Successful challenge to dwellings in listed building grounds

The Court of Appeal found for our client and quashed planning permission and listed building consent for the conversion of two barns and the adjacent historic walled garden into two residential dwellings. The barns are in the grounds of Hollingbourne House, a Georgian listed building. The Court found that the Council was materially misled by a misinterpretation of Local Plan policy in the Officer’s Report, which did not correctly assess the environmental value of the existing site.

The application was to convert two conjoined barns in the grounds of Hollingbourne House (known as ‘the studio buildings’) into two adjoining residential properties with associated parking and residential garden areas. The proposal involved works to the studio buildings as well as works to a listed walled garden behind the studio buildings: demolishing and reconstructing a derelict listed garden wall at reduced height along its existing line, introducing two additional openings, carrying out repairs and restoration of other garden walls and a sunken glasshouse, and introducing measures to separate the listed walled garden into two plots.

The claim raised grounds including that (1) the officers had misinterpreted a key local policy by considering only the studio buildings, and excluding consideration of the walled garden, when deciding whether “the site” was of high environmental value, (2) that there had been an inconsistent approach by the Council in considering the contribution the studio buildings made to the setting of the listed building, and that (3) the Council had breached its statutory duty under the Listed Buildings Act.

The claim was unsuccessful in the High Court with the Judge considering the Council’s approach to the local policy and its analysis in respect of the heritage effects did not disclose any flaws.

The Court of Appeal granted permission to appeal on two grounds, relating to the correct interpretation of the local policy and whether an inconsistent approach had been taken. The Court of Appeal did not consider that in the circumstances of the case the Council had been required to give reasons why it was departing from the earlier views of the Council’s heritage officers. However, it agreed with Mr Kinnersley that the Council had not correctly interpreted a Local Plan policy, which allows for ‘residential redevelopment of brownfield sites in the countryside which are not residential gardens’ only where ‘the site is not of high environmental value’.

In assessing the environmental value of the ‘site’ under this policy, the Officer’s Report only assessed the value of the studio buildings, which it was agreed are brownfield land, and did not assess the value of the listed walled garden, which it was agreed is not brownfield land and is a residential garden. The studio buildings were found in the Report not to be of high environmental value. The listed walled garden was not assessed. The Officer interpreted the Local Plan policy as excluding residential gardens forming part of the proposed development area from the requirement for assessment of environmental value.

The Court found for the appellant that it would be contrary to the aims of the policy, one of which is to protect residential gardens, if residential gardens were excluded from the requirement to assess environmental value to determine whether a development could go ahead. The Court agreed with the appellant, further, that in the context and given other parts of the Local Plan policy the natural meaning of ‘site’ and the way it was used elsewhere in the Local Plan made clear that it referred to the whole of the application site. The Officer ought to have assessed the environmental value of the listed walled garden when applying this policy, and the Councillors were materially misled by relying on the Officer’s reasoning.

The Court therefore quashed the planning permission and listed building consent.

Harriet Townsend was instructed as counsel for Mr Kinnersley.