Charles Mynors FRTPI ARICS Barrister looks at some recent decisions in the courts relating to listed buildings M'LEARNED FRIEND First, two decisions which emphasise the importance of weighing-up different concerns against each other. This is the essence of what making any decisions in the planning field is all about; but it is easy for those (including Conservation Officers!) who are particularly enthusiastic about a specific issue to feel that it should be supported and encouraged to the exclusion of all others. The first case, Worsted Investments v SSE [1994] EGCS 66 (judgment 24 March 1994), relates to Thremhall Priory, a semi-derelict Grade II listed building in Essex. A scheme was approved in 1991 to rebuild it with additions and an office extension, but that was not financially viable on its own. An application was therefore now submitted for outline permission for new buildings in its grounds. The planning authority refused it, as did the inspector on appeal. He considered that, although the proposal would assist in restoring the Priory, it would significantly harm its setting, and that the harm would not be outweighed by the benefit of restoration - particularly in view of how little of the original Priory remained. The appellants appealed, arguing that the inspector had found that every effort should be made to restore the building, and could not therefore now conclude that the benefit of restoration would be outweighed by the harm caused. David Keene QC, sitting as deputy judge, considered the advice in Appendix I to Circular 8/87 that "every effort should be made" to preserve a Grade II building; but he held that it did not mean that restoration would justify any degree of harm. The inspector had properly carried out a crucial balancing exercise, reaching the conclusion that the harm outweighed the benefit. He accordingly dismissed the appeal. Note, incidentally, that the quoted phrase does not appear to be in the new PPG; but the principle still holds good. 30 The second case, S Oxfordshire DC v SSE and others [1994] EGCS 80 (judgment 22 April 1994), also concerned new building works which were stated to be necessary partly in order to finance restoration works - this time within the Mapledurham Estate in Berkshire, which is a conservation area and in an area of outstanding natural beauty. Almost all the houses in the village are listed, and have over the years a number been restored by the Trustees of the Estate - in particular the main house and the watermill, now open to the public. They now sought permission for a golf course and clubhouse, to fund further repairs. The planning authority refused permission, so the Trustees appealed to the Secretary of State. In his decision, the inspector accepted that the proposal would harm the character of the area, but considered that there were compensating advantages. In particular, the Trustees had submitted a unilateral undertaking, intended to ensure that the income from the development was indeed used to finance the restoration works. He accordingly granted permission. The planning authority in turn appealed, to the courts. Here too, however, the Court upheld the inspector's decision, considering that he had properly undertaken a balancing exercise - although in this instance he had come to the conclusion that the benefit of the proposal outweighed the harm, and allowed the appeal. Both these decisions emphasise the importance of the balancing exercise inherent in any planning judgement. Merely because one aim or objective is recognised in central or local government policy as being desirable, does not mean that it outweighs any harm caused to every other objective. PLANNING UNDERTAKINGS A further concern of the Council in the South Oxfordshire case was that the unilateral undertaking did not define what repair works were to be carried out, and was thus enforceable; it accordingly could not constitute a planning obligation under the Act. Sir Graham Eyre QC, sitting as deputy judge, considered, however, that Section 106 of the Act, as amended, now gave wide powers to authorities and developers to conclude undertakings provided that they met planning objectives; and there was no need (as there had been previously) to seek agreement with the planning authority. In this case, the Trustees had wide powers to ensure that the buildings on the Estate were repaired, and they had undertaken to use their best endeavours to ensure that this in fact occurred. The undertaking was thus a valid planning obligation. In many cases of this kind, developers offer assurances that the proceeds from a proposed development will be used for some specified purpose - not infrequently the restoration of an historic building. The problem is to ensure that those benefits are in fact realised. This decision emphasises the considerable scope for using planning obligations, but makes it clear that the developer must be able to deliver - in this instance, that was possible due to the appellants' ownership of the Estate. No doubt too the inspector was reassured by the thought that the Trustees had already carried out many repairs of the kind now proposed; others may find more difficulty in convincing inspectors that their intentions are genuine. SECTION 54A AND LISTED BUILDINGS Another balancing exercise that often has to be undertaken is between the various different statutory duties imposed on decision makers by Parliament. Thus under s 54A of the principal Planning Act, they must decide applications in accordance with the development plan unless material considerations indicate otherwise. In addition, however, s 66 of the Listed Buildings Act requires them to pay special regard to the desirability of preserving listed buildings. These two duties were considered in Heatherington UK Ltd v SSE and Westminster CC [1994] EGCS 118 (judgment 15 June 1994). The case concerned a number of properties in Mayfair which had originally been residential, but which were being used for offices as a result of a series of CONTEXT 44
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