Listed building consent – Extent of listing – Application for consent to remove second world war pillbox fortification in curtilage of listed farmhouse – Consent refused – Application to court for declaration that pillbox not part of listed building and needing no consent – Whether such proceedings appropriate only after appeal to secretary of state exhausted – Whether planning authorities having jurisdiction to decide whether listed building consent required for structure in question – Preliminary issues determined
The claimants owned a farmhouse that was given Grade II listing in 1985 pursuant to the Planning (Listed Buildings and Conservation Areas) Act 1990. A few metres from the farmhouse stood a “pillbox” that had been constructed in around 1940 as part of the national defences during the second world war. In 2007, the claimants applied to the defendant council for listed building consent to demolish the pillbox. The justification statement submitted with the application set out the claimants’ view that the pillbox was not covered by the 1985 listing. The defendants refused the application on the grounds that the pillbox was a curtilage listed building within the grounds of the farmhouse and that it was an important historic feature of the both the listed building and the wider area.
The claimants did not appeal to the secretary of state against that decision. Instead, they brought court proceedings under CPR 8, seeking a declaration that the listed building did not include the pillbox. The defendants contended that although the court had jurisdiction to determine whether the pillbox was a listed building, it was inappropriate for that issue to be determined before an inspector had been given an opportunity to determine the matter on an appeal under section 20 of the 1990 Act. That question was tried as a preliminary issue in the proceedings. By that time, the time limit for making a section 20 appeal had expired.
The claimants submitted that the statutory procedure for listed buildings consent did not provide for a case where the issue was whether the structure in question was subject to listing, and that neither the defendants nor the secretary of state’s inspector on appeal had jurisdiction to decide that question; each was confined to deciding whether consent should be granted, on the assumption that it was required, and it was for the courts to determine the question of whether such consent was necessary.
Held: The preliminary issue was determined in favour of the defendants.
The initial decision on whether listed building consent was necessary was one for the planning authority and then, if necessary, for the secretary of state on appeal. Those concerned in planning matters had long worked on the assumption that the planning processes were available for determining whether listed building consent was necessary in any individual case, and parliament had not chosen to intervene: Debenhams plc v Westminster City Council [1987] 1 EGLR 248 and City of Edinburgh Council v Secretary of State for Scotland [1997] 3 PLR 71 considered. It would be highly inconvenient if such questions routinely had to be decided by the courts before the substantive points could be addressed.
The normal planning processes of application and appeal were the best way of resolving all the issues in the instant case, including those covered by the declarations sought. Although any appeal from the defendants’ decision was out of time, there could be no objection to the issues being raised on a fresh application and, if that were again refused, on an appeal. The proceedings would be stayed with a view to that taking place.
Charles Mynors (instructed by Atkins Wilson & Bell LLP) appeared for the claimants; Ian Albutt (instructed by the legal department of Guildford Borough Council) appeared for the defendants.
Sally Dobson, barrister
