I CharlesMynors FRTPI ARICS Barrister considers the relationship between conservation and the development plan M'LEARNED FRIEND PLANNING APPEALS The inclusion of a building on the statutory list or within a conservation area introduces the whole mechanism of listed building consent or conservation area consent, each of which brings into play specialist policy considerations and procedures. In practice, however, those are frequently highly specific to the building or area concerned, and little can be said that is of general application. In many cases, what will be of greater significance are planning applications for development affecting the building and its setting, as they will involve its evaluation in the context of a wider planning framework. This is brought sharply into focus when the application proceeds to an inquiry - either because it is refused (or deemed to have been refused following non-determination) or because it is called-in by the Secretary of Scace. This article considers the current position, as to both tactics and procedure, in the light of section 54A, as interpreted in the courts in two recent cases. PRIMACY OF THE DEVELOPMENT PLAN The first item on the agenda, when facing an appeal or a called-in application, is to consider carefully precisely what is the case to be fought. The starting point has to be section 54A, which should by now be very familiar to anyone reading this. In determining planning applications - either at first instance or on appeal - the decision maker must take into account the development plan and all other material considerations [ TCPA 1990, s 70(2)]; but the decision must be made in accordance with the development plan, unless material considerations indicate otherwise (s 54A). The Court of Appeal pointed out in the Bath Society case ((1991] 2 PLR 51; see Context 34) chat the duty to consider the desirability of preserving or enhancing the conservation area [under what is now P(LBCA)A 1990, s 72) is, strictly speaking, only a particular example of a 'material consideration' - albeit a very important one, since it is recognised by statute. That decision was prior to the enactment of s 54A, however, and the conclusion by the Court char rhe dury under s 72 has to be the first consideration for the decisionCONTEXT 40 maker no longer applies with the same force; the duty should now be the second consideration, after taking into account the provisions of the development plan. The same would apply to the special regard that is to be had to the desirability of preserving listed buildings and their settings [under P(LBCA)A 1990, s 70]. In the context of listed building consent applications, this will still operate as 'a paramount consideration' (Bristol Meeting Room Trust v Secretary of State [1991) JPL 152; see Context 31). In determining planning applications, however, it will now (at least in theory) be secondary to the development plan. 'The decision-maker must take into account the development plan and all other material considerations' The development plan is thus vital. In the present context, the implication of this is two-fold. First, it is important to scour rhe relevant plan for any policies and proposals char are relevant to (and, hopefully support) conservation aims. In many cases, such policies will either be anodyne platitudes, or else will in effect merely repeat the statutory duties under the P(LBCA)A 1990 - which will still be helpful, in that they will thus elevate those duties from secondary to pnmary status. On the other hand, the second implication is char other policies in the development plan (relating to, for example, housing, shopping or traffic) will be of equal importance to the conservation ones - and may of course be in conflict with them. It will thus be important to carry out a balancing act, to establish what exactly are the overall implications of the development plan, taken as a whole. How this works out in practice has been illustrated in two decisions from the courts in the last year. SECTION 54A: THE ST ALBANS CASE Among the first cases to consider the impact of s 54A was St Albans DC v Secretary of State and Allied Breweries [1993] JPL 374. The case related to the demolition of a pub in St Albans, which was in a conservation area and on a nons ta tll to ry 'local list'. Permission was granted on appeal, and the Council appealed against the decision on the grounds chat the inspector had not properly followed TCPA 1990 s 54A in dealing with policies in the local plan relating to offices and conservation. The deputy judge (David Widdicombe QC), held, however, that a failure to mention s 54A is not fatal, so long as its requirements are in fact met. The inspector had identified the right development plan policies, so that his decision could not be faulted on that basis. It was true that he had failed to distinguish adequately between chose policies and other policies and considerations, and had thus failed to comply with s 54A; but, even if he had reconsidered the matter with s 54A in mind, the result would almost certainly have been the same; his decision would therefore not be quashed. On the conservation issue, too, although the inspector had not specifically mentioned the relevant policies, he had in fact applied the test that chose policies required, and his approach was thus not inconsistent with chat required by s 54A. CONSERVATION AREAS: THE CHORLEY CASE More recently, the relationship between conservation and other policies in the development plan was considered in Chorley and James v Secretary of State (1993] JPL 927. This related to the conservation area which included the village of Upton Grey in Hampshire together with surrounding countryside. The planning authority had granted conservation area consent for the demolition of an unattractive asbestos shed in a rural area, but had refused planning permission for the erection of a house to replace it. The inspector deciding the subsequent appeal considered chat the main issue was the effect of the new dwelling on the character of the area, and dismissed the appeal - primarily on the ground of a 23
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