The “We’ve extended the conservation area” gambit

A High Court judge recently found that a borough council fell into a number of legal errors when extending a conservation area to include a former department store that developers were seeking to demolish. Simon Ricketts examines the case.

Once a building is included within a conservation area, the permitted development right to demolish it, by virtue of Schedule 2, Part 11, Class B of the General Permitted Development Order, no longer applies.

What a coincidence it would be if, after redevelopment of a building was proposed (in the face of local opposition), a local authority were to extend an existing conservation area so as to include the building, so as to prevent its demolition without the need for planning permission….

Which brings us to the interesting case this week of Future High Street Living (Staines) Limited v Spelthorne Borough Council (Lane J, 28 March 2023).

The claimant owns the former Debenhams store in Staines. Its application for planning permission for demolition and redevelopment was submitted on 10 November 2021 and elicited 268 objection letters, including objections on the basis that this would represent the “loss of an iconic building” and that there would be “heritage impacts on nearby conservation areas and listed building”. The application was subsequently refused on 6 June 2022, the reasons for refusal including “harm to the significance of designated heritage assets (including the [adjoining Staines Conservation Area]) and non-designated heritage assets” and “overdevelopment causing harm to the character and appearance of the area”.

Prior to the refusal, presumably to narrow the points in contention in relation to the planning application, on 25 February 2022 the claimant made an application to determine whether prior approval was required for the demolition of the building under the GPDO. On 24 March 2022 the council confirmed that prior approval was required (not in itself a big issue in that the prior approval process cannot engage with the principle of demolition as opposed to how it is carried out). But it then extended the Staines Conservation Area to include the building, before refusing prior approval on the basis that the building was now in a conservation area and therefore the GPDO permitted development right to demolish was no longer available.

Before deciding to extend the conservation area, the council had carried out a consultation process and it was reported internally within the council that there were no material objections to the proposal. Somehow, the council had overlooked detailed representations submitted by a heritage specialist (Pegasus’ excellent Gail Stoten) on behalf of the claimant.

When the claimant issued a pre-action protocol letter threatening to judicially review the decision to extend the conservation area, the council then prepared a supplementary report that purported to consider the overlooked set of representations, before concluding that the points made did not change the council’s decision.

The claimant relied on four grounds in its subsequent claim for judicial review:

• Ground 1 – The council acted unlawfully in making the decision to extend the conservation area in that its true purpose was to prevent its demolition and redevelopment – an improper purpose and therefore contrary to law.
• Ground 2 – The council failed to take into account the claimant’s representations.
• Ground 3 – The officers’ reports were seriously misleading in not referring to the fact that Historic England had declined to list the building “on the basis that the Building did not possess the quality of design, decoration and craftsmanship to merit being of special architectural interest”.
• Ground 4 – The purported reconsideration of the decision by way of the supplementary report was unlawful.

The claimant was represented at the hearing by Paul Tucker KC leading Jonathan Easton (now KC but not earlier in the week when judgment was handed down!).

On the first ground the judge stated:

“Since the purpose of designating or extending conservation areas is to preserve or enhance areas of “special architectural or historic interest”, the designation or extension of a conservation area which is motivated principally by a desire to protect a specific building and prevent its demolition will be unlawful.”

The judge considered that on the basis of the case law the question was whether the desire to protect the building from demolition was one impetus for the designation (which would be lawful) or the only impetus (unlawful). This is obviously a high bar for a claimant to clear. On the facts he concluded that it was the former and so ground 1 failed.

However the claim succeeded on the other grounds.

In relation to grounds 2 and 4:

“(i) the defendant failed to take account of the claimant’s representations in response to the consultation at the proper time; (ii) it did not do so in a legally adequate manner in the SR (if that was what the defendant purported to do in the SR); and (iii) having regard to (ii), it cannot be said that it is inevitable or even highly likely the outcome would not have been substantially different if the conduct complained of had not occurred.”

In relation to ground 3:

“…there was a clear need to provide Members with a fair and balanced analysis of the architectural worth of the Building. This included informing them of the outcome of the approach made to Historic England regarding possible statutory listing.” It was also obviously material that “in both 2004 and 2016, the Building had not been regarded as sufficiently important to merit even local listing.” Nor could members have been expected to know about these matters. “It has not been shown that their local knowledge extends to being aware of negative decisions on potential listing on the part of Historic England. Likewise, Members may not have been aware (or may have forgotten about), the previous local list review exercises.”

Given a local planning authority’s breadth of discretion in deciding whether to designate or extend conservation areas, this was quite a win for the claimant, basically down to the council’s administrative own goals (full credit to PT KC and JE KC of course…).

Let’s not forget the wider issues swirling around on the question of demolition of buildings, in the context of embodied carbon (we still await the Secretary of State’s M&S Oxford Street decision). See for example this campaigning piece Could a Grade III listing for buildings halt the UK’s tide of demolition? (22 November 2022) by Will Arnold, head of climate action at The Institution of Structural Engineers or this contrary view Why grade III listings should be avoided at all costs (Edward Clarke in The Times, 12 March 2023 (behind a paywall). But it surely brings the heritage system into disrepute when conservation designations are relied upon as a convenient means of controlling demolition for other purposes, whether those may be a reaction to the spectre of redevelopment or arising from laudable concerns about climate change.

Simon Ricketts is a partner at Town Legal. This article first appeared on his Simonicity blog.