University College London, R (on the application of) v First Secretary of State & Anor [2004] EWHC 2846 (Admin)

Case No CO/3782/2004[2004] EWHC 2846 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 24 November 2004
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF UNIVERSITY COLLEGE LONDONClaimant-v-
Between
FIRST SECRETARY OF STATEDefendantLONDON BOROUGH OF CAMDENDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR MICHAEL HUMPHRIES QC (instructed by SJ BERWIN SOLICITORS, LONDON WC1X 8XF) appeared for CLAIMANTMR DAVID FORSDICK (instructed by THE TREASURY SOLICITOR) appeared for DEFENDANT for THE SECOND DEFENDANT WAS NOT REPRESENTED AND DID NOT ATTEND
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application under section 288 of the Town and Country Planning Act 1990 ("the Act") to quash a decision of an inspector appointed by the first defendant dismissing the claimant's appeal against the second defendant's failure to give notice within the prescribed period on the claimant's application for planning permission for development at 12 Hertford Place, London W1.[2]The development proposed was the demolition of an existing two-storey office building and the erection of a nine-floor student accommodation block comprising 110 bedrooms and an under-fives day centre with new landscape play area at lower ground floor level and roof terrace above the nursery.[3]In its written representations the second defendant indicated that it would have refused planning permission on, inter alia, conservation area and urban design grounds.[4]The Inspector held an informal hearing on 8 June 2004 and his decision letter is dated 28 June 2004. In that decision letter the Inspector said that the main issue in the appeal was the effect of the proposed development on the character or appearance of the Bloomsbury conservation area. He also had regard to the impact of the proposal on the setting of a listed building, number 41 Fitzroy Square, the Indian YMCA.[5]In paragraphs five to eight of the decision letter the Inspector identified the relevant planning policies. They included the Draft Conservation Area Statement for the Bloomsbury Conservation Area (West). In that Conservation Area Statement guideline BL34 required new development to respect the built form and historic context of the area. The Inspector said that this requirement reflected the provisions of the UDP.[6]Under the heading "existing character" the Inspector described the conservation area and Hertford Place in paragraphs nine to 11 of the decision letter. "9. The Bloomsbury Conservation Area is characterised by a planned pattern of streets and squares developed mainly during the 18th and early 19th centuries. The Conservation Area Statement recognises a series of sub-areas within this wider pattern that have distinctive and definable characteristics. The appeal site lies within Sub-Area 1, which includes Fitzroy Square and its surrounding streets. It is described in the Statement as 'a distinctive and consistent area of late 18th and early 19th century speculative development that consists of a grid of terraced streets with a central square. The area generally retains a homogeneous character and is an excellent example of Georgian town planning which combined dwellings with ancillary uses and services.' 10. The focal point of the locality is Fitzroy Square, around which are arranged blocks of buildings with mews for rear servicing. The Mews Areas are recognised in the Conservation Area Statement as an identifiable character zone within the Fitzroy Square sub-area. I saw that they vary in size and character but, as would be expected, are of a smaller and more intimate scale than the frontage buildings. Hertford Place is the original mews for the buildings that formed a block at the south-east corner of the Square, fronting Grafton Way, Whitfield Street, Maple Street and Fitzroy Street. It is not mentioned separately in the Conservation Area Statement and, in contrast to the other blocks surrounding Fitzroy Square, most of the buildings surrounding Hertford Place have been redeveloped since the 1950s. With the exception of the Indian YMCA at the corner of Fitzroy Square, the whole of this block is now occupied by University College London (UCL) student accommodation known as Ramsay Hall, mostly in the form of 6/7 storey flat-roofed buildings of indifferent appearance. 11. Hertford Place is approached under an archway from Whitfield Street. It contains the small 19th Century building for which consent for demolition has been granted, but otherwise no longer exhibits the features found in the other mews mentioned in the Statement, such as granite sett paving and small-scale brick garage buildings fronting a shared area. Although it is nominally a public highway, the entrance from Whitfield Street is gated (as is the smaller private entrance from Maple Street) and I understand that public vehicular access is restricted. I have no doubt that much of the original character of the mews has, therefore, been lost. Nonetheless, notwithstanding the extensive alteration that has taken place, Hertford Place remains part of the historic street pattern of the area."[7]The Inspector's description closely follows that which is contained in the Conservation Area Statement. The statement divided the conservation area into sub-areas and sub-area 1, Fitzroy Square, was further divided into four identifiable character zones, one of which was "The Mews Areas":
"The mews areas are quiet, narrow streets and courts to the rear of the main streets that originally serviced the frontage residences. They tend to be smaller in scale, generally 2 or 3 storeys in height with the buildings immediately fronting a shared area, frequently with granite setts. They are in a variety of small scale commercial, business uses as well as continuing to provide some rear garaging. Access to the mews is either under an archway or through a narrow gap in the frontage which emphasises the change in scale. Facades are generally brick with vertically-proportioned window openings and ground level garaging."
[8]There is then a list of mews and, as the Inspector said in the decision letter, that list does not include Hertford Place.[9]In paragraph 12 of the decision letter the Inspector described the proposal. "The proposed building, of rectangular plan, would be centrally situated in the 'courtyard' enclosed by the rear elevations of the existing Ramsay Hall and YMCA buildings."[10]The plans before the Inspector showed that the new building would be positioned almost immediately behind the archway entrance into the "courtyard" from Whitfield Street. The current entrance beneath the modern buildings in Whitfield Street is significantly wider than the original arched access into the mews. The northern part of the present access into the courtyard is on the approximate line of the original mews access. The new building would be built on the site of the existing access into the courtyard.[11]The Inspector dealt with the impact on views concluding in paragraph 15:
"I am satisfied that the proposal would have no significant impact on the Conservation Area or the Listed Building as far as views in the wider townscape are concerned."
[12]He then turned to the impact on Hertford Place and said this in paragraphs 16 to 19:
"16. The environment surrounding Hertford Place is now that of a courtyard enclosed by tall, predominantly modern flat roofed blocks. Apart from a limited area of grass and some small trees, it is characterised by hard surfacing and terraces above the basements of the surrounding blocks and lacks any unified landscaping treatment. Nevertheless, I consider that the dimensions of the open space are appropriate to the height of the surrounding buildings, preventing any undue sense of enclosure and creating a reasonably pleasant environment for their occupiers. 17. The 2-storey building that still, at present, remains is positioned to the south-east side of the roadway and is visible through the archway from Whitfield Street. Nevertheless, the unobstructed view through the archway is sufficient to give passers-by a glimpse of the openness within the courtyard, providing some small relief to the highly built-up nature of the streetscape away from the formal squares. 18. The proposed building would divide the courtyard into two separate areas linked only by the vehicular access beneath the building at its south-western end. Because of the height and length of the building, those areas would, in my judgment, have an oppressive and enclosed character, dominated by the height of the new and existing surrounding blocks. That would particularly be the case to the south-east of the proposed building, where the open area would be smaller. Little space is proposed for soft landscaping in either of the two open spaces. Notwithstanding any hard landscaping improvements that would take place as part of the appeal scheme, I consider that the value of the existing courtyard as an appropriate setting for the surrounding buildings (including the rear of the Indian YMCA) would be compromised by the height and bulk of the proposed building and the extent of its footprint. 19. Those impacts would be experienced mainly from the private realm within the courtyard and their impact on the wider Conservation Area would be limited. The rear elevation of the YMCA is, in my opinion, less sensitive to alteration than the main street elevations and is already the subject of a modern extension. However, the closure of the Whitfield Street access to vehicular traffic and the position of the proposed building immediately behind the archway, on the line of the existing roadway, would restrict views into the courtyard area from Whitfield Street to those at an acute angle across a small gap at either side of the proposed building. That would, in my opinion, result in a loss of openness that would be harmful to the street scene. It would also mean that Hertford Place would no longer be evident, even in a truncated form, as an indication of the original mews serving this street block."
[13]In his conclusions the Inspector said this in the first sentence of paragraph 20:
"I understand the need for UCL to provide additional accommodation for students in halls of residence and the benefits in providing a purpose-built children's nursery."
[14]In paragraph 22 he said this:
"22. However, notwithstanding the acceptability of the principle of providing additional student accommodation at the site, Planning Policy Guidance (PPG) 1 General Policy and Principles advises that the relationship of proposed development to its surroundings is a material consideration in determining planning applications and appeals and that the appearance and treatment of the spaces between and around buildings is often of comparable importance to the design of the buildings themselves. It advises that poor designs should be rejected, and that such designs may include those that are out of scale or incompatible with their surroundings. Those design matters are addressed in UDP policies and are of particular importance in considering proposals for new development in Conservation Areas."
[15]The Inspector continued in paragraphs 23 and 24:
"23. I have already concluded that the proposed building would harm the quality of the courtyard environment within the street block, creating two smaller open areas that would be overwhelmed by the height and bulk of the buildings surrounding them. That harm would impact on the character and appearance of the Conservation Area. It would be restricted to the private realm and must be balanced against the advantage of providing a significant amount of additional accommodation for students, together with a children's nursery, to meet a recognised need, on an existing University site where communal facilities can be shared. However, because of its intended siting and its proximity to the archway, the proposed building would also have a harmful impact on the public street scene in Whitfield Street. It would reduce the openness introduced by the access to Hertford Place and would obscure evidence of the historic street pattern of the Conservation Area. Overall, the proposal would, in my judgment, conflict with the requirements of UDP policy and with the advice in PPG 15 Planning and the Historic Environment that new buildings should be designed with respect for their context. "24. The impact of the proposal on the setting of the Listed Building would, in my view, be minimal and restricted to the extent to which its rear elevation (including the new extension) could be appreciated from within the courtyard. There would be no other significant impacts on the appearance of the site or the street block in the wider townscape. Nonetheless, I consider that, because of the harm that it would cause to the courtyard environment, the street scene in Whitfield Street, and to evidence of the historic street pattern, the proposed development would fail to preserve or enhance the character or appearance of the Bloomsbury Conservation Area. On balance, I find that it is, accordingly, unacceptable."
[16]On behalf of the claimant, Mr Humphries QC challenged the decision letter on five grounds:
"Ground A. In reaching his conclusion that the Development would fail to preserve or enhance the character or appearance of the Conservation Area, the Inspector failed to take into account material considerations and/or took into account immaterial considerations and/or acted perversely." "
Ground B. The Inspector failed properly to discharge his duty under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990." "Ground C. If it was proper for the Inspector to find that the Development failed to preserve or enhance the character or appearance of the Conservation Area, he failed properly to assess the degree of harm which the Development caused to the character or appearance of the Conservation Area." "Ground D. The Inspector failed to have any, or alternatively proper, regard to: i) the need of the Appellant for the Development, and/or ii) the benefits which would result from the Development." "Ground E. The Inspector failed to set out adequate reasons for his decision, as a result of which the Claimant has suffered substantial prejudice.[17]It is sensible to consider grounds A and B together since, as Mr Humphries acknowledged in his skeleton argument, they are different formulations of the same underlying complaint. In summary, that complaint is this: in paragraph 24 of the decision letter the Inspector gave three reasons for his conclusion that the proposed development would fail to preserve or enhance the character or appearance of the conservation area,(i) harm to the courtyard environment,(ii) harm to the streetscene in Whitfield Street,(iii) harm to evidence of the historic street pattern.[18]The claimant acknowledges that all three factors were material planning considerations which could, potentially, have formed the basis for a refusal of planning permission. But, the claimant submits that the Inspector was wrong to consider the first two of the three factors in the context of the duty under section 72(1) of the Listed Buildings and Conservation Areas Act 1990. "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."[19]Because the Inspector considered that the three factors were relevant for the purposes of section 72(1) he would have given them added weight - paid "special attention" to them, thus improperly tipping the balancing exercise against the claimant.[20]The claimant does not submit that the third factor mentioned by the Inspector was irrelevant for the purposes of section 72(1), but submits that the Inspector acted unfairly in relying upon it because it was not included in the Inspector's agenda for the informal hearing, nor was it raised during the course of the hearing.[21]Before dealing with grounds A and B in detail it is convenient to dispose of grounds C, D and E in so far as they are not parasitic upon grounds A and B. It is plain from paragraphs 20 and 23 of the decision letter that the Inspector did carry out the necessary balancing exercise, weighing the advantage of providing student accommodation (and other facilities) against the disadvantages which he had previously identified in paragraph 19 of the decision letter. It is true that he did not deal with the advantages in great detail, there was no need for him to do so. The second defendant was not suggesting that there was no need for additional student accommodation for UCL. The matter was dealt with relatively briefly in the claimant's evidence because it was common ground at the hearing that, all other things being equal, there would be an advantage in providing additional student accommodation.[22]The Inspector weighed the advantages against the disadvantages. He was not required, as was suggested in Mr Humphries' skeleton argument, to go further and "quantify the weight to be attached to [the] failure to preserve or enhance [the character or appearance of the Conservation Area]."[23]Subject to grounds A and B, the Inspector clearly considered that the harm to the conservation area outweighed the advantages of granting planning permission. There is no lack of clarity in the Inspector's reasoning. In the claimant's grounds it was submitted that the Inspector in paragraph 23 of the decision letter had balanced the advantages only against the first of his three factors, harm to the courtyard environment. He had then failed to balance the advantages or "need" against the other two factors. That is an artificial reading of the decision letter which has to be read in a commonsense way. Applying a modicum of commonsense paragraph 23 is perfectly clear. If the harm to the "private realm", ie to that part of the conservation area within Hertford Place was balanced against the advantages of granting planning permission, then the balance might well have tipped in favour of a grant of planning permission. "However" once the other two factors were placed into the balance it tipped against the grant of planning permission. For these reasons I reject grounds C, D and E.[24]Turning to grounds A and B it is common ground that the third factor "evidence of the historic street pattern" was at least potentially relevant for the purposes of section 72(1). Mr Humphries submitted that it was unfair for the Inspector to take it into consideration since it was not mentioned at the hearing. He relied upon certain dicta of Ouseley J in Castleford Homes V Secretary of State for Environment Transport and the Regions and the Royal Borough of Windsor and Maidenhead [2001] PLCR 470.[25]In paragraph 65 Ouseley J said this:
"Whilst an Inspector can reasonably expect parties at an inquiry to explore and clarify the position of their opponents, if an Inspector is to take a line which has not been explored, perhaps because a party has been under a misapprehension as to the true position of its opponents, as in my view happened here, fairness means that an Inspector give the party an opportunity to deal with it."
[26]It is important to read on. Paragraphs 65 of Ouseley J's judgment continues:
"He need not do so where the party ought reasonably to have been aware on the material and arguments presented at the inquiry that a particular point could not be ignored or that a particular aspect needed to be addressed."
[27]It is to be borne in mind that in the Castleford case the Inspector had relied upon a matter, the absence of provision on site of a small children's play area, contrary to the agreed position between the appellant and the local planning authority. It is important, therefore, to remind oneself of what the Inspector said about the historic street pattern in this decision letter. There was no dispute at the hearing as to what the historic street pattern was. The claimant had submitted a plan which showed that the original mews carriageway was L-shaped with an entrance under an arch from Whitfield Street. As a result of demolitions and new building (referred to in the decision letter) the L-shaped mews had become a "courtyard", but the entrance to that courtyard, although considerably wider, was still on the line of the original carriageway. That much was plain from the plans before the Inspector.[28]In referring to the "historic street pattern" in paragraph 24 the Inspector was well aware of the changes that had taken place. He had described them at an earlier stage in the decision letter (see, in particular, paragraphs 10 and 11). Moreover, those changes would have been obvious to those who attended the hearing and who took the trouble to look at the plans. The fact that there had been these changes was no doubt the reason why the Inspector said in the final sentence of paragraph 19 of the decision letter that erecting the proposed building just inside the arch on the line of the roadway "would also mean that Hertford Place would no longer be evident, even in a truncated form, as an indication of the original mews serving this street block". (my emphasis)[29]Far from there being an agreed position between the parties as to the implications of siting the proposed building on the line of the access way, the second defendant's written statement had said this under the subheading "Draft Bloomsbury Conservation Area (West) Statement:
"More specifically, the proposal, in its current form, alters the existing pattern of development, subsequently contributing to the erosion of the character of the area, in terms of the prevailing urban grain. On the basis of the aforementioned observations, it is considered that the proposal in its current form is unacceptable. A replacement scheme should better respect the site's context, by significantly reducing the collective effect that the proposal's height, bulk, massing and building footprint imposes [sic] on the visual amenity and sense of openness currently afforded by the existing courtyard buildings."
[30]The Inspector's agenda listed a number of items for discussion under the subheading "Impact on Hertford Place". He listed, inter alia:
"Hertford Place as part of the wider Conservation Area Importance of openness of courtyard Impact of landscaping Council to explain concern about 'urban grain'."
[31]It is also fair to note that one of the policies relied upon by the second defendant, and mentioned in paragraph 5 of the decision letter, EN14, refers to the need for new buildings to have regard to, amongst other things, impact on "existing views and skylines and the established pattern of public highways". That policy was also mentioned in the claimant's written representations.[32]The position in the present case is, therefore, very different from that which obtained in the Castleford case. Against the background that I have just described the point made by the Inspector at the end of paragraph 19 of the decision letter, and then repeated in shorthand form in paragraphs 23 and 24, would have been only two obvious to all of those who were attending the hearing. The significance of the fact that the proposed buildings would in effect obliterate what was left of the original mews access was a matter for the Inspector to assess. Mr Humphries submitted that had the claimant been alive to the fact that the Inspector might take this point, it would have wished to make representations as to whether the "indication of the original mews serving this street block" was of any significance in terms of special architectural or historic character.[33]However, the claimant's submissions on that topic were perfectly clear. The claimant was submitting, in effect, that Hertford Place had no special architectural or historic significance because it had ceased to be a mews and had become a courtyard. Thus, it was contended in the evidence before the Inspector, and submitted by Mr Humphries before me, that there could be no objection on section 72(1) grounds to development upon the open space within the courtyard.[34]In concluding that Hertford Place would no longer be evident even in a truncated form as an indication of the original mews serving this street block, the Inspector could have been in no doubt whatsoever that the claimant did not regard this aspect of the proposals as being of any consequence in conservation area terms. As a matter of planning judgment he disagreed with that assessment.[35]In deciding whether or not he was entitled to disagree one has to consider the force of Mr Humphries' criticisms of the first two factors relied upon by the Inspector. It was submitted that the first factor, harm to the courtyard environment, went simply to residential amenity or urban design and was not relevant for the purposes of section 72(1).[36]Reliance was placed on the Inspector's use of the term "the private realm" in paragraph 19 of the decision letter and it was submitted that the private realm was to be distinguished from the character and appearance of the conservation area. Again this is a misreading of the decision letter. The Inspector uses "the private realm" in the decision letter as shorthand for that part of the conservation area which was within the courtyard. Hence his recognition in paragraph 19 that: "Those impacts would be experienced mainly from the private realm within the courtyard and their impact on the wider Conservation Area would be limited." (my emphasis)[37]If there was any doubt as to whether the Inspector was regarding harm within the courtyard as harm to the conservation area that doubt would be resolved by paragraph 23: "I have already concluded that the proposed building would harm the quality of the courtyard environment within the street block, creating two smaller open areas that would be overwhelmed by the height and bulk of the buildings surrounding them. That harm would impact on the character and appearance of the Conservation Area." (my emphasis)[38]Mr Humphries submitted that the Inspector was not entitled to regard harm done within the courtyard as harm to the character or appearance of the conservation area because the courtyard, a creation of relatively recent development, was not one of the special architectural or historic qualities which underlay the designation of this part of the second defendant's area as a conservation area.[39]He referred to section 69(1) of the Act:
"Every local planning authority - (a) shall from time to time 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 (b) shall designate those areas as conservation areas."
[40]Mr Humphries also referred to the speech of Lord Bridge in South Lakeland District Council v Secretary of State for the Environment [1992] 2 AC 141. At page 150F to H Lord Bridge said this:
"We may, I think, take judicial notice of the extensive areas, both urban and rural, which have been designated as conservation areas. It is entirely right that in any such area a much stricter control over development than elsewhere should be exercised with the object of preserving or, where possible, enhancing the qualities in the character or appearance of the area which underlie its designation as a conservation area under section 277. But where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise unobjectionable on planning grounds, one may ask rhetorically what possible planning reason there can be for refusing to allow it."
(emphasis added)[41]Mr Humphries placed particular emphasis upon the passage underlined. He submitted that upon the Inspector's analysis of the character of this particular conservation area in paragraphs 9 and 10 of the decision letter mews were one of the characteristics underlying the designation, but the courtyard had, save for the 19th Century building for which consent for demolition had been granted, lost all of those characteristics and did not, therefore, have any of the qualities which underlay the designation of the area as a conservation area.[42]He acknowledged that it followed on the claimant's approach to section 72(1) that a proposal to erect a hideously ugly building within the courtyard, but not visible from outside it, would not engage section 72(1). Although the courtyard is part of the conservation area, and although in ordinary language the erection of a hideously ugly building within it would not preserve or enhance the character or appearance of the conservation area, that, on the claimant's approach, would be of no consequence for the purposes of section 72(1), although of course there might be objections under other policies dealing with urban design matters.[43]In my judgment that submission places an unwarranted gloss upon the plain terms of section 72(1). The erection of a hideously ugly building within the courtyard would not only be objectionable upon urban design grounds, it would also fall foul of the plain words of section 72(1) because it would neither preserve nor enhance the character or appearance of the conservation area, whatever the special architectural or historic interest of the courtyard itself. That is not to say that the qualities of the courtyard would not be relevant for the purposes of a section 72(1) assessment, but the section 72(1) duty applies throughout the whole of a conservation area, not merely to those parts of the conservation area which display the special characteristics which led to its designation. No doubt, as a matter of common sense, section 72(1) will be applied with greater rigour in those parts of conservation areas which do display such special characteristics. But that is simply a legalistic way of saying that any planning inspector worth his salt will consider the extent to which a particular site makes a contribution to the special character of a conservation area.[44]The claimant's submission places undue emphasis upon the words of Lord Bridge in the South Lakeland case. Judgments are not to be treated as though they were enactments. The words used must always be considered in the context of the issue with which the court was concerned. In the South Lakeland case the issue before the House of Lords was whether a proposal which did not adversely effect the character or appearance of the conservation area could be said to preserve that character or appearance. The House of Lords answered that question in the affirmative. It is also instructive to note this observation of Lord Bridge on page 148H:
"Read fairly and as a whole the sense of the inspector's reasoning is perfectly clear. Excessively legalistic textual criticism of planning decision letters is something the courts should strongly discourage."
[45]This 26-paragraph decision letter is five and a half pages long. The grounds in the claim form extend to 48 paragraphs over nine and a half pages and they are in turn incorporated bt cross-reference into a 54-paragraph, 18-page skeleton argument. This challenge is a good example of that which Lord Bridge said should be strongly discouraged.[46]The arguments are, in any event, academic because I accept Mr Forsdick's submission on behalf of the Secretary of State that when the decision letter is read in a commonsense way it is plain that the Inspector considered that notwithstanding the extensive alterations which had taken place which had turned Hertford Place from a traditional mews into a "courtyard", the existence of the open, ie unbuilt-upon space, behind the buildings accessed through an archway off one of the main thoroughfares did contribute to the special character of this particular conservation area. Clearly the contribution was not as great as it would have been if Hertford Place had retained its traditional mews character, but the Inspector was entitled to conclude that it nonetheless made a contribution. The Conservation Area Statement describes the mews areas as " ... quiet, narrow streets and courts to the rear of the main streets that originally serviced the frontage residences. They tend to be smaller in scale, generally 2 or 3 storeys in height with the buildings immediately fronting a shared area, frequently with granite setts... Access to the mews is either under an archway or through a narrow gap in the frontage which emphasises the change in scale."[47]True the cobbles have gone, the two and three-storey buildings have either gone or there is consent to demolish. But still there is an access underneath an archway into an open (unbuilt upon) area. The fact that what was a mews has now become a courtyard does not mean that the effects of development within the courtyard must be treated as being irrelevant for the purposes of section 72(1). That submission stems from a strained and artificial reading of both 72(1) and the decision letter itself.[48]So far as factor two is concerned, the harm to the street scene in Whitfield Street, it is difficult to see why harm to the street scene within a conservation area is irrelevant for the purposes of section 72(1). It is said in the grounds that "There is no suggestion in the Inspector's decision letter that views into open areas within the street blocks are a characteristic of the Conservation Area."[49]Mr Humphries added that views into open areas within the street blocks are not mentioned in the Conservation Area Statement. It is unnecessary for the statement to mention the obvious. The Conservation Area Statement refers to the accesses to the mews areas being either under an archway or through a narrow gap in the frontage. One might ask rhetorically how someone walking about the conservation area and trying to enjoy its special character and appearance would be able to appreciate the mews areas if it was not by obtaining glimpses underneath archways or through narrow gaps in the frontage and then exploring further.[50]The Inspector did not suggest that the courtyard was particularly attractive, indeed he noted that, with the exception of the Indian YMCA, it was surrounded by six to seven storey flat-roofed buildings which were of indifferent appearance. Nevertheless, he considered that the view through the archway was " ... sufficient to give passers-by a glimpse of the openness within the courtyard, providing some small relief to the highly built-up nature of the streetscape away from the formal squares."[51]It is one of the characteristics of mews behind frontage buildings that looking through one will have a glimpse of openness. It is perfectly true that the openness in this case was not that of a mews carriageway bounded by two to three-storey buildings, but that of a courtyard, but the Inspector was still entitled, as a matter of judgment, to conclude that the glimpse of openness which provided some small relief to the highly built-up nature of the streetscape away from the formal squares made a positive contribution to the conservation area.[52]For these reasons I can see no error of law in the Inspector's approach to the matters that he had to consider. All three of the factors mentioned in paragraph 24 of the decision letter were relevant to his consideration of the issue under section 72(1) of the Act. It follows that grounds A and B of the challenge must also be rejected and this application must be dismissed.[53]MR FORSDICK: My Lord, I am grateful. There are a couple of times in my Lord's judgment were reference was made to section 71(2) rather then section 72(1).[54]MR JUSTICE SULLIVAN: Sorry, it is late. Section 72(1) throughout. Thank you very much.[55]MR FORSDICK: My Lord, I ask for an order that the Secretary of State has his costs of today. I understand that they are agreed in the sum of £4,032, but I have noted that my solicitor has failed to charge for his attendance today and it should therefore be £4,632. I hope that that has been discussed behind us now.[56]MR JUSTICE SULLIVAN: Can we just check whether there is a dispute about that? Generally speaking the Treasury Solicitor is not that generous, not intentionally so anyway.[57]MR HUMPHRIES QC: My Lord.

MR JUSTICE SULLIVAN: Is there any argument about either the principle or the detail, Mr Humphries?

[59]MR HUMPHRIES QC: There is argument on neither of those things. Again, my Lord, when checking the transcript, and again I may have misheard this, I thought you referred to my grounds as being 48 pages rather than 48 paragraphs, but I may have misheard it.[60]MR JUSTICE SULLIVAN: I meant to say paragraphs, if I said pages I apologise and the shorthand writer will correct it.[61]MR HUMPHRIES QC: I may have misheard. But there is no argument about the principle or the detail of the costs.

MR JUSTICE SULLIVAN: Can you just give me the figure again please, the proper figure?

[63]MR HUMPHRIES QC: £4,632.[64]MR JUSTICE SULLIVAN: £4,632. Right, then the application is dismissed. The claimant is to pay the first defendant's costs. Those costs are to be summarily assessed in the sum of £4,632. Anything else? No, good. Thank you very much.