High Court overrules planning inspector over decorative shroud on listed building

Dan Kolinsky KC, sitting as a deputy High Court judge, quashed the inspector's decision in a case brought by the London Borough of Southwark against the Secretary of State for Housing and shroud provider Blow Up Media.

Mr Kolinsky said there had been a failure on the inspector’s part to explain the un-sought five years duration and a breach of the duty to give reasons.

Charlie Merrett, a barrister at Francis Taylor Building, who acted for Southwark, said: “This case, the first to consider the powers of an inspector on appeal as amended by reg. 17 of the 2007 Regulations, underscores that duration is not a technicality in advertisement consents - especially where temporary display is core to the planning balance.”

The display was a temporary decorative printed scaffold shroud to be placed on a Grade II listed building in a conservation area, which was to undergo renovation.

Southwark rejected this as inappropriate in a conservation area and the case was then appealed to the inspector.

A decision letter said: “The consent is for five years from the date of this decision and is subject to the five standard conditions set out in Schedule 2 of the 2007 Regulations”.

Mr Kolinsky noted: “There was no other reference to or explanation of the duration of the consent granted. There was no discussion of the fact that the application had been made for a six-month period.”

For Southwark, Mr Merrett contended that it was incumbent on the inspector to at least consider whether to grant consent for a period of six months rather than the standard five years.

He argued that para 2(1A) of schedule 4 of the 2007 Regulations created a duty on the inspector to consider the period specified in the application for which consent is sought.

Mr Merrett also said the inspector was in breach of his duty to give reasons and Southwark suffered substantial prejudice because the temporary nature of the display was central to its acceptability.

The Secretary of State argued that the duty to consider the period specified in the application applied only when an inspector was deciding to apply a shorter or longer period than the five-year standard period, which he had not done in this case.

Mr Kolinsky said: “The parties participating in this appeal did so on the common understanding that what was being sought was consent for six months.”
While the inspector was not bound by this consensus, its existence “does provide the context for considering what was expected of the inspector in this case”.

He said the inspector had reasoned there was no adverse impact because the harm of the advertising was offset by the benefit of the shroud being present only when the scaffolding was as well.

“This might support the conclusion that a time limited condition was unnecessary in the interests of amenity,” Mr Kolinsky said.

“However, another perspective could be advanced. The council could have said that the display would be less satisfactory than the ordinary appearance of the site and that there should be no incentive or opportunity for the display to remain in place for longer than it was needed to mask the impacts of the scaffolding during the renovation works. On this basis, the condition would serve a legitimate amenity purpose.

“The difficulty is that there is no indication in the decision as to whether (or how) the inspector thought about this.”

This was not academic as the five years consent could allow the shroud to - for example - be reinstated without further consent four years later and Southwark was not told the inspector's rationale.

Mr Kolinsky said: "I am satisfied that duration was a mandatory material consideration which needed to be addressed given the period specified in the application, the consensus before the inspector and the way that each party put its case in the appeal.

“I conclude that there was an error of law in the inspector not addressing the period of the consent in departing from the common understanding of the parties to the appeal (that they were debating whether express consent should be granted for a six-month period). The inspector also failed to give adequate reasons. This caused the council substantial prejudice.”

He rejected a second ground argued by Southwark that the inspector failed to properly consider the impact of the shroud on the conservation area, finding the inspector did lawfully examine this issue.

Mr Merrett said: ”As to heritage balance - this case serves as an important reminder that a net internal balance of benefits against harm is OK, as long as the benefits are heritage benefits and not public benefits.”

Mark Smulian