The Queen (on The Application of Michael Maxwell) (Claimant) Wiltshire Council (Defendant) Mr & Mrs Martin Walker (Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Sales |
| Judgment Date | 15 July 2011 |
| Neutral Citation | [2011] EWHC 1840 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1734/2010 |
| Date | 15 July 2011 |
[2011] EWHC 1840 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Sales
Case No: CO/1734/2010
Mr Richard Harwood (instructed by Richard Buxton Solicitors) for the Claimant
Mr Timothy Jones (instructed by Wiltshire Council Legal Services) for the Defendant
Hearing date: 22/6/11
Mr Justice Sales:
Introduction
This is an application for judicial review of a grant of conservation area consent dated 14 January 2010 ("the Consent") by the Defendant Council ("the Council") for the demolition of a cottage called "Copsewood" at Low Road, Little Cheverell, Devizes.
Little Cheverell is a picturesque, small village, which is designated as a conservation area. "Copsewood" is located down a lane on the fringes of the village. It is set in an attractive garden which is to be retained under the proposed redevelopment of the site.
"Copsewood" is owned by the interested parties ("Mr and Mrs Walker"). They wish to demolish the cottage, which is in a state of poor repair and has been for some time, and replace it with a building of broadly equivalent dimensions and appearance but of modern construction. According to estimates they have received, that will be a considerably cheaper way of achieving a cottage which is habitable and in a good state of repair than engaging in the thorough-going renovation work which would otherwise be required if the existing fabric of the building were to be retained. Mr and Mrs Walker have planning permission for the new cottage but also require conservation area consent to proceed with the work, by demolishing the existing cottage.
The Claimant is another resident in the village. He objects to the demolition of the existing cottage on the ground that it is an old building, the loss of which and its replacement by what he characterises as a modern pastiche will adversely affect the character of the village.
Mr and Mrs Walker's proposal to replace the existing cottage with an equivalent building of modern construction has divided opinion in the village. As appeared from a consultation conducted by the Council, many people in the locality support the proposal while a significant number are opposed to it.
There was some debate at the hearing about how old "Copsewood" is. The Claimant maintains that it could date back to the late 18 th century, but a surveyor's report commissioned by Mr and Mrs Walker dates it to about the 1860s. It is not a listed building.
Mr Harwood, who appeared for the Claimant, submits that the Consent should be quashed on three grounds:
i) the Council failed to have proper regard to the planning guidance issued by the Secretary of State in Planning Policy Guidance Note 15 ("PPG 15");
ii) the Council failed properly to consider and reach a conclusion whether the proposal complied with PPG 15 and, if it did not comply, to reach a conclusion why PPG 15 should not be followed;
iii) the Council acted irrationally and contrary to the statutory purpose of the conservation area regime by concluding that a new building would make a greater contribution to the character and appearance of the conservation area than the existing building, which the Council acknowledged made a positive contribution to the area.
The statutory and policy context
The Council has designated the area of Little Cheverell, including "Copsewood", as a conservation area pursuant to section 69 (1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Act"), which provides:
"Every local planning authority –
(a) shall from time to time determine which parts of their area are areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance, and
(b) shall designate those areas as conservation areas."
The focus of designation of a conservation area is the characteristics of the area. This may be contrasted with the listing of "buildings of special architectural or historic interest" under section 1 of the Act, where the focus is on the characteristics of a particular building which merits preservation (see also section 16 (2) of the Act, which provides that in considering whether to grant listed building consent for works in relation to such a building, the relevant authority "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").
Section 74 (1) of the Act provides that a building in a conservation area shall not be demolished without conservation area consent from the appropriate authority (here, the Council). Section 72 (1) of the Act provides, in material part, as follows:
"72. General duty as respects conservation areas in exercise of planning functions
(1) In the exercise, with respect to any buildings or other land in a conservation area, of [the relevant functions], special attention shall be paid to the desirability of preserving or enhancing the character or appearance of that area."
At the relevant time, national planning policy in relation to listed buildings and conservation areas was contained in PPG 15, which is entitled "Planning and the historic environment". Paragraph 1.1 of PPG 15 provides:
"Planning and conservation
1.1 It is fundamental to the Government's policies for environmental stewardship that there should be effective protection for all aspects of the historic environment. The physical survivals of our past are to be valued and protected for their own sake, as a central part of our cultural heritage and our sense of national identity. They are an irreplaceable record which contributes, through formal education and in many other ways, to our understanding of both the present and the past. Their presence adds to the quality of our lives, by enhancing the familiar and cherished local scene and sustaining the sense of local distinctiveness which is so important an aspect of the character and appearance of our towns, villages and countryside. The historic environment is also of immense importance for leisure and recreation."
Section 3 of PPG 15 deals with listed building control. So far as material, it provides:
"Listed building control
…
3.3 The importance which the Government attaches to the protection of the historic environment was explained in paragraphs 1.1–1.7 above. Once lost, listed buildings cannot be replaced; and they can be robbed of their special interest as surely by unsuitable alteration as by outright demolition. They represent a finite resource and an irreplaceable asset. There should be a general presumption in favour of the preservation of listed buildings, except where a convincing case can be made out, against the criteria set out in this section, for alteration or demolition. While the listing of a building should not be seen as a bar to all future change, the starting point for the exercise of listed building control is the statutory requirement on local planning authorities to "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" (section 16). This reflects the great importance to society of protecting listed buildings from unnecessary demolition and from unsuitable and insensitive alteration and should be the prime consideration for authorities in determining an application for consent.…
General criteria
3.5 The issues that are generally relevant to the consideration of all listed building consent applications are:
(i) the importance of the building, its intrinsic architectural and historic interest and rarity, in both national and local terms…;
(ii) the particular physical features of the building (which may include its design, plan, materials or location) which justify its inclusion in the list: list descriptions may draw attention to features of particular interest or value, but they are not exhaustive and other features of importance (e.g. interiors) may come to light after the building's inclusion in the list;
(iii) the building's setting and its contribution to the local scene, which may be very important, e.g. where it forms an element in a group, park, garden or other townscape or landscape, or where it shares particular architectural forms or details with other buildings nearby;
(iv) the extent to which the proposed works would bring substantial benefits for the community, in particular by contributing to the economic regeneration of the area or the enhancement of its environment (including other listed buildings).…
3.11 If a building is so sensitive that it cannot sustain any alterations to keep it in viable economic use, its future may nevertheless be secured by charitable or community ownership, preserved for its own sake for local people and for the visiting public, where possible with non-destructive opportunity uses such as meeting rooms. Many listed buildings subsist successfully in this way – from the great houses of the National Trust to buildings such as guildhalls, churches and windmills cared for by local authorities or trusts – and this possibility may need to be considered. The Secretaries of State attach particular importance to the activities of the voluntary sector in heritage matters: it is well placed to tap local support, resources and loyalty, and buildings preserved in its care can make a contribution to...
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