Chambers and Another v Guildford Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr. Justice McCombe |
| Judgment Date | 22 April 2008 |
| Neutral Citation | [2008] EWHC 826 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ07XO3844 |
| Date | 22 April 2008 |
[2008] EWHC 826 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr. Justice Mccombe
Case No: HQ07XO3844
Mr. Charles Mynors (instructed by AWB Partnership) for the Claimants
Hearing dates: 14–15 April 2008
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE PRESIDENT OF THE FAMILY DIVISION
Mr. Justice McCombe:
(A) Introduction
In this action the Claimants apply for a declaration in the following terms:
“The Claimant seeks a declaration that:
(a) the listed building known as Colekitchen Farm House, Colekitchen Lane, Gomshall, Surrey does not include (within the meaning of section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990) the pillbox located some 3.4 meters to the south of the southern corner of the Farm House, and
(b) if it does, that the removal of the pillbox would not constitute an alteration of that listed building in a manner that would affect its character as a building of special architectural or historic interest (within the meaning of section 7 of that Act).”
By order of Master Eyre dated 3 January 2008 it was ordered that the following question be decided as a preliminary issue:
“may an application for a declaration as to the need for listed building consent be determined before an application for consent has been considered by the planning authority and (if necessary) the Secretary of State?”
It is common ground that the strict answer to that question is clearly “yes”. The Court does have jurisdiction to make such declarations, but the real argument is whether it is appropriate for the Court to entertain such an application now in the circumstances of this case. It is to that question that the oral and written arguments before me have been directed. It is accepted by both parties that it is that broader question that I should decide.
(B) Background Facts
The Claimants are the owners of property and land situated at and known as Colekitchen Farm, Colekitchen Lane, Gomshall, Surrey (“the Property”). The Defendant is the local planning authority.
The principal building on the Property is a farmhouse built in the 17 th Century. About 3.4 metres to the south of the farmhouse is a pillbox constructed in about 1940 as part of the national defences during the Second World War. The Claimants now wish to remove the pillbox.
On 21 May 1985, pursuant to the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Act”), the Secretary of State made a “listing” in the following terms:
“TQ 04 NE SHERE CP COLEKITCHEN LANE Gomshall 5/191 Colekitchen Farm House II House. C17, extended and refaced in C18. Timber frame clad in red and brown brick to right, red and blue brick to left plain tiled roofs with vertical and diamond pattern tile hanging to left hand gable. Two storeys and attics in gables. End stacks to right and left, corbelled to right. Irregular casement fenestration with two cambered head casements to both floors on the right, one to each floor in gable bay to left. Plat band over ground floor of gabled cross wing. Half-glazed door to left and part-glazed door to right of centre, both under pentice roofed porch – part-tiled and part plastic roof on “rustic” wood supports. Gabled wing to rear with pentice to ground floor left. Single storey brick and weatherboarded corrugated metal roofed extension to rear left.”
The Claimants contend that that listing does not include the pillbox.
By application dated 2 April 2007 the First Claimant applied to the Defendant for “listed building consent” for removal of the pillbox. The “Justification Statement” submitted with the application contained the following passage:
“Following the end of hostilities the pillbox became a redundant feature on the landscape and is currently in a very poor condition with much of the brickwork spalling or fallen
It can be accepted in part that the pillbox falls under the grade II curtilage listing of Colekithchen Farm as it was constructed prior to July 1948 and according to our information was in the same ownership as the farm at the time of listing.
It is our understanding that for the pillbox to be considered curtilage listed it must form an intimate relationship with Colekitchen Farm and be ancillary or subordinate to this principal listed building.
However, in our opinion, the pillbox structure does not form an intimate ancillary or subordinate relationship with the principal listed building or the physical layout of the site and at no time has it served the purpose of the house in some necessary or useful way. In essence, the structure has at no time since its erection been utilised in the day to day running of Colekitchen Farm and has indeed been a redundant structure since 1945.”
The Defendant advertised the application. Objections were received. The Defendant recognised that the question of whether the proposed removal of the pillbox required listed building consent was at the heart of the application and it took Counsel's opinion on the matter. Counsel advised that consent was required. By a Decision Letter dated 20/06/2007 the Defendant refused consent. Its reasons were as follows:
“The pillbox is a curtilage listed building within the grounds of Colekitchen Farm and is an important historic feature of both the listed building and the wider area, where it formed part of the national GHQ line. There is no clear or overriding justification for the removal of the pillbox. Furthermore, the removal of the pillbox, which is likely to require substantial demolition machinery, could have a significant and adverse impact on the immediately adjacent principal listed building. The proposal is therefore in strict conflict with Policy HE3 of the Guilford Borough Local Plan, Policy SE5 of the Surrey Structure Plan 2004 and advice contained in PPG15.”
The Claimants did not appeal to the Secretary of State against this decision. Instead on 7 November 2007 they issued these proceedings by Claim Form under Part 8 of the Civil Procedure Rules (“CPR”). The Claim Form was served on or about 9 November 2007. No pre-action Protocol Letter was sent prior to commencement of the action. By letter to the Claimants' solicitors dated 19 November 2007 the Defendant accepted that this Court has jurisdiction to determine whether the pillbox was a listed building but informed them that Counsel had advised that it was inappropriate for the issue to be litigated in court proceedings before an Inspector had had the opportunity to consider the issue on an appeal under Section 20 of the Act. The Defendant invited the discontinuance of the proceedings and the bringing of an appeal under Section 20. That invitation was, by implication, declined. Any appeal against the refusal of consent would now be out of time, although the Defendant accepted before me that it was open to the Claimants at any time to make a fresh application, triggering a further decision and, if necessary, an appeal. An appointment for directions in this action was issued before the Master and he proceeded to make the Order of 3 January 2008 already mentioned.
(C) The Act
Section 1(5) of the Act provides as follows:
“In this Act “listed building” means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act –
(a) any object or structure fixed to the building;
(b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before July 1, 1948, shall be treated as part of the building.” 1
Demolition, alteration or extension of a listed building in any manner which would affect its character as a building of special or historic interest may only be carried out lawfully if authorised, generally by the grant of listed building consent, obtained from the local planning authority or (on appeal) from the Secretary of State: Section 7. To proceed without such consent, if it is required, is a criminal offence: Section 9. Sections 10 to 16 deal with the application process and speak only of the grant or refusal of the application. No reference is made to any procedure for resolving any prior question of whether consent is in fact necessary. Section 16(1) is in the following terms:
“Subject to the previous provisions of this Part, the local planning authority or, as the case may be, the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may grant it subject to conditions.”
Section 21(3) of the Act provides as follows:
“The notice of appeal may include as the ground or one of the grounds of the appeal a claim that the building is not of special architectural or historic interest and ought to be removed from any list compiled or approved by the Secretary of State under section 1.”
(D) The Arguments
The Claimants, by Mr. Mynors, argue that there is no statutory procedure enabling a land owner to find out, in case of doubt, whether listed building consent is required for intended works. There is, in particular, no equivalent in the Act to the procedure in sections 191–193 of the Town and Country Planning Act 1990 whereby a land owner may find out whether planning permission is required. Accordingly, that matter is one for the courts to decide. The Defendant, for whom Mr. Albutt appears, contends that such an...
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