Thursday, 24 February 2011

Unlawful designation of a conservation area

They never learn, do they? I think this is the third case I have reported in which an LPA had the bright idea of designating a conservation area as a device for preventing the demolition of a particular building, where listing of the building in question had previously been ruled out. As in the other two cases, the Court quashed this designation on the application of the owner of the building. This latest case is Trillium (Prime) Property Group Ltd v. Tower Hamlets LBC [2011] EWHC 146 (Admin), in which judgment was given by Ouseley J on 4 February.

There had been a local campaign to prevent the demolition of the building, but English Heritage refused to list it. The Borough Council, through its officers, refused to put it on the Borough list of buildings of local interest. Local listing would not have hindered demolition but the refusal of listing reflected a view of the building's worth. Officers had previously concluded that this group of buildings should not form a Conservation Area, nor an extension to an existing Area nor part of a new and larger Area.

There was continuing pressure from local residents to prevent the demolition of the building because of its architectural and historic interest. The possibility of including it and four Victorian warehouses in a Conservation Area was re-examined by officers and the idea evolved that there should be a Limehouse Cut Conservation Area. An initial case for its designation was produced in July 2009 which was expected to be approved for public consultation on 4 November 2009. Further work was carried out by officers in anticipation of that timetable. However, on 29 September 2009, Trillium gave notice under the Building Act 1984 of its intention to demolish the building after 6 weeks (i.e. after 9 November 2009). Under the Council’s urgency procedure, a senior member approved the urgent consideration of the designation of a Conservation Area in view of what he was told was the imminent threat of demolition. The Council decided not to consult with Trillium or any of the other commercial building owners elsewhere along the Cut whose property would be included in the Area. This would have alerted Trillium to the urgent advantage of demolition. On 7 October 2009, the Council’s Cabinet designated the Limehouse Cut Conservation Area.

Trillium challenged this decision on the grounds that the purpose of the designation was to prevent the demolition of their own building and not the statutory purpose of protecting the special character and appearance of the area. Relevant considerations had been ignored, such as the previous refusals to include the building in question in a Conservation Area and the refusal to include the building in the local list. The report to Cabinet misrepresented the true nature of English Heritage's views on what a Conservation Area should comprise and relevant guidance in PPG15. Irrelevant considerations were taken into account, such as the protection of ecological and biodiversity, and the improvement of accessibility to the Cut. The report did not contain sufficient material to enable the Cabinet rationally to designate the Conservation Area on the boundaries it chose. The Council had acted unfairly and in breach of Trillium's legitimate expectation that it would be consulted on the designation of a Conservation Area affecting its building and proposed development. The decision to deal with designation as urgent was made without regard to relevant considerations. Finally, background papers were not listed in the report to Cabinet as they should have been.

Ouseley J dealt with all these issues in detail in a very thorough judgment. Trillium’s primary contention (as to the lawfulness of the proposal to designate the conservation area) was in fact rejected. However, the way in which the matter was put to members was flawed; the officers’ report was misleading. The report was significantly based on irrelevant considerations which were taken into account by members, and the report failed to give them the clear advice as to the proper basis for considering designation which they needed; they were misled as to the significance of local policy. The designation was therefore quashed on that basis.

In fairness to the Council, this case can be distinguished from the two previous cases, as the Court did not accept that the entire designation was tainted with illegality. It was really the process, and in particular, the officers’ report to the Cabinet, which was flawed, and which led to the designation of the conservation area being quashed. This suggests that, unlike the two previous cases, there may still be scope for the conservation area to be lawfully re-designated, provided the Council goes about it the right way.


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