As is well recognised, section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Act”) obliges a local planning authority (“LPA”) from time to time to determine which parts of its area are “areas of special architectural or historic interest the character of which it is desirable to preserve or enhance”, and then to designate such areas as conservation areas. (Those areas, accordingly, have to meet a statutory test, and that test has to be applied by the LPA.) The duty is a continuing one.
Inevitably, on occasion, a legal challenge will be mounted to the decision by a LPA to make such a designation. This was the case in R (on the application of Silus Investments SA) v London Borough of Hounslow [2015] EWHC 358 (Admin). There, in a claim for judicial review, one of the claimant’s contentions was that the LPA had acted unlawfully in using the conservation procedure for an improper purpose, namely to prevent it from demolishing a locally listed public house that it owned. The court rejected that particular contention on the evidence, but helpfully summarised from decided cases the principles that govern designation under section 69 of the Act.
(1) The question for the LPA on designation is whether the area is of special interest, including the contribution of individual buildings to the area. (2) Of itself, the desire to protect an unlisted building is not a proper purpose of designation. (3) However, a designation is not unlawful merely because the process is prompted by a threat to demolish a particular building. (4) A designation may be progressed on an urgent basis to protect a building that makes a contribution to the proposed conservation area.
In the present case, the court took into account in particular the fact that the LPA had on two earlier occasions considered designating the area in question as a conservation area, and had delayed taking that step merely because of a lack of financial and staff resources. Furthermore, the LPA had been given the correct legal advice, namely that it was not lawful to designate a conservation area simply to preserve a building. Finally, the officer’s report recommending designation set out clearly the statutory test, and applied the statutory criteria to the area as a whole – not just to the claimant’s public house.
John Martin is a planning law consultant
