Town and country planning – Planning permission – Conservation area – Demolition of building – Claimant wishing to demolish building and redevelop site – Claimant applying for judicial review of decision of defendant local authority to extend conservation area preventing demolition of building – Whether defendant erring in law – Application granted
The claimant owned the former Debenhams department store at 37-45 High Street, Staines-on-Thames. On 10 November 2021, it submitted a planning application for the demolition of the building and redevelopment of site to provide 226 build-to-rent dwellings and commercial units, together with car and cycle parking, landscaping, amenity space and other associated infrastructure and works.
The planning application elicited 268 letters of objection. Reasons for objection included “loss of an iconic building” and “heritage impacts on nearby conservation areas and listed building”.
Planning permission was refused on the grounds of harm to the significance of designated heritage assets (including the Staines Conservation Area (SCA)); overdevelopment causing harm to the character and appearance of the area; and insufficient affordable housing.
At the date of the decision notice, the building did not fall within the SCA.
The claimant submitted a notification of intention to appeal against the refusal of planning permission. The defendant purported to review the decision and published a supplementary report which concluded that there should be no change.
On 29 June 2022, the defendant put the building on its local list of protected buildings and extended the SCA to include the store, even though Historic England had previously refused to list the building taking the view that it was not of sufficient architectural value.
The claimant applied for judicial review of that decision contending, amongst other things, that: the defendant failed to take into account the representations made on behalf of the claimant in response to the consultation exercise; and the exercise undertaken by the defendant in connection with the report was unlawful.
Held: The application was granted.
(1) The duty in section 69(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 to review the past exercise of its duty to determine what parts of an authority’s area should be conservation areas was both broad and ongoing.
The decision to extend the SCA to include the building had a material bearing on the claimant’s ability to deal with its property, in that the claimant could not demolish the building without express planning permission if it was in a conservation area.
Secondly, in a public law challenge of whatever kind, the courts were as a general matter cautious in their approach to ex-post facto reasoning.
The defendant’s case depended upon the supplementary report being, in its own terms, free from material legal error. Despite the bald assertion that the question of where the conservation area boundary should lie had been considered afresh, that was not borne out by a proper reading of the report. Its entire thrust, together with its conclusions, showed that the authors of the report were taking the decision as their starting point before considering whether anything in the representations was sufficiently persuasive to change that decision: Bloor Homes East Midlands Ltd v Secretary of State for Communities and Local Government [2014] EWHC 754 (Admin) considered.
(2) The supplementary report contended that (i) the tests for including a building within the National Statutory List of Buildings of Special Architectural or Historic Interest and (ii) the criteria under section 69 for designating a conservation area were “distinct and different”. However, there was a fundamental problem with that.
Section 69(1)(a) stated in terms that what was “desirable to preserve or enhance” by designation as a conservation area were “areas of special architectural or historic interest”. It was evident from the appraisal of the earlier officer’s report that great emphasis was placed, with regard to the proposed extension in respect of the building, upon the architectural interest of the building. It was highly relevant that Historic England had declined to list the building, concluding that it did not possess the quality of design, decoration or craftsmanship to mark it of special architectural interest.
(3) The officers’ reports were seriously misleading in that they omitted to mention the fact that the application to place the building on the statutory list had been rejected by Historic England. There was a clear need to provide members with a fair and balanced analysis of the architectural worth of the building. That included informing them of the outcome of the approach made to Historic England regarding possible statutory listing. Although that was not determinative of the view that could have taken of the building in the context of a review under section 69, it was obviously material: Trillium (Prime) Property GP Ltd v Tower Hamlets London Borough Council [2011] EWHC 146 (Admin); [2011] PLSCS 41 considered.
Standing back, the supplementary report did not, in its own terms, represent a legally satisfactory response to the fact that the representations were not considered when they should have been. There was more than a fanciful prospect of a different outcome if the impugned decision was taken afresh. There was no legitimate basis for withholding relief.
The defendant had failed to take account of the claimant’s representations in response to the consultation at the proper time; it did not do so in a legally adequate manner in the supplementary report; and it could not be said that it was inevitable or even highly likely that the outcome would not have been substantially different if the conduct complained of had not occurred.
(4) There was nothing wrong with the desire to protect a building being an impetus for the designation of a conservation area. What it must not be, however, was the impetus. A designation of a conservation area was not unlawful because the process was prompted by a threat to demolish a particular building. Thus, a desire to protect an unlisted building from demolition could not justify designation. But the existence of a particular building might contribute to the proposed area and a threat of demolition might prompt the taking of a decision whether to designate.
Considering the evidence as a whole, the desire to prevent the demolition of the building was “an impetus” rather than “the impetus” for the relevant extensions to the SCA: Metro Construction Ltd v Barnet London Borough Council [2009] EWHC 2956 (Admin); [2009] PLSCS 327 and R (on the application of Silus Investments SA) v Hounslow London Borough Council [2015] EWHC 358 (Admin); [2015] PLSCS 54 considered.
Paul Tucker KC and Jonathan Easton (instructed by Eversheds Sutherland (International) LLP) appeared for the claimant; Harriet Townsend (instructed by Spelthorne Borough Council) appeared for the defendant.
Eileen O’Grady, barrister
