 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Administrative Court) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Metro Construction Ltd. v London Borough of Barnet [2009] EWHC 2956 (Admin) (25 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/2956.html Cite as: [2009] EWHC 2956 (Admin) |
||
[New search] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
| Metro Construction Limited |
Claimant |
|
| - and - |
||
| London Borough of Barnet |
Defendants |
____________________
Robert McCracken, Q.C. & Jeremy Phillips (instructed by Solicitor to the Council) for the Defendants
Hearing dates: 3 November 2009
____________________
Crown Copyright ©
Mr Justice COLLINS :
"In the case of demolition, exceptions may be considered where the applicant can demonstrate that they have met the criteria to be found in PPG15 relating to unlisted buildings that make a positive contribution to the character or appearance of a Conservation Area, and that the proposed replacement building preserves or enhances the street scene and is a fitting replacement for the original."
The relevant policies are HC14 and 15. These read:-
"Policy HC 14 – Locally Listed Buildings – Demolition
Permission for the demolition of a locally listed building will be refused in accordance with the criteria to be found in PPG15 relating to unlisted buildings that make a positive contribution to the character or appearance of a Conservation Area. Where, exceptionally, demolition is acceptable, the proposed replacement must preserve or enhance the character and quality of street scene and be a fitting replacement for the original.
Policy HC15 – Locally Listed Buildings – Safeguarding
Development proposals affecting locally listed buildings and structures should seek to safeguard their special character, appearance and setting."
"4. Conservation Areas
4.1 Section 69 of the Act imposes a duty on local planning authorities to designate as conservation areas any 'areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance'. There are now more than 8000 conservation areas in England. Whilst listing procedures are focused on the protection of individual buildings, conservation area designation is the main instrument available to authorities to give effect to conservation policies for a particular neighbourhood or area. Designation introduces a general control over the demolition of unlisted buildings and provides the basis for policies designed to preserve or enhance all the aspects of character or appearance that define an area's special interest.
Assessment and designation of conservation areas
4.2 It is the quality of areas, rather than that of individual buildings, which should be the prime consideration in identifying conservation areas. There has been increasing recognition in recent years that our experience of a historic area depends on much more than the quality of individual buildings – on the historic layout of property boundaries and thoroughfares; on a particular 'mix' of uses; on characteristic materials; on appropriate scaling and detailing of contemporary buildings; on the quality of advertisements, shop fronts, street furniture and hard and soft surfaces; on vistas along streets and between buildings; and on the extent to which traffic intrudes and limits pedestrian use of spaces between buildings. Conservation area designation should be seen as the means of recognising the importance of all these factors and of ensuring that conservation policy addresses the quality of townscape in its broadest sense as well as the protection of individual buildings.
4.3 Local planning authorities also have under section 69 a duty to review their areas from time to time to consider whether further designation of conservation areas is called for. In some districts, areas suitable for designation may have been fully identified already; and in considering further designations authorities should bear in mind that it is important that conservation areas are seen to justify their status and that the concept is not devalued by the designation of areas lacking any special interest. Authorities should seek to establish consistent local standards for their designations and should periodically review existing conservation areas and their boundaries against those standards; cancellation of designation should be considered where an area or part of an area is no longer considered to possess the special interest which led to its original designation.
4.4 The more clearly the special architectural or historic interest that justifies designation is defined and recorded, the sounder will be the basis for local plan policies and development control decisions, as well as for the formulation of proposals for the preservation and enhancement of the character or appearance of an area. The definition of an area's special interest should derive from an assessment of the elements that contribute to (and detract from) it. Conservation areas vary greatly, but certain aspects will almost always form the basis for a coherent assessment; the topography – for example, thoroughfares and property boundaries – and its historical development; the archaeological significance and potential; the prevalent building materials; the character and hierarchy of spaces; the quality and relationship of buildings in the area and also of trees and other green features. The assessment should always note those unlisted buildings which make a positive contribution in the special interest of the area. More detailed advice on assessment and on other aspects of the management of conservation areas is set out in English Heritage's guidance note Conservation Area Practice.
4.5 The principle concern of a local planning authority in considering the designation of a conservation area should be to form a judgment on whether the area is of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance. In deciding whether it is desirable to designate, an authority may take into account the resources likely to be required, not only for the administration of conservation area controls, but also for consultation with local residents and formulation of policies for a new area; without follow-up, designation is unlikely to be effective in itself. An authority's justification for designation, as reflected in its assessment of an area's special interest and its character and appearance, is a factor which the Secretary of State will take into account in considering appeals against refusals of conservation area consent for demolition, and appeals against refusals of planning permission.
4.6 Given the nature of conservation area controls – essentially controls over demolition; strengthened controls over minor development; and the protection of trees – designation is not likely to be appropriate as a means of protecting landscape features, except where they form an integral part of the historic environment and that factor needs to be taken into account in considering any planning applications which would affect them. The Courts have held that it is legitimate in appropriate circumstances to include within a conservation area the setting of buildings that form the heart of that area (R v Canterbury City Council ex parte David Halford, February 1992; CO/2794/1991). Designation is clearly not a proper means of controlling activities (e.g. agricultural operations) which do not fall within the definition of development. Designation may well, however, be suitable for historic parks or gardens and other areas of historic landscape containing structures that contribute to their special interest and that fall within the categories subject to conservation area controls. Where there are no other reasons for designating a conservation area, trees may instead be protected by means of a tree preservation order.
4.7 There is no statutory requirement to consult prior to designation or cancellation of designation, but it will be highly desirable that there should be consultation with local residents, businesses and other local interests (e.g. amenity bodies), over both the identification of areas and the definition of their boundaries. The greater the public support that can be enlisted for designation before it takes place, the more likely it is that policies for the area will be implemented voluntarily and without the need for additional statutory controls. Local planning authorities should advise English Heritage and the appropriate regional Government Office when conservation areas are designated."
"4.26 in exercising conservation area controls, local planning authorities are required to pay special attention to the desirability of preserving or enhancing the character or appearance of the area in question; and, as with listed building controls, this should be the prime consideration in determining a consent application. In the case of conservation area controls, however, account should clearly be taken of the part played in the architectural or historic interest of the area by the building for which demolition is proposed, and in particular of the wider effects of demolition on the building's surroundings and on the conservation area as a whole.
4.27 The general presumption should be in favour of retaining buildings which make a positive contribution to the character or appearance of a conservation area. The Secretary of State expects that proposals to demolish such buildings should be assessed against the same broad criteria as proposals to demolish listed buildings (paragraphs 3.16-3.19 above). In less clear-cut cases – for instance, where a building makes little or no such contribution – the local planning authority will need to have full information about what is proposed for the site after demolition. Consent for demolition should not be given unless there are acceptable and detailed plans for any redevelopment. It has been held that the decision-maker is entitled to consider the merits of any proposed development in determining whether consent should be given for the demolition of an unlisted building in a conservation area."
"Appraisals should be carried out for all new or extensions to existing conservation areas as a matter of course, in order to inform the designation process. If a local authority has many conservation areas, priority should be given to preparing appraisals for those areas where the pressure of change is greatest."
While this does not state that an appraisal must always precede a designation, it would obviously be inconsistent with the guidance if such an appraisal was not carried out in advance unless there was a very good reason for not doing so. An imminent threat of demolition could justify a designation in advance of a full appraisal if but only if the authority was reasonably of the view that the area in question qualified to be designated and the demolition in question was likely to damage its character. In such circumstances, a proper appraisal should be undertaken as soon as possible. While the 1990 Act does not provide in terms for revocation of a designation, s.70(5) requires an authority to give notice to the Secretary of State of inter alia any cancellation of a designation. That presupposes that there is power to cancel and that power should clearly be exercised if an appraisal shows that a designation should not be maintained.
"Whilst designation can be a legitimate response to an actual or perceived threat to the character of an area, the first consideration should always be whether the area is of sufficient special interest to warrant designation, rather than whether designation would provide an additional control. Designation should never be undertaken solely in response to local pressure, or to bring the future of particular unlisted buildings under control."
There has been disagreement as to the true meaning of the last sentence. Does the word 'solely' govern both alternatives that follow or is it limited to the first? The existence of the comma may be determinative since, it is said, it is consistent only with the latter construction. I do not think the matter should hang on a comma. It is clear that the future of unlisted buildings may be a relevant consideration if they do provide a material contribution to an area which is worthy of designation and which would be harmed if they were to be demolished. But it is apparent that the desire to protect unlisted buildings and I think a fortiori a single unlisted building cannot justify a designation unless there is an area to which that building or those buildings make a real contribution. Thus if the motive for designation is to protect an unlisted building, that will suggest that the statutory powers are being used for a wrong purpose and so, as it seems to me, the planning authority must show a clear justification for the designation.
"If it appears to a local planning authority … that a building in their area which is not a listed building –
(a) is of special architectural or historic interest; and
(b) is in danger of demolition or of alteration in such a way as to affect its character as a building of such interest,
they may serve on the owner and occupier of the building a notice (in this Act referred to as a "building preservation notice")."
Such a notice (BPN) can remain in force for up to 6 months. It will cease to have effect if the Secretary of State either lists or decides not to list the building. Its effect while in force is to provide the building with the same protection as if it were a listed building (s.3(5)).
This led the claimant to obtain a report from professional heritage consultants. In their report produced in February 2008, the consultants' conclusion was that the building failed to meet the relevant criteria for listing in that it did "not possess the level of special architectural or historic interest that would warrant its inclusion on the statutory list of buildings of special interest". They recognised that it did contribute to local interest and was of some historic interest and that those interests were recognised by local listing. They observed in Paragraph 5.2.3:-
"The inclusion of the building on the local list is appropriate, and provides some development control to ensure that the local historic interest of the building is retained."
"It is disappointing that the landscape had been much disrupted at the time of our site visit, since this was clearly an intended part of the overall design and a lovely garden that formed a working and contemplative backdrop to the monastery itself. That said, it is not the case that had the hard elements of the landscape survived better, it could have substantively improved the architecture of the ensemble. However, all this taken into account, there is nothing formally remarkable about the architectural design and on balance we do not feel it stacks up for listing on the grounds of architectural interest."
She went on to consider historical interest and decided that, although it had social historical interest because of its association with the international development of the Carmelite Order of Nuns, it was neither an early nor an unique example.
"the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a man-made object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building."
The wall around the garden is a man-made structure. There is learning on what forms the curtilage of a building, but its garden does prima facie form a building's curtilage and I am satisfied that the 2 ½ acre garden surrounded by a wall is within the curtilage of the monastery. The wall is a man-made structure. And there does exist some protection for the garden inasmuch as many of the trees within it are subject to Tree Preservation Orders (TPOs) which mean that those looking from outside see the tops of a number of mature trees in the area of the garden.
"In order to facilitate the review of Conservation Areas, the council has agreed specific criteria which it will use in assessing whether an area has the special architectural or historic character necessary for designation. Areas exhibiting some or all of the following characteristics are therefore likely to be considered for designation:
- Distinct areas with a high concentration of buildings of historic or architectural value generally recognised by statutory or local listing:
- Areas containing a high proportion of attractive buildings with distinct qualities of age. Style, materials, and any other characteristics, particularly if these reflect local styles or group value;
- Areas with a townscape quality of merit which sets them apart from their surroundings, including views in and out, landmarks, distinguishable borders, paths and routes through the area, centres of activity and meeting points, prominent entry points, urban pattern and structure, density and scale etc;
- Areas with features of archaeological significance including scheduled ancient monuments and areas defined as being of special archaeological interest, particularly where these influence the landscape and built environment;
- Areas of historic, social, economic or architectural interest;
- Areas where a natural feature, historic open space, street pattern or other historic element makes a special contribution to the quality of spaces and the character of the area;
- Areas with green open spaces, trees, hedges and other natural elements of exceptional quality, which in relation to the built environment make a significant contribution to the character of the area;
- Areas with a distinct physical identity that has not been spoilt by insensitive development. "
"Can you look into the procedures for designating a Conservation Area as the developers have applied to Building Control for demolition [Ms Sissman] is not sure that we can prevent demolition of the LLB, as its residential use is not definite and they may get rid of it and then argue the legalities.
There's no need to consult as we can just designate, but the procedures need to be sorted out i.e. have we got delegated powers or does it have to go to the Committee, and if so which one. My understanding is that we have 6 weeks before Building Control have to give permission allowing demolition.
Could you therefore look into the above (urgently!) and discuss with [Ms Sissman]."
On the same day, Ms Sissman records in an e-mail to Mr Hardy that the officer in charge (who was on holiday in Spain) wanted Mr Hardy and another officer to 'write a DPR immediately to make the area a Conservation Area including the building, the wall etc'. It was needed urgently and should be 'cleared by all relevant people before Councillor M Cohen.
"Jonathan [Hardy] is drafting the DPR for the Committee in the assumption that we will be making the Conservation Area."
On the same day, Ms Sissman asked the Director of Planning Mr Murray whether he had decided 'if we were going to proceed with the designation of the Conservation Area'. If so, she would write to English Heritage seeking their approval. Mr Murray said he had agreed to the designation and suggested 'a quick visit with me to the site to assess its "setting"'. In addition, in reply to Ms Sissman, Mr Murray said that she and Mr Hardy should not 'worry about' approval processes. He went on:-
"We'll sort that somehow. The main thing is to get the report and designation processes going and a CA assessment which the Design and Heritage Team can get moving on now. I will speed up the clearance process and Committee/Cabinet."
"Currently, the building's importance is recognised by its locally listed status. However, this does not protect the building against demolition. Therefore, the designation of a conservation area around the site is imperative if this fine building, which is of great social and cultural importance, is not to be lost in the near future."
He stated that the building had 'undoubted architectural merit' and that the designation of the conservation area was therefore 'crucial if we are to retain this important part of the Borough's heritage'. The response from the Planning and Development Director for the South said that, although not listed, the monastery was clearly of very considerable local interest and warranted every effort to retain it. Thus English Heritage "supported the "proposed designation to secure its" long term preservation". There was also support from the Victorian Society.
"The proposal to consider the designation of the Conservation area has arisen from an immediate threat of demolition to the locally listed monastery."
Under the heading 'Reasons for Designation of the conservation area' it said that 'the qualities and special interest of the monastery building and its setting have only recently been fully appreciated, due to its limited access and concealment from public views'. In Paragraph 9.9 this is said:-
"By designating the site as a conservation area will allow the importance of this fine, locally listed building and its garden setting to be fully recognised and will allow the Council to resist its demolition in the absence of successful applications for conservation area consent and planning permission. It needs to be stressed that without conservation area status, the monastery, despite having locally listed status could be demolished without requiring planning permission. As a notification of intent to demolish has already been received by Building Control, the building would otherwise be removed without regard for its architectural, historical and social values to the community of Barnet and beyond."
The summary in Paragraph 10 states:-
"It is considered that the area including the Carmelite monastery and its grounds are of special architectural and historic interest, which it is desirable to preserve and enhance, and this should be recognised by the designation of a conservation area. Without such designation, all buildings on the site will almost certainly be destroyed and removed."
"Further to our telephone conversation of earlier today I write to confirm on the part of our client, the owner of the above site, that so long as meaningful discussions about the redevelopment of the site continue between the parties we are instructed to give an assurance on behalf of our client that the building will not be demolished."
They repeated that the claimant reserved the right to challenge a designation if one was made. They expressed a hope that 'any decision by the council can be deferred pending the further meetings concerning redevelopment of the site already agreed between the parties'.
"The [claimants' consultant's] report challenges the proposed conservation area designation as a means of protecting an individual building as being at odds with government advice. Yet, written support for designation has been received from the Director of Planning and Development (South) at English Heritage."
In reality, the support could not properly be regarded as the answer to the consultant's assertions.
"11.1 The report to the Finchley and Golders Green Area Environment Sub-Committee has outlined the site as having the necessary quality and interest to warrant designation as a conservation area. This proposal has been given overwhelming public support following the consultation exercise.
11.2 In the Barnet Adopted Unitary Development Plan (2006) it outlines the characteristics that are likely to result in the designation of a conservation area. It is considered that this site is an area of historic, social and architectural interest. It is also an area with a green open space with trees of exceptional quality which, in relation to the built environment makes a significant contribution to the character of the area. The site is also an area with a distinct physical identity that has not been spoilt by insensitive development.
11.3 The fact that the monastery is hidden away on a secluded site in the depths of suburbia is part of its appeal and interest. It is a hidden gem. The building is one of the oldest in this area and pre-dates most of the historic buildings in Golders Green town centre. Its distinctive gothic architecture is pleasing and characterful. The large, green open space to the south, with its numerous established trees provides an attractive setting for the building. The monastery has been altered very little since its construction and is perfectly suited for conversion and re-use. The site is clearly valued by local residents. The designation of a conservation area at this site is considered to be fully justified. A character appraisal statement will be prepared for the area.
11.4 The Council has very recently been informed that a revised application for the preservation and refurbishment of the monastery building is currently being prepared. Planning officers will seek to work closely with the applicants to ensure a high quality scheme for conversion is achieved."
"The email from Alan Ledden suggesting an undertaking not to demolish the building was not considered to be of sufficient weight to remove the need to designate the site a conservation area. Firstly, the email was not in itself an undertaking, but rather an offer to enter into one. Secondly, the offer of the undertaking was conditional on meaningful discussions about the redevelopment of the site between the parties. What constitutes "meaningful discussions"? Thirdly, in the process of drawing up an undertaking, the building could have been demolished. Fourthly, the offer to enter into an undertaking has to be considered against the notice which had been served on the Authority on behalf of the claimants of the intention to demolish the building. Fifthly, an undertaking would have no worthwhile, legal force."
In his statement, Cllr Cohen merely states that the offer made did not provide an effective safeguard. While the rejection of the offer may not be a determinative factor in this claim, it nonetheless was of some importance. The only basis that has been put forward for not trusting the claimant was a report from a neighbour that 'attempts' had been made to remove trees over Christmas 2007. That was investigated and nothing wrong had been done: no tree subject to a TPO had been involved. It was, however, said that action taken over Christmas was suspicious. The reality is that there was no good reason not to trust the claimant. It is not suggested that they are other than reputable developers and the undertaking was provided by thoroughly reputable solicitors.
"But … one has to ask whether the tail is wagging the dog, that is to say, whether the desire to prevent the demolition of a particular building led to the designation of the conservation area, as opposed to the former being simply one, albeit an important, consequence of the latter."
"Don't worry about 'approval processes'. We'll sort that some how. The main thing is to get the report and designation processes going and a C.A. assessment which the Design and heritage Team can get moving on. I will speed up the clearance process and committee/cabinet."
makes all too clear that the suitability of the site to be regarded as an area to be designated was not then regarded as the reason for designation. While the decision was that of the committee, not of the officers, it was also clear that Councillor Cohen at least was involved at an early stage. Thus, even if in the end designation may be supportable, the manner in which it was reached was in my judgment unlawful since the purpose of the designation was improper.