Council decision to extend conservation area to save department store building was unlawful, High Court rules

A High Court judge has found that Spelthorne 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.

In Future High Street Living (Staines) Ltd v Spelthorne Borough Council [2023] EWHC 688 (Admin), Mr Justice Lane found that the council failed to take into account representations from the developer on time, and officers had failed to inform councillors that Historic England had found the building to be of no special architectural interest.

The claimant, who owns the former Debenhams department store in Staines, wishes to demolish the building in order to build flats on the site.

It submitted a planning application for the development in November 2021, which the council later refused on 6 June 2022.

The council's decision notice alleged harm to the significance of designated heritage assets, including the Staines Conservation Area (SCA) and non-designated heritage assets, and overdevelopment causing harm to the character and appearance of the area.

However, at the date of the decision notice, the building did not fall within the SCA.

In February 2022, the claimant made an application to determine if prior approval was required for the demolition of the building under the Town and Country Planning (General Permitted Development) (England) Order 2015 Schedule 2, Part 11, Class B.

In an email dated 24 March 2022, the council determined that prior approval would be required for the demolition. The building did not fall within the SCA at that date.

Following a report to the council's Planning Committee dated 30 March 2022, the building was included in the Local List of Buildings and Structures of Architectural or Historic Interest with immediate effect.

It was not until 29 June 2022 that the council decided to extend the Staines Conservation Area (SCA) to include the building.

The developer's prior approval application was then refused on 1 July by the council for the following reason: By a decision notice dated 1 July 2022, prior approval was refused for the following reason: "The former Debenhams building, subject to this application, is located within the Staines Conservation Area and its demolition would be development and relevant demolition and NOT be Permitted Development under Part 11 of the Town and Country Planning (General Permitted Development) (England) Order 2015 (as amended) and would require planning permission."

On 22 July, the developer sent a pre-action protocol letter. The High Court agreed to hear the claim on four grounds.

Ground 1 contended that the defendant council acted illegally in making the decision to extend the SCA. The true purpose of including the building in the extended area was to prevent its demolition and redevelopment. That amounted to an improper purpose and thus was contrary to law, it alleged.

Ground 2 argued that the council failed to take into account representations made on behalf of the claimant in response to the consultation exercise.

Ground 3 alleged that the officers' reports of the defendant were "seriously misleading" as they omitted to mention a number of material considerations. This included omitting the fact that Historic England had rejected an application to make the building a listed building on the basis that it did not possess the quality of design, decoration and craftsmanship to merit being of special architectural interest.

Finally, ground 4 concerned the purported reconsideration of the decision through the mechanism of a Supplementary Report (SR) dated 31 August 2022. The developer contended that the exercise undertaken by the council in connection with the SR was unlawful. It also argued that it was unclear whether the SR was meant to replace the original decision to extend the SCA or, rather, to be a review of that decision in the light of information that should have been considered in the first instance as part of the consultation exercise.

The claim succeeded on grounds 2, 3 and 4.

Considering grounds 2 and 4 together, the judge found:

(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.

The claimant was also successful on ground 3.

The judge concluded that "there was a clear need to provide Members with a fair and balanced analysis of the architectural worth of the Building."

He added: "This included informing them of the outcome of the approach made to Historic England regarding possible statutory listing.

"Although that outcome was not determinative of the view Members could have taken of the Building in the context of a review under section 69, it was obviously material."

He also noted that it was material that in both 2004 and 2016, the building had not been regarded as sufficiently important to merit even local listing. "Whilst views can, of course, change over time, an understanding of that fact was necessary to reach an informed decision."

The judge however concluded that ground 1 failed.

Adam Carey