Appeal to Secretary of State — Inspector’s report — Decision of Secretary of State accepting report — Reasons for decision — Criteria for reasons — Conservation area — Listed buildings — Whether reasons adequate — Whether substantial prejudice
On December 19
1989 Simon Brown J dismissed an application to quash the decision of the
Secretary of State for the Environment to grant planning permission for the
redevelopment of the ‘Mappin & Webb’ site in the City of London adjoining
the Mansion House and the Bank of England. The proposed development was
designed by the architect, James Stirling, and involves the demolition of a
number of listed buildings in a conservation area. The inspector, who held the
inquiry into the second of two schemes proposed by the developers, in a lengthy
and fully reasoned report, recommended that planning permission be granted. By
his decision letter of June 7 1989 the Secretary of State repeated the
inspector’s conclusions and granted planning permission. The appellants, Save
Britain’s Heritage, appealed against the decision of Simon Brown J, who had
decided that the Secretary of State, in adopting all the essential links in the
inspector’s complex chain of reasoning, had given adequate reasons in his
decision letter.
1. There are
two considerations in setting the standard or quality of reasons required by
rule 17(1) of the Town and Country Planning (Inquiries Procedure) Rules 1988.
(1) Where there is a right to contest a decision before another tribunal, the
reasons should enable a person entitled to contest that decision to make a
proper assessment as to whether the decision is one which should be challenged:
see p 54C. (2) The standard should not be set at a level which would tend to
frustrate or inhibit the decision-making process. The standard will not be,
therefore, the same for all decision-making processes but will differ according
to the nature of the decision and the terms of the relevant legislation. If a
decision has to be taken rapidly with no opportunity to reflect on how it is
expressed, a lower threshold is likely to suffice. If, on the other hand, the
decision is a considered decision taken at leisure by a trained lawyer a higher
standard can be expected: see pp 54D-56.
2. The
Secretary of State’s reasons were inadequate: the invariable practice of the
Secretary of State in repeating his inspectors’ conclusions in a decision
letter creates no presumption that those conclusions are adopted. The fact that
the Secretary of State expressed and identified the areas where he was in
agreement with his inspector and stated his own views without making express
reference to the differing view of the inspector in other areas is wholly
inconsistent with the suggestion that the Secretary of State was incorporating
his inspector’s reasoning into his own. The proper approach to the decision
letter is to regard the conclusions of the inspector as forming part of the
background against which the Secretary of State’s own reasoning has to be
assessed: see p 61C.
The principal
issue which the Secretary of State had to determine was whether the benefits of
the scheme were sufficiently great to override the undoubted presumption in
favour of the preservation of the existing buildings. He dealt with certain
relevant matters; it was not possible to ascertain his decision on other issues
of importance: the merits of the existing buildings, the degree of improvement
the scheme will provide over the existing
buildings, the implications for other listed buildings, whether the policy in
para 89 of Circular 8/87 applied or not, the possible conflict with the Greater
London Development Plan, and the possible application of the policy in para
90(d) of Circular 8/87. The Secretary of State’s decision letter contains no
reasoning on these substantial issues: see pp 62-64.
3. Once it is
accepted that the reasoning is not adequate, then in a case of this sort, but
not the exceptional case where it can be said with confidence that the inadequacy
in the reasons given could not conceal a flaw in the decision-making process,
it is not possible to say that a party who is entitled to apply to the court
under section 245 of the 1971 Act has not been substantially prejudiced. He is
substantially prejudiced because he does not know whether the decision of the
Secretary of State is within the powers of the Act and this is something which
he is entitled to know because if the decision is not within the powers of the
Act he is a person aggrieved who is entitled to apply under section 245: see p
64D.
to in the judgments
Bell
& Colvill Ltd v Secretary of State for the
Environment [1980] JPL 823
Edwin H
Bradley & Sons Ltd v Secretary of State for
the Environment [1982] EGD 1280; (1982) 264 EG 926, [1982] 2 EGLR 168
Ellis v Secretary of State for the Environment (1974) 31 P&CR
130
Hope v Secretary of State for the Environment (1975) 31 P&CR
120; [1976] EGD 823; 240 EG 627, [1976] 2 EGLR 147
Iveagh
(Earl of) v Minister of Housing and Local Government
[1964] 1 QB 395; [1963] 3 WLR 974; [1963] 3 All ER 817; (1963) 62 LGR 32, CA
Poyser
and Mills’ Arbitration, Re [1964] 2 QB 467; [1963]
2 WLR 1309; [1963] 1 All ER 612; sub nom Poyser v Mills [1963]
EGD 421; (1963) 185 EG 609
R v Secretary of State for the Home Department, ex parte Swati
[1986] 1 WLR 477; [1986] 1 All ER 717, CA
Westminster
City Council v Great Portland Estates plc
[1985] AC 661; [1984] 3 WLR 1035; (1984) 50 P&CR 34; [1985] JPL 108; sub
nom Great Portland Estates plc v Westminster City Council [1984] 3
All ER 744, HL
Appeal against
decision of Simon Brown J
This was an
appeal against the decision of Simon Brown J (December 19 1989), who had
dismissed an application by the appellants under section 245 of the Town and
Country Planning Act 1971 to quash the decision of the first respondent, the
Secretary of State for the Environment, who had granted planning permission for
the benefit of land owned by the second and third respondents, Number 1 Poultry
Ltd and City Acre Property Investment Trust Ltd.
Carnwath QC and Alice Robinson (instructed by Gouldens) appeared for the
appellants, Save Britain’s Heritage.
John Howell (instructed by the Treasury Solicitor) appeared for the first
respondent, the Secretary of State for the Environment.
Layfield QC and Charles George (instructed by Mishcon de Reya) appeared for the
second and third respondents, Number 1 Poultry Ltd and City Acre Property
Investment Trust Ltd, the owners of the site.
following judgments were delivered.
WOOLF LJ: This is an appeal from a decision of Simon Brown J given on December
19 1989. Simon Brown J dismissed an application to quash the decision of the
Secretary of State for the Environment to grant permission for the
redevelopment of what the judge described as the ‘Mappin & Webb’ site (‘the
appeal site’) in the City of London adjoining the Mansion House and the Bank of
England. The appeal site is owned by the second and third respondents (‘the
owners’), who are companies controlled by Mr Peter Palumbo.
The appellants
are Save Britain’s Heritage (‘Save’), which is a body which was founded in 1975
with the intention of creating a wider public awareness of
opposed the owners’ plans for redevelopment of the appeal site. At the inquiry,
which took place for 18 working days commencing on May 17 1988 and which
resulted in the inspector’s report of October 12 1988, Save were one of a
number of objectors to the scheme for redevelopment of the site; the other
objectors included the Corporation of the City of London and English Heritage.
However, it was only Save who made an application to the court. The application
was made under section 245 of the Town and Country Planning Act 1971. That
section gives persons aggrieved the right to apply to the High Court and on an
application the High Court has jurisdiction to quash the decision of the
Secretary of State:
(4)(b)
if satisfied that [the decision] in question is not within the powers of this
Act, or that the interests of the applicant have been substantially prejudiced
by a failure to comply with any of the relevant requirements in relation
thereto . . .
The primary
contention of Save before Simon Brown J and on this appeal is that there has
been a failure by the Secretary of State to comply with the ‘relevant
requirements’ because the Secretary of State in his decision letter has failed
to give reasons for his decision that comply with rule 17(1) of the Town and
Country Planning (Inquiries Procedure) Rules 1988 (SI 1988 No 944) which states
that:
The Secretary
of State shall notify his decision on an application or appeal, and his reasons
for it, in writing to all persons entitled to appear at the inquiry who did
appear, and to any other person who, having appeared at the inquiry, has asked
to be notified of the decision.
The outcome of
this appeal is of considerable importance to the parties. First of all, it is
of great importance to the owners. They have been seeking to redevelop the
appeal site since at least 1981. In November 1981 they announced a scheme for
the redevelopment of the appeal site together with 1 Queen Victoria Street in
accordance with the design of the very distinguished architect, the late Mies
van der Rohe. Those proposals, which included a 290-ft tower block, were also
the subject of an inquiry and resulted in a decision of the Secretary of State
to refuse permission for that scheme (‘the first scheme’). As a result of that
refusal of permission, the owners decided to prepare the current scheme (‘the
second scheme’), which was designed by another distinguished architect, James
Stirling. The owners have incurred considerable expense in the preparation of
the two schemes, both of which were regarded as having architectural merit by
the inspectors who conducted the inquiries into the first and second schemes.
Their continued inability to implement a scheme is causing them very
substantial additional expense.
Having at last
been granted the necessary permission to proceed with redevelopment, the owners
have now been subjected to these proceedings, which were commenced by Save’s
notice of motion of July 14 1989. Although the courts have expedited the
proceedings, further delay has inevitably been the result and this must be
particularly frustrating to the owners because as Simon Brown J pointed out:
‘Nobody doubts [the appeal site’s] importance. Nobody doubts too that it needs
redevelopment of some sort. Yet it has remained in limbo since the late 1960s’.
The appeal is
important to Save because they object strongly to the second scheme and would
prefer to see the appeal site refurbished instead of redeveloped in accordance
with the scheme they commissioned by Terry Farrell and which retains the
facades of the existing buildings. Save regard the
the relevant statutory policies and as providing a precedent which could have
serious implications for the preservation of other buildings or sites having
features of special architectural or historic interest.
The appeal is
also of significance for the Secretary of State. Naturally he wishes to uphold
his decision. In addition he will be concerned because the inspectors and his
department on his behalf are regularly making decisions in relation to planning
and similar appeals and the decision of this court could have an effect on the
standards of reasoning those decisions should contain. Many of those decisions
are taken without the benefit of any legal advice and if this court were to set
an unduly high standard with regard to the requirement to give reasons it could
have an adverse effect on the planning process, which can already be
protracted.
Finally, it
should not be forgotten that the public have an interest in the outcome of this
appeal. The Secretary of State’s decision affects them.
The appeal
site
The appeal site
is, of course, in the heart of the City of London at the Bank of England
intersection where seven major streets meet. It is roughly triangular in shape
with its apex (the Mappin & Webb building) at the Bank intersection. The
northern boundary is formed by Cheapside and Poultry and the south-eastern
boundary by Queen Victoria Street. Queen Victoria Street and Poultry are wide
thoroughfares in contrast with the narrow lanes which pass through the appeal
site. Eight of the existing buildings on the appeal site have been listed as
grade II GV under section 54 of the 1971 Act. Grade II buildings are, according
to Circular No 8/87, ‘buildings of special interest, which warrant every effort
being made to preserve them’. The letters GV signify that the buildings have
been listed, at least in part, because of their group value.
The appeal
site is situated within a conservation area. The conservation area was
designated in 1971, but it was only as a result of the second extension to the
conservation area in 1981 that the appeal site was included.
The Greater
London Development Plan section 6 (according to the inspector, paras 2-16)
identifies Guildhall/Mansion House area ‘as an outstanding example of an Area
of Special Character, where the policy should be to have special care for the
character and traditions and world famous views, buildings and monuments; and
of characteristic streets, alleys, walkways and links with the River; all need
protection and recognition in new developments’. The plan adds: ‘Regarding
buildings of special architectural or historic interest the policy is to
preserve such buildings in all proper cases, whether they occur singly or in
groups.’ There is also a City of London
local plan, but no specific arguments have been advanced in relation to that
plan on this appeal.
Relevant
statutory provisions as to listed buildings, the conservation area and the
general development plan
The fact that
the appeal site includes listed buildings and is situated in a conservation
area means that before the owners are entitled to redevelop the site, in
addition to planning permission they need listed building consent for the
demolition of the existing buildings and conservation area consent.
Listed
building consent is required by section 55(2) of the 1971 Act. With regard to
giving that consent section 56(3) of the 1971 Act provides:
In
considering whether to grant planning permission for development which affects
a listed building or its setting, and in considering whether to grant listed
building consent for any works, . . . 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.
As the appeal
site was situated in a conservation area designated under section 277 of the
1971 Act, buildings cannot be demolished without the consent of the appropriate
authority (section 277A) and the Secretary of State exercising any of his
powers under the 1971 Act is required to pay ‘special attention . . . to the
desirability of preserving or enhancing its character or appearance’ (section 277(8)).
Finally, under
section 29 of the 1971 Act, in deciding whether or not to grant planning
permission the Secretary of State is required to have ‘regard to the provisions
of the development plan, so far as material to the application, and to any
other material considerations’.
The
standard of reasons
As is usual in
the case of such a requirement, rule 17(1) of the inquiries procedure rules
merely contains a requirement that reasons for the decision should be given; it
is silent as to the standard or quality of the reasons which are required. In
these circumstances the courts are left to set the standard. In my view, when
doing so the court should bear in mind two considerations of general
application. The first is that when, in relation to a decision for which
reasons have to be given, there is (as here) a right to contest that decision
before another tribunal, the reasons should enable a person who is entitled to
contest that decision to make a proper assessment as to whether the decision is
one which should be challenged. The second is that the standard should not be
set at a level which would tend to frustrate or inhibit the decision-making
process. The standard will not be, therefore, the same for all decision-making
processes but will differ according to the nature of the decision and the terms
of the relevant legislation. If a decision has to be taken rapidly, with no
opportunity to reflect on how it is expressed, a lower threshold is likely to
suffice. If, on the other hand, the decision is a considered decision taken at
leisure by a trained lawyer a higher standard can be expected. The importance
of the issue to which the decision relates can also affect the required
quality. The more important the decision the more care in the framing of
reasons that can reasonably be expected. Applying those considerations to this
case, it is necessary to take into account the nature of the right which is
given by section 245 of the 1971 Act, the fact that the decision was that of a
minister heading a large government department and the fact that the issues
were of considerable public importance.
Perhaps the
best test as to what is usually required of reasons was given by Megaw J in Re
Poyser and Mills’ Arbitration [1964] 2 QB 467. That test has been
repeatedly approved and was adopted by Lord Scarman in a planning case, Westminster
City Council v Great Portland Estates plc [1985] AC 661 at p 673
when he said:
When a statute
requires a public body to give reasons for a decision, the reasons given must
be proper, adequate, and intelligible. In In re Poyser and Mills’
Arbitration [1964] 2 QB 467, Megaw J had to consider section 12 of the
Tribunals and Inquiries Act 1958 which imposes a duty upon a tribunal to which
the Act applies or any minister who makes a decision after the holding of a
statutory inquiry to give reasons for their decision, if requested. Megaw J
commented, at p 478:
‘Parliament provided that reasons shall
be given, and in my view that must be read as meaning that proper, adequate
reasons must be given. The reasons that are set out must be reasons which will
not only be intelligible, but which deal with the substantial points that have
been raised.’
He added that
there must be something ‘substantially wrong or inadequate’ in the reasons
given [before the court will interfere]. In Edwin H Bradley & Sons Ltd
v Secretary of State for the Environment (1982) 264 EG 926, [1982] 2
168, at p 931 Glidewell J added a rider to what Megaw J had said: namely, that
reasons can be briefly stated. I accept gladly the guidance given in these two
cases.
In addition to
those cases Mr Laws referred us to three authorities to which I should briefly
make reference. The first is Ellis v Secretary of State for the
Environment (1974) 31 P&CR 130, and the next one is Hope v Secretary
of State for the Environment (1975) 31 P&CR 120. In the latter case at
p 123, Phillips J referred to the judgment of May J in the former case and
stated his view as to what was required in relation to reasons in these terms:
As May J
said, the question is whether the reasons are adequate in the circumstances of
the particular case. Often the reasons are not intelligible unless there is a
sufficient statement of the facts to which they relate, and where a number of
distinct relevant issues of important fact have been canvassed on the hearing
of the appeal I should have thought that a decision which did not deal with them
would be open to objection. It seems to me that the decision must be such that
it enables the appellant to understand on what grounds the appeal has been
decided and be in sufficient detail to enable him to know what conclusions the
inspector has reached on the principal important controversial issues. A
decision which does less than this is of little value and would leave an
unsuccessful party aggrieved.
The comments
of Phillips J were made in the context of a case which was being decided not by
the minister but by the inspector under delegated authority. Phillips J
acknowledged that this was a factor which was not to be overlooked and he
indicated that each case stands on its own facts.
The third case
was R v Secretary of State for the Home Department, ex parte Swati
[1986] 1 WLR 477. In that case the Court of Appeal upheld the very succinct
reasoning of an immigration officer refusing an immigrant leave to enter this
country where there was a requirement to give reasons for the refusal of entry
in accordance with the Immigration Appeals (Notices) Regulations 1984. In his
judgment, at p 490, Parker LJ said:
What Mr
Blom-Cooper is in effect seeking is not the reasons for the refusal but the
reasons for the reasons for refusal and for that the Notices Regulations do not
provide. They may be obtained under the appeal procedure, but they are not
required at the stage of notice of refusal of entry.
The matter
may perhaps be illustrated in this way. If a plaintiff claims in an action
moneys due under a contract and the defendant pleads in answer accord and
satisfaction, the judge, in rejecting the defence and giving judgment for the
plaintiff, may say: ‘I am satisfied that, despite the plaintiff’s denials,
there was an accord but I am wholly unsatisfied that there was
satisfaction.’ The latter is the reason
for rejecting the defence. The judge’s reason for being dissatisfied might be
that he found the defendant a wholly untruthful witness and his reasons for
that might include general demeanour, specific answers in cross-examination,
specific conflict between the defendant’s evidence and certain letters written
by the defendant, admissions made in letters written by the defendant, positive
evidence that the defendant was somewhere else at the time when he said he had
made payments at a certain place and so on. These are, however, reasons for
being dissatisfied. The reason for the decision is the dissatisfaction. To
uphold the contention that reasons for the dissatisfaction should be given
would in my view give an extended meaning to the words of the rule for which
there is no warrant. It is plain from the wording of the rule that the primary,
if not the sole, purpose of the rule is to enable the visitor to know why he
was refused entry so that he may consider whether to appeal. A notice which
sets out upon which of several possible grounds — or for which among several
possible reasons–he was refused so enabled him. He is not entitled in my view
to have also the reasons for the reasons.
In the context
of the case which was then being considered by the Court of Appeal, I
respectfully agree with Parker LJ’s comments in the Swati case. However,
in my view, they must be applied with caution to the very different field of a
decision on a planning appeal which takes place following a public inquiry
where there is an inspector’s report followed by a decision of the Secretary of
State. The immigration procedure requires the Home Office to file an
explanatory statement (Immigration (Procedure) Rules 1984) which sets out the
Home Office’s case. On appeal the immigrant can rely upon that statement to
show that the immigration officer has not dealt with the matter properly. The
position is otherwise in the case of an application to the High Court under
section 245 of the 1971 Act, when usually the outcome of the application will
depend upon the contents of the Secretary of State’s decision letter, which
(with the inspector’s report) will frequently be the only relevant evidence
before the court. If the decision letter does not contain adequate reasons it
may not be possible to ascertain whether the Secretary of State has properly
considered the appeal to him from the decision of a planning authority.
In the court
below, Simon Brown J, having been referred to the principles accepted by Lord
Scarman in the Westminster decision, went on to identify certain further
propositions which I would endorse, remembering that their applicability will
depend on the facts of the particular case. I summarise the propositions which
are relevant to this case:
1. If the
decision involves a departure from the structure plan or any other formal
policy statement then as part of his obligation to deal with substantial points
the decision letter should make it clear that this is the case and give reasons
for the departure.
2. The
reasoning should enable the recipient of the decision to know what were the
material considerations which influenced the Secretary of State in coming to
his decision. In identifying this proposition, Simon Brown J cited the useful
comment by Lord Denning MR in Earl of Iveagh v Minister of Housing
and Local Government [1964] 1 QB 395 at p 410:
The whole
purpose of that enactment [requirement to give reasons] is to enable the
parties and the courts to see what matters he [the Minister] has taken into
consideration and what view he has reached on the points of fact and law which
arise.
This does not,
however, mean that every material consideration has to be mentioned. It is
those which have influenced the Secretary of State in coming to his decision
which are the important ones. As Simon Brown J said:
. . . it is
important that the reasoning is sufficient to allay any substantial fears that
it conceals some vitiating error of law . . . Obviously the more legally
complex the decision and the greater the perceived risk of the Secretary of
State having fallen into error the more important that he should demonstrate by
his reasoning that he has not in fact done so.
3. The final
proposition to which I would refer is that decision letters should be read as a
whole and in context, remembering they are addressed to a well-informed or
tutored audience.
The
background to the decision
All the
parties before this court stressed the importance of reading the decision
letter in the context of the planning history. I consider they were right to do
so. Although the owners’ first scheme had been rejected by the Secretary of
State, that appeal to the Secretary of State had not been wholly unsuccessful.
In his decision letter of May 22 1985 the then Secretary of State, while
dismissing the owners’ appeal, had recited the inspector’s view that:
the historic
buildings . . . considered individually . . . do not represent the ‘best of our
heritage’ . . . their main significance lay in their value as a group and in
their contribution as a group, together with certain unlisted buildings, to the
character of the central area of the City.
The Secretary
of State pointed out that ‘the fact that a building is listed or is within a
conservation area does not necessarily mean that it will be preserved.’ He added that he did ‘not rule out
redevelopment of this site if there were acceptable proposals for replacing the
existing buildings’ and went on to say that he did not ‘consider that the buildings
are of such overriding importance that their preservation should outweigh all
other considerations’.
By a letter of
January 20 1988 the Secretary of State wrote to the owners and others and
indicated that he was aware of the evidence given and the submissions made at
the previous inquiry relating to the weight to be given to the need to preserve
the listed buildings and to maintain the medieval street pattern of the area
and indicated that he would not expect the inquiry to concentrate on these
matters. He added that he considered the main matters to be pursued at the
inquiry were the design-bulk and build of the proposed development in relation
to its surroundings and the scale and character of neighbouring buildings. That
letter drew a forceful protest from Save and others, including English
Heritage. Save pointed out that in their view an inquiry must look at all the
issues on their merits and that it was quite impossible to separate from that
argument the balance between the value of the scheme and the value of the
listed buildings. The department then indicated that there was no intention to
inhibit the right of any participant at the inquiry to make such submissions
and this was confirmed by the inspector. However, at a pre-inquiry meeting it
was agreed by the principal participants of the inquiry that the main topics
for consideration at the inquiry would be:
1. The
design-bulk of the proposed development in relation to its surroundings and the
scale and character of neighbouring buildings.
2. The present
economic practicability of a scheme of refurbishment or reconstruction behind
the facade of the existing buildings.
So far as the
second of those topics is concerned, it is not in dispute that a scheme of
refurbishment or reconstruction behind the facade of the existing building is practicable.
This was important having regard to the published policy of the Secretary of
State as to listed buildings contained in Circular 8/87 dealing with listed
buildings and conservation areas.
The circular
in its introduction stresses the importance of preserving the architectural
heritage to which listed buildings in conservation areas make such an important
contribution. However, it also points out that ‘our heritage is the product of
many centuries of evolution and it will continue to evolve’ and that ‘taking
decisions on matters concerning listed buildings in conservation areas involves
balancing many factors’.
The paragraphs
of the circular which were directly applicable to the issues before the
Secretary of State are paras 89 to 91. Those paragraphs must be read as a
whole, but of particular importance is a sentence in the middle of para 89
which reads:
The Secretary
of State will not be prepared to grant listed building consent for the total or
substantial demolition of a listed building unless he is satisfied that every
possible effort has been made to continue the present use or to find a suitable
alternative use for the building.
Having regard
to what I have just said about the second topic, clearly the second scheme was
directly contrary to that statement of policy. Para 90 sets out four criteria
which it was suggested would prove helpful in considering applications for
listed building consent to demolish the buildings. ‘Criteria’
deals with how to assess the cost of repairing and maintaining listed
buildings, but it is (d) which is of particular importance because it deals
with alternative use and it says account should be taken of:
the
importance of any alternative use for the site and, in particular whether the
use of the site for some public purpose would make it possible to enhance the
environment and especially other listed buildings in the area; or whether, in a
rundown area, a limited redevelopment might bring new life and make the other
listed buildings more economically viable.
Para 91
states:
Generally, .
. . the number of buildings of special architectural and historic interest is
limited. Accordingly, the Secretary of State is of the view that the
presumption should be in favour of preservation except where a strong case can
be made out for granting consent after application of the criteria mentioned.
Preservation should not be thought of as a purely negative process or as an
impediment to progress . . .
The decision
letter of the Secretary of State of June 7 1989, as is usual, repeats the
conclusions of the inspector who held the inquiry. These were extremely
detailed and are contained in 62 numbered paragraphs and are followed by seven
paragraphs, numbered 4 to 10, in which the Secretary of State sets out his
reasoning for coming to the conclusion that he should give planning,
conservation area and listed building approval subject to certain conditions.
As indicated earlier, those paragraphs have to be read as a whole and in coming
to my conclusion this is what I have sought to do. However, it would lengthen
this judgment unduly to repeat the inspector’s reasoning. I should, however,
draw attention to certain conclusions which are particularly important. First,
he makes it clear that while he had in mind the views expressed in the earlier
decision letter to which I have referred, it was his opinion that the question
of whether or not the existing building should be demolished was still to be determined
and did not automatically follow if the proposals were judged to be acceptable.
(As we shall see, this is not a matter to which any express reference is made
by the Secretary of State.)
The inspector
also made it clear that in deciding whether to recommend that listed buildings
should be demolished, he considered it appropriate to have regard to the
quality of the building by which it was to be replaced. This is also the view
of the Secretary of State but contrary to the previous approach of the Secretary
of State. However, it is now, in my view, rightly conceded by Mr Carnwath QC,
who appeared for the appellants, that the previous approach of the Secretary of
State was wrong.
The inspector
was in general in agreement with the previous report as to the quality of the
existing buildings, but he accepted an argument that the group of buildings had
importance as one of the best, if not the best, groups of surviving Victorian
commercial buildings in the city and he summarised his views by saying that he
considered the historical associations and the location of the listed buildings
added to their relative importance. (This is a matter to which the Secretary of
State makes no direct reference.)
In the
previous decision letter, the Secretary of State had attached significance to
the need to attract modern buildings to the city. However, the inspector took
the view that there was no longer any reason to fear that the financial health
of the city would be at risk because of the lack of availability of modern office
buildings. This reduces the strength of the owners’ case. (Again a matter not
referred to by the Secretary of State.)
With regard to
the policy set out in para 89 of the circular, the inspector took the view that
because of the overall tenor of the May 1985 decision letter it
contentions in favour of work to restore the existing buildings. For this
reason he was prepared to take the view that there were ‘exceptional reasons for
relaxing in this instance the usual requirement for the Secretary of State to
be satisfied that every possible effort has been made to find suitable uses for
the existing buildings’, though he acknowledged that the usual preconditions
for the granting of consent for the demolition of listed buildings had not been
met. (This is again a matter to which the Secretary of State makes no
reference, although Mr Carnwath submits that the inspector’s reasoning is
flawed because it is inappropriate to decide issues which could affect the
country’s architectural heritage on the basis of some undefined principle of
legitimate expectations.)
The inspector
appeared to take the view that the scheme could be regarded as falling within
criterion (d) of para 90 of the circular because of the outstanding quality of
the replacement building which would contribute to the architectural heritage
and because the scheme would enhance the environment. Mr Carnwath submits that
the considerations which the inspector identified are not within the language
of para (d). I recognise that this is a submission of considerable force.
(Again this is an issue upon which the Secretary of State has not commented.)
However, after
a most careful analysis of the issues the inspector ultimately comes to the
conclusion that whereas the ‘new scheme must have outstanding qualities if it
is to overcome the strong presumption in favour of the retention of listed
buildings and the attractive opportunities that conservation can offer’, the
scheme by its ‘dignified order, . . . imaginative ingenuity and pervading
overall consistency, would contribute more both to the immediate environment
and to the architectural heritage than the retention of the existing buildings,
that the new building would be of substantial importance for the present age,
whereas the most that can be said of even the best of the existing buildings is
that they are undoubtedly of special architectural and historic interest but in
the final analysis only of relative importance’. He concludes that the second
scheme deserved to be built because it was ‘considered mature work by a British
architect of international status of whose achievements the nation can be
justly proud’.
The Secretary
of State set out his conclusions under three heads. Under the first, ‘The
planning appeal’, he indicates that there was no planning objection to the
proposals (para 4). He accepts the inspector’s view that the second scheme ‘has
a strong consistency and character and is one which would be a worthy modern
addition to the architectural fabric of the City’, and he makes it clear that
he has taken into account the statutory requirement of section 277(8) in
respect of conservation areas and section 56(3) in relation to listed buildings
(paras 5 and 6).
The Secretary of
State then, under the heading of ‘Conservation area consent appeal’, expresses
the conclusion that having paid special attention to the desirability of
preserving or enhancing the character and appearance of the area he agrees with
the inspector ‘that the design and quality of the proposed building is such
that it will preserve the character of the conservation area as a whole and
could for the reasons given in para 10 below in some respects enhance it’ (para
7).
He then turns
in the remaining paragraphs to consider ‘The listed building consent appeal’.
There is no need to refer to para 8, but I should set out paras 9 and 10 in
full. These are in the following terms:
9. There is a
general presumption in favour of the preservation of listed buildings as stated
in Circular 8/87. There are many listed buildings in respect
would ever be granted whatever the merits of any replacement building proposed
to be erected on the site. Nevertheless, the Secretary of State considers that
replacement buildings may be a relevant consideration when considering whether
or not to grant listed building consent in any particular case, and, in any
event it will be so when, as here, the listed buildings are within a
conservation area.
10. The
Secretary of State has considered the merits of the listed buildings as
buildings of architectural and historic interest. He agrees with the Inspector
that the buildings are relatively of less importance than the grade 1 listed
buildings and grade ‘A’ churches surrounding them. The Secretary of State has
considered, both in respect of the applications for the demolition of the
listed and unlisted buildings, the design and merit of the appeal buildings
which would replace them. In agreement with the Inspector, he finds that the
design and quality of the proposed replacement building is such that it will
not only fit in with the architectural and visual characteristics of the
buildings which will surround it but that it will preserve the character of the
area as a whole and could positively enhance it in some respects. As mentioned
in paragraph 5 above, the Secretary of State is of the view that the proposed
building would be a worthy modern addition to the architectural fabric of this
part of the City. In his view it would contribute more, both to the immediate
environment and to the architectural heritage, than would the retention of the
existing buildings. In view of the above the Secretary of State is satisfied in
the special circumstances of this case that the usual presumption, in favour of
preservation of listed buildings, should be overridden.
Finally, in
para 11, the Secretary of State announces his decision in these terms:
Having had
regard to the planning, the conservation area and the listed building
considerations the Secretary of State has, subject to the conditions set out
below, accepted the Inspector’s recommendation that the appeals be allowed.
The
approach of the judge
Simon Brown J
points out the ‘stark contrast between the inspector’s conclusions and the
Secretary of State’s’. He states:
The Inspector
sets out his approach and views in great detail and with total clarity.
Paragraphs 5 to 10 of the Secretary of State’s decision letter, however,
certainly if read in isolation, appear altogether less revealing.
He indicates
that the ‘sufficiency or otherwise of the decision depends ultimately upon the
extent to which it should properly be read (by a well-tutored audience) as
incorporating and adopting the bulk of the inspector’s substantially fuller
conclusions’. In resolving this critical issue in favour of the Secretary of
State and owners, Simon Brown J makes it clear that for a substantial part of
the hearing he was much attracted to Mr Carnwath’s submissions, but he
concludes that the Secretary of State had chosen ‘to identify and adopt all the
essential links in the inspector’s complex chain of reasoning’, and on that
basis decides that the reasons contained in the decision letter are beyond
challenge. However, Simon Brown J makes it clear that if he had been left
substantially unsure about the implicit adoption of the inspector’s reasons
then he would have regarded the decision letter as being inadequate and he
expressed regret that the Secretary of State had dealt with the matter
implicitly rather than explicitly.
On the
question as to whether or not the Secretary of State has implicitly adopted the
reasoning of his inspector, I am afraid I must disagree with the judge. As
already indicated, it is almost the invariable practice of the Secretary of
State to repeat his inspector’s conclusions in his decision letter. However,
this creates no presumption that those conclusions are adopted. Frequently they
are not. When the Secretary of State wishes to adopt all or part of those
conclusions he does so expressly. In accord with this approach, as I read this
decision letter, the Secretary of State has in relation to limited issues made
it clear that he is in agreement with his inspector. In other parts of his decision
letter he is taking a different or less emphatic view than his inspector. For
example, with regard to the design and merit of the second scheme, the
Secretary of State is clearly expressing himself in more moderate terms than
those adopted by his inspector and forming his own judgment. The fact that he
has expressed and identified areas where he is in agreement with the inspector
and stated his own views without making express reference to the differing view
of the inspector in other areas I find wholly inconsistent with the suggestion
that the Secretary of State is incorporating his inspector’s reasoning into his
own. The proper approach to the decision letter is to regard the conclusions of
the inspector as forming part of the background against which the Secretary of
State’s own reasoning has to be assessed. The inspector’s reasoning can help in
the task of understanding the Secretary of State’s conclusions but cannot
supplement those conclusions if not expressly adopted by the Secretary of
State. Although Simon Brown J was under the impression in the court below that
the interpretation which he was adopting was in accord with the submissions on
behalf of the respondents in this court, both Mr Laws, on behalf of the
Secretary of State, and Sir Frank Layfield QC, on behalf of the owners, adopted
the approach which I have identified as being the correct approach.
The next
question is therefore whether the Secretary of State’s reasoning is adequate
when viewed in the correct context. That context includes not only the
conclusions of the inspector but also the planning history to which I have
already referred and what were the real issues which were being canvassed
before the inspector as is apparent from his report.
When this
approach is adopted, it is clear that the principal issue which the Secretary
of State had to determine was whether the benefits of the second scheme were
sufficiently great to override the undoubted presumption in favour of the
preservation of the existing buildings. As to this, I accept that the Secretary
of State has set out what he regards as being the positive features of the
second scheme. They are mentioned in para 5, where he accepts the inspector’s
view that the design has strong consistency and character and is one which
would be a worthy modern addition to the architectural fabric of the City. It
is also dealt with in para 7 and in particular para 10 where he says that he
regards the scheme as not only fitting in with the architectural and visual
characteristics of the buildings which will surround it, but adds that ‘it will
preserve the character of the area as a whole and could positively enhance it
in some respects’. To which has to be added the fact that the Secretary of
State also took the view that ‘it would contribute more both to the immediate
environment and to the architectural heritage than would the retention of the
existing buildings’.
The Secretary
of State also made it clear that he had in mind the statutory provisions which
were relevant and the circular. However, there are matters with which the
Secretary of State has not dealt. I have referred to some earlier when I was
setting out the relevant conclusions of the inspector. I must, however, now
deal with this in more detail. Reasoning can be short but still be adequate
and, if it is, so much the better. The problem here is that although some eight
months elapsed between the inspector’s report and the Secretary of State’s
decision, issues which should have been dealt with are not dealt with are not
dealt with and as a result it is not possible to ascertain what the Secretary
of State’s
attention to the following matters:
1. While, as
already indicated, the Secretary of State has, in my view, adequately expressed
his conclusions as to the merits of the second scheme, he has not expressed any
view about the merits of the existing buildings apart from making a statement
of the obvious, namely that they are not of the quality which would prevent them
from being replaced in any circumstances by any other building and by making
the comparison to which I have referred above in relation to their contribution
to the immediate environment and the architectural heritage. Buildings which do
not fall within the class which the Secretary of State has identified can vary
considerably in their importance and while we know of the inspector’s view of
the importance of the existing buildings as a group which was similar to but
not identical with that of the inspector who held the first inquiry, the
decision of the Secretary of State does not express his views although the
precise quality of the existing buildings was in dispute at the second inquiry.
2. Without
having the Secretary of State’s assessment of the existing buildings’ quality,
the informed reader of the decision letter knows that the Secretary of State
regards the scheme as improving the position, but that is all. The Secretary of
State has avoided giving any indication as to the degree of improvement which
will result from implementing the second scheme. Mr Carnwath stresses the
unusual nature of the decision. That is that to grant permission to replace
existing listed buildings capable of being used economically after
refurbishment is wholly without precedent and a total departure from the policy
adopted hitherto. He then, in my view, fairly submits that if he knew the
Secretary of State’s assessment of the existing buildings he might be able to
challenge the decision on Wednesbury grounds. However, without the
Secretary of State’s assessment of the existing buildings it is impossible to
tell whether the decision is lawful or not.
3. In addition
Mr Carnwath submits that the Secretary of State’s decision in this case may be
flawed by the fact that, if his reasoning were known, it would or might
disclose that he had adopted a two-stage approach but omitted a third essential
matter. It might be that he had considered, first, whether the existing
buildings are ones which do not fall within the category he has identified
which would never be replaced, ie whether they were disposable buildings, and,
second, the merits of the second scheme including making a comparison as to the
contribution which would continue to be made by the existing buildings with the
contribution which would be made by the new scheme but has never, as he should
have done, decided whether the difference in the contribution was sufficient to
override the presumption in favour of preservation. Mr Carnwath can here obtain
some support from the language of para 10. Why should the Secretary of State
state that the existing buildings are ‘relatively of less importance than grade
I listed buildings and grade ‘A’ churches surrounding them’ and not refer to
the inspector’s conclusions apart from this unless he has formed no other
assessment of the existing buildings?
Such an assessment would not comply with his duty properly to consider
the merits of the appeal and could, in Mr Carnwath’s submission, warrant the allegation
that the Secretary of State has failed to take into account a relevant
consideration.
4. A matter of
real concern to Save is what are the implications of the decision for other
listed buildings of similar quality?
Initially I took the view that the answer to this concern was the reference
in para 10 to ‘special circumstances’. However, Parker LJ asked Sir Frank
Layfield QC to identify the special circumstances referred to and ultimately
Sir Frank Layfield was
the replacement building. I suspect, but do not know, that the Secretary of
State had in mind the importance of the appeal site as well. However, I do
recognise that if Sir Frank Layfield is correct Mr Carnwath is also right in
saying that this is hardly a special circumstance because wherever there is a
listed building it would be possible for the same scenario to be repeated,
namely the preparation of a scheme by an architect of distinction which would
have considerable architectural merit — perhaps greater architectural merit
than the existing building.
5. It is clear
that in this case the Secretary of State must, by implication, have decided
that he was not going to apply the policy contained in the passage from para 89
of Circular 8/87 which I have cited earlier. Otherwise the appeal would have
had to have been dismissed. However, Mr Carnwath complains that his clients do
not know whether the Secretary of State has adopted the same approach as the
inspector in regarding that policy as not applying because of the decision on
the first appeal. If the Secretary of State has in fact adopted this reasoning,
then he submits he is entitled to know this because this could again be a
ground of challenge because he would submit that the expectations of a developer
are not a proper planning consideration. The Secretary of State, having set out
this controversial conclusion of the inspector, should have expressed his
views. While this is not the most important point, it cannot, in my view, be
dismissed entirely.
6. Mr Carnwath
also relies on the failure of the Secretary of State to make any reference to
the fact that the proposals conflict with the policy contained in the Greater
London Development Plan. Mr Laws submits that the absence of any reference can
be explained by the fact that really the Greater London Development Plan does
not go beyond the combined effects of the statutory requirements and so the
Secretary of State should be taken to be dealing with the Greater London
Development Plan when he deals with the statutory requirements, which was the
approach adopted by the inspector. I consider there is force in Mr Laws’
explanation and I regard this point as doing no more than providing some
limited support for Mr Carnwath’s general contention as to the inadequacy of
the reasoning.
7. As
indicated earlier, the inspector suggested that the second scheme could fall
within the criterion contained in para 90(d) of Circular 8/87. This is not the
case, and Mr Carnwath submits, with justification, that we do not know what the
Secretary of State’s views were on this. He could, but may not, have adopted
this view. If this point stood by itself I would not attach much significance
to it. However, it is one more matter which, having regard to the importance of
this case, the Secretary of State could and should have dealt with but has
chosen not to do so.
The cumulative
effect of those matters to which I have referred forces me to the conclusion
that an informed reader of the Secretary of State’s reasoning is left in a
position where he does not know whether this appeal has been properly
considered by the Secretary of State or not. It is not clear whether important
issues have not been referred to because the Secretary of State came to
conclusions but wrongly thought it was not necessary to mention them. Certainly
having regard to the inspector’s view of the importance of the existing
buildings individually and as a group, it is difficult to see how the Secretary
of State came to his decision without being as enthusiastic about the second
scheme as was his inspector. The Secretary of State has left us to guess as to
the situation because the reasoning does not deal with substantial issues.
I do not know
why the Secretary of State has been so economical with his reasoning. It may be
that the view was taken that any reason which was given
challenge and so no more reasons were given than was thought to be the
acceptable minimum. If this is the position, then it is indeed unfortunate
because, in my view, it fatally flaws a decision which could properly here be
arrived at on the basis of the material which was before the Secretary of
State.
The
failure to comply with section 56(3) of the 1971 Act
Mr Carnwath
made an additional allegation which I regard as an alternative allegation to
the lack of reasons. That is that the Secretary of State failed to comply with
his duty under section 56(3) of the 1971 Act to have special regard to the
desirability of preserving the listed buildings. He submits that in complying
with this obligation the Secretary of State is required to make an adequate
assessment of the factors which make it desirable to preserve a listed building
and then give special weight to those factors. The problem that I have in
coming to a conclusion on this issue is that because the Secretary of State has
not indicated his assessment of the listed buildings does not mean that he has
not made a proper assessment of the virtues of those buildings. As I have already
indicated, he was required to make an assessment and it is because of that
requirement that, in my view, he should have indicated what his assessment was
so as to enable those who are interested to know whether he complied with
section 56(3). It is true that he has said that he had paid regard to the
statutory requirement, but he should still, as part of his reasoning, have said
what his assessment was. If this is done, it will be possible to decide whether
or not there is any substance in this issue.
I turn finally
to the contention which was advanced by Sir Frank Layfield, on behalf of the
owners, that in any event Save cannot establish that they have been
substantially prejudiced. Once it is accepted that the reasoning is not
adequate, then in a case of this sort it seems to me that, apart from the
exceptional case where it can be said with confidence that the inadequacy in
the reasons given could not conceal a flaw in the decision-making process, it
is not possible to say that a party who is entitled to apply to the court under
section 245 has not been substantially prejudiced. He is substantially
prejudiced because he does not know whether the decision of the Secretary of
State is within the powers of the Act and this is something which he is entitled
to know because if the decision is not within the powers of the Act he is a
person who is aggrieved who is entitled to apply under section 245. A different
view was taken by Forbes J in Bell & Colvill Ltd v Secretary of
State for the Environment (unreported, May 23 1980)*. At p 23 of the
transcript of his judgment the learned judge says:
But
Parliament must have expected something more than a mere failure to comply with
the rules, because if that had been the object it would have been achieved by
omitting all reference to any prejudice, let alone substantial prejudice, to
the applicant’s interests.
*Editor’s
note: Reported at [1980] JPL 823.
With respect
to that learned judge, who had great experience of this jurisdiction, he failed
to allow for the fact that the statutory provision applies not only to the
requirement to give reasons but also to a breach of any ‘relevant
requirements’. In the case of other requirements, the provision as to ‘substantial
prejudice’ may have a real part to play.
So far as this
case is concerned, I am quite satisfied that on the views which I have
expressed there is no alternative but to allow this appeal and quash the
decision of the Secretary of State. I have already indicated that I come to
this decision with the greatest regret. This court is not concerned with the
merit of the owners’ proposals for the appeal site. However, the court is
concerned that
to give proper reasons for his decision. While the importance of the decision
for the future of the appeal site and its possible implications for other sites
means that Save were fully justified in pursuing their application to the
court, this does not mitigate the hardship that this result will cause to the
owners. The decision of the Secretary of State may in fact have been taken for
irreproachable reasons. Whether this is or is not the case will only be known
after the matter has been reconsidered by him. I very much hope that this
reconsideration will be conducted as expeditiously as possible. The form of
that reconsideration is, of course, a matter for the Secretary of State, but
certainly in this case I would not expect the Secretary of State to do more
than reconsider the excellent inspector’s report, come to his decision and then
set out clearly the reasons for his new decision.
NICHOLLS
LJ: I have had the advantage of reading in draft
the judgments of Parker LJ and Woolf LJ. I agree that, for the reasons given by
them, this appeal should be allowed.
PARKER LJ: I agree with the judgment of Woolf LJ which I have had the
opportunity to read in draft. I would add, however, a short judgment of my own
on one matter to which I attribute more importance than he does.
It arises from
para 89 of Circular 8/87. That paragraph, having referred to the requirements
of section 56(3) of the 1971 Act, provides:
The Secretary
of State will not be prepared to grant listed building consent for the total or
substantial demolition of a listed building unless he is satisfied that every
possible effort has been made to continue the present use or to find a suitable
alternative use for the building. He would normally expect to see evidence that
the freehold of the building had been offered for sale on the open market.
There would need to be exceptional reasons to justify the offer of a lease or
the imposition of restrictive covenants which would unreasonably limit the
chances of finding a new use for the building. He also expects local
authorities to be guided by these considerations.
This is a
categorical statement of policy and it is implicit in it that consent for the
demolition of a listed building will not be granted if the existing use of such
a building can be continued or an alternative use can be found.
In the present
case it is common ground that the existing use can be continued. Accordingly, a
grant of permission involves a departure from clearly and categorically stated
policy. That the Secretary of State is entitled to depart from a policy,
however clearly and categorically stated, is clear. It is, however, equally
clear, in my view, that if he wishes to do so he must state his reasons
clearly.
In para 14.13
of the inspector’s conclusions, quoted in the decision letter, he explicitly
recognises that the preconditions for the granting of consent for the
demolition of listed buildings have not been met in the present case, but
considers that there are exceptional reasons for relaxing them. Those
exceptional reasons are, it is clear from the paragraph, no more than his
conclusion that having regard to the general tenor of the 1985 decision letter
it would have been unreasonable to expect the owners to reverse their
intentions in favour of works to restore in full the original or suitable
alternative uses of the buildings.
This amounts
to no more than saying that the condition should be relaxed because, in the
earlier decision, the Secretary of State had indicated that he did not consider
that the buildings were of such overriding importance that their preservation
should outweigh all other considerations, that the fact that a building was in
a conservation area or was listed did not necessarily mean that
there were acceptable proposals for replacing the existing buildings.
It would
appear from the paragraph, therefore, that had the inspector not considered the
hopes or expectations raised by the earlier decision letter an exceptional reason
he would, or at least might, have come to a different final conclusion.
Had he done
so, the Secretary of State could, of course, have rejected that conclusion, but
he would then quite certainly have been obliged to state his reasons for so
doing.
We do not know
from the decision letter whether the Secretary of State adopted the inspector’s
reasons for departing from the policy or rejected them and had other unstated
reasons of his own for so doing or, if the latter, what they were.
This is, in my
view, an important matter which should have been specifically dealt with. It
may be said that as the Secretary of State did not specifically adopt the
inspector’s reasoning he may be taken in this respect to have rejected it and
that his own reasons are given in paras 9 and 10 of the decision letter, but I
am not clear that this is so. Paras 9 and 10 specifically adopt passages in the
inspector’s report from paras 14.18, 14.46, 14.56 and 14.59 but do not deal at
all with the particular departure from policy with which the inspector deals in
para 14.13.
The importance
of the matter is considerable. If the inspector’s reasoning formed part of the
Secretary of State’s reasoning his conclusion might well be open to challenge.
If it did not, then there is nothing left but paras 9 and 10, and these
paragraphs appear to suggest that if the existing building is not grade 1 its
demolition is permissible if the replacement building is one which could,
not would, contribute more to the immediate environment and architectural
heritage than the existing buildings and could, not would,
enhance the character of the area in some respects.
If this is so,
it is, in my view, such a radical departure from existing policy that clear
reasons for it should be stated. They are not.
Appeal
allowed with applicants’ costs here and below against the Secretary of State;
no order for costs in respect of the second and third respondents; applications
of first, second and third respondents for leave to appeal to House of Lords
refused.
