Listed buildings, demolition and public benefits

Rose Grogan reviews a recent controversial case about the demolition of a listed building which pitted campaign groups against a council and a university.

The case of R (SAVE Britain’s Heritage and the Victorian Society) v Sheffield City Council and the University of Sheffield concerned a judicial review challenge to listed building consent granted for the demolition of the grade II listed Edwardian Wing of the Former Jessop Hospital in Sheffield to make way for a landmark new engineering faculty building at the University of Sheffield.

The challenge was based on an alleged misinterpretation of paragraph 133 of the National Planning Policy Framework (following the Supreme Court decision in Tesco Stores v Dundee City Council [2012] UKSC 13) and on an alleged failure to take into account material obtained by a Freedom of Information Act Request which showed that the planning officers had differing views as to the merits of the scheme. The case is also of interest because the claimants applied for a protective costs order and an interim injunction on the basis that the claim was an Aarhus claim and so the automatic costs cap and new rules on cross-undertakings in damages should apply.

The central challenge was the claimants’ allegation that the defendant had misinterpreted paragraph 133 of the NPPF, which states that: “where a proposed development will lead to substantial harm to or total loss of significance of a designated heritage asset, local planning authorities should refuse consent, unless it can be demonstrated that the substantial harm or loss is necessary to achieve substantial public benefits that outweigh that harm or loss…”

The claimant argued that the correct interpretation of this passage meant that the council should not have considered the substantial public benefits for the whole scheme in its analysis under paragraph 133, but instead that it should have only considered the substantial public benefits which were achievable only by demolition. The council should have considered whether the public benefits of the demolition scheme were so much greater than the public benefits which could have been achieved by a scheme which retained the listed building or its façade so as to justify demolition.

In the High Court on 27 June 2013, Supperstone J dismissed the claim on both grounds. In relation to the NPPF challenge, he held that the officer’s report was not misleading in its analysis under paragraph 133 of the NPPF but he did not directly address the question of interpretation.

The claimants appealed on the NPPF issue only and permission was refused on the papers on 3 July. An urgent oral renewal hearing took place on 4 July. The Court of Appeal (Sir David Keene and Longmore LJ) held that the officers had in fact addressed the extent of the benefits by complete or partial demolition or retention of the building. Sir David Keene held that the conclusion in the Officers’ Report was par excellence a matter of planning judgment.

The case also raised the issue of the scope of article 9 of the Aarhus Convention in planning cases, and therefore the scope of the new costs capping rules under the CPR. This case did not raise any EIA grounds of challenge (and so did not fall under article 9(2) of Aarhus) and so the question was whether it fell under article 9(3) as a challenge to an “act or omission” which contravened “the provisions of national law relating to the environment”.

At first instance, Supperstone J refused the claimants’ application for a PCO on the papers on the grounds that (i) article 9(3) is concerned with acts and omissions by public authorities, not decisions and (ii) the claim did not engage national law relating to the environment. The parties subsequently agreed interim costs positions in the High Court and Court of Appeal so the issue was not debated. However, it is an interesting and important point for another day and is likely to come before the court again in the near future.

Rose Grogan is a barrister at 39 Essex Street and appeared – together with Peter Village QC and James Strachan QC – for the University of Sheffield. Other members of 39 Essex Street also appeared: Richard Harwood QC for the claimants and Stephen Tromans QC on behalf of Balfour Beatty Construction Limited.