38 Charles Mynors MRTPI ARICS Barrister reviews some recent decisions in the courts of particular relevance to conservation. M'LEARNED FRIEND LISTED BUILDINGS: RELEVANCE OF SPECIAL CIRCUMSTANCES South Lakeland DC v SSE and Rowbotham [1991] JPL 440; Queen's Bench Division, 5 September 1990 (NB - this is NOT the South Lakeland case relating to conservation areas - see below) This is a classic tale of a battle between an allegedly inhuman planning authority and a little old lady. The lady won - for once - but the cause of conservation, unfortunately, lost. The occupier of a Grade II listed terrace house in a conservation area in Burton in Cumbria replaced (without Listed Building Consent) the original timber sash windows by modern casement windows. An application was submitted to retain the new windows; it was refused, on the grounds that "the window frames as installed materially detract from the character and appearance of this building". The occupier appealed, by way of written representations, putting forward a strong case on compassionate grounds. She was 84 years old, frail, and unable to open and close sash windows; double glazing was essential to shut out noise, and to conserve heat. The observations of the planning authority as to the effect of the alterations on the character of the building were disputed, and it was argued that the original sash windows, or indeed any sash windows, would be unsuitable for efficient double glazing. The Council responded in detail, emphasising the importance of the house at the historic core of the village and explaining its view that the windows had a serious adverse effect on the character of the building and of the conservation area. The Inspector, an architect, found in the Council's favour on that issue. He was also satisfied that, if the original windows were not capable of adaptation and improvement, a more sympathetic solution could have been arrived at which would still have achieved the requirements of sound and heat insulation and draught-proofing. Nevertheless, after considering the special circumstances, including the costs and disruption to the occupier in having the windows replaced again and the benefits that had already accrued to her, he concluded that: Whilst I appreciate and broadly agree with the intentions of the Council when they reached their decision, I am of the view that there is some justification of a more relaxed final decision to be reached in this particular case in the light of the circumstances of the particular occupier. He accordingly granted listed building consent for the retention of the windows. The Council appealed against the Inspector's decision, principally on the grounds that he should have simply applied the test in para. 115 of Circular 8/87 (whether consent would have been granted if it had been sought before the works were carried out); he should not have taken into account the special circumstances of the occupier. Further, if he wished to depart from the accepted policy of the Secretary of State, he should state explicitly his reasons for doing so. Judge Marder QC, sitting as Deputy Judge, disagreed. The Inspector had correctly applied the test set out in the passages of the Act relating to listed buildings and conservation areas, and had properly agreed with the intentions of the Council; but he had then gone on to state why the circumstances exceptionally justified what was referred to as "a slight relaxation of the strict policy". This decision takes further the principle (in Westminster CC v Great Portland Estates) that it would be inhuman pedantry to exclude from the control of our environment the human factor. The age and frailty of the applicant, and the fact that only a slight relaxation of policy was involved, together justified the inspector's decision. The Deputy Judge specifically noted that the Council could take comfort from the fact that the Inspector's decision letter made it clear that the decision afforded no precedent in relation to other pending cases. This is thus unlikely to open the floodgates to many such decisions in future - although many applicants will doubtless be keen to try their luck; especially after the decision of the House of Lords in the No 1 Poultry case (see the previous issue of Context). LISTED BUILDINGS IN NEED OF REPAIR Bristol Meeting Room Trust v Secretary of State and Bristol CC [1991]JPL 152. Queen's Bench Division, judgment 13th December 1989 This is a further case illustrating the influence of the special circumstances of a particular applicant. The appellants owned a meeting room attracting many cars and coaches. Parking arrangements were inadequate; and in 1985 they therefore acquired Lynwood, the house next door, with the intention of demolishing it so as to gain extra parking space. The buiding was listed in 1986. It was not occupied, and was now in a poor state of repair. An application for Listed Building Consent for demolition was refused by the City Council. The Council claimed that, once restored, the house would have a value in excess of the costs of restoration; and the appellants should have put the building on the open market. The inspector agreed; and noted that only one estimate had been obtained for each element of the repairs. The Secretary of State also agreed that, in accordance with the criteria mentioned in para 90 of Circular 8/87, there were no grounds overriding the presumption in favour of preserving the listed building. He accordingly upheld the Inspector's recommendation, and dismissed the appeal. The Trust appealed, on the grounds that the policy of the Secretary of State in Circular 8/87 - and in particular the advice relating to the placing of buildings on the market - was unlawful because it was rigid and did not admit of special circumstances. Further, the Secretary of State had not had regard to the special cir cumstances that did in fact apply in this particular case. Sir Graham Eyre QC, sitting as Deputy Judge, started from the statutory duty relating to listed buildings (now in S.70 of the Listed Buidings Act 1990) that the decision maker must "have special regard to the desirability of preserving the building or its setting or any feature of special ... interest." It was therefore clear, he said, that the legislation required that the preservation of a listed building had to CONTEXT 31
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