Listed building Partial demolition — Whether significant part to be demolished — Whether significance to be assessed by reference to both qualitative and quantitative factors — Whether council’s decision perverse — Claim dismissed
The claimant was a member of a residents’ association that objected to a developer’s applications to the defendant council for planning permission and listed building consent in respect of a Grade II* listed hotel in Leamington Spa. In December 2001, the council decided to grant permission for extensive works that included demolition of parts of the building and their replacement with retail and residential units. In reaching their decision, the council took the view that it was sufficient to weigh the considerations set out in para 3.5 of PPG 15. They decided that, for cases falling within para 3.15A, namely those where “works of alteration involve the demolition of a significant part of the listed building”, they did not have to consider the further matters set out in para 3.19 because the part of the building to be demolished was not significant.
The claimant sought to quash the planning permission and listed building consent, contending, inter alia, that the council had misinterpreted and misapplied para 3.15, with the result that they had failed to address and apply the criteria required by para 3.19. He claimed that their decision was based upon advice from English Heritage to the effect that “significance”, in the context of paras 3.19 and 3.15A, related to the proportion of the building involved. English Heritage considered that this construction flowed from the House of Lords decision in Shimizu (UK) Ltd v Westminster City Council [1996] 3 PLR 89, in which it was decided that “demolition” meant the pulling down of a whole building, and that demolition of part only was an “alteration”. Paragraph 3.15A had been inserted, under the heading of “Alterations and Extensions”, as a consequence of that judgment, in order to replace the previous reference to a “significant part” of a building in para 3.19, which dealt with demolition. The claimant argued that “significant”, in the context of para 3.15A, did not mean significant only in quantity, but also in terms of historical and architectural quality.
Held: The claim was dismissed.
The council’s construction of the word “significant” in para 3.15 was mistaken, and was based upon a misunderstanding of the effect of Shimizu. The sole question in that case was whether work was to be defined as demolition or alteration; the House did not consider the meaning of the word “significant”. The removal to the new para 3.15A of the reference to a “significant part” of a building, in order to give effect to that decision, was intended to do no more than to place the word in its appropriate context. The purpose of PPG 15 was to protect buildings, and features of buildings, with special architectural or historic interest. The words “significant part”, in their context, were not capable of being construed in isolation of the quality of the part of the building to be demolished. To ignore all other considerations but scale would be to deny the planning context in which the word was used: Northavon District Council v Secretary of State for the Environment [1993] JPL 761 and R v Derbyshire County Council, ex parte Woods [1997] JPL 958 considered. It was a question of fact for the decision maker in any particular case to determine whether a part of a listed building was significant, and what weight to give to factors of proportion and quality depending upon the features and character of the building under consideration.
On the evidence, the council had, in fact, been correctly advised by their legal adviser that they should apply a qualitative, as well as a quantitative, test, and had been labouring under a misapprehension that English Heritage had applied the same test. Their error as to the opinion of English Heritage, as their statutory consultee, was sufficiently important to be fatal to the council’s decision. However, their conclusion, that the part of the building to be demolished was not significant, could not be said to be perverse. This was an exceptional case in which the court should exercise its discretion not to quash the council’s decision.
Timothy Comyn (instructed by Manby & Steward) appeared for the claimant; John Steel QC and Robert White (instructed by Sharpe Pritchard) appeared for the defendants; Frances Patterson QC (instructed by Hammonds, of Birmingham) appeared for Wilson Bowden Developments Ltd, the first interested party; Graham Stoker QC and Richard Ground (instructed by Norton Rose) appeared for English Heritage, the second interested party.
Sally Dobson, barrister
