England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th March 2007

1. MR JUSTICE COLLINS: Middlesex Guildhall in Parliament Square was built between, it seems, 1906 and 1913, although in the papers there are various differing dates given. It is in the Gothic Revival style and was designed to accommodate both the Middlesex County Council and two courts of quarter sessions for the county. Inside the building the Council Chamber and the two courts are especially worthy of protection. English Heritage has stated that the court room interiors are unsurpassed by any other in the country built between the latter half of the nineteenth century and 1914 for their decorative richness and the completeness of their fittings. They also have what are described as splendid ceilings. In 1965, following local government reorganisation in London, the building was no longer needed for council use and the Council Chamber was converted to accommodate a third court. In 1972, when the Courts Act 1971 came into force, it became a Crown Court and remained in use as such until this month. There have been what were described in the committee hearing, whose decision is under attack, as unsympathetic adaptations in a building which had been hacked about to accommodate, finally, seven Crown courts.
2. The Guildhall is a Grade II* listed building; thus any alteration to it requires consent pursuant to section 16 of the Listed Buildings Act 1990. Section 16(2) provides:

"In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State 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."

The same approach applies to an application for planning permission: see section 66(1).

3. The decision of the Council granted both listed building consent and planning permission to enable the building to be converted to house the new Supreme Court. Since then it has been established by an amendment to the use classes order that use as a court is specifically identified as a use and thus there was no need for planning permission to change from the use as a Crown Court to use as the Supreme Court. But there were some minor and unopposed changes to the exterior which required planning permission. However, that is not material since the approach in section 16(2) is precisely the same as the approach in relation to the grant of planning permission.
4. The decision in question was made on 21st November 2006 by the Council's Planning and Development Committee following a hearing on 7th September.
5. The Constitutional Reform Act 2005 requires that the highest court should be the Supreme Court, in place of the existing House of Lords. The new court must be housed in an appropriate building in central London. There are many who have felt that if there is to be a new Supreme Court, it should have a purpose-built building. However, efforts have been made to locate a suitable building which could be converted, or a site where new development was to take place which might incorporate the new court. A letter of 3rd August 2006 from Drivers Jonas, who were acting on behalf of the applicant Department of Constitutional Affairs in seeking the necessary consent to enable the Guildhall to be converted to house the Supreme Court summarises the steps taken to locate a suitable building. The requirements for the new building were about 3,800 square metres, including three committee rooms or courts, a library and ancillary accommodation for the judges and for support staff. Initially the search focused on government-owned buildings in central London and any commercially available property within one mile of Charing Cross. This resulted in six possibles, including the Guildhall. It was then decided to extend the search of possible sites for a new building or major refurbishment to a radius of two miles from Charing Cross. This produced two additional possibilities in the form of new developments, but the developers were not prepared to incorporate the new court since the requirement of 3,800 square metres was too small to initiate the necessary pre-lettings. There were also two possible locations in buildings owned or occupied by the Department of Constitutional Affairs.
6. I need not set out in detail the report of the considerations. Suffice it to say that reasons have been given for rejecting all but the Guildhall and possibly Somerset House. Somerset House was in the end rejected because of the difficulty in persuading the Revenue to relocate and because of other problems in adapting it to the needs of the new court. So it was that on 14th December 2004 the Lord Chancellor and Secretary of State for Constitutional Affairs (to give him his full title) announced that the Guildhall was his preferred option.
7. There followed extensive discussions with Westminster's officers on the proposals to convert the interior of the building. In addition, English Heritage were kept in the picture since they have an important, and indeed a crucial, role in protecting listed buildings and in ensuring that consent is not given unless it was really necessary. In the end, English Heritage were persuaded that, having regard to the exceptional nature of the intended use and the proposed plan for the conversion, which would, so far as possible, conserve its existing features (albeit, as is accepted, it will result in major changes to the existing courts and the old Council Chamber) they should not oppose the grant of permission, subject to directing that certain conditions be imposed.
8. The claimant's case is essentially based on the alleged failure of the committee to have proper regard to government policy as set out in the relevant guidance, PPG15. It is clear that PPG15 was not referred to in terms in the officer's report to the committee, nor was it raised specifically in the discussions held by the committee, as appears from the transcript of the hearing. However, both the Council and the Lord Chancellor, as interested party, have submitted that its substance was clearly before the committee, and their consideration of the matter shows that they had in mind and applied the relevant principles.
9. The material parts of PPG15 are contained in heading 3, "Listed building control". 3.3 reads:

"The importance which the Government attaches to the protection of the historic environment was explained in paragraphs 1.1-1.7 above. Once lost, listed buildings cannot be replaced; and they can be robbed of their special interest as surely by unsuitable alteration as by outright demolition. They represent a finite resource and an irreplaceable asset. There should be a general presumption in favour of the preservation of listed buildings, except where a convincing case can be made out, against the criteria set out in this section, for alteration or demolition. While the listing of a building should not be seen as a bar to all future change, the starting point for the exercise of listed building control is the statutory requirement on local planning authorities to 'have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses' (section 16). This reflects the great importance to society of protecting listed buildings from unnecessary demolition and from unsuitable and insensitive alteration and should be the prime consideration for authorities in determining an application for consent.

3.4. Applicants for listed building consent must be able to justify their proposals. They will need to show why works which would affect the character of a listed building are desirable or necessary. They should provide the local planning authority with full information, to enable them to assess the likely impact of their proposals on the special architectural or historic interest of the building and on its setting."

10. It is to be observed that in London there is a lamentable record of the loss of buildings which would now be listed, and which indeed in certain cases have been listed, and it is plain that the approach of PPG15, which was originally promulgated in 1994, is an endeavour to prevent the progress of that sort of damage to the heritage.
11. The need or the desirability for the alterations to the Guildhall arises not in order to preserve the building as such, but because of the perceived need to locate the Supreme Court in that building.
12. Going back to PPG15, 3.5 sets out the general criteria. So far as material, they are as follows:

"(i) the importance of the building, its intrinsic architectural and historic interest and rarity, in both national and local terms...

(ii) the particular physical features of the building (which may include its design, plan, materials of location) which justify its inclusion in the list: list descriptions may draw attention to features of particular interest or value, but they are not exhaustive and other features of importance (eg interiors) may come to light after the building's inclusion in the list."

(iii) deals with the building's setting and contribution to the local scene. It is not relevant in the circumstances of this case because there are no substantial changes to the exterior of the building. They consist of some improvements in the form of cleaning and tidying. Then (iv), which is perhaps the only one of real materiality:

"the extent to which the proposed works would bring substantial benefits for the community, in particular by contributing to the economic regeneration of the area or the enhancement of its environment (including other listed buildings)."

13. It is clear that this is indeed an important building because of its intrinsic architectural and historic interest and rarity, and also that the features which justify its inclusion extend not only to what it looks like from the outside and its general appearance, but also to the courts and to the Council Chamber within it.
14. Mr Harper QC, on behalf of the claimant, has submitted that "community" within 3.5(iv) must be limited, as the examples given suggest, to the local community; that is to say, the community which is directly affected by the loss or the preservation of the building in question. He further submits that if one reads on in PPG15, that local meaning of "community" is further established.
15. I do not think that it is necessary to determine the precise meaning of "community", particularly as PPG15 is not to be construed as a statute and is merely guidance. Mr Harper inevitably and correctly accepts that the national interest can justify the loss or the conversion of a listed building. PPG15 makes clear that there should be no changes to a listed building which in any way can damage it unless they can contribute to its preservation or are otherwise necessary or desirable. That of course accords with the general approach which is required by the statute in section 16(2).
16. The committee was referred to the relevant policy in the development plan, that is policy DES 10 under the heading "Listed Buildings". What that provides, so far as material, is:

"(A) Applications for planning permission

Applications for development involving the extension or alteration of listed buildings will where relevant need to include full details of means of access, siting, design and external appearance of the proposed development in order to demonstrate that it would respect the listed building's character and appearance and serve to preserve, restore or complement its features of special architectural or historic interest."

There are then specific references to demolition, the principles applicable, to change of use, to the setting of listed buildings and to the theft or removal of architectural items of interest. None of those are directly relevant to what was being sought in this case, and it is equally apparent that what is proposed will not serve to preserve, restore or complement the features of special architectural or historic interest. Thus, the only way in which this particular policy would seem to be applicable is in the requirement that the proposals demonstrate that it would respect the listed building's character, but that is something which has to be in addition to it serving to preserve, restore or complement the features.

17. Insofar as this was an application for listed building consent, as opposed to development, it does not seem that DES 10 was directly applicable. It is to be noted that in the narrative, following the setting out of the policy, in paragraph 10.132 this is said:

"The general presumption is that all buildings on the statutory list will be preserved because of their special architectural and/or historic interest. There may, however, be a few exceptional cases where the balance of needs on planning grounds and the comparative quality of the existing and proposed buildings is such that permission for demolition or part demolition may be granted subject to the approval of the Secretary of State. In considering each case the viability tests set out in PPG15 will be applied. In addition to the requirements set out in DES 10(A), the City Council may require applications for listed building consent to be accompanied by an assessment of the special architectural and historic interest of the building and of how this will be affected by the proposals."

18. It is, in addition, to be noted that Westminster contains over 11,000 listed buildings and that approximately 20 per cent of all planning and related applications are for or involve listed building consents. In those circumstances, Mr Corner QC, on behalf of the Council, submitted that the committee were well aware of the principles that were applicable. In addition, as I have read, the narrative to DES 10 refers specifically to the PPG15 principles and indicates that they are applicable, and in addition some of the objections which were put before the committee from various bodies and individuals also refer to the alleged breaches of PPG15 if listed building consent were granted. As it happens, one of those was from the claimants.
19. The officer's report to the committee did not, as I have already said, specifically refer to PPG15, but, in summarising the approach that the officer suggested should be applied, this was said, after referring to the nature and extent of the alterations having prompted strong objections from, among others, the Victorian Society, the claimants and the Ancient Monuments Society:

"The applicants have recognised from the outset of the project that a decision to locate the United Kingdom Supreme Court in this building will require alterations that will compromise the outstanding interest of the Grade II* listed Middlesex Guildhall. To minimise this impact the applicants commissioned a conservation plan for the building. This was developed in consultation with English Heritage and officers.

The proposed design has been developed in the light of that plan and in continued close consultation with English Heritage and officers. The result remains a solution that raises major and difficult listed building questions. There are still matters which are not resolved, most notably the proposed windows between the entrance hall and the library and the extent of intervention to the north lightwell. It is considered, however, that if the United Kingdom Supreme Court is to be accommodated in the Middlesex Guildhall, then subject to the successful resolution of the outstanding unresolved elements, then it probably offers the best fit with the minimum harm for the building and its history that can be achieved."

20. The recommendation was that the decision to locate the United Kingdom Supreme Court in Westminster was welcomed, and the importance of locating the court in a building of outstanding quality and in a setting of national importance worthy of its unique status was recognised. Secondly, the committee should consider whether the scale of intervention and the harm the proposals would cause to the outstanding architectural and historic interest of this Grade II* listed building was unfortunate, but that, mindful of the national importance of the case, the proposed design, together with the mitigation strategy, had the potential to deliver (a) a solution of high architectural quality and (b) one that, with further refinement and development of the detailed design, would limit the harm caused to the building's special interest to an acceptable level in the context of the unique and special requirements of the United Kingdom Supreme Court. There were then set out a list of various objectors and supporters, including English Heritage, which, as I have already indicated, was supportive, subject to directing various conditions.
21. The conclusion reached within the report, in paragraph 7, was as follows:

"The applicants have recognised from the outset of the project that a decision to locate the United Kingdom Supreme Court in this building will require alterations that will compromise the outstanding interest of the Grade II* listed Middlesex Guildhall. To minimise this impact the applicants commissioned a Conservation Plan for the building, which was developed in consultation with English Heritage and officers. The proposed design has been developed in the light of that plan and in continued close consultation with English Heritage and officers.

In assessing the impact of the proposals, it is important to note that the building would need significant alterations if it were to continue to function as a Crown Court Centre in compliance with the most recent functional and spatial requirements for Court buildings (published in 2004). Major issues for any upgrade of the Court facilities include compliance with the Disability Discrimination Act (DDA) (for custody areas in particular), health and safety requirements, the renewal of services and the issue of receipt and transfer of detainees from custody vehicles to the Court building, all of which in themselves are likely to compromise to a degree the special interest of the building.

The proposal remains one that raises major and difficult listed building questions. It is considered, however, that if the United Kingdom Supreme Court is to be accommodated in the Middlesex Guildhall then, subject to the successful resolution of the outstanding unresolved elements identified above, it probably offers the best fit with the minimum harm to the building fabric and its history that can be achieved."

22. The reference to the need if it is to continue as a Crown Court for alterations to be made, while true, is perhaps not of any great materiality in the context of this case since any such alterations would not, at least to any great extent, have affected the courts themselves and the nature of the rooms in question. It is those that are particularly covered by the listed building status and those which will be damaged, and indeed, so far as the courts are concerned, effectively have all the furniture removed so that they would not be as they are now.
23. So far as the last paragraph is concerned, that is to say if the Supreme Court is to be accommodated in the Guildhall then what was proposed probably offered the best fit with minimum harm, Mr Harper has recognised that he is not able to submit that there is any error of law in the decision that was taken if, but only if, the necessity for the Supreme Court to be located in the Guildhall was established.
24. In presenting the proposals to the committee, the planning officer made clear that this was a building which was of outstanding quality and had a particularly fine interior, and that that matter was something which the committee had to bear in mind in coming to its decision. He went on:

"The iconography, both internally and externally, are breathtaking, and I will show you some pictures of those as I go through the boards. There can be no doubt that this project has been a major and complex challenge for the design team. We have worked closely with them and the design has been worked up and developed within the context of the conservation plans. The requirement to remodel three historical courtrooms, to level their floors and, in the case of court 1, which is to become the new library, to remove a large portion of it in addition to the hole that already exists, are elements of work that challenge the presumption in historical building policy to retain original use and fabric of the building."

I think the reference to "the hole that already exists" refers to the access to the cells beneath, from which prisoners would come into the dock. In concluding his preliminary observations, the planning officer said this:

"Turning to the key issue, the only real issue in front of you tonight - a relatively simple question, but not such an easy answer. That is: is the degree of change required to accommodate the Supreme Court in this splendid Grade II* building, in terms of its impact on the outstanding architectural and historical qualities of the building, not just its fabric but its use as well, balanced by the importance of accommodating the Supreme Court in this building in this location?"

A little later:

"The negative impact of the alterations has to be weighed against the importance of accommodating the Supreme Court in a key location of national importance. Surely, Chairman, there can be no more fitting location."

25. The members of the committee clearly took the view that the Guildhall was indeed an ideal location for the new court, its position was linked historically with the House of Lords, which had been the highest court in the land, to Westminster Hall, which had been, until the Royal Courts of Justice were constructed in the 1880s, where the high courts sat, to Parliament itself, which of course is the law makers. Accordingly a location in Parliament Square was the ideal spot for such a court. We find the Chairman of the committee saying that he could think of no better position for the Supreme Court, where the legislature, the executive and the judiciary would co-exist. He thought that it was an excellent location and a privilege that they should have it sited within the City of Westminster. He stated:

"I don't like the concept that those interiors will be changed irreparably, and all of them will be, but on the other hand I think that, on balance, the requirement and the opportunity for having a UK Supreme Court, which itself must be fit for purpose not just for the next few decades but hopefully for centuries, requires those changes."

The same sentiment was expressed by another member of the committee, who said that if it was the case that it would definitely be a Supreme Court, she could think of no better place than the heart of Westminster.

26. In due course the committee agreed that the decision to locate the Supreme Court in Westminster was indeed welcomed and accepted that this was the building which was ideal for that purpose because of its site and its appearance.
27. Mr Harper has submitted that the approach suggested by the officer, namely to consider first whether the decision to locate the new Supreme Court in the Guildhall was the right one, was to put things the wrong way round. He submitted that the first question should have been whether the works did so damage the features which were material in the listing of the building as to indicate that permission should not be granted. This was particularly important where alternatives which did not affect listed buildings were potentially available.
28. I do not accept that submission. It was clear that there was a major and damaging impact on the listed building - so much was made clear. It was therefore accepted that, unless this was clearly the right place for the new court, the application would be bound to fail. Thus, it was necessary at the outset for the committee to be satisfied that this was indeed the right site. If they were not satisfied of that, then they could not conceivably find a valid reason to justify the interference with the interior of the building, and without satisfaction that it was the right site, the application could not progress. It is apparent that great efforts had been made to try to ensure that the adverse impact of the works was as small as possible, as was clearly indicated by the officer in the manner in which he reported the matter to the committee. Accordingly, the key question was indeed what was in argument described as "the 'if' question"; that is to say, if this was the right place for the new Supreme Court, then there could be no argument that, as a matter of law, there was anything wrong with the decision that was made.
29. Mr Harper submitted that form, as well as substance, had to be shown to have been properly dealt with. This was to meet the arguments put forward against him that, even though PPG15 was not specifically referred to, it was clear that the committee had had regard to the principles set out in it, and in particular to the principles established by section 16 of the Act.
30. It is, I think, in this context worth bearing in mind observations of Judge LJ in Oxton Farms v Selby District Council, a decision of 18th April 1997, of which I have been provided with a transcript, and indeed, although unreported, one which has been fairly frequently cited. What he said was this:

"From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

I would only put perhaps a gloss on that to say that if the effect of the report is to omit a material matter so that the committee does not properly take it into account, the same principle will apply.

31. What is important is that the committee has in fact applied the correct approach, whether or not a specific document or report has been drawn to its attention. I have no doubt from what I have cited, and from my knowledge of the experience of this committee conveyed by the evidence before me in relation to listed building consents, that the committee was not only aware of the guidance in PPG15, but applied it. Mr Harper suggested that since it was only in June 2006 that the Crown was bound by the Planning Acts, it was all the more necessary to have referred to PPG15. There is, with respect, nothing in that point since at no time was it suggested that the applicant was not bound, nor is there anything in the transcript of the hearing that suggests any of the committee were under any misapprehension in that regard.
32. There was reference to value for money. Mr Harper criticised that as meaning no more than this was the cheapest option, and therefore references to value for money were immaterial. I am bound to say I recognise the force of that comment as a general proposition, but there is no evidence that that played any part in influencing the committee in reaching the decision that they made in the circumstances of this case. Indeed, the transcript makes it clear that their decision was based on the conclusion that this was, in their view, the right place for the new Supreme Court. That was their judgment, and that judgment is not one which can be attacked as erroneous in law unless it can be shown that it was irrational.
33. I can only allow this claim if persuaded that there was an error of law. I appreciate that there are many who believe the decision to locate the Supreme Court in the old Middlesex Guildhall is a wrong decision, both because it fails to house the highest court in the land in an appropriate setting and because of the damage the alterations will cause to an important historic building, but the committee had the responsibility of deciding whether consent should be given to enable the alterations to go ahead. They were, on the material before them, entitled to conclude that this was the right location, and so that it was in the national interest and thus desirable and necessary in terms of PPG15 that the alterations should be permitted to go ahead in order to enable the Supreme Court to be accommodated in the building. There was no misdirection from either the officers or by themselves, and in my view they clearly applied the correct test.
34. This was directed, in fact by me, to be an application for permission followed by a consideration of the substantive claim if permission were granted. I indicated yesterday that it seemed to me that the sensible way of approaching this would be to grant permission and to deal with the substance of the claim. No counsel suggested that that was a wrong course to adopt. Accordingly, I will grant permission, I will dispense with all further procedural requirements and dismiss the claim that I have given permission to proceed.
35. MR BROWN: My Lord, we are very grateful for that. My Lord, three matters. The first is just a minor point arising out of your Lordship's judgment, and your Lordship said at the time that it may ultimately not be very relevant, but when your Lordship is correcting the transcript you may wish to take it on board. In the discussion of the reasons why the planning permission application had been made, your Lordship indicated that it was directed simply at change of use and therefore by the time it was determined not necessary. My Lord, I do not ask you to turn it up now, but for your note if your Lordship looks at page 170 of the bundle, your Lordship will see that there were certain external works to the building, they were relatively minor, but they were things which did require planning permission.
36. MR JUSTICE COLLINS: I confess, I had not picked that up.
37. MR BROWN: I think your Lordship should note that, irrespective of the change of use classes order, planning permission would have been required for those works.
38. MR JUSTICE COLLINS: I am grateful. I had not, I confess, as I say, spotted that. It does not make any difference to the substance of the judgment.
39. MR BROWN: But for the record, it is probably better that it is right.
40. MR JUSTICE COLLINS: Yes, I will correct that in the transcript.
41. MR BROWN: My Lord, the second and third points I can deal with together. I would ask for an order that the application be dismissed, as your Lordship has indicated. Secondly, I would ask for an order that the claimant pay the defendant's costs of this application, subject to detailed assessment if not agreed.
42. MR JUSTICE COLLINS: Mr Harper, so far as that is concerned, we discussed this yesterday and you accept it. I am afraid, I think, correctly that that order was inevitable.
43. Incidentally, Mr Phillpot, you are not making any application?
44. MR PHILLPOT: No, my Lord, that was made clear yesterday.
45. MR HARPER: That just leaves me with one application to make. Before I make it, could I just say this. I in fact picked up two or three slight, immaterial, but slight --
46. MR JUSTICE COLLINS: I am sure they were some.
47. MR HARPER: I just wondered whether you might adopt for everyone's sake the principle, normally you would circulate a judgment for typos to be corrected --
48. MR JUSTICE COLLINS: I am quite happy to do that.
49. MR HARPER: Only just to clear those up by reference to the documents. You have been very kind to give us a judgment off the cuff, straight away, it is a very difficult thing to do, and it may be helpful if we could assist.
50. MR JUSTICE COLLINS: I can quite readily believe that I have missed one or two things or got one or two things slightly wrong. Actually, someone can clear up the dates when this was built, because in one place it said 1906-1913 and in another it said 1910-1914. I am not sure which is right.
51. MR HARPER: I am sure it was completed before the war.
52. MR JUSTICE COLLINS: It was, but that still would be consistent with 1914. It was not until August, was it, that the first war started?
53. MR HARPER: My Lord, there is just one other matter. That is I would seek permission to appeal. I would seek permission on this ground -- I am not saying I would not add to it, but I will put this forward first, if I may -- that it is a decision which is unsustainable in administrative law, having decided that the building must go here, simply at that point to throw out of the window all the detailed paragraphs which have to be considered in order to apply PPG15. My learned friends concentrated yesterday on the importance of the building and the advice given that those important elements would be seriously compromised, but what they never met, and what really was not met in your Lordship's judgment, is this. PPG15 applies regardless of importance. Now, you might say, 'look at paragraph so and so of PPG15, we have to weigh in the balance the importance of this matter and that paragraph cannot apply', but this exercise was never done.
54. MR JUSTICE COLLINS: Well, I think, as I hope I made clear, that it seemed to me that exercise was one which in the circumstances was unnecessary because if it had been done it would have achieved nothing so far as the result is concerned since PPG15 is not a question of going through a tick list, as it were, or a check list of requirements in any given case. What has to be considered is the underlying purpose where you have a development which does not fall fairly and squarely within what is set out in the various criteria, as this one does not.
55. MR HARPER: This one does not come near that --
56. MR JUSTICE COLLINS: That is your contention, I appreciate.
57. MR HARPER: It is my submission that it may be the case that when they were reminded of the detailed test, a decision which was different might have occurred. They might have said 'this is an ideal location but the hurdles are too high'.
58. MR JUSTICE COLLINS: Well, they were on, the face of it, considering just that, they so directed themselves. I take your point. I see the argument, but I am afraid, Mr Harper, that I am not going to grant you permission because I do not think there is anything in that argument for the reasons I have sought to indicate. If you wish to take this further you will have to persuade the Court of Appeal.
59. MR HARPER: I am grateful.
60. MR JUSTICE COLLINS: Incidentally, I know timing is very important. I think you probably have sufficient -- I hope you have a sufficient note of the judgment, or those behind you noting the judgment, to enable you to decide whether you are minded to apply for leave to appeal.
61. MR HARPER: Yes. The answer is probably yes, but could I just say this. There is no reason why our appeal should hold up the works because, as I understand it, the works going to be done to these major courts are all effectively taking out things which can be put back.
62. MR JUSTICE COLLINS: I do not think it is entirely that, but --
63. MR HARPER: As far as the three major courts are concerned initially --
64. MR JUSTICE COLLINS: They have to do some construction work, I think, in one of them.
65. MR HARPER: They have, but they would have to --
66. MR JUSTICE COLLINS: Take it out first. I take that point, but there is a need, I know, for speed, and of course if they do go ahead and you were to succeed, then there are real difficulties that could arise.
67. MR HARPER: Of course.
68. MR JUSTICE COLLINS: On the other hand, I know that they have put in a fresh application as a possible long stop, as it were, in case things went wrong on this application.
69. MR HARPER: Even if we were ultimately to succeed, it only goes back for another decision. They do not have to start again, they have to re-decide.
70. MR JUSTICE COLLINS: I know.
71. MR HARPER: My submission would be an appeal does not in any way --
72. MR JUSTICE COLLINS: I think that must be a matter for them to decide, whether they feel it possible to spend money on starting work while this is still hanging over them. All that I am really concerned is whether it is necessary to give any extension of time for applying to the Court of Appeal. I do not think it really is, because I think you have sufficient to enable you to formulate grounds. I appreciate that until the transcript comes you will not actually be able to put that before the Court of Appeal.
73. MR HARPER: My Lord, I cannot do anything until the transcript comes.
74. MR JUSTICE COLLINS: But you can lodge your appeal if necessary.
75. MR HARPER: I was just wondering whether the appropriate way of dealing with it would be to give us a time from the date when the transcript first becomes --
76. MR JUSTICE COLLINS: No. I do not think I am inclined to abridge your time for making the application, but what you obviously will have is an extra time, which you may have to apply to the Court of Appeal for, to get the transcript. Now, I will certainly have the transcript, I suspect, before the end of this week.
77. MR HARPER: I will not be embarrassed in any way.
78. MR JUSTICE COLLINS: I will make sure that you have it, as I say, by the end of the week. What I will do is, I will do my corrections. You can then have copies of it. It will not go onto the official website until you have had the chance between you to spot any errors which can usefully be corrected as a matter of fact.
79. MR HARPER: We will not need more than the normal time for that.
80. MR JUSTICE COLLINS: All I am getting at is that does not terribly matter because those amendments will not affect the matters as far as any appeal is concerned, so you can put the uncorrected transcript, if necessary, before --
81. MR HARPER: My Lord, we will not have to do that, it is a question of formulating the grounds. Thank you very much.
82. MR PHILLPOT: My Lord, can I just address you briefly on the question of the appellant's notice and the issue of timing. So far as the background to this is concerned, my client of course, if it wishes to undertake the works in question, will be undertaking works that require listed building consent and can only lawfully do that if it has listed building consent.
83. MR JUSTICE COLLINS: It has at the moment.
84. MR PHILLPOT: It has at the moment. To undertake those works without listed building consent would be a criminal offence.
85. MR JUSTICE COLLINS: Yes, but you have consent, and the Court of Appeal, even if they entertain the application, will not -- I would be very surprised if they did feel it right to put any stay, as it were, on the --
86. MR PHILLPOT: It is not so much that. If the listed building consent is quashed, the listed building consent never existed.
87. MR JUSTICE COLLINS: I do not think that administrative law now provides, does it, that that is the position? What I am getting at is that if you do works in accordance with a valid consent, the fact that that consent may in due course be quashed does not mean that what you have done is thereby rendered unlawful.
88. MR PHILLPOT: My Lord, I take some comfort from that.
89. MR JUSTICE COLLINS: I am sure that must be right, must it not?
90. MR PHILLPOT: Well, I am not sure it is entirely clear, but --
91. MR JUSTICE COLLINS: You get this frequently in planning permissions, do you not -- I say "frequently", but if challenges are brought to the grant of a planning permission it may happen, particularly if there has been a delay of any sort before the claim is made, that steps have been taken to implement that permission.
92. MR PHILLPOT: My Lord, that does not attract a criminal sanction.
93. MR JUSTICE COLLINS: No, it does not.
94. MR HARPER: Of course a breach of planning control attracts enforcement notices and so on, but in any event, even if your Lordship were right about the absence of threat of criminal sanctions, the expense, public expense, and works involved in taking out the interiors of the court in circumstances where that has to go back in would be very unfortunate. So far as my client is concerned, the urgency which led to this matter being expedited continues.
95. MR JUSTICE COLLINS: Well, I am not disputing that. You have not done badly before this court, so far as speed is concerned, have you?
96. MR PHILLPOT: My Lord, we are genuinely very grateful for that, but so far as the matter going forward is concerned, I just want to make sure --
97. MR JUSTICE COLLINS: I take your point.
98. Mr Harper, I think it is perhaps material to bear in mind that this challenge was left rather late in the day. I appreciate that a delay point was not taken, but it might have been, and it really would have been a lot better had this claim been made rather earlier than it was. I appreciate it has been threatened, but nevertheless, as you well know, the requirement is promptly and in any event within three months.
99. MR HARPER: Yes.
100. MR JUSTICE COLLINS: You did not lodge, I think, until -- well, certainly after two months.
101. MR HARPER: That is right. I apologise for that.
102. MR JUSTICE COLLINS: No, I am not criticising.
103. MR HARPER: Could I just say in answer to two of the points that have been made. First of all, we would expect this to come on quickly, we would ask for it to come on quickly, and its importance would no doubt be made known to the Court of Appeal.
104. MR JUSTICE COLLINS: That is a matter for the Court of Appeal, not for me.
105. MR HARPER: I understand that. The second point is this. Prosecutions do not come out of thin air. A local authority prosecuting for breach -- it is unbelievable.
106. MR JUSTICE COLLINS: There would be no question of a prosecution. All I can say is that if Westminster decided to prosecute, I would expect there to be an immediate quashing --
107. MR HARPER: -- of that decision.
108. MR JUSTICE COLLINS: It would not happen any way, let us be realistic, but that is not really the issue.
109. MR BROWN: I do not think it is in the minds of those who sit behind me, my Lord, but if ever it was, I am sure they would take notice of --
110. MR HARPER: I certainly would not want to shut out the possibility we may appeal, those are my instructions, but I can guarantee that we will be expeditious.
111. MR JUSTICE COLLINS: What is the time limit?
112. MR PHILLPOT: My Lord, the time limit is 21 days.
113. MR JUSTICE COLLINS: We have Easter coming up, of course.
114. MR PHILLPOT: There are two matters. When the time starts to run, I think your Lordship has made clear it starts to run from today.
115. MR JUSTICE COLLINS: Starts to run today, now.
116. MR PHILLPOT: So far as the timing is concerned, it was formerly 14 days. In this case we would ask it be shortened because the grounds of appeal are relatively simple.
117. MR JUSTICE COLLINS: Yes.
118. MR PHILLPOT: And can be formulated quickly.
119. MR JUSTICE COLLINS: Mr Harper, can I put it this way. I think that if possible, if you are going to pursue this, you should lodge by the end of term, that is to say by Wednesday before Easter, but I am not going to put that as a formal requirement, but what I do say is that although it may be -- I do not think Easter stops time running, does it, when it is a 21 day period, so in any event it may be that, provided you lodge before the beginning of next term, because obviously it cannot be considered by a Lord Justice until the beginning of next term --
120. MR HARPER: That would mean, really putting a limit on us --
121. MR JUSTICE COLLINS: It gives you effectively the 21 days, I think.
122. MR HARPER: I do not think we need the 21 days. If we get a version of your --
123. MR JUSTICE COLLINS: You will get a version, I hope, by the end of this week.
124. MR HARPER: I would anticipate dealing with this -- sorry, if I am instructed, I am only making this application on instructions.
125. MR JUSTICE COLLINS: Well, I am not encouraging you.
126. MR HARPER: If instructed, I would do it at the same time as I was looking at your judgment.
127. MR JUSTICE COLLINS: As you probably gather, I think that your clients would be throwing good money after bad, however much one sympathises with what lies behind this claim.
128. MR HARPER: It may well be a matter they have to take into account.
129. MR JUSTICE COLLINS: I think they should very carefully consider that, particularly as of course they are, as you pointed out, a charitable organisation.
130. MR HARPER: I am very much obliged.
131. MR JUSTICE COLLINS: That is not a matter for me.
132. I have nowadays to fill in what I always regard as a rather unnecessary and silly form indicating briefly why I am refusing leave to appeal. What I tend to do is to say "see transcript" because that makes absolutely clear why, so I shall do that.
133. MR HARPER: I will be content with that.
134. MR JUSTICE COLLINS: I appreciate it does not always make me popular with the Court of Appeal, but there we are.
135. MR HARPER: We will not take any point on it.