Save Britain's Heritage v The Secretary of State for The Environment and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WOOLF,LORD JUSTICE NICHOLLS,LORD JUSTICE PARKER |
| Judgment Date | 30 March 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0330-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 90/0325 |
| Date | 30 March 1990 |
[1990] EWCA Civ J0330-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE SIMON BROWN)
Royal Courts of Justice
Lord Justice Parker
Lord Justice Woolf
and
Lord Justice Nicholls
90/0325
and
and
MR ROBERT CARNWATH, Q.C., and MISS ALICE ROBINSON, instructed by Messrs Gouldens, appeared for the Appellants (Applicants).
MR JOHN LAWS and MR JOHN HOWELL, instructed by The Treasury Solicitor, appeared for the First Respondent (First Respondent).
SIR FRANK LAYFIELD, Q.C., and MR CHARLES GEORGE, instructed by Messrs Mishcon De Reya, appeared for the Second and Third Respondents (Second and Third Respondents).
This is an appeal from a decision of Simon Brown J. given on 19th December 1989. Simon Brown J. dismissed an application to quash the decision of the Secretary of State for the Environment to grant permission for the redevelopment of what the judge described as the Mappin and Webb site ("the appeal site") in the City of London adjoining the Mansion House and the Bank of England. The appeal site is owned by the second and third respondents ("the owners") which are companies controlled by Mr Peter Palumbo.
The appellants are Save Britain's Heritage ("Save") which is a body which was founded in 1975 with the intention of creating a wider public awareness of the many threats to the nation's architectural heritage. Save has continuously opposed the owners' plans for redevelopment of the appeal site. At the enquiry, which took place for 18 working days commencing on 17th May 1988, and which resulted in the Inspector's report of 12th October 1988, Save were one of a number of objectors to the scheme for redevelopment of the site; the other objectors included the Corporation of the City of London and English Heritage. However, it was only Save who made an application to the court. The application was made under section 245 of the Town and Country Planning Act 1971. That section gives persons aggrieved the right to apply to the High Court and on an application the High Court has jurisdiction to quash the decision of the Secretary of State: "…if satisfied that [the decision] in question is not within the powers of this Act, or that the interests of the applicant have been substantially prejudiced by a failure to comply with any of the relevant requirements in relation thereto".
The primary contention of Save before Simon Brown J. and on this appeal is that there has been a failure by the Secretary of State to comply with the "relevant requirements" because the Secretary of State in his decision letter has failed to give reasons for his decision which comply with rule 17(1) of the Town and Country Planning (Inquiries Procedure) Rules 1988 which states that:
"The Secretary of State shall notify his decision on an application or appeal and his reasons for it in writing to all persons entitled to appear at the enquiry who did appear, and to any other person who, having appeared at the enquiry, has asked to be notified of the decision."
The outcome of this appeal is of considerable importance to the parties. First of all, it is of great importance to the owners. They have been seeking to redevelop the appeal site since at least 1981. In November of that year they announced a scheme for the redevelopment of the appeal site together with 1 Queen Victoria Street in accordance with the design of the very distinguished architect, the late Mies van der Rohe. Those proposals which included a 290 foot tower block were also the subject of an enquiry and resulted in a decision of the Secretary of State to refuse permission for that scheme ("the first scheme"). As a result of that refusal of permission, the owners decided to prepare the current scheme ("the second scheme") which was designed by another distinguished architect, James Stirling. The owners have incurred considerable expense in the preparation of the two schemes, both of which were regarded as having architectural merit by the Inspectors who conducted the enquiries into the first and second schemes. Their continued inability to implement a scheme is causing them very substantial additional expense.
Having at last been granted the necessary permission to proceed with redevelopment, the owners have now been subjected to these proceedings which were commenced by Save's notice of motion of 14th July 1989. Although the courts have expedited the proceedings, further delay has inevitably been the result and this must be particularly frustrating to the owners because as Simon Brown J. pointed out: "Nobody doubts [the appeal site's] importance. Nobody doubts too that it needs redevelopment of some sort. Yet it has remained in limbo since the late 1960's."
The appeal is important to Save because they object strongly to the second scheme and would prefer to see the appeal site refurbished instead of redeveloped in accordance with the scheme they commissioned by Terry Farrell and which retains the facades of the existing buildings. Save regards the decision of the Secretary of State as being in total conflict with his own and the relevant statutory policies and as providing a precedent which could have serious implications for the preservation of other buildings or sites having features of special architectural or historic interest.
The appeal is also of significance for the Secretary of State. Naturally he wishes to uphold his decision. In addition he will be concerned because the Inspectors and his Department on his behalf are regularly making decisions in relation to planning and similar appeals and the decision of this court could have an effect on the standards of reasoning those decisions should contain. Many of those decisions are taken without the benefit of any legal advice and if this court were to set an unduly high standard with regard to the requirement to give reasons it could have an adverse effect on the planning process which can already be protracted.
Finally, it should not be forgotten the public have an interest in the outcome of this appeal. The Secretary of State's decision affects them.
The Appeal Site
The appeal site is, of course, in the heart of the City of London at the Bank of England intersection where seven major streets meet. It is roughly triangular in shape with its apex (the Mappin and Webb building) at the Bank intersection. The northern boundary is formed by Cheapside and Poultry and the south-eastern boundary by Queen Victoria Street. Queen Victoria Street and Poultry are wide thoroughfares in contrast with the narrow lanes which pass through the appeal site. Eight of the existing buildings on the appeal site have been listed as Grade II GV under section 54 of the 1971 Act. Grade II buildings are, according to the Ministerial Circular number 8/87, "buildings of special interest, which warrant every effort being made to preserve them." The letters GV signify that the buildings have been listed, at least in part, because of their group value.
The appeal site is situated within a conservation area. The conservation area was designated in 1971 but it was only as a result of the second extension to the conservation area in 1981 that the appeal site was included.
The Greater London Development Plan section 6 (according to the Inspector, paragraph 2–16) identifies Guildhall/Mansion House area "as an outstanding example of an Area of Special Character, where the policy should be to have special care for the character and traditions and world famous views, buildings and monuments; and of characteristic streets, alleys, walkways and links with the River; all need protection and recognition in new developments". The Plan adds: "Regarding buildings of special architectural or historic interest the policy is to preserve such buildings in all proper cases, whether they occur singly or in groups". There is also a City of London local plan but no specific arguments have been advanced in relation to that plan on this appeal.
Relevant Statutory Provisions as to Listed Buildings, the Conservation Area and the General Development Plan
The fact that the appeal site includes listed buildings and is situated in a conservation area means that before the owners are entitled to redevelop the site, in addition to planning permission, they need listed building consent for the demolition of the existing buildings and conservation area consent.
Listed building consent is required by section 55(2) of the 1971 Act. With regard to giving that consent section 56(3) of the 1971 Act provides:
"In considering whether to grant planning permission for development which affects a listed building or its setting, and in considering whether to grant listed building consent for any works,…the Secretary of State…shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses."
As the appeal site was situated in a conservation area designated under section 277 of the 1971 Act buildings cannot be demolished without the consent of the appropriate authority (section 277A) and the Secretary of State exercising any of his powers under the 1971 Act is required to pay "special attention…to the desirability of preserving, or enhancing its character or appearance"(section 277(8)).
Finally, under section 29, in deciding whether or not to grant planning permission the Secretary of State is required to have "regard to the provisions of the development plan, so far...
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