Mark Whitby v Secretary of State for Transport and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Hamblen,Lord Justice Simon |
| Judgment Date | 06 May 2016 |
| Neutral Citation | [2016] EWCA Civ 444 |
| Docket Number | Case Nos: C1/2015/3769 and C1/2015/3770 |
| Date | 06 May 2016 |
| Court | Court of Appeal (Civil Division) |
[2016] EWCA Civ 444
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MRS JUSTICE LANG
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Simon
Lord Justice Lindblom
and
Lord Justice Hamblen
Case Nos: C1/2015/3769 and C1/2015/3770
Mr Richard Drabble Q.C. and Mr Andrew Parkinson (instructed by Richard Buxton) for the Appellant
Mr Richard Kimblin Q.C. and Jack Smyth (instructed by the Government Legal Department) for the First and Second Respondents
Ms Nathalie Lieven Q.C. and Mr Richard Clarke (instructed by Winckworth Sherwood) for the Third Respondent
Hearing date: 21 March 2016
Introduction
We heard these appeals on 21 March 2016. For all four parties the outcome was urgent. Conscious of this, we announced on 23 March 2016 that we had decided to dismiss the appeals and would give our reasons later.
The appeals require us to consider the meaning and effect of government policy in paragraphs 132 and 133 of the National Planning Policy Framework ("the NPPF") for decision-making on proposed development that would harm the "significance of a designated heritage asset", and, in the context of a project for the construction of a new railway, the decision-maker's approach to a suggested alternative alignment.
With permission granted by Lewison L.J. on 11 January 2016, the appellant, Mr Mark Whitby, appeals against the order of Lang J., dated 14 October 2015, dismissing his challenge to the decisions of the first respondent, the Secretary of State for Transport, on 25 March 2015, to make the Network Rail (Ordsall Chord) Order under sections 1, 3 and 5 of the Transport and Works Act 1992, and to direct that planning permission for the proposed works be deemed to be granted under section 90(2A) of the Town and Country Planning Act 1990 ("the 1990 Act"), and the decision of the second respondent, the Secretary of State for Communities and Local Government, on the same day, to grant ten applications for listed building consent for the demolition, partial demolition or alteration of listed buildings affected by the works. The project was promoted by the third respondent, Network Rail Infrastructure Ltd.. It is for the construction of the Ordsall Chord: an elevated chord railway, 340 metres in length, running from the Castlefield Viaduct on the Bolton line in the city of Manchester to the Middlewood Viaduct on the Chat Moss line in the city of Salford, and linking the three main railway stations in Manchester – Victoria, Oxford Road and Piccadilly.
An inquiry into Network Rail's proposals was held by an inspector, Mr Brendan Lyons, over 13 days in April and May 2014. Mr Whitby appeared at the inquiry as an objector and presented the case for an alternative alignment, known as "Option 15". In his report to the two Secretaries of State, dated 6 January 2015, the inspector recommended that the order be made with minor modifications, that the direction under section 90(2A) of the 1990 Act be given, and that the listed building consents be granted. Those recommendations were accepted by the Secretaries of State.
The issues in the appeals
The proceedings concern the approach taken by the inspector and the Secretaries of State to the consideration of Option 15. They were brought by way of statutory challenges to the order and the listed buildings consents, and a claim for judicial review of the deemed planning permission, all of which were rejected by Lang J..
Mr Whitby's grounds of appeal are a somewhat refined version of the argument that failed before the judge. They raise several closely related issues: whether the judge was wrong to find, first, that the inspector and the Secretaries of State correctly understood and lawfully applied government policy in paragraphs 132 and 133 of the NPPF (ground 1); secondly, that the inspector was right to assess Option 15 on a different basis from the proposed works (ground 2A); thirdly, that he gave clear and adequate reasons for concluding as he did on the balance between potential benefit and harm in his consideration of that alternative (ground 2B); fourthly, that he properly balanced Option 15's advantage in avoiding harm to heritage assets against its disadvantages (ground 3A); and fifthly, that the Secretaries of State complied with the requirements of sections 16, 66 and 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Listed Buildings Act") (ground 3B).
Because those issues are not readily divisible from each other, I think they are best dealt with together – as they were by counsel on either side in their submissions. The single main issue, as I see it, is whether the decisions in this case were unlawful either because they were not taken consistently with the decision-maker's statutory duties relating to listed buildings and conservation areas or because the Secretaries of State misunderstood or misapplied relevant national policy and guidance.
Statute, policy and authority
Section 16(2) of the Listed Buildings Act provides:
"In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State shall 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."
Section 12(3A) of the Listed Buildings Act provides that "[an] application for listed building consent shall, without any direction by the Secretary of State, be referred to the Secretary of State instead of being dealt with by the local planning authority in any case where consent is required in consequence of proposals included in an application for an order under section 1 or 3 of the Transport and Works Act 1992". Section 66 of the Listed Buildings Act contains the "[general] duty as respects listed buildings in exercise of planning functions". Section 66(1) provides:
"In considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall 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."
Section 72 contains the "[general] duty as respects conservation areas in exercise of planning functions". Section 72(1) provides:
"In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in subsection (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
It is settled law that the duty under section 66(1) is of the same nature as the parallel duty under section 72(1) (see the judgment of Sullivan L.J. in Barnwell Manor Wind Energy Ltd. v East Northamptonshire District Council [2014] EWCA Civ 137, at paragraph 16); that the concept of "preserving" in both of those provisions means "doing no harm" (see the speech of Lord Bridge of Harwich in South Lakeland District Council v Secretary of State for the Environment [1992] 2 A.C. 141, at pp.149 and 150); and that "Parliament's intention in enacting section 66(1) was that decision-makers should give "considerable importance and weight" to the desirability of preserving the setting of listed buildings when carrying out the balancing exercise" (see Sullivan L.J.'s judgment in Barnwell Manor, at paragraph 29).
The NPPF was published as national planning policy for England on 27 March 2012. Paragraphs 132, 133 and 134 state:
"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. Substantial harm to or loss of a grade II listed building, park or garden should be exceptional. Substantial harm to or loss of designated heritage assets of the highest significance, notably scheduled monuments, protected wreck sites, battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.
133. Where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss, or all of the following apply:
• the nature of the heritage asset prevents all reasonable uses of the site; and
• no viable use of the heritage asset itself can be found in the medium term through appropriate marketing that will enable its conservation; and
• conservation by grant-funding or some form of charitable or public ownership is demonstrably not possible; and
• the harm or loss is outweighed by the benefit of bringing the site back into use.
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...
To continue reading
Request your trial
-
Transport And Works Act Order Upheld In Heritage Case
...Whitby v Secretary for Transport & Ors [2016] EWCA Civ 444 the Court of Appeal has given its reasons for dismissing challenges to the Transport and Works Act 1992 (TWA) Order and related planning permission and listed building consents for the Ordsall Chord rail scheme. The judgment con......