Chambers & Anor v Guildford Borough Council

In this action the Claimants apply for a declaration in the following terms:

By order of Master Eyre dated 3 January 2008 it was ordered that the following question be decided as a preliminary issue:

It is common ground that the strict answer to that question is clearly “yes”. The Court does have jurisdiction to make such declarations, but the real argument is whether it is appropriate for the Court to entertain such an application now in the circumstances of this case. It is to that question that the oral and written arguments before me have been directed. It is accepted by both parties that it is that broader question that I should decide.

The Claimants are the owners of property and land situated at and known as Colekitchen Farm, Colekitchen Lane, Gomshall, Surrey (“the Property”). The Defendant is the local planning authority.

The principal building on the Property is a farmhouse built in the 17^th Century. About 3.4 metres to the south of the farmhouse is a pillbox constructed in about 1940 as part of the national defences during the Second World War. The Claimants now wish to remove the pillbox.

On 21 May 1985, pursuant to the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Act”), the Secretary of State made a “listing” in the following terms:

By application dated 2 April 2007 the First Claimant applied to the Defendant for “listed building consent” for removal of the pillbox. The “Justification Statement” submitted with the application contained the following passage:

The Defendant advertised the application. Objections were received. The Defendant recognised that the question of whether the proposed removal of the pillbox required listed building consent was at the heart of the application and it took Counsel’s opinion on the matter. Counsel advised that consent was required. By a Decision Letter dated 20/06/2007 the Defendant refused consent. Its reasons were as follows:

The Claimants did not appeal to the Secretary of State against this decision. Instead on 7 November 2007 they issued these proceedings by Claim Form under Part 8 of the Civil Procedure Rules (“CPR”). The Claim Form was served on or about 9 November 2007. No pre-action Protocol Letter was sent prior to commencement of the action. By letter to the Claimants’ solicitors dated 19 November 2007 the Defendant accepted that this Court has jurisdiction to determine whether the pillbox was a listed building but informed them that Counsel had advised that it was inappropriate for the issue to be litigated in court proceedings before an Inspector had had the opportunity to consider the issue on an appeal under Section 20 of the Act. The Defendant invited the discontinuance of the proceedings and the bringing of an appeal under Section 20. That invitation was, by implication, declined. Any appeal against the refusal of consent would now be out of time, although the Defendant accepted before me that it was open to the Claimants at any time to make a fresh application, triggering a further decision and, if necessary, an appeal. An appointment for directions in this action was issued before the Master and he proceeded to make the Order of 3 January 2008 already mentioned.

Section 1(5) of the Act provides as follows:

Demolition, alteration or extension of a listed building in any manner which would affect its character as a building of special or historic interest may only be carried out lawfully if authorised, generally by the grant of listed building consent, obtained from the local planning authority or (on appeal) from the Secretary of State: Section 7. To proceed without such consent, if it is required, is a criminal offence: Section 9. Sections 10 to 16 deal with the application process and speak only of the grant or refusal of the application. No reference is made to any procedure for resolving any prior question of whether consent is in fact necessary. Section 16(1) is in the following terms:

Section 21(3) of the Act provides as follows:

The Claimants, by Mr. Mynors, argue that there is no statutory procedure enabling a land owner to find out, in case of doubt, whether listed building consent is required for intended works. There is, in particular, no equivalent in the Act to the procedure in sections 191-193 of the Town and Country Planning Act 1990 whereby a land owner may find out whether planning permission is required. Accordingly, that matter is one for the courts to decide. The Defendant, for whom Mr. Albutt appears, contends that such an issue can be decided on a statutory appeal against the refusal of consent either on the basis that the structure in issue should be “de-listed” under Section 21(3) or generally as to whether it is subject to the listing at all. Mr. Mynors submits that the procedure envisaged by Section 21(3) does not provide for a case where the issue is whether the structure in question is subject to listing at all. Indeed, initially with some hesitation but later with more enthusiasm, he went so far as to submit that neither the planning authority, nor the Secretary of State on an appeal, has jurisdiction to decide whether listed building consent is necessary. Each, he submitted, was confined to deciding whether consent should be granted, making the assumption that such consent was required. (Footnote: ²)

In evidence, the Claimants’ planning consultant states that in his experience Inspectors tend to operate on the basis that if an application for listed building consent has been made it must be determined whether or not such consent is required by law. The evidence of the Defendant’s solicitor is to the contrary. He submits that Inspectors give full weight and attention to all the arguments and states that he fails to see how an Inspector in this case could disregard the Claimants’ contention that the pillbox is not subject to the listing. He produces an Inspector’s decision delivered in November 2006 where such an issue was addressed and decided. Mr. Mynors meets this submission by pointing out that the case in issue involved enforcement proceedings in respect of which, in Section 39(c), the Act allows an appeal on the basis that the works in question do not contravene of Section 9, which would include any question of whether listed building consent was required for the works in issue.

Mr. Mynors further submits that, in the present case, where there have been several objections to the proposed removal of the pillbox, the appeal procedure may be lengthy and expensive and may still require in the end the Court’s adjudication on the question of whether listed building consent was ever required at all. Mr. Albutt argues, however, that the question whether the pillbox does fall within the curtilage of the listed building is a mixed matter of fact and law which it is appropriate for an Inspector to resolve, if necessary having heard oral evidence, including that of any objectors.

Each party has referred me to a passage in the judgment of Schiemann LJ in Thames Heliports PLC v London Borough of Tower Hamlets (1996) 74 P&CR 164, 167 in the following terms (Footnote: ³):

There is no dispute that the Court does have jurisdiction to make declarations of the type now sought. The only questions are whether the Court’s jurisdiction is exclusive and, if not, whether proceedings in Court for a declaration are or are not the better manner in which to resolve the present issues in preference to leaving the matter to be resolved on an appeal.

On the first question there is no authority. The second question, if it arises, is simply a discretionary one as to the most convenient procedure to be adopted in the present case.

There is no doubt that initially both the Claimants and the Defendant assumed that the Defendant and the Secretary of State on appeal had jurisdiction to decide whether the pillbox was subject to the listing made in 1985 for the purposes of the Act. The application addressed argument on the point. The planning department’s report expressed a view upon it, based on legal advice obtained, and the Defendant’s decision expressly dealt with the issue. Equally, there is no doubt that planning authorities and the Secretary of State on appeal (through the inspectors) routinely decide issues of law arising in matters before them under the Planning Acts. It would perhaps be strange indeed if in each case where an issue arose as to whether a particular structure was or was not the subject of a listing it would be necessary to resort to the Court before the planning authority could decide a consent issue and before any appeal could be launched.

In City of Edinburgh Council v Secretary of State for Scotland[1997] AC 1447 the House of Lords considered the parallel provisions under the Scottish legislation. There the Reporter (the Inspector in English terminology) had decided that a former riding school building had not been included in a larger listed building definition for the purposes of the Scottish Act and that, therefore, listed building consent had not been required. The Reporter had not gone on to consider the merits of the consent application for the event that his decision on the first point was wrong. The Court of Session and their Lordships’ House disagreed with the finding that consent was not required. The question of the Reporter’s jurisdiction to decide the point was alluded to in passing by two of their Lordships, but without decision on the matter. At p.1451A-C Lord Hope of Craighead said,

In the same case, Lord Clyde said this:

This case appears to be the closest that the courts have come to considering the jurisdiction question now raised by Mr. Mynors. As can be seen, no decision was reached on the point and it seems never to have arisen again in the intervening decade.

Mr. Mynors submits that the inclusion of Section 21(3) in the Act (permitting an appeal to be brought on the grounds that the building is not one of special architectural and historic interest) indicates that the logically prior question of whether the structure in question is subject to the listing at all is excluded from any appeal procedure. (Footnote: ⁴) For my part, I do not consider that section 21(3) assists Mr. Mynors. It seems to me that the section is clearly opening up a ground of challenge that would otherwise be clearly outwith the appeal process, namely that a building that is undoubtedly subject to a listing should be “de-listed”.

It is accepted by both parties that, in some cases, where an application for planning permission is refused, on appeal the appellant can argue that although application for permission has been made, the land already benefits from a permission which does not require consent. Mr. Albutt referred to this as the “fall back position” often taken on an appeal where an applicant argues that he already has permission for a particular activity on the site and offers his consent to enter an agreement under section 106 of the Planning Act to desist from that activity if the application is granted. In such a case, he submits, the Inspector clearly has jurisdiction to decide whether the first activity is already subject to such an existing permission.

Again, it is argued, an Inspector can be asked in appeal proceedings whether land is “curtilage land” for the purposes of deciding whether or not it is previously “developed land”. For example, it is well known that applications for housing development are more favourably entertained in respect of land which has previously been developed than in cases of undeveloped land. In such a case the Inspector may well have to decide whether the land in issue was indeed part of the curtilage of a previously developed site.

Mr. Mynors meets these points by saying that this type of question is merely an “incidental” to the issue an Inspector has to decide, namely whether permission should be granted for a new activity. It is not a question going to the “fundamental” issue of whether a consent or permission is required at all about which the Acts are silent.

Mr. Mynors helpfully set out in his written argument five issues that have to be determined in cases of the present type. These appear in paragraph 9 of that paper.

It seems to me extraordinary also that Parliament would envisage that a dispute of the present kind should be decided in High Court proceedings, then leaving other issues that may arise on an application to the usual planning processes.

Mr. Mynors helpfully referred me to the speech of Lord Keith of Kinkel in Debenhams plc v Westminster City Council[1987] AC 396, 402G-403H. The passage cited concluded with the following:

In the end, I think that it is clear that those concerned in planning matters have for long worked on the assumption that the planning processes are available for determination whether listed building consent is necessary in any individual case. That assumption was made without question all the way to the House of Lords in the Edinburgh case in 1997 and, although their Lordships did not decide the issue, there is no suggestion that they were in any way concerned that the Reporter had addressed the question of whether consent was required at all. In the intervening years Parliament has not chosen to intervene and there has been no hint from the Secretary of State that such decisions are not ones that should be left to Inspectors. For my part, for reasons already explained, it would seem to me to be highly inconvenient that such questions should routinely have to be decided by the courts before the substantive points could be addressed. In my judgment, it must be implied, therefore, that the initial decision on whether consent is necessary is one for the planning authority and, subsequently if necessary by the Secretary of State on appeal. I find that the High Court’s jurisdiction in these questions is not a jurisdiction that excludes these decisions from the planning processes.

The next question is whether it is appropriate in this case for the issues now raised to be decided in these Court proceedings or in some other manner.

It is accepted by all that the initial issue of difficulty in this case is that raised by Mr. Mynors’ issue 2 (the application of Section 1(5) of the Act – objects and structures attached to a building or within its curtilage). He accepts that this is a mixed question of fact and law and that this issue might require extensive factual analysis and evidence. He accepts that the same applies to issue 3 (whether the works constitute alteration or extension of a listed building in a manner that affects its character as a building of special or historic interest). (See paragraphs 12 and 42 of the claimants’ written argument.) Equally, it can be seen from the passage from Lord Keith’s speech in the Debenhams case above that the Section 1(5) issue does raise mixed questions of fact and law. On such matters, as Mr. Albutt argues, evidence may well be necessary on matters of history and background from local people and possibly experts. It is submitted that the present proceedings in which only the authority is represented such issues may not be adequately ventilated.

I have not the slightest doubt that, if at all possible, the better way of resolving all the issues in this case, including those covered by the declarations sought, would be through the normal planning processes of application and appeal. As already mentioned, I understand that any appeal from the Defendant’s decision of last year would now be irretrievably out of time. Equally, the Defendant has made it clear before me that there could be no objection to the issues being raised on a fresh application and, thereafter, if the result is the same, on an appeal. Equally, the Defendant says that, for its part, it would not seek to contend that neither it nor the Secretary of State could resolve any of these questions. The Defendant cannot, of course, bind either the Secretary of State or any objector. However, that does not seem to me to be a good reason for not endeavouring to constitute a procedure that is best equipped to deal with these issues if at all possible. It would, however, be regrettable if, by a technical objection taken later by parties not represented before me, issue 1, 2 (and perhaps 3) in Mr. Mynors’ list were ruled inadmissible on a fresh application and/or appeal.

What I propose to do, therefore, is to stay the present proceedings for the time being with a view to a fresh application for consent being made and an appeal being brought from any refusal (if the claimants were so advised), with permission to either party to apply to remove the stay in the event that any insuperable technicality should prevent all necessary issues being decided. I would regard it as unfair to the present Claimants, who have behaved entirely responsibly throughout (Footnote: ⁶), if they were precluded from getting a proper answer, in one way or another, to the questions now in issue either from the planning processes or the Court. The stay of proceedings that I propose seems to me to be the best manner of achieving this. I will, of course, hear Counsel on the appropriate form of order.