| PLANNING — Listed building control — Claimants’ farmhouse listed building — Wartime pill box situated near listed building — Local planning authority refusing claimants’ application for listed building consent to demolish pill box — Claimants seeking declaration from High Court that pill box not part of listed building — Whether local planning authority and Secretary of State having jurisdiction to determine whether pill box listed — Whether High Court more appropriate forum to resolve dispute — Planning (Listed Buildings and Conservation Areas) Act 1990
Chambers v Guildford Borough Council [2008] EWHC 826 (QB); [2008] WLR (D) 125
QBD: McCombe J: 22 April 2008
The question whether a building was listed for the purposes of the Planning (Listed Buildings and Conservation Areas) Act 1990 could be determined by a local planning authority and, on appeal, by the Secretary of State.
McCombe J so held in the Queen’s Bench Division, when staying a claim issued by the claimants, Peter and Emma Chambers, for a declaration that a pill box located on their farm did not come within the listing of their property made by the Secretary of State on 21 May 1985 and that they did not therefore need listed building consent from the defendant local planning authority, Guildford Borough Council, in accordance with the Planning (Listed Buildings and Conservation Areas) Act 1990 in order to demolish the pill box.
McCOMBE J said that it was common ground that the High Court had jurisdiction to make a declaration as to whether the pill box was listed or not. The question was whether the High Court’s jurisdiction was exclusive and, if not, whether proceedings in the High Court for a declaration were or were not the better manner in which to resolve the present issues in preference to leaving the matter to be resolved ultimately on appeal to the Secretary of State. The claimants argued that neither the local planning authority, nor the Secretary of State on appeal, had jurisdiction to decide whether listed building consent was necessary. Each was confined to deciding whether consent should be granted, making the assumption that such consent was required. In his Lordship’s judgment the concepts used in the 1990 Act to determine whether or not a building was listed were classically matters that Parliament would have expected to be determined in the normal planning process, rather than in separate proceedings in the High Court. It should be implied, therefore, that the initial decision on whether consent was necessary was one for the planning authority and subsequently if necessary by the Secretary of State on appeal. The High Court’s jurisdiction in these questions was not an exclusive jurisdiction. In the circumstances the better way of resolving all the issues in the present case would be through the normal planning process. The proceedings were therefore stayed 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.
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