Case No: C1/2013/1800
Neutral Citation Number:  EWCA Civ 1108
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE SUPPERSTONE)
Royal Courts of Justice
London WC2A 2LL
Thursday, 4 July 2013
B e f o r e:
LORD JUSTICE LONGMORE
SIR DAVID KEENE
SAVE BRITAIN'S HERITAGE AND ANOTHER
SHEFFIELD CITY COUNCIL
(DAR Transcript of
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Mr Richard Harwood QC (instructed by Richard Buxton Environment and Public Law) appeared on behalf of the Appellant
Mr James Strachan QC, Miss Rose Grogan and Mr Richard Ground (instructed by Pinsent Masons and Sheffield City Council) appeared on behalf of the Respondent
J U D G M E N T
(As Approved by the Court)
SIR DAVID KEENE:
1. This is a renewed application for permission to appeal against a decision of Supperstone J, who on 27 June 2013 refused permission to seek judicial review. The notice seeking permission to appeal to this court was filed on 1 July. Permission was refused on the papers on 2 July and a renewal notice was received by the Court of Appeal office on 3 July. I merely mention those dates to indicate that, today being 4 July, one can see the ability that the court does have when required to get things on quickly and at short notice.
2. The applicants want to judicially review a decision of the local planning authority, Sheffield City Council, to grant listed building consent for the demolition of a grade II listed building, namely the Edwardian extension of the former Jessop Hospital for Women. The University of Sheffield, the second respondent, had applied for that consent as well as for planning permission to construct a new five storey and basement building of almost 19,500 square metres of educational floor space for university purposes. The planning permission itself had been granted for the new building in December 2012, but the listed building application returned to the relevant committee of the Council on 25 February 2013. The committee decided to grant listed building consent subject to the Secretary of State not calling in the application for his own determination. On 25 March 2013 the Secretary of State notified the authority that he was not calling in the application, and the formal notice of listed building consent was issued on the same day.
3. The first issue which arose before Supperstone J was that of delay in commencing proceedings. The claim form seeking permission to apply for judicial review was filed on 11 June 2013, and it can be seen from the dates to which I have already referred that that was some 2 and a half months after the formal consent and over 3 and a half months after the Committee decision. The relevant provision of the Civil Procedure Rules, CPR 54, deals with judicial review procedure and CPR 54.5(i) provides:
"(1) The claim form must be filed -
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose."
4. It can be seen that the requirement to file a claim form promptly is specifically and separately referred to in that provision and this court has said repeatedly that the test is one of promptness and that a party may fail to meet that test even though it files its claim within the three months period. The respondents accept that the three month period itself runs from the decision notice in March. The question of promptness has to be seen in the light of the knowledge of the claimants and the history of the proceedings. The planning permission for the redevelopment scheme, which involved the demolition of this listed building, had been granted back on 18 December 2012. It seems that prior to that even, the Victorian Society, one of the present applicants, had written to the Council setting out its objections to the proposals. So this is not a case of an applicant suddenly becoming aware late in the day of something which was proposed.
5. Supperstone J's judgment is not available to us yet in a full transcript form but we do have a note of it prepared by the applicants' solicitors for which I would express the gratitude both of myself and I am sure my Lord. It seems that the judge found that there had been delay which was not justified, but he decided not to refuse permission on that ground alone. Today Mr Harwood seeks to explain that there were good reasons for that delay because of problems about the locus of the first applicant, Save Britain's Heritage, and because there were concerns about a cost protection order. In addition, the applicants, both of them, had to make decisions as charitable bodies which requires trustees to meet.
6. I am bound to say, for my part I do not regard any of those points as establishing a proper reason for allowing so much time to elapse, particularly on the part of a body such as Save, which is an experienced litigator in planning matters.
7. I take the view, as did the judge below, that there has been inexcusable delay. However, like him, I propose to consider the merits of this claim before arriving at any final conclusion on the present application.
8. I turn therefore to the merits. There is just one ground now of appeal, which it is worth quoting in full:
"The learned judge erred in law in failing to grant permission to apply for judicial review on ground 1 that the Council failed to consider whether there were substantial public benefits which justified the exceptional course of authorising the demolition of the Listed Building when compared with the benefits of the scheme for a New Engineering Building which would have retained the Listed Building. The decision was therefore unlawful because the Council misinterpreted government policy, failed to have regard to it (by attempting to take it into regard but not doing so), failed to apply statutory duty under section 16 of the Listing Buildings Act or acted irrationally."
9. It will be seen that the second sentence of that ground, alleging unlawfulness in various guises, depends upon the proposition in the first sentence, namely that the Council failed to consider whether there were substantial public benefits justifying demolition of the listing building when compared with the benefits obtainable by less demolition or no demolition. That therefore is the crucial issue: was there such a failure?
10. Mr Harwood refers in his submissions to the National Planning Policy Framework, which requires substantial public benefits that outweigh the lots of a listed building to be shown, if consent is to be granted. But his real point is that the Council did not ask whether the extra benefits to the public obtainable by demolition over and above those obtainable by a less drastic course were enough to justify the listed building consent which was granted. He says that it asked the wrong question, or at least failed to ask the right one.
11. It will have been appreciated from what I have said that the university's purpose in promoting the permitted scheme was to provide a new building for its engineering faculty. According to the officer's reports, the university's faculty of engineering currently ranks third in the United Kingdom behind Imperial College and Manchester, and is a world leader in terms of its research as assessed by independent assessors for the higher education funding Council. The faculty has grown by 38 per cent in the last four years and needs space for future expansion. In addition, much of its existing accommodation is in poor condition.
12. All in all, it wishes, as the officers reported, to achieve what was described as "a world class engineering faculty", and to this end it sought to produce 19,500 square metres of new faculty space by 2016/2017 by means of this New Engineering Building (NEB). There can be no doubt that the university's advisers and the Council, through its officers, did consider options other than full demolition of the Edwardian wing, including indeed other sites entirely. These various options are referred to in the officer's reports to committee. I say "reports" in the plural because the more detailed report was that to the December 2012 meeting with a briefer one to the February 2013 committee meeting. Clearly, as Mr Harwood acknowledges, they need to be looked at together. They state:
"A range of options have been explored with the University to see whether the requirements of the brief could be met on the Jessop East site by either:
- retention of the facade of the Edwardian wing; or
- full demolition."
13. Those reports show that the officers bore in mind that the grade two building was structurally sound. There was also a cleared area to the east of that building, but an area that was too limited in extent to achieve an acceptable result. To come up with the required floor space would have meant a ten storey building, which was seen as unacceptable both visually and in terms of its function. As I have noted already, one other option was to keep the facade of the listed building and to develop behind it.
14. The officer's report says this:
"It was made clear that the Council would only consider full demolition if the University could demonstrate that the first two options were not feasible. The University have a very clear brief that requires 19,500 square metres of new space by the 2016/17 academic year or it will significantly impact on its growth potential and delivery of the most efficient functioning of the Faculty. This is a significant driver in considering whether alternative options on the site will be acceptable.
Clearly, retention of the Edwardian wing limits the amount of development achievable on the application site. Discounted option 2, a new building which integrates with the Edwardian wing by retaining the facade and roof, resulted in a shortfall in gross internal floor area (GIFA) of 1,729 square metres. This equates to a loss of approximately 600 student study spaces through the loss of group study rooms and the reduction in lecture theatres and associated break out spaces of 9 to 5 and 10 to 7 respectively, and would have a significant impact on capacity and therefore the efficiency of operation of the Faculty which requires space or larger student groups across disciplines."
15. The applicants contend, as I have said, that the officers and the Council failed to ask the right question. Mr Harwood argues that the report does not anywhere say that the permitted scheme achieves substantial public benefits that cannot be achieved by a smaller scheme, or that the extra benefits suffice to justify demolition. As he acknowledges, it is a relatively short point and one which turns upon one's reading of the officer's reports.
16. Despite all Mr Harwood's skilful advocacy, I find it impossible to accept his argument. The officers, and by implication the Council, considered the extent of the benefits which could be achieved by complete or partial demolition of the building or by complete retention of the building. For example, the conclusion of the report states:
"It is therefore concluded that:
- There is not scope within the Jessop East site to meet the full needs of the University's brief to deliver 1,950 square metres of new faculty space by 2016/2017, if the Edwardian extension or even just its facade is retained.
- There are no other alternative other sites suitably located, available in the required timeframes and of sufficient size to meet the University's specific requirements.
Even though these tests have been passed it still needs to be demonstrated that the demolition of the Edwardian wing is necessary to achieve substantial public benefits that outweigh that harm or loss."
The report then went on to consider that question also, stressing the strong benefit to the local economy which it saw as outweighing the harm caused by demolishing the listed building. I note also the passage in the report which states:
"It could be argued that a slightly smaller building and more phased expansion of the Engineering Faculty, along with the planned improvements to its existing accommodation would also offer substantial benefits. However, significant weight must be given to the operational needs of the Faculty if it is to fulfil its vision and potential to be a world class engineering facility as set out earlier in this report."
17. In the light of all the passages to which I have referred, and indeed of the reports read as a whole, it seems to me that the Council was looking at what benefits the demolition would bring, and at what benefits retention or partial retention would bring, and it came to the conclusion that those benefits would be significantly less in the absence of demolition and sufficiently so as to override the undoubted value of the building and therefore to justify demolition.
18. The passages which I have already quoted indicate that the officers took the view that the proposed scheme was achieving substantial public benefits, which could not be achieved by any of the other options, and it is the whole thrust of the report that the extra benefit to be gained thereby sufficed to justify demolition. That effectively is what it was all about.
19. It may be that one would come to a different conclusion if one were sitting in the seat of the Planning Committee or any of the officers. The conclusion which was reached was par excellence a matter of planning judgment, with which this court would not, except in very extreme cases, interfere. So like Supperstone J, I can see nothing wrong in the approach adopted by the Council to the decision making process, and it is of course that which matters. Principally for that reason, and not just because of the delay, I for my part would dismiss this application.
LORD JUSTICE LONGMORE:
20. I agree. There is nothing I can usefully add. So the renewed application for permission to appeal will be dismissed. I think that concludes the matter.
Order: Appeal dismissed