38 not just buildings that make up the character and appearance of conservation areas. Trees are in many cases just as important, and in some cases more so. Conservation Officers should not neglect the building-up of close working relationships with their arboricultural colleagues in developing suitable policies and enhancement proposals. NEED FOR PERMISSION It is a common complaint that the character of conservation areas can be ruined by unsympathetic development. This will sometimes require to be the subject of an application for planning permission, but may be permitted by the General Permitted Development Order. Even with such permitted development, however, it is at least possible to control it by means of an Article 4 direction. However, where alterations to a building are carried out so that they do "not materially affect its external appearance", they are not development at all [see Town and Country Planning Act 1990, s 55(2)(a)], and thus cannot be controlled at all. This provision was considered at the beginning ofthis year inBurroughs Day v Bristol CC [1996] EGCS 10, which concerned the installation of a lift shaft and consequent alterations to the roofofa building in Charlotte Street, Bristol. The applicants sought a declaration in the High Court that the works were internal or did not materially affect the external appearance of the building. The judge found in their favour. He noted that the critical provision was not "exterior" but "external appearance"; so a change must be actually visible from a number of normal vantage points -not just from the air or from a single building (as was the case here). Whether a change was material would depend, in part, on the degree of visibility. Further, the affect on the external appearance had to be judged in relation to the whole building, not just the part directly affected. What might not be a material alteration to the external appearance of a factory might be one to that of an 18th century house (whether or not it was listed or in a conservation area - as it happened, the building in this case was both). This decision sounds a cautionary note against those zealous to control all changes, however small: there is a limit. SETTING OF A LISTED BUILDING OR MONUMENT The Listed Buildings Act provides (at s 66) that, in considering whether to grant permission for development affecting the setting of a listed building, it is necessary to have special regard to the desirability of preserving the building or its setting. That begs the question of how far the setting of a building extends. This was the second issue considered inRevival Properties v Secretary of State and others [1996] JPL B86, already considered (above). It will be recalled that Revival's own site was adjacent to a Scots Dyke, which dated back to AD 600. The court held that, when considering the setting of a listed building or ancient monument, it is proper to have regard to: (a) the view from the building or monument towards the proposed development, (b) the view from the development towards the building or monument, and (c) any other relevant view from the side. This says no more than might be expected, although it would be interesting to see a plan showing the facts in this case. It is also interesting to note the emphasis on setting of a listed building or ancient monument. There is no explicit duty to consider the setting of a monument, scheduled or otherwise, equivalent to that under s 66, but this decision would seem to imply that it is certainly capable of being a material consideration. Maybe such a duty should be included when the 1979 Act is next revised. PROFESSIONAL WITNESSES Finally, the Burroughs case, already noted, contained an important postscript: "The court expressed concern that in 1995 reports were still being produced by expert witnesses which flew in the face of long-established requirements as to their duties. There was little appreciation on the part of litigators, advocates and expert witnesses of certain elementary requirements: inter alia, expert witnesses were not expected to act as supplementary advocates for their clients and to reach conclusions on the interpretation of statutory provisions which, from a non-lawyer, were neither admissible nor helpful." This means that when the cowering Conservation Officer is asked by Sir Hinckley Point QC whether a particular alteration would affect the character of a building, he/she can reasonably express an opinion; when asked whether it is development, or requires listed building consent, he/she can merely say "pass". This is particularly so in preparing written proofs for inquiries. It is, of course, sensible for the nonlawyer to be aware of what the tests are as to, for example, whether something is development, as such tests will sometimes require judgement as to what is 'material'; and a preliminary opinion may be required by a client. But the inspector at an inquiry should only take submissions as to the law, rather than facts (the difference is not always straightforward), from a lawyer - not because lawyers will necessarily be better, but because it is their job. Michael Pearce For all your advertising requirements please contact Tony Sudweeks at Hall-McCartney Ltd ARIBA MRTPI FRSA Chartered Architect and Town Planner Planning, Conservation and Historic Building Consultant THE LODGE, 52 HOLLOWS CLOSE SALISBURY, WILTSHIRE SP2 8JX TELEPHONE & FAX: 01722 334355 Tel: 01462 896688 Fax: 01462 896677 The Spring 1997 issue will have the theme of Enabling development CONTEXT 52
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