Judge, R (on the application of) v The First Secretary of State & Anor [2005] EWHC 887 (Admin)

Case No CO/5102/2004

[2005] EWHC 887 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday, 28th April 2005

Strand

London WC2

B E F O R E:

MR JUSTICE SULLIVAN

Between

THE QUEEN ON THE APPLICATION OF JUDGEClaimant

-v-

Between

(1)THE FIRST SECRETARY OF STATEDefendant

(2)MIDDLESBROUGH BOROUGH COUNCILDefendant

Computer-Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

The CLAIMANT appeared as a litigant in person for in person

MR J LITTON (instructed by the Treasury Solicitor) appeared for FIRST DEFENDANT

MS N LIEVEN (instructed by Middlesbrough Borough Council) appeared for SECOND DEFENDANT

J U D G M E N T

[1]MR JUSTICE SULLIVAN: This is an application under section 63 of the Planning (Listed Buildings and Conservation Areas) Act 1990 ("the Act") to quash a decision of the first defendant contained in a letter dated 8th September 2004 in which the first defendant granted listed building consent to the second defendant in respect of the Sir Samuel Sadler statue, Victoria Square, Middlesbrough.

[2]The background to this application can be stated quite shortly. The second defendant is engaged in a £20 million regeneration of Middlesbrough town centre. That includes the creation of a new art gallery and public square, and also the redesign of existing public open space, including Victoria Square. The Sir Samuel Sadler statue is a Grade II listed building. Planning permission has already been granted for the new art gallery and square, but the second defendant decided that the Sir Samuel Sadler statue ("the statue"), together with another statue should be dealt with separately.

[3]On 27th May 2004 the second defendant therefore advertised an application for the relocation of the statue. In due course, the application was considered by the second defendant's Planning and Development Committee on 16th July 2004 who resolved to approve the application, subject to the imposition of certain conditions and to the reference of the application to the Secretary of State. The application was referred to the Secretary of State under cover of a letter dated 23rd July 2004. The application was accompanied by plans showing the existing location of the statue and its proposed location by a photograph of the statue, and by various supporting statements. In addition, the second defendant sent copies of the representations which it had received in response to the advertisement of the application. The first defendant was also supplied with a copy of the officer's report to Committee on 16th July 2004.

[4]It was necessary to refer the application to the first defendant because Regulation 13 of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 provides, so far as material:

"Where a local planning authority require listed building consent for a demolition, alteration or extension of a listed building in their area or conservation area consent for the demolition of a building within a conservation area in their area, the authority shall, subject to paragraph (7), make application to the Secretary of State for that consent."

So far as relevant, the decision letter says this in paragraph 2:

"The Secretary of State has considered the information submitted by your Council in support of their application and hereby grants listed building consent to relocate the statue of Sir Samuel Sadler, Victoria square, Middlesbrough to a new location in Victoria Square, Middlesbrough as detailed in your Council's letter and enclosures of 23rd July 2004. This consent is subject to the following conditions ... (iii) no works shall commence until a method of dismantling the structure, has been submitted to and approved in writing by the local planning authority ... (v) the structure shall be re-erected in the new location within one year of complete removal from its listed position."

[5]The statutory background against which the first defendant made that decision is to be found in sections 7, 16 and 17 of the Act. So far as relevant, those sections provide:

"7 Subject to the following provisions of this Act, no person shall execute or cause to be executed any works for the demolition of a listed building or for its alteration or extension in any manner which would affect its character as a building of special architectural or historic interest, unless the works are authorised [by the grant of a listed building consent]. 16(2) In considering whether to grant listed building consent for any works the local planning authority or the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses. 17(1) Without prejudice to the generality of section 16(1), the conditions subject to which listed building consent may be granted may include conditions with respect to ... (c) the reconstruction of the building or any part of it following the execution of any works, with the use of original materials so far as practicable and with such alterations of the interior of the building as may be specified in the conditions."

[6]Under section 63, the first defendant's decision may be challenged on two grounds. First, that it was not within the powers of the Act, and second, that some procedural requirement had not been complied with. Although the claimant, who appeared in person, undoubtedly has a considerable and genuine interest in the history of the statue, and of Victoria Square, I confess that I found some difficulty in understanding his grounds of challenge. As I understood the claimant's submissions there are essentially three grounds of challenge.

[7]First, the claimant submitted that the first defendant's decision was unreasonable. He contended that the first defendant had not been able to pay any or sufficient regard to the desirability of preserving the statue or its setting because he had insufficient information as to the history which led to the erection of what the claimant prefers to call the Sadler Memorial rather than the Sadler statue. In particular, the claimant would have wished to explore the motives of those who were behind the erection of the memorial in the Square.

[8]In my judgment, this ground of challenge is untenable for the following reasons. The letter dated 23rd July 2004 was accompanied by a number of annexures. They included plans showing the existing layout of the Square and the location of the two statues within it, a plan showing the layout of the new Square and the proposed positions of the relocated statues. A photograph of the monument to Sir Samuel Sadler letter was provided together with a statement of background and supporting information and a statement of significance, justification and method. In addition, the second defendant supplied the first defendant with copies of all of the representations that had been made to it from such bodies as the North East Civic Trust, the CPRE and English Heritage.

[9]In the supporting statement the significance of the statue in the context of Victoria square was explained:

"Victoria Square was the result of the suggestion of Sir Samuel Sadler, Lord Mayor of Middlesbrough, as a way to commemorate Queen Victoria. It was opened as an ornamental garden with a bandstand in 1901 by Colonel (later Sir) Samuel A Sadler MP."

Pausing there, Sir Samuel was in fact Mayor rather than Lord Mayor of Middlesbrough, but nothing turns on that. The statement continues:

"The existing Victoria Square was landscaped as an ornamental garden with bandstand in 1901 and was used as a site for air raid shelters during the Second World War. These and the bandstand were removed after the war and the present layout of the square dates from 1949, although the design and layout of the garden has changed over time. Victoria Square, located in front of the Town Hall, was and is important as the principal civic square of the town. Featuring significantly in the square are two statues commemorating two of the town's most prominent leaders in industry and local government during the 19th century. These are Sir Samuel Alexander Sadler MP 1842-1911 whose statue near the town hall was unveiled in 1913 ... The monument to Sir Samuel Sadler is of a standing male figure in court costume and male robes. The structure has polished Peterhead granite pedestal, steps, and bounded on the north side by low crescent-plan wall and piers. The statue and commemorative tablets are of bronze. The south face of the pedestal has the arms of the Middlesbrough Corporation, with the lettering 'SIR SAMUEL ALEXANDER SADLER, KNIGHT VD 1842-1911'. The statue is of national significance being listed Grade II in terms of historic interest representing the importance of such individuals in the development of municipal government in Middlesbrough in the late 19th century. This was a key phase in the town's history representing a transition from an industrial boom town to a more established community. The statue represents the civic pride of such towns with money for its commission funded as it was by public subscription. The Sadler statue is appropriate to its present location in the town's civic square in respect of his role in local government and his prominence in the foundation of the Square. Therefore the special interest of the statue lies in its historical significance and in its relationship with the Town Hall and Victoria Square."

Pausing there, it is apparent, therefore, that there was ample material before the first defendant on which he was able to form a view as to the significance or otherwise of the proposed relocation of the statue. It is not without significance that apart from representations made by the claimant, no body concerned with the amenities of the area objected to the second defendant's proposal. Thus, the North East Civic Trust commented that:

"Moving a listed building is rarely conducive to protecting its significance due to the physical risk to which it would be put. The loss of the link to its original or intended site and the resultant change in its setting. However, the Trust understands the unusual situation of Victoria Square and that this application is part of a wider renaissance of this part of the town centre. Indeed, the applicant should be commended on the supporting information provided with the application which makes it clear the implications of the statue's relocation have been well considered and a decision not taken lightly."

For those reasons, amongst others, the North East Civic Trust did not object to the proposal. Nor did the local branch of the Campaign to Protect Rural England. Indeed, the writer on behalf of that group said:

"I would like to express our great pleasure that these two statues of Sir John Vaughan and Sir Samuel Sadler are to be retained in the Victoria Square gardens when they have been upgraded/redesigned."

[10]A local historian commented that he had no particular objection to either of the new sites proposed for the statues but he considered that there were two possible better sites for their relocation. English Heritage said:

"We have considered the application and do not wish to make any representations on this occasion."

[11]The claimant's representations appear to have related rather more to his view of the adequacy of the consultation process than to the merits of the relocation proposal as such. Indeed, he made it clear at the time, and in his submissions to me, that his letters were not to be regarded as representations. The fact remains that anyone who wished to make any observations or to provide any information about the statue and its significance in the setting of the Square was free to do so. All of the representations that were made were placed before the first defendant. In my view, therefore, the first defendant had ample material on which to form the necessary judgment as to whether or not listed building consent should be granted.

[12]Of course, in any case it can always be said that if more research had been carried out then more information could have been provided. The fact that that proposition is advanced in the present case, as it could be in almost every case, does not mean to say that the first defendant's decision was outwith his powers. He had to form a view as to whether or not there was adequate material before him. He clearly was satisfied that the material was adequate and it would only be if his judgment on that matter could be shown to be Wednesbury perverse that a challenge under section 63 could be mounted. For these reasons I reject what I understand to be the first ground of complaint.

[13]Turning to the second ground of complaint, as I have mentioned, the claimant would prefer that the statue is described as the Sadler Memorial. That is because in addition to the bronze figure of Sir Samuel, there is the plinth on which that figure stands which is surrounded by a semi-circular dwarf wall, at each end of which there is a small plinth with a commemorative plaque on the front. As I understand the complaint made by the claimant, he contends that the first defendant may not have realised that the memorial as a whole did not simply comprise the bronze figure but also comprised the plinth and, in particular, the dwarf wall. The claimant attaches particular significance to the role which he contends that the dwarf wall played in the layout of the square.

[14]Again, in my judgment, this criticism of the first defendant's decision is unsustainable. The first defendant's letter dated 8th September does not simply grant consent "to relocate the statue of Sir Samuel Sadler", it grants that consent "as detailed in your Council's letter and enclosures of 23rd July 2004". As soon as those enclosures are considered, it is plain that the first defendant was provided with a full description of the memorial. Thus, one finds in one of the supporting statements:

"The statue, dwarf wall and commemorative plaques will be located in a prominent location facing west within the slightly elevated more contemplative part of the redesigned square."

In the background and supporting information one finds under the heading "Statues":

"The two listed statues are currently situated one at each end of the existing Victoria Square, facing towards each other. Both are on a plinth whilst Sadler also has a small semi-circular wall which forms part of the listing. A more detailed description of the two statues is attached."

It is plain from the description in the listing that the memorial includes not merely the figure but also the plinth upon which it stands, and the surrounding semi-circular wall.

[15]Under the heading "Method Statement" dealing with the proposed relocation, one finds:

"Rebuilding: Sadler: The plinth and dwarf wall will be reconstructed using traditional mortar for bonding the stonework but on a new concrete base."

Those descriptions were supplemented by a photograph of the statue which shows the plinth and at least part of the semi-circular wall. There were also plans which showed not merely the location of the statue but also made it perfectly clear that it was surrounded by a semi-circular wall.

[16]Taking all those matters together, it is quite impossible to conclude that the first defendant could have been under any misapprehension whatsoever as to what constituted the statue.

[17]I move on to the third criticism, as I understand it, of the first defendant's decision. The claimant contends that it was not open to the first defendant to grant consent to "relocate the statue" because once the statue has been moved, it will cease to be part of the land and the various component parts will become chattels, divorced from the land. Whether or not that is so as a matter of property law is, in my judgment, wholly irrelevant. Planning is a statutory code and the claimant correctly submitted that the task of the court is to further Parliament's intention by applying that code.

[18]If one looks at sections 7 and 17 which I have set out above, it is plain that listed building consent can be given for the demolition of a listed building subject to a condition that the building must be reconstructed, either in whole or in part. That is plainly within the powers conferred by the code, even though it may well be the case that, pending reconstruction, various component parts of a listed building, for example, the timbers from a timber framed house, will have become detached from the land.

[19]A similar argument was raised on behalf of the claimant in R v Leominster District Council ex parte Antique Country Buildings Ltd and Others [1987] 56 PCR 240. I take the facts from the headnote:

"A barn, a Grade II listed building, was dismantled without listed building consent and the timber framing sold. The intention was that the timber should be exported to the United States of America where they would be reassembled. Some 70-80 per cent of the timbers were in a condition which rendered them suitable for re-erection. The dismantling of the barn came to the notice of the district planning authority which obtained an injunction preventing removal of the timbers from the jurisdiction. The Council issued listed building enforcement notices which were upheld by the Secretary of State on appeal. The applicants sought judicial review and appealed against the decision of the Secretary of State."

In his judgment, Mann J (as he then was) cited a passage from the judgment of Hoffman J (as he then was) who had heard the inter partes proceedings for an injunction. So far as relevant for present purposes, Hoffman J had said this:

"I can quite see that in some contexts, perhaps in many contexts, a heap of timbers would not be described as a building, but the question in each case is one of context. The relevant context here is the provision in the Town and Country Planning Act which says that if in contravention of listed building control someone has carried out works of demolition to a listed building, the planning authority may require him to take steps for restoring the building to its former state. When it says 'restoring the building to its former state', does that not exclude cases in which the demolition has been so complete that there is nothing left which, in other contexts, one might ordinarily describe as a building? If this is the case, the result from the point of view of common sense would be very surprising. It would mean that a person who had wrongfully commenced to demolish a listed building but had not got so far as to reduce it to a total ruin could be required to restore it to a former state. If, however, the demolition had proceeded so far that there was nothing which could any longer be described (without regard to context) as a building, the wrong-doer might be prosecuted but could no longer be required to take any remedial steps ... I do not accept that the Act requires me to make such a silly semantic distinction. It seems to me that in the context of section 96, the word 'building' is perfectly capable of meaning something which had been a listed building but which had since been demolished."

Having expressed his agreement with the views of Hoffman J, Mann J continued on page 247:

"I turn to the question of whether the applicants, being the owners of the disassembled parts, are capable of being the owners of a listed building. Mr Hockman says that pieces are personalty and are not a building as described in section 190(1) of the Act albeit they could be and were to be re-erected. I am not persuaded by this argument. The transition from realty to personalty with the prospect of reincarnation as a corporeal hereditament does not seem to me to be relevant."

[20]The claimant's central submission is thus directly contrary to the approach of Hoffman J and Mann J in the Leominster case. Their judgments are not binding upon me, but I find them wholly persuasive. In the context of listed buildings legislation, it is simply irrelevant to consider whether or not there has been a "translation from realty to personalty".

[21]Lastly, I should mention what appears to be a criticism by the claimant of the first defendant's use of the word "relocation". It is perfectly true that the Act does not, in terms, permit the "relocation" of a listed building. What it does do, however, is to permit the demolition of a listed building, followed by the reconstruction of that building (see sections 7 and 17). There can be no error in law if the first defendant chooses to use the word "relocation" as a convenient shorthand for describing the process of demolition followed by reconstruction on another site. In any event, the letter dated 8th September 2004 has to be construed as a whole, including the conditions imposed upon the consent. I have set out above the two most relevant conditions. They make it plain that the relocation of the statue involves, first, dismantling the structure -- and it seems to me it makes no difference whatsoever whether the word "dismantling" rather than the word "demolishing" is used -- and secondly the requirement that the structure, having been dismantled, shall then be re-erected in a new location. Thus it can be seen that those requirements are entirely in accord with the provisions of sections 7 and 17.

[22]The claimant was also concerned that the second defendant had put forward suggested conditions in its application for listed building consent to the first defendant. I can see nothing in the least untoward about the fact that the second defendant should have suggested the imposition of certain conditions. Any applicant for listed building consent is free to suggest to the local planning authority, or the Secretary of State as may be, that certain conditions might be appropriate. It is then for the deciding authority to consider whether or not to accept that suggestion. There is nothing in the least sinister, therefore, in the second defendant putting forward suggested conditions to the first defendant.

[23]For the sake of completeness, I should mention the fact that the statue has in fact been dismantled. The bronze figure of Sir Samuel is presently being cleaned. The second defendant intends to relocate the statue in accordance with condition (v) in the listed building consent issued by the first defendant. The claimant raised the question as to whether relocation was a matter for planning control. At the appropriate time it will be open to the second defendant to consider whether or not planning permission is in fact required for the work of reconstructing the statue in its new position. The fact that there is no permission for reconstructing the statue in a new location is not fatal to the first defendant's decision. He was entitled to impose condition (v), which requires re-erection within a year of complete removal, upon the basis that no-one has suggested that there is any difficulty in principle about relocation. Had there been any suggestion that there might be some insuperable difficulty, then it might not have been reasonable to impose condition (v). But on the material before the first defendant, he was entitled to conclude that condition (v) was a reasonable requirement, because if it is concluded by the second defendant that planning permission is needed for rebuilding the statue, there is nothing to suggest that there is likely to be any realistic obstacle in the path of granting such a permission.

[24]For these reasons I am satisfied that all of the grounds of challenge, so far as I have been able to understand them, are wholly misconceived. It follows that this application must be dismissed.

[25]MR LITTON: My Lord, on the question of costs, on behalf of the Secretary of State I apply for our costs to be paid by Mr Judge. I know that a costs schedule was faxed to the court.

[26]MR JUSTICE SULLIVAN: I do not know that it has caught up with me. I may have one somewhere. Do you have a copy?

[27]MR LITTON: My Lord, yes. (Handed). One was faxed to Mr Judge yesterday but I think it is fair to say that he did not receive that because he was travelling. We have provided him with a further copy today. Assuming for the moment, my Lord, that you accept my submission that he should pay costs in principle, then you will see that on the second page there is a figure of £6,600. My Lord, we would suggest that ought to be discounted by £320 to reflect the fact that attendance today was not all day as estimated. So that brings that figure down to £6,280, to make allowance for three hours rather than five.

MR JUSTICE SULLIVAN: Can I just have a look at it.

[29]MR LITTON: Of course, my Lord. Yes. What do you want to say about that Mr Judge?

[30]MR JUDGE: My Lord, thank you for your judgment. I understood the judgment to be delivered on the part of Her Majesty the Queen. I understand your judgment to be in the interests of justice dispensed on behalf of Her Majesty the Queen. I understood you to be here on behalf of Her Majesty the Queen in the sense that she is here today.

[31]I wish to draw the attention of the court to the fact that the issues are related to a square next to a building that was dedicated to the Queen and has a stained glass window relating to Queen Victoria. I believe that the question here today is not simply the questions of law for the clarification of which I am much obliged, because I regret that I apparently misdirected myself on those questions, but also the issue of why I am here. The issue of why I am here is not so much the Sadler Memorial as such but the fact that I believed in the constitution of the supreme authority in this country being Her Majesty the Queen in Parliament.

[32]I came as a claimant in person and did not seek to involve the Attorney General in the matter. You tell me that on the planning issues I have misdirected myself, but you have also in your judgment referred to the facts to which I have now referred. You say it was in commemoration of Her Majesty Queen Victoria. It is also a fact that Samuel Sadler was the person responsible for that, that his statue or memorial was later incorporated into the Square on that account. Now, the memorial, in fact constitutes, as you know -- I am sorry if this perhaps was not explored as much as I hoped in the course of the judgment but it does include a wall and the report in the newspaper to Samuel Alexander Sadler refers to the civic dignity -- this is what it says in the newspaper --

MR JUSTICE SULLIVAN: I think, Mr Judge --

[34]MR LITTON: May I finish the quotation, my Lord?

MR JUSTICE SULLIVAN: No, because you are adding to the costs of everyone here.

[36]MR JUDGE: I wish to say my Lord that I do not believe that this court is allowing me to finish my sentence.

[37]MR JUSTICE SULLIVAN: I am certainly not. I am asking you if there is any reason why you should not pay the costs.

[38]MR JUDGE: I am trying to make the reason, my Lord. Can I continue?

MR JUSTICE SULLIVAN: For a couple of minutes then I shall stop you.

[40]MR JUDGE: Now, the sculptor says the surroundings were important. He also says that it gets rid of the impression of an isolated statue, important on a chess board, to be removed at will. So the sculptor said. It gets rid of the impression that it was a pawn. Samuel Sadler was not a pawn, he was a Knight on a chess board, Victoria Square next to the picture of the Queen. He should not have been removed.

[41]Those things should have been taken into account. This is a question of heraldry. We have heraldry everywhere. I wish to make this point and thank you for allowing me to make it, my Lord. I believe that heraldry is the direct interest of Her Majesty the Queen. This is a memorial to one of our ancestors. If I am wrong on the planning issues, then you take into account the fact that you are dispensing justice on behalf of Her Majesty.

[42]MR JUSTICE SULLIVAN: Thank you very much. I am satisfied that the ordinary course should follow. That is to say that the claimant should pay the first defendant's costs. No representations have been made about the amount of those costs. It is clear that they should be summarily assessed rather than go to detailed assessment. I appreciate that the figure claimed, £6,280 is somewhat higher than one would usually expect to find in a relatively short planning case of this kind but, having read the papers myself, I can understand the first defendant's difficulties in, as it were, teasing out what were, in truth, the grounds of complaint. Inevitably, that must have added to the time taken in order for the first defendant to consider this particular challenge. For those reasons, even though the figure is somewhat higher than usual, it has been made higher as a result of the form in which the claim was made. I summarily assess the costs in the sum of £6,280.

[43]MS LIEVEN: My Lord, can I say something very briefly about the second defendant's costs. I am sure your Lordship will be glad to know that our clients have decided not to apply for their costs. We do not wish to be seen to be oppressive in this matter. However, I would like in open court to make two brief points. The Council is very concerned about the amount of wasted time and money that has been involved in this case. Your Lordship will probably be aware that the reason why the Council felt it had to attend was that Mr Judge has started a private prosecution in the Magistrates' Court, alleging breach of listed buildings consent. In those circumstance the Council felt it was important to be here today.

[44]I would like to make clear on behalf of the Council, in open court because it is one way of communicating these things very clearly, that if there are further applications by Mr Judge which the Council considers to be wholly lacking in merit, it will have no hesitation in applying for its costs in the future. If the private prosecution, which seems to be even more wholly lacking in merit than it was before, is continued with the Council will have no hesitation in applying for its costs of defending those proceedings. I am sorry to have wasted the court's time in saying that publicly but I am sure the court can understand why it is appropriate to do so.

MR JUSTICE SULLIVAN: Yes, I can understand that.

[46]MR JUDGE: My Lord, there have been several hearings before the Magistrates' Court. I have continually made the point to the Magistrates Court that before the Magistrates it is not the issue of the validity of the listed building consent. I understand the issue to be whether there was a valid grant of listed building consent for what has in fact happened, demolition of the memorial --

[47]MR JUSTICE SULLIVAN: I am so sorry, Mr Judge, I am not going to allow any more time to be taken up. Miss Lieven has given a clear warning about costs. It is a matter for you whether you take that warning on board. I have decided, and made it absolutely clear, that there is no basis whatsoever for challenging the validity of the listed building consent. If you choose to take any other proceedings, you do so in the clear knowledge that the Council has given a warning with costs. It has not claimed costs for today because the normal practice of the court is not to award two lots of costs.

[48]MR JUDGE: My Lord, the thing is that if, in fact, the Magistrates arrived at the decision that I understand you to indicate they should arrive at, which is that what occurred in Victoria Square was a demolition, is that not correct? Then they will have committed an offence in view of the provisions of section 8(2). That is the point before the court in the Magistrates' Court.

[49]MR JUSTICE SULLIVAN: It is a matter for you, Mr Judge. If you take it any further, you face the risk of further costs. That warning bell has been rung loud and clear.

[50]MR JUDGE: My Lord, I sincerely request you to indicate clearly that what occurred was, in fact, under the Act, a demolition. I understand you to have just said that in your judgment. Thank you.