QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
(Sitting as a Deputy Judge of the High Court)
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THE QUEEN ON THE APPLICATION OF NORTH NORFOLK PLANNING WATCH LTD |
Claimant |
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- and - |
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NORTH NORFOLK DISTRICT COUNCIL |
Defendant |
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- and - |
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(1) ROSS MCINTYRE (2) RACHAEL THROWER |
Interested Parties |
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Clare Parry (instructed by Eastlaw) for the Defendant
Hearing date: 29 November 2017
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Crown Copyright ©
Mr Martin Rodger QC :
i) That the use of an incorrect application form deprived the Council of the necessary jurisdiction to permit the New Rectory's demolition.ii) That the Committee had been provided with insufficient information to enable it properly to consider whether the demolition of the New Rectory was justified.
iii) That inadequate consideration had been given to the issue of local listing raised by objectors.
iv) Finally, that in giving approval to the use of "Corten" steel on the replacement building the defendant had failed to consider the preservation or enhancement of the Conservation Area as required by section 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
The facts
The application and objections
The Officer's Report
"The existing Rectory has fallen into poor state of repair and whilst offering a degree of local interest and architectural character, the building cannot be considered sacrosanct to change or indeed demolition. The building's position within the conservation area and notably on a key approach to the village makes this a particularly sensitive site. When approaching the Rectory from the south, the building is very much revealed within the landscape and it is this principal view against the backdrop of the mature trees which makes the site distinctive and the building a rather powerful presence.
Whilst the plot lies in relatively close proximity to both the Grade II* Old Rectory and the Grade I St Nicholas Church, the interrelationship and site lines between these assets and the development site is somewhat limited. With this in mind, the impact of the development on the setting of those designated heritage assets is relatively minor.
In regards to the design of the replacement dwelling, the concept of a contemporary style building raises no Conservation and Design cause for concern in principle. The overall height, scale and massing of the development is not dissimilar to that of the existing rectory and follows almost the same footprint. The principal concern relates to the buildings elevational treatments and the predominant use of the Corten steel cladding which is clearly not a material grounded within this predominantly vernacular context. The Corten itself is a material that will weather over time and will portray a degree of colour variation and depth. With this in mind, whilst its profile and finish will be a distinct move away from the traditional roof finish, the end result will not necessarily be jarring or clinical in appearance. Furthermore, the use of the coursed flint work beneath the Corten should assist in grounding the building and offering that local connection which might otherwise be missing.
….
By virtue that the application will not harm the significance of the heritage assets, Conservation and Design raise no objection to the application. In the event of the application being approved, appropriate conditions would be attached regarding materials and rain water goods."
"However, the building is not identified by the Local Planning Authority as a Non-Designated Heritage Asset (i.e. local list) and the building cannot be considered sacrosanct to change or indeed demolish."
"Whilst there is no overriding Conservation and Design objection to the demolition of, and replacement dwelling, it is acknowledged that these issues are finely balanced given the concerns regarding the appearance of the dwelling and setting of heritage assets. Given the prominent position of this building when approaching from the south from Wiveton and long distance views from the south west, any redevelopment of this site needs to give careful consideration to the impact on adjacent heritage assets. Taking account of the above the demolition and replacement of 8 Wiveton Road is not considered to harm the significance of the Old Rectory or Parish Church of St Nicholas, a view expressed by both the Council's Conservation and Design Officer and Historic England.
It is therefore considered that the proposal would not result in significant harm being caused to the character and appearance of the Glaven Valley conservation area, other heritage assets (including the Old Rectory and St Nicholas Church) and the wider countryside and as such would accord with the requirements of core strategy policy EN4, EN8 and NPPF (paragraphs 132 and 134). This view is shared by the Council's Conservation and Design Officer."
The site visit, Mr Bradbury's report and Mr Rhymes' response
"In terms of the building's status, it should be clarified that 8 Wiveton Road is not a designated heritage asset, nor it is a non-designated heritage asset. Having carried out an initial assessment against the Council's adopted Local Listing Criteria, [I] have come to the conclusion that the building is not worthy of inclusion onto the North Norfolk local list."
The meeting
"The Development Management Team Leader reported that the Conservation and Design Officer had been re-consulted on further information which had been received. The dwelling was not a designated heritage asset nor locally listed. An assessment had been carried out against local listing criteria and the dwelling was not considered to be worthy of local listing. The Conservation and Design Officer had no objection to this application."
Councillor Ward, who had called the application in, then referred to information that had come forward relating to the social and historical importance of the building (which I take to be a further reference to Mr Bradbury's report).
Legal principles
i) In the absence of contrary evidence, it is reasonable to infer that members of a planning committee followed the reasoning of the case officer's report, particularly where its recommendation was adopted.ii) An officer's report is to be read as a whole and is not to be subjected to the same exegesis that might be appropriate to the interpretation of a statute. 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."(Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council, 1997 WL1106106, per Judge LJ).iii) A planning officer's report is addressed to an informed readership with substantial local and background knowledge. It is therefore unnecessary for the report to set out in great detail background material with which the committee members will be familiar. It is part of the officer's expert function to make an assessment of how much information needs to be included in a report in order to avoid burdening a busy committee with excessive and unnecessary detail.
"That duty is broader than a duty not actively to mislead. It includes a positive duty to provide sufficient information and guidance to enable the members to reach a decision applying the relevant statutory criteria. In the end it is a matter of fact and degree for the members. However where, as in the present case, the decision-making body is required to apply a legal test to the facts as the members find them, it includes a duty to provide guidance as to what legal test is appropriate."
"The weight to be attached to any material consideration and all matters of planning judgment are within the exclusive jurisdiction of the decision-maker. They are not for the court. A local planning authority determining an application for planning permission is free, "provided that it does not lapse into Wednesbury irrationality" to give material considerations "whatever weight [it] thinks fit or no weight at all" (see the speech of Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, at p.780F-H). And, essentially for that reason, an application under section 288 of the 1990 Act does not afford an opportunity for a review of the planning merits of an inspector's decision…"
"The solicitor's letter was sent to the Council. It is inevitable that this will in many cases lead in turn to the need for some further input from the responsible officer. That input may be given orally on the day, or it may be more helpful to set it out in writing a little time in advance. It is important that members are not "bounced" with new information which they do not have time to digest. But I am satisfied that this is not the case here. The update report was available on the 23rd. The meeting did not take place until 27. It must have been far better to provide the additional information in writing a little time in advance of the meeting than to deploy it orally at the meeting."
Policy
"Proposals involving the demolition of non-listed buildings will be assessed against the contribution to the architectural or historic interest of the area made by that building. Buildings which make a positive contribution to the character or appearance of an area should be retained. Where a building makes little contribution to the area, consent for demolition will be given provided that, in appropriate cases, there are acceptable and detailed plans for any redevelopment or after use."
"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 judgment will be required having regard to the scale of any harm or loss and the significant of the heritage asset."
Ground 1
58 Granting of planning permission: general.
(1) Planning permission may be granted—
…;
(b) by the local planning authority (or, in the cases provided in this Part, by the Secretary of State) on application to the authority in accordance with a development order;
…
(3) This section is without prejudice to any other provisions of this Act providing for the granting of permission.
"7.—(1) Subject to paragraphs (3) to (5), an application for planning permission must—
(a) be made in writing to the local planning authority on a form published by the Secretary of State (or a form to substantially the same effect);
(b) include the particulars specified or referred to in the form;
(c) [irrelevant exceptions] … be accompanied, whether electronically or otherwise, by—
(i) a plan which identifies the land to which the application relates;
(ii) any other plans, drawings and information necessary to describe the development which is the subject of the application;
…."
"Please provide a reasoned justification for the proposed works. In order for the authority to assess an application for demolition properly, it may be necessary to supply additional information such as a structural survey or other analysis of the character or appearance of the area or building. If you need more information please contact your planning authority."
"There is nothing distinctive about the building externally. The internal layout no longer reflects the needs of current living styles and requires upgrading to current energy standards. In the Full Blakeney Parish Council Meeting dated 6 May 2014, it was noted that the property was not fit for occupation due to fuel poverty and is in a poor state of repair."
"The house has been extended previously and theoretically it could be extended again, plus the interior refurbished etc. However, given the age, materials, low aesthetic value and condition of the original house, this option is economically impractical and unrealistic."
Submissions
Discussion
Ground 2
Submissions
Discussion
Ground 3
i) Whether Mr Rhymes, as Conservation and Design Officer, had the delegated authority to reject the objectors' request for local listing.ii) Whether the defendant should have consulted on the request.
iii) Whether the presentation made by officers at the Committee meeting on the heritage value of the New Rectory was "legally sound".
The authority point
The further consultation point
The officers' presentation point
Ground 4