Save Britain's Heritage v Number 1 Poultry Ltd

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Templeman,Lord Ackner,Lord Goff of Chieveley
Judgment Date28 Feb 1991
Judgment citation (vLex)[1991] UKHL J0228-1

[1991] UKHL J0228-1

House of Lords

Lord Bridge of Harwich

Lord Brandon of Oakbrook

Lord Templeman

Lord Ackner

Lord Goff of Chieveley

Save Britain's Heritage
(Respondents)
and
Number 1 Poultry Limited and Others
(Appellants)
Save Britain's Heritage
(Respondents)
and
The Secretary of State for the Environment and Others
(Appellants)
Lord Bridge of Harwich

My Lords,

1

The appellants are the owners of property in the City of London which has been referred to in this litigation as the Mappin and Webb site. I shall call it the appeal site. It is roughly triangular in shape and a little less than one acre in extent. It lies between Cheapside and Poultry on the north side and Queen Victoria Street on the south-east side. The apex of the triangle where the Mappin and Webb building itself stands is at the Bank intersection where seven major streets converge. On the appeal site stand eight buildings listed under section 54 of the Town and Country Planning Act 1971 as buildings of special architectural or historic interest and a number of other buildings not so listed. The site as a whole lies within the Bank conservation area designated as such under section 277 of the Act of 1971.

2

The owners wish to demolish the existing buildings on the site and erect in their place a single modern building designed by Mr. James Stirling. For this they require planning permission, listed building consent and conservation area consent. Failing to obtain these consents from the City Corporation, as local planning authority, the owners appealed to the Secretary of State. The Secretary of State appointed Mr. B. D. Bagot, a distinguished architect, as inspector to hold a local inquiry pursuant to the Town and County Planning (Inquiries Procedure) Rules 1974 ( S.I. 1974, No. 419), since replaced by the Town and Country Planning (Inquiries Procedure) Rules 1988 (S.I. 1988, No. 944) ("the 1988 Rules"). The inquiry was held in May and June 1988. It lasted for 18 days. The owners' redevelopment scheme was opposed not only by the local planning authority and by English Heritage but also by various non-statutory organisations including Save Britain's Heritage ("Save"), a conservationist group whose primary purpose is to stimulate public awareness of what it perceives as a threat to the nation's architectural heritage.

3

The inspector's report dated 12 October 1988 recommended that the owners' appeal be allowed and that planning permission, listed building consent and conservation area consent be granted subject to certain conditions. These recommendations were accepted by the Secretary of State in a decision letter dated 7 June 1989 which granted the requisite permission and consents subject to conditions. Of those who had opposed the owners' scheme at the inquiry Save alone challenged the validity of the decision by application to the High Court under section 245 of the Act of 1971. Strictly speaking I should refer to decisions in the plural since the grant of the planning permission, listed building consent and conservation area consent were technically the subject of three distinct appeals, but in substance the three matters are so closely inter-related that it is more realistic to speak of a single decision. Save alleged that the decision was not within the powers of the Act and that their interests had been substantially prejudiced by a failure to comply with the requirements of the 1988 Rules. Their grounds asserted that the decision was vitiated by various errors of law, that the Secretary of State had failed to have regard to relevant matters or to comply with certain statutory duties and finally that he had given no sufficient reasons for his decision. The application was dismissed by Simon Brown J. in a judgment delivered on 19 December 1989, but the Court of Appeal (Parker, Woolf and Nicholls L.JJ.) in judgments delivered on 30 March 1990 ( (1990) 60 P. & C.R. 539) allowed Save's appeal and quashed the decision on the single ground that the interests of Save had been substantially prejudiced by the Secretary of State's failure to comply with the requirement of rule 17 (1) of the 1988 Rules to notify the reasons for his decision. The owners and the Secretary of State now appeal by leave of your Lordships' House. The Secretary of State, however, had not initially sought leave to appeal and when he did so at the outset of the hearing of the owners' appeal, he made clear through Mr. Laws that, since he might have to make a fresh decision on the merits, he did not wish to play a partisan role, but wished to be heard in relation to the principles applicable to a challenge under section 245 of the Act of 1971 alleging a failure by himself or one of his inspectors to give sufficient reasons for a planning decision.

4

The undoubted importance of the appeal site lies in its location at what has been aptly described as the hub of the City of London. Other buildings which face the Bank intersection include the Mansion House, the Royal Exchange and the Bank of England. Also within the Bank conservation area are five Wren churches and Hawksmoor's St. Mary Woolnoth. The owners of the site have been anxious to redevelop it for some time and it is not disputed that some form of redevelopment is necessary. But the question what form the redevelopment should take is acutely controversial. The owners' view is that the site provides a unique opportunity to erect a modern building of architectural distinction which will enhance the character of the area. The view of the conservationists is that the only acceptable redevelopment would be a scheme of internal reconstruction and refurbishment which would preserve all the external architectural features of the eight listed buildings which caused them to be listed as buildings of special architectural or historic interest.

5

An earlier proposal by the owners to redevelop the appeal site, together with an island site on the opposite side of Queen Victoria Street, to provide a square in front of the Mansion House and to erect on the balance of the land a building designed by the late Mies van der Rohe was the subject of applications under the Act of 1971 for the necessary permissions and consents which were refused by the local planning authority. Following an inquiry in 1984 the Secretary of State dismissed the owners' appeals against these refusals. In his decision letter dated 22 May 1985 the Secretary of State said he considered: "that it would be wrong to attempt to freeze the character of the City of London for all time." He did not "rule out redevelopment of this site if there were acceptable proposals for replacing the existing buildings." He did not "consider that the buildings are of such overriding importance that their preservation should outweigh all other considerations." But he rejected the Mies van der Rohe building on the ground that it would "dominate the appeal site and the surrounding area to a wholly unacceptable extent because of its height and bulk and because of the stark conflict between it and the scale and character of neighbouring buildings." It would have been surprising if the owners had not taken this decision as encouragement to come forward with a more modest scheme to replace the existing buildings on the appeal site with a modern building which they hoped would escape the criticisms which the Mies van der Rohe building had attracted and would commend itself to the Secretary of State as an acceptable replacement for the existing buildings. The redevelopment scheme in issue in these proceedings is the outcome.

6

It was no part of the owners' case at the 1988 inquiry that the listed buildings on the appeal site were not capable of reconstruction and refurbishment in a way which would both prolong their useful economic life and preserve their existing facades. A specific scheme of reconstruction and refurbishment which had been prepared on behalf of opponents of the owners' proposed redevelopment was put in evidence and considered at the inquiry and was accepted by the owners as being economically viable although they had no intention of carrying it out.

7

In the light of these circumstances the primary issues for decision were: first, whether, contrary to the view expressed by the Secretary of State in 1985, the buildings on the appeal site were of such overriding importance that their preservation should outweigh all other considerations and, if not, secondly, whether the merits of the proposed new building, considered not in isolation but in relation to its unique surroundings on this unique site, were sufficient to outweigh whatever importance did attach to the preservation of the existing buildings. These were issues of planning policy and aesthetic judgment. Of particular relevance to their resolution were section 56(3) and section 277(8) of the Act of 1971, as amended, which provide, so far as material, as follows:

"56(3) 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."

and

"277(8) Where any area is for the time being designated as a conservation area, special attention shall be paid to the desirability of preserving or enhancing its character or appearance in the exercise, with respect to any buildings or other land in that area, of any powers under this Act …"

8

At the heart of the policy issue were passages from Circular No. 8/87 entitled "Historic Buildings and Conservation Areas - Policy and Procedures" issued by the Department of the Environment on 25 March 1987. It is said in paragraph 89:

"The Secretary of State will not be prepared to grant listed...

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