Case No: CO/3640/2014
Neutral Citation Number: [2014] EWHC 4114 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Friday 5th December 2014

Before :

NEIL CAMERON QC
(Sitting as a Deputy High Court Judge)
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Between :

	BEVERLEY ANNE GUINNESS and 
TIMOTHY WHITMORE NEWTON GUINNESS	Claimants	
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	THE SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT	First Defendant

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(Transcript of the Handed Down Judgment of
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The Second Claimant, Mr Timothy Guinness on behalf of both Claimants
Ms. Estelle Dehon (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 18th November 2014
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Judgment
NEIL CAMERON QC : 
Introduction

1.	This is an application for an order pursuant to section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the 1990 Act”) to quash a decision of 23rd June 2014 of an inspector appointed by the Secretary of State for Communities and Local Government. By that decision, the inspector dismissed an appeal made pursuant to section 20 of the 1990 Act against the Basingstoke and Deane Borough Council’s (“the Council”) decision to refuse to grant listed building consent to replace existing Crittall windows with new timber units at Widmoor Farm, College Lane, Ellisfield, Hampshire RG25 2QE.
2.	The Claim, as filed, was brought by Mrs Guinness with Mr Guinness named as ‘agent’. I give permission for Mr Guinness to be added as a claimant. 

3.	In brief, the Claimants rely on the following grounds of claim:
a)	The inspector failed to fulfil the statutory duty imposed by section 16(2) of the 1990 Act, in that she found that the existing windows and proposed windows were of equally poor design, yet found that the proposed windows would not preserve the building or its setting or any features of special architectural or historic interests which it possesses.
b)	Procedural unfairness or lack of due process
i)	The inspector stated that measured drawings were needed when the Council had agreed that they were not.
ii)	The inspector relied upon the fact that the photomontages were not scaled.
c)	Failure to take material considerations into account, namely:
i)	That the east façade of Widmoor Farm has minimal features of historic interest.
ii)	That the windows of historic interest on the south façade would be left untouched.
iii)	The fact that the proposed replacement fenestration reflects the vernacular of the area.
iv)	That the fenestration preferred by the Council would cause harm.
v)	The fact that no person or body objected to the proposal
d)	Irrationality or perversity
i)	The inspector unreasonably placed little weight on thermal efficiency gains that would arise if the new windows were installed.
ii)	The inspector displayed a prejudice or bias in favour of other means of achieving gains in thermal efficiency, which means are out of date.
iii)	The inspector placed disproportionate weight on design features with little impact such as putty and the width of glazing bars. 
 
The Background Facts
4.	The Claimants live at Widmoor Farm. 
5.	Widmoor Farm is a listed building which is described in the list entry as:
“C17, early C19, C20: Timber-framed house, with later brickwork cladding and recent extensions. Two storeys. The main (south) front was once symmetrical of 3 windows, but has an extension on the west side of 2 windows. Old tile roof, brick dentil eaves. Red brick walling in Flemish bond, first floor band, cambered rubbed arches, plinth Casements, cast-metal lights to the old part. Modern doorway.” 
6.	By an application received by the Council on 4th July 2013 the First Claimant applied to the Council for listed building consent for:
 “Replacement of existing Crittle (sic) windows, with ref to details sent 26th March 2013, ENQ 34585 with new timber units as agreed on site visit with Rachel White 10 May”
7.	The plans submitted in support of the listed building consent application included a location plan, a drawing entitled “Window Design, Chipandell purpose made joinery ‘Heritage’ style timber window” showing a number of alternative details of window mullions, jambs, glazing bars and other features, and a drawing of the elevations of Widmoor Farm, with an indication of which windows were proposed to be replaced. No scaled drawing showing the design of the proposed windows was submitted by the applicant, and the Council did not require that such a drawing be provided. The window design drawing was prepared by Chipandell Joinery. Mr Parrott of Chipandell Joinery acted as the First Claimant’s agent when submitting the listed building consent application. 
8.	The listed building consent application was considered by the Council’s officers acting under delegated powers.  The case officer dealing with the application was Ms Rachel White, who wrote a report to inform the decision making process. She wrote:
“Impact on the listed building
•	Proposals seek to replicate the fenestration pattern of the existing windows which as above is inappropriate to the host building and is overly C20 in detail.
•	The proposed double glazing units would differ from the existing crittle (sic) windows by virtue of

o	Wider glazing bars
o	Use of beads rather than putty which would give a broader and less defined profile to the glazing bars

o	Reflective qualities of double glazing
o	Use of spacers between paned (sic) is not a traditional detail 
•	Proposals would result in no enhancement to the historic character or appearance of the listed building but would compound the harm caused by the inappropriate form and detail of the existing windows for the reasons given above.”

9.	The listed building consent application was refused by a decision notice dated 17th September 2013. The Council relied upon one reason for refusal:
“The proposal would harm the historic character, appearance and significance of the listed building by virtue of the inappropriate form and detail of the proposed windows contrary to Section 12 of the National Planning Policy Framework (March 2012), and the associated English Heritage Historic Environment Practice Guide; and Saved Policy E2 of the Basingstoke and Deane Borough Local Plan 1996-2011.”
10.	Following refusal of the listed building consent the Second Claimant says that he became actively engaged in the case. The Claimants appealed to the Defendant against that refusal of listed building consent. The Defendant appointed an inspector to determine the appeal. 
11.	The Claimants submitted a document entitled “Full Statement of Case/Grounds of Appeal” in support of their appeal. The documents attached to the statement of case included a set of photomontages. Those photomontages showed the windows as proposed by the Claimants, and for comparison purposes, equivalent windows with fewer spacing bars and larger glass panes, as preferred by the Council’s officers.  The Claimants also submitted a series of photographs which showed the fenestration patterns of houses in Ellisfield.
12.	The Council submitted a hearing statement in which they argued that the proposed windows would have a detrimental impact on the listed building, stating:
“Cumulatively the above changes would result in windows that would be significantly different in appearance from the existing and subsequently this would have a significant impact on the appearance of the host building. This impact would be harmful by virtue of introducing a window style that would be non-traditional in terms of its detail, and of heavy appearance at odds with the light appearance of the existing windows, both modern and historic, and incongruous in relation to the host building. Consequently the proposed windows would fail to respect or conserve the historic appearance of Widmoor Farm, in particular in regards to the southern elevation where the historic character and integrity of the building is best preserved.”
13.	A hearing and site visit were held on 28th May 2014. 
14.	The decision letter by which that appeal was determined is dated 23rd June 2014. The appeal was dismissed.

The Decision Letter
15.	The inspector noted the extent of the proposals under consideration at paragraph 1 of the decision letter:
“The appellant explained at the Hearing that the replacement of the windows on the north elevation, although marked on the submitted plan, was not now to be included in the proposal. I have assessed the appeal on this basis.”

16.	The main issue was identified at paragraph 3 of the decision letter:
“The main issue is whether the proposed works would preserve the listed building or its setting or any features of special architectural or historic interest which it possesses, and if not, whether there are public benefits which would outweigh the harm.”
17.	The inspector set out her reasons, which included the following:
“7. That said, the design of the replacement windows is a considerable challenge because the proportions of the openings made for the Crittall windows constrain the possible patterns and proportions of the replacement windows.  In addition, on the south elevation the new windows would be seen in close juxtaposition with the delicate cast iron casements. In order to preserve the significance of the building, the new windows should have a degree of historic authenticity in their own right and be visually subordinate to the cast iron casements.

8. Typical joinery details were submitted, but they include options as to frame sizes and profiles. The submitted plans have no specific information about the proposed window pattern or the subdivision of the panes, although the appellant explained her intentions at the Hearing that there would be no top hung sashes. I was shown a sample window at the site visit and the appellant illustrated her preferred patterns in the grounds of appeal in the form of unscaled photomontages.

9. Although these montages do not show adequate detail, from these indications I conclude that the proposed timber frames would be likely to be bulky in size in comparison to the metal frames of the existing windows or in comparison to a traditional casement window. This would give the replacement windows and increased visual dominance, to the detriment of the special character and interest of the building. This would affect the internal and external integrity of the building overall.

10. The use of slim double glazed units in replacement windows is not ruled out by any of the advice given by the Council1 or by English Heritage2. There have been significant technological advances made in recent years by the manufacturers of double glazed units. Units with a depth of 8-12mm are now widely available and they are more reliable, with fixing methods which convincingly replicate the appearance of putty. Superficially applied glazing bars, as proposed in this case, lack authenticity and the spacers and beads would add to the bulky appearance and suburban character of the window.

11. In the absence of scaled measured drawings I am unable to assess whether the proposed windows would be appropriately subdivided into equal casements with vertically proportioned panes or that the casements and sub-frames would be the minimum size necessary, with the sub-frame set within the reveals of the window openings in the correct position. I note that there is a disagreement between the parties as to whether the casements should be divided into one-over-one or into smaller panes. This visual assessment can only be resolved by the use of scaled elevations and as no specific design has been formally put before me, this is a matter to be resolved between the parties.
12. Whilst joinery details could be required by condition, the design of the windows is so unresolved that I am unable to discharge the duties under the Act, which requires that special regard (my underlining) shall be had to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it has.

13. I accept that the existing Crittall windows are very poor quality, but the proposed replacements would be likely to have the appearance of a utilitarian standard window type to be found in any unlisted or new building, which would not take into account the special historic character of the building. The replacement of the existing windows with an equally poor design, albeit different, would not preserve the historic interest of the building.

14. Both parties have put before me a number of appeal decisions, which I have carefully read. The issues and circumstances of these vary widely and nothing in these decisions persuades me that the proposed replacement windows would be acceptable in this case.

15. I have had regard to the benefits of improved thermal performance to the occupiers of the building and recognise that there would be a small incremental contribution to reducing carbon emissions. However, the same benefits would be gained from alternative appropriately designed replacement windows, so the benefits would not outweigh the harmful impact of the proposed windows in this case.

Conclusions
16. As I have set out above, given the lack of scaled measured drawings, I am not satisfied that the requirements of the Act can be fulfilled. On the basis of the information put before me I conclude that the proposal would fail to preserve the building and would harm the significance of the building.

Footnote 1: SPG. “The Historic Environment: Listed Buildings”
Footnote 2:  English Heritage has published recent guidance on their website “I want to alter my windows” 2013, which accepts the replacement of non-historic windows with new windows of an appropriate style, with integral double glazing subject to their detailed design (emphasis in original).”

The Legal Framework
18.	Under section 63(1) of the 1990 Act a challenge to an inspector’s decision can be brought on the following grounds:
“(1) If any person is aggrieved by any such order or decision as is mentioned in section 62(1) and wishes to question its validity on the grounds—
(a)  that it is not within the powers of this Act, or
(b) that any of the relevant requirements have not been complied with in relation to it, he may make an application to the High Court under this section.”

19.	The principles governing consideration of an application to quash the decision of an inspector are well established and can, for present purposes, be summarised as follows: 
a)	The inspector must not act perversely.  In reaching a conclusion the inspector must not take into account irrelevant material or fail to take into account that which is relevant. The inspector must abide by statutory procedures. The inspector must not depart from the principles of natural justice or procedural fairness (Seddon Properties Ltd. v. Secretary of State for the Environment (1981) 42 P & CR 26 at pages 26-27). 
b)	The decision letter must be read fairly, as a whole and in a straight-forward manner without excessive legalism (Clarke Homes Ltd. v Secretary of State for the Environment (1993) 66 P. & C.R. 263 at pp. 271–272);
c)	The assessment of facts and weighing of considerations is in the hands of the decision maker. It is for him or her to attribute to the relevant considerations such weight as he or she thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense. (Tesco Stores Ltd. v. Secretary of State for the Environment [1995] 1 W.L.R. 759  at page 764H).
20.	Although those principles were established in relation to challenges brought under section 288 of the Town and Country Planning Act 1990, they apply equally to a challenge made under section 63 of the 1990 Act.
21.	The principles applying to consideration of procedural fairness in planning appeal procedures were set out by Jackson LJ in Hopkins Developments Ltd v. Secretary of State for Communities and Local Government [2014] PTSR 1145 at paragraph 62:
“62 From reviewing the authorities I derive the following principles: (1) Any party to a planning inquiry is entitled (i) to know the case which he has to meet and (ii) to have a reasonable opportunity to adduce evidence and make submissions in relation to that opposing case. (2) If there is procedural unfairness which materially prejudices a party to a planning inquiry that may be a good ground for quashing the inspector's decision. (3) The 2000 Rules are designed to assist in achieving objective (1)(i), avoiding pitfall (1)(ii) and promoting efficiency. Nevertheless the Rules are not a complete code for achieving procedural fairness. (4) A rule 7 statement or a rule 16 statement identifies what the inspector regards as the main issues at the time of his statement. Such a statement is likely to assist the parties, but it does not bind the inspector to disregard evidence on other issues. Nor does it oblige him to give the parties regular updates about his thinking as the Inquiry proceeds. (5) The inspector will consider any significant issues raised by third parties, even if those issues are not in dispute between the main parties. The main parties should therefore deal with any such issues, unless and until the inspector expressly states that they need not do so. (6) If a main party resiles from a matter agreed in the statement of common ground prepared pursuant to rule 15 , the inspector must give the other party a reasonable opportunity to deal with the new issue which has emerged.” 

22.	Section 16 (2) of the 1990 Act provides:
“(2) In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State 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.”

23.	A proposal which leaves the building or its setting or any features of special architectural or historic interest which it possesses unharmed, or which causes no harm to the significance of the heritage asset, can be said to preserve the significance of the asset.

Ground 1
24.	 The Claimants argue that the decision making process was irrational or perverse as at paragraph 13 of the decision letter the inspector held that the proposed replacement windows and the existing windows were of equally poor design. The Claimant’s contention is that if the proposed windows are of equally poor design to the existing their introduction would not cause harm to, and would therefore preserve the building or its setting or any features of special architectural or historic interest which it possesses, and that the inspector’s finding that that the proposed replacement windows would not preserve the historic interest of the building was therefore perverse or irrational in the Wednesbury sense. 
25.	In my judgment the approach taken by the inspector discloses no perversity or irrationality. 
26.	At paragraph 7 of the decision letter the inspector expressed her view, that in order to preserve the significance of the listed building the new windows should have a degree of historic authenticity in their own right and be visually subordinate to the cast iron casements.  At paragraph 9 the inspector set out her view that the proposed timber frames would be likely to be bulky in size in comparison to the metal frames of the existing windows or in comparison to a traditional casement window. She went on to say that those features would give the replacement windows an increased visual dominance to the detriment of the special character and interest of the building. 
27.	At paragraph 13 of the decision letter, the inspector expresses a view on the design of the proposed windows when compared with the existing, however that observation in relation to design, which is but one aspect of the assessment, has to be seen in the context of her findings at paragraphs 9 and 10 of the decision letter, and her specific finding at paragraph 13 that the replacement windows would not preserve the historic interest of the building.  At paragraph 16 of the decision letter the inspector concluded that the proposal would fail to preserve the building and would harm the significance of the building.  
28.	The inspector was entitled to and did come to her own conclusion on the issue of whether harm would be caused to the significance of the listed building. The inspector’s observation that the existing windows were of equally poor design to those proposed does not undermine her assessment of the impact of the proposal on the significance of the listed building.  Paragraph 13 of the decision letter reveals no perversity or irrationality. 

Ground 2
29.	The Claimants contend that there was procedural unfairness or lack of due process as the inspector stated that measured drawings were needed when the Council had agreed that they were not and as the inspector relied upon the fact that the photomontages were not scaled.
30.	The statement made by the inspector, at paragraph 8 of the decision letter to ‘unscaled photomontages’ was accurate, in that the photomontages did not include an indication of scale.  
31.	The inspector did not state that measured drawings were needed. At paragraph 11 of the decision letter she stated that, in the absence of scaled measured drawings, she was unable to assess whether the proposed windows would be appropriately subdivided into equal casements with vertically proportioned panes or that the casements and sub-frames would be the minimum size necessary, with the sub-frame set within the reveals of the window openings in the correct position. 
32.	There was no breach of the first principle set out by Jackson LJ at paragraph 62 in Hopkins Developments; the Claimants knew the case they had to meet, it was set out in the decision notice and the Council’s hearing statement. The Claimants prepared photomontages and other evidence and presented their case at the hearing to address the issues raised by the Council.
33.	The inspector referred to the absence of scaled measured drawings at paragraph 11 of the decision letter when assessing whether the proposed windows would be appropriately subdivided. The Claimants were aware that this issue was a source of disagreement between them and the Council and had made a decision to present their evidence in the form of photomontages. There was no procedural unfairness, and therefore the second principle set out by Jackson LJ in Hopkins Developments does not arise.  In any event the reference to scaled drawings at paragraph 11 of the decision letter follows paragraph 9, in which the inspector had come to a view on the impact of the proposed windows based upon the submitted photomontages. As a result the Claimants suffered no prejudice as a result of not having submitted scaled drawings.
34.	The Claimants do not succeed in establishing procedural unfairness. They had ample opportunity to put their case. They chose to present photomontages, and not scaled drawings. The Claimants’ appeal was considered on the basis that it was presented. This ground fails. 
Ground 3
35.	The Claimants contend that there was a failure to take material considerations into account, namely:
i)	That the east façade of Widmoor Farm has minimal features of historic interest.
ii)	That the windows of historic interest on the south façade would be left untouched.
iii)	The fact that the proposed replacement fenestration reflects the vernacular of the area.
iv)	That the fenestration preferred by the Council would cause harm.
v)	The fact that no person or body objected to the proposal
36.	A distinction can be drawn between consideration which a statute requires a decision maker to take into account, and other material considerations. It is not necessary for a decision maker to refer in a decision letter to every consideration in the second category.  As stated by Forbes J in Seddon Properties  at page 28, “Because the letter is addressed to parties who are well aware of all the issues involved it is not necessary to rehearse every argument relating to each matter in every paragraph.”.
37.	The inspector refers to the development of Widmoor Farm in paragraph 4 of her decision letter, and describes the original three bay timber framed farmhouse and the various wings and other extensions that have been added. It is clear from the decision letter that the entirety of the building is considered. In paragraph 7 of the decision letter the inspector states “In addition, on the south elevation the new windows would be seen  ...”; the use of the words ‘in addition’ is a clear indication that all elevations and other aspects of the building were considered.
38.	The inspector, at paragraph 7 of the decision letter, makes express reference to the fact that, on the south elevation, the proposed new windows would be seen in close juxtaposition with “… the delicate cast iron casements.” There is no substance in the suggestion that the inspector failed to take into account the fact that the windows of historic interest on the south façade would be retained; the inspector makes express reference to them and their juxtaposition with the proposed new windows.
39.	There was no obligation to refer to the fact that buildings in the vicinity had similar fenestration. As established in Seddon there is no requirement to rehearse every argument.
40.	At paragraph 11 of the decision letter the inspector noted the disagreement between the Claimants and the Council as to whether the casements should be divided into ‘one-over-one’ or into smaller panes.  Whether the Council’s proposed approach was acceptable or not did not fall for determination and there was no failure to take into account a material consideration. The inspector was called upon to evaluate and make a decision on the proposal as submitted, which she did.
41.	There was in the circumstances no requirement to state that no person or body had objected to the scheme. As with many such applications for listed building consent the main determining factor was the impact on the listed building. The assessment of whether the proposals preserved the significance of the listed building as a heritage asset called for expert assessment and judgment. The inspector carried out that assessment and exercised that judgment. 
42.	This ground of claim fails.
Ground 4
43.	The Claimants argue that the decision was irrational or perverse in the Wednesbury sense. They contend that:
i)	The inspector unreasonably placed little weight on thermal efficiency gains that would arise if the new windows were installed.
ii)	The inspector displayed a prejudice or bias in favour of other means of achieving gains in thermal efficiency, which means are out of date.
iii)	The inspector placed disproportionate weight on design features with little impact such as putty and the width of glazing bars. 
44.	Issues (i) and (iii) rely upon an argument that too little or too much weight was placed on certain factors. 
45.	 The benefits of thermal efficiency were taken into account by the inspector at paragraph 15 of the decision letter and weighed in the balance. The weight given to that factor was a matter for the inspector and the approach taken discloses no irrationality or perversity.
46.	At paragraph 10 of the decision letter the inspector expressed her view that superficially applied glazing bars lack authenticity and the spacers and beads would add to the bulky appearance and suburban character of the window. The weight given to those matters was a matter for the inspector and was not irrational or perverse.
47.	During his oral submissions and in his speaking notes, Mr Guinness refers to the approach taken by the City of Edinburgh Council when considering applications for double glazed window units in the New Town and Old Town in that city.  The Claimants rely upon this information in support of the contention that the inspector was biased in favour of some other form of thermal efficiency which is out of date. As Mr Guinness accepted the information relating to practice in Edinburgh was not put before the inspector. There can be no valid criticism of the inspector’s decision on the basis that she failed to refer to or consider matters relating to practice in other parts of the United Kingdom which were not put before her. 
48.	Mr Guinness expressed a general concern that there appears, in his view, to be a prejudice amongst planning officers and planning inspectors against installation of double glazed windows in listed buildings.  In his oral submissions, as set out in his speaking note, he suggested that such prejudice is or may be, based upon a lack of appreciation of the fact that the timber framed double glazed windows which are now available are very different from the PVC and ‘very clunky’ double glazing of the past.
49.	This case concerns a challenge to one particular decision by one inspector, based upon the limited grounds set out in section 63(1) of the 1990 Act, and does not offer the opportunity for a general review of the practice adopted by local authority officers and planning inspectors. 
50.	There is no evidence to support the submission that the inspector displayed bias or prejudice towards any particular means of achieving thermal efficiency.  
51.	I reject this ground of claim.
Conclusion
52.	For the reasons I have given, the application is dismissed.