England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/04/2008

Mr. Justice McCombe:

(A) Introduction
 


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

"The Claimant seeks a declaration that:

(a) the listed building known as Colekitchen Farm House, Colekitchen Lane, Gomshall, Surrey does not include (within the meaning of section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990) the pillbox located some 3.4 meters to the south of the southern corner of the Farm House, and

(b) if it does, that the removal of the pillbox would not constitute an alteration of that listed building in a manner that would affect its character as a building of special architectural or historic interest (within the meaning of section 7 of that Act)."

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

"may an application for a declaration as to the need for listed building consent be determined before an application for consent has been considered by the planning authority and (if necessary) the Secretary of State?"

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

(B) Background Facts

4. The Claimants are the owners of property and land situated at and known as Colekitchen Farm, Colekitchen Lane, Gomshall, Surrey ("the Property"). The Defendant is the local planning authority.
5. The principal building on the Property is a farmhouse built in the 17^th Century. About 3.4 metres to the south of the farmhouse is a pillbox constructed in about 1940 as part of the national defences during the Second World War. The Claimants now wish to remove the pillbox.
6. On 21 May 1985, pursuant to the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Act"), the Secretary of State made a "listing" in the following terms:

"TQ 04 NE SHERE CP COLEKITCHEN LANE Gomshall 5/191 Colekitchen Farm House II House. C17, extended and refaced in C18. Timber frame clad in red and brown brick to right, red and blue brick to left plain tiled roofs with vertical and diamond pattern tile hanging to left hand gable. Two storeys and attics in gables. End stacks to right and left, corbelled to right. Irregular casement fenestration with two cambered head casements to both floors on the right, one to each floor in gable bay to left. Plat band over ground floor of gabled cross wing. Half-glazed door to left and part-glazed door to right of centre, both under pentice roofed porch – part-tiled and part plastic roof on "rustic" wood supports. Gabled wing to rear with pentice to ground floor left. Single storey brick and weatherboarded corrugated metal roofed extension to rear left."

The Claimants contend that that listing does not include the pillbox.

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

"Following the end of hostilities the pillbox became a redundant feature on the landscape and is currently in a very poor condition with much of the brickwork spalling or fallen

It can be accepted in part that the pillbox falls under the grade II curtilage listing of Colekithchen Farm as it was constructed prior to July 1948 and according to our information was in the same ownership as the farm at the time of listing.

It is our understanding that for the pillbox to be considered curtilage listed it must form an intimate relationship with Colekitchen Farm and be ancillary or subordinate to this principal listed building.

However, in our opinion, the pillbox structure does not form an intimate ancillary or subordinate relationship with the principal listed building or the physical layout of the site and at no time has it served the purpose of the house in some necessary or useful way. In essence, the structure has at no time since its erection been utilised in the day to day running of Colekitchen Farm and has indeed been a redundant structure since 1945."

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

"The pillbox is a curtilage listed building within the grounds of Colekitchen Farm and is an important historic feature of both the listed building and the wider area, where it formed part of the national GHQ line. There is no clear or overriding justification for the removal of the pillbox. Furthermore, the removal of the pillbox, which is likely to require substantial demolition machinery, could have a significant and adverse impact on the immediately adjacent principal listed building. The proposal is therefore in strict conflict with Policy HE3 of the Guilford Borough Local Plan, Policy SE5 of the Surrey Structure Plan 2004 and advice contained in PPG15."

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

(C) The Act

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

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

(a) any object or structure fixed to the building;

(b) any object or structure within the curtilage of the building which, although not fixed to the building, forms part of the land and has done so since before July 1, 1948, shall be treated as part of the building." ^[1]

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

"Subject to the previous provisions of this Part, the local planning authority or, as the case may be, the Secretary of State may grant or refuse an application for listed building consent and, if they grant consent, may grant it subject to conditions. "

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

"The notice of appeal may include as the ground or one of the grounds of the appeal a claim that the building is not of special architectural or historic interest and ought to be removed from any list compiled or approved by the Secretary of State under section 1."

(D) The Arguments

13. The Claimants, by Mr. Mynors, argue that there is no statutory procedure enabling a land owner to find out, in case of doubt, whether listed building consent is required for intended works. There is, in particular, no equivalent in the Act to the procedure in sections 191-193 of the Town and Country Planning Act 1990 whereby a land owner may find out whether planning permission is required. Accordingly, that matter is one for the courts to decide. The Defendant, for whom Mr. Albutt appears, contends that such an issue can be decided on a statutory appeal against the refusal of consent either on the basis that the structure in issue should be "de-listed" under Section 21(3) or generally as to whether it is subject to the listing at all. Mr. Mynors submits that the procedure envisaged by Section 21(3) does not provide for a case where the issue is whether the structure in question is subject to listing at all. Indeed, initially with some hesitation but later with more enthusiasm, he went so far as to submit that neither the planning authority, nor the Secretary of State on an appeal, has jurisdiction to decide whether listed building consent is necessary. Each, he submitted, was confined to deciding whether consent should be granted, making the assumption that such consent was required.^[2]
14. In evidence, the Claimants' planning consultant states that in his experience Inspectors tend to operate on the basis that if an application for listed building consent has been made it must be determined whether or not such consent is required by law. The evidence of the Defendant's solicitor is to the contrary. He submits that Inspectors give full weight and attention to all the arguments and states that he fails to see how an Inspector in this case could disregard the Claimants' contention that the pillbox is not subject to the listing. He produces an Inspector's decision delivered in November 2006 where such an issue was addressed and decided. Mr. Mynors meets this submission by pointing out that the case in issue involved enforcement proceedings in respect of which, in Section 39(c), the Act allows an appeal on the basis that the works in question do not contravene of Section 9, which would include any question of whether listed building consent was required for the works in issue.
15. Mr. Mynors further submits that, in the present case, where there have been several objections to the proposed removal of the pillbox, the appeal procedure may be lengthy and expensive and may still require in the end the Court's adjudication on the question of whether listed building consent was ever required at all. Mr. Albutt argues, however, that the question whether the pillbox does fall within the curtilage of the listed building is a mixed matter of fact and law which it is appropriate for an Inspector to resolve, if necessary having heard oral evidence, including that of any objectors.
16. Each party has referred me to a passage in the judgment of Schiemann LJ in Thames Heliports PLC v London Borough of Tower Hamlets (1996) 74 P&CR 164, 167 in the following terms^[3]:

"There is a subsidiary matter which pervades this case, namely that many questions in planning law depend on an evaluation of facts which the legislature has entrusted initially and primarily to the planning authorities including the Secretary of State. In general in this type of case the courts' jurisdiction is invoked after the decision has been made by a planning authority when it is sought to control the legality of that decision. While the jurisdiction of the courts to make anticipatory declarations in planning matters before any evaluation has been done by the planning authorities is undoubted, the court will be extremely cautious in making pronouncements at such an early stage. In particular the court will not make judgments in relation to questions of mixed fact and law which are primarily entrusted to planning authorities.

It has to be born in mind that Parliament has provided in section 192 of the Town and Country Planning Act 1990 a mechanism for the citizen who wishes to discover whether a proposed use of buildings or other land would be lawful under the planning legislation. In general it will be appropriate to use that method rather than come to the courts for the answer. However, Mr Fitzgerald, QC and Mr Widdicombe, QC submit that the court can by its judgment at this stage help the planning process function more smoothly and efficiently. As will appear, I consider that up to a point it is indeed convenient for the court to make declarations at this stage. I record in passing that the Secretary of State has been asked by the parties whether he wishes to be joined in these proceedings but has taken the view that this would be inappropriate."

17. There is no dispute that the Court does have jurisdiction to make declarations of the type now sought. The only questions are whether the Court's jurisdiction is exclusive and, if not, whether proceedings in Court for a declaration are or are not the better manner in which to resolve the present issues in preference to leaving the matter to be resolved on an appeal.
18. On the first question there is no authority. The second question, if it arises, is simply a discretionary one as to the most convenient procedure to be adopted in the present case.

(E) Discussion

19. There is no doubt that initially both the Claimants and the Defendant assumed that the Defendant and the Secretary of State on appeal had jurisdiction to decide whether the pillbox was subject to the listing made in 1985 for the purposes of the Act. The application addressed argument on the point. The planning department's report expressed a view upon it, based on legal advice obtained, and the Defendant's decision expressly dealt with the issue. Equally, there is no doubt that planning authorities and the Secretary of State on appeal (through the inspectors) routinely decide issues of law arising in matters before them under the Planning Acts. It would perhaps be strange indeed if in each case where an issue arose as to whether a particular structure was or was not the subject of a listing it would be necessary to resort to the Court before the planning authority could decide a consent issue and before any appeal could be launched.
20. In City of Edinburgh Council v Secretary of State for Scotland [1997] AC 1447 the House of Lords considered the parallel provisions under the Scottish legislation. There the Reporter (the Inspector in English terminology) had decided that a former riding school building had not been included in a larger listed building definition for the purposes of the Scottish Act and that, therefore, listed building consent had not been required. The Reporter had not gone on to consider the merits of the consent application for the event that his decision on the first point was wrong. The Court of Session and their Lordships' House disagreed with the finding that consent was not required. The question of the Reporter's jurisdiction to decide the point was alluded to in passing by two of their Lordships, but without decision on the matter. At p.1451A-C Lord Hope of Craighead said,

"The applicants' argument was that the list of buildings of special or historic interest which the Secretary of State for Scotland has compiled under section 52 of the Act of 1972 did not include the former riding school at Redford Barracks and that the Reporter was entitled to make a finding to this effect. Their approach was that the question whether the building was a listed building was a question of fact which the Reporter was entitled to decide as part of the case which was before him in the appeal against the refusal of listed building consent. Yet it became clear in the course of counsel's argument that the issue which the applicants regard as one of the facts depends upon the proper construction of the entries in the list. So it seems to me that the underlying question – if it is truly one of construction – is one of law. "

He continued a little later as follows (at pp. 1451G-1452A) as follows:

"… in this case what the applicants wish to do is to demolish the building, so a separate application for listed building consent under Schedule 10 to the Act of 1972 was required. Paragraph 7(2) of that Schedule provides that a person appealing against a decision by the local planning authority to refuse consent may include in his notice as the ground or one of the grounds of his appeal a claim that the building is not of special architectural or historic interest and ought to be removed from the list. But there is no provision in that Schedule or elsewhere in the Act which enables a person aggrieved to include as one of his grounds of appeal that the building to which his application for consent relates is not included in the list as a listed building. The Act assumes, in regard to the statutory procedures, that the question whether or not the building is a listed building can be determined simply by inspecting the list which the Secretary of State has prepared."

21. In the same case, Lord Clyde said this:

"The matter of listed building consent can conveniently be dealt with at the outset. It has been seen and treated as a distinct and separate issue from that of the planning permission. The Reporter considered a preliminary question whether listed building consent was required for the demolition of the former riding school building. It has not been suggested that he was not entitled to explore that question and I express no view on the propriety of his doing so. "

22. This case appears to be the closest that the courts have come to considering the jurisdiction question now raised by Mr. Mynors. As can be seen, no decision was reached on the point and it seems never to have arisen again in the intervening decade.
23. Mr. Mynors submits that the inclusion of Section 21(3) in the Act (permitting an appeal to be brought on the grounds that the building is not one of special architectural and historic interest) indicates that the logically prior question of whether the structure in question is subject to the listing at all is excluded from any appeal procedure.^[4] For my part, I do not consider that section 21(3) assists Mr. Mynors. It seems to me that the section is clearly opening up a ground of challenge that would otherwise be clearly outwith the appeal process, namely that a building that is undoubtedly subject to a listing should be "de-listed".
24. It is accepted by both parties that, in some cases, where an application for planning permission is refused, on appeal the appellant can argue that although application for permission has been made, the land already benefits from a permission which does not require consent. Mr. Albutt referred to this as the "fall back position" often taken on an appeal where an applicant argues that he already has permission for a particular activity on the site and offers his consent to enter an agreement under section 106 of the Planning Act to desist from that activity if the application is granted. In such a case, he submits, the Inspector clearly has jurisdiction to decide whether the first activity is already subject to such an existing permission.
25. Again, it is argued, an Inspector can be asked in appeal proceedings whether land is "curtilage land" for the purposes of deciding whether or not it is previously "developed land". For example, it is well known that applications for housing development are more favourably entertained in respect of land which has previously been developed than in cases of undeveloped land. In such a case the Inspector may well have to decide whether the land in issue was indeed part of the curtilage of a previously developed site.
26. Mr. Mynors meets these points by saying that this type of question is merely an "incidental" to the issue an Inspector has to decide, namely whether permission should be granted for a new activity. It is not a question going to the "fundamental" issue of whether a consent or permission is required at all about which the Acts are silent.
27. Mr. Mynors helpfully set out in his written argument five issues that have to be determined in cases of the present type. These appear in paragraph 9 of that paper.

"1. Is the building in question "a building included in the list" under section 1(1) of the Listed Building Act?

2. If it is, does it possess sufficient architectural or historic interest to justify being included?

3. If it is not, is it included within a listed building by virtue of section 1(5) of the Act?

4. If it constitutes all or part of a listed building by virtue of either section 1(1) or section 1(5), do the proposed works constitute either:

(a) demolition of the listed building, or

(b) works for the alteration or extension of the listed building in a manner that affects its character as a building of special architectural or historic interest?

5. If the answer to question 4 is "yes", should listed building consent be granted?"

Of those issues it is only issues 2 and 3 that fall for consideration on the present application. However, it seems to me that issue 1 is of a juridically similar nature. It raises the question whether the listing includes the structure in issue. It seems to me that it can hardly have been intended by Parliament that the planning authority or an Inspector would be precluded from simply finding that the structure in question was simply not part of the listed description at all, even if all that that question turned upon was a matter of words, to be construed in the light of the facts as known.

28. It seems to me extraordinary also that Parliament would envisage that a dispute of the present kind should be decided in High Court proceedings, then leaving other issues that may arise on an application to the usual planning processes.
29. Mr. Mynors helpfully referred me to the speech of Lord Keith of Kinkel in Debenhams plc v Westminster City Council [1987] AC 396, 402G-403H. The passage cited concluded with the following:

"All these considerations, and the general tenor of the second sentence of section 54(9) satisfy me that the word "structure" is intended to convey a limitation to such structures as are ancillary to the listed building itself, for example the stable block of a mansion house, or the steading of a farmhouse, either fixed to the main building or within its curtilage. In my opinion the concept envisaged is that of principal and accessory."

It seems to me that the concepts of "principal and accessory" and "ancillary" are classically matters that Parliament would have expected to be determined in the normal planning processes, rather than in separate and distinct proceedings in court outside those processes.^[5]

30. In the end, I think that it is clear that those concerned in planning matters have for long worked on the assumption that the planning processes are available for determination whether listed building consent is necessary in any individual case. That assumption was made without question all the way to the House of Lords in the Edinburgh case in 1997 and, although their Lordships did not decide the issue, there is no suggestion that they were in any way concerned that the Reporter had addressed the question of whether consent was required at all. In the intervening years Parliament has not chosen to intervene and there has been no hint from the Secretary of State that such decisions are not ones that should be left to Inspectors. For my part, for reasons already explained, it would seem to me to be highly inconvenient that such questions should routinely have to be decided by the courts before the substantive points could be addressed. In my judgment, it must be implied, therefore, that the initial decision on whether consent is necessary is one for the planning authority and, subsequently if necessary by the Secretary of State on appeal. I find that the High Court's jurisdiction in these questions is not a jurisdiction that excludes these decisions from the planning processes.
31. The next question is whether it is appropriate in this case for the issues now raised to be decided in these Court proceedings or in some other manner.
32. It is accepted by all that the initial issue of difficulty in this case is that raised by Mr. Mynors' issue 2 (the application of Section 1(5) of the Act – objects and structures attached to a building or within its curtilage). He accepts that this is a mixed question of fact and law and that this issue might require extensive factual analysis and evidence. He accepts that the same applies to issue 3 (whether the works constitute alteration or extension of a listed building in a manner that affects its character as a building of special or historic interest). (See paragraphs 12 and 42 of the claimants' written argument.) Equally, it can be seen from the passage from Lord Keith's speech in the Debenhams case above that the Section 1(5) issue does raise mixed questions of fact and law. On such matters, as Mr. Albutt argues, evidence may well be necessary on matters of history and background from local people and possibly experts. It is submitted that the present proceedings in which only the authority is represented such issues may not be adequately ventilated.
33. I have not the slightest doubt that, if at all possible, the better way of resolving all the issues in this case, including those covered by the declarations sought, would be through the normal planning processes of application and appeal. As already mentioned, I understand that any appeal from the Defendant's decision of last year would now be irretrievably out of time. Equally, the Defendant has made it clear before me that there could be no objection to the issues being raised on a fresh application and, thereafter, if the result is the same, on an appeal. Equally, the Defendant says that, for its part, it would not seek to contend that neither it nor the Secretary of State could resolve any of these questions. The Defendant cannot, of course, bind either the Secretary of State or any objector. However, that does not seem to me to be a good reason for not endeavouring to constitute a procedure that is best equipped to deal with these issues if at all possible. It would, however, be regrettable if, by a technical objection taken later by parties not represented before me, issue 1, 2 (and perhaps 3) in Mr. Mynors' list were ruled inadmissible on a fresh application and/or appeal.
34. What I propose to do, therefore, is to stay the present proceedings for the time being with a view to a fresh application for consent being made and an appeal being brought from any refusal (if the claimants were so advised), with permission to either party to apply to remove the stay in the event that any insuperable technicality should prevent all necessary issues being decided. I would regard it as unfair to the present Claimants, who have behaved entirely responsibly throughout^[6], if they were precluded from getting a proper answer, in one way or another, to the questions now in issue either from the planning processes or the Court. The stay of proceedings that I propose seems to me to be the best manner of achieving this. I will, of course, hear Counsel on the appropriate form of order.

Note 1   For the purposes of the Act the term “land” is defined by s. 336 of the Town and Country Planning Act 1990 as, “ “land” includes any corporeal hereditament, including a building, and, and in relation to the acquisition of land it includes and interest in or right over land”: see s.91(2) of the Act.    [Back]

Note 2   It was accepted by Mr. Mynors that the decisions could involve any of those expressly envisaged in Section 21 of the Act, but none of those involved a decision as to whether the structure in question was or was not subject to the listing in the first place.    [Back]

Note 3   The case concerned an application by the plaintiffs for a declaration whether or not the provision of a floating heliport facility constituted a material change of use in land and was or was not “development” requiring planning permission under s.55 and 57 of the Town and Country Planning Act 1990. The parties there were agreed that the declaratory proceedings in court could assist the planning process, even in the face of an express statutory procedure for resolution of the question, and on that basis the court was prepared to make limited declarations.    [Back]

Note 4   In the same context he also referred to Article 48 of the Northern Ireland (Planning) (Northern Ireland) Order 1991 introducing a procedure whereby a person wishing to find out whether works would involve the alteration or extension of a listed building may apply to the Department to determine the question. Again, the express procedure enacted here, Mr. Mynors submits, indicates that the more general question here is not a matter for the Department in Northern Ireland or for the Secretary of State in England.    [Back]

Note 5   Mr. Mynors was anxious to point out to me the passage at p. 403C in Lord Keith’s speech where he said that, “…in the context of section 54(2) [of the 1971 Act] the word “structure” is not intended to embrace some other complete building in its own right”. Mr. Albutt submits that this short comment is really only re-stating the “curtilage” problem and is certainly not decisive of the issue in this case. In any event, of course, I am not being invited to consider the substantive issue in the proceedings.    [Back]

Note 6   Not to dwell too lengthily on the absence of any letter before action in advance of the issue of proceedings.    [Back]