Beverley Anne Guinness and Timothy Whitmore Newton Guinness v The Secretary of State for Communities and Local Government (First Defendant)

JurisdictionEngland & Wales
JudgeNeil Cameron
Judgment Date05 December 2014
Neutral Citation[2014] EWHC 4114 (Admin)
Date05 December 2014
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/3640/2014

[2014] EWHC 4114 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Neil Cameron QC

(Sitting as a Deputy High Court Judge)

Case No: CO/3640/2014

Between:
Beverley Anne Guinness and Timothy Whitmore Newton Guinness
Claimants
and
The Secretary of State for Communities and Local Government
First Defendant

The Second Claimant, Mr Timothy Guinness on behalf of both Claimants

Ms. Estelle Dehon (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 18th November 2014

Neil Cameron QC:

Introduction

1

This is an application for an order pursuant to section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act") to quash a decision of 23 rd June 2014 of an inspector appointed by the Secretary of State for Communities and Local Government. By that decision, the inspector dismissed an appeal made pursuant to section 20 of the 1990 Act against the Basingstoke and Deane Borough Council's ("the Council") decision to refuse to grant listed building consent to replace existing Crittall windows with new timber units at Widmoor Farm, College Lane, Ellisfield, Hampshire RG25 2QE.

2

The Claim, as filed, was brought by Mrs Guinness with Mr Guinness named as 'agent'. I give permission for Mr Guinness to be added as a claimant.

3

In brief, the Claimants rely on the following grounds of claim:

a) The inspector failed to fulfil the statutory duty imposed by section 16(2) of the 1990 Act, in that she found that the existing windows and proposed windows were of equally poor design, yet found that the proposed windows would not preserve the building or its setting or any features of special architectural or historic interests which it possesses.

b) Procedural unfairness or lack of due process

i) The inspector stated that measured drawings were needed when the Council had agreed that they were not.

ii) The inspector relied upon the fact that the photomontages were not scaled.

c) Failure to take material considerations into account, namely:

i) That the east façade of Widmoor Farm has minimal features of historic interest.

ii) That the windows of historic interest on the south façade would be left untouched.

iii) The fact that the proposed replacement fenestration reflects the vernacular of the area.

iv) That the fenestration preferred by the Council would cause harm.

v) The fact that no person or body objected to the proposal

d) Irrationality or perversity

i) The inspector unreasonably placed little weight on thermal efficiency gains that would arise if the new windows were installed.

ii) The inspector displayed a prejudice or bias in favour of other means of achieving gains in thermal efficiency, which means are out of date.

iii) The inspector placed disproportionate weight on design features with little impact such as putty and the width of glazing bars.

The Background Facts

4

The Claimants live at Widmoor Farm.

5

Widmoor Farm is a listed building which is described in the list entry as:

"C17, early C19, C20: Timber-framed house, with later brickwork cladding and recent extensions. Two storeys. The main (south) front was once symmetrical of 3 windows, but has an extension on the west side of 2 windows. Old tile roof, brick dentil eaves. Red brick walling in Flemish bond, first floor band, cambered rubbed arches, plinth Casements, cast-metal lights to the old part. Modern doorway."

6

By an application received by the Council on 4 th July 2013 the First Claimant applied to the Council for listed building consent for:

"Replacement of existing Crittle (sic) windows, with ref to details sent 26 th March 2013, ENQ 34585 with new timber units as agreed on site visit with Rachel White 10 May"

7

The plans submitted in support of the listed building consent application included a location plan, a drawing entitled "Window Design, Chipandell purpose made joinery 'Heritage' style timber window" showing a number of alternative details of window mullions, jambs, glazing bars and other features, and a drawing of the elevations of Widmoor Farm, with an indication of which windows were proposed to be replaced. No scaled drawing showing the design of the proposed windows was submitted by the applicant, and the Council did not require that such a drawing be provided. The window design drawing was prepared by Chipandell Joinery. Mr Parrott of Chipandell Joinery acted as the First Claimant's agent when submitting the listed building consent application.

8

The listed building consent application was considered by the Council's officers acting under delegated powers. The case officer dealing with the application was Ms Rachel White, who wrote a report to inform the decision making process. She wrote:

"Impact on the listed building

• Proposals seek to replicate the fenestration pattern of the existing windows which as above is inappropriate to the host building and is overly C20 in detail.

• The proposed double glazing units would differ from the existing crittle (sic) windows by virtue of

? Wider glazing bars

? Use of beads rather than putty which would give a broader and less defined profile tthe glazing bars

? Reflective qualities of double glazing

? Use of spacers between paned (sic) is not a traditional detail

• Proposals would result in no enhancement to the historic character or appearance of the listed building but would compound the harm caused by the inappropriate form and detail of the existing windows for the reasons given above."

9

The listed building consent application was refused by a decision notice dated 17 th September 2013. The Council relied upon one reason for refusal:

"The proposal would harm the historic character, appearance and significance of the listed building by virtue of the inappropriate form and detail of the proposed windows contrary to Section 12 of the National Planning Policy Framework (March 2012), and the associated English Heritage Historic Environment Practice Guide; and Saved Policy E2 of the Basingstoke and Deane Borough Local Plan 1996–2011."

10

Following refusal of the listed building consent the Second Claimant says that he became actively engaged in the case. The Claimants appealed to the Defendant against that refusal of listed building consent. The Defendant appointed an inspector to determine the appeal.

11

The Claimants submitted a document entitled "Full Statement of Case/Grounds of Appeal" in support of their appeal. The documents attached to the statement of case included a set of photomontages. Those photomontages showed the windows as proposed by the Claimants, and for comparison purposes, equivalent windows with fewer spacing bars and larger glass panes, as preferred by the Council's officers. The Claimants also submitted a series of photographs which showed the fenestration patterns of houses in Ellisfield.

12

The Council submitted a hearing statement in which they argued that the proposed windows would have a detrimental impact on the listed building, stating:

"Cumulatively the above changes would result in windows that would be significantly different in appearance from the existing and subsequently this would have a significant impact on the appearance of the host building. This impact would be harmful by virtue of introducing a window style that would be non-traditional in terms of its detail, and of heavy appearance at odds with the light appearance of the existing windows, both modern and historic, and incongruous in relation to the host building. Consequently the proposed windows would fail to respect or conserve the historic appearance of Widmoor Farm, in particular in regards to the southern elevation where the historic character and integrity of the building is best preserved."

13

A hearing and site visit were held on 28 th May 2014.

14

The decision letter by which that appeal was determined is dated 23 rd June 2014. The appeal was dismissed.

The Decision Letter

15

The inspector noted the extent of the proposals under consideration at paragraph 1 of the decision letter:

"The appellant explained at the Hearing that the replacement of the windows on the north elevation, although marked on the submitted plan, was not now to be included in the proposal. I have assessed the appeal on this basis."

16

The main issue was identified at paragraph 3 of the decision letter:

"The main issue is whether the proposed works would preserve the listed building or its setting or any features of special architectural or historic interest which it possesses, and if not, whether there are public benefits which would outweigh the harm."

17

The inspector set out her reasons, which included the following:

"7. That said, the design of the replacement windows is a considerable challenge because the proportions of the openings made for the Crittall windows constrain the possible patterns and proportions of the replacement windows. In addition, on the south elevation the new windows would be seen in close juxtaposition with the delicate cast iron casements. In order to preserve the significance of the building, the new windows should have a degree of historic authenticity in their own right and be visually subordinate to the cast iron casements.

8. Typical joinery details were submitted, but they include options as to frame sizes and profiles. The submitted plans have no specific information about the proposed window pattern or the subdivision of the panes, although the appellant explained her intentions at the Hearing that there would be no top hung sashes. I was shown a sample window at the site visit and the...

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