City & Country Bramshill Ltd v Secretary of State for Housing, Communities and Local Government
| Jurisdiction | England & Wales |
| Judge | Mr Justice Waksman |
| Judgment Date | 14 November 2019 |
| Neutral Citation | [2019] EWHC 3437 (Admin) |
| Date | 14 November 2019 |
| Docket Number | Claim Nos: 813, 989, 1488 and 1648/2019 |
| Court | Queen's Bench Division (Administrative Court) |
[2019] EWHC 3437 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Mr Justice Waksman
Claim Nos: 813, 989, 1488 and 1648/2019
and
James Strachan QC and Ned Helme (instructed by Pinsent Masons LLP, Solicitors) for the Claimant/Appellant
Guy Williams and Alistair Mills (instructed by the Government Legal Department) for the First Defendant/Respondent
The Second Defendant/Respondent not appearing or being represented
Richard Ground QC and Ben Du Feu (instructed by Historic England Legal Department) for the Third Defendant/First Interested Party
Melissa Murphy (instructed by National Trust Legal Department) for the Second Interested Party
Hearing dates: 12–14 November 2019
INTRODUCTION
These proceedings are brought pursuant to ss288 and 289 of the Town and Country Planning Act 1990 (“the Act”) against numerous aspects of a decision letter of a Planning Inspector dated 31 January 2019 (“the DL”). The underlying Inquiry opened on 31 October 2017 and closed on 9 February 2018 after 26 days of hearing and two site visits. The Claimant/ Appellant, City & Country Bramshill Ltd (“C&C”) is the present owner of the appeal site at Bramshill, Hook, Hampshire (“the Site”).
The Site is spread over 106 hectares containing the following:
(1) a Grade I-listed 17 th-century Jacobean mansion (“the Mansion”) together with some other smaller Grade I and II listed buildings, and adjoining gardens;
(2) a Grade I-listed registered park and garden (“RPG”) which includes a lake; and
(3) a number of modern buildings including residential units, a building called Foxley Hall, a sports hall and other associated structures, all of which were part of a national police college built at the site after the Home Office purchased it in 1952 (“the Modern Buildings”). On any view, the Modern Buildings are inappropriate in their present setting having regard to the Mansion and the RPG. However they were created without any planning constraints because of the exemption from such laws applicable to government departments at the time of their construction.
C&C is a developer specialising in the development of historic and heritage sites. It bought the Site from the Home Office in 2015.
The appeals heard by the Inspector (on behalf of the First Defendant/Respondent (“the Secretary of State”)) all arose from the refusals on the part of the local planning authority, Hart District Council (“HDC”—the Second Defendant/Respondent in these proceedings but which has played no part in them) to grant various planning permissions and its decisions to issue various enforcement notices.
Useful photographs of the Mansion and its grounds are at 5/6/2129–2134 of the Bundle, the last of which shows an aerial view of the Site with the Mansion in the foreground, the distinctive shape of Foxley Hall to the south-east of the lake and the sports hall to the south-east of Foxley Hall. The remainder of the Modern Buildings can be seen to the south and west of the lake. An existing site plan for it can be seen at A/43. Here the Mansion appears as the shaded building B001. The historic main access to the Mansion is known as Main Drive and on the plans was in a north-easterly direction up to the left of the Mansion shown in grey. A second access to the Mansion called Reading Drive ran from northwest to south-east on the plan through an area now covered by the Modern Buildings, crossing the northern end of Mansion Drive, and running north of the Mansion itself and the nearer walled gardens. Running from the Mansion north-eastwards to and then beyond Reading Drive, between the two rows of trees, is a formal walk.
I now set out the essential details of the various proposals made by C&C by reference to their appeal numbers as they appeared before the Inspector and retained before me:
(1) Appeal 1: conversion of the Mansion into 16 apartments and the adjoining stable block into 5 apartments;
(2) Appeal 2: conversion of the Mansion into a single dwelling;
(3) Appeal 3: conversion of the Mansion into B1 office space;
(4) Appeal 4: creation of 235 houses to the west of Reading Drive (looking at A/43 and A/47) across the area shown on the plan as Application 4. Most of the Modern Buildings in that area would be demolished to enable the new development although a few of them would be retained. This area can also be seen in plan A/45 and A/47;
(5) Appeal 5: this was an addition to Appeal 4 i.e. it would not take place without the Appeal 4 development and consisted of a further 14 houses southwest of the Appeal 4 site (looking at plan A/43) in the area shown thereon as “Application 5”;
(6) Appeal 6: this is similarly dependent on Appeal 4, entailing the creation of 9 houses to the north of the lake as shown in the area marked “Application 6”.
As for Appeals 7–33: Appeal 7 seeks planning permission for the use of 51 existing residential units on the Site as separate C3 dwelling houses, as opposed to housing ancillary to the C2 function of the Site when it was a college, strictly a “residential institution”. On 2 August 2013 a certificate of lawful use in that respect was issued (“the CLEUD”). Of the 51 units, 26 were the subject of enforcement notices issued by HDC on the basis that their present occupation was a material change of use. The appeals against those enforcement notices constituted Appeals 8–33. In respect of those appeals, Appeal 7 was only necessary in relation to any house where its appeal against the material change of use limb of the enforcement notice failed. If the latter appeal succeeded (because the Inspector found no material change of use anyway) Appeal 7 would be unnecessary in respect of that house.
Appeals 15 and 17–33 concerned enforcement notices issued in respect of the use of 18 houses on Lakeside Drive and Reading Drive North i.e. near the lake. The Inspector held that there was no material change of use here and so (a) the enforcement notices were set aside and (b) Appeal 7 in relation to them became academic although it was considered separately by the Inspector.
As for Appeals 8–14, concerning enforcement notices issued in respect of houses further southwest in Green Ride Close, the Inspector upheld the enforcement notices and accordingly unless Appeal 7 succeeded (by giving them a new planning permission for C3 use) the relevant enforcement notices would stand. The same is true of Appeal 16 (2, Lakeside) which was a house in multiple occupation and it could not have been argued that there had not been a material change of use.
As for the other 25 of the 51 houses, the enforcement notices originally issued were later withdrawn since those houses were not in occupation anyway. But they still formed part of the Appeal 7 appeal.
In addition,
(1) Appeals 1–3 would all provide for the demolition of some of the Modern Buildings in the vicinity of the Mansion;
(2) Appeals 4–6 would bring in the demolition of all of the Modern Buildings on the Site marked in red at A/43. The small number of retained buildings are shown there in grey. It is now accepted that Appeal 4 itself would bring all of that demolition. There is an issue between the parties as to when that position became clear for the purpose of the Inquiry, as opposed to Appeals 5 and 6 each contributing some of the demolition as distinct from Appeal 4;
(3) Appeals 5 and 6 would also provide a cross-subsidy for necessary heritage repairs. But the nature of that subsidy depended on whether Appeals 1 or 3 were granted, as opposed to Appeal 2. In the former case, the cross-subsidy would to Mansion repairs only. In the latter case, Appeals 5 and 6 would both have funded repairs to the Mansion, but the cross-subsidy to the Mansion repairs from Appeals 5 would be reduced on the basis that all or most of the necessary repairs would by then have been undertaken by the new single purchaser, and spent instead on repairs to other listed structures;
(4) Finally, every planning permission appeal, save for Appeal 3, included the provision of a SANG (“Suitable Alternative Natural Green space”). This is in the context of the fact that a number of the buildings (either existing or to be created) fall within the 5km zone of influence, and some within the exclusion zone, being 400 m of the boundary of a Special Protection Area (“SPA”) adjacent to the Site. I refer to this in more detail below.
The application/appeals before me arise out of the Inspectors decisions to refuse all the planning appeals save under Appeals 1, 2 and 3 and to dismiss enforcement appeals 8–14 and 16. They are resisted in their entirety by the First Defendant, the Secretary of State, representing the Inspector. At the Inquiry, there were additional interested parties represented. They included Historic England (formerly English Heritage) (“HE”) and the National Trust (“NT”). Both of those parties have appeared in these proceedings before me essentially in relation to grounds concerned with heritage matters. They also seek the dismissal of the applications challenging the decisions on Appeals 4–6.
The Secretary of State accepts that if I find that the Inspector made an error that led to a material error in the balancing exercise, this would require the quashing of the decision. Further, that whether or not the decision would have been the same would depend on the ground of challenge which was successful. It is accepted by all sides that I cannot meaningfully make any decision on the question of discretion until I have determined the various grounds of...
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