Chambers & Anor v Guildford Borough Council

The High Court has jurisdiction to declare whether listed building consent is required, but that jurisdiction does not exclude the statutory planning processes. The initial decision ordinarily lies with the local planning authority, subject to appeal to the Secretary of State. Questions concerning whether a structure falls within a listing or its curtilage, and whether proposed works affect the character of a listed building, commonly involve mixed questions of fact and law. They are generally best resolved through the application and appeal procedures, where factual evidence and objections can be properly considered. The court retains a discretion to entertain or stay declaratory proceedings according to the convenience and suitability of the available procedure.

The claimants, owners of Colekitchen Farm, sought declarations concerning whether a pillbox near the farmhouse formed part of the listed building under section 1(5) of the Planning (Listed Buildings and Conservation Areas) Act 1990, and whether its removal would affect the building’s character under section 7.

The local planning authority had refused listed building consent. The claimants did not appeal, but brought Part 8 proceedings. A preliminary issue was ordered concerning whether a declaration could be determined before consideration of an application by the planning authority and, if necessary, the Secretary of State. The parties accepted that the court had jurisdiction; the central issue was whether the court should exercise it in the circumstances.

1. Jurisdiction. The court had jurisdiction to make declarations concerning the need for listed building consent. That jurisdiction was concurrent with, and did not exclude, the planning authority’s and Secretary of State’s functions.
2. Initial decision-maker. It was implicit in the statutory scheme that the planning authority, and subsequently the Secretary of State on appeal, could determine whether consent was necessary in an individual case. That included questions whether the structure was included in the listing, whether it fell within the curtilage under section 1(5), and whether the proposed works affected the character of the listed building.
3. The absence of an express procedure equivalent to sections 191–193 of the Town and Country Planning Act 1990 did not mean that such questions had to be determined first by the High Court. It would be impractical for every dispute about the scope of a listing to require separate court proceedings before the planning process could continue.
4. The issues concerning curtilage and the effect of the proposed works were mixed questions of fact and law. They might require evidence about history, site relationships and other matters, including evidence from objectors or experts. The ordinary planning procedures were therefore the better means of resolving the issues.
5. The proceedings were stayed to enable the claimants to make a fresh application for consent and, if necessary, appeal against the resulting decision. Either party could apply to lift the stay if an insuperable technical difficulty prevented all necessary issues from being determined through the planning process. The court reserved the form of the order.

First-instance proceedings. No appellate history was stated in the judgment.