Samuel Smith Old Brewery Tadcaster v Selby District Council [2013] EWHC 1159 (Admin)

Case No CO/6431/2011[2013] EWHC 1159 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/05/2013
Before
MR JUSTICE KENNETH PARKER
Between
SAMUEL SMITH OLD BREWERY TADCASTERClaimantSELBY DISTRICT COUNCILDefendant
Peter Village QC and James Strachan (instructed by Pinsent Masons) for ClaimantAlan Evans (instructed by Selby District Council) for DefendantHearing Hearing date: 7 March 2013
JudgmentMr Justice Kenneth Parker :Introduction
[1]This is a claim for judicial review of a decision of 12 April 2011 of Selby District Council (“the Council”) to grant itself planning permission for development comprising the resurfacing of the town centre car park including the formal delineation of a total of 143 car parking spaces and amendments to access and egress at junctions and drainage work. The site is known as Chapel Street Car Park, Church Street, Tadcaster. The Claimant is a brewery and a major landowner and employer in Tadcaster. It has a particular interest in protecting the environment of the town.

Background

[2]The site is described in greater detail in the officer’s report to the Committee of the Council as follows:
“The application site is Chapel Street Car Park, which is also known as, and referred to, in both the supporting statement accompanying the current application and in previous planning applications, as “Tadcaster Central Area Car Park” or “Tadcaster Central Car Park”
. The site comprises a public car park, measuring 4518 metres square, surfaced in tarmacadam, with three soft landscaped areas, planted with 3 deciduous trees and illuminated by modern lighting columns. Previous repairs and maintenance appears to have been undertaken on an ad hoc basis. It would also appear that at some stage in the past the site was formally laid out with spaces delineated, as evidenced by the ghosts of the white lining used to demarcate some of the parking bays. However in some areas these are barely discernible. In addition the surface is varied in quality with some more recently surfaced areas interspersed with older areas, the latter being somewhat uneven and rutted leading to the formation of puddles and tripping hazards. Vehicular access to and egress from the car park is gained via Chapel Street to the west of the site. To the south of the vehicular access is an area of shrubs beyond which is a vacant open plot. To the north of the access is a public house. Opposite the site entrance, and on the western side of Church Street is a pair of listed stone houses. To the south of the main part of the car park is another area of hard standing surfaced in tarmacadam, across which access is gained to the rear of the properties fronting onto High Street. This area is within private ownership and unauthorised parking is prevented by bollards. In the south east corner is a pedestrian access to High Street. To the east of the site the boundary backs on to the rear of properties fronting onto Kirkgate. Furthermore there is a small area of private parking to the rear of No 11 Kirkgate, which does not form part of the public car park. Pedestrian access to the site from the east is provided by a ginnel adjacent to “Peekaboo” and from Vicarage Lane. To the north of the main part of the car park is an area of open land, in which stands the “Old Vicarage” a Grade II* listed building, to the north of which are properties fronting onto Westgate. The site is located within the Tadcaster Conservation Area and as such is surrounded by the historic fabric of the town centre. There are several listed buildings abutting, or within the vicinity of the site. Of particular note, by virtue of their proximity are the Old Vicarage (Grade II*) situated to the immediate north of the site, Nos 47 and 49 Westgate (Grade II), the Ark (Grade II*) situated adjacent to the north east corner of the site, various properties (Nos 10, 12/14, 16, 18, 24, 26, 28) fronting High Street (all Grade II) which back onto the car park, the stone houses along the western side of Chapel Street (Grade II), the Methodist church, fronting High Street (Grade II), properties along the south side of High Street, in particular the “walls, gates and piers adjoining the offices to John Smith’s, High Street and the malt tower and office, Centre Lane” (Grade II). The site is located within the “shopping and commercial centre” of the Town as designated on the proposals map of the Selby District Local Plan. The site is also designated as a “car park”, subject to Policy VP2 on the proposals map of the Selby District Local Plan.”[3]The Council granted permission for the resurfacing of the car park to include the formal delineation of 143 car parking bays, 3 disabled bays and 4 motorcycle bays, amendments to the access and egress junctions and drainage works. In support of the application the Council submitted a Planning Statement, a Design and Access Statement, a PPS5 Heritage Statement, Archaeology Assessment and Geophysical Study.[4]There was a considerable planning history, the most recent developments comprising an application made by the Council in 2002 for the refurbishment of the existing car park, including resurfacing, new lighting, landscaping and the erection of a replacement public convenience building. That application was approved in 2003 but, on challenge by the present Claimant, the Council agreed to a consent order by which the consent was quashed. In September 2002 the Claimant made an application for the comprehensive regeneration of Tadcaster Town Centre, which included the demolition and re-laying of the central area car park and the development of nine sites within the wider town centre. That application was approved in 2003 and the permission remains in force.[5]In September 2004 the Council submitted a further application and again granted permission to itself for the refurbishment of the car park including resurfacing, new lighting, landscaping and the erection of a public convenience building. The Claimant again challenged the grant of permission by judicial review, and the Council consented in 2009 to the quashing of the permission.[6]The Claimant in the present application has attached considerable weight to the planning history, in particular to the quashing following legal proceedings, of the two previous grants of permission. I refer, where appropriate, to certain features of the history, but it seems to me that I must focus on the legality of the decision that is under challenge in this application. The Applicable Legislation and Planning Policies National Guidance

The Applicable Legislation and Planning Policies

[7]Planning Policy Statement 5: Planning for the Historic Environment set out the Government’s national policies on the conservation of the historic environment at the relevant time. Under Annex 2 of PPS5 “conservation areas designated as such under relevant legislation” are classified as “Designated Heritage Assets”.[8]Under Policy HE7: Policy Principles Guiding the Determination of Applications for Consent Relating to All Heritage Assets, the following is stated: “HE 7.5 Local planning authorities should take into account the desirability of new development making a positive contribution to the character and local distinctiveness of the historic environment. The consideration of design should include scale, height, massing, alignment, materials and use.” (My emphasis)[9]HE 9.1 states that:
“There should be a presumption in favour of the conservation of designated heritage assets and the more significant the designated heritage asset, the greater the presumption in favour of its conservation should be.” (My emphasis) In that connection HE 9.5 is of some importance: “Not all elements of a World Heritage Site or Conservation Area will necessarily contribute to its significance. The policies in HE9.1 to HE9.4 and HE10 apply to those elements that do contribute to the significance. When considering proposals, local planning authorities should take into account the relative significance of the element affected and its contribution to the significance of the World Heritage Site or Conservation Area as a whole. Where an element does not positively contribute to its significance, local planning authorities should take into account the desirability of enhancing or better revealing the significance of the World Heritage Site or Conservation Area, including, where appropriate, through development of that element. This should be seen as part of the process of place-shaping.”
[10]Policy HE10: Additional Policy Principles guiding the consideration of applications for development affecting the setting of a designated heritage asset states:
“HE10.1 When considering applications for development that affects the setting of a heritage asset, local planning authorities should treat favourably applications that preserve those elements of the setting that make a positive contribution to or better reveal the significance of the asset. When considering applications that do not do this, local planning authorities should weigh any such harm against the wider benefits of the application. The greater the negative impact on the significance of the heritage asset, the greater the benefits that will be needed to justify approval. HE10.2 Local planning authorities should identify opportunities for changes in the setting to enhance or better reveal the significance of a heritage asset. Taking such opportunities should be seen as a public benefit and part of the process of placeshaping. ”

The Selby District Local Plan

[11]The site, as already noted, was within the Tadcaster Conservation Area. The proposal for planning permission was, therefore, subject to the criteria set out in Policy ENV25: Conservation Areas.[12]Policy ENV25 requires that: “Development within or affecting a conservation area will be permitted provided the proposal would preserve or enhance the character and appearance of the conservation area.” (My emphasis) That language echoes section 72 of the Planning (Listed Buildings and Conservation Areas) Act which requires special regard for “the desirability of preserving or enhancing the character or appearance” of a conservation area.[13]ENV25 specified four criteria by which to assess proposals. The third criterion was that development within a conservation area should be permitted where the proposal: “Would not adversely affect the setting of the area or significant views into or out of the area.” (My emphasis)[14]The fourth criterion of Policy ENV25 was that development within such an area should be permitted where:
“The proposed use, external site works and boundary treatment are compatible with the character and appearance of the area.”
[15]PPS5 (see paragraph 7 above) under Policy HE6: information requirements for applications for consent affecting heritage assets contains this advice:
“HE6.1 Local planning authorities should require an applicant to provide a description of the significance of the heritage assets affected and the contribution of their setting to that significance. The level of detail should be proportionate to the importance of the heritage asset and no more than is sufficient to understand the potential impact of the proposal on the significance of the heritage asset …”
[16]The Council accordingly supported its application by a statement providing – “a character appraisal of Tadcaster which includes a full review of PPS5 and the 1997 Tadcaster Conservation Area Character Assessment [an assessment of its special architectural and historic interest]” The Tadcaster Conservation Area Character Assessment noted that Tadcaster’s built environment is composed of – “buildings from the 14th century to the 1990s but the traditional materials, massing and detailing give the town homogeneity, which is rare in urban settings today.” Under “Character of the Open Spaces in the Conservation Area” was included the following observation:
“As stated above Tadcaster has much more open space now than was previously the case. The central car park [within the relevant site] and Robin Hood’s yard for example were previously a mass of backyard development, long since gone. Unfortunately it is these comparatively recently established open spaces that are of the poorest quality and detract from the quality of the area.”
[17]Under “Opportunities for enhancement”, it is stated that: “There are many opportunities for enhancement within the conservation area, both on open spaces and buildings. 1. Both of the car parks are scruffy and detract from the character of the town. Both would be enhanced by resurfacing, possibly in York stone setts with improvements in the shabby buildings on them.” (My emphasis)[18]The site was also located within the commercial and shopping centre of Tadcaster and was therefore subject to Policy AD/4: Environmental Improvement of the Local Plan. The second element of TAD/4 is that new development should respect “the scale, layout, design, height and materials, of surrounding development” and should make “a positive contribution to the character of the area”.

The Analysis in the Report to the Committee

[19]The challenge in this claim concentrates on the analysis contained in the officer’s Report to the Council Committee. It is presumed that the Council had regard to that analysis in reaching the decision to grant itself the relevant planning permission. It is argued that the analysis is seriously flawed and that any decision founded upon it is itself misconceived and unlawful.[20]The case officer and author of the Report was qualified in architectural conservation and acted as the conservation officer for the Council. The policies relevant to the proposal and the analysis of their application are set out principally in paragraphs 84-133 of the Report.[21]The Report first considered Policy ENV25 (see paragraph 12 above) and, in particular, criteria three and four of that policy. As to criterion three (see paragraph 13 above), the Report stated: “The proposal would entail the replacement of an area of tarmac and the delineation of car parking spaces and as such given the nature of the works it is considered that the proposal would not adversely affect the setting of the area or significant views into or out of the area.” (My emphasis)[22]As to criterion four (see paragraph 14 above), the Report noted that there would be replacement of an area of worn, rutted patchwork of tarmac with new tarmac and the provision of white lining, some replanting of existing soft landscaped areas, the provision of an electricity housing cabinet and rails for the motor cycle parking area. The Report noted that in respect of a previous application for planning permission the case officer had advised that “the reuse of a tarmac finish is not considered by the Council to be a suitable surfacing material for use within this important conservation area”. The Claimant relies heavily upon this previous position of the Council, and it is, therefore, appropriate to state in full the following passage of the Report which responded to that earlier position:
“However it is noted that the site is already a public car park, which is already surfaced in tarmac, that such a feature constitutes a modern intervention within the historic fabric of the town centre and that tarmac is almost exclusively used within Tadcaster Conservation Area for surfacing public and private parking areas and public highways with a small exception at the junction of Kirkgate with High Street. As such the use of tarmac would not only reflect the current material used throughout the car park it would also reflect the predominant surfacing material used for parking areas and streets found throughout the conservation area.”
[23]The Report continued by recognising that the use of stone flagging or some other form of material would be acceptable or even superior. But the test was whether tarmac was acceptable in its own right and, for the reasons given, tarmac was considered acceptable. Criterion four was met and, overall, the nature of the proposal, on the worst case, would not harm the character and appearance of the conservation area.[24]As to the second element of Policy TAD/4 (see paragraph 18 above), it was stated that the replacement of the worn surface of the car park with a new surface would improve the degree or standard of excellence and thus the quality of the car park, and so “in this limited way would make “a positive contribution to the character of the area”.[25]The Report then turned to the national planning policies, in particular Policy HE9.5 of PPS5 (see paragraph 9 above). The Report accepted that in this context the use of stone flags could improve the aesthetics of the Conservation Area. However, it was not accepted that such an improvement amounted to “enhancing or better revealing the significance” of the Conservation Area. The “significance” of the Conservation Area lay in its pattern of urban form and historic fabric. The Tadcaster Central Area Car Park was not part of that historic fabric but was a modern intervention into that fabric. The conclusion was:
“… the use of traditional materials such as Yorkshire flagging would do little in respect of enhancing or better revealing the “significance” of the conservation area, which is inherently enshrined within its historic fabric and pattern of land uses.”
[26]The Report also considered the effect upon the setting of listed buildings, referring to Section 66(1) of the Planning (Listed Buildings and Conservation Areas Act) 1990 and to the applicable policies HE6, HE7, HE8.1, HE9 and, in particular, HE10 of PPS5 (see paragraph 10 above). The Report stated that the issues that arose in relation to the impact on the character and appearance of the conservation area also applied to the impacts on surrounding listed buildings, and concluded as follows:
“Therefore having regard to the above and having taken into consideration views from each of the listed buildings towards the proposed development or from the proposed development towards the listed buildings, or from other points in which the application site and the surrounding listed buildings would be seen together it is considered that the proposal, by virtue of the reasons given in the section relating to impact on the conservation area, would at worse have a neutral impact and therefore preserve the setting of the listed buildings within the vicinity of the application site.”

The Grounds of Challenge

[27]The grounds of challenge represent specific criticism of the analysis in the Report. I shall consider each principal criticism in turn.

First Criticism

[28]It is first alleged that the Report failed to draw members’ attention to the terms of the Tadcaster Conservation Area Character Assessment. That allegation is not correct (see paragraphs 16 and 17 above). The relevant review expressly referred to at paragraph 99 of the Report specifically referred to the Conservation Area Character Assessment and to the parts of the Assessment describing the Central Area Car Park and its present condition.[29]In that context it is also alleged that the acceptance of tarmac as a suitable surface for the car park ran counter to the Conservation Area Character Assessment. That also is not correct. The Assessment specifically noted that the car park would be enhanced by resurfacing, possibly in York stone setts (see paragraph 17 above). The assessment did not prescribe Yorkshire stone setts as the only suitable means of resurfacing, nor did it state that tarmac resurfacing was not an acceptable means of enhancing the car park. The relevant “opportunity for enhancement” was the opportunity to resurface so that the car park was no longer “scruffy” and so detracting from the character of the town. There was then a suggestion, and no more, that resurfacing might be accomplished in Yorkshire stone setts.[30]The Report did in fact elsewhere mention the previous position of the Council that tarmac resurfacing was not acceptable (see paragraph 22 above). However, as already explained, the author of the Report (being in this instance also the conservation officer) took a different view: in short, the car park was not itself part of the heritage assets; it was already surfaced in tarmac, which was used within the Conservation Area for surfacing public and private parking areas and public highways; and the question was not whether tarmac was the best surface, simply whether it was acceptable. It seems to me that this represents no more than a difference of informed opinion about the acceptability of tarmac as a resurfacing material. Reasons were given in the Report in support of the change of position. I see nothing perverse, objectionable or exceptional about the reasons that were given. Members were able to decide which view to accept. There is again nothing perverse or irrational in the choice that they made.[31]Under this first criticism it is also alleged that the Report failed to take account of certain matters that should have been mentioned. Thus, the Report did not mention the views of English Heritage in relation to the previous schemes. However, the Report, when dealing with consultation responses, noted at paragraph 26 that – “English Heritage have advised that the application should be determined in accordance with national and local policy guidance, and on the basis of the Council’s specialist conservation advice.” The consultation response in fact stated that English Heritage’s specialist staff had considered the information received and English Heritage did not wish to offer any comments on this occasion. The application was, therefore, determined in precisely the way in which English Heritage advised that it should be determined, and there was no legal error in not referring to earlier representations by English Heritage.[32]The Report did not refer to the English Heritage publication Street Improvements in Historic Areas. That document advises that – “Natural stone paving should generally be used in conservation and other sensitive locations … although sometimes more expensive as an initial capital cost, natural stone has a much longer life and therefore offers better value for money than artificial alternatives … Where artificial materials are employed they should be high quality and they should be selected to match traditional materials as closely as possible in respect of size, colour, texture and finish.” However, English Heritage did not in its response refer at all to this document. Instead it invited the Council to decide the application in line with national and local planning policy. That is the course that the Council adopted, as the earlier description of the analysis in the Report shows. There was again no legal error in not referring to this particular publication.[33]The Report did not refer to the English Heritage document Streets for All Yorkshire and the Humber. This document deals with streets, not car parks. The document advocates the use of natural local materials in preference to man-made alternatives. That might bear on the issue of the acceptability of tarmac for resurfacing the Central Area Car Park. However, the Report considered that issue at length, recognising that stone might well be a superior surface, but concluding that tarmac was acceptable for a car park. That conclusion was one that was reasonably open to the decision maker, and the absence of reference to this document, particularly given its purpose and the general position taken by English Heritage in respect of this application, did not constitute any legal error.

The Second Criticism

[34]The second criticism comes down to an allegation that the Tadcaster Conservation Area Character Assessment “identified the use of the surfacing as detracting from the Conservation Area”. For reasons that have already been given, this was not the case: the Assessment stated that the car park was scruffy, detracted from the character of the town and would be enhanced by resurfacing. The Assessment did not state that resurfacing with tarmac would be unacceptable.

The Third Criticism

[35]The focus of the third criticism, as I understand it, is that the Report did not deal properly with material planning policies, in particular Policy HE9.5 of PPS5. The relevant test, as already explained, was whether the proposal would “enhance or better reveal the significance” of the Conservation Area. The Report took the position that the “significance” of the Conservation Area did not attach essentially to the car park. The car park as such was a “modern intervention” within a historic fabric. Whether the car park was surfaced in stone rather than tarmac would do little, if anything, to enhance the historic fabric of the Conservation Area. The improvement would in substance be aesthetic. In other words, the car park might look better, but that in itself would have little, if any, effect in drawing out the significance of the Conservation Area. I can understand that there may be a reasonable difference of opinion on that question. The Claimant disagrees vehemently with the Council’s final assessment. However, the question is one of planning judgment, where the Court could interfere only if the decision was one not reasonably open to the decision maker. The Council had all the relevant information before it, and members would well know the site and have a local feel for what could be achieved by using stone rather than tarmac for resurfacing the car park. The view taken by the Council – that the precise surfacing material of the car park – made little difference to the “significance” of the heritage assets was not an unreasonable one in all the circumstances, and the decision in this respect does not meet the relatively high threshold of unreasonableness that would justify interference.

The Fourth Criticism

[36]It is alleged that there was a failure to address TAD/4 criterion two of the Local Policy. That is not correct (see paragraph 24 above). The Report applied the relevant policy by noting that the worn surface of the car park would be replaced with a new surface, and so “in this limited way” the proposal would make a “positive contribution to the character of the area”. I see nothing remarkable in that conclusion.

The Fifth Criticism

[37]This criticism relates to listed buildings and is parasitic on the points already considered in respect of the Tadcaster Conservation Area. Insofar as the earlier criticisms fail, they also fail in relation to listed buildings.

The Sixth Criticism

[38]It is argued that the Defendant failed to consider the Claimant’s alternative scheme. The Claimant’s alternative scheme was in fact specifically considered in section 13 of the Report under the heading “Impact on Other Approved Schemes” at paragraph 183. The alternative scheme was then considered again at paragraph 186 as part of the discussion under the heading “Issues Raised by Objectors”. It is also alleged that the Claimant’s alternative scheme was “side-lined” by an inaccurate statement in paragraph 5.4.19 of the Planning Statement submitted in support of the application that the resurfacing of the car park in York stone setts was “unfortunately not a deliverable option at this juncture” which was left uncorrected in the Report. However, as explained earlier, the issue of the resurfacing material was considered at some length in the Report. York stone flags were plainly not rejected on account of “deliverability”. It was simply that tarmac resurfacing of the car park was acceptable. In the discussion of alternative schemes, and specifically the Claimant’s, the Report pointed out that all conditions precedent had been discharged and that the development had commenced. The Report then correctly pointed out (in paragraphs 183 and 186) that the ability to implement alternative schemes rested with the party who had control over or owned the land in question.

The Seventh Criticism

[39]It is contended that the Defendant was wrong in law not to take into account the saving to the public purse which would be involved were the Claimant’s alternative scheme to be implemented. In paragraph 185 of the Report it was stated that “issues in relation to public sector cut backs, the budgetary constraints of the local district council, the cost of the scheme in comparison to other schemes, whether the proposals represent a reasonable use of public funds or “best value” or not and who the applicant is or is not working in partnership with are not material to the determination of this application”. This is alleged to be incorrect.[40]The Claimant refers to the Supreme Court decision in The Health and Safety Executive v Wolverhampton City Council [2012] UKSC 34. Relying on that decision the Claimant contends that financial considerations are relevant where the local planning authority is itself the applicant for planning permission and has a direct financial interest in the application and the way in which it is decided. However, in The Health and Safety Executive case Lord Carnwath stressed that, under section 70 of the Town and Country Planning Act 1990, the planning authority had a duty to act and had a limited choice, either to grant or refuse permission, which had to be governed by considerations material to that limited choice. That was to be contrasted with the discretion whether or not to make a revocation order under section 97. The Council in this case as planning authority was no less under a duty to act because the application was received from itself; the choice it faced was either to grant or refuse permission on the basis of considerations material to that limited choice. Lord Carnwath did not say that when an authority had a direct financial interest in the development, costs consequences became material to consideration of a decision whether to grant or refuse planning permission for the development. He said that “other constraints” came into play. A decision by an authority to grant planning permission to itself (as opposed to a decision to implement any permission so granted) does not commit that authority to expenditure in the way that the making of a revocation order does. The Health and Safety Executive case in effect found that financial considerations unrelated to the use and development of land are “material considerations” in respect of a decision under section 97 of the Town and Country Planning Act 1990 whether or not to make a revocation order. It does not support any such approach in respect of decisions whether or not to grant planning permission.

The Eighth Criticism

[41]It is contended that the Report was misleading in suggesting that the grant of permission and bringing forward of the Defendant’s scheme would not prejudice the ability of the Claimant to implement its own scheme. However, in paragraph 183 of the Committee Report, under the heading of “Impact on Other Approved Schemes”, it was noted that objection had been raised in respect of previous applications that the Defendant’s proposal would prejudice the Claimant’s approved scheme. The Report did not suggest that that would not be the case. It was noted accurately that all conditions precedent had been discharged in respect of the Claimant’s scheme and that development had commenced but went on accurately to point out that the ability to implement rested with control over the land and repeated in paragraph 186 that the ability to implement lay with the landowner. The Report advised in paragraph 183 that little weight should be given to the objection. The issue of weight was one entirely for the Council as planning authority, and I do not find that this criticism is well founded.

Conclusion

[42]For the reasons given I do not see merit in any of the criticisms made of the Report. The Report dealt lawfully with each of the matters targeted by the Claimant. The Report represented a careful and lawful analysis of all planning issues bearing on the application for permission, and the decision was one reasonably open to the Council.[43]I therefore dismiss this application.

Cited in 1 later judgment