South Lakeland District Council v Secretary of State for the Environment and Another
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Templeman,Lord Griffiths,Lord Ackner,Lord Oliver of Aylmerton |
| Judgment Date | 30 January 1992 |
| Judgment citation (vLex) | [1992] UKHL J0130-1 |
| Date | 30 January 1992 |
| Court | House of Lords |
[1992] UKHL J0130-1
Lord Bridge of Harwich
Lord Templeman
Lord Griffiths
Lord Ackner
Lord Oliver of Aylmerton
House of Lords
My Lords,
Local planning authorities have a duty under section 277(1) of the Town and Country Planning Act 1971, to "determine which parts of their area are areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance" and to designate such areas as conservation areas. The Secretary of State has a concurrent power of designation after consultation with a local planning authority. Section 277(8) provides:
"Where any area is for the time being designated as a conservation area, special attention shall be paid to the desirability of preserving or enhancing its character or appearance in the exercise, with respect to any buildings or other land in that area, of any powers under this Act, Part I of the Historic Buildings and Ancient Monuments Act 1953 or the Local Authorities (Historic Buildings) Act 1962."
These were the provisions in force at the material time. They have since been replaced by provisions in the Planning (Listed Buildings and Conservation Areas) Act 1990 to substantially the same effect.
There is no dispute that the intention of section 277(8) is that planning decisions in respect of development proposed to be carried out in a conservation area must give a high priority to the objective of preserving or enhancing the character or appearance of the area. If any proposed development would conflict with that objective, there will be a strong presumption against the grant of planning permission, though, no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest. But if a development would not conflict with that objective, the special attention required to be paid to that objective will no longer stand in its way and the development will be permitted or refused in the application of ordinary planning criteria. The issue raised in this appeal is as to the scope of the objective itself. What does the "desirability of preserving or enhancing [the] character or appearance" of a conservation area involve? Does it, as the appellant contends, erect a barrier against any building development which does not either enhance or "positively preserve" the character or appearance of the area? Or does it, as the Secretary of State contends, only inhibit development which will in some degree affect the character or appearance of the area adversely? This is the issue of principle which your Lordships must resolve.
The second respondent applied for outline planning permission to build a new vicarage within the curtilage of the existing vicarage in the village of Cartmel in Cumbria. The Cartmel Conservation Area includes the whole of the village. The South Lakeland District Council, as local planning authority, refused permission on the ground, inter alia, that:
"The proposal would be seriously detrimental to the history, architecture and visual character of this part of the Cartmel Conservation Area …"
The second respondent appealed to the Secretary of State, who appointed an inspector to determine the appeal.
The inspector considered written representations from the parties and inspected the site. By his decision letter dated 13 July 1989 he allowed the appeal and granted planning permission subject to conditions. The authority applied to quash his decision pursuant to section 245 of the Town and Country Planning Act 1971. Mr. Lionel Read Q.C., sitting as a deputy high court judge, allowed the application, but his decision was in turn reversed by the Court of Appeal (Butler-Sloss and Mann L.JJ. and Sir Christopher Slade): [1991] 1 W.L.R. 1322. The authority now appeals by leave of your Lordships House.
There is no doubt that the inspector had the provisions of section 277(8) clearly in mind. He directed himself in terms that the first issue he had to consider was "what effect the proposal would have of the character and appearance of the Cartmel Conservation Area, having regard to the desirability of preserving or enhancing that character." He described the existing vicarage as "a substantial late 19th century house set well back from the road in grounds containing several fine mature trees." The paragraphs of the decision letter setting out the reasoning which led the inspector to his conclusion read as follows:
"6. The vicarage in my opinion should be regarded as being within the confines of the village. Whilst the proposed development would not fail within the generally accepted definition of infilling, I do not consider that it would be contrary to the important objectives of the settlement policy, designed to protect the countryside from unnecessary development. Providing that the proposed housedid not cause harm to the character of the Conservation Area, I consider that it would accord with Policy A3 of the Plan. As regards Policy C5, in my opinion the local authority are fully justified in protecting the open areas within the village, which make a significant contribution to its character. I do not consider however that the mature domestic curtilage of the Vicarage, which is to a large extent screened from public vantage points by trees and shrubs along the east and west boundaries, and by the stone wall along the frontage to Priest Lane, should be seen in the same light as the nearby open pasture land.
7. I would accept that the proposed house would be visible from Priest Lane, over the existing wall in front of the site and also when approaching from the east. I consider however that because of the wall and the existing trees and shrubs on the site, that would be retained, the impact of a new house would not be great. In my opinion the effect on the character and appearance of this part of the Conservation Area would be small. I am also satisfied that the grounds of the Vicarage are sufficiently large to accommodate a new house without serious detriment to the setting of the existing building and without affecting the larger trees within the garden that make a particularly significant contribution to the area.
8. I very much appreciate the concern of the Council and the local people, to preserve and enhance the...
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