QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| CHRISTOPHER JOHN HOLLAND
|- and –
|(1) SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
(2) ROYAL BOROUGH OF GREENWICH
(3) PETER HEARN
Justine Thornton (instructed by The Treasury Solicitor) for the First Defendant
Morag Ellis QC (instructed by Osborne Clarke) for the Third Defendant
The Second Defendant did not appear and was not represented
Hearing date: 28th February 2014
Crown Copyright ©
MRS JUSTICE LANG:
Grounds of challenge
(1) Legal framework
"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
"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.
"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."
"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
"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….
"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
" 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."
(5) Irrationality and having regard to the totality of the evidence
"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 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."