Listed building — Planning (Listed Buildings and Conservation Areas) Act 1990 — Proposed alterations and partial demolition of Grade II* listed building — Meaning of “significant” in para 3.15A of PPG 15 — Whether “significant” limited to quantity or architectural and historic quality of part of building to be demolished
The defendant council granted planning permission and listed building and conservation area consent to the first interested party, WB Ltd, for the proposed development of a Grade II* listed hotel. The proposal included the demolition of the south wing of the hotel. Paragraph 3.15A of PPG 15, Planning and the Historic Environment, provides that the criteria specified in para 3.19 must be addressed where works of alteration involve the demolition of a significant part of a listed building. An English Heritage expert advised the council that the word “significant”, in para 3.15A, related to the proportion of the building being demolished and not to the significance of the architectural or historic features; English Heritage did not provide any advice as to the para 3.19 criteria. However, the committee had received internal advice and did consider the qualitative aspects of the proposed demolition. The claimant, a member of a local residents’ association, contended, inter alia, that the planning committee had been wrong to accept the advice of English Heritage as to the meaning of “significant”. As a consequence, they had wrongly failed to address and apply the criteria in para 3.19. The claimant sought to quash the decision to grant permission.
Held The claim was dismissed.
The word “significant”, in para 3.15A, referred to the architectural and historic features of a listed building and not to the extent of the building proposed for demolition. Notwithstanding the position of English Heritage, the committee had received the correct advice as to the test to be applied. They had not received an evaluation from English Heritage of the qualitative aspects of para 3.15A because English Heritage did not believe, on its interpretation of the paragraph, that they were relevant. However, the committee had considered the quality of the part of the building to be demolished and had not acted perversely in concluding that, in the context of the whole, the demolition of the south wing was not significant: see [71]. Had English Heritage interpreted para 3.15A correctly, it would have provided similar advice on the para 3.19 criteria as the committee had received from its own officers. Had that advice been available, the committee would still have made the same decision. |page:57|
Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2001] 2 AC 603; [2000] 3 WLR 420; [2000] 3 All ER 897; (2001) 81 P&CR 35; [2000] 3 PLR 111; [2001] JPL 58, HL
Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343; [1991] JPL 241, CA
Northavon District Council v Secretary of State for the Environment [1993] JPL 761
R (on the application of Young) v Oxford City Council [2002] EWCA Civ 990; [2002] 3 PLR 86; [2003] JPL 232, CA
R v Derbyshire County Council, ex parte Woods [1997] JPL 958; [1998] Env LR 277, CA
Shimizu (UK) Ltd v Westminster City Council [1997] 1 WLR 168; [1997] 1 All ER 481; [1996] 3 PLR 89; [1997] RVR 128; [1997] JPL 523, HL
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 All ER 636; (1995) 93 LGR 403; [1995] 2 EGLR 147; [1995] 27 EG 154; [1995] 2 PLR 72, HL
Application for judicial reviewThis was an application by Mark Alan Sullivan seeking to quash, by way of judicial review, a grant of planning permission and listed building consent by the defendants, Warwick District Council, to Wilson Bowden Developments Ltd in respect of a Grade II* listed building.
PITCHFORD J:
Claim
[1] The claimant, Mark Sullivan, seeks an order quashing planning permission W20010483 and listed building consents W20010484LB and W20010485LB issued by the defendants, Warwick District Council, on 15 August 2002. At a renewed oral application on 17 December 2002, Richards J gave permission to proceed. The first interested party is Wilson Bowden Developments Ltd, the developer beneficiary of the permission. The second interested party is English Heritage, a statutory body performing advisory functions under the National Heritage Act 1983 and an expert consultee in the planning process. Mr Sullivan is a near resident and a member of the Central Leamington Residents’ Association (CLARA) and of the Leamington Society, principal objectors to the applications. |page:58|
Listed building
[2] The subject of the claim is the Regent Hotel, 77 the Parade, Royal Leamington Spa, Warwickshire, a Grade II* listed building. The hotel was completed in 1819, the work of CS Smith of Warwick, for a Mr John Williams. Within three weeks, its name had been changed to the Regent Hotel with the permission of the future George IV. It was constructed in Flemish bond, a brick that is pinkish-brown in colour, with painted stucco facades, a coade stone coat of arms, and a concealed roof. The principal range, on the east side of the Parade, fronting westwards, is a large four-storey rectangular block. Bays at each end of the block are stepped slightly forward. Its main elevations are clad in stucco, a familiar feature in Leamington Spa. Rear wings project eastwards from the northern and southern ends of the principal range to form, to the rear, a courtyard, since cluttered with a variety of modern additions. The smaller, north wing comprises largely 20th century additions, the demolition of which is not the subject of dispute. The south wing, however, listed as “rear range of four lower storeys, seven first-floor windows”, is the subject of controversy. It is contemporary with the principal range but subordinate to it in architectural quality and status. Its four storeys reach the same height as the first three storeys in the principal range.
[3] The main entrance to the hotel was originally at the southern end of the principal range, facing south. A central corridor led past state rooms to the grand staircase, the ballroom and dining suites. During 1845, an entrance was sited in the western facade that, in about 1905, became the main entrance, giving access directly to the grand staircase. At the same time, much of the ground-floor area was remodelled.
[4] The Regent Hotel is believed to have been only the second purpose-built hotel in England and the oldest of its type to survive. It formed an integral part of the development of Leamington as a spa town. Early recorded visitors include the Duke of Wellington (1827), Princess Victoria (1830), and Prince Louis Napoleon and Empress Eugenie (1860). The south wing was constructed, it is believed, to provide accommodation for the servants of the hotel’s guests.
[5] The former state rooms are mainly Edwardian in character, but the notable 19th century staircase survives, as does the original internal layout with central axial corridors.
[6] The south wing internally has been altered over the years to create en-suite facilities. It contains no notable internal feature and is described by Mr Alan Taylor, an inspector of historic buildings employed by English Heritage, as a collection of small rooms with low ceilings, which would not meet modern hotel accommodation requirements. The extent of alteration required to refurbish the south wing to meet modern standards of accommodation would seriously alter and affect its character and appearance.
[7] The hotel finally closed for business in December 1998. Wilson Bowden acquired the freehold of the hotel in February 2000. |page:59|
Planning history
[8] The Leamington Town Centre local plan (adopted March 1983) identified key site E as suitable for the provision of office accommodation for the district council, private offices, shops and car parking. The Regent Hotel comprises a significant portion of key site E. A developer was selected and applications for planning permission and listed building and conservation area consents were submitted in June 1991. Listed building consent was granted in September 1991, but planning permission was never granted because agreement could not be reached as to the extent of necessary off-site works.
[9] Key site E became incorporated into the Warwick District local plan adopted in April 1995. Warwick District Council located their staff in other accommodation and offices were no longer required. Ownership of the Regent Hotel passed to Regent Estates and, in July 1998, a series of further planning applications was made.
[10] The first of these applications became known as “mark one”. The proposal involved partial demolition, interior and exterior alteration and change of use of the hotel to retail purposes. The proposal attracted widespread opposition, including that of English Heritage. In September 1999, a “mark two” set of proposals was deposited, but the fate of the hotel had not been significantly changed. “Mark three” followed shortly afterwards, proposing that the upper two floors of the Regent Hotel should be retained for hotel use. The basement, ground and first floors would be utilised for retail premises. Internal and external demolition was still required, including the north and south wings and the grand staircase.
[11] On 29 November 1999, Warwick District Council’s planning subcommittee resolved to grant planning permission for the mark three proposal on conditions.
[12] Wilson Bowden submitted proposal “mark four”, under which the Regent Hotel would be refurbished, the wings demolished and the site developed for retail, leisure, hotel, residential and other use. Mark four was withdrawn and replaced by “mark five”, the proposal accepted by the planning subcommittee on 12 December 2001 and the subject of this claim. It was proposed to:
(i) demolish the rear wings of the Regent Hotel and construct, in their place and over the former courtyard, a substantial building for retail and residential use, fronting a new pedestrianised street behind the hotel linking the Parade to Regent Street;
(ii) convert the ground floor of the Regent Hotel to retail use. Restore the hotel entrance at the southern elevation and construct a classical portico to the Parade. Refurbish the upper floors of the hotel building to form 50 bedrooms with ancillary facilities;
(iii) construct a basement car park to service 132 flats to be constructed above the new street; and
(iv) demolish rear extensions to 90 Regent Street and 31 Regent Grove, and alter 31 Regent Street to provide two retail outlets on the ground floor with residential units above. |page:60|
[13] The planning committee discussed the proposals on 10 and 30 October 2001. Members deferred a decision pending further consideration of car-parking arrangements for the renovated hotel. On 12 December 2001, planning permission and listed building and conservation area consents were granted, subject to several conditions.
Claimant’s case
[14] The claimant’s case is that, in performing their statutory duty under section 16 of the Planning (Listed Buildings and Conservation Areas) Act 1990:
(i) the planning committee had been misdirected as to the proper interpretation and application of para 3.15A of PPGN 15 (1994)1, and, in consequence, had wrongly failed to address and apply the criteria required by para 3.19. The committee had accepted the advice of English Heritage, which itself had misunderstood the requirements of para 3.15A;
(ii) if, in the alternative, the committee had correctly understood para 3.15A, their decision that demolition of the south wing did not constitute demolition of a “significant part” of a listed building was perverse;
(iii) the committee had been misdirected that the Secretary of State supported the grant of listed building consent and had accordingly taken account of an irrelevant consideration; and
(iv) if it be established that the committee had thus failed to weigh a material consideration, or had weighed an irrelevant consideration, the court should decline to exercise its discretion not to quash the permission and consents.
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1 PPGN 15: Planning and the Historic Environment
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Legislation and policy
[15] Section 16(2) of the 1990 Act provides:
In considering whether to grant listed building consent for any works the local planning 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.
[16] PPGN 15 contains the Secretary of State’s policy and planning guidance for the historic environment. Listed building control is the subject of section 3.
[17] Paragraph 3.1 draws attention to section 7 of the Act, which provides that once a building is listed, consent is normally required for demolition or for works of alteration or extension that would affect its character as a building of special architectural or historic interest. By para 3.2, controls apply to both external and internal works that would affect a building’s special interest. Paragraph 3.3 explains the importance that the government attaches to the protection of the historic environment. There should be a general presumption in favour of the preservation of |page:61| listed buildings except where a convincing case for alteration or demolition has been made out. By para 3.4, the burden is upon the applicant to show why works that would affect the character of a listed building are desirable or necessary.
[18] Paragraph 3.5 itemises issues that are of general relevance to all the listed building consent applications. They include the importance of the building, its intrinsic architectural and historic interest and rarity nationally and locally, the particular physical features of the building that justify its inclusion in the list, the building’s setting and its contribution to the local scene, and the extent to which the proposed works would bring “substantial benefits” to the community, in particular by contributing to the economic regeneration of the area or the enhancement of its environment.
[19] Paragraph 3.6 emphasises that Grade I and II* buildings are of particularly great importance to the nation’s built heritage.
[20] Section 3 proceeds to consider relevant issues in three specific categories: use, alterations and extensions, and demolitions. Paragraphs 3.8 to 3.11 deal with use. What is required is a balancing exercise to identify the optimum viable use compatible with the fabric, interior and setting of an historic building. It should be recognised this may not be the most profitable use if profit would entail more destructive alterations than other viable uses.
[21] Paragraphs 3.12 to 3.15A concern alterations and extensions. When new uses are proposed, it is important to balance the effect of any changes on the special interest of the listed building against the viability of any proposed use and of alternative, and possibly less damaging, uses. It is essential to have assessed the elements that make up the special interest of the building in question. It is recognised that many listed buildings can sustain a degree of sensitive alteration or extension to accommodate continuing or new uses. What is required is a proper balance between the special interest of the listed building and proposals for alterations or extensions. Specialist expertise should always form the basis of a decision.
[22] By para 3.15A:
Where works of alteration involve the demolition of a significant part of the listed building, the considerations set out in paragraph 2.19 should be addressed.
[23] Demolitions are the subject of paras 3.16 to 3.19. Secretaries of State would not expect consent to be given for the total or substantial demolition of any listed building without clear and convincing evidence that: (i) all reasonable efforts had been made to sustain existing uses or to find viable new uses and those efforts had failed; (ii) preservation in some form was not possible; or (iii) redevelopment would produce substantial benefits for the community that would decisively outweigh the loss resulting from demolition.
[24] Paragraph 3.19 sets out specific considerations that it is expected the decision maker will address if the works proposed would result in |page:62| total or substantial demolition of the listed building. These comprise the condition of the building; the cost of repair and maintenance in relation to its importance and the value to be derived from its continued use; the adequacy of efforts made to retain the building in use, including, if necessary, the offer of the unrestricted freehold of the building on the open market at a realistic price reflecting the building’s condition; and the merits of alternative proposals for the site.
[25] For the purposes of section 27(1) of the 1990 Act (applications for compensation following refusal of consent to alteration of a listed building), the House of Lords decided, in Shimizu (UK) Ltd v Westminster City Council [1997] 1 All ER 4811, that “demolition” meant the pulling down and removal of a whole building. Demolition of part only of the listed building was “alteration”. It is common ground between the parties that the same words used in sections 7 and 8, and in PPG 15, should bear the same meanings.
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1 [1996] 3 PLR 89
2 Planning and the Historic Environment 14/97. Cancelled by 0/01
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Demolition of a significant part of a listed building
[26] An amendment to section 3 of PPG 15, was made by Environment Circular 14/972 in consequence of the decision in Shimizu. In its original form, the preamble to para 3.19 read as follows:
Where proposed works would result in the total or substantial demolition of the listed building, or any significant part of it, the Secretaries of State would expect the authority, in addition to the general consideration set out in paragraph 3.5 above, to address the following considerations…
[27] Following Shimizu, the reference to “significant part” of a listed building was removed from para 3.19 and transferred to the alterations and extensions category of section 3 by the addition of para 3.15A: see para 22 above.
[28] There appears to have emerged a conflict of views within English Heritage as to the consequences of the decision in Shimizu. In a letter of 12 November 2001, Mr Allan Jeffery, vice-chairman of the Leamington Society, wrote to Mrs Mary King, regional director of English Heritage. He wanted to know what was English Heritage’s understanding of the words “significant part” in para 3.15A. Mr Taylor, replying on Mrs King’s behalf, wrote on 6 December 2001:
English Heritage consider that “significance” in the context of paragraphs 3.15A and 3.19 of PPG15 is based upon the proportion of the building involved. This derives from the House of Lords decision in the Shimizu case which turned on the proportion of the building to be demolished and drew a distinction between alteration and demolition. This interpretation formed the basis of the legal advice which was given to |page:63| English Heritage’s Historic Built Environment Advisory Committee and by which we still stand.
[29] That advice came from Mr Nigel Hewitson, legal director of corporate services, English Heritage. The meeting of the Historic Built Environment Advisory Committee (HBEAC) that considered the mark five proposals was convened on 5 July 2001. The legal director was present, but there appears no mention in the minute of the advice he gave upon the proper construction of para 3.15A. The minute reads:
The Committee supported the views of staff that neither the present proposals of demolition of the servant’s wing nor the proposed separation of management of ground and upper floors require testing against the provisions of paragraph 3.19 of PPG 15. Overall the current proposals are more sympathetic to the architectural integrity of the hotel than previous schemes to which no objection was raised.
[30] Mr Taylor recalls the meeting, however. Mr Peter Storrie, director of Peter Storrie Consultants Ltd, was a member of English Heritage’s HBEAC, and was present. He had, in 1998, accepted instructions on behalf of the Leamington Society and CLARA and declared his interest. He had been given a dispensation to make an oral presentation to the committee and then withdrew. The decision was made in his absence. Mr Taylor recalls the views that Mr Storrie had expressed as similar to those later recorded in a letter of 5 October 2001 to the chairman and members of the planning subcommittee of Warwick District Council. In that letter he wrote:
There is a strong difference of opinion between myself and English Heritage regarding the requirements under PPG 15 in respect of alterations and partial demolition of the Grade II* Regent Hotel.
English Heritage do not consider the proposed alterations including demolition of the south wing, to be substantial demolition of a significant part of the listed building and thereby they consider that the proposed alterations do not fall within the tests set out in PPG 15 paragraph 3.19.
…
Whether or not the proposed alterations are significant is a matter of fact and degree for the Plans Sub-Committee to judge. In my opinion, however, there can be little doubt in this case that the south wing is significant for the following reasons;
The south wing is part of the original building.
It was designed by the same architect.
It shares the same social history as the rest of the building.
It is a large and significant architectural element of the whole.
It comprises approximately a third of the total floor area of the listed building and
It is included in the description of the Grade II* Listed Building in the English Heritage Register
By all recognised conservation criteria, the south wing is clearly a significant part of the Grade II* listed building. |page:64|
[31] Mr Storrie went on to assert that paras 3.15A and 3.19 applied and that, contrary to para 3.19, English Heritage appeared to have accepted the developer’s contention that the building was not viable as an hotel when it had “not undertaken the acid test of viability which is to put the hotel on the open market as advised in paragraphs 3.15A and 3.19 of PPG 15”. He concluded that, in his opinion, the open market information was essential to the decision-making process. To determine the application without that information would be perverse.
[32] Mr Storrie’s letter became appendix 8 to the case officers’ report to the planning committee for 30 October 2001.
[33] Although Mr Storrie had not identified the difference in construction of para 3.15A between himself and English Heritage, it must have been plain to the HBEAC that he was putting forward an interpretation that required the word “significant” to be judged upon considerations of both quality (historic and architectural) and, perhaps primarily, quantity of demolition.
[34] In a memorandum to Mr Taylor of 28 November 2001 (which must, I find, have educated Mr Taylor’s letter of 6 December 2001 to Mr Jeffrey), Mr Hewitson wrote:
I stand by the advice I gave to the Historic Built Advisory Committee which is that the word “significant” read in context must relate to the proportion of the building. My understanding is that paragraph 3.15A was inserted in response to the… decision in Shimizu, which… is concerned with the distinction to be drawn between demolition and alteration and which turned on the proportion of the building as a whole which was to be demolished. In that context I cannot conceive that “significant” can have any other meaning.
If I have understood the argument correctly those opposed to my view take the view that “significant” refers to architectural or historic significance. My view is that if the Secretary of State had intended the two paragraphs with which we are concerned to carry that meaning, he would specifically have referred to features of the building having special architectural or historic interest rather than merely using the word “significant”…
In his witness statement of 21 January 2003, Mr Taylor described the submission he made to the HBEAC in which he compared the current with previous applications. The committee concluded, he said, that “the loss of the south wing, which was arguably of some social historic interest but offered cramped accommodation that would be difficult to convert, was felt to be acceptable”. Following Mr Storrie’s presentation, “members… considered the complex issues and reached a planning judgment leading to their decision of 5 July 2001 as set out in the minutes…”
[35] I cannot avoid the inference that the decision of 5 July 2001 was made by application of the test that Mr Hewitson had advised. Mr Taylor does not say in his witness statement that the committee had applied considerations of quality and quantity as criteria for a judgment upon the applicability of para 3.15A, only that the committee had considered the social, historic and architectural merits of the |page:65| south wing before recommending approval. Mr Taylor reveals in his witness statement a slight, but important, change of view. At para 6.5, he said:
English Heritage consider a sensible approach is to consider primarily the physical and volumetric extent of the part of the listed building in question that will be demolished. Other matters such as historic significance may be considered but the task is to reach a view upon whether the part of the listed building to be demolished is properly to be regarded as significant, such that the considerations of PPG 15, paragraph 3.19 should be addressed in the circumstances of the case.
[36] In his letter, on behalf of English Heritage, to the Government Office of the West Midlands, dated 18 March 2002, Mr Taylor set out, in some detail, the quality considerations that were relevant to the question of whether the part to be demolished was significant: see para 86 below.
Conclusion
[37] The Planning (Listed Building and Conservation Areas) Act 1990 imposes control upon works affecting listed buildings. The purpose of the legislation is to ensure that appropriate weight is given to the need for preservation of a listed building or its setting or any features of special architectural or historic interest that it possesses. The Act speaks of “demolition”, “alteration” or “extension” of the building “which would affect its character as a building of special architectural or historic interest”, and identical terms are used in PPG 15. The Act does not use the words “significant part” in the context of either demolition or alteration. They are creatures of the planning policy guidance. Before the decision in Shimizu, it was thought that the word “demolition” could embrace the removal of the whole or a part of the listed building, since section 336(1) of the principal Act, the Town and Country Planning Act 1990, defined the term “building” in the Listed Building Act as including any part of a building. Since Shimizu, demolition of part of a listed building should be regarded as alteration of that building. It is plain that the Secretary of State had intended to give effect to the decision by removing the words “or any significant part of it” from the demolition section in para 3.19, and inserting their equivalent in the new para 3.15A under alterations and extensions.
[38] In my judgment, Mr Hewitson’s construction of the word “significant” was mistaken. It appears to have been based upon a misunderstanding of the effect of Shimizu. The sole question for the House was whether the work for which permission was declined was properly to be regarded as work of demolition or of alteration. If it were demolition, compensation would not be payable under section 27. If it were alteration, compensation would be payable. The House did not consider the meaning of the word “significant”. In my view, the removal to the new para 3.15A was intended to do no more than to place the word in its appropriate context. |page:66|
[39] The purpose of both the legislation and the policy is to protect buildings and features of buildings with special architectural or historic interest. The object is, so far as possible, to preserve the character of such buildings. Paragraph 3.7 of PPG 15 recognises the overlap of relevant considerations between alteration and extension on the one hand, and demolition on the other. This is, in my view, obvious. The character of a cherished building can be lost by insensitive alteration as much as by removal.
[40] I do not agree with Mr Hewitson that the Secretary of State would have made specific reference in para 3.15A to special features of the building had he intended the word “significant” to require their consideration. The context in which the words “any significant part” were used in para 3.19 before, and in para 3.15A after, removal from the demolition section of PPG 15 demonstrates, in my view, the distinction in the draftsman’s mind between questions of volume and proportion (“total or substantial demolition”) and the further consideration of the quality of the part to be demolished, and its effect upon the character of the building (“significant”).
[41] It does not seem to me that, even in its original context, “significant” was to be regarded simply as a further qualification of “total” since, if it were, the word “substantial” would not have been required. While a demolition may not be regarded as substantial, its effect upon the character of the listed building may be considerable. It might, for example, comprise demolition of that part of the building that bestows upon it its special architectural or historic interest. I accept Mr Comyn’s submission that judgment as to whether a significant part of the listed building is demolished is a question of fact. It is a matter for the decision maker in each individual case to decide what weight to give to factors of proportion and quality depending upon the features and character of the building under consideration.
[42] Mr John Steel QC submitted, on the behalf of the defendants, that the words used are capable of bearing either meaning. If that is right, he argued, it would have been legitimate for the decision maker to choose either, since, provided the construction chosen was capable in law of bearing that meaning and the decision was not perverse, the court would not intervene: see R v Derbyshire County Council, ex parte Woods [1997] JPL 958. For the reasons I have given, I do not consider that the words “significant part”, in their context, are capable of being construed in isolation of the quality of that part of the building that is to be demolished. To ignore all considerations but scale is, in my view, to deny the planning context in which the word is used: see Northavon District Council v Secretary of State for the Environment [1993] JPL 761. I therefore accept the claimant’s argument that, properly applied by English Heritage and the planning committee, para 3.15A required consideration of the scale of demolition proposed and its effect upon the character of the listed building as a whole. |page:67|
Advice from English Heritage
[43] On 20 July 2001, Mr Taylor wrote six letters to Mr John Archer, head of planning for Warwick District Council, to give the council English Heritage’s views upon the mark five proposal as it affected planning, listed buildings and conservation issues. Mr Taylor commented upon planning application W20010483 as follows:
English Heritage has been involved in extensive discussions with your council and both past and present applications in recent years to try and procure an acceptable form of development for this important site that will comply with planning policy and offer significant social, economic and townscape benefits to Leamington town centre.
The current application was considered by English Heritage’s Historic Built Environment Advisory Committee on 5 July. The Committee accepted the principle of the proposed layout and mix of commercial and residential uses. The Committee also agreed that the modern design idiom of the application was acceptable in principle for this location particularly as the development and its principal elevations largely form a self-contained enclave behind existing historic street frontages. The Committee were mindful that there would be considerable benefits for the character and vitality of this part of the town centre and conservation area for its redevelopment to proceed at the earliest opportunity.
English Heritage had some reservation about details affecting properties in Regent Grove, Regent Street and Livery Street, and expressed its willingness to discuss these further.
[44] English Heritage’s advice upon the application for listed building consent for the Regent Hotel was:
English Heritage has long shared the concern of your council and the local amenities societies at the difficulties in resolving a satisfactory and sympathetic continuing use for this significant listed building…
The Committee accepted the proposed demolition of the former servants’ wing and other rear outbuildings to the hotel and noted that English Heritage have not objected to these works in relation to previous applications. The Committee agreed that as these works would not constitute total or substantial demolition of the listed building, or a significant part of it, the tests set out in paragraph 3.19 of PPG 15 did not apply. In the light of the Shimizu judgment this element of demolition would more properly be described as alteration. The Committee also agreed that the tests of paragraph 3.19 were not applicable to the future management and control of the hotel. English Heritage do not consider that there is any facility in planning law to require single management of the building, nor to prevent subletting or leasing of parts of elements of it. The Committee agreed that the architectural integrity of the listed building will remain unimpaired and particularly welcomed the retention of the ballroom suite… the Committee was mindful also of the desirability of proceeding with the restoration of the listed building at the earliest opportunity both to enhance the appearance of this part of the town centre and to avert any risk of its condition deteriorating. English Heritage do not, therefore, object to the current application… |page:68|
[45] Mr Taylor appears to have advised that, on the authority of Shimizu, the removal of the south wing was to be treated as alteration rather than demolition, and thus para 3.15A did not apply. If that is what Mr Taylor meant, then he was mistaken. Mr Taylor did proceed to deal with the consequences of demolition, including the HBEAC view that the architectural integrity of the building would remain unimpaired. Thus, HBEAC appears to have considered architectural consequences but not in the context of examining the application of para 3.19. On 18 March 2002, Mr Taylor wrote to the Government Office of the West Midlands explaining English Heritage’s position upon interpretation in terms that were materially different:
English Heritage consider that “significant” in the context of paragraph 3.15A and 3.19 of PPG 15 relate primarily to measurement. We also consider that PPG 15 places an obligation on local planning authorities to “address” the criteria of paragraph 3.19 but not to apply them in every case.
[46] This passage represents the current view of English Heritage as submitted to me by Mr Stoker. In the circumstances, I cannot be satisfied that the HBEAC addressed its mind accurately to the issues raised by para 3.15A, or that the planning committee would, without assistance, have realised the error of construction lying behind the advice tendered on 20 July 2001.
Consideration by the planning committee
[47] In their report to the planning committee of 30 October 2001, the case officers, Mr Archer and Mr Beaumont, had drawn attention to the importance of the Regent Hotel as a Grade II* listed building. They summarised the local plan policy of a presumption against demolition or alteration of a listed building that adversely affects its character, the protection of the setting of a listed building and encouragement to full use. As to the latter, “if the original use cannot be continued… favourable consideration will be given to proposals for sympathetic new uses”. The key provisions of PPG 15 had been extracted, including paras 3.15A and 3.19. Mr Archer had described the extent and nature of the alterations proposed, and had drawn attention to English Heritage’s view that the architectural integrity of the listed building would remain unimpaired.
[48] Mr Archer had accurately identified the view of objectors that the building should remain intact should continue to be run as an hotel under unified management and that compliance with PPG 15 required that the property be placed on the open market for sale as a “fully functioning hotel”. Having recited the relevant part of English Heritage’s advice letter of 20 July 2001, he continued:
This is clear guidance from the national conservation body in the light of their current leading case on such issues, the Shimizu case, and must therefore be afforded substantial weight. I do not believe therefore that there is any reasonable basis for requiring that the property be placed on the open market to test for an alternative use before the Planning Committee can give the present proposal its full consideration. |page:69|
[49] At this stage, therefore, the planning committee were being invited to accept the advice of English Heritage without understanding the interpretation upon which that advice had been offered, or without understanding that their interpretation was mistaken. Mr Archer had proceeded to examine the competing proposals for a “fully functioning hotel” (objectors) and mixed use (developers). He posed the planning question: “Is the consequence of the change in operation and separation of functions acceptable in planning terms in respect of the character of this Grade II* listed building?” He expressed the view that it was.
[50] Mr Archer had examined the local plan policies for the encouragement of retail development within key site E and residential development in the town centre; national policy guidance for town-centre retail development and residential provision; design issues; car parking and highway planning; and concluded with a recommendation that the committee should grant the permission and consents sought.
Decision
[51] Consideration of the applications took place on 10 and 30 October 2001. I am invited to consider evidence of the discussion at these meetings with a view to reaching a decision as to whether the committee did in fact properly address its mind to the question of whether the proposed development crossed the threshold of significance within the meaning of para 3.15A. My attention has been drawn to a decision of the Court of Appeal — R (on the application of Young) v Oxford City Council [2002] EWCA Civ 9901, decided 27 June 2001 — in which Pill LJ made observations upon the caution to be exercised when invited to receive witness statements after the event, since there is a danger that:
even acting in good faith the witness may attempt to rationalise a decision in such a way as to meet a question which has arisen upon the effect of a decision. Moreover, it will usually be impossible to assess the reasoning process of individual members and there are obvious dangers of speculating about them.
The preferable course was for decisions to be properly minuted.
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1 [2002] 3 PLR 86
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[52] I respectfully agree. There is no reference in the minutes to the process that led to the grant of permission and consents. However, without objection from either side, the evidence has been tendered and admitted and, with the caution advised, I shall examine it.
[53] Mr Sullivan, in his witness statement of 5 December 2002, said that, during the meeting of 30 October 2001, Mrs Mary Stathe, legal director, had advised the committee simply to follow English Heritage’s advice. Mr Storrie says that Mr Archer had informed the committee it was English Heritage’s view that demolition was “not significant” and that view was |page:70| not based upon a qualitative assessment. “Significance” was a matter for the committee to decide, but English Heritage was the national conservation body and weight should be given to its advice. Mr Storrie recalled that Mrs Stathe had advised the committee to use their own judgment. Her view was that English Heritage’s judgment was reasonable. Mr Storrie did not recall any advice given by Mrs Stathe to the effect that the committee should consider both volume and quality in reaching a view as to whether the demolition was of a significant part of the building. He thought both Mr Archer and Mrs Stathe had drawn attention to the difference of construction between himself and English Heritage, and advised them to accept English Heritage’s view. Mr Storrie continued, in para 22:
I am absolutely certain that there was no discussion by officers before the Planning Committee nor did the members debate among themselves whether or not the south wing amounted to a significant part of the Grade II* listed hotel in terms of its architectural or historic interest…
In support of his recollection, Mr Storrie has exhibited his notes of discussion at the 30 October meeting. They are short and clearly incomplete but do represent some support for his recollection of the statements made by Mr Archer and Mrs Stathe.
[54] Mr David Ward, director of Wilson Bowden, made much fuller notes on 10 and 30 October and on 12 December 2001. It is apparent from the manner in which they are recorded that even they are not entirely complete. On 10 October, Mr Archer took the committee through his report. He drew attention to PPG 15 and to English Heritage’s view that para 3.19 did not apply. Councillor Kirton remarked upon the difference of view between Mr Storrie and English Heritage on the subject of demolition. He thought that English Heritage had “no axe to grind”. Councillor Topping expressed disagreement with English Heritage. He thought the hotel should be placed on the open market. An unidentified councillor said that he/she had been heavily influenced by English Heritage’s unequivocal view. Councillor Davies said he was not too concerned about the loss of the southern wing. Councillor Kent expressed the view that all elevations were important, and that the proposals for the new street at the rear were “splendid”. Councillor Holland said that while the scheme had many strengths, he could not agree with demolition. The committee had a duty to protect historic buildings. Councillor Caborn remarked that the bulk would be preserved and that he liked the extensions.
[55] On 30 October, the chairman drew attention to continuing objections received concerning the “demolition test”. Mr Archer explained that “where there is significant demolition, advice is that [the] property should be put on [the] market”. The extent of the demolition was a matter for judgment: “Does the proposal involve significant demolition?” English Heritage’s advisory committee was aware of competing views, and concluded the demolition was “not significant”. English Heritage had come to the view “on [the] basis of relative importance of the part of the |page:71| building, not just floor space. It is a matter of judgment.” It was Mr Archer’s view that English Heritage had not been acting unreasonably, and that weight should still be attached to its view.
[56] The chairman called for legal advice from Mrs Stathe, who identified the difference of view and went on to say that the question “is one of judgment qualitative and quantative based on the building itself”. “On balance,” she thought that the “judgment of English Heritage was reasonable”. Considerations included “where the building is, its functions, its quality,” and quantity and quality were both factors that also needed to be weighed.
[57] It is not accepted by the claimant that these are accurate notes of the meeting. It is not, however, contested that the views of the case officer and legal adviser were sought and given. It would appear that the advice was accepted since no further controversy upon the issue was recorded by Mr Ward either on 30 October or 12 December. However, on 12 December, Councillor Capping expressed his agreement with Mr Storrie that demolition of the south wing should not be allowed. His was the only dissenting voice. The proposal was accepted by 11 votes to one.
[58] Having read a copy of these notes in manuscript, I am satisfied that they represent Mr Ward’s best efforts to record that which he had heard during each meeting. I can readily accept that the note-taking exercise would have resulted in some omissions, such is the difficulty of attempting to take verbatim notes longhand. However, I reject the implication behind the claimant’s submissions that Mr Ward had inserted passages of conversation that he had not heard. Both Mr Archer and Mrs Stathe confirm the impression made by the notes. There seems little doubt that the advice Mrs Stathe was recorded as giving represented the view she held. On 2 November 2001, three days after the meeting, she wrote to Mr Jeffery, expressing her opinion that the word “significant”, as used in para 3.15A, “has both qualitative and quantative connotations”. She continued:
I accept that Mr Storey [sic] has argued that to demolish one third of the floor space of a listed building must equate to a significant demolition. The alternative view is that where that area of demolition involves the servants’ quarters, ie the less architecturally noteworthy part of the building, then that element of demolition can be considered not to be significant. These are two different interpretations. Whilst I can see how your consultants have come to their view of the situation I favour that view put forward by English Heritage. It is a matter of interpretation of the word “significant” in the context of the existing building.
It is this interpretation of English Heritage’s position that is urged upon me by Mr Stoker. I am afraid I cannot agree with him. Only a month later, Mr Taylor expressed to Mr Jeffrey English Heritage’s position in the opposite terms: see [28] above.
[59] On 5 December 2001, Mr Charles Bourne and Mr Gordon Goddard-Pickett lodged a detailed written complaint with the chairman |page:72| of the planning committee. In it the authors described those features of the Regent Hotel that, in their view, rendered the south wing an essential part of the whole, and complained that the case officers’ report to the committee had not accurately identified either the provisions of PPG 15 or the factors relevant for consideration of those provisions. Mr Archer prepared a response, and both documents were placed before the committee considering the applications on 12 December 2001. Mr Comyn has criticisms to make of the response, but they do not, in my view, affect the central issue to which I shall now come. The committee, having considered Mr Archer’s response, voted to endorse it.
Paradox
[60] In their acknowledgement of service, dated 8 October 2002, Warwick District Council sought to argue that para 3.15A of PPG 15 involved no consideration of quality, only the scale of works to the building. This, as I have found, represents the basis upon which English Heritage’s advice was tendered. In his skeleton argument dated 16 December 2002, prepared for use during the oral permission hearing before Richards J, Mr Robert White continued to support this construction of para 3.15A as being “logical and correct”. Following grant of permission, evidence from Mr Ward, Mr Archer and Mrs Stathe was lodged. Mr Steel QC now resiles from the position taken at the permission hearing, justifying that position as defence of a point of law subsequently reconsidered. He identifies what he describes as a remarkable paradox arising from the evidence, a paradox upon which Warwick District Council now rely.
[61] The paradox is identified as follows. English Heritage received firm legal advice that para 3.15A required consideration only of the scale of demolition. Mrs Stathe and Mr Archer believed, however, that it was Mr Storrie who was relying upon scale, while English Heritage had also considered quality. Thus, the argument goes, while English Heritage had in fact proceeded upon an erroneous view of the law, the planning committee had been told, again erroneously, that Mrs Stathe and English Heritage held the same view. They both thought the decision maker should have regard to considerations both of scale and the architectural and historical quality of the part to be demolished. By a paradox, the committee did apply the correct test, even if English Heritage did not.
[62] Mr Comyn was understandably dismayed and dismissive of the defendant’s volte-face. At short notice, he provided me with his written skeleton in response, for which I am grateful. I have not extracted all his arguments into this judgment. He observed that there can be no doubt that English Heritage had tendered its advice upon a misinterpretation of para 3.15A. Furthermore, the committee had not been advised as to how to apply Mrs Stathe’s recommendation to consider quality and quantity, if that was the recommendation made. He contended that Mrs Stathe’s views as to English Heritage’s position, recorded by Mr Ward, were |page:73| inconsistent with her written note dated 11 December 2001, circulated for the meeting on 12 December. In it she said:
1. English Heritage describes the wing as the former servants’ wing not because it was occupied by servants working at the hotel, but because it was occupied by servants accompanying guests. That way it would have been included in the summation of the bedrooms. However, the servants’ accommodation would not have been of the same quality as the staterooms or those occupied by their employers.
…
4. PPG 15 paragraph 3.19 (the marketing test) as referred to at paragraph 3.19(ii)) is only suggested where a significant part of the Listed Building is to be demolished (paragraph 3.15A). In paragraph 3.19 the words “total” and “significant” are added. The wording at paragraph 3.15 was added after the Shimizu judgment. If one reads the facts of the case, it concerned the demolition of all but the faade of the building and the chimneybreasts. It is against this scale of partial demolition that the proposals for the Regent Hotel should be judged. In my view, the scale of demolition is not the same.
5. I am aware that the council should not slavishly follow English Heritage’s advice, however, paragraphs A9 to 9 of Annex “A” to PPG 15 set out the relationship between English Heritage and central and local government. In that context, the council is entitled to place proper weight on the advice unless it considers it perverse. This is not the case here.
[63] Mr Comyn submitted that, in para 4 of her note, Mrs Stathe was referring only to the scale of the partial demolition, and that the committee must have understood that English Heritage’s advice was so confined. In an attempt to support this construction, he relied upon Mr Taylor’s letter of 6 December 2001, to Mr Jeffery, in which it was made clear that the basis for English Heritage’s advice was the view that “historic use of the south wing was not material to the processing of the application for listed building consent”. The letter, at its foot, read, “cc John Archer, Warwick District Council”. Mr Comyn asserted a probability not only that a copy of the letter had reached Mr Archer but also that it had been read by Mrs Stathe. It may also have been placed before the committee, he suggested. These assertions were contested. There was no evidence before me, save for the list of appendices to the report, in which the letter did not appear, to resolve the matter one way or the other. I permitted the defendants to lodge further evidence from Mr Archer and Mrs Stathe, with liberty to Mr Comyn to submit further written argument upon it. In the result, I have received further witness statements, dated 21 February 2003, from Mr Archer and Mrs Stathe, a further witness statement from Mr Sullivan dated 25 February 2003, and confirmation from Mr Comyn that he wishes to make no further submissions upon them. Having considered the further evidence, I am satisfied that neither Mr Archer nor Mrs Stathe had, at the time, been aware of Mr Taylor’s letter of 6 December and that the letter did not form part of the papers before the committee. The letter has not been traced in the correspondence files held by the council. If it had reached Mr Archer, I can see no reason why it |page:74| would not have been filed with all the other correspondence generated by these applications and subsequently retrieved.
[64] Mr Comyn submitted that it is not possible to spell out of Mr Ward’s notes an unequivocal direction upon the true meaning of para 3.15A, and, without it, Mr Archer’s recollection after seeing those notes must be treated as suspect. If, as the notes suggest, the committee had been told that English Heritage had applied and the committee should apply considerations of both quality and quantity, there would have been no disagreement between English Heritage and the objectors, yet it was an agreed fact that there was a disagreement between them. Accordingly, the recollections of Mr Archer and Mrs Stathe must be wrong. The committee was, at best, invited to choose between a right and a wrong interpretation of para 3.15A. The fact is that the committee never received English Heritage’s evaluation of the qualitative aspects of para 3.15A because English Heritage did not believe they were relevant. Accordingly, the committee’s decision was flawed.
Conclusion
[65] I accept Mr Comyn’s submission that English Heritage did not purport to tender advice upon the qualitative considerations of para 3.15A, although it is clear that qualitative considerations were addressed generally in the letters of 20 July from which I have quoted extracts. I do not, however, accept Mr Comyn’s attempts to undermine the evidence that the committee had received appropriate advice from their legal adviser that they should, for the purposes of para 3.15A, consider both qualitative and quantative aspects of demolition. I accept that Mr Ward had made a conscientious attempt to note what he heard, and that his record of Mrs Stathe’s advice is consistent with views expressed by her almost contemporaneously. I also accept the existence of paradox. Mrs Stathe and Mr Archer mistakenly thought that English Heritage had taken account of qualitative considerations in reaching its view upon the application of para 3.19. On one reading of the advice letters of 20 July, that appeared to be the case. It was a view that Mr Archer had endorsed during the meeting of 30 October (“relative importance of part of the building, not just floor space”). This conclusion is, in my view, supported by the way in which Mrs Stathe dealt with the issue of “quality” in para 1 of her memorandum of 11 December 2001. It is true that, in para 4, she appears to have attempted to distinguish Shimizu on the facts when it was quite unnecessary, on her understanding, to do so, but I am satisfied that the difference of opinion that Mrs Stathe thought existed was that described in her letter of 2 November to Mr Jeffery.
[66] Although the planning committee were advised correctly that they should, in considering paras 3.15A and 3.19, judge whether the demolition was significant in qualitative and quantative terms, they were, on my findings, labouring under a misapprehension that English Heritage had applied the same test. The committee thus took into account what they thought was the view of its statutory consultee reached after application |page:75| of the appropriate planning guidance. Through no fault of the committee, members had been misled about the existence of a material consideration. English Heritage’s position was bound to be influential if not central to the committee’s decision since the committee had been advised of the weight it should attach to English Heritage’s opinion. In my view, the error was sufficiently important to be fatal to the committee’s decision unless it can be said that this is an exceptional case for exercising my discretion not to quash the defendants’ decision. Before turning to the issues of perversity and discretion, I must consider the claimant’s second challenge.
Secretary of State’s position
[67] It is the claimant’s case that the committee had had regard to an irrelevant consideration, encouraged by Mr Archer’s report, namely that “the Secretary of State’s decision not to call in the applications for his own decision strongly supported acceptance of the demolition of the south wing”. I have extracted this quotation from the claimant’s skeleton argument.
[68] The origin of this ground is p14 of the case officers’ report to committee for consideration at the meeting of 30 October 2001. Under the title “demolition”, the report reads:
Though there has been concern expressed over the loss of this element of the building, I consider that in the light of English Heritage’s position its loss will not adversely impact upon the overall integrity of the listed building and the previous decision of the Plan Sub Committee and the view of the Secretary of State would strongly support the acceptance of the loss of this part of the building.
[69] The mark three proposal had been submitted to the Secretary of State for consideration of whether he wished to decide upon the application himself. He confirmed he did not, leaving the defendants to consider and grant the application if they wished. This clarification of the Secretary of State’s position appears at p6 of the case officers’ report. The Secretary of State’s position does not imply approval of the application, nor did Mr Archer’s report suggest that it did. As the Government Office of the West Midlands explained in its letter of 7 May 2002 concerning the mark five application, the Secretary of State will intervene only if an application raises planning issues that are more than local in dimension.
[70] In my judgment, the criticism of Mr Archer’s report is not justified. It does not bear the meaning that the claimant seeks to attach to it and does not suggest that the Secretary of State himself strongly supported the application. The report drew attention to three considerations: English Heritage’s view; the planning subcommittee’s previous acceptance of mark three; and the Secretary of State’s decision not to call in the mark three applications. The reference to the Secretary of State’s decision is made simply, in my view, to underline the fact that the previous decision of the subcommittee upon a more intrusive proposal stood unchallenged. The report was doing no more than demonstrating the desirability of consistency of approach. I do not consider that the committee could have been misled. |page:76|
Perversity
[71] It is common ground that the issue of whether the demolition of one-third of the listed building represented demolition of a significant part of that building was a planning judgment for the committee: see Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 7591. It is the claimant’s case, a case that I have accepted, that the committee were concerned not merely with the physical scale of demolition but also with the quality of that part of the building to be demolished and its contribution to the character of the listed building as a whole. I have concluded that the committee had, in this respect, been correctly advised on 30 October 2001. I do not consider that the committee can be said to have acted perversely in concluding that, in the context of the whole, the demolition of the south wing was not significant. It would have been a different matter if the south wing had defined the character of the building architecturally and/or historically, but, plainly, it did not. It was an interesting contemporaneous addition to the principal range for the reasons identified, but the decision maker could not, in my judgment, be described as irrational or perverse for making a distinction between the superior and inferior parts of the whole, despite the objectors’ assertions to the contrary.
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1 [1995] 2 PLR 72
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Discretion
[72] In Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2000] 3 PLR 111, at p123B, Lord Hoffmann approved an observation of Glidewell LJ in the following terms:
It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision that has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343 at p353
[73] In Bolton Metropolitan Borough Council v Secretary of State for the Environment (1991) 61 P&CR 343, the council withdrew their objection to a compulsory purchase order. While the order was awaiting confirmation from the Secretary of State, Bolton’s solicitor telephoned the department, saying that they would now object to the order by reason of a green paper issued by the department, changing the circumstances under which the objection had been withdrawn. The Secretary of State confirmed the order. That decision had been quashed in the High Court. The Court of Appeal, dismissing the appeal, held that the decision maker ought to take account of matters that might cause him to reach a different conclusion. Where the judge found, absent statutory requirement, that the decision maker had failed to take account of something fundamental to the decision, which could well have made a difference to the result, he could hold |page:77| that the decision was invalidly made, although in exceptional circumstances he would be entitled, in the exercise of his discretion, not to grant relief.
[74] What are exceptional circumstances in the context of the present case? Mr Comyn submits that I should decline to quash the decision only if, had it been properly advised, the planning authority would “necessarily” have come to the same conclusion. This is a formulation of the test that I can accept.
[75] Had English Heritage addressed the correct issue, it would, Mr Comyn argues, have been necessary for the planning committee to be informed “authoritatively and in detail as to the impact of the demolition of the south wing on the listed hotel along the lines of sections 4 and 5 of Alan Taylor’s witness statement”. Mr Comyn argues that there is no substantial evidence to support the contention made that the committee would necessarily have decided that para 3.19 did not apply. Accordingly, it is a real possibility that the committee would have called for evidence relevant to para 3.19 issues.
[76] I have concluded that the committee were advised:
(i) mistakenly, that English Heritage had applied the correct para 3.15A test;
(ii) themselves to apply the correct para 3.15A test;
(iii) English Heritage’s opinion was reasonable and should be given
weight.
I recognise that this state of affairs would ordinarily lead the court to quash the decision. However, there are two exceptional factors here, which lead me to a different view.
Objectors’ statements
[77] The objectors suffered from no such confusion. Attached to the report were several well-reasoned arguments to the effect that the para 3.15A threshold had been passed. Mr Storrie (appendix 3) wrote on 17 September 2001, arguing that:
The proposed development would completely change the character of the Grade II* Regent Hotel by separating off and changing the use of the ground floor and by demolishing the south wing.
[78] Grounds of objection submitted jointly by the Leamington Society and CLARA on 19 September 2001 (appendix 3, annex A) included the following:
In terms of impact on the fabric and integrity of the building the proposal would involve the demolition of the south wing. This is a significant part of the original building, it is historically important and represents nearly a third of the floor area of the original building…
The south wing is part of the original building, was designed by the same architect, and is an essential element of the whole… by all recognised conservation criteria the south wing is clearly a significant part of the listed building. As such PPG 15 paragraph 3.15A and paragraph 3.19 are applicable. |page:78|
The minutes of meetings of the Royal Leamington Spa conservation area advisory forum held on 24 May and 13 September 2001 (appendix 6) recorded similar views expressed by various contributors, including the Ancient Monuments Society, the Victorian Society and CLARA.
[79] Mr Storrie wrote to similar effect on 9 May 2001 (part of appendix 6).
[80] Mr Lyndon Cave made a personal statement on 13 September 2001, (appendix 6) taking exception, line by line, to English Heritage’s letter of 20 July 2001.
[81] On or about 13 September 2001 (appendix 6), Mr Goddard-Pickett wrote to the conservation officer of Warwick District Council, protesting that the hotel had not been placed on the open market for sale at a reasonable price as a fully functioning hotel.
[82] On 5 October 2001 (appendix 8), Mr Storrie wrote the letter I have extracted at [30] above.
[83] On 5 December 2001, CLARA set out its complaints in detail. In para B(1)(a) to (c), pp2-3, were itemised those factors that the association considered relevant to PPG 15 and the south wing, namely date of construction, architect, historic place, distinctiveness and uniqueness, coherence of function and layout, and social, cultural and economic significance. This document was added to the appendices attached to the case officers’ report, together with Mr Archer’s response, for consideration at the planning meeting held on 12 December 2001.
[84] It is clear to me that the planning committee had before them an abundance of material relevant to the question of whether demolition of the south wing constituted demolition of a significant part of the listed building. Since the committee had been advised that the decision was ultimately for members, and since I have concluded that they had been provided, by their legal adviser, with the correct test, the committee could have reached, and it is at least possible that they did reach, their decision untainted by English Heritage’s error of construction. Nevertheless, the position of English Heritage, as statutory adviser in such applications is, as I have concluded, so influential that I do not consider that I should, on these grounds alone, decline relief.
English Heritage
[85] Mr Comyn acknowledges that had English Heritage been properly directed, it should have tendered advice as to quality in terms similar to that contained in sections 4 and 5 of Mr Taylor’s first witness statement, much of which I have extracted at [2] to [6] above. Mark five was also submitted to the Secretary of State for consideration and, on 18 March 2002, Mr Taylor wrote to the Government Office of the West Midlands to submit English Heritage’s advice upon the applications. As an exchange of e-mail messages during February and early March 2002 (exhibited to Mr Storrie’s witness statement) between English Heritage personnel demonstrates, the issue of construction was still being debated. It is at this point that English Heritage appeared to have changed its mind. In view of its importance |page:79| to the issue I am considering, I shall extract English Heritage’s advice to the government office extensively.
[86] Of the application for listed building consent, Mr Taylor said:
This application is the most controversial of all those submitted for this site and has led to the various requests for “call in” by the Secretary of State from parties opposed to the development. The essence of the objectors’ case, as we understand it, is that because the application involves demolition of the south wing and other accommodation to the rear amounting to one third of the floor plan of the building (constituting demolition in the objectors’ view of a significant part of the listed building), the closure of an early 20th century opening from the entrance vestibule into the staircase, and the change of use of the ground floor to A1 and A3 uses separately managed from the bedroom accommodation, the property should be offered for sale in pursuance of guidance at paragraph 3.19(ii) of PPG 15.
The south wing comprises a four storey block contemporary or near contemporary with the building of the hotel in 1819. Externally, although forming part of the original south or entrance front, it was clearly a subservient wing architecturally both in terms of height and lack of decorative detailing. Internally the accommodation is of a much more cramped scale than in the principal range towards The Parade or in the contemporary north wing; none of the rooms contain any features of interest. The wing is directly abutted at the east end by a flat-roofed four-storey block, probably of 20th century date. The east bay of the north wing which is also to be demolished is of later 19th century date of brick construction and recognisably plainer character to the original north elevation. Between the north and south wing and also forming part of the structures to be demolished is a miscellaneous collection of mainly flat-roofed single storey accommodation containing kitchens, store rooms and other service rooms.
There is no dispute that the south wing is an integral part of the social interest of the hotel in its demonstration of a smaller, lesser standard of accommodation and the fact that it was an early phase of development on the site. It is not, however, considered to be of such special interest, either internally or externally, that an overriding case for retention could be argued. The east bay of the north wing is not considered to be of sufficient architectural or historic interest to warrant retention. The single storey service accommodation is not considered to be of any architectural or historic interest and to disfigure the rear elevation of the listed building.
[see paragraph 45 above]… In relation to the Regent Hotel, although the aggregate of all the elements to be demolished may amount to one third of the footprint of the building, it is a much smaller proportion of the volume. In English Heritage’s view, as a proportion of the volume, the total amount of demolition does not amount to a significant part of the building. Further, it seems to us that it is reasonable to discount the northeast bay and the ground floor service accommodation on the basis that it is agreed by all concerned that these elements lack any special architectural or historic interest. On this basis, there is still less of an argument the south wing on its own, constitutes a “significant” proportion of the listed building such that application of the paragraph 3.19 tests should automatically be triggered.
Even if we are wrong in our interpretation of paragraph 3.19, and “significant” is taken to refer to special architectural or historic importance, as indicated above, we consider that the south wing does not in itself have |page:80| any such importance and the tests in paragraph 3.19 would not be triggered on that basis in this case.
[87] Mr Taylor went on to say that, in reaching its conclusion, English Heritage considered factors required by para 3.19(i)(iii). It had concluded that:
Splitting ownership of the building containing the south wing would frustrate redevelopment of the wider site to the disadvantage of the town centre as a whole and fail to deliver the wider benefits to the community which English Heritage perceives to flow from the scheme.
In English Heritage’s view the proposal to reinstate hotel use throughout the retained parts of the listed building had distinct heritage benefits. English Heritage was not convinced that marketing of the building would deliver early repair and reuse of the property.
[88] It is, in my opinion, an unavoidable conclusion that had English Heritage applied its mind specifically to issues of quality as they affected para 3.15A when it met on 5 July 2001, it would have tendered advice in these terms to the planning committee. That conclusion is unavoidable once the development of English Heritage’s views is traced.
[89] English Heritage had been consulted throughout, and not merely for the purposes of the mark five proposal. It took independent advice upon the viability of the hotel in its existing form. It was at all material times aware of the position taken by Mr Storrie and his clients, and was, in the context of PPG 15 — section 3 generally, if not specifically para 3.15A — bound to consider the implications for the listed building of the demolition proposed.
[90] English Heritage had, on 25 May 1999, recommended refusal of permission for the mark two proposal because it involved not only demolition of the rear wings but conversion of the remainder to form a large retail unit and restaurant, a prospect regarded as “just too damaging”. The proposal would have involved not only substantial demolition of the rear but a degree of opening up between rooms that would seriously damage the spaces and plan form. There was not a compelling case that hotel use was no longer viable.
[91] The author of the mark two advice, Mr John Yates, expressed support for mark three in the following terms:
Whilst Planning Policy Guidance Note 15 sets out that the original use of an historic building would usually be the most desirable English Heritage often accepts and supports changes of use in order to ensure a sustainable future for an historic building. However, the Regent Hotel is unusual in that the use represents a particularly important element in its special interest and significance — it is a very rare example of a purpose built large Georgian hotel. Its use as an hotel is also important in understanding the history of the town, in which it has played a key role as a hotel…
We turn now to the third scheme in which the upper floors of the main part of the hotel remain in hotel use, whilst the rear extensions are demolished and the ground floor is mostly given over to associated catering uses, with the public rooms on its left hand side becoming part of the large |page:81| retail use behind. As you know this scheme has arisen from the protracted negotiations in which we have both participated. Whilst English Heritage considers this scheme far from ideal in conservation terms, I confirm that in principle it is acceptable to us and that we offer no objection, subject to satisfactory resolution of the items which follow.
[92] From a conservationist’s point of view, mark five, for the reasons given by Mr Taylor, was a considerable improvement upon mark three, preserving as it did the grand staircase, the ballroom suite and the architectural integrity of the principal range. It seems to me that the views expressed by English Heritage to the government office represent the logical and consistent destination of its approach to this difficult planning issue.
[93] Although English Heritage did not, in its earlier letters, specifically address the terms of para 3.19(ii), it is apparent from correspondence produced by Mr Storrie that English Heritage’s chief property adviser, Mr David H Tomback, FRICS, had taken the view by July 2000 that: “The viability of the hotel was always marginal and depended upon the cost of refurbishment and refurnishing.” English Heritage’s independent expert, on 25 September 2001, judged the value of the hotel on the open market, in view of the substantial stripping and refurbishment required, to be anything between -£250,000 and +£500,000. Using this advice, Mr Tomback advised Mr Taylor, on 4 October 2000, that his view remained that the viability of the property as an hotel was still marginal.
[94] On 4 December 2001, Mr Ward wrote to Mr Archer (his letter was appendix A to the report submitted for the 12 December meeting) enclosing a financial profile. He said:
We would wish to emphasise that restoration of the Grade II* listed Regent Hotel is of particular importance to the District Council and when considered in isolation this generates a loss of £1.6 million. The refurbishment of this important asset can only be sustained by a large cross subsidy from the balance of the site.
[95] Mr Ward had written to Mr Archer on 9 October 2001 (appendix 11, also before the committee) to describe the history of negotiations for sale of the hotel in its current condition to the Meridian Hotel Group. The costs of refurbishment were estimated to be in excess of £3m. Refurbishment required by Meridian before tender of a sale price of £1.2m, was costed by Wilson Bowden at £3.176m. It follows, in my view, that had English Heritage, accurately directing itself, provided advice upon paras 3.15A and 3.19(ii) of PPG 15 it is a virtual certainty that the advice would have been:
(i) the para 3.15A threshold had not been reached; and
(ii) even if it were reached, it was not appropriate to require the developers to place the hotel on the open market.
[96] The planning committee granted permission and consents in the belief that English Heritage had applied the appropriate test. Almost all the factual material upon which English Heritage later gave its planning and listed building advice to the Government Office of the West Midlands was before |page:82| the committee. Had the committee received the benefit of that advice at the outset, as I find it would if properly directed, I have no doubt that the planning committee’s decision would, of necessity, have been the same.
[97] All that was missing from the committee’s consideration of the applications was English Heritage’s advice in the terms extracted at paras 86 and 87, which English Heritage would have given if asked. It follows from the way in which English Heritage’s interpretation had mistakenly been placed before the committee, precisely the same decision would have been reached had the full position been understood. For these reasons, this is, in my judgment, an exceptional case. In the exercise of my discretion, I decline the relief sought and the claim must be dismissed.
Claim dismissed.
