Is It A Listed Building? No Statuary Right Of Appeal

Or, before you sell your garden ornaments best to check that they aren’t listed buildings.

I missed the 50th anniversary, on 25 October 2018, of the enactment of the Town and Country Planning Act 1968. Part V of the Act introduced our modern system of listed buildings, and the prohibition on the demolition of any listed building, or its alteration/extension in any manner that would affect its character as a building of special architectural or historic interest, without listed building consent. The background to the provisions, which replaced a much weaker system of building preservation notices, is well described in an Institute of Historic Building Conservation blog post.

I was only reminded of the anniversary by an interesting ruling by the Court of Appeal, Dill v Secretary of State (Court of Appeal, 26 November 2018).

The facts are odd. Two early 18th century limestone piers, each surmounted by a lead urn, were moved to Idlicote House, a grade II listed building, in 1973 by the appellant’s father. The two sets of piers and urns were separately grade II listed in 1986. The appellant came into ownership of Idlicote House on 1993, didn’t appreciate that the items were listed and sold them abroad in 2009 for £55,000. He does not know where they are now. Stratford-On-Avon District Council found about this in 2014. Correspondence ensued. The appellant made an application for retrospective listed building consent to remove the items, which was refused in 2016. The council issued a listed building enforcement notice requiring their reinstatement and the appellant appealed against both the refusal and the notice.

An inspector dismissed the appeals and in so doing rejected submissions that it was open to him to conclude that they were not listed buildings. The decision was challenged and Singh J agreed with the inspector at first instance.

Singh J’s judgment (28 September 2017) contains some interesting additional factual context (as well as usefully quoting from most of the inspector’s report). These items had previously been at four other country houses before being placed at Idlicote House:

The items were originally at Wrest Park in Bedfordshire. In 1939 Mr J G Murray sold Wrest Park and took various items of statuary, including these items, with him to Coles Park, Buntingford in Hertfordshire. In 1954-5, following the death of Mr Murray, the estate was left to a trust, with his grandson, Major R P G Dill, being a lifetime beneficiary. In 1955-6, under Major Dill, Coles Park was sold and the items went with him to the Dower House, Buntingford. Major Dill sold Dower House in 1962 and moved to Badgers Farm, Idlicote. Again the items went with him. He positioned them at Badgers Farm. The farmhouse at Badgers Farm was listed in 1966 but the list description makes no mention of the items.

In 1973 Major Dill sold Badgers Farm and bought Idlicote House. These items followed him. These two items were positioned on either side of a path in the gardens which had served as the front drive to the house since the 1820s. No alteration was made to the garden design to accommodate the items.”

Back to the Court of Appeal. The judgment of Lord Justice Hickinbottom goes through the statutory regime, noting that “building” isn’t defined in the Listed Buildings Act but rather in the Town and Country Planning Act 1990. It “includes any structure or erection, and any part of a building, as so defined, but does not include plant and machinery comprised within a building“.

Hickinbottom LJ agrees with the inspector and Singh J: the decision-maker cannot determine that something on the list is not in fact a building. The list is determinative. Whilst the question as to whether something is a building does involve questions as to the purpose and degree of annexation to the land or property, such issues eg as to the application of property law concepts (see London Borough of Tower Hamlets v London Borough of Bromley (Norris J, 8 July 2015) – the Henry Moore’s Old Flo statue case) or the approach taken to what was part of a building in other rating and planning cases (eg see Skerrits of Nottingham Limited v Secretary of State (Court of Appeal, 22 March 2000) – marquee in grounds of listed building) were not relevant here. He separates out the three ways in which something may qualify as a listed building:

⁃ by being listed in its own right, as here.

⁃ by being an object or structure fixed to a listed building.

⁃ by being an object or structure which lies within the curtilage of a listed building.

So, Mr Dill now has a problem. How to comply with a listed building enforcement notice, and potential criminal sanctions, when no one knows where in the world these objects now are.

The case is a reminder of a couple of things:

⁃ The absence of a time limit for service of listed building enforcement notices, which when taken with the criminal offence arising from doing works without listed building consent, leads to complications for those of us carrying out legal due diligence in relation to transactions concerning listed buildings.

⁃ The curiosity of the definition of “building” which enables a wide range of structures or erections to become “listed buildings“.

By coincidence DCMS on 19 November 2018 updated its principles for selection of listed buildings. More on that in due course perhaps (particularly on the implications for modern buildings) but in the meantime the advice in paragraph 5 is relevant to this blog post:

For the purposes of listing, a ‘building’ includes any structure or erection and a ‘listed building’ includes any object or structure: (a) fixed to it; or (b) within its curtilage which, although not fixed to it, forms part of the land and has done so since before 1st July 1948, unless the list entry expressly excludes such things. In some cases, such as for works of art or sculptures, it will be necessary to consider the degree and purpose of annexation to the land or building to determine whether it may be listed under the 1990 Act.

The Dill case reminds us that in practice the stage to argue that something is not a “building” is obviously when listing is being considered, not when you are facing enforcement or making a listed building consent application. Surely listing of such itinerant objects, with no historical connection with Idlicote House, would not have been an obvious procedure to follow? Of course applications for de-listing can also be made when it is considered that the listing was in error in some way, but the Historic England guidance warns that applications for de-listing will not normally be considered when enforcement is in hand – so perhaps not an easy route for Mr Dill.

Simon Ricketts, 1 December 2018

Personal views, et cetera

The Loneliness Of The Long Distance Planning Inspector: Courts Support Approach To Setting & Valued Landscape

Two cases last week reminded me as to how difficult the role of the planning inspector is. The two inspectors in question, architect John Gray and solicitor Karen Ridge, both faced conflicting evidence and submissions on issues which were largely matters of evaluation and judgment, albeit within narrow policy tramlines, at inquiries lasting six and eight days respectively. Congratulations are due to them both given that their decisions survived legal challenges – or, following Lord Carnwath’s approach in Suffolk Coastal (“the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“) and the regular judicial criticism as to “excessive legalism” on the part of claimants, is it simply that the hurdle for a successful challenge is nowadays higher?

In Catesby Estates Limited and Secretary of State v Steer (Court of Appeal, 18 July 2018) at first instance Lang J had quashed John Gray’s decision letter in which he had allowed two appeals by Catesby, one relating to a proposal for up to 400 dwellings and a convenience store and the other for up to 195 dwellings, both on land about a mile away from the grade 1 listed Kedleston Hall.

The arguments at inquiry and subsequently revolved around the extent to which the site should be treated as within the setting of the hall and other designated heritage assets. Since the 1960s, views of the site from the hall and vice versa had been blocked by a belt of trees known as the “Derby Screen”, planted at the time to obstruct views of the expanding suburbs of Derby. Given the protection given to the setting of listed buildings by way of section 66 (1) of the Listed Buildings Act 1990 and the NPPF, supported by Historic England guidance, much turned on that question.

Lang J had agreed with submissions of the claimant and Historic England that “the Inspector adopted an artificially narrow approach to the issue of setting which treated visual connections as essential and determinative. In adopting this approach, the Inspector made an error of law.

However, the Court of Appeal undertook a close examination of the inspector’s reasoning and overturned Lang J’s ruling. They found that the inspector had correctly considered two potential ways of looking at the setting of the hall, one considering visual and physical connections and the other looking at wider historical, social and economic connections. The court determined that he had then gone on to consider all the relevant issues before, in the particular circumstances, arriving at a narrower interpretation. His conclusions did not “betray an unlawful approach, in which considerations other than the visual and physical were disregarded“.

In reaching that conclusion, McFarlane LJ’s judgment in the Court of Appeal does usefully set out the approach to setting that should be taken by decision makers:

Although the “setting” of a listed building is a concept recognized by statute, it is not statutorily defined. Nor does it lend itself to precise definition (see R. (on the application of Williams) v Powys County Council [2017] EWCA Civ 427, at paragraphs 53 to 58). Implicit in section 66 of the Listed Buildings Act, however, is that the setting of a listed building is capable of being affected in some discernible way by development, whether within the setting or outside it. Identifying the extent of the setting for the purposes of a planning decision is not a matter for the court, but will always be a matter of fact and planning judgment for the decision-maker. And as Sullivan L.J. said in R. (on the application of The Friends of Hethel Ltd.) v South Norfolk District Council [2011] 1 W.L.R. 1216, “the question whether a proposed development affects, or would affect the setting of a listed building is very much a matter of planning judgment for the local planning authority” (paragraph 32 of the judgment).”

As McFarlane LJ had set out previously in the Williams case, “the circumstances in which the section 66(1) duty has to be performed for the setting of a listed building will vary with a number of factors – typically, “the nature, scale and siting of the development proposed, its proximity and likely visual relationship to the listed building, the architectural and historic characteristics of the listed building itself, local topography, and the presence of other features – both natural and man- made – in the surrounding landscape or townscape”, and possibly “other considerations too”, depending on “the particular facts and circumstances of the case in hand” (paragraph 53). To “lay down some universal principle for ascertaining the extent of the setting of a listed building” would be, I thought, “impossible”. But – again in the particular context of visual effects – I said that if “a proposed development is to affect the setting of a listed building there must be a distinct visual relationship of some kind between the two – a visual relationship which is more than remote or ephemeral, and which in some way bears on one’s experience of the listed building in its surrounding landscape or townscape” (paragraph 56).

This does not mean, however, that factors other than the visual and physical must be ignored when a decision-maker is considering the extent of a listed building’s setting. Generally, of course, the decision-maker will be concentrating on visual and physical considerations, as in Williams (see also, for example, the first instance judgment in R. (on the application of Miller) v North Yorkshire County Council [2009] EWHC 2172 (Admin), at paragraph 89). But it is clear from the relevant national policy and guidance to which I have referred, in particular the guidance in paragraph 18a-013-20140306 of the PPG, that the Government recognizes the potential relevance of other considerations – economic, social and historical. These other considerations may include, for example, “the historic relationship between places“.”

The judge drew out three points:

First, the section 66(1) duty, where it relates to the effect of a proposed development on the setting of a listed building, makes it necessary for the decision- maker to understand what that setting is – even if its extent is difficult or impossible to delineate exactly – and whether the site of the proposed development will be within it or in some way related to it.”

Secondly, though this is never a purely subjective exercise, none of the relevant policy, guidance and advice prescribes for all cases a single approach to identifying the extent of a listed building’s setting. Nor could it. In every case where that has to be done, the decision- maker must apply planning judgment to the particular facts and circumstances, having regard to relevant policy, guidance and advice. The facts and circumstances will differ from one case to the next.

Thirdly, the effect of a particular development on the setting of a listed building – where, when and how that effect is likely to be perceived, whether or not it will preserve the setting of the listed building, whether, under government policy in the NPPF, it will harm the “significance” of the listed building as a heritage asset, and how it bears on the planning balance – are all matters for the planning decision-maker, subject, of course, to the principle emphasized by this court in East Northamptonshire District Council v Secretary of State for Communities and Local Government [2015] 1 W.L.R. 45 (at paragraphs 26 to 29), Jones v Mordue [2016] 1 W.L.R. 2682 (at paragraphs 21 to 23), and Palmer (at paragraph 5), that “considerable importance and weight” must be given to the desirability of preserving the setting of a heritage asset. Unless there has been some clear error of law in the decision-maker’s approach, the court should not intervene (see Williams, at paragraph 72). For decisions on planning appeals, this kind of case is a good test of the principle stated by Lord Carnwath in Hopkins Homes Ltd. v Secretary of State for Communities and Local Government [2017] 1 W.L.R. 1865 (at paragraph 25) – that “the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly“.”

In CEG Land Promotions II Ltd v Secretary of State (Ouseley J, 18 July 2018), inspector Karen Ridge had dismissed an appeal in relation to a scheme for up to 175 dwellings and associated development on land adjoining Wendover in Buckinghamshire.

The challenge revolved around two issues:

⁃ Whether the inspector was correct to conclude that there would be “the irrevocable loss of part of a valued landscape” for the purposes of paragraph 109 of the NPPF (which sets out the principle that the planning system should protect and enhance valued landscapes) given that the appeal site itself was not “valued landscape” but rather formed part of a wider “valued landscape”

⁃ whether the inspector had double counted the effects on landscape in weighing up the considerations against grant of planning permission, by taking into taking into account breach of paragraph 109 separate from breach of relevant local plan policies in relation to landscape, together with related points as to whether paragraph 109 amounts to “specific policies” that “indicate that development should be restricted“, to be taken into account in the paragraph 14 “tilted balance”.

Ouseley J introduces consideration of the NPPF with a note of caution as to its status:

In relation to development control, despite some of its language, it is no more than a material consideration, to be taken into account in deciding planning applications under s70 of the Town and Country Planning Act 1990. It is a material consideration which may indicate that a decision should be made which does not accord with the development plan; s38(6) Planning and Compulsory Purchase Act 2004.

After a detailed analysis, Ouseley J found no evidence of “double-counting” harm:

There is a danger of over-analysing decision letters, with the risk that in doing so, error is found where none exists.”

He similarly found nothing wrong with the inspector’s “valued landscape” conclusion:

It would be […] bizarre to adopt a wholly artificial approach to landscape evaluation where, in most cases, a development site is but part of a wider landscape. In my judgment, the Inspector, in the case before me now, has analysed the issue very well and come to the entirely correct conclusion.”

Both judgments, together with the inspectors’ decision letters under challenge, would make good case studies for the current independent review chaired by Bridget Rosewell into the planning appeal inquiry process. Neither development proposal was particularly large but both led to relatively long inquiries. Against the context of unclear, multiple layers of policy and guidance and the predictable dissection by each of the main parties as to policy meaning and application, is there really any room for shortening the process without affecting its quality? Controversial question: Are the layers of abstraction, and the lonely task of sitting down to write a lengthy decision that is bullet-proof in its reasoning, necessary for a high quality process, or simply impeding it?

And regardless of the answer to that question, let us recall that only 2% of planning appeals proceed by way of inquiry and it should surely be at least as important that the Planning Inspectorate urgently reduces its timescales for processing appeals that are conducted by way of written representations or hearings, as well as by way of simpler (ie “non-bespoke”) inquiries, given the statistics set out its latest annual report (12 July 2018).

Simon Ricketts, 20 July 2018

Personal views, et cetera

Courts Interpret NPPF Paras 14, 133/134, 141 (But Couldn’t It Be Clearer In The First Place?)

The Government’s chief planner Steve Quartermain has confirmed this week that the revised NPPF will be published before the end of the year. To what extent will it reflect the proposed changes set out in the previous Government’s ‘response to consultation’ document that was published alongside the February 2017 housing white paper and to what extent will it take on board any changed political priorities since the June 2017 election or indeed various inherent uncertainties and ambiguities which have continued to occupy the courts?
Paragraph 14
I have previously blogged as to the Supreme Court’s ruling in Suffolk Coastal, which resolved (by way of a judgment of Solomon in which all parties, by operation of unexpected judicial reasoning, both won and lost) the question as to how the paragraph 14 presumption applies where there is no five year supply of housing land. 
The Court of Appeal in Barwood Strategic Land II LLP v East Staffordshire Borough Council (30 June 2017) has now resolved the question as to the presumption in favour of sustainable development applies in the mirror image position, where there is a five year supply and where the plan is not in other respects out of date. 
As in other matters, the NPPF is unclear on the meaning and application of the presumption in favour of sustainable development. Perhaps the presumption is oversold in the ministerial foreword: “Development that is sustainable should go ahead, without delay – a presumption in favour of sustainable development that is the basis for every plan, and every decision.
Paragraph 14 expresses the presumption as a “golden thread running through both plan-making and decision-taking“, before going on to set out what this means for plan making and decision making. For decision making it means:
” ◦ approving development proposals that accord with the development plan without delay; and

    * where the development plan is absent, silent or relevant policies are out-of-date, granting permission unless: 
– any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole; or

– specific policies in this Framework indicate development should be restricted.

The question that has exercised the courts in a series of cases is whether the presumption applies outside these specific instances, for example even where a scheme is contrary to an up to date plan. 

Lindblom LJ first sets out how judges should approach questions of policy interpretation, referring back to his first instance judgment in Bloor Homes East Midlands Ltd. v Secretary of State for Communities and Local Government (19 March 2014): 
“Planning policies are not statutory or contractual provisions and should not be construed as if they were. The proper interpretation of planning policy is ultimately a matter of law for the court. The application of relevant policy is for the decision-maker. But statements of policy are to be interpreted objectively by the court in accordance with the language used and in its proper context.”
He refers to his statement having been “underscored” by the Supreme Court in Suffolk Coastal where they set out that “the interpretation of policy will be suitable, in principle, for legal analysis – though only to a degree that depends on the context and content of the policy in question.”
Lindblom LJ followed the approach taken by Holgate J in Trustees of the Barker Mill Estates v Test Valley Borough Council (25 November 2016) in finding that is no freestanding presumption in favour of sustainable development outside para 14. 
Of course that is not to say that, as long as paragraph 14 is correctly interpreted, applicants cannot pray in aid other matters (factors where the development would accord with other policies in the NPPF) as material considerations, to overcome the presumption. It was a shame that (because in this case the judge was found to have misinterpreted paragraph 14) Lindblom LJ did not find it necessary expressly to put right some curious reasoning of the first instance judge, Green J, as to the operation of the statutory presumption in favour of the development plan set out in section 38(6) of the Planning and Compulsory Purchase Act 2004. In his judgment Green J tries to box in the exercise of a decision maker’s discretion with odd passages such as this:
Insofar therefore as paragraph [14] permits of a residual discretion it must be recognised that the outcome arrived at by the operation of paragraph [14] should carry considerable gravitational pull. It should yield only as an exception to the norm where there exists objective and substantial reasons which can be readily demonstrated to a high degree of probative value and which takes into account the particular reasons why a development has been found to collide with the Local Plan. I should add however (see paragraph [54] below) that I express no concluded view on exactly how exceptional “exceptional” actually is; this being an issue better explored in a case where that issue truly arises.”

Whilst not specifically tackling this approach, Lindblom LJ pointedly follows the Supreme Court in Suffolk Coastal and Holgate J in Barker Mill with a warning against excessive legalism in matters of policy interpretation:

“I would, however, stress the need for the court to adopt, if it can, a simple approach in cases such as this. Excessive legalism has no place in the planning system, or in proceedings before the Planning Court, or in subsequent appeals to this court. The court should always resist over-complication of concepts that are basically simple. Planning decision-making is far from being a mechanical, or quasi-mathematical activity. It is essentially a flexible process, not rigid or formulaic. It involves, largely, an exercise of planning judgment, in which the decision-maker must understand relevant national and local policy correctly and apply it lawfully to the particular facts and circumstances of the case in hand, in accordance with the requirements of the statutory scheme. The duties imposed by section 70(2) of the 1990 Act and section 38(6) of the 2004 Act leave with the decision-maker a wide discretion. The making of a planning decision is, therefore, quite different from the adjudication by a court on an issue of law (see paragraphs 8 to 14, 22 and 35 above). I would endorse, and emphasize, the observations to the same effect made by Holgate J. in paragraphs 140 to 143 of his judgment in Trustees of the Barker Mill Estates.

Paragraphs 133/134

What is the extent of the setting of a listed building for the purposes of assessment of harm?

In Steer v Secretary of State (Lang J, 22 June 2017) the main issue was treatment by an appeal inspector of the impact that proposals in Allestree, Derbyshire, for residential development and associated development would have on the landscape character of the area and heritage assets, namely Kedleston Hall (a grade 1 listed building), Kedleston Park (a grade 1 listed park), Kedleston Conservation Area, Kedleston Hotel and Quarndon Conservation Area. The Council, Historic England, the National Trust and others had opposed the appeals on the basis that whilst the proposed development was at some distance from, and would not be visible from the assets, there were historic and social/economic connections between the areas which meant that the appeal site was properly to be regarded as within the setting of the listed hall and park. 
The definition of ‘setting’ in the glossary to the NPPF is unspecific: “The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve.”
Lang J concluded that the inspector adopted an unlawfully narrow approach when determining whether the appeal site was part of the setting of Kedleston Hall and misdirected himself that a visual connection was necessary or determinative, in addition to the evidence of a historical connection.
The judge found that the inspector’s “focus was upon identifying a visual connection, and assessing the proposal’s impact upon it. The historic social and economic connections were set to one side in this exercise.”
“The evidence was that the appeal site was part of the setting of the Hall because it had formed part of the estate, managed historically as an economic and social entity, and it remained in its historic agricultural use, with hedges and mature trees characterising the field boundaries. From the Hall and the Park, the surrounding rural context was important in preserving a sense of a parkland landscape at the centre of a managed rural estate, rather than in a suburban context. The site was on the primary visitor route to the Hall and Park and so visitors would experience the historical narrative, and the concentric influence of the Hall on its landscape, as they traversed the agricultural estate, then entered the enclosed, designed park and gardens, enjoying the drama of anticipation as a great English country house was revealed to them.
In reaching her conclusion it is interesting to see the reliance that Lang J places on Historic England’s good practice guide on the setting of heritage assets. 

Paragraph 141

Hayes v City of York Council (Kerr J, 9 June 2017) concerned a planning permission granted by York Council for the construction of a visitor centre at the base of the motte at Clifford’s Tower in York and the installation of a new staircase and tower floor, with walkways, balustrading, a roof deck with a café and other restoration works. A car park next to the site is to be removed. The project includes archaeological works and disturbance to buried artefacts. 

The case concerned the meaning of paragraph 141 of the NPPF, which states that where heritage assets are lost or partly lost, local planning authorities and developers should make archaeological records publicly available, but “the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted”. 
The challenge was brought by a member of the council. One of his complaints was that the council had taken account of a legally irrelevant factor, namely the ability to record evidence of the past.
Kerr J reviewed the more detailed national heritage policies that preceded the NPPF and the way in which the precise wording changed and finally was summarised in, and replaced by, the NPPF:

The codification exercise which created the NPPF delivered commendable brevity, at the price (well worth paying) of replacing detailed exposition with general policy statements that can be Delphic, as in this instance.”

He turned to paragraph 141:
“The difficulty arises from the wording in the last sentence: “the ability to record evidence shall not be a factor in deciding …”. Those words do express, as a matter of language, what appears in conventional public law parlance to be the exclusion of a material consideration. Read literally, those words say not only that the ability to record evidence cannot be the sole justification for the harm; it cannot even contribute to the justification for the harm.”
Kerr J had real difficulty with this literal reading:
“Why should the preservation of information about an asset not be weighed in the balance along with other factors in favour of a development that harms a heritage asset? The harm is attenuated by the preservation of information and making it publicly available, which enhances and better reveals the significance of the harmed asset and hence its positive contribution to the locality and to our heritage.”

“This difficulty can only be overcome, in my judgment, once it is recognised that a non sequitur crept in when PPS 5 replaced PPS 16, and then found its way into the language of NPPF paragraph 141. In my judgment, the last sentence of that paragraph only makes good sense if interpreted so that the words “should not be a factor” are taken to bear the meaning “should not be a decisive factor”, in deciding whether the harm to the asset should be permitted.

I appreciate that, even allowing for the fact that the NPPF is a policy document and not a statutory provision, this interpretation stands uneasily with the actual words of the last sentence of the paragraph. But unless the paragraph is interpreted in that way, it would be very difficult to apply in a coherent manner.”

Kerr J rejected paragraph 141’s “literal interpretation in favour of a sensible and liberal construction of the paragraph in its proper historical context“.
Wider thoughts

So, three recent examples of the way in which the courts embark upon interpreting policy (whether national or local) and its application, consistent of course with the Supreme Court’s approach in Tesco Stores Limited v Dundee City Council (21 March 2012) that “policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. 

That is not to say that such statements should be construed as if they were statutory or contractual provisions. Although a development plan has a legal status and legal effects, it is not analogous in its nature or purpose to a statute or a contract. As has often been observed, development plans are full of broad statements of policy, many of which may be mutually irreconcilable, so that in a particular case one must give way to another. In addition, many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 per Lord Hoffmann). Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean.”
Despite the reference to interpreting policies “objectively”, it will be seen that the courts will draw upon context, previous gestations of guidance and extraneous guidance documents to assist them. Sometimes, as in Hayes, the strict meaning of words will be stretched in a way that potentially leads to uncertainty. 
A broader approach to the interpretation of development consents by reference to extraneous documents than has traditionally been the case was signalled by the Supreme Court in Trump International Golf Club Scotland Limited v the Scottish Ministers (16 December 2015):
“When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. Whether the court may also look at other documents that are connected with the application for the consent or are referred to in the consent will depend on the circumstances of the case, in particular the wording of the document that it is interpreting. Other documents may be relevant if they are incorporated into the consent by reference (as in condition 7 set out in para 38 below) or there is an ambiguity in the consent, which can be resolved, for example, by considering the application for consent.”
To my mind, this all takes us into dangerous territory. Isn’t the public, or a purchaser of a development site, entitled to take words as meaning what they say. The courts are having to step in and complete the gaps left by inadequate drafting. Whilst its focus is a long way away from planning law, Lord Sumption’s speech The Supreme Court and the Interpretation of Contracts given at Keble College Oxford on 8 May 2017 is a thought-provoking read. One of the concluding passages:
“It is I think time to reassert the primacy of language in the interpretation of contracts. It is true that language is a flexible instrument. But let us not overstate its flexibility. Language, properly used, should speak for itself and it usually does. The more precise the words used and the more elaborate the drafting, the less likely it is that the surrounding circumstances will add anything useful. I do not therefore accept that the flexibility of language is a proper basis for treating the surrounding circumstances as an independent source from which to discover the parties’ objective intentions.
I agree! Let’s aspire to use words precisely, whether in the drafting of policies, permissions or indeed agreements, rather than relying on the courts as a slow, expensive and unpredictable backstop. And given their broad effect, surely policies ought to be written even more carefully than contracts?
Simon Ricketts, 8 July 2017
Personal views, et cetera
Image by Rob Cowan.

Trees In Court: A Festive Special

Trees stir emotions. Dwarfing us in their scale and their natural lifespan, they are integral to, define and inspire our built and natural landscapes. Their leaves connect us with the changing seasons. But they can be inconveniences: their roots, their debris, sometimes even their very presence.

The £1m lime tree
Who would spend £1m litigating over problems alleged to arise from a single lime tree in a suburban London Street? This is a recent piece from The Lawyer. HHJ Edward Bailey’s 29 July 2016 county court judgment  refusing the owner of the tree (a subsidiary of Grainger Trust plc) access over the neighbouring lawyer’s property (because the answer is of course a lawyer) under section 1 of the Access to Neighbouring Land Act 1992, to prune it, runs to 27 pages. All of the papers relating to the litigation, including transcripts and evidence, are at www.disputewithgrainger.com, a website created for the purpose by the neighbour. A £100,000 interim payment on account of his costs was due to be paid by Grainger yesterday. 
Sets the bar pretty high for future neighbour disputes it must be said. 
Trees & PFI
Where does the line of least resistance lie where a local authority’s PFI contractor faces increased highways maintenance costs due to the presence of trees?
Sheffield City Council, abetted by its contractor Amey, has been engaging in a systematic programme of tree felling and replacement along its highways. 

A somewhat speculative challenge was brought to the process by local residents in R (Dillner) v Sheffield City Council  (Gilbart J, 27 April 2016), following an interim injunction that was granted at short notice.

Gilbart J is in lyrical form, starting his judgment with the following background:

“Sheffield is one of the great cities of Northern England. Parts of it lie within the Peak District, which abuts its western aspect. It lies where several rivers and streams (the Rivers Don, Sheaf, Loxley, Rivelin, and Porter, Meers and Owler Brooks) flow eastwards off the Pennines. Many of its roads and streets (and especially in the suburbs running westwards and south-westwards from the City Centre) have trees planted along them, in the verges or other land within the highway. Like many of the great cities of the north of England, it suffered during the deindustrialisation of the late 20th Century and the financial stringency endured by local authorities over the last 30 years or more. The upkeep of its roads and streets were not immune to the testing climate that created for local authorities, and a backlog of maintenance developed.

It is in the nature of highway trees which are well established that they are intrinsically attractive (save in unusual cases), but also that, if allowed to grow unchecked, they cause problems to the proper maintenance of the roads, verges and pavements in which they sit or which they abut. Thus, the loss of a tree may be seen as regrettable in visual terms, but it may be required if the highway is to be kept in repair. The background to this case concerns the way in which Sheffield City Council (“SCC”) has sought to deal with the backlog of repairs, and in particular of how it has dealt with the presence of trees on its roads and streets”

The grounds of challenge followed familiar territory: inadequate consultation; the need for environmental impact assessment, and engagement of the decision maker’s duty to pay special attention to the desirability of preserving and enhancing the character of conservation areas.

The grounds were rejected:

– “provided the felling or lopping of the tree is carried out in pursuance of [a highways authority’s duty to maintain (and thus repair) [the highway], there is no requirement for consent to fell the tree “. 

– “while there is a requirement in those domestic Regulations which apply the EU Directives for environmental assessment in the case of trees, it only applies to projects of deforestation on sites of at least 1 hectare in size (0.5 ha in a National Park); see Environmental Impact Assessment (Forestry) (England and Wales) Regulations 1999 Schedule 2 paragraph 2. This project cannot be called deforestation”

– It “follows from the above that: 

(a)  the execution of works in the highway to repair it does not constitute development and therefore requires no planning permission; 


(b)  the removal or lopping of trees requires no planning permission in any event; 


(c)  the removal or lopping of highway trees in a Conservation Area requires no consent under s 211 TCPA 1990 if carried out in pursuance of the duty of the highway authority to maintain the highway, keep it in repair, and free of sources of danger or causes of obstruction; 


(d)  there is therefore no question of a development consent being required for the works; 


(e)  no planning function arises relevant to s 72 LBCAA 1990; 


(f)  at most, the fact that a tree could contribute to the appearance and character of a Conservation Area could be a material consideration. There is no evidence at all that Amey and SCC failed to take it into account.

Gilbart J’s closing comments:

“I repeat that nothing in this Judgment is to be read as criticising the residents of Sheffield for seeking to protect the trees in their streets and roads, whose presence many of them appreciate so much. But as with many matters, such an understandable and natural desire must be tempered by acceptance of the important duties cast on the highway authority to maintain those roads and streets in good repair. It is unfortunate in the extreme that those advising the Claimant and others who object have failed to address both sides of the argument, and even more so that the claim was advanced, and the injunction sought, without any proper analysis on their behalf of the statutory and legal context. It may be that those who will be disappointed by the terms of this Judgment will want to see a different legislative regime in place. That is a matter for Parliament, and not for this Court.
So will Parliament now conduct a root and branch review?
Andrew Lainton’s February 2016 blog post, written when the interim injunction was granted, is, as always, worth reading.
Sycamore vs the tree of heaven
In determining in the Sheffield case that the decision by an authority to fell a tree does not engage the conservation area special duty in section 72(1) of the Listed Buildings and Conservation Areas Act 1990, Gilbart J had cited R (McClennan) v London Borough of Lambeth  (HH Judge Sycamore, 16 June 2014), which concerned Lambeth’s proposals to fell a tree of heaven at the rear of the grade II listed Durning Library building in Kennington Lane, within Kennington conservation area – with the objective, said Lambeth, of preventing structural damage to the listed building. Whilst section 72(1) wasn’t engaged, the judge held that Lambeth’s cabinet had failed to take into account a material consideration, namely that the tree was situated in the conservation area. The decision was quashed. Lambeth subsequently carried out public consultation but I think I know where the tree has gone.

Forest Hill Park, Labour In Vain Road
is the address in Wrotham, Kent of a caravan site which has been the subject of a TPO saga. Following the felling of various protected trees, enforcement proceedings were brought and court action was settled on the basis of an undertaking given by the defendants to cease the felling. The felling resumed, the council started proceedings for contempt of court and the defendants applied to release the undertaking, on the basis that they could fell the trees in reliance on a 1983 planning permission for “development … and continuation of use of land as caravan site”. The question that came to the Court of Appeal in Barney-Smith v Tonbridge and Malling Borough Council  (Court of Appeal, 9 December 2016) was whether the exemption from the need for consent, where felling was “immediately required for the purpose of carrying out development authorised by” a planning permission, was satisfied. The court, not unsurprisingly, held that the answer was no – even though the planning permission could have been implemented in such a way as would have necessitated the tree felling, it could be implemented in a manner which left the trees untouched and therefore the exemption did not apply.
The Hampstead Heath dam

R (Heath & Hampstead Society) v City of London  (Lang J, 28 November 2014) concerned the Hampstead Heath dam project, the decision by the City of London to approve and proceed with proposals for reservoir safety works to the ponds on Hampstead Heath. The claimant regarded the proposed works which would entail the loss of over 80 trees, as “damaging, unnecessary and over-engineered”. But Lang J held that the only legal consideration under the Reservoirs Act 1975 is public safety and that the works would not be in breach of the restrictions in the Hampstead Heath Act 1871 which requires that the City of London shall forever keep the Heath “unbuilt on” as they would fall within exceptions for drainage and improvement.  

Festive Litigation
Whatever your religion or non religion, enjoy the break (if I don’t blog again in the meantime). In the US, the constitutional status of the Christmas tree reached the US Supreme Court in Court County of Allegheny v. American Civil Liberties Union (3 July 1989). The combined display outside local authority offices of a Christmas tree, Menorah and sign saluting liberty was sufficiently secular so as not to offend the establishment clause in the First Amendment of the constitution, as opposed to a nativity scene inside a court building, which was held to be unlawful. What would the Daily Mail have to say about any UK Supreme Court justices who made such a ruling one wonders? I gather that since then the US Supreme Court has remained decidedly unfestive – according to one US commentator it has since declined to intervene in cases concerning: a Menorah and Christmas nativity scene combined with Frosty the Snowman and Santa Claus; an attempt to have Christmas decertified as a federal holiday, and efforts to allow Christmas music to be played over the intercom at public schools.


What’s a lawyer to do? The High Court rises on 21 December and the new term starts on 11 January. Oh well, put another log on the fire. 
Simon Ricketts 17.12.16
Personal views, et cetera

Heritage Law Update: What Goes Around Comes Around?

A brief update on what has been happening in heritage law over recent months. 
The section 66(1) & 72(1) tests in the Town and Country Planning (Listed Buildings and Conservation Areas) Act 1990

First, aptly, some old news. 

Section 66(1) requires decision-makers, in “considering whether to grant planning permission for development which affects a listed building or its setting” 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 72(1) requires decision-makers with respect to any buildings or other land in a conservation area to pay “special attention…to the desirability of preserving or enhancing the character of that area”.

The NPPF  has advice on heritage decision-making at paragraphs 132 to 135. 

Until the Court of Appeal’s welcome 3 December 2015 ruling in Mordue  we planning lawyers were getting in a right pickle. As a result of Sullivan LJ’s Court of Appeal judgment in Barnwell  and Lindblom J (as he then was) in Forge Field  the law appeared to be that (despite any reference to “harm” in the legislation itself and indeed the expression not being defined in the NPPF) decisions were liable to be quashed if the decision maker had not articulated that it had 

– considered whether substantial or less than substantial harm was likely to arise to a listed building or setting of a listed building or to the character of a conservation area

– in the event of any finding of harm, balanced any harm against any counterveiling planning benefits, giving “considerable importance and weight” to the finding of harm (caselaw relied on by the Court of Appeal in Barnwell)

– in the event of any finding of substantial harm, taken into account the NPPF advice that consent should be refused “unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss” or at least one of four specified criteria are met (para 133, NPPF).  

– in the event of any finding of less than substantial harm, given “considerable importance and weight” to that finding (a “strong presumption against planning permission being granted” (Lindblom J in Forge Field), giving greater weight to other considerations, weighing “the harm against the public benefits of the proposal, including securing its optimum viable use (para 134, NPPF).

All of this is still good advice but the risk of a decision being quashed simply because of inadequate incantation of all of these tests is now reduced. The Court of Appeal in Mordue helpfully restored some sanity (albeit with a point deducted for using the word “fasciculus”):

“Paragraph 134 of the NPPF appears as part of a fasciculus of paragraphs, set out above, which lay down an approach which corresponds with the duty in section 66(1). Generally, a decision-maker who works through those paragraphs in accordance with their terms will have complied with the section 66(1) duty. When an expert planning inspector refers to a paragraph within that grouping of provisions (as the Inspector referred to paragraph 134 of the NPPF in the Decision Letter in this case) then – absent some positive contrary indication in other parts of the text of his reasons – the appropriate inference is that he has taken properly into account all those provisions, not that he has forgotten about all the other paragraphs apart from the specific one he has mentioned.

Explaining away Barnwell, the Court of Appeal put it like this:
“Sullivan LJ’s comments….were made in the context of a decision letter which positively gave the impression that the inspector had not given the requisite considerable weight to the desirability of preserving the setting of the relevant listed buildings, where as a result it would have required a positive statement by the inspector referring to the proper test under section 66(1) to dispel that impression”.
In the wake of Mordue we have since had:

R (Blackpool Borough Council) v Secretary of State  9 May 2016, where Kerr J found on the facts that an inspector had failed to apply the NPPF tests in the case of proposed major works that the inspector concluded would cause “little harm” to the special architectural or historic interest in a listed synagogue, including there being, as in Barnwell, a series of signposts in the decision letter that led to the judge’s conclusion. 

Boden v East Staffordshire District Council  27 May 2016, where Coulson J found on the facts that errors in articulating the NOPF test (including the common one of describing harm as “minor” without explaining where that sits on the harm/substantial/less than substantial spectrum) did not vitiate the council’s decision. 

So we still need to be alert for signs that the right tests haven’t been applied but there is again room for common sense.

No 1 Poultry


Barnwell, Forge Field and Mordue all refer back in their discussion to Save Britain’s Heritage v Number 1 Poultry Limited [1991] 1 WLR 153, HL, the leading case on the standard of reasons to be expected where a planning decision is taken granting permission for development which has a detrimental impact upon listed buildings. The then Secretary of State had overturned an inspector and approved Peter Palumbo’s redevelopment scheme designed by James Stirling which entailed the demolition of eight grade II listed buildings (I remember them well, just across the street from the Cheapside branch of Our Price records). A challenge by Save Britain’s Heritage was rejected by the House of Lords: any inadequacies in the Secretary of State’s reasoning were not such as to substantially prejudice potential objectors in that they did not give rise to substantial doubt that the decision had been made on relevant grounds – a high hurdle for an objector to clear. 

The Stirling scheme was completed in 1997. Scroll forward to 2016 and the new owner of the building is wishing to make some changes to its lower levels. In response, Lord Palumbo, the Twentieth Century Society and others have been lobbying for the 1997 building to be listed. Historic England recommended a grade II* listing last year which was rejected by Secretary of State for Culture, Media and Sport John Whittingdale in December 2015, relying on the Government’s policy that buildings under thirty years old should normally only be listed if they are of “outstanding quality and under threat”. The Twentieth Century Society appealed and to everyone’s surprise Whittingdale indicated last month that the decision is to be reviewed, acknowledging that it may be appropriate to list a building which is under thirty years old if it is of special historic or architectural importance even if it does not meet the “outstanding quality and under threat” tests. The decision is now in the in-tray of his successor Karen Bradley. 

In the meantime, planning permission for amendments to the ground floor of the building was resolved to be approved in March by the Corporation of London. 

We await the Bradley’s decision, as no doubt do the owners of other high profile modern buildings. And, if the decision is not to list, giving five years’ automatic listing immunity, the failed challenge of the decision not to list Pimlico School, brought by its architect John Bancroft (2004 EWHC 1822), suggests the likely outcome of any judicial review. 

World Heritage Sites


UNESCO’s World Heritage Committee lists places of special cultural or physical significance. One of those is the Liverpool – Maritime Mercantile City World Heritage Site.

25 years after the No 1 Poultry case, Save Britain’s Heritage is of course alive and kicking. On 2 August 2016 the Court of Appeal in Save Britain’s Heritage v Liverpool City Council  rejected their challenge to planning permission for a scheme in Lime Street, Liverpool. Save argued that the Council had breached the World Heritage Committee’s operational guidelines  as well as the Government’s Planning Practice Guidance  which require a council to consult with DCMS and via DCMS with the World Heritage Committee in the case of any proposal which may affect the “outstanding universal heritage” of a world heritage site. Save’s position was that the duty did not just apply to proposals that may have an adverse effect, but proposals that may have any effect, negative, neutral or indeed positive. Lindblom LJ disagreed: the proper interpretation could only be “adverse effect”. 

This is of course not the only controversial issue facing the Council in relation to its world heritage site status. As is recorded in the judgment, in view of its “serious concern at the potential threat of the proposed development of Liverpool Waters on the Outstanding Universal Value of the property”, the huge scheme by Peel Holdings, the World Heritage Committee in 2012 decided  to inscribe the site on its List of World Heritage in Danger.

By way of international perspective on the focus that world heritage site status can bring to issues that go well beyond issues of architecture and built heritage a 25 July 2016 Eco-Business piece describes the impacts of climate change and fossil fuel emissions of sites such as the Great Barrier Reef and a 26 July 2016 article in the Straits Times  describes the pressures faced by China’s sites. 

Failure to consult

Finally, back to domestic law – the redevelopment of a disused bowling green in Bexhill-on-sea for a sheltered housing development. The Court of Appeal in R (Loader) v Rother District Council  28 July 2016 quashed the planning permission for the scheme, which would adversely the setting of listed buildings. The Victorian Society had objected to a previous scheme but were recorded as having been consulted and not objected to the scheme under challenge. The reality was that officers knew that their attempts to contact the Society had failed. The court held that the summary in the report of the Society’s position was seriously misleading: “In the context of the duty in section 66(1) of the Listed Buildings Act, the committee was misinformed on the consultation of a national amenity society, which had been an objector to a similar proposal, and whose views on this application the council had chosen to seek and might have made a difference to its decision”. 

So,
– successive waves of case law on the reasoning needed before allowing harm to be caused to a listed building or conservation area

– radical architects and brave developers, who then try to have their developments listed to prevent anyone else being radical or brave

– international but often powerless, principles of heritage protection versus the simple, practical protections (demonstrated by the Court of Appeal in Loader) of English administrative law…

Simon Ricketts

Personal views, et cetera