Listed building permission refused–Secretary of State fails to deal with substantial point canvassed before the inspector–Utility of restoration an important consideration, as well as its cost, but decision letter makes no mention of the matter–Order quashed, with comments on issues that ought to be taken into account in any further proceedings
This was a
motion by Kent Messenger Ltd, of 69 High Street, Ashford, Kent, for an order
quashing a decision of the first respondent, the Secretary of State for the
Environment, confirming the refusal by the second respondents, Kent County
Council, of permission for the demolition of a listed building at that address.
A de Piro QC
and D Keane (instructed by Nabarro Nathanson) appeared for the applicants, and
H K Woolf (instructed by the Treasury Solicitor) represented the first
respondent. The second respondents took no part in the proceedings.
Giving
judgment, PHILLIPS J said: Mr de Piro moves on behalf of the Kent Messenger Ltd
for an order quashing a decision of the Secretary of State for the Environment
given by a decision letter dated June 30 1975. The effect of that decision
letter was to dismiss an appeal by the Kent Messenger Ltd against a decision of
the Kent County Council. The effect of that decision was to refuse consent to
the Kent Messenger Ltd for the demolition of a listed building at 69 High
Street, Ashford, Kent. The building in question is to be found in the town
centre of Ashford and was described as being within an attractive group of old
buildings on the south side of the High Street immediately to the north of St
Mary’s Church. For the purpose of this motion it has not been necessary to go
into details of the nature of the building and its surroundings, but it can, I
think, be generally said that the merit of the building lies not so much in the
building itself but in its contribution to the group of buildings in which it
is to be found.
The
applicants’ case, developed at length before the inspector who held an inquiry,
raises a number of points. One of them was that the building was in a very
dilapidated state, and that it would cost a very considerable sum of money to
put it into repair; a figure of something in the order of £45,000 or £50,000
was spoken of. Even then, it was said, it would not really meet modern
requirements as to accommodation, in a number of respects. Many of the ceilings
were too low, the fire precautions would be inadequate, and so on; with the
consequence that even with the expenditure of that large sum of money the
building could only be put to a fairly limited use, and quite large parts of it
would be virtually unusable. That case was developed, of course, with regard to
the use to which the Kent Messenger Ltd wanted to put it, but it is difficult
to see whether the situation would be much better in the case of any other
occupier. That was only one of the matters urged on behalf of the Kent
Messenger Ltd, but it was one of the matters which found acceptance by the
inspector. He held his inquiry and made his report to the Secretary of State.
He found that the condition of the building was not good, that it was decayed,
that important parts of the timber frame required to be repaired and restored,
that it was structurally unsound, and that the work of reparation would be
extensive and costly. He then went on:
Furthermore
unless such repair work were to be accompanied by relatively major internal
alterations and improvements, the amount of the office accommodation provided
by the restored building would be similar to that now available, and much of
this would probably remain substandard in several respects, including
daylighting and headroom. It seems to me, therefore, that there is some
substance in the appellants’ submission that the retention and repair of the building
would be uneconomic, and that redevelopment with a new building providing more
and better office accommodation would be a more practical and economic
solution.
He went on to
find that the building which the Kent Messenger Ltd proposed to put up in its
place (if it got permission to demolish the existing building), although in
part a facsimile of the old building, was not in all respects suitable; so he
recommended, that the appeal against the refusal of planning permission, which
he also had under consideration, should be rejected. It is clear, I think,
without looking at it in detail, that in his opinion it was likely that some
modification and adaptation of the plans for the proposed new building could
result in a building which could take the place of the old building without
much, if any, damage to the architectural amenity of the area. He went on to
deal with other matters, and then in the last paragraph of his report he said
this:
Having regard
to these conclusions it seems to me that although it would be possible to
repair the existing building, the cost of this would be high and the quality of
the accommodation provided would be poor by modern standards, and therefore its
repair would not be an economic proposition for the appellants. If the replacement
building were to be of a suitable design and materials, the loss of the old
building would not necessarily be detrimental to the character of the
conservation area. Consequently I consider that it would be reasonable to grant
listed building consent for the demolition of the existing building. However, I
am of the opinion that the submitted plans for the proposed new building are
not acceptable, because the design of the High Street facade is not entirely
satisfactory for its setting, for the reasons given in paragraph 53.
The matter in
due course was considered by the Secretary of State. About the planning
permission he agreed with the inspector. About the application for consent to
demolish the listed building he disagreed with the inspector. In his decision
letter the Secretary of State on June 30 1975 set out in extenso the
whole of the part of the inspector’s report under the heading of ‘Conclusions,’
including the parts which I have just summarised and the passage which I have
just read.
and historic value (I am not sure what evidence there was of historic value),
the Secretary of State in effect gives three reasons for disagreeing with the
inspector. These are in paragraph 4 of the letter. They are not numbered, but
it is convenient to isolate them in that way. First of all he says:
He considers
that the inspector gave insufficient weight to the importance of preserving the
building which is both architecturally interesting in itself and in its
setting.
In his
submissions on this point Mr de Piro has complained of that statement that if
it is a fresh finding of fact no opportunity was given to the Kent Messenger
Ltd to deal with it, and if it is not, it is not very clear what its importance
is. I do not accept that criticism. I think there that all the Secretary of
State is doing, in perhaps not very accurately drafted language, is saying that
he considers that the building is of very considerable architectural interest. Then
the decision letter goes on, and this is the second of the reasons:
He cannot
accept that a new building, only in part a facsimile of the original, would in
any way compensate for its loss or that it would not have any very detrimental
effect on the appearance of the row of old buildings, or the street scene, or
in the conservation area generally.
As to that Mr
de Piro has said that the merits of the new building were irrelevant, and
secondly, and in any event, it was an unfortunate way of expressing it, because
the inspector had taken the view that planning permission should not be
granted, but that a purely minor adaptation of the plans might yield a
satisfactory result. So, says Mr de Piro, first of all he is wrong to consider
this matter at all, and secondly, he is wrong to consider these particular
plans rather than some other building, perhaps of a similar but adapted nature,
which might be put up in its place. He draws attention, among other things, to
the view of the Secretary of State in the decision letter in a different case
in relation to 25 Kensington Gore and 197-200 Queen’s Gate, London SW7
[Reference APP/4434/A/73/12016 and APP/4434/E/73/66 dated November 20 1975 on
appeals by the Royal College of Art against decisions of Westminster City Council].
Here was a similar problem where the Secretary of State in his decision letter
says:
The
inspector’s views as to the architectural merit of the proposed new building
are noted, but in dealing with an application for listed building consent for
the demolition of a listed building the Secretary of State must have regard to
the desirability of preserving the building, and the quality of the proposed
replacement building is not material.
He suggested
that there is there an inconsistency and that both approaches cannot be right.
Now there is an appeal pending to this court in that case, in which that
question is the substantial ground of appeal. In those circumstances, having
regard to the view which I have formed of the third point, which I am coming to
in a moment, I do not think it is necessary to decide the question in this
case, particularly having regard to the fact that it was one of the contentions
of the Kent Messenger Ltd that the building for which they were seeking
planning permission would in fact make a very adequate substitute for the
building which they wished to pull down. Consequently the inspector dealt with
it, and not surprisingly the Secretary of State dealt with it. All I would say
in finality about these first two points is that because of my conclusion on
the third point, which I intimated to Mr de Piro when he came to reply, he has
not in his reply dealt with them. If, therefore, this case should go to appeal,
he is not to be taken to have exhausted all that he wished to say about them.
So I come to the third point, and I go back to paragraph 4 of the decision
letter where the Secretary of State says:
He is
satisfied, in view of the intrinsic interest of the building and its position,
that despite its present condition, which is admittedly poor, and while
accepting that it would be costly to restore, he would not be justified in
giving consent to its demolition.
That is a
reflection to some extent of the views expressed by the inspector in paragraphs
51 and 54 of the report. Paragraph 54 of the report seems to me to contain a
very important part of the inspector’s reasoning. He puts it right in the
forefront of his reasoning. I will read part of it again: ‘. . . the cost of
this would be high and the quality of the accommodation provided would be poor
by modern standards, and therefore its repair would not be an economic
proposition for the appellants.’ If one
sets that against what the Secretary of State says in paragraph 4, it is quite
clear that the Secretary of State is dealing only with the cost of restoration,
and makes no reference to the utility of restoration. He makes no mention of
the fact that this very expensive restoration would, if the inspector was
right, produce a result that would be of very limited value.
The question,
first, is how that should be construed. Mr Woolf says that, particularly having
regard to the fact that the Secretary of State has just set out in this
decision letter the relevant part of the inspector’s report, it cannot be
supposed that he was omitting from consideration what to the inspector was an
important consideration, namely the value or the lack of value to be obtained
by restoration. In effect what Mr Woolf suggests is that the form of words
used, ‘it would be costly to restore,’ is shorthand that embraces the whole
question of cost, the utility of what would be obtained as a result of the
expenditure and the general economic equation of it. I cannot accept that. Cost
is one thing, and saying it is costly to restore is one thing. The consequences
of the expenditure, and the utility of the expenditure, are another. There
seems to me to be a plain omission here. I think it is an omission which would
immediately hit the eye of anybody interested in the outcome of this appeal, in
this case in particular the Kent Messenger Ltd. The intelligent reader would
immediately say: ‘Well, the inspector was for me, and one of the reasons he was
for me is because he thought the expenditure would be largely wasted. The
Secretary of State is against me. What did he have to say about that? You can read this decision letter up and down
and you will not find the answer.’ So I
think that there was a substantial omission of an important point. The question
then is what conclusions does one draw from that omission, and the answer, I
think, is that without guessing it is not possible to draw any conclusion at
all. It may be just a mistake in draftsmanship; it may be that in fact the
Secretary of State overlooked this consideration altogether, or it may be that
the Secretary of State took this consideration into account but found that it
was of so little consequence that he thought it not worth mentioning. Against
that background I reach the conclusion that this is from the point of view of
the Kent Messenger Ltd an unsatisfactory state of affairs. They have appealed,
the inspector was for them, the Secretary of State was against them, and they
do not know why.
The next
question is, is there power to intervene, and if there is ought it to be
exercised? It is necessary to turn to
section 245 of the Town and Country Planning Act 1971. Subsection (4) provides:
‘On any
application under this section the High Court . . . (b) if satisfied that the
order or action in question is not within the powers of this Act, or that the
interests of the applicant have been substantially prejudiced by a failure to
comply with any of the relevant requirements in relation thereto, may quash
that order or action.’
I will not
take time to decide whether there would be power here to act on the grounds
that the Secretary of State’s order is not within the powers. That case has
been argued, it being
restoration but the effect of restoration; whether it would be useful or not.
The fair inference is that the Secretary of State ignored that, and if he did
that then there was a failure by him to take into account matters which he
ought to have taken into account, and if that is the case, then he acted
outside the scope of his powers. I prefer not to decide that, because I would
want to look a little more closely at the authorities, and because I am
satisfied that I can decide it under the second part of paragraph (b); ‘failure
to comply with any of the relevant requirements.’ The relevant rules are the Town and Country
Planning (Inquiries Procedure) Rules 1974 (SI 1974 no 419), where it is
provided in rule 13 that ‘the Secretary of State shall notify his decision and
his reasons therefor in writing to the applicant,’ and so on. In the case of Lightfoot
Court Properties Ltd v Devlin and others (1970) 21 P & CR 689
the Divisional Court, presided over by Lord Parker CJ, when considering a
different statute, expressly approved and adopted the words used by Megaw J in
the case of Re Poyser and Mills Arbitration [1964] 2 QB 467. That
itself was a case dealing with a different statute and jurisdiction. There
Megaw J said this in reference to the Tribunals and Inquiries Act 1958:
Parliament
having provided that reasons shall be given, in my view that must be read as
meaning that proper, adequate reasons must be given; the reasons that are set
out, whether they are right or wrong, must be reasons which not only will be
intelligible, but also can reasonably be said to deal with the substantial
points that have been raised.
He goes on to
say:
I do not want
it to be thought for a moment that I am saying that any minor or trivial error,
or failure to give reasons in relation to every particular point that has been
raised at the hearing, would be sufficient to invoke the jurisdiction of this
court.
That test,
there approved, applies equally to the jurisdiction which I have to exercise in
this case. If that be right, then the question is whether or not the reasons
given by the Secretary of State here can be described as being proper and
adequate. In my judgment they cannot, quite simply because they omit any
reference whatever to what was an important material argument of the Kent
Messenger Ltd and one, indeed, which had played a substantial and influential
part in the mind of the inspector in leading him to the recommendation which he
made. I accept, of course, two submissions of Mr Woolf: first, that it would be
wrong for this court to approach a decision letter with niggling pedantry (and
I hope I have not done so in this case); and secondly, that a decision letter
cannot be impugned merely because it does not refer to, or take account of,
every submission that has been made to the inspector or every point that has
been controversial. But it must, I think, if it is to be regarded as a
satisfactory and sufficient statement of reasons, deal at least with the major
important points. In my judgment this decision does not.
It is
necessary, I think, however one phrases it, to go on and consider further whether
that leads to the conclusion that there has been an error of law or (in the
language used in section 245) that ‘the applicant has been substantially
prejudiced by a failure.’ Whichever way
I approach it, the answer to me is yes. I think the applicant has been
substantially prejudiced, because among other things he does not really know
what view the Secretary of State took on this important point; and there is at
least a potential error in law, because we do not know what view the Secretary
of State formed about it. We do not know, because he omitted all reference to
it. It may be that he regarded it as irrelevant. If he did I should consider
that to be an error in law, making it clear that I am using the word
‘irrelevant’ in this sense, that it was in my judgment a matter which ought to
be taken into consideration, that is to say a matter to which he had to apply
his mind as being one of the relevant factors in reaching his decision,
accepting of course that the weight which he chose to give to it would be
entirely a matter for his consideration and nobody else’s. For those reasons,
in my judgment, the applicant is entitled to succeed, and entitled to have the
decision of the Secretary of State quashed so that there will be a further
consideration of the matter. What I would like to say in finality is this:
although I have expressed no view, for the reasons given, on the second point
argued by Mr de Piro, it would be right, I think, for me to say this, that when
the matter is further considered, whether by the Secretary of State originally,
or if there is a further inquiry by the inspector or both of them, it ought to
be borne in mind that if and in so far as it is material to have regard to the
nature of a replacement building it ought not to be limited, I would have
thought, to the building which the applicant has under contemplation, but ought
to extend to and embrace any kind of building which might reasonably be
considered to be likely to succeed in obtaining planning permission. In other
words, it is less a question of a particular replacement building as such and
more a question, I would have thought, of what, if any, replacement building is
feasible. For the reasons given the application is allowed and the order
quashed.
The
applicants were awarded costs.