The owner of residential property located within a conservation area entered into a contract with the contractor to carry out demolition, refurbishment and reconstruction works to form a single residence out of two adjoining houses. The works commenced but were suspended after the local planning authority expressed the view that conservation area consent (“CAC”), which had not been sought by or on behalf of the owner, was required. The works recommenced a year later, the owner having by then applied for and obtained the relevant permission. The contractor issued proceedings seeking declarations that the owner bore the contractual responsibility for the delay, contending that the owner was contractually responsible, by reason of express and/or implied terms in the contract, for the intervention of the local authority. After the High Court and the Court of Appeal rejected the submission that the owner was under any absolute obligation to secure relevant planning permission, the contractor amended its case to contend that CAC was lawfully required on the basis that the building was being demolished within the meaning of section 74 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The judge held that the works amounted to demolition such that CAC was required. The owner appealed on the ground, inter alia, that the judge ought to have concluded, by reference to the underlying purpose of the statutory scheme relating to the establishment of conservation areas, that it was appropriate to consider whether the demolition to the building involved a significant and/or substantial impact on the character and appearance of the conservation area.
On the appeal—
Held, appeal dismissed. Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 did not require a planning authority (or court) when determining whether or not CAC was required (as opposed to whether CAC should be granted) to carry out a qualitative exercise by reference to considerations of character and appearance of the conservation area in question. Parliament was unlikely to have intended for the matters in section 72 to be considered twice in section 74, first when assessing the threshold question of demolition and secondly again for the purpose of considering whether or not to grant CAC. The concept of paying special attention to the desirability of preserving or enhancing the character or appearance of the conservation area was not apt in the context of a fact-specific exercise as to whether or not a building was being demolished but fit very neatly into a consideration of whether or not to grant CAC. Section 7(1) further pointed to the conclusion that considerations of character and appearance were not relevant to the assessment of demolition under the 1990 Act. Accordingly, there was no proper basis for interfering with the judge’s finding on the facts that the works amounted to demolition of the building for the purpose of section 74 of the 1990 Act (paras 70–72, 76–77, 88, 99, 100, 101).
Quaere. Whether “building” in Part II of the Planning (Listed Buildings and Conservation Areas) Act 1990 includes “any part of a building” (paras 79–80).
Vincent Moran QC, James Maurici QC and Tom Coulson (instructed by Eversheds Sutherland LLP) for the owner.
David Thomas QC, Rupert Warren QC and Matthew Finn (instructed by Pinsent Masons LLP) for the contractor.