England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		25 November 2009

Mr Justice COLLINS :

1. The claimant seeks to quash the decision of the defendant on 23 October 2008 to designate 119 Bridge Lane, London N.W.11 as a Conservation Area pursuant to s.69(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the 1990 Act). The land in question is a former Carmelite monastery set in a garden of some 2 ½ acres surrounded by a high wall. The claimant purchased it for a substantial sum in September 2007, when the remaining four nuns left the site and it was sold. It proposed to develop the site for residential use.
2. The monastery itself was built between 1906 and 1908. It had a somewhat unusual history in that its founder was a Jew, a Mr Cohen, who had converted to Roman Catholicism and had decided to found a number of Carmelite monasteries in this country of which 119 Bridge Lane was one. The order is a contemplative one its adherents devoting themselves to prayer and meditation. Hence, the garden was enclosed and very few outsiders would have gained access to the property.
3. The building was included in the local list prepared by the defendant because of what was regarded as its significant contribution to the heritage and character of the Borough. Local listing does not give any substantial degree of protection against demolition of a building. While by s.55 (1A) of the Town and Country Planning Act, 1990 demolition is said to be regarded as a building operation so that it is development which prima facie requires planning permission, s.55 (2)(g) of the Act enables the Secretary of State to specify that demolition of certain descriptions of buildings shall not be taken to involve development. So far as relevant, the only circumstances in which demolition could amount to development is if the building is 'a dwelling house or a building adjoining a dwelling house': see Town and Country Planning (Demolition – Description of Buildings) Directions 1995, paragraph 1(d). This paragraph is qualified by Paragraph 2 which provides that a building is not to be regarded as a dwelling house for the purpose of paragraph 1(d) if 'the use of that building, or part of that building as a dwelling-house is ancillary to any non-residential use of that building or other building on the same site'. Further complications are produced by Part 31 of The Town and Country Planning (General Permitted Development) Order 1995 (GDPO). It is not necessary for me to go into them since fortunately I do not have to decide whether the monastery could have achieved a degree of protection by virtue of being a dwelling house. Suffice it to say that it is questionable whether it could and I am not in the least surprised that the defendant took the view that it could not. It has since been decided to have been a sui generis use.
4. The defendants' Unitary Development Plan (UDP) which was adopted in 2006 seeks to provide some protection for locally listed buildings. Paragraphs 4.3.3.10 to 4.3.3.13 set out the approach to be adopted which includes (4.3.3.12) an indication that the Council will refuse consent for the demolition of locally listed buildings. It continues:-

"In the case of demolition, exceptions may be considered where the applicant can demonstrate that they have met the criteria to be found in PPG15 relating to unlisted buildings that make a positive contribution to the character or appearance of a Conservation Area, and that the proposed replacement building preserves or enhances the street scene and is a fitting replacement for the original."

The relevant policies are HC14 and 15. These read:-

"Policy HC 14 – Locally Listed Buildings – Demolition

Permission for the demolition of a locally listed building will be refused in accordance with the criteria to be found in PPG15 relating to unlisted buildings that make a positive contribution to the character or appearance of a Conservation Area. Where, exceptionally, demolition is acceptable, the proposed replacement must preserve or enhance the character and quality of street scene and be a fitting replacement for the original.

Policy HC15 – Locally Listed Buildings – Safeguarding

Development proposals affecting locally listed buildings and structures should seek to safeguard their special character, appearance and setting."

5. Since demolition of a building which has not been listed by the Secretary of State pursuant to s.1 of the 1990 Act cannot be prevented unless it falls within the relatively narrow class (essentially a dwelling house), it is not surprising that HC14 is limited to locally listed buildings in a Conservation Area. Since demolition is not generally speaking development, HC15 cannot apply unless the building is a dwelling house as defined. Thus there is no effective protection against the demolition of many locally listed buildings. It was because of this perceived lacuna that the defendant designated the monastery and its garden a Conservation Area. HC14 would then apply since s.74(1) of the 1990 Act prohibits the demolition of a building in a conservation area without the consent of the appropriate authority which in a case such as this would be the defendant (s.74(2)(b)).
6. Chapter 4 of PPG15 deals with Conservation areas. The general approach to designation is set out in Paragraphs 4.1 to 4.8. I should cite 4.1 to 4.7.

"4. Conservation Areas

4.1 Section 69 of the Act imposes a duty on local planning authorities to designate as conservation areas any 'areas of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance'. There are now more than 8000 conservation areas in England. Whilst listing procedures are focused on the protection of individual buildings, conservation area designation is the main instrument available to authorities to give effect to conservation policies for a particular neighbourhood or area. Designation introduces a general control over the demolition of unlisted buildings and provides the basis for policies designed to preserve or enhance all the aspects of character or appearance that define an area's special interest.

Assessment and designation of conservation areas

4.2 It is the quality of areas, rather than that of individual buildings, which should be the prime consideration in identifying conservation areas. There has been increasing recognition in recent years that our experience of a historic area depends on much more than the quality of individual buildings – on the historic layout of property boundaries and thoroughfares; on a particular 'mix' of uses; on characteristic materials; on appropriate scaling and detailing of contemporary buildings; on the quality of advertisements, shop fronts, street furniture and hard and soft surfaces; on vistas along streets and between buildings; and on the extent to which traffic intrudes and limits pedestrian use of spaces between buildings. Conservation area designation should be seen as the means of recognising the importance of all these factors and of ensuring that conservation policy addresses the quality of townscape in its broadest sense as well as the protection of individual buildings.

4.3 Local planning authorities also have under section 69 a duty to review their areas from time to time to consider whether further designation of conservation areas is called for. In some districts, areas suitable for designation may have been fully identified already; and in considering further designations authorities should bear in mind that it is important that conservation areas are seen to justify their status and that the concept is not devalued by the designation of areas lacking any special interest. Authorities should seek to establish consistent local standards for their designations and should periodically review existing conservation areas and their boundaries against those standards; cancellation of designation should be considered where an area or part of an area is no longer considered to possess the special interest which led to its original designation.

4.4 The more clearly the special architectural or historic interest that justifies designation is defined and recorded, the sounder will be the basis for local plan policies and development control decisions, as well as for the formulation of proposals for the preservation and enhancement of the character or appearance of an area. The definition of an area's special interest should derive from an assessment of the elements that contribute to (and detract from) it. Conservation areas vary greatly, but certain aspects will almost always form the basis for a coherent assessment; the topography – for example, thoroughfares and property boundaries – and its historical development; the archaeological significance and potential; the prevalent building materials; the character and hierarchy of spaces; the quality and relationship of buildings in the area and also of trees and other green features. The assessment should always note those unlisted buildings which make a positive contribution in the special interest of the area. More detailed advice on assessment and on other aspects of the management of conservation areas is set out in English Heritage's guidance note Conservation Area Practice.

4.5 The principle concern of a local planning authority in considering the designation of a conservation area should be to form a judgment on whether the area is of special architectural or historic interest the character or appearance of which it is desirable to preserve or enhance. In deciding whether it is desirable to designate, an authority may take into account the resources likely to be required, not only for the administration of conservation area controls, but also for consultation with local residents and formulation of policies for a new area; without follow-up, designation is unlikely to be effective in itself. An authority's justification for designation, as reflected in its assessment of an area's special interest and its character and appearance, is a factor which the Secretary of State will take into account in considering appeals against refusals of conservation area consent for demolition, and appeals against refusals of planning permission.

4.6 Given the nature of conservation area controls – essentially controls over demolition; strengthened controls over minor development; and the protection of trees – designation is not likely to be appropriate as a means of protecting landscape features, except where they form an integral part of the historic environment and that factor needs to be taken into account in considering any planning applications which would affect them. The Courts have held that it is legitimate in appropriate circumstances to include within a conservation area the setting of buildings that form the heart of that area (R v Canterbury City Council ex parte David Halford, February 1992; CO/2794/1991). Designation is clearly not a proper means of controlling activities (e.g. agricultural operations) which do not fall within the definition of development. Designation may well, however, be suitable for historic parks or gardens and other areas of historic landscape containing structures that contribute to their special interest and that fall within the categories subject to conservation area controls. Where there are no other reasons for designating a conservation area, trees may instead be protected by means of a tree preservation order.

4.7 There is no statutory requirement to consult prior to designation or cancellation of designation, but it will be highly desirable that there should be consultation with local residents, businesses and other local interests (e.g. amenity bodies), over both the identification of areas and the definition of their boundaries. The greater the public support that can be enlisted for designation before it takes place, the more likely it is that policies for the area will be implemented voluntarily and without the need for additional statutory controls. Local planning authorities should advise English Heritage and the appropriate regional Government Office when conservation areas are designated."

7. The claimant submits that it is important to bear in mind that listing procedures, that is to say, procedures for the listing of buildings in Part 1 of the 1990 Act, are focused on the protection of individual buildings whereas Conservation Area designation is intended to give effect to conservation policies for a particular neighbourhood or area (4.1). Further, it is the 'quality and interest of areas, rather than that of individual buildings, which should be the prime consideration in identifying conservation areas (4.2)'.
8. Conservation area control over demolition is dealt with in Paragraphs 4.25 to 4.29. I need only cite Paragraphs 4.26 and 4.27, which read:-

"4.26 in exercising conservation area controls, local planning authorities are required to pay special attention to the desirability of preserving or enhancing the character or appearance of the area in question; and, as with listed building controls, this should be the prime consideration in determining a consent application. In the case of conservation area controls, however, account should clearly be taken of the part played in the architectural or historic interest of the area by the building for which demolition is proposed, and in particular of the wider effects of demolition on the building's surroundings and on the conservation area as a whole.

4.27 The general presumption should be in favour of retaining buildings which make a positive contribution to the character or appearance of a conservation area. The Secretary of State expects that proposals to demolish such buildings should be assessed against the same broad criteria as proposals to demolish listed buildings (paragraphs 3.16-3.19 above). In less clear-cut cases – for instance, where a building makes little or no such contribution – the local planning authority will need to have full information about what is proposed for the site after demolition. Consent for demolition should not be given unless there are acceptable and detailed plans for any redevelopment. It has been held that the decision-maker is entitled to consider the merits of any proposed development in determining whether consent should be given for the demolition of an unlisted building in a conservation area."

9. Paragraph 4.4 refers to English Heritage's guidance on Conservation Area Practice. There are two relevant guidelines, one relating to Conservation Area appraisals and the other to the Management of Conservation Areas. The appraisal guidance indicates that an authority should apply adopted local criteria to its whole area in a consistent fashion and its judgment 'should be based on a thorough understanding of the area in its wider context, reached through a detailed appraisal of its character' (Paragraph 2.7). Paragraph 2.12 states:-

"Appraisals should be carried out for all new or extensions to existing conservation areas as a matter of course, in order to inform the designation process. If a local authority has many conservation areas, priority should be given to preparing appraisals for those areas where the pressure of change is greatest."

While this does not state that an appraisal must always precede a designation, it would obviously be inconsistent with the guidance if such an appraisal was not carried out in advance unless there was a very good reason for not doing so. An imminent threat of demolition could justify a designation in advance of a full appraisal if but only if the authority was reasonably of the view that the area in question qualified to be designated and the demolition in question was likely to damage its character. In such circumstances, a proper appraisal should be undertaken as soon as possible. While the 1990 Act does not provide in terms for revocation of a designation, s.70(5) requires an authority to give notice to the Secretary of State of inter alia any cancellation of a designation. That presupposes that there is power to cancel and that power should clearly be exercised if an appraisal shows that a designation should not be maintained.

10. The management guidance states in paragraph 3.12 that ideally an appraisal should precede designation. That paragraph also makes the point that designation is 'unlike the statutory listing of buildings'. Paragraph 3.14 is of considerable importance. It states:-

"Whilst designation can be a legitimate response to an actual or perceived threat to the character of an area, the first consideration should always be whether the area is of sufficient special interest to warrant designation, rather than whether designation would provide an additional control. Designation should never be undertaken solely in response to local pressure, or to bring the future of particular unlisted buildings under control."

There has been disagreement as to the true meaning of the last sentence. Does the word 'solely' govern both alternatives that follow or is it limited to the first? The existence of the comma may be determinative since, it is said, it is consistent only with the latter construction. I do not think the matter should hang on a comma. It is clear that the future of unlisted buildings may be a relevant consideration if they do provide a material contribution to an area which is worthy of designation and which would be harmed if they were to be demolished. But it is apparent that the desire to protect unlisted buildings and I think a fortiori a single unlisted building cannot justify a designation unless there is an area to which that building or those buildings make a real contribution. Thus if the motive for designation is to protect an unlisted building, that will suggest that the statutory powers are being used for a wrong purpose and so, as it seems to me, the planning authority must show a clear justification for the designation.

11. I should now set out the relevant factual background. Following its purchase of the monastery, the claimant in December 2007 submitted a proposed residential development by way of consultation with the defendant which proposed retention and conversion of the monastery building. Since it was concerned that the building might lack protection, the defendant decided that it should seek to persuade the Secretary of State to list it under s.1 of the 1990 Act. It decided to act immediately under s.3 of the 1990 Act. This provides by s.3(1):-

"If it appears to a local planning authority … that a building in their area which is not a listed building –

(a) is of special architectural or historic interest; and

(b) is in danger of demolition or of alteration in such a way as to affect its character as a building of such interest,

they may serve on the owner and occupier of the building a notice (in this Act referred to as a "building preservation notice")."

Such a notice (BPN) can remain in force for up to 6 months. It will cease to have effect if the Secretary of State either lists or decides not to list the building. Its effect while in force is to provide the building with the same protection as if it were a listed building (s.3(5)).

This led the claimant to obtain a report from professional heritage consultants. In their report produced in February 2008, the consultants' conclusion was that the building failed to meet the relevant criteria for listing in that it did "not possess the level of special architectural or historic interest that would warrant its inclusion on the statutory list of buildings of special interest". They recognised that it did contribute to local interest and was of some historic interest and that those interests were recognised by local listing. They observed in Paragraph 5.2.3:-

"The inclusion of the building on the local list is appropriate, and provides some development control to ensure that the local historic interest of the building is retained."

12. English Heritage reached the same conclusion. A full inspection was carried out on 30 January 2008. On 12 April 2008 the adviser set out her full reasons, which in due course were endorsed on 30 May 2008 when the advice was submitted to the Secretary of State. It was noted:-

"It is disappointing that the landscape had been much disrupted at the time of our site visit, since this was clearly an intended part of the overall design and a lovely garden that formed a working and contemplative backdrop to the monastery itself. That said, it is not the case that had the hard elements of the landscape survived better, it could have substantively improved the architecture of the ensemble. However, all this taken into account, there is nothing formally remarkable about the architectural design and on balance we do not feel it stacks up for listing on the grounds of architectural interest."

She went on to consider historical interest and decided that, although it had social historical interest because of its association with the international development of the Carmelite Order of Nuns, it was neither an early nor an unique example.

13. The approach to consideration of architectural interest is important since it is apparent that the monastery building together with the garden was considered as a whole. This accorded with s.1(3)(b) of the 1990 Act which enables the Secretary of State to take into account when deciding on listing:-

"the desirability of preserving, on the ground of its architectural or historic interest, any feature of the building consisting of a man-made object or structure fixed to the building or forming part of the land and comprised within the curtilage of the building."

The wall around the garden is a man-made structure. There is learning on what forms the curtilage of a building, but its garden does prima facie form a building's curtilage and I am satisfied that the 2 ½ acre garden surrounded by a wall is within the curtilage of the monastery. The wall is a man-made structure. And there does exist some protection for the garden inasmuch as many of the trees within it are subject to Tree Preservation Orders (TPOs) which mean that those looking from outside see the tops of a number of mature trees in the area of the garden.

14. On 5 June 2008 the Secretary of State decided not to list the building, following English Heritage's advice. On 9 July 2008 the claimant through its agents gave notice to the defendant of its intention to demolish the monastery building. The defendants' formal response on 20 August 2008 was to require a number of conditions if demolition were to take place. However, it had been actively pursuing the possibility of a designation under s.69 and on 25 September 2008 a letter was sent to the claimant's architects stating that the defendant was proposing to designate the site as a Conservation Area. That proposal was to be heard at a meeting of the Cabinet on 23 October 2008. The claimant's response was a letter from its solicitors' dated 7 October 2008 in which it was asserted that the proposed designation was an unlawful use of s.69. They had seen the report prepared for the committee by the officer and the burden of their complaint was that the designation was solely for the purpose of avoiding demolition of and protecting the unlisted monastery building. A further report was obtained from the claimant's heritage consultants. It was based on 'extensive researches into the site, its origin, character and appearance'. They concluded that the site did not meet the criteria set out in the UDP for conservation area designation. The definition of a conservation area is an area of special architectural or of historic interest, the character or appearance of which it is desirable to preserve or enhance. But the specific criteria to which reference is made are contained in Paragraph 4.3.2.3 of the UDP which states:-

"In order to facilitate the review of Conservation Areas, the council has agreed specific criteria which it will use in assessing whether an area has the special architectural or historic character necessary for designation. Areas exhibiting some or all of the following characteristics are therefore likely to be considered for designation:

Distinct areas with a high concentration of buildings of historic or architectural value generally recognised by statutory or local listing:

Areas containing a high proportion of attractive buildings with distinct qualities of age. Style, materials, and any other characteristics, particularly if these reflect local styles or group value;

Areas with a townscape quality of merit which sets them apart from their surroundings, including views in and out, landmarks, distinguishable borders, paths and routes through the area, centres of activity and meeting points, prominent entry points, urban pattern and structure, density and scale etc;

Areas with features of archaeological significance including scheduled ancient monuments and areas defined as being of special archaeological interest, particularly where these influence the landscape and built environment;

Areas of historic, social, economic or architectural interest;

Areas where a natural feature, historic open space, street pattern or other historic element makes a special contribution to the quality of spaces and the character of the area;

Areas with green open spaces, trees, hedges and other natural elements of exceptional quality, which in relation to the built environment make a significant contribution to the character of the area;

Areas with a distinct physical identity that has not been spoilt by insensitive development. "

15. Following receipt of the indication in the letter of 9 July 2008 that the claimant intended to demolish the monastery, the defendant was concerned to see whether steps could be taken to prevent demolition. This led to the decision to designate the monastery and its garden as a conservation area. The report to committee was, of course, a public document and so available to the claimant. However, there were material communications within the council and to English Heritage and the Victorian Society whose support for the proposed designation was obtained. The claimant was particularly concerned that no material memoranda or e-mails had been disclosed. On 5 October 2009 Keith J ordered such disclosure. As will be apparent, the e-mails produced as a result of the order are material. The explanation for their non-disclosure was human error. Mr Griffiths does not seek to go behind that and does not suggest bad faith: nor do I. But the error does underline the need for defendants in judicial review cases to be careful to ensure that everything that might reasonably be regarded as material (particularly if possibly adverse to them) is disclosed once permission is granted. Public authorities are generally well aware of their duties in this regard and specific orders for discovery are a rarity in the Administrative Court.
16. Even before the notification of the intention to demolish, once the Secretary of State had decided not to list, the possibility of designation was raised. An e-mail to Councillor Cohen, the cabinet member for planning and development, and a member of the sub-committee which would consider the question of designation, from Ms Sissman, the area planning manager for the Finchley and Golders Green team, of 26 June 2008 refers to Ms Sissman's request to look into the possibility of 'making the Carmelite Monastery site a conservation area'. She points out that this was 'briefly considered months ago' but the decision then was that a BPN would provide greater protection.
17. On 15 July 2008, following the demolition indication, there is an important e-mail from a senior planning officer to Mr Hardy, the acting head of the Urban Design and Heritage Team in the Council's planning services. This reads:-

"Can you look into the procedures for designating a Conservation Area as the developers have applied to Building Control for demolition [Ms Sissman] is not sure that we can prevent demolition of the LLB, as its residential use is not definite and they may get rid of it and then argue the legalities.

There's no need to consult as we can just designate, but the procedures need to be sorted out i.e. have we got delegated powers or does it have to go to the Committee, and if so which one. My understanding is that we have 6 weeks before Building Control have to give permission allowing demolition.

Could you therefore look into the above (urgently!) and discuss with [Ms Sissman]."

On the same day, Ms Sissman records in an e-mail to Mr Hardy that the officer in charge (who was on holiday in Spain) wanted Mr Hardy and another officer to 'write a DPR immediately to make the area a Conservation Area including the building, the wall etc'. It was needed urgently and should be 'cleared by all relevant people before Councillor M Cohen.

18. On 18 July 2008 Ms Sissman expressed concern that the conservation area decision could not be put to committee until the end of September when it was next due to meet and the 6 weeks ran out on 22 August. She suggests that time would be bought by asserting that the building was a dwelling house. She stated:-

"Jonathan [Hardy] is drafting the DPR for the Committee in the assumption that we will be making the Conservation Area."

On the same day, Ms Sissman asked the Director of Planning Mr Murray whether he had decided 'if we were going to proceed with the designation of the Conservation Area'. If so, she would write to English Heritage seeking their approval. Mr Murray said he had agreed to the designation and suggested 'a quick visit with me to the site to assess its "setting"'. In addition, in reply to Ms Sissman, Mr Murray said that she and Mr Hardy should not 'worry about' approval processes. He went on:-

"We'll sort that somehow. The main thing is to get the report and designation processes going and a CA assessment which the Design and Heritage Team can get moving on now. I will speed up the clearance process and Committee/Cabinet."

19. On 6 August 2008 Mr Murray wrote to English Heritage seeking their support for the designation. The language is revealing. He said:-

"Currently, the building's importance is recognised by its locally listed status. However, this does not protect the building against demolition. Therefore, the designation of a conservation area around the site is imperative if this fine building, which is of great social and cultural importance, is not to be lost in the near future."

He stated that the building had 'undoubted architectural merit' and that the designation of the conservation area was therefore 'crucial if we are to retain this important part of the Borough's heritage'. The response from the Planning and Development Director for the South said that, although not listed, the monastery was clearly of very considerable local interest and warranted every effort to retain it. Thus English Heritage "supported the "proposed designation to secure its" long term preservation". There was also support from the Victorian Society.

20. Reliance was placed in the officer's report and is placed by Mr McCracken on the support of English Heritage. But there is no reason to believe that the author of the letter had considered the legal niceties or whether the proposed conservation area could properly be regarded as capable of amounting to one. If he had had in mind English Heritage's guidance, he should have appreciated that designation should never be undertaken in order to bring the future of an unlisted building under control so that the conservation area must exist independently of the building, albeit no doubt the building may be an important feature within it. The support of the Victorian Society takes the matter no further, albeit its letter does seek to identify features which are said to justify the designation. These are set out in the officer's report.
21. The officer's report was prepared for the meeting of the sub-committee on 23 September 2008. It refers on a number of occasions to the need to designate to protect the 'important locally listed building'. It was stated that English Heritage 'strongly advises in their guidance that the special architectural and historic interest of a proposed conservation area should be clearly defined, preferably in the form of a character appraisal'. The letter of support from English Heritage was drawn to the Committees' attention. Paragraph 9.1 reads:-

"The proposal to consider the designation of the Conservation area has arisen from an immediate threat of demolition to the locally listed monastery."

Under the heading 'Reasons for Designation of the conservation area' it said that 'the qualities and special interest of the monastery building and its setting have only recently been fully appreciated, due to its limited access and concealment from public views'. In Paragraph 9.9 this is said:-

"By designating the site as a conservation area will allow the importance of this fine, locally listed building and its garden setting to be fully recognised and will allow the Council to resist its demolition in the absence of successful applications for conservation area consent and planning permission. It needs to be stressed that without conservation area status, the monastery, despite having locally listed status could be demolished without requiring planning permission. As a notification of intent to demolish has already been received by Building Control, the building would otherwise be removed without regard for its architectural, historical and social values to the community of Barnet and beyond."

The summary in Paragraph 10 states:-

"It is considered that the area including the Carmelite monastery and its grounds are of special architectural and historic interest, which it is desirable to preserve and enhance, and this should be recognised by the designation of a conservation area. Without such designation, all buildings on the site will almost certainly be destroyed and removed."

22. The sub-committee decided to put the issue to Cabinet with a recommendation in favour of designation. The claimant was notified and advised to make any representations by 14 October 2008 for the cabinet meeting on 23 October. The claimant obtained a report from its consultants which concluded that the site did not possess the necessary qualifications for designation. On 7 October 2008 the claimant's solicitors wrote a letter detailing the reasons why in their view the designation would be unlawful. Essentially it identifies the grounds relied on in this claim. But sensibly and responsibly the claimant decided to enter into a dialogue with the council's officers and on the 23 October 2008, before the meeting of the Cabinet, its solicitors sent an e-mail to Ms Sissman stating:-

"Further to our telephone conversation of earlier today I write to confirm on the part of our client, the owner of the above site, that so long as meaningful discussions about the redevelopment of the site continue between the parties we are instructed to give an assurance on behalf of our client that the building will not be demolished."

They repeated that the claimant reserved the right to challenge a designation if one was made. They expressed a hope that 'any decision by the council can be deferred pending the further meetings concerning redevelopment of the site already agreed between the parties'.

23. A supplemental report for the meeting was produced following responses to the "consultation process". This annexed the report from the claimant's consultants. It repeated the concern that it was 'almost certain' that the historic building would be lost by demolition and its setting destroyed if designation did not occur. It noted that 156 letters had been sent to neighbouring occupiers and these had elicited 27 letters of support and none objecting. It also noted that the claimant's consultants had asserted that the proposed conservation had not followed government advice, did not meet the relevant criteria and in any event there was adequate protection in the local listing and the TPOs.
24. It was acknowledged that the proposed designation was 'in special, if not unique circumstances'. The site had not historically been accessible to the general public, was of limited visibility from the surrounding roads and contained only one building of interest, which was locally listed, but was also under immediate threat from demolition. The point was made that the report was not intended as a conservation area character appraisal. That document would be prepared following designation, an observation which seems to have assumed that designation would be approved. In Paragraph 10.4, this is said:-

"The [claimants' consultant's] report challenges the proposed conservation area designation as a means of protecting an individual building as being at odds with government advice. Yet, written support for designation has been received from the Director of Planning and Development (South) at English Heritage."

In reality, the support could not properly be regarded as the answer to the consultant's assertions.

25. Attention is drawn to the garden which is said to complement the architectural qualities of the monastery and to create a pleasing visual backdrop. Glimpses of the mature tree canopies could be achieved from outside the site. In Paragraph 11 under the heading 'Summary and Recommendation' this is said:-

"11.1 The report to the Finchley and Golders Green Area Environment Sub-Committee has outlined the site as having the necessary quality and interest to warrant designation as a conservation area. This proposal has been given overwhelming public support following the consultation exercise.

11.2 In the Barnet Adopted Unitary Development Plan (2006) it outlines the characteristics that are likely to result in the designation of a conservation area. It is considered that this site is an area of historic, social and architectural interest. It is also an area with a green open space with trees of exceptional quality which, in relation to the built environment makes a significant contribution to the character of the area. The site is also an area with a distinct physical identity that has not been spoilt by insensitive development.

11.3 The fact that the monastery is hidden away on a secluded site in the depths of suburbia is part of its appeal and interest. It is a hidden gem. The building is one of the oldest in this area and pre-dates most of the historic buildings in Golders Green town centre. Its distinctive gothic architecture is pleasing and characterful. The large, green open space to the south, with its numerous established trees provides an attractive setting for the building. The monastery has been altered very little since its construction and is perfectly suited for conversion and re-use. The site is clearly valued by local residents. The designation of a conservation area at this site is considered to be fully justified. A character appraisal statement will be prepared for the area.

11.4 The Council has very recently been informed that a revised application for the preservation and refurbishment of the monastery building is currently being prepared. Planning officers will seek to work closely with the applicants to ensure a high quality scheme for conversion is achieved."

26. The Cabinet decided to endorse the sub-committee's recommendation. The claimant's solicitor's representative who attended the meeting has produced a note which is not challenged. Councillor Cohen "argued that the threat of demolition was imminent and, notwithstanding the recent discussions with the architect about the retention of the monastery, this was still his view. He considered that the actions of the owners' architect were merely a delay tactic". One councillor raised objections in that in his view the council's action was based on muddled thinking in trying to 'circumnavigate' the discussion of English Heritage not to list. Mr Murray drew to the committee's attention that local listing and the historic interest of the building would not be sufficient to prevent its demolition and the TPOs would not stop the destruction of a well-landscaped garden.
27. Ms Sissman in her statement produced for the hearing of this claim deals with the undertaking not to demolish in Paragraph 42, stating:-

"The email from Alan Ledden suggesting an undertaking not to demolish the building was not considered to be of sufficient weight to remove the need to designate the site a conservation area. Firstly, the email was not in itself an undertaking, but rather an offer to enter into one. Secondly, the offer of the undertaking was conditional on meaningful discussions about the redevelopment of the site between the parties. What constitutes "meaningful discussions"? Thirdly, in the process of drawing up an undertaking, the building could have been demolished. Fourthly, the offer to enter into an undertaking has to be considered against the notice which had been served on the Authority on behalf of the claimants of the intention to demolish the building. Fifthly, an undertaking would have no worthwhile, legal force."

In his statement, Cllr Cohen merely states that the offer made did not provide an effective safeguard. While the rejection of the offer may not be a determinative factor in this claim, it nonetheless was of some importance. The only basis that has been put forward for not trusting the claimant was a report from a neighbour that 'attempts' had been made to remove trees over Christmas 2007. That was investigated and nothing wrong had been done: no tree subject to a TPO had been involved. It was, however, said that action taken over Christmas was suspicious. The reality is that there was no good reason not to trust the claimant. It is not suggested that they are other than reputable developers and the undertaking was provided by thoroughly reputable solicitors.

28. An application for planning permission as noted in Paragraph 11.4 of the supplementary report has been granted. This provides for retention and adaptation of the monastery and the construction of houses in the garden. Mr Griffiths submits that this underlines the fact that the only reason for the designation was to save the monastery building from demolition. There is force in that submission. Thus the monastery building will not be demolished and so to an extent the designation may be said to have achieved its objective. However, if it remains in place, it will affect any further development proposals and if it was unlawfully put in place the claimant is entitled to have it removed.
29. Mr McCracken accepts that if the site was not capable of forming a conservation area the designation cannot stand. He recognised that if the garden had been the size of a normal suburban garden it would have been difficult if not impossible to regard it as an area. But he submits that, albeit no exact precedent can be found, there is no reason why a site such as the monastery complex should not be properly regarded as a conservation area. The officer's report identified proper grounds for reaching the decision that it could be designated. He points out there is in Barnet another conservation area consisting of some farm buildings and fields, thus essentially one group of buildings and a surrounding open area. But those buildings are listed and the fields do not form their curtilage. Thus that designation does not assist the Council.
30. In June 2009 a booklet providing a character appraisal and management proposals was eventually produced by the Council. It is said that the gardens, although enclosed, remain a 'valuable asset both in terms of their visual appeal and in regard to their nature conservation importance. This open land is very secluded, despite abutting rear gardens and has a leafy character and peaceful ambiance amongst a busier and later suburban setting. Although the open space is largely hidden from public view, it provides an alternative setting to the monastery and other buildings and contributes significantly to the local distinctiveness and overall character and appearance of the conservation area'. The garden is in fact now singularly unattractive since all of it except for the protected trees has been cleared. And it is difficult to see what attraction it can have for those who inhabit the area save for its being undeveloped, since they have no access to the garden or, for that matter, to the monastery. It is said that the TPO trees and general ambiance of the "grounds" remain key natural assets and important for future character enhancement of the area. While the trees will be retained because protected by the TPOs, it is difficult to follow how residential development in the garden enhances the character of the area in terms of its being a conservation area.
31. I recognise that I must not approach this claim because I may disagree with the matters raised in the appraisal. Unless persuaded that the approach is perverse, a very high hurdle for the claimant to surmount, I must recognise that the judgment is for the Council to form. But that judgment must be based on a lawful approach.
32. Mr Griffiths submits that it is plain beyond any doubt that the purpose of designating was to save the monastery from demolition. I have set out the history and the e-mails which led to the officer's report in some detail because they show that he is undoubtedly correct. But Mr McCracken submits that that is not unlawful provided that the site was capable of constituting a conservation area. There is no duty to carry out an appraisal in advance, although he accepts that that should normally be done. There was a real threat that a locally listed building would be demolished and that would have spoilt the area if a designation had not been put in place. The need to protect the building did not dictate the designation, merely the time when it was made. If the appraisal had not supported it, the Council would have had to cancel it. But the appraisal did support it and whether or not it can be criticised it was not perverse for the Council to accept it.
33. It is in my judgment important to remember that the planning laws seek to balance the public interest in protecting the environment and the quality of life for those who inhabit particular areas against the right of owners to use their land as they wish. Buildings of national importance (which may in some cases be examples of buildings important locally which are found only in a particular area) are listed and cannot be adapted or demolished unless specific permission is obtained. Locally listed buildings do not have that protection. Perhaps somewhat curiously, they cannot be adapted, at least if their outward appearance is changed, because that would amount to development, but, unless dwelling houses, they can be demolished. This may seem undesirable and this case illustrates the possible need for consideration to be given to granting them some degree of protection by not excluding them from s.55(1A). But this means that it would be improper and unlawful to use the designation power to protect a building which the law has excluded from protection against demolition. That is why English Heritage's guidance states that designation should never be undertaken to protect a building which is not listed. That will be so unless there is a genuine conservation area of which the building forms a crucial part.
34. Mr Griffiths points out that the garden forms the curtilage of the monastery and so would have been protected by listing. Thus, he submits, the area now designated is no more than the unlisted building and its curtilage and so it is plain that it cannot properly be regarded as an area. The designation is in reality no more than a device to overcome the failure to persuade the Secretary of State that the building should be listed.
35. He has referred to R(Arndale Properties Ltd) v Worcester CC [2008] EWHC 678, a decision of Sullivan J. In that case the true purpose of designation of a conservation area was, it was submitted and Sullivan J accepted on the facts, not to protect the character or appearance of the area that was designated but to prevent the demolition of a cricket pavilion, which had been the pavilion on the original cricket ground used by Worcestershire County Cricket Club. The area designated could not conceivably have been regarded as a candidate for designation. Sullivan J concluded (Paragraph 47) that no reasonable local planning authority would sensibly have concluded that the area was either of special or historic interest, much less that it had a character or appearance which it was desirable to preserve or enhance. Thus there is, as Mr McCracken submits, an important factual distinction since this site did have a historic interest and it was the reasonable view of the authority that it had a character or appearance which it was desirable to preserve or enhance.
36. It is helpful to see the approach adopted by Sullivan J. In paragraphs 26 and 28 he agreed that there was nothing wrong in a desire to prevent the demolition of a building being the initial impetus for the decision to designate. But it must not be the impetus. In paragraph 34 he accepted that the desire to preserve a particular building could properly be considered an important factor in deciding that designation should be made as a matter of urgency. If the conservation area is being designated for proper reasons, the protection of a particular building within it could justify designation before an appraisal was carried out. But, as Sullivan J said in Paragraph 36(4):-

"But … one has to ask whether the tail is wagging the dog, that is to say, whether the desire to prevent the demolition of a particular building led to the designation of the conservation area, as opposed to the former being simply one, albeit an important, consequence of the latter."

37. Mr McCracken submits that in reality Sullivan J's observations support the Council's approach. A desire to prevent the demolition of the monastery can be a material factor which can justify urgent action. Sullivan J also confirmed that councillors could be expected to have local knowledge of the potential interest of some buildings within their area and designations could properly be based on local rather than national standards. But all depends on whether, as Sullivan J said, the desire to prevent demolition was in reality the true purpose of the designation rather than a desire to enhance or preserve an area. I am satisfied that Mr Griffiths is correct in submitting that this was no more than an attempt to achieve what the refusal to list had frustrated. That was in truth the purpose of the designation and the site could not properly be regarded as forming a conservation area.
38. It is significant that the Council had not, in carrying out its duty under s.69(2) and (3) to review past designations and decide whether any area should be designated, identified the site as one worthy of designation. It was only because listing was refused that the action in question in this claim was taken.
39. Mr Griffiths submitted that even if there were proper grounds for designation, the manner in which the exercise was carried out was unlawful. I have no doubt that the failure to trust the claimant to honour the undertaking was unreasonable and that discussions, which, as things turned out, bore fruit should have led to the decision being deferred and an appraisal being carried out. Mr McCracken submitted, that the perceived urgency which led to the designation was, if the designation was justified, a matter of timing. But it is significant, as the e-mails make clear, that the decision to designate was driven solely by the perceived need to protect the building and did not then depend on the justification for such designation. Mr Murray's e-mail of 18 July in which he says:-

"Don't worry about 'approval processes'. We'll sort that some how. The main thing is to get the report and designation processes going and a C.A. assessment which the Design and heritage Team can get moving on. I will speed up the clearance process and committee/cabinet."

makes all too clear that the suitability of the site to be regarded as an area to be designated was not then regarded as the reason for designation. While the decision was that of the committee, not of the officers, it was also clear that Councillor Cohen at least was involved at an early stage. Thus, even if in the end designation may be supportable, the manner in which it was reached was in my judgment unlawful since the purpose of the designation was improper.

40. In this case, as, I regret to say, in many, particularly planning disputes, that come before the Administrative Court, there was far too much documentation put before me. For example (apart from some unnecessary duplication) the whole 100 page UDP was included where only at most about 6 pages were material. There were three lever arch files running to over 900 pages. The necessary documentation could have been included in one file. It is essential that trial bundles should be agreed and should include no more than each party considers to be really necessary for the judge to have before him. When claims are lodged, it is, of course, necessary for the claimant to exhibit all obviously relevant documentation, which will include anything which may seem to be adverse. There is a duty of good faith and a failure to produce an adverse document may by itself justify refusal of permission once an Acknowledgement of Service identifies it. But other possibly or marginally relevant material need not be lodged. It should be disclosed to the other parties and should be brought to court in case it becomes necessary to look at it. The court is being overwhelmed with an excess of paper. I hope that costs judges will refuse to allow the party claiming for them the costs of producing such unnecessary material.
41. It follows that the designation must be quashed.