Maxwell, R (on the application of) v Wiltshire Council [2011] EWHC 1840 (Admin)

[2011] EWHC 1840 (Admin)Case No CO/1734/2010
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/07/2011
Before
THE HONOURABLE MR JUSTICE SALES
Between
The QueenClaimant(on the application of Michael Maxwell)ClaimantWiltshire CouncilDefendantMr & Mrs Martin WalkerInterested Parties
Mr Richard Harwood (instructed by Richard Buxton Solicitors) for ClaimantMr Timothy Jones (instructed by Wiltshire Council Legal Services) for DefendantHearing Hearing date: 22/6/11
Judgment

Introduction

[1]This is an application for judicial review of a grant of conservation area consent dated 14 January 2010 (“the Consent”) by the Defendant Council (“the Council”) for the demolition of a cottage called “Copsewood” at Low Road, Little Cheverell, Devizes.[2]Little Cheverell is a picturesque, small village, which is designated as a conservation area. “Copsewood” is located down a lane on the fringes of the village. It is set in an attractive garden which is to be retained under the proposed redevelopment of the site.[3]“Copsewood” is owned by the interested parties (“Mr and Mrs Walker”). They wish to demolish the cottage, which is in a state of poor repair and has been for some time, and replace it with a building of broadly equivalent dimensions and appearance but of modern construction. According to estimates they have received, that will be a considerably cheaper way of achieving a cottage which is habitable and in a good state of repair than engaging in the thorough-going renovation work which would otherwise be required if the existing fabric of the building were to be retained. Mr and Mrs Walker have planning permission for the new cottage but also require conservation area consent to proceed with the work, by demolishing the existing cottage.[4]The Claimant is another resident in the village. He objects to the demolition of the existing cottage on the ground that it is an old building, the loss of which and its replacement by what he characterises as a modern pastiche will adversely affect the character of the village.[5]Mr and Mrs Walker’s proposal to replace the existing cottage with an equivalent building of modern construction has divided opinion in the village. As appeared from a consultation conducted by the Council, many people in the locality support the proposal while a significant number are opposed to it.[6]There was some debate at the hearing about how old “Copsewood” is. The Claimant maintains that it could date back to the late 18th century, but a surveyor’s report commissioned by Mr and Mrs Walker dates it to about the 1860s. It is not a listed building.[7]Mr Harwood, who appeared for the Claimant, submits that the Consent should be quashed on three grounds: i) the Council failed to have proper regard to the planning guidance issued by the Secretary of State in Planning Policy Guidance Note 15 (“PPG 15”); ii) the Council failed properly to consider and reach a conclusion whether the proposal complied with PPG 15 and, if it did not comply, to reach a conclusion why PPG 15 should not be followed; iii) the Council acted irrationally and contrary to the statutory purpose of the conservation area regime by concluding that a new building would make a greater contribution to the character and appearance of the conservation area than the existing building, which the Council acknowledged made a positive contribution to the area.

The statutory and policy context

[8]The Council has designated the area of Little Cheverell, including “Copsewood”, as a conservation area pursuant to section 69(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Act”), which provides:
“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.”
[9]The focus of designation of a conservation area is the characteristics of the area. This may be contrasted with the listing of “buildings of special architectural or historic interest” under section 1 of the Act, where the focus is on the characteristics of a particular building which merits preservation (see also section 16(2) of the Act, which provides that in considering whether to grant listed building consent for works in relation to such a building, the relevant authority “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”).[10]Section 74(1) of the Act provides that a building in a conservation area shall not be demolished without conservation area consent from the appropriate authority (here, the Council). Section 72(1) of the Act provides, in material part, as follows:
“72. General duty as respects conservation areas in exercise of planning functions (1) In the exercise, with respect to any buildings or other land in a conservation area, of [the relevant functions], special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.”
[11]At the relevant time, national planning policy in relation to listed buildings and conservation areas was contained in PPG 15, which is entitled “Planning and the historic environment”. Paragraph 1.1 of PPG 15 provides:
“Planning and conservation 1.1 It is fundamental to the Government’s policies for environmental stewardship that there should be effective protection for all aspects of the historic environment. The physical survivals of our past are to be valued and protected for their own sake, as a central part of our cultural heritage and our sense of national identity. They are an irreplaceable record which contributes, through formal education and in many other ways, to our understanding of both the present and the past. Their presence adds to the quality of our lives, by enhancing the familiar and cherished local scene and sustaining the sense of local distinctiveness which is so important an aspect of the character and appearance of our towns, villages and countryside. The historic environment is also of immense importance for leisure and recreation.”
[12]Section 3 of PPG 15 deals with listed building control. So far as material, it provides:
“Listed building control … 3.3 The importance which the Government attaches to the protection of the historic environment was explained in paragraphs 1.1-1.7 above. Once lost, listed buildings cannot be replaced; and they can be robbed of their special interest as surely by unsuitable alteration as by outright demolition. They represent a finite resource and an irreplaceable asset. There should be a general presumption in favour of the preservation of listed buildings, except where a convincing case can be made out, against the criteria set out in this section, for alteration or demolition. While the listing of a building should not be seen as a bar to all future change, the starting point for the exercise of listed building control is the statutory requirement on local planning authorities to “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 16). This reflects the great importance to society of protecting listed buildings from unnecessary demolition and from unsuitable and insensitive alteration and should be the prime consideration for authorities in determining an application for consent. … General criteria 3.5 The issues that are generally relevant to the consideration of all listed building consent applications are: (i) the importance of the building, its intrinsic architectural and historic interest and rarity, in both national and local terms …; (ii) the particular physical features of the building (which may include its design, plan, materials or location) which justify its inclusion in the list: list descriptions may draw attention to features of particular interest or value, but they are not exhaustive and other features of importance (e.g. interiors) may come to light after the building’s inclusion in the list; (iii) the building’s setting and its contribution to the local scene, which may be very important, e.g. where it forms an element in a group, park, garden or other townscape or landscape, or where it shares particular architectural forms or details with other buildings nearby; (iv) the extent to which the proposed works would bring substantial benefits for the community, in particular by contributing to the economic regeneration of the area or the enhancement of its environment (including other listed buildings). … 3.11 If a building is so sensitive that it cannot sustain any alterations to keep it in viable economic use, its future may nevertheless be secured by charitable or community ownership, preserved for its own sake for local people and for the visiting public, where possible with non-destructive opportunity uses such as meeting rooms. Many listed buildings subsist successfully in this way – from the great houses of the National Trust to buildings such as guildhalls, churches and windmills cared for by local authorities or trusts – and this possibility may need to be considered. The Secretaries of State attach particular importance to the activities of the voluntary sector in heritage matters: it is well placed to tap local support, resources and loyalty, and buildings preserved in its care can make a contribution to community life, to local education, and to the local economy. … Demolitions 3.16 While it is an objective of Government policy to secure the preservation of historic buildings, there will very occasionally be cases where demolition is unavoidable. Listed building controls ensure that proposals for demolition are fully scrutinised before any decision is reached. These controls have been successful in recent years in keeping the number of total demolitions very low. The destruction of historic buildings is in fact very seldom necessary for reasons of good planning: more often it is the result of neglect, or of failure to make imaginative efforts to find new uses for them or to incorporate them into new development. 3.17 There are many outstanding buildings for which it is in practice almost inconceivable that consent for demolition would ever be granted. The demolition of any Grade I or Grade II building should be wholly exceptional and should require the strongest justification. Indeed, the Secretaries of State would not expect consent to be given for the total or substantial demolition of any listed building without clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses, and these efforts have failed; that preservation in some form of charitable or community ownership is not possible or suitable (see paragraph 3.11); or that redevelopment would produce substantial benefits for the community which would decisively outweigh the loss resulting from demolition. The Secretaries of State would not expect consent to demolition to be given simply because redevelopment is economically more attractive to the developer than repair and re-use of a historic building, or because the developer acquired the building at a price that reflected the potential for redevelopment rather than the condition and constraints of the existing historic building. … 3.19 Where proposed works would result in the total or substantial demolition of the listed building … the Secretaries of State would expect the authority, in addition to the general considerations set out in paragraph 3.5 above, to address the following considerations: (i) the condition of the building, the cost of repairing and maintaining it in relation to its importance and to the value derived from its continued use. Any such assessment should be based on consistent and long-term assumptions. Less favourable levels of rents and yields cannot automatically be assumed for historic buildings. Also, they may offer proven technical performance, physical attractiveness and functional spaces that, in an age of rapid change, may outlast the short-lived and inflexible technical specifications that have sometimes shaped new developments. Any assessment should also take account of the possibility of tax allowances and exemptions and of grants from public or charitable sources. In the rare cases where it is clear that a building has been deliberately neglected in the hope of obtaining consent for demolition, less weight should be given to the costs of repair; (ii) the adequacy of efforts made to retain the building in use. The Secretaries of State would not expect listed building consent to be granted for demolition unless the authority (or where appropriate the Secretary of State himself) is satisfied that real efforts have been made without success to continue the present use or to find compatible alternative uses for the building. This should include the offer of the unrestricted freehold of the building on the open market at a realistic price reflecting the building’s condition (the offer of a lease only, or the imposition of restrictive covenants, would normally reduce the chances of finding a new use for the building); (iii) the merits of alternative proposals for the site. Whilst these are a material consideration, the Secretaries of State take the view that subjective claims for the architectural merits of proposed replacement buildings should not in themselves be held to justify the demolition of any listed building. There may very exceptionally be cases where the proposed works would bring substantial benefits for the community which have to be weighed against the arguments in favour of preservation. Even here, it will often be feasible to incorporate listed buildings within new development, and this option should be carefully considered: the challenge presented by retaining listed buildings can be a stimulus to imaginative new design to accommodate them.”
General criteria (i) the importance of the building, its intrinsic architectural and historic interest and rarity, in both national and local terms …; (ii) the particular physical features of the building (which may include its design, plan, materials or location) which justify its inclusion in the list: list descriptions may draw attention to features of particular interest or value, but they are not exhaustive and other features of importance (e.g. interiors) may come to light after the building’s inclusion in the list; (iii) the building’s setting and its contribution to the local scene, which may be very important, e.g. where it forms an element in a group, park, garden or other townscape or landscape, or where it shares particular architectural forms or details with other buildings nearby; (iv) the extent to which the proposed works would bring substantial benefits for the community, in particular by contributing to the economic regeneration of the area or the enhancement of its environment (including other listed buildings). … 3.11 If a building is so sensitive that it cannot sustain any alterations to keep it in viable economic use, its future may nevertheless be secured by charitable or community ownership, preserved for its own sake for local people and for the visiting public, where possible with non-destructive opportunity uses such as meeting rooms. Many listed buildings subsist successfully in this way – from the great houses of the National Trust to buildings such as guildhalls, churches and windmills cared for by local authorities or trusts – and this possibility may need to be considered. The Secretaries of State attach particular importance to the activities of the voluntary sector in heritage matters: it is well placed to tap local support, resources and loyalty, and buildings preserved in its care can make a contribution to community life, to local education, and to the local economy. … Demolitions 3.16 While it is an objective of Government policy to secure the preservation of historic buildings, there will very occasionally be cases where demolition is unavoidable. Listed building controls ensure that proposals for demolition are fully scrutinised before any decision is reached. These controls have been successful in recent years in keeping the number of total demolitions very low. The destruction of historic buildings is in fact very seldom necessary for reasons of good planning: more often it is the result of neglect, or of failure to make imaginative efforts to find new uses for them or to incorporate them into new development. 3.17 There are many outstanding buildings for which it is in practice almost inconceivable that consent for demolition would ever be granted. The demolition of any Grade I or Grade II building should be wholly exceptional and should require the strongest justification. Indeed, the Secretaries of State would not expect consent to be given for the total or substantial demolition of any listed building without clear and convincing evidence that all reasonable efforts have been made to sustain existing uses or find viable new uses, and these efforts have failed; that preservation in some form of charitable or community ownership is not possible or suitable (see paragraph 3.11); or that redevelopment would produce substantial benefits for the community which would decisively outweigh the loss resulting from demolition. The Secretaries of State would not expect consent to demolition to be given simply because redevelopment is economically more attractive to the developer than repair and re-use of a historic building, or because the developer acquired the building at a price that reflected the potential for redevelopment rather than the condition and constraints of the existing historic building. … 3.19 Where proposed works would result in the total or substantial demolition of the listed building … the Secretaries of State would expect the authority, in addition to the general considerations set out in paragraph 3.5 above, to address the following considerations: (i) the condition of the building, the cost of repairing and maintaining it in relation to its importance and to the value derived from its continued use. Any such assessment should be based on consistent and long-term assumptions. Less favourable levels of rents and yields cannot automatically be assumed for historic buildings. Also, they may offer proven technical performance, physical attractiveness and functional spaces that, in an age of rapid change, may outlast the short-lived and inflexible technical specifications that have sometimes shaped new developments. Any assessment should also take account of the possibility of tax allowances and exemptions and of grants from public or charitable sources. In the rare cases where it is clear that a building has been deliberately neglected in the hope of obtaining consent for demolition, less weight should be given to the costs of repair; (ii) the adequacy of efforts made to retain the building in use. The Secretaries of State would not expect listed building consent to be granted for demolition unless the authority (or where appropriate the Secretary of State himself) is satisfied that real efforts have been made without success to continue the present use or to find compatible alternative uses for the building. This should include the offer of the unrestricted freehold of the building on the open market at a realistic price reflecting the building’s condition (the offer of a lease only, or the imposition of restrictive covenants, would normally reduce the chances of finding a new use for the building); (iii) the merits of alternative proposals for the site. Whilst these are a material consideration, the Secretaries of State take the view that subjective claims for the architectural merits of proposed replacement buildings should not in themselves be held to justify the demolition of any listed building. There may very exceptionally be cases where the proposed works would bring substantial benefits for the community which have to be weighed against the arguments in favour of preservation. Even here, it will often be feasible to incorporate listed buildings within new development, and this option should be carefully considered: the challenge presented by retaining listed buildings can be a stimulus to imaginative new design to accommodate them.”

General criteria

[13]Section 4 of PPG 15 deals with conservation areas. So far as material, it provides:
“Assessment and designation of conservation areas 4.2 It is the quality and interest of areas, rather than that of individual buildings, which should be the prime consideration in identifying conservation areas. There has been increasing recognition in recent years that our experience of a historic area depends on much more than the quality of individual buildings – on the historic layout of property boundaries and thoroughfares; on a particular “mix” of uses; on characteristic materials; on appropriate scaling and detailing of contemporary buildings; on the quality of advertisements, shop fronts, street furniture and hard and soft surfaces; on vistas along streets and between buildings; and on the extent to which traffic intrudes and limits pedestrian use of spaces between buildings. Conservation area designation should be seen as the means of recognising the importance of all these factors and of ensuring that conservation policy addresses the quality of townscape in its broadest sense as well as the protection of individual buildings. … Conservation area control over demolition 4.25 Conservation area designation introduces control over the demolition of most buildings within conservation areas (section 74 of the Act)… Applications for consent to demolish must be made to the local planning authority or, on appeal or call-in, to the Secretary of State … 4.26 In exercising conservation area controls, local planning authorities are required to pay special attention to the desirability of preserving or enhancing the character or appearance of the area in question; and, as with listed building controls, this should be the prime consideration in determining a consent application. In the case of conservation area controls, however, account should clearly be taken of the part played in the architectural or historic interest of the area by the building for which demolition is proposed, and in particular of the wider effects of demolition on the building’s surroundings and on the conservation area as a whole. 4.27 The general presumption should be in favour of retaining buildings which make a positive contribution to the character or appearance of a conservation area. The Secretary of State expects that proposals to demolish such buildings should be assessed against the same broad criteria as proposals to demolish listed buildings (paragraphs 3.16-3.19 above). In less clear-cut cases – for instance, where a building makes little or no such contribution – the local planning authority will need to have full information about what is proposed for the site after demolition. Consent for demolition should not be given unless there are acceptable and detailed plans for any redevelopment. It has been held that the decision-maker is entitled to consider the merits of any proposed development in determining whether consent should be given for the demolition of an unlisted building in a conservation area. …”

Conservation area control over demolition

[14]In these proceedings the Claimant relies in particular upon the cross reference in paragraph 4.27 of PPG 15 to the criteria relating to listed buildings in paragraphs 3.16 to 3.19 and to the presumption in paragraph 4.27 for retention of buildings which make a positive contribution to the character or appearance of a conservation area. The committee of the Council which decided to grant the Consent considered that the existing cottage did make a positive contribution to the character and appearance of the conservation area.[15]The Council, on the other hand, emphasises what was said in paragraph 4.26 about “the prime consideration” for determining a consent application (which reflected the statutory duty in section 72(1) of the Act). As explained below, the committee of the Council considered that the replacement of the existing cottage by a building of equivalent dimensions and design and appearance would enhance the character or appearance of the area. The Council also emphasised that the presumption in paragraph 4.27 in favour of retaining buildings which make a positive contribution to a conservation area is expressed to be a “general presumption” (rather than, for example, a strict presumption) and that the cross reference in that paragraph to paragraphs 3.16 to 3.19 was expressed as a reference to “the same broad criteria” as are set out in those paragraphs for consideration of proposals to demolish a listed building. Mr Jones, for the Council, submitted that the use of the word “broad” here showed that the guidance in paragraphs 3.16 to 3.19 was intended to operate as a general indication of the approach to be adopted to a proposal to demolish a building in a conservation area and that it was not intended that the guidance in those paragraphs for the approach to demolition of a listed building was to apply with full literal force and effect. To read the policy guidance as the Claimant sought to do, he submitted, would improperly promote individual buildings in a conservation area to the same level of protection as a listed building, even though they were not themselves of such architectural or historical interest as to merit being listed.[16]In September 2007, Kennet District Council promulgated non-statutory planning policy in relation to the conservation area in the form of a document entitled “Little Cheverell conservation area: character appraisal and management proposals” (“the local policy”). In April 2009, the District Council merged with Wiltshire County Council to form the Defendant Council. The local policy remains in effect.[17]The foreword to the local policy included the following:
“The Council has designated a new conservation area at Little Cheverell in recognition of the architectural and historic interest of the village and the quality of the landscape setting. Little Cheverell is an attractive and generally well-maintained village of particular interest because of its location at the foot of the northern scarp of Salisbury Plain and in the valley running north. Apart from the effects of traffic the 20th century has made relatively little impact on the village and it remains largely unspoilt, retaining its low density rural character. Trees and the landscape setting are crucial parts of village character. Little Cheverell is generally modest in scale, the higher status houses being largely hidden from view. Much of the village is 18th or 19th century and a number of buildings are listed.”
[18]The local policy is intended to identify and record those special qualities of the village that make up its architectural and historic character so as to provide a sound basis for planning policies and decisions on development, amongst other things. The local policy emphasises that all the buildings in the village sit within the landscape and refers to the contribution to the appearance of the village made by trees, hedges and green spaces, including private gardens. “Copsewood” was referred to in the local policy in this context, as follows:
“Copsewood is located in a mature, riparian garden of great charm and character…”
. It was also included in a list at Appendix 1 to the local plan of “Locally important unlisted buildings”.[19]Section 2.11 of the local policy, headed “Future pressures and capacity for change”, included the following statement:
“Having regard to general planning policy there are unlikely to be any major changes within the proposed conservation area in the foreseeable future but where there are any new proposals or if replacement of existing buildings is under consideration it will be important to ensure that designs have regard to their historic and physical contexts.”
[20]Section 3.5 of the local policy included the following statement:
“Applications for planning permission, conservation area consent, and tree works will be assessed with reference to the Conservation Area Appraisal. There will be a presumption in favour of conserving the key unlisted buildings identified. Where trees, hedges and views are important to the character of the area there will also be a presumption that these should be preserved. Following on from the above the preferred policy of conservation for Little Cheverell will be the preservation of the established ‘status quo’ rather than specific proposals for change. Where proposals for change occur the intention is to provide a framework to allow this to be carefully considered and managed in a positive way to reinforce the existing character and appearance of the area.” [Emphasis in original]

The factual background

[21]On 27 January 2009 Mr and Mrs Walker submitted applications for conservation area consent and planning permission to demolish and replace “Copsewood”. The applications were in due course reported to the planning committee of the Council. The Council’s officers recommended rejection of the applications, because the existing cottage made a positive contribution to the character and appearance of the conservation area and, in their view, its demolition would be contrary to PPG 15. The committee, however, decided to grant consent on the grounds that the replacement would not harm the character or appearance of the conservation area but would make a positive contribution to it.[22]The Claimant commenced judicial review proceedings in relation to that decision. Permission was granted for those proceedings on 6 July 2009. The Council then agreed to submit to judgment on the basis that the reasons given for the decision were inadequate, without accepting the other grounds of complaint advanced by the Claimant, and the decision to give conservation area consent was quashed. The application for conservation area consent therefore fell to be re-determined by the Council, acting by its relevant planning committee (“the committee”).[23]Council officers prepared a report for committee members for a meeting of the committee scheduled to take place on 14 January 2010 (“the Report”). The officers again recommended that the application should be refused. Section 2 of the Report provided a summary in these terms:
“The main issue to consider is: - Whether the proposal is in accordance with the local planning authority’s duty to pay special attention to the desirability of preserving or enhancing the character or appearance of the conservation area. In considering the above, the national guidance contained within [PPG 15] and [the local plan] are relevant. Also relevant is the fact that there is an extant planning permission for a replacement dwelling on the site. The committee are entitled to take this into account in determining the application for Conservation Area consent.”
[24]The Report therefore properly referred to the basic statutory duty on the Council under section 72 of the Act (the first paragraph quoted in para. [23] above), to PPG 15 and the local policy and to the existence of planning permission for the replacement building. The existence of planning permission was relevant to show that it was likely that if the existing cottage was demolished, an equivalent modern replacement would in fact be built in its place – demolition would not simply leave a gap in the landscape: see paragraph 4.27 of PPG 15.[25]The Report contained photographs of the existing building and drawings of the proposed replacement. It set out the view of the conservation officer that, contrary to representations made on behalf of Mr and Mrs Walker, the building made a positive contribution to the conservation area and went on:
“Therefore, there is a presumption in favour of its retention under PPG 15 and the case put forward is not sufficient to meet the strict demolition tests set out in paras 3.17-3.19 of PPG 15. The application must therefore be refused.”
[26]The Report summarised the representations received as a result of a consultation by the Council on the proposal to demolish and replace “Copsewood”. There were significant levels of both support for and objection to the proposal from members of the public.[27]Section 9 of the Report was headed “Planning considerations”. It quoted from PPG 15 as follows:
“PPG 15 provides clear guidance on assessing proposals for demolition of buildings within a conservation area; Paragraph 4.27 states ‘The general presumption should be in favour of retaining buildings which make a positive contribution to the character or appearance of a conservation area. The Secretary of State expects that proposals to demolish such buildings should be assessed against the same broad criteria as proposals to demolish listed buildings (paragraphs 3.16-3.19 above).’ – ‘3.19 Where proposed works would result in the total or substantial demolition of the listed building, or any significant part of it, the Secretaries of State would expect the authority… to address the following considerations: (i) the condition of the building, the cost of repairing and maintaining it in relation to its importance and to the value derived from its continued use. … (ii) the adequacy of efforts made to retain the building in use. … (iii) the merits of alternative proposals for the site. …’” ‘3.19 Where proposed works would result in the total or substantial demolition of the listed building, or any significant part of it, the Secretaries of State would expect the authority… to address the following considerations: (i) the condition of the building, the cost of repairing and maintaining it in relation to its importance and to the value derived from its continued use. … (ii) the adequacy of efforts made to retain the building in use. … (iii) the merits of alternative proposals for the site. …’”
[28]In these proceedings the Claimant criticises the Report for not setting out paragraphs 3.16, 3.17 and 3.19 of PPG 15 in full (see para. [12] above).[29]The Report assessed that the existing cottage made a positive contribution to the character and appearance of the conservation area. It noted its age and described it as “nestled in the valley” on the edge of a wooded area, so as to contribute to the character of Little Cheverell as a rural and unspoilt village. The Report noted that the existing building was clearly in need of renovation and modification works, such as the replacement of its sub-standard, single-storey extension dating from the mid-twentieth century and the complete stripping and replacement of the roof. However, the officers expressed the view in strong terms that there was “scant justification” for the proposal in terms of the guidance in PPG 15.[30]The meeting of the committee took place on 14 January 2010, attended by seven councillors and members of the public. The meeting was addressed by some of the councillors, including in particular Councillor Gamble, and by members of the public.[31]Councillor Gamble is the council member for Little Cheverell and had a particular interest in the application. He had approached the question of conservation area consent with great care. According to his evidence, he had read all the relevant provisions of PPG 15 (which I take to mean that his reading included all the provisions of PPG 15 I have set out above, including the full text of paragraphs 3.16 to 3.19). He had prepared notes for his presentation to the meeting, from which he spoke. He stated his view that “Copsewood” is “a very pretty cottage indeed” in a highly regarded setting and that it makes a positive contribution to the village. He then went on to make the following points set out in his notes:
“Does that mean it cannot be replaced? Well, the Conservation Area Statement [i.e. the local plan] says “there will be a presumption in conserving the key unlisted buildings identified”
. Quite right! It would be anachronistic to say otherwise. PPG 15 says “procedures (for demolition in a conservation area) are essentially the same as for listed building consent applications”. We agree, therefore, that demolition is a serious matter and is not to be taken lightly. Does this mean that demolition is forbidden? The Conservation Area Statement says “new housing development will be restricted (inter alia) to the replacement of existing dwellings” so it clearly envisages that demolition and rebuilding of a dwelling in the area is a possibility. PPG 15 says in para 4.26 “in the case of conservation area controls, account should clearly be taken of the part played in the architectural or historic interest of the area by the building for which demolition is proposed, and in particular of the wider effects of demolition on the building’s surroundings and on the conservation area as a whole”. In para 4.27 it says “consent for demolition should not be given unless there are acceptable and detailed plans for any redevelopment”. So the key questions are, A. does Copsewood play a part in the architectural or historic interest of the area; and B. are there acceptable and detailed plans for redevelopment? Well, Copsewood is not listed as being of special architectural or historic interest. As far as I have read, there are no known historical associations of the building but I do think the building is very attractive from the outside. It is close inspection which suggests that all is not quite as cute as it seems. The building seems to have had at least three building phases. The newest are only a few decades old and are evidenced by, for example, the breezeblock construction of a bay window and the concrete shuttering lining the inglenook fireplace. The beams are, for the most part, not old English oak or elm but look to me as if they come from B&Q. I have been looking for analogies here and the best I can do is to suggest the impression of a building that is a little like a film set – it looks good from one side but when you get round the back, there’s not much there. There are old bits from the 19th century, of course, but there’s nothing very special and I understand much of the old material would be salvaged for use in the new building. On balance, I am satisfied that demolition of this building is allowable if there are acceptable and detailed plans for redevelopment. On that matter, I believe the answer is simple because the new plans in large measure are externally a copy of the existing building. The new structure would be about half a metre higher to meet modern building regulations. It is only the two storey extension on the footprint of the existing single storey kitchen and bathroom that is materially different. An extension in this manner, as far as I can tell, has never been in contention. In my view, therefore, the proposed building meets the conditions of Section 7.8 of the English Heritage guidance on conservation area management which says “when considering proposals [for] new development, the local planning authority’s principal concern should be the appropriateness of the overall mass or volume of the building, its scale and its relationship to its context. A new building should be in harmony with its neighbours”. I believe the designs in front of us meet these conditions in full and that the effect of the new building on the conservation area would, therefore, in my opinion, be minimal. I believe that the application thus meets all the expectations of PPG 15, of the Conservation Area Statement and of English Heritage. If the new building is painted pink, then, in a very short time, it will be hard to tell that very much has changed. I will be voting in favour of the application.” A. does Copsewood play a part in the architectural or historic interest of the area; and B. are there acceptable and detailed plans for redevelopment? I will be voting in favour of the application.”[32]I did not have witness statements from the other committee members, so it is unclear on the facts whether each of them (like Councillor Gamble) had done background reading of their own of the full text of PPG 15, or whether they had simply relied on the summary of it and limited extracts from it set out in the Report. The Claimant’s grounds for judicial review made a complaint that the summary and extracts in the officers’ Report were inadequate, so if there were an answer that in fact the committee members had each read PPG 15 for themselves, it would have been appropriate for evidence to that effect to be put before the court. No such evidence was adduced, so I consider the inference to be drawn is that the other councillors had not read the text of PPG 15 for themselves. (I make no criticism of them for this: councillors will usually be entitled to rely upon officers’ reports as providing sufficient information for decisions to be taken by them; it simply means that in the present case it is necessary to assess the Claimant’s complaint about the adequacy of the officers’ Report).[33]There was debate at the meeting and the consensus among the six committee members who voted on the issue (the chairman of the meeting chose to abstain) was that the demolition of the existing cottage and its replacement by a modern version of it would actually enhance the area. In the light of Councillor Gamble’s presentation, the thrust of this reasoning was that, looked at from a distance and in its green setting on the edge of the village, the existing cottage made a positive contribution to the appearance of the conservation area and the replacement cottage would make a similar positive contribution; and if one approached the building more closely, the existing cottage was in a poor and unattractive state and the replacement Copsewood would look better and improve the appearance of the conservation area.[34]Mr Wilmott, the Council officer in attendance at the meeting, sought to capture the sense of the Committee’s view in a paragraph of text as follows: “The Council has considered the matter afresh and has considered that the existing dwelling at Copsewood makes a positive contribution to the character and appearance of the area, as identified in the Little Cheverell Conservation Area Character Appraisal and Management Proposals. The Council is aware of the presumption in favour of retaining buildings which make such a contribution and of the broad criteria set out in paragraphs 3.16-3.19 of PPG15. However, the prime consideration the Council has had regard to is the statutory duty to pay special attention to the desirability of preserving or enhancing the character or appearance of the Little Cheverell Conservation Area. In this case, the Council has concluded that the design and siting of the replacement dwelling proposed would be an improvement on the existing and would enhance the character and appearance of the area to a greater extent than could be achieved by allowing the existing building to remain. In these circumstances, the Council does not consider that the cost of repairing the existing building should be given overriding weight as it does not consider that the building itself is of such importance and value that it should be retained when set against the merits of the proposed replacement and its positive contribution to the conservation area.” (The last sentence is a little opaque, but in context I think it is tolerably clear that what the committee meant was that the architectural and historic value of the existing building was not so great as to warrant insistence on repair and renovation of the building at significantly greater cost than would be involved in its demolition and replacement by an equivalent modern building: this sort of balancing approach was in line with paragraph 3.19(i) of PPG 15, set out at para. [12] above).[35]This text was put to the councillors, who agreed it. The six councillors who considered the application then voted on it and resolved unanimously that the Consent should be granted.

The grounds of review

(i) The Council failed to have proper regard to PPG 15

[36]As the Claimant’s argument on this ground was developed, it involved a complaint about the summary of the effect of the relevant paragraphs in PPG 15 contained in the Report prepared by officers for the committee. Mr Harwood also submitted that on no proper interpretation of PPG 15 could the grant of consent be regarded as compatible with PPG 15. In particular, he said that the approach indicated by Councillor Gamble involved a subjective claim for the architectural merits of the proposed replacement building, which – according to paragraph 3.19(iii) of PPG 15 (para. [12] above) – could not in itself be held to justify the demolition of the existing “Copsewood” cottage.[37]I deal with this latter point first. I do not accept Mr Harwood’s submission. In my judgment, Councillor Gamble’s approach to the issue, adopted with full knowledge of the terms of PPG 15, was well-considered, well-informed and legitimate. The approach to protection of buildings in conservation areas set out in PPG 15 is a demanding one (see Fulford v Secretary of State for the Environment, unrep., 26 March 1997, Stephen Richards sitting as a Deputy Judge of the High Court), and Councillor Gamble properly treated it as such. He recognised that there should be a presumption in favour of retaining the existing building, but on balance he assessed that that presumption was outweighed on the particular facts.[38]I do not consider that Councillor Gamble’s preference for the replacement cottage as something which would enhance the conservation area involved a “subjective claim” for its “architectural merits” of the kind to which paragraph 3.19(iii) of PPG 15 refers. That sub-paragraph is directed to the sort of situation where it might be argued that, say, some proposed new skyscraper design by a leading architect is in architectural terms of such superior aesthetic value as to represent an improvement upon an existing listed building which would have to be demolished to allow it to be built. But in the present case there was no proposal to be any significant change in the architectural design of the cottage - it was simply going to be re-built in the same design but (in the opinion of Councillor Gamble and the other committee members) to an enhanced overall standard. Councillor Gamble’s approach to the issue was in line with the guidance in paragraph 3.19 of PPG 15 and with the Council’s governing duty under section 72 of the Act (rehearsed at paragraph 4.26 of PPG 15). He had proper regard to the condition of the building and the balance of its value against the cost of repairing it (paragraph 3.19(i)), to the adequacy of efforts made to retain the building in use (paragraph 3.19(ii) – in substance in this context, this came down to the same balancing issue as under paragraph 3.19(i), since there was no question of “Copsewood” being a building of a quality which might attract charitable or community ownership of the kind contemplated by paragraph 3.11 of PPG 15) and to the merits of the alternative proposals for the site (paragraph 3.19(iii)). The approach he adopted was not ruled out by anything said in paragraphs 3.16 and 3.17 of PPG 15.[39]As regards the complaint concerning the contents of the Report, Mr Harwood pointed out that it did not set out the full text of paragraphs 3.16, 3.17 and 3.19 of PPG 15 and submitted that for that reason it did not provide proper guidance to the committee members as to the approach they should adopt to the application for conservation area consent. On the evidence before me, it appears that the committee members other than Councillor Gamble had not read the full text of PPG 15. They were dependent on the Report to be informed how, in the light of PPG 15, they should approach the matter.[40]It was common ground that national planning policy guidance is a material consideration to be taken into account when considering an application for conservation area consent. Obviously, if such guidance is to be taken into account properly, it has to be understood with its proper relevant effect.[41]Mr Jones submitted that, in assessing the adequacy of the Report, the appropriate legal standard to be applied is that which is applied when assessing the adequacy of reasons given by a public authority when determining a planning application. He referred me in that regard to the familiar guidance given in South Buckingham DC v Porter (No. 2) [2004] UKHL 33; [2004] 1 WLR 1953, at [36] per Lord Brown of Eaton-under-Heywood, as follows:
“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the “principal important controversial issues”, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.”
[42]I do not think this submission is correct. The standard for assessment of reasons given by a decision-maker does not provide an appropriate guide for the standard to be met in a report by a person who is not himself the decision-maker (here, the Council officers) to another person who has responsibility for making the decision (here, the committee members) intended to draw that person’s attention to the proper approach to be taken and to material considerations. In the former case, the purpose of the obligation to give reasons is to explain why the decision-maker has reached a particular conclusion on an application with a sufficient degree of particularity so that an informed observer can understand why that conclusion was reached. Accordingly, as Lord Brown points out, the reasons can be quite shortly stated and “… need refer only to the main issues in the dispute, not to every material consideration.” In the latter case, the purpose of a report it is to equip the person who has to make the decision in question (who may not have a significant degree of background knowledge of the circumstances in which it has to be made) with sufficient indications of the approach they should adopt and of any material factors which they should take into account (and, depending on the context, perhaps indicating other factors which they have a discretion whether to take into account or factors which they should not take into account).[43]However, in my judgment, applying the proper test, the Claimant’s challenge on this ground is not made out. I accept Mr Jones’ other submissions in this regard. He correctly observed that the court should focus on the substance of a report by officers given in the present sort of context, to see whether it has sufficiently drawn councillors’ attention to the proper approach required by the law and material considerations, rather than to insist upon an elaborate citation of underlying background materials. Otherwise, there will be a danger that officers will draft reports with excessive defensiveness, lengthening them and over-burdening them with quotation of materials, which may have a tendency to undermine the willingness and ability of busy council members to read and digest them effectively. I also consider that his submissions at para. [15] above about the drafting of paragraph 4.27 of PPG 15 (the significance of the phrase “the general presumption” and the phrase “the same broad criteria”) are correct. On proper interpretation, paragraph 4.27 does not indicate that planning authorities are required to apply exactly the same approach to an application to demolish a building in a conservation area as would be applied to an application to demolish a listed building.[44]The interpretation of paragraph 4.27 which I prefer, in line with Mr Jones’ submissions, is supported by the different statutory context in which it provides guidance (sections 69 and 72 of the Act, relating to the protection of conservation areas as areas), as distinct from the statutory provisions for which paragraphs 3.16 to 3.19 of PPG 15 provide guidance (sections 1 and 16 of the Act, relating to the need to protect particular buildings). I do not consider that paragraph 4.27 can properly be read as intending to import exactly the same strict approach to protection of specific buildings as is appropriate in the context of preservation of listed buildings.[45]In my view, the officers’ Report in this case provided committee members with appropriate and sufficient guidance regarding the approach they should adopt to consideration of Mr and Mrs Walker’s application for conservation area consent. It gave a proper indication of the approach required to be applied by section 72 of the Act. It set out the general presumption in favour of retention of old buildings contained in paragraph 4.27 of PPG 15. Setting out the headings of the sub-paragraphs in paragraph 3.19 of PPG 15 was in my opinion a sufficient indication of the broad criteria which paragraph 4.27 stated should be taken into account. The parts of sub-paragraphs 3.19(i), (ii) and (iii) which were not quoted in the Report were not germane to the particular application and context which the committee had to consider, and the Council officers could fairly and properly decide that it would not be helpful to committee members to set those sub-paragraphs out in full. The same is true of paragraphs 3.16 and 3.17 of PPG 15. As a matter of substance, the committee members were given good direction by the Report and the relevant effect of PPG 15 was not misrepresented. (ii). The Council failed properly to consider and reach a conclusion whether the proposal complied with PPG 15.[46]It follows from my ruling on Ground (i) abovethat this ground of challenge also fails. In my view, the committee members did properly and adequately consider the application of the guidance in PPG 15 to the circumstances of the case before them. They could properly reach the conclusion, as they did, that the grant of the Consent did not involve any departure from the guidance in PPG 15. (iii). Irrationality[47]Mr Harwood submitted that the decision of the committee was irrational, since by it they failed to protect and preserve any part of the historic fabric of the existing “Copsewood” cottage. He said that it is in the nature of a conservation area that planning authorities should aim to conserve what is there; in this case, that could be achieved by refusing conservation area consent for the proposed demolition of the existing cottage and leaving it to the owners to either sell the property or renovate it; accordingly, it was irrational for the committee to grant the consent.[48]I dismiss this challenge as well. Neither the Act nor PPG 15 suggest that demolition of an old building in a conservation area will always be unacceptable. On the contrary, PPG 15 sets out factors to be taken into account in deciding whether it is acceptable or not. The argument under this Ground is in substance a repetition in different legal clothes of the argument of the Claimant under Ground 1, which I have already rejected. It is not irrational for a local authority to allow for demolition of an old but undistinguished building in a conservation area in circumstances such as those in the present case.[49]In this case, the committee were entitled to conclude that the replacement of the existing building with a modern building of similar appearance and improved finish, occupying the same setting, would enhance the area. There was nothing irrational in their consideration of the matter or in the conclusion they arrived at.

Conclusion

[50]For these reasons, I dismiss this claim for judicial review.

Cited in 39 later judgments

and 30 more of the most senior