Thompson v First Secretary of State & Anor

JUDGMENT

1. MR JUSTICE COLLINS: There are two appeals before the court, but they both arise from the same circumstances. The first is under section 288 of the Town and Country Planning Act 1990 and the second under section 63 of the Planning (Listed Buildings and Conservations Areas) Act 1990. Both are against the decision of an inspector of the First Secretary of State, made on 9th January 2004, whereby he dismissed the claimant's appeals against the refusal by the Barnsley Metropolitan Borough Council to grant planning permission and to grant listed building consent for the erection of an extension to link two Grade II listed gatehouses on land in Cawthorne, Barnsley. The application for planning permission was in pursuance of section 54A of the Town and Country Planning Act 1990, to be determined in accordance with the development plans unless material considerations indicated otherwise.

2. There were a number of potentially relevant policies. Suffice it to say that overall the view was taken, both by the council and by the inspector, that there would be no breach of the relevant policies in the plans, save that those seeking to conserve and enhance the landscape in areas of Borough landscape value in which the site was, were damaged by the proposals that were made. The inspector's view was that that in itself would not have justified refusal, but, added to the listed building harm, it did add something to those objections. Be that as it may, it is really the listed building considerations which led to the refusal both of planning permission and of listed building consent.

3. There is no complaint, nor could there be, that the inspector has not had regard to the correct policies and has not directed himself in accordance with the approach that is required pursuant in the main to PPG15, which deals directly with planning and the historic environment.

4. The buildings in question are what used to be two gatehouses to a substantial estate. The estate is called the Cannon Hall estate. The gatehouses themselves have been included as Grade II listed buildings. As I understand it, this particular entrance is not now used, but of course the gatehouses are still there, and they were built as such and they exist as something which is considered to be worth preserving.

5. The building on the north is the one in which the claimant lives. That is because it has had an extension built on to it. This was built prior to the coming into force of planning controls in 1948. The building on the south, which is described as the South Lodge, has had no extensions to it. It was not used by the claimant, who has owned the property now for some five years. It was considered by him to be of no use at all. It was in a state of considerable disrepair. It would have needed a considerable sum of money spent upon it in order to bring it into a reasonable state of repair, and, detached as it was and isolated from the main building, was not considered by him to be worth using. However, the proposal that he was putting forward, on advice, and in consultation with the officers of the council, was one which linked the South Lodge to the North Lodge and thus provided an extended single dwelling. That would certainly have justified spending money in bringing it into a good state of repair and, in the view of the claimant and those advising him, would certainly not have been detrimental to the buildings as such. It would have removed the gate as it existed because the link would have been there, but there was to be placed, as I understand it, a gateway in the link. In any event the proposal was one which was not opposed by the relevant planning officer or the listed building officer employed by the council. The view was taken that the development would not constitute harm to the listed buildings and so could be approved.

6. Unfortunately it was apparently believed by the planning officer who was dealing with the matter that there was no objection from anyone to the proposal. As a result, Mr Townsend, who was a planning a development consultant acting on Mr Thompson's behalf, was told that there would be a delegated consent and that there would be effectively no problem in obtaining consent.

7. The application was made in early December 2002. The information from the planning officer came shortly thereafter.

8. Relying on that, the claimant decided to commence work on renovating and redecorating the South Lodge. He had also acquired some antique furniture and was using the lodge for the temporary storage of the furniture which he previously had in his house. But the work that was done involved repairing the roof, dealing with damp which had invaded the building, and doing a degree of redecorating and clearing out of a fireplace, although not, it would seem, of the chimney above the fireplace. That, as I say, he tells me -- and I have no reason to doubt because it has always been his case -- he did as a result of his belief that he had been informed that planning consent and listed building consent would be granted.

9. There is a statement from the relevant planning officer in which he says, as one indeed would accept, that the views expressed as to the recommendation to grant planning permission was that of the officers but that ultimately the decision lay with members.

10. That is of course correct so far as it goes, but it has not been disputed, and indeed it would seem likely, that in situations where no objections are raised it is normal for a senior planning officer to have the delegated power to grant permission. If there are objections then one would expect the council committee to make the decision.

11. On 30th December 2002 the local parish council, that is the Cawthorne Parish Council, wrote a letter to the Assistant Director of Planning and Transportation Service in the council (not the officer who was the dealing with the matter with the claimant, but his superior) raising what they described as "strong objections" to the applications. Essentially those objections were on the basis that there would be a material effect on the listed buildings, the character of the lodge and gate would be destroyed and the development would alter the historic landscape of Cannon Hall.

12. Once that objection had been raised, the decision was made that the matter would have to go to committee.

13. It seems that the planning officer dealing with Mr Thompson was not aware, certainly initially, that that objection had been put in or that therefore the matter was going to have to go to committee. But there came a time -- and it is not entirely clear precisely when, and perhaps it does not matter -- when Mr Thompson was made aware that the matter would be going to committee, and, of course, he appreciated that in those circumstances it could not be said to be a foregone conclusion that planning permission would be granted. Accordingly the work which had been started ceased. But by then that work had produced some redecoration, had produced a watertight roof and had also dealt with the damp. There was also electricity connected to the lodge, albeit connected in such a way as almost certainly would not have passed any tests in relation to safety. In addition the fireplace had been cleared and looked attractive. The importance of that work will become apparent shortly.

14. The council refused the applications, as I have already indicated, on 15th April 2003. The reasons for refusal in relation to the planning application were:

"In the opinion of the Local Planning Authority the development proposed would form an inappropriate addition to the listed building by reason of its design and the linking of the two gatehouses, which mark a former entrance to Cannon Hall estate. The development would therefore be materially detrimental to both the appearance and historic integrity of the listed buildings, contrary to national policy and to policy BE2A of the Unitary Development Plan."

The same reasons were given in relation to the listed building application.

15. The main focus of the appeal from the documents put in on the claimant's behalf was that the proposals would not substantially harm the listed building and thus, when the balancing exercise was carried out pursuant to the guidance given in PPG15, the balance should have been struck in favour of allowing the listed building consent, and if the listed building consent were to be allowed then the planning permission should follow.

16. There are two aspects to listed building consent. First, the decision has to be made whether what is proposed will harm the listed building. If it will not or the decision is that any such harm is such as can be regarded as sufficiently slight to justify the development then the further issue, as to justification despite harm, will not have to be considered. But if it is decided that the harm is such as would normally justify refusal, the decision-maker has to go on to consider whether, notwithstanding that, in the circumstances it is necessary to grant the permission because otherwise the listed building would be lost, and it would be lost if it was not economically viable to maintain its existence unless some form of development such as was requested is permitted to go ahead.

17. As I have said, the planning officer and the listed building officer with whom the claimant was dealing had recommended that this should be permitted because there would be no real harm to the listed building and the development itself was one which could be permitted.

18. That view was not accepted by the councillors. It seems from a press report that is in the papers that what might have tipped the balance was a view of the site by the councillors; and of course they were each able to form their own individual judgment of the position from seeing the site and from the proposals which were before them. However, one does not know what may have moved individual councillors who are members of the relevant committee. All one knows is that the permissions were refused and for the reasons that I have already given.

19. The inspector dealt with the matter at what is described as an informal hearing. I have had occasion to say in other cases that I have some concerns about these informal hearings, because it seems to me that it has not yet been fully thought out how they should be conducted, and, more importantly, because there is no cross-examination, how the inspector should ensure that all relevant matters are within his knowledge. This is particularly the case when he is dealing on the one hand with the expertise of a council, a local planning authority, and, it may be, an applicant in person, or even an applicant who has the advantage of advice from a consultant who may not necessarily be aware of precisely what ought to be put before the inspector.

20. There are three grounds of appeal in this case. I can take the second ground first, because the complaint there is that the claimant through his adviser sought to have present at the hearing before the inspector the two officers who dealt with the application. The letter to that effect was written on 6th November 2003, the hearing being fixed for 9th December. In that letter this was said:

"For the inspector to fully understand the background to this matter, we consider that it is essential that the Council's planning and conservation officers who dealt with the application and were involved in detailed pre and post submission negotiations attend the hearing.

Without their attendance it may be difficult for the inspector to fully understand the process of the evolution of this project.

Can you, therefore, arrange for the relevant officers to attend the hearing?"

Complaint is made, and is justifiably made, that the council did not see fit to answer that letter. The result was that when the parties attended at the hearing the officers were not there. Mr Thompson has indicated that he was not -- and, indeed, it is clear that he was not -- seeking to force the council to call those officers as witnesses. He merely wanted them to be there so that he could, if necessary, ask them to elucidate the basis upon which they had reached their decisions and to give some help to the inspector, if appropriate, as to the background of the discussions between them and Mr Thompson and those advising him.

21. Clearly it is not for any claimant to seek to compel the council to call any particular witness. It is not in the least surprising in this case that the person acting on behalf of the council in supporting the decision that had been made was someone other than those two officers - after all the council could not reasonably be expected to put forward as witnesses officers who had not apparently supported the decision that was in the end reached. Equally, there is no obligation upon the council or upon any other party in a planning appeal to produce a particular individual as a witness. There is at least in theory nothing to stop a party from seeking to persuade any particular individual, whether or not employed by the other side, to attend the hearing and to give evidence if asked to do so. I say in theory because I suspect in practice councils would not take kindly to the thought of their officers being called by the other side, and I can well understand that and in general it must be right. And indeed in general there is no need for it because one of the documents that will regularly and indeed in every case ought to be before the inspector is the officer's report to the planning committee. If the officers have recommended that a particular permission should be granted the report will spell out those recommendations and should spell out the reasons for those recommendations.

22. There was such a report to committee in this case. Unfortunately the document disclosed to Mr Thompson was what seems to have been the draft of that report. But I have seen, and indeed he too has now seen, the final report. It is clear that it contains nothing of substance that was not already in the draft. So the inspector was, in the circumstances of this case, aware of the views of the officers.

23. Unfortunately the officers did not in the report directly concern themselves with the economic viability of the South Lodge if the permissions were not granted, because it was the burden of their report that they believed that the permissions should be granted because what was proposed would not do harm to the listed buildings, so it was not necessarily for them to go on to consider the justification in terms of economic viability.

24. However, it was clearly part of Mr Thompson's case that if this particular development was not allowed or some development which enabled the South Lodge to be linked in with the North Lodge was not permitted then effectively the South Lodge became a complete white elephant and something which was of no use to him or, in his view, generally. That was his case. But, as I say, I do not think that the absence of the two officers can in any way have prejudiced that case, nor do I think that there is or was any duty on the council to produce them. The only thing, as I said in the course of argument, I think the council can be criticised for is bad manners in not answering the letter, as they ought to have done.

25. The other two grounds to a degree run together. The first asserts that the inspector was not aware of all relevant information when he formed his judgment because he believed wrongly that the South Lodge was effectively in use when it was not. That misunderstanding arose largely because of the site visit and the failure, it is said, of the inspector to raise any questions about what he saw at that site visit.

26. The third ground asserts that the inspector had failed to address how the upkeep of the building could be secured and whether or not this would entail active use of the building. He should have asked himself whether his categorisation of the building would keep the building in active use and would be economically viable. It is said that if he had considered that matter properly he was bound to have decided that it would not.

27. The key paragraph in the inspector's decision is paragraph 8. Before coming to that I should just note that he decided that the gateway was significant, both for its architectural interest and the historic relationship with the estate. He noted that the proposed link would close the gap between the buildings; that the link walls would be extended in height and the gates would be fixed to a new wall behind and thus the vestigial gateway would lose its function. He took the view that the proposed section, albeit glazed, would not adequately preserve the openness between the gatehouses, and the opposing doorways would be lost to views from the outside. He concluded in relation to that in paragraph 7 in these words:

"The extension would be at the focal point of the composition. To my mind, it would dominate the listed building by its situation. In my opinion, that would weaken the special interest of the listed building and harm its setting."

He thus found that there was in his view harm to the listed building and to its setting, and that that harm was sufficient to justify (absent any justification to the contrary) refusal of the permissions.

28. That is a judgment which he was undoubtedly entitled to form. Indeed Mr Thompson, who, if I may say so, has conducted this appeal in a thoroughly moderate and able fashion, accepts it was a judgment that he was entitled to reach. He recognises that this court cannot interfere with planning judgment, however much it may disagree with it. I can only interfere if an error of law has been established.

29. But in paragraph 8 the inspector went on in these words:

"The South Lodge is an outbuilding to the dwelling and provides ancillary accommodation as can often be found in residential gardens. It has electricity and a working fireplace. From the carpeting, furniture and decorations inside, it appears to have been in use relatively recently. I do not therefore consider that the building is at risk of being lost. I acknowledge that the building has some poor stonework and has a high proportion of external wall in relation to the useable space. Nevertheless, I consider that it is within a well-established and viable use as part of the single dwelling at North Lodge. In my opinion, the proposed extension is not justified in terms of the need to preserve the listed building. It would therefore be contrary to the advice of PPG15, as well as to Policies BE2 and BE2A of the UDP."

30. It is here that Mr Thompson submits the error has crept in and has affected the result. The error, it is said, is in the inspector's view that the building was in use. He says, as I have indicated, that it appeared to have been in use "relatively recently" and that therefore he did not consider the building was at risk of being lost. It is fair to say that the "therefore" no doubt is governed by the three sentences that precede it and not merely by the view that it appeared to have been in use relatively recently. However, it is plain from the way the inspector expresses himself that he must have attached some weight to his opinion that it had been in recent use and thus was in use as part of the single dwelling. The reality is if he had had before him the full facts that the work done had only been done because of the belief that planning permission would ensue and the work would not otherwise have been done, and it did not indicate and was not intended to indicate that the building was in use.

31. I fully accept that that in itself would not necessarily have led the inspector to reach a different conclusion. Whether or not a building is economically viable does not depend and cannot depend upon the intentions of the owner at the time. His intentions no doubt are of some relevance. But at the end of the day an objective decision and judgment has to be made as to whether a particular listed building is one which, even if whatever is proposed is not allowed, will be kept in use and will continue to exist as a listed building. There is power in the council to require repairs to be done to a listed building if an owner decides he is not going to do anything and is simply going to let it degenerate and fall into rack and ruin. But as it seems to me it would be unreasonable for a council to require repairs to be done if it was plain that it was simply economically not viable to expect that any money should be spent on the building, having regard to the limitations on the use to which it could be put in the condition or in the circumstances that exist.

32. But apart from economic viability, a judgment has to be exercised, balancing the harm to the building against the reasonableness of the individual owner being expected to live with it in its existing condition. Obviously in those circumstances the extent of the harm - how much harm would be occasioned - is relevant. As it seems to me, in carrying out the balancing exercise it is essential that the inspector, so far as possible, should have before him all material facts and all necessary material information.

33. The decision of the Court of Appeal of which Miss Davies very properly reminded me in Dyason [1998] 2 PLR 54 makes it plain that these informal inquiries involve the inspector at least to an extent in an inquisitorial role. He knew that it was the claimant's case that this building was not in use and would not be in use and would thus deteriorate if the permission were not granted. What he saw when he made his inspection was on the face of it not consistent with that. Indeed he makes the point that it appeared to have been in use relatively recently because of the carpeting, furniture and decorations inside it. He also noted it had a working fireplace. It is said that, although it looked like a working fireplace, it actually was not because the chimney was not in a fit state to deal with smoke rising from a fire. I am not sure if that is a very substantial matter because it is not entirely difficult to sweep a chimney and remove a Jackdaw's nest or whatever it was that was blocking the chimney. Be that as it may, it is plain to my mind that the inspector attached some weight to his view that it was already in use or had very recently been in use in judging whether it would continue to be viable that it should be kept in use. Both Miss Davies and Miss Murphy have submitted that a fair reading of the inspector's report makes it plain that that was not a matter which determined the issue because he was clearly taking the view, and a view he was entitled to reach, that when one looked at the buildings as a whole this was indeed in the nature of an ancillary building in the garden of the existing dwelling-house and could perfectly well, and indeed should, be used as such for whatever purpose. It could be used for storage; it could be used for a games room; it could be used for whatever a particular occupant wanted it to be used for. It was quite wrong to suggest that without this development it could not reasonably be expected to be used.

34. While I see the force of that submission, it still, as it seems to me, is important to know how the balance would have been struck if the inspector had appreciated that it was not and had not been in use: that the work was merely done because it was expected that it would be able to be put in use once the planning permission had been put into operation and the link with the existing dwelling-house had taken place.

35. While I recognise, as indeed does Mr Thompson, that the inspector might well have reached the same conclusion if he had been aware of the true situation, nevertheless it cannot be said that he would inevitably have reached the same conclusion.

36. I am concerned that Mr Thompson feels, and justifiably feels, that he has not had an entirely fair hearing of his appeal because of these factual errors that underlay the inspector's decision. If I had formed the view that I would be bound to say that although those errors may well have existed they could not have affected the result, I would have had to have found against Mr Thompson even though his view of unfairness would no doubt still have been there and afflicted him. But, as it seems to me, where an error has been made, and where I cannot say that error could not have affected the result, I ought in those circumstances to come down in favour of a claimant, for whom this is a very important matter. It is not as if this is a case where he has been fighting against opposition throughout. He has in his favour the expert officers from the council who originally had to consider the matter. He has in his favour an important amenity group, the Garden History Society, who have taken the view that this was not only a desirable development but one which would secure the future maintenance of the gatehouses. In the circumstances I am persuaded that these are claims which ought to succeed, and the matter must be, in my view, sent back for a fresh determination.

37. Now Mr Thompson, I expect you have incurred some costs, if only the train fares?

38. MR THOMPSON, THE CLAIMANT: My Lord, it is not about the money. I am not that bothered.

39. MR JUSTICE COLLINS: You are not bothered. You are entitled to claim if you want. You might as well get your train fares.

40. MR THOMPSON, THE CLAIMANT: Have you had the list of the statement of costs from the ... ?

41. MR JUSTICE COLLINS: No, I have not. But you are lucky then, you have avoided that.

42. MR THOMPSON, THE CLAIMANT: £70 in petrol.

43. MR JUSTICE COLLINS: 70?

44. MR THOMPSON, THE CLAIMANT: £70 in petrol; the hotel, a few quid.

45. MR JUSTICE COLLINS: Let me tell you what you might be entitled to.

46. MR THOMPSON, THE CLAIMANT: Right.

47. MR JUSTICE COLLINS: Normally as a lay person you would be entitled to your travel costs, the cost of copying documents and that sort of thing, and you would be entitled to some amount to recognise time spent in preparing.

48. MR THOMPSON, THE CLAIMANT: Right.

49. MR JUSTICE COLLINS: It would not obviously be as much as a professional would get, but you would be entitled to something. I appreciate you have not done any exercise of putting costs together. You do not have to claim them and I am quite happy to award you a smaller sum if that is all you want rather than going to the trouble, but I am bound to indicate to you that you are entitled to apply for more, that is all.

50. MR THOMPSON, THE CLAIMANT: I am quite reasonable; I will just leave it to what you think.

51. MR JUSTICE COLLINS: First of all, did you come by train?

52. MR THOMPSON, THE CLAIMANT: No, I came down in the car.

53. MR JUSTICE COLLINS: In the car. How many miles is it?

54. MR THOMPSON, THE CLAIMANT: 200 each way.

55. MR JUSTICE COLLINS: 200 each way -- so 400 miles. I have forgotten what the mileage rate now is; I am out of date.

56. MISS DAVIES: I do not know off the top of my head, but Miss Murphy is just looking at the White Book to see if she can be of any help. But I think I did hear Mr Thompson mention a figure of £70 in petrol cost.

57. MR THOMPSON, THE CLAIMANT: If I was going on own business, I would charge the business 40p a mile.

58. MR JUSTICE COLLINS: 40p: that sounds not unreasonable.

59. MR THOMPSON, THE CLAIMANT: Because I might use £70 in petrol but obviously there is tax ...

60. MR JUSTICE COLLINS: 40p a mile, I do not think is unreasonable. So 400 miles at 40p, that is what? 160, is it not?

61. MR THOMPSON, THE CLAIMANT: Yes.

62. MR JUSTICE COLLINS: You have had to spend the night?

63. MR THOMPSON, THE CLAIMANT: Yes, £55.

64. MR JUSTICE COLLINS: So that takes it up to 215. Presumably you have had some copying costs. You have also had the fee. What did it cost you to lodge the claims?

65. MR THOMPSON, THE CLAIMANT: 360.

66. MR JUSTICE COLLINS: 360.

67. MR THOMPSON, THE CLAIMANT: Well I had to put in postal orders - £380. It cost me £20 for the postal orders, because you are not allowed to send a cheque.

68. MR JUSTICE COLLINS: 215 plus 380 is ... we are up to 600, you see.

69. MR THOMPSON, THE CLAIMANT: Right.

70. MR JUSTICE COLLINS: It all mounts up.

71. MR THOMPSON, THE CLAIMANT: It does, yeah. I mean the hours, I cannot even start to add up the hours. Not that I am that concerned really.

72. MR JUSTICE COLLINS: Would you be happy with £600?

73. MR THOMPSON, THE CLAIMANT: I would be happy with £600.

74. MR JUSTICE COLLINS: Well Miss Davies ... ?

75. MISS DAVIES: My Lord, I am just clarifying the court fee.

76. MR JUSTICE COLLINS: It is £180, but there are two claims.

77. MISS DAVIES: I am not sure two fees --

78. MR JUSTICE COLLINS: I do not think you get a cut price for two.

79. MISS DAVIES: But, subject to that, I am not going to object to this.

80. MR JUSTICE COLLINS: In any event he would of course be entitled to something for preparation if he wanted to. £600 is pretty cheap, as you recognise.

81. MISS DAVIES: My Lord, I have no objection to that.

82. MR JUSTICE COLLINS: All right. In that case you can have your costs from the First Secretary of State which I will quantify as £600.

83. MR THOMPSON, THE CLAIMANT: Excellent.

84. MISS DAVIES: My Lord, on the question of an appeal, obviously those instructing me will consider what your Lordship has said and I have not had the opportunity to raise it with them.

85. MR JUSTICE COLLINS: You have to formally make an application. And formally I refuse it.

86. MISS MURPHY: My Lord, just for the record ...

87. MR JUSTICE COLLINS: You want to too, do you?

88. MISS MURPHY: I reiterate what my learned friend has said. Yes, I ask for permission to appeal from your Lordship.

89. MR JUSTICE COLLINS: There is nothing new in this. It is merely applying the law to the facts.

90. MISS MURPHY: I have your Lordship's comments.

91. MR JUSTICE COLLINS: No, I am not going to grant leave to appeal.

92.