Conservation issues in planning decisions
Charles Mynors considers some of the issues that can arise when a specialist group and a
council’s planning committee take opposing views of a development proposal
This article deals with an important issue that often arises where planning authorities are determining applications for proposals that also raise other considerations – namely, how conservation issues are dealt with, and how the representations of specialist groups should be taken into account. The issue arose recently in connection with a decision by the London Borough of Enfield to grant listed building consent and planning permission for a change of use of Truro House in Enfield (a Grade II listed building on the English Heritage register of buildings at risk) to offices and a consulting room, and for the erection of a nursing home in its curtilage.

The proposals for Truro House were submitted to the council in January 2003, and considered by the council’s conservation advisory group (CAG) in February. They were then due to be considered at a meeting of the planning committee, with an officer’s report recommending that the applications be refused. However, the applications were withdrawn before the meeting, and revised proposals submitted in May. In the meanwhile, there had been a council election, and the membership of the CAG and the planning committee changed. The new proposals were again considered by the CAG, later in May, and again by the planning committee, in June, but this time with a favourable officer’s report. The committee decided (albeit only by a majority of one) to grant listed building consent and planning permission.

One of the objectors then challenged the council’s decision in the High Court, on the grounds that:
• the council had failed to take into account points raised by officers regarding highways and access
• the fact that some members of the CAG were also members of the planning committee gave rise to an appearance of bias
• members of the committee were not adequately informed as to the need for the proposed development and its impact on existing services
• they were not adequately informed about the responses to consultation.

The outcome of the challenge is reported as Georgiou v Enfield LB [2005] JPL 62.
The court considered first the second issue – the consequences of the CAG being involved. The CAG consisted of six council members and 19 representatives of the local community. Its remit was to consider and advise the planning committee on proposals referred to it that might affect conservation areas, listed buildings and their settings, and on the preservation and enhancement of historic buildings and areas. At the February meeting to consider the Truro House proposal, the committee concluded that it was encouraged by the proposals, which represented a good opportunity to restore the building, with a development sensitive to the history of the site. At that meeting, there were present two council members who were also to be members of the committee that took the final decision in June.

When the revised proposals came to the newly constituted CAG in May, it continued to support them. There were then three councillors present who were also to be members of the committee in June, and a fourth who was a member of the CAG although not present at that meeting, and also present at the June meeting. Unsurprisingly, at that meeting, the three members of the planning committee who had also been present at the CAG in May voted in favour of them, although the absent member voted against.

The problem was that the CAG perfectly properly considered proposals only in the context of conservation issues, rather than with reference to the wider planning issues that might be involved (such as traffic, noise, economic impact, and many others). However if ,as a result, the CAG simply voted ‘in favour of’ a proposal, and the proposal then proceeded to a meeting of the planning committee at which some members had been party to such a vote, it might appear that they would have a closed mind when they came to vote in the committee.

Counsel for the local authority argued that the fact that the CAG considered only conservation issues meant that its ‘decision’ could not amount to a predetermination of the applications; and that those councillors who were members of both the CAG and the planning committee did not arrive at the committee meeting in June with closed minds.

However, the Court held that that was precisely the problem: ‘Although the CAG’s remit was to consider only the conservation implications of the applications, its conclusion was expressed in simple terms of support for the applications, without any qualification. Both the note of the CAG meeting on 27 May and the report to the planning committee on 17 June state that the CAG “continued to support” the applications. Moreover, although there is nothing to show that a vote was taken within the CAG, there is equally nothing to show that any of the members present dissented from that conclusion: the support appeared to come from all those present, including the three members who were also members of the planning committee. When it came to the meeting of the planning committee, nothing was said about the limited function of the CAG or about the need for those with dual membership to put on one side the support expressed in the CAG, and to examine all the relevant planning issues before reaching the planning decisions.

Charles Mynors is a
barrister in the Chambers
of Robin Purchas QC in
the Temple, and a visiting
professor in the planning
department at Oxford
Brookes University. The
fourth edition of his seminal
book, Listed Buildings,
Conservation Areas and
Monuments: the Law of
the Cultural Heritage, to
be published by Sweet &
Maxwell at the end of this
year, has been completely
rewritten to include all
relevant new legislation and
decisions of the courts since
the previous edition, and to
refer fully to Scotland and
Northern Ireland as well as
England and Wales.
In those circumstances, I take the view, though not without a degree of hesitation, that a fair-minded and informed observer would conclude that there was a real possibility of bias, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into the support for the applications in the context of the planning committee’s decisions.’

The court accordingly found in favour of the objector, and quashed the decisions on that ground – and also, incidentally, on each of the other three grounds – even though the judge explicitly recognised the importance attached to the development for conservation reasons. They were accordingly sent back to be re-determined by the council.

The first lesson from this case is that, while dual membership of a conservation advisory group and a planning committee can have advantages for both bodies, it does bring with it certain conflicts of interest. This was recognised in Enfield, in a report which drew attention to the situation that may arise where a member has commented publicly, and possibly voted, on a planning application at the conservation group – without the benefit of a report covering all relevant issues. That may then prejudice his or her position as a member of the planning committee subsequently considering the same matter, since conservation issues may be but one of a number of issues that need to be considered.

The court thus concluded that it was not unlawful for there to be joint membership, but that all concerned should understand and acknowledge openly the need to ensure that participation in a specialist advisory group does not lead to any pre-determination of an application, which must be approached in the planning committee with an open mind and by impartial
consideration of all the planning issues.

Second, and very importantly, this case highlights a point that is sometimes (perhaps, by some, often) forgotten – namely, that there is more to life than conservation. As it happens, in the Enfield case, the conservation issues militated in favour of permission being granted, whereas highways and other issues indicated a refusal. Often they go the other way. But whichever way the various considerations point, they must be considered as a whole when an application is being finally determined.

Thus it is perfectly proper for English Heritage, national and local amenity groups, special conservation committees, and of course individual residents, to put forward views based solely on the conservation issues involved in a particular proposal. So, for example, they may say that ‘the erection of an extension on the east side of the house will spoil that elevation and impair the overall interest of the building as the last unaltered villa of its kind in this area…’ That is a helpful and accurate viewpoint. But they should not continue, as so many do, “… and the application should therefore be refused.’ It may well be that the conservation issues are the only issues at stake, in which case the proposal should indeed be refused. But it may be that there are other considerations involved, pointing the other way. A proper conclusion might thus be that a proposal is slightly undesirable on conservation grounds, but hugely desirable for some other reason, so that on balance it should be permitted.

Indeed, arguably, a specialist lobby group – whether in the interests of building conservation or the preservation of newts – is the last person to make
a disinterested assessment of the overall merits of a proposal. It can fight its corner, but it must not seek to imply that its specialist interest is of necessity the only material consideration; it may be, but it may well not be. Enthusiasm, even fanaticism, has its place, but it must not be allowed to cloud mature, balanced judgment.