R v Secretary of State for the Environment, ex parte Rose Theatre Trust Company
| Jurisdiction | England & Wales |
| Date | 1990 |
| Year | 1990 |
| Court | Queen's Bench Division |
National Heritage - Ancient monument - Schedule of monuments - Remains of historical theatre monument of national importance - Site subject of commercial development - Individuals forming trust company to preserve monument - Company applying for monument to be scheduled - Secretary of State refusing application - Whether Secretary of State entitled to consider advantages of development continuing and developer's intention to co-operate in preserving monument - Whether company locus standi to apply for judicial review -
In the course of development of a site in central London, some remains of an historical theatre were discovered. A trust company was set up with the objects of preserving the remains and making them accessible to the public. The company applied to the Secretary of State for the Environment for the theatre to be listed in the Schedule of monuments made under section 1 of the Ancient Monuments and Archaeological Areas Act 1979F1. The Secretary of State, whilst accepting that the remains were of national importance, declined to list them and, in his decision letter, gave as reasons, inter alia, his view that the site was not under threat, that scheduling might give rise to claims for compensation, the need to balance the desirability of preservation against the need for a city to thrive, and the likelihood of co-operation by the developers.
On an application by the company for judicial review of the Secretary of State's decision:—
Held, dismissing the application, (1) that, under section 1(3) of the Ancient Monuments and Archaeological Areas Act 1979, the Secretary of State had a discretion whether to schedule a monument and that discretion was not severely restricted once it was accepted that the monument was of national importance; that, providing the Secretary of State took into account only relevant factors, he had a broad discretion whether a monument of national importance should be scheduled; that the applicant had failed to show that the Secretary of State had erred in law in considering and weighing the factors he had taken into account since there was nothing inherently wrong in considering the possibility that scheduling might give rise to a claim for compensation, the needs of a modern city and the fact that the developers were co-operating so that the remains of the theatre would be preserved (post, pp. 195H–196A, E–F, 197A–B, E, 198A–C, G–H).
(2) That the decision of the Secretary of State not to schedule the remains of the theatre was a governmental decision in respect of which members of the public had insufficient interest to be entitled to apply for judicial review; that a member of the public did not obtain a sufficient interest in the decision by making the application to the Secretary of State and receiving a reply thereto; and that, therefore, since the members of the applicant company had no locus standi as individuals, the company they had created had no standing to apply for judicial review (post, pp. 201G, 202A–D, H).
The following cases are referred to in the judgment:
Australian Conservation Foundation Inc. v. Commonwealth of Australia (
Covent Garden Community Association Ltd. v. Greater London Council [
Reg. v. Hammersmith and Fulham London Borough Council, Ex parte People Before Profit Ltd. (
Reg. v. Inland Revenue Commissioners, Ex parte National Federation of Self-Employed and Small Businesses Ltd. [
Reg. v. Secretary of State for Trade and Industry, Ex parte Lonrho Plc. [
Reg. v. Stroud District Council, Ex parte Goodenough (
No additional cases were cited in argument.
APPLICATION for judicial review.
By a notice dated 21 June 1989, the applicant, the Rose Theatre Trust Co., whose objects were, inter alia, to preserve the remains of the Rose Theatre and to make them accessible to the public, applied for judicial review of the decision of the Secretary of State for the Environment made on 15 June 1989 not to schedule the site and remains known as the Rose Theatre, Park Street, Southwark. The site, which was owned by PosTel Investment Management Ltd., was being developed by Imry Merchant Developers Plc.
The applicant sought an order of certiorari to quash the decision and an order of mandamus to require the Secretary of State to consider scheduling the Rose Theatre.
The grounds of which relief were sought were that (1) the site and remains constituted a monument of national importance within the meaning of the Ancient Monuments and Archaeological Areas Act 1979 and (2) in deciding not to schedule it, the Secretary of State took into account irrelevant considerations, failed to take into account relevant considerations, misdirected himself in law and acted unreasonably.
The facts are stated in the judgment.
Jeremy Sullivan Q.C., W. Robert Griffiths and Peter Village for the applicant.
Andrew Collins Q.C. and Christopher Katkowski for the Secretary of State.
Stephen Sedley Q.C. and David Altaras for the owners of the land.
Peter Goldsmith Q.C., John Howell and Simon Browne-Wilkinson for the developers.
17 July. SCHIEMANN J. read the following judgment. The Rose Theatre, south of the Thames in what is now the London Borough of Southwark, was a theatre in which most of Marlowe's plays were performed and in which two of Shakespeare's plays received their first performance. It has lain underground for many years. Development of the site was proposed and permitted and in the course of preliminary work some remains of the theatre were discovered. The Secretary of State, who is the respondent to this application for judicial review, accepts that those remains are of national importance.
The Secretary of State has important functions to perform under the Ancient Monuments and Archaeological Areas Act 1979 which was passed, as the long title tells us, to make provision for the investigation, preservation and recording of matters of archaelogical and historical interest and for the regulation of operations or activities affecting such matters.
In 1983 there was passed a National Heritage Act which established a body known as the Historic Building and Monuments Commission for England. That body is widely known as English Heritage and I shall refer to it as such.
The Act of 1979, as amended by the Act of 1983, obliges the Secretary of State to consult English Heritage in the course of performing his functions under the Act of 1979. Those functions include compiling a schedule of monuments in which he may include any monument which appears to him to be of national importance. Once a monument is so scheduled the owner's powers are much circumscribed.
There is before me an application for judicial review of a decision by the Secretary of State not to schedule the Rose Theatre remains. The applicant seeks an order to quash the decision not to schedule and to force the Secretary of State to consider afresh whether or no he should schedule. The basis of the application is a submission:
“In coming to his decision, the Secretary of State took into account irrelevant considerations, failed to take into account relevant considerations, misdirected himself in law and acted unreasonably.”
The Secretary of State denies that he has done any of those things but advanced no view on the standing of the applicant to make this application.
Mr. Goldsmith, leading counsel for Imry Merchant Developers Plc. who are the developers in the present case, and Mr. Sedley, leading counsel for PosTel Investment Management Ltd., (the owners of the site), also submit that the Secretary of State has not acted unlawfully but further submit that I should rule that the applicant company has in any event no standing to make this application.
In order to succeed the applicant must persuade me that it has standing to move for judicial review and that the Secretary of State has acted unlawfully. Since this case may well proceed to appeal, whatever I rule, all parties are agreed that I should rule both on standing and on the substance of the application. This I propose to do, but before doing so I ought to make it clear that the court is not empowered under our law to consider whether it is desirable that the remains of the Rose Theatre should be scheduled. My personal views on that are legally irrelevant and I am obliged by law to lay them to one side. The court is however empowered and bound, if asked by a person with sufficient standing, to decide whether or no the Secretary of State has acted lawfully.
Since the question of whether or no an applicant has standing is one which, it is submitted, involves a consideration of the nature of the Secretary of State's discretion in deciding whether or not to schedule it is, I think, convenient to consider first the substantive point and thereafter to consider the question of standing.
It is useful at this stage to set out the relevant statutory provisions. Section 1 of the Act of 1979 provides:
“(1) The Secretary of State shall compile and maintain for the purposes of this Act … a schedule of monuments … (2) The Secretary of State shall on first compiling the Schedule include therein (a) — any monument [which is listed on various other lists]
Subsection (3) which is crucial in the present cases reads as amended by paragraph 25 of Schedule 4 to the
“the Secretary of State may on first...
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