Future High Street Living (Staines) Limited v Spelthorne Borough Council

A local planning authority must base designation or extension of a conservation area on the statutory criterion of an area’s special architectural or historic interest. Protecting a particular unlisted building may prompt a review, but cannot be the designation’s true purpose.

Where consultation representations are not considered at the proper time, a later review must genuinely reconsider the decision with an open mind. A report which starts from the existing decision and asks whether the representations justify changing it will not ordinarily cure the error. Relief may be withheld under section 31(2A) of the Senior Courts Act 1981 only where the requisite high degree of inevitability is established.

The claimant owned a former department store and sought to demolish it and redevelop the site. The defendant local planning authority extended a conservation area to include the building, nearby shops and part of Memorial Park.

The claimant sought judicial review, alleging improper purpose, failure to consider consultation representations, materially misleading officers’ reports, and an unlawful reconsideration through a supplementary report. The central issues were whether the authority had lawfully exercised its conservation-area functions, whether the later report cured the consultation failure, and whether relief should be refused under section 31(2A) of the Senior Courts Act 1981.

1. Grounds 2 and 4 succeeded. The authority failed to consider the claimant’s consultation representations before extending the conservation area. Its supplementary report did not provide a legally satisfactory reconsideration.
2. The report’s assertion that the boundary had been considered afresh was contradicted by its substance. It treated the original decision as the starting point and asked whether the representations were sufficiently persuasive to justify changing it. That was impermissible ex post facto reasoning, particularly given the decision’s material effect on the claimant’s ability to demolish the building.
3. The report also failed properly to engage with the representations concerning Historic England’s refusal to list the building. The distinction between statutory listing and conservation-area designation did not remove the relevance of the building’s architectural quality where the appraisal relied heavily on that quality.
4. Section 31(2A) of the Senior Courts Act 1981 did not justify refusing relief. There was more than a fanciful prospect of a different outcome if the decision were taken lawfully. There was therefore no proper basis for withholding a remedy.
5. Ground 3 succeeded. The officers’ reports were materially misleading because they omitted Historic England’s refusal to list the building and the previous failures to include it on the local list. Members required a fair and balanced analysis of the building’s architectural worth.
6. Ground 1 failed. Applying the approach in Arndale Properties, Metro Construction, Trillium and Silus, the evidence showed that preventing demolition was an impetus for the review, but not its improper primary purpose. The authority genuinely considered that the statutory criteria were met.
7. The judicial review succeeded on grounds 2 to 4. The decision was quashed.

Not an appeal. The judgment determined a first-instance judicial review claim.