Garner & Ors v Elmbridge Borough Council & Ors

This is an appeal against the order dated 31 January 2011 of Ouseley J dismissing the appellant's application for judicial review of the respondent's grant of planning permission on 16 June 2009 for the comprehensive redevelopment of land at Hampton Court railway station including the Jolly Boatman site beside the southern bank of the River Thames. Hampton Court Palace and its park ("the Palace"), a scheduled ancient monument of international significance and a grade I listed building lies on the opposite bank of the river.

Before the judge the planning permission was challenged on three grounds: that the respondent had failed in its duty to have special regard to the desirability of preserving the setting of the Palace; that it had failed lawfully to apply the sequential tests for development in a flood plain; and that the summary reasons given for the grant of planning permission were inadequate. The judge rejected all three grounds. Permission to appeal was granted on the first and third grounds, which I shall refer to as the setting ground and the reasons ground respectively.

On behalf of the appellant Mr Drabble QC accepts that the judge correctly set out the statutory and policy framework for the setting of a listed building in paragraphs 6 to 10 of the judgment, which is reported at [2011] EWHC 86 (Admin). Section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the 1990 Act ") imposes a:

Subsection (1) provides:

In South Lakeland District Council v The Secretary of State for the Environment [1992] AC 141 the House of Lords considered Section 277(8) of the Town and Country Planning Act 1971, which provided:

The House of Lords endorsed the conclusion of Mann LJ in the Court of Appeal in that case that:

It is common ground that the same approach should be adopted to the desirability of preserving a listed building or its setting when applying Section 66(1) of the 1990 Act. A development which leaves the setting of the listed building unharmed will preserve that setting. Having cited an earlier passage on page 146 between letters E to G from the speech of Lord Bridge, Ouseley J summarised the position as follows in paragraph 8 of the judgment :

Ouseley J noted that (see paragraph 11 of the judgment) that it was common ground that the duty imposed by section 66(1) was not mentioned in the planning officer's report of the extraordinary meeting of the council on 18 December 2008 ("the report") and furthermore that the report did not contain the statutory language "have special regard to the desirability of preserving … the setting of the Palace". However, it was also common ground before the judge and it is common ground in this court that the mere failure to recite the statutory duty is not fatal to the lawfulness of a decision to grant planning permission provided the duty has actually been performed by the local planning authority. The question is not whether a local planning authority says that it has had special regard to the desirability of preserving the setting of a listed building but whether it did in fact have special regard to the desirability of preserving the setting of the listed building in question when deciding whether or not to grant planning permission.

That was a question of fact for the judge to decide. After a meticulous and comprehensive review of the planning history in paragraphs 14 to 66 of the judgment Ouseley J said in paragraph 67 that he was :

While I would accept that we in this court are in as good a position as the judge was to form our own view on this factual issue because the judge was considering the matter on the basis of documents that are now before this court and did not hear any oral evidence, it is significant in my view that Mr Drabble made no criticism of the judge's account of the planning history in paragraphs 14 to 66 of the judgment. In particular he did not submit that there was any relevant part of the planning history which might have supported the appellant's proposition that the respondent did not in fact comply with the section 66(1) duty to which the judge had failed to refer.

I therefore adopt and do not repeat the planning history leading up to the grant of planning permission, which is comprehensively set out in paragraphs 14 to 66 of the judgment.

In the light of that planning history Ouseley J set out his "Conclusions on setting" in paragraphs 67 to 81 of the judgment. It is unnecessary to repeat Ouseley J's careful analysis of the conclusions to be drawn from the planning history because Mr Drabble criticised the analysis which left Ouseley J "in no doubt" in only one respect, that the judge had erred in his conclusion that the report had not misinterpreted English Heritage's response to conservation.

There were two redevelopment proposals for the site, referred to as the “boathouse scheme” and the “classical scheme” respectively. Planning permission for the former was refused. Planning permission for the latter was granted and is the subject of these proceedings. Before the judge it was submitted that the report had misinterpreted English Heritage's view as being that whereas there would be harm to the setting of the Palace if the boathouse scheme was permitted, there would be no such harm if the classical scheme was permitted, when in fact English Heritage's view was that both schemes would be harmful to the setting of the Palace, albeit that the classical scheme would be less harmful than the boathouse scheme. Ouseley J concluded that the report did not misrepresent English Heritage's views because in its responses to consultation English Heritage was not saying that the classical scheme would harm the setting of the Palace: see paragraphs 76 to 78 of the judgment.

Subject to this criticism, which I will deal with below, I too am left in no doubt that the desirability of preserving the setting of the Palace was a consideration to which special regard was paid by the respondent, and it was not treated as though it was just another material consideration. The appellant's submission that special regard was not paid to the desirability of preserving the setting of the Palace is wholly unrealistic, because there was no issue that the setting of the Palace should be preserved. All of the relevant policies including those in the brief and the saved policies in the local plan, required the setting of the Palace to be preserved. Although the two applications for planning permission had generated a substantial number of representations both against and in favour of granting planning permission, nobody was suggesting, and certainly the report did not suggest, that it would be acceptable to grant planning permission for a redevelopment scheme which would harm the setting of the Palace because that harm would be outweighed by some other planning advantage. The desirability of preserving the setting of the Palace was, perhaps unsurprisingly, not in dispute at all. The classical scheme was put forward by the applicant for planning permission on the basis that it would not harm the setting of the Palace, not upon the basis that some harm to the setting should be accepted because it was outweighed by some other planning advantage.

The dispute was between those such as the Commission for Architecture and the Built Environment "CABE" who considered that the classical scheme would not harm the setting of the Palace and those such as Historic Royal Palaces "HRP" who contended that it would. Mr Drabble did not challenge the judge's conclusion that the report had recommended that planning permission be granted on the basis that the classical scheme would not harm the setting of the Palace. Thus the only issue in respect of the setting ground of appeal was whether the conclusion in the report that the classical scheme would not be harmful to the setting of the Palace was based on a misunderstanding of English Heritage's view. There is no doubt that the report did attach considerable significance to English Heritage's view. Was English Heritage's view misunderstood?

English Heritage's responses to consultation are contained in two letters dated 20 December 2007 and 6 August 2008. The 2007 letter dealt with the boathouse scheme and the 2008 letter dealt with the classical scheme and the changes to the boathouse scheme. A hotel was included in both schemes on that part of the site which is closest to the River Thames, the site of the former Jolly Boatman Restaurant. In the boathouse scheme the hotel was designed by Allies and Morrison. In the classical scheme the hotel was designed by Quinlan and Francis Terry Associates. Although the judge set out most of the two letters in paragraphs 35 to 38 and 40 to 42 of the judgment, the letters must be read as a whole and it is therefore helpful in view of the importance of this issue to set out the full text of both letters omitting the formal headings:

Mr Drabble drew attention to the objection in the 2007 letter to the proposed hotel, which English Heritage had said was "entirely inappropriate with this planning sensitive location", and to the fact that English Heritage had said that :

Thus, he submitted that there was an in-principle objection to the height, scale, bulk and massing of the hotel proposed in the boathouse scheme which was exacerbated by its detailed design. Since the height scale bulk and massing of the hotel in the classical scheme remained the same, and only the design was altered, it follows, says Mr Drabble, that English Heritage must have had an in principle objection in 2008 to the classical scheme. He referred to the fact that in the 2008 letter English Heritage had referred back to its 2007 letter "which sets out our views on the principle of redevelopment site" and to the passage in the 2008 letter in which English Heritage made it plain that its views were being expressed on a contingent basis:

He also referred to the passage in which English Heritage had said that if the hotel in the classical scheme was built it "would have an infinitely less damaging impact upon views to and from the Palace … than the original proposal" [emphasis added]

These passages demonstrated in his submission that English Heritage still considered that there would be some, albeit less, harm to the setting of the Palace.

As an exercise in logic that conclusion is impeccable upon the assumption that English Heritage in the 2008 letter was simply addressing the design of the hotel and that its work on the design with Gladedale Group Limited and Francis Terry in the evolution of the redesigned hotel had not caused it to alter its perception of the likely impact of the hotel in the classical scheme in terms of its height, bulk, scale and massing. That is to say that the alterations to the design were not capable of having any impact on the perceived height, bulk, scale and mass of the proposed hotel.

In my judgment that assumption does not acknowledge the art of the architect, and is unrealistic for the following reasons. First, I accept the submission of Mr Bird QC on behalf of the respondent that the issue of principle to which English Heritage's views were said to be subject was not the impact of the height, bulk et cetera of the hotel, but English Heritage's long held view that it would be desirable to lay out the Jolly Boatman part of the site as part of a landscaped public park for open space beside the Thames because that would positively enhance the setting of the Palace. English Heritage was not saying that if that was not feasible then any building on the Jolly Boatman part of the site would necessarily harm the setting of the Palace.

Secondly, the letter must be read as a whole and English Heritage's statements that the proposals for the hotel in the classical scheme respected its advice in "Conservation Principles, Policies and Guidance" and are based on a "proper understanding of the significance of the place" and that the design is "appropriate to its immediate and wider setting" and the earlier statement in its letter that the

Mr Drabble pointed out that paragraph 143 of English Heritage's Conservation Principles, Policies and Guidance, to which reference is made in the 2008 letter, is concerned with design. However, the guidance is replete with references for the need for good design to understand and not materially harm "the values of the place".

Thirdly, the letter must be read in context. The letter is a response to a consultation by the local planning authority on a planning application. English Heritage was well aware that the respondent had to decide whether to grant or refuse planning permission for the classical scheme. The letter was intended to be of practical assistance to the respondent in reaching a decision on that issue. It should not be construed as though it was an examination question in a logic paper in a philosophy course. If in response to an invitation to make representations as to whether or not planning permission should be granted for a proposed development, English Heritage says that the proposal " would have an infinitely less damaging impact upon views to and from the Palace …", it is unrealistic to construe that advice in that context as though English Heritage was saying "It will have an infinitely less damaging impact on the views to and from the Palace but there would still be some harm to the setting of the Palace to which we object”.

In context the response is to be understood as English Heritage telling the local planning authority that because the proposal would have "an infinitely less damaging impact upon views to and from the Palace" English Heritage did not object to the grant of planning permission on this ground. The question was not whether there was the theoretical possibility of a scintilla of residual harm but whether there would be any harm that would be significant in the sense that it might in English Heritage's view justify a refusal of planning permission bearing in mind the very great importance that English Heritage was attaching to the need to preserve the setting of the Palace. The letter does not suggest that there would be such harm in English Heritage's view.

Fourthly, the context in which the letter was written is important in another respect because English Heritage was not simply giving informal advice at an early stage of discussions in the planning application process. It was responding to a formal consultation for the purpose of assisting the respondent to decide whether to grant planning permission for either or both of the redevelopment schemes. In this formal context the contrast between English Heritage's views in respect of the boathouse scheme and its views in respect of the classical scheme could not be more marked. As to the former, it said:

Given the very great importance English Heritage attached to the need to preserve the setting of the Palace it is inconceivable that it would not have objected to the grant of planning permission for the classical scheme if it had thought that that scheme would also harm the setting of the Palace. If it had objected to the grant of planning permission for the classical scheme on that ground it would surely have said so, and in forthright terms as it did in respect of the boathouse scheme. Moreover it would have reinforced its views with a threat, however politely expressed, to request the Secretary of State to call in the application if the respondent was minded to approve it. I do not accept Mr Drabble's submission that English Heritage might have been reluctant to press for a call in because of the resource implications of doing so or for some other unspecified reason. Not only is there no evidence whatsoever to support such a suggestion, as Ms Cook pointed out on behalf of the first interested party English Heritage had threatened to ask for the boathouse scheme to be called in, and at the meeting on 28 October 2008 the North Area Planning Subcommittee of the respondent had resolved to refuse planning permission for the boathouse scheme upon the basis that it would harm the setting of the Palace, but it had recommended that the classical scheme be approved. There was thus ample opportunity between then and the meeting of the full council on 18 December 2008 for English Heritage to protest and to say that its views as to the acceptability of the classical scheme had been misunderstood by the respondent.

In answer to a question from Toulson LJ, Mr Drabble accepted that the members could rationally have concluded that English Heritage was not objecting to the grant of planning permission for the classical scheme but he submitted that they could not rationally have concluded that English Heritage was satisfied that the classical scheme would not harm the setting of the Palace. Again it must be remembered that the members were deciding a planning application. They were not construing a statutory instrument in the High Court. They were all very well aware that English Heritage had over a number of years attached the greatest importance to the need to preserve the setting of the Palace. What possible justification would English Heritage have had for not objecting to a grant of planning permission for the classical scheme if it had believed that that scheme would harm the setting of the Palace? No justification appears in the letter. Since harm to the setting of the Palace had been English Heritage's prime concern throughout it is unrealistic to draw a distinction between no objection and no harm.

I therefore agree with the judge's conclusion that by 2008 English Heritage's final position was that it: 1) supported a landscaped park on the Jolly Boatman part of the site because that would enhance the setting of the Palace;

Mr Drabble referred us to a newspaper article dated 1 November 2008 in which a team leader of the English Heritage was reported as saying :

That brief but considered summary of English Heritage's position is entirely consistent with the conclusion set out above, namely that leaving the Jolly Boatman site as an open space would enhance the setting of the Palace; the boathouse scheme would harm the setting of the Palace; the classical scheme would not enhance but equally it would not harm the setting of the Palace. The proposition that the classical scheme would "sit comfortably within the riverscape” is inconsistent with English Heritage having any in principle objection to the classical scheme.

For these reasons I would reject the second ground. The report did not misunderstand or misrepresent English Heritage's position.

The judge set out the respondent's summary reasons for granting planning permission in paragraph 3 of his judgment. Those reasons are as follows:

Having set out the requirements of paragraph 22 of the Town and Country Planning (General Development Procedure) Order 1995, as amended, in paragraph 99 of the judgment the judge said in paragraph 100 :

In this context Mr Drabble referred to an observation by the judge in paragraph 69 of his judgment. Having accepted the submission of Mr Bird that the probable inference was that those members who voted in favour of granting planning permission had thought that the development would preserve the setting of the Palace, and that it was probable that those who voted against it took the view that the setting was harmed, the judge said :

Mr Drabble accepts that either basis for granting planning permission - no harm to the setting of the Palace or some harm but outweighed by other factors - would have been lawful but he submits that the latter basis would have been lawful only if the degree of harm was explained and the sufficiently strong countervailing factors were identified. In summary he submitted that the reasons were inadequate because it was incumbent upon the respondent to say in the summary reasons a) whether there was no harm, or b) if there was harm what the extent of that harm was and what the considerations were that were thought to outweigh it.

I do not accept that in order to show that it had complied with the duty under section 66(1) the respondent had to pass through a particular series of legal hoops first to decide a) and then if not a) to decide b) et cetera. The need to comply with section 66(1) did not place the respondent in such a legal straitjacket when it came to giving a summary of the reasons for its decision. However, applying Mr Drabble's approach the challenge to the adequacy of the summary reasons fails on the facts for the following reasons. First, the summary reasons should not be construed in isolation. They summarise the outcome of what in the present case was a lengthy planning process: see Siraj v Kirklees Metropolitan District Council [2010] EWCA Civ 1286. The context in which the summary reasons are prepared is important and an important part of the context in the present case is that the members were accepting a planning officer's recommendation to grant planning permission. There is no dispute that the planning officer's report concluded in the light of inter alia the planning officer's view that there was a lack of objection from English Heritage that the classical scheme would not harm the setting of the Palace.

Not only is there no indication in the summary reasons that members were adopting a different approach, there is a positive indication that those members who voted to grant planning permission were doing so on the basis set out in the report. I say that because the first sentence of the summary reasons for permission is in effect a paraphrase of the planning officer's reasoning in the concluding paragraphs of the report :

Secondly, when read in context the summary reasons do make it clear that the respondent's conclusion was that there would be no harm to the setting of the Palace, and it was not that there would be harm but that that harm was outweighed by some unidentified factor or factors. Thus :

As noted by the judge that brief had sought a redevelopment which would not harm the setting of the Palace. There was no suggestion in the brief that a redevelopment which harmed the setting of the Palace might be justified on some other ground: see paragraph 69 of the judgment.

There is then the reference to the fact that the proposal had been the subject of "strong objection" from some quarters. That is plainly a reference to the objection of those including HRP that the proposed redevelopment would harm the setting of the Palace. There were of course many other objections which are addressed briefly in the following parts of the summary reasons but the principal objection to the proposed redevelopment was that it would harm the setting of the Palace.

The summary reasons then state that the proposal had attracted "a satisfactory response" from English Heritage. There is no suggestion that English Heritage was understood to have said that there would be harm to the setting of the Palace but that such harm was outweighed by some other factor. English Heritage's response was "satisfactory" because it did not say that there would be harm to the setting of the Palace and CABE's response was "enthusiastic" because it had said that the classical scheme would be a positive enhancement.

Having dealt with technical matters the summary reasons then state that the proposal had been considered against all relevant national and local policies. Those policies of course included the policies, which made it plain at the local level, for example the brief, that any redevelopment must not harm the setting of the Palace.

Thus far there is nothing in the summary reasons to suggest that the members’ reasons for granting planning permission might either have differed from those in the report or might have been based on an acceptance of some harm to the setting of the Palace, which was nevertheless outweighed by some other unidentified factor. Mr Drabble laid considerable emphasis upon the latter part of the final sentence in the summary reasons:

I do not accept that by the use of those words the respondent is to be taken as having departed from the position which it had plainly set out in the first sentence of the summary reason; plainly set out if that sentence is read in context and is not taken out of context and construed in isolation. I accept the submission of Mr Jones QC on behalf of the second interested party that section 66(1) was not the only statutory requirement with which the respondent had to comply. The overarching statutory duty was imposed by Sections 70 of the Town and Country Planning Act 1990 - to have regard to the development plan and to any other material considerations (among which was the desirability of preserving the setting of the Palace to which special regard had to be paid) - and section 38(6) of the Planning and Compensation Act 2004, which as amended required the respondent to determine the application in accordance with the development plan unless material considerations indicated otherwise.

The respondent had concluded that the application complied with the development plan because inter alia it had concluded that it would not harm the setting of the Palace. The second half of the final sentence of the summary reasons merely "sweeps up" the remaining objections to the grant of planning permission and makes it clear that they do not justify refusing planning permission for a development that the respondent considered was in accordance with the development plan.

In summary there is no ambiguity in the summary reasons. They make it clear to any reader familiar with the surrounding context, including the report, that planning permission was granted because the respondent considered that the classical scheme would not harm the setting of the Palace. In reply Mr Drabble submitted that the report and/or the reasons were inadequate because English Heritage's representations were so ambiguous that there was an obligation on the respondent to examine why English Heritage was not objecting to the classical scheme if indeed it was not objecting to that scheme. I do not accept that submission. The respondent was entitled to rely as it did upon the particular expertise of English Heritage. It was not required to go further and examine the basis for English Heritage's non-objection. A local planning authority's summary reasons for granting planning permission are intended to be just that, a summary. A planning authority is not required to give reasons for reasons. There was no need to explore in the summary reasons why English Heritage's response to the classical scheme was "satisfactory".

Relying on the penultimate sentence of paragraph 69 of Ouseley J's judgment see above, Mr Drabble submitted that with a vote of 29 to 24 (there were five abstentions) 24 saw outright harm and some of the 29 saw some harm which was outweighed by other weighty factors even though no such factors had been identified in the report (because of the conclusion there had been no harm) and none had been identified in the reasons for granting planning permission.

This submission again is not realistic. The minutes of the meeting on 18 December 2008 showed that the first motion put before the council was that the classical scheme should be refused for the same reasons as the boathouse scheme had previously been refused by the North Area Planning subcommittee, namely that the hotel would have an adverse impact on inter alia "cross-river views from the nationally designated Hampton Court Palace". That motion was defeated by 33 votes to 23 and two abstentions. 29 of the 33 then voted in favour of granting planning permission for the classical scheme. So those who voted in favour of the classical scheme did so having first rejected the proposition that it should be refused because it would be harmful to the setting of the Palace.

There was therefore no need for them to consider whether there might be other unidentified considerations which outweighed some harm which but they did not consider existed. There is therefore no substance in the reasons ground.

For these reasons I for my part would dismiss this appeal.

I agree.

I also agree and comment only on one aspect of the case. There may be cases, of which Young v Oxford City Council [2002] EWCA Civ 990 is one, where members of a planning authority must decide on which basis they are granting planning permission. They may need to make that clear in their reasons. Mr Bird QC, for the respondents, accepted that there may be such cases. Members of the public are entitled to know so that they can consider a challenge, if arguably one basis may be lawful and another may not be lawful. Moreover in the absence of such a statement it may not be clear, as Mr Drabble QC submits is not clear in this case, whether the correct test has been applied in planning terms.

I agree with Mr Bird that the principle does not apply in this case. The proposal was put to members of council on the basis that, in section 66 terms, the proposal did no harm to Hampton Court Palace in its setting. There is nothing in the officers’ report which suggests that another basis was taken or could be taken, such as that there was harm but that the harm was outweighed by other material consideration.

There is no suggestion of such an approach in the reasons given. These follow the pattern of the conclusions in the officers’ report. They refer to the planning brief, they refer to relevant national and local policies. They refer to consultations with specialist consultees and they refer to what is described as a "satisfactory response" from English Heritage. As to the position of English Heritage I agree with the analysis of Sullivan LJ. There is no suggestion in the record of debate in the council before the decision was taken that any of those voting for the proposal did so on the basis that there was harm but that there were other overriding reasons for granting planning permission.

I am satisfied that the correct test was applied and do not agree with Mr Drabble's submission that there is what he described as a lurking doubt about that. Accordingly the appeal is dismissed.