APP/F5540/W/17/3180962 & APP/F5540/Z/17/3173208 TOWN AND COUNTRY PLANNING ACT 1990 APPEAL BY STARBONES LTD LAND AT CHISWICK ROUNDABOUT, GREAT WEST ROAD, CHISWICK, LONDON

CLOSING SPEECH ON BEHALF OF THE BOARD OF TRUSTEES OF ROYAL BOTANIC GARDENS KEW

Introduction

1. The Royal Botanic Gardens (“Kew Gardens”) is a world renowned botanical garden established in 17591 that has developed through centuries of scientific and cultural evolution and is now also a global scientific institute. It is also the site of a designed landscape of international significance with contributions by most of the major landscape designers of the eighteenth century including Charles Bridgeman, William Kent and Lancelot “Capability” Brown. This landscape was later redesigned in the nineteenth century by William Hooker, William A Nesfield and Decimus Burton to create the most famous example of a Victorian botanic garden.

2. Kew Gardens is also the site of a very important collection of buildings, including a large number of listed buildings, six of them Grade I listed, of all periods of English architecture from the sixteenth century onwards, including: Kew Palace; a number of important surviving garden buildings from the eighteenth century and the most significant collection of glasshouses worldwide including the Orangery, the Palm House and the very recently restored and re-opened Temperate House2.

3. It was Kew Gardens’ unique combination of: 1) its scientific, and in particular botanical and ecological, importance; 2) its highly influential landscape design; and

1 It houses a historically and scientifically significant collection of living and preserved plants and fungi. Kew Gardens contains the most diverse collection of plant species of any botanic garden in the world. As Mr Ground said in opening it “has had a greater impact on the world than any other botanic garden”. 2 This has recently undergone a £42million restoration and was re-opened by Sir David Attenborough in May 2018. 1 WORK\31744720\v.1 17316.240 Classification: Confidential

3) its outstanding collection of historic buildings and other architectural features that led to its inscription as a World Heritage Site in 20033.

4. As explained in opening4, and as discussed in Mr Williams’ evidence, the Board of Trustees of the Royal Botanic Gardens, Kew (“RBG Kew”5) is a non-departmental public body sponsored by DEFRA. It is a charity6. Its Trustees are appointed by the Government. Being a charity, the decision to seek rule 6 status and to oppose the appeal proposal at this inquiry was not one that was lightly taken given the considerable costs and resources involved.

5. The fact is that the RBG Kew, while monitoring all planning applications in six wards in the LB of Hounslow and two in the LB of Richmond7, only objects to a very small number of applications. It objects only when its interests are adversely affected, as is the case here. It really is a wholly exceptional course for RBG Kew to have sought rule 6 status and to be appearing at a planning appeal as it is doing here8. It has done so only because of genuine concern as to the harm that will result to the World Heritage Site if this appeal is allowed. RBG Kew’ case is that the appeal proposal is “a tipping–point beyond which further development would result in substantial harm to the OUV, authenticity and integrity of the World Heritage Site”9. For the Appellant in opening10 to seek to dismiss out-of-hand these concerns as “overblown, inappropriate and irresponsible” is risible and betrays a fundamental lack of appreciation of the Outstanding Universal Value or “OUV” of Kew Gardens as a World Heritage Site.

3 See further below. 4 INQ4. 5 In this closing “Kew Gardens” is used to describe the physical site of the gardens - “The Royal Botanic Gardens, Kew” - which has the World Heritage Site designation. In contrast “RBG Kew” is used to identify the legal entity that now occupies and manages the site: “The Board of Trustees of the Royal Botanic Gardens, Kew.” 6 In opening it was said that RBG Kew was a “registered charity” (INQ4, emphasis added). This is an error, for which apologies. The correct position is that it is an exempt charity (i.e. under the Charities Act it is exempt from the requirement to register with the Charity Commission (hence it does not have a charity registration number)) but it is a charity regulated by, and subject to, charity law. 7 This is several dozen applications a week. It has done this monitoring for many years. 8 See Mr Williams EinC, confirming the accuracy of the content of para. 9 of RBG Kew’s opening (INQ4) to be correct. 9 See para. 5.31 of the Mayor’s London’s World Heritage Sites – Guidance on Settings SPG, 2012, CDC.11. 10 See para. 91. 2 WORK\31744720\v.1 17316.240 Classification: Confidential

6. From the outset RBG Kew’s objection to the appeal proposal has been based on harm to the OUV of the World Heritage Site, in particular: (i) Kew Garden’s rich and diverse historic cultural landscape, and (ii) Kew Garden’s iconic architectural legacy, in particular the Orangery11. The LB of Hounslow refused the scheme citing the impact on the setting and OUV of the Kew World Heritage Site in its reasons for refusal. Moreover, Historic England (“HE”) in its consultation response12 indicated that it “considered that there would be appreciable adverse harm to the OUV of the World Heritage Site (and the significance of the Grade I listed buildings …) …”13 (emphasis added).

The issues upon which RBG Kew makes submissions

7. RBG Kew’s objection is to Appeal A (APP/F5540/W/17/318962). RBG Kew makes no case on the linked Appeal B (APP/F5540/Z/3173208). This is because these advertisements would not be visible from Kew Gardens. But of course, if Appeal A is refused, as RBG Kew says it should be, then Appeal B must also inevitably be refused.

8. RBG Kew’s case on this appeal is very largely confined to Main Issue 2 – the effect on the setting and significance of heritage assets. However, in so far as it overlaps with Main Issue 1 – the design issue - some submissions must be made on this also.

Preliminary matters

9. Before considering in detail the heritage impacts there are a number of preliminary matters to be dealt with.

(i) The support for RBG Kew’s objections by others and the weight to be given to these views

11 See CDE.07. 12 CDE.05 13 The consultation response states “[t]he outstanding universal values of the World Heritage Site specifically refer to the landscape design and the iconic architectural legacy of the Royal Botanic Gardens. A particularly important aspect of the many highly graded listed assets within the WHS is their designed landscape setting. Similarly, much of the significance of the grade I registered park & garden comes from the landscape design with its primary and secondary views, with formal and informal elements overlapping. Whilst certain viewpoints may be of particular value within the WHS, the experience of this unique asset is a kinetic one which clearly cannot be distilled to singular viewpoints”. And it is also said “[t]he development will appear as an arbitrary new element on the skyline from within the World Heritage Site from a number of viewpoints. An important kinetic view affected would be of the Grade I listed Orangery as one approaches from the south west …” 3 WORK\31744720\v.1 17316.240 Classification: Confidential

a. The World Heritage Site Steering Group 10. The decision to actively participate and to oppose the appeal at inquiry has been endorsed by the World Heritage Site Steering Group14 (“the Steering Group”). This brings together various bodies to ensure that the Kew World Heritage Site is considered as part of wider decision-making. In addition to the Director and departmental heads, the Steering Group includes representatives of: the LB of Richmond; the LB of Hounslow; the GLA15; HE; the UK national committee of International Council on Monuments and Sites (ICOMOS-UK)16; Thames Landscape Strategy17, and also external consultants18. The Steering Group also oversees the implementation of the World Heritage Management Plan for Kew Gardens (2014) (“the Management Plan”)19.

b. The World Heritage Centre 11. The refusal of planning permission has also been very recently supported by the UNESCO World Heritage Centre in Paris. The Centre supports the World Heritage Committee20.

12. Thus, in a letter to the Department for Culture, Media and Support (“DCMS”) dated 28 May 2018, the Director of the World Heritage Centre, confirmed their support for the

14 See section 7 of Mr Williams’ proof, his App. 4 and his answers in EinC. 15 Given the Appellant’s suggestion of support from the Mayor (see below) it is notable that support for RBG Kew’s objection to the appeal proposal was endorsed by the Steering Group which includes a GLA representative. 16 See Mr Croft’s proof at para. 3.3.5 for the role of ICOMOS; it acts as adviser to the World Heritage Committee and World Heritage Centre – as to which see below. ICOMOS-UK is the UK national committee of ICOMOS. They are an independent charity with a UK-wide and international mission to promote and support best practice in the conservation, care and understanding of the historic environment. ICOMOS-UK also has a role in advising on aspects of World Heritage and sites for nomination across the UK 17 The Thames Landscape Strategy is a not-for-profit partnership that champions the river corridor between Weybridge, Hampton and Kew that for centuries has been known as the Arcadian Thames: see CDF.11. The partners include: Central Government, the Environment Agency, the GLA, HE, the Port of London Authority, the LBs of Richmond, Hounslow and Hammersmith & Fulham and the West London River Group. 18 See Mr Williams proof at para .7.1. 19 CDF.10. 20 Established by Article 8 of the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage (1972). The Committee is responsible for the establishment and management of a list of places that are considered to be of outstanding universal value, called the World Heritage List. The Committee also maintains the “World Heritage in Danger” list. See for its particular views in this case RBG/3. 4 WORK\31744720\v.1 17316.240 Classification: Confidential

refusal of planning permission for the appeal proposal because of “the adverse effect of the proposal to the World Heritage property and to the significance of the Kew Green21.”

c. ICOMOS 13. Moreover, and importantly, the refusal of planning permission has also been strongly supported by a recent technical review undertaken by ICOMOS22.

14. ICOMOS is a non-governmental international organisation dedicated to the conservation of the world's monuments and sites. ICOMOS relies on a network of experts, chosen for their expertise and experience, who offer their technical expertise independently and in accordance with the rules governing experts. It advises both UNESCO’s World Heritage Committee and the World Heritage Centre. It plays a key role in the process by which World Heritage Sites are inscribed and did so in respect of Kew Gardens23 and ensures the conservation status of World Heritage properties.

15. It has issued a technical review dated May 2018 in relation to the appeal proposal. The Secretary of State is asked to consider this detailed and careful technical review in full, and to accord significant weight to the views therein expressed. There are a number of key points (emphases added): 1) “Setting24 is a key element that may have direct positive or negative impacts on the World Heritage property and its significance, not only due to the visual effects, but also due to many other experiential elements”. 2) Kew Gardens is “a designed cultural landscape” that “is tightly linked to its location and to the River Thames and its landscape” and “[a]ny disturbance of the enjoyment of this connection and feeling would strongly diminish the experience of the place and its Outstanding Universal Value”. 3) The appeal proposal “would cause substantial harm to the World Heritage property, especially affecting its visual integrity”.

21 See RBG/3. 22 See RBG/3a. 23 See below. 24 It is also noted that “[t]he Xi’an Declaration on the Conservation of the Setting of Heritage Structures, Sites and Areas … acknowledges the contribution of setting to the significance of heritage monuments, sites and areas, defining setting as the immediate and extended environment that is part of, or contributes to, its significance and distinctive character”. 5 WORK\31744720\v.1 17316.240 Classification: Confidential

4) “ICOMOS considers that the visual integrity of Royal Botanic Gardens, Kew, is threatened by the new development proposed …” and it is noted that while the “Northern Edge is dominated by a predominately urban environment” Kew Green, “limited somehow by the buildings, is crucial in order to maintain this pastoral feeling of the place, and would hardly support an adverse impact as caused by the high buildings of the development proposal”. 5) “[t]he setting is especially important, and has been a main concern in the conservation of the property, as stated in its Periodic Report – Second Cycle (“Development outside the Buffer Zone may threaten the setting of the property”)”. 6) In terms of the Environmental Statement ICOMOS “does not agree with the conclusions provided, as ICOMOS considers that the visual integrity is threatened and may cause substantial harm to the experience of the World Heritage property. Most of the considerations of the Environmental Statement rely on the quality of the architectural design and proposal, and consider the project as a contribution and an enhancement of the attributes of the property. ICOMOS’ role is not to determine the quality of the project, but only its possible impact on the OUV of the property, and considers that it is evident that the project does not contribute at all to the feeling and spirit of the “Arcadian” landscape, not only of the property itself, but also of its setting, which is a major attribute of OUV. This consideration is not only based on the direct visual impact on the property itself, but also on the experience of the approach to the property, which is severely threatened by the high tower buildings that clash with the feeling of the whole setting along the River Thames. Heritage values must not only be preserved in their tangible aspects, but also the “spirit” both of the property itself and of the approach to it”. 7) “ICOMOS’ evaluation at the time of the nomination for inscription on the World Heritage List already included comments on the impact of the Haverfield Estate towers - which will be reinforced by the new development, adding mass and volume to the already existing construction - and warned about the new developments that could take place that would cause potential harm to the property. This statement was further reinforced by the Thames Landscape Strategy and by the 2014 Management Plan”. 8) “ICOMOS does not consider that the new development would give any beneficial input to the property and its setting; rather, it would considerably harm its OUV, and thus ICOMOS advises that the planning permission be refused”.

6 WORK\31744720\v.1 17316.240 Classification: Confidential

16. It is necessary, albeit only briefly, to respond to the Appellant’s (predictable, yet regrettable) attempts25 to undermine the weight to be given to the views of ICOMOS. Dealing with the points raised: 1) It was suggested that ICOMOS did not have the benefit of the Mayor’s views on the appeal proposal: there are two points in response to this: (i) it is clear that ICOMOS had the LB of Hounslow’s officer report26 which set out the views of the Mayor in its Stage I report; and (ii) in any event the Mayoral documents say nothing meaningful about what impact if any there would be on the Kew World Heritage Site27. 2) It was suggested that ICOMOS did not have all the relevant documents, in particular the TVIA addendum: it is clear from the exchanges between UNESCO and DCMS28 that DCMS referred UNESCO to the LB of Hounslow’s planning website that contained all relevant documents. The ICOMOS technical review does not expressly name check the TVIA addendum but it does make many references to the “Environmental Statement” and the TVIA and its addendum are, of course, part of the Environmental Statement29. 3) There was some kind of hint that the technical review, in terms of its timing, had been engineered by the rule 6 parties: the DCMS and UNESCO communications30 show that this is not the case.

17. The criticisms made are very weak indeed but the fact that Appellant felt it necessary to make these attacks shows its understandable concern at the content which provides the strongest possible basis for rejection of the appeal proposal by an important, and respected, international body of experts31. The views of ICOMOS should be given great weight. The Inspector and the Secretary of State would need to give cogent reasons for disagreeing with its views.

25 These points were put by Mr Harris in XX of Mr Croft but none of them was spoken to by any of the Appellant’s witnesses in their oral or written evidence. 26 See Mr Croft’s answers in XX. 27 See below. 28 INQ18 - 19 29 Mr Finch in his proof only mentions the TVIA and not the TVIA addendum, and presumably the Appellant will not be suggesting that this means he did not consider the latter document. 30 Ibid. 31 Mr Finch in XX said he had very great respect for ICOMOS’s expertise despite his palpable disdain for UNESCO. 7 WORK\31744720\v.1 17316.240 Classification: Confidential

d. Others 18. RBG Kew draws resolve not just from the support for refusal of the appeal proposal by these important international bodies, but also from the strong opposition to this appeal from others32 including: 1) HE: in relation to HE’s objection it must be borne in mind that it is “the Government’s adviser on the historic environment”33. As such and as a statutory consultee its views should be given considerable weight and only departed from for good reason: see e.g. R (East Meon Forge and Cricket Ground Protection Association) v East Hampshire District Council [2014] EWHC 3543 (Admin), paras. 108 – 109 and R (Hayes) v York City Council [2017] P.T.S.R. 158734 at para. 92. In Mr Dunn’s evidence-in-chief and in HE’s opening it was made clear that it is only very rarely that HE gets involved in a planning inquiry and it has done so “given the widespread and extensive harmful impact of the scheme on historic sites, some of which are of the greatest importance”35. 2) the LB of Hounslow36: the local planning authority who in refusing planning permission, in reason for refusal 1, states “[t]he development, by virtue of its location, scale and design, would cause harm, including substantial harm to a range of designated heritage assets including Royal Botanic Gardens Kew World Heritage Site”37. The officer report provided further analysis in support of this and its case on this appeal has been supported by expert heritage evidence given by Mr Grover who concludes38 “the appeal proposal would cause a high level of harm to the World Heritage Site, Registered Park and Garden Conservation Area and Royal Botanical Gardens, Kew … it would harm the Outstanding Universal Value identified by UNESCO”.

32 See Mr Croft’s prof at para. 2.2.6. 33 See HE’s opening, INQ5, at para. 1, it is also “the lead body for the heritage sector” (ibid). 34 “Furthermore, Ms Dring pointed out that Historic England, the Government's statutory adviser on heritage assets, supported the proposal; and the city council would be bound to attach "considerable weight" to its view and would need "cogent and compelling reasons" for departing from it: Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin); [2013] Env LR D2, para 72, per Beatson J.” 35 Ibid. at para. 2. 36 Reason for Refusal 1 records that the appeal proposal “would cause harm … to a range of designated heritage assets including Royal Botanic Gardens Kew World Heritage Site … listed buildings of all grades … and conservation areas through harm to their settings.” 37 CDB.04. 38 See para 5.29 of his proof. 8 WORK\31744720\v.1 17316.240 Classification: Confidential

3) the LB of Richmond39: the authority within whose boundary Kew Gardens lies and which has strong development plan policies40 seeking to protect Kew World Heritage Site and its setting. It made a “[s]trong objection because of height of building and its impact on views and heritage assets”41. 4) Historic Royal Palaces: this organisation which is responsible for, inter alia, Kew Palace objected because “of the potential harmful impact that the development could have on the setting of and views from Kew Palace and because of the harm that it would do to the Outstanding Universal Value of the World Heritage Site”42.

(ii) The lack of proper consultation with key stakeholders 19. The evidence shows that by the time of the public exhibition held in late October 2015 the key design decisions that lie behind the appeal proposal had been made by Messrs Egret and Coleman. They had already determined the height of the appeal proposal and defined this by reference to a single viewpoint within Kew Gardens that they had determined was different to, and deserving of, protection in a way that no other views within Kew Gardens were43. These decisions were made before any attempts to engage with and consult with either HE or RBG Kew44. No explanation has been given of the failure to engage with HE and RBG Kew when the proposals were still at a formative stage. When HE and RBG Kew were belatedly contacted just a few short weeks before the application was submitted they both made clear their strong objections. But the die was cast by then and no meaningful design changes were made in response. That did not happen. Given the proximity to and impacts upon the Kew World Heritage Site as well a number of other heritage assets the failure to engage is simply inexcusable45.

39 The local planning authority in which Kew Gardens is located. 40 And emerging Development Plan policies, see Mr Croft’s proof section 3.12. 41 CDB.01, para. 5.21. 42 Ibid., para. 5.10. 43 Confirmed in XX by Mr Egret. 44 There was contrary to what is claimed in Mr Egret’s proof at para. 7.12.3 no pre-application meeting with RBG Kew. The first attempt to contact RBG Kew came two days before the public consultation on 22 October 2015. No wonder Mr Finch was so reluctant to accept in XX that good practice required that HE and the RBG Kew be consulted before key design decisions, such as height, were made. This is self- evidently good practice but it was not followed in this case. 45 The failure to engage with RBG Kew early enough had other consequences. Messrs Egret and Coleman in their “good long conversations” (see Mr Egret’s answers in EinC), workshops etc. to design the appeal proposal were unable to access the Temperate House or the Pagoda. They could have asked to but they never did. 9 WORK\31744720\v.1 17316.240 Classification: Confidential

(iii) The views of the GLA/Mayor 20. The views of the Mayor and “the Mayoral team”46 have been sought to be preyed in aid time and time again by the Appellant in this inquiry. Thus, in the Appellant’s opening one sees this point made in various ways at paras. 20, 21, 34, 48 and 53. In these paragraphs, and time and time again in cross-examination by Mr Harris, the point is put that this team is particularly expert (”highly skilled”47 it is said) and that it found no unacceptable harm to Kew Gardens. However: 1) There is in fact no evidence48, none at all, before this inquiry that anyone with any expertise in heritage matters within the Mayoral team, assessed the appeal proposal. Indeed documents submitted by the LB of Hounslow show that at the time of the GLA’s involvement with the appeal proposal it had one part-time (1 day a week) heritage adviser but he did not consider the appeal proposal49; 2) More importantly it is impossible to know what the final view reached by the Mayoral team on any harm to Kew World Heritage Site and its other heritage assets such as the Orangery actually was: i. In the Stage I report (CDG.01, 18 February 2016) there does appear to be a suggestion that the proposed development will not affect the OUV of the Kew World Heritage Site50. This view was based on the TVIA and did not have the benefit of the rather more detailed assessment of the OUV contained in the TVIA addendum51. Ultimately, the Stage I report ultimately concludes “… given the importance of preserving the Outstanding Universal Value of the World Heritage Site, GLA officers would welcome further detailed discussion around the selection of the submitted views in order to be satisfied that the assessment is complete and thorough”52; ii. In the Stage II report (CDG.02, 6 February 2017) it is noted53 that the LB of Hounslow, and its independent consultants, having reviewed the TVIA and TVIA addendum concluded that there was harm caused by the appeal

46 To use the language adopted by Mr Harris in XX. 47 See Mr Coleman’s proof at para. 3.3. 48 Mr Harris repeatedly suggesting in XX that this was case does not constitute evidence. 49 See INQ20 and 21. It was Mr Dunn’s evidence on behalf of HE that the Mayor currently has no specialist in-house heritage expertise and it was looking for advice from HE to fill this gap. 50 See paras. 60 – 61. 51 The latter document was not produced until October 2016, long after the Stage I report. 52 Para. 61. 53 P. 7, paras. 29 – 31. 10 WORK\31744720\v.1 17316.240 Classification: Confidential

proposal including less than substantial harm to the setting of the World Heritage Site and substantial harm to Kew Green and Strand on the Green conservation areas. The report then baldly states “GLA officers do not agree with the range and extent of harm to heritage assets that would be caused by the proposed development. Whilst harm to Strand on the Green is noted, this is mitigated by securing the highest quality and standard of design, so that harm is considered to be less than substantial.” 3) This final conclusion is, to say the least, highly unsatisfactory, thus: i. It leaves wholly unclear what conclusion the Mayor has actually reached about whether there is in his view any harm, and if so how much harm, to the World Heritage Site, and indeed to other heritage assets located within and adjoining the World Heritage Site; ii. Even if one just assumes, as the Appellant seems to, that the conclusion was that there was no harm to any of these heritage assets the report sets out no detailed, or indeed any, reasons as to why and how this view has been taken by the Mayoral team. The reasoning on heritage issues is quite frankly woefully inadequate. It brings to mind the observations of the Court of Appeal in the case of Horada v Secretary of State for Communities and Local Government [2017] 2 All E.R. 86 where it was said that “[t]he reader of the decision letter would have had to have been not only well informed but also psychic” to understand it. Here to have any idea what the GLA’s view of harm was, and why, psychic powers of the highest order would be required; iii. In short it cannot be assumed from what is written in the Stage II report that the conclusion reached is one of no harm to Kew World Heritage Site; iv. If the Secretary of State wants to understand why it is HE, RBG Kew and ICOMOS take the views they do on the harm caused to the World Heritage Site he can look at their detailed reasoning (e.g. in objections/consultation responses, proofs and in the case of ICOMOS its technical review) in order to understand that view and the reasons for it. In respect of the views of the Mayoral team there is a complete lack of reasoning. It is simply not possible to know what conclusion they reached or why. On that basis little, if any,

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weight can be given to the views of the Mayor, whatever they may be, on harm to the World Heritage Site54. v. Finally, for all the Appellant’s suggestions of strong Mayoral support for the appeal proposal the actual outcome of the Stage II report was that it was determined by the Mayor that he should not use his powers to call-in the application despite knowing that the LB of Hounslow intended to refuse the application. The Mayor was thus ultimately content to allow this application to be refused. With friends like that the Appellant really doesn’t need enemies.

21. Given all these matters, the weight the Secretary of State should attach to the views of the Mayoral team, whoever they are and whatever their expertise or lack of it, must be very limited.

(iv) Accurate Visual Representations (“AVRs”) 22. AVRs are, of course, only an aid an assessment and give an indication of how a development may appear in a single static view. They are only ever part of the assessment. Mr Croft’s careful and detailed assessment in his proof draws on both the AVRs produced by Mr Spence and those produced by AVR London.

23. Mr Spence was instructed jointly on behalf of the LB of Hounslow and RBG Kew to produce additional AVRs, and also to consider the accuracy of the viewpoints in the TVIA and addendum TVIA55. Mr Spence’s expertise is really beyond any dispute56. He has since 2013 been a member of the Landscape Institute’s Technical Committee, within a sub-group responsible with dealing with photography and photomontage in landscape and visual assessment57.

24. There are a number of short points that need to be made in respect of Mr Spence’s work:

54 See Mr Croft’s answers in RX. 55 RBG Kew adopts and endorses the explanation given by Mr Ground in opening for why Mr Spence was instructed. 56 See Mr Coleman’s answers in XX by Mr Ground. 57 See Mr Spence’s proof at paras. 2.1 2.3, his answers in EinC and Mr Coleman’s answers in XX by Mr Ground. 12 WORK\31744720\v.1 17316.240 Classification: Confidential

25. First, there is really no question but that Mr Spence has produced images that “are highly accurate and correctly illustrate the positioning, scale and massing of the proposed Chiswick Curve building”58. These are undoubtedly useful in judging the impacts of the appeal proposal.

26. Second, while Mr Spence’s viewpoints do not show a rendered version of the Chiswick Curve this does not in any way detract from their usefulness in relation to the impact on Kew Gardens. This is for three reasons: (i) the principal purpose of the viewpoints he produced is to allow an understanding of the height, scale and massing of the appeal proposal not its detailed finish59; (ii) in any event from Kew Gardens little, if any, of the detailing would be readily appreciable60; and (iii) such detailing is not in any event a precise science, there is a strong element of artistic judgement61.

27. Third, one of the reasons for tasking Mr Spence with doing the work he did was a general sense that the viewpoints in the TVIA and addendum TVIA just did not look right62. The sense of this amongst the LB of Hounslow and RBG Kew professional teams was such that it was considered necessary to commission further work. The key issue, as it turns out, is the use of a tilt shift lens in all of the Appellant’s visualisations and which has the effect of vastly accentuating the amount of sky visible and reducing the visual impact of the appeal proposal. In a number of the visualisations over two thirds of what can be seen is sky63. For all the hours of evidence there has been on these matters very little has been put forward by the Appellant to justify its approach. It is true that for a small handful64 of the 50 viewpoints produced by the Appellant it might be said to be arguable

58 See Mr Spence’s proof at paras. 1.8. and 4.1 and his answers in EinC describing his methodology aimed at producing a “higher level of visual accuracy”. 59 See Mr Spence’s answers in EinC. 60 See below. 61 See Mr Coleman’s answers in XX by Mr Ground. 62 Mr Grover in EinC stated that when on a site visit he was puzzled that the viewpoints in the TVIA and TVIA addendum did not show the appeal proposal appearing as prominently as he expected it to be in certain views and that while these appeared to be optically correct there was a sense of something not being quite right about these visualisations. 63 Ibid. 64 In his EinC Mr Coleman suggested viewpoints 15 and 30 in the TVIA benefited from tilt shift. The view of Mr Spence (see his proof at para. 6.3) and the view of Dr Ian McAulay (see Mr Spence’s App. 1) is that the use of tilt shift was “unfounded” in relation to any of the viewpoints in CDA.11 and CDA.15. But in any event even assuming that Mr Coleman is correct on this the fact is that in his EinC he said that use of tilt shift is appropriate for all the images produced if, but only if, a “good proportion of views require it”. That is not the case here on any view. 13 WORK\31744720\v.1 17316.240 Classification: Confidential

that a tilt shift lens should be used. But the plain fact is that for the vast majority of the visualisations did not require this, and to produce all the visualisations in this way based on a plea for “consistency” is simply unjustifiable and wrong.

28. Fourth, Mr Harris constant refrains in cross-examining Mr Spence on his very valid criticisms of the Appellant’s visualisations included: “[t]his is how things are done in London”, you’ve little experience of visualisations for tall buildings in London and instead the Secretary of State should65 “trust us, we are the experts”. But all of this rings rather hollow. Thus, the use of tilt-shift lenses may well be justified in city centre London locations to capture tall buildings. But the context here is totally different. Almost all of the Appellant’s visualisations could, and more pertinently should, have been shot without the use a tilt lens.

29. Fifth, various criticisms were sought to be made of Mr Spence’s visualisations in Mr Coleman’s rebuttal proof and appendices and in cross-examination of Mr Spence by Mr Harris. But none of these criticisms were defended in any meaningful way by Mr Coleman66 under cross-examination. It is clear from the evidence that none of these criticisms of Mr Spence have any validity. The Secretary of State can be advised that he may properly, and that he should, have regard to, and use, Mr Spence’s visualisations as an important part of the assessment of the impacts of the appeal proposal.

30. Sixth, in any event, Mr Croft has in reaching his views considered all the visualisations produced by all parties. So even if one were to set aside Mr Spence’s visualisations entirely, which would be an egregious error, but even if one did do that and judged the appeal proposal solely against the visualisations in the TVIA, the TVIA addendum and Mr Coleman’s rebuttal it does not materially affect the judgments reached by Mr Croft on the highly adverse heritage impacts.

(v) The principle of a tall building on the Appeal Site 31. We have at this inquiry heard many times the mantra “the principle of a tall building on the Appeal Site has been accepted”. This mantra, and its actual relevance (if any) to this appeal, needs careful consideration.

65 Paraphrasing the line of XX. 66 See Mr Coleman’s answers in XX by Mr Ground. 14 WORK\31744720\v.1 17316.240 Classification: Confidential

32. First, much is made by the Appellant of the Citadel, which benefits from an extant planning permission. It is certainly true that the Citadel if built would be very much visible from certain heritage assets such as, for example, Kew Green67. But the fact is that because it is only 59m it would be a lot less visible from Kew Green than would be the appeal proposal68. As regards the impact of the Citadel on Kew Gardens there are a number of key points that need to be made69: 1) The Citadel was first consented prior to Kew Gardens being inscribed as a World Heritage Site; 2) The officer report contains no analysis whatever – none at all - of any impact, or even possible impact, on Kew Gardens, or any of the listed buildings within it, which is surprising given the duties under s. 66 of the Planning (Listed Buildings & Conservation Areas) Act 1990 (“the P(LB&CA)A 1990”)70. The only credible explanation for this is that it was just not appreciated by anyone that there was even the possibility of any impacts on Kew Gardens or heritage assets within it71. A planning mistake should not be used to justify an even more harmful mistake. Mr Goddard in his oral evidence described the Citadel as a benchmark. If it is any sort of benchmark (and it has influenced the Brentford East SPD72) it is a deeply flawed one. It was granted without any consideration being given to impacts on Kew Gardens. 3) Such views as there would be of the Citadel from within Kew Gardens would be far more limited than views of the appeal proposal73. But the Secretary of State must be very cautious indeed about reaching views on the extent of visibility of

67 And which, of course, forms a key part of the buffer zone to the World Heritage Site. 68 See Mr Spence’s viewpoints 11. 69 All of which were accepted in XX by Mr Coleman. 70 Mr Coleman’s suggestion in RX (repeated by Mr Goddard in XX) that the absence of any assessment of Kew Gardens views including the Orangery as part of the Citadel application just proves it is not a “designed view” is preposterous. While Kew Gardens was not inscribed at the time, the Orangery was a Grade I listed building. The evidence clearly shows, as Mr Coleman accepted in XX, that no one considered the possibility of any impact on Kew Gardens at all. That tells us nothing about the importance or otherwise of views of the Orangery. No one turned their mind to the subject-matter of Kew Gardens. 71 See Mr Goddard’s App. 2 paras. 8.15 and 8.16. 72 See below. 73 In XX Mr Coleman suggested that it would be glimpsed from a number of locations, including behind the Orangery and from the Temple of Aeolus, but it would only really be prominent in views from the upper windows of Kew Palace. It would be far less visible than the appeal proposal within Kew Gardens given it is about half the height. 15 WORK\31744720\v.1 17316.240 Classification: Confidential

the Citadel from Kew Gardens as compared to the appeal proposal as there are no visualisations of this which have been prepared for the appeal74 (there is only a Kew Green view prepared by Mr Spence) and, of course, no assessment at all75 was undertaken as part of the Citadel planning application76. 4) Mr Coleman in his proof says at para. 9.32 that “[t]he consented and implemented Citadel building already establishes the acceptability of a tall building being visible in background views at Strand on the Green and any meaningful, viable tall building on the site, as envisaged by the Brentford East Planning and Design SPD, would similarly be visible. The issue is not one of visibility, but of qualitative assessment of impact”. Tellingly he made no such claim or comment as regards Kew Gardens and the Orangery in particular. Mr Goddard in cross-examination indicated that he thought the lack of concern with Kew Gardens in terms of the Citadel was because there would only be limited views of it from the Gardens. It seems that is what was assumed at the time but regrettably, at least in terms of the Orangery77, it may not be entirely correct; 5) In terms of Mr Coleman’s reference to “any meaningful, viable tall building on the site, as envisaged by the Brentford East Planning and Design SPD” this draft SPD in fact seeks to limit the height of any building on the Appeal Site to 60m78. This is based on the extant permission for the Citadel79 but given the absence of any assessment at all of the impact of the Citadel on Kew Gardens this must be treated with considerable caution. Even a c. 60m will be harmful, something considerably taller will be far more harmful. Moreover, the policy is in draft and the Appellant through the East Brentford Collective has challenged the evidence and legality of the draft SPD. There are other objections outstanding. It can be given only limited weight at this stage in any regard including the identification of the site for a landmark or gateway building.

74 See Mr Goddard’s answers in XX. 75 And it would seem thus no visualisations produced. 76 See above. 77 The Citadel would, it is accepted, be visible from the upper windows of Kew Palace. This was not considered in the officer report for the Citdadel despite it being a Grade I listed building and a scheduled monument. In XX Mr Coleman suggested it was possible there might also be views of the Citadel from the Order Beds and the Temple of Aeolus. This is not accepted and there are no visualisations of the Citdael to assist: see below. 78 See further below. 79 See CDD.05 p. 30 and Mr Goddard’s answers in XX. 16 WORK\31744720\v.1 17316.240 Classification: Confidential

6) Finally, in this regard, the evidence of the Citadel being a fall-back is highly doubtful given the absence of any evidence showing it is viable, and indeed the assertion in the Environmental Statement is that it is not viable80.

33. Second, at 59m there is no dispute that the Citadel would be a tall building. Indeed, in the LB of Hounslow anything over 20m is so defined81. That it would be defined as a tall building does not though provide any sort of justification for a far, far taller building.

34. Third, the fact that the LB of Hounslow has found to be acceptable a building that is 59m high, self-evidently does not mean that it is in some way bound to also find to be acceptable a building that is 109m above ground (120.29m AOD). And, of course, it does seem that the LB of Hounslow in granting the Citdael permission failed to consider impacts on Kew Gardens. It is the Citdael permission which has driven the height limit set in the draft SPD. Given what has emerged at this inquiry the height set in the draft SPD will need to be revisited.

35. Fourth, the appeal proposal would be the tallest building in the LB of Hounslow, it would be the tallest building in West London82. It is far taller than any other existing tall building in Hounslow. In opening Mr Ground called the appeal proposal an “alien, incongruous and attention seeking building of unprecedented height”83. It is far taller than a number of existing buildings which already have an adverse effect the setting of the Kew World Heritage Site, e.g. Vantage West (62m AOD); the BSI Building (71.3m AOD); the Haverfield Estate towers (72m AOD) and the Kew Eye (102.1m AOD)8485.

80 See Mr Goddard’s answers in XX by Mr Harwood. 81 See CDD.07 p 16 and Mr Coleman’s APP/3/D2 at paras. 4.1, 4.6 and 4.8 82 Mr Egret began his presentation with images of the Eiffel Tower. If the Chiswick Curve is granted permission many in West London might want to bear in mind the possibly apocryphal story that Guy de Maupassant ate lunch every day at the base of The Eiffel Tower, because that was the only place in Paris from which he could not see it. 83 Emphasis added. 84 See Mr Baker’s proof at para 6.13 and Mr Goddard’s rebuttal at para. 16. 85 Also known as the Wallace house development. The adverse impact of this tall building approved in 2005 and at that time under construction was noted in the World Heritage Centre’s 2014 Periodic Report (see Mr Croft’s App. F, p 11). It was strongly objected to by RBG Kew at the time. In opening the RBG Kew referred to as the “Kew eye-sore”. 17 WORK\31744720\v.1 17316.240 Classification: Confidential

36. Fifth, it cannot be forgotten that the draft East Brentford SPD seeks to limit the heights of any building on the Appeal Site to 60m86. This limitation is based on, inter alia, limiting (but not avoiding) impacts on Kew Gardens87. The draft SPD and the supporting documentation is well-reasoned in setting this limitation, and not in any way “arbitrary” as the Appellant has sought to suggest. This responsible and appropriate approach to limiting the heights of buildings close to a World Heritage Site is entirely consistent with what ICOMOS has urged as being necessary in Liverpool88.

37. The Appellant’s arguments on the principle of a tall building on the Appeal Site are of limited utility to its actual case on this appeal.

(vi) Is this about an aversion by RBG Kew to modernity?

38. Whatever the views of others may be RBG Kew’s objection is not motivated by an aversion to modernity. There are a number of notable modern buildings and structures in Kew Gardens, including the Alpine House89, the Princess of Wales Conservatory and the Hive. Any attempt though to rely on these structures and buildings to justify the Chiswick Curve is fallacious. The Alpine House and Princess of Wales Conservatory are part of a long-tradition of glasshouses in Kew, and the Hive part of the tradition of follies.90 All of these were designed to fit within the landscape of Kew Gardens. There cannot be any valid comparison to the impact of a vast 32-storey tower on the Chiswick Roundabout invading multiple views of the Gardens.

Kew Gardens heritage designations and their importance

39. Kew Gardens is washed over by and contains a number of heritage designations of “the highest significance”91 including:

86 See CDD.05 para 4.36 (and footnote 1) and 4.38. There was some height modelling to 65m done for the draft SPD, see p. 27, but the height was limited to 60m in the draft SPD. The Local Plan Review suggests 60 – 65m (see CDD.04 p. 95) but this is at a very early stage and carries very limited weight: see para. 8.58 of Mr Goddard’s answers in XX. 87 See CDD.05 at pp. 12, 18 and 26 – 27 and CDD.06 pp. 5, 7, 13, 31, 51, 63 – 65, 76, 78, 80 & 83 and Mr Goddard’s answers in XX. 88 See Mr Croft’s answers in EinC. 89 Mr Harris suggested English Heritage objected to the Alpine House, but there was never any evidence produced to support this assertion. 90 See the oral evidence of Messrs Williams and Croft. 91 See para 132 of the NPPF, CDC.01 and Mr Coleman’s answers in XX. 18 WORK\31744720\v.1 17316.240 Classification: Confidential

1) A World Heritage Site; 2) A Grade I Registered Historic Park and Garden; 3) Over 40 individual listed buildings and structures, including 6 Grade I Listed Buildings and 5 Grade II* Listed Buildings; and 4) An Ancient Scheduled Monument.

40. Because these assets are all of the “highest significance” any harm to the significance of these assets must be accorded the greatest weight92. In cross-examination Messrs Egret, Coleman and Goddard all accepted that in relation to the Kew World Heritage Site in particular any impact on this heritage asset was one of the key material considerations in judging the acceptability of the appeal proposal. It is submitted, for all the reasons set out below, it is the key consideration on this appeal.

(i) World Heritage Site a. The international context 41. The inscription of the Royal Botanic Gardens, Kew as a World Heritage Site in 2003 places international obligations on the UK Government under the terms of the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, 1972 (“the Convention”) and its supporting Operational Guidelines93. Thus, the Convention by Article 4 imposes a “strongly worded”94 obligation to ensure the “protection, conservation, preservation and transmission to future generations of” World Heritage Sites and requires that a state which has ratified the Convention “will do all it can to this end, to the utmost of its resources”95.

42. The Operational Guidelines, at para. 9696, remind State Parties that “Protection and management of World Heritage properties should ensure that their Outstanding Universal Value, including the conditions of integrity and/or authenticity at the time of inscription, are sustained or enhanced over time.”

92 Ibid. Para. 132 says that “great weight” must be given to the conservation of designated heritage assets and the more important the asset the grater the weight. 93 See Mr Croft’s proof paras. 3.3.1 and 3.3.2. 94 In XX Mr Coleman accepted this description of the duties as being correct. 95 See Mr Croft’s proof at para. 3.3.2. 96 Ibid. at para 3.4.9. 19 WORK\31744720\v.1 17316.240 Classification: Confidential

43. The protection of World Heritage Sites in international law goes beyond the boundaries of the site itself. Thus the Operational Guidelines indicate the need for “[a]n integrated approach to planning and management” and make clear this approach goes beyond any designated buffer zone to “the broader setting” of a site, emphasising that this involves consideration of the “natural and built environment”, “land use patterns” and “visual relationships”97.

44. The Operational Guidelines defines “OUV”, see para. 49, as meaning “cultural and/or natural significance which is so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity. As such, the permanent protection of this heritage is of the highest importance to the international community as a whole”98. This text also begins to give voice to the level of importance that must be attached to World Heritage Sites, and the weight that must be given to any harm to the significance of such sites. They transcend national boundaries and are of common importance for present and future generations of all humanity99. This is something echoed in the PPG.100. Indeed, as already noted in the NPPF a World Heritage Site is said to be a designated heritage asset “of the highest significance”101.

45. The World Heritage Site designation is the most significant102, and rarest103, heritage designation there is.

b. OUV

97 Ibid. at paras. 3.4.12 and 3.4.13. 98 Ibid. at para 3.4.6, see also the TVIA, CDA.11 at para 8C.1 and Mr Coleman’s answers in XX. 99 Ibid. 100 Thus para. 28 says World Heritage Sites are inscribed because they are “so exceptional as to transcend national boundaries and to be of common importance for present and future generations of all humanity”, CDC.02. See also para 8C.1 of the TVIA in CDA.11. 101 See para. 132, and see also: (i) the PPG at para. 26 (CDC.02) and (ii) the draft revised NPPF para. 182 (CDC.03) which says “Heritage assets range from sites and buildings of local historic value to those of the highest significance, such as World Heritage Sites which are internationally recognised to be of Outstanding Universal Value”. This confirms that World Heritage Sites are at the highest end of significance in terms of the range of heritage assets protected by the NPPF. 102 See in this regard para. 182 of the draft revised NPPF. 103 There are only 18 cultural World Heritage sites in England. There are just 4 in London, compared to over 1000 conservation areas, 19000 listed buildings, 150 registered parks and gardens and 150 ancient scheduled monuments: see CD.04 para. 7.30, p. 297. See also Mr Coleman’s answers in XX. 20 WORK\31744720\v.1 17316.240 Classification: Confidential

46. The PPG records that “[t]he Outstanding Universal Value of a World Heritage Site, set out in a Statement of Outstanding Universal Value, indicates its importance as a heritage asset of the highest significance…”.

47. The London Plan sets out in Policy 7.10: World heritage sites, states that "Development in World Heritage Sites and their settings, including any buffer zones, should conserve, promote, make sustainable use of and enhance their authenticity, integrity and significance and Outstanding Universal Value" and goes on to state that "Development should not cause adverse impacts on World Heritage Sites or their settings (including any buffer zone). In particular, it should not compromise a viewer’s ability to appreciate its Outstanding Universal Value, integrity, authenticity or significance".

48. After 2005, UNESCO required all World Heritage Sites to produce a Statement of Outstanding Universal Value (“SOUV”), with an accompanying Statement of Integrity and, for cultural sites, a Statement of Authenticity, along with a description of Protection and Management Requirements. The retrospective SOUV for Kew Gardens was submitted by the UK Government to UNESCO following consideration and was adopted in 2010 (CDF.17).

49. There has in some of the Appellant’s documentation been an unseemly attempt to suggest that OUV of Kew Gardens is “invested more prominently in the value of its horticulture and its tree collections, rather than its designed layout, which has been compromised”104. In cross-examination of Mr Croft by Mr Harris it was suggested that this was not, when read in context, what the TVIA addendum was actually saying. This comment was being made, it was suggested, solely in the context of the loss of the Victorian garden layout. But it quickly became clear in cross-examination of Mr Coleman that this is in fact his view, and he sought (at least initially) to defend it105. But this view is just wrong. Something that is borne out by even the most cursory of reads of the SOUV for Kew Gardens106, which records that the criteria under which Kew Gardens was

104 See the TVIA Addendum, CDC.15, para 2.33. 105 He said that the value of the gardens “were less easy to identify” and that accordingly this was a less prominent aspect of the OUV than the botanical. It was put to him directly that he was making a statement that the OUV of Kew Gardens was more prominently invested in horticulture than landscape and that this was his view. He confirmed that it was. 106 See CGF.17, and as the PPG advises a para 29, CDC.02 “[a] Statement of Outstanding Universal Value is agreed and adopted by the World Heritage Committee for each Site on inscription. The Statement sets out what 21 WORK\31744720\v.1 17316.240 Classification: Confidential

inscribed. Mr Coleman when pressed accepted in cross-examination that there was nothing in the SOUV that supported a view that Kew Gardens’ OUV is invested more prominently in the value of its horticulture and its tree collections, rather than its designed layout. He also accepted that there is nothing in the SOUV which supported the view that its designed layout, Victorian or otherwise, was “compromised”.

50. It is, of course accepted, that part of the OUV of Kew Gardens does indeed arise from what the Appellant refers to as “the value of its horticulture and its tree collections”. But the OUV is also very much invested in its designed landscape and its buildings. Thus, looking at the OUV (CDF.17) the following can be noted:

1) Under the heading “Brief synthesis” it is noted that: i. “Set amongst a series of parks and estates along the River Thames’ south-western reaches, this historic landscape garden includes work by internationally renowned landscape architects Bridgeman, Kent, Chambers, Capability Brown and Nesfield illustrating significant periods in garden design from the 18th to the 20th centuries”; ii. “The landscape design of Kew Botanic Gardens, their buildings and plant collections combine to form a unique testimony to developments in garden art and botanical science that were subsequently diffused around the world. The 18th century English landscape garden concept was adopted in Europe …”; iii. “… the mid 19th century garden, which overlays earlier royal landscape gardens is centred on two large iron framed glasshouses – the Palm House and the Temperate House that became models for conservatories around the world”; iv. “Elements of the 18th and 19th century layers including the Orangery, Queen Charlotte’s Cottage; the folly temples; Rhododendron Dell, boundary ha-ha; garden vistas to William Chambers’ pagoda and Syon Park House; iron framed glasshouses; ornamental lakes and ponds; herbarium and plant collections convey the history of the Gardens’ development from royal retreat and pleasure garden to national botanical and horticultural garden”; 2) The criterion which formed the basis for inscription include: the World Heritage Committee considers to be of Outstanding Universal Value about the Site in relation to the World Heritage Convention and includes statements of integrity and, in relation to cultural sites or the cultural aspects of ‘mixed’ Sites, authenticity, and the requirements for protection and management. Statements of Outstanding Universal Value are key reference documents for the protection and management of each Site and can only be amended or altered by the World Heritage Committee.” 22 WORK\31744720\v.1 17316.240 Classification: Confidential

i. “Criterion (ii): … The landscape and architectural features of the Gardens reflect considerable artistic influences both with regard to the European continent and to more distant regions” and; ii. “Criterion (iv): The landscape gardens and the edifices created by celebrated artists such as Charles Bridgeman, William Kent, Lancelot 'Capability' Brown and William Chambers reflect the beginning of movements which were to have international influence”; 3) Under the heading of “integrity” it is said “[t]he boundary of the property contains the elements that bear witness to the history of the development of the landscape gardens …” and raises a concern that development outside the Gardens and its buffer zone “may threaten the setting of the property”; 4) Under the heading of “authenticity” it is said “[t]he 44 listed buildings are monuments of the past, and reflect the stylistic expressions of various periods. They retain their authenticity in terms of design, materials and functions … Unlike the works of architecture, in each of the landscaped garden areas, the past, present and future are so closely interwoven … that it is sometimes difficult to separate the artistic achievements of the past in terms of the landscape design of the different periods. Recent projects such as recutting Nessfield's beds behind the Palm House have started to interpret and draw attention to the earlier landscapes created by Capability Brown and Nessfield”.

51. There is really no doubt that the SOUV places very considerable emphasis on the historic designed landscape and architectural legacy that underpins and differentiates Kew Gardens from other Botanic Gardens across the world107. The suggestion that the OUV of Kew Gardens is invested more prominently in the value of its horticulture and its tree collections, rather than its designed layout is misconceived. Mr Coleman’s strenuous attempts to support a different analysis at least indicate the importance of the issue. It seems clear that the misguided view set out in the TVIA addendum was Mr Coleman’s starting point, and this has doubtless influenced the design decisions and approach taken to the appeal proposal.

107 See Mr Croft’s proof at para. 5.3.2. And see also the views of ICOMOS in RBG/3a “Setting is a key element that may have direct positive or negative impacts on the World Heritage property and its significance, not only due to the visual effects, but also due to many other experiential elements. The Royal Botanic Gardens property, a designed cultural landscape, is tightly linked to its location and to the River Thames and its landscape. Any disturbance of the enjoyment of this connection and feeling would strongly diminish the experience of the place and its Outstanding Universal Value” (emphasis added). 23 WORK\31744720\v.1 17316.240 Classification: Confidential

52. The draft revised NPPF, para. 182, clarifies that World Heritage Sites are recognised internationally for their Outstanding Universal Value, and that this forms part of their significance and should be taken into account in considering development proposals. As Mr Coleman says in his proof at para. 5.4 this reflects what was widely understood to be the position in any event108.

53. Moreover, setting is of key importance to the OUV of a World Heritage Site. Thus the Mayor’s London’s World Heritage Sites – Guidance on Settings SPG, 2012, CDC.11 (“the Mayoral SPG”) makes clear at para 1.3 “[t]he setting of a World Heritage Site is recognised as fundamentally contributing to the appreciation of a World Heritage Site’s Outstanding Universal Value and changes to it can impact greatly, both adversely and beneficially, on the ability to appreciate its Outstanding Universal Value”.

54. The Mayoral SPG makes a further point that while the individual heritage assets within a World Heritage Site (e.g. listed buildings) will have their own overlapping settings “the World Heritage Site itself has a wider setting of its own” 109. What is also crystal clear is that the setting of a World Heritage Site is not confined to its buffer zone110.

55. The Operational Guidelines further emphasise the importance of setting to OUV111.

56. Setting is absolutely critical to the OUV of Kew Gardens, as can be seen above the SOUV expresses the concern, highly pertinent to this appeal, that “[d]evelopment outside this Buffer Zone may threaten the setting of the property112”. The importance of setting is further emphasised in the Management Plan113. 57. One final point in this regard. In the Appellant’s evidence, and in cross-examination by Mr Harris, the suggestion was made in relation to conservation areas that the setting of

108 And see his answers in XX. 109 See para. 4.2 110 See what is said in the Kew Gardens SOUV on this and see also the Mayoral SPG at para 3.19 and the Management Plan at para 8.1. Moreover, in XXing Mr Croft it was Mr Harris himself who noted that the PPG (CDC.02, p. 26 para. 33) refers to the buffer zone as forming only part of the setting. The clear implication being, he said, that setting goes beyond the buffer zone. See also the answers of Messrs Croft and Coleman on this in XX on this to the same effect. 111 See Mr Croft’s proof at paras. 3.4.13 and Mr Coleman’s answers in XX. Mr Coleman failed to mention the Guidelines in any of his evidence. 112 The property here means the Kew World Heritage Site. 113 See below. The Mayoral SPG at para 4.7 makes the point that “[i]n London, the World Heritage Site management plans can help to inform the extent of setting …”. 24 WORK\31744720\v.1 17316.240 Classification: Confidential

these attract less protection than the setting of listed buildings because of the absence of any statutory protection for setting in relation to the former, and its inclusion in s. 66 of the P(LB&CA)A 1990 in respect of the latter. Of course, World Heritage Sites enjoy no statutory protection either in respect of either the sites themselves or their settings. But this cannot mean that the importance of World Heritage Sites and their setting is less important than the setting of a listed building. The policy protection given to World Heritage Sites is very strong114. They are the most important of all heritage assets, see above. They are also protected in International law. The PPG, at para. 32, notes that planning authorities in both Plan making and development control need to be concerned with “protecting the World Heritage Site and its setting, including any buffer zone, from inappropriate development”.

c. The Management Plan i. Status 58. There appears to be no dispute as to the importance of the Management Plan to the issues on this appeal.

59. The purpose of a Management Plan is, as explained in the Mayoral SPG, at paras. 2.20 and 2.21, to “set out objectives and action plans for implementation based on conserving each site’s Outstanding Universal Value, authenticity and integrity” and to define “attributes which give a more detailed expression of the World Heritage Sites’ Outstanding Universal Value”.

60. That it is a highly material document on this appeal is established by, inter alia, the following: 1) The Mayoral SPG advises that Management Plans should “inform … the assessment of development proposals” (see para. 2.23) and it makes clear that a Management Plan is key because what it does is to set out “the definition of attributes which give a more detailed expression of the World Heritage Sites’ Outstanding Universal Value”115 something that “will help in managing the site and its setting”116;

114 In XX Mr Coleman accepted the lack of any statutory protection for a World Heritage Site was irrelevant given the strength of the policy protections. 115 CDC.11 para 2.21. 116 Ibid. 25 WORK\31744720\v.1 17316.240 Classification: Confidential

2) The London Plan Policy 7.10B under the heading “Planning decisions” states “appropriate weight should be given to implementing the provisions of the World Heritage Site Management Plans”117. 3) Policy CC4(d) of the Hounslow Local Plan states that the LB of Hounslow will “[w]orking with Royal Botanic Gardens Kew World Heritage Site, London Borough of Richmond and Historic England to conserve and enhance the outstanding universal values of The Royal Botanical Gardens Kew World Heritage Site, its buffer zone and its setting, including views to and from this asset. This includes assisting in the implementation of the World Heritage Site Management Plan”(emphasis added); 4) The PPG states that “[g]iven their importance in helping to sustain and enhance the significance of the World Heritage Site, relevant policies in management plans need to be taken into account by local planning authorities … in determining relevant planning applications”.

ii. Content 61. The Management Plan is critical to this appeal in three main ways: 1) It clearly indicates that in terms of the OUV of Kew Gardens and the attributes that make this up considerable attention is given to the landscape and broader “setting”118. Thus, by way of example only: i. Policy 1(d) seeks to prevent development “which would impact adversely on the WHS, its Outstanding Universal Value or its setting”; ii. Policy 3(a) emphasises setting and seeks the promotion of the World Heritage Site as a “palimpsest of landscape history”; iii. Policy 3(c) states that “[t]he setting of listed buildings and key landscape features within the gardens and their interrelationships should be maintained and enhanced, with particular attention to the gardens overall spatial cohesion and WHS River Thames landscape settings”;

117 It is pointed out that Management Plans are “produced by a steering group or consultation committee made up of stakeholders with an interest in the management of the site and its setting, including local authorities, GLA, English Heritage, DCMS, ICOMOS UK as well as property and land owners with a vested interest in the World Heritage Site” (see para. 2.19) and also says that “All management plans undergo public consultation, which provides opportunities for wider engagement in their development and helps ensure buy-in by stakeholders. The most recently published management plan in London is the Royal Botanic Gardens, Kew Management Plan 2011. It sets out criteria for enhancing the World Heritage Site and defines the attributes of Outstanding Universal Value.” (see para. 2.23). 118 See Mr Croft’s proof App. G. 26 WORK\31744720\v.1 17316.240 Classification: Confidential

iv. Para 1.3.1 under the heading “The purpose of the Plan” states that this is about “not just ensuring the physical survival of the site and its structures and/or the improvement of their condition, but also enhancing the visual character of their landscape setting, … and improving the interpretation and understanding of the WHS as a landscape without parallel …”; v. Para 9.1.2 under the heading “Landscape Conservation” says that “[s]ustaining the OUV of the Site should focus on the protection, conservation and enhancement of the WHS, so that the landscape setting and interrelationships of the designed landscape and listed buildings can be fully appreciated” and adds that this should “include the removal or screening of intrusive features, as well as the preservation of surviving visual and contextual links and the encouragement of an appropriate setting for the WHS and the attributes of its OUV”. vi. Para 9.2.8 in describing the “Historic Landscape” says that what is of importance is that “the landscape setting and interrelationships of the designed landscape and listed buildings can, once again, be fully appreciated” and this would involve “the removal or screening of intrusive features, as well as the preservation of surviving visual and contextual links, opening sight lines and the enhancement of key attributes”. 2) It provides detailed information that assists in understanding what the setting of the Kew World Heritage Site is made up of. This is considered further below but mention must be made of what is said in para 12.2.11, namely that “Kew Gardens is positioned in a unique location along the meandering River Thames and forms part of a natural and designed landscape representing an Arcadian vision throughout time”. 3) It makes clear that the intrusion of development outside of the World Heritage Site and its buffer zone, in the form of existing and possible future tall buildings north of the River, is a major threat to the setting of the World Heritage Site and hence to its OUV and significance. Thus: i. Policy 3(h) states “[t]he visual integrity of the WHS should be improved by the removal or screening of existing inappropriate structures” and that “[i]n medium / long term seek opportunities to promote a reduction in the impact of the visually intrusive Brentford High rise”. ii. The Haverfield Estate tower blocks are said to “punctuate the skyline above the trees in the Riverside Zone and represent an unfortunate “eyesore”” (see para. 3.6.3). 27 WORK\31744720\v.1 17316.240 Classification: Confidential

iii. Para 3.6.5 says that both “the Haverfield estate tower blocks” and also “emerging dominant development along the western bank of the Thames within Brentford” pose “a threat to the quality of the overall setting”. iv. “ICOMOS International in the past has taken the view that the overall aspect of six 22-storey tower blocks (Haverfield estate) at Brentford on the opposite banks of the Thames, opposite the gardens and outside the Buffer Zone, diminished119 the visual experience at Kew at several points in the Gardens. Current development proposals for Brentford raise additional concern for future intrusion within the visual envelope of the WHS” (see para. 3.9.2, emphasis added); v. Para. 8.1 says “[t]he greatest development pressures relating to the setting of the Gardens are currently situated in the Brentford area on the west bank of the Thames. The existing Buffer Zone boundary of the WHS in respect to Brentford is regarded as not sufficient and therefore does not encompass all the necessary future visual protection of its setting. The extension of the WHS Buffer Zone further into Brentford is likely to be beneficial for both Kew Gardens and the aspirations for the regeneration of the area …”; vi. Para. 8.3 under the heading “the need to protect view lines outside the WHS buffer zone” states that “[t]he view lines of the vistas and their visual envelopes extend outside the World Heritage Site Buffer Zone, but are an integral part of the Site’s Outstanding Universal Value” and that these need additional planning protection. The Haverfield Estate is described as having “a detrimental effect on the skyline due to their visibility” (emphasis added)120. It is said that these buildings “increase pressure for further tall buildings in their vicinity. Developers have argued that the presence of tall buildings is a particular feature of the locality and hence feel that further tall buildings would be in keeping with the character of the area” and that such developments “could have a significant impact on Kew”.

62. The threat posed by tall development north of the River to the setting, OUV and significance of the World Heritage Site is reflected in other documents produced by

119 ICOMOS in fact said it “seriously diminished” the visual experience. 120 Mr Coleman is thus quite wrong in his proof to suggest that the Haverfield Estate towers give rise to “a negative experience on account of their poor design and repetitive form”. They are poorly designed and repetitive in form but the real harm comes from their visibility. That is what the Management Plan says. 28 WORK\31744720\v.1 17316.240 Classification: Confidential

ICOMOS. We have seen that this threat is specifically recorded in the SOUV as a threat to the integrity of the Kew World Heritage Site. The concern in this regard pre-dated inscription. Thus the ICOMOS site evaluation (CDF.19) began by stating that “The Royal Botanic Gardens of Kew form a historic landscape garden whose elements illustrate significant periods of the art of gardens from the 18th to the 20th centuries.” Following a detailed account of the importance of Kew Gardens as a “cultural landscape” it is recorded:

“The ICOMOS mission took the view that the overall aspect of six 22-storey tower blocks (Haverfield estate) at Brentford on the opposite bank of the Thames, opposite the gardens and outside the buffer zone, seriously diminished the visual experience at Kew at several points in the gardens” (emphasis added)121. 63. Further, the issue continues to be a pertinent one. As part of its obligation to UNESCO, the UK Government undertakes periodic reporting on its World Heritage Sites. The 2014 report122 notes in the comment section (2.1) on the SOUV, that there is “[i]nappropriate development outside buffer zone causing harm to WHS.”, it also notes in section 2.4 that “development outside buffer zone in Brentford causing harm to the OUV”. Section 2.5 goes on to state “[i]t is however desirable to express the significance of Kew as well and fully as possibly. This is particularly important given other values - such as economic regeneration - which are currently seen as antithetical to the protection of OUV...” A table123 lists “Assessment of current negative factors” and under “Buildings and Development” refers to the impact as being “significant” and the trend as being “increasing”. There is a further table124 setting out “Factors affecting the Property” and which lists “Buildings and Development” including both housing and commercial development as affecting the fourth criterion on which Kew Gardens was inscribed. Kew Eye is specifically mentioned and it is said that “Other proposals are coming forward”. These are the views of the UK Government itself in reporting to UNESCO125. They are wholly in line with Mr Croft’s analysis, and the views of

121 It is also said that “ICOMOS was informed in December 2002 that a building permit had been granted by the London Borough of Hounslow for a 16-storey block at Brentford near the Haverfield estate”. This is the former Thames Water site on Kew Bridge Road located very close to the Haverfield Estate and now built: App. Ref. 00657/B/P15. RBG Kew objected vociferously to this during the spring and summer of 2002 citing concerns about jeopardising the nomination then in process. This harmful further visual intrusion, adding to the harm caused by the Haverfield Estate, is visible in certain of the AVPs: see the TVIA, CDA.10, p. 135 by way of example only. 122 See Mr Croft’s proof App. F. 123 P. 5. 124 P. 11. 125 See Mr Croft’s at para. 5.7.15 and his answers in EinC. This document was not referred to or dealt with at all in the Appellant’s written evidence, see Mr Coleman’s answers in XX. 29 WORK\31744720\v.1 17316.240 Classification: Confidential

ICOMOS, as to the significant and increasing risk from new development outside the WHS buffer zone.

64. These themes are also emphasised in the very recent ICOMOS technical review of the appeal proposal (RBG/3a), which is considered in detail below.

65. There are two further points to be made at this stage.

66. First, a failure to provide effective management and protection can lead to a World Heritage Site being placed on the List of World Heritage in Danger and potentially de- listed. Other World Heritage Sites threatened by development outside of their boundaries are currently on the In-Danger list and consequently threatened with de-listing – these include Liverpool Maritime Mercantile City WHS (UK) and the Historic Centre of Vienna (Austria). At Liverpool the primary issue relates to proposals for tall buildings in the setting of the WHS which may affect the backdrop of views of key buildings in the WHS. Again, in Vienna tall buildings and urban development in and around the WHS are also the key reason for inclusion on the In-Danger List. It is also of note that the UNESCO World Heritage Committee has expressed concern about planning decisions for tall buildings (a number of which are relied on in the Appellant’s evidence as supporting its case here) in the setting of the Palace of Westminster and Westminster Abbey WHS and is actively monitoring development around that site. This concern is the first step in placing a property on the In-Danger List126. The concern here is a real and genuine one127 given these other examples and the strong opposition to the appeal proposal from the World Heritage Centre and ICOMOS128. In opening Mr Harris129 stated that any suggestion that “if the permission is granted, the very inscripted status of the Gardens would be put “at risk” are overblown, inappropriate and irresponsible”. This is a truly extraordinary statement; and is itself testament to what may properly be described as an irresponsible and gung-ho attitude of the Appellant to the impacts of its proposals on the Kew World Heritage Site130. The submission is apparently made without any regard to the views of ICOMOS. It should be noted that in respect of the appeal proposal ICOMOS has said (emphases added):

126 See Mr Croft’s proof at para 3.2.2. 127 See Mr Croft’s proof at para. 8.1.10 and Mr Williams’ proof at para. 13.4. 128 See below. 129 See the Appellant’s opening at para. 91, INQ1. 130 Best illustrated by the fact that neither HE nor RBG Kew were even contacted by the Appellant until all the key design decisions, including height, had been made: see Mr Egret’s answers in XX 30 WORK\31744720\v.1 17316.240 Classification: Confidential

“ … although visual integrity131 is a term not yet included in the Operational Guidelines, there have been a number of examples where the harmful visual impact on a World Heritage property has been the subject of recommendations and decisions by the World Heritage Committee (Historic City Centre of Vienna, Historic Centre of Macao, Historic Centre of Prague, Cologne Cathedral, Historic Centre of Riga, Vilnius Historic Centre, Cathedral, Alcazar and Archive de Indias in Seville, Colonial City of Santo Domingo, etc.). In most cases, these properties are under threat from high-rise building, menacing the visual integrity of the property … ICOMOS considers that the visual integrity of Royal Botanic Gardens, Kew, is threatened by the new development proposed ...”

67. Second, at Liverpool ICOMOS have taken the position that what is needed is the adoption of planning policy limiting the heights of buildings in order to protect the World Heritage Site132. This is, of course, an issue that the LB of Hounslow is rightly seeking to address through its draft SPD (October 2017, CDD.05, the draft SPD) and which would limit the height of buildings east of the Great West Corridor, including on the Appeal Site, in order to seek to reduce (but not avoid) impact on, inter alia, Kew Gardens. The Brentford East Capacity Study Final Report (CDD.06, July 2017, and providing supporting evidence for the draft SPD) thus records133: “Given the world importance of The Royal Botanic Gardens, it is unacceptable that tall or over- scaled developments should continue to invade the setting through a process of accretion following “one off” decisions. This process could result ultimately in the marked degradation of this World Heritage Site. A strategic judgement, informed by a robust Brentford East Framework Study, would assist in an effective consideration of future proposed developments. The setting of the World Heritage Site demands that proposed change must be viewed in a broader and more holistic manner134.”

68. Allowing this appeal would be to allow a further, and significant, invasion of the setting “through a process of accretion following “one off” decisions”135 and would result in “the

131 “Visual integrity relates to the concept of integrity (as referred to in the Background Document prepared for the International World Heritage Expert Meeting on Visual Integrity, March 2013, Agra-India), defined as wholeness and intactness of the property, for cultural heritage, the site, monument or monuments, cultural landscape, or ensemble of any of these. The document states that “The term “visual integrity” is not indicated in the Convention, nor is it mentioned in the Operational Guidelines. The concept of visual integrity is frequently considered a crucial element related to the preservation of cultural and natural World Heritage sites. “Visual integrity” may pertain specifically to vistas, panoramas, viewpoints, and silhouettes. Visual Integrity can also be taken to mean the capacity of heritage to maintain visual distinctiveness and visually demonstrate its relationship with its surroundings […] It may also be noted that visual qualities will frequently be important to the protection and management of sites, even if their Outstanding Universal Value does not directly have strong visual qualities, notably in assuring that sites meet the expectations of visitors by being well managed, and free of inappropriate development.” 132 See Mr Croft’s answers in EinC, unchallenged in XX. 133 See p. 86. 134 The importance of protecting Kew Gardens from visual harm is evident in this document: see e.g. pp. 51, 63, 64, 65, 72 and 83. 135 Mr Coleman in XX accepted this. 31 WORK\31744720\v.1 17316.240 Classification: Confidential

marked degradation of this World Heritage Site”. This is not a “prematurity” point in the technical sense, rather it is a plea to refuse this appeal and thereby both: (i) prevent further degradation of the setting of Kew World Heritage Site through one-off decisions; and (ii) allow the issue of the height of buildings in Brentford to be determined via policy, whether it be the draft SPD or the Local Plan Review. This is not about prematurity in the technical sense136. It is simply about good planning.

d. The setting of the Kew World Heritage Site 69. It is crucial to understand what the setting of Kew Gardens is in order to understand the threats to this setting and the impact that this will have on its OUV and thereby its significance. There are a number of points to be made.

70. First, what is clear is that the setting of the Kew World Heritage Site is very different from the other three London sites. These are far more urban. Two of them are truly city centre locations137, and Greenwich is very close to Canary Wharf. All three have a long history of being embedded in the dense urban fabric of central London. Kew is totally different138. Thus the Mayoral SPG records at p. 35 that Kew Gardens is “some nine miles from central London”, that it “is the most self-contained of the four sites” and that “its immediate surroundings are domestic”. Reference is also made to the fact that “[t]he village atmosphere of Kew Green with its church and lofty Georgian houses, together with the Victorian villas and streets around the station provides an agreeable and low key approach to the gardens”. And it is noted that “[h]igh rise development north of Kew at Brentford and along the A4 is the most tangible evidence of the Botanic Gardens’ urban context”139. Moreover, the Mayoral SPG

136 That said it really is quite wrong for the Appellant to use the existence of what is draft policy, a key part of which it disagrees with (e.g. the height restriction on the Appeal Site), to try and suggest that this draft policy sells the pass on lots more tall development visible in Kew Gardens being acceptable. This was a major theme of the RX of Mr Coleman. The Appellant and others have objected to the draft SPD, see Mr Goddard’s App. 7. But it is seeking at this inquiry to have its cake and eat it. To rely on the draft SPD in so far as it suggests the Appeal Site should be a marker but to reject the set height limit. 137 See the Appellant’s opening at para. 24, INQ1. Mr Harris referred to the Blackfriars Road Inspector’s conclusion that the introduction of a tall building does not mean that it would be harmful, but that was a city centre location. The context here is completely different, see ibid. at para. 25, “each context is different” 138 Indeed, the Appellant’s witnesses have rightly acknowledged this, see e.g. Mr Egret’s proof at para 5.11.3 stating that “the context cannot be described as a city centre condition”. 139 Mr Coleman accepted that these tall buildings are the only urban reminders at Kew but added there is also “the memory of where we have been”. It is safe to say that if the appeal proposal is allowed there will be plenty of locations in the Gardens in which memory will not be required as there will be the starkest possible reminder of the urban writ large in the form of the Chiswick Curve. 32 WORK\31744720\v.1 17316.240 Classification: Confidential

acknowledges that the character of the landscape is one designed to allow escape from the City: see p. 59140.

71. Second, this context can be seen by looking at a plan of the World Heritage Site and its buffer zone141. To the east and south-east Kew Gardens is bounded by low-rise domestic scale built form. To the south lies open land in the form of the Old Deer Park. To the west lies the River and beyond it Syon Park. The immediate environs to the north are domestic in scale, with the village atmosphere of Kew Green. It is only north of the river that there are unwelcome and negative impacts as a result of the visibility of some tall buildings142.

72. Third, the elements that make up the setting of the Kew World Heritage Site include (but are not limited to) the following: 1) Views across, into and out of the site: both those identified in the Management Plan at p. 95 and others such as views of the Orangery across what remains of the Great Lawn; 2) The backdrop to key views and vistas including the Syon Vista, Broad Walk, Cedar Vista, Pagoda Vista; and other internal views such as the views over the open lawns in the Entrance Zone which reflect the historic Great Lawn143; 3) The visual and physical relationships westwards over and to the River Thames and wider Arcadian landscape beyond, including the designed relationships with Syon Park144; 4) The backdrop to views of and from architectural icons on the site including the Palm House, Temperate House, Princess of Wales Conservatory, Kew Palace and the Orangery as well as the backdrop to views of and from the numerous historic garden buildings, follies etc. on the site;

140 The issue of aircraft noise needs to be mentioned albeit briefly. This noise is intermittent and not a constant. Thus, as Mr Coleman said “I have been there when there are flights and are when there are not”. The reason for this is in fact explained in the London Plan (CDC.04) p. 257 which refers to the Mayor’s support for “runway alternation, westerly preference and related measures to mitigate noise effects on local communities”. In any event seeking to rely on aircraft passing over head to justify a massive tower like Chiswick Curve might be thought to smack of desperation. 141 See for example App. A to Mr Croft’s proof. 142 See further above. 143 See para. 5.7.20 144 See e.g. what is said in the Management Plan at para 12.2.11. 33 WORK\31744720\v.1 17316.240 Classification: Confidential

5) The creation of a sense of enclosure and separation from the wider world created by the walls and boundary planting and supported by the largely unbroken skyline145; and 6) The domesticity and village feel of Kew Green146.

73. Fourth, the Appellant’s case has focussed on 1) above - views. Thus, it is said that: (i) unlike for other World Heritage Sites there are in the London Plan no designated strategic views in relation to Kew Gardens; (ii) in terms of local views the Mayoral SPG advises that these be identified in either a Development Plan or a Management Plan; (iii) the appeal proposal would not affect any of the sight lines/views identified in the Management Plan at p. 95; and (iv) the appeal proposal would not impact any designated views on the proposals map in the draft or adopted LB of Richmond development plan polices. These arguments are wholly fallacious for a number of reasons: 1) As Mr Dunn explained in evidence-in-chief given that Kew Gardens is the most self-contained of the London World Heritage Sites, and is so far from Central London, it is not surprising that there are not any designated “strategic views across London” that affect Kew Gardens. The position is different for the other World Heritage Sites which are either in inner-city locations or close to these; 2) In relation to Richmond policies147: i. the Richmond Plan adopted and draft in the proposals map identifies “vistas” and “landmarks” these include the Palm House, Kew Palace and the Pagoda148;

145 See Mr Croft’s proof at para. 5.7.5 “In response to industrial development across the river in Brentford, the design of the Thames-side of the gardens were fundamentally changed in the latter part of the 19th century. The Thames-side of the Gardens was increasingly planted up to screen views of new development that were considered to be intrusive. This took place in several phases, showing how much of an ongoing concern it was to have development intruding into the gardens from outside. The process was begun in 1862 when a belt of trees and shrubs were planted along the riverside from Brentford Ferry Gate to Syon Vista “to hide the view of the new docks and railway terminus in Brentford” (Desmond 1995, 370). More planting took place in 1877 (Desmond 1995, 372), and was thickened again in 1896 (Desmond, 195, 374) before being replanted in 1912 and 1913 (Desmond, 1995, 376). In 1922 Kew was even given permission to plant trees and shrubs on land adjacent to Brentford Dock (Desmond 195, 377). And when, in 1931, a new gasometer, 160 feet high, was constructed in Brentford, dominating the northern skyline of Kew, the gas company agreed that the Director of Kew should have a say in the choice of colour it was painted – he chose ‘an innocuous pale grey’ (Desmond 1995, 378).” 146 See Mr Croft’s proof at paras. 5.7.10 – 5.7.11. 147 INQ35. 148 See below for RBG Kew’s case on these heritage assets. 34 WORK\31744720\v.1 17316.240 Classification: Confidential

ii. the draft policies in the soon to be adopted Richmond Local Plan do protect views and vistas (see LP5) but this policy is to be read as complementing other conservation policies (see para. 4.5.6). Other policies include LP6 which provides very strong protection to Kew World Heritage Site. The policy says that the OUV, integrity, authenticity and significance of the site including its setting “should be protected from any149 harm”. The supporting text (see e.g. para. 4.6.2) indicates the need to consider very carefully “[t]he wider and more extensive setting of the WHS, including views to and from the site” (emphasis added). This is repeated in para 4.6.4 which refers to the LB of Richmond working with HE and the LB of Hounslow to “ensure the Kew World Heritage Site Including … wider setting and views to and from the site” is protected. This strong policy protection for views as part of the wider setting is not confined to any views shown on the proposals map; 3) The sight lines/views identified in the Management Plan in fact include views from the windows of Kew Palace, see p. 95 and para. 3.6.3150: i. Mr Harris’ suggestion that the views so protected are limited to the concentric circles shown on p. 95 is without any merit151; ii. Mr Croft’s proof states “[v]iews from the windows have been identified in the WHS Management Plan and provide visual connectivity between the Palace, the Thames and wider gardens with which it was historically entwined”; iii. The appeal proposal would impact on these identified views: see paras. 6.3.18, 6.3.19 and 6.3.21 of Mr Croft’s proof152; 4) Further, as Mr Croft’s evidence explains there would also be views of the appeal proposal – and impact - from the Broad Walk and from the Pagoda – which are located on key view/sight lines identified in the management Plan, see: i. The Broad Walk: Mr Croft’s App. D photo 5, and paras. 5.8.1, 6.2.15 and 7.3.13 of his proof153. In cross-examination Mr Coleman argued that photo

149 Emphasis added. 150 And see Mr Croft’s answers in EinC and RX. 151 See Mr Croft’s answers in XX and RX. There are two points: (i) this makes no sense, as is most clearly demonstrated by looking at the concentric circle around the Pagoda – if this was the limit of the view protected it would wholly fail to safeguard views from this tall building; and (ii) the matter is put beyond doubt by the version of the plan at p. 95 that appeared in the earlier 2002 version of the Management Plan, see RBG/3a p. 5. This shows arrows in all directions with no bounded edge around Kew Palace and the Pagoda. 152 And his answers in RX. 153 And his answers in RX. 35 WORK\31744720\v.1 17316.240 Classification: Confidential

5 provided no evidence that the appeal proposal would be visible from the Broad Walk. But it clearly does because it identifies the nearby (but shorter) crane as visible, and so it cannot sensibly be denied that so would the very much taller Chiswick Curve would also be visible from this location; ii. The Pagoda: the proposed development would significantly increase the scale of tall development in the view, being the tallest visible structure and expanding the spread of near tall buildings in views northwards over the Gardens154. It is not, of course, RBG Kew’s case that all development visible from the top of the Pagoda is harmful. The appeal proposal would though loom large in the view like the existing detractors already visible e.g. Kew Eye, the Haverfield Estate etc; 5) The sight lines/views identified in the Management Plan are not exhaustive of what are important views. This point is borne out by two things: i. the fact that in designing the appeal proposal and in setting its height Messrs Egret and Coleman identified one single view across the Palm House as critical. That view is not one identified on p. 95 of the Management Plan155; ii. the fact that views of the Orangery across the remains of the Great Lawn are not identified. This is without question an important view156 as the text of the Management Plan makes clear157. Indeed, Mr Coleman in his evidence-in-chief identified at least one view across the Great Lawn which he thought should be, but is not, shown on p. 95 given its importance; iii. in cross-examination Mr Coleman accepted that views not shown on p. 95 could nonetheless be important both to the setting of individual listed buildings within Kew Gardens and also to the setting of the World Heritage Site itself; 6) Finally, as the Mayoral SPG makes clear, at para. 4.3, “setting is not solely defined by views into and out of a World Heritage Site; it can also be defined by other physical and

154 See paras. 5.8.9 and 5.8.10 of Mr Croft’s proof 155 As Mr Coleman accepted in his oral evidence, see his answers in XX and EinC. 156 The very lengthy attempt in RX of Mr Coleman to demonstrate otherwise at least demonstrates the importance of the issue. 157 See below. 36 WORK\31744720\v.1 17316.240 Classification: Confidential

experiential elements. These all affect the ability to experience the qualities of the place and appreciate its significance”158.

74. Fifth, the modern experience of Kew Gardens by the visitor, is of a safe haven in this busy city; a place to escape and walk alone or to spend time with family and friends. This reflects historic design intents to separate Kew Gardens from the wider world. The high walls and decorative gateways that puncture the walls, and the enclosing nature of the trees all contribute to this feeling of retreat and escape into a world apart. This sense of being a ‘world apart’ is rooted in Kew Gardens historic design ethos and purpose159. In cross-examination Mr Coleman, when this was put to him, said frankly that this is “what I’d like it [Kew Gardens] to be”160. Yet the appeal proposal which he supports would only further damage this.

75. In cross-examination of Mr Grover there was a suggestion made by Mr Harris that part of the Kew Gardens experience is about obtaining views of London. This is a wrong- headed approach. First, it is true that there are opportunities to go high in Kew Gardens (the modern tree top walk, the higher floors of Kew Palace and, when it re-opens, the Pagoda). In doing so there may well be views of London but that is not the main reason why people ascend these features/buildings. They do so to enjoy views of the Gardens or to learn about history (Kew Palace) or ecology (the tree top walk). Second, even if Mr Harris is right that from these higher points that part of the attraction is wider views the reality is that what Kew Gardens then offers is a choice: (i) go high and you will see, as well as panoramic views of the Gardens, more of the urban context beyond, or (ii) instead stay low to escape the City161. The appeal proposal though seeks to bring the City further into the Gardens.

158 And see Mr Croft’s answers in EinC, by reference to the contents page (p. iiii) of the Mayoral SPG which shows that views are only one of a long list of elements that contribute to the setting of a World Heritage Site and the guidance on views is c. 2 pages of about 30 pages. Mr Coleman in XX accepted that views were just one part of setting. 159 See Mr Croft’s proof at para 5.6.4. 160 Mr Coleman was also happy to indicate he did not agree with the view expressed by PBA (see his App, vol. 1, A124 at para. 4.3.10) where it is said “[t]hese views of modern built form beyond RBGK, enhance the sense of the ‘green relief’ which it delivers and illuminate the juxtaposition between historic landscape, parkland and gardens, and the modern city of London", in other words the more of the City one sees the more this aids your sense of escape. This passage in the PBA report is though of assistance in reinforcing the validity of the point that the essence of Kew Gardens is an escape – it provides as sense of green relief. 161 A point accepted by Mr Coleman in XX. 37 WORK\31744720\v.1 17316.240 Classification: Confidential

76. Sixth, there are as part of the setting of the World Heritage Site existing features that break into the skyline outside the garden’s boundaries and are (regrettably) highly noticeable. These infringe on the experience of immersion in the verdant landscape of Kew Gardens and impact (adversely) the ability to understand and experience its design intent. These features are all tall buildings north of the River and which are almost universally recognised as having a very negative impact on the heritage designations that overlay Kew Gardens. Chief among these are the six Haverfield Towers on the Haverfield Estate; the 16-storey building on the former Thames Water site on Kew Bridge Road162 known as “the Hyperion”; the so-called Kew Eye; the BSI building and the Vantage West building163.

77. There is an important point to make here. These existing buildings are indeed part of the setting of Kew Gardens, they are as Mr Coleman says an “ … indication of an urban setting”164. But it is almost indisputable165 that they have a negative impact whenever they are viewed from within the World Heritage Site166. They provide what the Mayoral SPG calls167 the “most tangible evidence of the Botanic Gardens’ urban context”. But there is nothing positive or beneficial about this. What is clear is that the impact is negative – it detracts from the setting and the OUV of Kew World Heritage Site. That this is so is plain from the SOUV, the Management Plan, the 2003 ICOMOS site evaluation, the 2014

162 Very close to the Haverfield Estate. Application ref 00657/B/P15. RBG Kew objected vigorously to this during the spring and summer of 2002, citing concerns about jeopardising the World Heritage Site nomination, then in progress. In the ICOMOS site evaluation (as to which see further below, CDF.19, at p 109 2nd column) there is reference to the adverse effect of this 16-storey development which had by then been granted permission. 163 The negative impact these tall buildings have in terms of breaking the skyline is plain to see on a visit to Kew Gardens, and see also Mr Croft’s proof App. D: photos 1 – 4, 6 – 16 and 18 and 19 – 20. 164 See his proof at para. 9.13 and his answers in XX. There are a handful of other buildings visible including Chiswick Park and development on the opposite bank of the Thames the River Zone. 165 In XX Mr Coleman accepted that the Haverfield Towers were a negative influence as was Kew Eye. He said he thought that the BSI building and the Hyperion Tower were “neutral” which is frankly extraordinary. It shows Mr Coleman has a disturbingly high tolerance for poorly designed buildings that aggressively intrude into the visual envelope of Kew Gardens. He indicated that the Vantage West building was “appalling” but later on seeing it at the end of the Pagoda vista in Mr Croft’s photo 19 he said he “didn’t mind it in this view”. That is such a bizarre view that no further comment really need be made. 166 The Steam Museum Tower was seen as positive by Mr Coleman. Mr Croft did not agree. He rightly saw it as harmful to the World Heritage Site albeit only in a minor way. 167 See above. 38 WORK\31744720\v.1 17316.240 Classification: Confidential

periodic report and the ICOMOS technical review of the appeal proposal168. These existing tall urban intrusions into Kew Gardens form no part of its significance. Not all of the setting of a heritage asset forms part of its significance169. These aspects of the current setting detract from Kew Gardens significance170.

78. Today when visiting Kew Gardens, one is struck by the jarring and highly detrimental impact that views of existing tall buildings have. This reaction to existing tall buildings such as the Haverfield Towers and the Kew Eye is not as a result of these being poorly designed, although they undoubtedly are, it is as a result of their visibility. It is because they protrude arbitrarily above the defined tree line within the visual envelope of the World Heritage Site and appear on major vistas and key views across and of Kew Gardens. As the Management Plan states the Haverfield Towers “have a detrimental effect on the skyline due to their visibility”171.

79. The fact is that increased visibility of new tall buildings from Kew Gardens is per se harmful. It is damaging to the OUV, and the attributes that contribute to this as set out in the Management Plan. As the Management Plan states172 the threat is from “future intrusion within the visual envelope of the WHS”. This reflects the design intent of Kew Gardens as an escape into a world apart173.

80. In re-examination of Mr Coleman reference was made to the London Plan (para 7.34174, which is supporting text to Policy 7.10) where it is said there is a need for a managed balance between “protecting the elements of the World Heritage Sites that make them of

168 See e.g. where it is said that “[t]he Management and Action Plan includes in the evaluation of the attributes the relationship with the River Thames and the wider Arcadian landscape beyond, and notes the ICOMOS evaluation’s comment about the tower blocks at Haverfield estate that seriously diminish the visual experience at Kew at several points in the garden”. 169 The NPPF definition of setting is highly relevant here “[s]etting of a heritage asset: The surroundings in which a heritage asset is experienced. Its extent is not fixed and may change as the asset and its surroundings evolve. Elements of a setting may make a positive or negative contribution to the significance of an asset, may affect the ability to appreciate that significance or may be neutral” (emphasis added). 170 In XX of Mr Grover, Mr Harris was so bold as to suggest that in relation to the Tower of London World Heritage Site the Shard was now part of its significance. This is plainly not so for the reasons given by Mr Dunn in his EinC. On Mr Harris’ logic the Haverfield Estate and the Kew Eye form part of the significance of the Kew World Heritage Site. This is nonsense. 171 See para. 8.3 CDF.10. 172 See above. 173 See above. 174 CDC.04. 39 WORK\31744720\v.1 17316.240 Classification: Confidential

Outstanding Universal Value and allowing the surrounding land to continue to change”. There are two answers to this: 1) part of Kew Garden’s OUV, different from the other London World Heritage Sites, is its nature as an escape and the absence of urban intrusion; and 2) RBG Kew is not against all development, indeed it supports economic and social regeneration in Hounslow and in no way is it anti-development, it opposes very few schemes. It just wants development to respond to, respect and safeguard the OUV of the World Heritage Site. The appeal proposal does not do this.

Of course, it is possible in our planning system to grant permission notwithstanding harm to the significance of heritage assets so long as the relevant (and stringent) policy tests in the NPPF are met. Similarly, while the fact there is harm may mean policies in the Development Plan are breached that does not mean refusal is mandated. There is still s. 38(6) to be applied. That is why Mr Harris is quite wrong to characterise the RBG Kew’s case as being an “embargo”, a “ban” or a “cordon sanitaire”. What RBG Kew are arguing for is that the proper starting point is that the addition of a further tall building into the visual envelope of Kew Gardens is harmful to the setting/OUV and hence the significance of the World Heritage Site. The Management Plan is really quite clear on this. In re-examination of Mr Coleman and in Mr Goddard’s evidence-in-chief it was suggested that there was no support for this in national policy, the London Plan and local policy. But this totally misses the point. These policies tell you about what the test is for the grant of permission where there is harm to the setting, and hence significance, of a World Heritage Site. These policies do not, could not, seek to define what would cause harm to the setting of a World Heritage Site, and to Kew Gardens in particular. Instead all of these policies instead direct the reader to the Management Plan as defining the setting and the key attributes of OUV175. This is key to understanding what the harm will be176. The Management Plan makes clear that the intrusion of tall buildings into the visual envelope of Kew is to be viewed as harmful, indeed the SOUV itself recognises the threat to the setting of Kew Gardens as a result of development outside the buffer zone.

175 See above. 176 See Mr Goddard’s answers in XX. 40 WORK\31744720\v.1 17316.240 Classification: Confidential

81. It needs to be asked why it is the Appellant is so unwilling to accept that the Management Plan, SOUV and other ICOMOS documentation support the view that the visibility of tall buildings within Kew Gardens is per se harmful. It is because it undermines the key plank of the Appellant’s whole case. There being harm runs counter to the argument that the appeal proposal is (with one exception) beneficial wherever it is seen.

82. Mr Harris has suggested that RBG Kew’s arguments in this regard are inconsistent with what is said in para 5.3 of its Statement of Case, namely that the key consideration “is not the visibility of tall buildings per se but their particular location and impact when seen in key views from within the designed landscape”. Clearly the impact on “key views from within the designed landscape” is important but it is RBG Kew’s case that the visibility of tall buildings per se in Kew Gardens does cause harm177. That this is so is clear from the Management Plan178, which is itself a key material consideration on this appeal. This view is strongly supported by the ICOMOS documentation before this inquiry including the May 2018 technical review and is supported by the SOUV. It is the particular nature of Kew Gardens and its OUV that means that visibility of tall buildings is harmful. That said it is, of course, the height, scale and mass of the appeal proposal and its location that are the key concern on this appeal. It will cause significant and appreciable harm in a way that a lower building, even one that as still visible, might not.

83. Moreover, Mr Harris’s reading of para 5.3 of the Statement of Case can be contrasted with the lengthy written responses submitted by RBG Kew during consultation (e.g. the letter of 9 February 2016 and report dated December 2016 (CDE.07)). These responses all had input from RBG Kew’s consultant, Mr Keith Garner, who also prepared the Statement of Case, and they do not suggest that the harm is limited to identified views and vistas only.

84. Ultimately, the documents speak for themselves on this and it is against that which Mr Harris’s pleading point179 needs to be judged. It was Russell LJ who rightly said

177 The position is likely to be different with other heritage assets, including the other London World Heritage Sites which are city centre locations. 178 The strenuous attempts to demonstrate that this was not so in RX of Mr Coleman fell flat, and ignored the relevant parts of the Management Plan put in XX: see above. 179 This is a lawyer term. 41 WORK\31744720\v.1 17316.240 Classification: Confidential

“[p]leading points are usually unattractive”180. This case affords no exception to that proposition181. Two other short points: (i) RBG Kew’s case as set out in its evidence and its opening and has not changed182; and (ii) there have been repeated statements in questioning by Mr Harris of his own witnesses of what he says the RBG Kew’s witnesses accepted in cross-examination. These statements must be treated with extreme caution. This is not actually evidence; it is Mr Harris’s attempt to colonise this evidence with his own (mis)characterisation of this evidence. So, one example only will suffice, albeit there were plenty to choose from. It was put to Mr Goddard in re-examination by Mr Harris that Mr Croft in cross-examination did not seek to suggest that visibility per se was harmful e.g. that he did not support RBG Kew’s case. Thankfully we all have our own notes. Here is the relevant exchange from the notes of those instructing me. It shows the exact opposite of what Mr Harris said was said:

“RuH Looking at opening again. Couldn’t be bolder – the problem is not architectural quality but the fact that it protrudes arbitrarily. Detrimental effect due to visibility. Nothing to do with poor design. Correct?

AC Correct” 85. Finally, in this regard it is worth recalling what is said in the Management Plan. It says at para 8.3 that the existence of the Haverfield Towers “increase pressure for further tall buildings in their vicinity”. It goes on to record that “[d]evelopers have argued that the presence of tall buildings is a particular feature of the locality and hence feel that further tall buildings would be in keeping with the character of the area”. That very argument has regrettably formed a key plank of the Appellant’s arguments on this appeal. The attempt to characterise the context of Kew Gardens as “urban” and the constant pointing out, in any viewpoint, of existing tall buildings are just some examples of this line of argument183. It

180 Norwich Union Fire Insurance Society Limited v Metro Breakers Plc Metrobreakers (London) Limited & Others (unrep. 23 November 1992), at para. 1. One other matter have a look at the Appellant’s Statement of Case, CDE.01, paras. 5.2 – 5.4. This says almost nothing about the Appellant’s case on heritage. It is limited to saying it will demonstrate there is no substantial harm. 181 In RX of Mr Coleman it was sought to be suggested that this line of argument was contrary to Mr Croft’s evidence. This was not put to Mr Croft in XX. Given that not much more needs to be said. However, the Secretary of State is asked to read that proof as a whole and fairly and in particular to look at paras. 5.5.7, 5.6.4, 5.7.5, 5.8.1, 5.8.5, 5.8.6, 5.8.12, 5.8.16, 6.2.17, 6.2.18, 6.2.20, 6.3.17, 6.4.20m 6.4.21, 6.5.7, 6.5.20 and 6.5.24 all dealing with increased visual intrusion into the visual envelope of Kew Gardens and the impact on its OUV given it is an escape. 182 Mr Harris in RX of Mr Goddard seemed to suggest the position was otherwise. He was wrong, see e.g. paras. 10, 28 and 30. Mr Harris’ speculation in RX of Messrs Coleman and Goddard on why the RBG Kew is making the case they are was fascinating but of no probative value. The case is being advanced because it reflects the correct position. 183 The argument can be seen clearly in the Appellant’s opening at paras. 38, 48 and 50, INQ1. 42 WORK\31744720\v.1 17316.240 Classification: Confidential

is a deeply flawed line of argument and one that runs flat contrary to the Hounslow Local Plan. This provides in Policy CC3(f) on tall buildings that it will not allow existing tall buildings to be a justification for the provision of new ones. This part of the statutory Development Plan is of central relevance to this appeal but any acknowledgment of it is wholly absent from the Appellant’s case.

86. Indeed, the Appellant’s arguments run counter not just to Policy CC3(f) but also a number of other key policies that both emphasise the importance of, and require the assessment of, the cumulative impact of development in the setting of a World Heritage Site. The Appellant’s case really is the very antithesis of the cumulative impact assessment that is required in relation to a World Heritage Site, it is a perverse argument that will inexorably lead in time to the setting of Kew Gardens looking like Central Park, New York184. This was demonstrated by Mr Goddard’s oral evidence. Thus he drew attention to the officer report for Brentford Stadium development saying that the proposed development was only visible in “a fraction of the landscape and architectural features at Kew Gardens”. He then pointed out that the same formula was repeated for the Citroen site, Capital Interchange Way and Watermans185. Repeating that formula in case after case means that more and more of Kew Gardens is impacted by visual intrusion. This is a key aspect of the RBG Kew’s case: see paras. 100 and 101 below186.

e. Cumulative harm – the policy context 87. The clear terms of Policy CC3(f) of the Local Plan has already been noted. But there are a number of other policy and guidance documents that need to be considered in this regard.

88. First, the assessment of the cumulative impact of development is, of course, relevant when considering the setting of any designated heritage asset. Thus, HE’s Guidance on Setting (CDF.13) says at p. 2 “[w]hen assessing any application for development which may

184 HE in opening (INQ5) said, correctly, that Kew Gardens has “with a considerable degree of success … kept the sight of urban London at bay. It is not Central Park, New York.” But, for the Appellant it is a “precedent”: see Mr Egret’s proof at p. 157 figs. 9.9 and 9.10 and see also Mr Coleman’s answers in XX. 185 See below. 186 In any event officers in the report ultimately concluded that the Brentford Stadium development would have an adverse impact on Kew World Heritage Site: see Mr Goddard’s proof App. 8 para. 12.20 and his answers in XX. 43 WORK\31744720\v.1 17316.240 Classification: Confidential

affect the setting of a heritage asset, local planning authorities may need to consider the implications of cumulative change”. Further, at p. 4 it is said under the heading “Cumulative change” that “[w]here the significance of a heritage asset has been compromised in the past by unsympathetic development affecting its setting, to accord with NPPF policies consideration still needs to be given to whether additional change will further detract from, or can enhance, the significance of the asset …”187.

89. Second, the importance of cumulative assessment is even greater in relation to World Heritage Sites. The PPG specifically endorses this, thus at para. 32 it is said that there is a need for local planning authorities both in respect of Plan making and development control to be “protecting a World Heritage Site from the effect of changes which are relatively minor but which, on a cumulative basis, could have a significant effect”. This guidance is specially drawn attention to in the Management Plan at para 4.2.6.

90. Third, the Mayoral SPG highlights the importance of assessing cumulative impacts. As stated in para. 5.31:

“The cumulative effect of separate impacts should also be considered. These are impacts that result from incremental changes caused by past, present or potential developments with planning permission that cumulatively with the proposed development can have a significant impact on the setting of a World Heritage Site. The potential cumulative impact of the proposed changes should therefore be assessed to consider whether proposed developments will increase the likelihood of other similar developments occurring and any consequences of that. There should also be recognition that previous permissions for similar developments do not necessarily represent acceptability of impacts on setting; as the cumulative effect is different for each new proposal and there may be a tipping–point beyond which further development would result in substantial harm to the OUV, authenticity and integrity of the World Heritage Site.” This accumulation of harm is an important consideration for this appeal. Moreover, the Mayoral SPG emphasises the importance of cumulative assessment as part of the assessment methodology it lays down at implementation point 14, p. 65188. In relation to the assessment framework this makes clear at section 5 that when assessing the effects “cumulative impact” must be considered before reaching a view on the scale of change189 and impact.

187 See also paras. 32 and 36 of that document. 188 See also paras. 5.20 and 5.32 189 See Mr Croft’s answers in XX. 44 WORK\31744720\v.1 17316.240 Classification: Confidential

91. Fourth, appeal decisions have also recognised both the extraordinary value of World Heritage Sites and the particular need to address cumulative impacts190.

92. Fifth, a consideration of the cumulative impact is also especially important in the context of tall buildings. Thus, HE’s Advice Note 4 on tall buildings at para. 3.8 says “each building will need to be considered on its merits, and its cumulative impact assessed”. The checklist it sets down (p. 8) requires a cumulative assessment. Importantly, it also says (on a theme similar to that in Policy CC3(f) of the Hounslow Local Plan) “[c]areful assessment of any cumulative impacts in relation to other existing tall buildings and concurrent proposals will also be needed to fully understand the merits of the proposal. The existence of a built or permitted tall building does not of itself justify a cluster or additions to a cluster”191. f. Harm to the setting of the World Heritage Site 93. Any assessment of harm to the Kew World Heritage Site must thus include a cumulative assessment, and as indicated in the Mayoral SPG the cumulative impact must be assessed before a view is taken on the scale of change.

94. This involves consideration of “past, present or potential” developments.

95. In terms of the current impact caused by past developments. It is necessary to consider the Haverfield Estate, Kew Eye and the Hyperion192. These tall buildings are visible in various locations within the Kew World Heritage Site including the Orangery and Great Lawn, the Broad Walk and Kew Palace. These buildings are almost universally acknowledged as having a negative impact on the setting of the World Heritage Site. This is borne out by the Management Plan and the other ICOMOS documentation referred to above. The impact of existing developments can be seen from the following: 1) The Orangery and Great Lawn: Mr Croft’s App. D photos 1, 2, 3, 4, 8 and 9; TVIA viewpoint 16; and the TVIA addendum figure 2.23 (p. 12); 2) The Broad Walk: see Mr Croft’s App. D photos 6 and 7 and the TVIA addendum figure 2.40 and 241 (p. 15);

190 See e.g. Mr Croft’s proof at para 5.8.25. 191 See paras. 4.6 and 4.7. 192 The steam museum tower is also a negative from the perspective of Kew Gardens: see Mr Croft’s answers in XX. 45 WORK\31744720\v.1 17316.240 Classification: Confidential

3) Kew Palace: see Mr Croft’s App. D photos 3, 8, 10, 11, 12, 13, 14 and 15 and the TVIA addendum figure 2.46, 2.47, 2.48 (p. 16); 4) The Palm House Zone: see Mr Croft’s App. D photos 16 – 18; 5) The soon to be re-opened Pagoda: Mr Croft’s App. D photo 19; 6) The Temperate House gallery: Mr Croft’s App. D photo 20.

96. There are other tall buildings, such as the BSI building, Chiswick Park193, the Bull building194 and Vantage West which also intrude negatively (to varying degrees) into other views: see e.g. Mr Spence’s viewpoints 16 and 18.

97. In cross-examining Mr Croft and in re-examining Mr Coleman, Mr Harris sought to suggest that any impact from the Haverfield Estate could be wholly ignored because it was there pre-inscription and yet the site was still inscribed by the World Heritage Committee. He put to Mr Croft that in inscribing the site the World Heritage Committee did not say that “this site is teetering on the edge of authenticity”. This is a really telling misunderstanding195 of what the Mayoral SPG requires. Thus: 1) The Mayoral SPG requires the assessment of cumulative effects to consider past development. There is no limitation expressed on only considering development post-inscription, and that must be especially so having regard to the fact that the harm caused by the Haverfield Estates was highlighted in the inscription documentation. 2) Thus the 2002 ICOMOS site assessment as already noted took the view that the Haverfield Estate “seriously diminished the visual experience at Kew”196. 3) The Management Plan specifically contains a policy that says “[o]n medium / long term seek opportunities to promote a reduced impact of the visually intrusive Brentford High rise”.

193 Visible in some of Mr Spence’s visualisations e.g. viewpoint 18, and see Mr Croft’s answers in EinC. This was referred to by Cllr Biddolph as a 16-storey building. 194 This is now called “Great West House” and is on Boston Manor Road. It is referred to in the Management Plan at para. 8.3 (CDF.10) which says “[t]he Bull Building, with a height of 69m, is also visible from various parts of the site.” 195 And hence an error of law. 196 In RX of Mr Coleman the suggestion was made that if one looks at pre-inscription development e.g. the Haverfield Estates it is difficult to know where to stop. But it is clear from the inscription documents and the Management Plan that the harms of the Haverfield Estate should continue to be had regard to and sought to be mitigated. 46 WORK\31744720\v.1 17316.240 Classification: Confidential

4) Since inscription a number of additional developments197 have added to this harm, something acknowledged in documents produced by both ICOMOS and the UK Government. These include Kew Eye, the Hyperion Tower and the BSI building. None of these, not one of them, is considered cumulatively with the appeal proposals in the Appellant’s assessments. So even if contrary to the Management Plan one ignores the Haverfield Estate these other towers need to be considered cumulatively. They have not been.

98. In terms of other potential development much has been made by the Appellant of: (i) the consented Brentford Stadium development and; and the proposed, but not yet consented, development (ii) on the Citroen site &; (iii) on the Waterman’s site. Considering each in turn: 1) Brentford Stadium development: this has been consented, and it will when constructed appear directly behind the Orangery in some albeit limited views of the Orangery whereas at present there is little development198 to be seen directly behind it in many views199. RBG Kew objected to the Brentford Stadium development, principally on the basis of impact on Kew Green and the Palm House; its objections were overruled. There is no doubting that this development will have an impact on the setting of the Orangery; moreover, there will be glimpsed views of the higher parts of this development from elsewhere in Kew Gardens. This harm is not as great as that which will be caused by the appeal proposal because the Brentford Stadium development is considerably lower and less prominent. Mr Grover in cross-examination said that views of the Stadium development over the Orangery will be glimpsed views, and it will only be partially seen, whereas the appeal proposal is “much more assertive, bulky and harmful”. But there is no doubting the harm caused200, and which the appeal

197 See above. 198 Other than the Steam Museum tower, and in some views Haverfield Estates. But from many viewpoints the Haverfield Towers are not visible behind the Orangery: see Mr Spence’s viewpoints 14 and 15, TVIA viewpoint 16 and TVIA addendum viewpoints 36 and 37. The appeal proposal adds development behind the Orangery in more views. 199 See e.g. Mr Coleman’s proof App. 1, A30 – A33. 200 Mr Grover’s view when asked about this in XX was that while the Brentford Football Club scheme was harmful to the setting of the Orangery it would at least be a linear horizontal impact rising just above the Orangery meaning it would be less visible than a tall vertical structure appearing over it. Mr Coleman’s view in EinC was that you would see “very little” of the Brentford Football Club development over the Orangery. Of course, that is not true of the appeal proposal. 47 WORK\31744720\v.1 17316.240 Classification: Confidential

proposal would add to201. There is a further point. There is no evidence that any impact on the Orangery was ever considered by anyone. The officer report202 contains no mention of the Orangery at all. It was not the subject of any visualisations203, and likely as a result it was not raised in objections by HE, RBG Kew or anyone else. It was simply not considered. This is highly regrettable but it is a fact. 2) L&Q Citroen Garage proposal (“Citroen”): this proposed development has not yet been consented. HE is seeking a call-in by the Secretary of State. If consented and built it would add further cumulative harm. 3) The Waterman’s site (also called Albany Riverside): this has not been consented yet. HE has sought its call-in, RBG Kew would strongly support this. HE and RBG Kew have strongly objected. A hint of the additional impact this would cause, if consented, is shown in the visualisations in Mr Goddard’s App12, pp 201 -202. This all goes to prove that we do stand at a tipping-point.

99. So there is no question but that the World Heritage Site has already been significantly adversely affected by external development in the form of tall buildings north of the River. And more of the same is threatened by other proposals. The appeal proposal though would worsen this situation in two key ways.

100. Firstly, by introducing significant new visual intrusion into areas of the World Heritage Site that currently retain their historically intended enclosed character e.g. the Order Beds, Grass Garden, Rockery, and views from and to Cambridge Cottage. This essentially extends the current impact of external development into new areas of the World Heritage Site, leaving less of the World Heritage Site with its historically intact setting and character. These impacts are clearly shown in Mr Spence’s viewpoints 11, and 19 – 21 and in Mr Coleman’s viewpoints 48 – 50 in his rebuttal.

101. Secondly, it would significantly increase the cumulative impact of current development on the setting of key assets in the World Heritage Site and on important areas of the World Heritage Site. For example, it would intensify the impact of external development on the setting and character of the still open former areas of the Great Lawn, it would

201 See below. 202 See Mr Goddard’s App. 8. 203 INQ29, and answers by Messrs Coleman and Goddard in XX. 48 WORK\31744720\v.1 17316.240 Classification: Confidential

significantly increase the impact of development on the setting of the Orangery and would also worsen the impact of development on the setting of both Kew Palace and the Palm House204. The cumulative impact is shown by the following: 1) The Orangery and Great Lawn: Mr Spence’s viewpoints 14 and 15; TVIA viewpoint 16. TVIA addendum viewpoints 36 and 37, Mr Croft’s App. D photos 3, 5, 8 and 9 plus Mr Coleman’s moving studies205; 2) Kew Palace: Mr Spence’s viewpoints 12 and 13 and TVIA viewpoints 31 and 32; 3) The Palm House: Mr Spence’s viewpoints 16 and 17, TVIA viewpoints 17 – 20 and Mr Croft’s App. D photos 17 and 18; 4) The Temple of Aeolus: see below; 5) The Broad Walk: Mr Croft’s App. D photo 5; 6) The gallery of the Temperate House: Mr Croft’s App. D photo 20.

102. In considering all these impacts there are a number of general points to consider:

103. First, a number of the buildings and locations impacted are specifically mentioned in the SOUV. This includes the Orangery, the Palm House, the Temperate House and the folly temples such as the Temple of Aeolus and the Pagoda206.

104. Second, Mr Coleman seeks to argue that there will only be a limited number of views of the appeal proposal from Kew Gardens. This cannot be accepted as being a remotely fair characterisation of the position207208. In the Management Plan the Kew World Heritage Site is divided up into eight landscape character zones. There is no dispute that the appeal proposal would be visible in a number of locations within the Entrance, Riverside, North Eastern and Palm House zones. That is four of the eight zones. Given that it would also be very clearly visible from the Pagoda, so it also affects some views in the Pagoda zone209. That is five out of eight zones. Furthermore, the viewpoints contained in the TVIA, TVIA addendum, Mr Coleman’s rebuttal along with Mr Spence’s

204 See Mr Croft’s proof at paras. 5.8.11 – 5.8.13. 205 App. 9 of vol 1 of Mr Coleman’s proof. 206 CDF.17. 207 See his proof at paras. 5.15 and 9.14. 208 It is noted that there was no zone of visual influence of zone of theoretical visibility produced in support of the application: see CDA.11 para. 2.8. 209 All of this was accepted by Mr Coleman in XX. 49 WORK\31744720\v.1 17316.240 Classification: Confidential

viewpoints attest to the level of visibility of the appeal proposal from within Kew Gardens.

105. Linked to this is the repeatedly made point that there would be no impact on the sight lines and views identified in the Management Plan. That is not accepted to be either correct or material for the reasons explored above.

106. Third, at the heart of the Appellant’s case is the suggestion that such views as there would be within Kew Gardens of the appeal proposal would be beneficial, because of the design quality of what is proposed. The Appellant’s position on this is perhaps most starkly stated thus “[o]ur position goes further in that the scheme is of such a high quality that it will be a delightful feature wherever it is viewed from.210” This suggestion need not detain us long. These points are made in response: 1) Good design is required for all tall buildings (in policy terms) due to their size and wide potential impact. Good design is thus a given for a tall building, it is a minimum requirement. 2) However good or bad are the other aspects of design, it is the height, mass and bulk of the appeal proposal and its strong visual presence that is an issue for the setting and significance / OUV of the World Heritage Site. 3) When considering impact on heritage assets good design does not automatically equal benefit, a view supported by para. 65 of the NPPF211. 4) As pointed out in opening even if one accepted all the hyperbole from the Appellant about the quality of the design, it must be the case that a building which is sculpturally beautiful or of very great intrinsic design quality might still be harmful because, for example, it is in the wrong place212. It is difficult to see the

210 See CDD.03 para 2.7, similar hyperbole can be found in Mr Coleman’s proof at para. 10.7 “[t]he appeal scheme would alter the background skyline of the heritage assets in question, but it would be a new building of exemplary design quality where visible, which has been designed to be seen in the context provided by those heritage assets. Potential harm to significance is avoided by the qualities embodied in the design, including its sculptural form, its textured finish, its colouration and landmark value.” 211 See Mr Finch’s answers in XX. 212 See para. 28, and this was a view echoed by others including Ms Weiss, see her summary at para. 10 “even if this building were of the highest architectural quality it would still be in the wrong location”. Note also Mr Wisdom’s proof on behalf of the Friends of Gunnersbury Park & Museum “[e]ven if it were the most beautiful building in the country, spun from silver gossamer, it would still loom over visitors”. He also refers to the “brutality of its bulk and height”. 50 WORK\31744720\v.1 17316.240 Classification: Confidential

appeal proposal as anything other than an extreme over-development213 of a site which manifests itself through its looming bulk, mass and height. 5) Mr Harwood for HE in opening called the Chiswick Curve “a large, tall lump”, Mr Ground for the LB of Hounslow called it “freakishly tall”. Ms Weiss referred to it as a “bulbous ‘organic’ extrusion … an out-of-place, anomalous object, too tall, large and clumsy, an eyesore on the skyline in perpetuity”214. 6) Mr Finch’s “independent” design review adds nothing. First, he is strongly associated with the Brentford East Collective and not therefore independent215. Second, given that this case concerns impacts on a World Heritage Site he was a bizarre choice given his very strong views against UNESCO: they are “great big phoney[s]” whom we should tell to “stick it” and send them “packing”216. These are not views the Secretary of State will want to associate himself with. 7) Consideration also needs to be given to how much of the design of the appeal proposal would be appreciated from Kew Gardens, over a kilometre away. There is no doubt that its height, scale and bulk would be all too readily appreciable within Kew Gardens. It must be doubtful that any of its other design features would register217. Indeed, Mr Egret’s proof at para. 9.3.34 rather gives the game away on this by pointing out that from “a longer distance”, “a building is seen as a purely ‘plastic’ object”. It is clear from this that any fine detailing, or other aspects of design, would not be appreciable. It is telling that in cross-examination of Mr Grover it was put to him by Mr Harris that from Gunnersbury Park views were close enough to see the detail of the high-quality design of the appeal proposal. No similar point was put to Mr Grover, or any other witness, in relation to views from Kew Gardens, and for good reason. In his oral evidence Mr Croft indicated that the only aspects of design that would be appreciable from Kew Gardens would be its height, mass, shape, form and “at a very high-level colour”218. It was also Mr

213 The description used by the Kew Society in opening, INQ9. 214 See Ms Weiss’ summary at para. 50. For the view of another architect, see Mr Browne’s proof on behalf of the Brentford Community Council describing the appeal proposal as in the wrong location, “excessively high” and “an alien feature”. 215 See Mr Harwood’s XX of Mr Finch. 216 “We should tell UNESCO where to stick it” and “UNESCO is a great big phoney that should be sent packing”. 217 Mr Egret thought its colour would be appreciable to some extent but accepted that any other finer details of design would but be appreciable from Kew Gardens: see his answers in XX. 218 See Mr Croft’s answers in XX and RX. 51 WORK\31744720\v.1 17316.240 Classification: Confidential

Croft’s clear evidence, supported by the content of his proof, that he considered these aspects of design in assessing heritage impact219. The suggestion put forward by Mr Harris in cross-examination that Mr Croft had not adequately considered the design of the proposal in line with policy is therefore plainly incorrect. 8) From Kew Gardens the appeal proposal is not appreciated as separate “sleek” towers. The western elevation facing Kew Gardens is the bulkiest. It has the most volume, and the most windows of any of the elevations220. A comparison of the appearance of the four elevations speaks for itself in this regard221. It appears from the west as “a tall, fat building that is slightly deformed”222. Mr Egret did not agree he thought that because of the shadow223 on its western elevation the building appeared, and was designed to appear, as a “cluster of towers”224. Thus the visual envelope of Kew Gardens is, if this appeal is to be allowed, and if Mr Egret is correct, to be intruded into further by a building that appears not as a single building but as a cluster of tall towers. Frankly this just underlines the scale of harm. 9) To be beneficial the appeal proposal would need to make a positive addition to the setting of Kew Gardens and would need to positively contribute to its OUV. It plainly does not do this, and Mr Coleman in cross-examination accepted this. That is why one searches in vain for any analysis that supports the view that the appeal proposal makes a positive contribution to the OUV in the many, many thousands of pages of documentation that the Appellant has produced. Mr Coleman maintained that despite not benefiting the OUV in any way there was nonetheless benefit to the World Heritage Site “overall”. Given that OUV lies at the very heart of what a World Heritage Site is, indeed it defines it, it is impossible to see how the appeal proposal can benefit the site when it is accepted by Mr Coleman not to, in any way, benefit the OUV.

219 See his answers in XX, and see e.g. p. 50, para 4.3.13 referring to the HE Checklist which includes assessment of the form and appearance of a proposed building. 220 The reason for this is depressingly obvious. The western elevation will provide good views of the River and Kew Gardens. The more flats, and higher up, on this side the more value to be derived: see Mr Egret’s answers in XX by Mr Ground. 221 See CDA.02 pp. 30 – 37 and Mr Egret’s answers in XX. 222 And frankly one doesn’t need to be an architect to appreciate that. Mr Coleman in his EinC acknowledged that a building can be of high quality on some elevations and not others. 223 It is difficult to see that this shadow would be appreciable in views a kilometer away. 224 See Mr Egret’s answers in XX. When architects start taking about clusters and stepping a building down, you know it is too big. 52 WORK\31744720\v.1 17316.240 Classification: Confidential

10) It can be recalled that ICOMOS gave the benefit argument short shrift in their detailed Technical Review saying it did “not consider that the new development would give any beneficial input to the property and its setting; rather, it would considerably harm its OUV, and thus ICOMOS advises that the planning permission be refused”. 11) Finally, for the purposes of this appeal five heritage consultants have given detailed consideration to the appeal proposal: Mr Coleman, Mr Croft, Mr Dunn, Mr Grover and the Built Heritage Consultancy. Only Mr Coleman, of all of these, viewed the appeal proposal as beneficial to the World Heritage Site. All the others (to varying degrees) concluded that there would be appreciable harm to the significance of the Kew World Heritage Site. None of these experts, save for Mr Coleman, perceived any benefit whatever. Mr Coleman stands alone on this. He asks that the Secretary of State set aside the views of the four other heritage consultants who have considered the matter as well as the impartial views of ICOMOS’s expert reviewers225. That is an untenable position.

107. Fourth, there is a fundamental contradiction that lies at the very heart of the Appellant’s case. The Appellant’s case that the scheme is of such a high quality that it will be a delightful feature wherever it is viewed from has one notable exception. Mr Coleman though explains in his proof, at paras. 7.6 and 7.27 there was a concern about one view within Kew Gardens. This is described as “[t]he picturesque view of the Palm House in Kew Gardens, as the visitor turns the part from the Temperate House”226 - this is viewpoint 18 in the TVIA227. This is said to be “of particular charm and the design team thought it inappropriate to see anything other than the Palm House surrounded by trees”228. The view was taken that if “a tall building were to be juxtaposed with these elements of the Palm House, then there would likely be in these particular circumstances, and adverse impact on the attributes of Outstanding Universal Value of the WHS”229. This we are told thus “became a guide to the limit of height of the new proposal”230 such that “[t]he height has been consciously limited to respect the setting

225 Mr Finch in XX said he had very great respect for ICOMOS’s expertise despite his clear disdain for UNESCO. 226 See Mr Coleman’s proof at para 7.6, and see also the DAS, CDA.1 at pp. 70 and 82 and Mr Egret’s proof at paras. 7.5.3 – 7.5.6, 9.2.17 and 9.2.22. 227 This was confirmed by Mr Egret in XX, and can be seen by looking at paras. 7.5.5 and figure p.12 (p. 160) of his proof and comparing this to viewpoint 18, see the TVIA, CDA.11 at p. 145. 228 See Mr Coleman’s proof at para. 7.6. 229 Ibid, emphasis added. 230 Ibid. 53 WORK\31744720\v.1 17316.240 Classification: Confidential

of an important view within the World Heritage Site”231. A similar account is given in the DAS, CDA.1, which refers to this concern being raised at a “point in time”232 when the height of the proposed building was approximately 112m233, and with the benefit of preliminary verified views” it was advised by Mr Coleman that “the proposed design would need to be revised to mitigate the visual impact from the view towards the Palm House”234. The DAS records that “[t]he initial design response” was not to reduce the height but to alter the design of the highest part of the building to “create a visual relationship between the Palm House and the Proposed Development”235 but it was decided that instead the height must be reduced to “protect this view”236. There are a number of points that arise in relation to this evidence: 1) The inherent contradiction that lies at the heart of the Appellant’s case is really quite striking. Thus it is said that the Chiswick Curve is of such design quality and so “delightful” that it cannot be harmful when seen from anywhere but it was nonetheless necessary in relation to one view from Kew Gardens to reduce the height of this otherwise “delightful” building so that it could not be seen (or clearly seen). 2) Viewpoint 18 was identified as uniquely important by Messrs Egret and Coleman before there had been any consultation with HE or RBG Kew237. 3) The reduction in height that was actually effected as a result of this concern for one particular view within Kew Gardens was minor. The height at the time these issues were being debated by the Appellant’s team was approximately 112m238. It was reduced to 109m239. So, the total reduction in height appears to be 3m in the context of what remains a 109m high building.

231 Mr Coleman’s proof at para. 6.27 232 Confirmed by Mr Egret in XX to be July/August 2015. 233 DAS, para. 4.6. 234 Ibid, and see also Mr Egret’s proof at para. 7.5.3 235 Ibid. 236 See the DAS, CDA.1, p. 70, second column and Mr Egret’s answers in XX. What it was being protected from, Mr Egret accepted, was harm to its significance. In this regard Mr Egret’s proof at para. 7.5.5 is telling. He explains that it was Mr Coleman’s view that the appeal proposal needed not to be visible from this view of the Palm House “to preserve ‘the attributes of Outstanding Universal Value of the World Heritage Site’”. 237 See Mr Egret’s answers in XX. 238 Ibid. 239 See Mr Egret’s proof at para. 9.2.24. 54 WORK\31744720\v.1 17316.240 Classification: Confidential

4) Moreover, the appeal proposal in viewpoint 18 can still be glimpsed in the treeline240; 5) The limited visibility of the appeal proposal in this view is because of the presence of one or two trees, were any of those trees lost the appeal proposal would be far more visible and, in this view, that it is agreed it would be harmful. In relation to tree loss241. 6) Despite the acknowledged importance of the Palm House the appeal proposal will nonetheless be visible in a number of other view points around it: see Mr Spence’s viewpoints 16 and 17, TVIA viewpoints 17 – 20242 and Mr Croft’s proof App. D photos 17, 18 and 20. This is accepted by the Appellant, thus the TVIA addendum refers to appeal proposal being “largely hidden behind trees” to the north of the Palm House243 but it is acknowledged that it would “not be completely hidden”244 7) It is quite clear that in terms of the design process, and setting the height it was viewpoint 18, and viewpoint 18 alone, that was influential245. There is no discussion in the DAS of any consideration being given to any other views within Kew Gardens246. The Orangery is not mentioned even once. This omission is important. The purpose of a DAS is247 to describe the design evolution. The extent to which heritage issues have influenced the design choices should be evident from a DAS. The DAS makes crystal clear the focus was on a single view from within Kew Gardens. This alone influenced the design. Indeed, the DAS looks at what the designers regarded as “some key views”248. Not one of these is from Kew Gardens. The only view within Kew Gardens discussed is viewpoint 18249. 8) The concern with there being any view of, that is to say visibility of, the appeal proposal from this one view was said to have been triggered by “preliminary verified views” available at an early stage of the design process. These are references in the DAS at p. 70 and in Mr Egret’s proof at para. 7.5.3. Requests for disclosure of the

240 See the TVIA at p. 144. Accepted by Mr Coleman in XX. 241 See below. 242 All of which views around the Palm House, apart from viewpoint 20, are assessed as being high sensitivity by the TVIA. 243 CDA.15 para 7.11 244 See Mr Coleman’s rebuttal at para. 6.2. 245 See Mr Egret’s proof at para 8.2.5 and 9.2.22. 246 See e.g. the DAS a para 5.2, p 82 and see also p. 84. 247 See p. 4 of the DAS, CDA.1 248 See the DAS, p. 46, second column and Mr Egret’ answers in XX. 249 See above. 55 WORK\31744720\v.1 17316.240 Classification: Confidential

preliminary verified views have been made before and during the inquiry. Initially the request was flatly denied250. There was then an indication during the inquiry that these would be provided. They have not been. 9) The focus on this one view is said to be justified by this view “being particularly significant” and “of a different character from other heritage views”251. This is said to be for three reasons252: (i) “it is one of three architectural icons at Kew Gardens World Heritage Site”; (ii) “it is within a landscaped setting that the Palm House partly depends on, and not an urban setting”; and (iii) “it embodies a synergetic and harmonious relationship between architecture and landscape”. There is no disputing the importance of the Palm House to Kew Gardens but what appears to be a blinkered focus of this, and on one view across it, in the design process is difficult to justify. Thus looking at the 3 points: i. The Palm House is, of course, Grade I listed but so is the Orangery. But in relation to views of the Orangery the appeal proposal was apparently not seen as being an issue at all253. And, the whole of Kew Gardens is an inscribed World Heritage Site. This undue focus in the design process on one single view is unjustifiable. Mr Egret’s written evidence was that the Palm House is said to be one of three architectural icons at Kew Gardens. In cross-examination his position on this was a little confused. He began by saying that it was an error to suggest that there were only three such architectural icons in Kew Gardens, and that there were many more. He could not to begin with even identify what the other two architectural icons that he was referring to in his evidence were. He eventually accepted the other two he was referring to in his written evidence were the Temperate House and the Princess of Wales Conservatory. In relation to: 1. the Temperate House: there will be some views of the appeal proposal from the gallery254. In designing the scheme neither Messrs Egret nor Coleman visited the Temperate House as it was

250 There has also been a request for any other preliminary AVRs available at this stage; see INQ22. 251 See Mr Egret’s proof at para. 9.2.22 252 See Mr Egret’s proof at para. 7.5.5. 253 Although in XX Mr egret suggested that Mr Coleman did have “concerns” about this. They are not concerns he has shared with the inquiry. His evidence to the inquiry is that the appeal proposal is beneficial when viewed in the context of the Orangery. 254 See Mr Croft’s App. D photo 20. 56 WORK\31744720\v.1 17316.240 Classification: Confidential

shut at the relevant time. Mr Coleman accepted the appeal proposal would indeed be visible from the Temperate House gallery255; 2. the Princess of Wales Conservatory: the appeal proposal would be very clearly visible – strikingly so - in views of this building: see viewpoint 49 in Mr Coleman’s rebuttal. Despite this at the design stage the exclusive focus was on one single view of the Palm House. The Orangery is indisputably also an iconic piece of architecture, indeed it is so described in the Management Plan: see paras. 3.9.19 – 3.9.20. And surely there is no doubting the importance of Kew Palace in architectural terms. Despite this the focus of Messrs Egret and Coleman in designing the scheme and defining the height256 was on a single view of the Palm House. ii. There is no dispute that the Palm House is within a landscaped and not an urban setting but that is true also of the Orangery257, the Princess of Wales Conservatory, the Alpine House and (to a lesser extent) the Temperate House. It is difficult to see this as providing any basis for the wholly different treatment of the Palm House and the Orangery in the design process. iii. Similarly, while the Palm House can rightly be said to embody “a synergetic and harmonious relationship between architecture and landscape”, the same is also true of the Orangery and other affected heritage assets in Kew Gardens. 10) It really is very difficult to understand why it is that what is said to be the outstanding design of the appeal proposal is beneficial everywhere else it is seen in Kew Gardens but not at this one viewpoint. 11) The advice from Mr Coleman was it seems clear that views of the appeal proposal from anywhere else in Kew Gardens, apart from viewpoint 18, were beneficial258.

255 See his answers in XX, he tried to suggest this was not important because the gallery could not be easily accessed by those with disability. This is a bizarre suggestion. There is no need for public access at all in judging impacts on the setting of heritage assets. Mr Coleman did accept this when pushed. 256 Confirmed by the DAS, CDA.1, at pp. 82 and 84. 257 As Mr Egret accepted in XX. 258 See Mr Egret’s answers in XX, albeit he did at one point refer to Mr Coleman having concerns about other views but these concerns were not disclosed by either Messrs Egret and Coleman. 57 WORK\31744720\v.1 17316.240 Classification: Confidential

108. Fifth, in a number of viewpoints the purported limited visibility of the appeal proposal is as the result of the presence of a small number of mature trees, indeed in some cases a single tree is what limits the views. This is especially so in respect of the following: 1) The Orangery: “if the mature tree to the southwest of the Orangery was lost or reduced in size the impact of the development would be significantly worsened”259; 2) The Palm House: “[i]t is also important to note that its impact and harm would substantially increase were any of the mature trees in the views to be lost due to disease / storm damage or to have their crowns significantly reduced for human health and safety or tree health reasons”260. 3) The Temple of Aeolus: “[t]he development lies behind a large mature evergreen tree and its impact on the view is reduced by this. However, loss of the tree or reduction of its crown for health and safety or on tree health grounds would very significantly increase the visual intrusion of the development into the scene further challenging the layout below”261.

109. This is important because it cannot be assumed, as the Appellant has, that these trees will remain in place. Mr Williams proof says “[t]he Royal Botanic Gardens, Kew has an active tree risk management policy which covers the inspection and maintenance of trees on the site. Tree risk control can include significant reduction of tree crowns and even the removal of entire trees if dangerous or diseased”. This is confirmed by the email from Tony Kirkham, the Head of Arboretum, Gardens & Horticultural Services262. This refers to c. 85 trees having had main branches removed and 30 – 40 whole trees removed last year, with the figures expected to be higher this year. While trees may be replanted when lost or removed, they are generally not replanted in the same location because of the complex root systems that are left behind when a tree is removed or because of the enduring presence of pests and diseases263, and it would take many, many years to provide the screening of the appeal proposal that is currently provided by a small number of very mature trees264. In addition, the Atkins 2013 study emphasises the risks to heritage assets, including designed historic landscapes, from an increased risk of tree loss from climate change

259 See Mr Croft’s proof at paras. 6.2.19 and 6.2.22. 260 Ibid. at para. 6.4.19. 261 Ibid. at para 6.5.17 and 6.5.23 and 6.5.24 262 INQ14. 263 See Mr Williams’ EinC 264 Ibid. 58 WORK\31744720\v.1 17316.240 Classification: Confidential

impacts and the introduction of new pests and diseases 265. The appeal proposal relies on a small number of mature trees to reduce its impact in a number of important views. The appeal proposal if granted permission will be a permanent feature, the existing trees which mitigate its impact in certain views will not be.

110. Sixth, Mr Croft in his evidence-in-chief made clear his view that the Appellant has not undertaken any cumulative assessment in relation to impacts on Kew World Heritage Site. In cross-examination he was asked whether he maintained that view. He confirmed he did, saying “there has been no cumulative assessment in terms of the SPG looking at existing harm and further change”. Mr Harris said in response “we will see about that” and promised that later on in the cross-examination he would return to this to show Mr Croft the references where the Appellant said that such an assessment had been done in its documents. Mr Harris did not return to this. The Appellant’s case that it has in fact done a proper cumulative assessment was thus not put to Mr Croft in cross-examination to comment on. It is clear that there are two key flaws with the approach taken in the TVIA and the TVIA addendum: 1) The cumulative assessment of impact on the World Heritage Site266 only looks at the impact of the appeal proposal with the consented Brentford Football Stadium development. It does not contain any assessment of the cumulative impacts with “past” or “present” development as required by the Mayoral SPG. The Appellant’s approach, as confirmed by Mr Coleman in his oral evidence267, is to treat any past development as part of the baseline. This is a short cut that ends up in Central Park268. So, there is some urban context at Kew Gardens, this supports a case for more urbanity in the form of the Chiswick Curve. Next time round Chiswick Curve is a further part of the urban context and relied on to justify yet more269.

265 INQ15 266 See the TVIA, DCA.11, p. 70. 267 See his answers in EinC and XX. 268 See above. 269 This is related to the “baseline creep” or the “shifting baseline” issue raised by Ms Rabouhans in XX of Mr Coleman. In his oral evidence Mr Coleman went headlong down this line of argument. So he began by noting that on the Brentford Stadium scheme officers had said that visitors to Kew Gardens readily appreciated the urban context and then went on to suggest, at Mr Harris’s prompting, that with each new permission (Brentford Stadium, Watermans, Citroen etc.) the context becomes even more appreciably urban. This is really just making RBG Kew’s case. The cumulative impact is clear. 59 WORK\31744720\v.1 17316.240 Classification: Confidential

2) The other flaw is that the section on impact on the World Heritage Site draws on the assessment of individual viewpoints later in the TVIA but in all of these the magnitude of change and the impact was considered before considering the cumulative impact. Again, these viewpoint assessments fail to take into account past or existing development. This is directly contrary to the Mayoral SPG.

g. Overall assessment of harm to the World Heritage Site 111. RBG Kew’s case, relying on the evidence of Mr Croft, is that in combination with other existing development the proposed development would cause significant harm to the setting and the OUV of the WHS, resulting in it reaching a tipping point from “Less than Substantial Harm” to “Substantial Harm”270. Focussing on the appeal proposal alone, and ignoring other existing and proposed development, it is accepted that the harm is less than substantial albeit in the upper half of “Less than Substantial Harm” and “significant”271. But, of course, in policy terms it is clearly not correct to ignore other existing and potential harm in the assessment.

112. There are a number of reasons why Mr Croft’s assessment of the level of harm should be preferred.

113. First, he has undertaken a thorough and detailed in-combination assessment of the impact on the setting and the OUV of the WHS taking into account a wide range of factors (as required by the SPG and HE Guidance) beyond the mere consideration of a small number of defined viewpoints presented by the Appellant.

114. Second, his evidence should be given great weight having regard to his: 1) considerable experience in relation to the management of World Heritage Sites, and also assessing and defining their settings: see paras. 1.1.3, 1.1.4 and 1.1.7 of Mr Croft’s proof; and 2) considerable experience in relation to the Kew World Heritage Site. In particular he played a key role in the successful nomination of the Kew Gardens as a World Heritage Site in 2002 / 2003, including defining the significance of the Site, its

270 See Mr Croft’s proof at para. 2.3.2. 271 In this regard the assessment of harm matches the assessment of others including Messrs Grover and Dunn. 60 WORK\31744720\v.1 17316.240 Classification: Confidential

boundaries and its Buffer Zone. He led the preparation of the Nomination Document, the 2002/3 Management Plan272 and the full Conservation Plan for the Site: see para. 1.1.5 of Mr Croft’s proof.

115. Third, his views are strongly supported by the conclusions of the ICOMOS technical review, thus ICOMOS concluded that the appeal proposal “would cause substantial harm to the World Heritage property, especially affecting its visual integrity”273.

(ii) Registered Park and Gardens 116. The whole of Kew Gardens is Grade I on the Historic England Register of Park and Gardens of Special Historic Interest.

117. Mr Grover’s evidence274 was that “much of the significance of the grade I Registered Park and Garden at Kew derives from the high-quality landscape design, with its primary and secondary views, containing overlapping formal and informal elements. Whilst certain formal viewpoints within the designed landscape at Kew are clearly of particular value, the experience of this unique heritage asset is a kinetic one, which cannot be distilled to singular viewpoints.”

118. Under para. 132 of the NPPF a Grade I Registered Park and Garden is a heritage asset of the highest significance.

119. Harm would be caused to the setting, and significance, of Kew Gardens as a Grade I Registered Park and Garden in the same ways as it would to the World Heritage Site.

(iii) Other heritage assets Listed Buildings and the Ancient Scheduled Monument 120. There are a number of affected heritage assets within Kew Gardens the setting, and significance, of which would be adversely affected by the appeal proposal. Being listed buildings the settings are the subject of statutory protection, as well as policy protection.

121. The assets most affected are as follows: 1) Orangery – Grade I listed;

272 Key elements of the 2002/3 Management Plan were carried forward into the 2014 Management Plan. 273 See above. 274 See his proof at para 5.18. 61 WORK\31744720\v.1 17316.240 Classification: Confidential

2) Kew Palace – Grade I listed and scheduled monument; 3) Palm House – Grade I listed; 4) Temple of Aeolus – Grade II listed; 5) Cambridge Cottage – Grade II listed.

a. The Orangery (see Mr Croft’s proof section 6.2) 122. Background and history275: the importance of the Orangery, a Grade I listed building, is indisputable. It was constructed in the 1750s and designed by Sir William Chambers. It was an integral part of Augusta’s Kew Gardens276 and stood on the northern edge of Frederick’s Great Lawn. At “the time of its construction the Orangery was the largest glasshouse in England and was designed and located to form a major architectural statement in Augusta’s gardens; its location on the edge of the Great Lawn ensured that it was a highly visible and prominent feature in the landscape …”277.

123. Setting: the Orangery is a hugely important building in the landscape history of Kew. It was designed to be seen across the Great Lawn and Lake as a key designed architectural element in the landscape. Views of the Orangery across what remains of the Great Lawn are important, thus the December 2016 report attached to and forming part of RBG Kew’s Statement of Case278 rightly refers to the importance of views of the Orangery despite these not being sight lines or vistas shown on p. 95 of the Management Plan.

124. One other matter on the Great Lawn. The Appellant suggests that views that are now possible across what remains of the Great Lawn towards the Orangery is a relatively modern phenomenon as from the 1760s onwards a tree belt prevented views of the

275 Mr Croft’s proof paras. 6.2.1 – 6.2.4. 276 It was the principal architectural feature in this area of Augusta’s gardens, ibid. para. 6.2.5. 277 Ibid para 6.2.2. 278 CDE.06, p. 5 of the December 2016 document. 62 WORK\31744720\v.1 17316.240 Classification: Confidential

Orangery279. This view was rightly refuted by Messrs Dunn280 and Croft281 by reference to the illustrations and historical maps in Mr Croft’s App. E282.

125. The Orangery was later adopted by Decimus Burton in his geometric design as a key feature along the Broad Walk, drawing the eye down the walk (when coming from the Palm House) and providing a visual barrier to views from the Little Broad Walk until the junction with Main Broad Walk was reached from the entrance gates. It acts a visual marker to the change of direction in the Broad Walk. Moreover, its current setting has retained important elements of its historic setting including views of the Orangery over open areas of lawn from the southwest (which reflect its designed relationship with the Great Lawn), its screening function in relation to the Broad Walk, its prominence in the landscape and its screening planting to the rear that reinforces its prominence in the landscape283.

126. It was Mr Williams evidence284 that the Great Lawn is one of the last remaining open spaces in the Gardens and the fact it is kept open is respectful of its historic nature as an open green space. He explained its importance in the Entrance Zone, the fact that it is well used by visitors285. He also pointed out that there are two entrances in the Entrance Zone and for those entering through Brentford Gate where the main car park is and heading towards the Orangery the appeal proposal will be visible. He also pointed out

279 See Mr Egret’s proof at para. 9.2.48 and his conjectural sketch and his answers in XX. It is an oddity of the Appellant’s case that it says that the Haverfield Towers should be ignored because the focus must be on matters as they stood as at the date of inscription but in seeking to diminish the importance of views to the Orangery we must apparently go back to the 1760s rather than consider the situation as at inscription. 280 See Mr Dunn’s answers in RX. 281 See Mr Croft’s answers in EinC. 282 One of the highlights of the inquiry was Mr Egret’s response to Mr Croft’s illustration 2 because of “the Giant Swan” in the picture. He initially seemed to think this undermined the credibility of the sketch. He did not appreciate that “the Giant Swan” is in fact “the Swan Boat” named the Augusta, and thus something properly to scale and very much a real thing: see INQ24. This was not just a piece of wild artistic licence. This exchange brought to mind a classic Blackadder IV moment when Blackadder presents an illustration drawn of the frontline: “Darling: Are you sure this is what you saw Blackadder? Blackadder: Absolutely. I mean there may have been a few more armament factories, and not quite as many elephants, but...” Mr Coleman then suggested in EinC that the illustration had rotated the Orangery 90 degrees, when challenged on that in XX he quickly accepted that he was wrong. 283 Ibid. paras. 6.2.5 – 6.2.6. 284 See his answers in EinC 285 And is used for events such as the Science Festival, Kew the Music etc. 63 WORK\31744720\v.1 17316.240 Classification: Confidential

that there will be views of the appeal proposal when entering and leaving via Elizabeth Gate and heading across Kew Green.

127. Existing detractors to setting: the Haverfield Estate towers is a highly intrusive element in the setting, especially in views down the Broad Walk and from the south286. Regrettably, from certain views the Brentford Stadium development will be visible behind the Orangery – further adversely affecting its setting287.

128. Significance288: the significance of the Orangery is undeniable and attempts to belittle this in any way should be deprecated. A few short points will suffice given that this is self-evident: 1) The Orangery’s significance resides in a number of aspects relating to its history, architectural form, relationship to the evolution of Kew Gardens and its setting. 2) In relation to the World Heritage Site, of which it forms and integral part, it is directly mentioned in the SOUV (CDF.17) which states that “[e]lements of the 18th and 19th century layers including the Orangery … convey the history of the Gardens’ development from royal retreat and pleasure garden to national botanical and horticultural garden before becoming a modern institution of conservation ecology in the 20th century”; and it contributes to two of the criteria under which the site was inscribed:, see criteria (ii) and (iv); 3) Historically it is of particular note for its relationships with Princess Augusta and Sir William Chambers, both key players in the development of Kew Gardens. It was also England’s largest glass house at the time of its construction and represents a key phase in the development of horticulture in England. Throughout its history it has played key roles in the landscape design of Kew289. 4) It is also of significance as an exceptionally well detailed classical garden building, an exemplar of its type from this period290. 5) Its setting in the designed landscape of the gardens as a key prominent feature in views across the former Great Lawn and along the Broad Walk are key elements of its historic, architectural and aesthetic significance.

286 Ibid paras. 6.2.7 and 6.2.8. 287 See below. 288 Ibid. paras 6.2.9 – 6.2.14. 289 Ibid. at para 6.2.12. 290 Ibid. at paras. 6.2.13 and 6.2.14. 64 WORK\31744720\v.1 17316.240 Classification: Confidential

6) The Orangery is described in the Management Plan as one of the key note buildings of the Entrance Zone291; it is also described as one of the iconic architectural buildings in Kew Gardens292. 7) The classification of views across the remains of the Great Lawn towards the Orangery as “medium” in the TVIA is, it is submitted, wholly unjustifiable.

129. Impact: the appeal proposal will appear in views in, around and behind the Orangery. It will have the effect of “challenging its prominence in the landscape and detracting from important views of the Orangery across the open lawn area that mark the surviving extent of the Great Lawn – these views are a very important aspect of the Orangery’s setting and make a direct contribution to its significance”293: see Mr Spence’s viewpoints 14 and 15; TVIA viewpoint 16; TVIA addendum viewpoints 36 and 37; Mr Croft’s App. D photos 3, 5, 8 and 9 and Mr Coleman’s moving studies. The harm would be even greater if one tree were lost or reduced294. The proposed development exacerbates existing impacts from the Haverfield Estate towers and future impacts from the Brentford Stadium development295 (see TVIA viewpoint 16A and Mr Coleman’s proof Apps. Vol 1 pp. 32 – 33) “by placing development immediately over the Orangery in certain key views and by extending the visual intrusion of external modern development across a range of views”296. These changes significantly challenge the prominence of the building in Kew Gardens designed landscape and seriously affect its setting and significance. It would have a major adverse impact on the Orangery297.

130. Conclusion: In conclusion “the setting of Orangery makes a significant contribution to its significance; and its unchallenged prominence on the landscape is a key element of its significance. The development in conjunction with existing development would have very significant impact on the asset’s setting and significance. The scale of change is severe and affects key aspects of its setting and significance. The harm is borderline Less than Substantial Harm / Substantial

291 See CDF10, para 3.5.3. 292 Ibid. para. 3.9.20, and Mr Coleman’s answers in XX. 293 Ibid. para 6.2.16, Mr Grover’s EinC was that the appeal proposal would impact on the setting of the Orangery as an “arbitrary element in the skyline” and would appear as a “highly intrusive and alien feature directly behind or slightly to the right o the Orangery”. 294 See above. 295 Worsened yet further if permission is given on the Citroen site. 296 Ibid. para 6.2.18. 297 Ibid. para. 6.2.20. 65 WORK\31744720\v.1 17316.240 Classification: Confidential

Harm”298. It was Mr Dunn’s oral and written evidence that the impact of the appeal proposal on the Orangery was a key concern for HE.

b. Kew Palace (see Mr Croft’s proof section 6.3) 131. Background and history: Kew Palace is a 17th century square, red brick mansion in Flemish bond brickwork. It is a Grade I listed Building and Scheduled Monument. It From 1729 to 1809 it was a Royal residence299. It was first occupied by the then Princess of Wales, later Queen Caroline and her three eldest daughters. Kew Palace is a unique building, being the smallest of the Royal palaces surviving in the UK today. Kew Palace played a central role in the domestic and dynastic history of the Georgian Royal families, and it can be argued that the Kew side of the gardens, and thus the very first botanic gardens at Kew, owe their origins to the presence of the Royal family in Kew Palace300. Historic Royal Palaces are responsible for Kew Palace and have also objected to the appeal proposals301.

132. Setting: Kew Palace sits on its own at the north of the gardens, the buildings that were once attached to it having been demolished historically. It has an open aspect on three sides, with unobstructed views to the river. There are formal gardens to the front and rear, specifically designed to complement the historic building. There are important views of the building from the lawns to the southeast and from the gardens to the northwest. The visual and physical relationship to the Thames is an important element of its history and setting302.

133. Existing tall buildings north of the River have had an adverse effect on the setting of Kew Palace. This includes the Haverfield Towers and the Kew Eye.

134. Significance: There really cannot be any serious dispute as to the significance of Kew Palace. Thus “Kew Palace is the earliest surviving element of the royal history of the Site and is an important and authentic building that with later structures conveys history of the Royal

298 Ibid. para. 6.2.21. 299 Ibid. paras. 6.3.4 – 6.3.6. 300 Ibid. 6.3.13 301 See Mr Williams proof at paras. 5.1 – 5.6. 302See Mr Croft’s proof at paras. 6.3.9 – 6.3.11. 66 WORK\31744720\v.1 17316.240 Classification: Confidential

Botanic Gardens’ development from royal retreat and pleasure garden to national botanical and horticultural garden”303. It is specifically referenced in the SOUV (CDF.19) and contributes to criterion (ii) on the basis of which Kew Gardens was inscribed. Views from upper floors of the Palace have been identified in the WHS Management Plan as being of significance304. Further, the Management Plan identifies Kew Palace as a key attribute contributing to “the OUV of the WHS iconic architectural legacy”305. Kew Palace is a fine example of an early 17th century country house306. Kew Palace is central to the story of the development of both Richmond and Kew as Royal gardens; their subsequent unification under George III and their historical development as Kew Gardens307.

135. Impact: while the appeal proposals will not appear prominently in views of the building there will be glimpses of it in tangential views along the front façade and views from upper storey windows308. These will be liable to distract from the appreciation of Kew Palace: see Mr Spence’s viewpoints 12 and 13 and TVIA viewpoints 31 and 32309. In the TVIA310 it is recognised that Kew Palace is a heritage asset of ‘high’ sensitivity, but it is suggested that “the magnitude of change in one view will be considered ‘low’. The overall effect can be considered minor, however, because the proposed development is only likely to be seen in conjunction with the heritage asset from relatively contrived views looking sharply across its front elevation”. This though fails to have regard to the impact of views from the higher windows, a view identified as being of importance in the Management Plan. The setting of Kew Palace is already subject to a significant and highly regrettable degree of harm, in particular as a result of the Kew Eye building in views from the northern elevation and in some views of the building from the south; and the Haverfield Estate Towers in views of the building and from the rear of the building. The proposed development would, albeit only very slightly, increase the scale of harm by increasing the overall scale

303 Ibid. para. 6.3.2. 304 See Mr Croft’s proof at para. 6.3.11 and the Management Plan at para. 3.6.5 an p. 95 (CDF.10). 305 CDF.10 paras. 3.8.3, 3.9.28. 306 See Mr Croft’s proof at para. 6.3.14. 307 Ibid. at para. 6.3.16. 308 In XX MR Harris put to Mr Croft the point that the blinds on the windows on the second and third floors were usually closed. Mr Croft in RX explained this was irrelevant in terms of heritage impacts which do not require there even to be public access. 309 Ibid. at para. 6.3.18. 310 CDA.11 para 8B.39. 67 WORK\31744720\v.1 17316.240 Classification: Confidential

of visual intrusion of modern development into views of and from the building311. There is also other possible development threatened e.g. at the Waterman’s site.

136. Conclusion: the proposed development would give rise to minor additional harm. The current level of harm is at the upper end of less than substantial and while further adding to this, cumulatively, the appeal proposal is not contended to tip the balance to substantial harm312.

c. The Palm House (see Mr Croft’s proof section 6.4) 137. Background and history: the background and history of the Palm House is well documented and does not need to be extensively repeated here. It is Grade I listed and was designed by Richard Turner, with Decimus Burton the consulting architect. It is located beside the remodelled remains of Prince Frederick’s early 18th century Great Lake at the southern end of his Great Lawn, next to his intended Mount Parnassus (now housing the Temple of Aeolus). Thus, the high-Victorian Palm House sits within the recognisable features of a high-Georgian landscape313. Its location was a point of considerable importance for the development of the Victorian Gardens314.

138. Setting: The setting of the Palm House has a number of elements: see Mr Croft’s proof at paras. 6.4.7 – 6.4.9. This includes its location in the heart of the Georgian Kew Gardens surrounded by surviving Georgian garden features and its lynchpin position for the redesign of the Gardens by both Burton and later Nesfield. There are though detractors including seasonal glimpsed views of the Haverfield Estate towers in northwards views from the south and southeast (see Photos 16 and 18 in Mr Croft’s App. D), views of the Vantage West building behind the Palm House in axial views along the Pagoda vista and seasonal glimpses of the towers in views across the Palm House Pond315.

139. Significance: the significance of the Palm House is agreed by all the parties, and further details are provided in paras. 6.4.11 – 6.4.14 of Mr Croft’s proof. The Appellant rightly

311 Ibid. at para. 6.3.19 312 Ibid. at para. 6.3.21. 313 Ibid. at para. 6.4.3. 314 Ibid. at paras. 6.4.4 – 6.4.6. 315 Ibid. at para. 6.4.10. 68 WORK\31744720\v.1 17316.240 Classification: Confidential

recognises in the TVIA that almost all of the views around the Palm House are highly sensitive316.

140. Impact: the proposed development will encroach into the setting of the Palm House in some views from the southwest/west across the immediately associated designed landscape: see TVIA viewpoints 17 and 18. These are views that currently feature no intrusive development. There will be other glimpsed views of the appeal proposal as well: see Mr Croft’s App. D photo 17. The Appellant suggests that the appeal proposal would be “largely hidden behind trees” in a number of views (see the TVIA, CDA.11, para. 7.11) but it is very clear that it would not be entirely hidden, see Mr Spence’s viewpoints 16 and 17. The impact is particularly an issue in winter, which is important as Kew Gardens is visited and is popular all year around317. Seasonal considerations in relation to the impact of development on the setting of World Heritage Sites are also specifically addressed in the SPG at Implementation Point 8 (see pages 50-51)318.Moreover, the loss or management of certain trees could substantially increase the impact319. As noted above there is already in some views of the Palm House intrusion from the Haverfield Estate towers, the BSI building and Vantage West. There would be some additional impact from the Brentford Stadium development. The appeal proposals would increase, albeit it is accepted only slightly. But the overall level of visual intrusion and be very much more significant if a small number of particular trees were lost320.

141. Conclusion: there would clearly be harm, which is accepted – with current tree cover – is less than substantial and at the lower end. This is an important consideration though as the setting of the Palm House makes a very significant contribution to its significance.

d. The Temple of Aeolus (see Mr Croft’s proof section 6.5)

316 See above. 317 Ibid. paras, 6.4.15 – 6.4.19. 318 Page 51 of the SPG states that “SEASONAL SCREENING, ROYAL BOTANIC GARDENS, KEW: Both the deciduous and coniferous trees in the Royal Botanic Gardens, Kew, provide seasonal colour and summer shade. They also help to screen the low and mid rise buildings at Brentford and Kew Bridge. During the winter months, the level of screening is reduced. When considering the effect of proposals on the setting of World Heritage Sites, the assessment should include consideration of the impact of the extent of vegetation in both summer and winter months”. This was explicitly addressed by Mr Croft in his assessment. 319 Ibid. at para. 6.4.19. 320 Ibid. paras. 6.4.20 – 6.4.21. 69 WORK\31744720\v.1 17316.240 Classification: Confidential

142. Background and history: The Temple is Grade II listed. It sits on the Cumberland Mound, and is open to all sides. The mound was an integral part of Frederick’s Lake design begun in the 1750s, soon after Chambers’ Temple of Aeolus was built on the mound. The area was then reinvented by Decimus Burton in 1845. When Kew Gardens was inscribed onto the World Heritage List in 2003 the mound and the Temple were at that point closed to the public. Works have been done since then to re-open these and thus “[t]he area is once again as Frederick, Augusta, Chambers and Burton intended – a mount from which to view the designed landscape, and a place to contemplate”321.

143. Setting322: The mound and temple were conceived to enable views out across a designed landscape and to enable views of the temple in that landscape – these are central aspects of its setting and significance. Its relationship to the landscape changed in c. 1845 when the old temple was replaced by the current structure, the trees were removed and the mound grassed – at around the same time the landscape to the north was transformed later becoming the Order Beds. The new temple now provided an outlook to the south / west over the pond and Palm House and to the north over the later order beds – “it had been reimagined to form a publically [sic] accessible viewpoint from which to admire the full gamut of Kew’s emerging Victorian splendour, while reflecting its Georgian past with a classical eye catcher design”. Its current setting reflects this mid-19th century position with views out to the north and west linking to the Palm House and Order Beds. Once again the Temple is publicly accessible.

144. Significance: the SOUV expressly mentions “folly temples” as an element which conveys the history of Kew Gardens development from a royal retreat to a national botanical and horticultural garden. The importance of folly temples is also emphasised in the Management Plan323. The Temple and mound are highly significant historical features directly related to the gardens designs of Frederick and Augusta and later Decimus Burton324. Its role in the gardens has evolved over time with the transformation of the original 18th century garden into the later grand Burton design of today. Through this transformation it has developed an important relationship with the Order Beds325. The

321 Ibid. paras. 6.5.1 – 6.5.7. 322 Ibid. paras. 6.58 – 6.5.10. 323 See para. 3.8.3, CDF.10. 324 See Mr Croft’s proof at paras. 6.5.12 – 6.5.15. 325 Ibid. para. 6.5.16. 70 WORK\31744720\v.1 17316.240 Classification: Confidential

suggestion in the TVIA addendum326 that the sensitivity of the Temple is only “medium” is unjustified.

145. Impact: the Temple was designed to provide views out over the designed landscape of the Gardens, and that remains its function. The appeal proposals would feature clearly in the view, providing a distracting and negative element that draws the eye away from the axial relationship with the Order Beds. While the impact is somewhat reduced by the presence of a large evergreen tree were this to be lost or reduce the impact would very significantly increase327: see Mr Spence’s viewpoints 16 – 18 and viewpoint 35 in the TVIA addendum. The BSI building and some other taller development already has an adverse impact on views from the Temple; as to glimpsed views of the Haverfield Estate towers, the appeal proposal would notably further increase the impact and detract from the intended views. The scale of visual intrusion would be notably increased328.

146. Conclusion: overall the proposed development would adversely affect notable aspects of the Temple’s setting and hence significance. In conjunction with the BSI building it would have a notable impact on northward views over the Order Beds. The harm would be far greater with the loss of a single tree. The harm is accepted to be less than substantial.

e. Cambridge Cottage (see Mr Croft’s proof section 6.6) 147. Background and history: this is a Grade II listed two-storey building within the Kew Green Conservation area and there has been a building in this location since at least the seventeenth century. It was bought by George III in 1772 and the two young Princes, William and Edward, were lodged there. It remained a Royal residence for many years thereafter before it was turned over to Kew Gardens for use as a museum, and later an art gallery329.

148. Setting: there are a number of aspects to the setting of the Cottage. The frontage looks over Kew Green. To the rear of the building it has a close connection to Kew gardens and

326 See CDA.15 p. 16 327 Ibid. paras. 6.5.17 – 6.5.19 and para 6.5.23. 328 Ibid. para. 6.5.20. 329 Ibid. paras. 6.6.1 – 6.6.7. 71 WORK\31744720\v.1 17316.240 Classification: Confidential

is an important historic building in this part of the Gardens. It has its own bounded garden which also forms an element of its setting330.

149. Significance: the Cottage is a notable 18th century town house with historical Royal connections. It has a strong historical relationship and association with Kew Green and Kew Gardens, and makes some contribution to the OUV331.

150. Impact: there are two main impacts: 1) Views out over Kew Green: see Mr Spence’s viewpoint 11; 2) Views from within the Gardens: see Mr Spence’s views 20 and 21.

151. The changes to the setting of the building caused by the proposed development would have a significant impact on the aesthetic and historic significance of Cambridge Cottage332. At present the only external development visible is two and half storey domestic scale development in Kew. The Chiswick Curve would be a step change to this333.

152. Conclusion: the appeal proposal would significantly change the setting and very seriously harm its significance. The level harm is in the upper half of less than substantial harm334.

f. Conclusions on listed buildings 153. There would be harm of varying degrees to the setting and significance of a number of listed buildings within Kew Gardens namely the Orangery, Kew Palace and the Palm House. All three of these are Grade I listed. These buildings being Grade I listed are heritage assets of the highest significance for the purposes of the NPPF. There would also be harm to Grade II listed buildings namely the Temple of Aeolus and Cambridge Cottage335.

330 Ibid. paras. 6.6.8 – 6.6.10. 331 Ibid. paras. 6.6.11 – 6.6.13. 332 Ibid. paras. 6.6.14 – 6.6.18. 333 As Mr Coleman accepted in XX. 334 Ibid. paras. 6.6.19 – 6.6.20. 335 The appeal proposal would also detract from the appreciation and setting of the Grade II listed 19th century statue “The Sower” at the heart of the Grass Garden: see Mr Croft’s proof at para. 5.8.4. 72 WORK\31744720\v.1 17316.240 Classification: Confidential

154. The concern with the impact on the setting of the Grade I listed Orangery is especially acute. Mr Croft assessed the scale of change to be “severe” and to affect “key aspects of its setting and significance”. He assessed the level of harm as being borderline less than substantial/substantial harm. The impact on the setting and significance of the Orangery was also a key issue for HE336. This was moreover a major concern raised by Mr Grover in his evidence on behalf of the LB of Hounslow337.

155. The harm to the Orangery, and the other listed buildings, attracts the application of s. 66 the P(LB&CA)A 1990 and, see below, gives rise to a strong presumption against the grant of planning permission.

(iv) Conservation Areas a. Kew Green 156. RBG Kew strongly supports the cases of the LB of Hounslow and HE on there being substantial harm to the Kew Green conservation area. Kew Green is a hugely important part of the setting of Kew Gardens. Part of Kew Green falls within the defined World Heritage Site, and the remainder is within the designated buffer zone. The submissions made by Messrs Ground and Harwood on the impacts on Kew Green conservation area are fully endorsed and adopted. It should not for one moment be thought that RG Kew not setting out a detailed case on Kew Green means they regard the impacts of the appeal proposal as being in any way even remotely acceptable. The appeal proposal would be highly, highly damaging to Kew Green which is an important part of the buffer zone of the World Heritage Site.

b. The Royal Botanic Gardens conservation area. 157. There is little in the way of analysis of this in the Appellant’s documentation. Given the overlap with the World Heritage Site it is inevitable that the focus will be on that rather than the conservation area but it is worth mentioning the conservation area statement338. The character section emphasises the international influence of Kew Gardens on “the

336 See Mr Dunn’s EinC and his proof at para 6.2.39 concluding that the appeal proposal would “would cause serious harm to the significance of the Grade I listed Orangery …” 337 See Mr Grover’s proof at paras. 5.23 – 5.24 and his answers in EinC. His conclusion is that the appeal proposal “would add considerably to the existing degree of harm caused to the highly sensitive and vulnerable setting of this part of the WHS”. 338 See Mr Croft’s App. C. 73 WORK\31744720\v.1 17316.240 Classification: Confidential

history of landscape and garden” and refers to Kew Gardens featuring “the landscape designs of Charles Bridgeman, Capability Brown, William Chambers and William Westfield”. Moreover, it identifies under “Problems and Pressures” “Development pressure which may harm the balance of the river and landscape-dominated setting, and the obstruction or spoiling of views, skylines and landmarks”. This is highly pertinent to the issues on this appeal339.

158. The statement under the heading opportunities for enhancement refers to the Management Plan, the most relevant parts of which for this purpose being para. 9.1.2 and Policy 3(h)340 and which, see below, seek the removal or screening of intrusive features e.g. the Haverfield Estate towers. This policy provides no support for the appeal proposal which seeks to add yet further visual intrusion.

159. The suggestion in the TVIA that the appeal proposal would have a “minor beneficial”341 impact on the Royal Botanic Gardens Conservation Area is simply incredible, it is a wholly unsustainable position.

The policy context – harm

160. There are a number of points to make in relation to the policy context for judging harm to the World Heritage Site and the other heritage assets in Kew Gardens.

161. If one sets to one side (as one should) the wholly incredible suggestions of the Appellant that the appeal proposal will cause no harm at all to any heritage assets because it “is of such a high quality that it will be a delightful feature wherever it is viewed from” then the actual issues on this appeal are: (i) how to characterise the harm that would be caused in terms of the distinction in national policy between substantial and less than substantial harm; (ii) what weight should be given to any identified harm; and (iii) what the Development Plan policies say about such harm and the outcome of this appeal.

(i) Substantial vs. less than substantial harm 162. There are a number of points to be made in this context:

339 Mr Coleman in XX accepted it was relevant and that he had not anywhere mentioned this. 340 CDF10. 341 CDA.11, p.47. 74 WORK\31744720\v.1 17316.240 Classification: Confidential

163. First, there can be no question but that the harm caused by the effect of a proposed development on the setting of a designated heritage asset may be substantial harm. This is after all what para. 132 of the NPPF says in the plainest possible terms. If there were any doubt about this, and there is not, the PPG (CDC.02, p. 22, para. 18a) confirms the position stating under the heading “How to assess if there is substantial harm?” that “[t]he harm may arise from works to the asset or from development within the setting” (emphasis added). In addition, the PPG under the heading “Planning for renewable and low carbon energy” advises (twice) that “[d]epending on their scale, design and prominence a wind turbine within the setting of a heritage asset may cause substantial harm to the significance of the asset”: see 013 Reference ID: 5-013-20150327 and 019 Reference ID: 5-019-20140306.

164. Second, it is accepted that the PPG also says (ibid) that “substantial harm is a high test, so that it may not arise in many cases”. But as was pointed out by HE in opening in the context of works to a listed building “the PPG advises that to constitute substantial harm, ‘an important consideration would be whether the adverse impact seriously affects a key element of its special architectural or historic interest” …. This is a reasonable approach to apply more generally …”342.

165. Third, in the Bedford case at para. 25 the Court said that “in the context of non-physical or indirect harm, the yardstick was effectively the same. One was looking for an impact which would have such a serious impact on the significance of the asset that its significance was either vitiated altogether or very much reduced.”. Bedford lies at the heart of the Appellant’s case on this appeal – see paras. 87 – 90 of Mr Harris’ opening. But: 1) It is important that the judgment in Bedford, as with any judgment, should not be construed as though it were itself a statute, since judgments respond to the facts found and the submissions advanced in the particular case. This was a common warning given by Sullivan J.343 2) It is important to see how Bedford has since been applied. In the Razor’s Farm appeal (Mr Coleman’s App/3/D6) the Inspector’s Report said that given that the key question is whether the adverse effect seriously affects a key element of a listed

342 See INQ5 para. 3(viii). 343 It needs to be made clear here that if this matter were to end up before the Courts RBG Kew reserves its position to argue that Bedford is wrongly decided. The submissions made on this appeal though proceed, as they must, on the basis that Bedford was correctly decided. The debate at this stage is thus as to what Bedford actually decided and how it is has been applied. 75 WORK\31744720\v.1 17316.240 Classification: Confidential

building’s special architectural and historic interest “it is difficult to envisage how an impact on setting, rather than a physical impact on special architectural and historic interest could ever cause substantial harm”344 and indicated that this conclusion was consistent with Bedford345. The Secretary of State rejected this. He specifically indicated that he did not agree with what is quoted above from IR para. 10.16.

166. Fourth, there are, moreover, plenty of examples of appeal decisions where decision- makers have concluded that substantial harm has been caused by development in the setting of a heritage asset: see by way of example only the High Court cases submitted to the inquiry by HE346.

(ii) What weight should be given to any identified harms 167. In relation to this the position is clear: 1) The NPPF requires that account be taken of the desirability of sustaining and enhancing the significance of all heritage assets (see para. 131, NPPF). Indeed it is one of the core principles of the NPPF that planning should “conserve heritage assets in a manner appropriate to their significance, so that they can be enjoyed for their contribution to the quality of life of this and future generations” (para 17, NPPF). Where a proposed development causes harm to the significance of a heritage asset it is not sustaining or enhancing. Moreover, when considering the impact of a proposed development “great weight should be given to the asset’s conservation” (para. 132, NPPF). 2) The more important the asset, the greater the weight that should be given to the conservation of the significance of the asset (para 132, NPPF). 3) World Heritage Sites, Grade I Registered Parks and Gardens, ancient scheduled monuments and Grade I and II* listed buildings are all “heritage assets of the highest significance” (see para. 132, NPPF). Thus, any harm caused to the significance of World Heritage Sites, Grade I Registered Parks and Gardens, ancient scheduled monuments and Grade I and II* listed buildings must be given significant weight.

344 See IR para. 10.16. 345 Ibid. para. 10.17. 346 INQ11- 13. 76 WORK\31744720\v.1 17316.240 Classification: Confidential

4) Because heritage assets are irreplaceable “any harm or loss” to the significance of the asset, whether via alteration or destruction or development within its setting, “should require clear and convincing justification” (para. 132, NPPF). Any such harm to a designated asset must be given “considerable importance and weight”347. 5) Where a development proposal will lead to less that substantial harm to the significance of a designated heritage asset “this harm should be weighed against the public benefits of the proposal …” (para. 134), but if one is concerned with designated heritage assets of the highest significance, having regard to the weight that must be given to any such harm, to begin to justify grant there would need to be a good deal of public benefit348 to weigh in the scales against that harm. 6) Mr Finch made an important concession in cross-examination namely that para. 65 of the NPPF means that the mere beauty of a building is not itself sufficient to overcome any impact/material harm to heritage assets. Where there is heritage harm more is required than this. So, if the Secretary of State agrees with the view of all the heritage experts before this inquiry, save for Mr Coleman, that there would be any harm to the significance of Kew World Heritage Site this cannot be outweighed by the aesthetics of the design. There needs to be other benefits: social, economic and environmental. 7) Importantly, less than substantial harm is not to be treated “as a less than substantial objection to the grant of planning permission” (Barnwell Manor para. 29349). 8) Moreover, as a result of s. 66 of the P(LB&CA)A 1990 any harm to a listed building or its setting gives rise to a strong presumption against the grant of planning permission (Barnwell Manor para. 23). 9) Substantial harm to designated heritage assets of the highest significance “should be wholly exceptional” (para. 132, NPPF). This is surely meant to denote that where there is found to be substantial harm to a designated heritage asset of the highest

347 See the Appellant’s opening, INQ3, at para. 95. This derives from the High Court decision in East Northamptonshire DC (para 13 [2013] EWHC 473 (admin) endorsed by Sullivan LJ ([2014] EWCA Civ 137, para 29, CDH.05). The comments in the case-law were made in the context of listed buildings but the Appellant in opening correctly applies this to all heritage assets. 348 Note in Mr Goddard’s proof he says that this balance would include “securing its [the Appeal Site’s] optimum viable use” (see para 7.26). This is wrong. This only applies where the heritage asset itself is being redeveloped. Note also that contrary to what is said by Mr Goddard in his proof (ibid) para. 134 of the NPPF has been held to be a restrictive policy for the purposes of footnote 9 of the NPPF. 349 Ibid. 77 WORK\31744720\v.1 17316.240 Classification: Confidential

significance it will almost never be justified to grant permission. It will only be in the rarest of cases this might be contemplated. 10) Where a proposed development will lead to substantial harm to the significance of a designated heritage asset, planning authorities should refuse consent “unless it can be demonstrated that the substantial harm … is necessary to achieve substantial public benefits that outweigh that harm or loss” (para. 133, NPPF). 11) Where there is substantial harm there is a need to show that this is necessary, and that requires that the developer establish there is no reasonable alternative350.

168. Assuming that the Secretary of State considers there to be some harm to the setting and OUV of Kew World Heritage Site it is plain that significant weight must be given to this having regard to the importance of the World Heritage Site.

169. If the Secretary of State were to agree with Mr Croft and ICOMOS that the appeal proposal causes substantial harm to setting and to the OUV of the Kew World Heritage Site, and hence to its significance, then this appeal should be refused. There is nothing even bordering on “wholly exceptional circumstances” and “substantial public benefits” such as to justify substantial harm to an asset of such importance351.

170. Even if the conclusion is that there is less than substantial harm to both the significance of the World Heritage Site and other heritage assets in Kew Gardens there still needs to be a clear and convincing justification for causing this harm to assets of the highest significance. RBG Kew has seen no such justification in the Appellant’s evidence. The difficulty is perhaps that the Appellant refuses to accept that there is even any harm to weigh in the balance.

(iii) What the Development Plan policies say about such harm and the outcome of this appeal

350 Ibid. at para. 99 and the case-law cited therein. In XX by Mr Harwood it was accepted by Mr Coleman that the ES contains no consideration of any scheme lower in height than planning application scheme. 351 The failure of Mr Coleman’s proof to deal with the balance if there were substantial harm is telling: see his proof at paras. 7.28 and 13.8 and his answers in XX. 78 WORK\31744720\v.1 17316.240 Classification: Confidential

171. The NPPF and the PPG are, of course, material considerations on this appeal, and weighty ones. However, the starting point for the determination of this appeal, as with any other, is the statutory Development Plan.

172. Assuming again that the view taken by the Secretary of State (in line with the LB of Hounslow, HE, ICOMOS and RBG Kew to name no more) is that there is at least some harm caused by the appeal proposal to the setting, and hence significance, of the World Heritage Site and other heritage assets within Kew Gardens the position is that this proposal is contrary to the statutory Development Plan352; and as a result it should be refused permission unless material considerations indicate otherwise.

173. First, under the London Plan, Policy 7.10B, is clear that “[d]evelopment should not cause adverse impacts on World Heritage Sites or their settings”. A proposal that caused adverse impacts would be contrary to this policy. Moreover, the policy goes on to say that “[i]n particular” a proposal should not compromise a viewer’s ability to appreciate its OUV, integrity, authenticity or significance. It is not necessary to find this for there to conflict with the policy but if it is so found in relation to the appeal proposal, and it is RBG Kew’s case that it should be, then the policy is further breached. It is submitted that there would also be conflict with Policy 7.7E.

174. Second, the appeal proposal would not conserve and enhance the OUV of Kew World Heritage Site (contrary to Policy CC4(d)(i) and (j)). As a result it could only be found to be in accordance with policy if the tests in Policy CC4(k) or (l) were met. Which of these tests applies depends, of course, on the level of harm ultimately found, see the analysis above in terms of the NPPF. It is submitted that these tests are not met and that the appeal proposal is in conflict with these relevant Development Plan policies. Further, as there would be “a significant adverse impact on the setting of, or views, from” Kew Gardens there would also be a clear conflict with policy CC3(d).

Conclusions

175. The Secretary of State is asked to give the most careful and anxious consideration to the harm that this appeal proposal will most certainly cause to the OUV, and hence the significance, of the Kew World Heritage Site.

352 This was accepted by Mr Coleman in XX. 79 WORK\31744720\v.1 17316.240 Classification: Confidential

176. The Appellant’s case, comes down to one point, namely that the “scheme is of such a high quality that it will be a delightful feature wherever it is viewed from353”. This case is just not credible. The evidence clearly demonstrates that the appeal proposal will cause harm to the OUV, and hence significance, of the Kew World Heritage Site. That harm is significant whether or not one classifies it as less than substantial or substantial harm in terms of the NPPF. But to be clear RBG Kew’s case is that the harm, cumulatively with other existing and consented development (let alone further as yet unconsented development), is substantial. There is also harm to other important designated heritage assets within Kew Gardens. These harms must be given the greatest weight as Kew Gardens is overlain by and contains a number of heritage designations of “the highest significance”354.

177. The appeal proposal would cause significant harm to the setting and OUV of the Kew World Heritage Site, resulting in it reaching a tipping point from Less than Substantial Harm to Substantial Harm. Granting permission most certainly risks UNESCO placing the Kew World Heritage Site on the List of World Heritage in Danger, as they did at Liverpool in 2012, given both the threat posed by the development and the significant risk that its presence would encourage further similar developments in the setting of the World Heritage Site355. The Convention places very strong obligations on the UK Government in respect of World Heritage Sites, and it is through the planning system that these obligations are sought to be given effect to356. The Secretary of State must have regard to these obligations in determining this appeal and must give weight to the views of the World Heritage Centre and ICOMOS both of which strongly support refusal.

353 See CDD.03 para 2.7. 354 See para 132 of the NPPF, CDC.01 355 See Mr Croft’s proof at paras. 3.2.22 and 8.1.10. It is also of note that the UNESCO World Heritage Committee has expressed concern about urban planning and tall building decisions in the setting of the Palace of Westminster and Westminster Abbey World Heritage Site and is actively monitoring development around that site. This concern is the first step in placing a property on the In-Danger List. Moreover, ICOMOS in their technical review (RBG/3a) state “there have been a number of examples where the harmful visual impact on a World Heritage property has been the subject of recommendations and decisions by the World Heritage Committee … In most cases, these properties are under threat from high-rise building, menacing the visual integrity of the property”. 356 See the PPG, CDC.02, p 25 para. 26. Note that there is also reference to these obligations being given effect to via “the statutory designation process” but there is no such process in respect of World Heritage Sites, and it may be this is a reference to the listed building statutory regime as many World Heritage Sites are centred on or have within their boundaries listed buildings: see Mr Coleman’s answers in XX. 80 WORK\31744720\v.1 17316.240 Classification: Confidential

178. So we stand at a tipping-point beyond which further development of tall buildings visible within Kew Gardens would result in substantial harm to the OUV, authenticity and integrity of the Kew World Heritage Site. If the appeal proposal is granted permission the OUV of Kew Gardens will be forever diminished. It will change forever, adding to the harm already caused by existing tall buildings. It will also inevitably attract yet more tall buildings that visually intrude into the Gardens. The fear expressed by ICOMOS at the time of inscription, and which is also recognised in the Management Plan, of developers arguing that the presence of tall buildings is a particular feature of the locality and hence that further tall buildings would be in keeping with the character of the area will have materialised. This appeal if allowed will have a significant and adverse impact on Kew Gardens. That this is so is agreed by the World Heritage Centre; ICOMOS; HE; the LBs of Richmond and Hounslow and Historic Royal Palaces. It is also the universally held view of local amenity groups and residents. Only the Appellant does not see this 357. This is a view which in opening was characterised as “see no evil”358.

179. And so RBG Kew places this hugely important matter in the hands of the Secretary of State. This appeal, whatever the result, will undoubtedly be seen by history as a key moment for the setting and significance of Kew Gardens. The visual experience at Kew Gardens has already been, in ICOMOS’s words, “serious diminished” by past planning decisions that seem wholly inexplicable to modern sensibilities. When visitors see these and other permitted intrusions (such as the Haverfield Estate) the reaction is: how did anyone ever come to take the view that it was acceptable to grant planning permission for these jarring and highly damaging intrusions into the visual envelope of something as important as the designed landscape of Kew Gardens? The Secretary of State is charged with deciding whether a further, far taller and highly intrusive building should now be permitted. It is RBG Kew’s case that plainly it should not. The responsibility that now lies in the Secretary of State’s hands is a grave one. He is respectfully invited to dismiss Appeal A.

JAMES MAURICI Q.C. LANDMARK CHAMBERS

357 See CDD.03 para 2.7. 358 See RBG Kew’s opening, INQ4, at para. 25. 81 WORK\31744720\v.1 17316.240 Classification: Confidential

180 FLEET STREET LONDON EC4A 2HG 5 JULY 2018

82 WORK\31744720\v.1 17316.240 Classification: Confidential

APP/F5540/W/17/3180962 & APP/F5540/Z/17/3173208

TOWN AND COUNTRY PLANNING ACT 1990

APPEAL BY STARBONES LTD

LAND AT CHISWICK ROUNDABOUT, GREAT WEST ROAD, CHISWICK, LONDON

CLOSING SPEECH ON BEHALF OF THE BOARD OF TRUSTEES OF ROYAL BOTANIC GARDENS KEW

Daniel Whittle

Solicitor

Burges Salmon LLP

T: +44 (0) 117 307 6869

M: +44 (0) 7980 916 801

F: +44 (0) 117 378 6203

83 WORK\31744720\v.1 17316.240 Classification: Confidential

Neutral Citation Number: [2014] EWHC 3543 (Admin)

Case No: CO/1894/2014 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION PLANNING COURT

Royal Courts of Justice Strand, London, WC2A 2LL

Date: Friday 31st October 2014

Before:

THE HONOURABLE MRS JUSTICE LANG DBE ------Between:

THE QUEEN on the application of

EAST MEON FORGE AND CRICKET GROUND PROTECTION ASSOCIATION (acting by its Chairman GEORGE BARTLETT) Claimant - and -

(1) EAST HAMPSHIRE DISTRICT COUNCIL (2) SOUTH DOWNS NATIONAL PARK AUTHORITY

Defendants

(1) J. CROUCHER (2) I. CROUCHER Interested Parties

(Transcript of the Handed Down Judgment of WordWave International Limited A Merrill Communications Company 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

Robert Fookes (instructed by Prospect Law Ltd) for the Claimant David Forsdick QC (instructed by East Hampshire District Council Legal Services Department) for the First Defendant The Second Defendant did not appear and was not represented The First Interested Party did not appear and was not represented The Second Interested Party appeared in person

Hearing dates: 23rd & 24th October 2014 Judgment As Approved by the Court

Crown copyright©

Mrs Justice Lang:

Introduction

1. The Claimant applies for judicial review of the Defendants’ decision, dated 7th April 2014, to grant planning permission to make alterations and additions to the property known as The Forge, High Street, East Meon, Petersfield, Hampshire GU32 1QD, by constructing a first floor residential flat, with a deck to the rear.

2. The East Meon Forge and Cricket Ground Protection Association is an unincorporated association, formed in September 2013, with the aim of protecting both The Forge and the use of the adjoining recreation ground for the playing of cricket. It now has about 150 members, who are local residents.

3. The planning authority is the South Downs National Park Authority, but the application for planning permission was determined by East Hampshire District Council (hereinafter “the Council”) under an agency agreement.

4. The Interested Parties are the owners of The Forge who successfully applied for planning permission, at the third attempt. They had previously withdrawn their first application in March 2013. Their second application was granted by the Council, but quashed by consent on 22nd April 2014 in the Claimant’s first claim for judicial review.

5. Collins J. granted the Claimant permission to apply for judicial review in this claim on 5th June 2014.

6. At the hearing, the Claimant re-formulated its grounds to some extent, and did not pursue its original grounds 5, 8, 9 and 10. It did not pursue an application to add a further ground.

7. On 23rd June 2014, Mitting J. granted the Claimant an injunction restraining the Interested Parties from carrying out development before the judicial review claim had been determined. There was evidence that the floor had been excavated by a digger and that a chimney had been smashed.

8. The Interested Parties subsequently applied to vary this order to allow “vital repairs” to be carried out, following service of a letter from the Council’s Building Control Surveyor, headed ‘Building Act 1984 Section 77/78 Dangerous Structure’, stating that signs of movement of an exterior wall meant that the structure was in imminent danger of collapse. The application was opposed by the Claimant because of the irreparable damage it would do to the building. The application was adjourned by Sales J. because he was not satisfied that the proposed works, which included removal of the roof and partial demolition of the walls, were urgently required. Sales J. ordered that the Claimant and the Interested Parties obtain independent surveyors’ reports. When the surveyors inspected the property it was agreed that (1) the bowing of the exterior wall was not recent; (2) any further movement could be prevented by timber ties to the underside of the roof; and (3) there was no imminent danger of collapse. The Interested Parties did not renew their application. The costs were reserved. I am satisfied that the Interested Parties ought to pay the Claimant’s costs in respect of that application.

9. On 23rd June 2014, Mitting J. also imposed a stay on the Council restraining it from determining matters reserved for further approval under conditions.

The Forge

10. The Forge was the site of the village blacksmith, and it is an important part of the local heritage. It was in use as a wrought iron workshop until about 2010. Since then it has been empty. It is a single storey vernacular industrial building of simple design. It is small (about 71.13 sq. metres or 765 sq. feet, according to the Valuation Office) and low in height (only 5.4 metres or 17.7. feet) to the ridge line of its pitched roof. The building is L-shaped, following the line of the two roads which it abuts: the High Street and Frogmore/ Mill Lane. The current building dates from the 19th century, though it is believed that the site has been used as a smithy for much longer than that. It is constructed of brick, with a tile gabled roof. There is a small modern lean-to extension which houses an office and WC. The building is in a poor state of repair.

11. It is on a small plot, comprising an area of hard standing, some rough grass and a large sycamore tree at the boundary with the recreation ground.

12. The proposed development will retain the ground floor for an industrial use (carpentry), and build a new residential flat above it, to be occupied as a live/work unit. The flat will comprise a bedroom, bathroom, open plan living room and kitchen, utility room, store and separate WC. The evidence of dimensions is incomplete and contradictory, but Mr Mitchell, chartered surveyor for the Claimant, estimated the proposed development would provide approximately 1,700 sq ft over 2 floors. This would more than double its size, adding an additional 935 sq ft.

13. Access to the first floor unit will be via external steps, leading on to a wooden deck, some 10 feet deep. looking towards the recreation ground. The solid front door will lead from the deck into the living room. The living room will have floor to ceiling sliding patio doors on to the deck. The deck will continue around the side of the first floor, creating a veranda, in front of two large floor to ceiling windows, also looking towards the recreation ground. Windows from other rooms and some Velux roof lights will overlook the deck. The deck, the steps and the windows will all potentially be at risk from cricket balls coming from the recreation ground.

14. The height of the extended building will increase by 2.2 metres to 7.6 metres (24.9 feet). The footprint of the building will also be enlarged because the deck and steps will extend out over the existing yard area, creating a covered area for parking and loading underneath.

15. The Forge is included in the Hampshire County Council list of ‘Treasures’ which are man-made features of public interest in the county, the destruction of which would represent serious loss to the heritage of the county.

16. In 2009, English Heritage decided that The Forge did not meet the national criteria for listing, mainly because of past alterations to the building and its fabric. The report commented:

“It is undeniably true that the Forge adds to the picturesque aspect of East Meon, and is a valuable reminder of the importance of the forge or smithy in village life. For this reason the building is of local interest and its protection should

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lie in the local designations of conservation area, Area of Outstanding Natural Beauty and National Park.”

17. On 6th March 2014, The Forge was listed as an asset of community value, pursuant to section 91(2) of the Localism Act 2011. The reason given was that it “has a special resonance for the local community and furthers the cultural interests of the community”. The application, made by the Claimant, stated that it was a valuable reminder of the importance of the forge or smithy in village life, and should be retained for industrial use.

18. The Forge is in a prominent location in the village, at the corner of the High Street and the road to Frogmore. The Forge is within the East Meon Conservation Area. The boundary of the conservation area detours around The Forge, suggesting that it was specifically included. As the Conservation Officer said in his report:

“It is a worthy candidate for inclusion in the conservation area due to its historical association, location and juxtaposition with other historic buildings, most notably Forge Cottage to the west, which is grade 11 listed. ”

19. The East Meon Conservation Area is within the South Downs National Park.

20. The Forge is situated at an entrance to the village recreation ground: there is a track and farm gate leading to the recreation ground running along the side of the plot. The rear of the building backs onto the recreation ground, with a view obscured to some extent by the sycamore tree. The building is set down at a lower level than the recreation ground so that its eaves are close to the ground level of the recreation ground.

21. The recreation ground was created as a charitable foundation in 1894 specifically for the purpose of enabling cricket to be played on the ground, and cricket has been played there ever since. The East Meon Cricket Club is a flourishing club which plays there regularly. The cricket square is only 36 metres (just over 39 yards) from The Forge at present, and when the building is extended, the distance will be even less. Cricket balls already fly on to the roof of the building and the surrounding plot at present.

Submissions

22. The Claimant made three main submissions. First, that the Council erred by failing to determine the planning application in accordance with statutory requirements, the National Planning Policy Framework (NPPF) and the relevant local policies.

23. The Defendants submitted in response that the Council had correctly considered and applied the relevant statutory requirements and policies.

24. Second, the Claimant relied on the listing of The Forge as an asset of community value, and submitted that the officers failed to inform the Planning Committee that the Claimant had sufficient funds to enable the craft/industrial use of the building to continue without the need for a residential floor to make it financially viable, despite an earlier assurance that the funding information would be made available to the

Page 5

Committee. This meant that the Conservation Officer’s judgments, on which the Committee relied, were made on a flawed basis. The eventual decision was made on incomplete information and the Committee was misled.

25. The Defendants submitted in response that the Council was under no obligation to consider alternative schemes for use of The Forge, in the absence of exceptional circumstances, such as the proposed development giving rise to conspicuous adverse effects, which was not the case here. The listing as an asset of community value only has effect when the property is put up for sale, and does not give a right of first refusal, and so the officers rightly advised that it should be given negligible weight.

26. Third, the Claimant submitted that the Council failed to have proper regard to the representations made by Sport England, a statutory consultee, about the potential conflict between the use of the recreation ground for cricket and the residential use of The Forge, and the risk of damage to persons and property from cricket balls.

27. In response, the Defendants submitted that the Council gave full and careful consideration to the concerns of Sport England and arrived at a conclusion which, in its judgment, mitigated the risk to an acceptable extent.

28. There was a significant development during the course of the hearing when, in the light of information given by Mr I. Croucher, it emerged that the Defendants’ submissions to me about the protective measures against damage to the window glass from cricket balls were incorrect. The Defendants had submitted, by reference to paragraph 8.11.16 of the officers’ report, that it had been accepted that moveable shutters on the windows were not adequate protection because it was not possible to ensure that they would always be closed when a game was played. So the Council decided that permanent barriers such as guard railings should be installed over the windows, and planning permission was given on that basis. This was the effect of Condition 12, according to the Defendants.

29. However, once the documents were produced, it was clear that the scheme approved by the Council in June 2014, pursuant to Condition 12, permitted Mr Croucher to install moveable shutters over the windows, not barriers which were permanently in place.

30. Counsel for the Defendants submitted that the Council had simply made a mistake when approving the scheme. He further submitted that this was outside the scope of the current judicial review. The Claimant should have filed a further judicial review claim to challenge the lawfulness of the approved scheme, but was now out of time to do so.

31. Counsel for the Claimant submitted that the planning permission had been granted on an erroneous basis, on the assumption that Condition 12 would give effect to the stated intention to require permanent guard rails over the windows. However, the wording of Condition 12, which required the fitting of defensive guards to the windows, did not specify that they should be immoveable. Mr Croucher’s assurances that the moveable shutters would be kept in the closed position were not enforceable and were unrealistic, as the outlook from the residence would be significantly impaired. Moreover, the approved scheme did not require the shutters to be kept

Page 6

closed at all times; indeed, the notes on the plans referred to the shutters for the patio doors being retracted when matches were not being played.

Planning officers’ reports

32. The Claimant was highly critical of the Report provided by the planning officer to the Planning Committee.

33. Mr Forsdick submitted that the courts deprecate an unduly demanding reading of committee reports in much the same way as the courts deprecate the overly sophisticated reading of decision letters from Inspectors, exemplified in Clarke Homes v. Secretary of State for the Environment (1993) 66P&CR 263 at 271.

34. In Oxton Farms v. Selby DC [1997] EGCS 609 Judge LJ stated:

“17. The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles and to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury….

18. In my judgment an 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.”

The issue for this Court is therefore whether the report to committee significantly misled on key issues. It is not whether the report could have been better worded or more clearly expressed.”

The previous claim for judicial review

35. The Claimant submitted that the Report to the Planning Committee was defective in that it failed to explain exactly why the Council had consented to the quashing of the previous grant of planning permission. In my judgment, it was neither necessary nor appropriate for such details to be included in the Report on the fresh application for planning permission. There is a danger that it would distract the Committee from consideration of the fresh application with an open mind.

Statutory provisions

36. The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate

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otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) of the Town and Country Planning Act 1990.

37. The duty under the equivalent Scottish provision was explained by Lord Clyde in Edinburgh City Council v. Secretary of State for Scotland [1997] 1 W.L.R. 1447, at p.1459:

“In the practical application of section 18A it will obviously be necessary for the decision-maker to consider the development plan, identify any provisions in it which are relevant to the question before him and make a proper interpretation of them. His decision will be open to challenge if he fails to have regard to a policy in the development plan which is relevant to the application or fails properly to interpret it. He will also have to consider whether the development proposed in the application before him does or does not accord with the development plan. There may be some points in the plan which support the proposal but there may be some considerations pointing in the opposite direction. He will be required to assess all of these and then decide whether in light of the whole plan the proposal does or does not accord with it. He will also have to identify all the other material considerations which are relevant to the application and to which he should have regard. He will then have to note which of them support the application and which of them do not, and he will have to assess the weight to be given to all of these considerations. He will have to decide whether there are considerations of such weight as to indicate that the development plan should not be accorded the priority which the statute has given to it. And having weighed these considerations and determined these matters he will require to form his opinion on the disposal of the application. If he fails to take account of some material consideration or takes account of some consideration which is irrelevant to the application his decision will be open to challenge. But the assessment of the considerations can only be challenged on the ground that it is irrational or perverse.”

38. This statement of the law was approved by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13.

39. The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28 and Tesco Stores Limited v Secretary of State for the Environment [1995] 1 W1.R 759, at 780. In Tesco Stores Lord Hoffmann said, at 780F-H, that the weight to be given to a material consideration was a question of planning judgment for the planning authority.

40. Section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 provides:

Page 8

“In the exercise, with respect to any building or other land in a conservation area, of any function under [the planning Acts], special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."

41. In South Lakeland District Council v Secretary of State for the Environment [1992] 12 AC 141, the House of Lords considered the predecessor provision to section 72(1) which was in identical terms and held, per Lord Bridge at 146F:

“There is no dispute that the intention of section 277(8) is that planning decisions in respect development proposed to be carried out in a conservation area must give a high priority to the objective of preserving or enhancing the character or appearance of the area. If any proposed development would conflict with that objective, there will be a strong presumption against the grant of planning permission, though, no doubt, in exceptional cases the presumption may be overridden in favour of development which is desirable on the ground of some other public interest. But if a development would not conflict with that objective, the special attention required to be paid to that objective will no longer stand in its way and the development will be permitted or refused in the application of ordinary planning criteria.”

42. Later in his judgment Lord Bridge went on to consider whether, on a proper construction of section 277(8), it was necessary that the proposed development would make a positive contribution to the preservation of character or appearance. At 150E, he cited with approval a passage from the judgment of Mann LJ in the Court of Appeal who said:

“ ”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.”

43. In East Northamptonshire DC v Secretary of State for Communities and Local Government [2014] 1 P&CR 22, 387 Sullivan LJ held that section 72(1) imposed the same duty as section 66(1), in relation to listed buildings, despite the slight difference in wording. The term "preserving" in both enactments means doing no harm: see South Lakeland DC, per Lord Bridge at 150. Parliament’s intention was that decision-makers should give “considerable importance and weight” to the “desirability of preserving or enhancing the character or appearance” of the conservation area when carrying out the balancing exercise. It was not open to decision-makers to afford this consideration less weight than this, in the exercise of their own planning judgment.

National Planning Policy Framework (NPPF)

44. Planning authorities must have regard to the presumption in favour of sustainable development (paragraph 14).

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45. Section 12, headed ‘Conserving and enhancing the historic environment’ requires planning authorities to set out a positive strategy for the conservation and enjoyment of the historic environment, recognising that heritage assets are an irreplaceable resource (paragraph 126).

46. It was common ground before me that The Forge was a non-designated heritage asset for the purposes of the NPPF. It comes within the definition of ‘heritage asset’ in the Glossary by virtue of its listing by Hampshire County Council as a ‘treasure’:

“A building … identified as having a degree of significance meriting consideration in planning decisions, because of its heritage interest. Heritage asset includes designated heritage assets and assets identified by the local planning authority (including local listing)”

47. Therefore paragraph 135 applies:

“The effect of an application on the significance of a non- designated heritage asset should be taken into account in determining the application. In weighting applications that affect directly or indirectly non-designated heritage assets, a balanced judgment will be required having regard to the scale of any harm or loss and the significance of the heritage asset.”

48. The East Meon Conservation Area is a designated heritage asset, and therefore more stringent tests apply. Under paragraph 133, where a proposed development will lead to substantial harm to or total loss of significance, consent should be refused unless substantial public benefits outweigh that harm or loss. Under paragraph 134, where a development proposal will lead to less than substantial harm to the significance of a designated heritage asset, this harm should be weighed against the public benefits of the proposal, including securing its optimum viable use.

49. Paragraph 138 provides:

“Not all elements of a World Heritage Site or Conservation Area will necessarily contribute to its significance. Loss of a building or other element which makes a positive contribution to the significance of the Conservation Area or World Heritage Site should be treated either as substantial harm under paragraph 133 or less than substantial harm under paragraph 134, as appropriate, taking into account the relative significance of the element affected and its contribution to the significance of the Conservation Area or World Heritage Site as a whole. ”

50. It seems to me that Mr Forsdick is correct in submitting that paragraph 138 only applies where there is a loss of a building or other element. Throughout section 12, it is clear that ‘harm’ and ‘loss’ are different concepts. Although the development may harm the character and appearance of The Forge, there is no suggestion that it will be lost. However, I am unclear why the principle expressed in paragraph 138 should be confined to cases of loss, and so I am uncertain about the intended scope of this paragraph.

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Development Plan

51. The Officer’s report to committee (‘the Report’) correctly identified and considered the relevant provisions in the Development Plan, namely, policies HE2, HE5, HE6 and HE13 in the Local Plan.

52. HE2 states:

“Alterations and extension to buildings will only be permitted if they are designed to take account of the design, scale and character of the original building, its plot size and its setting. The roof form of any extension or alteration should respect the form of the original building.”

53. HE5 states:

“An alteration or extension of an unlisted building in a Conservation Area will not be permitted unless it would preserve or enhance the character and appearance of the building and the Conservation Area by:

a reflecting the scale, design, finishes and landscaping of the building;

b. retaining and, where necessary, restoring traditional features such as shop fronts, boundary walls, paved surfaces and street furniture;

c where appropriate, using materials traditionally characteristic of the area; and

d improving the condition of the building and ensuring its continued use.”

54. HE6 states:

“Planning permission for the change of use of a building in a Conservation Area will be permitted provided that it would neither:

require any changes in the appearance or setting of the building other than those that will preserve or enhance the character or appearance of the area;

nor harm the surroundings as a result of traffic generation, vehicle parking and servicing or noise”

55. HE13 states:

“Proposals for Buildings of Local Architectural, Historic or Townscape Interest …. involving alterations, additions or other development, including changes of use, will be permitted

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provided that such development does not adversely affect the character or setting of the building.”

56. These policies distinguish between the effect of a development on individual buildings and its effect on the conservation area. The Report correctly considered the building and the conservation area separately, as well as together.

The effect of the proposed development on The Forge

57. The Report correctly began by considering the effect of the works upon the character and appearance of the building, at 8.2.7 to 8.2.19. The Report concluded that the proposed development would conflict with policy HE2 and policy HE5 sub-paragraph (a) because of the increase in the scale of the building which would be significant. The additional storey would increase the height and overall size, and enlarge the footprint of the original building. Despite the mitigating factor of good design, the Report concluded, at paragraph 8.2.13,

“Overall though, the additions to the building would not reflect the scale of the building and would harm its existing character and appearance”.

58. At paragraph 8.2.32, the Report also advised that the proposed development was in conflict with HE13.

59. The Report advised that the proposed development did not conflict with any other parts of policy HE5.

60. Contrary to Mr Forsdick’s submission, I consider that this case is distinguishable from R (Cummins) v London Borough of Camden [2001] EWHC Admin 1116 and R (TW Logistics) v Tendring District Council [2013] EWCA Civ 9 because here the Council was not considering differing policies in the Development Plan which appeared contradictory or pulled in different directions. Although there was only conflict with one part of HE5, the factors in HE5 are not alternatives. Each represents an equally important consideration. On a proper interpretation, the Council has to consider each part in turn, which it did. Whether or not there is conflict with the policy will depend on the Council’s assessment of the proposal in any particular case. Here, the planning officer (and the conservation officer) concluded that the harm to the character and appearance of the building was significant. The Report advised that the development was contrary to HE2, HE3 and partially contrary to HE5. This was a judgment, which Mr Forsdick had to defend, rather than seek to re-interpret.

61. The officer should have advised on the application of paragraph 135 NPPF in relation to The Forge as a non-designated heritage asset, but he did not do so. I note that the conservation officer did expressly consider paragraph 135 at paragraph 4(e). However, in the conclusions at paragraph 9.1 of the Report, the officer said:

“Having had regard to the Conservation Officer’s comments, the relevant policies in the local plan and NPPF criteria, officers recommend that the positive benefits of securing the future condition and use of the building would maintain the

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significance of the Forge and outweigh the harm from the acknowledged effects to its existing character and appearance”

62. In my view, this assessment, read together with the conservation officer’s assessment, indicated that the officer was correctly directing himself on the need to make a balanced judgment on the effect of the development on The Forge, in accordance with paragraph 135.

The effect of the proposed development on the Conservation Area

63. The Committee had the benefit of detailed advice from the conservation officer, which was set out in the Report. The conservation officer acknowledged that “the proposal will .. materially alter the character of the building both in scale and visual appearance” and that “the proposal was at the margins of acceptability”. It was a “radical adaptation” which would result in a “marked change to the local townscape”. His opinion was that “the site is capable of taking this larger scale building without detriment to the conservation area or setting of the listed building [Forge Cottage]”.

64. He accorded “considerable weight” to “the continuance of the craft tradition on this site”, stating:

“There are really two choices, to limit the building to its current configuration, size and scale or to accept enlargement to accommodate a live-work unit. It is difficult to envisage the investment coming forward to repair the building for its previously permitted, or similar workshop use. The role and use of the building as I say, is itself important to the conservation area. This is a very fine judgment given the site sensitivities.”

65. The conservation officer concluded:

“This is a prominent site at one of the main gateways to the village. I place considerable weight on the retention of the craft use. I see the current proposal as the best means of securing the necessary investment and accordingly support more robust intervention than would normally be the case…. I do not pretend implementation will not result in a marked change to the local townscape. However, if executed to a high standard, using good quality materials it has the potential to make a positive contribution to the conservation area…”

66. At paragraphs 8.2.20 to 8.2.26, the Report considered the implications of the proposed development for preserving or enhancing the significance of the conservation area under policy HE5 and the NPPF.

67. The officer considered that paragraph 138 NPPF applied which, as I have already explained, may have been mistaken, as there was no ‘loss’ of a building within the conservation area. Consideration of the conservation area as a designated heritage asset should have begun at paragraph 132 NPPF. I doubt whether the error was material since, on my reading of the report, whichever route he took, the relevant test

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was at paragraph 134, which applies in cases where the development will lead to less than substantial harm.

68. The Report had regard to the conservation officer’s advice but even if and insofar as the conservation officer had concluded that there was ‘no harm’ to the conservation area (as Mr Forsdick submitted), I consider that the planning officer took a different approach. In paragraph 8.2.23 of the Report he advised:

“The impact from the alterations will affect the character and appearance of the Conservation Area. Officers do not consider the effects of the scheme upon the existing character of the building to represent substantial harm to the Conservation Area: any effects, positive or negative, should be judged in the context of the significance of the Conservation Area (covering a wider area) much of which is not influenced by this site.”

69. On my reading of the report, this paragraph has to be read in the context of paragraph 8.2.21 where the officer advised on the approach to be taken under paragraph 133, 134 and 138 of the NPPF. In paragraph 8.2.23, the officer was advising the Committee that (1) the development would affect the character and appearance of the conservation area; and (2) it would affect the existing character of the building; and (3) these effects did not amount to “substantial harm”; (4) there were positive and negative effects which had to be judged in the context of the significance of the conservation area as a whole. My understanding is that the officer was advising that there were potentially some adverse effects and that the Committee ought to apply the test under paragraph 134 NPPF, applicable where a development proposal will lead to “less than substantial harm” to the significance of the conservation area.

70. At paragraph 8.2.24, the Report then set out the conservation officer’s advice that the development would not cause detriment to the conservation area and, if executed to a high standard, could itself make a positive contribution.

71. The report concluded this section, at paragraph 8.2.25:

“Officers agree that the resulting extended building will integrate acceptably in its own right within its available plot space and context. It will have a sufficiently sympathetic relationship within High Street and with the recreation ground. The scheme will preserve the character of the Conservation Area for the purposes of HE5.”

72. It is then necessary to read on to the ‘Conclusions on heritage effects’ at paragraphs 8.2.32 – 34 which stated:

“Officers agree with the Conservation Officer’s analysis that this is a prominent site and that considerable weight should be placed on securing the use and this solution is a means of securing a continuing business use on the site and investment necessary to achieve this. It is acknowledged that there would be significant changes to the building and that the impact will result in a marked change to the local landscape and for these

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reasons the scheme is in conflict with criteria a) in Local Plan policies HE5, and with HE2 and HE13.

Overall, however, having regard to the Conservation Officer’s comments it is clear that, well executed, the development would in fact make a positive contribution to the character and appearance of the Conservation Area. … On balance of the issues the scheme would be acceptable on these merits.”

73. I see the force of Mr Fookes’ submission that the potential harm to the conservation area arising from the change to the character and appearance of a prominent and historic building was not adequately taken into account when the effect on the conservation area was considered. But in my view it had been adequately considered in the detailed advice from the conservation officer, set out earlier in the report, and referenced at paragraph 8.2.24. In this section, the officer noted, at paragraph 8.2.22, the prominence of The Forge, visible from the highway and the recreation ground, and the fact that the alterations would significantly increase its scale and its physical presence. The effect on the character and appearance of the conservation area and the building were both acknowledged in paragraph 8.2.23. In the final conclusions, at paragraph 8.2.32, the officer reiterated the earlier findings of significant changes to the building which conflicted with parts of the Local Plan. Reading the report as a whole, I do not consider that the report was so inadequate as to mislead the Committee.

74. Mr Fookes submitted that the advice from officers was fundamentally flawed because it was contradictory. It found that the development would have harmful effects on The Forge, and to the conservation area, but that the harm to the conservation area would be overridden by the positive effects of the development. In my view, the advice sufficiently explained the reasoning behind the advice given. Essentially, in so far as harm was caused by the development, to the building and/or the conservation area, it was outweighed by the greater benefit to the conservation area conferred by the restoration of The Forge and its traditional ‘craft’ use. Although controversial, I do not consider that this advice was wholly illogical.

75. Mr Fookes submitted that the Report failed to advise the Committee on the application of the duty under section 72(1) of the Planning (Listed Building and Conservation Areas) Act 1990 to pay “special attention to the desirability of preserving or enhancing the character or appearance” of the conservation area, which means giving it considerable importance and weight. The statutory duty had been identified earlier at paragraph 6.5.1. I agree that the officer ought to have returned to it under his heading “Whether the development would preserve or enhance the significance of the Conservation Area” at paragraph 8.2.20 onwards. However, as the terms of section 72(1) are fully reflected in policy HE5, it would not have made any difference to the advice given. The Report gave detailed consideration to the desirability of preserving or enhancing the character or appearance of the conservation area, and there is no reason to doubt that the Committee did too. The decision made was justified on the basis that, looked at overall, the development did preserve or enhance the character or appearance of the conservation area, as the benefits to the conservation area outweighed the adverse effects.

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Material considerations

Alternative schemes

76. The Committee was advised that it was not necessary to consider alternative schemes because the proposed development was not likely to have significant adverse effects and would make a positive contribution to the Conservation Area. At paragraph 8.11.20, the Report stated:

“Overall it is not considered that the proposals are likely to have significant adverse effects and in particular make a positive contribution to the Conservation Area while appropriately securing a desirable use. The EMFCGPA has offered to purchase, refurbish and bring the Forge into beneficial use. Given the above conclusions it is not necessary to consider an alternative solution. However, this section proceeds on the basis that it were appropriate to consider alternative solutions, what officers’ advice would be.”

77. The correct approach to consideration of alternatives sites (as opposed to alternative schemes for the same site) was considered in R (L) v. North Warwickshire District Council [2001] EWCA Civ 315. Having reviewed the authorities, Laws LJ said, at [30]:

“…all these materials point to a general proposition, which is that consideration of alternative sites would only be relevant to a planning application in exceptional circumstances. Generally speaking – and I lay down no fixed rule, any more than Oliver LJ or Simon Brown J - such circumstances will particularly arise where the proposed development, though desirable in itself, involves on the site proposed such conspicuous adverse effects that the possibility of an alternative site lacking such drawbacks necessarily itself becomes, in the mind of a reasonable local authority, a relevant planning consideration upon the application in question”.

78. In Derbyshire Dales DC & Ors v Secretary of State for Communities and Local Government [2009] EWHC 1729 (Admin), Carnwath LJ held, at [28], that the test was whether the alternative site issue had to be taken into account as a relevant consideration, as a matter of legal obligation.

79. In The Governing Body of Langley Park School for Girls v London Borough of Bromley [2009] EWCA Civ 734 the Court of Appeal quashed the grant of planning permission because an alternative scheme for proposed new buildings at the same site was a relevant consideration which had not been considered. The Court held that the authorities on alternative sites applied (at [46]).

80. In my judgment, this was an exceptional case on the facts in which alternative schemes for use of The Forge were a relevant consideration which the Committee was required to consider because they were central to the reasoning of the conservation officer and the planning officer, as set out in the Report.

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81. The Report explained at paragraph 8.11.22 that the argument put forward by the applicant in support of the application for planning permission was that the repair and refurbishment of The Forge for industrial use was not commercially viable and so additional residential accommodation was essential.

82. The conservation officer said:

“ East Meon has over time lost the majority of its service industries .. Such uses can .. positively contribute to the conservation area. The continuance of the craft tradition on this site is a matter to which I accord considerable weight”

“I am persuaded that some fairly radical adaptation to secure the long term viability for a craft use is required.”

“There are really two choices, to limit the building to its current configuration, size and scale or to accept enlargement to accommodate a live-work unit. It is difficult to envisage the investment coming forward to repair the building for its previously permitted, or similar workshop use. The role and use of the building as I say, is itself important to the conservation area.”

“I see the current proposal as the best means of securing the necessary investment and accordingly support more robust intervention than would normally be the case.”

83. The planning officer referred to the conservation officer’s advice, at paragraph 8.2.17, and concluded, at paragraph 8.2.32:

“Officers agree with the Conservation Officer’s analysis that this is a prominent site and that considerable weight should be placed on securing the use and this solution is a means of securing a continuing business use on the site and investment necessary to achieve this.”

84. The advice given to the Committee by the conservation officer and the planning officer was that there was no realistic prospect of restoration of The Forge for use as a workshop because it was economically unviable.

85. As part of the consultation process, the planning officer had received representations from the Claimant about the financial viability of The Forge, and alternative options, including purchase and renovation by the Claimant. In his supplementary comments, the conservation officer said:

“It seems to me that repair and refurbishment of the present structure is uneconomic and unviable on the likely return received. It may be something that a philanthropic association may be willing to take on and EMFCGPS may be such an organisation. ”

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86. In my view, it would have been misleading for the officer to withhold this information from the Committee when both he and the conservation officer were supporting the application on the basis that it was the only financially viable option for The Forge’s restoration. In order to make an informed judgment, the Committee had to have access to all the relevant information. Obviously the current owners could not have been obliged to restore the building for workshop use only, nor to sell to The Forge to the Claimant or anyone else, if they did not wish to do so. However, in principle, planning permission for such a major addition and alteration, with a change to residential use, might not have been granted if the Committee did not accept the premise that this was the only route by which The Forge would ever be restored as a workshop.

87. Fortunately, the Report did give a lengthy summary of the evidence relating to the financial viability of The Forge, including the alternative options presented by the Claimant. I do not decide the question whether the Committee would have given this evidence due consideration after having been advised that it was unnecessary to do so.

88. The Claimant complains that the Report was misleading in an important respect. At paragraphs 8.11.21, the Report stated:

“The Association asserts that voluntary contributions mean that their proposal is fully costed, funded and deliverable. Officers have asked for details but none have been provided in respect of funding.”

89. When Mr Selby, the Treasurer of the Claimant Association saw this, he sent an email to Mr Jarvis, the Principal Planning Officer, stating:

“In para 8.11.21 it is said that officers have asked for details of the Association’s assertion that its proposal is fully funded but no details have been provided. I am not aware of any such request. The position, however, contrary to the impression that you seek to give, is that the Association’s bank account is in credit to the amount of £160,000. Should you wish this to be certified I will arrange for this to be done. I should be grateful if you would draw this to the immediate attention of Councillors.”

90. Mr Jarvis replied by email on the same day, saying:

“In my email to William Bartlett of the 18th December which followed notification of the offer and other email correspondence I wrote “you state your client’s alternative proposal “is fully costed, funded and deliverable”. I have not see any information to support this yet.” We did in fact receive information in response but this only considered viability including an estimate for refurbishment costs and thereafter nothing was submitted concerning the aspect of funding.

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I hope this clarifies the comment in the report. I don’t believe that these further details affect the conclusion of the report. In any event we will include your comments in the written committee updates as per our standard practice ensuring that members of the committee are aware of them.”

91. Mr S. Martin, Deputy Chairman of the Claimant Association, stated in his third witness statement that, in response to Mr Jarvis’s email of 18th December, the Claimant submitted detailed viability reports and ‘Further Matters’ submissions, dated 4th and 25th February 2014. In the first set of submissions the Claimant confirmed that it had “contribution commitments … more than sufficient to cover” its proposed acquisition of the property and works. In the second set of submissions, it reiterated that “the Association is ready, and funded” to restore the building. The Claimant did not receive any further response from Mr Jarvis, and assumed that Mr Jarvis accepted that it had the funding available.

92. In the light of Mr Jarvis’ assurance that he would inform the Committee of Mr Selby’s email, to the effect that the Claimant had £160,000 in its account, the Claimant took no further steps. The evidence before the court includes a bank statement for an account in the name of the Claimant, dated 4th April, showing a balance of £160,100, since 24th February 2014.

93. Contrary to his assurances, Mr Jarvis did not include the confirmation of funding in the supplementary report to the Committee. Mr Martin attended the meeting of the Planning Committee on 3rd April 2014 and has given evidence that Mr Jarvis did not bring it to the attention of the Committee in his presentation to them.

94. In my judgment, Mr Jarvis was at fault in not informing the Committee about the communication from Mr Selby to the effect that the Claimant had £160,000 in its bank account and could certify that sum if required. This was poor professional practice. However, I do not consider that it is a sufficient basis upon which to grant judicial review of the grant of planning permission. The Committee knew that the Claimant was offering to fund its proposed scheme from voluntary contributions. This was the key piece of information. Proof of the amount of money in the Claimant’s bank account as at April 2014 was not likely to influence its deliberations one way or the other.

Asset of Community Value registration

95. The Claimant submitted that the Council erred in failing to take into account a material consideration, namely, its own decision to register The Forge as an asset of community value, under the Localism Act 2011.

96. The purpose of registration is to allow communities the opportunity to take control of assets and facilities in their neighbourhoods. The Government Policy Statement (September 2011) advises that:

“ ... it is open to the Local Planning Authority to decide that listing as an asset of community value is a material consideration if an application for change of use is submitted, considering all the circumstances of the case”.

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97. A property such as this can only be registered under section 88(2) if, in the opinion of the local authority:

i) there is a time in the recent past when an actual use of the building furthered the social wellbeing or interests of the local community, and

ii) it is realistic to think that there is a time in the next five years when there could be non-ancillary use of the building that would further the social wellbeing or social interests of the local community.

98. The Report advised the Committee about the registration of The Forge as an asset of community value at paragraphs 8.11.33 – 34. It set out the effect of the registration, which is that a community group will be given a window of opportunity to bid for the asset in the event that the owner decides to dispose of it. The owner is not obliged to sell to the community group.

99. The officer concluded that the designation as an asset of community value had very little bearing on the proposed development and should be given negligible weight.

100. In so far as this advice was based upon the erroneous view it was not necessary nor appropriate to consider alternative schemes, then it was flawed for the reasons I have already set out above. But in so far as it was based upon the inherent limitations of the community asset scheme, it was a matter for the Committee to decide upon in the exercise of its planning judgment. Accordingly, the officers could properly so advise.

Conflict with the use of the recreation ground for cricket

101. The Claimant submitted that the Council failed to have proper regard to the representations of Sport England, a statutory consultee by virtue of schedule 5, paragraph (za) to the Town and Country Planning (Development Management Procedure) Order 2010 on the ground that the development was “likely to prejudice the use, or lead to the loss of use, of land being used as a playing field”.

102. The Report advised that potential conflict with the use of the recreation ground for cricket was a material consideration, and considered it at paragraphs 8.11.1 to 8.11.19. It summarised the concerns of the Cricket Club and the Claimant that the proposed residential use of The Forge, in particular the open deck, external steps and large areas of glazing looking towards the recreation ground, would increase the potential liability to the Club for damage to property and personal injury. An increase in insurance premiums could impact on the viability of the Club.

103. The Report accepted that, given the distance of the boundary and the orientation of the pitches, cricket balls would hit The Forge regularly. Currently they hit The Forge once every other match, on average. There have been more than 20 home matches per season in recent years.

104. Local Plan policy HC1 and Emerging policy CP15 restrict development which results in loss of recreational and sports facilities.

105. Labosport conducted an assessment on behalf of the Cricket Club and found as follows:

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i) The boundary at the shortest distance is about 36 metres. 45.72 metres is the English Cricket Board recommended minimum boundary distance.

ii) Cricket balls commonly travel in excess of 70 metres, at all levels and abilities.

iii) The height of a cricket ball at a boundary distance of 36 metres is often greater than 20 metres in height.

iv) At a distance of 36 metres, the ball can still be travelling at a velocity in excess of 20 m/s.

v) A barrier system, typically nets, would have to be not less than 12 metres high, possibly higher.

106. Mr Croucher proposed a range of protective measures, such as 4 metre high net to be erected on match days; window and door shutters; and a protective net and an awning for the deck. He proposed that these should be capable of remote control by the cricket club in case the residents of The Forge did not implement them.

107. In its representations, Sport England advised that the measures proposed by Mr Croucher, whilst positive, were not enforceable through the planning system. The only means of enforceable mitigation would be a ball-stop fence, permanently installed, with a planning condition requiring it to be erected and maintained in perpetuity. Even this would not absolve the club from legal liability if damage occurred. In subsequent communications Sport England made it clear to the Council that it was aware of the proposed override mechanism to enable the club to control protective measures on match days but confirmed that it did not alter its basis of objection.

108. The Report rejected Sport England’s advice and recommendation without giving any or any adequate reasons. In Shadwell Estates Ltd. v Breckland DC [2013] EWHC 12 (Admin) Beatson J. said at [72]:

"a decision-maker should give the views of statutory consultees, in this context the "appropriate nature conservation bodies", “great" or "considerable" weight. A departure from those views requires “cogent and compelling reasons”: see R (Hart DC) v Secretary of State for Communities and Local Government [2008] EWHC 1204 (Admin) per Sullivan J. at [49] and R (Akester) v DEFRA [2010] EWHC 232 (Admin) per Owen J. at [112], [115].”

109. The officer also failed to advise the Planning Committee that Sport England was a statutory consultee whose views should be given considerable weight and only departed from for good reason. In consequence the Planning Committee granted planning permission and imposed conditions without due regard to the recommendations and advice of Sport England.

110. The Report rejected Mr Croucher’s proposals for the cricket club to have remote control over the protective measures at The Forge on the grounds that it would be complex to operate in practice, and there was uncertainty regarding system failure and

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backup provisions. Such a system might be achievable but might also be beyond the scope of a planning condition.

111. The Report did not recommend any conditions for a net of any height, whether permanent or removable. It thus failed to act on the proposals of Labosport, Sport England and Mr Croucher. No explanation was given for this omission. No such condition was imposed by the Planning Committee. The existing fence is a post and rail fence made of timber, probably about 3 feet high. Plainly it will not provide any protection against cricket balls.

112. At paragraph 8.11.16, the Report summarised the measures which it advised the Planning Committee to impose by way of conditions to protect the windows:

“8.11.16 …The use of barriers (shutters) is already proposed as an intermittent measure. Permanent barriers (such as guard railings) would not have any significant effect on the character and appearance of the development or area and could be fixed permanently to fenestration to protect them from damage. The detailed design, capability and method of opening of such can also be controlled to ensure that any windows or doors that can open do so in a manner which does not create an opening for cricket balls…”

113. The Report recommended the following condition which was duly imposed by the Committee when it granted permission. Condition 12 provides:

“No development shall commence until a detailed scheme of defensive guards to be fitted to fenestration (which includes windows, doors and rooflights) in the approved scheme has been submitted to and approved in writing by the Local Planning Authority. The approved defensive guards shall be fitted concurrent with the first installation of fenestration in the development, and shall thereafter be retained at all times including in the event that any replacement fenestration is fitted.”

114. Mr Forsdick explained to me, at some length in answer to my questions, that the meaning of paragraph 8.11.16 was that the officer had decided that the window shutters were not a sufficient protective measure because it was not possible to ensure that they would always be in the closed position when cricket was being played. Therefore a condition was imposed by the Committee, on the recommendation of the planning officer, providing for permanent barriers i.e. guard railings which would be permanently fixed in front of all glazed openings, preventing cricket balls from reaching the glass.

115. However, when Mr Croucher made his oral submissions to me, he explained that in June 2014 the Council had approved his scheme for shutters and discharged condition 12. The scheme provides for louvred wooden shutters for the patio doors from the living room on to the deck which would slide to one side when not in use. There will be removable louvred wooden shutters fitted to the outside of the floor to ceiling windows on the north east elevation, accessed from the deck veranda. The louvres

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have been designed so that they are fixed in position, narrow enough to ensure that a cricket ball cannot pass through them. The Velux roof windows will be fitted with metal shutters operated electrically.

116. The plans for the scheme were produced, which confirmed what Mr Croucher said. Written on the plans were the words “Louvre panels shown retracted for non- cricket occasions, also demountable for off- season”.

117. Mr Croucher seemed unaware of any requirement for guard rails. When I asked him why he had been permitted to have removable shutters, he said that they would be kept in place at all times. I found this quite unrealistic. The occupants would only have a very limited outlook through the louvres, and reduced natural light. There are very few windows on the street side of the building. They would also be unable to use the patio doors. If the shutters were kept permanently down on the Velux roof windows, there would be no light or air. I have no doubt that the occupants will leave the shutters open. Whether or not they close them on match days will be a matter for them to decide, if they remember to do so, and if they are there. The club will be liable for any damage to the windows.

118. Mr Forsdick submitted that the Council had simply made a mistake when approving the scheme. This seems unlikely, given the history of this application. I do not accept that the approval of the reserved matters has no relevance to the current judicial review claim. I accept the submission of Mr Fookes that the planning permission was granted on an erroneous basis, on the assumption that Condition 12 would give effect to the stated intention to require permanent guard rails over the windows. However, the ambiguous wording of Condition 12, which only required the fitting of “defensive guards” to the windows, left open the possibility that shutters would be installed instead of guard rails, and did not specify that the “defensive guards” should be fixed not moveable.

119. At paragraph 8.11.17, the Report summarised the measures which it advised the Planning Committee to impose by way of conditions to protect users of the deck:

“8.11.17 The deck would provide protection to users on the ground floor during cricket matches. Its use as an amenity area should, however, be prevented and instead it should be used wholly for external access. Sporadic access across a much smaller gangway will not significantly increase the risk to safely. A planning condition can limit the use of the deck and secure a railing to reasonably limit access to the remaining deck area. The unit is a one bedroom flat and has immediate access onto public open space; this restriction will not unacceptably reduce the access to amenities for the development….”

120. The Report recommended the following condition which was duly imposed by the Committee when it granted permission. Condition 13 provides:

“Notwithstanding the approved plans the first floor deck area shall not be used at any time as an amenity area, or for any purpose other than as a private route of access to the first floor residential unit...railings or other measures (to prevent the use

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of the deck for the aforementioned purpose) shall be installed in accordance with details ...... " ”

121. I accept Mr Fookes’ submission that both the Report and the condition fail to address the fact that the extensive decked area is intended as an amenity area, with patio doors leading on to it from the living room. Realistically, the occupants cannot be prevented from using the deck for amenity purposes.

122. Furthermore, as the only access to the flat is via external steps and across the deck, the occupants and visitors to the flat will be at risk of injury when entering or leaving the premises during cricket matches.

123. The representations made by Sports England, that the proposed mitigating measures were unenforceable and a permanent ball-stop fence was required, were sound. In my judgment, the officers and the Planning Committee failed to have proper regard to the representations of Sport England in its capacity as statutory consultee. In consequence the proposed development creates unacceptable risks for its future occupants and for the cricket club.

124. Therefore the claim is allowed and the planning permission must be quashed.

Page 24 Neutral Citation Number: [2017] EWHC 1374 (Admin)

Case No: CO/6259/2016 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT PLANNING COURT Leeds Combined Court Centre, 1, Oxford Row, Leeds LS1 3BG

Judgment handed down at: Royal Courts of Justice, Strand, London WC2A 2LL

Date: 09/06/2017

Before :

MR JUSTICE KERR ------Between :

THE QUEEN on the application of Claimant JOHN CHARLES HAYES MBE

- and -

CITY OF YORK COUNCIL Defendant

- and –

ENGLISH HERITAGE TRUST LIMITED Interested Party

------

Anthony Crean QC and Killian Garvey (instructed by Amanda Beresford, Shulmans LLP) for the Claimant David Elvin QC (instructed by Alison Hartley, City of York Council) for the Defendant Emma Dring (instructed by Michael Guy, English Heritage) for the Interested Party

Hearing date: 3rd May 2017 Approved Judgment Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

Mr Justice Kerr :

Introduction: Proposed Works at Clifford’s Tower, York

1. This case is about a proposal to construct new features at the historic site of Clifford’s Tower in York. As far as counsel and the court are aware, it is the first case raising directly the meaning and effect of paragraph 141 of the National Planning Policy Framework (NPPF). That paragraph states that where heritage assets are lost or partly lost, local planning authorities and developers should make archaeological records publicly available, but “the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted”.

2. The project is controversial and has sharply divided local opinion. The challenge is to the decision to grant full planning permission enabling it to proceed. It involves, in summary, the construction of a visitor centre at the base of the motte at Clifford’s Tower and the installation of a new staircase and tower floor, with walkways, balustrading, a roof deck with a café and other restoration works. A car park next to the site is to be removed. The project includes archaeological works and disturbance to buried artefacts.

3. The claimant, Mr Hayes, is a local resident and elected member of the defendant, the city council. Mr Crean QC described Mr Hayes as a tribune of the people in the finest traditions of local democracy. The city council and the interested party, English Heritage, through Mr Elvin QC and Ms Dring respectively, defend the legality of the planning permission. English Heritage, the promoter of the development, is a charitable company responsible to Historic England (the Historic Buildings and Monuments Commission for England) for the management of historic sites in England.

4. As in any case of this kind, the court is in no way concerned with the merits of the decision challenged. I have to decide only whether the grant of planning permission was lawfully made. Mr Hayes contends that the decision was unlawful on two counts: failure properly to identify and assess the significance of Clifford’s Tower and its setting and to take that assessment into account; and taking account of a legally irrelevant factor, the ability to record evidence of the past. The city council and English Heritage say the city council did not behave unlawfully in either respect.

Relevant Statutory Provisions

5. Section 33(1) of the National Heritage Act 1983 confers responsibility on Historic England to secure the preservation of ancient monuments and historic buildings in England; to promote, preserve and enhance the character and appearance of conservation areas; and to promote the public’s enjoyment of and advance their knowledge of such monuments and buildings and their preservation.

6. York Castle, including Clifford’s Tower, is a “scheduled monument” under section 1 of the Ancient Monuments and Archaeological Areas Act 1979, which means that under section 2 of the same Act, consent from the Secretary of State is needed in addition to planning permission, before works of the type decided upon in this case can proceed. The Secretary of State must consult appropriately in accordance with Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

that Act before deciding whether to consent and can set conditions to which consent is subject.

7. The Planning (Listed Buildings and Conservation Areas) Act 1990 includes provisions requiring special consideration of proposals for development, in the case of listed buildings of special historic or architectural interest, appearing on lists kept by the Secretary of State under section 1 of the Act; and in the case of conservation areas, designated by the local planning authority as areas of “special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance” (section 69(1)(a)).

8. By section 66(1) and (2) of the same Act, as amended:

(1) In considering whether to grant planning permission …. for development which affects a listed building or its setting, the local planning authority … shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses.

(2) Without prejudice to section 72, in the exercise of the powers of appropriation, disposal and development (including redevelopment) conferred by [provisions in the Town and Country Planning Act 1990] …, a local authority shall have regard to the desirability of preserving features of special architectural or historic interest, and in particular, listed buildings.

9. And by section 72(1) of the same Act, as amended:

(1) In the exercise, with respect to any buildings or other land in a conservation area, of any functions under or by virtue of [certain other statutory provisions] … special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area.

Relevant Statements of Planning Policy

10. Government policy in planning matters, as is well known, is now set out in the National Planning Policy Framework (NPPF) published in March 2012. It brought together within a single document and simplified the content of many lengthy documents setting out government planning policies. Local planning authorities must take account of policy statements in the NPPF as a material consideration when making planning decisions.

11. It is well established that the interpretation of the policies stated in the NPPF is a matter for the court, while the application of those policies in a particular case is a matter of planning judgment for the local planning authority. It is common ground that the forerunners of the NPPF may, where appropriate, be a legitimate aid to its Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

interpretation: Timmins v. Gedling BC [2015] PTSR 837, per Richards LJ at paragraphs 24, 28-29, 33.

12. Some of the forerunners of paragraph 141 of the NPPF, within section 12, to which I am coming shortly, are of potential relevance to this application and were helpfully produced to the court at the hearing, at my request. The superseded policy documents are those listed at Annex 3 of the NPPF. These include, as I discovered, Planning Policy Statement 5: Planning for the Historic Environment, published on 23 March 2010 (PPS 5). PPS 5, in turn, replaced an older guidance document, Planning Policy Guidance 16: Archaeology and Planning, published in 1990 (PPS 16).

13. PPS 16 formerly provided, at paragraphs 24, 25 and 28:

(d) Arrangements For Preservation By Record Including Funding

24. The Secretary of State recognises that the extent to which remains can or should be preserved will depend upon a number of factors, including the intrinsic importance of the remains. Where it is not feasible to preserve remains, an acceptable alternative may be to arrange prior excavation, during which the archaeological evidence is recorded.

25. Planning authorities should not include in their development plans policies requiring developers to finance archaeological works in return for the grant of planning permission. By the same token developers should not expect to obtain planning permission for archaeologically damaging development merely because they arrange for the recording of sites whose physical preservation in situ is both desirable (because of their level of importance) and feasible. Where planning authorities decide that the physical preservation in situ of archaeological remains is not justified in the circumstances of the case and that development resulting in the destruction of the archaeological remains should proceed, it would be entirely reasonable for the planning authority to satisfy itself before granting planning permission, that the developer has made appropriate and satisfactory provision for the excavation and recording of the remains. Such excavation and recording should be carried out before development commences, working to a project brief prepared by the planning authority and taking advice from archaeological consultants.

…..

28. There will no doubt be occasions, particularly where remains of lesser importance are involved, when Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

planning authorities may decide that the significance of the archaeological remains is not sufficient when weighed against all other material considerations, including the need for development, to justify their physical preservation in situ, and that the proposed development should proceed. As paragraph 25 explains, planning authorities will, in such cases, need to satisfy themselves that the developer has made appropriate and satisfactory arrangements for the excavation and recording of the archaeological remains and the publication of the results. If this has not already been secured through some form of voluntary agreement, planning authorities can consider granting planning permission subject to conditions which provide for the excavation and recording of the remains before development takes place …. . Local planning authorities may, as a matter of last resort, need to consider refusing planning permission where developers do not seek to accommodate important remains.

14. After PPS 16 was revoked and replaced by PPS 5 in March 2010, Policy HE12 within the latter document dealt with “[p]olicy principles guiding the recording of information related to heritage assets”. “HE” denoted “Historic Environment”. Beneath the heading, policy HE 12 stated as follows:

HE12.1 A documentary record of our past is not as valuable as retaining the heritage asset, and therefore the ability to record evidence of our past should not be a factor in deciding whether a proposal that would result in a heritage asset’s destruction should be given consent.

HE12.2 The process of investigating the significance of the historic environment, as part of plan-making or development management, should add to the evidence base for future planning and further the understanding of our past. Local planning authorities should make this information publicly available, including through the relevant historic environment record.

HE12.3 Where the loss of the whole or a material part of a heritage asset’s significance is justified, local planning authorities should require the developer to record and advance understanding of the significance of the heritage asset before it is lost, using planning conditions or obligations as appropriate. The extent of the requirement should be proportionate to the nature and level of the asset’s significance. Developers should publish this evidence and deposit copies of the reports with the relevant historic environment record. Local planning authorities should require any archive Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

generated to be deposited with a local museum or other public depository willing to receive it… Local planning authorities should impose planning conditions or obligations to ensure such work is carried out in a timely manner and that the completion of the exercise is properly secured.

15. PPS 5 was supplemented by a document called the Historic Environment Planning Practice Guide, published at about the same time, March 2010 (PPS 5 PPG). Within PPS 5 PPG, there appeared the following guidance on policy HE 12, at paragraphs 126 and 127:

126. The historic environment is one of the primary sources of evidence of our history. There is a great deal of valuable knowledge still to be gained from it. Safeguarding this new knowledge and making it widely accessible is an important exercise of general public benefit.

127. Many heritage assets, including buildings and below- ground remains have the potential to yield new evidence about past human activity through expert investigation. Although we may learn a lot from an investigation undertaken today, the knowledge is not a substitute for the heritage asset itself. Records cannot deliver the sensory experience and understanding of context provided by the original heritage asset. Records reflect the outlook, technical capabilities and circumstances that prevailed at the time they were made. Techniques and understanding evolve and future investigations may ask different questions, or employ alternative approaches, to reveal deeper insights. For this reason, the best sources of information and understanding of our past are always the heritage assets themselves. The ability to investigate and record a heritage asset is therefore not a factor in deciding whether consent for its destruction should be given (policy HE 12.1). However, there will be some assets that are under threat from natural processes such as organic material deposits at risk from dessication where an early investigation may be desirable.

16. Such was, for present purposes, the relevant historical context for what became Section 12 of the NPPF, entitled Conserving and enhancing the historic environment. Paragraph 128 requires local planning authorities to require applicants for planning permission to describe the significance of any affected heritage assets, including any contribution made by their setting, with a level of detail proportionate to the assets’ importance. Where an affected heritage asset is of archaeological interest, the developer should be required “to submit an appropriate desk-based assessment and, where necessary, a field evaluation”. Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

17. By paragraph 129, local planning authorities should:

identify and assess the particular significance of any heritage asset that may be affected by a proposal (including by development affected the setting of a heritage asset) taking account of the available evidence and any necessary expertise. They should take this assessment into account when considering the impact of a proposal on a heritage asset, to avoid or minimise conflict between the heritage asset’s conservation and any aspect of the proposal.

18. Paragraph 131 of the NPPF requires local planning authorities, in determining planning applications, to take account of the desirability of sustaining and enhancing the significance of heritage assets and putting them to viable uses consistent with their conservation, and the positive contribution their conservation can make to sustainable communities including their economic vitality, and the desirability of new development making a positive contribution to local character and distinctiveness.

19. Paragraph 132 cautions against the loss of or substantial harm to heritage assets, which should be “wholly exceptional”. Paragraph 133 describes circumstances in which, in a wholly exceptional case, this might be justified. Where the harm would be “less than substantial harm to the significance of a designated heritage asset”, paragraph 134 requires the local planning authority to weigh that harm against “the public benefits of the proposal, including securing its optimum viable use”.

20. Paragraph 137 of the NPPF requires local planning authorities to “look for opportunities for new development within Conservation Areas and World Heritage Sites and within the setting of heritage assets to enhance or better reveal their significance”. Thus, “[p]roposals that preserve those elements of the setting that make a positive contribution to or better reveal the significance of the asset should be treated favourably”.

21. Paragraph 141, relied upon by Mr Hayes, states:

Local planning authorities should make information about the significance of the historic environment gathered as part of plan- making or development management publicly accessible. They should also require developers to record and advance understanding of the significance of any heritage assets to be lost (wholly or in part) in a manner proportionate to their importance and the impact, and to make this evidence (and any archive generated) publicly accessible [a footnote here gives guidance on how this should be done]. However, the ability to record evidence of our past should not be a factor in deciding whether such loss should be permitted.

The Historic Site and Modern Development Proposals

22. Against that legal and policy framework I come next to the facts, starting in 1068. Two years after Norman invaders subdued the southern part of England, striving to subjugate the north they built two castles on either side of the River Ouse. One was what became Clifford’s Tower, on the east side. It became a seat of royal power and government in the region. It is the probable scene of the tragic Jewish Massacre of 1190, now marked by a venerated commemoration stone, when the Jews of York committed suicide en masse during an uprising against them. Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

23. Clifford’s Tower is the castle keep rebuilt in stone, dating from the mid-13th century. It fell into disrepair in the 15th and 16th centuries, was refortified as a royalist garrison in 1642-3, during the Civil War and was largely abandoned after being badly damaged by an explosion in 1684. It remained an open topped ruin after that, down to the present day. It is now a much visited heritage asset of major historic and archaeological importance, under the management of English Heritage, on behalf of Historic England.

24. The facts of the case in modern times start with the draft development plan for York. As at 2005, it included a policy on archaeology called HE 10, stating that developments within the designated “Central Area of Archaeological Importance” would normally be permitted if the developer could demonstrate that the development would destroy less than five per cent of archaeological deposits. The NPPF was published in March 2012. There was a policy on archaeology (called D7) within the 2014 draft Local Plan, but none of the parties placed any reliance on it and it was considered to carry little weight in view of the advent of the NPPF.

25. From 2015, heritage assets such as Clifford’s Tower became the responsibility of a new body which continued to use the name of its predecessor, English Heritage. Historic sites are expected to become self-funding by 2022 or 2023, when grants from central government are expected to cease. It is therefore of importance that proposals for the preservation and enhancement of much visited historic sites such as Clifford’s Tower are financially viable as well as acceptable in other ways.

26. York is a city of major historic and cultural importance. The city includes a “Central Historic Core Conservation Area”, divided into “character areas”. The character area numbered 13 comprises York Castle, including Clifford’s Tower. The Castle site, between the River Ouse and the River Foss, is a scheduled ancient monument. The buildings at the site are grade 1 listed buildings. The site is described in the officer’s report in this case, to which I shall come shortly, as “one of the most archaeologically, historically and architecturally important sites in the country” (paragraph 4.35).

27. The project proposals leading to the grant of planning permission which is challenged in this case, were articulated in detail in a number of project documents published in June 2016. There is a Heritage Impact Assessment produced by architects for English Heritage; a Planning Statement produced by English Heritage; an Archaeology Statement, produced by FAS Heritage on behalf of English Heritage; and a Design and Access Statement, produced by other architects for English Heritage. There is also a York Central Historic Core; Conservation Area Appraisal (the date is not clear) commissioned by the city council and English Heritage.

28. The city council too was closely involved in the project. Its Conservation Architect, Ms Janine Riley, and the City Archaeologist, Mr John Oxley, took part in an appraisal in 2016 of various options for a proposed new visitor centre at the Clifford’s Tower site. These were discussed in the Design and Access Statement of June 2016. They concluded that the preferred site for the visitor centre should be at the south side of the monument at the base of the motte, beneath the fore-building.

29. The proposals were then prepared for consideration of the full planning permission application in October 2016 by the city council’s planning committee. On 25 October, seven members of the committee, and one objector, went on a visit to the site Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

and received a detailed presentation. The proposals were consulted upon and the widely differing responses ranged from strong objection to strong support. The responses were summarised in the report of the Development Management Officer, Ms Rachel Tyas (the officer’s report).

30. The officer’s report was available for consideration at the meeting of the planning committee to be held on 27 October 2016. It recommended approval of the application, subject to conditions set out in the report. After describing the site and the proposal, relevant policies and statutory duties were mentioned. The consultation responses were summarised. There was a section on “Environmental Management (Archaeology)” (paragraphs 3.5-3.9). No particular criticisms are levelled at these parts of the officer’s report, though it is noted that NPPF paragraph 141 was not mentioned.

31. Historic England’s rationale for supporting the project was set out (paragraphs 3.19- 3.25). In the long fourth section, headed “Appraisal”, occupying paragraphs 4.1-4.67, the officer’s report dealt at length with the justification for the proposals. It is these paragraphs in the third and fourth sections which were mainly the subject of comment and submissions from the parties. The conclusion (paragraphs 5.1-5.2) was that the proposed works “have the potential to greatly enhance the visitor experience … by enabling better physical and intellectual access to the monument …”.

32. There would be “minor harm to the designated heritage assets”, but though considerable importance and weight was attached to the desirability of avoiding such harm, “the local planning authority has concluded that it is outweighed by the application’s public benefits …”. The application “accords with national planning policy set out in the [NPPF] and with the emerging policies in the Draft York Local Plan (2014 Publication Draft)”.

33. The recommended conditions included condition 5, requiring a programme of “archaeological mitigation, including excavation, public access and community engagement, post excavation assessment & analysis, publication and archive deposition”. Condition 5(C) required that a copy of a report or publication of the project be deposited with the City of York Historic Environment Record within 12 months of completion of the works. Condition 5 was said to be “imposed in accordance with Section 12 of the NPPF”, and clearly reflected the language of paragraph 141.

34. At the meeting of the planning committee on 27 October 2016, the proposals were approved, despite the opposition of, among others, Mr Hayes who spoke at the meeting in his capacity as a local resident. The planning permission was issued on 31 October. It included condition 6, which corresponded to condition 5 as recommended in the officer’s report and was in the same terms.

35. Then on 2 November, Historic England wrote to English Heritage, at the direction of the Secretary of State, to confirm that English Heritage’s application for “Scheduled Monument Consent” for the works comprising the project, under the Ancient Monuments and Archaeological Areas Act 1979, was granted subject to conditions including safeguards to ensure that the archaeological works were carried out properly and to the satisfaction of the Secretary of State. Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

Applicable Principles

36. The parties agreed that the applicable principles are found in oft-cited authorities such as R. (Midcounties Co-operative Ltd) v. Forest of Dean DC [2015] JPL 288, per Hickinbottom J (as he then was), at paragraph 15; Bloor Homes East Midlands Ltd v. Secretary of State for Communities and Local Government [2014] EWHC 754, per Lindblom J (as he then was) at paragraph 19; Secretary of State for Communities and Local Government v. Hopkins Homes Ltd [2016] 2 P&CR 1, per Lindblom LJ at paragraph 24.

37. These citations are very well known and I do not think it would enhance the law to repeat the uncontroversial propositions for which they are authority. I bear those propositions firmly in mind when addressing the grounds of challenge below, and considering the officer’s report and its relation to the content of NPPF section 12 and, within it, paragraph 141. In addition, after the hearing before me, the judgments of the Supreme Court in Suffolk Coastal DC v. Hopkins Homes Ltd; Richborough Estates Partnership LLP and another v Cheshire East BC [2017] UKSC 37, became available.

38. I have considered, in particular, the judgment of Lord Carnwath JSC at paragraphs 19-26 on the status, standing and interpretation of the NPPF. I bear in mind his endorsement of the approach to interpretation of the NPPF adopted by the House in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, and the importance of the distinction between interpreting policy documents such as the NPPF, a matter for the court, and the weight to be attached to them, a matter of planning judgment for the decision maker subject to review on classic public law grounds.

Grounds of Challenge; the Second Ground

39. I come next to the two grounds of challenge, dealing with the second ground first, as I consider (in agreement with Ms Dring) that it raises questions that are logically and chronologically prior to those raised by the first ground. The second ground, I remind myself, is that the city council failed properly to identify and assess the significance of Clifford’s Tower and its setting and failed properly to take that assessment into account, before deciding to grant planning permission for the project.

40. The claimant’s focus, in advancing this ground, is on paragraph 129 of the NPPF. Mr Crean QC, for Mr Hayes, emphasised that it includes three verbs setting tasks for the local planning authority: to assess the significance of an affected heritage asset; to take account of available evidence and necessary expertise; and to take into account its assessment when considering the impact of the proposal on the asset, to avoid or minimise conflict between conservation of the asset and any aspect of the proposal.

41. It is Mr Crean’s contention that the officer’s report and other documents that were before the planning committee fail to perform these tasks, or fail to provide an adequate account of their performance so that the reasoning is inadequate. His main point is that other heritage assets apart from Clifford’s Tower itself are affected by the proposal and that the officer’s report and accompanying documents overlook this point and do not adequately assess the impact of the project on other nearby historic buildings. Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

42. The parties are agreed that the effect of NPPF paragraph 128, combined with paragraph 129, is that the more complex the project, the greater the level of detail required in the developer’s description of the heritage assets affected. Ms Riley, the city council’s Conservation Architect, relies on the detail contained within the Archaeology Statement, the Planning Statement, the Heritage Impact Assessment and the Design and Access Statement. Mr Crean says these documents do not perform the tasks set by paragraph 129.

43. Mr Crean took me to passages in the officer’s report in support of his submissions. He noted that at paragraph 4.19, the report mentions that York Castle, the motte and Clifford’s Tower form part of “an ensemble of buildings, spaces and sub surface deposits which represent one of the most important heritage sites in the country”; while paragraph 4.20 refers to Clifford’s Tower “and its neighbours”, without defining the “ensemble” of buildings or the “neighbours”.

44. He submitted that it was necessary, at the very least, for the documents to identify each building or site affected and he suggested there should have been an assessment of the impact of the project on each site or building comprised among those identified. The Heritage Impact Assessment document, and the other documents, stopped short of this and did not adequately perform the task of assessing the impact of the proposal on sites or buildings other than Clifford’s Tower itself.

45. I have come to the conclusion that these submissions are not well founded. As Mr Elvin QC pointed out, I must bear in mind that the officer’s report and accompanying assessment documents were addressed to an informed audience familiar with the layout of the site and buildings. Many if not all the committee members are likely to be resident in or near the city of York and several had visited the site only two days before the planning committee met to consider the proposals.

46. I accept Mr Elvin’s submission that the officer’s report began (see paragraph 1.3) by correctly identifying the wider site as that of “Scheduled Ancient Monument no NHLE1011799”, of which Clifford’s Tower forms part. That site was rightly described in the same paragraph as:

located within the Central Historic Core conservation area (character area 13), close to the confluence of the Rivers Ouse and Foss, where together with the formal grouping of the three 18th Century prison and court buildings [i]t also lies within the City Centre Area of Archaeological Importance …. .

47. In my judgment, that is an adequate description of the affected heritage assets, the effect on which needed to be assessed. Frequent references to the “Eye of York” - the oval shaped grass space between the Castle and the former prison which is now the Castle Museum - and surrounding area could have left members of the committee in no doubt about the extent of the heritage setting under consideration.

48. The York Central Historic Core; Conservation Area Appraisal, which defined “conservation area 13”, includes, as Mr Elvin demonstrated, a description of the other buildings, and spaces between them, forming the “ensemble” referred to in the officer’s report. Those buildings are, specifically, the former Debtor’s Prison (now the Crown Court) and the former Female Prison (now the Castle Museum). Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

49. Mr Elvin also relied on the Heritage Impact Assessment document dated June 2016, which includes in tabulated form an impact assessment of each feature of the project by reference not just to Clifford’s Tower itself, but to the surrounding space and buildings. The assessment of impact on the features of Clifford’s Tower itself, understandably, predominates in the assessment exercise, but the surrounding heritage assets are not overlooked.

50. Thus, the entries in table 12 directly address the impact of the proposed new visitor centre, as a “[c]atalyst for change and improvement of the ‘Eye of York’ with positive impacts on other attractions in the immediate locality” (12.1). The siting of the visitor centre is considered to address directly “the context and boundary of the ‘Eye of York’ and neo-classical Court Houses contributing to the urban townscape …” (12.2).

51. The architectural appearance of the visitor centre, much criticised by objectors, is said to “respond to the plan of the motte” and to have a roof terrace with steps which “relate to the adjacent Crown Court House terrace steps” (12.3). The commemoration stone for the Jewish Massacre of c.1190 is to be “permanently resited” – it is not yet clear exactly where – with replanted daffodils; such that the proposals are “likely to continue and enhance the commemorative value of Clifford’s Tower” (12.6).

52. Table 13 is concerned with aspects of the Skyline Impact and Views From and to the Tower. The removal of the car park, considered unsightly, is recognised as a benefit to the surrounding area. The visitor centre is praised for being in harmony with the surrounding area and buildings. Whether or not one agrees with that assessment, it was clearly part of the exercise carried out for the purposes of paragraph 129 of the NPPF.

53. It is thus clear that the proposals were assessed properly, and in the context of the surrounding area and buildings, and not in splendid isolation as Mr Crean contended. I do not accept the contention that the tasks set by paragraph 129 of the NPPF were not undertaken properly. The assessment is adequate, and the planning committee must, as Mr Crean accepts, be assumed to have taken it into account. The reasoning in the report is also adequate. For those reasons the second ground of challenge is not made out.

Grounds of Challenge; the First Ground

54. I turn next to consider the first ground which, I remind myself, is that the city council unlawfully took into account a legally irrelevant factor stated to be such in the concluding sentence of paragraph 141 of the NPPF; namely, the ability to record evidence of the past. Mr Crean QC submits that the decision to grant planning permission for the project to proceed is flawed on that account and should be quashed.

55. Mr Crean contended that the concluding sentence of NPPF paragraph 141 bears the meaning that (to quote from his grounds): “where the loss (partial or whole) to a heritage asset provides an opportunity to generate knowledge about the asset or otherwise, this cannot be a material consideration in favour of the grant of consent”; and that on a fair reading of the officer’s report, it wrongly took account of that consideration by applauding the public benefit of the opportunity to enhance knowledge of Clifford’s Tower. Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

56. He pointed to various passages in the officer’s report in support of his argument, and to the recommended condition 5 (condition 6 of the actual permission, as it became), mirroring those passages. The starting point was the assessment was that the development would cause “less than substantial harm” to the site, consisting of detrimental impacts on archaeological features and deposits on the site (paragraph 3.5 of the officer’s report).

57. The officer’s report went on to refer in several places to “mitigation measures”, “archaeological mitigation” and “archaeological mitigation measures”. These measures would deliver “significant public benefit” (see paragraphs 3.5-3.8). The “opportunity to interrogate the site of a motte as important and significant as that at York Castle is rare” and would enable “[q]uestions relating to the pre-castle landscape, the date and constructional [sic] sequence of the motte” to be “addressed” (paragraph 3.6).

58. At paragraph 3.8, the officer’s report described what the “mitigation measures” should include:

archaeological recording of material forming the lower segment of the motte to be removed; archaeological recording of the 19th century retaining wall to be revealed; archaeological excavation of all features and deposits down to formation levels for sub- surface accommodation, foundations, attenuation facilities and service connections; a programme of public access and community engagement with these archaeological works; publication of the results and deposition of the archaeological archive with an appropriate registered museum.

59. Mr Crean relied on other passages in the officer’s report, to similar effect (at paragraphs 3.23, 4.11 and 4.52). He submitted that the balancing exercise required by NPPF paragraph 134 to be carried out, in a case of “less than substantial harm”, was skewed and distorted by weighing in the balance an illegitimate “benefit” to the public which, as ordained in the last sentence of paragraph 141, fell to be disregarded.

60. The final sentence of paragraph 141, as Mr Crean emphasises, uses the word “record” as a verb, not as a noun. The recording and publicising of evidence resulting from the development should be mandatory in accordance with paragraph 141 in a case where the (total or partial) loss of the heritage asset is otherwise justified on its merits, but the final sentence ordains that the ability to record such evidence cannot itself supply the justification.

61. The city council’s riposte was that (to quote from Mr Elvin’s grounds of opposition): “the recording of evidence is not itself a justification for permitting a loss to a heritage asset but it is nonetheless something which ought to be undertaken so that if the loss does occur, the evidence obtained during development is properly obtained and recorded and made publicly accessible”. Mr Elvin argued for a “distinction … between the justification for the loss and the mitigation required if there to be a loss”.

62. Mr Elvin further contended that the officer’s report, properly read, correctly “treated mitigation and recording as a consequence of granting permission and not a factor that itself supported the grant of permission”; the obtaining of evidence and recording was Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

not, he submitted, listed “as one of the public benefits in overriding the less than substantial harm when setting out the basis of the recommendation …”. Mr Hayes’ case, he submitted, “confuses mitigation and justification”.

63. In the course of debate in court, Mr Elvin added that the public benefit of understanding the archaeology of the site, for example by viewing some of the exposed artefacts from the new internal walkways, is not the same thing as the recording, documenting and making publicly accessible the evidential fruits of the exercise. He submitted that the forerunners of what became paragraph 141 did not rule out treating as a public benefit the enhanced public understanding of the asset’s significance, as a material consideration.

64. Ms Dring, for English Heritage, supported the existence of a distinction between justification for a development and mitigation measures consequent upon it. The last sentence of paragraph 141 only prevented the recording of evidence from supplying the justification; it did not prevent those mitigation measures from being taken; indeed, they are required. She commended that approach as consistent with the duties under sections 66(1) and 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990.

65. Ms Dring noted that while the officer’s report did not directly refer to paragraph 141 of the NPPF, it referred (at paragraph 4.34) to NPPF paragraph 137, requiring opportunities to be sought for new development within conservation areas and world heritage sites, and within the setting of heritage assets, to enhance or better reveal their significance, and to treat favourably proposals which preserve elements of the setting that make a positive contribution to or better reveal the significance of the asset.

66. I have carefully considered the parties’ contentions in the light of the statutory regime, the nature of this site, the proposed development, the officer’s report and the planning policy statements subsequently subsumed in abbreviated form into paragraph 141 of the NPPF. At the heart of the issue is the meaning and effect of the last sentence of paragraph 141, and whether the officer’s report remained faithful to it.

67. The codification exercise which created the NPPF delivered commendable brevity, at the price (well worth paying) of replacing detailed exposition with general policy statements that can be Delphic, as in this instance. Paragraph 141 must be read in its proper context. It forms part of section 12 of the NPPF which is concerned with “[c]onserving and enhancing the historic environment” and is the last paragraph within that section.

68. Section 12 as a whole condenses and codifies numerous pages of superseded policy documents. It requires, first, proper attention to the local planning process and assessment of the significance of heritage assets and the impact of proposed development on them (paragraphs 126-129). It calibrates the level of harm to heritage (or equivalent) assets as “substantial” or “less than substantial”, and programmes the required balancing exercise accordingly (paragraphs 132-4 and 138-140).

69. The section gives emphasis to sustaining and enhancing the significance of heritage assets and getting the most out of them (paragraphs 131 and 137). Paragraph 141 then deals, lastly, with the provision of information to the public in connection with Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

developments affecting heritage assets. The sense of paragraph 141 is that you cannot destroy a heritage asset just to mine information from it. The information is no substitute for the asset itself.

70. That is not to say that the information derived from a justified loss or partial loss of a heritage asset should not be carefully gathered and made publicly available. The purpose of paragraph 141 is to ensure that is done. In this case, it was the foundation of condition 6, subject to which planning permission was granted. But the last sentence, beginning with the admonition “[h]owever”, then ensures that the creation of the record is not itself the justification for the harm to the asset.

71. So far, the analysis is not particularly difficult or controversial. The difficulty arises from the wording in the last sentence: “the ability to record evidence shall not be a factor in deciding …”. Those words do express, as a matter of language, what appears in conventional public law parlance to be the exclusion of a material consideration. Read literally, those words say not only that the ability to record evidence cannot be the sole justification for the harm; it cannot even contribute to the justification for the harm.

72. Yet, the mining of publicly available information from a heritage asset contributes to sustaining and enhancing its significance, deriving a positive contribution from it and better revealing its significance. These are the goals to which local planning authorities are required by NPPF paragraphs 131 and 137 to aspire. It would undermine their ability to secure those achievements if they had to blind themselves to the part played, in securing them, by provision of information and public education.

73. The former PPS 16 (paragraphs 24 and 25) emphasised that recording of evidence may be an “acceptable alternative” to preservation of the asset where that is not feasible; but that developers, “by the same token … should not expect to obtain planning permission for archaeologically damaging development merely because they arrange for the recording of sites whose physical preservation in situ is both desirable … and feasible” (my italics). The language there used did not rule out provision of information as a factor that may contribute to the justification for the harm done.

74. But in the subsequent incarnation, policy HE 12.1 forming part of PPS 5, the language shifted in the direction of what is now NPPF paragraph 141: “[a] documentary record of our past is not as valuable as retaining the heritage asset, and therefore the ability to record evidence of our past should not be a factor in deciding whether a proposal that would result in a heritage asset’s destruction should be given consent” (my italics).

75. It could be said that this is a non sequitur and the word “therefore” was inapt. Policy HE 12.2 in the next paragraph, acknowledged that investigating the significance of the historic environment “should add to the evidence base for future planning and further the understanding of our past”. This idea was explained in more detail in PPS 5 PPG, paragraph 126: safeguarding “new knowledge [of the historic environment] and making it widely accessible is an important exercise of general public benefit”.

76. In paragraph 127 of PPS 5 PPG, it was explained further that “the knowledge is not a substitute for the heritage asset itself” and that this is because “[r]ecords cannot deliver the sensory experience and understanding of context provided by the original Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

heritage asset … the best sources of information and understanding of our past are always the heritage assets themselves. The ability to investigate and record a heritage asset is therefore not a factor in deciding whether consent for its destruction should be given (policy HE 12.1)” (my italics).

77. Again the non sequitur, derived from HE 12.1, is apparent. Why should the preservation of information about an asset not be weighed in the balance along with other factors in favour of a development that harms a heritage asset? The harm is attenuated by the preservation of information and making it publicly available, which enhances and better reveals the significance of the harmed asset and hence its positive contribution to the locality and to our heritage.

78. The proposed development in this very case is a paradigm example: the site at present is imposing but sometimes considered bleak and forlorn. The planning documents include statements to the effect that people tend to visit once, be suitably impressed and not come back again. The visitor’s centre, walkways and café are intended to remedy this by making the site more attractive and enhancing understanding of it, as well as raising money needed for the upkeep of the site. The new features will provide a platform for the supply of recorded evidence and information to the visiting public.

79. During the course of argument, the example of a Saxon helmet in a glass case was mentioned. Suppose that such a helmet is unearthed during the excavation works and placed in a glass case visible from the walkway, with an accompanying explanatory caption revealing its significance to a public that had never been able to see it before. The artefact is, surely, part of the heritage asset itself and not merely a record of it. It delivers the sensory experience which the explanatory caption (a record of it) alone cannot.

80. That example shows that recording and publicising information about a heritage asset may be very difficult to disentangle from the process of enhancing the public’s experience of the asset itself, a process that may (some might say paradoxically) do harm to the asset. I do not think it is realistic to suppose that the last sentence of NPPF paragraph 141 requires a local planning authority to perform the mental gymnastics required to separate out the two concepts.

81. This difficulty can only be overcome, in my judgment, once it is recognised that a non sequitur crept in when PPS 5 replaced PPS 16, and then found its way into the language of NPPF paragraph 141. In my judgment, the last sentence of that paragraph only makes good sense if interpreted so that the words “should not be a factor” are taken to bear the meaning “should not be a decisive factor”, in deciding whether the harm to the asset should be permitted.

82. I appreciate that, even allowing for the fact that the NPPF is a policy document and not a statutory provision, this interpretation stands uneasily with the actual words of the last sentence of the paragraph. But unless the paragraph is interpreted in that way, it would be very difficult to apply in a coherent manner. In the example given above, the local planning authority could take into account the public’s ability to view the Saxon helmet, but not the explanatory words inscribed beneath the glass case displaying it. Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

83. In the present case, the officer’s report clearly invited the planning committee to take into account, in favour of granting planning permission, that there would be (paragraph 4.53) “archaeological recording of material forming the lower segment of the motte to be removed [and] … of the 19th century retaining wall to be revealed…”. These were to be “mitigation measures”, as stated in the same paragraph.

84. In the previous paragraph (4.52), the report stated that through implementation of those same “mitigation measures”, the development “offers an opportunity to both enhance understanding of the monument and to engage with a wide range of audiences thus delivering significant public benefit [my italics]”. It is therefore inescapable that the committee was invited to take into account the recording of evidence of our past as part of the public benefit to be weighed (under NPPF paragraph 134) against the “less than substantial harm” to the significance of the heritage asset.

85. The distinction between public benefits weighed in the scales in the balancing exercise and mitigation measures which attenuate the detriment caused by an already justified development, must therefore be rejected on the facts of this case, even if (which I doubt) it has any intrinsic validity. I do not see how the treatment of a public benefit as such can be wished away by renaming it as the mitigation of a detriment. The extent to which the detriment is mitigated is a determinant of the quantum of the public benefit.

86. It follows that, on the literal reading advocated by Mr Crean, the officer’s report would have taken account of a legally irrelevant consideration and the decision consequently flawed. But rejecting, as I do, the literal interpretation in favour of a sensible and liberal construction of the paragraph in its proper historical context, the officer’s report and the committee’s decision were not taken inconsistently with the concluding words of NPPF paragraph 141. The recording of evidence of the past was not the sole justification for the development. It was treated as part of the public benefit flowing from the project, but that was not unlawful.

The Issue of Remedy

87. I conclude that the first ground of challenge is not made out either and the claim must fail. There is therefore no need to consider the question of remedy. But the issue would arise if, contrary to my decision, the decision to grant planning permission was unlawfully made. In case this matter goes any further, I will consider the argument of the city council and English Heritage that relief should in any event be refused, on the basis that any flaw in the officer’s report plainly made no difference to the outcome.

88. The argument is put, first, on the basis of section 31(2A) of the Senior Courts Act, i.e. it is said to be “highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred”. By section 31(8), the conduct complained of is: “the conduct (or alleged conduct) of the defendant that the applicant claims justifies the High Court in granting relief”. In this case, that would be the officer’s invocation of the public benefit occasioned by the ability to record evidence of our past.

89. Secondly, it is said that the court should be “satisfied that the decision-making authority would have reached the same conclusion without regard to that reason”, i.e. Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

the reason that is bad in law (Simplex GE (Holdings) Ltd. v. Secretary of State for the Environment (1989) 57 P&CR 306, per Staughton LJ at 329). Applying that test, the committee would, it is argued, have reached the same decision founded on the remaining public benefits it saw in the project, even without reliance on the factor that was legally irrelevant.

90. Mr Elvin submitted that the key to the committee’s decision was the public benefit flowing from the construction of the visitor’s centre and other improvements to the site, and that any illegality was collateral and not significant. Ms Dring supported that submission and both she and Mr Elvin added that this was a case where the supporters of the project included the body with statutory responsibility for the preservation of ancient monuments and historic buildings (under section 33(1) of the National Heritage Act 1983).

91. For English Heritage, Ms Dring reminded me that this was a case in which the perceived harm to the heritage asset was always going to less than substantial, and that the balancing exercise required under NPPF paragraph 134 would have plainly led to the same result if the allegedly immaterial factor had been excluded from consideration. The decision was not a finely balanced one and was not “a close run thing”.

92. Furthermore, Ms Dring pointed out that Historic England, the government’s statutory adviser on heritage assets, supported the proposal; and the city council would be bound to attach “considerable weight” to its view and would need “cogent and compelling reasons” for departing from it (Shadwell Estates Ltd v. Breckland DC [2013] EWHC 12 (Admin), per Beatson J (as he then was) at paragraph 72).

93. Finally, Ms Dring reminded me that the Secretary of State had been required to bestow statutory consent on the project pursuant to the Ancient Monuments and Archaeological Areas Act 1979, in addition to the grant of planning permission, before the project could proceed; and the Secretary of State had done so after the grant of the permission. This made it the more unlikely that the supposed legal error in the officer’s report would have led to the planning permission being refused.

94. Mr Crean submitted that the court was in no position to judge what the committee’s decision would have been in the absence of the conduct complained of, namely the taking account of recording of evidence of the past as a factor materially influencing the decision. The court had rightly declined to speculate on this issue at the permission stage, when granting permission on the papers. The position was no different now, Mr Crean argued.

95. I agree with the city council and English Heritage that it is appropriate to revisit this question at the substantive stage of the judicial review application. I have now heard considerably more detailed argument than I had received on the papers when I granted permission to proceed with the claim. If I were wrong to dismiss the claim founded on the first and second grounds of challenge, I would nonetheless refuse relief, applying section 31(2A) of the 1981 Act and the reasoning in the Simplex case.

96. I accept the points made by Mr Elvin and Ms Dring. The decision was not finely balanced; the perceived public benefits were considered substantial, even though the proposals generated substantial opposition. The supporters of the proposal included Judgment Approved by the court for handing down. R (oao Hayes) v City of York Council [2017] EWHC 1374 (Admin)

the statutory body with responsibility for preservation, Historic England, and its managing agent, English Heritage. The project enjoyed the support of the city council, in the person of its most senior officers with professional responsibility for heritage matters.

97. In all the circumstances I would have been satisfied that the threshold tests set by section 31(2A) and the Simplex judgment are met in this case, and I would have refused relief even if I had been persuaded that the decision challenged was flawed in either of the two ways suggested by Mr Hayes, though Mr Crean. In the event, the separate issue of remedy does not arise, and the claim must be dismissed for the reasons given above. 1271 [2016] PTSR Horada v Communities Secretary (CA)

A Court of Appeal Horada and others v Secretary of State for Communities and Local Government and others

[2016]EWCACiv169 B 2016 March 3; 18 Lord Thomas of Cwmgiedd CJ, Longmore, Lewison LJJ

Compulsory purchase Compulsory purchase order Validity Secretary of State ostensibly giving reasons for departing from inspectors recommendation not to conrm compulsory purchase order Whether reasons given su–cient Acquisition of Land Act 1981 (c 67), s 23(2)(3) (as amended by Tribunals and Inquiries Act 1992 (c 53), s 18(1), Sch 3, para 14) Town and Country Planning C Act 1990 (c 9), s 226(1)(a)(1A) (as amended by Planning and Compulsory Purchase Act 2004 (c 5), ss 99(2)(b)(3), 120, Sch 9)

Pursuant to its power under section 226(1)(a) of the Town and Country Planning 1 Act 1990 , the local planning authority made a compulsory purchase order in respect of land which included a well known market. Over 200 objections to the compulsory purchase order were received and a public inquiry was held. The planning inspector D recommended that the order should not be conrmed. The Secretary of State issued a decision conrming the order, ostensibly giving reasons for departing from the inspectors recommendation. The rst claimant, on behalf of the relevant market traders association, and ten others brought proceedings under section 23(2) of the 2 Acquisition of Land Act 1981 challenging the validity of the order on the basis of the Secretary of States failure to comply with a relevant requirement, namely the duty to give reasons. The judge dismissed the claim, upholding the decision of the Secretary E of State. The claimants appealed on the grounds that the reasons given by the Secretary of State for departing from the inspectors recommendation were inadequate and/or inadequately expressed. On the appeal Held, allowing the appeal, that where the Secretary of State followed the planning inspectors recommendation it could be inferred that he had also adopted the inspectors reasoning; but that where the Secretary of State disagreed with the F inspectors recommendation fuller reasons were required for doing so; that although it was clear that the Secretary of State had disagreed with the inspectors view that the guarantees and safeguards for existing traders were inadequate he had not explained why he had come to that conclusion; that requiring a fuller explanation of his reasoning did not amount to requiring reasons for reasons, nor did it require a paragraph by paragraph rebuttal of the inspectors views, but it did require the Secretary of State to explain why he disagreed with the inspector, beyond merely stating his conclusion that he did; and that, in the circumstances, the claimants had G been substantially prejudiced by the failure to comply with a relevant requirement and would be entitled to appropriate relief to be decided later (post, paras 36, 49, 54—55, 56, 57). R (Ling (Bridlington) Ltd) v East Riding of Yorkshire Council [2007] JPL 396 and R (Siraj) v Kirklees Metropolitan Council [2011] JPL 571, CA considered. Decision of Dove J [2015] EWHC 2512 (Admin) reversed.

1 H Town and Country Planning Act 1990,s226(1), as amended: A local authority to whom this section applies shall, on being authorised to do so by the Secretary of State, have power to acquire compulsorily any land in their area (a) if the authority think that the acquisition will facilitate the carrying out of development, re-development or improvement on or in relation to the land . . . 226 1 9 2S ( A), as inserted: see post, para . Acquisition of Land Act 1981,s23(2)(3): see post, para 33.

' 2016 The Incorporated Council of Law Reporting for England and Wales 1272 Horada v Communities Secretary (CA)[2016] PTSR

Per Lord Thomas of Cwmgiedd CJ and Longmore LJ. Reasons for decisions A should be explained in plain English in terms the citizen a›ected can understand. Experts must therefore guard against speaking in terms which can only be understood through the intermediary of a lawyer or other professional. In this case, it was particularly important that a proper and easy to understand explanation be given by the Secretary of State for rejecting the inspectors recommendation since the livelihoods of the traders are put at risk by the proposed development (post, paras 56, 57—59). B

The following cases are referred to in the judgment of Lewison LJ: R v Secretary of State for Transport, Ex p Cumbria County Council [1983] RTR 129, CA R (Ling (Bridlington) Ltd) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin); [2007] JPL 396 R (Siraj) v Kirklees Metropolitan Council [2010] EWCA Civ 1286;[2011] JPL 571, C CA R (Telford Trustee No 1 Ltd) v Telford and Wrekin Council [2011] EWCA Civ 896; [2012] PTSR 935,CA Save Britains Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153;[1991] 2 All ER 10; 89 LGR 809, HL(E) South Bucks District Council v Porter (No 2) [2004] UKHL 33;[2004] 1 WLR 1953; D [2004] 4 All ER 775, HL(E) Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government [2014] EWHC 4041 (Admin)

No additional cases were cited in argument.

The following additional cases, although not cited, were referred to in the skeleton E arguments: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223; [1947] 2 All ER 680,CA De Rothschild v Secretary of State for Transport (1988) 57 P&CR330,CA Margate Town Centre Regeneration Co Ltd v Secretary of State for Communities and Local Government [2013] EWCACiv 1178,CA F APPEAL from Dove J In 2013 the local planning authority, Hammersmith and Fulham London Borough Council, made the London Borough of Hammersmith and Fulham (Shepherds Bush Market Area) Compulsory Purchase Order 2013 pursuant to section 226(1)(a) of the Town and Country Planning Act 1990,as amended, to facilitate the development or redevelopment of land at G Shepherds Bush. Following objections to the compulsory purchase order a planning inquiry took place and the inspector recommended that the order should not be conrmed. On 10 October 2014 the Secretary of State for Communities and Local Government gave his written decision disagreeing with the inspector and conrming the compulsory purchase order. The claimants, James Joseph Horada (on behalf of the Shepherds Bush Market Tenants Association) and ten others, challenged the validity of the H order under section 23 of the Acquisition of Land Act 1981 on the grounds that the Secretary of States reasons were inadequate and not sustainable in law. By a decision dated 31 July 2015 [2015] EWHC 2512 (Admin) and an order dated 20 August 2015 Dove J dismissed the claim.

' 2016 The Incorporated Council of Law Reporting for England and Wales 1273 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A By an appellants notice dated 20 August 2015 and with permission of the Court of Appeal (Lewison LJ) dated 4 November 2015 the claimants appealed on the grounds, inter alia: (1) that the judge was wrong in law to uphold as legal the Secretary of States failure to deal specically with the interests of individuals directly a›ected by the compulsory purchase order and/or to give reasons for disagreeing with the planning inspector in her B approach to doing so, and (2) that the judge was wrong in law in upholding the Secretary of States approach to refurbishment of the railway arches at the market. By a respondents notice dated 19 November 2015 the Secretary of State sought to uphold the judgment. Orion Shepherds Bush Ltd, the developer, and the local planning C authority appeared as interested parties in the appeal. The facts are stated in the judgment of Lewison LJ, post, paras 1—32.

David Wolfe QC (instructed by Leigh Day) for the claimants. Charles Banner (instructed by Treasury Solicitor) for the Secretary of State. Rupert Warren QC (instructed by Gowling WLG (UK) LLP) for the D interested parties.

The court took time for consideration.

18 March 2016. The following judgments were handed down. LEWISON LJ E 1 Everyone agrees that Shepherds Bush Market is in need of regeneration. It has been going since 1914 and is in need of serious upgrading. The market is part of the social fabric of the area, and provides a retail o›er that di›ers from and is complementary to that o›ered by Westeld and other retail property in and around Shepherds Bush. The character of the market is one of small independent traders providing a F diverse mix of products in food, fashion and household, mainly to the local population. It provides a social function to the local community. It is ethnically diverse in its nature and o›ers the opportunity for independent businesses to trade in an a›ordable environment not found elsewhere in the area. Within the market there are 137 separate retail pitches, some housed in railway arches, some in shops and others in stalls occupying the central G spine and eastern side of the market. 2 The importance of the market is recognised in the planning policies adopted by Hammersmith and Fulham London Borough Council. Policy WCOA 3 states: Shepherds Bush Market and adjacent land Regeneration of the market and other adjacent land to create a vibrant H mixed use town centre development of small shops, market stalls, leisure uses, residential and possibly o–ces; in accordance with the Shepherds Bush Market Supplementary Planning Document. Development should encourage small independent retailers and accommodate existing market traders.

' 2016 The Incorporated Council of Law Reporting for England and Wales 1274 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ 3 The planning framework accompanying this policy, which the council A adopted on 23 October 2013, recognised that any redevelopment scheme should repair and improve the markets physical fabric, expand the diversity of retail and: Crucially maintains existing traders and provides them with the security to ensure that the market can continue to operate without interruption and serve existing customers and communities. 4 30 2012 In order to promote this planning policy on March the B council granted outline planning permission for the phased redevelopment of the market as part of a mixed-use scheme. The overall development was described as: phased redevelopment of Shepherds Bush Market and adjoining land comprising the demolition of existing buildings, the refurbishment and enhancement of the market, and the construction of new buildings C ranging from two—nine storeys in height (plus basement) to provide up to 212 residential units (up to 27,977 square metres); and up to 14,052 square metres of non-residential oorspace comprising up to 6,000 square metres of market/retail oorspace (class A1), up to 4,000 square metres oorspace of food and drink uses (classes A3/A5), and up to 4,052 square metres of associated servicing facilities and ancillary uses; D including provision of landscaping and amenity/public space; access and parking (up to 85 vehicular spaces), up to 457 cycle parking spaces and associated works. 5 The granted permission was subject to a number of conditions, of which the most important for present purposes were conditions 6 and 7. They said: E (6) Except in relation to the drainage works, no development shall commence until details of the market traders stalls and canopy design [have] been submitted to and approved in writing by the local planning authority. The approved stalls and canopies shall be implemented before the stalls are occupied and shall be retained thereafter for the lifetime of the development. F (7) No demolition or construction works shall commence until details of a market management plan have been submitted to and approved in writing by the local planning authority. The market management plan will include, but is not limited to: timeline of the drainage works, operating hours, security, service charge, rent collection, tenant support, marketing and promotions. The contents of the market management plan are to be agreed with the local planning authority prior to the lodgement of G the application to discharge this condition. The development shall be carried [sic] and operated out in accordance with the approved details. 6 In addition the developer, Orion Shepherds Bush Ltd (Orion), entered into an agreement with the council under section 106 of the Town and Country Planning Act 1990 (as amended). The most important part of H that agreement for the purposes of this appeal was schedule 15. Para 2 required the owner (which for practical purposes can be taken to be Orion) to consult with traders to establish a Shepherds Bush Market Management Steering Group; and to have regard to the views of that group. Para 4 imposed a rent freeze for the duration of the works. Para 6 limited increases

' 2016 The Incorporated Council of Law Reporting for England and Wales 1275 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A in service charge during that same period to 6% per annum. Para 7 required Orion, following consultation with the Shepherds Bush Market Management Steering Group, to adopt a lettings policy. The objects of the lettings policy were to promote: 7.1.1. the diverse nature and o›erings within the market, including the uses and mix of business, to include specialisms in food, fabrics, B furnishings, fashion and household goods within the market, and that it remains a location for local and/or independent businesses and the goods on o›er are appropriate to the market customer; 7.1.2. the regeneration of the market and improve its economic sustainability; 7.1.3. the nature and unique character of the market and that the C market remains a location for local and or independent businesses by way of: 7.1.3.1. the retention of existing traders; 7.1.3.2. the setting [of] criteria for attracting and selecting new local independent traders; and 7.1.3.3. the setting of rent and service charges levels on lease renewals D and new leases will be a›ordable for small local businesses (entry- level) . . . 7 Paras 7.3 and 7.4 provided: 7.3. The owner shall provide no less than twenty-ve (25) stalls within Shepherds Bush Market to be let or licensed on terms and conditions conducive to attracting local small to medium enterprises and E entrepreneurs, including those from ethnic communities seeking low-cost entry to business start-ups, having regard to the Shepherds Bush Market Lettings Policy. 7.4. The Shepherds Bush Market Lettings Policy shall provide for a proportion of available units to be let on shorter term/periodic tenancies or licences and at rents or fees designed to provide an opportunity for F local small-to-medium-enterprises and entrepreneurs including those from ethnic communities seeking low-cost entry to business start-up. 8 Para 8 required the setting up of a business continuity fund to meet claims for losses su›ered as a result of the works. 9 In 2013 the council made the London Borough of Hammersmith and Fulham (Shepherds Bush Market Area) Compulsory Purchase Order 2013 G (the CPO). The order was made under the power given by section 226(1)(a) of the Town and Country Planning Act 1990, as amended, to facilitate the development or redevelopment of land. Section 226(1A), as inserted by section 99(3) of the Planning and Compulsory Purchase Act 2004, provides: But a local authority must not exercise the power under paragraph (a) of subsection (1) unless they think that the development, re-development H or improvement is likely to contribute to the achievement of any one or more of the following objects (a) the promotion or improvement of the economic well-being of their area; (b) the promotion or improvement of the social well-being of their area; (c) the promotion or improvement of the environmental well-being of their area.

' 2016 The Incorporated Council of Law Reporting for England and Wales 1276 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ 10 The purpose of the CPO was described thus: A The CPO is jointly promoted by the council and the developer. The council has made the Order to regenerate the area of Shepherds Bush Market and to secure its future in the long term. The scheme is intended to facilitate regeneration of the market through a mixed-use development designed to improve and expand the [markets] trading space, increase the variety within the market area, and establish a long-term management B plan to promote and sustain the market. The intention is to re-establish the market as a popular, sustainable and attractive London street market and a successful component of the Shepherds Bush town centre, which is coming under increasing competition from other developments within the borough. C 11 Following over 200 objections to the CPO a planning inspector (Ms Ava Wood) held a public inquiry over the course of ten days in 2013. The purpose of the inquiry was for her to make recommendations to the Secretary of State whether to conrm the CPO or not. It is long-standing policy (in order to secure compliance with the law) that a compulsory purchase order should only be made where there is a compelling case in the public interest. The overall question for the inspector (and for the Secretary D of State) was whether that compelling case had been made out. 12 In para 12.2 of her report the inspector set out that test and said that she proposed to address it under a number of heads: (i) Does the purpose for which the land is to be acquired t in with the adopted planning framework for the area? She concluded at para 12.2.13 that it did. (ii) Would it contribute to the economic, social or environmental well-being of the area? E She concluded at para 12.6.10 that it had the potential to do so; but said at para 12.6.11 that those benets would only materialise if the essential ingredients and uniqueness of the market were retained. She concluded at para 12.6.36 that the scheme did not provide adequate mechanisms for retaining the number, mix and diversity of traders, with the consequence that the scheme would not fully achieve the economic, social or F environmental well-being sought. (iii) Could the purpose be achieved by other means? She concluded at para 12.11.1 that the Orion scheme was the only deliverable and viable option. 13 As the judge [2015]EWHC2512 (Admin) said, therefore, it was the inspectors conclusion on the second question that was the fulcrum of her recommendation that the CPO should not be conrmed. In section 4 of her report the inspector summarised the case for the council and Orion. G That case included the following elements: 4.3.2 The character of the market is one of small independent traders providing a diverse mix of products in food, fashion and household, mainly to the local population, combined with a specialism in textiles and haberdashery which attracts customers from a much wider area. It is ethnically diverse in its nature and o›ers the opportunity for independent H businesses to trade in an a›ordable environment not found elsewhere in the area. 4.3.9 The market also o›ers opportunities not available elsewhere for the local population (particularly among the ethnic communities) to

' 2016 The Incorporated Council of Law Reporting for England and Wales 1277 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A establish small and start-up businesses in a›ordable premises, a role that will be enhanced by the regeneration scheme. 4.7.1 The council has always maintained that protection and continued operation of existing traders is its central objective. 4.7.5 It was crucial for the council to be assured that there were su–cient commitments from the developer to ensure retention of existing B traders in the market and Goldhawk Road. 14 A›ordability and the continuing operation of existing traders were therefore key components of the scheme. It is worth noting that what the council and Orion relied on as giving protection to existing traders were the provisions of schedules 15 and 16 to the section 106 agreement. It was not suggested in the inspectors summary of the case for the council and Orion C that any particular additional protection for existing traders was to be found in the conditions attached to the planning permission. 15 In section 7.1 of her report the inspector summarised the objections made by the Shepherds Bush Market Tenants Association. They included: 7.1.5 . . . The owners have already begun to approach leaseholders asking for an exorbitant rent increase of £30 per square foot per annum. D This is a real threat to tenants livelihoods, as many businesses presently pay only £10 per square foot. 7.1.7 No funds are to be directed towards repairing or refurbishing the interior of the arches. The arches are iconic to Shepherds Bush market and its key original feature . . . 7.1.8 [Shepherds Bush Market Tenants Association] and stall E holders have repeatedly requested design proposals for the new stalls. But none has been forthcoming. Tenants are concerned that replacement stalls will not meet their needs. 7.1.13 . . . The CPO will deprive members of any further trading opportunities, as members are only able to trade where rents are a›ordable. There is nowhere else for traders to go should the rents become a›ordable beyond reach. F 16 Section 12 of the report contained the inspectors conclusions. It is necessary to set out large parts of it: 12.6.10. Overall, the Orion redevelopment proposal has the potential to bring about signicant improvements in the physical environment of the area, boost the areas economy and generate the social G benets associated with an improved market. The CPO would equally contribute to the areas well-being as an essential tool in facilitating delivery of those benets. 12.6.11. The benets described would only materialise if the essential ingredients and uniqueness of the market and the Goldhawk Road shops are retained. In other words, if the development provides the requisite nancial as well as physical conditions for an independent, small-scale, H diverse and ethnic mix of traders and shopkeepers to continue trading at the market and on the Goldhawk Road frontage. Those objectives rely on safeguards to ensure that existing businesses or new operators with similarly qualitative and diverse o›erings are protected as far as possible during and after the redevelopment process. The e›ectiveness of

' 2016 The Incorporated Council of Law Reporting for England and Wales 1278 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ schedules 15 and 16 of the section 106 agreement is a vital element of the A consented scheme in this regard and considered below. 17 She recorded at para 12.6.12: Protection and continued operation of existing businesses has been the councils central objective. The council was satised that there was su–cient protection and, after some initial ambivalence, the mayor agreed. For market traders the protection lay in schedule 15 to the section 106 agreement. At para 12.6.14 she noted that a B rent and service charge freeze would provide a level of certainty during the construction period; and at para 12.6.15 that the lettings policy would be crucial to maintaining the unique nature of the market, and to retain as well as attract independent local retailers, through a›ordable rent levels. She referred to the requirement to establish a continuity fund and said, at 12 6 16 para . . , that it would provide the necessary protection against C hardship and would provide nancial certainty and assistance during the interim period. 18 The inspector then turned to consider condition 6. She pointed out that the form and details of the replacement stalls would only be conrmed when that condition was discharged and said, at para 12.6.17:

The stallholders therefore remain ignorant of the size, form, or D positioning of replacement stalls. Equally, the sizes of retail units are unknown . . . Stall and shop holders will be o›ered new premises but not necessarily on a like for like basis. 19 Her conclusion on that point at para 12.6.18 was: Without knowledge of the replacement provision intended, the traders cannot fully comprehend their future, nor plan for it. That level of E uncertainty is unacceptable and provides a poor basis for assessing the extent to which existing traders could or would relocate to the refurbished market. The section 106 provides no guarantees in that regard. 20 She then commented on the very poor physical condition of the arches and said that they were: historically important elements of the F market, forming the backbone to the trading environment. She continued, at para 12.6.19: Yet neither the Shepherds Bush Market works (identied in the section 106) nor cost breakdown provided in evidence claries with any certainty that the arch units would be upgraded as part of the market refurbishment. G 21 She also said, at para 12.6.20, that the sketches, images and examples referred to in the material supporting the planning application give me little condence that the replacement market will maintain the diversity and multi-ethnic culture of Shepherds Bush Market, giving reasons for her conclusion. In essence she thought that what was proposed was much more upmarket than the current Shepherds Bush market. H 22 At para 12.2.21 she said: The impasse with traders not wishing to engage due to lack of information and the developers unable to move forward without full knowledge of individual requirements is inhibiting progress. However

' 2016 The Incorporated Council of Law Reporting for England and Wales 1279 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A binding/enforceable measures are needed to be assured that the replacement premises (stalls and shop units) would be suitable and a›ordable enough for traders to return to the site in su–cient numbers and maintain the markets character. Moreover, businesses occupying the arch units must also be provided with the security that their premises would be upgraded to address the defects identied in the Parsons B Brinkerho› report and which fall within the owners responsibility. In the absence of clear assurances along those lines, the social and environmental well-being sought is not likely to be achieved should the order be conrmed. 23 She expressed her overall conclusion on this question, at para 12.6.36: C The Orion scheme has been found by the council (and the mayor) to be policy compliant, as it would meet the London plan and core strategy regenerative objectives. In doing so it has the potential to bring about the benets described. Close examination of the evidence, however, has led me to conclude that the current Orion proposal lacks the mechanisms to be assured of retaining the number, mix and diversity of traders in the D way explained above. They are vital to the distinctiveness of the market and the Goldhawk Road shops. Therefore, in so far as it would facilitate delivery of the redevelopment scheme promoted, the CPO would not fully achieve the social, economical and environmental well-being sought. 24 In section 12.10 of her report the inspector drew the threads together. She referred to the protection o›ered by article 1 of the First E Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and to article 8 of the ECHR. She referred to a number of measures that would be put in place for the protection of traders; but continued, at paras 12.10.6—12.10.7: 12.10.6 All of that said, without full knowledge of the replacement accommodation in the new development, it is not possible to establish F whether new trading conditions would be su–ciently a›ordable or suited to the needs of traders currently operating in the market. Lack of certainty regarding necessary upgrades to the arched premises also places a question mark over the long-term trading and survival position of businesses occupying the arches. Equally, in the absence of measures to secure the a›ordability of replacement shop units, the commercial future of the Goldhawk Road shopkeepers cannot be assured. Without such G certainties in place, there is some doubt in my mind whether the scheme granted permission (or any subsequent redevelopment proposal) could deliver on its promises of retaining if not all then the majority of traders and shopkeepers. They are vital to the market and to the vibrancy of the area. 12.10.7 The order is not tied to any particular scheme but its H purposes are not deliverable while the uncertainties highlighted prevail. The compelling reasons for it therefore fall away. 25 She came to her nal conclusion, at para 12.11.4: As explained earlier, the guarantees and safeguards are not su–ciently robust to be assured that genuine opportunities exist for

' 2016 The Incorporated Council of Law Reporting for England and Wales 1280 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ current traders or shopkeepers (or similarly diverse businesses) to A continue trading in the market and Goldhawk Road. Without such assurances, there is a real risk that the market and replacement Goldhawk Road shops would not provide the ethnic diversity, independent or small scale retailing environment central to the appeal of this part of the town centre. While such uncertainties exist, the personal losses and widespread interference of private interests arising from conrmation of the order B cannot be justied. 26 A footnote to the rst sentence of para 12.11.4 referred back to paras 12.6.18—12.6.21 which I have already quoted or summarised. 27 As a result the inspector recommended that the CPO should not be conrmed. Under rule 19 of the Compulsory Purchase (Inquiries Procedure) 2007 2007 3617 Rules (SI / ) the Secretary of State was required to give C notice of [his] decision and the reasons for it in writing. This reects the statutory duty to give reasons imposed on ministers by section 10 of the Tribunals and Inquiries Act 1992. 28 The Secretary of State gave his written decision on 10 October 2014. He disagreed with the inspector. The key paragraphs of the decision letter are these: D 14. The Secretary of State has considered the inspectors conclusions in relation to the extent the proposed purpose of the order will contribute to the achievement of the economic, social or environmental well-being of the area at IR 12.6 at (IR 12.6.10). The inspector concludes that overall the Orion proposal has the potential to bring about signicant improvements in the physical environment of the area, boost the areas economy and generate the social benets associated with an improved E market, [while] the order will equally contribute to the areas well-being as an essential tool in facilitating delivery of those benets. The inspector concludes (IR 12.6.11) that these benets would only materialise if the essential ingredients and uniqueness of the market and the Goldhawk Road shops are retained and the development provides the requisite nancial as well as physical conditions for an independent small scale, F diverse, and ethnic mix of traders and shopkeepers to continue trading. The inspector notes that these objectives rely on safeguards to ensure that existing businesses or new operators, with similarly qualitative and diverse o›erings are protected as far as possible during and after the redevelopment process and that the e›ectiveness of schedules 15 and 16 of the section 106 agreement are a vital element of the order scheme in this regard. The inspector concludes at IR 12.6.36 that the order scheme G would not fully achieve the social, economic or environmental well-being sought as it lacks the mechanisms to be assured of retaining the number mix and diversity of traders. 15. The Secretary of State has carefully considered the inspectors conclusions on the order schemes contributions to well-being. The Secretary of State considers that su–cient safeguards are in place to H ensure that regeneration of the market to create a vibrant mixed use town centre development will be achieved and that existing market traders and shopkeepers or new operators with similarly qualitative and diverse o›erings will be protected. The Secretary of State is satised that the council will ensure that the policy requirements of WCOA3 will be met

' 2016 The Incorporated Council of Law Reporting for England and Wales 1281 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A through a series of planning conditions that will be reviewed and approved by the council and through the safeguards provided within the section 106 agreement which are enforceable by the council. Therefore, the Secretary of State disagrees with the inspectors conclusions and nds that the proposal will signicantly contribute to the economic social and environmental well-being of the area. 21 B . The order should be conrmed only if there is a compelling case in the public interest to justify su–ciently the interference with the human rights of those with an interest in the land a›ected. The Secretary of State considers that the proposed purpose of the order, including the redevelopment and regeneration of the area, will signicantly contribute to the achievement of the promotion or improvement of the economic, social and environmental well-being of the area. The Secretary of State C considers that the purpose for which the land is being acquired ts in with the adopted planning framework for the area. The Secretary of State is satised that su–cient safeguards are in place to protect traders and shopkeepers through a series of planning conditions requiring the review and approval of the council and through the section 106 agreement which can be enforced by the council to ensure that a development in line with D the relevant planning framework can be delivered. 29 Para 14 of the decision letter is the Secretary of States understanding of the inspectors reasoning on the second question that she posed herself. Para 15 contains his reasons for disagreeing with her answer to that question. To be a little more precise: the rst sentence of that paragraph says that the Secretary of State has carefully considered the inspectors E conclusion; the second and third sentences contain the Secretary of States reasons for disagreeing, and the nal sentence (introduced by the word therefore) contains the Secretary of States conclusion based on the two preceding sentences. It was not suggested that para 21 of the decision letter added any material reasoning. 30 One undeniable fact is that the inspector recommended that the CPO should not be conrmed. We therefore need to ask: why? The rst part of F the answer is to identify what it was that the inspector thought the scheme ought to achieve. This, in my judgment, is to be found at para 12.6.11 in which she said that the scheme had to provide: the requisite nancial as well as physical conditions for an independent, small-scale, diverse and ethnic mix of traders and shopkeepers to continue trading at the market. Thus both nancial and physical conditions were in play. It was, she said, G necessary to protect both existing business and new operators as far as possible during and after the redevelopment process. Schedule 15 to the section 106 agreement and the conditions attached to the planning permission were the mechanisms that she considered. 31 So far as nancial conditions were concerned she found that the rent and service charge freeze would provide a level of certainty during the construction period. Since it was a freeze, that was clearly right. But since H the rent and service charge freeze was time limited, clearly it could o›er no certainty after the construction period was over. Indeed the councils case (recorded at para 4.7.6) was that once the construction period was over rent would be determined by the market in the usual way. So she looked for mechanisms to provide what she regarded as necessary protection for

' 2016 The Incorporated Council of Law Reporting for England and Wales 1282 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ existing traders after the construction period was over. At para 12.5.17 she A pointed out that the size of replacement premises was unknown. Since rent for retail property is charged at a rate per square foot, it is obvious that the size of a unit is a crucial factor in determining whether the rent is a›ordable. Her consideration of that aspect of nancial conditions is at para 12.2.21. What she was looking for was binding/enforceable measures . . . to be assured that the replacement B premises (stalls and shop units) would be . . . a›ordable enough for traders to return to the site in su–cient numbers and maintain the markets character. She returned to the point at para 12.10.6 where she said that it was not possible to establish whether new trading conditions would be su–ciently a›ordable [for] the needs of traders currently operating in the market. C She concluded that the guarantees and safeguards were not su–ciently robust to be assured that genuine opportunities existed for current traders to continue trading in the market. It is also important to stress that the inspectors concern was with the [existing] traders. Since the question before her was not merely a planning issue, but was the broader question whether a compelling case had been made out for expropriating the property D rights of the existing traders, her concern with them was plainly justied. Moreover the councils own case was that it was crucial to be assured that there were su–cient commitments from Orion to ensure retention of existing traders. 32 In dealing with the physical conditions the inspector focused on the stalls and the arches. Her rst point (at para 12.6.17) was that the traders did not know the size, form or positioning of the replacement stalls. E She said, at para 12.6.18, that that level of uncertainty was unacceptable. As I have said, the size of the replacement stalls was clearly important to the a›ordability of replacement units because of the way in which retail rents are assessed. Then she turned to the arches. She pointed out, at para 12.6.19, that there was no certainty that the arches would be 12 10 6 refurbished; and, at para . . , that without full knowledge that it was F not possible to establish whether: new trading conditions would be suited to the needs of traders currently operating in the market. Lack of certainty regarding necessary upgrades to the arched premises also places a question mark over the long-term trading and survival position of businesses occupying the arches. G 33 Section 23(2) of the Acquisition of Land Act 1981 entitles a person aggrieved by a CPO to challenge its validity in the High Court on the ground that a relevant requirement has not been complied with. A relevant requirement includes any requirement of rules made under the Tribunals and Inquiries Act 1992. The Compulsory Purchase (Inquiries Procedure) 2007 1992 Rules were made under the Tribunals and Inquiries Act ; and H consequently the duty to give reasons is a relevant requirement. Where (as here) the challenge is based on a failure to comply with a relevant requirement, section 24(2) of the 1981 Act empowers the court to grant relief if it is satised that the interests of the applicant have been substantially prejudiced by the failure to comply.

' 2016 The Incorporated Council of Law Reporting for England and Wales 1283 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A 34 One of the purposes of requiring a decision-maker to give reasons for his decision is so that those who are a›ected by the decision may themselves decide whether the decision is susceptible to legal challenge: Save Britains Heritage v Number 1 Poultry Ltd [1991] 1 WLR 153, 166. Thus in the well known exposition of the content of the duty to give reasons in South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953, para 36 Lord Brown B of Eaton-under-Heywood said: The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved. Reasons can be briey stated, the degree of particularity C required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable D disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues E involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision. 35 The issue in that case was whether there were very special circumstances which outweighed the presumption against inappropriate F development in the Green Belt, namely the retention by a Romany gipsy of a residential mobile home. In dealing with that issue Lord Brown said, at para 41: To my mind the inspectors reasoning was both clear and ample. Here was a woman of 62 in serious ill-health with a rooted fear of being put into permanent housing, with no alternative site to go to, whose G displacement would imperil her continuing medical treatment and probably worsen her condition. All of this was fully explained in the decision letter (and, of course, described more fully still in the reports produced in evidence at the public inquiry). Should she be dispossessed from the site onto the roadside or should she be granted a limited personal planning permission? The inspector thought the latter, taking the view that Mrs Porters very special circumstances clearly outweighed the H environmental harm involved. Not everyone would have reached the same decision but there is no mystery as to what moved the inspector. 36 In a case such as this one the Secretary of State is the primary decision-maker. As Lang J said in Wind Prospect Developments Ltd v Secretary of State for Communities and Local Government [2014]EWHC

' 2016 The Incorporated Council of Law Reporting for England and Wales 1284 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ 4041 (Admin) he is not reviewing or conducting an appeal against the A inspectors decision. To paraphrase a famous saying: the inspector proposes; the Secretary of State disposes. Where the Secretary of State follows the inspectors recommendation it will be easy to infer that the Secretary of State has also adopted the inspectors reasoning. Is the position any di›erent where the Secretary of State has disagreed with the inspector? In the Wind Prospect case Lang J was concerned with a recovered planning appeal, in B which the inspector reported to the Secretary of State, but the Secretary of State made the decision. At para 38 she rejected the submission that the Secretary of States duty to give reasons entailed a detailed response to each step of the inspectors reasoning, analysed paragraph by paragraph. At para 39 she declined to impose a standard which the Secretary of State must apply when disagreeing with the conclusions of an inspector; and C followed Lord Bridge of Harwich in the Save Britains Heritage case [1991] 1 WLR 153 and Lord Brown in the South Bucks District Council case [2004] 1 WLR 1953 by holding that the degree of particularity required will depend entirely on the nature of the issues falling for decision. 37 There is, however, a corpus of authority that suggests that fuller reasons are required where the decision-maker is disagreeing with a considered and reasoned recommendation. In R (Ling (Bridlington) Ltd) v D East Riding of Yorkshire County Council [2007] JPL 396, para 50 Sir Michael Harrison considered the adequacy of a summary of reasons for granting planning permission. He said: Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The o–cers report to committee will be a relevant consideration. If the o–cers report E recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the o–cers recommendation. In the latter case, a short summary may well be appropriate. 38 This was one of the paragraphs of his judgment that Sullivan LJ F approved in R (Siraj) v Kirklees Metropolitan Council [2011] JPL 571, para 16. That paragraph in Sir Michael Harrisons judgment was endorsed again by this court in R (Telford Trustee No 1 Ltd) v Telford and Wrekin Council [2012] PTSR 935,para23. 39 In the Siraj case Sullivan LJ himself said, at para 15:

When considering the adequacy of summary reasons for a grant of G planning permission, it is necessary to have regard to the surrounding circumstances, precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision-making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an o–cers recommendation. In those circumstances, a member of the public with an interest in challenging the H lawfulness of planning permission will not necessarily be able to ascertain from the o–cers report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.

' 2016 The Incorporated Council of Law Reporting for England and Wales 1285 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A 40 He also contrasted the standard of reasoning to be expected from a local planning authoritys summary of reasons for the grant of planning permission and the (higher) standard to be expected from a decision letter of the Secretary of State. It is of course the case that a duty to give reasons does not entail a duty to give reasons for reasons; but nevertheless if disagreeing with an inspectors recommendation the Secretary of State is, in my B judgment, required to explain why he rejects the inspectors view. Thus in R v Secretary of State for Transport, Ex p Cumbria County Council [1983] RTR 129, 135 Lord Lane CJ (with whom Ackner and Oliver LJJ agreed) said: The material part of the decision letter was composed mainly, if not entirely, of bald assertions that the Secretary of State was not satised C upon fact (a) or fact (b) or fact (c), without giving any reason upon which the lack of satisfaction was based. Such decision letters are unfair to the parties. The parties are unable to challenge the reasoning or the reasons, if any, which lay behind the decision. They are particularly reprehensible where the Secretary of State is di›ering from the commissioners and from the inspector who heard the appeal on matters of fact, as was the case here. D 41 It seems to me that this raises two questions as applied to this case: (i) did the Secretary of State correctly identify the principal important controversial issues; and if so (ii) did he give adequate reasons for disagreeing with the inspector? 42 I have already said that the inspectors concern was that there should be both nancial and physical conditions both before and after the E construction period to enable the mix of traders to continue trading at the market. She was satised that nancial conditions were adequate during the construction period but not thereafter. She was not satised that she could be assured that replacement premises would be a›ordable enough for traders to return in su–cient numbers. That her emphasis was on existing traders returning to the market was conrmed by her repetition of F her concern about the needs of traders currently operating in the market. The essential problem, as she saw it, was that rents would not be a›ordable for them. 43 Her concern about physical conditions was that the level of uncertainty was unacceptable; and that had a direct impact on the nancial uncertainty for existing traders. She was also concerned that there was no guarantee that the arches would be put into an acceptable physical G condition, even though they were the backbone of the trading environment. 44 The inspectors ultimate conclusion was that the guarantees and safeguards were not su–ciently robust to be assured that genuine opportunities existed for current traders or shopkeepers (or similarly diverse businesses) to continue trading in the market. Her attention was, therefore, H squarely focused on the adequacies of the guarantees and safeguards. The principal controversial issue, therefore, was whether the guarantees and safeguards were adequate. 45 Mr Charles Banner, for the Secretary of State, and Mr Rupert Warren QC for Orion, argued that the decision letter was addressed to parties well aware of the issues involved and the arguments advanced;

' 2016 The Incorporated Council of Law Reporting for England and Wales 1286 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ with the consequence that no further elucidation was required. Indeed A Mr Banner submitted that the well informed reader would have understood from para 15 of the decision letter that the Secretary of States reasons for his conclusions were: (i) Policy WCOA3 included the element of well-being necessary to satisfy at least one of the statutory objectives in section 226 (1A). (ii) The inspector had set the bar too high in requiring assurance or certainty. Su–cient likelihood was the right test. (iii) The inspector had B misunderstood the extent to which policy WCOA3 met the concerns that she expressed in the light of the fact that any application for consent for reserved matters would have to be decided by the council in accordance with the development plan. That in turn meant that in considering, for example, details of the stalls under condition 7 of the planning permission, the council would be bound to take into account the size of the proposed units and the consequent e›ect on rental levels. (iv) The lettings policy envisaged by C para 7 of schedule 15 to the section 106 agreement had to be designed to promote both the unique character of the market and the retention of existing traders. In addition 25 units had to be o›ered at a›ordable rents, and those features of the lettings policy amounted to a su–cient degree of rent control. The council would be able to enforce compliance with the lettings policy by injunction. And (v) the inspector was wrong to have D thought that it was necessary for forward planning by traders for the details of replacement units to be on the table at the time of the inquiry. It was su–cient that the details would be known once approval under condition 7 of the planning permission had been given. 46 At one stage in his submissions Mr Banner also suggested that the refurbishment of the arches could be secured under condition 1 of the planning permission. I do not think that he persisted in that submission, and E Mr Warren disavowed it. In the end Mr Banner accepted that the Secretary of States reasoning did not touch the arches at all. 47 Mr Warren argued the point di›erently. He stressed the proposition that the standard of reasoning required by South Bucks District Council v Porter (No 2) [2004] 1 WLR 1953 was limited to a duty to consideration of the principal contested issues, and need not deal with every material F consideration. What were the principal contested issues could be seen from the inspectors description of the way in which the various parties presented their respective cases to the inquiry. The question of nancial safeguards and the physical concerns that the inspector had both as regards the arches and the replacement units were no more than material considerations; and did not need to be dealt with at all. The Secretary of States decision was an G evaluative judgment based on exactly the same material as had been before the inspector. In those circumstances he was entitled to say no more than that he disagreed with her evaluation. 48 Let me quote again the two critical sentences in para 15 of the decision letter: The Secretary of State considers that su–cient safeguards are in place H to ensure that regeneration of the market to create a vibrant mixed use town centre development will be achieved and that existing market traders and shopkeepers or new operators with similarly qualitative and diverse o›erings will be protected. The Secretary of State is satised that the council will ensure that the policy requirements of WCOA3 will be

' 2016 The Incorporated Council of Law Reporting for England and Wales 1287 [2016] PTSR Horada v Communities Secretary (CA) Lewison LJ A met through a series of planning conditions that will be reviewed and approved by the council and through the safeguards provided within the section 106 agreement which are enforceable by the council. 49 I accept Mr Banners submission that the decision letter must be taken to have been addressed to a well informed readership. But in my view the reader of the decision letter would have had to have been not only well B informed but also psychic to have extracted from the two laconic sentences of para 15 the elaborate chain of reasoning upon which Mr Banner relies. His reading of those two sentences seems to me to be far away from Lord Browns exhortation to read decision letters in a straightforward manner. Nor do I accept Mr Warrens submission that the matters which concerned the inspector can be downgraded to the status of material considerations C which needed no explicit reasoning at all. They were, after all, the very reasons which persuaded the inspector to recommend that the CPO should not be conrmed. 50 Mr Warren submitted that para 15 of the decision letter was couched in the classic language of an evaluative judgment; namely that the Secretary of State considers that the safeguards were su–cient to achieve the end in view. But the end in view, on the councils own case, was the protection D and continued operation of existing traders which, it said, was its central objective. In order to achieve that it was crucial for the council to be assured that there were su–cient commitments from Orion to ensure retention of existing traders. The councils case was never one of reasonable likelihood. 51 The Secretary of States conclusions in para 15 of the decision letter E express the view that there are su–cient safeguards to ensure that existing market traders and shopkeepers or new operators with similarly qualitative and diverse o›erings will be protected. It is by no means clear to me whether the Secretary of State was saying that the safeguards would enable existing traders to return in su–cient number to preserve the unique character of the market, with the consequence that the inspectors concerns were unfounded; or whether he was saying that the position of existing F traders did not matter because new operators with similarly qualitative and diverse o›erings would be protected. The inspectors key concern about a›ordability was not mentioned at all, even though it was a hotly disputed part of the councils case. Although the Secretary of State mentions policy WCOA3 he does not attribute to it the signicance that Mr Banner ascribes to it in meeting the objectives of section 226(1A). It is also worth noting G (although this is, perhaps, a small point) that whereas policy WCOA3 says that development should encourage small independent retailers and accommodate existing market traders the Secretary of States conclusion is that the safeguards will ensure that existing market traders and shopkeepers or new operators with similarly qualitative and diverse o›erings will be protected. Nor does the Secretary of State explain why he disagreed with the inspectors appraisal of the adequacy of the guarantees H and safeguards. All we know is that he disagreed. 52 The judge said, at paras 40—42, that the inspector had not criticised or rejected the mechanisms in the section 106 agreement; and that the Secretary of State was in e›ect agreeing with the inspector. I disagree. If the inspector had not been critical of the section 106 agreement, it would be

' 2016 The Incorporated Council of Law Reporting for England and Wales 1288 Horada v Communities Secretary (CA)[2016] PTSR Lewison LJ impossible to understand on what basis she recommended that the CPO not A be conrmed. In my judgment the inspector was only satised with the section 106 agreement in so far as it related to the construction period. Her main point was that it was inadequate in the long term. If the judge was right about the Secretary of States interpretation of the inspectors report, then I agree with Mr David Wolfe QC that the Secretary of State misunderstood the report and did not, therefore, correctly identify one of the B principal important controversial issues. 53 So far as the physical matters are concerned, the Secretary of State does not mention these explicitly in his rejection of the inspectors concerns. The inspector had referred to condition 6 of the planning permission but said that this produced an unacceptable level of uncertainty. She also expressed her concerns about the size of replacement units, not least because of the direct relationship between size and rent. She also thought that it was C important that the arches should be put into an acceptable condition, but that there was no mechanism for achieving this. Once again it is unclear to me whether the view that the Secretary of State took was that there was certainty, with the consequence that the inspectors concerns were unfounded; or that the level of uncertainty that the inspector thought was unacceptable was in fact an acceptable level. As far as the arches were D concerned it is striking that the Secretary of State does not mention them at all. It is unclear to me whether the Secretary of State thought that they were unimportant, or accepted the inspectors view that they were important (the backbone of the trading environment) but thought that their upgrading could be assured, perhaps in the way that Mr Banner tentatively put forward. Again, we know that the Secretary of State disagreed with the inspector on the question of the replacement units and the arches, but we do E not know why. 54 In short, although it is clear that the Secretary of State disagreed with the inspectors view that the guarantees and safeguards were inadequate he does not explain why he came to that conclusion. I do not consider that requiring a fuller explanation of his reasoning either amounts to requiring reasons for reasons, or that it requires a paragraph by F paragraph rebuttal of the inspectors views. But it does require the Secretary of State to explain why he disagreed with the inspector, beyond merely stating his conclusion that he did. The two critical sentences in the decision letter are, in my judgment, little more than bald assertions. The Secretary of State may have had perfectly good reasons for concluding that the guarantees and safeguards were adequate. The problem is that we do not know what they were. In those circumstances I consider that the traders G have been substantially prejudiced by a failure to comply with a relevant requirement. 55 I would allow the appeal. It was agreed at the hearing of the appeal that the question of the appropriate form of relief would be decided later. LONGMORE LJ H 56 I agree with both judgments. LORD THOMAS OF CWMGIEDD CJ 57 I also agree. I add a short observation to underline how important it is that reasons for decisions should be explained in terms the citizen a›ected

' 2016 The Incorporated Council of Law Reporting for England and Wales 1289 [2016] PTSR Horada v Communities Secretary (CA) Lord Thomas of Cwmgiedd CJ A can understand. Although the citizen can be taken to know the factual background and in this sense be well informed, the citizen a›ected by a decision is entitled to an explanation of the reasons in plain English which the citizen can understand. 58 It is very easy for any expert, whether the person be a lawyer or other professional, to speak in terms that are familiar to other experts in the eld. B That is, however, not a permissible approach when explaining the reasons for a decision to others, however well informed those others may be in the sense I have described. Experts must therefore guard against speaking in terms which can only be understood through the intermediary of a lawyer or other professional. 59 In this case, it was particularly important that a proper and easy to understand explanation be given by the Secretary of State for rejecting the C inspectors recommendation. The livelihoods of the traders are put at risk by the proposed development. The inspector has given her reasons on a matter of vital concern to the traders in a way that could readily be understood by them. The Secretary of State must explain his decision in the same readily understandable way.

Appeal allowed. D MATTHEW BROTHERTON, Barrister

E

F

G

H

' 2016 The Incorporated Council of Law Reporting for England and Wales Page 1

Official Transcripts (1990-1997)

Norwich Union Fire Insurance Society Limited v Metro Breakers Plc and Others

[1992] Lexis Citation 2442

(Transcript:Association)

COURT OF APPEAL (CIVIL DIVISION)

RUSSELL, ROSE LJJ

23 NOVEMBER 1992

23 November 1992

S Brodie QC and M Carrs-Frisk for the Respondents; P Marshall for the Applicants

Mischon de Reya; Peters & Peters

RUSSELL LJ

Pleading points are usually unattractive. This case affords no exception to that proposition. In August 1991 the plaintiffs in these proceedings issued a writ with a statement of claim against seven defendants. The plaintiffs are a major insurance company involved on a very large scale with motor insurance. The first de- fendants have disappeared from the case, and no more need be said about them. The second to fifth de- fendants inclusive are companies engaged in motor vehicle salvage. The sixth defendant is a director and a shareholder in those companies, and the seventh defendant was a senior claims clerk employed by the plaintiffs. The action against her was eventually discontinued, although I shall have to say more of her activi- ties later.

It is worth observing the course of the proceedings from August 1991 until last Wednesday, 18th November 1992, when His Honour Judge Rivlin QC (sitting as a judge of the High Court in the Queen's Bench Division) embarked upon the hearing of the action. There have been various amendments to the statement of claim as originally served, those amendments being obtained with the leave of the court. Amendments were made in September 1991 pursuant to the order of Mr Justice Cresswell. More importantly, on 9th October 1992 an application to re-re-amend the statement of claim was made to Mr Simon Goldblatt QC (sitting as a deputy judge of the Queen's Bench Division). Those amendments appear in purple in the pleading now before the court. They were extensive amendments. The defendants did not either resist them or appeal the order of the learned deputy judge.

At no stage during these interlocutory proceedings were any applications made on behalf of the defendants for further and better particulars of the statement of claim. Instead, pursuant to a notice of something like two or three days prior to 18th November 1992, counsel instructed on behalf of the defendants, apparently for the sole purpose of making the application and not for the purpose of taking part in the substantive hearing of the

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case, made an unusual application to His Honour Judge Rivlin to the effect that many paragraphs contained in the statement of claim were fatally defective in the sense that the plaintiffs should be prohibited by the judge from adducing evidence in support of those paragraphs. The learned judge rejected this application in its entirety in the sense that at no stage did he prohibit the plaintiffs from adducing evidence in support of their pleading. However, in relation to paragraphs 17 to 24 of the statement of claim, wherein there are alle- gations of breach of constructive trust, the judge did rule that the pleading in the form in which it appeared before him was defective. There was no ruling in relation to those paragraphs prohibiting evidence being ad- duced.

When the order was drawn up by the learned associate, this passage appeared as being part of the judge's ruling:

"Paragraphs 17 to 25 of the re-re-amended Statement of Claim constituted an improper and ineffective pleading of an allegation of constructive trust against the Second to Sixth Defendants and that accordingly the Plaintiff was not entitled to proceed with the said allegations and/or to adduce evidence in support there- of."

Those words follow what is said in the notice of appeal. They do not follow what the learned judge said in his judgment.

Whilst not conceding that further particulars were necessary save in relation to paragraphs 17 to 25, the plaintiffs have since last Wednesday drafted amendments to their pleading, which now appear in yellow. They have not yet received the approval of the trial judge, but one can safely assume that the appropriate leave will be given by him.

After the judge had ruled basically against the application made on behalf of the defendants Mr Stanley Bro- die QC, appearing for the plaintiffs, began to open the case. It seems that last Thursday everyone concerned became aware of the fact that there was to be an application to this court for leave to appeal the interlocutory order of the trial judge. In consequence the proceedings were halted, and the trial judge is awaiting the out- come of this application before proceeding further.

Toward the close of his submissions Mr Marshall told us that in reality this case is a simple one, although he submitted that it has become unduly complicated by the addition of unnecessary allegations. For my part I am wholeheartedly in agreement with the proposition that essentially the case is a simple one and, as I commented to counsel in the course of his submissions, I read the statement of claim before reading the judgment under appeal in order to familiarise myself with the outline of that which has to be tried.

The statement of claim already runs to no less than 28 pages of typescript. The allegations contained in it are set out with precision, in my judgment. They have been met by an appropriate defence denying the alle- gations that are made, and there are undoubtedly a number of factual issues to be resolved by the judge when he has heard the evidence. In the broadest outline the case is about what can only be described as, if proved, the fraudulent activities of five defendants, including four companies over which it is said that the sixth defendant had a measure of control. The plaintiffs very frequently have to pay out motorists who have insured with them when accidental damage to insured vehicles has been occasioned and also the plaintiffs have to pay out from time to time on vehicles which have been stolen but which are subsequently recovered in a parlous condition. Their policy in appropriate circumstances when they have settled insurance claims is to acquire title to the vehicles involved and then to dispose of those vehicles to organisations who engage in the business of motor vehicle salvage. The second to fifth defendants, as I have already observed in this judgment, were so engaged.

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In a sentence or two, as one reads through the statement of claim, what is alleged to have happened is abundantly clear, although of course a lot of it may well be denied. It is said that the seventh defendant abused her position as an employee of the plaintiffs in a number of ways but most particularly by ensuring that the five defendants or one or other of them became the successful tenderers for motor vehicles, alt- hough those five defendants were not the organisations submitting the highest bid for the vehicles involved. The detriment to the plaintiffs when that situation arises is too obvious to be stated. Likewise it is manifestly plain that any employee of an organisation which indulges in that sort of favouritism (to use a homely phrase) is guilty of a gross breach of trust so far as that person's employer is concerned. Here the allegation is that the seventh defendant in return for favours bestowed upon her by the sixth defendant, either in a personal capacity or on behalf of the second to fifth defendants, acted in the way that I have endeavoured to describe in summary form. As a consequence of her doing that over a prolonged period of time, it is said that the plaintiffs were the losers to the tune of something over £850,000. As against the defendants and each of them it is said that they knew or ought to have known of the activities of the seventh defendant, because those activities were expressly communicated to them, and of course they were responsible for the favours bestowed upon the seventh defendant.

The claim was pleaded under various headings. First, by paragraph 13 the defendant companies were al- leged to have induced the seventh defendant to breach her contract with her employers. A similar allegation was made in paragraph 14 as against the sixth defendant. Likewise the second to fifth defendants were al- leged in paragraphs 10 to 12 of the statement of claim to have induced the breach of confidence of which the seventh defendant was guilty if the case against her could be proved. The same allegation involving the sixth defendant appears in paragraph 14 of the pleading. In paragraph 6 of the pleading it is said that the second to fifth defendants were guilty of converting property belonging to the plaintiffs because of their improper dealing with salvage vehicles and in some cases their detention. In paragraph 14 similar allegations are made against the sixth defendant. Paragraph 15A involves allegations of conspiracy and fraud, and is a good illustration of the way in which objection is taken to this pleading. I read paragraph 15A in its entirety. It says:

"Further, in respect of the transaction pleaded at the particulars numbered (1) to (2) to paragraph 9 above and on the dates of such transactions, and at the Gleneagles Hotel, Perthshire on or about 22nd to 24th Feb- ruary 1991 and/or at 72 Brondesbury Park, London NW2 on or about 25th to 27th February 1991, and/or on another date or dates presently unknown to the Plaintiff, the Defendants, alternatively the First, Sixth and Seventh Defendants, conspired together to benefit the First Defendant and to defraud and injure the Plaintiff by use of the unlawful means pleaded in paragraphs 9 to 14 above."

The submission is made by Mr Marshall that that paragraph is fatally flawed because it does not allege against any of the defendants that they intentionally defrauded and injured the plaintiffs, that their activities were directed against the plaintiffs. I do not wish to be pejorative with that submission, but I find myself quite unable to describe it as other than a submission wholly without any sort of merit. It is manifestly plain, on reading this statement of claim as a whole, that the allegation is that the defendants and each of them in- tended to injure these plaintiffs by depriving them of money to which the plaintiffs were entitled in the course of their business dealing. The allegation is that the defendants obtained vehicles at a price which had been deflated in consequence of the seventh defendant's activities as an employee of the plaintiffs. In my judg- ment this statement of claim read as a whole, and indeed thereafter analysed with some particularity, makes it perfectly plain what the allegations are and how the case is put against each of these defendants.

Mr Marshall contends that the same objection which he makes in relation to the charges of conspiracy can be made in relation to the allegations involving a constructive trust. Again, in my judgment, what is said about constructive trust in the pleading makes it plain to each of these defendants how the case is put against them. In order, however, to make the situation abundantly plain the plaintiffs have supplied in the form that I earlier indicated further material allegations, whilst not conceding for one moment that they are all necessary.

His Honour Judge Rivlin said in the course of his judgment that he did not propose to give detailed rulings involving all the complaints that had been levelled against this pleading. He was concerned with the sugges-

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tion, as I am, that, if the pleading was thought by the defendants to be inappropriate, they felt at liberty to intervene as evidence was produced on the basis that the defendants took the view that the plaintiffs were not at liberty to adduce such evidence as the plaintiffs thought appropriate. I am sure now that the matter has been tested before this court that no attempt of any kind will be made by the defendants to "disrupt the pro- ceedings" -- a phrase that was apparently employed in the court below. Such an attempt would be inappro- priate and indeed unseemly.

For my part I am abundantly satisfied, this being an application for leave to appeal, that the full court would not entertain the submissions that have been made. Indeed, had it been appropriate to decide the appeal, as it might have been, by a court constituting only two Lords Justices, I am satisfied that that constitution would have taken the same view. I repeat what I said at an earlier stage, that this case should have been well into its hearing by now. The defendants did not take the opportunity that was open to them at a much earlier stage to attack this pleading, in particular when the matter came before Mr Simon Goldblatt QC. Now that it has come here, I express the view that the application is not only inappropriate and misconceived, it is one which should not been seen the light of day.

I would dismiss this application.

ROSE LJ

I agree.Among other matters, Mr Marshall criticises the allegation of conspiracy in paragraph 15A of the statement of claim as re-amended in September 1991 by order of Mr Justice Cresswell and the allegation about constructive trusts made in paragraph 18 of the statement of claim as re-re-amended on 4th Novem- ber 1992 by the order of Mr Simon Goldblatt QC on 9th October. Save in relation to delay, no objection was made by the defendants before Mr Goldblatt in relation to the re-re-amendment which he ordered. No appeal was made by the defendants against the orders of either Mr Justice Cresswell or Mr Goldblatt. Nor were any particulars sought by the defendants prior to trial in relation to those amendments as to which complaint is now made.

Mr Marshall submits that the defendants were entitled as a matter of law to hold their fire in relation to their complaints and criticisms of the statement of claim until the trial. It may be that as a matter of law that is so, but if parties to litigation choose so to act they should not be surprised if they get short shrift from the trial judge, particularly when, as here, the trial was estimated to last for some five weeks and was fixed very many months ago and particularly when, as here, the defendants, as appears from their amended defence served on 23rd October 1992, were apparently able sufficiently to identify and recognise the nature of the allegations which were made against them. Mr Marshall cited a decision of the House of Lords in Ashmore v Lloyd's, [1992] 2 Lloyd's Rep 1 and sought to gain some sustenance for his argument from it. For my part the tenor of the two leading speeches in the House of Lords seems to me to be entirely against him. I refer to two short passages. Lord Roskill at page 3 said this:

". . . in any trial Court it is the trial Judge who has control of the proceedings. It is part of his duty to identify the crucial issues and to see they are tried as expeditiously and as inexpensively as possible. It is the duty of the advisers of the parties to assist the trial Judge in carrying out his duty."

At page 6 Lord Templeman said this:

". . . where a Judge, for reasons which are not plainly wrong makes an interlocutory decision or makes a de- cision in the course of a trial the decision should be respected by the parties and if not respected should be upheld by an appellate Court unless the Judge was plainly wrong."

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Here the trial judge dealt with the matter robustly when it emerged before him. He was entitled to do so. I am wholly unpersuaded that he was arguably wrong, either plainly or at all.

I too would dismiss this application.

Application refused with costs on an indemnity basis to be taxed immediately and paid forthwith.

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