Metro Construction Ltd. v London Borough of Barnet

The power to designate a conservation area must be used to preserve or enhance an area of special architectural or historic interest. It cannot lawfully be used solely to protect an unlisted building from demolition. The building may be an important feature of a genuine conservation area, and the threat of demolition may justify urgent designation, but the area must independently qualify for designation. A character appraisal should normally precede designation, although an imminent threat may justify designation first where the authority reasonably considers that the statutory test is met. The decision must also be reached for the statutory purpose and on a lawful evidential basis.

The claimant owned a former Carmelite monastery and its surrounding garden. After the Secretary of State declined to list the building, the London Borough of Barnet designated the site as a conservation area under section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990. The claimant sought judicial review, alleging that the designation was made principally to prevent demolition of the unlisted monastery and was therefore an improper use of the statutory power.

The central issues were whether the site was capable of constituting a conservation area, whether designation could properly be prompted by the threat to the monastery, and whether the decision-making process was lawful.

1. Claim allowed. The designation of the monastery and garden as a conservation area was quashed.
2. Section 69 of the Planning (Listed Buildings and Conservation Areas) Act 1990 permits designation only where the area is of special architectural or historic interest and its character or appearance is desirable to preserve or enhance. The power cannot be used as a device to give an unlisted building protection against demolition which Parliament has not otherwise provided.
3. The desire to prevent demolition may be a material consideration and may justify urgent designation where a genuine conservation area exists. It cannot, however, be the true purpose of designation. The relevant question is whether the desire to prevent demolition is merely an important consequence of designation, or whether it has caused the designation itself.
4. The court accepted the approach in R(Arndale Properties Ltd) v Worcester CC [2008] EWHC 678, including the distinction between a proper conservation-area designation and an attempt to prevent demolition of a particular building. The present site was materially different on its facts, since it had some historic interest, but the evidence showed that the actual purpose here was to protect the monastery after listing had been refused.
5. The authority’s failure to trust the claimant’s undertaking not to demolish was unreasonable. The decision was driven by the perceived need to protect the building, rather than by an independent assessment of whether the site qualified as an area. The absence of an appraisal before designation, together with the documentary history, reinforced the conclusion that the statutory purpose had not been observed.
6. The designation was therefore unlawful and was quashed.