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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Herold -v- Minister for Planning and Sea View Investments Ltd [2015] JRC 111 (21 May 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_111.html Cite as: [2015] JRC 111 |
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Planning - third party appeal against decision of the Minister dated 21 October 2014.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Clapham and Liston |
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Between |
Mary De Faye Herold |
Appellant |
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And |
The Minister for Planning and Environment |
Respondent |
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And |
Sea View Investments Limited |
Applicant |
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Mr G, Herold-Howes appeared for the Appellant.
Advocate D. Mills appeared for the Minister.
Advocate A. J. Clarke appeared for the Applicant.
judgment
the commissioner:
1. This is a third party appeal brought by the appellant ("Mrs Herold") under Article 114 of the Planning and Building (Jersey) Law 2002 ("The Planning Law") against the decision of the Minister for Planning and Environment ("The Minister") on 21st October, 2014, to grant planning permission to Sea View Investments Limited ("the applicant") for the development of seventeen residential units of accommodation on a site to be created by the demolition and aggregation of the three previously separate properties in Grouville known as Keppel Tower, Elizabeth Cottage and Maison du Roc. This is the second third party appeal brought by Mrs Herold in respect of this proposed development.
2. In the northern part of the development site is Keppel Tower, which was built in the 1780s and which is described in the internal memorandum of 31st March, 2014, from the Historic Environment Team within the Planning Department in these terms:-
"..the tower is significant as an integral part of a group of surviving Conway towers in Jersey that not only illustrates the changing political and strategic military history of the Island in the late 18th and 19th century, but represents a turning point in the history of defence strategy across Europe, and global trends in the history of war."
3. The internal memorandum goes on to state that the interest of the tower is currently diminished by the addition of early to mid-20th century buildings and associated alterations. The tower (but not the additional 20th century buildings) is a Grade 3 listed building.
4. The development site is bounded on the east by the beach "Les Grèves de la Rocque" and to the west the main road, La Grande Route des Sablons across which there are a number of detached residential properties.
5. To the south of the development site is Mrs Herold's property, Seymour Cottage, which is a Grade 4 listed building. In the same internal memorandum the Historic Environment Team describe the principal historic building at Seymour Cottage as the mid-19th century cottage which historically formed part of a group of fishermen's cottages and which traditionally have gable presence to the road and coast to aid protection from the prevailing winds and weather. That cottage has itself been extensively extended on the eastern (seaward) side (at the same ridge height) which they describe as the more modern north-south structure. The significance of the cottage is external and is derived from the principal historic building.
6. In its judgment of 16th January, 2014, (Herold-v-Minister for Planning and Environment and Sea View Investments Ltd [2014] JRC 012) ("the First Judgment") the Court said this in relation to the evolution of the plans for the proposed development:-
7. The original application was presented to the Planning and Application Panel on 1st March, 2012, whose members were split (three members for and three members against) and accordingly the application was referred to the Minister. Following a public meeting on 20th April, 2012, at which there was considerable opposition to the proposed development, including from the then Connétable and the Deputy of Grouville, the plans were amended to take into account concerns expressed by the Minister and at a further ministerial meeting on 12th October, 2012, the Minister determined to grant permission; the planning permit being issued on 31st July, 2013.
8. That decision was successfully appealed by Mrs Herold. Before turning to the First Judgment it is necessary to refer to the Island Plan and the most relevant policies.
9. On the Island Plan approved by the States on 29th June, 2011, (and revised on 17th July, 2014,) the development site lies within the "Built-up Area" and is within the "Shoreline Zone". Policy H6 concerns housing and development within the Built-up Area and states that proposals for new housing will be permitted provided that the proposal is in accordance with the required standards for housing; effectively a presumption in favour of development. Policy BE4 concerns development within the Shoreline Zone and states that within the zone, three types of development will not be approved:-
The policy further states that public access to and along the shoreline will be protected and enhanced where possible. It was not contended by Mrs Herold that the proposed development failed to comply with policy BE4. It would of course be subject to the usual general development considerations set out in a number of policies but the presence of both Keppel Tower and Seymour Cottage meant that Policy HE1 - protecting listed buildings and places - also applied. That we set out in full:-
10. In the first appeal the Minister had argued that Policy HE1 did not apply because it only applied to listed buildings (at that stage Keppel Tower and Seymour Cottage were only potentially listed buildings) and in any event, it gave neighbouring historic buildings less weight than historic buildings which happened to be the proposed development site. The court concluded (at paragraph 17) that Policy HE1 did apply to the application, not only in relation to Keppel Tower, which is on the development site, but also in relation to the adjacent Seymour Cottage.
11. In relation to the latter argument, the Court found (at paragraph 24) that policy HE1 does not contain any built in bias in favour of a potentially listed building on the development site as opposed to a potentially listed building, if any, on an adjacent site.
12. As to what is meant by the setting of a listed building, it said this at paragraph 18:-
13. The Court went on to find that whilst there was evidence that Policy HE1 had been considered in relation to Keppel Tower, there was no evidence "to indicate that the Minister considered at all the impact of the proposed development on the setting of the potential listed building Seymour Cottage, as is required by Policy HE1 nor as to how he balanced that against the other planning considerations which affected this particular proposal." Accordingly, the Court found that the Minister had acted unreasonably by failing to take into account a material consideration and the appeal succeeded on that ground. (Paragraph 30). The matter was referred back to the Minister for him to gather further advice as required and to consider the application again.
14. Although it was not necessary to do so, the Court went on to consider the other ground of appeal, namely the "oppressive mass of the proposed buildings" which, "by the increase in footprint height and proximity of Block A would dwarf Seymour Cottage" and, using the expression adopted by Mrs Herold "give the impression that the appellant is living in its shadow, prejudicing the amenities of the property and its grounds." (Paragraph 10). Quoting from paragraphs 35 - 40 of the First Judgment:-
15. It is fair to say, therefore, that, bar the issue of Policy HE1 and its application to Seymour Cottage, that Court would have dismissed an appeal on the ground of the oppressive mass of the proposed buildings.
16. Following the appeal the applicant commissioned a report from Absolute Archaeology (an English firm with knowledge of Jersey and who we understand had previously worked for the applicant in relation to this development) on the impact of the proposed development on Keppel Tower and Seymour Cottage, which report concluded:-
"...it seems that the characteristics that lend most weight to the association of setting with regard to Seymour Cottage are most notable from the roadside vantage point, whilst at present the heritage of this asset is not significantly showcased via the main coastal aspect (particularly due to the rendered façade on the coastal side). Therefore, it is considered that whilst [the development] site will have an undeniable visual impact on the Project Site and that this will change the way that the Heritage Asset, Seymour Cottage is experienced, the impact on setting may arguably enhance the way in which Seymour cottage is encountered and interpreted within its current setting which is one of eclectic architectural styles."
17. This report was submitted to the Planning Department on 4th February, 2014, with the request that the application (unaltered) be reconsidered. The Planning Department took advice from the Historic Environmental Team. In their internal memorandum of 31st March, 2014, (from which we have quoted above), they welcomed the opening up of Keppel Tower by the removal of the 20th century buildings and structures around it. In relation to Seymour Cottage, they said this:-
"At present there is a fragmented group of buildings adjacent to the northern boundary forming [the property immediately adjacent to Seymour Cottage]. A larger, higher structure has been proposed [Block A] in closer proximity to the northern boundary of Seymour Cottage and the rear wall of the principal building. This will have an impact on the setting of the Cottage ....
The principal building will have a new wall with an eaves height similar to the ridge height of the cottage, with duo pitch roof with ridge at 3.5 metres higher. Running the length of the boundary, this new building is at a greater scale than traditionally found in the locality. The close proximity of a three storey structure (excluding the basement) to this single storey structure will affect the setting in the longer views from the east.
The proposed granite gable is traditional in form, but its height and scale will be out of keeping with the current vernacular scale of such structures in the area.
There are no views supplied by the architect from the beach, but taken in the longer views from Seymour Slipway northwards Seymour cottage sits in an edge of coast eclectic mix of new and older dwellings. As such the contemporary development adjacent will not impact detrimentally on the setting of the Cottage architecturally, but the scale adjacent to the more vernacular Seymour Cottage in close proximity will affect the setting.
The impact of Block [A] on Seymour Cottage's setting will be detrimental in so far as the impact of the scale and proximity of the new Block's unfragmented form on the northern boundary in views from the east, and the larger gable to the western boundary in views locally from the west."
In fact there is only a one story difference between Block A (two stories and a roof) and Seymour Cottage (one storey and a roof).
18. They advised that this impact did not meet the presumption in Policy HE1 that proposals which do not preserve or enhance the special or particular interest of a listed building or place and their settings will not be approved. By way of mitigation, they said that this could be mitigated by reducing the scale and mass of the gable on to the main road forming the end of Block A and by reducing the height, scale and mass of Block A and its proximity to the site's southern boundary.
19. Following receipt of this advice and the representations received following the advertising of the application, the applicant submitted amended plans on 12th May, 2014. These amendments related solely to Block A (the block nearest Seymour Cottage) and involved the moving of the gable end facing the road further to the north away from Seymour Cottage, but not otherwise changing the scale and mass of Block A. The applicant stated that these amended plans allowed a gap of approximately 15.5 metres between this gable end and Seymour Cottage itself. These amended plans were then re-advertised. The representations (all objections) received were summarised in the Planning Department's report of 1st July, 2014, as follows:-
"Detailed submissions have been received from the original appellant, relating specifically to the Royal Court judgment and the position in relation to Policy HE1 of the 2011 Island Plan. These submissions are reviewed in more detail later in this Report.
All submissions raise objections, which relate to the following points.
The scale, mass and intensity is too large in its context, especially in relation to Seymour Cottage and its coastline location, and will form a precedent for other schemes to follow;
The alterations to deal with the impacts on the historic setting of Seymour Cottage fall short of the suggestions made in the HET consultation response, in particular the scale of the gable;
There will be a loss of privacy and harm to the amenities of the occupiers of Seymour Cottage;
Traffic impacts will be unreasonable'
The conclusion of the Royal Court judgment on the second ground was unsuccessful on such a narrow point, that the matter of general scale, form and amenity should be reconsidered.
The Minister is not the appropriate forum to reconsider the application as he may be prejudiced by his previous determinations;
Keppel Tower would remain obscured in views from the south;
The repositioned wing of Block A means the gable would be nearer Prospect House and will have an overbearing impact, and cause loss of privacy;
Flooding risk at surrounding properties will increase due to the basement excavations;
The Minister is on record as wanting greater input from local communities, and this is a prime example of such comments being ignored;
The CGI's are not clear or convincing, and a scaffold frame profile should be erected;
The agent has responded to a selection of these letters, and the relevant correspondence is included as background papers to this Report."
20. In its internal memorandum of 12th June, 2014, the Historic Environment Team, whilst noting the re-positioning of the gable, observed that the gable itself had not been reduced in mass or scale nor had any other changes been made to the remainder of Block A to deal with the arising issues of mass and scale, which in their view still affected the setting of Seymour Cottage:-
"As stated above there remains a concern that the mass and scale has not been ameliorated enough to offset the concerns about the impact on the historic environment and specifically the setting of Seymour Cottage".
21. The Planning Department's report of 1st July, 2014, recommended that the application be approved. The report dealt in detail with the impact of the proposed development on the setting of Seymour Cottage (and Keppel Tower) but in summary, it made the following points:-
(i) The key thread of all the submissions was the understanding that Seymour Cottage was, and still is, part of the coastal grouping of fishermen's cottages which sit gable on to the sea in historic ownership plots and as the Historic Environment Team noted that is still a discernable pattern at the site and in the locality.
(ii) The applicant acknowledged that the views from the cottage would be altered, but it would not be impaired by the new development. Whilst the development may have an impact which would change the way Seymour Cottage is experienced, it argued that this experience may be enhanced by the development, which is already in an area with eclectic architectural styles.
(iii) Whilst acknowledging the advice from the Historic Environment Team, all the submissions acknowledged that Seymour Cottage already had a compromised setting by 20th century structures attached to it and the immediate coastal strip.
(iv) In key views the visual context of Seymour Cottage will be altered, but these alterations would be limited and must be assessed against today's context. When arriving south from the main road, the only loss of historic visual context and connectivity between historic properties will be the glimpsed view of the very upper element of Keppel Tower. The other visual links will remain and a new building will remain in the contextual view, in the same manner that the various existing historic properties are not currently perceived in individual isolation. When arriving from the north, the visual link with the gable will be retained and, if anything, become more prominent as the application includes the introduction of a pavement which will enhance the line of sight to the focus directly on the gable of Seymour Cottage.
(v) The views from the foreshore are heavily compromised at present, with the north to south modern wing of Seymour Cottage continuing to block the views of the fisherman's cottage behind. Although the whole of Seymour Cottage is listed, it is clear that the historic interest is in the mid-19th century cottage retaining its exterior features and character.
(vi) In wider views, the scale of Block A would appear a full storey higher than Seymour Cottage, but this is not an uncommon relationship in an eclectic coastal strip. Even if Block A were reduced in scale or moved away from the mutual boundary, an observer on the foreshore would still not be able to identify the historic cottage.
(vii) For these reasons, the impact of the development on the setting of Seymour Cottage was considered to be a minor adverse impact. It was necessary to consider Policy HE1 against the development as a whole and to assess the issue of the setting of listed buildings in a comprehensive fashion against the whole development. Whilst the minor adverse impacts on the setting of Seymour Cottage were acknowledged, these were considered to be offset to a significant degree by the major beneficial works to enhance the setting of the key heritage asset, Keppel Tower.
22. At the ministerial meeting on 11th July, 2014, the Minister decided to defer determining the application so that he could view a scaffold profile of the southern section of Block A in order to get an appreciation of the proximity of Block A to Seymour Cottage, and an indication of physical heights (ridge and eaves). This was undertaken on 21st July, following which the Minister confirmed that he was not content with the scale and form of the gable of the proposed Block A, nearest the roadside. The reasons for the Minister's concerns were two-fold:-
(i) The impact of the gable on the public view of Keppel Tower from the south, where it currently be seen in conjunction with Seymour Cottage, as an important visual link, relevant to the historic setting of Seymour Cottage; and
(ii) The physical proximity, scale and form of the gable having an overbearing impact on the rear amenity space of Prospect House (immediately across the road from the proposed gable) and so being harmful to the amenities of that property.
23. Amended plans were submitted on 1st August, 2014, which allowed for the reduction in the massing of the west gable of Block A to a single storey with a gap of 14.5 metres between it and Seymour Cottage. In its internal memorandum of 20th August, 2014, the Historic Environment Team, whilst noting the reduction in the gable height (but not its width), pointed out that no other changes had been made to the remainder of Block A to deal with the issues of mass and scale in respect of which they reiterated their earlier concerns.
24. Following further advertising and representations (again all objections), the Minister decided to approve the application on 25th September, 2014. In the reasons given for his decision, he noted the response from the Historic Environment Team and confirmed that he had reviewed the impact on the setting of both Seymour Cottage and the other listed buildings in the vicinity of the site. He was content that any impacts will not be sufficient to affect their historic interest or character.
25. Mrs Herold was, with the leave of the Court, ably represented by her grandson, Gregory Herold-Howes. The first ground of appeal was that there had been no or no proper reason given for the approval. The Minister had not explained why he had not followed the advice of the Historic Environment Team and their recommendations had been disregarded with no reasonable justification. Furthermore, the Minister had not explained why the enhancements to Keppel Tower were of greater importance than the protection of other listed buildings, including Seymour Cottage.
26. However, Mr Herold-Howes accepted that it would be upon consideration of the second ground of appeal that the appeal would be determined, namely that the Minister's decision to grant planning permission was unreasonable. We think he was right to do so.
27. The adequacy of reasons for the grant of a permission will depend on the circumstances of each case, but in general terms, the reasons should carry sufficient information to enable the applicant or third party to understand why the application has been granted or refused (see Anchor Trust v Jersey Financial Services Commission [2005] JLR 428 at paragraph 112.) After a lengthy preamble (in which the Minister made reference to the previous judgment of the Royal Court and the advice from the Historic Environment Team) the reasons for the granting of permission were given as follows:-
"Reasons for Decision
The proposed development has been amended to address concerns raised and is considered to be acceptable having due regard to all of the material considerations raised. In particular, the development has been assessed against Policies GD1, GD3, GD5, HE1, HE5, H6, BE4 and WM1 of the Jersey Island Plan 2011. In this case, having regard to the character and grain of the area, and the scale, form and architecture of the proposal, alongside the full package of works including to the Martello tower, the proposed development is regarded as acceptable because it is in the Built Up Area, in accord with the Spatial Strategy, does not harm the Shoreline Zone objectives, does not detract from the amenities of the area and provides enhancements to the urban form and historic environment.
The impact on the setting of individual Listed Buildings has also been considered and found to be acceptable particularly when balanced across the impacts on all Listed Buildings, and other planning considerations within the application.
In addition, the representations raised to the scheme have been assessed. It is considered that the proposal does not have an unreasonable impact on amenities of neighbours or the area generally.
As such, a balanced assessment of the application concludes that it accords with the terms of the policies within the Jersey Island Plan 2011. The representations received regarding the impact on Seymour Cottage have been fully assessed. The Minister considers that the proposal would not adversely affect the historic interest of this Listed building or its setting. If a minor adverse impact upon this Grade 4 building was accepted this would be balanced by the significant positive benefits to the Grade 3 Keppel Tower."
28. It is clear from this that the Minister has considered the representations (objections) made, the relevant policies and in particular, in relation to Policy HE1, the impact of the proposed development upon the setting of the listed buildings, both on and adjacent to the development site.
29. In addition to the written reasons given by the Minister, it is permissible to look beyond those to the report of the Planning Department, upon which the decision of the Minister was based. The point arose in Tesco Stores Limited v Perth and Kinross Council [2014] CSOH 153, a case involving the judicial review of a decision of a planning authority to remove a condition ancillary to the grant of planning permission. Lord Glennie said this at paragraphs 46 and 47:-
30. There were two aspects of the Planning Department's report that the Minister did not accept after viewing the scaffold profile. Subject to that, it can be assumed that the Minister would have followed the reasoning in that report, in particular in relation to Policy HE1 and the impact of the proposed development upon the setting of Seymour Cottage.
31. Furthermore, there is no question that Mrs Herold was a well-informed reader. She had been closely involved in opposing the application from the outset. There was extensive correspondence between her and the Planning Department, to which we have not referred. She attended all of the ministerial meetings and indeed, prosecuted a successful third party appeal. It cannot therefore be said that she has been prejudiced by any failure to provide an adequately reasoned decision by the Minister.
32. Turning to the substantive ground of appeal, this centred on the advice of the Historic Environment Team, which maintained its position that the changes made to the plans did not address its initial concerns as to the impact of the mass and scale of Block A upon Seymour Cottage. The Historic Environment Team carried out an expert appraisal and their advice, said Mr Herold-Howes, was of critical importance. We would summarise the submissions put forward by Mr Howes in this way:-
(i) The first internal memorandum from the Historic Environment Team identified a number of deficiencies with the proposed development and found a number of areas in which it failed to comply with the Island Plan:-
(a) "i. The close proximity of Block A to the northern boundary of Seymour Cottage will have a detrimental impact on the setting of the cottage;
(b) ii. The close proximity of the two storey structure of Block A against the single storey structure of Seymour Cottage will affect the setting in the longer views from the east, as will Block A's unfragmented form,
(c) iii. The proposed granite gable of Block A, whilst traditional in form, is of a scale and height which is out of keeping with the vernacular of such structures in the area; and
(d) iv. The unfragmented form of the proposed development as a whole will have a detrimental impact upon the setting of a number of protected buildings and how they are perceived from their primary viewpoints, being La Grande Route des Sablons and from the beach.
(ii) These four points, each of which could have been relied upon to justify refusal on the grounds of incompatibility with the Island Plan, together form compelling reasons why the proposed development should have been rejected.
(iii) The Historic Environment Team advised as to how the impact upon Seymour Cottage could be ameliorated by reducing the scale and mass of the gable forming the end of Block A and by reducing the height, scale and mass of Block A and its proximity to Seymour Cottage. Whilst the gable was moved away from Seymour Cottage and its height reduced, no changes whatsoever were made to address the mass scale and proximity of the remainder of Block A.
(iv) The Planning Department's argument that the later extension to the 19th century cottage could dominate some views from the beach and that the impact of the proposed development on heritage interest was therefore diminished, failed to stand up to scrutiny because the whole of Seymour Cottage is listed and elements of a listed building cannot simply be disregarded by the Planning Department in order to justify its arguments.
(v) The Planning Department's statement that it was not uncommon for there to be a full storey height different between neighbouring buildings on the coastal strip, whilst true, failed to point out that it was not just the height difference that is relevance to this sort of assessment but also the overall bulk of the proposed development which in this case continues uninterrupted at an excessive height for over sixty metres. Such an incongruous relationship is not only unusual on Grouville's coastal strip, but probably unique.
(vi) Too much emphasis was given to the need to improve Keppel Tower by creating an open space around it, so that too much development was then compressed into the remainder of the site, increasing its bulk. Unrealistic development expectations have exacerbated this problem, creating a false tension between enhancing the tower and preserving Seymour Cottage. A sensible development would improve the former and respect the latter. Instead one historic building may benefit, but the direct consequence is a worsening of the amenities of neighbouring listed buildings and other adjoining properties, including Seymour Cottage. Any sense of balance has been lost.
(vii) It would appear that the Minister decided the improvement to Keppel Tower justified damaging the historic environment of Seymour Cottage and its neighbours and there is nothing in the Island Plan policies that suggests that the interests of one listed building should outweigh those of another.
33. Mr Herold-Howe argued that the test for the Minister arising from Policy HE1 is strict: he has an obligation to protect heritage assets by ensuring the proposals for the development "will preserve or enhance the special or particular interest of a listed building or place and their settings." Any proposal which did not do so "will not be approved".
34. In all the circumstances, Mr Herold-Howes submitted that the Minister's decision to grant planning permission for the proposed development was unreasonable. The duty of the Department and its officers was to the Island and the public, not to over-ambitious developers whose interests were solely financial. The present proposal was not a sensible outcome as the weight of opposition to the development demonstrated. The application split the Planning Panel and it is highly possible that had the Panel been informed of the advice subsequently given by the Historic Environment Team it would have rejected the application. That team said that the proposed development did not comply with the policies of the Island Plan, whose presumptions offer protection to listed buildings and their settings and the Minister's disregard for the findings of the Historic Environment Team was unjustifiable. There had been an overwhelming amount of public opposition to the development, as well as opposition from political figures such as Deputy Labey and the Constable. The National Trust also voiced its opposition. We were invited to conclude that the decision to approve the proposed development was outside of any margin of appreciation afforded to the Minister and was therefore so wrong as to be unreasonable.
35. There are two constituent parts to the well-established Fairview/Token test which the Court of Appeal recently reminded us of in Minister for Planning and Environment v Hobson [2014] JCA 148 at paragraph 66:-
36. After analysis of the test of unreasonableness, the Court of Appeal concluded at paragraph 76:-
37. Looking at the application generally, the members of the Court found themselves in the same position as the Court hearing the first appeal, in that, if we had been deciding the application ourselves, we would have unanimously refused it, for the same reasons as set out in paragraph 37 of the First Judgment (set out above). But that is not the test. We have to allow a margin of appreciation to the Minister.
38. Taking into account the submissions of Advocate Mills for the Minister and Advocate Clarke for the applicant, we would summarise the arguments for concluding that the Minister's decision fell within the margin of appreciation as follows:-
(i) The Court had made it clear in the First Judgment that, bar the issue of Policy HE1 and the impact of the proposed development on the setting of Seymour Cottage, it would not have struck down the Minister's decision on account of the "oppressive" mass of the proposed development. It would be inconsistent and therefore unjust for this Court to reach a different view.
(ii) Having had the matter referred back to him by the Court, the Minister did give careful consideration to Policy HE1 and in particular, the impact of the proposed development on Seymour Cottage.
(iii) Absolute Archaeology and the Historic Environment Team undoubtedly have expertise on historic environmental matters that would go beyond the knowledge of the Minister but on the issue of the impact of the proposed development on the setting of the listed buildings involved, this was matter of judgment for the Minister to decide; it is not the province of experts.
(iv) Whilst the whole of the property Seymour Cottage was listed, it was reasonable to regard the 19th century fisherman's cottage, the gable of which abuts on to the main road, as the principal listed building, as did both the Historic Environment Team and Absolute Archaeology. That cottage is obscured from the east by the later north-south extensions and the view of it from the road would not be impaired by the proposed development. If anything the view from the road was enhanced.
(v) Article 19(2) of the Planning Law provides that the Minister shall grant planning permission if the proposed development is in accordance with the Island Plan not individual policies within that Plan. The Minister did not find any conflict between Policy H6 (which provides a presumption in favour of development in the Built-Up Area) and Policy HE1 (which protects listed buildings and places) because he found there was no adverse impact on the setting of Seymour Cottage, but he went on to say that to the extent that there was an adverse impact (as accepted by the Planning Department in its report) this would be balanced by the significant positive benefits to Keppel Tower, which is a Grade 3 listed building. Bearing in mind that Policy HE1 has to be applied to the application as a whole, this was a reasonable approach.
(vi) Having visited the site to view the scaffold profile the Minister did require a change that was relevant to the historical setting of Seymour Cottage by stipulating a reduction of the height of the gable of Block A in order to retain the visual link between Seymour Cottage and Keppel Tower.
39. Whilst the Court could see the force of those arguments, which we accept save to the extent set out below, we have concluded that the Minister's decision falls outside the margin of appreciation that the Court should allow him for the following reasons:-
(i) In finding that there was no adverse impact on the setting of Seymour Cottage, the Minister applied the wrong test. Policy HE1 provides that proposals which do not "preserve or enhance" the setting of a listed building "will not be approved" and so the test is whether the proposed development preserved or enhanced the setting of Seymour Cottage.
(ii) To say that a setting is not adversely affected is not the same as saying that its setting is preserved. To "preserve" is to maintain a state of things (the Shorter Oxford English Dictionary) and there is no question in the Court's mind that the setting of Seymour Cottage as against the development site was not being maintained because of the mass and scale of Block A (irrespective of the gable), a larger and higher structure in much closer proximity to Seymour Cottage than what is there now and of a greater scale than is traditionally found in the locality, effectively dwarfing it. The Historic Environment Team made and repeated this point.
(iii) Both the Planning Department and, in our judgment, the Minister accepted that the setting of Seymour Cottage would not be preserved, which they traded off against the enhancement of the setting of Keppel Tower. The fact that at one end of the development site the setting of one listed building was enhanced does not, in our view, justify failing to preserve the setting of another listed building adjacent to the other end of the site. Policy HE1 does not permit such a trade-off; each listed building is entitled to the same protection, i.e. to have its setting preserved or enhanced.
(iv) In our view, the impact of the proposed development upon the setting of Seymour Cottage in so far as it related to Block A is not minor and it cannot be said that its setting in this respect is preserved. It manifestly is not being preserved.
(v) The Minister was mistaken in two ways. Firstly he applied the wrong test and secondly it was clear that the setting of Seymour Cottage would not be preserved by the proposed development, let alone enhanced. He was also mistaken in considering the impact as minor. That being the case, irrespective of the enhancement of the setting of Keppel Tower, Seymour Cottage was entitled to the protection of Policy HE1, which mandated that such an application "will not be approved". Approving the application in breach of the express terms of the policy was unreasonable.
40. We accept, as Advocate Mills pointed out, that it is not unusual for planning policies to pull in different directions. He referred to R v Rochdale MBC ex parte Milne [2001] 81P. & C.R.27, in which Sullivan J was construing a provision in similar terms to Article 19(2) of the Planning Law:-
41. A legalistic approach to the interpretation of development plan policies is to be avoided (see R v Secretary of State for the Environment ex parte Webster [1999] J.P.L.1113 at 1118), but we cannot regard Policy HE1 as a minor policy that has been infringed and we have taken into account how firmly it sets its face against proposals that do not "preserve or enhance" the settings of listed buildings - such proposals "will not be approved". It could not be clearer. That is not to say that the presumption of development under Policy H6 is to be overridden. This site will still be developed for many residential units of accommodation. It is simply that what is a large development must preserve or enhance not only the listed building at its northern end but also the listed building adjacent to its southern end.
42. Article 19(3) of the Planning Law permits the Minister to grant permissions that are inconsistent with the Island Plan, but there has to be justification for doing so. The Minister has not approached the matter in this way and in any event, depriving one listed building of protection for its setting because another listed building's setting is enhanced is not justifiable.
43. For all these reasons, the appeal is allowed. Accordingly we order the Minister to cancel the planning permission.
