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Charles Mynors FRTPI ARICS Barrister
examines some recent decisions
in the Courts


M’LEARNED FRIEND
Alert readers of this journal who also read the Journal of Planning and Environment Law (as opposed to those who, rashly, rely merely on my summary of its contents) will have noticed that each issue over the last few years has included a section at the back printed on green paper, entitled the Bulletin. It includes a number of developments such as recent consultation papers, new legislation etc. It also includes reports of cases decided in the Courts: it seems to take a mere six to nine months for decisions to reach the Bulletin, as opposed to the twelve to 15 months to reach the case reports in the main body of the Journal - although sometimes, bizarrely, a case reaches both parts at once, as happened recently with Kennedy v Secretary of State for Wales (the Leighton Hall clock case, foreshadowed in my column last time, and of which more in due course).
Case reports in theJPL Bulletin are often the part of the Journal most worth reading, and not just because they are more up-to-date (as well as shorter!), but also because in some cases they feature decisions which never appear anywhere else.
Somewhat similarly, the Estates Gazette (not perhaps a journal regularly perused by Conservation Officers, as it tends to cater more for the interests of developers than planners) includes a series of Case Summaries, summarising recent decisions in the Courts on property law generally, including planning. These too are often worth looking at, as they include not only the obvious ‘planning’-based listed buildings cases, but also decisions about other related topics such as VAT, insurance liability, professional fees etc. The decisions here, however, tend to be more recent, appearing within weeks rather than months of being issued.
This month, I have highlighted cases from each source. It should be noted that the reports on which I have relied are of course themselves quite brief, so anyone hoping to rely on one of these decisions (or trying to distance themselves from it!) should check whether it has been subsequently reported more fully elsewhere.

CONSERVATION AREAS
First, two decisions to put alongside the long list stretching from Steinberg through to Bath Society and South Lakeland, trying to grapple with the true meaning of the duty laid upon decision-makers in conservation area cases.
The first, Revival Properties v Secretary of State and others, was a decision of the Queen’s Bench Division on 6 December 1995, noted at [1996] JPL B86. It related to three developers who were vying to get a site for a supermarket in Richmond (Yorkshire). All had failed to obtain planning permission, and appealed to the Secretary of State. As was perhaps inevitable in that location, one scheme (by Deerpark Securities Ltd) affected a conservation area, and another (by Revival Properties Ltd) was on a site adjacent to an ancient dyke. Revival challenged the decision bythe Secretary of State, following his inspector’s recommendation, to grant permission for Deerpark’s scheme and not for its own.
As to the permission for Deerpark’s scheme, the Court considered that the inspector’s approach was entirely in order. It seemed to be universally agreed that the scheme did not enhance the conservation area, but that was not necessary to satisfy the requirement under s 72 of the Listed Buildings Act (to pay special attention to “the desirability of preserving or enhancing the character or appearance of the
area” -emphasis added). The inspector was therefore perfectly entitled to dismiss peremptorily the issue of enhancement, and to go straight on to consider whether the scheme preserved the area (that is, following South Lakeland, whether it did not harm it). Further, as to causing harm, a proposal would not fall foul of s 72 merely because it caused the most minute amount of harm. He found that it did preserve the character and appearance of the conservation area, and granted permission.
This decision is sensible. It is sometimes very difficult to say that a proposal will have no effect at all on the character of a conservation area, but it would be absurd for even the most minute degree of harm to mean that permission had to be refused. It also emphasises that, whilst enhancement of a conservation area might be desirable, it is not necessary - as is obvious from the use of the word “or”. It also echoes the general approach of the law, which seeks to prevent the doing of wrong rather than to require the doing of good.
The second case, Sherwood and Sherwood v Secretary of State, was a decision of the Queen’s Bench Division on 16 August 1995, noted at [1996] JPL B40. This concerned the refusal of consent for the felling of a sycamore tree in a conservation area in North London. The deputy judge confirmed that the approach to be taken in such a case was precisely the same as applied to considering building works. Section 72 of the Act applied, as interpreted by the House of Lords in South Lakeland. If a tree makes a significant contribution to the character and appearance of the area so that its removal, albeit to be replaced, causes harm, that is a matter to which special attention must be paid.
This is a helpful reminder that it is
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