Western Power Distribution Investments Ltd. v Welsh Ministers

The claimant wishes to challenge the decision of the Welsh Ministers to include the Llanishen Reservoir in a list of buildings of special architectural or historical interest under Section 1 of the Planning Listed Buildings and Conservation Areas Act 1990. Permission to bring the claim was given by Beatson J on 20 November 2009 on the basis that the claimant who owns the reservoir, Western Power Distribution Investments Limited, had raised arguable grounds for challenging that decision.

The grounds in essence are fourfold. Firstly, that the reservoir is not a building as defined by Section 366 of the 1990 Act as any structure or erection. That ground is no longer pursued. Secondly, that the decision is unreasonable as it is against the defendants’ stated policy set out in Welsh Office Circular 61/96, which sets out the criteria for listed status at annex C. Thirdly, the defendants have failed to have regard to the policy of selecting only the best examples for listed status. Fourthly, the special interest of the site being virtually intact is an irrational and unlawful departure from policy.

The Welsh Ministers dispute each of those grounds. It is contended on their behalf that the reservoir has been properly listed as it has specific historic interest in that it was integral to the nineteenth century water supply system to what is now the city of Cardiff.. In respect of the third ground, the Welsh Ministers say that the reservoir is listed in line with policy, and in particular at paragraph 4 of annex C; and, finally, that the site is virtually intact adds to its historical importance.

Underlying each of the claimant's grounds is a submission that the decision taken by CADW (the historic environmental service of the Welsh Assembly Government) in 2005 not to list this reservoir was a good decision. It is accepted that CADW can reconsider questions of listing, but, if it does reconsider such a listing without any material change of circumstance, it is, submits the claimant, a matter which the court will scrutinise closely.

In view of that broad underpinning of the submissions, it is necessary for me to look at the background in some detail.

The listing of Llanishen reservoir dam was made on 24 July 2009. The reason given for the listing is as follows:

The history is set out; the Llanishen reservoir is sited just east of the north of Cardiff. The supply to Cardiff was at first in the hands of a private company who constructed a reservoir nearby at Lisvane in the 1860s. Responsibility for the water supply to the growing town of Cardiff was assumed by the Cardiff Borough Council in 1878. The council commissioned a survey by its own engineer, John Avery Williams, to identify a suitable and sufficient supply. He presented a full report to the council in 1881, as a result of which the Taf Fawr scheme was approved by the council. In fact, Mr Williams had already made plans for the construction of Llanishen reservoir which predated the adoption of that scheme, but it is stated in the listing that construction of the reservoir went ahead on the basis that it would be an integral part of the scheme as a storage reservoir receiving water impounded in the Upper Taff Valley. Llanishen was the first of four reservoirs which comprised the scheme to be built. Construction began in 1884; and so it was the primary source of water for the town of Cardiff during construction of the Taf Fawr reservoirs and began receiving water from the first of those in 1891.

In respect of the construction of the Llanishen reservoir, it is a continuous and circular dam of about a mile in length. Like the other reservoir dams in the scheme, namely Cantref, Beacons andLwyn-on, it uses a clay core and mass earthbound construction with sloping embankments, the inner face of which is in pitchstone, the outer face of which is turf.

In respect of the other components, the Cantref reservoir dam, including a valve house and spillway, was listed on 6 August 2002. The listing of that reservoir dam is as follows:

A year later another of the reservoir dams, namely Lwyn-on, was listed, again including the valve house and spillway. That listing is as follows:

And then, finally, slightly postdating the listing which forms part of this challenge, the Beacons reservoir dam, including a draw off tower, a bridge and spillway, was listed on 29 July 2009 :

There has been no challenge made to any of those listings apart from that in respect of Llanishen reservoir dam.

Of the four components of the scheme the only component which has a listing referring to quality and character is the Lwyn-on reservoir dam.

I turn now to the statutory provisions and policy guidance. The following provisions are relevant. Section 1(1) and (5) of the 1990 Act read:

“1Listing of buildings of special architectural or historic interest

(1)

For the purposes of this Act and with a view to the guidance of local planning authorities in the performance of their functions under this Act and the principal Act in relation to buildings of special architectural or historic interest, the Secretary of State shall compile lists of such buildings, or approve, with or without modifications, such lists compiled by the Historic Buildings and Monuments Commission for England (in this Act referred to as “the Commission”) or by other persons or bodies of persons, and may amend any list so compiled or approved.

(5)

In this Act “listed building” means a building which is for the time being included in a list compiled or approved by the Secretary of State under this section; and for the purposes of this Act—

(a)

any object or structure fixed to the building;

(b)

any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before lst July 1948,

shall be treated as part of the building.”

The predecessor of that statutory scheme has been the subject of some attention previously by the courts. In Iveagh v Minister of Housing Local Government [1964] 1 QB, at page 395, the Court of Appeal considered the decision of Megawl J, as he then was. The leading judgment was given by the then Master of the Rolls, Lord Denning. In the head note to the decision per curiam this was said:

I do not think I need to go into the detail of the facts of that particular case. As I have indicated, it dealt with the predecessor of the statutory provisions which I have to consider, namely Section 29 of the Town and Country Planning Act 1947. At page 409 Lord Denning said this:

And then, more recently, in R (Bancroft) v The Secretary of State for Culture, Media and Sport, Gibbs J had to deal with the 1990 Act. The citation is [2004] EWHC 1822 (Admin). At paragraph 56 the learned judge said this:

He then refers to the authority I have just cited, and at paragraph 62 continues:

I now turn to the policy. The policy refers to Planning Guidance Wales which sets out the government's land use planning policies as they apply in Wales. The policy is dated 5 December 1996 and relates to planning and the historic environment, historic buildings and conservation areas.

Part 3 deals with listing and listed building controls. It refers to Section 1 of the 1990 Act and continues thus:

Paragraph 48 provides that the main criteria which the Secretary of State applies in deciding which buildings to include in the statutory list are set out in Annex C. In Wales that is a function which is exercised by CADW on behalf of the Welsh Ministers. The policy provides that the emphasis in the criteria in Annex 3 is on national significance although that cannot be designed precisely. It continues:

Then, under the heading Spot Listing, there are two important paragraphs which have formed a main part of the submissions of both parties in this case:

Paragraph 55 gives an address for requests to be made. It is stipulated that:

Then at annex C paragraph 1 reads as follows:

Paragraph 2 then goes on to say that age and rarity are relevant, particularly where the buildings are proposed for listing on the strength of their historic interest; and the older a building is, and the fewer surviving examples of its kind, the more likely it is to have historical importance. The guidance then goes on to refer to buildings before 1700 and then before 1840, before going on to note that after that date (1840), because of the greatly increased number of buildings erected and the much larger numbers that have survived, greater selection is necessary to identify the best examples of particular building types and only buildings of definite quality and character are listed.

Paragraph 4 deals with aesthetic merits, and notes that the external appearance of a building is a key consideration in judging listing proposals. That goes on as follows:

In relation to historic interest, paragraph 5 of appendix C, as substituted by paragraph 24 and appendix A the Welsh Office Circular 1/98, states that buildings may be listed on the grounds of architecture or history and that listing selection takes both into account. The appendix continues:

It was against that policy background that a joint request was made to CADW in 2005 by Dr Owen Jones and Mr Andrew Hill. Their requests were made in writing, both of which were headed "Lisvane and Llanishen Reservoirs". In Dr Jones' letter he sets out the reasons why he advocates the listing of those two reservoirs. He goes on to say this:

The letter of Mr Andrew Hill, dated 21 June 2005, fully supports that request. Mr Hill states that he was always surprised that the Lisvane and Llanishen reservoirs were not listed, particularly as two reservoirs at the upper end of the 1880 supply system were already listed structures. He then sets out, in a case for listing, his reasons. The case is headed "The historical importance of the Lisvane and Llanishen reservoirs in the rapid expansion of Cardiff in the nineteenth century". In the introductory paragraph he refers to the rapid expansion of Cardiff's industrial activity and the population explosion in the latter part of the nineteenth century and early twentieth century and says that city of Cardiff's population by now has reached 300,000 due to northward expansion of the built-up areas, and the Lisvane and Llanishen reservoirs together are unique in Wales by being contained within a major city.

He refers in some detail to the 1881 report from Mr Williams. He refers to the fact that agreement was quickly made by the local authority to construct the second Lisvane reservoir to be later known as the Llanishen reservoir, and the Breconshire scheme was adopted as a high level gathering ground and storage capacity. In a section headed "Case for Listings" Mr Hill says this:

The assessment by CADW of that request refers specifically to the fact that the Lisvane and Llanishen reservoirs are part of an entire system which already possesses other listed structures. The assessment goes on as follows:

“However, statutory listing is guided by criteria against which the above information is tested for "special interest" and in terms of architectural interest, there is only a minimal case as the bound submission to CADW (entitled ‘A Case for Listing’) appears to concede. There are no impressive features like eye-catching valve-towers or monumental retaining walls or architectural masonry detailing. Lisvane and Llanishen Reservoirs are overwhelmingly functional in character.

There is a good case for historic interest within the context of the Cardiff water supply system. This system extends from the reservoirs in the Taff valley and other locations in the Brecon Beacons to the monumental water tower on Cyncoed Road, and it is well-known that the later nineteenth-century expansion of the great dock city of Cardiff was necessarily coupled with great public works and urban improvements, including water supply and sewerage. The test, though, is whether the national historic importance of this overall development within Cardiff is enough to secure the judgement that each individual part of the system is of ‘special historic interest’.”

The assessment goes on to note that to reach a judgment on special interest for buildings of this date, the key paragraph of the guidance in the criteria is concerned with selectivity of a building. Furthermore, it refers to other industrial structures which have been listed in Wales, including Lake Vyrnwy, Elan Valley, Pontsticill and Vaynor, and Cantref at Hirwaun. It notes that the Lake Vyrnwy reservoir is exactly contemporary with the Llanishen reservoir; and, along with a slightly later Elan Valley reservoir, is of international importance. The assessment continues as follows:

Mr Hill in 2008 made another application for the listing of Llanishen reservoir. In the summary of his case on that occasion he referred to the paper which accompanied it representing his formal application to CADW to finish the partly completed exercise of listing the four main above ground structures which comprise the Taf Fawr to Cardiff gravitation water supply scheme designed in 1881 by Mr  Williams. He states in his summary that the scheme envisaged four reservoirs, three in the Brecon Beacons and the Llanishen reservoir in Cardiff via a line aquaduct of some 30 miles. He continues that the listed two structures -- that is Cantref and Lwyn-on-- should be recognised as an integral part of the whole scheme, which in the Welsh context is of great social historical and engineering significance. He says that the four main elements of the scheme cannot logically be separated from each other. He refers to the 2005 request and specifically says that that was flawed in two respects. He then sets these out:

He then goes on to set out the case for listing the Beacons and Llanishen reservoirs. He deals with the anomalies in the compilation of the current statutory list as follows:

He then sets out his conclusions referring to the supply scheme of Mr Williams. He says at paragraph 8.3 that the detailed designs for the whole supply chain are of sufficient and unique interest in social and civil engineering terms for the institute of civil engineers to add the whole scheme to their archive on major British achievements. This was something that had changed since the 2005 rejection by CADW of the request to list Llanishen reservoir as part of the Llanishen and Lisvane reservoir application. By a letter dated 15 June 2007 from the Institution of Civil Engineers to a Mr Kerr, the writer Mr Keith Thomas, who also happens to live in Lisvane in Cardiff, says as follows:

In his conclusions Mr Hill continued to refer to the four main elements of the scheme being in good condition and functioning as working reservoirs. He refers to the outer embankments of Llanishen as being then designated as a SSSI. That new request was in due course considered by CADW. On 6 May 2009 it wrote to the claimant's solicitors saying that it had completed its assessment of the request from Mr Hill and that the Welsh Ministers were considering the request to list Llanishen reservoir as a building of special architectural or historic interest and to explain how it was intended to proceed. The letter refers to the 2008 request and to the fact that the claimant then decided to commission its own report into the architectural and historic interest of the reservoir. A copy of a report on behalf of the claimants by RPS, which was dated 1 October 2008, was forwarded to CADW and an accompanied inspection took place on 15 December 2008.

The writer of that letter, a Mr Burr of the designations branch of CADW, referred to the previous assessment by CADW. He says that the view was taken on the information then available that the Llanishen reservoir did not possess the comparable level of architectural detail to the other components of the Taf Fawr system, two of which, namely Cantref and Lwyn-on, were listed. The letter continues thus:

The letter then goes on to deal with the construction of the Taf Fawr reservoirs and the design and construction of each one of them. The letter carries on as follows:

In that letter he refers to a letter dated 18 June 2009 sent on behalf of the claimant, whereby the view was put forward that Llanishen reservoir was not of special architectural or historic interest and was not designed to form part of the integrated water supply scheme for Cardiff in the late nineteenth century. Mr Burr in that letter accepts that Llanishen reservoir was proposed in 1878 but notes that construction did not start until 1884. By that time the local authority had assumed responsibility for the water supply and had commissioned Mr Williams's report. Mr Burr set out the view that a more appropriate context in which to consider the structure's importance is as built, rather than as intended, and finishes as follows:

To complete the narrative, in these proceedingsMr Burr filed a statement dated 17 February 2010, just about a week before the hearing of his claim. In paragraph 4 of that statement Mr Burr says this:

Mr Clive Lewis QC, on behalf of the Welsh Ministers, accepts that there is no new information as such apart from the listing by the ICE. Mr Steel QC, on behalf of the claimant, submits that, although that listing was a development which had occurred since the 2005 refusal to list by CADW, that decision by the ICE was taken on a very different set of criteria to that which CADW employed and which the policy sets out. It refers, for example, to the size of the reservoir and matters of construction, as well as the period of construction. In my judgment there is force in that submission and I accept it.

However, Mr Lewis submits that the policy referring to new evidence should not be read as requiring something similar to grounds upon which new evidence will be admitted on appeal, for example, in a court of law. His submission is that the 2005 request was put on the basis of coupling Llanishen reservoir with that of Lisvane and, in my judgment, it is clear from the documents submitted in support of that request, and the letters from Dr Owen Jones and Mr Hill, that that was indeed the case. I accept Mr Steel's submission that, with care, the historical significance of this scheme, as a scheme, can be drawn from the documentation available to CADW in 2005. Indeed it can be drawn from Mr Williams's 1881 report. But I also accept Mr Lewis's submission that, reading the 2005 request to list as a whole, it was put on the basis of coupling the two reservoirs as a supply to Cardiff, and hence the focus of the request was, I am satisfied, different to the request made in 2008. On the latter occasion the focus was very much upon Llanishen, without Lisvane, being the fourth component of an integral system from the Beacons to Cardiff.

Mr Lewis further submits that, having regard to the policy and in particular paragraph 53, the reference to the Secretary of State recognising that there may be cases where new evidence justifies reconsideration of a previous decision to list -- but generally not being disposed to review early decisions unless such evidence is provided -- refers to the part of the policy dealing with new evidence. That is not the only situation to which paragraph 53 refers, submits Mr Lewis. It also refers to a situation where, for example, a previous request for listing may nevertheless lead to the building's special interest being overlooked. His submission continues that this guidance is sensible guidance to those persons seeking a listing as to what normally they might have to show where a listing has already been the subject of a recent assessment. It is no more, says Mr Lewis, than pragmatic sensible advice. What it cannot do, he says, is to detract from the statutory duty on the part of the Welsh Ministers under Section 1 of the 1990 Act to have regard to the architectural importance or the historic interest of a site such as Llanishen reservoir. He emphasises that those criteria are in the alternative and, whilst there may in some circumstances be some overlap, it is clear in this case that, having revisited the historic interest of Llanishen reservoir in the context as a fourth component of one entire scheme rather than being coupled with another local reservoir or local supply to Cardiff, it cannot be said that the decision of which complaint is made is a decision which no reasonable minister or agency on his behalf could have come to. It cannot be said, submits Mr Lewis, that that decision is outside the guidance set out in the policy. I am persuaded that Mr Lewis's submissions are to be preferred in this regard and I accept them.

That, as I have indicated, was the underpinning submission of Mr Steel, but he maintained the other three grounds relied upon as part of this challenge. First of all, he submits, and this is ground 2, that the decision was at variance with policy because the reservoir is a structure of minimal architectural interest. He refers to paragraph 5 of annex C as substituted that, in the case of buildings with historic associations, there should normally be some quality or interest in the physical fabric of the building itself. Against that, Mr Lewis submits that that paragraph is directed at the third bullet point under paragraph 1 of annex C, namely close historical associations with people or events of importance to Wales. It is not directed, submits Mr Lewis, to the second bullet point, namely historic interest which includes buildings illustrating important aspects of the nation's social or economic importance. Again I prefer the submission of Mr Lewis in this regard. As he submits it may be that a building which has historic interest may also have some historical association. It may be that a building which has no historic interest is of importance because of associations with people or events. I am satisfied that this particular listing comes within the second bullet point of paragraph 1 of annex C, namely that the reservoir illustrates important aspects of Wales's social and economic history and that it was open to the decision-makers to take the view that the requirements set out in paragraph 5 were not apposite in this particular case. Of course, as Mr Steel properly submits, paragraph 2 of annex C refers to age and rarity; it refers to buildings of definite quality and character where those buildings were built after 1840. But again, in my judgment the decision-maker was entitled to take the view, as it did in 2009, that this reservoir should be viewed not only on its own merits but as part of an integral system from the three reservoirs in the Beacons to the end of the supply chain in Cardiff.

Mr Steel says that the reservoir could not be described as the best example of a particular building type or a building of definitive quality or character, and Mr Lewis does not take issue with that assessment. What he says is that it is clear, having regard to the listing of this reservoir, that the reason it was listed was of its historic interest as an integral part of the water supply for Cardiff representing a major Welsh civic engineering scheme. Mr Lewis says that is clear from the listing itself. There was reference by Mr Steel to the major components of the Elan Valley scheme and to inconsistencies, for example whether one of the dams in that scheme, as opposed to the viaduct visible above the surface of the water, has been listed. Mr Lewis points to the fact that as a matter of law once the viaduct was listed then under Section 15 of the 1990 Act then the whole of the structure is regarded as a listed building, and Mr Steel did not dissent from that proposition. What he says, however, is that the fact that, by a particular provision in the 1990 Act, the listing is regarded as including the dam does not detract from his point that there is inconsistency of approach in relation to the features of the Elan Valley system. That may well be the case, but in my judgment I have to focus on this particular listing and I am not satisfied that the irrationality contended for under ground 2 on behalf of the claimant is made out.

I then turn to ground 3, namely that the Welsh Ministers failed to have regard to the policy of selecting and listing only the best examples and listing buildings of historic interest only where the features confirm that to be the case. Mr Steel says that CADW unreasonably relied on two points in making its decision, firstly the status of Cardiff as it emerged to pre-eminence and the fact that the water supply was not only wholly in Wales but for a Welsh town. Again, says Mr Lewis, that takes the listing out of context and fails to have regard to the rationale given for the listing. I have to say that I do find that the letters written on behalf of CADW in 2009 to the claimant's solicitors to be somewhat confusing in parts. On the one hand, Mr Burr, in his letter dated May 2009, did seem to be referring to the method of construction. That, it seems, as a result of his statement filed on 17 February of this year, was not intended to refer to the basis of listing. In that statement he confirms that the listing was on the basis of historic interest of the four major parts of the Taf Fawr scheme, including Llanishen reservoir. Despite some confusion, I accept Mr Lewis's ultimate submission that, when one has regard to the listing and the listing notice and reading them together as I must do, then the basis for listing does become clear as set out in Mr Burr's statement.

Finally, and as the fourth ground, Mr Steel says that the reliance on the special interest of the reservoir lying in the fact that it was part of an engineering scheme which has survived virtually intact again represents an unlawful departure from policy and is irrational. Mr Lewis says that this submission takes three words out of context. It is clear that the basis for the listing is that the reservoir, together with other structures, forms an integral part of a major Welsh civil engineering scheme, and that I have accepted. Mr Lewis submits that whilsts not the basis for listing, nevertheless, where such a component has survived virtually intact, that adds to the value of the interest. Again I accept this submission. I am not persuaded that those words, taken in isolation, show that the Ministers have proceeded in a way that is not permitted by the statutory provisions as supplemented by the policy set out in the guidance.

Accordingly, for all those reasons, I am not persuaded that this is a case where this court should interfere with a decision taken by CADW on behalf of the Welsh Ministers under Section 1 of the 1990 Act, and I decline to do so.