operate "as a paramount consideration". He then considered the advice in the Circular, and in particular the statement in para 89 that: The Secretary of State will not be prepared to grant Listed Building Consent for the total or substantial demolition of a listed building unless he is satisfied that every possible effort has been made to continue the present use or to find a suitable alternative use for the building. He would normally expect to see evidence that the freehold of the building has been offered for sale on the open market. Special circumstances of an applicant would not often be relevant - but they might be exceptionally. In this case, the Secretary of State had considered a number of matters put forward by the appellants, but they were hardly germane to the fundamental question of the desirability of preserving the building. He concluded that the future use of the building had not been sufficiently investigated, and he was entitled to take that view. However, the advice in para 90(c) of the Circular, relating to the condition of a building and the cost of repair, was also relevant. The Secretary of State, in his decision, stated that he accepted the Inspector's opinion that, although the building was in a poor state of repair, it was nevertheless capable of economic restoration. In fact, however, the Inspector in this case had not found that the building was capable of restoration. There had been no material of a conclusive nature before him; and he had therefore been unable to go any further than indicate that he was not satisfied that the building was incapable of economic restoration. The Secretary of State had accordingly wholly misunderstood the Inspector's reasoning; and his decision was therefore vitiated. This case is significant, not particularly because of the grounds on which the challenge ultimately succeeded (that was merely that the Secretary of State had misread the Inspector's report), but because it establishes the 'paramountcy' of the duty to preserve listed buildings. Special circumstances must be taken into account; but they will only rarely override that duty. CURTILAGE AGAIN James v Secretary of State and Chichester DC [1991] 1 PLR 58,JPL 550; Queen's Bench Division, judgment 9 October 1990 Another case that may assist in determining the vexed question of what is the curtilage of a listed building. The appellant constructed without planning permission a hard tennis court, used in association with his detached house. The planning authority refused permission to retain the court, and the appellant appealed tO the Secretary of State - contending amongst other things that the court was within the 'curtilage' of the house and that, accordingly, its construction was permitted development under Class E of Patt 1 of Sched 2 tO the GDO. The Inspect0r noted that the tennis court was used in conjunction with the house, and was contiguous to the extent that there was no clearly defined boundary between them. It lay some 100 m from the house, in an open field beyond an area of undergrowth and rough grassland separated from the garden directly associated with the house only by a partial and indistinct line of trees and shrubs. He considered that the tennis court did not have the appearance of close association, or of being within the same enclosure. He accordingly considered the appeal on its merits, and dismissed it. The appellant applied to have the Inspector's decision quashed. Sir Graham Eyre QC, sitting as Deputy Judge, considered that the Inspector's approach was impeccable. Whether development is within the curtilage is quintessentially a matter of fact, and thus a matter for the decision of the Inspector. He or she should consider the pattern of ownership and use and any other relevant physical features. This is merely the latest in a long line of cases dealing with the question of 'curtilage', following (in particular) AG v CalderdaleBC, Debenhams v Westminster CC, Dyer v Dorset CC and - most recently - Collins v Secretary of State (see Context 29). All of these decisions tend to the same conclusion: the precise extent of the curtilage of any particular building is a matter of fact. What else could it be? CONSERVATION AREAS: STEINBERG OVERTURNED? The previous issue of Context included a note by Gus Astley on the decision by the Court of Appeal in Bath Society v Secretary of State [1991 ]JPL 663. That was followed almost immediately by another decision of the Court of Appeal, South Lakeland DC v Secretary of State and Carlisle Diocesan Parsonages Board [1991] JPL 654. Both concern the applicability of the Steinberg test, relating to planning applications for development in conservation areas. Mann LJ in South Lakeland said, in essence, that to preserve the character of an area may mean simply not to harm it; he accordingly disagreed with the judgment of Lionel Read in Steinberg. South Lakeland is however on its way to the House of Lords. A full report of that decision, and of the Bath Society decision in the light of it, will therefore appear in a future issue of Context. Also to be considered will be the decision in South Western RHA v Secretary of State [1991] JPL 141, relating to the same topic. UPDATE: SETTING OF LISTED BUILDINGS The decision of McCowan J in R v South Herefordshire DC ex parte Felton [1989] 3 PLR 81, noted in Context 29, relating tO the effect of a potato store on the setting of a nearby group of listed buildings, has been upheld by the Court of Appeal ([1990] EGCS 34; [l99l]JPL 633). -- L_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_-_---~-=-=-=-=-= THE CONSERVATION PRACTICE Architects, Planners & Specialist Consultants Knockhundred House, Midhurst, W Sussex GU29 9DQ Tel: 0730 816850 Fax: 0730 816816 53 Upper Montagu Street, London WlH lFQ Tel: 071 723 0728 Fax: 071 723 1636 CONTEXT 31 rr ROOF TILES Cambrian Interlocking Slate 1991 Queen's Award For Technological Achievement Head Office: Redland Roof Tiles Limited, Redland House, Reigate, Surrey RH2 0SJ Tel: (0737) 242488 Fax: (0737) 240247 • 1991 39
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