A Great Day Out at the Royal Courts of Justice

Kedleston Voice objected to the outline planning application by Catesby Estates Ltd., submitted in 2014, for 400 houses on agricultural land owned by the Curzon Estate off Kedleston Road in Derby. This was refused by Amber Valley Borough Council. Catesby then did what most developers do in such circumstances, they applied in 2015 for half the number of houses on half the area of the previous application and Kedleston Voice again objected. Amber Valley failed to consider this within the prescribed timescale. Catesby immediately appealed the decision on the first application and the failure to determine the second. The principal objection of Kedleston Voice to both applications was the effect on the setting of the Grade I listed Kedleston Hall. In this we were supported by English Heritage (now Historic England) and the National Trust.

The Public Inquiry on the Appeals took place in July 2016 before Planning Inspector John Gray. After a seven day hearing, in which Kedleston Voice appeared as a Rule Six party, putting them on an equal legal footing with Amber Valley and Catesby. Again the principal objection was the setting of Kedleston Hall. Unfortunately neither Historic England nor the National Trust attended the Appeal. Planning Inspector Gray’s decision was a novel interpretation of setting viz “if you can’t see the proposed development from the historic asset in question, you can build the development”.

Kedleston Voice debated long and hard whether to go for a statutory review (the correct term for what is usually known as a judicial review) of this decision. To achieve permission to go to the High Court for a statutory review, the Claimant has to pass a Permission Hearing that sorts the wheat from the chaff. Kedleston Voice is not an incorporated body nor a registered charity and to gain the required status to apply for a statutory review was a lengthy and costly process and time was not on our side. As an individual I could side step this bureaucracy and could likely get a Cost Protection Order limiting the costs we would be liable for if we lost (you hear of £30, 40, 50,000 etc. costs being awarded in the High Court). Fortunately Historic England joined us at the very last minute before the Permission Hearing as Planning Inspector Gray’s decision was leading to some strange interpretations on setting. One in Derby claimed that the setting of the Cathedral would not be affected because the view of the proposed development was blocked by an existing building. Believe it or not this proposed development carries the name “Cathedral View”! We got permission to go the High Court and surprisingly the Cost Protection Order for £5,000 for this “dodge” has become a well worn and problematical procedure. Thanks to all our supporters from far and wide, the £20,000 cost of a scheduled two day High Court hearing was raised (this includes the £5,000 if we lose).

So the 24 May 2017 dawned bright and clear, the train left Derby on time but with signal faults was 20 minutes late into St Pancras. There was 10 minutes to go before the 10.30 start when I arrived at the Royal Courts of Justice in the Strand. An imposing Victorian building, today it has a security system equivalent to a present day airport! So I made Court 18 located at the end of a long corridor on the first floor (I could see no lifts and loos seemed non existent on the first floor) with just 1 minute to spare. The public gallery, if you can call it that, was one and a half benches taking about 20 people in all – and they were full when I arrived with my son-in-law and Neil, the Kedleston Voice IT man. So our solicitor enquired of the Judge’s clerk whether we three could sit on the empty row in front of the barristers. As Claimant I was allowed to sit there but the other two were directed to the balcony, which from the dust hadn’t been used for years! We attracted a deal of interest!

The hearing is nothing like that on the TV. There is no examination or cross examination of witnesses, no exciting, gory details to be elicited. Simply four barristers putting forward the cases for and against to the Judge, Mrs Justice Lang D.B.E. Our barrister, Nina Pindham, had submitted two grounds for our contesting the decision of Planning Inspector Gray and only those two grounds could be considered and argued at the hearing.

The two grounds for challenge were: i) the Planning Inspector had incorrectly interpreted the question of setting ii) the Planning Inspector’s reasons for his decision were inadequate – paradoxically the barrister for Catesby had won an appeal a few years previously on these grounds and now it was being used against him!

Nina spoke for just over two hours setting out the common ground that all four parties agreed on, the background documents that were the basis for legal argument and then our two grounds for challenge. It was quite a performance – you try talking non stop for 2 hours on a highly complicated subject in that environment. The Judge, apparently known as “the teaching judge” because she helps the younger barrister through any difficult, stumbling parts of their presentation, was also helpful to Nina when once or twice things got a little difficult! Emma Dring, for Historic England, spoke for twenty minutes and then it was time for lunch and relief from those hard benches! Emma continued her presentation for a further 20 minutes or so after lunch starting on the dot of 2p.m. – the Judge has a reputation of being a strict timekeeper! Her arguments were based on Historic England’s publication The Setting of Heritage Assets – Historic Environment Good Practice Advice in Planning:3. This required explanation of the asset’s physical surroundings and a persons experience of the asset and how matters other than just visibility come into consideration.

Jacqueline Lean responded for the Defendant, the Secretary of State for Communities and Local Government, the employer of the Planning Inspector. She spoke for some 40 minutes attempting to justify that the Planning inspector had considered all the relevant aspects of setting before coming to the conclusion that visibility was the sole criterion. Whether Jacqueline is right or wrong depends on the Judge’s assessment of the written evidence submitted by all parties for the planning application and the Public Inquiry as well as the arguments put by the four barristers on the day.

Rupert Warren Q.C. spoke for a further 40 minutes on similar lines to Ms Lean. Possible not surprising because they are both in Landmark Chambers! But Rupert challenged the Historic England document referred to previously, on the grounds that you could get into an unsatisfactory circular argument by following the procedure for establishing setting.

The Judge then went off piste (normally Nina would then have been asked to summarise as the final speaker) by asking Emma to clarify the situation raised by Rupert. Emma explained the use of the Historic England procedure which did not require strict adherence to the sequence that Rupert had highlighted as giving rise to the circular argument. I anticipate the Judge saying something about Historic England “tidying up” their document in her judgement!

The Nina spoke for a further 20 minutes countering the arguments put by the opposition and reinforcing our case.

At 4.20p.m. the Judge declared she was reserving judgement as there were important issues to be considered and closed the hearing at the end of day 1 – yippee no day 2, late trains and hard benches! It could be the middle of June or even later before judgement is given.

Finally I must thank Nina and our solicitor, Lisa Foster for all the hard work that has gone into this case. Lisa in particular because against the odds she engineered the Cost Protection Order that made it possible for Kedleston Voice to even consider going further after the Permission Hearing.

And so ended the Great Day Out with the legal eagles unable to predict or even hazard a guess on the possible outcome!


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