Property developer gets designation of conservation area quashed

A major property developer has successfully challenged the London Borough of Tower Hamlets’ urgent designation of a conservation area.

In Trillium (Prime) Property Gp Ltd v London Borough of Tower Hamlets (Rev 1) [2011] EWHC 146, Trillium owned a 1930s neo-Georgian former Labour Exchange building in Poplar. The building was unlisted and had been unoccupied for several years. Adjacent to the building were four Victorian warehouses. The Limehouse Cut, inner London’s oldest canal, passes alongside the site.

In February 2009, the developer submitted a revised planning permission for the demolition of the Labour Exchange and the redevelopment of the site for 56 residential units and an office building.

A local campaign was launched to prevent demolition, but English Heritage refused to list the building and the council refused to put it on the borough’s list of buildings of local interest.

The council’s officers had previously concluded that the buildings should not form a conservation area, nor an extension to an existing area nor part of a new and larger area.

Officers then recommended approval of the development, but on 23 September 2009 the council’s strategic planning committee rejected the recommendation and refused permission. The reasons did not include loss of the building itself.

Pressure from local residents saw officers at Tower Hamlets re-examine the idea of a conservation area. An initial case for designation had been produced in July 2009 with a view to a public consultation in November 2009.

On 29 September 2009, Trillium gave notice under the Building Act 1984 of its intention to demolish the building after six weeks. Told of the threat of imminent demolition, Tower Hamlets’ chairman of the oversight and scrutiny committee then approved the urgent consideration of a conservation area.

The council decided against consulting Trillum or the owners of other commercial buildings along the cut which would have been included in the area as this would have alerted Trillium to the advantage of demolition. On 7 October 2009, the Cabinet at Tower Hamlets Council designated the Limehouse Cut Conservation Area.

Trillium challenged the decision on a range of grounds, including that the purpose of the designation was to prevent demolition of the building, not the statutory purpose of protecting the special character and appearance of the area.

The developer also claimed that relevant considerations had been ignored, namely the previous refusals to include the building in a conservation area nor to include it on the local list, and irrelevant considerations were taken into account such as the protection of ecological and biodiversity and the improvement of accessibility to the Cut.

Trillium argued that Tower Hamlets had acted unfairly and in breach of the company’s legitimate expectation that it would be consulted on the designation.

Mr Justice Ouseley rejected the developer’s primary contention that the real purpose of designation was the protection of a single unlisted building, and not the permissible one of designation of an area of special architectural or historic interest, the character or appearance of which it was desirable to preserve or enhance.

The judge said the initial driving force behind consideration of a conservation area was to find a way of preventing demolition of the Labour Exchange at 307 Burdett Road, but added that “that is not unlawful as the starting point”.

Mr Justice Ouseley said officers’ thinking had evolved, citing the documentary evidence that included a report in April 2009 that suggested there was merit in a conservation area.

The judge concluded that the merits of designation and the timing and manner of the decision “were inextricably but not unlawfully linked in the officers’ minds”.

He added: “In my judgment, they remained so in the Cabinet’s mind, adopting what officers recommended for the reasons officers had given. Designation had merit; designation was needed now to protect the Area from the effect of demolishing a building which the Cabinet thought had merit and should itself be protected. That is not unlawful.”

The judge also refused to quash Tower Hamlets’ decisions as to urgency, consultation and designation.

However, Mr Justice Ouseley did quash the designation because the officer report to councillors had a number of failures and was misleading “in a significant way”. Members had ignored relevant considerations, he added.

“They did not know of the history of consideration, the true position of English Heritage and would have gained the impression, with the lesser points, that the particular designation was far less contentious and more generally thought appropriate on its proper merits than it was,” he found. These omissions were not made good by debate, oral information or the sort of knowledge that members would have had, the judge said.

Mr Justice Ouseley also quashed the designation on the basis that the report to councillors was “significantly based on irrelevant considerations which were taken into account by members”. He added that the report had “failed to give them the clear advice as to the proper basis for considering designation which they needed; they were misled as the significance of local policy”.