Listed building–Refusal to consent to demolition–Public inquiry–Appeal to Secretary of State–Criticisms of his decision rejected–Natural justice–No failure to take into account material considerations or to disregard immaterial ones–Appeal dismissed
This was an
application under Order 94, Rules of the Supreme Court, by General Accident
Fire & Life Assurance Corporation Ltd, who were aggrieved by a decision of
the Secretary of State for the Environment dated February 2 1976 on an appeal
by the applicants under paragraph 8 of Schedule 11 to the Town and Country
Planning Act 1971 against a refusal of listed building consent by Cheltenham
Borough Council. The applicants sought an order that the decision of the Secretary
of State dismissing the appeal be quashed, contending that he had failed to
take into account material considerations and had had regard to immaterial
ones, had acted contrary to the rules of natural justice in taking into account
matters not raised at the inquiry, and had given no clear or adequate reasons
for his decision.
George Dobry
QC and R J A Carnwath (instructed by Iliffe & Edwards) appeared for the
applicants. J Newey QC and D Latham (instructed by the Treasury Solicitor)
represented the respondent. Cheltenham Borough Council took no part in the
proceedings.
Giving
judgment, SLYNN J said the appeal concerned Oriel Lodge, Oriel Road,
Cheltenham, a building owned by the applicants. In 1973 the building, in the
Gothic revival style of the early 19th century, was listed under section 54 of
the Town and Country Planning Act 1971. The applicants applied under section 55
for listed building consent to demolish the building. The local planning
authority refused, stating that the buildings was of architectural merit and
was one of the few remaining examples of its kind in the town. It was within
the Cheltenham conservation area. In 1963 the applicants had obtained outline
planning permission to erect an office building on an adjoining site to the
east and to demolish Oriel Lodge and erect a four-storey office block on its
site. The first phase, on the land to the east of Oriel Lodge, was completed in
1967, and the applicants occupied that new office block. The applicants now
wished to proceed with the second phase, which would provide about 9,300 sq ft
of additional floor space. The inspector who conducted the public inquiry
reported that Oriel Lodge was a well-preserved produce of is period and worthy
of listing under section 54.
Mr Dobry
complained that the Secretary of State had adopted conclusions in the
inspector’s report based on matters which were not explored at the trial, so
that the applicants had no opportunity of dealing with them. These were the
possibility, which in the inspector’s view remained, of effecting some ‘first
aid’ in architectural or landscaping terms, so that the building could more
effectively be integrated into its surroundings, which consisted of more modern
buildings, and the further point that, although the office block to the east
was designed as the first phase of a larger proposal, it was so designed as to
stand as an individual design on its own. Mr Dobry relied on Charlton Sand
& Ballast Co Ltd v Minister of Housing and Local Government
[1964] EGD 386 and Fairmount Investments Ltd v Secretary of State for
the Environment [1976] 1 WLR 1255, per Viscount Dilhorne at p 1260.
It had long
been the law that a person exercising functions like those exercised by the
Secretary of State must not take into account matters prejudicial to the
applicant without giving the latter a chance to deal with them. But his
Lordship did not read Viscount Dilhorne’s speech as meaning that an inspector
could make no comment or express no view without first putting it to the
applicant and giving him the opportunity of dealing with it. One must look at
the circumstances of the case and see from where the inference had been drawn.
There was here no serious challenge to the contention that the building was of
historic interest, though the degree of such an interest might well have been a
matter for debate. A major question, if not the major question, at the inquiry
was whether this particular building was so incongruous in relation to other
buildings that it would be wrong to preserve it. The inspector came to a number
of conclusions relative to the question of incongruity. He clearly thought it a
well-preserved product of the period and that it contained features rendering
it worthy of preserving in its own right. The question of whether the building
really ‘fitted in’ was dealt with by the applicants in their contentions. The
applicants had the opportunity to comment on, and lead evidence on, the
question of incongruity. The inspector’s view was that there was sufficient
open space around both Oriel Lodge and two of its near neighbours to enable
visual incongruity to be avoided. His Lordship saw no risk of prejudice, since
the Secretary of State accepted the inspector’s conclusions in general, and he
did not believe that there was any real risk that the comments played any real
part in the Secretary of State’s decision, or were capable of having prejudiced
the applicant in any real sense.
Mr Dobry also
complained that the assertion that the building to the east of Oriel Lodge was
designed intentionally to stand alone was a conclusion of fact by the
inspector. But his Lordship did not so read it. It seemed to him that the
inspector recognised that the office block was planned as the first phase of a
larger proposal, and was clearly, on the appellants’ own case, intended to
stand alone for some time. His Lordship did not consider that, if the inspector
made a comment of this kind on material before him on which everybody had had
an opportunity to comment, that would involve any breach of the rules of
natural justice.
In his
Lordship’s view, the inspector was not bound to set out all the facts laid
before him, but he was not satisfied that the Secretary of State had left out
of account any matter which was material. The inspector’s report and the
documents had been considered by the Secretary of State, and his Lordship was
unable to say that any matter was introduced which might have affected the
Secretary of State’s mind, but with which the applicants had no chance to deal.
The appeal
was dismissed with costs.