Town and Country Planning Act 1971–Application by local council to quash decision of Secretary of State refusing consent to demolition of building in conservation area–Council had given themselves permission to develop an area which included the building in question–Secretary of State entitled to consider merits of proposed redevelopment despite permission being deemed to have been granted by him–No ground for criticism that Secretary of State had failed to consider evidence at inquiry as to costs of preservation–Application dismissed
This was an
application by the Richmond upon Thames Borough Council for an order quashing a
decision by the Secretary of State for the Environment in which he had refused
consent for the demolition of an old mission hall by the Thames at Twickenham
which was included in a conservation area. The council had granted themselves
planning permission for the redevelopment, such permission being deemed to have
been granted by the Secretary of State by virtue of the Town and Country
Planning General Regulations 1974.
D Hands
(instructed by A W B Goode, municipal offices, Twickenham) appeared on behalf
of the applicant council; H K Woolf (instructed by the Treasury Solicitor)
represented the Secretary of State.
Giving
judgment, SIR DOUGLAS FRANK QC said: This is an application to quash a decision
by the Secretary of State refusing consent for the demolition of a building in
a conservation area. The building concerned is an old mission hall by the
Thames at Twickenham. The council had given themselves planning permission for
the redevelopment of the site with a yard for yacht storage and a two- and
three-storey building to be used for housing old people. By the Town and
Country Planning General Regulations 1974 that permission was deemed to have
been granted by the Secretary of State. The main ground for refusing consent
for the demolition of the building was that the proposed new building would
intrude to an unacceptable degree in the conservation area as such. The
Secretary of State’s decision is attacked on two grounds and I shall deal with
each in turn.
First, it is
said that the Secretary of State was not entitled to take into account the
merits of the applicant’s proposed development, for which planning permission
exists. Mr Hands for the council submitted that as the Secretary of State was
deemed to have granted permission for the new development, it was not open to him
to give further consideration to the scheme already permitted. He drew
attention to section 277 A of the Act of 1971 as amended by the Town and
Country Amenities Act 1974 which provides, inter alia, that section 55
shall have effect in relation to buildings in a conservation area and that the
effect of that is to apply the listed building procedure. He then referred to a
decision of the Secretary of State and also to the case of Kent Messenger
Ltd v Secretary of State (1976) 241 EG 25, [1977] 1 EGLR 112 for the
proposition that in dealing with an application for listed building consent or
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. I should, however, point out that as yet
there is no decision by the court that that proposition correctly states the
law. However, Mr Woolf submitted that, whatever may be the law in respect of a
listed building consent, different considerations may apply to the demolition
of a building in a conservation area. He referred particularly to subsection
(5) of section 277 which provides:
Where any
area is for the time being designated as a conservation area, special attention
shall be paid to the desirability of preserving or enhancing its character or
appearance in the exercise, with respect to any buildings or other land in that
area, of any powers under this Act, Part I of the Historic Buildings and
Ancient Monuments Act 1953 or the Local Authorities (Historic Buildings) Act
1962.
He submitted
that the function described in that subsection could not be performed without
seeing what was to be substituted and how it would fit into the conservation
area.
I agree with
Mr Woolf and I further tested the matter in this way. I asked Mr Hands whether
his argument would hold good in the ordinary case, that is to say, where the
applicant was a private developer and permission had been given by the local
planning authority for the redevelopment. I then asked, would the Secretary of
State be prevented from taking the permission into account? Mr Hands said that that was a different case
because in the instant case the permission is one deemed to have been given by
the Secretary of State. I cannot think that the provision in the General
Regulations stating that a permission is deemed to have been granted by the
Secretary of State can produce as a side wind a prohibition against his
considering such a deemed permission merely because the local planning authority
happened to be the developers. I further think that the council’s submission
cannot be reconciled with the intention of Parliament that conservation areas
shall be conserved.
Mr Hands’
second submission has rather more substance. It is that the respondent failed
to give any, or any proper, consideration to the evidence given at the inquiry
about the cost of preserving the buildings. I think there can be no doubt that
the question of cost is relevant. Certainly the inspector recorded the evidence
given in respect of it and it was apparently unchallenged as to amount, but it
was said in argument that the cost was not an unreasonable sum. In his
conclusions the inspector said: ‘It is evident that a substantial amount of
work would need to be done to bring the hall and cottage back into use’ and he
went on to make some comments on the condition of the property. It seems to me
necessarily inherent in that conclusion that it is a finding of fact that money
would have to be spent in carrying out a
inspector dealt more explicitly with the question of costs, I am satisfied that
he took it into account and that he has sufficiently stated that he did so. Mr
Hands also said, although it is not in his notice of motion, that even if cost
was dealt with, the utility of a repaired building was not considered. In fact
the inspector said: ‘I accept that Richmond Council would have difficulty in
putting the buildings to use but I was not satisfied that the efforts which had
been made to find a new use or user were exhaustive.’ In my view that is a sufficient answer to
this submission.
In view of the
foregoing this appeal will be dismissed.
The appeal
was dismissed with costs.