Future High Street Living (Staines) Ltd v Spelthorne Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lane |
| Judgment Date | 28 March 2023 |
| Neutral Citation | [2023] EWHC 688 (Admin) |
| Docket Number | Case No: CO/2909/2022 |
| Court | King's Bench Division (Administrative Court) |
[2023] EWHC 688 (Admin)
Mr Justice Lane
Case No: CO/2909/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr P Tucker KC and Mr J Easton (instructed by Eversheds Sutherland (International) LLP) for the Claimant
Ms H Townsend (instructed by Spelthorne Borough Council) for the Defendant
Hearing date: 21 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 28 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives (see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
A. THE FORMER DEBENHAMS DEPARTMENT STORE IN STAINES
The claimant owns the former Debenhams department store at 37 – 45 High Street, Staines-on-Thames (“the Building”). It wishes to demolish the former store and provide residential accommodation on the site. This wish has generated considerable local controversy regarding the loss of the Building.
With permission granted by Lang J on 6 December 2022, the claimant seeks an order quashing the decision made by the defendant local planning authority dated 29 June 2022 to extend the Staines Conservation Area (“SCA”) to include the Building and other land (“the Decision”).
The defendant produced a Supplementary Report (“SR”) dated 31 August 2022, by which it purported to review the Decision. The SR concluded that no change should be made to the Decision or to the Appraisal which underpinned the defendant's review of the SCA. As a consequence of the SR, the claimant amended the Statement of Facts and Grounds to address the purported review.
The claimant submits that the defendant fell into a number of legal errors, which I shall describe in due course.
B. FACTUAL BACKGROUND
The relevant factual background is as follows.
Planning application
On 10 November 2021, the claimant submitted a planning application (Ref: 21/01772/FUL) to the defendant for the following scheme:
“Demolition of the former Debenhams Store and redevelopment of site to provide 226 Build-to-Rent dwellings (Use Class C3) and commercial units (Use Class E) together with car and cycle parking, hard and soft landscaping, amenity space and other associated infrastructure and works.”
The planning application elicited 268 letters of objection. Reasons for objection included “loss of an iconic building – should be retained and converted” and “heritage impacts on nearby Conservation Areas and Listed building”.
The planning application was recommended for refusal in an Officers' Report (“the Planning OR”) of the defendant, dated 24 May 2022 and updated on 1 June 2022.
Planning permission was refused by a decision notice dated 6 June 2022. The notice alleged (i) harm to the significance of designated heritage assets (including the SCA) and non-designated heritage assets; (ii) overdevelopment causing harm to the character and appearance of the area; and (iii) insufficient affordable housing. At the date of the decision notice, the Building did not fall within the SCA.
On 25 July 2022, the claimant submitted a notification of intention to submit an appeal against the refusal of planning permission.
Prior approval application for demolition
On 25 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.
Under cover of an email dated 24 March 2022, the defendant determined that prior approval would be required for the demolition. The Building did not fall within the SCA at that date.
By a decision notice dated 1st 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.”
Following a report to the defendant's Planning Committee dated 30 March 2022, the Building was included in the Local List of Buildings and Structures of Architectural or Historic Interest (“Local List”) with immediate effect.
Conservation Area Review
The decision-making process that led to the inclusion of the Building in an extended SCA may be summarised as follows.
The defendant instructed AHC Consultants to prepare an Appraisal of the SCA. The AHC's letter of instruction and terms of reference have not been produced in these proceedings. The draft Appraisal (written by Dr Carole Fry) recommended changes to the SCA, including its extension to incorporate the Building.
By an Officers' Report dated 10 May 2022 (“the May OR”), the defendant's Environment and Sustainability Committee (“E&SC”) were invited to:
i. agree the draft Appraisal for consultation;
ii. agree to go out to 6 weeks' public consultation on the proposed amendments to the SCA;
iii. delegate authority to the defendant's Group Head Regeneration and Growth, in consultation with the Chair and Vice Chair of the Environment and Sustainability Committee, to approve the final document, taking account of comments, as required, which arise from the consultation.
Paragraph 3.3 of the May OR quoted directly from the draft Appraisal, which had this to say about the extension of the SCA to cover the Building:
“The four storey, former Debenhams building was built in 1956 by George Coles, the renowned Art Deco architect. This landmark building is an important building of high visual quality which terminates the long views along Clarence St and from Thames Street. It is of good architectural quality and it reinforces the historic bult character of character area 3”.
Paragraph 3.3 then said that the extension of the SCA also “includes the adjacent buildings of nos. 47–57 High Street which contribute to the setting of Debenhams”.
At a meeting of the E&SC on 10 May 2022, the E&SC approved the recommendations outlined above.
The defendant invited representations on the Appraisal between 13 th May and midnight on Friday 24 th June 2022. The invitation to produce representations was publicised on the defendant's website.
A delegated report dated 27 th June 2022 (“the June OR”) produced by the defendant's Planning Development Officer and Principal Planning Officer sought approval of the amended SCA by the Group Head Regeneration and Growth in consultation with the Chair and Vice-Chair of the E&SC. The June OR recorded that “there have been no material objections to the content of the Conservation Area Appraisal or to the revisions to the boundary”.
The June OR was shared with the Chair and Vice Chair of the E&SC, who both confirmed their approval of the recommendation to adopt the Appraisal and the changes to the boundary. The Group Head Regeneration and Growth signed the June OR on Wednesday 29 th June, formally adopting the Staines Conservation Area Appraisal and the revisions to the boundary, with immediate effect.
Claimant's representations on the Review
Ms Gail Stoten, Executive Director (Heritage) at the Pegasus Group, prepared detailed representations on behalf of the claimant in response to the defendant's proposed extension of the SCA and duly uploaded them to the defendant's consultation portal. Amongst other things, the representations highlighted Historic England's views on the Building's lack of special architectural merit. Ms Stoten received confirmation that the representations had been duly received prior to the end of the consultation period. Ms Stoten's representations raised a number of objections to the proposed extension of the SCA, particularly the inclusion of the Building.
It is common ground that Ms Stoten's representations were not taken into account by the defendant, prior to the decision being made on 29 June 2022 to extend the SCA. A main thrust of the claimant's challenge concerns the way in which the defendant addressed that important matter. It is also important to record that the error is accepted by the claimant to have been entirely accidental in nature.
Pre-action correspondence
In accordance with the CPR Pre-Action Protocol in relation to judicial review claims, the claimant sent a Pre-Action Protocol letter (“PAP Letter”) to the defendant on 22 July 2022.
The defendant responded to the PAP Letter on 4 August 2022 (“the PAP Response”). The defendant rejected the proposed basis of the judicial review claim.
Reconsideration of the Decision
The SR was produced after the PAP Letter, PAP Response and issue of the Claim. In the SR, the defendant purported to “address the additional comments received in respect of the Staines Conservation Area Appraisal following consultation”; ie the Stoten/Pegasus representations and four others, which had not been taken into account owing to the same accidental error. Paragraph 1.3 said that the purpose of the SR was to address “whether these representations would make a material difference to the decision to agree the Staines Conservation Area Appraisal and the revisions to the boundary.” The representations were then summarised.
Paragraph 3 of the SR is headed “Response”. Paragraph 3.1 stated that each of the matters raised by the “Pegasus objection has been considered carefully and the question of where the conservation area boundary should lie has been considered...
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