Silus Investments S.A. v London Borough of Hounslow
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang DBE,Mrs Justice Lang |
| Judgment Date | 19 February 2015 |
| Neutral Citation | [2015] EWHC 358 (Admin) |
| Docket Number | Case No: CO/4576/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 February 2015 |
The Queen on the application of
[2015] EWHC 358 (Admin)
The Honourable Mrs Justice Lang DBE
Case No: CO/4576/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr John Hobson QC and Mr Matthew Reed (instructed by Fladgate LLP) for the Claimant
Mr Richard Harwood QC (instructed by Hounslow Council Legal Services) for the Defendant
Hearing dates: 3 & 4 February 2015
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 Claimant applies for judicial review of the Defendant's decision, dated 21 August 2014, to designate an area within its borough as a conservation area, known as the 'Chiswick High Road Conservation Area'.
The Claimant, which owns a public house in the conservation area, claims that the Defendant has impermissibly sought to prevent it from demolishing the public house by (a) breaching a legitimate expectation of consultation and acting in a procedurally unfair manner; (b) obtaining a decision on the basis of a misleading report; and (c) using the conservation area procedure for an improper purpose.
In response, the Defendant denies that it has acted unlawfully. The conservation area was designated because of the area's special historic and architectural interest. The decision was processed urgently because of the material harm which would be caused to the area by the Claimant's proposal to demolish the public house, which is a locally listed building. The procedure adopted was not, in all the circumstances, unfair and in any event, the Claimant has nothing to say on the merits of the designation.
Gilbart J. gave permission to apply for judicial review on 26 November 2014.
Facts
The Claimant, a company registered in Panama, is the owner of a public house, known as the Packhouse & Talbot, at 145 Chiswick High Road London W4. It has owned it since 21 August 2009 and leases it out.
The lease of the public house was renewed on 15 August 2014 for a period of 12 months. Clause 6.2 contains a break clause which provides that the Claimant can terminate the lease on 6 months notice if it wishes to implement a planning permission requiring demolition or other major works. It would be open to the Claimant and his tenant to enter into a separate agreement to terminate the lease sooner.
The public house has been a locally listed building since 1997 as a "fine example of Victorian public house exterior". The evidence indicates that there has been a coaching inn at that site, from at least the 17 th century, although it was re-built in the early part of the 20 th century.
The Defendant considered designating Chiswick High Road as a conservation area in 2001 and 2006, but other areas were prioritised ahead of it, and designation did not take place. In part, this was due to a lack of financial and staff resources within the Council. The Defendant's former Conservation Officer, Ms Urquhart, said she assessed and evidenced the historic and townscape value of the relevant area at a public inquiry in 2008–2009. The continuing aspiration to designate Chiswick High Road as a conservation area was discussed in emails between Ms Urquhart and local residents in 2013 and 2014.
On 3 October 2012, a pre-application meeting was held between the Defendant's officers and representatives of the Claimant to discuss the Claimant's proposals to demolish Nos. 145–147 and erect a mixed use, multi-storey redevelopment with town houses to the rear of the site at 12 Annandale Road. There is a factual dispute between the parties as to whether the Defendant's officers orally confirmed to the Claimant's representatives its intention to designate the area as a conservation area at this meeting.
The Defendant's subsequent written advice to the Claimant dated 19 October 2012 stated:
"The site is not located within a conservation area at present, however the Packhorse & Talbot is a locally listed building."
"Policy ENV-B.2.7 (Alterations to buildings of local townscape character) of the UDP states that alterations to locally listed buildings will need to be fully justified, showing why the works are desirable or necessary. … It is not considered that there is any justification for the demolition of the existing public house."
In the March 2014 version of the Defendant's 'Urban Character and Context Study', Chiswick High Road was identified as being of high design quality and sensitivity to change, and categorised as within the "heritage fringe", with heritage assets. Mr Doran and Ms Urquhart explained that "heritage fringe" was the term used to describe areas that had the potential to become conservation areas. A draft glossary, used by officers internally to define this work, dated December 2013 defined the term "heritage fringe" as "Areas on the fringe of a Conservation Area that have potential to become part of that Conservation Area. Potential designation of extension of [conservation area], or area of undesignated but locally special character". In July 2014, the term "heritage fringe" was replaced by the term "Area of Special Character" defined for the purposes of the draft Local Plan as "[a]n area of the borough which possesses sufficient architectural, townscape and environmental quality to make it of significant local value…" and specific criteria were then set out. The draft Local Plan was submitted to the Secretary of State on 20 August 2014.
On 6 August 2014, the Defendant received an 'Application for prior notification of proposed demolition' of the public house, dated 5 August 2014, from the Claimant's planning consultant, JB Planning Associates Ltd. It stated that the works were due to commence on 8 September 2014 and to be completed on 31 October 2014. The application was accompanied by a 'Method Statement for Demolition Works' dated 23 July 2014, without a commencement date, indicating that an asbestos survey would be carried out before any works commenced.
The Defendant was required to notify the Claimant whether prior approval was required of the method of demolition within 28 days following receipt of the application.
On 11 August 2014, the Defendant asked the Claimant's planning consultants to provide further information on the Claimant's intentions for the site. They indicated that they could not provide any additional information.
There was concern among Councillors and in the local community about the prospect of demolition of the public house, and requests for designation of the area as a conservation area.
On 15 August 2014, after a site visit accompanied by the Defendant's officers, English Heritage indicated in a brief email that they supported designation as a conservation area.
On 18 August 2014, Ms Marilyn Smith, Head of Development Management and Enforcement, informed Councillors of the proposal for designation as a conservation area.
On 19 August 2014, Ms Eaton, Principal Lawyer in the Council's Legal Services Litigation Team, advised that, subject to his agreement, the decision could be made by Councillor Curran, Leader of the Council, under section 9E Local Government Act 2000, and it could properly be deemed not to be a 'key' decision requiring 28 days advance notice to be given. On 21 August 2014, Mr Adams, temporarily acting as Chief Executive, agreed to a request from Ms Eaton to waive any possible 'Overview & Scrutiny' call in of the decision, so that it could take immediate effect. Councillor Curran was advised of the factual and legal position, and agreed to this decision-making procedure.
A consultation procedure commenced on 19 August 2014 when the Defendant emailed brief details of the proposal to local groups, including traders and residents associations, heritage bodies, local politicians and the local news website (Chiswick W4). The Defendant also posted details of the proposal and the consultation on its website in the news section. No documents explaining or justifying the proposal were attached to the notice of consultation, though a map of the proposed conservation area was available. The deadline for consultation responses was given as 27 August 2014. Chiswick W4 published the details, with additional comments, on its website on 20 August 2014.
The Defendant did not consider that it was under an obligation to consult land owners and occupiers individually. Mr Doran, a planning officer, said in his 1 st witness statement, at paragraph 36, "[i]t would have been extremely difficult to contact every individual property and business owner within the proposed conservation area within the timescale". The Claimant was not formally notified of the proposal, or invited to respond to the consultation, because the Defendant feared that the Claimant would pre-empt any conservation area restrictions by demolishing the public house forthwith. However, the Defendant informed the operator of the public house and his brewery landlord of the proposal because Council officers had promised to do so at a site visit on 15 August.
Five responses to the consultation were received on 19 August, all in favour of the proposal.
On 21 August 2014, Ms Eaton and Mr Doran had a chance meeting with Ms Debarry, an employee of the Defendant who is also Councillor Curran's partner. She informed them that Councillor Curran would not be available the following week. Councillor Curran is not a...
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