by the parties and the objectors before proceeding to her findings. I do not consider that this indicates that the Inspector failed to take this evidence into account. I think the explanation for this omission is that she did not think she was obliged to do so.
43. Lord Brown set out the standard of decision-writing required in South Bucks District Council and another v Porter (No 2) [2004] 1 WLR 1953:

"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."

44. Applying these principles, given the limited scope of the issues in this case, it was not necessary for the Inspector to recite the evidence which she was rejecting before setting out her findings. She could act on the assumption that the readers of the decision letter were well aware of the evidence and issues involved. She was entitled to give reasons which were "briefly stated" and which referred to the "main issues", not "every material consideration". The Council and the Claimant cannot have been left in any doubt as to the planning judgments the Inspector had made, and why Mr Hearn's appeals succeeded.
45. It is well-established that an Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
46. I consider that the Claimant's challenge did rely excessively on drafting criticisms and selective quotations, and failed to read the decision fairly and as a whole.
47. In conclusion, the Claimant has failed to establish any error of law in the Inspector's decision, and so the application to quash is dismissed.