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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Kverndal v London Borough of Hounslow [2015] EWHC 3084 (Admin) (28 October 2015) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2015/3084.html Cite as: [2015] EWHC 3084 (Admin), [2016] PTSR 330 |
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QUEEN'S BENCH DIVISION
PLANNING COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
SIMON KVERNDAL QC |
Claimant |
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| - and - |
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| LONDON BOROUGH OF HOUNSLOW |
Defendant |
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| - and - |
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| LEND LEASE RESIDENTIAL (CG) PLC |
Interested Party |
____________________
(instructed by Richard Buxton Environmental & Public Law) for the Claimant
Richard Harwood QC (instructed by HB Public Law) for the Defendant
James Strachan QC (instructed by Messrs Pinsent Masons LLP) for the Interested Party
Hearing dates: 29-30 September 2015
____________________
Crown Copyright ©
Mr Justice Supperstone :
Introduction
"comprehensive redevelopment of the site for residential led mixed use development, including the change of use and alterations and additions to Empire House to residential accommodation (C3) including at plant level with recladding and addition of balconies to the existing tower, provision of residential floor space across the remainder of the site including a erection [sic] of a 7/8 storey block and four 3-storey town houses on Essex Place and a 5-storey block on the corner of Essex Place and Acton Lane, creating a total of 137 dwellings, retention and additions to the existing commercial space (A1 to A3 uses) including additional storeys to existing units, landscaping works and improvements to the public realm, cycle parking and creation of on and off-street parking."
under application reference 00248/408-430/P1 ("the Permission").
Factual Background
Legal and Policy Framework
Development Plan and Material Considerations
"If regard is to be had to the development plan for the purpose of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
"27. It is axiomatic that the decision maker does not have to deal with each and every policy that has been raised by the parties during an appeal. That is not the Claimant's case. Rather, it is submitted a finding of compliance or conflict with the development plan and the basis for it needs to be made so that the decision maker can proceed to undertake the planning balance in an informed way. I agree. Such a step is not just form. Rather, it is an essential part of the decision making process, so that not only the decision maker but also the reader of the Decision Letter is aware and can understand that the duty imposed under section 38(6) has been discharged properly by the decision maker.
30. counsel for the Second Defendant, in his review of the cases, emphasised that the decision maker had to make a decision. I agree the decision maker does, but it has to be made on the right basis. That is not just in relation to one policy but against the development plan as a whole. That does not mean a mechanistic approach of judging the proposals against each other and every policy that may be prayed in aid of a development or against it, but an evaluation of main policy areas within the development plan that are relevant to the proposal to be determined and an assessment of how the proposal fairs against them. That can be shortly stated and the process to be followed is for the individual decision maker. But it needs to be clear at the culmination of the decision-taking process what the eventual judgment is against the development plan as a whole. Only by carrying out that exercise can the next step of evaluating the planning balance be properly undertaken."
"17. On behalf of the appellant, Mr Village QC, advances two grounds of appeal.
18. The second ground is linked with the first. Mr Village submitted that the Secretary of State's decision was based on mere speculation, or a 'theoretical' as opposed to a 'real' possibility that an occupier who wished to use the retained buildings with the rail facilities would be found within the period of five years.
19. In support of this second ground of appeal, Mr Village referred to the decision of Brentwood BC v Secretary of State for the Environment (1996) 17 P&CR QBD. In that case the question was whether, in deciding to grant planning permission for the retention of an outbuilding in the green belt, the Inspector had considered whether there was 'a real prospect' that, if planning permission was not granted, then Mr and Mrs Grey would simply demolish the existing building and rebuild it five (rather than two) metres away from the house, in which case the rebuilt outhouse would be permitted development.
20. Mr Christopher Lockhart-Mummery QC, sitting as the Deputy High Court Judge, concluded that the Inspector had failed to make any finding 'as to the real prospect or likelihood of Mr and Mrs Grey actually demolishing the building in whole or in part and re-erecting it' (see p.66). It is important to note that in this context a real prospect is used as the antithesis of 'a merely theoretical' prospect (see p.65 of the judgment and the cases therein incited).
21. In order for a proposal to be a real prospect, it does not have to be probable or likely; a possibility will suffice. It is important to bear in mind that 'fall back' cases tend to be very fact-specific. One might envisage a case where it was thought by the Inspector or the Secretary of State that the fall-back position for example, an old planning permission which was still capable of implementation would be very damaging indeed if it was to be implemented. The point did not arise in Brentwood, where it was being argued that the impact of that which was permitted development would be much the same as the impact of the development for which planning permission was being sought. However, in a case where the adverse consequences of implementing the fall-back position would be very significant, Mr Village accepted that there would be no reason why the Secretary of State could not conclude, as a matter of planning judgment, that even if the risk of implementing the fall-back position was very slight indeed an outside chance perhaps the seriousness of the harm that would be done, if planning permission was not granted and the fall-back position was implemented, was such that the risk was not acceptable so that planning permission should be granted.
22. It is important, in my judgment, not to constrain what is, or should be, in each case the exercise of a broad planning discretion, based on the individual circumstances of that case, by seeking to constrain appeal decisions within judicial formulations that are not enactments of general application but are themselves simply the judge's response to the facts of the case before the court. By the same token, if the Secretary of State concludes, as a matter of planning judgment in any particular case, that there would be significant planning advantages if certain buildings were to be re-used in the manner contemplated in an application for permission for their retention, then there is no reason why the Secretary of State should not be entitled to say that there may well be only an outside chance of these buildings being re-used, but it is well worth keeping that option open at least for a period of five years."
Fairness and the Duty to Consult
"We aim to give everyone the opportunity to get involved and influence planning policy and decisions, subject to resource and time constraints.
We will allow adequate time to respond and give full consideration to all views received."
Paragraph 6.7 of the SCI states that in addition to the minimum requirements set the Council will also where appropriate, inter alia:
"In some circumstances consult on specific details. In these cases consultation will take the form as described above and in tables as appropriate. It will be a matter of judgment as to what and when the appropriate circumstances would be to trigger a consultation, dependent on the nature and scale of the details submitted."
Heritage
"(1) In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of any of the provisions mentioned in sub-section (2), special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
Officers Reports
"15. Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:
(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.
(ii) When challenged, such reports are not to be subjected to the same exigesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently:
'[A]n application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken'. (Oxton Farms, Samuel Smiths Old Bewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).
(iii) In construing reports, it has to be borne in mind that they are addressed to a 'knowledgeable readership', including council members 'who, by virtue of that membership, may be expected to have a substantial local and background knowledge' (R v Mendip District Council ex parte Fabre [2000] 80 P&CR 500, per Sullivan J as he then was). That background knowledge includes 'a working knowledge of the statutory test' for determination of a planning application (Oxton Farms, per Pill LJ).
16. The principles relevant to the proper approach to national and local planning policy are equally uncontroversial:
(i) The interpretation of policy is a matter of law, not of planning judgment (Tesco's Stores Ltd v Dundee City Council [2012] UKSC 13).
(ii) National planning policy, and any relevant local plan or strategy, are material considerations; local authorities need not follow such guidance or plan, if other material considerations outweigh them.
(iii) Whereas what amounts to a material consideration is a matter of law, the weight to be given to such consideration is a question of planning judgment: the part any particular material consideration should play in the decision making process, if any, is a matter entirely for the planning committee (Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at page 780 per Lord Hoffmann)."
" In this country planning decisions are taken by democratically elected councillors, responsible to, and sensitive to the concerns of their local communities. As Lord Hoffmann put it in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and Regions [2003] 2 AC 295, para 69: 'In a democratic country, decisions about what the general interest requires are made by democratically elected bodies or persons accountable to them'. Democratically elected bodies go about their decision making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose will be defeated: the councillors either will not read them or will not have a clear enough grasp of the issues to make a decision for themselves. It is their job, and not the court's, to weigh the competing public and private interests involved."
" it is essential that the policy is properly understood by the determining body. If the body making the decision fails to properly understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy."
Local Plan Policies
"In town centres and at Key Existing Office Locations on the Great West Road and at Bedfont Lakes (Refer to Proposals Map) a change of use from offices will be acceptable if evidence is provided of active marketing of the site for offices for a period of at least two years.
Proposals for the redevelopment of office floorspace for a mix of uses where the above criteria are not met will only be considered appropriate where it can be demonstrated that the equivalent number of jobs can be provided."
"Our approach
We will support high quality tall buildings in identified locations and which contribute to the regeneration and growth of that area and in accordance with the principles of sustainable development.
We will achieve this by:
a. Focusing tall buildings (20m and over) in the town centres of Feltham and Hounslow where access to public transport is good and where they can contribute to the ongoing regeneration of both areas;
b. Supporting a limited number of tall buildings in Brentford town centre. These should be carefully designed and placed so as not to adversely impact on views from and between Kew Gardens (RBGK and WHS), Syon Park and the Thames foreshore landscape. They should also respect and respond to the area's special townscape and heritage values;
c. Focusing tall buildings along certain sections of the Golden Mile frontage. These should be carefully placed so as not to create a linear wall of tall buildings, or substantially impact on the setting of Kew WHS or Syon Park;
d. Preserving the predominantly 2-to-3 storey (less than 10m) building heights across the rest of the borough with some limited scope for 4-to-6 storey (up to 20m) buildings/elements along main streets (for example London Road), to assist with way-finding and where the opportunity exists for higher density development;
e. Not seeking to replace existing tall buildings which are in inappropriate locations and not allowing them to be a justification for the provision of new ones;
f. Undertaking more detailed urban design analysis where required; and
g. Working with our partners, particularly English Heritage and Royal Botanic Gardens Kew."
There are several proposed modifications to this policy, but no modifications are proposed to either sub-paragraphs (d) or (e).
Grounds of Challenge
(1) The analysis of emerging policy in the Officers' Report was defective and significantly misleading in particular with reference to tall building policy CC3 (Ground 2).
(2) The Council failed to evaluate whether there was a true fall-back position (Ground 3).
(3) The Council failed to recognise the clear breach of policy EP2 of the Hounslow Local Plan and to address the question of whether there was overall conformity with the development plan on a lawful basis (Ground 1).
(4) The Council's approach to late marketing evidence (submitted by the developer as the Officers' Report was being finalised) was unfair; contrary to the principles of natural justice and the requirements for fair consultation (and was inconsistent with the expectations of the Council's own SCI) (Ground 4).
(5) The approach to compliance with section 72 of the Listed Buildings Act was legally deficient (Ground 5).
The Parties' Submissions and Discussion
Ground 2: erroneous approach to emerging policy
"7.51 The Character and Context Study describes the area as being of high design quality, but also being highly sensitive to change, with no suitability for tall buildings. It forms part of Character Area E where Empire House is described as incongruous.
7.55 Policy CC3 of the emerging local plan states that there is limited scope for 4-6 storey buildings of up to 20m height along main roads and this stretch of the High Road (from Chiswick Roundabout to Turnham Green) is partly characterised by 5-6 storey buildings, including The Moran Hotel, 500 Chiswick High Road and, just over the border in Acton is the 7-8 storey Chiswick Point, which is a much wider structure. Further context for the site is formed by the recently erected six-storey development at 2 Bollo Lane to the east and taller buildings (including consented buildings of up to 12-storeys) within Chiswick Business Park to the west. The appearance of the proposed development could be described as an extension of this character in relation to its character and quality.
7.64 In terms of the other new buildings, they are of scale appropriate for the town centre and the street scene, showing the same careful use of materials, which will be conditioned. The combination of the buildings creates a new sense of place, bringing and linking Essex Place into the High Road. The same post-modern contemporary style has been approved at the Acton Lane site.
7.65 The Acton Lane building is 5 storeys high, 16.5m high, as opposed to the approved 4-storey building, which was 13m high. This increase in height is not considered to be harmful to the area, nor be out of character with it, as evidenced by the building opposite, for example. The design is similar to that which is already approved for the site and has been approved in nearby developments and it is comparable in height and scale to nearby buildings.
7.66 The Essex Place buildings would be a new type of development on this site. The town houses are considered to be of an appropriate scale for this end of the street, creating a gap between the higher Acton Lane building and the main Essex Place building, meaning that there is no canyon effect in this rejuvenated street and creating gaps in the development, such that there is no tunnel effect. The flatted block is 8 storeys high, in part, which much of this section immediately behind the taller Empire House, with the rest of this tallest section angled away from Turnham Green following the curve of the road. The remaining sections are 7/6 storeys, with some of the 7 storey building hidden from view in Turnham Green by Empire House, with the remainder, being limited in visibility from the Green due to its distance from the High Road. In summer views of this building are largely obscured from the Green by existing trees. In winter the building is more apparent, but it would not be a dominant feature, as it is set back from the High Road, partially obscured by trees and would be secondary to Empire House.
7.73 While the Character and Context Study says that this is a low height area, emerging Local Plan Policy CC3 does allow scope for tall buildings up to 4-6 storeys/20m high along main streets and the effect of these new buildings set behind the High Road is not harmful to the character of the area. This is a town centre site and the scale of development is appropriate to such a location, and despite the low-scale aspirations for Chiswick, in this instance, as it enables wider regeneration of the area, which is positive. This conclusion accounts for the recognition that the applicant needs to build the level of development proposed in order to make the scheme viable and provide affordable housing. Crucially, this also allows the overall appearance of Empire House and Essex Place to improve, which, given demolition is not proposed, is considered to enhance the character and appearance of the Turnham Green Conservation Area. Furthermore, it improves the appearance of the setting of the adjacent listed Packhorse pub and the Church on Turnham Green."
Ground 3: the fall-back position
"In his proposed claim, the Claimant now appears to be questioning whether the Council considered whether there was any realistic prospect of Lend Lease actually utilising the Class J permitted development rights in the event that the planning application were refused. This criticism is artificial. I consider it is obvious and I can confirm that if the Council's Planning Committee had refused to grant planning permission for the comprehensive redevelopment scheme then Lend Lease would have pursued a strategy to proceed with the necessary works to change the use of the tower pursuant to its Class J permitted development rights in order to crystallise the residential use. It is well known and also obvious that the commercial value of residential use floor space is generally significantly greater than office floor space (let alone the office floor space in question here). In addition, the change of use from office to residential pursuant to the Class J permitted development rights would then have meant that any future applications for planning permission would have been in the context of an existing residential use of the tower."
" If a fall-back or alternative use is to be undertaken it will, in most cases, be a material consideration to which regard must be had
The requirement to have regard to the consideration imports a requirement on the decision maker to have before it sufficient material so that the consideration can be assessed. In the context of fall-back cases this all reduces to the need to ask and answer the question: is the proposed development in its implications for impact on the environment, or other relevant planning factors, likely to have implications worse than, or broadly similar to, any use to which the site would or might be put if the proposed development were refused? By 'might' I do not mean a mere theoretical possibility which could hardly feature in the balance (see, especially, the Brentwood case). For a fall-back suggestion to be relevant there must be a finding of an actually intended use as opposed to a mere legal or theoretical entitlement. "
"26. The fall-back argument is in truth no more or less than an approach to material considerations in circumstances where there are, or may be, the opportunity to use land in a particular way, the effects of which will need to be taken into account by the decision maker. That involves a two stage approach. The first stage of that approach is to decide whether or not the way in which the land may be developed is a matter which amounts to a material consideration. It will amount to a material consideration on the authorities, in my view, where there is a greater than theoretical possibility that that development might take place. It could be development for which there is already planning permission, or it could be development that is already in situ. It can also be development which by virtue of the operation of legal entitlements, such as the General Permitted Development Order, could take place.
27. Once the question of whether or not it is material to the decision has been concluded, applying that threshold of theoretical possibility, the question which then arises for the decision maker is as to what weight should be attached to it. The weight which might be attached to it will vary materially from case to case and will be particularly fact sensitive "
Ground 1: breach of statutory duty (s.38(6) of the 2004 Act)
" It will be clear from what I have said above that in my view compliance with the duty under section 38(6) does as a general rule require decision makers to decide whether a proposed development is or is not in accordance with the development plan, since without reaching a decision on that issue they are not in a position to give the development plan what Lord Clyde described as its statutory priority. To use the language of Lord Reed JSC in Tesco Stores Ltd v Dundee City Council (Asda Stores Ltd intervening) [2012] PTSR 983 , they need to understand the nature and extent of any departure from the development plan in order to consider on a proper basis whether such a departure is justified by other material considerations."
"7.23 The applicant has provided a report on behalf of the previous owners of the site from 2012 which concludes that Empire House is not ideally suited to meet current modern office requirements for a number of reasons. Some of these relate to the physical constraints of the building and others relate to the location and competition in the market.
7.27 Taking into account the characteristics of Empire House as detailed above, and that the tower has lain vacant for a considerable period of time, the loss of the office floor space is deemed appropriate when replaced by residential development, in this instance.
7.28 This is particularly in the context of the significant housing needs of the borough and London in general and the government's policy allowing offices to change to residential under the prior approval process, which seeks to boost housing delivery.
7.38 The principle of the residential and retails uses of this town centre site is acceptable, given the obsolescence of the existing office use. A rejuvenated retail element is retained at the ground floor of the High Road (which is part of the brief of the site allocation). There is a greater concentration of housing than the 35 in the allocated sites paper, but the quantum is within London Plan density ranges. Additionally, the proposal regenerates the area to the rear of the site and provides much needed affordable housing for Chiswick and the Borough. Consequently the principle is acceptable. "
"22. The law does not require Inspectors to include in their decisions an express conclusion as to whether or not a proposal is in accordance with the development plan or to adopt any particular mantra: see Lord Clyde in City of Edinburgh Council Secretary of State for Scotland [1997] 1 WLR 1447 at 1459H-1460C. In R (Hampton Bishop Parish Council) v Herefordshire Council [2015] 1 WLR 2367 at 2381D Richards LJ felt able to conclude that committee members had decided that the proposed development before them was not in accordance with the development plan even though there was no express reference to that conclusion in the officers' report. It is right that in Tiviot Way Investments Ltd v Secretary of State for Communities and Local Government [2015] EWHC 2489 (Admin) Patterson J agreed with the submission that:
'a finding of compliance or conflict with the development plan and the basis for it needs to be made so that the decision maker can proceed to undertake the planning balance in an informed way' [27].
She observed:
'Such a step is not just form. Rather it is an essential part of the decision making process, so that not only the decision maker but also the reader of the Decision Letter is aware and can understand that the duty imposed under section 38(6) has been discharged properly by the decision maker.'
She concluded:
'It needs to clear at the culmination of the decision taking process what the eventual judgment is against the development plan as a whole' [30].
23. However, Mrs Justice Patterson's judgment in Dartford Borough Council v Secretary of State for Communities and Local Government [2014] EWHC 2636 (Admin) makes it clear that the 'eventual judgment' can be implied from a fair reading of the decision letter as a whole, see [39]-[40]. That is consistent with the approach of the Court of Appeal in the Hampton Bishop case and was accepted as being correct by Mr Darby on behalf of the claimant."
Ground 4: unfairness
"In refusing to adjourn its determination of the application, so as to allow objectors the time needed adequately to address the Marketing Evidence, the Council acted so unfairly as to vitiate the Permission."
"Shane Baker, Planning Officer, advised that the request was in connection to documents relating to the application, which had been placed on the website. These included winter views and documents in relation to affordable housing, which was typically a process that ran through the application and was similar to the negotiation of other planning obligations. Evidence had also been provided in relation to marketing and the state of the building, but the gist of that argument had already been made in the planning statement. The information had been provided by the applicant and was supplementary to the original application. It did not comprise a change in the nature of the application and Mr Baker did not feel that it warranted deferral.
Benita Edwards, Legal Officer, noted that it appeared that all of the documents referred to had been published on the website and that all material information had been assessed as noted in the Report. Accordingly, she had no qualms about the Planning Committee determining the application that evening."
"In fact, having had the opportunity to consider the documents, it seems to me that they do not justify important conclusions expressed in the officers' report. Crucially the documents do not show evidence of marketing as a redevelopment opportunity for offices for a period of two years and do not produce evidence sufficient to justify the loss of employment use of the building. Quite to the contrary, the documents produced show no real evidence that the building was actually marketed at all in any serious way for employment uses. The Hanover Green document is marked as a draft document and whilst it states that Empire House is not ideally suited to meet current modern office requirements, it provides no real evidence of that The DTZ documents clearly suggest that the site presents good opportunities for employment uses The DTZ report produced specifically refers to the 'Excellent opportunity' that the site presents to take advantage of the thriving local market for office space and for hotel use. Whilst the letter from Charles Howard of DTZ dated 19 January 2015 says that 'the majority of interest [during a two month marketing period] was generated from the residential sector' it falls a long way short of dismissing employment uses. I strongly believe that the officer was wrong to conclude that the site was unsuitable for employment uses and given the opportunity I would have investigated the documents produced further and sought independent advice and evidence to show that the site was entirely suitable for employment uses."
Ground 5: heritage
" While the opening words of section 66(1) [of the Listed Buildings Act] indicate the occasion when the duty arises, they cannot be seen, in my view, to confine the decision maker's attention to the effects of the development proposed, when considering the desirability of preserving the listed building, its setting or its features. In practice, that may often be all that is relevant. But sometimes there may be relevant effects from not granting permission, as in the present case, and those must fall within the duty to pay 'special regard' under that sub-section. The present case was one where the choice was not merely between the appellant's restoration scheme with office use and preservation of the status quo. It was one where the choice, as recognised on all sides, was between two alternative uses, either of which would have effects on the listed building's relevant features. The Inspector clearly paid special regard to the positive benefits, as compared to the existing situation, of the appellant's restoration proposals associated with office use. What remains to be determined is whether he paid special regard to the negative consequences of residential use, which was the alternative future for this part of No.48 Park Street."
"I can turn directly to the affirmative reasoning of the court in this case which is epitomised in the following passage from the judgment of Mann LJ [1991] 1 WLR 1322, 1326-1327:
'In seeking to resolve the issue I start with the obvious. First, that which is desirable is the preservation or enhancement of the character or appearance of the conservation area. Second, the statute does not in terms require that a development must perform a preserving or enhancing function. Such a requirement would have been a stringent one which many an inoffensive proposal would have been inherently incapable of satisfying. I turn to the words. Neither "preserving" nor "enhancing" is used in any meaning other than its ordinary English meaning. The court is not here concerned with enhancement, but the ordinary meaning of 'preserve' as a transitive verb is 'to keep safe from harm or injury; to keep in safety, save, take care of, guard': Oxford English Dictionary, 2nd ed. (1989), vol.XII, p.404. In my judgment character or appearance can be said to be preserved where they are not harmed. The statutorily desirable object of preserving the character or appearance of an area is achieved either by a positive contribution to preservation or by development which leaves character or appearance unharmed, that is to say, preserved.'
My Lords, I have no hesitation in agreeing with this construction of section 277(8). It not only gives effect to the ordinary meaning of the statutory language; it also avoids imputing to legislature a rigidity of planning policy for which it is difficult to see any rational justification. We may, I think, take judicial notice of the extensive areas, both urban and rural, which have been designated as conservation areas. It is entirely right that in any such area a much stricter control over development than elsewhere should be exercised with the object of preserving or, where possible, enhancing the qualities in the character or appearance of the area which underlie its designation as a conservation area under section 277. But where a particular development will not have any adverse effect on the character or appearance of the area and is otherwise unobjectionable on planning grounds, one may ask rhetorically what possible planning reason there can be for refusing to allow it. All building development must involve change and if the objective of section 277(8) were to inhibit any building development in a conservation area which was not either a development by way of reinstatement or restoration on the one hand ('positive preservation') or a development which positively enhanced the character or appearance of the area on the other, it would surely have been expressed in very different language from that which the draftsman has used."
Conclusion