Recentdevelopmentsin the law Charles Mynors FRTPI ARICS IHBC Barrister considers some decisions of the Courts. This piece notes a group of decisions from Estates Gazette Case Summaries (EGCS) from 1998, which might have othe1wise slipped through the net. While I have attempted as far as possible to explain each decision accurately, readers should note that the EGCS summaries are in some respects ve1y brief, and possibly misleading - and they should therefore be particularly cautious to obtain fu 1ther details before placing too much emphasis on any finer points discussed here. Evidencetojustifydemolition A developer sought planning permission for the construction of student flats in Bristol, on land within a conservation area that had been derelict for many years. The proposal involved the demolition of the New Buckingham Chapel, which was not listed but which was claimed to be a local landmark. Planning permission and conservation area consent were eventually granted after some negotiation, but a neighbouring resident sought judicial review of that decision on the grounds, amongst others, that the decision was one to which no reasonable council could have come, bearing in mind the lack of evidence submitted as to the economic feasibility of retaining the chapel (R v Bristol CC ex parte Anderson [1988] EGCS 44). The Court in fact allowed the challenge on other grounds. However, on the conservation area point, it noted that the Council had not commissioned an independent financial appraisal of restoring the Chapel, but considered that this was not fatal to the decision to grant consent for its demolition, as the Council did have other evidence available to it, as well as a report by English Heritage. This decision emphasises the need for councils to have sufficient evidence to justify their decisions. Sometimes it will be appropriate to commission an independent assessment, and nothing less will really suffice, but often it will be enough to rely on the evidence produced by others, provided that it is genuinely considered and not simply accepted at face value. Context65March2000 Thepolicybasisofadecision Planning permission was refused for the change of use of land at Shelswell Park in Oxfordshire from parkland and agriculture to a golf course, primarily because the proposal would make a major impact on the landscape; the reasons also cited Policies E14 of the adopted Local Plan and C9 of the deposit Local Plan. Policy E14 raised a presumption against development which would have a detrimental effect upon the character and appearance of historic landscape, parklands and gardens; and part ofthe site was included in the register of historic parks and gardens. However, the reason did not mention Policy R3 of the deposit Plan, which introduced a presumption in favour of golf course proposals. The applicant appealed to the Secreta1y of State, and sought her costs from the Council. The Inspector dismissed the appeal on grounds other than those relied on by the Council; and dismissed the application for costs. The applicant went to the High Court to challenge both the decision on the appeal and the decision on costs. The Secretary of State consented to judgement on the first and the substantive decision was accordingly quashed; but declined to give way in relation to the costs decision (R v Secretary qf State, ex parte Maltzabn [1998] EGCS 43). The Court noted that Policy R3 (in favour of golf courses) only applied where "the setting or appearance of a listed building, archaeological site or historic parkland or garden is not affected". According! y, even if the Council had considered Policy R3, there was no realistic possibility that itwould have come to a different conclusion. Further, that policy was clearly at the forefront of the Inspector's decision to refuse the costs application; that decision could thus not be said to have been unreasonable. This decision highlights the common problem of overlapping policies. Sometimes a policy in a local plan will say "subject to compliance with other policies in the Plan, permission will normally be given for ... ". Sometimes, as in this case, there will be a cross-reference to one or more specific policies, and often, again as in this case, the policies thus referred to will include those relating to listed buildings and conservation areas. And sometimes a Plan will contain two policies which will operate in difference directions in relation to a particular proposal - without any explicit link. In any of these instances, clearly the Plan must be considered as a whole; but it is probably best to refer to any reasons for refusal (or for conditions) to any policies that are relevant, to be on the safe side. Planningconditions Planning permission was granted (in 1991 and 1993) for the change of use of grade II listed Newton Hall in Cambridgeshire, to use for research and development, subject to a condition that a section of a nearby barn should be demolished. the applicant subsequently sought to retain the barn, and when this was unsuccessful- both initially and on appeal to the Secretary of State - challenged the decision of the latter on the sole ground that the condition had not been lawfully imposed in the first place (Delta Design Ltd v Secretary of State [1998] EGCS 143). The Court reiterated the usual test to judge the lawfulness of conditions (from the decision of the House of Lords in Newbury DC VSecretary of State), which included a requirement that the condition must fairly and reasonably relate to the development, and noted that it would be unusual for a condition requiring the demolition of a building to relate fairly and reasonable to a proposed change of use of another building. However, it noted that in this case the total change of use was only justified (in the light of the development plan policies) insofar as it enabled the building to be preserved, and its appearance to be maintained; and the demolition of the barn was required in order to enhance the setting of the building. The purpose of the condition accordingly did sufficiently relate to the change of use, so that the condition was not unlawful. This decision should be treated with caution. First, as the court pointed out, a condition requiring building works to 37
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