C O N T E X T 9 2 : N O V E M B E R 2 0 0 5 9 councillors who were members of both the CAG and the planning committee did not arrive at the committee meeting in June with closed minds. However, the Court held that that was precisely the problem: ‘Although the CAG’s remit was to consider only the conservation implications of the applications, its conclusion was expressed in simple terms of support for the applications, without any qualification. Both the note of the CAG meeting on 27 May and the report to the planning committee on 17 June state that the CAG “continued to support” the applications. Moreover, although there is nothing to show that a vote was taken within the CAG, there is equally nothing to show that any of the members present dissented from that conclusion: the support appeared to come from all those present, including the three members who were also members of the planning committee. When it came to the meeting of the planning committee, nothing was said about the limited function of the CAG or about the need for those with dual membership to put on one side the support expressed in the CAG, and to examine all the relevant planning issues before reaching the planning decisions. ‘In those circumstances, I take the view, though not without a degree of hesitation, that a fair-minded and informed observer would conclude that there was a real possibility of bias, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into the support for the applications in the context of the planning committee’s decisions.’ The court accordingly found in favour of the objector, and quashed the decisions on that ground – and also, incidentally, on each of the other three grounds – even though the judge explicitly recognised the importance attached to the development for conservation reasons.They were accordingly sent back to be re-determined by the council. The first lesson from this case is that, while dual membership of a conservation advisory group and a planning committee can have advantages for both bodies, it does bring with it certain conflicts of interest. This was recognised in Enfield, in a report which drew attention to the situation that may arise where a member has commented publicly, and possibly voted, on a planning application at the conservation group – without the benefit of a report covering all relevant issues. That may then prejudice his or her position as a member of the planning committee subsequently considering the same matter, since conservation issues may be but one of a number of issues that need to be considered. The court thus concluded that it was not unlawful for there to be joint membership, but that all concerned should understand and acknowledge openly the need to ensure that participation in a specialist advisory group does not lead to any pre-determination of an application, which must be approached in the planning committee with an open mind and by impartial consideration of all the planning issues. Second, and very importantly, this case highlights a point that is sometimes (perhaps, by some, often) forgotten – namely, that there is more to life than conservation. As it happens, in the Enfield case, the conservation issues militated in favour of permission being granted, whereas highways and other issues indicated a refusal. Often they go the other way. But whichever way the various considerations point, they must be considered as a whole when an application is being finally determined. Thus it is perfectly proper for English Heritage, national and local amenity groups, special conservation committees, and of course individual residents, to put forward views based solely on the conservation issues involved in a particular proposal. So, for example, they may say that ‘the erection of an extension on the east side of the house will spoil that elevation and impair the overall interest of the building as the last unaltered villa of its kind in this area…’ That is a helpful and accurate viewpoint. But they should not continue, as so many do, “… and the application should therefore be refused.’ It may well be that the conservation issues are the only issues at stake, in which case the proposal should indeed be refused. But it may be that there are other considerations involved, pointing the other way. A proper conclusion might thus be that a proposal is slightly undesirable on conservation grounds, but hugely desirable for some other reason, so that on balance it should be permitted. Indeed, arguably, a specialist lobby group – whether in the interests of building conservation or the preservation of newts – is the last person to make a disinterested assessment of the overall merits of a proposal. It can fight its corner, but it must not seek to imply that its specialist interest is of necessity the only material consideration; it may be, but it may well not be. Enthusiasm, even fanaticism, has its place, but it must not be allowed to cloud mature, balanced judgment. Charles Mynors is a barrister in the Chambers of Robin Purchas QC in the Temple, and a visiting professor in the planning department at Oxford Brookes University.The fourth edition of his seminal book, Listed Buildings, Conservation Areas and Monuments: the Law of the Cultural Heritage, to be published by Sweet & Maxwell at the end of this year, has been completely rewritten to include all relevant new legislation and decisions of the courts since the previous edition, and to refer fully to Scotland and Northern Ireland as well as England andWales.
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