England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2016

Mr John Howell QC :

1. This is a claim for judicial review impugning a decision of the Mid-Suffolk District Council to grant planning permission and listed building consent for works to provide three dwellings and to demolish four modern buildings at Castle Farm Barns, Vicarage Road, Wingfield, Suffolk. Permission to make this claim was granted by Lang J.

BACKGROUND

i. Wingfield Castle

2. The Claimant, Mr Michael Lyndon-Stanford QC, is the owner and occupier of Wingfield Castle. The moated Castle is a Grade I listed building of special architectural and historic interest. It was originally built by the Earl of Suffolk, Michael de la Pole, after he was given licence to crenellate, in about 1385. The main residence was partially demolished after the Castle was seized by Henry VIII when the then Earl fell out of favour and was executed in 1513. The south curtain wall of the Castle, however, remains intact. It contains a gatehouse and polygonal stone bastions. The gatehouse has two 3-storey polygonal corner towers. Its outer entrance has a moulded segmental pointed arch. The main approach to the Castle, from Vicarage Road to the south, goes to this gatehouse.
3. The Castle was sold by Henry VIII to Sir John Jerningham in 1544 who repaired the surviving parts and made some additions.

ii. Castle Farm Barns

4. In the late sixteenth century the Jerningham family also constructed a large timber-framed barn, just beyond the Castle's moat, immediately to the south-east of the gatehouse and to the east of the main approach to the Castle. The Long Barn was an unusually long, substantial brick and timber-framed building of 10 bays. The roof was changed, and two new bays were added to the east, in about 1860 by Sir Robert Adair of Flixton Hall who had acquired the whole estate. The key elements of the Tudor barn frame, however, including a large number of cranked tie-beam braces and evidence of windows with moulded mullions to stable and loft, survive intact.
5. Three red-brick and pantiled animal shelter sheds were also added to the southern elevation of the Long Barn in about 1860, each with an open yard to the west. At the east end of the Long Barn a cattle or stock house was added in about 1910. South of the fold yards there is a cartshed with a granary over that also dates from about 1860.
6. The Barns are Grade II listed buildings of special architectural and historic interest. The list description states that

"These C16 and C19 farm buildings are of special interest in themselves and form part of a very significant group both visually and historically with Wingfield Castle which stands close by to the northwest.....The group value with the Castle is very significant both visually, since these buildings have a close visual relationship, and historically. The group makes up part of the early Tudor estate complex resuscitated after the Jerninghams took over the estate.....Suffolk moated manors and their farmsteads are very important in a national context..."

7. The farm, including the Barns, was sold into separate ownership during the twentieth century. It is now (and has for some period) been in the ownership of the West family.

iii. the application for conversion of the farm buildings into four dwellings in 2006 and Inspector's decision in 2007

8. In 2006 CA West and Son sought planning permission to convert the farm buildings to form four dwellings, three of them in the Long Barn and one in the cartshed/granary, and to demolish a number of twentieth century additions. That application was refused by the Council on the ground that conversion to residential use was inappropriate and would harm the setting and character of the Castle. An appeal against that decision was dismissed by an Inspector, BD Bagot ("the Inspector"), in a letter dated September 11^th 2007.
9. The Inspector found that impact in the interior of the Long Barn (where it was possible to appreciate the full effect of its existing space and timber framework) would be largely lost, and that the interest of the cartshed / granary would also be diminished, by the works then proposed. In his view the conversion proposed would have substantially changed the listed buildings as a whole and its essential agricultural character would not have been preserved.
10. Since, as the Inspector found, the Claimant was willing to acquire the buildings for agricultural use and to put them into repair, he considered that an alternative use was not urgently required to secure the preservation of the listed buildings (which he had noted were then in a poor state of repair) and that the proposed conversion to residential use was not warranted.
11. Although refusing permission on these grounds, the Inspector considered that the restoration and repair of the farm buildings, the removal of unsightly elements, and the implementation of the landscaping scheme proposed would enhance the visual setting of the Castle. Moreover, notwithstanding the historic association of the farmstead with the Castle, the Inspector was not convinced that the residential use of the Long Barn and cartshed / granary would be harmful to the setting of the Castle. In that he differed from the views of the Council, English Heritage and number of experts including Professor Robert Liddiard of the University of East Anglia (who had conducted research and written on castles having completed his doctoral research on the landscape context of castles in East Anglia in the period 1066-1500). In the Inspector's view "the proposed conversion and demolition...would not be harmful to the setting of the adjoining listed building".

iii. events before the applications giving rise to this claim for judicial review

12. In 2009 the Barns were placed on a "Buildings at Risk" register by the Council.
13. In February 2010 an architectural historian, Mr Leigh Alston, produced a report for Suffolk County Council on the Farm and its historic significance. This report was later said by the Council's Heritage Team to have assessed "the building's historical significance in exemplary manner, shedding new light on the original form and subsequent evolution of the building, and its role in the setting of the Castle."
14. In his summary Mr Alston stated that the farm buildings

"include an important late-16th century timber-framed barn that was built by the Jerninghams as part of a highly fashionable 'seigniorial landscape' to aggrandise the castle. It originally contained ten bays and extended to an impressive 120 feet in length (36.5 m) with exposed timbers, symmetrical bracing and brick nogging. Similar gentry barns elsewhere were usually aligned at right-angles to the house, facing an enclosed courtyard of service buildings, but this example lies on the same axis as the castle and was apparently designed to extend the width and resulting visual impact of its façade. It remains of vital importance to the castle's historic context and integrity. The barn contained a sophisticated interior with a three-bay stable and hay loft to the west, a three-bay open barn in the centre and a four-bay barn to the east (all entered from the south). It was extensively altered in circa 1860 by Sir Robert Adair of Flixton Hall to form part of an equally sophisticated 'model farm' with uniform red-brick animal sheds and a good cartlodge/granary. This farm complex is of historic interest in its own right."

His conclusion on the historic significance of Castle Farm Barns was that:

"Despite the extent of its alterations in the mid-19th century the Tudor barn is still an imposing and nationally important example of its type. Its scale and external decoration was designed to extend the width and visual impact of the gatehouse when approaching from the south, and it forms part of a rare late Elizabethan 'seigniorial landscape' reflecting the status of one of East Anglia's most important families. It remains of vital importance to the historic context and integrity of the grade I-listed castle, and accordingly, in my view, merits listing at grade II*. The refurbishment of circa 1860 is of historic interest in itself as part of a well-preserved 'model' farm in the latest fashion of its day, and illustrates the wealth of the Flixton Hall estate to which it belonged."

15. In July 2015 applications were made for planning permission and listed building consent for the conversion of the Barns to three dwellings. That also attracted objections from the Claimant and Historic England and representations from Professor Liddiard. The applications were subsequently withdrawn.

iv. the applications giving rise to this claim for judicial review

16. On December 2015 Warren Hill Farms, the Third Interested Party, applied for planning permission and listed building consent to demolish four modern agricultural buildings and part of the cattle shed and elements of Castle Farm Barns and to convert the barns into three dwellings. The proposal involved the provision of two dwellings within the Long Barn and one within the cartshed /granary.
17. The applications were accompanied by a Design & Access/Heritage Statement by the applicant's architects, Beech Architects Limited, and a copy of the report by Mr Alston. The Architects explained that the conversion of the buildings was proposed to provide a sustainable way of preserving the fabric and ensuring the longevity of the structures.

v. consultations and representations

18. On January 11^th 2016 Historic England submitted representations recommending refusal of the application if the justification required by the National Planning Policy Framework ("NPPF") was not made for the harm which Historic England considered the proposed development would cause to the significance of the Barns and the Castle. In its letter it stated that:

"The significance of the Castle and farm group, both historically and visually, is clearly expressed in the listing description. It is the long historical association between the two heritage assets, the close physical proximity of the farmstead to the Castle and the inter-visibility between the two that lends added significance to the farm buildings. It also makes the farmstead particularly sensitive to change.

Proposals to convert the farm to residential use have been made before and we have long expressed concern regarding this in terms of its impact on the character of the barns and the setting of the Grade I listed Castle. Conversion to residential use is usually considered to be the most damaging of the potential range of new uses for agricultural buildings because of its impact on their historic character, features and their setting. The requirements for modern residential use, both in terms of the fabric of the barns and change to their immediate surroundings could remove much of the essential character of the farmstead and affect the established visual relationship between the Castle and farmstead. This relationship is a vital part of both its character and that of the setting of the Castle.

... … …

This application serious raises concerns about the impact on the setting and significance of Wingfield Castle by the proposed development. As the Castle is grade I listed it is in the top 2.5% of listed buildings nationally. The NPPF states that the conservation of heritage assets should be given 'great weight' in the planning system. The importance of the Castle and sensitivity of its setting makes that particularly pertinent here.

Paragraph 128 of the NPPF requires applicants to submit sufficient information on the significance of heritage assets to allow assessment of a development's impact upon that significance. While the analysis of the historic barn is good there is insufficient information on the setting of the heritage assets, its historical development and how it contributes to their significance as well as the visual impact of certain aspects of the development. Given the significance of the heritage assets concerned this information is important and we do not consider the application has satisfied the requirements of paragraph 128.

Based on the information that has been submitted we are concerned that conversion of the historic farm buildings to residential use would result in harm to the significance of Wingfield Castle in terms of the NPPF paragraphs 132 and 134. This would be caused by the permanent curtailing of the agricultural use and bringing domestic activity into a part of the Castle's immediate setting which was an ancillary service area. The detail of the design would also result in harm to the significance of the grade II listed farm buildings and in particular some of the external alterations to the farmstead would have a harmful impact on the Castle's setting and significance. The amendments made to the proposed designs do not address these concerns.

The farm buildings are in need of repair and being brought into use. This and the removal of modern farm structures adjacent to them could be considered a public benefit in terms of the NPPF paragraph 134 for the Council to weigh against the harm to the heritage assets. However, the NPPF paragraph 132 required a 'clear and convincing' justification to be made for 'any' harm. We do not feel sufficient justification has been made for the proposed use. Furthermore, the impact on the most significant areas of the farm buildings and the changes to the exterior of the buildings which would have a harmful impact on the Castle has not been justified. We leave it to the Council to consider any public benefit resulting from the development but if the justification for the harm required by the NPPF is not made we recommend the application is refused."

19. Objections were also made in January 2016 on behalf of the Claimant by a Historic Buildings Consultant, Mr Nicholaas Joubert. The first objection was made in an e-mail from Mr Joubert to the Council on January 14^th 2016. He was concerned that the requirements for modern residential use, in terms of changes to both the fabric of the barns and to their immediate surroundings, could remove much of the essential character of the farmstead and affect the established visual relationship between the Castle and farmstead. In his view that relationship was a vital part both of its character and of the setting of the Castle. He stated that the best option to ensure the preservation of the setting and conservation of the historical 19^th century model farmstead for future generations was for the Claimant to acquire the barn and associated buildings to ensure that they were repaired and retained within the historical setting of the Castle.
20. Mr Joubert followed his e-mail up with a letter dated January 22^nd 2016. In it he provided further detail about the listed buildings, producing extracts from the list describing them, referring to and quoting from the report by Mr Alston and again emphasising that the offer made by the Claimant would not only preserve the very significance of the buildings but would also enhance the setting of the Castle and farm buildings.
21. The Claimant himself also wrote objecting to the proposal in January 2016 stating that it was his intention to reinstate and use the barns if he could. He pointed out that he had spent a large amount of money to put the Castle into good order; that he had also put a listed farmhouse in Norfolk into good condition as well as a Gothic castle in ruinous condition in France. He pointed out that the applicants had withdrawn from selling the Barns to him at a very late stage when final contracts were being prepared for exchange. He drew attention to Mr Alston's report and Historic England's letter, requesting the Committee dealing with the applications to read both. He then drew attention to a number of passages from each. He also stated that the existing condition of the barns "has been brought about by the owners' neglect".
22. It appears that, on January 29^th 2016, the applicant for planning permission and listed building consent submitted additional information about the lack of viability of alternative uses for the Barns. It was also stated that the Claimant and his wife "have been offered the barns to purchase on numerous occasions but have failed to commit, despite exhausting efforts of our land agents, lawyers and ourselves."
23. On February 25^th 2016 the Council's Heritage Team recommended that the proposed development should be given conditional approval. It stated that:

"The Heritage Team considers that the proposal would cause ...less than substantial harm to designated heritage assets because of compromise to the building's historic character arising from the change of use, and because of intrusion in the setting of the adjacent listed building; however, because the harm is limited and minimised and offers an important public benefit, the proposal is considered acceptable".

The Team referred to the Inspector's views, considered that the harm to the Long Barn had been substantially reduced by limiting its conversion into two (rather than three units) and stated that the report by Mr Alston

"draws new attention to the position and orientation of the barn, concluding that it forms part of a designed, formal approach to the main barn, a point which has not been explicitly addressed before. The Inspector's view was that any use, including continued agricultural use, would result in some level of disturbance and intrusion, but removal of 1900s additions and buildings would enhance the setting of the barn, and the wider setting of the Castle. The integrity of the physical layout of the barn and Castle, as now understood, is compromised by the 1800s additions and alterations which partly screen the farm buildings from the Castle grounds. This new understanding of the significance of the layout is not considered to amplify the level harm beyond what the Inspector found acceptable.

Summary

The Heritage Team is satisfied that harm to the significance of the application building and to the setting of the Castle has been minimised, and is outweighed by the benefit to the public of securing a viable ongoing use for an important heritage asset."

24. The Heritage Team's response did not allude to Historic England's representations or to the Claimant's offer to repair the buildings. Their reference to "the formal approach to the main barn" was almost certainly a mistaken reference to the formal approach to the Castle, as Mr Giles Atkinson (who appeared on behalf of the Council) accepted. The statement about the harm which the Inspector "found acceptable" is also misleading if the concern was indeed with the setting of the Castle: the Inspector had concluded that there would be no harm to the setting of the Castle.
25. On March 15^th 2016, the day before the Council's Development Control Committee was due to meet, the Claimant visited the Council's offices. He found that his own objection, and the representation from Professor Liddiard in relation to the earlier application in 2015 (which had been withdrawn), were not part of the papers that had been sent to members of the Committee. The Development Management Planning Officer dealing with the applications, Ms Rebecca Biggs, said that Professor Liddiard's representation had to refer specifically to the applications now under consideration for it to be presented to the Committee. The Claimant accordingly arranged for Professor Liddiard to send an e-mail that afternoon enclosing a representation relating to the applications then being considered. Ms Biggs accepted that it had been an error not to have included the Claimant's objection with the papers for the Committee. In the event the Claimant's own letter of objection was made available in a file in the Members' Room (where letters from neighbours are usually put) for members of the Committee to read.

vii. the decisions impugned

26. There were two reports presented to the Council's Development Control Committee on March 16^th 2016, one in respect of the application for planning permission and the other in respect of listed building consent. Both were prepared by Ms Biggs. Each followed the same general format: (i) the first section concerned background and pre-application advice which described the Inspector's decision stating that it was "considered to have significant weight"; (ii) it was then followed by a brief description of the site and its surroundings noting that "it has fallen into a worse state of repair since the 2006 refusal"; (iii) there was then a summary of the planning history; (iv) this was followed by a description of the proposals; (v) the reports then included a reference to an appendix listing relevant planning policy advice; (vi) the reports then offered a summary of consultation responses and (vii) a summary of local and third party representations; (viii) after that there was an assessment of the proposals and, finally, (ix) a recommendation. The assessment section, having again described the Inspector's decision and changes that had been made following the earlier withdrawn application, contained sections on the "principle of development", "impact on listed building" and "impact on listed castle". The relevant parts of the reports are considered below. It is to be noted, however, that they differ in a number of significant respects when dealing with the same points for reasons that are not apparent.
27. The two reports had been circulated to members of the Committee, and published on the Council's website, on March 9^th 2016. Members also then received an unpaginated bundle of background papers without an index. Hard copies were available to them on the day of their meeting. The background papers included the Council's Heritage Team response, the letter from Historic England dated January 11^th 2016, and the objections made on the Claimant's behalf by Mr Joubert on January 14^th 2016 and January 22^nd 2016. They did not include Mr Alston's report or the Claimant's own letter of objection. The Committee were also supplied as "Late Information" with a copy of the Inspector's decision.
28. There are both minutes, and a transcript of an audio recording, of the proceedings of the Committee. The applications were the fourth and fifth items on the agenda. At their meeting the officer presenting the applications to the Committee, Ms Gemma Walker, summarised Professor Liddiard's representation (as Mr Richard Turney, who appeared on behalf of the Claimant , accepted), stating in effect that it did not raise any new issue, but without identifying its author or his expertise. The Claimant and Mr Joubert were together allowed three minutes within which to address the Committee on the planning application.
29. The Claimant was also given a further brief opportunity to speak about the application for listed building consent before they then authorised the grant of that consent subject to conditions.
30. The notice of the grant of listed building consent and planning permission each state, when providing summary reasons for the grants, that:

"Residential use is the optimal viable use and will secure the long term conversion and preservation of the Grade II Listed Buildings. The change of use has been sensitively designed to respect the character and appearance of the historic assets and will not harm the setting of the adjacent Grade I Listed Building.....the application was considered to accord with Local and National Policies."

viii. relevant national policies

31. The NPPF provides that:

"130. Where there is evidence of deliberate neglect of or damage to a heritage asset the deteriorated state of the heritage asset should not be taken into account in any decision.

131. In determining planning applications, local planning authorities should take account of:

• the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation;

.....

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......

....

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."

THE GROUNDS ON WHICH THE CLAIM FOR JUDICIAL REVIEW IS MADE

32. On behalf of the Claimant, Mr Richard Turney, contends that the Committee's decisions were unlawful on four grounds. He submits (i) that the Committee were misled by the omission of a number of critical items from the Officer's Reports that concerned the impact which the proposed development would have on the setting of the Castle and the Claimant's offer to restore the Barns with the result (ii) that the Council failed to have special regard to the desirability of preserving the Castle's setting as required by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990. He submits (iii) that the Committee were misdirected about national planning policy by not being advised that the Claimant's own proposals for the Barns may constitute the optimum viable use and by not being advised to disregard the deliberate neglect of the Barns. Finally he contends that the Council acted unfairly and in breach of the Claimant's legitimate expectation in failing to put his representation and other critical material before the Committee despite assurances that they would be.
33. On behalf of the Council, Mr Giles Atkinson submits that it is the overall fairness of the report that needs to be considered and that it is only when it significantly misleads members about material matters, which are thereafter left uncorrected, that there may be grounds for judicial review. He submits that there was no failure to report matters of critical importance to the assessment of the impact of the development on the setting of the Castle; that they were not misdirected about the Claimant's proposals for the Barns; and that the Council did not act unfairly or in breach of any legitimate expectation that the Claimant had.

CONSIDERATION

(i) what is required of an officer's reports and how it should be read

34. The purpose of a planning officer's report is not to decide the issue for a committee but to inform its members of the considerations relevant to their decision and, if the officer chooses to do so, to give advice on what decision they should take. The report is addressed to members who can be expected to be reasonably familiar with local circumstances and with relevant policies at national and local level and to understand what statute requires of them when determining an application for planning permission. Part of a planning officer's expert function in reporting to a committee is to make an assessment of how much information to include in the report to avoid burdening the committee with excessive and unnecessary detail. There is thus no requirement for a report to contain an elaborate citation of underlying background materials: R v Mendip District Council ex parte Fabre (2000) 80 P & CR 500 per Sullivan J at p509; R (Maxwell) v Wiltshire Council [2011] EWHC 1840 (Admin) per Sales J at [43]; R (Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404 per Lindblom LJ at [31]; R (Lensbury Ltd) v Richmond on Thames LBC [2016] EWCA Civ 814, [2016] JPL 96 per Sales LJ at [8].
35. Nonetheless such "reports obviously have to be clear and full enough to enable [members] to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves": Morge v Hampshire County Council [2011] UKSC 2, [2011] 1 WLR 268 per Baroness Hale of Richmond JSC at [36]. Thus an "application for judicial review based on criticisms of 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": Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ; Palmer v Herefordshire Council [2016] EWCA Civ 1061 per Lewison LJ at [8]. A report may also fail to provide members with information without which no reasonable authority could determine the relevant application, a failure which, if left uncorrected, may also invalidate the committee's decision. In such a case they may be insufficiently informed to make the decision lawfully.
36. Local authorities are required to make a list and copies of background papers for any report available for inspection^[1]. In this case some background papers were attached to the reports sent to the members of the Committee and representations from neighbours were available for their inspection. But, just as it is a reasonable inference (in the absence of contrary evidence) that members accept the reasoning in an officer's report when they follow a recommendation in it (as Lewison LJ pointed out, for example, in Palmer v Herefordshire Council supra at [7]), so also it is a reasonable inference (in the absence of contrary evidence) that they relied on any summary of other documents in the report as being accurate and sufficiently complete for them to understand their effect so far as relevant. Providing such a summary is one of the functions of such a report. Accordingly in my judgment a report which would otherwise be so defective as to invalidate a decision on which it is based is not saved by the fact that members might have corrected any deficiency by themselves inspecting any document referred to in it in the absence of evidence either that they did do so or that any deficiency was not left uncorrected.
37. When considering whether an officer's report meets such requirements, however, it is well established that they are not to be read in an unduly critical way but fairly and as a whole: see R (Lee Valley Regional Park Authority) v Epping Forest District Council [2016] EWCA Civ 404 per Lindblom LJ at [31].

(ii) the impact of the proposed development on the setting of the Castle

38. Mr Turney submitted that, although lacking in clarity in places, the officer's reports can clearly be understood as reporting that there would be no harm to the setting of the Castle. Given that such a conclusion was against a weight of evidence and expertise pointing to a different conclusion, it was necessary, so he submits, to report that evidence accurately to members. But that the reports did not do. Thus, so he submitted, the Reports failed to record Historic England's view that there was an objection in principle to the change of use which would itself affect the relationship between the Castle and the Barns and to point out that the planning officer's view, that development would not harm the significance of the Castle, was at odds with the view both of Historic England and of the leading academic expert, Professor Liddiard. He further submitted that the findings of the Alston report, which post-dated the Inspector's decision and which supported the objections in principle, were not presented to the Committee. Nor, so he submitted, was the fact that the Council's own Heritage Officer had stated that there would be harm to the Castle's setting reported to members.
39. Mr Atkinson first sought to contend that the submission, that the reports should be understood as suggesting that there would be no harm to the setting of the Castle or that the planning officer took her own view on the merits of the application, did not bear scrutiny.
40. In my judgment, however, it is plain that the reports were to the effect that the proposed development would not harm the setting of the Castle. Each report in the section "principle of development" stated that the proposed development would "retain the group value of the Castle and Castle Farm". In the section dealing with the impact on the Barns, the reports again stated that the proposed development would maintain the group value of the Castle and the Farms. In the section of the reports containing the assessment of the impact on the Castle, various arguments why there would be harm to the setting of the Castle (which were said to have been put forward in 2006) were set out but it was noted that they did not convince the Inspector that the setting of the Castle would be harmed. It was also stated that

"The Castle is an impressive and imposing building. The barns will not change in form and the new and existing openings have been designed to indicate the functional use. The hierarchy and relationship between these building will remain distinguishable and decipherable. The external materials also signify the hierarchy and relationship between the former ancillary farm buildings and castle."

The passage from the Heritage Team's assessment of the point which had not been explicitly addressed before, that the barn formed part of a designed, formal approach to the "main Barn" (quoted above), was set out verbatim (without correction). The assessment further stated in each report that

"Whilst the domestic use may be visible, due to the sensitive design of the conversion and the reduction of units from four to three; the ability to appreciate the significance of the castle and the way we experience the building will not be harmed."

To this was added in the report on the listed building consent, "Especially the intervisibility between the two." The conclusion of the assessment in each case was that

"The change of use is not deemed to harm the setting of the Grade I Listed Building adjacent to the site. The ability to appreciate and understand the significance of the Castle will remain intact."

This conclusion was reiterated by Ms Walker when presenting the application to the Committee. Moreover, as I have already mentioned, the reason given for the grant of permission stated that, in the Committee's view, the proposed development "will not harm the setting of the adjacent Grade I Listed Building" thus indicating that they accepted the planning officer's own conclusion that the setting of the Castle would not be harmed by the proposed development.

41. That was not the view of the Council's own Heritage Team. As their consultation response had stated there would be less than substantial harm to designated assets because of compromise of the barn's historic character arising from the change of use and because of intrusion into the setting of the Castle. Mr Turney's contention, that the Heritage Team's view that some harm would be caused to the setting of the Castle was not reported, however, is unsustainable. In each report, under "consultations", it was stated that "The Heritage Team is satisfied that harm to the significance of the application building and to the setting of the Castle has been minimised" and, in the section of the assessment on the impact on the Castle, it was stated that "The Heritage Team support the proposal stating the scheme will cause less than substantial harm to designated heritage assets but the harm is limited and has been minimised." These passages indicate that the Heritage Team thought that there would be harm to the setting of the Castle, albeit that it had been "minimised" and was "less than substantial" in terms of NPPF policy.
42. The planning officer responsible for preparing the reports in this case, Ms Biggs, is entitled to have a different view from other officers of the Council who specialise in dealing with heritage matters. The view expressed in her reports is one that reflects the Inspector's view and, no doubt, her consideration of what the Heritage Team had identified as being the new point about the barn forming part of a designed, formal approach to the "main Barn" and their comments on it (which she had included verbatim in her reports).
43. Mr Turney did not submit that the conclusion, that the proposed development would not harm the setting of the Castle, was not one that she or the Committee could not reasonably have reached, even though it disagreed with the views of Historic England, Professor Liddiard and the Council's own Heritage Team.
44. Mr Turney submitted, however, that the Reports failed to record Historic England's view that there was an objection in principle to the change of use which would itself affect the relationship between the Castle and the Barns.
45. Relevant extracts from its representation which was opposed to the change in use have been quoted in paragraph 18 above. One part of it was that "the traditional agricultural character and use of the site is a key part of its relationship with the Castle" and that "conversion of the historic farm buildings to residential use would result in harm to the significance of Wingfield Castle....caused by the permanent curtailing of the agricultural use and bringing domestic activity into a part of the Castle's immediate setting which was an ancillary service area." The summary of Historic England's objection as stated in the Reports was that:

"Historic England is concerned by the ·proposal to convert the farmstead to residential units and harm to the significance of the barns and Wingfield Castle in terms of the NPPF paragraphs 132 and 134. Historic England do not consider the justification required by the NPPF has been made for the proposed use. The impact on the most significant areas of the farm buildings and the changes to their exterior which would have a harmful impact on the Castle. Historic England resolve to leave it to the Council to consider any public benefit resulting from the development and if the reuse of the buildings could be achieved without harm to the heritage assets but if the justification for the harm required by the NPPF is not made we recommend the application is refused."

46. This summary may well be said not capture the objection in principle to the change from agricultural to residential use clearly or possibly at all, but, since it is itself Historic England's own conclusion to its objection, the blame for any inadequacy in the summary of its views may well be said to lie with Historic England rather than with the author of the reports for quoting it. Be that as it may be, Mr Joubert invited the Committee to refer to Historic England's response (which they had with their papers) but, perhaps, more usefully if they had not already done so, the Committee were clearly told by the applicant's own architect at their meeting that "Historic England do object to the principle of residential conversion...they remain concerned that change to residential use would create a domestic setting." It cannot be contended, therefore, that the Committee would have remained unaware that Historic England had an objection in principle to the change of use even if members had derived a different impression from the reports.
47. There is in any event a further difficulty with Mr Turney's submission. As Mr Atkinson pointed out, Historic England had not directly addressed the Inspector's decision in relation to the setting of the Castle. In its letter relating to the application considered by the Inspector, English Heritage had likewise emphasised, when objecting to that development, that "the traditional agricultural character and use of the site is a key part of its relationship with the Castle." The reports to the Committee pointed out that in 2006 it had been argued that "the group of buildings have a visual hierarchy from Castle to farm dwelling to ancillary barns which has remained untouched" and that there would be a "change to the historic relationship and character of the farmstead". But, as the reports to the Committee stated, the Inspector was nonetheless not convinced that residential use of the Long Barn and of cartshed / granary would be harmful to the setting of the Castle. Given the approach of the reports, treating the Inspector's decision as being of considerable weight and considering whether there was any new information that might affect the conclusions reached, it is highly likely in any event (if section 31(2A) of the Senior Courts Act 1981 falls to be considered) that the outcome of the assessment of the impact on the setting of the Castle would not have been substantially different had the reports expressly stated that Historic England had an objection in principle to the change of use of the Barns.
48. The same difficulty afflicts Mr Turney's submission about Professor Liddiard who likewise had an objection in principle to the change of use in principle. He expressed his concerns to the Inspector in 2007 as his late representation states. He also stated that his subsequent work on the Castle had strengthened his concerns. In his view the buildings had been a constituent part of the Castle for centuries and had always been of an agricultural character and the conversion of the buildings to residential use would represent an irrevocable break with the long term historical use of the site and also its relationship with the Grade 1 listed castle. Mr Turney accepted that Professor Liddiard's late representation was summarised for the Committee. His complaint is that the identity of the maker of the representation and his expertise was not disclosed to the Committee. In my judgment the manner in which Professor Liddiard's representation was presented to the Committee given his expertise is justifiably open to criticism: its source and his background should have been made clear. Nonetheless the Inspector had had the benefit of his views earlier and, although Professor Liddiard stated that his subsequent work on the Castle had strengthened his concerns, he did not identify any new relationship or new information that had not been previously considered.
49. Mr Turney further submitted that the findings in Mr Alston's report, which post-dated the Inspector's decision and which supported the objections in principle, were not presented to the Committee. As I have mentioned, Mr Alston's Report was not one of the documents sent to members with the reports nor was it referred to as such in them. It is referred to in the reports, however, as "the Heritage Appraisal" (without identifying what that was). That is because the reports quote verbatim the passage from the Heritage Team's consultation response (quoted in paragraph 23 above) in the section of the assessment dealing with the impact on the Castle and that consultation response clearly uses that term to refer to Mr Alston's report.
50. Mr Turney did not contend that the members of the Committee were misled by the reference in the reports to the Long Barn forming part of a designed formal approach to the "main barn" rather than to the Castle. The main substantive question is whether Mr Alston's conclusions on the historical importance of the barns (insofar as they related to the setting of the Castle) were presented to the Committee. Mr Turney contends that they were not.
51. The conclusions of Mr Alston's report have been quoted in paragraph 14 above. They were also quoted in the representation by Mr Joubert on the Claimant's behalf dated January 22^nd 2016 that was included in the background papers attached to the reports.
52. Mr Alston's report considers that, being built on the same axis as the Castle, the Long Barn was apparently designed to extend the width and resulting visual importance of the Castle's facade: its scale and external decoration was designed to extend the width and visual impact of the gatehouse when approaching from the south rather than to enclose it. It is to this that the reports appear to intend to refer as the new point about "the position and orientation of the barn" as "part of a designed formal approach to the main barn" (ie the Castle) and "the new understanding of the significance of the layout". The reports state that the removal of the 1990s additions and buildings proposed would enhance the setting of the barn and the wider setting of the Castle but that "the integrity of the physical layout of the barn and Castle as now understood is compromised by the 1800s additions and alterations which partly screen the farm buildings from the Castle grounds". In other words the fact that the view of the Long Barn from the approach to the Castle from the south is partly obscured by such additions is thought to compromise the "physical layout of the barn and Castle as now understood". Although this could have undoubtedly been expressed more clearly for those who had not read Mr Alston's report by stating how the barn contributed given its position and orientation, Mr Turney did not submit that it was misleading about the relationship. It conveys the point that the barn was designed to form a deliberately important visual element in the setting of the Castle viewed from the southern approach.
53. Mr Alston also stated that the Barn was built "as part of a highly fashionable 'seignorial landscape' to aggrandise the Castle" and "it forms part of a rare late Elizabethan 'seignorial landscape' reflecting the status of one of East Anglia's most important families. The term 'seignorial landscape' itself does not appear in representations about the 2006 application. The judgment that this was not itself a separate additional new point depends, however, on the substance of the representations then made. The representation of Professor Maurice Howard, the then Professor of Art History at the University of Sussex, in 2006, for example, is in substance very similar. The judgment that this part of Mr Alston's conclusions did not raise a separate additional new point is not impugned in the grounds on which this claim is brought.
54. Although more clarity and greater detail could well have been provided about Mr Alston's conclusions (especially given that it was recognised by the Council's Heritage Team to have provided an assessment of the Barns' historical significance in an exemplary manner and that it reinforced Historic England's views), in my judgment the manner in which it was presented was not so misleading or deficient as to invalidate the Committee's decision.

(iii) the future of the Barns

55. It is plain from the two reports that the future of the barns was presented as a fundamental consideration and its importance is reflected in the reasons given for the grant of planning permission and listed building consent.
56. Each of the reports stated that:

"The barns are in a state of disrepair. The main barn building is classified as being in poor condition and risk priority C under the risk register as slow decay and no solution agreed. Repairs have been carried out to the main roof, but it has proved difficult to prevent deterioration of the single storey elements resulting from theft of roof tiles. Therefore it has fallen into a worst state of repair since the 2006 refusal."

57. The future of the barns then formed a central part of each of the reports' assessment of "the principle of development".
58. The report on the planning application stated that:

"A further special circumstance listed in paragraph 55· of the NPPF [that indicates that new isolated dwellings in the countryside should be avoided unless there are special circumstances] is that the development would represent optimal viable use of a heritage asset. Paragraph 131 states that in determining planning applications local planning authorities should take account of the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation.

National Planning Practice Guidance (NPPG) details that it is important that any use is viable, not just for the owner, but also the future conservation of the asset. It desirable to avoid successive changes carried out in the interests of repeated speculative and failed uses.

The NPPG defines the optimum viable use as the one likely to cause the least ·harm to the significance of the asset, not just through necessary initial changes, but also as a result of subsequent wear and tear and likely future changes. The optimum viable use may not necessarily be 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."

For no apparent reason, however, the report on the listed building application contained only the sentence in the first of these paragraphs beginning "Paragraph 131...". Instead it then contained the following advice (which was not included in the report on the planning application again for no apparent reason):

"The Council is under duties in the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to the desirability of preserving listed buildings and their settings. Accordingly harm to a building or its setting is to be given great weight in decision making, and in NPPF terms requires clear and convincing justification such as by way of public benefits, and by demonstration that harm has been minimised."

59. Both reports then considered whether there were any uses of the Barns which were economically viable in their own right. The content of the reports on that matter again differs but their conclusion, that there were none other than residential, do not.
60. The report on the planning application then continued so far as relevant:

"The applicant also states that the adjacent neighbour (occupier of Wingfield Castle) has been offered the barns to purchase on a number of occasions but there has been no commitment to date.

Subsequently, Officers consider the residential conversion would represent the optimum viable use of the historic asset in accordance with paragraph 55 of the NPPF. Officers also consider that clear and convincing justification for the conversion has been provided. The conversion would secure the long-term preservation and retention of these Listed Buildings especially given that the long barn is listed on the Buildings at Risk Register."

The report on the listed building application, however, added two incomplete sentences at the end of the first of these paragraphs and omitted the first sentence of the second paragraph (other than the word "subsequently" when in each case the report was plainly supposed to mean "consequently"). The two incomplete sentences added at the end of the first paragraph were:

"Although the neighbour has commented on the application to confirm he still wishes to obtain these buildings to preserve them as they are. Given ten years has passed since the previous application and no resolution has been secured."

61. Mr Turney has two basic complaints about how the reports treated the issue of the future of the Barns. These concern (i) the failure to consider whether, and to advise the Committee that, they should disregard any deliberate neglect of the Barns in accordance with paragraph 130 of the NPPF and (ii) the manner in which the Claimant's offer was presented when considering the optimal use of the premises. I shall consider the second complaint first.
62. Mr Turney accepted that what the Claimant was suggesting was not a "viable use" in its own right as defined by the NPPG. But in my judgment that did not make his offer necessarily irrelevant. The fact that what the Claimant was proposing was nonetheless relevant to "the principle of development" was recognised in the reports as each dealt with his offer as part of the reasoning leading to the conclusion that a "clear and convincing justification for the conversion has been provided". Moreover, although not mentioned in the reports, the Inspector had previously found that, given the evidence that the Claimant was willing to acquire the buildings for agricultural use and put them into a good state of repair, "an alternative use is not urgently required in order to secure the preservation of the listed building, and the proposed conversion to residential use is not warranted." Given that the reports were each drafted on the basis that the Inspector's decision was considered to have "significant weight", it might have been expected that a reason or reasons would be provided why a different conclusion should be reached in the case of these applications. The statements in the reports might be regarded at least in part as providing some part of such an explanation.
63. In my judgment the impression given by the report on the planning application was that little or no weight should be given to the prospect of the Claimant doing anything to preserve the Barns when considering the justification for their conversion to residential use as, notwithstanding the fact that he had been offered the barns to purchase on a number of occasions, there had been no commitment by him to do so hitherto.
64. The two ungrammatical statements added in the report on the listed building application (a) make it clear that the Claimant had said that he still wanted to obtain the buildings to preserve them as they are and (b) state that no resolution has occurred in the ten years since the previous application.
65. The impression thus given by the reports if read together, or by the report on the listed building application alone, is that the Claimant had been offered the Barns to purchase on a number of occasions over the previous ten years but that no resolution had been reached as he was not prepared to commit to acquiring them. That would not have changed the impression that the report on the planning application had given.
66. The letter from the applicants on which the reports relied stated that the Clamant and his wife "had been offered the barns to purchase on numerous occasions but have failed to commit, despite exhausting efforts by our land agents, lawyers and ourselves." The last of three occasions specified on which they were said to have been offered the Barns to purchase was in 2006 (that is to say before the Inspector's decision). The Council also accept that it was in fact the Interested Parties who had withdrawn from the proposed sale of the Barns in 2006, not the Claimant.
67. Mr Turney submitted that members of the Committee would have been misled by the suggestion in the reports that the Claimant had been offered the Barns to purchase on a number of occasions and that the reports failed to inform members that negotiations to acquire them had been terminated unilaterally by the West family. The Council contends that the Committee reports addressed the history and the breakdown of the sale between the Claimant and the Wests in 2006 "neutrally". Mr Atkinson further submitted that the Claimant and Mr Joubert had the opportunity to address the Committee and that Mr Joubert had said that the Claimant's offers to purchase the Barns had been rejected.
68. In my judgment the reports were misleading. They do not state that the last offer to purchase the Barns that had allegedly been made to the Claimant was in 2006. The Claimant had had, therefore, no opportunity to accept any such offer in the previous ten years. Moreover the Council also accept, but the reports did not reveal, that what the applicants had said about that offer was not true: it had not fallen through despite the Wests' efforts or the Claimant's lack of commitment. It had been withdrawn by the Wests. In fact the reports did not address the events in 2006 as such. Nor did they consider whether the reason why no resolution had occurred in the last 10 years was because the owners of the Barn still wished to obtain planning permission for their conversion, notwithstanding the Inspector's decision. The impression which the Reports create is that, although the Claimant had recently confirmed that he still wished to purchase the Barns to preserve them as they are, he had had ten years to take up offers made by the Wests but had made no commitment to date. The implication, therefore, was that little or no weight should be given to the prospect of the Claimant doing anything to preserve the Barns when considering whether there was a clear and convincing justification for their conversion to residential use.
69. The Claimant was only given three minutes at the meeting of the Committee to be shared with Mr Joubert to present his objection. Mr Joubert stated that the Claimant's offers to purchase the Barns had been rejected in the past but that what he wanted to do represented the ideal solution and the Claimant reiterated his desire to put them into repair regardless of any profit in doing so. In answer to a question he also said that they could be, and had been, used for storage and that he had tried to find somewhere to store baled hay. In my judgment these statements were not sufficient to correct the significantly misleading impression that the reports gave about the prospect of the Claimant doing anything to preserve the Barns.
70. The Council contends that in any event it is highly likely that the Council would reach the same decision if required to redetermine the applications. One of the reasons provided by Ms Walker in her witness statement is that the Claimant has provided no evidence how the repair and retention of the Barns would be economically viable without changing the use not just for the Claimant but also for subsequent owners.
71. As set out above, paragraph 131 of the NPPF recognises "the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation". This reflects the obligation imposed by section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 when determining planning applications to "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". The difficulty with treating residential use as a viable use of the Barns for the purpose of paragraph 131, or as being consistent with their preservation for the purpose of section 66(1), is that the reports did not find that the change of use would cause no harm to the listed Barns. On the contrary they apparently accepted the view of the Heritage Team that there would be harm caused to them by the conversion, albeit that the harm caused would be less than substantial and accordingly required clear and convincing justification. It would appear, however, that what the Claimant would do would not involve any such harm and Mr Atkinson did not submit that it would do so. One reason, however, why it is normally important that any use is viable (according to the advice in the NPPG given to the Committee) is to secure the long term conservation of the asset and to avoid successive changes carried out in the interests of repeated speculative and failed uses. The situation, if the Claimant acquired and repaired the Barns, would be that they would form part of the Castle estate. Whether it is likely that future owners of the Castle would be prepared to continue to maintain the Grade II listed Barns as well as the Grade 1 listed Castle, as part of that estate, like the Claimant, even if the use of the Barns was not profitable, would be a matter for the Committee to consider. But, given the type of persons who may be interested in purchasing such a building as the Castle and able to do so, I am not prepared simply to assume that, had the Committee considered the matter, it is highly likely that they would have concluded that, in such circumstances, it is unlikely that the Barns would be maintained and that that in itself provided a clear and convincing justification for permitting the proposed conversion now.
72. Ms Biggs in her second witness statement also criticised the Claimant for not providing the Council with evidence demonstrating that there has been a refusal to sell the Barns on reasonable terms. That was not a matter on which the reports relied: they never considered the terms upon which any offer to sell the Barns had allegedly been made by the applicants. The Claimant has given evidence in his first witness statement, however, that he had offered to pay "a full developer's price for the land and buildings" even though planning permission had been refused before the offer to sell was withdrawn in 2006 after heads of terms had been agreed. I am also not prepared to assume, therefore, that, had responsibility for any failure to reach agreement been considered by the Committee, that it is highly likely that they would have concluded that any fault lay with the Claimant had the matter been explored.
73. For these reasons it does not appear to me to be highly likely (for the purpose of section 31(2A) of the Senior Courts Act 1981) that the outcome for the Claimant would not have been substantially different had the reports not been significantly misleading.
74. Mr Turney further submitted that, although advised about the optimum viable use, members were not told of the guidance that in some cases the asset may be so important and sensitive to change that alterations to accommodate a viable use would lead to an unacceptable loss of significance. In my judgment there was no reason to do so given the view that the harm involved to the Barns was considered to be less than substantial and in such a case a clear and convincing justification for it would be required before any permission to make the change would be granted.
75. As I have mentioned, Mr Turney's other main complaint concerns what he alleges was the failure to consider whether, and to advise the Committee that, they should disregard any deliberate neglect of the Barns in accordance with paragraph 130 of the NPPF. If the deterioration since 2007 had been disregarded, it is likely, so he submits, that the Committee (like the Inspector) would not have found the case for a change of use made out. He drew my attention to a number of complaints that the buildings had not been kept in repair and he contended that any repairs that had been carried out were minor.
76. Mr Atkinson submitted that officers did not consider that there was evidence of deliberate neglect. In fact, as the reports stated, repair work has been undertaken on the main roof but it had proved difficult to prevent deterioration given the theft of roof tiles. No one other than the Claimant had suggested that there had been deliberate neglect and his representation did little more than simply make the allegation.
77. In my judgment Mr Turney has not discharged the burden on the Claimant of establishing, that the officers should have considered the history of disrepair in more detail than they did or that they should have drawn attention to paragraph 130 of the NPPF in terms, on the basis of the material before the court. Officers were entitled to decide how much to say given their own views on the basis of the evidence available to them and Mr Turney has not satisfied me that the only reasonable conclusion was that the disrepair of the relevant buildings was the result of deliberate neglect.

iv. procedural impropriety

78. Mr Turney submitted that the failure to provide the Claimant's objection and Professor Liddiard's letter to the Committee was unfair and in breach of a legitimate expectation he had that they would be provided.
79. There is a dispute as to what may or may not have been said to the Claimant but in any event the Claimant's objection was made available to members in the same manner as any other representation from adjoining owners and the substance of Professor Liddiard's representations was presented orally to the Committee. In these circumstances in my judgment, although it would have been preferable for a copy of Professor Liddiard's late representation to have been given to the Committee and for the Claimant's objection to have been circulated with the background papers to the reports (as Ms Biggs had intended), the Council has not been acted unfairly.

CONCLUSION

80. For the reasons given above, this claim for judicial review succeeds on the basis of the significantly misleading nature of the reports dealing with the history of the Claimant's efforts to acquire the Barns and to put them into good repair.

Note 1   see section 100D(1) and 100E(1) of the Local Government Act 1972. These are those documents relating to the subject matter of the report which (a) disclose any facts or matters on which, in the opinion of the proper officer, the report or an important part of the report is based, and (b) have, in his opinion, been relied on to a material extent in preparing the report, but do not include any published works.    [Back]