Legal Viewpoint: When historic use weighs heavier than appearance

A High Court judgment this summer raised a key issue over the relevance of character and appearance when assessing the impact of proposed development on conservation areas.

The case concerned St Modwen Developments Ltd’s plans for the former railway works at Wolverton, the midpoint of the London and Birmingham Railway, which opened in 1838. Locomotives and carriages had been manufactured on the site since 1840 and rail repair and maintenance use continues.

In August 2015, St Modwen submitted a planning application for commercial floorspace, a food store and up to 375 residential units on the site. Importantly, rationalisation of existing buildings was designed to facilitate the site’s continuing use for rail-related purposes. The proposal involved partial demolition of rail-related buildings of low architectural value that Historic England had recently declined to list.

In recommending approval, a council officer’s report stated that "historical railway use of the site and its commercial long-term future is of central importance". While acknowledging that demolition would result in some harm to the conservation area, the report stated that this was outweighed by the substantial and public benefits arising from granting permission. In particular, officers deemed it of "greater importance to maintain the historical use of the site for railway purposes than to retain non-listed buildings". In December 2017, the application was approved subject to conditions and a section 106 agreement.

Historic England issued proceedings for judicial review on five grounds. Mr Justice Holgate, on an initial review of the papers, found that only the second was arguable – the contention that the officer’s report had misunderstood the statutory purpose of the conservation area in asserting that the railway use was the site’s main contribution to it, and as such the conclusion reached in the report was irrational and unlawful.

In dismissing the challenge, Mr Justice Dove concluded that the phrase "character or appearance" is not confined to an area’s built fabric. "The term ‘character’ incorporates matters such as historic uses and the contributions they make to the character of the area by influencing the understanding of that area and reflecting experiences that are not simply visual," he reasoned. It was not irrational, he held, for the officers to have concluded that the railway uses that originally tied the conservation area to the reasons for its existence should be given greater weight than the preservation of some non-listed buildings.

R (Historic England) v Milton Keynes Council and St Modwen Developments Ltd; Date: 30 July 2018; Ref: [2018] EWHC 2007 (Admin)

Stephen Webb is a planning partner at Clyde & Co and acted for St Modwen Developments Ltd

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