Bath Society, The v Secretary of State for the Environment
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GLIDEWELL,LORD JUSTICE STOCKER,SIR DENYS BUCKLEY |
| Judgment Date | 06 February 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0206-5 |
| Docket Number | 91/0103 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 1991 |
by
and
and
[1991] EWCA Civ J0206-5
Lord Justice Glidewell
Lord Justice Stocker
Sir Denys Buckley
91/0103
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE HUTCHISON)
Royal Courts of Justice
MAJOR A.J.W. CROMBIE appeared for the Appellant (Applicant).
MR JOHN HOWELL and MISS ALISON FOSTER, instructed by The Treasury Solicitor, appeared for the First Respondent (First Respondent).
The Second Respondent was not represented.
MR ANTHONY DINKIN, instructed by Messrs Portner & Jaskel, appeared for the Third Respondent (Third Respondent).
On 9th September 1987 Bath City Council, the local planning authority, refused an application by Hammercrest Developments Limited for planning permission to construct a four-storied block of 20 flats, two lodges, garages and roadways on land adjoining the site of Cavendish Lodge, Lansdowne, Bath. Hammercrest appealed. Their appeal was heard by an Inspector, Mr MacDonald, an architect, in May 1988. In July 1988, he reported to the Secretary of State for the Environment, recommending that the appeal should be allowed. The Secretary of State accepted this recommendation, and by a decision letter dated 25th November 1988 allowed Hammercrest's appeal.
At the inquiry at which the appeal was heard, the Bath Society were represented by Major Crombie, who on their behalf strongly objected to the proposed development. On receiving the Secretary of State's decision, the Society sought to challenge it by way of an application to the High Court under section 245 of the Town and Country Planning Act 1971. On 19th February 1990, after a four day hearing in Plymouth, Mr Justice Hutchison dismissed the Society's application. The Society now appeals to this court.
Before us the Society are again represented by Major Crombie, who has (no doubt with the assistance of other members of the Society) prepared their case with great care and competence, provided an admirable skeleton argument, and addressed us with skill and courtesy. The court is much indebted to Major Crombie for his efforts, as indeed are the other members of the Bath Society.
The Site and its Surroundings
Bath is a city of great beauty, with a wealth of historic buildings constructed for the most part in what Sir Arthur Bryant called "the age of elegance", i.e. the 18th and early 19th centuries. It is amongst the sites and cities listed by the World Heritage Convention administered by UNESCO as "of such exceptional interest and of such universal value that protecting them is a concern of all mankind". The city rises northwards from the valley of the River Avon. Much of the Georgian city consists of terraces of stone houses interspersed with open spaces and gardens. The appeal site lies close to two of these terraces, being to the east of Cavendish Crescent and to the south of Lansdown Place. The site forms the garden and curtilage of a former house, Cavendish Lodge. The site itself is a T-shaped area of open land, 2.7 acres in extent, comprising what is called "the garden" (the stem of the T) and the "field". The development proposed is the construction of a block of flats and garages on the field, with lodges on the garden at the entrance to the entire development. There are a number of trees subject to Tree Preservation Orders on the garden.
Planning History
The planning history of this site is extensive. I cite only that part of it which is relevant for present purposes.
On 4th February 1964 (before the conservation area came into being) outline permission was given for the construction of up to 30 residential units on 1.7 acres forming part of the site. This was described as being " east of Cavendish Lodge", which was then standing. There was no time limit within which this development was to be carried out. The permission specifically included consent for a departure from the development plan.
On 5th December 1967 outline permission was granted for the construction of 36 flats and 12 maisonettes on the field.
In December 1968 six conservation areas, one of which included the appeal site, were designated by the City Council under the Civic Amenities Act 1967. These conservation areas were later amalgamated into one.
On 28th March 1972 an application was made for approval of details under the 1967 outline permission. By virtue of schedule 24 paragraph 20(1) of the 1971 Act, the outline permission remained effective provided that such an application was made before 1st April 1972. In other words, the application was in time and the planning permission remained in force. In addition in May 1972 a new application was made for planning permission to erect 48 flats on the field. The City Council did not decide the application for approval of details, and refused the application for 48 flats. An appeal was entered against both the failure to decide the first application and the refusal of the second application.
This appeal was heard at an inquiry in March 1973. By a decision letter dated 22nd April 1974 the Secretary of State dismissed both appeals. I shall return later to the reasons for these decisions.
Listed building consent to demolish Cavendish Lodge was granted in July 1982, and the house was demolished thereafter.
A development brief for the appeal site was approved by the City Council on 6th May 1986. This brief contained the following provisions amongst others:
(a) "No new buildings, other than a lodge, are to be erected significantly in front of 11 Cavendish Crescent and they may not project back into the field. Garages and/or parking spaces together with not more than three dwellings would be acceptable at the southern end of the field."
This restricted building development to two relatively confined areas of the site.
(b) "Landscaping. None of the trees on the site are protected by the Tree Preservation Order."
(c) "To safeguard the field against future development, before planning permission is granted, the owners of the property will be required to enter into an agreement under section 52 of the Town and Country Planning Act 1971 to secure the laying out and retention of the field as an amenity space."
The Appeal
By letter dated 31st March 1988, before the appeal hearing, Hammercrest's architect submitted amended plans. The Inspector agreed to accept these for the purposes of the appeal, concluded that they were preferable to the plans originally submitted, and based his recommendation upon the amended plans. They show a design for a block of flats in what I would call an ornate classical style. Of it the Inspector said in his report:
"The design of the proposed building has been criticised for being incorrect, within the grammar of classical design or, at least, idiosyncratic in its use of classical elements. The architect has certainly used the elements of the classical vocabulary in a free, and in some respects, non-traditional way, but the resulting building is not unpleasing nor out of character with its setting."
He concluded that
"…the proposed building would be appropriate to its site and setting. It represents a successful attempt to design in harmony with classical principles, but without slavish adherence to precedent."
Before Mr Justice Hutchison Major Crombie based one of his submissions on an objection to the Inspector's acceptance of the amended plans, but he has not repeated this submission before us. Nothing therefore now turns on this matter.
The Secretary of State's reasons for allowing the appeal were expressed in the following words:
"The Inspector recommended that, in view of the considerations expressed in paragraphs 42 to 45 of his report, the appeal should be allowed, subject to conditions. The Secretary of State agrees with the Inspector's conclusions and accepts his recommendation."
It follows, therefore, that the challenge to the Secretary of State's decision is, in effect, a challenge to the reasoning contained in the Inspector's report, and in particular to paragraph 42. Before I come to this, however, there is one other matter with which I should deal shortly.
The Local Plan
Before the appeal hearing Bath City Council, as local planning authority, had prepared and published a Local Plan for the City. An inquiry into objections to this plan was heard in April 1988 by an Inspector, Mr Gray. Local plan enquiries are heard by Inspectors of the Department of the Environment Inspectorate, but they are in effect on loan to the relevant local planning authority. The Inspector who holds such an inquiry reports to the local planning authority, not to the Secretary of State. It is then for the local planning authority to decide whether and how far to adopt his recommendations, to advertise any modifications to the plan, and if necessary to hold a further inquiry or to consider representations about objections to these modifications.
In the Local Plan, the garden part of the appeal site was allocated for residential development, whereas the field was shown with no notation. The City Council explained that this was to be read in conjunction with the development brief, to which I have already referred. The Bath Preservation Trust objected to the lack of notation on the field, urging that it should be shown as Open Space. They made this objection at the inquiry into the plan.
Post-Inquiry History
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