South Lakeland District Council v Secretary of State for the Environment and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MANN,SIR CHRISTOPHER SLADE,LORD JUSTICE BUTLER-SLOSS |
| Judgment Date | 12 March 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0312-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0173 |
| Date | 12 March 1991 |
[1991] EWCA Civ J0312-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Lionel Read Q.C. sitting as a
Deputy Judge of the High Court)
Royal Courts of Justice
Lord Justice Butler-Sloss
Lord Justice Mann
and
Sir Christopher Slade
91/0173
and
MR. N. MACLEOD Q.C. and MR. J. KARAS (instructed by Messrs Sherwood & Co.) appeared on behalf of the Respondent (Applicant).
MR. JOHN LAWS and MR. I. ASHFORD THOM (instructed by The Treasury Solicitor) appeared on behalf of the Appellant (First Respondent).
The Second Respondent did not appear and was not represented.
This is an appeal from a decision of Mr. Lionel Read QC sitting as a Deputy Judge of the Queen's Bench Division on 26th February 1990. On that day he allowed an application by South Lakeland District Council under section 245 of the Town and Country Planning Act 1971, and quashed a decision by an inspector appointed by the Secretary of State for the Environment dated 13th July 1989. The basis of the learned Deputy Judge's decision was that the inspector had made an error in law in that he had not paid proper regard to the requirements of section 277(8) of the Act of 1971.
The Act of 1971 has now been replaced by the consolidating legislation of 1990 and in particular by the Town and Country Planning Act 1990. The new provisions are not in substance different from the old, and for convenience I shall refer to the provisions in force at the time of the events giving rise to this appeal.
The events commence on 20th July 1988 when the South Lakeland District Council received an application for planning permission by the Carlisle Diocesan Parsonage Board. It was an application for outline permission to erect a new vicarage within the curtilage of the existing vicarage at Priest Lane, Cartmel, Cumbria. The site is within the Cartmel Conservation Area which was designated in 1969. Cartmel is a village which is rich with archaeological, architectural, aesthetic and historic character. On 12th September 1988 the application was rejected for reasons that:
"The proposal would be seriously detrimental to the history, architecture and visual character of this part of the Cartmel Conservation Area and would be contrary to policies C5 and C23 of the Cartmel and Furness Local Plan and C14/C15 of the Cumbria and Lake District Joint Structure Plan, First Alteration."
On 9th March 1989 the Parsonage Board appealed to the Secretary of State for the Environment against the refusal of permission. The Secretary of State appointed an inspector (Mr. N.A.C. Holt, RIBA) to determine the appeal. The appeal was allowed on 13th July 1989 upon a consideration of written representations and after a site inspection. On 21st August 1989 the District Council applied for the decision to be quashed. The application was successful and hence the present appeal. The Parsonage Board, although formally the second respondent, have not appeared either in this court or below.
The argument before this court focused, as it did in the court below, upon section 277(8) of the Act of 1971. It provided, so far as is material:
"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.…"
The determination of an appeal is an exercise of power under the Act (see section 30(3)). There is no dispute but that the inspector did appreciate his need to pay special attention to the desirability of preserving or enhancing the character or appearance of the Cartmel Conservation Area. He expressed his appreciation in paragraph 2 of the decision letter in these words:
"I am of the opinion that the main issues are firstly, what effect the proposal would have on the character and appearance of the Cartmel Conservation Area, having regard to the desirability of preserving or enhancing that character and secondly,…".
The argument accepted by the learned Deputy Judge, was that the inspector had failed to discharge the duty which he had recognised in that he had not addressed the question of whether the proposed new vicarage would, or would not, preserve the character or appearance of the Cartmel Conservation Area. The material paragraphs of the decision letter are these:
"6. The Vicarage in my opinion should be regarded as being within the confines of the village. Whilst the proposed development would not fall 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 house did 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 special quality of Cartmel, and I would agree that they should be strongly supported. I am of the opinion however that providing great care was exercised in the detailed design of the proposed house, having regard to the precise siting, the materials, the massing, the roof pitch, and the details of features such as the eaves and windows, the proposed Vicarage could be accommodated without damaging consequences to the appearance of the village. Whilst there might have been no new building of significance in this part of Cartmel for over 100 years, that is not a reason to prevent development now, if no harm would result.
9. I have had regard to the potential precedent that could be established were this appeal allowed. In the context of the village, I am satisfied that the physical characteristics of the site make this a special case and I do not consider that a permission for your client's proposal would make it difficult for the Council to refuse applications elsewhere that might have more damaging consequences to the character of what is undoubtedly a most important conservation area."
These paragraphs were examined before us in order to show that the inspector either had or had not performed his duty under section 277(8). How then should he have approached the performance of his duty? There was no agreement upon the answer to this question which is a question of general importance.
The debate was to whether in paying special attention to the desirability of preserving or enhancing the character or appearance of a conservation area, the decision-taker is bound to determine whether the proposed development would make a positive contribution to preservation and enhancement. If he is, then a determination that neither character nor appearance is harmed is an insufficient discharge of the duty for the decision-taker will not have answered the correct question. I should say that whatever be the correct question, its answer is not necessarily decisive of a development proposal for there may in particular circumstances be other material considerations which are favourable to, or adverse to, a proposal which fails or passes the conservation test. However in practice the conservation consideration will be a weighty ractor in the mind of a decision-taker.
The learned Deputy Judge answered the question in accordance with his own previous decision in Steinberg v. Secretary of State for the Environment [1989] 2 PLR 9. In that case he said (at p 12F):
"There is, in my judgment, a world of difference between the issue which the inspector defined for himself—whether the proposed development would 'harm' the character of the conservation area—and the need to pay special attention to the desirability of preserving or enhancing the character or apperance of the conservation area. In short, harm is one thing; preservation or enhancement is another. No doubt the inspector has demonstrated his concern that the character of the conservation area should not be harmed. That, in my judgment, is not the same as paying special attention to the desirability of preserving or enhancing that character as well as its appearance. The concept of avoiding harm is essentially negative. The...
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